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December 22, 2012

Latest OSJCL issue with "McClesky at 25" symposium now available on-line

As noted in this prior prior post, the Fall 2012 issue of the Ohio State Journal of Criminal Law has a lead symposium focused on "McClesky at 25."  The whole issue is now available on line at this link, and here are all the articles in the symposium:

McClesky at 25 OSJCL Symposium Articles:

December 22, 2012 at 07:42 PM | Permalink


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Why am I not surprised that Professor Berman has swallowed whole Justice Brennan's "too much justice" talking point? The whole premise of the dissent in McClesky is silly. Are we really going to look at the actions of independent actors as a whole and deduce that some capital defendants simply won't be eligible for death because there's a statistical disparity in terms of who gets death? Why should the decisions of one jurisdiction in a state be relevant to the decisionmaking process of independent actors in another jurisdiction in that state? Then you get into the problems of how much of a disparity is too much? It's a fool's errand, not because we're afraid of "too much justice," but because it's unworkable. And, in addition, how much of the disparity is cause by differing crime rates, different facts surrounding the crimes etc.?

Also, given that the execution of a guilty murderer is nowhere near the gravity of convicting a person of an offense which will take away his freedom, there's no reason why the dissent's view in McClesky shouldn't be applied across the board if you accept it for capital punishment. Are we going to turn every single prosecution into a civil rights death slog? Are we going to allow plainly biased studies to impact whether someone can be prosecuted for a particular crime? This isn't "too much justice"--this is liberal fantasyland gone amok.

And what if a white perp decides to make a case of things--does he get to use anecdotal evidence of black jury nullification as a reason he should get off? Or let's take an extreme example in the capital punishment sphere---James Burmeister escaped a death sentence--it is highly likely that the reason he did was because one jury felt racial kinship with him. Is the death penalty now verboten in North Carolina? Under the logic of the dissent, it should be, a white man escaped death because of his race--shouldn't every black murderer get the same treatment? Should it be one for one?

Utter silliness.

Posted by: federalist | Dec 22, 2012 8:11:52 PM

"it is highly likely that the reason he did was because one jury felt racial kinship with him. Is the death penalty now verboten in North Carolina?"

I should have written "juror" not jury.

Posted by: federalist | Dec 22, 2012 8:50:54 PM

The authors cite the study showing the only racial bias in the death penalty is its low application if the victim is black. That is best explained, again according to the reports of the authors by the low acceptance of the DP in black communities, and thus by black juries.

Despite this extensive knowledge, the self-evident eludes them. The logic would be to remedy this disparity by guiding the jury to increase the death penalty in cases with black victims. There is an excess of them over their population fraction of 5000. That is the number the other lawyer operation, the terror arm of the Democratic Party, the KKK lynched over 100 years. The current crop of lawyers, including most of the authors above are 100 times more deadly to black murder victims today.

Why does the self evident elude them? Because the self evident would end many lawyer jobs, if there were 5000 fewer murders a year.

They ended the death penalty in Furman. No one is stating the obvious. A $multi-billion dollar industry evaporated in one day. They corrected themselves with the ALI Model law, and restarted the $multi-billion jobs program for lawyers. The facts are taken from the articles, so the authors know them. They just refuse to state the obvious, lawyer rent seeking.

Posted by: Supremacy Claus | Dec 23, 2012 4:51:53 AM

Hey federalist and SC: Did you folks actually read my introduction or Kent's piece, which I was eager to highlight at the outset of my introduction? I welcome your feedback, but I hope it would be to the full substance of what I post and not just to what you think is reflected by a title. Remember that old-world advice about not judging books by their covers?

The main reason the Brennan dissent phrase is stressed in my intro is because it highlights a notable response the the notable slippery slope concerns expressed/stressed by the McClesky majority. And, as your comment readily shows, federalist, this phrase perhaps more than any other from McClesky evokes/provokes strong feelings and raises hard enduring questions about the Eighth Amendment and disparity in the CJ system. That is why I used it, though I hoped it would lead to further reading and engagement, not just an excuse for the usual rhetoric.

Sadly, rather than fully engage with what is actually written in these new pieces, it appears federalist and SC that you just want to stress your own favorite talking points and name-calling. So be it, but this tendency in part explains why I continue to get so many e-mails urging me to preclude certain commentors from spoiling the blog for others. As you both know, I much prefer encouraging more/better engagement rather than precluding/screening certain voices. But your comments here remind me why so many people write to me to complain about certain commentors.

Posted by: Doug B. | Dec 23, 2012 11:17:45 AM

Doug, my post was hardly "name-calling," but rather it was sharp. Do you know the difference?

Here's the quote that I was reacting to: "provided a spot-on response . . . ." Really? Is Brennan's retort that good, or is it basically a talking point that doesn't bear serious analysis? We don't know for sure what you think--but your editorializing allows for a pretty good guess.

By the way, I pretty much back up everything I have to say when I post. Just ask your UPenn buddy about that . . . .

Posted by: federalist | Dec 23, 2012 11:29:43 AM

"Doug, my post was hardly "name-calling," but rather it was sharp. Do you know the difference?

Here's the quote that I was reacting to: "provided a spot-on response . . . ." Really? Is Brennan's retort that good, or is it basically a talking point that doesn't bear serious analysis? We don't know for sure what you think--but your editorializing allows for a pretty good guess.

By the way, I pretty much back up everything I have to say when I post. Just ask your UPenn buddy about that . . . ."

The fact that you can be this much of a dick on a Sunday morning is pretty impressive, but being able to do it on a Sunday morning two days before Christmas really puts you in a league of your own. If they ever have a hall of fame for internet trolls, I'll be sure to nominate you for the inaugural class. Thanks for making me laugh, fed, you really do earn your keep around here.

Posted by: The Death Penalty Sucks. | Dec 23, 2012 1:36:23 PM

TDPS, I didn't know you cared.

Can you explain how I am being a dick? But more to the point, whether I am a dick or not, the question should be "Am I right?"

Why don't you try dealing with the points I made in my comment instead of calling me a dick or a troll?

The reference to Doug's UPenn buddy has to do with this comment I made after the Lafler/Frye lawmaking:

"Professor Bibas, I note the backtracking in your post, so I guess that "flamethrower" made things a little hot for you. Your quoted language basically calls Scalia a hypocrite for not manning up like a hypothetical real originalist and voting to ban plea bargains. And when called out, you trot out some scholarship by Akhil Amar and John Langbein--to show what--exactly--that these two are the be all and end all of originalism? Since that's obviously not true, we are left with the conclusion that your citation of these two is a bit of a rhetorical rear-guard action. Contrary to your implication, Scalia can be a real-man originalist, yet not wish to vote to ban plea deals. And citation of some scholars whose views would probably get zero votes from either the Supreme Court or any random Court of Appeals panel doesn't change that.

"I am also somewhat mystified by your citation of Article III. Unless I am mistaken, these two cases involved state plea negotiations, and unless there's a smuggling of Article III into the Bill of Rights (a la EPC into Fifth Amendment DPC, but in the other direction), I wasn't aware that an "originalist" could vote to ban state plea bargaining (even an originalist that accepts selective incorporation of the Bill of Rights), notwithstanding the fine scholarship of those two professors. In any event, I don't particularly care when the practice grew up. It seems relatively clear to me that guilty pleas were ok at common law, and it seems relatively clear that prosecutors had discretion as to the bringing of charges. Putting those two unquestionably constitutional practices together, voila, you have plea bargaining. Now that doesn't necessarily remove all doubt as to the constitutionality of plea deals, given the fine scholarship of Amar and Langbein, but it certainly removes all doubt that one must be in favor of finding all plea bargaining unconstitutional (and that doesn't even mention the inability to apply Article III to the states--how did Amar and Langbein get around that issue--do they argue that the jury trial right in the Bill of Rights, despite the differing language, has the same meaning?) in order to be a true originalist.

"Professor, I do apologize; I am just a dumb transactional lawyer. What do I know about all this high-minded constitutional law stuff? I am still trying to figure out how a right not granted for its own sake but rather to ensure a fair trial is somehow a violation of that right. And when I figure that out, I'll try to figure out how a court judgment (that's what counts, right?) determining that the particular right was not violated when the accused got a fair trial was unreasonable. And then when I get all of that figured out, I will try to figure out how the government can violate the accused's rights, yet not have the ambiguity it created by such violation required to be resolved against it.

"Gotta run. Need to get some milk for the kiddos. Perhaps your insulation isn't as good as you think, or, instead of a flamethrower, I use an oxyacetylene blow torch. You'll have to explain to me how Article III regulates the states--I missed that day in law school.

TPDS, when you can argue with that degree of sophistication, come talk to me . . . .

I note that Bibas caved.

Posted by: federalist | Dec 23, 2012 1:50:37 PM

Prof. Berman: My comment was directed at the article by Prof. Sundby. I had no criticism for your moderator introduction. I also praised your intelligence and fairness for inviting Kent Scheidinger in a prior version of the comment that did not get posted. That makes the symposium more valid. Even though we agree on a lot, Kent asked me to leave his blog, and I never returned. You may do the same at any time. The repetitiveness of the comments must follow the repetitiveness of the articles posted.

I did not use Sundby's name out of politeness. He knows the relevant studies and facts, but comes out with a conclusion opposite their conclusions. That is called, denial.

I am the sole representative of the crime victim here. You can expel me, and silence this lone voice. I have had legal training. You are a law prof. You can always ask me to switch sides, and I will justify and excuse the profession as the best on earth. But that would not help. The emails are about the mass extinction of lawyer jobs if crime is totally eliminated, as I propose.

I also do not want to jinx this by pointing it out, but you have changed. Did you know that? You have changed for the better. You believe the lawyer profession must operate in the physical world. I am not discussing how, here, because the baseline came in private conversations. You will have to reveal how you felt a couple of years ago, versus today.

Posted by: Supremacy Claus | Dec 23, 2012 2:18:11 PM

Doug, perhaps the reason you get so many emails whining about what I post is that the whiners can't compete. You don't seem to have any issues with people calling me names (without even bothering to argue a point); nor have you had reservations with ad hominem (calling what I say talking points is a species of ad hominem). You also used to impute racial bias to me as well.

I think the reality is that you have a hard time engaging in quick back and forth. You obviously leaped to a quick conclusion about what I had read, but that was wrong. I read the piece your piece and quoted from it. Perhaps I should have quoted from it in my first comment, but assuming that a person has familiarity with what he wrote isn't a horrible offense.

But what I find pathetic (especially for a law prof) is your sophistry. Handwringing about the "disparity"--your quote is: "And, as your comment readily shows, federalist, this phrase perhaps more than any other from McClesky evokes/provokes strong feelings and raises hard enduring questions about the Eighth Amendment and disparity in the CJ system." That's weaselly. What "hard questions" are there about the disparity from an 8th Amendment standpoint? You don't mention any, but you point to my comment as showing how hard the question is? Ha! Actually, it seems to me that the question of the "disparity" and the CJ has been answered from a legal perspective. See United States v. Bass, 536 U.S. 862 (2002). The hard questions, it seems, are really just the result of looking at the population of our prisons and tut-tutting about our society. When it comes to the death penalty, this tut-tutting passes through a megaphone, and cheap rhetorical jabs like "too much justice" are tossed about as a slogan which denigrates those who would analyze the situation.

What is also bad in a law prof is the facile praise of sophistry in a dissent. The district court's analysis of the Baldus study was hardly impeached by Brennan. And how could it be? Yet, as a law prof, you talk about Brennan's "spot-on" retort. I guess it was, if Brennan's role were to provide ammo for intellectually dishonest attacks on the CJ system. But one would think that a law prof would have something to say about that--rather than puff an intellectually inadequate dissent.

Posted by: federalist | Dec 23, 2012 3:46:22 PM

One receives a benefit from the court by killing a black, a lower risk of the death penalty. I thought one had to show an injury, a detriment before any claim could be considered. Justice Powell says, there is race somewhere in there and allows the case. Prof. Sundby calls it a blow to faith in the constitution. This is our Dred Scot. Dred Scott was the first practice of judicial review, in violation of Article I, Section 1, cancelled the Missouri compromise , violated an international treaty, and set off the Civil War. McKlesky did as much as that? The jury obeyed the law, felony murder, murder of the police, all aggravating factors, applied the death penalty. They obeyed the law and prior Supreme Court decisions.

Such hyperbolic comparison is arguing in bad faith. It does not deserve rebuttal, because the facts are well known to the denier. A denier will never be persuaded.

What must be explained is the pattern. A discount for killing black males, the actual killing of an excessive 5000 of them a year. The eradication of the patriarchal black family, the immunization of bastardy. Why? To enlarge government, and increase lawyer employment. Thus all the hand wringing. The emails are from feminists and their male running dogs. I bet most are government dependent.

Posted by: Supremacy Claus | Dec 23, 2012 4:21:35 PM

Glad you are so engaged, federalist, and I now have time to go at it. So, let's roll and start by both agreeing to not get so defensive in a sharp exchange. I will number my points to make continuing the exchange easier (with the first two points on rhetoric, the others on substance):

1. My complaint about "name-calling" was principally directed to SC, though I find funny that you later say that "calling what I say talking points is a species of ad hominem." Your first point/sentence in the whole comment thread asserted I had "swallowed whole ... Brennan's talking point." Was the initial use of the term "talking point" by you "a species of ad hominem" attack on me and/or Brennan or do terms/words have special nuances only when used by those using a blog pen name?

2. You are right that I allow all sorts of name-calling running all ways on this blog (while also allowing folks to do the mud-slinging behind blog pen names). That is in part because I think it can be revealing what leads to the name calling by whom AND in part because my libertarian instincts and my belief that people take words too seriously leads me to do almost no moderation of any comments. Whether that is an ideal comment policy, I do not know. But I do get lots of complaints about this policy from various folks from various quarters (though I think most are focused upon what SC often repeats about lawyer rent-seeking).

3. You ask: what "hard questions" are there about the disparity from an 8th Amendment standpoint? I could give you hundreds, but let's start with one I enjoy bringing up when I teach the death penalty:

A. Could a US jurisdiction, consistent with the 8th Amendment, provide that every murderer sentenced to death under the now-required process would have their name put into a “power-ball lottery” with the state then picking names randomly at the end of the year in order to select only 25% of those who were death sentenced to continue to seek to execute? (This policy might be adopted by a state in order to (a) encourage juries to be more willing to sentence capital murderers to death, while also (b) reducing the appellate costs defending all death sentences. In practice since Furman/Gregg, less roughly 20% of death sentences have resulted in executions, so this 25% lottery approach would come close to replicating modern reality.)

B. If you think the "random disparity" created by running this kind of "equal" death lottery presents no Eighth Amendment problem, does your constitutional answer change in any way if/when the state tweaks the lottery to be weighted in favor or against some murderers? Suppose the state says that all murderers who can pay $1,000,000 to the victim's family can get their name out of the lottery (or that the murderer rats out the most others gets out of the lottery)? What if the state says that the immediate family of the murder victim gets sole authority to decide if a murderer’s name goes in the lottery? What if the state says anyone whose victim is a woman gets extra names in the lottery or that any murderer who had a female lawyer gets fewer names in the lottery? What if the state says anyone who kills a person of a disfavored religion or race gets fewer names in the lottery?

4. Pending your answer to the questions I raise, I read some of your comments as asserting that no measure of disparity in the death penalty or elsewhere can create an Eighth Amendment issue/problem no matter how extreme the disparity nor how it comes to be (intentional discrimination, of course, gets picked up by the EP Clause of the 14th Amendment). But that is not how I read the McClesky majority's concern about slippery slopes. Rather, I read the last part of the McClesky majority opinion as concluding that the Baldus "risk of race" disparity showing was not strong enough AND that if it was deemed enough under the Eighth Amendment, this finding could/would kill all capital punishment systems AND that legislatures are better institutionally positioned to respond to these kinds of disparity concerns. That is why I consider "spot-on" Brennan's assertion that the majority's "statement seems to suggest a fear of too much justice.” If the majority said no showing of disparity can ever make out an 8th A claim (which may be your view and may be Justice Scalia's view), then the "too much justice" attack is misguided. But that is not how I read the majority opinion by Justice Powell and that is why I still "swallow" the criticism.

That all said, I still think McClesky is a hard Eighth Amendment case for lots of rights and remedy reasons, which is why I love engaging still with the opinion 25 years later: I see so many deep theoretical and practical issues raised by all forms of disparity (whether random or systematic) in the criminal justice system. Ergo my genuine interest in your substantive answer to my death lottery question(s).

Posted by: Doug B. | Dec 23, 2012 5:57:25 PM

Well, I think the lottery issue is a bit of a goofy hypo. The fact is that it wouldn't fly. How do I know this? Easy, in Ohio Adult Parole Authority v. Woodard, 523 US 272 (1998), a majority of the Supreme Court concluded that there were at least minimal procedural safeguards when it came to clemency. Since it is clear that a person's interest in his life is more weighty than simple clemency, the lottery wouldn't fly. "Thus, although it is true that 'pardon and commutation decisions have not traditionally been the business of courts,'' Dumschat, supra, at 464, 101 S.Ct. at 2464, and that the decision whether to grant clemency is entrusted to the Governor under Ohio law, I believe that the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process." (O'Connor J., concurring).

To a certain extent, one could call the seating of a jury, the county of the murder, the worldview of the prosecutor etc. random, and thus similar to a lottery, but that's a specious argument. The randomness that inheres in our jury system and system of local prosecution isn't the same as a coin flip or a lottery. That a system produces results that have random inputs (and there's no real way to avoid that) doesn't mean that we can add a lottery to the system.

As for the $1,000,000 payout to avoid death--it's pretty clear that would not be constitutional.

You'll have to forgive me about your McClesky argument. Are you really saying that a racial disparity, standing alone, can create an 8th Amendment problem? But how can it? Now, of course, if a situation got like that in Yick Wo v. Hopkins, it's certainly possible--but that supposes intentional discrimination proven by circumstances that admit of no other conclusion. What else is there? If the disparity is caused by something other than government intent, then are you arguing that a disparate impact theory has been smuggled into the 8th Amendment. Like I said, I am having a hard time understanding your point.

But that doesn't stop me from slamming Brennan's statement and your approval of it. Remember, the Baldus study was full of holes. Brennan doesn't acknowledge that, and neither do you. That's a real problem. Without a good study, then the questions become academic because they weren't before the Court, and Brennan's comment becomes a talking point, not a serious attempt to deal with the case at hand. Plus, let's not forget that if you're white in America, you're more likely to be executed for murder than if you're black. But that's never talked about . . . .

I don't know where the line is to be drawn from where a disparity would be a problem constitutionally. Maybe it would be a situation that was not quite as bad as Yick Wo. Maybe if you had 10 W/B murders that were truly horrible (like the Christian/Newsome murders) and 10 B/W murders that were accomplice liability type murders and the prosecution went for death in every one of the B/W murders and none for the 10 W/B murders. Then maybe you'd get there, but that seems like a pretty strong EPC case. But a disparity on its own with weak studies . . . . let's get real.

In any event, you're attempt to criticize me for calling your attack ad hominem by pointing to me saying that Brennan's statement was just that is weak. I explained fully why Brennan was off-base. I just put my conclusion first.

Posted by: federalist | Dec 23, 2012 8:26:44 PM

Prof. Berman: A disparity does not violate equal protection nor any other law if stems from the statistics of the act and not from bias. The Supreme Court, doing its job protects us from bias in the lower court, not from the proper function of the lower court.

If there is a black white disparity, there is also a wide male female one. Should the death penalty be suspended because males kill more people than females?

These disparities in sentencing actually under value the black and female victim, and thus benefit and give discounts to the defendant. These discounts start at the time a call is made to the police. The police are the agents of the prosecution, and all their misconduct is that of the feminist lawyer now in full charge of the criminal law, from first call to sentencing. So the police does not show up for 2 hours instead of for 2 minutes as in my lawyer residential area. The police is lazy, and does not do a good job of catching the murderers of these victims. As you said, prosecutors use their discretions to cut deals or just fail to prosecute. The failure of the lawyer and of its agent, the police is at every step and level of procedure.

Name a level of the criminal law, and it is outrageously inadequate, yet expensive. Mandatory guidelines should take away the discretion of the political hack that is the usual district attorney, including appointments for political favors to federal positions.

When you pay a lot, and get very little from government, that is called rent seeking in the modern sense. If the profession were in less failure, its output would be commendable profit seeking. Not only in total failure but expensive, and thinking it is doing a good job.

Meanwhile 90% of the 20 million serious crimes go unanswered by the 2 million prosecutions, your lazy, shiftless, rent seeking profession. puts on. This is a reverse lottery, with only a tiny fraction of criminals getting in any way inconvenienced for their major crimes. With 95% resolved in 5 minutes of work over a sandwich, with agreement to a fictitious adjudicated charge, we do not even know the real crimes the prisoners have committed from the records. How badly can a set of dunderheads muck up an enterprise before you agree that tort liability for their careless acts of commissions and omissions would be healthy? What other industry has reached such a level of failure before government stepped in?

I am curious if you disclose these failures to your law students. That disclosure of extreme failure should be required for the law school education and for the appointment of any lawyer to any responsible policy policy. It would be like the health consequences on a pack of cigarettes, only fair.

Posted by: Supremacy Claus | Dec 23, 2012 9:15:13 PM

This is an ad hominem aimed at both Prof. Berman and Federalist. When you guys argue, it is trivial and boring. You can both do better. You should do more real cases to hone your persuasive powers. Say this stuff in court, you will lose. Where is the good stuff, the compelling stuff that will turn a jury around, that will turn me around?

Posted by: Supremacy Claus | Dec 23, 2012 9:20:27 PM

This can't be right!

"2. You are right that I allow all sorts of name-calling running all ways on this blog (while also allowing folks to do the mud-slinging behind blog pen names). That is in part because I think it can be revealing what leads to the name calling by whom AND in part because my libertarian instincts and my belief that people take words too seriously leads me to do almost no moderation of any comments. Whether that is an ideal comment policy, I do not know. But I do get lots of complaints about this policy from various folks from various quarters (though I think most are focused upon what SC often repeats about lawyer rent-seeking)."

Thought i was number one!

I Protest!

It's CHRISTMAS guys! Make nice!

Posted by: rodsmith | Dec 23, 2012 10:30:57 PM

I am still struggling, federalist, to understand your 8th Amendment views. In Woodard, a majority of justices indicated that a coin-flip/random process would violate DUE PROCESS, but that is a 5th A issue, not an 8th A one. Thus we still have the hard 8th A issue with respect to statistical showings of hard-to-explain disparity: if the disparity comes from a clear intent to discriminate we have an EP problem, and if it comes from a coin flip we have a Due Process problem, but what about a system that statistics show functions as a skewed lottery because of the unconscious biases of humans who try, but fail, to run the system in a fair way.

(As for my hypos about a skewed death lottery, arguably the $1,000,000 payout system already exists, though the $1,000,000 now often goes from US taxpayers to the best defense counsel who can use superior skills and resources often to help their clients avoid a death sentence (see, e.g., life sentences for 20th hijacker Zack Moussaoui and OK City bomber Terry Nichols). Also, the victims' families often now get to take a murderer out of the death lottery because most prosecutors will cut an LWOP deal even for the worst killers if/when the victims' families urge such a deal (see, e.g., Green River Killer).)

Your point, and maybe the claim of the McClesky majority, is that some measure of statistical randomness is inevitable in any human system and so a death lottery that tries to be fair but still produces hard-to-explain disparity does not implicate the 8th A. But the point of the (contestable) Baldus study is that the death lottery in Georgia after Furman was not at all fair; according to Baldus et al, despite perhaps well-meaning efforts of those running the system, in Georgia the race of the defendant and of the victim greatly influenced the odds of who got death. (The McClesky majority, as you know, accepted the validity of the Baldus study and still rejected the 8th A claim; you are "arguing with the hypo" if you fault me or Brennan for accepting the (debatable) Baldus study which the McClesky majority accepted in order to reject the 8th A claim on the merits.)

Again, perhaps the wise jurisprudential response (even accepting the Baldus study) is just "tough": by committing murder in Georgia, the murderer bought his own "death lottery" ticket and cannot now complain that the state's death lottery is rigged against him. But if/once you concede that an even a "pure" death lottery system is not form of justice, then it is not satisfactory for the McClesky majority to explain that it won't try to "fix" Georgia's skewed death lottery under the 8th Amendment because that would require trying to fix other sentencing lotteries, too. In turn, it is fair then for Brennan to assert that the majority seems afraid of seeking to require via the 8th A sentencing systems that are even more like "justice" and even less like a lottery.

In other words, the hard essential theoretical question --- posed by my hypo and indirectly by the McClesky case once the Baldus study is accepted --- is whether/when the 8th A permits death sentencing by "pure" lottery. You seem to concede that disparity alone could be a problem constitutionally, but you "don't know where the line is to be drawn." And unelected justices, in turn, may feel legislatures should draw such a "too much disparity" line via statutes rather than having courts do it by judicial fiat. But Justice Brennan in McClesky wants the death penalty halted while legislatures try even harder to draw this line (as happened after Furman), while the McClesky majority concluded that death sentencing could continue even though the post-Gregg system failed to eliminate skewed lottery-like features in this imperfect human system of justice.

Posted by: Doug B. | Dec 23, 2012 11:49:45 PM

" (though I think most are focused upon what SC often repeats about lawyer rent-seeking)."

This is my explanation for anomalous and failing lawyer behavior. If any email author has a better theory, would love to hear it and its supporting facts.

There are decisions that cut lawyer employment and reduce procedure, reduce complexity. These are explained s errors, corrected later, such as Furman. Or they are in response to public rage. Their rarity support the theory of rent seeking.

The lawyer picked up the robust business model, even doctrines of the Inquisition, 1) large numbers of picayune rules, stated in incomprehensible language, sometimes in a foreign language, Latin; 2) going after the productive to use government to take their stuff; 3) plea bargains to make the defendant grateful for being ripped off; 4) supernatural doctrines interpreted by the hierarchy; 5) don a false, hypocritical sense of piety; 6) self-dealt immunity from own rules.

Posted by: Supremacy Claus | Dec 24, 2012 11:33:06 AM

Isnt increasing disparity more and more likely as the number of death sentences and executions decrease? (It's the converse of the theory of large numbers.). Its definitely more likely once you outlaw mandatory DP for some crimes, and once you make mitigation completely open-ended and limitless. So DP abolitionists, by arguing for fewer DP sentences and open-ended mitigation, thereby get greater disparity -- which thy use to argue for no DP.

Heads I win, tails you lose.

Posted by: Thought | Dec 24, 2012 2:26:24 PM

I don't see how it's a hard 8th Amendment issue. Even if you grant that the 8th Amendment should be a detailed code of procedure for the death penalty, I don't see how it can govern prosecutors' discretion, other than as coterminous with DPC or EPC. But let's assume arguendo that the 8th Amendment does govern prosecutors' discretion/outcomes. The problem then becomes one of proof and one of degree. Clearly, proof of race being a factor in a white murderer escaping death because of his race is one that would trouble Brennan etc.--but what's the remedy? Do all black murderers from now to eternity escape death? And if all the black ones do, then wouldn't all the white ones? Goofy.

Ok, so say you posit that juror decisions aren't part of the hypothetical 8th Amendment right--only prosecutors' decision to bring the death penalty. What kind of statistical proof is sufficient to determine that unconscious bias was at work? That seems a huge problem, as the flawed Baldus study demonstrates. This is why this isn't a case of "too much justice" but a fool's errand. And how do you tease out geography? You can't do this statewide because you have independent decisionmakers---so how do you adjust for a small sample size? And since the a defendant's interest in avoiding death for a murder (assuming he's guilty) is less important than the guilt-innocence question on just about any crime, then it's difficult to see how this nebulous 8th Amendment right could be at all applied generally.

This is why the issue isn't hard. And it's why calling Brennan's rhetorical flourish "spot-on" is, to be blunt, ridiculous. Brennan's argument isn't serious. There are simply too many non-starters with the idea that defendants have a right to be free from all unconscious bias in selecting them for death proceedings, not the least of which is that the evidence is so susceptible to its own biases.

Posted by: federalist | Dec 24, 2012 8:18:32 PM

Your points here, federalist, always seem to return to the practical problems of proof. To return to games of chance, you are essentially saying the the death penalty roulette wheel does not spin enough times to conclusively reveal whether it is truly a fair wheel or one rigged for more black than red numbers to come up. And if you are not at all troubled by capital justice administered by roulette wheel, then perhaps it is a fool's errand to worry about whether the death wheel is fair or is rigged due to unconscious bias.

Put in more human terms, if you think a measure of randomness is inevitable in how death and other sentences get administered and if you think it impossible to ever figure out as a matter of proof what is the result of pure chance or biased chance, then I understand why this all seems a game not worth the candle. But then you likely think Furman was wrong and that any effort to constitutionally regulate capital decision making is misguided. That is a viable constitutional theory, but not the working premise of the McClesky majority. What Brennan is doing, validly in my view, is assailing the majority's weak slippery slope argument. You stress other ways to defend the McClesky outcome -- e.g., question the Baldus numbers -- but still seem not to full appreciate why Brennan was making an on-point retort to a weak move by the McClesky majority.

Posted by: Doug B. | Dec 24, 2012 10:38:50 PM

"Measure of randomness, pure chance, biased chance, lottery."

Where in the case of McClesky may one find any of those? There were 2 statute defined aggravating factors, felony murder, and the murder of a police officer. The jury obeyed the law. This case is a rare one that is the opposite of random.

"death penalty roulette wheel does not spin enough times to conclusively reveal whether it is truly a fair wheel or one rigged for more black than red numbers to come up"

The sole conclusion possible is that more murderers of black people should be executed. If black jurors oppose the death penalty, and cannot be "guided" to obey the law, exclude them to protect the black murder victim. That is a non-trivial conclusion implied by this decision.

No lawyer may utter the V word without choking. That remains true in this line of comments. Neither lawyer expresses any caring or even awareness that 5000 excessive black people are murdered each year (90% by black murderers), an achievement that took the KKK 100 years to do. The fact that the police is totally lazy and ineffective in black neighborhoods is totally the fault of the feminist prosecutor and its male running dogs. The police is the agent of the prosecutor. And this feminist prosecutor is 100% responsible for the inadequacy of police protection. After 50 years, such failure has the foreseeability of planetary orbits. A class action constitutional tort claim must be filed over and over until this feminist lawyer is driven out.

Crueler and more effective than the KKK, why does she want 5000 mostly male blacks killed a year? These murders are part of a multi-front all out assault, to destroy the black family, and to replace it with government services, to grow government from criminality and the social pathologies of those areas. And before white people feel any kind of smugness, the feminist lawyer is coming after the white family.

(The ad hominems in the above comment are not meant as part of any argument. They are folk summaries of the complex nature of the internal enemy. Talk to a prosecutor, even at a social event, and try to not think of the word, "racist bitch" or of the phrase, "male running dog." I appreciate that such characterizations will generate email for Prof. Berman, and I apologize in advance. You want me off this blog. I want the leadership of this enterprise arrested, tried and executed. You allow 90% of serious crimes to go unanswered. And when you have the guy, 20% of time it is the wrong guy. You will crush anyone seeking to defend the law not part of your agency, despite your total inadequacy.)

Posted by: Supremacy Claus | Dec 24, 2012 11:11:49 PM

Doug, I really wasn't focused on the relative weakness of the McClesky majority, but rather the utter bankruptcy of Brennan's. Given that crime and punishment in the US with its focus on local prosecutions (although the federalization of criminal justice has weakened this central feature of our criminal justice system) and jury trial right, is always going to produce random results (of course, the randomness is, many times, the result of things that benefit the accused), it is a fool's errand to try to put a microscope (with a distorted lens, as the flawed Baldus study demonstrates) to individualized determinations in cases that defy easy categorization. And even more of a fool's errand to give murderers the right to escape a perfectly legitimate punishment because some judge swallows some BS study that doesn't even account for geography.

I live in major urban area. Criminals get far more lenient treatment (as a whole) in the city proper than criminals in suburban jurisdictions get. Is that something we're going to make a federal case about? What about the countervailing policies of local democracy in action and local juries judging crimes in their area.

But that's exactly what is trying to be done here. And please spare me the tut-tutting about thinking Furman and all those other BS cases are wrong. They are. It's power-judging in action, and, in my view, fundamentally illegitimate. But I am not even talking about that here. I am talking about accepting the limitations of human beings and the law. And calling that a "roulette wheel" is utter sophistry. You simply cannot have a system of individualized justice (which everyone seems to think is correct) without having some degree of randomness. Acknowledging that fact is not being afraid of "too much justice" (as if justice were simply a matter of expanding the possibility of murderers escaping the ultimate punishment), it is accepting reality. James Burmeister, a vicious murderer, once got the benefit of a juror having racial affinity. And since the death penalty needed a unanimous vote, he escaped death. So there, we have one white murderer in NC escaping death because of race. Does that render illegitimate all other death sentences in NC? Is there a time limit? Do we, before executing anyone in a state, have to wait 20 years so we have enough data? Does one racist prosecutor render all death sentences unconstitutional in that jurisdiction? And then how do you deal with the fact that black people in the US have a vastly higher rate of commission of murder than whites? How do you deal with a prosecutor who believes that certain murders that are more likely committed by blacks are more aggravating? The answer is that you can't, and last I checked, capital murderers don't have a right to dictate the enforcement priorities of prosecutors, nor do judges.

But this is what Brennan wanted. I do appreciate what he's doing, and your agnosticism about what he's advocating is, sadly, not surprising. "Too much justice" is a slogan. Nothing more. It masks a host of practical difficulties (even if studies weren't done with an agenda), a host of fundamental issues (e.g., teasing out bias related to race, rather than legitimate conclusions about which sort of criminals deserve the max punishment) and serious issues with respect to other countervailing policies (e.g., the democratic process). You, of course, follow up on Brennan's call for the judiciary to figure out the precise velocity and location of a particle with the same sort of sophistry we'd expect from Richard Dieter. Likening the imposition of the death penalty to a roulette wheel is like calling it arbitrary. Technically, it's true, but the purpose is to obfuscate.

This reminds me of a debate we had a while ago when you talked about how "obsessed" with procedure the Founding Fathers were. You made some niggling points which had nothing to do with the issues at hand and obfuscated my true points with the tut-tutting of effete academics. (Not saying you're effete, but your persona in argument reminds me of how effete profs argue.) Despite you're insinuation to the contrary, I get Brennan's argument. It's pretty easy to understand. And whether you think the majority's argument is weak or not (Of course, the majority IS right in saying that if murderers have the right to be free from unconscious bias in selecting them for death, then there is no principle which would limit that right, and more importantly, inquiry into whether the right was observed, in every single criminal case. That would turn every criminal conviction into a civil rights death slog---I can see a lot of "justice" being done under such a regime.), Brennan's response is intellectually dishonest and weak.

And you defend it. As I said in my first comment--I am not surprised that you swallowed whole Brennan's response. So, to get back to your first question--yeah, I read what you wrote, and my conclusion was correct.

Posted by: federalist | Dec 25, 2012 11:09:56 PM

I almost let this one go:

"Your point, and maybe the claim of the McClesky majority, is that some measure of statistical randomness is inevitable in any human system and so a death lottery that tries to be fair but still produces hard-to-explain disparity does not implicate the 8th A. But the point of the (contestable) Baldus study is that the death lottery in Georgia after Furman was not at all fair; according to Baldus et al, despite perhaps well-meaning efforts of those running the system, in Georgia the race of the defendant and of the victim greatly influenced the odds of who got death. (The McClesky majority, as you know, accepted the validity of the Baldus study and still rejected the 8th A claim; you are "arguing with the hypo" if you fault me or Brennan for accepting the (debatable) Baldus study which the McClesky majority accepted in order to reject the 8th A claim on the merits.)"

I really didn't want to comment on this because I didn't want to embarrass you. But then I remembered that you always imputed racial bias to me, so I decided to allow my baser instincts to take over. Surely, as a law prof, you understand that sometimes a court will assume a point arguendo. That doesn't transmogrify the assumed fact/law into actual fact or law. Now that we have that clear--I don't see how you can say I was ever arguing with the hypo. (Could you act more like an ivory tower law prof?) I dealt with Brennan's point head-on, not by arguing that he was all wet because the Baldus study was crap (although he should have noted that, and that adds to his intellectual dishonesty). I could go through the points, but the telling one is the noting that the choice of whether to seek death is done by independent actors within a state. How in the world can McClesky use what happened in other jurisdictions to prove that he was done in by unconscious bias? Is pointing this obvious problem out mean that I am afraid of "too much justice?"

And you, Doug, make a fundamental mistake. You associate correlation with causation when you say that the race of victim/offender influenced the odds of being chosen for death. I guess in your world ice cream sales cause crime.

And since I'm on a roll, I'll finish up with this. You seem to debate this point in a vacuum. Your debating style reminds me, honestly, of high school history lectures about who was at fault for WWI. I look at those silly debates with a bit of shame for having participated in them. Millions suffered and died as a result of that ridiculous war, and those silly debates never seemed to mention that 800 pound elephant in the room. The issue, fundamentally, is not whether Brennan scored a rhetorical point or whether we can hand-wring about a flawed study that raises the specter of what the response of the criminal justice system could be if there were evidence of unconscious racial bias in the death penalty "lottery" (as you so casually denigrate the death penalty process), but a larger, anti-democratic effort to snuff out an unquestionably constitutional punishment. It's also about understanding that a justice system is a human process and that determining precise reasons for human decisions applied to vastly different circumstances over time is simply unattainable. At the end of the day, Brennan's desire to apply the judicial microscope (and that's a misnomer, as the judiciary doesn't always get science right, let alone social "science" right, so at best, it's a microscope that produces serious distortion) to the criminal justice system as a whole would wreak havoc on our criminal justice system and would be an unwarranted intrusion in the people's right to have a government which punishes wrongdoers. And by the way, if the issue is unconscious bias, then statistical studies aren't the only way to get at the issue. Would we allow prosecutors to be grilled about whether they have suffered criminal victimization? What about jurors?

Deal with those issues, rather than tut-tutting about my alleged failure to appreciate Brennan. By the way, Doug, I can fully engage on your field of study--I doubt that you'd have a prayer of engaging on my area of legal expertise. You may wish to consider that before you assert that I am "arguing with the hypo" or implying that I am a pedant by mistakenly characterizing my posts as always getting back to the practical. I have engaged on multiple levels. Why don't you get that right? And I am not at all embarrassed by pointing out there there are some limitations in life and what the law can accomplish. You would do well to forthrightly acknowledge those limitations (i.e., those other than the idiosyncratic flaws in the Baldus study). But if you did, it would be like arguing whether Germany had a right to consider mobilization as tantamount to a declaration of war without acknowledging the utter horror of WWI.

Posted by: federalist | Dec 25, 2012 11:51:55 PM

Wow, federalist, I have your dander up. But why do you jump to the conclusion that I endorse all of Brennan's dissent in McClesky and/or the rest of his capital jurisprudence? That is not true, although I still like, for rhetorical purposes, the "too much justice" line as a response to a weakness in the McClesky majority's slippery slope talk. But calling that observation "spot-on" does not mean I agree with Brennan's overall dissent or that I think that McClesky should have prevailed. (Indeed, it has been my view that by selecting his victim, McClesky essentially forfeited whatever questionable claim he might have to a less random punishment scheme.) I fear that, because you are apparently so eager to attack Brennan and/or me, you do not see the value of thinking through --- absent "real world" concerns about proof or practicalities --- whether and when significant randomness/disparity in punishment outcomes might not be "enough justice" and/or might create distinct constitutional problems under the Eighth Amendment.

I understand fully and appreciate why you keep stressing practical/proof issues, not to mention remedies and local decision-makers and democracy. I never meant to suggest or imply you are pedant for raising these matters, nor do I mean to deny their importance. These are all valid "real world" considerations which help explain not only the McClesky outcome, but also the litigation mess in NC after passage of the RJA, and also historical resistance to "disparate impact" statistical attacks on criminal justice systems. I consider valid and justifiable your emphasis on the "limitations of human beings and the law"; I also see merit in a view that any human sentencing process which is local and democratic and not overtly biased is constitutional no matter what questions might be raised by a statistical study claiming this or that regarding the patterns of sentencing outcomes.

But this discourse returns me to my (admitted ivory tower) hypos about a sentencing system in which pure luck (or a computer algorithm or resources or some other non-racial variable) might ultimately determine punishment outcomes. Only through such a hypo can we figure out if it is the very "human" aspects of the sentencing decision-making process which actually leads us to view the sentencing results as just (and/or constitutional). I understand and respect your statements that it is unrealistic (and even a fool's errand) to try to remove or put under the microscope the human (and localized) decision-making at the heart of modern criminal justice systems. But this issue is so very important in modern sentencing debates because it also must inform any assessments of guideline (non-capital) sentencing systems as well as efforts to regulate capital sentencing decision-making via the Eighth Amendment.

I am not sure if you would call the entire federal sentencing guidelines construct "a fool's errand," but they exist in large part because Congress seemed (overly?) driven to reduce disparities resulting from "individualized" sentencing by "local" federal judges. (Same mostly goes for early state structured sentencing reforms, too.) And both before and since Booker, researchers at the US Sentencing Commission and elsewhere have repeatedly tried to put federal sentencing outcomes under a "microscope" in order to see, from various (inherently biased?) perspectives, whether we now have a less disparate (and thus more just?) federal sentencing system. And it is because I acknowledge (and often stress) the limits of what (guideline-sentencing) laws can hope to accomplish in this realm that I remain so engaged by (ivory tower) questions concerning the complex relationship between basic concepts (and social constructions) of sentencing disparity and basic concepts (and social constructions) of sentencing justice.

I am sorry you seem to be so put off by my comments, especially because I keep trying to focus on what I see as the hard theoretical questions at the heart of both Furman/McClesky capital jurisprudence and modern guideline sentencing reform efforts. Perhaps because petulance is common in your area of legal expertise --- whatever that is, which I am eager to hear --- you continue to approach this discourse with a caustic streak that I find notable. I hope that you are not truly put off or disturbed by this engagement (though I assume not, as you keep coming back). I also hope you might send me copies of some of your writings in your area of legal expertise so I might discover whether you are right that I'd not be able to keep up. (Until then, I will guess it is tax law or ERISA or some other intricate doctrinal area full of codes and regulations that is so hard (and yet still leaves you with sufficient time to keep up with sentencing law and policy).)

Posted by: Doug B. | Dec 26, 2012 2:10:11 AM

Both Fed and Prof. Berman may be correct if they support mandatory sentencing guidelines.

No amendment process. Just impeach the entire Supreme Court, as a warning.

Then re-issue the sentencing guidelines, and include mandatory death penalties. Any Court striking their mandatory nature again, impeach again.

Posted by: Supremacy Claus | Dec 26, 2012 7:01:44 AM

My original comment stated that you swallowed whole Brennan's "too much justice" response. Well, when you call something "spot on," I don't see how it lies in your mouth to say that someone else leapt to the conclusion that you endorse Brennan's comeback. I don't think I ever said that you swallowed whole Brennan's dissent. If I did, well, you started out by falsely asserting that I am arguing in talking points and implying that I didn't read what you had written. You don't get to play that way and whine that maybe someone mistaking your "spot-on" for a gush is somehow a breach of argument etiquette.

In any event, I still don't see how this issue is all that "hard." It's a very difficult leap to conclude that the 8th Amendment regulates the system of prosecutorial discretion, and it's also a very difficult leap to conclude that every capital defendant is entitled to a detailed review of whatever study comes down the pike showing an alleged racial disparity in capital prosecutions.

But forget about all that. Is the slippery slope argument really all that wrong? I guess if your worldview is that any hint of racial bias (even if none is actually proven) is so horrible as to override any other consideration, maybe the slippery slope argument would appear to be a deal with the devil. But in reality, if every capital defendant is entitled to searching judicial inquiry about whether unconscious bias influenced a given decision to seek death (I am putting aside the jury issues), then there is absolutely no good reason for not allowing such scrutiny in every case. After all, the freedom of an unconvicted citizen is a bigger liberty interest than the life of a murderer. If we did that, then there would a very very ineffective justice system. (We could see the race-norming of punishments--near and dear to AG Holder's heart when it comes to school discipline--or other absolutely ridiculous and unconstitutional actions.) A snappy, retort like "too much justice" simply doesn't get it done.

You give away the game when you talk about how you like Brennan's response for its rhetorical value. I didn't realize that you held sophistry in such high regard.

With respect to sentencing guidelines--those generate totally different issues. The decision to seek death is not the same as the selection of sentence. But I am not really going to dive too deeply there. I don't think you can leap from me calling the quest for "too much justice" a fool's errand to thinking that sentencing guidelines are as well.

By the way, I am a transactional/regulatory lawyer by trade.

Posted by: federalist | Dec 26, 2012 9:43:16 PM

We seem to be talking past each other, federalist, as you keep wanting to talk only about racial bias/disparity and/or regulating prosecutorial discretion via the 8th Amendment when this is explicitly NOT the the point of the McClesky majority's slippery slope argument OR Brennan's "too much justice" response. As my introduction stresses, the point of the slippery slope claim by the McClesky majority was to express concern about allowing 8th A claims to proceed based on statistical showings of "any arbitrary variable" influencing sentencing outcomes. Brennan's retort was spot-on in response to this concern when he said it suggested the majority was content with a world in which arbitrary variables often influence sentencing outcomes because it was afraid of trying to diminish the impact and import of any arbitrary variables at sentencing.

I suspect/fear that you remain stuck on race/prosecutor issues because these are the focal points of post-McClesky critiques of the death penalty by some abolitionists and are where the rubber hits the road in the NC Racial Justice Act litigation. But I am not an abolitionist nor involved in RJA litigation; I am an academic, and the fundamental sentencing law and policy issue that I have long found compelling --- and that I keep trying to stress here --- are the inherently hard theoretical questions raised by the very concepts (and social constructions) of sentencing disparity and concepts (and social constructions) of sentencing justice.

As I tried to explain before, these issues concerning the meaning/import/relationship of sentencing disparity and sentencing justice can get really metaphysical if/when we think any "human" system of "sentencing justice" is destined to produce disparities, as it may suggest considering a less human and more "computerized" kind of sentencing system --- which Judge Frankel hinted at when complaining about federal sentencing disparity in his seminal 1972 book and which the FSG has arguably tried to replicate through intricate "objective" sentencing rules based heavily on only the most quantifiable aspects of an offense and and offender's history.

We are likely at the end of the line here, which is probably healthy for both of us -- especially because I may need to save my energy for reading/engaging with whatever of your writings in the transactional/regulatory field you might soon send me. Though I would love to be able to post your work via a blog for all to see/critique (as I do with my own writings here and with what Bill Otis and other regular commentators write), I will only do so with your permission. But I remain eager even in a private forum to try to confirm or undermine your stated "doubt that [I'd] have a prayer of engaging on [your] area of legal expertise."

I am now thinking banking/energy/insurance/health care may be among the areas in which you ply your trade. Perhaps you can send me a copy of a professional article you have written or even a contract you drafted so I can discover if I would have a prayer of keeping up.

Posted by: Doug B. | Dec 29, 2012 12:55:54 AM

Doug, it's your blog, so you can do what you want, but I hope you'll understand what's maddening about discussions with you.

You first accused me of not reading what you wrote, which was ridiculous. You didn't acknowledge that you were wrong about that. (I see your buddy Bibas has the same issue--I crushed him in our exchange, and he slinked away, tail between his legs.)

You accused me of making ad hominem argument--wrong again.

You insinuate that I don't get the point of Brennan's retort--wrong.

You accuse me of arguing against the hypo--wrong.

You talk about my baser instincts and me pushing talking points---completely unfair.

There are more, but I don't have a ton of time.

Now, you retreat into some miasma of some faux theoretical issue that I have supposedly missed. Doug, the whole focus of McClesky was race and the DP, and a lot of the articles in that law journal talk about race. Heck, you even made the mistake of confusion correlation with causation in terms of racial disparities.

My points focused on race, but the reality is that they are applicable to all sorts of arbitrary distinctions. The 8th Amendment doesn't prevent prosecutors from hammering certain types of murders that a particular prosecutor has a "hard-on" for (excuse the reference).

I don't miss the issues Doug. I see that youre up in the Ivory Tower, and are making a federal case about a prosecutor who, for example, hates domestic violence murder or robbery murder or what have you. Tell you what--take up a case and file a complaint in federal court--see how fast your case is tossed.

Posted by: federalist | Dec 29, 2012 2:23:27 PM

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