The StandDown Texas Project

Prejean Papers Featured in DePaul University Exhibit

"Exhibit on anti-death penalty activist opens at DePaul," is the AP post, via the Rockford Register Star.

An exhibit dedicated to the life of a nationally known Roman Catholic anti-death penalty activist is opening in Chicago.

Sister Helen Prejean wrote the book "Dead Man Walking," which later became a film starring Susan Sarandon and Sean Penn.

The exhibit at DePaul University looks at notable moments in her activism over the decades and includes correspondence with people on death row. Prejean donated her papers to DePaul in 2010.

The exhibit is called "In Deeds and Words: The Prejean Ministry Against the Death Penalty."

DePaul University has issued a news release, "Noted Anti-Death Penalty Activist Sister Helen Prejean to Visit DePaul for May Lectures, Opening of Exhibition on Her Life and Work."

Sister Helen Prejean, C.S.J., the activist and author whose book “Dead Man Walking” helped fuel the current anti-death penalty movement in the United States, will appear at DePaul University May 14 to dedicate an exhibition highlighting her work to end capital punishment.

 “In Deeds and Words: The Prejean Ministry Against the Death Penalty” examines notable moments in Prejean’s 30 years of advocacy on behalf of death row inmates and her activism to abolish the death penalty. The exhibit highlights her relationships and correspondence with individuals on death row. It also highlights the process of writing her best-selling books, “Dead Man Walking” and “The Death of Innocents,” and adapting the former for the 1995 film starring Susan Sarandon and Sean Penn.

The exhibit will be open to the public Monday through Friday from 9 a.m. to 5 p.m. through Nov. 30 in DePaul’s Special Collections and Archives, Room 314 of the Richardson Library, 2350 N. Kenmore Ave., Chicago.

And:

On May 15 at 7 p.m., Prejean will present a lecture titled “Dead Man Walking—the Journey Continues,” in which she will reflect on current efforts to roll back the death penalty around the country. A 6:30 p.m. reception will precede the talk.

Both programs are free and will be held at Cortelyou Commons, 2324 N.  Fremont St., Chicago, but reservations are required at eventRSVP@depaul.edu.

On May 16 at 6:30 p.m., Prejean will participate in a public conversation about the writing process behind her past best-sellers and her upcoming book “River of Fire.” The program will be held in Room 220 of the Lincoln Park Student Center, 2350 N. Sheffield Ave., Chicago.

“Sister Prejean has long been a leading light in the fight for social justice across a wide spectrum of issues, especially the movement to end capital punishment in the United States,” said the Rev. Dennis H. Holtschneider, C.M., DePaul’s president. “We are deeply honored that she has chosen DePaul to preserve the record of her life’s work.”

Prejean first announced the donation of her archives to DePaul in February 2011, coincidentally just after the Illinois Legislature’s surprising vote to abolish the death penalty. She was invited to consult on the issue with Illinois Gov. Pat Quinn, who signed the legislation several weeks later, making Illinois the 16th state in the nation to outlaw capital punishment. In recent months, Connecticut has repealed its death penalty and a referendum has been placed on the November ballot asking California voters if that state should abolish capital punishment.

The launch of the Prejean exhibit coincides with the opening of Prejean’s papers for researchers and academic use. The collection is multifaceted and contains rich resources not only on the issue of capital punishment, but also in charting the development of Prejean’s activism, the process of writing and publishing a book, and the social justice issues that underlie much of the death penalty debate.

More on Kerry Max Cook

The Southwest edition of the New York Times carries, "Released but Never Exonerated, a Man Fights for Freedom," by Michael Hall.  It's also posted at the Texas Tribune, which partners with the Times for expanded Texas coverage.  Here's an extended excerpt:

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

And:

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Earlier coverage of Kerry Max Cook's effort to fully clear his name begins at the link.  As I always point out, Texas Montly journalist Michael Hall and I are not related.

Kerry Max Cook's 2007 book is Chasing Justice.

Justice Stevens Returns to New York Review of Books

"A Struggle with the Police & the Law," is Justice John Paul Stevens' third essay in the New York Review of Books since his retirement from the Supreme Court.  It's a review of The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, published by the University of Delaware Press.

The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s, by Irving Morris, tells us at least as much about its author as it does about the facts of the underlying case, which concerned an encounter between an unnamed young woman and three young men in Wilmington, Delaware’s Woodlawn Park in the early hours of October 30, 1947. The book, Morris writes, “is essentially the story of a fledgling lawyer’s struggle to overturn the result of a flawed trial by proving…police perjury.”

Irving Morris’s vivid recollection of events that occurred many decades ago demonstrates how the intangible benefits that lawyers receive from unpaid devotion to their profession generally far exceed the value of fees received from paying clients. I have often quoted the advice that John Adams gave to a younger lawyer: “Now, to what higher object, to what greater character, can any mortal aspire than to be possessed of all this knowledge well digested, and ready at command to assist the feeble and friendless…?” Morris’s story exemplifies this lesson. As he writes toward the end of the book, “Even though my clients paid little, I know I have earned far beyond what I ever imagined I might receive from successfully representing them.”

As the story unfolds, we learn how a competent lawyer responds to a series of defeats in protracted litigation. We are not told about the later events that made Irving Morris a leader of the corporate bar and the president of the Delaware State Bar Association.

And:

Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976). We wrote that capital sentencing procedures must be constructed to avoid the random or capricious imposition of the penalty, akin to the risk of being struck by lightning. Today one of the sources of such arbitrariness is the decision of state prosecutors—which is not subject to review—to seek a sentence of death. It is a discretionary call that may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office.

Justice Stevens' November 2010 essay in the New York Review of Books reviewed David Garland's Peculiar Institution; his November 2011 NYRB essay reviewed William Stuntz' The Collapse of American Criminal Justice.  Related posts are in the books index.

NYT Review of Anatomy of Injustice

The Sunday Book Review of the New York Times looks at Raymond Bonner's Anatomy of Injustice: A Murder Case Gone Wrong.  The review is "A Life in the Balance," by Kevin Boyle.

This much we know to be true: On a cold winter weekend in early 1982, somebody murdered 76-year-old Dorothy Edwards. Apparently she knew the perpetrator, since she let him into her handsome home on a quiet side street in Greenwood, S.C. The crime itself was horrific. She was beaten with a blunt object, stabbed repeatedly — one ear was almost severed — probably sexually assaulted; her body was stuffed into a bedroom closet, where it was discovered on Monday afternoon, Jan. 18. The next day the police arrested Edward Lee Elmore, a 23-year-old handyman whom Edwards had recently hired to do a few odd jobs around the house. He was formally charged with first-degree murder on Jan. 21, tried in the second week of April, found guilty by a jury that deliberated for two and a half hours, and sentenced to death.

We know this as well: As of this writing, there have been 1,283 executions in the United States since 1976, when the Supreme Court ended its four-year moratorium on capital punishment. There have also been 134 death row exonerations, almost half of them since 1999. In his mesmerizing new book, “Anatomy of Injustice,” Raymond Bonner, a onetime prosecutor and a former investigative reporter and foreign correspondent at The New York Times, makes a persuasive case that Elmore ought to be added to the list of the innocent. Instead, he spent nearly 30 years in the South Carolina state penitentiary, most of that time on death row, trapped by a complex of forces that too often warp the legal process, even when a man’s life hangs in the balance.

Like many capital cases, Elmore’s was shaped by the fearsome combination of race and class. Edwards was a well-to-do white woman whose murder made front-page headlines; little wonder that the Police Department wanted a quick arrest, the prosecutor the death penalty. And Elmore, a poor black man with a tangential connection to the victim, seemed so obvious a suspect, neither the police nor the prosecutor considered any alternatives, though there was one close at hand. Their case was incredibly weak, Bonner shows, resting on inference, some very dubious physical evidence and the testimony of a jailhouse snitch who claimed the defendant had confessed to him. But Elmore, who had an I.Q. of 61, was in no position to fight back; he couldn’t tell time, much less follow the intricacies of the law. His court-appointed attorneys didn’t help. At trial they barely interrogated the prosecution’s witnesses and called only one of their own: Elmore, whom the prosecutor, with 30 years of experience behind him, savaged.

Earlier coverage of Raymond Bonner's important book begins at the link.  Related posts are in the books index.

Robert Towery's Death Row Writings

Towrey was executed in Arizona last week.  His Death Watch Diary is now available in a free Kindle edition from Amazon.  This description is from Amazon:

For the last 35 days of his life, Robert was placed on “Death Watch” where his every move was recorded and chronicled by prison officials.

Robert also kept a diary which he gave or mailed to his attorneys as installments.  He detailed the ironies and absurdities of life in prison. He reveled in simple pleasures, such as a good meal or a sports event on television. He longed for human contact from his last visitors, and he touchingly tried to comfort his pod-mate, who doesn’t really understand that he was going to his death.

"Arizona executed inmate's diary details final weeks," is by Michael Kiefer for the Arizona Republic.

Beginning Feb. 2, the day he was taken from his regular cell at the Arizona State Prison Complex-Eyman in Florence and put on "Death Watch," Towery chronicled his life for his attorneys. There, he was housed with fellow Death Row inmate Robert Moormann, who was executed Feb. 29.

On March 7, his last night on Earth, Towery was taken a few miles down the road to "Housing Unit 9," in the main prison, where Arizona carries out executions by lethal injection. He made his last diary entry the next morning.

These are excerpts from that diary - Towery's words, his descriptions of the tedium, the rituals, the security, the indignities and the humanity, precisely as he wrote it - right up to the morning of his execution.

"Dear Diary: Arizona inmate wrote of the days before his execution," is by Ashley Powers for the Chicago Tribune.

In the weeks before he was executed for strangling a man to death, Arizona inmate Robert Towery kept a diary.

His writings began Feb. 2, when he was transferred to a “death watch” cell in state prison, and ended Thursday, shortly before he was put to death by lethal injection at 11:26 a.m. The Associated Press described the execution -- and the events leading up to it.

Towery, 47, had been convicted of killing Mark Jones during a robbery in 1991; he was the second inmate put to death in Arizona in a two-week period.

Towery’s entries, some of which the Arizona Republic published, are striking in their banality.  He asked prison officials for conditioner, and there was none. A brush or comb? Nope. He couldn’t find the motivation to work out, either.

Towery looked for bits of humor, such as when he saw two correctional officers doze off. “Exactly who is watching whom?” he wrote. He joked about his new living quarters being cleaner than his old ones. “I have not seen a single roach, water bug, scorpion, stink beetle or spider. Woo-hoo!!”

Towrey's execution is noted at the link.  Related posts are in the books index.

The Latest From Mark Osler

University of St. Thomas Law prof Mark Osler posts, "Lent and the Hidden Cost of Capital Punishment," at Huffington Post.  He's a former federal prosecutor.  It's a must-read.

Christianity is an odd religion in that the central human figure, Christ, is executed by the state. We don't see that in other faiths: Siddhartha Gautama Buddha died of food poisoning at age 80, and the Prophet Muhammad died of natural causes at 63.

It should mean something to Christians, then, that an execution is at the center of the faith and this season of Lent. One part of that meaning could have something to do with those who were a part of the process -- the prosecutor, the judges, the witnesses and executioners. The process of execution led them all to some form of ruin: Judas, the government cooperator, was torn asunder; Peter, called to be a witness, denied Christ; Caiaphus, the prosecutor, was so tortured he tore at his clothes; Pilate, the person who decided clemency, was tortured by the decision; and even the Centurion guard at the execution itself cried out at the injustice he saw.

These broken people of the gospels foreshadow a terrible cost hidden within our current use of the death penalty.

And:

The characters in the story of Lent are people who are very real in their strengths and weaknesses. It must mean something that they are shown in the gospels as so tortured by being a part of the machinery of death. The question left to us by this aspect of the gospel story is nothing less than this: Setting all else aside, is the death penalty worth the cost to these innocents, the citizen-jurors and dutiful workers?

Earlier coverage of Osler's book, Jesus on Death Row: The Trial of Jesus and American Capital Punishment, begins at the link.  Earlier commentary by Osler is also available.

Raymond Bonner in the New York Times

The Sunday New York Times carries Raymond Bonner's OpEd, "When Innocence Isn’t Enough."  Here's the beginning of this must-read:

EDWARD LEE ELMORE turned 53 in January. For more than half his life, the soft-spoken African-American who doesn’t understand the concept of north, south, east and west, or of summer, fall, winter and spring, was in a South Carolina prison, most of it on death row.

On Friday, Mr. Elmore walked out of the courthouse in Greenwood, S.C., a free man, as part of an agreement with the state whereby he denied any involvement in the crime but pleaded guilty in exchange for his freedom. This was his 11,000th day in jail.

Mr. Elmore was convicted in 1982 for the sexual assault and murder of an elderly white widow in Greenwood. His trial lasted only eight days, including two spent picking the jury. The state concealed evidence that strongly pointed to Mr. Elmore’s innocence and introduced damning evidence that appears to have been planted by the police. For three decades lawyers for Mr. Elmore, who were convinced of his innocence, sought to get him a fair trial.

Headlines and news stories about men being released from death row based on DNA testing suggest that this happens often. But it doesn’t. Once a person has been convicted, even on unimaginably shaky grounds, an almost inexorable process — one that can end in execution — is set in motion. On appeal, gone is the presumption of innocence; the presumption is that the defendant had a fair trial. Not even overwhelming evidence that the defendant is innocent is necessarily enough to get a new trial. “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White wrote for the majority in a 1977 case, Patterson v. New York.

In other words, innocence is not enough.

Coverage of Bonner's latest book, Anatomy of Injustice: A Murder Case Gone Wrong, begins in this earlier post.  Bonner's next author event is in Austin, on Wednesday, March 7 at Book People.  More book events are noted at Bonner's website.

More Reviews of Raymond Bonner's Book; Upcoming Author Events

Raymond Bonner's Anatomy of Injustice: A Murder Case Gone Wrong, is getting national attention in book reviews, and his author events continue with stops in Washington, DC and Austin.

Tomorrow, Bonner will appear at Washington, DC's celebrated Politics & Prose, where many Book TV author events are taped for later airing.  On March 7, Bonner is at Austin's Book People.  Both bookstores are happy to send signed books to those who cannot make it to the store.  Bonner also has a list of additional author events at his website.

On to the reviews.  Jonathan Yardley posts a Washington Post book review.

Bonner, who reported on the Elmore case while working as a staff reporter for the New York Times, is a lawyer as well as a journalist and brings professional expertise to the book. He also brings passionate feelings about the proper roles of prosectors and defense attorneys. He came to admire a New Yorker named J. Christopher Jensen, a corporate lawyer “who felt a need to do something more meaningful than help rich people get richer” and helped defend many accused persons in South Carolina. “Jensen never asked himself whether Elmore was guilty or innocent,” Bonner writes. “It was not a question he had to address. For Jensen, like many criminal defense lawyers, in defending a criminal suspect he is defending the integrity of the judicial system and the Constitution, as well as the individual. By demanding that a guilty person have a fair trial, defense lawyers are ensuring that an innocent person will as well.”

As for prosecutors, “a bedrock principle of the American judicial system” is “the duty of the prosecution . . . not to obtain a conviction but to do justice.” Later Bonner writes: “If there is a flaw in the adversarial system of justice that has developed in America, it is that the adversarial nature of it outweighs justice. Prosecutors want to win in trial court. Appellate lawyers want to win on appeal. Justice often gets lost.” From the first prosecutor who went after Elmore to the last, every single one violated that basic rule. The next time you read about justice in America, think twice.

A Boston Globe book review is by Ethan Gilsdorf.

For those seeking more ammunition for their battery of anti-death-penalty arguments, look no further. “Anatomy of Injustice: A Murder Case Gone Wrong’’ is Raymond Bonner’s accomplished and meticulously researched investigation into a murder case that, as the clumsy title suggests, was egregiously bungled.

In 1982, in Greenwood, S.C., Edward Lee Elmore, 23, is accused of killing an elderly widow.

Elmore had occasionally done odd jobs for the victim. When her body is found in her closet, stabbed dozens of times and possibly raped, Elmore is fingered as the prime suspect, despite a notable lack of physical evidence linking him to the crime.

Wilbert Rideau writes the review, "Presumed guilty," for the Financial Times.

America claims to have the best criminal justice system in the world, but in Anatomy of Injustice: A Murder Case Gone Wrong, Raymond Bonner reveals how flawed it is for the indigent defendant, especially if he is from a minority or is mentally retarded.

Edward Lee Elmore is both – an African American with an IQ of 61 who was 14 when he dropped out of school in the fifth grade, still reading at second-grade level. Unable to do simple mathematics or tell the time, he earned his living working as a handyman in the affluent white neighbourhoods of Greenwood, South Carolina.

Rideau is the author of the acclaimed memoir, In the Place of Justice: A Story of Punishment and Deliverance, published in 2010 and noted here.

"On death row, by mistake (or worse)," is the Richmond Times-Dispatch review witten by Doug Childers.

"In many ways, Elmore's is a garden-variety death penalty case: a young black male of limited intelligence convicted of murdering a white person after a trial in which his lawyers' performance was so poor that it could barely be called a defense," writes Bonner, a former investigative reporter and foreign correspondent for The New York Times and a staff writer at The New Yorker.

But it's also exceptional, he adds, because it "raises nearly all the issues that mark the debate about capital punishment: race, mental retardation, bad trial lawyers, prosecutorial misconduct, 'snitch' testimony, DNA testing, a claim of innocence."

As Bonner demonstrates, many of those issues would not have come to light if it hadn't been for the work of a lawyer named Diana Holt, who learned about Elmore's case while she was a law student working for the South Carolina Death Penalty Resource Center.

Holt researched and advocated for Elmore's cause for more than 16 years. The fact that Elmore eventually had his death sentence vacated is, in part, a testament to her doggedness.

Earlier coverage of Bonner's latest book begins at the link.

More Advance Praise for Raymond Bonner's Book

Andrew Cohen posts, "The Book of the Century About the Death Penalty," at the Atlantic.  Here's the beginning:

If you want to better understand why America is slowing turning away from the death penalty, do yourself a favor and read this excerpt from Anatomy of Injustice by Raymond Bonner in the new issue of The Atlantic. The journalist, author, and Atlantic correspondent, has written a masterful book (to be released on February 22) about the application and excesses of state capital punishment regimes. It is as eloquent, important, and accessible an addition to legal scholarship as was Anthony Lewis' first masterpiece, Gideon's Trumpet, two generations ago.
It doesn't matter on which side of the death penalty gulf you reside. If you believe in capital punishment, you ought to read the book to better understand why 100 million or so of your neighbors believe the system is arbitrary and capricious and beneath the dignity of a civilized nation. And if you are opposed to capital punishment, you ought to read the book to understand exactly how and why so many politicians and prosecutors are full of crap when they profess their confidence in the accuracy and reliability of convictions in capital cases.

Anatomy of Injustice focuses upon a single case in South Carolina, in which a black man named Edward Lee Elmore was thrice tried, convicted, and sentenced to death for the murder of an elderly white woman named Dorothy Ely Edwards. She was killed in 1982, and Elmore was first tried just a few months later. And yet, incredibly, just before Thanksgiving of this year, 30 years after the murder, the 4th U.S. Circuit Court of Appeals granted Elmore the right to his fourth new trial. He has been in prison all this time, often on death row.

"Having scrutinized volumes of records of Elmore's three trials and his state [post-conviction-relief] proceedings," the sharply-divided federal appeals court ruled on November 22 in a 194-page opinion, "we recognize that there are grave questions about whether it really was Elmore who murdered Mrs. Edwards." In this sentence, we see an essential truth about the failure of capital punishment in America. It's disconcerting enough that the law fails to require the level of certainty that morality demands. What's worse is that even the lower standard goes unmet in a shocking number of capital cases.

Anatomy of Injustice: A Murder Case Gone Wrong, will be published by Knopf on February 21.  Earlier coverage of the book is at the link.  Bonner has established a Facebook page for Anatomy of Injustice, and he lists several author events at his website.

It's currently available for pre-order from Amazon, Barnes & Noble, and your local, independent bookseller.

Raymond Bonner on the Death Penalty

The March 2012 issue of the Atlantic carries, "The Last Line of Defense: An unlikely crusader, Diana Holt wages a heroic, long-odds battle against the death penalty."  It's written by Raymond Bonner and drawn from his latest book, Anatomy of Injustice: A Murder Case Gone Wrong, to be published by Knopf on February 21.

It's currently available for pre-order from Amazon, Barnes & Noble, and your local, independent bookseller.

Author events are currently scheduled for;

Feb 28 - Cambridge/Boston, MA - Harvard JFK School
Mar 1 - Washington, DC - Politics & Prose
Mar 5 - Austin, TX - 5604 Manor
Mar 15 - Berkeley, CA - UC Berkeley

I'll add more as they become available.

Here's the beginning of the Atlantic excerpt:

In our criminal-justice system, once a person has been convicted, no matter how shaky the conviction, the presumption of innocence disappears. The defendant is assumed to have had a fair trial. New evidence, even enough to sow a field of doubt, does not necessarily entitle a defendant, not even one on death row, to a new trial. The remarkable defense attorney Diana Holt learned these lessons the hard way after she took on the case of Richard Charles Johnson, in October of 1999.

Holt, then 41, had worked as an attorney at the Center for Capital Litigation, in South Carolina, a nonprofit that represented prisoners on death row. Blond, blue-eyed, physically slight, and intense, Holt had begun working at the center a few years earlier, while still in law school. Having overcome great hardships in her own life, she had acquired a singular reputation as somebody who would work indefatigably to save the lives of the condemned—which is why her former mentor at the center, John Blume, asked her to help with the Johnson case. She would work on it for the next three years.

In the past year, Bonner wrote several articles on lethal injection issues.  Related posts are in the books index.

Cruel & Unusual

John D. Bessler, an Associate Professor at the University of Baltimore School of Law, has written a wonderful addition to death penalty scholarship with, Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment.  It's just been published by Northeastern University Press, and is available from University Press of New England, Amazon, Barnes & Noble, and your local independent book seller.

From the publisher:

The conventional wisdom is that the founders were avid death penalty supporters. In this fascinating and insightful examination of America's Eighth Amendment, law professor John D. Bessler explodes this myth and shows the founders' conflicting and ambivalent views on capital punishment. Cruel and Unusual takes the reader back in time to show how the indiscriminate use of executions gave way to a more enlightened approach--one that has been evolving ever since. While shedding important new light on the U.S. Constitution's "cruel and unusual punishments" clause, Bessler explores the influence of Cesare Beccaria's essay, On Crimes and Punishments, on the Founders' views, and the transformative properties of the Fourteenth Amendment, which made the Bill of Rights applicable to the states. After critiquing the U.S. Supreme Court's existing case law, this essential volume argues that America's death penalty--a vestige of a bygone era in which ear cropping and other gruesome corporal punishments were thought acceptable--should be declared unconstitutional.

It has a detailed accounting of the views of America's founding leaders on the death penalty and tracks societal changes to our understanding of the Eighth Amendment.  It also looks forward in the chapter, "The Road to Abolition."

Related posts are in the books index.

A Profile of Christina Swarns

Today's Washington Post carries, "Defense lawyer fights racism in death row cases."  It's written by Lonnae O’Neal Parker.  Swarns is the LDF as the Director of the Criminal Justice Practice at the NAACP Legal Defense Fund, an organization that has been at the forefront of fighting capital punishment.  Here's the beginning:

There’s a steadfast cheeriness to Christina Swarns as she talks rapid fire about the contours of her day. There are the rigors of her end-to-end Manhattan commute, how rarely she dresses like a grown-up and the usual challenges of the professional working mom.

But that changes when the conversation turns to the role of race in the criminal justice system. Then the Howard University grad becomes all authority and passion. She cites case law, death-penalty statistics and the history of Southern lynchings.She talks without pause, punctuating her words with hand gestures, even as her favorite portobello sandwich goes untouched in front of her.

As director of the criminal justice unit at the NAACP Legal Defense Fund, Swarns, 43, is one of the most prominent capital-defense lawyers in the country — the rare black woman in a community whose public face is most often white and male. Over the course of her career, she’s gotten seven convicted murderers off death row; one was exonerated, three had their convictions overturned and three had their death sentences vacated. But it is her most recent victory that is by far the most high-profile.

In December prosecutors in Philadelphia declined to seek another death sentence against Mumia Abu-Jamal, a decision that took him off death row for the first time in 30 years and rewarded years of effort Swarns — and many others — had put into the case. In 1982, Abu-Jamal was convicted of killing a Philadelphia police officer and his decades-long court battles gained him a national and international following. There have been hip-hop tributes, “Free Mumia” T-shirts and a street named for him in France. When it was announced that he would no longer face the death penalty, famed writer Alice Walker wrote him a poem, activist and Princeton University professor Cornel West led a rally at the Philadelphia Constitution Center and the former South African archbishop Desmond Tutu called for his immediate release.

Abu-Jamal is Swarns’s biggest case, and she’s thrilled for the renewed attention it has received. But what she really wants is more scrutiny on an entire system she says is unfair and unjust.

And:

For Swarns and “everybody in the [capital-defense] community,” she says the connection between the death penalty and race is irrefutable. “The death penalty is a direct descendant of lynching,” she says. “The states with the highest number of lynchings also have the highest numbers of death-penalty executions.

Swarns will be one of the participant's at UT Law's program Lynching and the Death Penalty, March 23 & 24.  It's noted, here.  Coverage of Mumia Abu-Jamal's case is also available.

Michael Meltsner's classic book on LDF's involvement in death penalty cases in the 1960's and '70's, Cruel and Unusual: The Supreme Court and Capital Punishment, has recently been reissued by Quid Pro Books.  Coverage of Meltsner's book is also available.

The New Jim Crow - Now in Trade Paperback

Leonard Pitts' writes, "The new Jim Crow alive and thriving," in his syndicted column.  It's via his home paper, the Miami Herald.

In June of 2010, I wrote in this space about a book, The New Jim Crow, by Michelle Alexander, which I called a “troubling and profoundly necessary” work. Alexander promulgated an explosive argument. Namely, that the so-called “War on Drugs” amounts to a war on African-American men and, more to the point, to a racial caste system nearly as restrictive, oppressive and omnipresent as Jim Crow itself.

This because, although white Americans are far and away the nation’s biggest dealers and users of illegal drugs, African Americans are far and away the ones most likely to be jailed for drug crimes. And when they are set “free” after doing their time, black men enter a legal purgatory where the right to vote, work, go to school or rent an apartment can be legally denied. It’s as if George Wallace were still standing in the schoolhouse door.

The New Jim Crow won several awards, enjoyed significant media attention, and was an apparent catalyst in the NAACP’s decision last year to call for an end to the drug war. The book was a sensation, but we need it to be more. We need it to be a movement.

As it happens and not exactly by coincidence, Alexander’s book is being reissued in paperback this week as we mark the birthday of the man who led America’s greatest mass movement for social justice. In his battle against the original Jim Crow, Martin Luther King, in a sense, did what Alexander seeks to do: pour sunlight on an onerous condition that exists just beyond the periphery of most Americans’ sight.

And:

On March 15, Alexander has agreed to appear with me at Books & Books in Coral Gables, where I will moderate a discussion with an audience. You’ll also be able to submit questions via Twitter @MiamiHeraldLive and Facebook. Video from the event will be posted on The Miami Herald’s website.

On Monday, Dave Davies interviewed Michelle Alexander on the WHYY-produced Fresh Air on National Public Radio, "Legal Scholar: Jim Crow Still Exists In America."  There is audio at the link.

Under Jim Crow laws, black Americans were relegated to a subordinate status for decades. Things like literacy tests for voters and laws designed to prevent blacks from serving on juries were commonplace in nearly a dozen Southern states.

In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, legal scholar Michelle Alexander writes that many of the gains of the civil rights movement have been undermined by the mass incarceration of black Americans in the war on drugs. She says that although Jim Crow laws are now off the books, millions of blacks arrested for minor crimes remain marginalized and disfranchised, trapped by a criminal justice system that has forever branded them as felons and denied them basic rights and opportunities that would allow them to become productive, law-abiding citizens.

Related posts are in the books and race indexes.

From Alabama

"It's hard to argue with a state senator's logic for why Alabama should abolish the death penalty," is the title of an editorial in today's Birmingham News.

If executing people really serves as a deterrent to murder, why isn't Alabama sending fewer people to Death Row?

It's a question state Sen. Hank Sanders raised in a speech Sunday, and it's one that his colleagues in the Alabama Legislature should seriously consider. Then, maybe they'll consider Sanders' legislation to abolish the death penalty altogether.

So many arguments can be made for why the state of Alabama should stop this insanity. There's nothing fair about the way the state determines who will die. What makes a murder subject to capital punishment can be something so arbitrary as whether the victim was inside or outside at the time. And whether a death sentence will actually be inflicted depends on a hodgepodge of factors far more arbitrary than the legal criteria. What color was the skin of the victims? How diligent was the defense lawyer? Did the local district attorney even seek the death penalty? Did the judge opt for a death sentence even if a jury recommended against it?

And:

Locking up a killer for life is the alternative to death in capital cases. That is enough to keep Alabamians safe, and a series of studies shows it is cheaper than pursuing an execution to the end.

The state should put the death penalty to death. It isn't fair, necessary or cost-effective, and if the purpose of it is to stop murder, it isn't working.

"Selma senator wants to abolish death penalty," by William White is from the Opelika-Auburn News.

A state senator from Selma says he plans to introduce a bill to abolish the death penalty in Alabama during the upcoming regular session of the Legislature.

 “I call it murder when the state of Alabama makes the deliberate decision to kill a person,” said Sen. Henry “Hank” Sanders,D-Selma.

Sanders spoke to the congregation and guests Sunday at the Auburn Unitarian Universalist Fellowship for the first in a series of meetings for “The Journey of Hope – from Violence to Healing,” which highlights concerns about the death penalty in Alabama.

While Sanders had introduced legislation for a moratorium on executions previously, he said he plans to take the next step in the upcoming session that begins Feb. 7.

“I will introduce a bill to abolish the death penalty,” said Sanders to the applause of the audience at the church.

Also from Alabama, there is news of a new book.  "Lawyer Richard Jaffe questions the death penalty in 'Quest for Justice: Defending the Damned'," by Kent Faulk is from the Birmingham News.

In his more than three decades as a lawyer, Richard Jaffe has defended hundreds of people charged with ending the lives of others -- including more than 60 charged with capital murder.

Some were acquitted. Others were not. But Jaffe believes not one of his clients, or those of any other lawyer, should ever have to face the ultimate penalty for their crimes -- death.

Through a retelling of some of the high-profile and more routine cases he has handled in his new book -- "Quest for Justice: Defending the Damned" -- Jaffe poses what he says are troubling questions about the use of the death penalty in Alabama and elsewhere.

And:

Three of the 138 people exonerated and released from Death Rows in the United States -- Bo Cochran, Gary Drinkard, and Randal Padgett -- were clients Jaffe took on after initial convictions and death sentences. He helped another Death Row inmate win a new trial at which he was acquitted.

"The death penalty doesn't work; therefore, no one should be subjected to it, for all the reasons I lay out in the book," Jaffe said.

Birmingham's CBS affiliate, WIAT-TV, also profiled the book, "Death Penalty: Quest for Justice."  There is video at the link.

Defense Attorney Richard Jaffe doesn't believe he will change minds about the death penalty with his new book out in February, Quest for Justice: Defending the Damned. But he does hope the public will at least begin to ask more questions.

Among those questions the cost of the death penalty and his belief that it does not deter crime. He also objects to the way death sentences are handed out, something he likens to a game of chance. "It's a lottery, a true lottery. You have no idea who gets it even if you knew the facts of the case first which end in execution and which don't."

And:

He predicts the Troy Davis case may point to the end of the death penalty. The Georgia man was executed despite widespread doubts about his guilt.

Earlier coverage from Alabama begins at the link; there's also coverage of the state's unique judicial override mechanism in capital cases.

Scott Turow's Innocent - Tonight

A reminder that Scott Turow's 2010 novel, Innocent, has been turned into a TNT movie, "Scott Turow's Innocent," premiere Tuesday, November 29, on the cable channel.

An earlier post has details.  There will also be showings on December 2 and 3.

Turow is also the author of, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It's an excellent primer on capital punishment from a talented writer.

Ultimate Punishment is drawn from his service on the Illinois Governor's Commission on Capital Punishment.  The Illinois Commission was appointed in 2000 by then-Governor George Ryan after he imposed a moratorium on executions.  The Commission's report was issued in 2002.  Earlier this year, with the moratorium still in place, Illinois replaced its death penalty with a sentence of life without parole.

Scott Turow's Innocent

Scott Turow's 2010 novel, Innocent, has been turned into a TNT movie, "Scott Turow's Innocent," which will premiere Tuesday, November 29, on the cable channel.  Here's part of the blurb:

Bill Pullman (Independence Day, Torchwood) stars as Rusty Sabich, a judge charged with the murder of his wife, a situation that comes 20 years after he was cleared in the death of his mistress. During this latest trial, a secret affair from Rusty's recent past threatens to hamper his defense and fracture his relationship with his son. Oscar® winner Marcia Gay Harden (Pollack, Damages) plays Rusty's wife, while Alfred Molina (Spider-Man 2, Law & Order: LA) is his friend and defense attorney.

And:

Scott Turow's Innocent is a sequel to Turow's bestseller Presumed Innocent. The movie is written and directed by Mike Robe.

The made-for-cabel movie was also the topic of a New York Times article, "Made-for-TV Movies, Reborn on Cable," by Kathryn Shattuck in the Sunday Arts section.

IT’S a scene a movie studio might once have spilled a little blood for: Bill Pullman, stepping into the shoes of Harrison Ford as Rusty Sabich, the prosecutor turned suspected murderer in “Presumed Innocent,” the 1990 hit based on the thriller by Scott Turow. Marcia Gay Harden as Rusty’s brilliantly deranged spouse. Alfred Molina as the defense lawyer Sandy Stern. And Mr. Turow himself, who, despite initial resistance to writing a sequel, revisiting the Sabich saga some 20 years later.

But these days it’s exactly the kind of movie a studio probably wouldn’t touch. Instead “Scott Turow’s Innocent,” which now places Sabich behind the murder of his wife, brings its pedigree to cable television, increasingly the home for Hollywood types who crave adult-oriented drama.

“Innocent,” to be shown on Nov. 29, is the first entry of TNT’s “Mystery Movie Night,” weekly adaptations of novels by Sandra Brown, Lisa Gardner, Richard North Patterson, April Smith, Mary Higgins Clark and Carol Higgins Clark, starring veterans like Dermot Mulroney, Anne Heche, Judd Hirsch and Jane Alexander.

And:

For Mr. Turow, “the biggest benefit is that it gets made,” he said, noting that his novel “Innocent,” published in May 2010, took months to become a television movie versus years of feature development.

In addition to his novels, Turow is also the author of, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. It's an excellent primer on capital punishment from a talented writer.

Ultimate Punishment is drawn from his service on the Illinois Governor's Commission on Capital Punishment.  The Illinois Commission was appointed in 2000 by then-Governor George Ryan after he imposed a moratorium on executions.  The Commission's report was issued in 2002.  Earlier this year, with the moratorium still in place, Illinois replaced its death penalty with a sentence of life without parole.

A Man Who Knew About the Electric Chair

That's the title of Ralph Blumenthal's post at the New York Times City Room blog about Lewis E. Lawes, the legendary warden of New York's Sing Sing Prison, Lewis E. Lawes.  Here's an extended excerpt of this must-read:

Nobody killed more people, with more regret, than Lewis E. Lawes.

The warden of the Sing Sing Correctional Facility for 21 years, Lawes supervised the executions of 303 prisoners, all the while condemning the practice of capital punishment as barbaric, inequitable and futile.

As Hollywood’s favorite “fearless, fighting warden,” with a soft heart for his “boys,” Lawes was in charge of the prison through two turbulent decades, from the Jazz Age and the Great Depression to World War II.

“I shall ask for the abolition of the Penalty of Death,” he wrote in 1923, quoting Lafayette, “until I have the infallibility of human judgment demonstrated to me.”

Executions at the prison, in Ossining, N.Y., left Lawes physically ill, his trove of papers at the John Jay College of Criminal Justice shows. Once, when a condemned man named Patrick Murphy pleaded for a strictly prohibited last drink of spirits, Lawes broke the rules to deliver a medicinal dose of bourbon. Murphy accepted it gratefully and then offered it back to the stricken Lawes, saying, “You need the shot more than I do, warden.”

But he was no pushover. “Hell,” he wrote in one of his many books, “Invisible Stripes,” “the only law in Sing Sing is Lawes.”

So with the United States Supreme Court now reviewing the Alabama case of the death row inmate Cory Maples, whose appeal got waylaid in the mail, and weeks after a lethal injection ended the life of Troy Davis still protesting his innocence in the killing of a Georgia police officer, it would hardly be amiss to summon Lawes (who died in 1947 at 63) as an expert witness on the subject of state-ordered death.

Barely one out of 80 killers actually paid with his life, Lawes liked to note. Where was the equity in that? And, he asked, “Did you ever see a rich man go the whole route through to the Death House? I don’t know of any.”

Recently, a number of prominent former corrections officials have spoken out against capital punishment; coverage begins at the link.

In 2004, Blumenthal wrote Miracle at Sing Sing : How One Man Transformed the Lives of America's Most Dangerous Prisoners.  The long time Times writer served as the paper's Houston bureau chief several years ago.

Oregon to Change Execution Time

Today's Oregonian reports, "Instead of a midnight execution, state plans 7 p.m. death for Gary Haugen."  It's by Helen Jung.

When the state executed Harry Charles Moore in 1997, it chose the eeriest of hours -- just after midnight -- to deliver the lethal combination of drugs to the double murderer. 

But if the state executes inmate Gary Haugen on Dec. 6 as planned, the procedure would unfold around 7 p.m.

The timing would help the state Corrections Department coordinate security with other public safety agencies, reduce the impact on employee schedules and limit disruptions to the inmates, said spokeswoman Jeanine Hohn.

The switch is one that several states across the country have made in recent years, trading out the midnight execution times for daytime or evening hours, said John Bessler, an associate law professor at the University of Baltimore and author of Death in the Dark: Midnight Executions in America.

In some cases, the tradition goes as far back as the 1880s, he said, as states sought to crack down on the "carnival-like atmosphere" that accompanied hangings in the public square.

By bringing the executions inside prison grounds and moving the times to the dead of night, officials were able to limit attendance -- and media attention -- to the executions, he said.

Earlier coverage from Oregon begins at the link.

Our ‘Broken System’ of Criminal Justice

That's the title of Justice John Paul Stevens latest essay in the New York Review of Books.  It appears in the November 10 issue.  It reviews the new book, The Collapse of American Criminal Justice by William J. Stuntz, published by Belknap Press/Harvard University Press.  Here's the beginning of this must-read:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today—its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.

Much more than a hat tip of credit to Andrew Cohen and his Atlantic post, "Justice Stevens Speaks His Mind."

Suddenly, John Paul Stevens is everywhere. The retired Supreme Court justice has chimed in on the death penalty, written his memoirs, spoken about judicial ethics, and called the Bush v. Gore case "frivolous." And last week, in a chatty essay for The New York Review of Books, he offered some insight into the chaos (and inherent unfairness) that is the criminal justice system in America. At the age of 91, Stevens evidently has a lot to say after 35 cloistered years on the Court.

Some people are annoyed by Stevens' high profile. They think it's unbecoming for a retired justice to speak out so candidly on live legal issues. On the right, they conveniently cast Stevens' recent pronouncements as proof of his "liberal" nature, allowing them to ignore the fact that the High Court moved further to the right than the Ford appointee moved to the left during his tenure. Me? I think it's great that the man is speaking out and speaking up. He's earned the right, first of all, and he also happens to be a natural and excellent legal analyst.

His latest essay -- "Our 'Broken System' of Criminal Justice," from the New York Review of Books -- is a great example. In it, Stevens does a great job not just of translating the language of the law to lay people -- which is the most important thing a legal analyst can do -- but also providing the sort of context and perspective that only a retired Supreme Court justice can offer. Here, Stevens is a pivot for the rest of us; he links us to the legal and political history behind the criminalization of American life while showing us how that past directly impacts modern jurisprudence.

And:

Lord knows, the world doesn't need any more lawyers. But it can always use a good legal analyst. I hope Stevens continues to speak out and write about the law. If he educates only one viewer or reader at a time, he'll be doing the nation another great service.

Justice Stevens' own book, Five Chiefs: A Supreme Court Memoir, was published last month.  Earlier coverage of Justice Stevens and his book begins at the link.

Washington, D.C.'s great independent book seller Politics & Prose will host an author event with Justice Stevens on Nov 7, 2011, however, I understand the event is already sold out.

Late last year, Justice Steven's wrote, "On the Death Sentence," for the New York Review of Books.  The essay is noted here.and  commentary on his essay begins at the link.

Kirk Bloodsworth on the Hank Skinner Case

"Texas Must Test DNA Before Carrying Out Skinner Execution," is the title of Kirk Bloodsworth's essay at Huffington Post, this morning.  He was the first DNA exoneree convicted of a capital crime in America.  His story is told in Bloodsworth: The True Story of One Man's Triumph over Injustice by Tim Junkin.

Test the DNA. That is the simple request of Hank Skinner to Texas officials before they carry out his execution, which is scheduled for November 9. I do not know if Mr. Skinner is innocent or guilty -- but I do know firsthand the critical importance of DNA testing. Nearly twenty years ago, I became the first person in the United States exonerated from death row when post-conviction DNA testing proved my innocence.

In 1985, I was convicted and sentenced to death in Maryland for a crime I did not commit. I spent eight years in prison, two of those on death row, before I obtained the testing that led to my exoneration.

DNA testing not only proved my innocence. Ten years after I was released from prison, DNA helped identify the true person who committed the tragic murder of a young girl for which I had faced execution. That person confessed and is serving life in prison.

The only reason my name was cleared, and the right man brought to justice, is because prosecutors agreed to test the evidence. I am living proof that when scientific evidence is available, there is simply no excuse to refuse testing.

Texas officials have senselessly fought against DNA testing in Mr. Skinner's case for over a decade. Mr. Skinner came within one hour of execution last year before the U.S. Supreme Court intervened. He now faces execution again despite the State's continuing to vehemently block testing of key pieces of never-tested DNA evidence.

And:

Since my exoneration, I have worked to ensure that no defendants are denied the critical testing that saved my life. That is why I helped champion a federal law in 2004 to provide funds for post-conviction DNA testing.

Just this year, Texas lawmakers similarly recognized the vital importance of DNA testing. In May, the Texas Legislature passed a law expanding access to post-conviction DNA testing. The new law is designed for cases like Mr. Skinner's, where available DNA evidence has never been tested. Testing reliable scientific evidence can provide certainty and help maintain confidence in the criminal justice system.

The State has absolutely nothing to lose by putting off Mr. Skinner's upcoming execution to allow these tests to be conducted. Whether DNA proves Mr. Skinner's guilt or innocence, Texas officials should not be afraid of seeking the truth.

DNA allowed the mistakes in my case to be caught in time. Texas must test the evidence in Mr. Skinner's case before it is too late.

Earlier coverage of Hank Skinner's case begins with the preceding post.

Events Roundup

The Texas Book Festival takes over the Capitol complex this weekend in Austin.

Michele Deitch will be moderating a panel at the Texas Book Festival dealing with juvenile justice and the treatment of children and youth in Texas.  The panel features two great authors--Bill Bush, the author of The State of Our Children: Texas as a Parent, on the history of juvenile justice crisis and reform in Texas, and Sherry Matthews, the author of an oral history of the Waco State Home--a children's home for neglected and dependent youth. 

The session is Saturday, October 22nd from 1:30 - 2:30 pm, in the Capitol Extension, Rm. E2.014

Earlier coverage of Michele Deitch's work in juvenile justice is noted at the link. 

Also:

The Trials of Eroy Brown: The Murder Case That Shook the Texas Prison System is Michael Berryhill's book on prison civil rights and the collapse of Jim Crow justice in Texas. He presents Brown's story in his own words, set against the backdrop of the chilling plantation mentality of Texas prisons. Berryhill chairs the journalism program at Texas Southern University.  The program is moderated by Texas Monthly editor Nate Blakeslee.

It's Sunday, October 23rd from 11:00 - 11:45 am in Capitol Extension Room E2.014.

On October 24th in San Antonio, the Catholic Mobilizing Network and the Texas Coalition to Abolish the Death Penalty  are co-sponsoring a “Religious Leaders Dialogue on the Death Penalty”."

The event, will take place at Trinity University, from 7-9 p.m. in Laurie Auditorium, will be moderated by CMN Executive Director Karen Clifton.

Leaders from the following institutions are confirmed to attend: the Roman Catholic Archdiocese of San Antonio; Mission Presbytery; the Episcopal Diocese of West Texas; the Evangelical Lutheran Church -  Southwestern Texas Synod; Temple Beth-El; and the United Methodist Southwest Texas Conference.

Related posts are in the books, event, and religion indexes.

A Q&A With Michael Meltsner on the Reissue of Cruel & Unusual

Earlier this week I noted the reissue of Cruel and Unusual: The Supreme Court and Capital Punishment, Michael Meltsner's classic book detailing death penalty litigation in the 1960's and 1970's at the NAACP Legal Defense Fund (LDF).  Better still, the Quid Pro Books edition has a new preface by the author.

I'm very happy that Michael Meltsner took the time to participate in a Q&A.  He's a senior professor of law at Northeastern University School of Law in Boston, and its former dean.

Q.  This is a classic book, and I'm really glad that it will now be widely available again.  What was it like to revisit your original work with the passage of time and to write the new forward?

A.  Much has happened since publication of the first edition in 1973, but to my surprise I realized we still live in a legal world governed by the tension between Furman and Gregg.  My main reaction, however, was more personal than professional: I thought about the lawyers, secretaries and advocates with whom I worked closely, some of whom are no longer with us. An extraordinary group. I asked myself how did they find the energy and imagination to do what they did?

Q.  It must have been incredibly frustrating to see the states' reaction to Furman, quickly resulting in new death penalty statutes.  What was that like?

A.  Yes frustrating it was. Defeat snatching victory just as we were getting used to it. (Like the Red Sox losing its nine game lead in September:)) But then the Furman victory was itself unexpected. We lived roller coaster lives those years.

Q.  Now, a generation and nearly 1,300 executions later, it's increasingly clear that America's death penalty remains arbitrary and capricious, largely limited to the American South.  Death sentences are dropping and one by one state legislatures are replacing capital punishment.  What do you see for the future?

A.  I see an unwilingness to use the death penalty for any substantial public purpose and an incapacity in a number jurisdictions to discard it. Think of trying to take away a child's pacifier! He no longer needs it but will fight like crazy to keep it around.

Q.  At a symposium on the future of death penalty scholarship at the University of Albany, Hugo Adam Bedau started his keynote by reciting recent book titles on the death penalty - the point being that every year brings an increasing number of book focused on this failed experiment.  For those who haven't read Cruel & Unusual and don't know its history, what makes it relevant today?

A.  I'm told you can't practice in the field at a high level without understanding the road to Furman, but I agreed to a second edition because people I respect flattered  me by saying the book was a great read as well as a primer on litigation strategy and tactics. I still teach a course on constitutional litigation that deals with strategy and tactics so I was an easy sell. BTW last year I was honored to have received an award in Hugo Bedau's name; his scholarship laid some of the essential building blocks for the Legal Defense Fund's approach.

Q.  You've had a superlative career.  What role did death penalty litigation play in shaping your life in the law?

A.  I deal with this at length in my 2006 memoir, The Making of a Civil Rights Lawyer. In brief though, at a remarkably early age I had the opportunity to argue capital cases, one before the Supreme Court. Working with lawyers like Tony Amsterdam, Jack Greenberg and Jim Nabrit was my true legal education. But the deeper meaning, one that shaped a lot of my subsequent work, was an intimate knowledge of how dysfunctionally our society deals with violence    

Q.  Thanks.

Alan Childress, the publisher at Quid Pro Books, Tulane Law prof, and editor at the Legal Profession Blog, also joined in the Q&A.

Q.  What led you to start Quid Pro Books?  Between your duties and research at Tulane Law and editing the Legal Profession Blog, it seems that you already have a reasonably full plate.

A.  Last year, I figured that the Kindle and iPad meant a whole new life for classics in law & society that had gone out of print. Most nonfiction publishers did not seem eager to create ebooks, or at least priced them high to drive readers back to print books. All 50 of our ebooks or journals are $9.99 or less. All have affordable paperbacks, too, because there is still a need for their availability to, really, a different market. There was no shortage of great books that needed new editions, written by the best people in their fields . The project took off, and now brings out all-new books too, such as Lawrence Friedman's The Human Rights Culture. As to having time to do it despite blogging, I recommend to you a prodigious co-blogger. In my case Mike Frisch is a blogging machine, not me.

Q. Publishing has been undergoing a revolution in recent years.  You touched on this, but how important is it to have e-editions along with hard copies of these works that have been out of print.

A. Extremely, even though there are many people who understandably prefer print editions. For others, Kindles and apps are nice. But for some people who need large print, or text-to-speech, or access to books instantly in remote places or other countries, ebooks are more than a convenience: they restore reading to people who lacked realistic access before. For out of print classics, in particular, the economics make more sense for ebooks--no warehousing, lower production costs, potential worldwide market. In the future the percentage of people who get their books in a digital format will only increase, of course, but we'll happily produce print editions as long as people read them.

Q.  Any preview of future criminal justice titles we might expect to see?

A.  Hmm. None scheduled for the short run. Some criminal law fiction is coming. But more traditionally, this spring we republished Jerome Skolnick's Justice Without Trial, with a new Foreword by Candace McCoy, and Stuart Scheingold's The Politics of Law and Order, with new Foreword by Malcolm Feeley.    Both are very recognized titles in legal sociology and political science, respectively.

Q. Besides criminal justice topics, do you have any other books that may be of special interest to our Texas readers?

A. Yes, thanks, at least for those who also have dealings over our border into Louisiana, or are curious about civil law terms. It's a Louisiana Civil Law Dictionary.  I also think some may be interested in a history of the Bracero guestworker program, Kitty Calavita's Inside the State.  And as noted before, Lawrence Friedman of Stanford has a new book out on human rights.

Q.  The legal community was an early and enthusiastic adopter of blogs, and the network of law professor blogs covers an entire spectrum of legal issues.  The blogs certainly help to disseminate traditional scholarship, and enlarge the community for discussion, but they do more, as well.  What lessons have you learned from editing the blog.

A. Other than the advice earlier of enlisting a co-editor who is committed to regular postings and knows how to dig up stories of interest, I learned that such stories and open questions -- on legal ethics, in the case of our blog -- lurk everywhere, but aren't well organized. State bar discipline reports, for many states, are not as accessible or open as you'd think. We find the ethics angles in ordinary news stories too.

Many thanks to Michael Meltsner and Alan Childress for taking the time to participate.  Harry Truman often said, "The only thing new in the world is the history you don't know."  Cruel & Unusual is a vital and foundational book, essential to really understand American states' application of the death penalty today.

Earlier coverage of the reissue of Cruel & Unusual begins at the link.

A Classic Book Reiussued

Cruel and Unusual: The Supreme Court and Capital Punishment is Michael Meltsner's gripping account of the NAACP Legal Defense Fund's original campaign to abolish the death penalty, ending with the Supreme Court's 1972 ruling in Furman v. Georgia.  Meltsner is a senior professor of law at Northeastern University School of Law in Boston, and its former dean.

The Quid Pro Books edition has a new foreword by Evan Mandery of the John Jay College of Criminal Justice and a new preface by the author.

It's available in a variety of formats, includinging Amazon paperback, Kindle edition, as well as Barnes & Nobel Nook or print editions.   It's also available on Apple iBooks and at Sony's ebookstore.

Credit for the reissue goes to Alan Childress, a Tulane Law prof, an editor at the Legal Profession Blog, and publisher at Quid Pro Books.

Here's Amazon's product description:

The true and gripping account of the nine-year struggle by a small band of lawyers to abolish the death penalty in the United States. Its new edition features a 2011 Foreword by death penalty author Evan Mandery of CUNY's John Jay College of Criminal Justice, as well as a new Preface by the author. The mission, plotted out over deli sandwiches in New York's Central Park in the early 1960s, seemed as impossible then as going to the moon: abolish capital punishment in every state. The approach would fight a war on multiple fronts, using multiple strategies. The people would be dedicated, bright, unsure, unpopular, and fascinating. This book is their personal history: not only the cases and the arguments before courts, the death row inmates and their victims, the judges and politicians urging law and order – this is the true account of the real-life lawyers from the inside. The United States indeed went to the moon, and a few years later the U.S. Supreme Court ruled the death penalty unconstitutional. The victory was long-sought and sweet, and the pages of this book vividly let the reader live the struggle and the victory. And while the abolition eventually became as impermanent as the nation's presence on the moon, these dedicated attorneys certainly made a difference. This is their story.

As Evan Mandery writes in his new Foreword, "In these pages, Meltsner lays bare every aspect of his and his colleagues’ thinking. You will read how they handicapped their chances, which arguments they thought would work (you may be surprised), and what they thought of the Supreme Court justices who would decide the crucial cases. You will come to understand what they perceived to be the basis for support for the death penalty, and, with Meltsner’s unflinching honesty, what they perceived to be the inconsistencies in their position." Mandery concludes: "It is my odd lot in life to have read almost every major book ever written about the death penalty in America. This is the best and the most important.

Every serious scholar who wants to advance an argument about capital punishment in the United States – whether it is abolitionist or in favor of the death penalty, or merely a tactical assessment – cites this book. It is open and supremely accessible." And the author's "constitutional vision was years ahead of its time. His book is timeless." Part of the Legal History & Biography Series from Quid Pro Books, the new editions (in print and ebook formats) feature embedded pagination from previous editions, allowing continuity in all new formats and across all prior printings. This book has been adopted in many classes in colleges and law schools, but it is not written just for lawyers and students – it is not burdened with legal jargon and heavy legal analysis. It is accessible to a wide audience and tells the personal stories of the people involved, as well as examining the strategies and the legal and political nuances of death penalty litigation in the United States.

About the Author
Michael Meltsner is a senior professor of law at Northeastern University School of Law in Boston, and its former dean. Hired by Thurgood Marshall as only the second white lawyer on the staff of the NAACP Legal Defense Fund, Meltsner litigated cases throughout the country and in many causes before teaching law at Columbia, Harvard, and Northeastern Universities.

Related posts are in the books index.

John Paul Stevens: The Vote He Would Take Back

"Retired Justice John Paul Stevens on His ‘Wrong’ Vote on Texas Death Penalty Case," is the title of George Stephanopoulos' post at ABC News.

Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty.

“I really think that I’ve thought over a lot of cases I’ve written over the years.  And I really wouldn’t want to do any one of them over…With one exception,” he told me.

“My vote in the Texas death case.  And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.

 At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said. But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.

The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.

He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”

ABC News has also posted the full transcript of the interview with Justice Stevens.  Here's an excerpt dealing with capital punishment.

GEORGE STEPHANOPOULOS: You of course, became an outspoken opponent of the death penalty in your time on the court.  How did you evolve?  Can you summarize how your own views evolved?

JOHN PAUL STEVENS: About the death penalty?  Well, of course, it’s a long story, because I’ve been involved in that issue for so long.  But there also you have to keep in mind, there are always two part to the question.  One is, “When do you think it’s constitutional to have the death penalty?”  And the other question is whether one thinks it’s a wise thing to do.  And on the second question, whether your opponent is a matter of policy I’ve never felt that it was a particularly wise method of punishment.  And several of the members of the court, I can say specifically Warren Burger and Harry Blackmun, although they voted to uphold the penalty consistently early on, they personally did not think it made sense.

But my own thinking on the issue, on the constitutional issue evolved over the years, after our first decision in 1975, in the first year that I came in the court, in which at which time I thought the court was adopting procedures and rules that would confine the imposition of the death penalty into a very narrow set of cases.  And they took special pains to have fair procedures.

And over the years, the– I was disappointed to find they expanded the category of cases, rather dramatically later on, in ways that I don’t think Potter Stewart would have agreed with– who was sort of the principle author of our join opinion on– and they also have relaxed procedures in ways that actually give the prosecutor advantages in capital cases that I don’t think he has in ordinary criminal cases.  And so that seemed to me there’s a change in the general atmosphere around capital cases that occurred over the years and made me–

GEORGE STEPHANOPOULOS: It seems like there may be another evolution now in the country that the case of Troy Davis, executed last week.  It appeared with the protests around that that the country may be heading towards a tipping point in another direction, against the death penalty.  Is that what you see?

JOHN PAUL STEVENS: I don’t know.  I’m not a very good judge of public reaction on something like that.  But I think there always has been a significant group that felt that the penalty really wasn’t worth it and caused more harm than good.

And:

GEORGE STEPHANOPOULOS: Which case are you most proud of in your career?

JOHN PAUL STEVENS: You know, I’ve been asked that question a lot and I should be ready for– with an answer.  I’m– there– there are a lot of them, to tell you the truth.  And I really think that I’ve thought over a lot of cases I’ve written over the years.  And I really wouldn’t want to do any one of them over.

GEORGE STEPHANOPOULOS: Not one?

JOHN PAUL STEVENS: With one exception.

GEORGE STEPHANOPOULOS: Which is?

JOHN PAUL STEVENS: My vote in the Texas death case.  And I think I do mention that in that case.  I think that I came out wrong on that.

GEORGE STEPHANOPOULOS: And one of the things we’ve seen in Texas is a proliferation–

JOHN PAUL STEVENS: Right.

(OVERTALK)

GEORGE STEPHANOPOULOS: –of executions.

JOHN PAUL STEVENS: And I think that my law clerk at the time sort of foresaw that that was a problem that was inherent in the way that statute was drafted.

GEORGE STEPHANOPOULOS: I don’t know if you saw it, but there was actually a moment in the last couple of weeks, in one of the presidential debates, where the number of executions in Texas was cited, and the crowd cheered.

JOHN PAUL STEVENS: I noticed that, yeah.

GEORGE STEPHANOPOULOS: What did you think?

JOHN PAUL STEVENS: I was– I was rather disappointed, because it– maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good.  I don’t happen to share that view.  But there are obvious people who do.  And, of course, being hard on crime has been– always– is politically popular, let’s put it that way.

More on on Jurek v. Texas, 428 U.S. 262 (1976):, via Oyez.

Justice Stevens' book, Five Chiefs: A Supreme Court Memoir, is now available.  It's published by Little, Brown and Company.

Washington, D.C.'s great independent book seller Politics & Prose will host an author event with Justice Stevens on Nov 7, 2011.  I'll post news of additional author events.

Late last year, Justice Stevens wrote, "On the Death Sentence," for the New York Review of Books.  The essay is noted here.and  commentary on his essay begins at the link.

Black, Brown and Invisible: Minorities on Death Row

That's the title of an event in Houston, tonight, at the University of St. Thomas.

Scholars and legal experts join author and former Mexican Consul General of Houston Ricardo Ampudia in a conversation about the impact of the death penalty, particularly on minority defendants.  Topics to be addressed include capital punishment, innocence, disregard of Geneva Conventions and other accords concerning consulates and detained nationals.  A Q&A will be moderated and followed by a book signing.

Participants:
· Ricardo Ampudia is a journalist, diplomat and author of Mexicans on Death Row (Arte Público, 2010), which explores the history and ethics of capital punishment and how it affects the sentencing of Mexicans in the United States.

· Scott J. Atlas, a former litigation partner for the firm Vinson & Elkins (1982 -- 2006), led the legal team that won the release of Ricardo Aldape Guerra, an undocumented immmigrant who spent 14 years on death row.  He was the first Mexican National ever released from Texas' death row.

· Nicole Casarez. attprmeu amd professor at the University of St. Thomas, teaches journalism, media law, public relations and media ethics.  Casarez's affiliation with the Texas Innocence Network has led to investigative work on numerous capital and non-capital cases, including that of exonerated Texas dath row inmate Anthony Graves.

· David R. Dow is the Cullen Professor at the University of Houston Law Center, Rorschach Visiting Professor of History at Rice University and founder of the Texas Innocence Network.  Dow is the author of The Autobiography of an Execution

The book is Mexicans on Death Row by Ricardo Ampudia.

Ricardo Ampudia explores the history and ethics of the death penalty in this fascinating look at its impact on Mexicans sentenced to death in the U.S.  Originally published in Mexico as Mexicanos al grito de muerte, this absorbing account of the history, use and flaws of the death penalty is a must-read for anyone interested in the criminal justice system.

The event is free and open to the public.  For more information, call 713-743-2999.

The event on Twitter is:

#blackbrowndeathrow

Related posts are in the books, event, and foreign citizen index.

Webcast Today

The Constitution Project's Constitution Day program on wrongful convictions will be webcast today, live from Georgetown Law School in Washington, DC.

Annual Celebration of Constitution Day
Fifth Annual Constitutional Commentary Award Presentation and Discussion with the Honorees

Join The Constitution Project, the Mid-Atlantic Innocence Project, and Georgetown University Law Center as we recognize distinguished authors Jim and Nancy Petro and Brandon Garrett for their respective books, False Justice: Eight Myths that Convict the Innocent  and Convicting the Innocent: Where Criminal Prosecutions Go Wrong. In both works, the authors discuss the flaws in our criminal justice system that continue to result in wrongful convictions. The Constitution Project will present the three authors with its Constitutional Commentary Award, given annually to the author or producer of an outstanding work that has improved the quality of public discourse through insightful, articulate analysis of a constitutional issue of the day.  Following the award presentation, Jeffrey Rosen will host a discussion with the three authors.

The webcast will be available here.

WHO:  
Brandon Garrett, Professor of Law, University of Virginia School of Law, author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong

Jim Petro, Former Republican Attorney General of Ohio (2003-2007), and Nancy Petro, co-authors of False Justice: Eight Myths that Convict the Innocent 

Jeffrey Rosen (moderator), Legal Affairs Editor, The New Republic; Professor of Law, George Washington University

WHAT:
Fifth Annual Constitutional Commentary Award Presentation and  discussion with the authors.

WHEN:
Thursday, September 15, 2011 from 3:30-6:30 pm EDT/ 2:30-5:30 pm CDT/ 1:30 pm MDT/ 12:30 pm PDT

WHERE:
Georgetown University School of Law  
Gewirz Student Center, 12th Floor
120 F Street N.W.  
Washington, D.C. 20001

More information at the Constitution Project website.  Earlier coverage of this event is at the link.

From Alabama

"Alabama appeals court decision regarding condemned inmate Anthony Ray Hinton shows yet again why death penalty should be abandoned," is the title of of the Birmingham News editorial.

If there's one thing that should unite those who support the death penalty and those who don't, it's a desire to make sure no one is executed for a crime he didn't commit.

And if there's one thing that ought to preoccupy our justice system, it's making sure such a terrible travesty does not occur.

Unfortunately, that's not the case. A ruling last week by the Alabama Court of Criminal Appeals offers a timely example. The court strains at a gnat in Anthony Ray Hinton's appeal, but blithely swallows a camel -- that is, it overlooks strong evidence that Hinton did not actually commit the deadly restaurant robberies that landed him on Death Row.

And:

People complain about the appeals afforded those sentenced to death, about the legal technicalities that sometimes result in new trials, and about the emphasis on defendants' rights. But for all those restraints, there is no fail-safe mechanism in Alabama that kicks in to ensure innocent people are not convicted and put to death.

In our view, this is the most forceful argument of all for why Alabama needs to abandon the death penalty altogether. The state cannot afford to be so careless in inflicting a punishment that cannot be undone.

And really, the holes in the appeal system are not limited to Alabama, as shown by a book that examined the first 250 cases across the country in which people were cleared by DNA evidence after being convicted of crimes, including some that led to death sentences. The book found that 87 percent of all the convictions were upheld during the regular appeals process. In 10 percent of the cases, appeals courts actually cited the "overwhelming" evidence against people who, we now know, were not guilty at all.

The book "Convicting the Innocent: Where Criminal Prosecutions Go Wrong" also found a number of common threads in those cases that led to erroneous verdicts. In 74 percent of the cases, faulty forensic evidence -- such as ballistics reports -- played a role.

The West Memphis Three and False Confessions - A Special Guest Post

This guest post comes from Brandon L. Garrett, Professor of Law at the University of Virginia School of Law, and author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong.:

-----

The West Memphis Three and False Confessions

This past Friday at a hearing in Jonestown, Arkansas, the West Memphis Three, who had been convicted in 1994 of murdering three young boys, but had long claimed their innocence, finally became free men by entering a rare deal in which they officially pleaded guilty while maintaining their innocence. Over the years, the cases against the Three had come into doubt. One of the Three, Jessie Misskelley Jr., had implicated the other two after a twelve hour police interrogation. His confession was the basis for the arrests. The alleged ringleader, Damien Echols, had been sentenced to death and had been on death row for 18 years. However, new DNA tests excluded all of the Three and instead matched one of the victim’s step-fathers. With that evidence in hand the Three seemed headed towards a new trial, one in which the prosecution acknowledges the men would likely have been acquitted. This deal securing their release preempts the staging of a new trial, though the prosecutor maintains that Misskelley’s confession was true and all three are guilty.

The case has received national attention over the years, particularly after a remarkable movie about the case, Paradise Lost: The Child Murders at Robin Hood Hills, was released in 1996. The case of the West Memphis Three is the latest high-profile case of a contested police interrogation that was not carefully recorded, making it far more difficult to unravel who said what. The lawyers for the Three maintained that Misskelley’s confession was false, unreliable and included all sorts of statements totally inconsistent with how the crime happened. Misskelley was borderline mentally retarded, with an IQ of 72, yet police persisted with his lengthy interrogation. The few recorded pieces of the interrogations showed police using leading questions to try to tell him what had happened, something that interrogators are trained not to do because it contaminates a confession. We do not know what threats or other techniques were used to secure that confession. Misskelley had promptly recanted his confession, but it was used to arrest and convict him.

In my book, Convicting the Innocent, I discuss what went wrong in the first 250 cases in which DNA cleared innocent people in the U.S. Chapter Two of the book focuses on the forty cases where DNA brought false confessions to light. Many of the forty were young or mentally disabled, partially explaining why they may have been susceptible to police pressure. In addition, all but two of their confession statements were reported to have “inside information” that only the true culprit could have known. Those details may have been fed by police. However, none of the forty false confessions that I studied was recorded in its entirely. We do not know everything that happened in those interrogation rooms. As a result, until DNA technology was developed and provided decisive evidence of innocence, those false confessions appeared to powerfully support the convictions.

A new multimedia resource, called “Getting it Right,” co-produced with the Innocence Project, with support from the Open-Society Foundations, shows how wrongful convictions display patterns that can tell us how to improve our criminal justice system. The resource includes video from the false confession of Frank Sterling, who, like Jessie Misskelley, endured a grueling twelve hour  
interrogation. His case illustrates the importance of requiring the videotaping of entire
interrogations. “Getting it Right” offers a series of links to research and resources for those interested in reading more about false confessions. “Getting it Right” also features an incredibly moving video featuring Jennifer Thompson, describing how she misidentified Ronald Cotton as the man who raped her and how poor lineup procedures played a role. There are also interactive resources on informants and forensic evidence, and on the roles played by law enforcement and lawyers.

The vast majority of criminal cases lack usable DNA evidence. Like the West Memphis Three case, the 250 cases that I studied are all unusual cases in which the “truth machine” of DNA can call into question seemingly rock-solid evidence. That is why it is so important to learn from the wrongful convictions that do come to light – so that we can get it right.

-----

Many thanks to Brandon Garrett for his work.

Earlier coverage of Professor Garrett, Getting It Right and his book begins at the link.  Coverage of the release of the West Memphis Three is also available.  Related posts are in the false confessions index.

This post also appears on Harvard University Press Blog.

Perry v. New Hampshire - Looking at Eyewitness Identification

Adam Liptak's latest Sidebar column in today's New York Times is, "34 Years Later, Supreme Court Will Revisit Eyewitness IDs."  Here's an extended excerpt from the beginning of the article:

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Many of those witnesses were as certain as they were wrong. “There is absolutely no question in my mind,” said one. Another was “120 percent” sure. A third said, “That is one face I will never forget.” A fourth allowed for a glimmer of doubt: “This is the man, or it is his twin brother.”

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

The unreliability of eyewitness identification is matched by its power.

“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

The American Psychological Association, in a friend-of-the-court brief in the new Supreme Court case, said “research shows that juries tend to ‘over believe’ eyewitness testimony.”

Experts in the field are pleased that the Supreme Court will again consider the place of eyewitness evidence in the criminal justice system.

“It is exciting that the court has actually taken an eyewitness ID case for the first time in many years,” Professor Garrett said, “even if it might be the wrong case on the wrong issue.” The justices are likely to rule only about which kinds of eyewitness identifications warrant a closer look from judges — just those made after the police used improperly suggestive procedures or all problematic ones?

The larger and more important question of what that closer look should involve is probably not in play in the case, Perry v. New Hampshire, No, 10-8974.

The SCOTUS Blog case file for Perry v. New Hampshire contains all briefing.  Related posts are in the eyewitness identification index. 

Earlier coverage of Brandon Garrett, author of the recently published, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, begins at this link.

Getting It Right

That's the title of a new widget from the Innocence Project and University of Virginia Law prof Brandon Garrett, author of the recently published, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

Here's what the IP has to say in announcing the widget:

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice. The new interactive widget, “Getting it Right,” is embeddable on any website and features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

The widget was produced in partnership with University of Virginia Law School Professor Brandon Garrett, whose 2011 book, “Convicting the Innocent,” has earned rave reviews and provides the most comprehensive analysis to date of the causes of wrongful convictions later overturned through DNA testing.

I'll add a link to the site in the left-column webroll, "Innocence Projects & Resources."

Earlier coverage of Brandon Garrett and his book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, begins at this link.

Constitution Day - September 15

For Constitution Day, the Constitution Project has put together a great program dealing with wrongful convictions.  The Constitution Project has teamed with the Mid-Atlantic Innocence Project and Georgetown Law.

Fifth Annual Constitutional Commentary Award Presentation and Discussion with the Authors

Join TCP and the Mid-Atlantic Innocence Project on Thursday, September 15, 2011 as we recognize distinguished authors Jim and Nancy Petro and Brandon Garrett for their respective books, False Justice: Eight Myths that Convict the Innocent and Convicting the Innocent: Where Criminal Prosecutions Go Wrong. In both works, the authors discuss the flaws in our criminal justice system that continue to result in wrongful convictions. Following the award presentation, Jeffrey Rosen, Legal Affairs Editor for The New Republicand Professor of Law at George Washington University, will host a discussion with the three authors.

The event will take place on the 12th floor of the Gewirz Student Center at Georgetown University School of Law from 3:30-6:30 pm. Be sure to RSVP (rsvp@constitutionproject.org) to reserve a seat.

More on the participants:

• Brandon Garrett, Professor of Law, University of Virginia School of Law, author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong
• Jim Petro, Former Republican Attorney General of Ohio (2003-2007), and Nancy Petro, co-authors of False Justice: Eight Myths that Convict the Innocent
• Jeffrey Rosen (moderator), Legal Affairs Editor, The New Republic; Professor of Law, George Washington University

The program is open to the public.

There will also be a live webcast of the September 15 program for individuals and groups unable to be in Washington, DC.  The webcast will be archived for later viewing, as well.  I'm hoping that innocence projects in the states and other groups involved in criminal justice reform will consider organizing local screenings of the event.

Earlier coverage of Brandon Garrett's recently published, Convicting the Innocent: Where Criminal Prosecutions Go Wrong is at the link.

Costly, Capricious, Arbitrary

"Executing Justice: Based on a True Story," is the title of Barney Brantingham's current On the Beat column in the California's Santa Barbara Independent.

Since the U.S. Supreme Court reinstated the death penalty in 1976, Texas leads the field in number of executions, with 466, far ahead of No. 2, Virginia, with 108. California ranks 16th, with 13 executions, none so far this year.

But the Golden State does lead the pack with 713 inmates waiting on death row, 10 sentenced by Santa Barbara County courts. The scales of justice could yet work in their favor: In recent years, an annual average of about seven falsely convicted inmates around the U.S. have been exonerated.

And, Brantingham refers to John Grisham's novel, The Confession:

Sixteen states have abolished capital punishment, including (surprise) my homeland of Illinois. I doubt if most murderers give much thought to the consequences, but if they did, they might want to do the deed somewhere outside the South. That’s where 80 percent of executions take place. A study in California found that people who killed whites were three times more likely to be sentenced to death than those who killed blacks, and four times more likely than those who killed Latinos.

The accounts of mangled jurisprudence in Grisham’s novel could have been torn from the pages of countless real cases. At least one surely was: As attorneys frantically deliver evidence that could save the youth’s life, the door to the Texas Court of Criminal Appeals is shut in their faces at the strict 5 p.m. as the judge, well aware of the potential appeal, heads off for a tennis date.

Santa Barbara attorney Robert Landheer told me of a true-life 2007 case where Grisham likely got the idea: Although attorneys had asked that the court remain open for a last-minute appeal, the Texas Court of Criminal Appeals’ head judge ordered it closed on the dot at 5 p.m. The inmate was executed a few hours later, an appeal that could have saved his life unheard.

Landheer, who finds the death penalty “arbitrary and capricious,” cited the Death Penalty Focus group’s “Ten Reasons to Oppose the Death Penalty”: Wrongful executions of innocent people. The high costs involved. Prolonged suffering for families of victims. So far, 139 nations, including most Western democracies, have abandoned the death penalty. Inadequate legal representation for defendants. No demonstration that it deters. “Although isolated passages of religious scripture have been quoted in support of the death penalty, almost all religious groups in the U.S. regard executions as immoral.” Race of the victim and of the defendant are major factors in determining the sentence. Life in prison without possibility of parole is an alternative.

In view of the costs involved, you’d think the budget-cutters would home in on the issue.

Earlier coverage of California cost issues begins at the link; related posts are in the cost index.

A Study of North Carolina Death Sentences

Appalachain State University has issued a news release, "N.C. death penalty review provides data for lawmakers and others."  Here's the complete release:

While North Carolina was once a leading death penalty state, capital punishment has become rare, in part because of an unofficial moratorium on capital punishment in effect for the past five years, pending review of the protocol followed with the lethal injection process.

Appalachian State University professor Matthew Robinson thinks it’s time for lawmakers to consider the effectiveness of the state’s capital punishment system as a deterrent to crime as well as its cost.

Robinson, who teaches in Appalachian’s Department of Government and Justice Studies, is the author of Death Nation: The Experts Explain American Capital Punishment, “Justice Blind? Ideals and Realities of American Criminal Justice” and other books related to crime and the criminal justice system.

Robinson recently compiled a 57-page report titled The Death Penalty in North Carolina: A Summary of the Data and Scientific Studies. The goal was to provide one document that the General Assembly could access if they want to know the facts about the death penalty in North Carolina,” he said of the report. It is available at .

Robinson will join other scholars to discuss the report at a press conference Monday, April 18, at 11 a.m. at the North Carolina Advocates for Justice building at 1312 Annapolis Drive in Raleigh in rooms room CLE 1 and 2.

Robinson’s review of some 24 studies or reports includes information about the cost of executions versus life in prison, and public opinion about the death penalty.

In his report Robinson writes, “Death sentences have declined in North Carolina, executions have been halted, murders have declined, and a large majority of state residents support a moratorium on executions. This is an appropriate time to carefully assess the state’s capital punishment system. A fundamental question for policy-makers to consider is this—is capital punishment a necessary practice for North Carolina?”

He said lawmakers should consider if the death penalty meets its goals or providing closure for victims, retribution to society, deterrence from murder, and reduced murder rate. “Is capital punishment something that we believe is a necessary policy. Is it something we need to keep doing,” Robinson asked? “And do the benefits the state and society might realize from death penalty outweigh its costs?”

According to N.C. Department of Corrections data, currently 158 prisoners are on death row. The most recent incarceration was in March, the oldest was in 1985. Since 1977, only 9.9 percent of people sentenced to death in the state have been executed.

According to a report published by Duke University’s School of Public Policy, it costs the state $2.16 million more for a death sentence case than a trial that leads to life in prison or a lengthy prison sentence when considering the cost of a trial, legal defense, appeals and incarceration.

“We are spending an enormous amount of money for a system we rarely use and that studies show has significant racial biases,” Robinson said.

As linked above, The Death Penalty in North Carolina: A Summary of the Data and Scientific Studies, is available in Adobe .pdf format.

The most recent coverage from North Carolina focuses on the Racial Justice Act.

More From Raymond Bonner

"Foreign Companies Eye U.S. Market for Lethal Injection Drugs," appears at the Atlantic.  Bonner, Letter From Europe appeared in the New York Times earlier this week.

Denmark hasn't had a civilian execution since 1882 and the country banned capital punishment in 1933, except for war crimes, and that exception was removed from the law in 1978.

But next Tuesday, Texas plans to use a drug supplied by a Danish pharmaceutical company, Lundbeck, in the scheduled execution of Cleve Foster, a former Army sergeant convicted for the murder of a 30-year-old woman he had met in a bar. (Foster has always maintained his innocence.)

The Lundbeck drug has already been used for three executions in Oklahoma and one in Ohio, and other states have purchased the drug.

Even though the European Union bans capital punishment, the Danish company is not the only European corporation to supply drugs to American death penalty states. A British company, Dream Pharma, has sold sodium thiopental, an anesthetic, to several states and it has been used in four executions in recent months, in Georgia and Arizona. German and Austrian pharmaceutical companies are also looking at the American capital punishment market.

Lethal injection was first proposed by a New York doctor in the 19th century, who argued it was cheaper than hanging. It has now been adopted by the 33 states that have the death penalty, and is seen as a "more humane" approach than the electric chair or gas chamber. (Utah executed a man by a firing squad last year.)

The general procedure is for the condemned to be strapped onto a gurney and wheeled into the execution chamber. Witnesses observe through a window. The man's arms are swabbed with alcohol and two intravenous tubes are inserted, one in each arm. From another room, unseen by the condemned or the witnesses, the executioners first release sodium thiopental, a general anesthetic, into the tubes. (In surgery, 100 to 150 milligrams are used; for executions, as many as 5,000 milligrams.) This is followed by a muscle relaxant, which paralyzes the diaphragm and lungs, thus making it impossible for the condemned man to breathe. Finally, potassium chloride may be injected, causing death by cardiac arrest.

The scramble for foreign-suppliers of lethal injection drugs, and the surrounding controversy, has arisen because the American company that manufactured sodium thiopental, Hospira, ceased production at its plant in North Carolina last year.

He is writing a book about a death penalty case, Anatomy of Injustice.  It's scheduled to be published by Knopf in 2012.

New Book

Convicting the Innocent: Where Criminal Prosecutions Go Wrong is the title of a new book University of Virginia Law prof Brandon Garrett. 

A news release, "U.Va. Law Professor Brandon Garrett's Book Examines Wrongful Conviction," announces the publication.

False confessions, invalid forensic analysis, eyewitness misidentifications and other systemic flaws in the criminal justice system contributed to the wrongful conviction of the first 250 people exonerated by DNA tests, University of Virginia law professor Brandon Garrett writes in "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," published this spring by Harvard University Press.

Garrett began by studying the original criminal trial records of the 250 people who were convicted of series crimes and later exonerated. "The goal was to see what patterns there are," he said.

In a way, it would have been a comfort if the wrongful convictions had resulted from idiosyncratic mistakes or even corruption, Garrett said. That would suggest that false convictions are exceedingly rare, as nearly all police officers, prosecutors and judges conscientiously seek to convict the guilty and free the innocent, he said.

"What I found, though, was that the errors that repeated over and over again across the 250 cases were the result of bad barrels, and not a few bad apples. They resulted from unsound but systemic practices that allowed well-intentioned people to contribute to convicting the innocent," he said.

Those practices included the use of suggestive eyewitness identification procedures, flawed forensic analysis, coercive interrogations, shoddy investigative practices, cognitive bias and poor lawyering, he said.

What was particularly haunting about the cases, Garrett said, was that at the time, before the DNA tests proved the convict's innocence, many of the prosecutions appeared uncannily strong. For example, some cases included false confessions in which innocent suspects seemingly supplied police with details of a crime that police claimed could only be known by the perpetrator. The false confessions were typically the result of long, undocumented interrogations in which investigators may have planted details of the crime with the suspect, he said.

One case studied in the book was that of Earl Washington. On Jan. 20, 1984, Washington – defended for 40 minutes by a lawyer who had never tried a death penalty case – was found guilty of rape and murder and sentenced to death. After nine years on Virginia's death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man.

As a young lawyer in New York, Garrett said he saw the reality of such cases as Washington's and the others he analyzed. After law school, he worked at a firm in which Johnny Cochran was a partner, as were Peter Neufeld and Barry Scheck, the founders of the Innocence Project, an advocacy group that works to overturn wrongful convictions.

While there, Garrett was involved in representing a young soldier who had been charged with the rape of an elderly woman. The young man had been in a minor traffic accident near the scene of the crime shortly after it occurred.

"Detectives brought him in and interrogated him over many hours," Garrett said. "Ultimately he confessed, falsely, thinking that if he just parroted what they demanded that he say, he could finally go home. Instead, he was convicted by a jury and he spent 10 years in prison. DNA testing eventually proved his innocence."

Garrett's new book is an extension of previous studies he has done on the 250 cases. He wrote a groundbreaking study, "Judging Innocence," on the appeals and post-conviction process in cases in which the defendants were later cleared by DNA evidence, and later examined forensic analysis and confessions in that group of the wrongfully convicted.

Garrett began thinking about writing a book after the National Academy of Sciences asked him about the role forensic analysis played in those cases. He realized the only way to know for sure was to study the original trial transcripts. So he gathered more than 200 of them, with research support from the Law School and a two-year grant from the Open Society Institute. With the help of a team of student research assistants, he began meticulously reviewing the trials and coding their features.

Garrett fears that the types of errors that contributed to the convictions – unreliable witness testimony, forensic errors, false confessions – are not exclusive to cases in which DNA samples are available.

"What I saw in these 250 cases gave me grave concerns about the accuracy of other criminal cases in which DNA testing can't give us the answers," he said.

The criminal justice system is slow to reform, in part because it is fragmented and made up of so many investigative agencies and court systems at the local, state and federal level, he said.

"You have to remember that just because you don't get so many DNA exonerations in recent cases, for a wonderful reason – DNA testing is now routine before trial – it doesn't mean that the same problems with forensics, with confessions, with eyewitnesses, or with the adversary process itself aren't still serious ones," he said. 

Fortunately, he said, policymakers are increasingly taking very seriously the lessons that can be learned from the high-profile wrongful convictions that have come to light. In the last chapter of his new book, Garrett describes a criminal procedure revolution, as jurisdictions have begun to gradually adopt improved eyewitness identification procedures, mandatory interrogation recording requirements, forensic science reforms, innocence commissions and improved criminal discovery practices, among others. 

In part because the data may be of interest to researchers and policymakers, Garrett has also made available resources related to the book on a website hosted by U.Va.'s Law School.

Garrett's law school web page has several resources, including data and material from the book.

Related posts are in the books index.

Eyewitness ID Reform Moving Forward in Texas Legislature

Rick Casey's latest Houston Chronicle column is, "Eyewitness bill 'a good start,' but ..."

Brandon Garrett, a professor at the University of Virginia's School of Law, has a two-part message for Houston State Sen. Rodney Ellis.

The first part is that Ellis has made "a good start" with his bill to cut down the number of wrongful convictions in Texas by improving the way police obtain witness identifications. The bill passed the Senate Wednesday 30-0.

The second part is that unless we're careful, Ellis' bill could make things worse.

Garrett's book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, will be published next month by Harvard University Press. Garrett spent more than four years poring over the trial transcripts and other documents relating to the first 250 convicts cleared by DNA evidence. He wanted to find out what went wrong.

By far the greatest error — in 190 of the 250 cases - was misidentification of the suspect by eyewitnesses. The most important thing to understand about eyewitnesses, says Garrett, is that the memory is not only fallible but, more importantly, malleable.

Garrett was able to obtain trial transcripts in 161 of the 190 cases that involved erroneous eyewitness identifications. In 125 of those, or 78 percent, "there was evidence that police contaminated the eyewitness identifications."

In virtually all the cases, witnesses testified at trial that they were certain of their identifications.

But in 92 cases, more than half, they had expressed doubt at the time they first made the identifications.

Garrett says that in the vast majority of cases police don't intentionally "contaminate" the identifications.

"Sometimes you're trying to encourage rape victims who are reluctant to look at a lineup," he said this week. "Police may have no idea that they are making statements that can increase the confidence of a witness even if they are wrong."

And:

Ellis has been trying to pass this reform for years, and his bill is weakened by compromises sought by police and prosecutors.

The Legislature should pass it, and look closely at it again in two years.

"Establish eyewitness standards," is the Austin American-Statesman editorial.  It appeared in the Friday edition.

We certainly understand why Senate Bill 121, which would set statewide standards for eyewitness identification procedures in criminal investigations, is getting broad and bipartisan support. It would put in place standards to guide police departments in photo lineups or in-person lineups to make sure that those who committed crimes are held accountable.

In other words, the legislation would reduce the chances of witnesses fingering innocent people who are subsequently convicted on such evidence and sent to prison. That is a good thing that we all should get behind. The Texas Senate did that this week, voting unanimously to approve the legislation authored by Sen. Rodney Ellis, D-Houston. The bill was co-authored by Sen. John Carona, R-Dallas.

The bill was negotiated or endorsed by district attorneys, defense lawyers, members of the Texas Supreme Court, the Texas Court of Criminal Appeals, police departments and Gov. Rick Perry's office.

And:

At the Texas Legislature this month, we witnessed the painful stories of wrongly convicted defendants who endured prison for decades because witnesses falsely identified them as the culprits. Texas has 44 DNA exonerations, and 38 of those are largely or exclusively because of incorrect witness identifications.

That happened to Cornelius Dupree Jr., who was imprisoned at age 19 and spent 30 years in Texas' toughest prisons for a rape and robbery he didn't commit. He was ultimately cleared and released based on DNA tests. Had Dallas County not preserved evidence, Dupree still would be behind bars.

He urged Texas senators to approve the legislation, as did Cory Session, the brother of Timothy Cole, who served 13 years in prison for a rape he didn't commit and died in jail before he could be exonerated.

Session told lawmakers the bill would have prevented his brother from being incarcerated.

Earlier coverage of the legislation begins at the link.

More on Tim Cole's wrongful conviction and posthumous exoneration, here.  Earlier coverage of the Task Force on Indigent Defense, Texas Criminal Justice Integrity Unit, and the Timothy Cole Advisory Panel on Wrongful Convictions, at the links.

In The Nation

The Nation's current issue features the monthly column, Ten Things.  This month it's, "Ten Things to Abolish the Death Penalty," conceived by Walter Mosley, with research by Rae Gomes.  As in all things death penalty, it's Texas heavy.  Here's an extended excerpt from this must read:

On March 9th, Illinois became the fourth US state in the past five years to abandon the death penalty, a significant shift in the country's growing rejection of capital punishment. After weeks of deliberation, Republican Governor Pat Quinn not only signed a bill into law that kills the death penalty in the state, he also commuted the sentences of all 15 men on death row—men who would have still faced execution even with the new law in place. In 2003, then-Illinois Governor George Ryan famously emptied death row, citing grave concerns about innocent people facing execution as well as "the fairness of the death penalty system as a whole.” Last week, Quinn echoed his predecessor.

For Nathson Fields, one of countless men who were wrongfully convicted after being tortured under corrupt Chicago police commander Jon Burge, the victory was especially sweet. "I spent eleven-and-a-half years on death row for a crime I did not commit. Illinois tossing out the death penalty will affect other states. This will send the message that it can be done. It should be done.”

What can we do to build on the success in Illinois? We can get involved by joining abolitionist groups, signing petitions and contacting our elected officials. But, as Gov. Quinn did, we must also listen to those who have grappled with this system firsthand: former prisoners, death row lawyers, prisoners' family members, activists and victims of violent crime. Margaret Summers of the National Coalition to Abolish the Death Penalty and Liliana Segura of the Campaign to End the Death Penalty asked ten such experts to share their thoughts, on cases that stand out, on strategies that work and on what Americans should know about the death penalty today.

1 Anthony Graves, exonerated from Texas’s death row in 2010.

I know how easy it was for them to take my freedom and set out to kill me. I feel that if it was that easy, I’m sure there have been many mistakes in the past, that many men and women on death row are innocent. It’s not an infallible system. Anyone can be sentenced to death for a crime they didn’t commit. That alone is a reason that the death penalty should be abolished. Read Graves's here and go to Witness to Innocence.

2 Bryan Stevenson, Executive Director, Equal Justice Initiative.

Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in death penalty cases where hundreds of death row prisoners have been convicted or condemned by juries where people of color were illegally excluded. This racial bias has undermined the credibility of capital punishment and contributed to the marginalization of African Americans and other racial minorities from full representation when the most critical issues in our communities are decided. Read about Racial Discrimination in jury selection.

3 Martina Correia, activist, sister of Troy Davis, who is currently on Georgia's death row.

We must target the doctors who assist in state sanctioned killings and ban the sale or availability of drugs used in executions. We should launch a campaign of death row family members and members of groups like Murder Victims' Families for Reconciliation to challenge the US at the United Nations, calling executions a human rights violation, a morally corrupt and selective process of exterminating people without resources. Go to Physicians for Human Rights.

4 David Dow, Texas death penalty lawyer, author of  Autobiography of an Execution.

Learn about the Michael Richard case. He was mentally disabled. On the morning of his execution, in 2007, the Supreme Court agreed to hear a case on the constitutionality of lethal injection. Lawyers in my office scrambled to file a petition for Richard raising the issue, but he was executed because we did not finish by the time the court closed at 5. The court would not stay open late for us. I think if we had been able to get the petition filed, he would still be alive today.

5 Natalie Skinner, daughter of Hank Skinner, who is currently on Texas's death row.

If people would take the time to learn about the people on death row, they would be surprised to find out that many are parents with children who love them very much. Their relationships with their families don't just stop when they are sentenced to die. At the end of the day, the death penalty hurts more people than it helps by continuing the very cycle of violence it was put in place to break.

Read the rest at the link.

Autobiograhpy of an Execution Wins BN Discovery Award

The Barnews & Noble press release is, "Barnes & Noble Announces the 2010 Discover Award Winners
Kim Echlin and David R. Dow Are 2010 Winners," via Webwire.

Barnes & Noble Inc. (NYSE: BKS), the world’s largest bookseller, today announced that Canadian Kim Echlin’s nostalgic novel of a cross-cultural love story, The Disappeared (Black Cat), and attorney David R. Dow’s spellbinding account of his efforts to defend the seemingly indefensible, The Autobiography of an Execution (Twelve), have been named the winners of the 2010 Discover Awards for fiction and non-fiction, respectively. Each writer was awarded a cash prize of $10,000, and a full year of marketing and merchandising support from the bookseller.

And:

The non-fiction winner, The Autobiography of an Execution, is David R. Dow’s thrilling account of his efforts to give death row inmates a proper defense in a criminal justice system gone awry. Non-fiction jurist Terry Teachout said, "No matter how you feel about capital punishment – and especially if you support it, whether staunchly or uneasily – this book will bring you face to face with the arbitrary, often capricious way in which the death penalty really works. It’s the most sobering book that I read in 2010.”

Writers on the non-fiction jury panel included Eric Blehm, whose book, The Last Season, won the Discover Award in 2006; British journalist Christina Lamb, whose book, The Sewing Circles of Herat: A Personal Voyage Through Afghanistan, was a finalist for the Discover Award in 2002; and critic Terry Teachout, whose biographies include The Skeptic: A Life of H. L. Mencken, and Pops: A Life of Louis Armstrong.

The Discover Awards honor the works of exceptionally talented writers featured in the Barnes & Noble “Discover Great New Writers” program during the previous calendar year. In 2010, the Discover Great New Writers program featured the work of 60 previously unknown fiction and non-fiction writers. Previous Discover Award winners include Dave Cullen, Victor Lodato, Tracy Chevalier, Joshua Ferris, David Guterson, Chang-rae Lee, Anthony Doerr, Hampton Sides, Ben Fountain, and David Sheff.

The Autobiography of an Execution is now available in a paperback edition as noted in Sunday's New York Time Book Review sectio:

THE AUTOBIOGRAPHY OF AN EXECUTION, by David R. Dow (Twelve, $14.99.) Dow, a law professor in Texas, has represented more than 100 death row inmates over 20 years, convinced that what Justice Harry A. Blackmun called the American “machinery of death” is broken. His dark, raw memoir toggles between his capital cases and life with his family, Dow’s lifeline back from the death chamber.

As well as a review in the Cleveland Plain Dealer.

Earlier coverage of this exceptional book begins at the link; related items in the books index.

More Acclaim for David Dow's Book

David Dow's The Autobiography of an Execution, is one of three finalists for a nonfiction book award by Barnes & Noble.  The announcement was made earlier today in a press release.

The winners will be announced on Wednesday, March 2, at a private awards ceremony. The Discover Awards honor the best works featured the previous calendar year in the Barnes & Noble Discover Great New Writers program.

David Dow is against the death penalty, yet there are people he would like to see dead. The Autobiography of an Execution is the stunning result of his long career as an appellate lawyer, defending (via legal aid) more than 100 death-row inmates. It is a sobering portrait of the American criminal justice system, and a riveting work of nonfiction. For Siddhartha Mukherjee, The Emperor of All Maladies was a titanic undertaking. Mukherjee, a doctor specializing in the treatment of cancer patients, believed his patients could better fight an enemy they understood. So, he studied the history of the disease, and weaves his fascinating research with the personal stories of patients he has encountered to form a compelling narrative history of cancer and those fighting it. A science writer, Rebecca Skloot is always on the hunt for a good story. She found it in the person of Henrietta Lacks, the woman from whom the first HeLa cells were harvested (without her knowledge); and in her pursuit of the full story behind this astonishing fact, Skloot spent a decade to fashion, with considerable skill, her debut, The Immortal Life of Henrietta Lacks.

And:

The Discover Great New Writers program was established in 1990 to highlight works of exceptional literary quality that might otherwise be overlooked in a crowded book marketplace. This year’s selections featured the work of 60 new and previously underappreciated writers. Submissions to the program are read and discussed by a group of Barnes & Noble booksellers before selection for the program’s seasonal promotions.

Earlier coverage of Dow's book begins at the post; related items in the books index.

Justice Stevens and the Death Penalty

That's the title of a New York Times editorial.  It appeared in the Sunday edition.

In the current "New York Review of Books," the retired Justice John Paul Stevens makes a compelling argument for abolishing the death penalty. He explains how it fails to meet the Supreme Court’s own standards for execution and persists only because of misguided political and cultural reasons.

When the court reinstated the death penalty in 1976, it said an execution could avoid being a “gratuitous infliction of suffering” if it served the purpose of incapacitation, deterrence or retribution. Justice Stevens argues first that it is now unnecessary for incapacitation because “the remedy of life imprisonment without the possibility of parole” has, over the last three decades, been enacted in 48 of 50 states.

While some scholars disagree, the retired justice is also persuasive that execution serves no “significant deterrent purposes,” especially since long delays in many executions undermine any potential for deterrence.

And:

The reasons the death penalty persists, he argues, are political and cultural. That is the core point of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland, which Justice Stevens writes about in his essay.

The justice says that endorsing capital punishment is touted as a commitment to law and order — whether it was Gov. George W. Bush presiding over 40 executions in Texas in 2000 (the most ever in a year in one state) or elected judges in Alabama favoring the penalty (while unelected judges in Delaware do not). Its cultural power is demonstrated by Americans’ appetite for mysteries about murder and revenge.

While these forces need to be recognized, Justice Stevens is right that they are "woefully inadequate justifications" for a penalty that is a brutal anachronism.

Justice Stevens' essay is at the link; earlier coverage begins with the post, " Debate Over Capital Punishment."

Justice Steven's comments to the CBS News' program 60 Minutes is at the link.

Debate Over Capital Punishment

That's the title of an editorial in today's Dallas Morning News.  The latest commentary on Justice John Paul Stevens' essay. "On the Death Sentence," 

Former Supreme Court Justice John Paul Stevens and author David Garland have both dived into the national discussion over the death penalty this fall, with the bigger waves being kicked up by the recently retired jurist.

And:

Stevens and Garland point out one benefit that is glaringly evident in Texas: support for the death penalty "wins votes," the justice says. An NYU law and sociology professor, Garland wrote recently in the Houston Chronicle that "politicians give voters what they want by enacting capital punishment statues even when they will never be enforced."

A deterrent to crime is one supposed benefit for the death penalty, but its imposition is not associated with lower murder rates in the 35 states that allow it. Further, consider this from Garland: Out of 14,000 homicides in the U.S. last year, juries imposed death sentences in only 106 cases. Death is far from a sure punishment for taking a life, nor is it swift. Some death row inmates have been there for decades.

Just in Texas, the sentence is far from evenly imposed. Of the 316 people on Texas' death row, more than a third are from Harris County.

In what should be particularly disturbing in Texas – for obvious reasons – Stevens mentions the "execution of innocents" as if a given. Perhaps that, more than anything, has caused prominent Texans, from a former governor to former prosecutors, to adjust their thinking, as has Stevens, and advocate a saner justice system that guards against a flawed but irrevocable sentence.

There is also more commentary at Time.  Editor-at-large David Von Drehle posts, "Stevens' Case Against the Death Penalty: Shirking the Blame."

Suppose that you hired a highly regarded architect to design a fancy house. He comes up with the most impressive and elaborate plans, but all the basic calculations about stresses and loads are completely wrong, and from the moment you first open the front door, the place starts falling apart.

Still, you have a lot invested in the house, and you don't want to tear it down, so you bring in an engineer who proposes that you jack up the north wing, and when that doesn't work you hire a contractor who advises you to instead lower the south wing. One expert suggests reinforcing the foundation. Another expert tells you to redesign the roof.

You try them all, and more. And this goes on for years, plunging you into debt, baffling your neighbors, and never coming close to fixing your house, which looks more and more hopeless with each new "repair." Then one day, the original architect comes by, sees the ruin, shakes his head sadly and asks why, oh why, did you let all those butchers tinker with his beautiful design.

That's essentially what retired Supreme Court Justice John Paul Stevens, an architect of America's wreck of a death penalty system, has been doing in recent days. In an essay in The New York Review of Books, and again in an interview on 60 Minutes, Stevens has been busy blaming others for a mess of his own creation.

And:

But those extraordinary costs, in dollars, in years, and in frustration, did not begin tolling - as Stevens suggests — with the arrival of justices appointed by Ronald Reagan. The system was broken from Day One, doomed by an unworkable design that Stevens helped dream up.

This is complicated — that's the root of the problem — but bear with me as we return to the mid-1970s, when Stevens was a freshly minted Justice and the Court had a problem on its hands. In 1972, the Supreme Court had struck down all existing capital punishment laws in one of the most far-reaching opinions in its history, called Furman v. Georgia. The 5-to-4 decision, the longest in the Court's history, nullified hundreds of laws in nearly 40 states and jurisdictions, and commuted some 600 death sentences.

Yet it failed to define any principles going forward. Furman was a jumble of separate opinions, often at odds with each other. All nine Justices weighed in at great length. William Brennan and Thurgood Marshall wrote that the death penalty could never be constitutional. Somehow, they wound up on the same side with Byron White, who wrote that the death penalty, to be constitutional, must be used frequently.

Von Drehle is also the author of Among the Lowest of the Dead: The Culture of Capital Punishment.

Earlier coverage begins with this post.

Additional Commentary on Justice Stevens' Essay

Adam Cohen posts, "Stevens' Powerful Anti-Death-Penalty Views," at Time.

Justice Stevens is also troubled by the way key procedural rules have been rewritten to make it easier to put people to death. One change involves so-called death-qualified juries — that is, juries that don't include people who oppose the death penalty. In 1968, the Supreme Court ruled that opposition to the death penalty is not a valid reason to exclude someone from a jury. If you allow jurors to be excluded on this basis, you end up with juries that are much more pro-prosecution, and pro–death penalty, than society as a whole. But three years ago, a bitterly divided Supreme Court undid that ruling — and cleared the way for death-qualified juries.

Another change is in the use of victim-impact statements. In 1987, the Supreme Court ruled that having a jury hear the often emotionally wrenching stories of victims could unfairly inflame jurors and was inconsistent with the "reasoned decisionmaking we require in capital cases." Four years later, after turnover among the Justices, the court reversed itself — over Justice Stevens' dissent — and ruled that these statements can be used.

Justice Stevens' critique of death-penalty law is exactly right. It is also badly needed, as the current court is becoming ever more enthusiastic about capital punishment and ever more indifferent to important details — like how certain we are that the person facing execution is even guilty.

And:

Justice Stevens' arguments are powerful precisely because they come from someone in the middle of the debate — a man who long believed capital punishment was constitutional provided it was properly applied. His sharp critique should reinforce the resolve of those who do not support the death penalty and raise unsettling questions for those who do.

"John Paul Stevens, William J. Brennan and the Death Penalty," is the title of Seth Stern's post at Huffington Post.  Stern is the co-author of Justice Brennan: Liberal Champion.

Retired Justice John Paul Stevens made headlines this past weekend by explaining how he went from supporting capital punishment at the time he joined the U. S. Supreme Court to concluding it is unconstitutional.

One of Stevens' late colleagues, William J. Brennan Jr., might have felt some measure of vindication had he lived long enough to witness Stevens emerge as a forceful opponent of the death penalty. But it certainly wouldn't have surprised Brennan, who joined Thurgood Marshall as the Court's most ardent voices against capital punishment in the 1970s.

At the end of his 34-term career on the Supreme Court, Brennan confidently predicted to his clerks that both Stevens and Harry Blackmun would eventually come to view the death penalty as unconstitutional.

It is a prediction preserved in the narrative history of the 1989-90 term prepared by Brennan's law clerks at his direction. "Early in the Term, WJB had expressed his view that someday Blackmun (and somewhat less likely Stevens) would 'come around' to his view that the death penalty is in all circumstances cruel and unusual punishment," Brennan's clerks wrote.

Stevens mentions Brennan in his new essay in the New York Review of Books, which lays out why he changed his position on the death penalty. Stevens blames conservative justices for engaging in "regrettable judicial activism" that he says undermined earlier decisions making it possible to carry out executions fairly.

Justice Steven's essay, "On the Death Sentence,"appears in the current New York Review of Books, and is noted here.  Earlier coverage begins with this post.

More Cost Issues From California

"Lack of funding builds death row logjam," is the title of Maura Dolan's Los Angeles Times report.  It appeared in the November 27 edition.

Thirteen years ago, Edward Patrick Morgan asked the California Supreme Court for a lawyer to investigate and challenge his 1996 death sentence for a murder in Orange County. The court has yet to find Morgan an attorney.

The inability of the state to recruit lawyers for post-conviction challenges, or habeas corpus petitions, has caused a major bottleneck in the state's criminal justice system. Nearly half of those condemned to die in California are awaiting appointment of counsel for these challenges.

This "critical shortage," as the state high court describes it, has persisted for years, despite lawyer gluts. The average wait for these attorneys is 10 to 12 years.

Criminal defense lawyers attribute the scarcity to inadequate state funding, the emotional toll of representing a client facing execution and the likelihood that the California Supreme Court will uphold a capital conviction.

"There are myriad reasons why dozens of lawyers who used to do these cases decide they can't afford it," said UC Berkeley law professor Elisabeth Semel. "I am talking about not going broke because you are trying to do the right thing for your client."

Prosecutors and death penalty supporters blame the culture of criminal defense work or, as Kent Scheidegger, legal director Criminal Justice Legal Foundation, put it, the zeal "to turn over every rock in the world."

"The idea that you have to pull out every stop in every case is excessive," said Scheidegger, whose group favors capital punishment. "There is a lot of pressure, but that doesn't mean the state has to or should pay for it."

Lynne Coffin, 61, a criminal defense lawyer who does death penalty cases almost exclusively, said fewer young lawyers are willing to take on the work. She said even she is uncertain whether she would have become a capital defender "knowing what I know now."

And:

California has more than 700 inmates on death row, the largest number in any state in the country.

"We are dealing with numbers the system can't handle," said Michael Laurence, executive director of the Habeas Corpus Resource Center, a state agency that represents death row inmates in post-conviction challenges.

Some experts believe the shortage will be met only when the state expands such centers, where lawyers are on salary and have access to paid investigators and paralegals.

Each death row inmate is entitled by law to an automatic appeal to the California Supreme Court. These appeals are based on what happened at trial. They often include allegations that a judge gave improper jury instructions, a prosecutor made improper remarks during closing arguments or that evidence was impermissibly barred or admitted.

After an automatic appeal, a death row inmate may file a habeas corpus petition, which asks that the prisoner be taken to court to determine whether he or she is being held unlawfully.

A habeas or post-conviction challenge is based on evidence that was not presented at trial.

For instance, a defendant may argue that a prosecution witness obtained favors for testifying, a fact not disclosed during trial. If persuasive evidence is provided, the state high court will order a hearing before a trial judge.

A lawyer who takes a habeas is required by the California Supreme Court to have experience both in trial court and in appeals.

Chief Justice Ronald M. George said many lawyers lack the qualifications to take post-conviction challenges.

"I want to distinguish what we do in California from what they do in other states, where almost any warm body will qualify," George said.

The George court has upheld 90% of the death cases it has reviewed, the highest rate of any state court, according to Santa Clara University law professor Gerald Uelmen. George attributes the rate to the relatively high quality of defense the state provides at trial.

But criminal defense lawyers maintain that many capital defendants receive inadequate counsel at trial. They note that federal courts overturn more than half the California death penalty cases they review.

UC Berkeley's Semel said the state fails to meet American Bar Assn. standards for death penalty litigation. The quality of defense counsel varies from county to county, and the state increasingly pays a flat fee for capital cases, which the ABA opposes on the grounds it encourages lawyers to skimp on their duties to the client.

On an non-capital cost matter, today's Sacramento Bee carries the editorial, "Kamala Harris' idea could ease prison crowding."

In San Francisco and Los Angeles today, Kamala Harris will formally claim her razor-thin victory over Los Angeles County District Attorney Steve Cooley as California's attorney general.

In Washington, D.C., the U.S. Supreme Court will hear oral arguments in the state's challenge to a federal court order forcing California to reduce its prison population by roughly 40,000 inmates.

The two events are significant on their own. They're also related.

The high court will be reviewing a three-judge panel's order that the state relieve prison overcrowding. The judges reasoned that crowding caused inmate health care and mental health care to become so bad that conditions violate the U.S. Constitution's Eighth Amendment ban on cruel and unusual punishment.

Harris, the San Francisco district attorney, mostly soft-pedaled the issue of prison crowding during her campaign, and until she takes office, she will be in no position to alter the way the state has pursued the case.

But in her book, "Smart on Crime," Harris forcefully decries the state's soaring prison population and cost, particularly as it relates to nonviolent offenders. This passage neatly sums up her take on the problem:

"For several decades, the passage of tough laws and long sentences has created an illusion in the public's mind that public safety is best served when we treat all offenders pretty much the same way: arrest, convict, imprison, parole. …

"What the numbers say loud and clear, however, is that most nonviolent offenders are learning the wrong lesson … are becoming better and more hardened criminals during their prison stays."

Earlier coverage of cost in California begins with this post; related posts are in the cost index. 

Commentary on Justice Stevens' Essay

Bob Herbert's OpEd column in today's New York Times is, " Broken Beyond Repair."  Here's an extended excerpt:

You can only hope that you will be as sharp and intellectually focused as former Supreme Court Justice John Paul Stevens when you’re 90 years old.

In a provocative essay in The New York Review of Books, the former justice, who once supported the death penalty, offers some welcome insight into why he now opposes this ultimate criminal sanction and believes it to be unconstitutional.

As Adam Liptak noted in The Times on Sunday, Justice Stevens had once thought the death penalty could be administered rationally and fairly but has come to the conclusion “that personnel changes on the court, coupled with ‘regrettable judicial activism,’ had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.

Police and prosecutorial misconduct have been rampant, with evidence of innocence deliberately withheld from defendants being prominent among the abuses. Juries have systematically been shaped — rigged — to heighten the chances of conviction, and thus imposition of the ultimate punishment.

Prosecutors and judges in death penalty cases have been overwhelmingly white and male and their behavior has often — not always, but shockingly often — been unfair, bigoted and cruel. The Death Penalty Information Center has reams of meticulously documented horror stories.

Innocents have undoubtedly been executed. Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants. And it has always been the case that the death penalty machinery is fired up far more often when the victims are white.

I remember reporting on a study several years ago by the Texas Defender Service, which represented indigent death row inmates. It mentioned a Dallas defense lawyer, who, reminiscing in 2000, said: “At one point, with a black-on-black murder, you could get it dismissed if the defendant would pay funeral expenses.” A judge, looking back on his days as a prosecutor in the 1950s, recalled being told by an angry boss: “If you ever put another nigger on a jury, you’re fired.”

Prosecutors cleaned up their language somewhat over the years, but the discrimination has persisted, along with the pernicious idea that white lives are inherently more valuable than black ones. Patricia Lemay, a white juror in a Georgia death penalty case that resulted in an execution, told me in an interview in 2002 that she had been nauseated by the vile racial comments made by other jurors during the deliberations.

Justice Harry Blackmun was 85 years old and near the end of his tenure on the Supreme Court when he declared in 1994 that he could no longer support the imposition of the death penalty. “The problem,” he said, “is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

Justice Blackmun vowed that he would no longer participate in a system “fraught with arbitrariness, discrimination, caprice and mistake.”

In 1990, Justice Thurgood Marshall asserted: “When in Gregg v. Georgia the Supreme Court gave its seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered with fairness and justice. Instead, the promise has become a cruel and empty mockery.”

Justices Blackmun and Marshall are gone, but the death penalty is still with us. It is still an abomination.

Andrew Cohen, legal analyst for Politics Daily, posts, "John Paul Stevens: Book Reviewer, Death Penalty Opponent."

What follows then is surely the most significant book review from a Supreme Court justice, sitting or otherwise, since Justice William O. Douglas raved in 1962 about Rachel Carson's environmental classic, "Silent Spring." Actually, Stevens' essay is less a review and more a foil -- both for Garland's book and our special reviewer's desire to unburden himself about the topic after 35 years on the Court. "Professor Garland identifies arguably relevant purposes without expressly drawing the conclusion that I think they dictate," Stevens writes at the end. "Perhaps he will tell us his real position in his next installment, which I look forward to reading when (and if) it arrives."

And:

In contrast to Stevens, it took the late Justice Harry Blackmun only 18 years to change his mind about the death penalty. A Nixon appointee, a Republican, Justice Blackmun also signed onto the Gregg decision in 1976 which allowed states, and the federal government, to try again for a constitutional death penalty scheme. But by 1994, nearing the end of his long career in public service, Justice Blackmun, like Justice Stevens, had had it with capital punishment. That year, he famously wrote in dissent in Callins v. Collins:

"From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question -- does the system accurately and consistently determine which defendants "deserve" to die? -- cannot be answered in the affirmative."

It surely says something profound that two of the men responsible for the current iteration of the death penalty in America -- Stevens and Blackmun, both Republican appointees -- would so vocally change their minds about what they had done. And in the Garland review, Justice Stevens made sure everyone knows that he believes that Justice Potter Stewart, another Republican appointee who endorsed capital punishment in 1976, would have been mortified at the way it has been implemented over the past 25 years. The essay thus raises a question the current members of the Supreme Court will likely have to answer again in the age of DNA testing; is a government ever capable of imposing capital punishment in a way that is neither arbitrary or capricious?

Today's St. Petersburg Times carries, "Restoring fairness to the death penalty," by Daniel Ruth.

It is a little difficult, not to mention hypocritical, for the United States to flit around the world lecturing other countries on social justice and human rights when right here at home the country's highest legal authority has engaged in a systemic abuse of its most profound legal sanction.

We decry the stoning of women in places like Pakistan and Iran, while at the same time blithely allowing suspect racial disparities to continue in the administration of the death penalty in our own courts.

Stevens has performed a noble public service by pulling back the curtain on the often mysterious ways and prejudices of the Supreme Court.

We need to know, Lady Justice needs to know, that when the state executes a condemned prisoner, the judicial system has worked equally — for everyone.

This isn't about abolishing the death penalty. It's about restoring common sense to society's most vexing administration of justice.

Who would have ever imagined that in the United States, basic fundamental fairness would be so cloaked in elusiveness?

Earlier coverage, including Justice Stevens' essay, is at the link.

Justice Stevens On the Death Penalty

"Ex-Justice Criticizes Death Penalty," is the title of Adam Liptak's front page report in today's New York Times.

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.

He will be on “60 Minutes” on Sunday night.

And:

The essay is actually a review of the book “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and Justice Stevens appears to accept its major conclusions.

Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.

In discussing the book, Justice Stevens defended the promise of the Supreme Court’s 1976 decisions reinstating the death penalty even as he detailed the ways in which he said that promise had been betrayed.

With the right procedural safeguards, Justice Stevens wrote, it would be possible to isolate the extremely serious crimes for which death is warranted. But he said the Supreme Court had instead systematically dismantled those safeguards.

Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.

That's a wonderful introduction to this must-read.  "On the Death Sentence," is Justice Stevens' essay in the current issue of the New York Review of Books.  Here's the beginning:

David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.” Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences.

Describing his study, Garland explains:

When I talk to people about my book on capital punishment, the first thing they inevitably ask is, “Is your book for it or against it?” The answer, I tell them, is neither.

In fact, despite its ostensible amorality, his work makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.

His explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York. Some of his eminently readable prose reminds me of Alexis de Tocqueville’s nineteenth-century narrative about his visit to America; it has the objective, thought-provoking quality of an astute observer rather than that of an interested participant in American politics.

As is typical of many Supreme Court opinions rejecting legal arguments advanced by defendants in capital cases, Garland’s prologue begins with a detailed description of a horrible crime that will persuade many readers that the defendant not only deserves the death penalty but also should be subjected to the kind of torture that was common in sixteenth-century England. Garland also describes such torture in detail. This “emotional appeal” of the death penalty, Garland declares, is an important topic in his study.

Earlier coverage of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland, is in this post.

Death Penalty Contradictions

That's the title of a post by Scott Christianson at the Washington Post Political Bookworm blog.  He's also the author of The Last Gasp: The Rise and Fall of the American Gas Chamber, published earlier this year.

Americans do not see themselves as blood-thirsty, cruel or punitive people. An ethos of exceptionalism coats their wars and punishments with divine blessing.

Yet America’s enduring use of the death penalty — the United States is one of the few Western countries that still resort to executions — and the fact that it imprisons more of its citizens than any other, stands in stark contrast.

The contradictions inherent in America’s naïve self-image are exemplified in the 20th-century history of the rise and fall of the gas chamber.

And:

In 1994, a U.S. district court held that execution by lethal gas was so egregious that it violated the constitutional ban against cruel and unusual punishments.

But the decline of lethal gas didn’t end capital punishment here. By then a newer, “better” method of execution had been instituted. In place of gassing or electrocution, most states adopted “medicalized” lethal injection.

Although most advanced nations have outlawed the death penalty, several states and the U.S. government continue to execute selected criminals by needle.
Following our example, the world’s leading executioner — China — has also begun employing lethal injection on a large but undisclosed scale, giving the method new life.

But lethal injection is coming under increasing fire as a flawed method, prompting many observers to wonder when Americans will discard it too for another technology.

In a country that wages wars while hiding war’s costs, and which increasingly relies on drones to do its killing (as if human beings are not responsible for war’s deadly destruction), “more advanced” and “humane” methods of execution hold special appeal.

More from Christianson begins with the post, "A Notorious Nevada First."

North Carolina: Murders Down, Death Sentences Down

"On the decline: murders and death sentences," is the title of an OpEd by Frank R. Baumgartner.  He's a professor of political science at UNC-Chapel Hill.  It's a must-read:

Recently in several parts of North Carolina potential voters received fliers produced by the N.C. Republican Executive Committee charging that Democratic votes for the Racial Justice Act could lead to the immediate parole of death row inmates, allowing them to move into "your neighborhood," thanks to "ultra-liberal" members of the legislature such as Rep. Hugh Holliman.

In fact, the only "remedy" a death row inmate would be eligible for if a state court did indeed find racial bias affected the outcome of his case would be to see his death sentence changed to life without the possibility of parole.

Even more surprising, perhaps, is that the committee singled out the House majority leader for his vote; Holliman's own daughter was murdered in 1985 and he supports the death penalty.

Crime is always an emotional subject and in an election period appearing "tough on crime" can seem politically expedient. But certainly we should be careful with the facts as well.

North Carolina has not executed anyone since 2006. Some of the "tough on crime" voices claim that when executions are halted murder rates will increase, but as it turns out, the facts point in the opposite direction.

The state Department of Justice reported in July that murder rate declined by 19.1 percent in 2009 compared to 2008. The number of murders in 2009 was 482, and the rate per 100,000 population 5.5. These are the lowest numbers on record during the modern period of capital punishment.

In fact, the murder rate has been declining steadily since reaching its peak of 11.42 per 100,000 population in 1991. Following national trends, homicides have declined steadily since that time, reaching 8.5 per 100,000 in 1997, 6.8 in 2002 and generally staying in that area until 2008 when they declined sharply to the current figure of 5.5 in 2009.

Let us hope that the latest number is a continuation of a trend, not just a one-year fluke. But there is no mistaking the longer-term trend: Homicides in North Carolina, as in the nation, increased sharply from the early 1980s to the mid-1990s, and have been on a steady downward trend since then.

And:

North Carolina reached its peak in death sentences with 34 inmates condemned in 1995. These numbers declined regularly until they were in the single digits by 2002, and numbered just 4, 3, 1 and 2 from 2006 to 2009. No executions have taken place since 2006.

Are North Carolinians in greater danger because fewer executions and death sentences are taking place? A simple look at the numbers suggests otherwise. From 1995, death sentences and murder rates have declined in virtual lock-step, much to the surprise of those who would suggest that executions are a strong deterrent to violent crime. Data from our state suggest that we have paid no price in terms of violence as we have suspended executions after so many recent controversies relating to innocent men spending years on death row and concerns about the constitutionality of our execution method.

Baumgartner is co-author of The Decline of the Death Penalty and the Discovery of Innocence.  More on the book, here.  You can order it from Amazon. Still more from Baumgartner, here.

More Book News

Yesterday's Washington Post carried, "Book review: 'Stay of Execution: Saving the Death Penalty from Itself' by Charles Lane."  The review is written by Seth Stern, co-author of the recently published, Justice Brennan: Liberal Champion.

Washington Post editorial writer Charles Lane succinctly makes the case in this slim volume for shrinking the death penalty in order to save it. The Supreme Court has pruned around the edges in recent years, barring capital punishment for offenders who are mentally retarded or were juveniles at the time they committed the crime. But Lane argues that state legislators and Congress should now take the lead in ensuring capital punishment is reserved for "the worst of the worst" crimes.

He would limit the death penalty to acts of genocide, terrorism and the most heinous pre-meditated murders, such as those involving torture and rape, while excluding single murders committed in the course of more common felonies, such as robberies. Lane would also centralize state decision-making about who gets charged with capital crimes. He is not too concerned about alleged racial bias or executing the innocent, neither of which he says is as large or ineradicable a problem as foes insist. Rather, he is troubled most about the inconsistent way capital punishment is applied.

Related posts are in the books index.

Why the Death Penalty Still Exists in the US

That's the title of a book review of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland, in today's Boston Globe.  The review is subtitled, "Author ties the practice to slavery, racism," and is written by Globe correspondent Kenneth J. Cooper.

Why does the United States, alone among Western democracies, still have the death penalty? It’s not a new question, but David Garland, a distinguished professor of law and sociology at New York University, provides fresh answers from a multilayered analysis.

In a review of several centuries of the death penalty, Garland shows it has passed through the same phases in the United States and Europe. Executions have evolved from gruesome, public displays of governmental power and impassioned expressions of revenge to more humane methods implemented in an orderly fashion behind prison walls.

Garland finds the death penalty’s evolution has been shaped by the emergence of thought that values individuals, including the convicted; a bourgeois refinement that recoils at bloody scenes; and a penal system that has made executions as a matter of punishment, not sovereign will.

What then accounts for the persistence of the death penalty laws on the books of 35 states and the federal government?

The title hints at the most provocative part of Garland’s answer. In American history, the “peculiar institution’’ is slavery. Anyone who thinks its vestiges were wiped out by the Emancipation Proclamation or civil rights laws should read this book and think again.

Until the 1970s, the United States and Europe were headed toward abolishing the death penalty, which other Western nations had accomplished by the 1980s. In Europe, abolition occurred through acts of one-party parliamentary systems or decrees from constitutional courts, even if public opinion favored the death penalty.

In 1972, the Supreme Court came close to doing likewise when it ruled existing death penalty statutes unconstitutional. That decision was the outcome of a campaign by the NAACP Legal Defense Fund, which built on arguments that executions in Southern states amounted to “legal lynchings’’ of black men who, for instance, were the only defendants receiving death sentences for rape (of white women).

The moment of abolition was near, but slipped away. Majority public opinion shifted from opposing capital punishment to supporting it. Garland attributes the change to a reaction that cast the death penalty as “a litmus test in the politics of crime control, a powerful symbol of states’ rights, and a prominent part of a conservative backlash against civil rights.’’ Racism, he notes, was encoded in all three.

The Harvard Press Typepad site featured the post, "America's Death Penalty as Strange Social Fact," last month.

In Peculiar Institution: America’s Death Penalty in an Age of Abolition, David Garland explains how capital punishment has persisted in the United States after being outlawed in all other Western nations. The endurance, he says, stems from the manner in which the American death penalty has come to bear the distinctive hallmarks of America’s political institutions and cultural conflicts. Below, Professor Garland outlines his anthropological approach to the topic and explains the implications of his book’s title. David Garland is Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University.  Peculiar Institution is new this month.     

-----

When I talk to people about my book on capital punishment, the first thing they invariably ask is, “Is your book for it or against it?” The answer, I tell them, is neither. 

In its discussion of America’s death penalty, Peculiar Institution diverges from the familiar cultural script that shapes most of our conversation. Instead of treating capital punishment as a moral dilemma to be debated, a policy problem to be resolved, or a constitutional question to be settled, the book approaches the institution as a strange social fact that stands in need of explanation.

And:

The second thing my interlocutors invariably ask is: “Why is the book entitled Peculiar Institution?” After all, isn’t the death penalty a familiar American institution that everyone knows? What is “peculiar” about that? And occasionally someone will ask if “peculiar institution” isn’t the name that southerners used to give to the institution of racialized slavery and which Kenneth Stampp memorably described in his classic book of that name? 

Here is what I reply: 

The death penalty is certainly familiar in the US, particularly in the southern states where most executions now take place. But in the UK where I grew up, and in the rest of the western world, capital punishment has long since been abolished and is widely regarded as a violation of human rights. Europe became a death penalty-free zone in 1981 when France finally dismantled its guillotine and in the years since, membership of the European Union has come to be conditioned upon abolishing the death penalty. 

And, in any case, not every US region embraces the death penalty and thinks of it as a traditional practice.

A hat tip to Huffington Post for digesting the Harvard Press post.  Related posts are in the books and race indexes.

A Notorious Nevada First

Scott Christianson writes, "The United States' first gas-chamber execution occured in Carson City on February 8, 1924," for the November/December issue of Nevada Magazine.

Early one chilly Friday morning, February 8, 1924, national attention briefly focused on the hard-rock state prison at Carson City.

In the institution’s former barbershop, guards nervously strapped a frightened Chinese convict into a crude wooden chair and exited the chamber. Outside the building, dozens of curious witnesses peered through the fogged windows in order to catch a glimpse of what was about to happen.

Although the state’s population numbered less than 80,000, Nevada’s reputation as a social laboratory was not limited to quickie divorce and gambling.

Gee Jon, 29, was slated to become the first convicted murderer to be put to death under Nevada’s newly enacted Humane Execution Law and the first person in the world to be legally executed by lethal gas.

Implemented as an alternative to grisly hanging, gassing was supposed to end life quickly and painlessly. Its advocates included leaders of the chemical industry, the U.S. Army’s Chemical Warfare Service, proponents of eugenics (the pseudo-science of racial purification), and progressive reformers.

And:

In 1994, a federal district court found that lethal-gas execution violates the U.S. Constitution’s ban on cruel and unusual punishment. The ruling was upheld.

The gas chambers at Carson City and other American prisons were eventually converted to lethal injection chambers or shut down altogether. What had originally been intended as a humane and progressive reform was abandoned 75 years after it was introduced.

Today, Jon’s unmarked grave lies behind the prison wall among the rocky dirt and sagebrush–a reminder of one of Nevada’s thornier milestones in 20th-century history.

There's more in Christianson's book, The Last Gasp: The Rise and Fall of the American Gas Chamber, published earlier this year; earlier coverage begins here.