Not "Excruiating" Enough

Marty Lederman of Balkinization links to an NPR broadcast on torture. It quotes Harvard Law Professor (and noted civil rights zealot) Alan Dershowitz as saying

"When you torture somebody to death--that is, when you kill somebody and use grave pain to aggravate the killing of that person--everybody would acknowledge that’s torture. But placing a sterilized needle under somebody’s fingernails for fifteen minutes, causing excruciating pain but no permanent physical damage--is that torture?"

As Lederman notes, yes, it is torture, you dolt.

"Just for the record: Even under the constricted definition of "torture" in current U.S. law, intentionally causing "excruiating" (i.e., severe) pain to a person in one's custody is, unequivocally, torture, and is a felony under all circumstances. Perhaps it's open to argument whether that law should be changed. But I don't really see how there's any ambiguity about whether that technique is, in fact, "torture" as things now stand."

I'm very disappointed in Prof. Dershowitz. It is sad to see such a zealous defender of American Civil Liberties seeking to whitewash such practices by questioning whether they even rise to the level of "torture." To be fair, Lederman points out that Dershowitz wants to allow torture "because as an empirical matter the U.S. does and will continue to use torture as a technique, the law should expressly indicate when and under what circumstances it is to be permitted, rather than purporting to categorically proscribe it." Whether or not pervasive lawbreaking by our government means we should just change the laws that restrain them remains to be justified.

Judging a debate tournament this weekend. Be back Saturday night.

Innocence Lost?

CNN reports on the execution of a Jimmy Ray Slaughter, sentenced to death for the 1991 murder of a women and her daughter. Slaughter proclaimed his innocence until the moment of his death, and submitted himself to a new test by neuroscientist Larry Farwell called "brain fingerprinting." The test is relatively new and unproven, but its practitioners say its accurate (see the article for details on how it works). The test results indicated that Slaughter did not commit the crime, however, the Oklahoma Pardon and Parole Board refused to grant him clemency.

I don't know if Brain Fingerprinting is accurate or not. But I remain disturbed by the execution of someone who appeared to have at least a strong case of innocence. This is yet another case which casts doubt upon the entire death penalty enterprise and shows how our system appears agnostic to even credible claims of innocence by the condemned.

Death by Laughter

Legal Fiction seems to be on a snark run. But he is quite good at it.

Rolling Through California

A California Court has now ruled that the state law banning homosexual marriage violates the state constitution. The case seems fine, nothing that stands out too much (although it does do a nice job analyzing old marital law precedent and articulating why it does not apply here). Rather than going into yet another analysis of why I think this decision is right, I'll just refer everybody to my treatise on the subject.

Blogging might be on a slightly more relaxed schedule for a few days. I just finished an exhausting term, and am looking forward to a nice, easy-going spring break. That isn't to say I'll never post, but I might be a bit quieter than normal. Look for a roaring return at least within a week.

Double Standard

Nuts and Boalts notes that the US is pulling out of the enforcement part of the Vienna Consular Treaty. Basically, that's the one that guarantees foreign nationals arrested for crimes in the US are granted the right to contact and consult their embassies in the US. The move was prompted by ongoing developments in the Medellin v. Dretke case, where the ICJ held that the US violated the treaty by, well, not granting Medellin access to his embassy before sentencing him to death (see this post in specific and the SCOTUS Blog in general to play catch up, if need be).

N+B makes the rather cliched argument "imagine if an American couple in China were tried and executed without the knowledge of the US embassy...why that'd be outrageous, violation of human rights, blah blah blah self-righteous bull shit." The normal response to that analysis (which is made in response to any number of situations) is that the US is qualitatively different from the country in question. For example, one arguing that the Iraq war was unjustified because "imagine if Syria invaded Israel in response to 'WMD's' and 'violations of international law,' we'd be aghast!" doesn't hold up because the situations are not even comparable. The US is trying to depose a brutal dictator and bring democracy to an oppressed people. Syria would be trying to overthrow an established democracy and, if past acts hold true, would engage in the mass slaughter of innocents. That alone makes the analogy invalid.

However, in this case, the argument actually holds water. Why? Because our Death Penalty system is so broken and dysfunctional that one cannot claim that America is "special" in righteousness. The US death penalty process is plagued by race and class biased, ridiculously disparate based on geography, and otherwise "wantonly and freakishly imposed." There are innumerable examples of absolutely abysmal processes that have been ignored or endorsed in the process of slamming criminals to execution. Simply put, whereas nobody can really be "outraged" that the US is trying to bring democracy to Iraq, people have a very real right to be outrageous that their citizens run the risk of being subjected to the roulette wheel that has become the American Criminal Justice system. And the very fact that this is true should give us all pause as a nation.