Gerrymandering as Constitutional Entitlement

I haven't had the chance to read the Supreme Court's decision today in Alexander v. South Carolina, where the 6-3 Republican majority radically circumscribed the ability to bring racial gerrymandering claims in circumstances where (as often will be the case) there is significant overlap between racial and partisan gerrymandering. I was struck, however, by Nicholas Stephanopolous' analysis which suggests the Court's new rule is functionally that a racial gerrymandering plaintiff must "submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering," In other words, if an alleged racial gerrymander results in a 6-1 GOP/Democratic House map, plaintiffs must show that there is an non-racially gerrymandered map that also yields that same partisan split.

Alexander is the latest case to emerge out of the gibberish that is Rucho, and the impossibility of disentangling racial gerrymandering (nominally unconstitutional) from partisan gerrymandering (effectively permissible) under conditions of extreme racial polarization. Where there is near-complete overlap between "Black voters" and "Democratic voters", how does one decide if a congressional map which packs all the Black/Democratic voters into a single misshapen district is a "racial" or a "partisan" gerrymander? 

The logic behind the majority position in Alexander is that if one can't create a map that yields the same partisan end goal as the map being challenged, that suggests that the status quo map was chosen not for racial reasons, but rather because it better effectuated the goal of partisan gerrymandering that would otherwise be impossible to achieve. "We didn't draw the districts this way because it drew all the Black voters into a single district; we drew them this way because it was the only way to get the desired political slant."

But this gets things exactly backwards. Even assuming that partisan gerrymandering is constitutional (and it's worth noting that technically, Rucho doesn't say that -- it says it is a political gerrymandering claims are non-justiciable political questions, which is not the same thing), it is not a constitutional requirement that states must be allowed to do it under any circumstance. The more natural conclusion is that if you can't successfully engage in a partisan gerrymander without engaging in racial gerrymandering, then sorry, you don't get to partisan gerrymander (or at least don't get to do so to the same extent). The rule against racial gerrymandering places a limit on the ability to partisan gerrymander.

The majority's rule, by contrast, treats partisan gerrymandering as a constitutional entitlement. Any constitutional rule or principle which disenables a state from engaging in partisan gerrymandering to the fullest extent it desires must yield. Otherwise clearly impermissible and unconstitutional conduct becomes licit if it is the only way a state can implement its God-given right to gerrymander.

This is not the first time the Court has made this mistake. I flagged a similar error in the Court's Glossip opinion relating to Eighth Amendment challenges to state execution protocols. The Court there said that a prisoner challenging an execution protocol as cruel and unusual punishment cannot prevail simply by showing that the state's procedure is barbarous or tantamount to torture. The prisoner must also identify a valid execution protocol, accessible to the state, that he would deem permissible. What happens if there is no such protocol -- if all the methodologies available to the state would be agonizingly painful? The logic of Glossip is that in that case, the state is allowed to torture prisoners to death, because the state simply has to be allowed to execute people.

In both cases, the Court is making a basic mistake, conflating constitutional permissibility with constitutional entitlement. It's obvious when you think about it. The state is permitted to try and solve crimes. The state is not allowed to violate the Fourth Amendment, even if doing so would allow it to solve more crimes than if the Fourth Amendment was not enforced. If the state said that, for every claimed Fourth Amendment violation, a defendant must provide an alternative policing protocol that would allow it to solve as many crimes as if it were permitted to violate the Fourth Amendment freely, and if he can't, then the Fourth Amendment can't be enforced, that would be absurd. The Fourth Amendment places a limit on the ability of the state to solve crimes.

So too here. It might (for sake of argument) be true that capital punishment or partisan gerrymandering are not unconstitutional in the abstract. But that does not imply that in practice there must be a constitutionally-viable pathway to do either of these things. If the state can't figure out a way to conduct an execution that doesn't torture people to death, then it can't execute people. If the state can't figure out a way to partisan gerrymander without engaging in a racial gerrymander, then it doesn't get to do the racial gerrymander. That should be simple. But the Court has elevated the already dubious position that the state is permitted to engage in partisan gerrymandering, or the (somewhat less dubious) position that the state is permitted to provide for capital punishment, and converted these practices into constitutional entitlements. That's not reflective of law; that's reflective of the Court's fanatical dedication to these sorts of policies compelling it to erase the law.

The Cruelty is the Point: SCOTUS Edition

In my roundup the other day, I included the case of an Muslim death row inmate in Alabama who had received a stay of execution by the 11th Circuit because the state was refusing to let his Imam be with him during his execution (the state would have allowed a Christian chaplain, who was a prison employee, in the room). I noted that Alabama appealing the stay -- but I almost didn't bother, since in my head I figured there was no chance the Supreme Court would get involved. Why would they? The stay was at most a minor inconvenience, the Establishment Clause problem seemed obvious and extreme, and there was no pressing issue here that demanded high court intervention to stop the case from proceeding at its own pace.

Shows what I know. In a 5-4 decision (over a brutal Kagan dissent), the Supreme Court vacated the stay and allowed the execution to proceed. The inmate had filed his challenge too late -- not that it was actually barred, mind you, the Court just decided of its own discretion that the inmate was dilatory and that therefore it wouldn't allow the 11th Circuit to hear the case (never mind that, based on the record available, it seems that the inmate filed his case in a perfectly timely fashion).

I have to confess, this rattled me -- more than I would have anticipated -- and I'm clearly not the only one. There are times when courts issue rulings I disagree with, and there are times that courts -- even the Supreme Court, with near-infinite discretion over its own docket -- are effectively compelled to step in and issue a decision in fraught circumstances where some people are going to be displeased with the outcome.

But this wasn't one of those cases. There was no need for the Court to step in here; indeed, it was a shockingly aggressive intervention in a case where the balance of equities seemed to run decisively in favor of the inmate. In this context, the Court's decision -- and the meager faux-technical rationale behind (that doesn't even seem to stand on its own weight) -- feels worse than wrong. It feels petty. It feels mean-spirited, and it feels cruel. And while there are many times where I disagree with this Court on important issues, it is rare that I've felt that they were cruel.

But that's what this decision was. I don't have a philosophical objection to the death penalty (though I have a welter of objections to how it is administered in practice). But I've always felt very strongly that it is important to treat even condemned inmates with respect and dignity -- that capital punishment does not license dehumanization. We're already locking them in a cage and then killing them, visiting further indignities upon them seems gratuitous. So whenever I see rabble-rousers start targeting "last meals", or a prisoner's few hours of "recreation time" because they're prisoners, they're the worst of the worst, I blanch. Such minor nods towards the continued humanity of the condemned are deeply rooted in our nation's history and tradition; they are part of what separates a justice system from unchannelled and unconstrained vengeance.

It should be needless to say that allowing a man facing execution whatever comfort and support he might get from a pastor of his faith is also part of that tradition: it is cruel -- obviously and needlessly -- to deny him even that much. Indeed, the obviousness of this point is why Alabama has a (Christian)  chaplain on staff and available to begin with. So to deny that small comfort to an inmate because of his Muslim faith represents such a striking departure from tradition and practice that it is hard not to see it as motivated by religious animus -- that Muslims don't deserve whatever comfort and pastoral care they might receive from their false clerics. Particularly in the wake of the Muslim ban decision, one could forgive those who now seriously wonder if the basic human equality of the Muslim community is acknowledged at the highest court in our land.

This decision is not a "great" decision. It sets no sweeping precedent, it's (nominal) basis on the alleged "delay" in filing means it doesn't even constrain future cases brought under similar facts. But in a way, its insignificance makes it worse rather than better. This was not a great case. It was a petty case. And the Court's pettiness in interceding is, in its way, far more indicting of its character than many far more jurisprudentially consequential rulings.

Fraud Squad! Roundup

In a meeting, I got a phone call from my bank about potentially fraudulent transactions on my credit card. Had I recently ordered $50 worth of fast food pizza? No, I hadn't -- and so the account is frozen, and presumably the charges will be reversed.

An hour later, upon returning to my desk, I had the bizarre joy of seeing a confirmation from Domino's promising me that my "pizza is on the way [to Houston, Texas]!"

Anyway, long story short: I'm getting pizza for dinner tonight.

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Jenny Singer of the Forward interviews Young Gravy, a Black Jewish rapper (and GW student). It's a really interesting and worth your time (I'm saying that not just because I think I played a role in putting the interview together!).

I think I missed this when it came out, but a Texas court struck down the Indian Child Welfare Act's adoption rules this past fall, saying that act's preferences for Indian children to stay with Indian families was racially discriminatory against non-Indians. The Judge, incidentally, was Reed O'Connor -- the same guy who just struck down Obamacare. He's certainly setting himself up as the go-to-guy for tip-of-the-spear conservative judicial activism.

Alabama was all set to execute a Muslim inmate -- but refused to allow a Muslim chaplain to be present with him during the execution (they did offer a Christian chaplain, which unsurprisingly the inmate did not consider to be a satisfactory substitute). 11th Circuit stays the execution due to the "powerful Establishment Clause claim" (and plausible RLUIPA claim). Alabama is appealing to the Supreme Court.

A new poll finds that over half of Israeli Jews agree that the controversial "nation-state" law must be either abandoned outright or fixed to confirm the state's commitment to democratic equality for all citizens.

A Cameroonian official has apologized for threatening an ethnic minority group by comparing them to Jews in pre-WWII Germany, namely: "In Germany, there was a very rich community who wielded all economic power .... They (the Jews) were so arrogant that the German people were frustrated. Then one day, a certain Hitler came to power and put them in the gas chambers."

I have no takeaways from the Likud primaries except celebrating Oren Hazan's imminent departure from the Knesset. Goooood riddance.

Iraqi Jews commemorate family members who were "disappeared" by state secret police.

Things People Blame the Jews For, Volume XXXIII: Psychology

Dylann Roof, the White Supremacist terrorist who was just convicted of murdering nine at a Black church in Charleston, South Carolina, now faces sentencing. He could receive the death penalty. One thing he will not do in his penalty phase is call a mental health expert or otherwise present mental health evidence. Why not? Glad you asked:

Roof, 22, who is acting as his own attorney during the penalty phase of the trial, said in a handwritten note to the court that he “will not be calling mental health experts or presenting mental health evidence.”

While the note did not specify the reason, his journal, filed with racist and anti-Semitic rants, which was introduced as evidence during the trial, says he considers psychology a “Jewish invention.”

“It is a Jewish invention and does nothing but invent diseases and tell people they have problems when they don’t,” Roof wrote, according to reports including from the Associated Press.

Actually, this one I feel like has a pretty long pedigree -- dating back to Freud. I suppose I hadn't realized it was still a "thing". But if the conspiracy means that Roof is more likely to receive the punishment he deserves, I suppose I can let him maintain his delusions idiosyncratic appraisal of social scientific development for a little while longer.

Things People Blame the Jews For, Volume XXIII: Saudi Executions

Saudi Arabia recently executed a Shi'ite cleric (along with 46 other people), eliciting a strong protest from Iran. This isn't wholly surprising on the part of either party: Iran is a Shi'ite majority nation and Saudi Arabia has been on a bit of an execution roll this year. But what's, well, also not that surprising is who Iran cast the blame on.

In a strongly worded statement, the [Islamic Revolution Guards Corps] said Saudi Arabia's execution...was 'a Zionist conspiracy' to 'intensify sectarianism' among Shi'is and Sunnis.

Because when I think "places Jews have leverage over", I think Saudi Arabia.

What am I saying ... Jews have leverage over everyone. My mistake, carry on.

Executions and Their Alternatives

This past March, I commented on the Eighth Circuit's en banc decision in Zink v. Lombardi, which rejected a challenge to Missouri's execution protocol. My particular focus was on a strange statement offered by the dissent which said that, if the death penalty is constitutional in the abstract, it follows that there must be some form of execution which is constitutional as well. This, to me, clearly did not hold -- it is perfectly plausible to say that while the Constitution has no objection to capital punishment as such, it still must be the case that any particular form of execution must satisfy the demands of the Eighth Amendment -- and perhaps none will do so.

Of course, leave it to the Supreme Court to take an obvious truth and turn it on its head. Today, in Glossip v. Gross, the Court rejected a constitutional challenge to Oklahoma's lethal injection procedure. In doing so, it made one fateful and indefensible holding: the Court decided that a prisoner cannot solely show that the method of execution is excruciatingly painful, barbarous, even tantamount to torture. He must show it is all of those things compared to a "known and available alternative method of execution." In other words, just like the Eighth Circuit, the Supreme Court declares that there must be a legal form of execution (not just in theory, but "known and available" to the executing state). And as a consequence, the baseline for "cruel and unusual punishment" rests against the characteristics of the next-best alternative. If, as it turns out, all the methods seem to be brutal and inhumane in their application -- well, the Supreme Court just legalized torture.

There is irony here. For all of Justice Scalia's bleating in King v. Burwell about how the Supreme Court "is prepared to do whatever it takes to uphold and assist its favorites," that complaint would be far more appropriate if leveled here. The whole reason this "known and available alternatives" argument was an issue was because social movement actors have made it exceptionally difficult for states to access most varieties of execution drugs. If social circumstances dictate that otherwise lawful executions can't be carried out in a fashion concordant with constitutional demands, that would seem to be that (I explored a far more ambitious version of this hypothetical in my "perfect poison" story). But of course, that didn't satisfy the author of the Glossip opinion -- who complained at oral argument that this would represent a capitulation to the death penalty opponents' "guerrilla war" against capital punishment. So the doctrine stands in all of its cruel and unadorned glory: executions must be allowed. If that means subjecting human beings to "the chemical equivalent of being burned at the stake,"* so be it.

The Greater and the Lesser

Last week, the 8th Circuit ruled in an 8-3 en banc decision that a prisoner had not stated a viable claim against Missouri's lethal injection protocols. The Court also held (this time 7-4) that the prisoner had not stated a valid claim because his complaint only conceded in the abstract that alternative methods of execution were constitutional; he did not specifically say "X method of execution would be constitutional."

The dissenting opinion by Judge Bye begins as follows:

The constitutionality of the death penalty itself is not before us in this case, and we proceed on the assumption the death penalty is constitutional. While it follows there must be a constitutional means of carrying out a death sentence, it has not been determined that Missouri's current execution protocol is constitutional.

Is this true (at least as a matter of logic)? I'm inclined to think not. It is perfectly sensible to me the opinion that the death penalty is constitutional in the abstract -- there is no constitutional problem with the state taking a person's life for certain heinous crimes -- and that as it turns out there is no method for carrying that sentence out that satisfies various constitutional constraints. The former question is one of pure legal principle, but the latter is about particular factual assessments about, e.g., the amount of pain and suffering caused by various execution methods and the "evolving standards of decency" that cause our society to reject certain types of punishment as intolerable under the 8th Amendment. Indeed, hasn't this been the functional position of Jewish law: The death penalty is okay in the abstract, but the secondary rules surrounding it interact in such a way as to make it practically impossible to carry out?

It does not seem wrong to me that government might have a certain power in the abstract but that other constitutional constraints make the practical means of carrying that power out a null set. The problem with the dissenters' position (shared by the majority) is that it distorts constitutional doctrine. The constitutionality of any individual execution protocol is a distinct question from the abstract constitutionality of the death penalty. If an execution protocol fails whatever specific 8th Amendment doctrine we have, it does not matter whether we can envision another procedure that would alleviate these concerns.

Con Law I Roundup

I taught my first class of Constitutional Law today (thus, as one of my colleagues put it, making me officially a "professor of constitutional law"). I think it went well -- particularly the part where we had a vibrant discussion about the merits and demerits of what they did not know to be the North Korean constitution's equivalent of a bill of rights.

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In shocking, shocking news, new research shows that people aren't actually any more upset when decisions they dislike come from the courts rather than the legislature.

The tide has turned: opposing the Voting Rights Act may be the new GOP consensus position.

Buy Newt, get Palin along for the ride. What could be better?

Supreme Court blocks an Alabama execution of a man who missed an appeal deadline because, unbeknownst to him, all his attorneys had stopped representing him without telling anybody (the client, the courts, the family ... anyone at all, really). Scalia and Thomas dissented. Incidentally, the elite NYC law firm of Sullivan & Cromwell does not come off looking good in all of this.

Eugene Volokh asks a fair question, which is what critics of the "corporations have First Amendment rights" folks have to say about the actions of Google, et al, in vociferously protesting SOPA.

Massive protest by Ethiopian Jews against racism in Israel.

Cory Maye To Be Released

Former Mississippi death row inmate Cory Maye will be released shortly, after he and prosecutors agreed to a plea-deal that reduces his conviction to manslaughter, with a sentence of ten years (which he has already served).

Great congratulations to Radley Balko for getting this case on the radar screen, and also to my colleagues at Covington & Burling, which took up Maye's post-conviction defense.

Sunday Roundup: Landlord/Tenant Edition

Busy weekend. Our landlord is trying to sell our house, which isn't directly a problem for us -- our lease is unaffected -- except that the real estate agent wants the four of us to live in full "sell the house" mode (every room sparkling clean, willing to vacate at anytime for showings, etc.) for the indefinite future. We're quite willing to be helpful up to a point, perhaps a few days of glittering cleanliness, but we can't effectively vacate the house as law students on any random night (where exactly are we supposed to go in Hyde Park?). I assume they can't force us to do anything, so I think we're in a solid bargaining position -- but the idea of a conflict is stressful to me.

Okay, that was a longer introduction than I intended. Roundup!

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Should we keep "negro" as a census option?

South Carolina likens free lunch programs for impoverished children to feeding stray animals. Why? "Because they breed. You’re facilitating the problem if you give an animal or a person ample food supply. They will reproduce, especially ones that don’t think too much further than that."

Anti-Semitic incidents way up in 2009.

Israeli right-wing extremists call Rahm Emanuel a traitor to the Jewish people in response to his upcoming visit to the country.

Cuban and American doctors are cooperating to relieve the Haiti crisis.

Italian gay couple hunger strikes for marriage rights.

Hussein Ibish warns of the perils of certainty regarding the outcome of the Israeli/Palestinian conflict.

Pittsburgh police officers nearly beat a student to death for aggravated possession of Mountain Dew (now they're charging him with resisting arrest).

A judge charged with investigating Judge Sharon Keller's conduct in preventing the filing of a last-minute death penalty appeal has decided that fault mostly fell on the defense team, not the judge. He did find several instances of poor judgment on Keller's part, but recommended she receive no punishment. The report will be delivered to the Commission on Judicial Conduct, which can decide whether to accept, reject, or modify the recommendations.

ALI Abandons the Death Penalty

The American Law Institute -- perhaps the most influential organization in shaping the contours of American criminal law -- has officially decided to cease giving guidance on the death penalty, "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."

This is roughly in line with my position on the topic, which is that I don't have a problem with capital punishment in the abstract, but in its day-to-day application (outside truly exceptional circumstances) I have no confidence in how it is carried out. I think it is pretty clear that the constitution contemplates capital punishment, and there isn't any particularly strong grounds to label it "cruel and unusual" as an abstract matter -- but as applied in this country it simply is not working in a way consistent with our ethical and constitutional commitments.

A study commissioned by the institute said that decades of experience have proved that the system cannot reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment is plagued by racial disparities; is enormously expensive even as many defense lawyers are underpaid and some are incompetent; risks executing innocent people; and is undermined by the politics that come with judicial elections.

So yeah, that.

BRING HIM DOWN!

Fernando Belmontes was tried and convicted of murder in 1982, and sentenced to death. Three times, Judge Stephen Reinhardt of the Ninth Circuit has reversed his death sentence. And now, the Supreme Court has just reversed Judge Reinhardt for the third time and reinstated the death sentence.

I couldn't help but be reminded of this (the scene starting at 7:00)

Hurry While There's Still Time

The Washington Post's flubbed editorial saying that the Nobel Prize should have been awarded to Neda Agha-Soltan, the Iranian protester whose brutal murder by regime thugs was video-taped and became a rallying banner for the opposition, was certainly embarrassing (the Nobel Peace Prize cannot be awarded posthumously). On the other hand, Iran is set to put three election protesters to death in the near future, so maybe we could hurry and get them the Nobel Prize under the wire.

Or Else What?

CNN reports that the DRC has convicted two Norwegian men of espionage and murder, and is sentencing them to death. But that's not all! "The court also ordered the pair to pay $60 million in damages."

I feel like, having already handed down the death sentence, much of the judiciary's leverage has been lost. But that's just me.

Kill Keller's Career

Back in February, I blogged on Judge Sharon Keller, a member of the Texas' highest criminal court. Long story short, she refused a request to keep the clerk's office open for 20 minutes to file an appeal for a death row inmate scheduled to be executed that night. The delay was required because a) the Supreme Court had the day before released a decision radically altering the legal terrain upon which the execution rested and b) a computer crash had prevented the lawyers from filing the brief earlier. But Judge Keller wanted to go home on time, so she said no.

I mentioned at the time that I was skeptical Judge Keller would face any repercussions for her outrageous conduct. But perhaps I had too little faith in the Texas system (you'll have to forgive me). The state's Commission on Judicial Conduct is holding a special hearing to address charges she committed "willful or persistent conduct that cast public discredit on the judiciary, among other things." If found guilty, she could be stripped of her status as presiding judge or removed from the court entirely.

Davis Execution Stayed

The Atlanta Journal-Constitution reports that the Supreme Court has stayed Troy Davis' execution to allow him to present new evidence (over a dissent by Scalia and Thomas). I've written about the case here -- virtually all of the witnesses have since recanted, alleging the police intimidating them into saying what they wanted to hear (namely, that Davis is guilty). The prosecutors, for their part, say the high levels of recantations are themselves suspicious and raise the specter of guilt-tripping by groups like Amnesty International. It's an argument I do not find compelling, and this is a textbook case of why the death penalty just isn't working in American society.

UPDATE: Judging by these posts from Orin Kerr and Kent Scheidegger, the Court's move here was unusual bordering on unprecedented. My understanding was that "actual innocence", on its own, has never before been considered a valid ground for Habeas review -- there needs to be some sort of irregularity at trial to hang the hat on. Here, though, we might be seeing a rather significant turn in the Court's jurisprudence. Stay tuned.

Another Bit of Texas Mayham

The Faculty Lounge points me to a horrifying story involving Texas appellate court judge Sharon Keller. Basically, what happened was this: Michael Richards was on death row, about to be executed. But the day before his scheduled execution, the US Supreme Court accepted cert in Baze v. Rees, which threw into question whether lethal injection was "cruel and unusual punishment" under the 8th amendment. So Richards' attorneys spent all day crafting and filing an appeal -- and then their computer crashed.

The court was scheduled to close at 5 PM. So Richards attorneys went to Judge Keller, presiding judge of the Texas Court of Criminal Appeals, and asked if she would keep the court's clerk office open 20 minutes beyond closing time so they would have time to print and deliver their petition. Judge Keller refused to do so, even though she was not the judge assigned to Mr. Richards' case. Indeed, the judge who was assigned to the case was present in the court building, and would remain so along with other judges on the court who stayed well after 5 PM in anticipation of an appeal that never came (because it was not allowed to be filed). Judge Keller never consulted with any of the other judges.

Michael Richards was executed the next day.

After an ethics complaint against Judge Keller went nowhere, a Texas legislator has introduced impeachment proceedings against her. These likely will go nowhere either -- Judge Keller is a Republican, and so are the majority in the House and the Senate.

But her conduct was a gross abdication of judicial duty, one that displays a shocking indifference to justice and human life. She deserves to be punished -- even if that punishment can only come in the form of publicizing and memorializing her misdeeds.

Wilson Execution Stayed

The 11th Circuit has stayed the execution of Troy Wilson. I grappled with some of the issues surrounding Mr. Wilson's potential innocence here. Recall that the U.S. Supreme Court gave a stay to Mr. Wilson earlier, only to later reject his appeal. So don't get your hopes up.

Prosecutor Speaks in the Troy Davis Case

Former federal judge, now law professor Paul Cassell links to the prosecutor's account of what happened in the Troy Davis case. You may know about his case: After being convicted of murdering a police officer, Davis has been pursuing a new trial ever since seven of nine non-police witnesses against him recanted their testimony, basically saying they were coerced into giving their statements by the cops.

There's a lot of hand waving going on here, but basically the reliability of the recantations comes down to whether or not you think it is more likely that witnesses are subject to intimidation by police investigators, or by groups like Amnesty International investigating potential wrongful convictions. My default stance is to be suspicious of unrecorded police questioning in Black on White crimes in Georgia. The affadavits Amnesty provides are compelling to me because of their consistency -- they all give very similar accounts of police harassment, and come back to a consistent theme that the police wouldn't let the witnesses leave until they said what the police wanted to hear.

For his part, the prosecutor, Spencer Lawton, actually uses the 80% recantation rate as evidence in favor of collusion and manipulation. He raises the specter of anti-death penalty forces coming in, long after the event in question, and basically guilting the witnesses with the specter that their testimony may be putting an innocent man in prison. Is it possible you don't remember clearly? Are you sure that Davis is the shooter?

The problem with this defense is that it doesn't match up with the affidavits Amnesty actually obtained. They're not, by and large, based off fuzzy memories or unclear recollection of the events in question. They, nearly without exception, are premised off police intimidation to get certain testimony -- something unlikely to be that fuzzy and not premised off any difficulty in remembering the events of the murder. Lawton notes that the witnesses were questioned about this at trial and did not say anything about intimidation. But at trial the police threats (if they so happened) were likely to be fresh in the witnesses mind, and going against one's sworn statement raises the prospect of a perjury investigation (something which, if I were a sleazy cop, would be sure to remind my cowed witnesses of after they signed the document).

The other part of Lawton's argument, which is a bit more subtextual, is that the affidavits were acquired by groups with an anti-law and order agenda in general, who are motivated simply by blanket opposition to the death penalty. The problem is that Amnesty appears to have worked quite hard to acquire statements implicating another man in the crime. Opposition to the death penalty hardly seems consistent with trying to get another person convicted of capital murder (although they could hope that the new suspect would not get a death sentence).

All of this really just points back to my current, long-standing intuition about the death penalty. Our system is so badly broken that there is really no way that it can imposed in a fair and just manner, where we can be sufficiently assured of the defendant's guilt. When, for example, there isn't that essential trust that the police won't try and coerce testimony -- particularly when the victim was another officer -- it is simply impossible to evaluate the reliability of trial testimony in the face of future recantations. In such an environment, the death penalty cannot be justly put into practice.

Civil Rights Roundup: 10/14/08

Your daily dose of civil rights and related news

Among other problems, the language interpretation at Guantanamo Bay trials is awful.

Wyoming remains one of the few states without a hate crimes law.

The Tulsa World: Many Native Americans don't celebrate Columbus Day.

Civil rights leaders are worrying that a new agreement between Las Vegas officials and ICE will increase racial profiling and decrease the reporting of violent crime.

Working from the ground up: Increased success by local Black politicians is getting White voters used to Black leadership. See, e.g., my home of Montgomery County, which recently elected African-American Ike Leggett as our County Executive. Montgomery County is 65% White and only 15% Black.

The Supreme Court has cleared the way for Troy Wilson to be executed. Wilson, convicted of capital murder, became a cause for many death penalty opponents (or supporters who care about justice) because the vast majority of the witnesses against him have since recanted their testimony.

Gay couples in California worry it's now or never. What a sad position to be put in.

Are Georgia election officials illegally purging voters?

The war over Amendment 46 continues to rage in Colorado.