A Different Way to Decide on Capital Cases

This is the abstract from a law review article that everyone should read and think about.

Its URL is:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457715#

You are able to download the entire the entire paper without charge from the page where the abstract is located. Here is the abstract:

Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty

Adam M. Gershowitz
University of Houston Law Center



Vanderbilt Law Review, Vol. 62, 2010
U of Houston Law Center No. 2009-A-19

Abstract:
In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense. Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system. All aspects of capital cases - charging, trial, appeal, and everything in between - can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.

Keywords: death penalty, capital punishment, arbitrariness, geography, county, counties

Accepted Paper Series

Date posted: August 20, 2009 ; Last revised: August 25, 2009

Suggested Citation

Gershowitz, Adam M.,Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty(August 19, 2009). Vanderbilt Law Review, Vol. 62, 2010; U of Houston Law Center No. 2009-A-19. Available at SSRN: http://ssrn.com/abstract=1457715

Is decriminalization the wave of the future?

Today Argentina announced that it would decriminalize small-scale use of marijuana.

Mexico announced decriminaliation of small amounts of drugs within the past week and Columbia has also followed suit. Brazil and Ecuador are considering taking similar steps.

Obviously this will free law enforcement to spend its resources on drug dealers and hopefully free up some money for treatment for addicts. But will that really happen?

The United States Drug Enforcement Agency published a paper in 2003 giving reasons why this should not occur in the United States. But with a weak economy and states and other government branches looking at ways to conserve resources and cut expenses, the drug decriminalization issue will surely come up again.

There are definitely pros and cons related to this issue and it is important to give consideration to both before stating an inflexible opinion. Methamphedimines appear to be a much larger problem than marijuana smoking these days.

States are cutting funding for many addiction programs and it becomes increasing apparent that decriminalization arguments will be heard in our country. As citizens we need to be informed about issues and take the time to share our opinions with our elected representatives.

Texting and email as evidence in court

An article in today's New York Times is about the fact that France

now allows email and text messages to be used in family court. The

article goes on to say that these types of evidence are acceptable to be

used in criminal courts in France already.

The last line of the article states that text messages are allowed as

evidence in courts in the United States so long as authenticity is

established.

Miranda warnings state that what you say (during interrogation) can

be used against you in a court of law. Now the warning to all is what

you text can be used against you in a court of law. There are a proliferration

of new laws and proposed laws that will cover cycber harassment,

bullying, threats, and a host of other illegal actions.

Twittering pages can easily be saved so they would be another potential

source of evidence.

Time to remember to think before you write, post, or leave voicemail.

Hard to Believe but True

Ex-Convicts are looking to sue over what

they perceive to be unfair or unjust conditions of release.

This Wall Street Journal article explains the problems

that judges face in trying to protect the public while

not making it impossible for the felon to be

rehabilitated.

At first glance one thinks, this is insane. If they do

not like the conditions of release, they can stay in

prison and finish every last minute of the original

sentence. But when giving it some thought, one

begins to realize that there are potential problems

that really do need to be considered.

Old Brinks Truck Used to Deter Crime

This article from the Wall Street Journal is truly a must read.

Peoria police purchased an old Brinks armored truck and

painted it on four sides stating

PEORIA POLICE Nuisance Property Surveillance Vehicle."

It is parked in front of houses where there have been complaints

of drugs, excessive noise, and other quality of life issues.

Its effectiveness is off the charts. There is a waiting list for

places to park it.

The article aslo features a short video.

Scalia says Constitution Does Not Forbid Execution of Innocent

An article today reported on a most unusual order from

the United States Supreme Court during its recess.

"The Supreme Court, over two Justices’ dissents, on

Monday ordered a federal judge in Georgia to consider

and rule on the claim of innocence in the murder case

against Troy Anthony Davis (In re Davis, 08-1443)

The Court told the District Court to “receive testimony

and make findings of fact as to whether evidence

that could have been obtained at the time of trial clearly

establishes [Davis'] innocence.” His original trial was

18 years ago.

"The action was highly unusual, because Davis had

filed what is called an original writ of habeas corpus

— that is, a plea for his release, filed directly in the

Supreme Court rather than in lower courts.

Such claims rarely succeed. Justice Scalia noted

in his dissent that the Court had not taken a

similar step “in nearly 50 years.”

Scalia also wrote in his dissent: This Court has

never held that the Constitution forbids the execution

of a convicted defendant who has had a full and

fair trial but is later able to convince a habeas court

that he is “actually” innocent. Quite to the

contrary, we have repeatedly left that question

unresolved, while expressing considerable

doubt that any claim based on alleged

“actual innocence” is constitutionally cognizable.

The Constitution does not talk about executions

at all; the 8th Amendment simply prohibits

cruel and unusual punishments. It certainly

could be forcefully argued that executing an

innocent was in fact cruel and would not be

acceptable to the vast majority of the population.

Juvenile Detention Equals Recidivism

Study: Juvenile Detention Worsens Behavior Problems

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Researchers have found that rather than rehabilitating young delinquents,

juvenile detention - which lumps troubled kids in with other troubled kids

- appeared to worsen their behavior problems, reports Time. Compared

with other kids with a similar history of bad behavior, those who entered

the juvenile-justice system were nearly seven times more likely to be

arrested for crimes as adults. And those who ended up being sentenced

to juvenile prison were 37 times more likely to be arrested again as adults.

It is truly about time

The Los Angeles Times reports that the state of Washington is

revisiting cases involving life without parole for non-violent crimes.

Many of these are multiple time offenders who did not use

weapons or commit serious injury but because of the
multiple offenses fell under the three strikes laws.

"In May, Gov. Chris Gregoire signed Dozier's appeal for

clemency, making him the first three-strikes lifer in

the nation to be pardoned. He had served 15 years and
his last offense involved purse-snatching. The article is

about his release.

The state's Pardons and Clemency Board in June recommended

freeing Al-Kareem Shadeed, 39, and Michael Bridges, 47, who

both had been sentenced to life without parole in the mid-1990s

for stealing wallets.

There is no question in my mind that those who recidivate

multiple times need long term punishment, but life without

parole seems excessive and much too costly for the public.

Life Without Parole should be limited to specific capital offenses

or to those who commit violent offenses multiple times, especially

if the victim is a child or an elderly person.

Corrections is taking too large a bite out of limited state resources and in
many cases is not having positive results.

Juveniles Suffer Badly with Budget Cuts

It is a given that when revenue decreases, expenses must be pared
to keep the budget balanced. The problem with many who are doing
the cutting is not seeing the consequences which can be expected
from the budget cuts.

Many juveniles who run afoul of the law have mental illness problems.
Instead of being able to send these juveniles into intensive mental
health treatment centers, they are being sent into correctional
institutions because the alternative has been cut out of the budget.

An article in today's New York Times discusses the issue and the
problems and dangers that are resulting.

Restorative Justice and Steroids

Today's Los Angeles Times has an article in the sports section
that suggests the use of restorative justice for athletes
who have used and been revealed as having used drugs.

Before you raise your eyebrows and question my sanity in
bringing this to your attention, the writer suggests that
these athletes need to see the harm that they did and
take responsibility for their actions.

What caught my attention was the reference to the
South African Truth and Reconciliation Commission
which brought the true picture of the apartheid into
focus and caused victims and victimizers to work
together to find a solution so that it could not
happen again. As the author says, without it we
would not have the World Cup Soccer Event in
South Africa next year.

Since everything else we have tried does not
appear to have worked, why not give this a
chance? It would simply be an option to
more conventional types of punishment.

Partial Pardons but still must register as sex offenders

Three men, sailors stationed in Virginia, who were convicted in 1997
of rape and murder have been partially
pardoned by the Governor of Virginia. Some one else confessed to
the crime and there was
no forensic evidence to tie the men to the victim.

The men claimed that the confessions were coerced.

Because it is not a full pardon, they must register as
sex offenders and cannot go home because the families
live in restricted areas.

Read the article
and see if you agree with the reasoning behind not
granting a full pardon.

Federal Court Orders California to Make Prison Changes

The 9th Circuit Court of Appeals has ordered California to lower its prison inmate count
over the next two years by 27%. This specifically does not mean releasing inmates
into the community long before their sentences are served.

The article with details about the required changes can be read online.

California has a major budget shortfall and a prison system whose health care provisions
are totally inadequate and where prisoner's illnesses are not seen to in a timely manner
and where there have been reported deaths tied to the failure of the prison system itself.

Many years ago the federal courts oversaw the Texas prison system following a lawsuit by
a prisoner. The Texas prison system of today bears little resemblance, save for the
physical structures themselves, to the correctional system of the early 1970s.

Violent crime rate is down, but few believe it

With the economy alarmingly troublesome, many criminologists were saying
that the crime rate would escalate. In fact following the Police Executive
Research Forum gathering of police chiefs in 2005, a report was published
in 2006 called the Gathering Storm, which warned that violent crime was
on the rise. In an article published
in the New York Times today, the title says it all: The Real Murder Mystery?
It's the Low Crime Rate.

Police chiefs from major cities gathered at the forum concurred that
violent crime was rising and would escalate very quickly. But today
we read that "from New York to Los Angeles to Madison, Wis., major
crimes, violent or not, are down between 7 percent and 22 percent
over the same period last year. In Chicago, the number of homicides
dropped 12 percent. In Charlotte, N.C., hard hit by the banking crisis,
that total fell an astounding 38 percent. It is too soon to conclude that
crime will decline throughout the recession, and the new numbers, which
come from standardized reports that police departments send to the F.B.I.,
have yet to be made into a national measure. But crime was supposed to
go up, not sharply down."

Reading the actual report that was published after the Violent Crime Summit
met in 2005, it is worth noting that reference is given that crime rates had
declined or remained flat for a number of years. Putting things in perspective,
if there have been no homicides for two years and then there is a homicide,
can we infer that crime rates are rising? or can we only state categorically
that there was a homicide and see if it is aberrational or indicative of an
upward swing.

Experts are puzzled and have no explanation nor a reliable predictor
of future trends. Improved policing methods and innovation have no
doubt played a role, but the exact extent to which police can take
credit is an unknown.

One can only hope that whatever is working to cause the rates to drop
will continue to do so.

Theories will abound and so will extensive research by criminologists.
But predicting human behavior is not open to reliable scientific exploration.
Since one does not know the group that will definitively commit a violent
crime, scientific research, complete with control groups, and variables
will probably not prove to be definitive.

We need to watch the official reports from the UCR and NCVS and see
if in fact the trend continues unabated.

Plea Bargain Rejected

Two former Pennsylvania judges who pleaded guilty to accepting kickbacks in exchange for sending juveniles to privately owned detentions centers had their plea bargains rejected by the judge who is hearing their case.

The two had agreed to serve 87 months in prison as part of the agreement. However in the presentencing report it was stated that neither man was showing remorse and one was considered to be obstructing justice. The article also says that the 87 months is well below the sentencing guidelines which has sentences up a maximum term of 25 years and a 1/4 million dollar fine along with intensive supervision for up to 5 years after they were released from prison.

There are currently civil suits against the two judges by youths who were sentenced to these facilities, some in cases where the offense was not serious and probation would have been the norm.