“Not arrogant enough to say who lives and dies– are you?”

Re-posting Texas defense attorney Paul Kennedy’s blog post on the death penalty:

“I was recently asked by a commenter what I thought was a “fair” sentence for someone convicted of killing another.

The gentleman seemed to believe that the death penalty was appropriate – at least in that particular case. I won’t put words in his mouth and assume that he supports the death penalty across the board.

I don’t know the answer to his question.

I do know, as I have pointed out before, that killing a murderer doesn’t bring any of the victims back to life. Killing him doesn’t heal the wounds his actions caused. I also don’t think it does anything to bring closure to the family and friends of his victim. The wounds will always be there – they just fade in and out in various degrees as time moves on.

There are three understood purposes of punishment in our criminal (in)justice system. The first is rehabilitation. Our penitentiary system owes much of its existence to religious sects who felt the best way to treat someone convicted of criminal activity was to remove him from the bad influences in his life and teach him another way to live. That’s why most of our prisons are far removed from the “evil” influence of our major cities (in much the same way that most of our large land grant colleges are far removed from urban areas).

A second purpose is to deter others from breaking the law. If you see your buddy sent off to prison for breaking the law, maybe the message will hit home that it’s best to obey the law. This, of course, only works for those folks who are able to weigh the costs and benefits of particular actions before deciding what to do.

The third purpose was to banish from civil society those who were blatant in their rule-breaking and expressed no remorse for their actions. One way to look at it is the folks we choose to banish from society are those folks that we’re scared of.

I think it’s a fairly safe bet to assume that our prisons long ago stopped serving any rehabilitative function. They have become warehouses for the mentally ill, drug addicts and folks who refuse to conform with the rules of civil society. We could add that prisons today are used as tools of social control to keep the poor and minorities from exercising any power.

Now our politicians and supporters of the death penalty will hang their hats on deterrence as being the reason we strap inmates to a gurney and murder them in cold blood. The idea is that the public sees what happens when you kill someone (well, kill someone whose life we’ve determined is more valuable than someone else’s) and folks make a conscious decision not to do the same.

The only problem with that logic is that most murders aren’t the act of rational actors. How many times is the victim of a murder an acquaintance of the murderer? How many times is the murder the result of an argument that two friends (or two relatives) had over a pool game or a bet or a small loan? How many times do we see someone killing their spouse or lover? Then you’ve got drug-related killings and “robberies gone bad.”

We’ve been killing inmates for generations and we still  have people killing people. The death penalty never has been, and never will be, a deterrent.

The death penalty is about nothing more than revenge. Always has been and always will be. As such it serves no useful purpose within a criminal justice system.

Furthermore, the death penalty is forever. Once you’ve killed an inmate, they aren’t coming back. It doesn’t matter whether they were guilty or innocent. Just think about that for a bit. Over the past decade we have witnessed an incredible number of stories of inmates who spent decades in prison being exonerated when DNA evidence revealed the jury got it wrong.

Our system is run by people. We’re fallible. We all get it wrong every now and then. Michael Morton was convicted of killing his wife. The district attorney hid evidence and his successor fought like hell to keep the evidence from being tested because he knew what it would reveal.

Innocent people have been murdered by the state. As long as we continue to strap inmates down and inject poison into their veins we will run the risk of another innocent man being killed. Is that a chance you feel comfortable taking?

I have no use for religion. I think it’s nothing but a tool of oppression. But I’m not arrogant enough to say that I know who should live and who should die.

Are you?”

The Capital Punishment Cover-Up: Virginia wants to hide “all information relating to the execution process.”

…Just prior to [Ohio Gov. John Kasich] announcing [a] temporary moratorium [on executions in 2015], Ohio lawmakers attempted to improve the reputation of its capital punishment system with bizarre new laws passed in a lame-duck session. The controversial rules increased secrecy by shielding the identities of drugmakers and suppliers for lethal injections, and they immunized error by providing anonymity for anyone who participates in the process as well as the state execution team. The effect, as the Washington Post editorialized, was “to impose a gag order on potentially adverse reports that could inform the public debate over capital punishment.”

But while Ohio officials eventually came to realize that the problems with their lethal injection protocol couldn’t be wholly fixed by shrouding executions in ever more secrecy, Virginia lawmakers have arrived at the opposite conclusion. Last week they proposed legislation that would make it easier to obtain lethal injection drugs and that would also create an almost impermeable layer of secrecy around the execution process. The new law would make it significantly harder for the press and the public to know what was happening in the execution chamber. This is, of course, the same Virginia Legislature that flirted last year with reinstating the electric chair if lethal injection drug supplies dried up. (That effort failed.) The effect of this new proposed legislation would be less scrutiny of a process that the rest of the nation, including the highest court in the land, views with ever more skepticism.

The Capital Punishment Cover-Up, Dahlia Lithwick, Slate.com, FEB. 3 2015

Reassuring to see that public discourse over botched executions and the reliability of drugs has encouraged states to disclose their drug cocktails.

People are going to prison older, contributing to graying incarcerated population

“Longer sentences and anti-drug policies are often blamed for the graying of the prison population.

New research provides another explanation, the Wall Street Journal (sub. req.) reports in a story noted by the newspaper’s Law Blog. These studies say prisons house more older offenders because more people are entering or re-entering prison at older ages.

According to the Bureau of Justice Statistics, the proportion of U.S. inmates who are at least 54 years old rose from 3 percent to more than 8 percent from the year 1991 to 2011. The increases make a financial difference given additional costs needed to provide medical care for older prisoners.”

More people are going to prison at later ages, contributing to graying prison population, ABA Journal, 2/2/15.

The Atlantic: Should Veterans With PTSD Be Exempt From the Death Penalty?

PTSD Photo from The Atlantic

“PTSD is a severe mental disorder that can affect intellectual and adaptive functioning, trigger flashbacks to traumatic events, and impair one’s judgment. As its name implies, it can develop after exposure to a life-threatening event….

Despite the stigma attached to PTSD, the Department of Veterans Affairs emphasizes that most veterans suffering from the condition are not violent….“It’s extremely important that we recognize that the majority of people with PTSD don’t engage in criminal and violent actions[, said Paula Schnurr, executive director of the VA’s National Center for PTSD].”

…Some legal scholars and mental health experts suggest the criminal justice system should treat convicted veterans suffering from war trauma differently than other criminals. In a 2009 Fordham Law Review article, Anthony Giardino, an attorney and former Marine, argued that veterans suffering from service-related PTSD and traumatic brain injuries should receive a categorical exemption from the death penalty. “If the death penalty is truly only for the worst offenders, justice requires that combat veterans suffering at the time of their offenses from service-related PTSD or TBI [traumatic brain injuries] not be executed or sentenced to death,” he wrote….

Giardino isn’t alone in making this argument. Mental-health experts Hal S. Wortzel and David B. Arciniegas made a similar case for exempting veterans affected by war trauma from the death penalty. Military training and combat, combined with traumatic experiences, may have an impact on aggression and behavioral control, the authors said in a 2010 article….

It’s difficult for the legal system to truly grasp what veterans with PTSD have experienced. This lack of empathy is a key obstacle to change…. Until society realizes how combat can change service members, the fate of capital defendants with combat PTSD will remain an open question.”

Should Veterans With PTSD Be Exempt From the Death Penalty?, The Atlantic, Jan. 30, 2015.

On #PleaBargaining Conferences & @Serial

A New York federal judge, Jed Rakoff, has proposed one reform: plea-bargaining conferences. In sealed proceedings, judges would examine each party’s position and recommend a nonbinding plea bargain. The plan needs to be refined so it allows a defendant to opt out if he publicly acknowledges he understands what he is giving up. The proposal, however, provides a layer of review to protect the innocent from being pressured into pleading guilty, while potentially encouraging fairer plea bargains through the oversight of a neutral party. It creates a record of plea-bargaining efforts, so there can be no uncertainty as to whether an offer was requested or ignored. Finally, it might help guilty people make a more informed choice about how to resolve their cases.

Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty, JAN. 22, 2015