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Road Warrior

Travel day for yours truly; I'm off to Cincinnati for an oral argument before the 6th Circuit.  I'm representing one of fourteen defendants, members of the Outlaw Motorcycle Club, who were tried back in 2004 on various RICO, drug, and gun charges.  The trial took ten weeks, and resulted in an 8,100-page transcript.  Talk about justice delayed:  my client was sentenced to eight years in prison, and had spent four years in prison awaiting trial.  The trial took place, as noted, in 2004.  You do the math.

There are going to be 11 defendants at oral argument, sharing 90 minutes of time.  I'd suggested that we have just one lawyer do the argument, while the rest of us stood in the background and chanted, Greek-chorus-like, something appropriate, like "they're not guilty," or "no justice, no peace."  Cooler heads prevailed.

Anyway, I don't have time to do much blogging, so I'll just toss out some random observations about Baze v. Reese, the US Supreme Court's decision last week affirming lethal injection as a constitutional method of imposing the death penalty.  Not surprisingly, the 7-2 decision resulted in seven opinions from the nine judges:  a three-man plurality opinion, five concurrences, and one dissent.  The most curious of the opinions was probably Stephens', in which he suggested that the death penalty was unconstitutional, but nonetheless concurred in the judgment. 

I'm opposed to the death penalty, although I have qualms about it.  I used to be morally opposed, but there is some recent research which suggests that capital punishment does have a deterrent effect.  (You can read a good article about the debate here.)  If it's true that the death penalty saves lives, that puts its moral opponents in a quandary:  you're actually arguing for a policy -- the abolition of capital punishment -- that will result in more deaths.

The possibility of executing an innocent man is certainly a factor -- at last count, 128 people had been freed from death row upon determination that they were innocent -- but to be blunt, there's very little evidence that anyone who's been executed since the death penalty was restored in 1976 was actually innocent.  What's more, given the concept of residual doubt, which is applied at both the the trial and appellate levels, it's hard to see that happening in the future.

My major problem with capital punishment is its distortive effects on the criminal law as a whole.  The penalty is so qualitatively different from everything else that it consumes far more attention than it otherwise might warrant, leading to changes changes in the law which have little effect on the death penalty, but great effect on other aspects of criminal law, even though those effects might not have been intended. 

For example, habeas corpus used to be a widely used mechanism to obtain relief from constitutional violations in state courts.  As a result of perceived "abuses" in the process, which resulted in capital defendants postponing their dates with the execution for a decade or more, Congress in 1996 passed the Anti-terrorism and Effect Death Penalty Act.  As anyone who does habeas nowadays can tell you, the AEDPA imposed such great restrictions on the use of habeas, and made the standard of review so deferential, that relief is almost impossible; a recent review of 1,946 non-capital habeas cases showed that 7 -- count'em, 7 -- had been granted.

A similar result arose from the use of life imprisonment without parole.  Originally, it had been proposed by opponents of capital punishment as an alternative to death.  It may have been effective in that regard; Gallup now shows that the public, when offered the choice between imposing death and imposing life imprisonment without parole, is fairly evenly split. 

Or it may not have been effective.  The authors of this Harvard study concluded that offering the penalty as an alternative had little consequence:  the frequency of death being imposed in states with LWOP was not any different from the frequency of it being imposed in states which didn't offer that alternative.  What did happen, though, was that the number of people serving LWOP drastically increased.  Why?   Because once the penalty was adopted, legislatures applied it to a wide range of crimes, such child rapes, "third strike" laws, and so forth.  The net result was that the number of people serving LWOP has tripled since 1992; defendants who never would have been at risk of suffering a death sentence are now in prison for life.

Given the infrequency with which the penalty is imposed any more -- only 42 people were executed in the US last year -- I'm not sure the game's worth the candle.

And there's an element of unreality to it, too, which is captured by this portion of Stephens' opinion in Baze, discussing the first of the three-drug "cocktail" used in executions:

Because it masks any outward sign of distress, pancuronium bromide creates a risk that the inmate will suffer excruciating pain before death occurs. There is a general understanding among veterinarians that the risk of pain is sufficiently serious that the use of the drug should be proscribed when an animal's life is being terminated. As a result of this understanding among knowledgeable professionals, several States--including Kentucky--have enacted legislation prohibiting use of the drug in animal euthanasia.  It is unseemly--to say the least--that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets.


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