Sure They Considered Race. What's Your Point? - UPDATED

Linda Greenhouse offers what she inaccurately calls a "thought experiment."*

What if we abolished peremptory challenges?

The subject is discrimination in jury selection.  The occasion is Foster v. Chatman, a case of pretty blatant racial discrimination where a Georgia prosecutor used peremptory challenges to kick blacks off a jury and help secure a death sentence.  

The Supremes thought, in their naiveté, that they'd abolished that sort of discrimination in Batson v. Kentucky and a string of cases applying and extending it.  They were wrong.  They were also, as it happens, misguided.

Oh, the goal, end discrimination in jury selection, is high-minded enough.  Nobody much, today, is going to be a public advocate for racial discrimination.  (Batson's been extended beyond race, but the same point applies.)  That's not really the issue, though.  Because once you start down the road you've got a problem.

When Batson simply applied to the prosecution in criminal cases, it was a sham.  (Only the hopelessly - like the berobed ones in Washington - really thought it would achieve what they claimed.)  Built into the ruling was an easy out for prosecutors:  Offer a race-neutral lie for why they were kicking this or that juror off a case.  (Juror frowned; juror smiled; juror wore green pants; juror wore no pants (!); juror once knew someone who once knew someone who heard about someone who got a traffic ticket - or didn't; the possibilities are endless.)

But when the Court went further and made clear that the goal of Batson was not to ensure that defendants got fair trials but that discrimination ended, the largely empty but plausible logic went out the window.  Batson, it turns out, isn't about the rights of the accused - not about the rights of the litigants at all.  It's about the rights of the juror who is excused based on a discriminatory peremptory. The lawyer who challenges the peremptory, acts not (the court says) in the interests of her client but in the interests of the excluded juror.

That's bullshit, of course.  As a lawyer, your only responsibility beyond upholding the basic integrity of the system by obeying the rules, is the interests of your client.  If that peremptory - racially motivated or otherwise and regardless of reason - is one you're happy the other side exercised, you're not going to complain.  It's only when your client would get screwed that you're gonna bitch.

And that's as it should be.  The theory is that when I get rid of the jurors I hate and the prosecutor gets rid of the jurors he hates, the remaining 12 are going to be pretty fair.  That theory may be nonsense in practice (jury selection is largely a matter of gut feeling rather than hard science), but it's the underlying idea.  And it works.  There are jurors who pretty obviously will be biased one way or the other but don't fall into any of the categories where exclusion for cause is allowed (brother of the defendant, witness in the case, plaintiff's lawyer in another case, whatever).  So we have peremptories to get rid of them.

Doing away with peremptories means assuming that any 12 random folks will be fair to both sides. In the real world, that ain't so.  And nobody who litigates really wants that.  We want jurors who will vote our way. Same as the other side does.  So we all get rid of the ones who surely won't.  That's the idea.  And hundreds of years of Anglo-American jurisprudence suggests that it works pretty well.

Does it allow for discrimination?  Yeah.  Can the discrimination be invidious and unfair and racist and lead to appalling decisions?  Yep.  (Think of those all-white juries in the south that routinely sentenced blacks to die for looking crooked at whites and routinely acquitted whites who murdered blacks.)  

Of course, if instead we figured out how to give teeth to what seemed like the idea of Batson when it first came out.  Prevent the government from using race to secure convictions and death sentences. Now that was an idea. 

UPDATE

Scott Greenfield also takes on Greenhouse and Batson over at Fault Lines.











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*If it were actually a thought experiment, the follow-up would be an examination of how that would (or would not) change things.  Her follow-up is to announce that there aren't enough votes on the Supreme Court to do it but that she longs for a day when there are.  Not an experiment at all.

Warren McCleskey - Maybe Yet

Monday the Supreme Court issued its opinions (yes, that's intentionally plural) in Glossip v. Gross addressing how Oklahoma gets to go about killing folks.  Writing for 5 of the the Supremes, which is all it takes, Hang 'em High Alito said that it was OK for OK to use midazolam as part of the execution drug sequence because the guys they were killing didn't suggest a better and readily available way for the good people of the Sooner State to murder them.

After all, Alito said in his opinion for the Gang of Five, since the Constitution authorizes the death penalty, states have to be able to kill folks.  

because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.”

Which is nonsense, but hey, they want to kill people so they make shit up that allows it.

Anyhow, the interesting thing - and maybe the important thing - about Glossip isn't that Oklahoma (and other states that have been waiting) can jump right back into the killing biz.*  I mean, after the oral argument (and maybe before) it seemed pretty clear how the case was going to come out.  What didn't seem clear, what there was no way to predict, was that Breyer and Ginsburg would essentially declare the death penalty flat out unconstitutional and call for litigants to bring the issue to the Court.

That call has generated much handwringing in the capital defense bar this week.  The problem, as I suggested the other day, is counting to five.  It's pretty clear where Breyer and Ginsburg stand.  And it's widely assumed that if forced to answer the question, Sotomayor and Kagan would also vote for abolition.  But it takes five, and that's only four.  The fifth vote?  If there's no change in personnel on the Court, it'd have to come from one of the folks who just voted to kill Glossip and company.  One of the ones who signed off on 

it is settled that capital punishment is constitutional.

We know it won't be Scalia or Thomas, both of whom ridiculed the very idea that there might be something wrong with murder by the state.  Alito?  Not hardly.  The Ol' Balls and Strikes Roberts? No. The possible vote, the theoretically possible vote, the vote that some people think can be got, is Kennedy's.  Or not. Which is the problem.  

All of which makes especially timely Jeffrey L. Kirchmeier's Imprisoned by the Past: Warren McCleskey and the American Death Penalty.  

Kirchmeier uses the story of Warren McCleskey, and especially the Supreme Court's decision in McKleskey v. Kemp as a frame on which to hang the history of the death penalty in this country - and of efforts to abolish it.  

What Kirchmeier makes clear is that the history of the death penalty is inseparable from racism.  It's not that every execution is racially tainted, of course, but that the system is because the society is.  However much we might pretend otherwise.  However much they're looking to take the Confederate battle flag down from government buildings across the south.

It was May 13, 1978, when McCleskey, Bernard Depree, David Burney, and Ben Wright robbed the Dixie Furniture Company in Marietta, Georgia.  And one of them shot and killed Officer Frank Schlatt.    For that killing, Warren McCleskey ended up on death row.

In 1972, the Supremes decided Furman v. Georgia.  In that case, they held that every death penalty law in the country was unconstitutional.  But in application, not in theory.  The right law, it seemed clear, would pass constitutional muster.  While it wasn't absolutely clear what the problem was (all the separate opinions made it impossible to answer that question simply), the bottom line seemed to be that death sentences were freakishly arbitrary.  Potter Stewart famous phrasing captured the point.

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.

Thing is, that was only the first sentence of the paragraph.  Here's the whole thing (footnotes and citation deleted).

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Four years later, in Gregg v. Georgia, the Supremes decided that the problem had been resolved. States, including Georgia, had figured out ways to narrow the category of cases where death was an available sentence and then to guide the jury's discretion in deciding who should get it.  They could identify the worst of the worst.

Enter David Baldus and Company.  They studied Georgia's death penalty, did rigorous statistical analysis.  And concluded that what Potter Stewart's "concurring Brothers" demonstrated in 1972 was true.  Race mattered.  In particular, what mattered was the race of the victim.  Kill a white person and the odds of a death sentence - all other things being equal - go way up.

And so to the Supreme Court went Warren McCleskey.  

And the court said it didn't care.  It was too tough.  Race pervaded the whole system.  If it couldn't be tolerated, there'd be nothing left.  As Justice Brennan wrote (citation deleted),

The Court next states that its unwillingness to regard petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice.

With that decision, the last hope for abolition by judicial fiat died.  If racism wasn't enough, nothing would be.

It wasn't so much that a win for McCleskey would have forcibly stopped the whole thing.  Indeed, Kirchmeier shows that there was discussion about how he could have prevailed on such narrow grounds that there'd have been no upheaval.  But racism was the bottom line, and if the Court had bought it, the states would have had a tough job coming up with systems that would pass muster.

Abolitionists, as Kirchmeier explains, turned to public education and the legislatures.  And, if not then, than in this century have had remarkable success.

Still, with death sentences down (Texas hasn't sentenced anyone to die this year.  Texas!) and executions down, and now with Breyer and Ginsburg . . . .

Kirchmeier's is a valuable book.  He combines history with clear legal analysis.  And, perhaps most importantly, he reminds us that the people we condemn are in fact people.  So he tells not just the legal story of Warren McCleskey but the personal one.  Yeah, we killed him.  But we didn't kill the Golem.  We killed a man.  

While Officer Schlatt was a hero who died in the line of duty trying to help others, the term "hero" does not apply to Warren McCleskey, and the purpose of this book is not to make him into one.  But Warren McCleskey's story is an American story of childhood violence turned into adult violence, of a boy and man who experienced racial bias, and of a wayward life seeking redemption.  As such, to understand the broad range of issues in his case one needs to understand the human being.

Give the last word to Justice Brennan, words that Kirchmeier uses as the book's epigraph:

[W]e ignore [Warren] McCleskey at our peril for we remain imprisoned by the past as long as deny [racism's] influence on the present.

* * * * *

My thanks to Jeff Kirchmeier and Oxford University Press for making a copy the book available to me for this review.

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*Wasting no time, just hours after SCOTUS issued its opinion on Monday, the Oklahoma AG asked the Court of Criminal Appeals to set execution dates for Glossip and his co-petitioners in the Supreme Court. 

On Legal Education and the Execution and Exoneration of George Stinney, Jr.

For days now I've been meaning to write about the would-be lawyers who claim to be so emotionally wrought over the news that they can't handle law school exams.  And the law schools that find their students' emotional stress over the news sufficient basis to delay exams or grant continuances.  

And the idiot student who thinks that its a mistake to view the students who claim to be too wrought to take exams as being too wrought to take exams.  Rather, they're deeply passionate activists who understand that practicing law will have nothing to do with law but everything to do with making the world a better place which can only be done by activism and that any demand that law school have something to do with law is at odds with legal education which should be about demonstrating.  Or something.

And then there's Harvard law professor Jennie Suk who mourns the fact that law students are insisting that they shouldn't have to learn about parts of the criminal law that deal with crimes of sorts that might upset them, and that, in fact, law schools should probably stop teaching those things and only teach about criminal law as it involves crimes that make everyone happy.  And the misguided members of the law faculty who think that's fine or are too wrought themselves by the risk of offending that they agree.

As I say, I've been meaning to write about those things.  

But I've got an actual job with clients I need to represent - some of whom are said to have done things that are upsetting and some of whom face sentences that horrify me - and with deadlines I have to meet no matter how much I'd rather be out in the street with the folks who are upset about Michael Brown and Eric Garner and Tamir Rice and the fact that Ohio's lethal injection secrecy bill (which its proponents claim is nothing of the sort since it's just about, uh, keeping information regarding lethal injection secret) just made it though both houses of the General Assembly and the Gov will sign it and then they can kill Ron Phillips in February.

Points to make:  
If it's true that the law students are too wrought to take exams or go to class, they're not cut out to be lawyers.  If instead they're too committed to being lawyers who believe that lawyering has nothing to do with actually doing legal work, they should take up some other line of work.  (If it's all bullshit and they're just making up excuses to get continuances and are actually selling them to professors, they're maybe cut out only to be unethical lawyers, which is a somewhat different problem.)

If it's true that law students believe they shouldn't have to learn about parts of the law that don't make them happy and that, in fact, law schools shouldn't teach parts of the law that aren't cheery because it's just too upsetting - well, see the prior bullet point, they're not cut out to be lawyers.  And if it's true that their gutless professors are caving to their demands, well, they're proving the old adage that "those who can't do, teach." But of course, they're also refusing to teach, which leads to the new adage (don't write in, I know) "those who can't do or teach should take up another line of work."

George J. Stinney, Jr.

And then it turns out that George Stinney, Jr., who was executed by the good people of South Carolina in 1944, when he was 14, for a crime he maybe didn't commit, just had his conviction vacated.

It's not, the judge explained, that Stinney was factually innocent.  No, it's that it was all so unfair.  Black kid in small, deeply racist town in the racist South coerced into confession by tough white cops, confession that may have been unreliable; trial counsel who didn't do shit for his client; trial and conviction and death sentence all before an all-white jury in a process that took less than a day.  Less than three months between the murder and the execution. 

Said Judge Carmen Mullen

The extraordinary circumstances discussed herein simply do not apply in most cases.  

Which is true if the extraordinary circumstances are that Stinney was 14. If, though, she was referring to systemic racial issues and coerced confessions and incompetent or unwilling lawyers and rapid trials and . . . . If she referred to those things, she was either horribly misinformed or delusional or lying. 

It's terrible what was done to Stinney. And it's no doubt a comfort to his family and supporters to have his conviction vacated. But the reality is that however much Stinney's execution was wrong (and it was) and however much vacating his conviction rights an injustice (which it does), it falls on me to ask whether the energy and resources that have gone into the fight for Stinney might have been better spent on behalf of those awaiting his fate today.

And whether the real point, that Stinney's case isn't at all unusual except for his age, is where the real focus should be.

Of course, if the real point is that we still kill people we shouldn't and that our systems aren't really much better today than they were in South Carolina in 1944, then it's just depressing.

It'll be important to ensure that law students don't learn any of that and that they aren't trained to fight for clients better than Stinney's lawyer did. You know, too fucking stressful.

Sigh.

Empty Gestures and Photo Ops

Fifty years ago today they bombed the 16th Street Baptist Church in Birmingham, Alabama.  Four little girls were killed.

I've written about that twice before, though neither time was the bombing (a terrorist act, a hate crime, perpetrated by members of the Ku Klux Klan) and it's immediate aftermath my subject.

The first time, it was to talk about Chris McNair, the father of Denise McNair who was killed that morning.  He is, by all accounts, a man of uncommon decency.  Rather than be embittered by his loss, he became an agent of healing in Birmingham.  Two years ago, when I wrote about him, he was 85.  And he was beginning a 5-year stretch in the federal pen for corruption.  He was hoping for some mercy in the form of a pardon from his Barakness, a man who has revealed himself to be singularly unmerciful and unforgiving.

The second time, it was to talk about an empty congressional resolution.  Give, posthumously of course, Congressional Gold Medals to the four girls.

Because of their "extraordinary sacrifice."   Which I suppose it was, since they died.  And their murder - a hate crime, an act of terrorism - did in fact jump start Congress into actually passing the Civil Rights Act of 1964 which was one hell of an achievement.
It is right that they should be remembered.  As a constant prick on our collective conscience.  We did this to them.  But we did it to countless others, too.  We're big on hatred and violence.
Because really, they didn't sacrifice.  Oh, they gave their lives.  But it was unwitting.  They were part of a ritual they didn't know existed and weren't aware of while it was happening.  And, of course, they had no idea that anything - good or ill - would follow.
If there was a sacrifice, it was by the murders, the terrorists.  Not a sacrifice to the gods but to hate.  Not to end suffering, not to propitiate, but as a promise of more to come. 

There was, I noted, a disagreement among the surviving members of the girl's families.   Sarah Collins Rudolph, the then-12-year-old sister of Addie Mae Collins, didn't want the medal.  Rudolph lost an eye and was nearly blinded in another in the bombing.  No medal she said.  She wanted reparations.

"I am not going to go get the (medal) until justice has been fulfilled," said Rudolph, now 62, during an interview on Friday at her home in a Birmingham suburb.

Same for Fate Morris, the brother of Cynthia Wesley who wants not only reparations but also for his sister to be remembered by her actual name, Cynthia Morris.

The McNairs, on the other hand (remember Chris, agent of healing) they liked the resolution.

"We feel that this honor given by Congress means that our great country recognizes the sacrifices made for freedom in our country," said Lisa McNair, 49, the sister of Denise McNair.

Well, as Diane McWhorter says in an essay in today's Times, they got the medals.

Sarah Collins Rudolph showed up.  Back in May, when Obama signed off on the congressional resolution, she didn't attend the ceremony.

I’m letting the world know, my sister didn’t die for freedom. My sister died because they put a bomb in that church and they murdered her.

But as it turns out, she did go and collect the medal at the official ceremony last week.  Chris McNair was there, too.  No pardon for him, but he had qualified for a new Justice Department program offering a few aging souls "compassionate release."  Fate Morris was there, too.  And so was Diane Braddock, sister of Carole Robertson.  Nominally, they were the focus.  Rudolph, as the fifth victim, was asked to stand.

But the official photographs and the report?  There's John Boehner handing out the medal.  And next to him Mitch McConnell.  And there's Harry Reid and Nancy Peolosi.  And Alabama Senator Richard Shelby.  The resolution honoring the four heroic girls (heroism of a peculiar sort - not because of who they were or what they did but because they were random victims of hatred and terrorism and racism) passed both houses of Congress unanimously.  Why not?  It was cheap.  A bit of self-congratulatory theater.

When the girls were killed, it helped prick the conscience of a nation that still had one and pushed Congress toward enacting the Civil Rights Act.  No cheap medal that.

Congress could, if it were so inclined, honor the memory of those girls by holding the hearings and making the findings to reinforce the Voting Rights Act that the Supreme Court just did its best to gut.  It could actively embrace equal opportunity and recognize that class division is a bad thing.  It could advocate for the poor rather than the rich.  It could eliminate the war on black people drugs.  There is much that it could do.  I won't be holding my breath.  

McWhorter writes,

We are understandably drawn to cheaper correctives: posthumous pardons for the Scottsboro Boys in Alabama; plaques at the Birmingham city hall dedicated, in August, to Virgil Ware and Johnny Robinson, two other black children killed by whites on Sept. 15, 1963. If the structural changes achieved by these symbolic gestures are roughly none, their appeal is that they also cost nothing. To wit: the Congressional resolutions conferring the medal last spring passed unanimously.

When she talks about what "cost nothing" she really is speaking of dollars and cents, as her piece makes clear.  But cash is only part of it (a real part, but only part).  What's needed is action rather than "symbolic gestures" by a government that has no interest in more.

Fifty years ago today, in an act of hatred and violence and terrorism, 19 sticks of dynamite were planted and set off at the 16th Street Baptist Church.  Four girls were killed in the explosion.  Some 20 others were injured. 

The medal is gold.  Embossed with a picture of the church on one side and pictures of the girls on the other.  Is it petty to think that maybe they could have done more?
 

Dreams

A quick note on this, the 50th anniversary of the march on Washington and the Rev. Dr. Martin Luther King, Jr.'s declaration that he had a dream. 

I'm putting a YouTube video of it at the bottom of this post, but before you get there, take a moment to think about how far we've come in 50 years.  And how far there is to go.  

King's focus was, of course, on race.  He dreamed of a time when people would be judged "not by the color of their skin but by the content of their character."  Don't we all.  And if we broaden that just a bit, to wish for the same sort of judgment that reaches not only beyond skin color but beyond wealth and power and position, beyond the self-righteous propositions and beliefs that we (whoever "we" may be) are better than they (whoever "they" are).

Scott Greenfield this morning posted a lengthy excerpt from the Fourth Circuit's opinion in U.S. v. Bartko in which the court excoriated the U.S. Attorney's office for a demonstrated pattern of lying and cheating to obtain convictions.  Do it again, the court said, and we might have to call the U.S. Attorney himself into court to listen to us berate him.  But of course, the poor saps who are victimized are probably guilty, so hey, it's not like we're actually going to do anything about it except say (as we have over and over),

Please stop doing bad things that corrupt the system but for which you get reward and no consequence.  Just because you think you're better.  And you can.

It ain't just in federal court.  Ohio's latest execution date is for Angelo Fears.  Back in 1999, when the Ohio Supremes affirmed his death sentence in State v. Fears, the late Chief Justice dissented.

This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, "Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of `disapproved' remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial." Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.

The prosecutors are the white guys.  Or might as well be. The defendants are black. Or might as well be.

50 years on, the Supreme Court has done what it can to gut the Voting Rights Act because there is no more systemic racism in this country.  50 years on, the Supreme Court has done what it can to end affirmative action because everyone now has equal opportunity.  The problems have, the five who decide, been solved.  A little dusting around the edges maybe from time to time, the odd slap on the wrist with a reminder to sin no more is all it will take to keep everything humming properly.

Not so, of course.  And it's nowhere more clear than in the criminal justice system that treats African-Americans and Hispanics as, and actually converts them into, a criminal class.  Don't take my word for it.  Read Michelle Alexander's The New Jim Crow: Mass Incarceration in the Age of Color Blindness. Read Judge Scheindlin's opinion in the Stop and Frisk case, Floyd v. City of New York.

50 years on.  Much really has been achieved.  But it's far from over.  There's so much left to do.

Listen to the speech.

Because Guilt Is Only Part of the Story

As I said, I'm spending a few days this week at a capital defense seminar.  Late stage stuff.  Habeas.  A couple of hundred of us are hanging out, sitting in plenary sessions and break-outs.  The speakers share thoughts about how to benefit from good court decisions and how to try and avoid the worst consequences of bad ones.  We talk about investigating case, picking juries, dealing with our clients' mental health issues.  How to get back into court and seek relief when you've found serious evidence that the client is innocent.  And more.

Hovering over all that is the awful specter of race.

The thing is, it's not just the outright racists.  There's the subtle stuff, the winces the head turned away.  Crossing the street.  

And there's the official stuff.  The kind of thing Judge Scheindlin denounced New York City and its cops for doing.

There's also, and I'm getting to the point now, Duane Buck.

Duane Buck is the guy in Texas who sits on death row because . . . .  Hell, I'm not going to reinvent the wheel.  Here's the story as I've written it before.

Seven people in Texas were sent to death row in part because psychologist Walter Quijano told their juries that as blacks or Hispanics they were more likely to commit future violent crimes than if they had been white.

Quijano shouldn't have done that.  What he said is factually wrong; there is no basis for the conclusion that blacks and Hispanics are more violent than whites. What he said is morally offensive; it is racism in action, regardless of whether Quijano thinks so.  What he said, in the context of a trial, is legally improper; considerations of race have no place in the criminal justice system.  What he said, in the context of a trial, is unconstitutional; it made the sentences, at least in part, dependent on race in violation of the Equal Protection Clause of the Fourteenth Amendment.

Then Texas Attorney General John Cornyn (he's now a U.S. Senator) recognized that what Quijano did was inexcusable and its effect on the sentences unacceptable.  He supported vacating those sentences.  Of the seven people whose death sentences were infected by Quijano's claims, six had their death sentences vacated and received new sentencing hearings.  The seventh is Duane Buck.

Duane Buck has been through the court system.  At the end of the last round of litigation, the white-sheeted black-robed Supremes refused to hear his case.  

Justice Alito explained (and I'm paraphrasing) that what Quijano said was bizarre and objectionable and dammit, just wrong.  It would be wrong to execute a man under the circumstances.  But it would be even more wrong for us even to consider doing something about it, because then we'd be treating fairness and decency and morality and the Equal Protection Clause of the Constitution as more important than a procedural technicality.  (Scalia and Breyer signed on to that opinion.)

Justice Sotomayor also wrote.  (Again, this is paraphrase.)  It's a fucking outrage.  Alito and the boys are moral reprobates, racist pigs.  It's they who deserve to be executed.  (Kagan signed on to that.)

At the seminar this morning, Christina Swarms talked about the case.  Duane Buck is back in the Texas courts so they can decide whether to do the right thing and order a new sentencing hearing for him.  One that won't be infected by racism.  She told us the frankly amazing story of how his case got there.

In a couple of weeks, it'll be 50 years since Martin Luther King, Jr., told the world, and 300,000 or more people on the national mall, that he had a dream.

At the end of her talk this morning, Christina Swarms finished her talk.  Then she showed the video.  A couple of hundred capital defense attorneys - lone woves, hard as nails, seen it all.   Sat in silence.  And watched.  Some cried.

But Really, There's Nothing To Be Done - UPDATE

I've quoted from then-Chief Justice Moyer's dissent in State v. Fears more than once.

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.  In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

Fears was appealing his conviction and death sentence.  It was another in a string of cases in which the Ohio Supremes recognized that prosecutors repeatedly engaged in misconduct and warned that one of these days they might do something about it.  

I've often quoted, too, Cathy Cook's word in the same court about the same prosecutor just a week after Fears came out. She quoted Moyer's words, and then told the Justices,

You've got to make them lose to make them learn.

The court didn't make them lose.  Cases since then demonstrate clearly that the prosecutors didn't learn.

* * * * *

Duane Buck remains on death row in Texas though within the next couple of weeks he'll be asking the Texas Court of Criminal Appeals to grant him a new sentencing hearing. 

Buck, you'll recall, is the one whose lawyers entered into evidence at the sentencing phase of his capital trial their expert's report saying, among other things, that because Buck was African American he was especially likely to be a violent sort and future danger.  And then they had him testify to the same thing.

Samuel Alito, no friend of the capitally sentenced he, said the testimony was "bizarre and objectionable."  (Scalia and Breyer joined his opinion.)  Oh, he didn't say it was reversible.  He didn't even say it was enough to make the Court hear the case.  Just that it was "bizarre and objectionable."  

Perhaps Justices Thomas, Ginsburg, and Roberts agreed.  Perhaps not.  They didn't join Alito's opinion, and none wrote a separate one.  On the other hand, none of them voted to hear the case.  

The dissenters from the refusal to hear it did file an opinion, written by Sotomayor (Kagan joined it).  It begins this way.

Today the Court denies review of a death sentence marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.

* * * * *

And then there's Bongani Charles Calhoun.  The feds down in Texas prosecuted him for involvement in a drug conspiracy.  Sotomayor (this time joined by Breyer) tells the relevant parts of the story.

The primary issue was whether Calhoun knew that the friend he had accompanied on a road trip, along with the friend’s associates, were about to engage in a drug transaction, or whether instead Calhoun was merely present during the group’s drive home, when the others attempted to purchase cocaine from undercover Drug Enforcement Agency (DEA) agents. . . .

The issue of Calhoun’s intent came to a head when the prosecutor cross-examined him. Calhoun related that the night before the arrest, he had detached himself from the group when his friend arrived at their hotel room with a bag of money. He stated that he “didn’t know” what was happening, and that it “made me think . . . [t]hat I didn’t want to be there.” . . . The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prosecutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

Got it?  That last bit, the racial stereotyping and appeal to prejudice (did I mention that Mr. Calhoun is himself of what used to be politely known as a person of the "colored persuasion"?) is the problem.

By suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation. There was a time when appeals to race were not uncommon, when a prosecutor might direct a jury to “‘consider the fact that Mary Sue Rowe is a young white woman and that this defendant is a black man for the purpose of determining his intent at the time he entered Mrs. Rowe’s home,’” Holland v. State, 247 Ala. 53, 22 So. 2d 519, 520 (1945), or assure a jury that “‘I am well enough acquainted with this class of niggers to know that they have got it in for the [white] race in their heart,’” Taylor v. State, 50 Tex. Crim. 560, 561, 100 S. W. 393 (1907). The prosecutor’s comment here was surely less extreme. But it too was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.

So, of course, the Court granted cert and then ordered a new trial voted unanimously not to hear the case.  Because, you see, 

Inexplicably, however, Calhoun’s counsel did not object to the question at trial.

So the burdens shift and the legal standards are messy and the arguments weren't really made properly in the lower courts and good golly Miss Molly.

Hell, even Sotomayor, for all she wrote, didn't vote to hear the case.  Nevertheless, she expressed her abiding good wishes.

I hope never to see a case like this again.

And she won't, of course.  

Until the next time. Because, as Chief Justice Moyer said,

Clearly, our protestations have failed to change the advocacy of some prosecutors. It is as if they intentionally engage in improper conduct, safe in the belief that this court will continue to protest with no consequences.  In the interest of the integrity of the criminal justice system in this state, we must demonstrate that our protestations are more than utterings of frustration.

And as Cathy Cook added,

You've got to make them lose to make them learn.

   Calhoun v. US by  

UPDATE

Ken at Popehat identifies AUSA Sam L. Ponder (ponder that, if you will) as the prosecutor who made what Sotomayor generously described as the "racially charged remark."   Then he asks the altogether proper question.

[W]hy does the system protect the names of prosecutors even on the rare occasions that the system criticizes them? Why wouldn't Justice Sotomayor call out AUSA Sam L. Ponder by name if she found his conduct so remarkable that she penned an opinion about it even as she agreed to deny cert? What expectation of functional anonymity does Mr. Ponder have? Isn't that just part of a system that makes it vanishingly rare for prosecutors to be held accountable in any way for misdeeds?

The reason, of course, the same reason the courts don't make them lose, is that the system doesn't really care.

Law of Rule.

A Hero Passes

You know the story.

1942.  We were at war with Japan.  We were at war with Germany, too, but that was different because we hated Germans but they kind of looked like us and it was hard to be sure.  The Japanese, though, they even looked different.  And had different sorts of names.  And there'd been Genghis Khan and Fu Manchu.  And they were treacherous.  They attacked Pearl Harbor without first sending a post card announcing when they'd do it so we could be prepared to fight back.  And there was this long history of racism against Asians (who weren't, after all, white).

So we were at war and were scared and we hated them anyway, so we did what red-blooded Americans always do at times like that: We imposed a curfew on Japanese-Americans near the west coast.  Then we herded them into concentration camps.  More than 100,000 of them.

• Until it was over.
• Without trials.
• Without redress.
• Citzens and resident aliens.
• Who'd done nothing wrong.
• Except have that funny-colored skin.

Minoru Yasui, Fred Korematsu, and Gordon Hirabayashi refused.  They went to court where they would be protected, vindicated.

They believed in that silly thing called the Constitution.  Limited Government.  Equal Justice under law.  Even in times of war.  Even when we're scared.  Even if they were "yellow."

The courts, they knew, would enforce the Rule of Law against the Law of Rule.

They were wrong.  In a string of cases, the Supreme Court ruled against them.

• Korematsu v. United States
  
• Hirabayashi v. United States
• Yasui v. United States

Korematsu, decided in 1944, was a 6-3 decision, Justices Roberts, Murphy, and Jackson dissenting.

Hirabayashi and its companion case Yasui were decided in 1943 and were unanimous.

The Japanese interment and the Supreme Court's decisions are a national embarrassment and a stain on the judiciary. Of a piece with  Dred Scott, and Plessy v. Fergusen.

But Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui are heroes.  They stood up for what they knew (and we know) was right.  Despite the odds.  They fought.  And then they lost.  Still, they didn't give up.

Their convictions were reversed in the 1980s.  The government, it turns out, had already determined that the Japanese-Americans were no threat to national security.  It just wanted them put away. 

In 1988, the government apologized for its conduct and payed reparations to those it locked away for no reason but the color of their skin. Too little and too late, but something.

Minoru Yasui died in 1986.

Fred Korematsu died in 2005.

On December 31, Obama signed the National Defense Authorization Act which provides for indefinite detention without trial of anyone, citizen or not, found in this country or not, who's suspected of being somehow someway you know maybe could be connected to Al Qaeda or someone who might be somehow.

Two days later, on January 2, Gordon Hirabayashi died.  He was 93.  He was living in Canada.  May he rest in peace.

h/t Jonathan Katz

Guts

[F]or the same reason that I signed the Racial Justice Act two years ago: it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.

That's North Carolina Governor Bev Purdue this morning explaining why she vetoed the repeal of the state's Racial Justice Act.  (See here.)

The law permits folks who've been sentenced to be murdered by the state to present evidence to a judge that the sentence was racially motivated.  If the judge agrees, the sentence is reduced (if that's the right word) from murder while in prison to death while in prison, that is, from the death penalty to LWOP.

North Carolina and Kentucky are the only states with such law.  

Does it matter?  Ask Duane Buck down in Texas if he thinks a racial justice act might have made a difference to him?

Purdue says she's a strong supporter of capital punishment, and I have no reason to doubt her. 

But she's taken a principled stand on race twice now - first by signing the law and now by vetoing its repeal.

Good for her.

I don't know a thing about North Carolina politics, but I'd bet that's not a popular veto.  Not because Tar Heels think race should be a factor in death sentencing (OK, some probably do, but most would at least deny it) but because those from the Old North State believe that the racial justice act will prevent all executions and puts vicious murderers back out on the street.  Of course, that's not so, but the relationship between what's true and what people believe is often tenuous at best.  This, I suspect, is one of the times when the relationship between belief and truth is oppositional.

But the Governor did it anyway.

It was the right thing to do.

As we praise Purdue, though, it's worth just a moment to condemn the cold racism of the legislature.  They who said,

Who gives a shit?  Fuck 'em.  They probably deserved to die anyhow.  And maybe even because.

As I said, good for Governor Purdue.

And shame on those who made her do it.

Sure it's racist. What's your point?

Here's Samuel Alito, that's Associate Justice Samuel Alito of the Supreme Court of the United States, explaining the problem.

The petition in this case concerns bizarre and objectionable testimony given by a “defense expert” at the penalty phase of Buck’s capital trial.

"[B]izarre and objectionable."  You won't see that sort of language often from the most conservative, law and order, member of the Supreme Court in his summary of the facts about which a condemned guy complains.  Of course, there aren't that many cases like Buck v. Thaler.  Or, sadly, maybe there are.  It probably depends on how you're counting.

I've written about Duane Buck before.  Here's the summary plot from one of those posts.

Seven people in Texas were sent to death row in part because psychologist Walter Quijano told their juries that as blacks or Hispanics they were more likely to commit future violent crimes than if they had been white.

Quijano shouldn't have done that.  What he said is factually wrong; there is no basis for the conclusion that blacks and Hispanics are more violent than whites. What he said is morally offensive; it is racism in action, regardless of whether Quijano thinks so.  What he said, in the context of a trial, is legally improper; considerations of race have no place in the criminal justice system.  What he said, in the context of a trial, is unconstitutional; it made the sentences, at least in part, dependent on race in violation of the Equal Protection Clause of the Fourteenth Amendment.

Then Texas Attorney General John Cornyn (he's now a U.S. Senator) recognized that what Quijano did was inexcusable and its effect on the sentences unacceptable.  He supported vacating those sentences.  Of the seven people whose death sentences were infected by Quijano's claims, six had their death sentences vacated and received new sentencing hearings.  The seventh is Duane Buck.

I wrote that on September 13th.  Texas had planned Buck's murder on the 15th, but that day, and some two hours into the killing window, the Supreme Court called a halt so it could decide what to do.  I wrote then:

In a few months, the Court will decide whether to hear the case. 

Until then, Duane Buck lives.

And maybe, just maybe racial injustice moves one baby step toward its demise.

Nah.  That's too much to hope for.

Today's the day.  And even Alito (joined, I should add, by Scalia and Breyer), recognizes the basic truth.

Bizarre and objectionable.

Wait.  No.  That's not the basic truth. That's a pesky complication. The basic truth is that Texas should get to kill Duane Buck because his trial lawyer's the one who got Quijano to say that Buck was more likely than most folks to commit crimes because he's black.  Alito (joined by and his band of brothers) explained.

Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury. But Dr. attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.

Alito doesn't use the term, but he's talking about a close cousin of what's called invited error.  The idea, and it's not absolutely nuts, is that you can't complain that the judge was wrong to grant your request or motion or objection or whatever.  You can't, that is, complain that you shouldn't have gotten your way.  This isn't quite the same thing, but you can see the connection.

Buck's trial lawyer had a report from Quijano saying that one of the things he looks at in assessing future dangerousness is that black's are especially dangerous.  [That's nonsense, of course, but a different issue.]  So when he asked Quijano, 

[i]f we have an inmate such as Mr. Buck whois sentenced to life in prison, what are some of the factors, statistical factors or environmental factors that you’ve looked at in regard to this case?

He pretty much either knew what he was gonna get.  Hell, he put Quijano's report into evidence even though the prosecutor objected.  Of course, the prosecutor didn't exactly shy away from the racism of it all.

Q. You have determined that the sex factor, that a male is more violent than a female because that’s justthe way it is, and that the race factor, black, increasesthe future dangerousness for various complicated reasons; is that correct?
A. Yes.

But, as Alito said,

[T]he responsibility for eliciting the offensive testimony lay squarely with the defense.

And you really should have learned the basic rule by now.

If the lawyer fucks up, kill the client.

In Parents Involved in Community Schools v. Seattle School District No. 1,  Chief Justice Roberts  wrote  about racism, and though his point in that case was both wrong and offensive, the words he used have some resonance.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

He had nothing to say about Duane Buck.  Nor did the only African-American Justice, Clarence Thomas who once complained that he was the victim of a "high tech lynching." Nor the Court's longest serving woman, Ruth Bader Ginsburg, the one who as a powerful advocate before the Court almost single-handedly (yes, I'm exaggerating, but not all that much) forced it to confront and begin to redress discrimination against women.

Sonia Sotomayor, on the other hand and joined by Elena Kagan, dissented.

Today the Court denies review of a death sentence marred by racial overtones and a record compromised bymisleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent and vote to grant the petition.

Which is something, I suppose.  

But not nearly enough.

And cold comfort to Duane Buck.

Carpe Diem: Cory Maples, Rick Perry, and Prohibition

I was going to write about Cory Maples.

The idea was that I'd begin by quoting the last couple of sentences from the transcript of the oral  argument at the Supreme Court yesterday.  These sentences, from the end of the rebuttal argument by Maples' attorney, Gregory Garre:

Mr. Maples is not asking to be released from prison. He is asking for an opportunity to present a serious constitutional claim of ineffective assistance of counsel to a Federal habeas court on the merits.
If the claims are as manifest as we think, that clearly will have little burden on it. But simply allowing those claims to be adjudicated on the merits in Federal court will go a long way to preserve the legitimacy in criminal justice in a case in which a man's life is at stake.

Then I was going to quote a brief exchange between Justices Ginsburg and Kennedy and John Neiman, Jr., Alabama's Solicitor General.

JUSTICE GINSBURG: Did you oppose it? Did the State oppose the out-of-time appeal?
MR. NEIMAN: Yes, Your Honor, the State did oppose the out-of-time appeal, and the State pressed the procedural bar in Federal court in this case. But the State had every prerogative to do so, in part because this Court recognized in Coleman, a case where Petitioner undoubtedly could have said that he lost his right to he appeal through no fault of his own, the State had the power to do that. There are good reasons for the State -JUSTICE
KENNEDY: Could the state in the Federal litigation have waived the procedural default?
MR. NEIMAN: Your Honor, I think the law's not exactly clear on that, but I know of no law that would say the Alabama Attorney General -- the Alabama Attorney General has to press every single non-jurisdictional defense at his or her disposal. But he did not do so here and had good reason not to. That's in part because Coleman says that this is how procedural defaults work. There are good reasons for procedural defaults. They are grounded in the same equitable principles that -

And then I'd join many others in quoting Justices Alito, Roberts, and Scalia.

Alito:

This is a case where case where, as I said, it's a capital case, as we all recognize. Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances.
Now, when his attorneys moved to file an out-of-time appeal, why wouldn't you just consent to that? If he did not receive an effective assistance of counsel at trial, why not give a decision on the merits of that? Why push this technical argument? 

Roberts:

Why did he do it? Why did he do it, then? Just gloating that -- that the fellow had lost? What was the point of it? He must have thought there was a problem, right?

Scalia:

If we find -- if we find that these lawyers did abandon their client, would there be some sanction imposed upon them by the Bar? I often wonder, just as when we find that there's been inadequate assistance of counsel in a capital case, does anything happen to the counsel who have been inadequate in a capital case? 
. . .
Have you ever heard of anything happening to them? Other than they are getting another capital case?

I was going to give you that string of quotes and then doubt whether the collective wisdom of the media, that Maples will win either 8-1 or 7-2 (Scalia dissenting or maybe Scalia & Thomas), bears any actual relationship to reality.

Oh, it might.  And my track record at predicting defense wins at SCOTUS (I never predict defense wins at SCOTUS) is less than perfect (I mean, once in a while the defense does win at SCOTUS).  But the fact that everyone who spoke (which of course leaves out Thomas) except Scalia expressed some degree of distaste for Neiman's argument and for what Alabama did and, especially, for what the lawyers for Maples did (even Scalia didn't try to defend them), there was also serious skepticism about the argument Maples was making.

The truth is that for Maples to win the majority has to decide that his lawyers didn't just screw up royally but actually abandoned him to the maw of the execution machine.  (Actually, the Court could just decide that his lawyers were not merely negligent but super-dooper-negligent-with-a-cherry-on-top.)  And for all the recognition that Maples got fucked by his lawyers (which even Scalia acknowledged, remember) and at least quasi-recognition that he got fucked by the staff at the clerk of courts office in Alabama, it's far from clear to me that there are 5 votes (which is the magic number, after all) to say that he was badly enough fucked for them to give him a break.

Because, you know, the interests of finality.  And it's not like Alabama courts didn't rule against him. And it isn't like he didn't kill anyone.  Garre explained.

The question in the case is really not who shot the victim. The question was whether Mr. Maples was going to be convicted for capital murder or murder that would result in life imprisonment.

Which might make it easy.

The real problem, as I've said before, is that Cory Maples' lawyers just fucked him a bit more dramatically than the lawyers fucked their client in cases where the courts are are routinely willing to say,

Tough shit! And don't forget to turn out the lights after everyone leaves the execution chamber.

As I said, that's what I was going to write.

But then Scott Greenfield wrote about the importance of continuing to focus on our issues, and trying to figure out how to keep the press/public interested.  Scott took as his jumping off point, this post at prawfsblawg by Lee Kovarsky of the University of Maryland Francis King Carey School of Law (naming rights being what they are, if I were a smart ass I'd wonder if they actually auctioned off the school's name to the highest bidder or simply jumped on the first person who offered a few million; of course, I'm not a smart ass, so those thoughts never crossed my mind).

Kovarsky has a simple question:

Is the recent spike in public attention to the death penalty a fleeting feature of Republican Primary coverage, or does it signal a more durable interest in capital process and outcomes.

The death penalty is, Kovarsky says, hopelessly racist in fact if not in theory and certain to kill some number of innocent persons.  On the former point, he discusses a now-murdered client of his, Milton Mathis.  On the former, he points not to the dead (Troy Davis, Cameron Todd Willingham) but to the exonerated, including his client Anthony Graves.  We've done it, he says, and we'll do it again.

To believe otherwise is to live in denial of basic probability. The best death penalty defenders can say is that we can't pinpoint the specific cases. That's not the point.

Which is exactly right and precisely expressed.

But so what, he wonders.

In light of these two critiques - featured prominently alongside Perry's bruising ascent through the primary field - is the recent spike in focus on the death penalty durable? Will any lasting coalition for legislative change develop? Or is the interest a byproduct of our cable-tv fascination with jarring political personalities? I don't feel optimistic. The first calls on Milton's case from the national media were from well-intentioned reporters seeking to situate the execution in a broader narrative about Perry.  And media coverage of the death penalty generally has sputtered while Perry's star fades.

But maybe even the passing surge of interest is enough to counter the inertia in death penalty states? Nope. The problem is less Rick Perry per se than it is the constituency to which he genuflects. While general support for the death penalty has fallen to 67 percent nationally, and while the public is particularly concerned about wrongful executions, let's not confuse a national sample with the audience at that Republican debate. That audience looks a lot like the electorate in Republican primaries of deep-red, high-execution-volume states like Texas and Alabama. And I'm guessing support for the death penalty in that ampitheatre approached 100%, innocence and systemic racism be dammed.  

OK, that's Kovarsky.  I tried to write a comment, but what I wrote wasn't allowed.  (No curse words.  I think it's probably because I was too wordy.)  Here's the guts of what I wrote.

To begin with, the reference to 67 percent of the population supporting the death penalty is at best misleading.  The data are clear that while some 60-67 percent of the population (it varies by poll) support the death penalty as a punishment for murder when the question is yes or no, when there are alternatives the percentage shrinks dramatically.  Add LWOP into the mix and the percentage drops dramatically - by some polls to less than 50 percent.  Add LWOP with financial support (from prison earnings, say) to the family of the victim, and the polls consistently show less than 50 percent.

The polls also show that somewhere around two-thirds of the people think we've executed innocent people in the past 5 or 10 years but that roughly two-thirds of them still support the death penalty (again, as an abstract, yes or no question).  But as I've argued elsewhere (see here), there are polls and there are polls.  The ones in the jury room are as revealing, and perhaps as meaningful, as the ones conducted by the professional pollsters.

It may be that Rick Perry's capital record is responsible for some of the media flurry around the death penalty recently, but there was plenty when the Supreme Court ordered the Troy Davis case back to the district court for a hearing.  As there was when Karla Faye Tucker was killed.  As there was when Ted Bundy was.  As there was when . . . pick your death row celebrity.  It wasn't a presidential campaign that led to legislative repeal in New Jersey, New Mexico, and Illinois.  It wasn't a presidential campaign that led to the New York Legislature not enacting a law that would have satisfied the New York Court of Appeals holding and reinstated the death penalty in that state.

I'm not starry-eyed about any of this.  National abolition is a very long way from occurring, and Texas and many other states will likely get there, if they ever do, kicking and screaming.  But to think that attention to and effective action toward abolition is largely a function of Rick Perry's record (or the cheers from the throng at the debate) is to seriously oversimplify and to draw a false conclusion.

I copied all that in here because I want to use it to make a point of mine (rather than just to respond to Kovarsky. Movements are hard.  If you're watching Ken Burn's documentary sequence on Prohibition (or if you read Daniel Okrent's Last Call: The Rise and Fall of Prohibition), or if you study the history of women's suffrage (which Okrent convincingly shows was linked to prohibition, by the way) or any other major social movement, you'll discover that it takes enormous time and commitment and energy.  Prohibition didn't happen overnight.  The 18th Amendment was ratified in 1919, but Okrent shows that what he calls "the nations first large-scale expression of anti-alcohol sentiment" dates to 1840.  That's 70 years.

Changing the world takes time.

Death sentences are down.  Executions are down.  The criminal justice system still fucks people over regularly, even when their lawyers don't.  

Greenfield writes

For the brief, shining moment that Americans are hearing about potentially innocent, or  definitely mentally retarded (except in Texas) men being executed, the least we can do is strike while the iron is hot.  Given the efforts of the Innocence Project and its friends is raising our national consciousness, that our system is so fraught with imprecision and mistakes, most people are aware, at least to some extent, that their reliance on the criminal justice system, from trials to the Supreme Court, to assure us that only the guilty are executed has been undermined.  And yet, this has yet to upset enough people to cause a shift in attitudes toward the death penalty.

While writing, talking, discussing the problems with capital punishment isn't the sort of stuff that endears others at cocktail parties, or sucks in readers of all stripes, it may be a long time before people have the death penalty on their front burner again.  Pretty soon, they'll be back to paying bills and feeding mouths, the things that directly affect their lives.

Don't squander the opportunity.  And really, who cares about Christie's weight or Perry's hair?

Which is right.  Troy Davis's execution, coupled with Rick Perry's record and attitude put the death penalty on the front page, and abolitionists must take advantage of that.  But even though it won't stay on the front page, even as it drops below the fold and then to page 27, it will be back.  Because there'll be another death row celebrity and another case that cries out and gets the media's attention.  It's happened before, and as long as we keep killing people, it will happen again.

And in time.

Kovarsky talks about McCleskey v. Kemp.  It will, he says,

ultimately assume its rightful place in the anti-canon next to Dred Scott and Korematsu, involved an equal protection challenge to the death penalty. Recently-deceased Professor David Baldus provided as evidence a study that showed that, controlling for other variables, non-white offenders were 1.7 times as likely to receive a capital sentence as white offenders. Killers of white victims were 4.3 times as likely to be capitally sentenced as were killers of non-white victims. This, the Court ruled, was just the cost of doing the states' capital business.

And if the species survives long enough, he'll be proved right.  And abolition will come to pass.  In the meantime, as they kill more of his clients, and more of mine, we can know that each execution takes us closer to abolition.  That's no comfort, but it's not something to forget, either..