Saturday, July 4, 2015

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.
*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. 

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