A Procedural Quagmire

Over at Fault Lines (and if you haven't been going to Fault Lines, you should start), Christian Farias has a post on the constitutional difficulty of getting the Supreme Court to declare the death penalty unconstitutional.  The problem is a constitutional conflict.  

Chief Justice Warren's plurality opinion in Trop v. Dulles holds that the 8th Amendment's prohibition of "cruel and unusual punishments" 

must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Those evolving standards are where constitutional abolitionists try to make their stand.  But the 5th Amendment specifically authorizes capital prosecutions and executions.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And as as Antonin Scalia, who hates Trop the way Ted Cruz hates Obamacare, pointed out in his concurring opinion (responding to Breyer's call for an outright 8th Amendment challenge) in Glossip v. Gross, 

It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.

As Farias says, 

It's a devastating textualist argument.

I'm not a textualist (though I think the text matters far more than Breyer does, since he believes more in what he imagines the Constitution wants to achieve than in what it actually provides), but I've long understood that conflict to be seriously problematic.  

Of course, the problem can be resolved easily enough by the Rule of 5.  The Constitution, after all, means only and precisely what 5 members of the Supreme Court say it does.  If there are 5 votes to say that the death penalty violates the 8th and is therefore unconstitutional, Scalia's fulminations won't matter.  And that's clearly been the hope for nearly 40 years.

But there's another way, the way Harry Blackmun was pointing in Callins v. Collins  when he concluded that the death penalty was unconstitutional.  

The 8th Amendment requires that the death penalty be imposed fairly, consistently, and reliably.  The 5th Amendment says that as long as there's sufficient process, executions are constitutional. Blackmun's epiphany, after his years of "tinkering with the machinery of death" is that the requirements cannot be reconciled.  What we've come to learn, what experience has taught, is that the framers expectation cannot be satisfied.  No amount of process is sufficient to achieve what the 8th Amendment requires.  

Here's Blackmun (footnotes omitted):

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

It's not the "evolving standards" of the 8th Amendment that the death penalty fails. It's the conditional authorization of the 5th Amendment.

At least, that's one argument.

Perilously Close

Linda Carty is on death row in Texas, convicted of the abduction and murder of her neighbor, Joana Rodriguez.  Lise Olsen in the Houston Chronicle:

Her conviction rested on the prosecution's theory that Carty, a former school teacher from the Caribbean island of St. Kitts, directed three men with criminal histories to storm the victims' apartment, steal $1,000 and carry out the mother and child's abduction at gunpoint.

The idea was that Carty was so desperate for a child that she was going to steal Rodriguez's newborn.

Her lawyer spent all of two weeks preparing for the trial.  The prosecutors, on the other hand, are alleged to have pulled out all the stops.  In particular,

In affidavits separately supplied to Carty's current defense team in 2014, the agent and two of Carty's co-defendants allege that Harris County prosecutors crossed ethical boundaries and threatened them to ensure Carty's conviction.
Retired DEA Special Agent Charles Mathis, in his affidavit, specifically accused Connie Spence, the lead prosecutor on the case, with threatening to cross-examine him in open court about "an invented affair that I was supposed to have had with Linda." Mathis insists that allegation was false, but worried that it could have clouded his law enforcement career if Spence had carried out her threat in a capital murder trial that generated considerable publicity.

(You can read Mathis' affidavit here.)

OK, the case has been up and down through the courts.  She says she's innocent.  She's always said that.  Maybe.  Maybe not.  In any case, the affidavits sure suggest that she was convicted based on coerced and contrived testimony.  Based on lies.

Which was too much even for the Texas Court of Criminal Appeals.  Here's the entire text of the court's per curiam opinion granting her a hearing on her allegations.

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5.
In February 2002, Applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Carty v. State, No. AP-74,295 (Tex. Crim. App. April 7, 2004). This Court denied relief on Applicant's initial post-conviction application for writ of habeas corpus. Ex parte Carty, No. WR-61,055-01 (Tex. Crim. App. March 2, 2005). Applicant's instant post-conviction application for writ of habeas corpus was filed in the trial court on September 10, 2014.
Applicant presents six allegations. We have reviewed the application and find that Allegations A, B, and C satisfy the requirements of Texas Code of Criminal Procedure Article 11.071, § 5(a). Accordingly, we find that the requirements for consideration of a subsequent application have been met and the cause is remanded to the trial court for consideration of Allegations A, B, and C.
IT IS SO ORDERED.

And if that was all there was, I wouldn't be writing about it.  Because it's damn good and clearly right that she get the hearing, and frankly it's rare.  But really, who knows what will come of it?  As I said, maybe she's factually innocent.  Maybe not.  Maybe the affidavit claims are true (OK probably they're true, but what do I know?), maybe not.

Except the court wasn't unanimous.  For whatever reason, Judge Newell didn't participate.  Sharon Keller did.  And, not surprisingly to those of us who've followed her, she's not buying it.

Oh, sure, maybe some jurors wouldn't have voted to convict if they knew all this stuff.  And maybe Carty didn't do it.  But hey, maybe she did.  And some rational juror might have voted to convict and kill.  Besides, she should have said all this before.

We can't just offer people another chance because they might be fucking innocent.  

Or so Sharon Keller said.  As she has before.

It was Harry Blackmun who said, in dissent from the denial of cert in Herrera v Collins,

The execution of a person who can show that he is innocent comes perilously close to simple murder.

Of course, Judge Keller would deny Linda Carty the opportunity to make that showing.  But really, that shouldn't change the calculus.

  EX PARTE CARTY, Tex_ Court of Criminal Appeals 2015 - Google Scholar

The Turkeys Are Still Winning

It won't be news to readers of this blawg that once a trial is over, questions of innocence (with rare exceptions) become legal irrelevances.

Reviewing courts, whether on direct appeal or collateral review are concerned with rules and procedures. They talk, some, about how strong the evidence was of guilt. But factual innocence is mostly beyond their proper reach. Indeed, most of the human consequence, of the real world result of decisions rendered by trial courts (and this is as true of civil as of criminal cases) is of no formal interest to appellate judges and justices.

I chose my words with some care in that paragraph. The adjectives in "legal irrelevances," "proper reach," and "formal interest" matter. Innocence and consequence don't formally count because that's not what reviewing courts review. They're not, basically (yes, there are exceptions), in the business of second guessing verdicts. They're in the business of making sure that the verdicts were reached in accord with the rules and statutes and constitutional provisions that control legal process and outcome.

For good or ill, trials are about what happened. Post-trial work is about how the trial was conducted - not about whether it came to the right result.

Of course, it's rarely quite that simple. As I've said repeatedly, the myth of judge or justice as robotic umpire calling balls and strikes is just that - a myth. But myth, albeit fictional, has power. Reality infects, but the claim must be that it does not.

Here's now-Justice Sotomayor explaining to the Judiciary Committee how she's deeply concerned about the real world consequences of her decisions and pays enormous attention to such things because they're vital. But, she's careful to add, those things and her attention to them have nothing whatever to do with the decisions she makes.

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.
In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.
The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Some justices (and judges) advert to the reality from time to time. There was, for instance, DeShaney v. Winnebago County Department of Social Services. Here's the first sentence of Chief Justice Rehnquist's opinion.

Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father's custody.

The facts, Rehnquist went on to say, "are undeniably tragic." But you know, them's the breaks. The law, he said for a majority of the court, provides no comfort. It's that Anatole France line from Le Lys Rouge.
The law, in its majestic equality, forbids the rich as well as the poor, to sleep under bridges, to beg in the streets and to steal bread.
Brennan's dissent is eloquent, bit we remember DeShaney for Justice Blackmun's words:

Poor Joshua!

In fact, we recall them wrong. We remember them as the first words of his dissent; they are not. They are, rather, the first words of the last paragraph. The whole dissent (it's short) is worth reading.

Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney — intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.
The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).
Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").
Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.

It happens, too, during oral argument - perhaps more often. Justice Stevens provided the moment last week during argument in Magwood v. Patterson when he tried to ground the discussion of whether a claim in a capital case should be heard.

Let me just ask, is this the cases in which the claim is he's ineligible for the death penalty?

No one other than he seemed to find the question even remotely relevant.

Yesterday, as Doug Berman posted (citing Josh Gerstein at Politico) it was Justice Kennedy. The case, Dillon v. United States, involves application of the federal Sentencing Guidelines to a person being resentenced. Kennedy took the opportunity to ask Leondra Kruger, an attorney with the office of the Solicitor General, about another matter. Here's the exchange, taken from the transcript.

JUSTICE KENNEDY: The Petitioner's brief opens with a statement about his rehabilitation. We don't know if that has been contested. You don't respond to it. But let's assume that's all true. He established schools and he helped young people and so forth.
Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?

MS. KRUGER: I am not aware of the answer to that, Justice Kennedy. It's certainly true that evidence of that type of rehabilitation factored into the government's recommendation in this case that Petitioner -

JUSTICE KENNEDY: And isn't the population of prisoners in the Federal prisons about 185,000 now?

MS. KRUGER: I think -

JUSTICE KENNEDY: I think it is. And how many commutations last year? None. How many commutations the year before? Five.
Does this show that something is not working in the system? 185,000 prisoners? I think that is the number.

MS. KRUGER: I -- I'm not prepared to speak to that question today, Justice Kennedy.

Kennedy's made the point before. Gerstein gives examples.

In a 2003 speech to the American Bar Association, Kennedy said:

The pardon process, of late, seems to have been drained of its moral force. Pardons have become infrequent. A people confident in its laws and institutions should not be ashamed of mercy. The greatest of poets reminds us that mercy is "mightiest in the mightiest. It becomes the throned monarch better than his crown."

The next year, Kennedy wrote in a dissenting opinion: "Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider."

Back in November, I wrote about how, after ten months in office, the only pardon Obama had managed was for a Thanksgiving turkey. I wrote then:

The power to pardon, to grant clemency, is the power of mercy. It can be used for error correction, certainly, but at it's most potent it is something more. An act of grace from the sovereign. Not earned or deserved because one cannot earn or deserve grace. It descends.

Used to be that Presidents (governors, too, but that's a different post) regularly granted pardons, clemency, commutations. No longer. And none has been as chary at granting as Obama, the man of hope and change and empathy.

The scoreboard remains now as it was at the end of November:

Turkeys 1 . . . Humans 0.

We've got health care now, or a version of it.

Isn't it time?