Of Course If We Took the Constitution Seriously, We'd Never Execute Anyone. Then Where Would We Be?

GEORGIA ON MY MIND

I wrote about Warren Lee Hill a couple of weeks ago.  He's on death row in Georgia and the powers that be in the Peach Tree State are intent on killing him.  Of course, it'll be unconstitutional for them to do that, but so far nobody much seems to find that troubling.

Warren Lee Hill

See, he's mentally retarded.  All seven experts, including those hired by the state, who've examined him agree.  But Georgia doesn't find that sufficiently compelling evidence.  See, originally the state's experts disagreed, and in Georgia retardation only counts if it's proved beyond a reasonable doubt.  Which, they say, it wasn't.  So just because the expects who once said Hill wasn't retarded have reconsidered in light of new understandings of retardation and now say he is - well, if we let actual understanding get in the way we'd never kill anyone. Besides, there are all these procedural things that make it pretty much impossible for Hill to get relief.

But the Supreme Court, they can fix it.  Surely the won't let an obviously unconstitutional execution go forward.  They, after all, are the last word on what the Constitution does and doesn't allow.  And they're the ones, remember, who said that the constitution doesn't allow the execution of people who are mentally retarded.

Monday the Supreme Court refused to intervene.  

Hill's case is still mired in the courts with other legal issues, but they're likely to be resolved against him.  Then, with the blessing of the Supreme Court, Georgia can violate the Constitution and kill him.

SO GOES THE NATION

Much more legislation is proposed than is enacted.  That's not just true in Washington where it seems that nothing of substance can be done.  It's true in the state legislatures, too.  So it was that back in August when Representative John Becker, with not a single co-sponsor, introduced House Bill 244 for consideration by the Ohio General Assembly I determined to ignore it and suggested to those who expressed their concerns to me that he was just grandstanding.

Oh, Becker did what legislators do when they introduce a bill in order to get a headline.  He issued a press release.   Here's the whole thing.

Becker Introduces Bill To Broaden Death Penalty For Sex Crimes

COLUMBUS - State Representative John Becker (R-Union Township) today announced that he has introduced House Bill 244, legislation that provides prosecutors with the option of pursuing the death penalty for certain sex-related crimes.

“In light of the Ariel Castro kidnapping case of three young women in Cleveland, I wanted to give prosecutors the option to pursue the death penalty for repeat sexual offenders,” Rep. Becker said. “For various reasons, I anticipate that the death penalty would be pursued in only the most heinous crimes.”

The crimes in the legislation include aggravated rape, aggravated rape of a child, aggravated sexual battery, aggravated sexual battery of a child, and aggravated unlawful sexual conduct with a minor.

“If House Bill 244 becomes law, prosecutors would be able to use the death penalty threat as a tool for plea bargain negotiations,” Rep. Becker said. “Nobody in this country has ever been executed for a sex crime, but that could change.”

The legislation will soon be referred to a House standing committee for further consideration.

It would be clearly unconstitutional.  In 2008, the Supreme Court said in Kennedy v. Louisiana that the death penalty for an offense that didn't involve a homicide was unconstitutional.  And it's stupid.  Becker's announced purposes, after all, are to both ensure that some folks are killed and to use the threat of execution to get plea bargains.   Really, he can't have it both ways.  Either he wants to see these guys executed or he wants to scare them into pleading guilty.  

Representative John Becker

Becker was inspired by the Ariel Castro case which made him realize that something had to be done to execute (or scare in pleading) people like Castro.  You remember Castro.  They threatened to bring capital charges and he entered a guilty plea.  Guess they didn't need this bill, which is a good thing, because it actually wouldn't apply to people who do what he did.

Anyhow, after a brief flurry in response to the press release, the thing disappeared from everyone's radar.  No one paid it any attention at all.  Until this week when there've been another bunch of stories in the press.  Becker's been running around saying that he thinks this can be used to convince the Supremes to overrule Kennedy.*  Because Ariel Castro.  To whom the thing wouldn't apply.  

And who, it should perhaps be noted, executed himself without Becker's assistance.  

On the other hand, the Supremes are perfectly happy to let Georgia conduct an unconstitutional execution.

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*Over at A Public Defender, Gideon wrote:

In Kennedy, Kennedy wrote that the 5 states that had authorized such a penalty did not constitute a “national consensus” and that it violated the prohibition against cruel and unusual punishment.

Rep. Becker wishes to create that “national consensus”, stating that the bill is modeled after the law in half a dozen states. Which is 6. 6 states out of 50. And which is decidedly not the law. See, Kennedy, supra.

Two Stories: The Harry Potter Edition

VOLDEMORT IN COURT

It was 1995 when the good people of the Land of Enchantment (New Mexico for you folks who haven't marveled at the Sangre de Cristo mountains), through their elected representatives in the state Senate, unanimously approved an amendment to a bit of legislation.

When a psychologist or psychiatrist testifies during a defendant's competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.

Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant's competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.

Did I mention that it passed unanimously?

It's not just the mental health folks, of course. So-called "experts" who testify in court are, too often, no more than paid whores.  Not all, maybe not even most.  But plenty.  And of course juries struggle because they really haven't a clue whether Expert A for the prosecution who says "Yea" has any better handle on the truth or any greater degree of integrity than Expert B for the defense who says "Nay."  Who's more credible has, frankly, almost nothing to do with who's right.

Enter Dr. William B. Barr, "Witness for the Prosecution," as the headline of Russ Buettner's article in the Times puts it.

After hours of harsh questioning from a defense lawyer, the psychologist testifying for prosecutors twisted ever so slightly in the witness stand.

How could it be, the defense lawyer had asked, that 20 other doctors examined the defendant, a Portuguese fashion model, and concluded he was in the throes of a manic episode at the time he killed his companion — and only you determined that he was faking it?

How could it be that the rule book for your profession says a manic episode can come on rapidly — and yet you insist that the book is wrong on that point?

And how could you conclude that the defendant, who has a degree in physical education from a college in Portugal, learned how to invent an insanity defense in a college psychology class, without having any idea whether he even took such a class?

With that, William B. Barr shifted a bit in the witness chair. He tilted his head to one side, but he did not lose his cool.

“It’s my assumption that getting a general degree from a university, that chances are that someone has studied psychology,” he answered calmly.

Barr has respectable credentials.  He also has a point of view.  That's one reason the prosecutors turn to him.  The other is that he presents well.  Jurors believe him.  They believed him in that case, and the defendant's now serving time for murder.  

It's theoretically possible, I suppose, that Barr was right in that case.  The thing is that the jurors didn't know either.  But they believed - or believed enough.  After all, proof in the courtroom and the law isn't about what happened.  It isn't about what's true or correct.  Proof, including proof beyond a reasonable doubt, is simply whatever the jury believes.  (It's a bonus, of course, if what the jury believes comports with reality, but it's not a feature of the system.)

DUMBLEDORE KEPT OUT OF COURT

Occasionally, the experts agree.  They do about Warren Lee Hill.  All seven of them.  The ones tapped by the state of Georgia and the ones Hill's lawyers hired.  They all agree.  He has mental retardation.  

That might not be a big deal, but Hill's on death row and Georgia wants to kill him.  The thing is, unless those experts are all wrong, it's unconstitutional to execute him.  (See Atkins v. Virginia.)  And there's no evidence that they're all wrong.  Georgia's efforts have so far been stymied, but , of course, is planning to kill him.  They've been stymied in the effort so far, but it looks like, well really, it may all be up to Anthony Kennedy.

See, Georgia said that Hill didn't prove beyond a reasonable doubt that he drooled uncontrollably and walked hunched over and couldn't tie his shoelaces had mental retardation which is the peculiar and perhaps unconstitutional test (I say "perhaps" because the question hasn't been answered by the courts) that the Peach Tree State employs.  And Hill has already had one pass through federal court which means he can't go back there.  So he's now gone directly to SCOTUS.  Jesse Wegman in the Times.

The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.

Of course, talking about the Court as if it's a unified body with a single point of view is to miss the point rather dramatically.  The question isn't how the Court "views its ultimate power," it's how 5 votes come out.  Typically in these cases (not always, but typically) that means, as I said, that Anthony Kennedy probably holds Warren Lee Hill's life in his hands.

My guess is that he doesn't see it exactly that way.  I suspect he thinks of himself as a judge/Justice making a decision.  Which he is, of course.  But he's also in this case (if the vote turns 5-4, as it very well could) a god with the very specific power of life or death over an individual guy.  

Whichever side you're on, there's something troubling about a system that relies on the wisdom and judgment of any one person to decide whether this person or that one should be killed.

There are, of course, two solutions.  Stop killing people or make the decisions of the jury unreviewable.  The latter guarantees that legal and factual outrages will never be checked.  The former just means we don't go out of our way to make corpses and to turn prison guards into killers.  

Seems like an easy choice to me.  But it's not where we are.  

Which, again, puts it on Anthony Kennedy.