Thursday, July 2, 2015

Death Penalty Bind: The Price of Out-of-State Incarceration in Hawaii?

Recently, we blogged about the discontent in Massachusetts over the death sentence for Dzhokhar Tsarnaev. For people living in an abolitionist state, this outcome from the federal system was quite a shock.

Today's news bring a similar shock to Hawaii, which abolished the death penalty in 1944. As I learned during my sabbatical at University of Hawaiʻi at Mānoa, Hawaii houses more than a third of its inmates out of state, on the mainland. Hawaii's former governor, Neil Abercrombie, was elected partly based on his promise to bring the inmates home, and found that doing so was more difficult than he expected.

One unexpected outcome of the horrendous Supreme Court decision in Glossip v. Gross is that two Hawaiian inmates, housed at a private facility in Arizona, are now realistic candidates for execution--for a crime committed during their incarceration on the mainland. The Civil Beat reports:

Because the Supreme Court on Monday upheld the use of a controversial drug that happens to be used in Arizona executions, the high court may have set the stage for Miti Maugaotea Jr. and Micah Kanahele to die from the effects of a drug whose use wouldn’t even be a consideration in their home state.

Kanehele and Maugaotea both face trial for the 2010 murder of another Hawaii prisoner, Bronson Nunuha. Trial is set for August of next year, and prosecutors will seek the death penalty, an official with the Pinal County (Arizona) Attorney’s Office confirmed Tuesday.

. . . 

The crimes that Kanehele and Maugaotea are accused of are horrific. Media accounts say their alleged victim was found stabbed 140 times, with the initials of Kanehele and Maugaotea’s prison gang carved into his chest.

But both inmates are only incarcerated in Arizona because Hawaii found outsourcing its prison needs to CCA a more cost-effective option than building more prisons of its own. While they and others are there, are we comfortable with them being subject to the penalties of Arizona — even a punishment so singular and controversial that we took the highly uncommon step decades ago of outlawing its use in Hawaii?

Our decision in 1957 would suggest we are not. As Chang said last year, Hawaii is a society that does not put people to death, no matter how heinous their crimes. And as Justice Breyer wrote on Monday, the death penalty may well violate the very basis for our democracy — the U.S. Constitution.

It may be too late for Hawaii to save the unfortunate lives of Kanehele and Maugaotea, whose previous violations and alleged brutal murder of Bronson Nunuha have set in motion wheels of justice that may be beyond this state’s control.

But if we really believe in the values that we claimed in 1957, we should think hard about putting Hawaii inmates in facilities where further crimes might result in a penalty we would never have imposed ourselves. Gov. David Ige, Attorney General Doug Chin and director of the Department of Public Safety Nolan Espinda should use Monday’s controversial Supreme Court decision to examine anew our options under the agreement with CCA and determine whether punishment by death was intended to be part of the incarceration bargain. 

This grim situation is a reminder that, as in the case of same-sex marriage before Obergefell, the state-by-state solution for the death penalty does not insulate some jurisdictions from the punitive decisions of others (and vice versa). While the depressing result in Glossip does not bode well for nationwide abolition, and while I still think that abolition will come, in my lifetime, from an aggregate of local decisions, this slow and low-key process has some unfortunate results.

Props to Edi Kinney for alerting me to this article.

Monday, June 29, 2015

BREAKING NEWS: SCOTUS Allows Oklahoma to Use Midazolam for Executions

The Supreme Court has just issued its decision in Glossip v. Gross, a petition on behalf of Oklahoma inmates along the familiar lines of tinkering with the machinery of death. After the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce (partly because European countries, disgusted with our retention of the death penalty, stopped exporting it.) As a solution to the problem of not being able to kill people, Oklahoma has introduced a substitute, the anesthetic Midazolam. This morning's decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method.

The "tinkering" line of death penalty cases stems from the post-Gregg convention that the death penalty is constitutional in principle, and therefore there must be a constitutional way to administer it. The problem is that, in the search for such a way, we have tried and abandoned several methods. As Austin Sarat shows us in Gruesome Spectacles, there really is no good way to kill people: approximately 3% of all executions are botched. The line between an execution that "went well" and one that didn't becomes remarkably blurry with the modern, pseudomedical ways to kill people. Still, there are enough documented lethal injection cases in which things did not go as planned to remind us that, no matter how clean and medical they appear, all of these methods will essentially fail to achieve the impossible distinction between death and suffering.

You can't divorce death from suffering: death is suffering. And it is clinging to the farce that the two are separable that makes court decisions on this matter farcical as well. Today's decision complains about "activists" that have made the drug scarce--as if it is their obligation to mitigate the harm. It also finds that the inmates have not offered a better solution to the state, as if they should wrap the executioner's ax with velvet: "here, this might be more comfortable for me."

What would happen if we let go of the assertion that there must be a way to kill people? If we let go of incessant litigation about the technologies of death? If we let go of the immensely costly post-conviction mechanism in which death row attorneys, completely out of options that invoke a true fundamental conversations about the heart of the matter, have to juggle chemicals and contraptions arguing that no, this one ain't good enough, either?

(I should say: I don't fault litigators one bit for engaging in this chatter. You do what you can with what you have to zealously defend your client. The abolitionist movement contains multitudes, and it is okay to fight for one's client's life by any means necessary while others continue to tackle the death penalty itself.)

The tenor of today's decision, which clings to the moral imperative to kill people in the face of medical and scientific evidence that doing so is truly not possible without flukes and without the suffering that goes with any inflicted death, further supports my conclusion from the last couple of years of this, namely, that the death penalty will not, itself, be executed. It will die a slow, costly death from a chronic disease--much like the inmates at San Quentin.

Friday, June 26, 2015

BREAKING NEWS: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?

Amidst the good news that are not this blog's topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.

The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines "violent offense" as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”

In Johnson's case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard--so you can be sure thta this decision is not about his niceness).

The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of "violent offense" itself. Today, the Court sided 8-1 with Johnson, finding that the definition of "violent offense" was too vague and did not provide sufficient warning about conduct.

The vagueness, according to Justice Scalia who wrote for the majority (!!!), lies in the fact that the clause provides no guidelines for what counts as "risk" posed by the crime (statistics? similarity to enumerated offenses? precedents have taken various and different tacks) and for assessing the amount of "risk". Even seemingly easy issues turn out to be difficult to call. Notably, Scalia gives the example of "prison rioting", which he is willing to say is an offense that is defined so broadly that it doesn't necessarily generate "risk" of injury (!!!). Moreover, it is not necessary that a vague statute be "vague in all its applications".

The court also rejects the suggestion that "risk" be interpreted based on what each defendant actually did, rather than based on the average case. This is important in the facts of Johnson itself: It may well be that many felons in possession of a firearm don't pose as much risk as Johnson, a white supremacist with violent plans against progressives and minorities, but Johnson needs to be judged by the overall risk of the offense, not by his particular plans.

Finally, the court states that its decision is prompted by the massive confusion among lower federal courts on how to interpret the clause.

Justice Thomas arrives at the same conclusion via a different path--finding that possession of a firearm does not the definition in the residual clause. He agrees with the sole dissenter, Justice Alito, that the statute is not so vague as to merit its invalidation.

A few thoughts:

  1. It's hard to ignore the particular facts of this case given the tragic events of last week in South Carolina. Johnson's plans were similar to those that Roof put into action. Is the 8-1 decision here explainable, politically, via pro-gun sentiments among the conservative Justices?
  2. This decision might suggest that the Court has lost its appetite for sentencing enhancements. In Criminal Procedure II, I teach cases that have bent over backwards to uphold enhancements--including, in the case of California's Three Strikes, the ability to add two strikes at the same time (which obviously can't be justified by the need to deter--just by the wish to incapacitate.) Here we see that the Court pays a lot of homage to the idea of behavior modification, invoking the principle of legality. If I were teaching first year criminal law next year, I'd teach this case on the first day of class.
  3. The decision also highlights a disenchantment with the language of risk and panic, which has characterized so much of American criminal justice in the era of the "New Penology". 
  4. Many commentators on the new state of criminal justice, including me in Cheap on Crime, have pointed out that much of the new project of scaling back mass incarceration addresses nonviolent offenders, and retrenches opinions about violent offenders by lumping them all in the same category. I find it remarkable, and heartening, that this decision strikes at the heart of the issue, arguing against an overbroad category of violent offenses. I'm not sure Johnson should necessarily be on that side of the distinction, but as the Court states, this is about the offense, not about the offender.
  5. Finally, I find it notable that Justice Scalia--who, in Brown v. Plata referred to inmates as "speciments"--chose, as one of his examples, prison rioting, explicitly stating that the definition of rioting is so broad that it is not necessarily a violent offense. Attorneys in Ashker v. Brown, the lawsuit against long-term solitary confinement, should take note of this comment. I think it's important. It's the third Supreme Court statement this week that is sympathetic to prisoners.

Wednesday, June 24, 2015

Must Motel Owners Keep Detailed Registries and Give Them to the Police?

The Fourth Amendment protects "people, not places", but in applying it the courts seem to care quite a bit about places, too. As Jason Miller's explains in his useful note in the Seton Hall Circuit Review, while the Fourth Amendment principles behind hotel room searches are the same as behind any search (reasonable expectation of privacy awards standing for overnight guests), but hotels pose special fact-sensitive challenges, including registration under an alias, registration for a third party, paying with a fradulent credit card, exceeding checkout time, and the classic from Minnesota v. Carter--booking a room solely for the purpose of bagging cocaine.

But this week's decision in Los Angeles v. Patel required the Supreme Court to examine hotel searches via a different prism. This was not a motion to dismiss evidence or a §1983 lawsuit, but rather a facial challenge brought by motel owners against a Los Angeles city ordinance that requires them to maintain a careful registration of hotel guests' names, makes of cars, photo ID for cash payers, and sometimes credit card information. The information needs to be kept for 90 days and--which is the provision at issue in Patel--made "available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” Failure to comply, a misdemeanor, is punishable by up to six months in jail and a$1,000 fine.

The reasoning for the ordinance are fairly obvious: in his dissent, Justice Scalia explains that "The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels’ guest registers to ensure that they are properly maintained." But it is also understandable that Los Angeles motel owners are well aware of other reasons why their clientele might not wish to be exposed in the registry, and see the ordinance as an interference with their business model (apparently, there's a whole line of hotels called "Mr. and Mrs. Smith"!).

Can they successfully challenge the Fourth Amendment, even though in any individual guest's case the police might be able to search a room with a warrant or a recognized exception? By a 5:4 majority, the Supreme Court answers this question in the affirmative.

Justice Sotomayor, who wrote the Opinion of the Court, found that the Fourth Amendment is as useful for a facial attack as any other constitutional provision. In doing so, she distinguished Sibron v. New York (1968), in which a facial attack failed, by arguing that the statute in Sibron was new and difficult to interpret (and therefore unlikely to be struck down.) Sotomayor provided several examples of prior facial attacks based on the Fourth Amendment, such as student athlete and employee drug testing schemes, and the successful challenges to drug testing schemes for candidates for office, warrantless arrests in the home, and luggage searches for people arriving in Puerto Rico from the United States.

In response to the government's contention that the ordinance in Patel differs from those examples in that hotel searches under it will not be universally unconstitutional, Sotomayor points out that the applications examined in light of the constitutional challenges are only those that involve authorization or prohibition of conduct; by contrast, the searches that will still be constitutional (via a warrant or an exception) do not directly involve the ordinance itself. By contrast, in this case, the municipal code creates a sanction for noncompliance with the police search of the records themselves, which is what is at issue here, and not for noncompliance with the request to search a room (backed by a warrant or an exception).

The requirement to keep a registry and provide it to officers upon request, under threat of arrest, is problematic because it does not allow for an opportunity to obtain precompliance review by a neutral decisionmaker: "A hotel owner who refuses to give an officer access to his or her registry", writes Justice Sotomayor, "can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice". For the ordinance to be constitutional, it is not necessary to have overview of each and every request for hotel records; it is, however, necessary to have the opportunity for overview "in those rare instances where a hotel operator objects to turning over the registry. " This overview could come in the form of an administrative subpoena which, by contrast to a full search, does not require probable cause. And if there is concern that someone might tamper with the records, the police can guard the registry until the issue is resolved.

In his dissent, Justice Scalia argues that the motel owners' petition is not a "case" or a "controversy", and that whenever facial attacks have succeeded, they were not aimed at the law but at its application. And on the merits, hotels (like cars, other businesses, and administrative agencies) can constitute exceptions to the normal search and seizure laws because they are closely regulated businesses. Scalia proceeds to examine the arrangement under the ordinance and argues that it provides a reasonable balance between governmental interests and privacy interests.

In a separate dissent, Justice Alito argues that not all applications of the ordinance are against Fourth Amendment law, which does not award protections in many situations equivalent to those in the ordinance.

A few thoughts:

1. The examples provided by Justices Scalia and Alito in the dissenting opinions present motels as hotbeds of dangerous criminal activity, complete with child porn, murder, sexual assault, and kidnapping. Justice Sotomayor obviously avoids these examples. I like to draw my students' attention to the fact that factual patterns, and examples, often explain judicial opinions, in that they drive the judicial imagination to the scenarios in which the law is likely to act.

2. I wonder if the dissent were less vociferous if the challenge to the ordinance came from five-star hotels, and not from motels.

3. The majority opinion suggests that there's an "easy fix" for the ordinance: an administrative subpoena that can be challenged. How long could it possibly take for the City of Los Angeles to produce the requisite form and make the ordinance constitution-compliant?

Props to Mark Edwards for drawing my interest to this case. 

Monday, June 22, 2015

How Should People in Pretrial Detention Be Treated? And--a Primer on the "Reasonable Man"

Most issues reviewed on this blog that pertain to prison conditions are legally assessed under the Eighth Amendment's prohibition against cruel and unusual punishment. Therefore, one of the ways in which the state tries to avoid accountability for the way it treats people is to argue that their situation does not count as "punishment"; and, indeed, the Supreme Court has routinely decided that many situations don't count as "punishment", and therefore do not merit an intervention, no matter how cruel and unusual the state's behavior might be.

Pretrial detention has been explicitly left out of the category of "punishment", per Bell v. Wolfish (1979). But today's decision in Kingsley v. Hendrickson is a step forward in protecting pretrial detainees from use of force and violence while behind bars.

Michael Kingsley was arrested on a drug charge and held in a Michigan jail while awaiting his trial. Following the escalation of a dispute over Kingsley's refusal to remove a piece of paper from the light fixture, officers forcibly removed him from his cell and put him in another cell, forcing him to lie face down on a bunk bed with his hands cuffed behind his back. There's some dispute over what happened next; Kingsley said the officers slammed his head against the bed, which they denied. But everyone agrees that the officers subsequently tased Kingsley in the back for five minutes and then left him alone in the cell.

Kingsley filed a §1983 suit against the jail officials. Since he couldn't argue cruel and unusual punishment, he argued that the officers' behavior violated his due process rights. The legal debate that ensued revolved around the question: what legal standard should be used when adjudicating claims about use of force? Kingsley maintained that the appropriate standard was objective: that is, that all he needed to prove was that the use of force would have seemed excessive to a reasonable officer at the time. The officers, by contrast, argued that the appropriate test was subjective, i.e., that Kingsley would have to prove intentional conduct on their behalf (very much akin to the standard employed in Eighth Amendment analysis in similar cases involving inmates). Since officers are likely to perceive their actions as appropriate (or at least claim they were appropriate later in court), you can see why the former standard is more favorable to the plaintiff.

The court found, 5:4, for Kingsley. The division of votes is pretty much what you would expect; Justice Breyer wrote the majority opinion, finding that an objective standard is appropriate here.

Whenever I talk to my students about the reasonable man, I draw someone like this on the blackboard:

Whenever courts hold someone to an objective standard of behavior--and this can happen in the context of a trial for criminal negligence or in a disposition of a search and seizure incident--it essentially compares the behavior of the person in question to an imaginary person. The "reasonable man" is not a statistical aggregate of all the people in the world; even if one's attorney summons all the people in the world and they testify that they would behave just as the defendant has done, it's not enough. The court is the sole arbiter of what a "reasonable person" would have done, and sometimes it deliberately sets the standard just a bit higher than the behavior of an average person, or of the defendant himself. The reason for that is that negligence, reasonability, and other objective standards rarely address issues that were within the defendant's awareness and intent, and the court seeks to educate people who might be in the defendant's shoes at a later time on how to behave.

If this seems harsh, take into account that the court's "reasonable man" is not entirely divorced from the circumstances in which the actual actor found himself. As Justice Breyer reminds us in Kingsley, "[a] court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." In our case, in which the officers had to decide how to treat Kingsley for his paper-on-the-light-fixture violation, the court's assessment of the officers' reasonability may include the following factors: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting."

Justice Breyer explains why the objective standard is suitable in this case. He starts off by reminding us that, precisely since pretrial detention is not "punishment", whether or not the officers intended to "punish" the detainee does not matter for the disposition of the case. Moreover, it is a workable standard, which might even be included in training materials for jail personnel anyway. And finally, even though the standard is objective, since the examination takes into account the officer's perception at the time, it protects officers who acted in good faith.

Justice Scalia's dissent ties Kingsley to Wolfish, arguing that the objective standard is not enough to equate the behavior to punishment. Ironically, juxtaposing the majority and the dissent leads to some unclarity on which situation benefits the defendant more: framing pretrial detention as "punishment" or as something else. And Justice Alito's dissent brings up even one more possibility, which is as of now undecided--the question whether a detainee in Kingsley's situation could raise a Fourth Amendment claim.

Detainee rights advocates may find some encouragement in the fact that the majority opinion subverts the usual problem with non-punishment confinement situation, which is the inability to apply Eighth Amendment protections to them, by supporting a test that is actually more favorable to the defendant. But what is even more remarkable is that the decision leaves the door open to Fourteenth Amendment claims of excessive force not only on behalf of detainees, but on behalf of convicted prisoners:

We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.

What with this, and with Kennedy's concurrence in Davis v. Ayala last week, this was a good week for promising dicta sayings that are sensitive to prisoners' rights and to correctional excesses.

But lest we become overly overjoyed, let's keep in mind that Kingsley's ordeal dates back to 2010. The conversation about bail and pretrial detention often expounds on how much better off you might be if you are not detained before trial: it's easier to prepare your defense, communicate with your loved ones and with your attorney, and keep your job, not to mention avoiding doing time that might later become "time served" by default. Kingsley is a reminder that pretrial detention also exposes one to violence and force, which hindsight support from courts--even from the Supreme Court--cannot undo.

Props to Mark Edwards for drawing my attention to this interesting case.

Friday, June 19, 2015

Are Mass Murderers and Serial Murderers Inherently Mentally Ill?

Goodbye, Friends.

As we were all still reeling from the horrific mass murder in Charleston, still too shocked to properly mourn the nine innocent victims--priests, coaches, students, parents, sons, daughters, siblings, spouses, coworkers, and friends, who got together to worship and were viciously attacked for no other reason than the color of their skin--the nomenclature debate began: what shall we call their killer? A terrorist? A mentally-ill person? A mass murderer?

Inevitable racial comparisons are made: Islam-motivated crimes tend to earn the label "terror" faster than white supremacy-motivated crimes (was the horrific murder of the Charlie Hebdo caricaturists "terror" or "mass murder"?). Personally, the word "terrorism" carries for me international law connotations, so I don't tend to us it in the context of domestic crimes; others may disagree. And while I would prefer devoting more energy to remembering the victims and supporting their families, I understand why it is inevitable, in the aftermath of a horrific crime, for all of us to try and make sense of what happened. One way in which people try to do that is debate the mental health of the perpetrator.

One obvious reason mental health becomes an important question is the question of legal accountability: it is really hard for us to experience the consequences of a heinous crime without wanting to see the perpetrator punished, and we worry that, if he is found insane, he will not bear this responsibility. South Carolina has a two-tiered standard for mental illness. Defendants bear no culpability at all ("not guilty") if they satisfy what is known as the M'Naghten Rules. Under these rules, which are law in many U.S. states, defendants claiming insanity have to prove, by preponderance of the evidence, that they suffered a mental disease or defect (usually this requires proof of psychosis, as opposed to neurosis, even though law lags some behind psychiatry in terms of the distinction), and as a result were unable to:

(1) distinguish right from wrong (e.g., a person with mental illness who believes that he or she are God's emissary, and that killing the victim is a moral right); or--
(2) understand their act in the framework of right and wrong (e.g., a person with mental illness who thinks his victim is a hologram or an inanimate object, and it is therefore not wrong to shoot her.)

The second tier in South Carolina law allows for a verdict of "guilty but mentally ill", which turns upon the "irresistible impulse" standard. Upon a finding that the defendant committed the crime beyond a reasonable doubt, the defendant has the burden to prove, by preponderance of the evidence, that because of her mental illness she could not refrain from committing the crime (e.g., a person with mental illness who hears voices commanding him to kill, which he can't resist, even though he knows it's wrong.) It should be noted that many countries, including common-law countries, accept "irresistible impulse" as an absolute defense (after all, it's about the denial of free choice, which is the underpinning of modern criminal responsibility!), but the United States has not followed that path.

Even though the standard for the insanity defense is legal, not purely medical, psychiatrists are in some ways the gatekeepers. After all, many people who commit horrific acts of mass murder might believe that their acts are justified (as the defendant in this case is, outrageously, arguing, evoking the tired cliché of the hypersexualized black male to justify his actions), without suffering from a recognized mental illness. But it is also important to keep in mind that what constitutes a mental illness is malleable, and changes periodically. The DSM has seen several editions over many decades; the elements of diseases change; some are categorized differently, and some (thankfully) cease to be defined as mental illnesses at all. Sometimes, the classification of a behavior as a mental illness is welcomed not because it delineates pathology, but because it allows people to receive health care in a country with no universal provision for health care.

But it's important not to leave unexamined the impulse of some commentators to see mental illness before any official diagnosis is on the horizon--that is, the idea that just the fact that a heinous crime has been committed in itself suggests that the perpetrator is mentally ill. South Carolina law explicitly rejects this notion, stating that "[e]vidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity." Nonetheless, in our appetite to make sense of a horrible tragedy, we try to go there. In my current study of the Manson "family" parole hearings, I'm coming across many people for whom the question whether Manson himself is mentally ill, or whether his followers suffered from some form of collective psychosis, is still relevant and hotly debated; I can see how and why people would use the mental health framework to try and understand a shocking crime, which is now seen by many as having put an end to the romantic notions of the sixties.  Assuming that someone who is capable of committing heinous murders has to be mentally ill might be a protective mechanism, distinguishing"us", the healthy, from "them", the sick, and reassuring us that "we" could never do such a thing. As sociologist Emile Durkheim argued in the late 19th century, defining another's deviance fosters social solidarity. And as Michel Foucault argued in Madness and Civilization, one of the main features of modernity is the need to cleanse and categorize and separate the sane from the insane.

It is also, of course, telling that the labels are applied in a racialized manner; even though the murders in Charleston easily lend themselves to being understood as a murder in the context of racial supremacy (if you will, a mental illness that has characterized this country for centuries), there are commenters who intuitively gravitate to individual mental illness as an explanation, preferring the medical context to the political one. Ely Aaronson's new and terrific book From Slave Abuse to Hate Crime speaks extensively of the mechanisms that led to the framing of anti-black violence as hate crime. Aaronson problematizes the usual arc-of-progress linear narrative, that "things are better than they used to be", by showing how, with every iteration of an effort (usually by white moral entrepreneurs sympathetic to black plight) to criminalize white-on-black crime as hate crime, there are new barriers for the effective enforcement of the new label.

We know a few things about the suspect in the Charleston murder already: he is a confirmed and proud racist, with a long history of activism in white supremacy groups (he is also in his early twenties, which is the typical age for early onset schizophrenia, but it also happens to be the typical age at which people tend to commit violent crime in general, so that's neither here nor there). If he is not insane, in the legal sense of the world, why does his deed still seem so "crazy"? is it just the heinousness of the act? In his new book Listening to Killers, psychiatrist James Garbarino says that, while most killers do not meet the official parameters for an insanity defense, they nonetheless kill for reasons that are "crazy" to us:

Most of the killers I listen to commit their crimes in states of mind that mimic the conditions that define legal insanity: they believe that in their world what they are doing is necessary and therefore right. They are so emotionally damaged that in their minds they have lost sight of the relevance of “right and wrong.” They are responding to powerful emotional forces—often unconscious forces—over which they have little if any control, at least in the moment of their violent action. It is in this sense that they make “crazy” choices.

The more than fifty murder cases in which I have been involved over the past twenty years have included many different explanations for the violent choices made. When looked at from the outside observer’s point of view, many seem crazy. However, each makes sense when looked at from the inside of their minds (and hearts in some cases).

Garbarini lists, in his typology of "crazy" reasons to kill, the following: survival (preemptive violence when feeling threatened); lust for power; monstrous narcissism; existential honor (real concerns that without honor one will cease to exist as a person); retaliation for sexual abandonment; panic; criminal practicality (crime as part of a criminal business enterprise); and even curiosity, or thrill. Really, it's hard (but not impossible) to think of a "not crazy" reason to kill (self defense, duress, and necessity are all efforts to define such reasons; there's a reason why they are so few and so narrowly defined).

That we are horrified, shocked, angry, sad, upset at a horrific crime, that we cannot understand how someone could do such a thing, does not mean that the perpetrator is necessarily legally or medically insane. Mental illness is not a blanket explanation for everything that the "sane" world does not understand. Also, plenty of people who are severely mentally ill do not commit crime. Moreover: whether or not a particular perpetrator suffers from mental illness does not negate the observation that this country suffers from a collective sociopolitical illness of white supremacy. The two categories are not mutually exclusive, and people often do good and bad things for a variety of reasons. As Maslow said, "while behavior is almost always motivated, it is also almost always biologically, culturally and situationally determined as well."

Deep condolences to the families of Cynthia Hurd, Susie Jackson, Ethel Lance, Rev. DePayne Middleton-Doctor, Hon. Rev. Clementa Pinckney, Tywanza Sanders,  Rev. Daniel Simmons Sr., Rev. Sharonda Singleton, and Myra Thompson. If only our efforts to make sense of the murder of your loved ones could bring them back.

Thursday, June 18, 2015

What Happens If the Court Disallowed Your Attorney from Attending a Batson Hearing?

The Sixth Amendment requires that defendants be tried by a jury of their peers; this raises serious questions when partisan interests bring racial considerations into the choice. Batson v. Kentucky, decided by the Supreme Court in 1986, limited the ability to use peremptory challenges (which allow each party to disqualify jurors without providing an explanation) when the pattern of challenges indicates racial (or, as later decided, gender) bias. The procedure under Batson requires three steps: the other party (typically the defense) points to a systematic pattern of racial exclusion; the excluding party (typically the prosecution) provides race-neutral explanations for the exclusion; and the court decides, based on totality of the circumstances, whether the challenges can stand.

Shortly after Batson, in 1989, Hector Ayala was convicted of a triple murder in the context of a robbery in San Diego. At the voir dire stage of his capital punishment trial, his attorney objected three times to repeated use of peremptory challenges by the prosecution against black and latino prospective jurors. Each time, the prosecution asked that the defense leave the room, arguing that they didn't want to expose trial tactics to the defense. Their actual race-neutral explanations for the peremptory challenges were concerns about criminal record, concerns about unwillingness to apply the death penalty, and personal history in following and being involved in controversial trials. The judge agreed to let the peremptory challenges stand. Ayala was convicted and sentenced to death.

Today, the Supreme Court decided Davis v. Ayala, siding 5:4 against Ayala.

The Court was willing to accept, as a basic premise, that Ayala's constitutional rights were violated; but that is not enough to merit a reversal. Under the law governing post-conviction remedies, Ayala had to also overcome the "harmless error" doctrine.

Here's how harmless error works: On appeal or on habeas, when someone successfully establishes that their constitutional rights were violated, the court also cares about whether, had everything gone well, the result of the proceeding would have been different. The first distinction the court makes is between "structural errors" and "trial errors". The former lead to immediate relief; with the latter, we're concerned about how the error might've affected the outcome. It's easier to prove that it did on appeal (where you only have to create reasonable doubt that it might have) than on habeas (where the burden of proof is higher.) Here's a basic illustration (click on the graphic to enlarge):

If this was not complicated enough, let's throw in an extra issue: in federal courts, where collateral review (habeas) happens, the procedure is also governed by AEDPA, which says, among other things, that the federal courts will not intervene in state court decisions unless they were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." This standard is said to incorporate the heightened test for collateral reviews set in the diagram above.

The Court then examined whether the county court in the original trial was right in deciding that the challenges to the jurors were neutral. Here, it goes into the questioning of the jurors, finding that, even if there were white jurors who answered similarly to the voir dire questions, there were still differences in terms of how willing they were to apply the death penalty. Or, more accurately, these similarities are not enough to meet the burden of proof that the challenges were racial and resulted in a different verdict than if they hadn't been allowed.

It is important to flag an important issue here: Under Witherspoon v. Illinois, it is perfectly okay to dismiss for cause jurors that are absolutely, 100% opposed to the death penalty, though it is not okay to dismiss for cause jurors that are merely reluctant to impose it. But, tactics-wise, if you have a juror that seems reluctant, albeit not reluctant enough to allow for a Witherspoon strike, you can certainly use your peremptory challenge on him. It's not good enough for a for-cause challenge, but it is a race-neutral, and thus legitimate, excuse for a peremptory challenge.

But what about the defense attorney's absence when the prosecutor articulated these race-neutral reasons for exclusion? The Court argues that, during the interrogation of the witnesses, the defense had ample opportunity to impact the record in a way that would indicate that the peremptory challenges were based on race. Before the prosecutor offered the explanation, the defense had an exchange with the court in which they sought to prove that the prospective jurors' reactions did not differ from those of their fellow prospective jurors.

So, Ayala loses. But what is interesting here is that Justice Kennedy files a concurrent opinion, in which he talks about the "side issue" of Ayala having been in solitary confinement ("administrative segreagation") on death row for more than twenty-five years. He says:

[I]f his solitary confinement follows the usual pattern, it is likely respondent has been held for all or
most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. . .  It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.

. . . 

[D]espite scholarly discussion and some commentary from other sources, the condition in which prisoners are  kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. . . Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In imposing
this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.

After citing numerous scholarly articles about the horrors of solitary confinement, Kennedy continues:

Of course, prison officials must have discretion to decide that in some instances temporary,
solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exa cts a terrible price . . . [including "anxiety, panic, withdrawal, hallucinations,self-mutilation, and suicidal thoughts and behaviors"]. In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” . . . There is truth to this in our own time.

This commentary, combined with his compassionate majority opinion in Brown v. Plata, in which he cited horrific neglect in California prisons and included photos, marks Kennedy as the guardian of dignity whenever prisons are concerned. In his recent book Mass Incarceration on Trial, Jonathan Simon predicts a "dignity cascade" that would hopefully lead to change in prison conditions. If that is true, Kennedy will be the herald of this cascade, and this segment indicates his intention to welcome such cases and provide real succor to those who need it most.