December 19, 2010
Poets are the unacknowledged legislators of the world.
---Percy Bysshe Shelley
LAW & LITERATURE
Spring 2011 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer
___________________________________________________________________________
Course Description
The course presents insights into the nature of law and justice through the prism of literature. Each class explores timely and timeless topics arising out of the search for justice. How can Orestes extricate himself from the duty to avenge the murder of his father by killing his own mother? How shall Captain Vere punish Billy Budd’s reflexive act resulting in the death of a superior officer aboard ship in wartime? How is Antigone to obey the religious law requiring her to bury her brother and the state’s decree that she may not bury a traitor in the city? Is justice a pendulum that swings between the letter of the law and the spirit of equity? Through the eyes of art and the imagination of storytellers we shall considerer the question over and over again: What is justice?
Objective: saper vedere
If at the end of a class a student is able to say: “Now I know something I didn’t know before’ then the CLASS has been successful. If at the conclusion of class a student is able to say “I have something to think about’ then the TEACHER and the STUDENT have been successful. Leonardo said the secret to knowledge is saper vedere, to know how to see.
If at the completion of the entire Law & Literature course a student can say:
“I know HOW to see” then the course has set the course for dealing with the question: What is justice?
Law is not algebra. Justice cannot be codified according the rules of calculus. The path of justice is often littered with obstacles, conundrums, paradox, conflicting values, distractions, mirages and poor signage.
The use of art and poetry to engage justice issues is not intended to provide the student with a cohesive and comprehensive philosophy of law and jurisprudence. The successful student is invited to experience, question, theorize and think.
The course material illustrates rather than instructs. The course is a journey not a destination, a beginning not a conclusion. The course is about learning how to travel not about making a map after the journey is over.
Jan: 6, 13, 20, 27,
Feb: 3, 10, 17, 24,
Mar: 3, 10, 24, 31,
April: 7, 14
Break: Mar: 14 20
___________________________________________________________________
Lecture #1: INTRODUCTION
[January 6, 2011]
________________________________________________________________________
Course Syllabus
Basis of grading: Three papers for each of the three or four principal literary assignments will be weighted 20% for the first, 30% for the second and 50 % for the third. Each paper may be 750 words and relate the story line or a character to the important legal principles you discern in the text. We are interested in the story line ONLY as it impacts law and justice issues. The paper is due at the class scheduled two weeks AFTER the literary work is discussed in class. Good reportage is a “C” and superb insight and analysis is an “A”. See the attached Appendix for more elaboration on grading. You may contact me directly at dvish@middreut.com to discuss the class or your paper. A class ombuds committee of three will be appointed to present any complaints, suggestions or requests that an individual student may not want to present personally to the lecturer.
Class plan: There will be fourteen classes beginning January 6 and ending April 14. Three or four key literary works will be considered in lectures: #4 (January 27), #7 (February 17), #10 (March 10, this is the week before Spring break. We may defer discussion of Billy Budd scheduled for March 10 until AFTER the break), and #12 (March 31, subject to completion of Billy Budd). Other literary works and fragments treating law and justice themes and selected to enhance your insights into the principal literary works will be discussed in the intervening lectures. It is NOT necessary for you to read or read about any item marked with an asterisk (*). The material marked with an asterisk (*) will be referenced and described by the lecturer during the class.
Facebook: A class Group Page has been created under the title: Law & Literature @ Louis D. Brandeis School of Law. Weekly assignments will be posted along with discussion opportunities.
Textbooks: Richard A. POSNER, Law and Literature, Third Edition [Harvard University Press, 20090]. (Referred to as POSNER in this Syllabus).
Major Resource on line: LAW & HUMANITIES: a Bibliography of Law and Literature, Professor Daniel L. Solove, The George Washington University Law School (this is a tour de force, consult it before each class to see if there is anything that interests you or helps you with the assignment). http://docs.law.gwu.edu/facweb/dsolove/Law-Humanities/writers.htm
Reading assignments: many can be accessed online. The following works may be purchased from Amazon.com and delivered for less than $100.00 or may be read through excerpts available in the two textbooks. Only Billy Budd, Sailor must be read in its entirety. Here are the major literary works:
1. William Shakespeare, The Merchant of Venice (Oxford World's Classics: the Oxford Shakespeare) Jay L. Halio (Paperback - 2008). POSNER pages 92, 139-163. Also read the plot outline or story synopsis of Measure for Measure by POSNER pages 154-163 and pay special attention to the chart “Legal Antinomies’ on page 162. Lecture # 4, January 27, 2011.
2. Aeschylus, The Orestia (Paperback) Agamemnon, The Libation Bearers and The Eumenides (525-456 B.C.E). (Penguin Classics) by Aeschylus, W. B. Stanford, and Robert Fagles (Paperback - Feb 7, 1984) and see POSNER pages 86-92 also http://en.wikipedia.org/wiki/The_Oresteia Lecture # 7, February 17, 2011.
3. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924) (Harrison Hayford & Merton Seals, eds. U. Chicago Press 1962). Use of the Hayford & Seals edition is mandatory. Read the work in its entirety along with the essays, commentary and observations about the story. Lecture #10, March 10 2011 (this is the week before Spring break. We may decide, with advice and counsel of the entire class, to defer this important work until AFTER the Spring break). In addition, see POSNER pp. 211-222.
4. Albert Camus, The Stranger (1942) [Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial) or see POSNER pp. 60-70. Lecture # 12, March 31 2011: subject to completion of Billy Budd lectures.
5. Franz Kafka, The Trial [introduction by George Steiner] A. A. Knopf, Inc. Schocken Books, Inc. ISBN 0-8052-1040-7 or see POSNER pp. 172-187 Lecture # 15, [Provisional lecture, if needed. Classes end April 14, 2011].
Literary fragments, excerpts and the expository prose and poetry are identified in the assignments section of each lecture plan. If you have trouble finding the text online, please let me know by email. If you elect to write one paper you can begin right away and proceed during the semester at your own pace. If you elect to write five papers, one on each of the principal literary works, the paper is due at the beginning of the lecture at which the work will be considered.
The Study of Law and Literature
The law and literature movement focuses on the interdisciplinary connection between law and literature. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must be plugged into a large cultural or philosophical or social-science context to give it value and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether literary or legal. Those who work in the field stress one or the other of two complementary perspectives: law in literature (understanding enduring issues as they are explored in great literary texts) and law as literature (understanding legal texts by reference to methods of literary interpretation, analysis, and critique). From Wikipedia http://en.wikipedia.org/wiki/Law_and_literature
Journals: Law and Literature
The Cardozo Studies in Law and Literature, a leading journal on the subject for many years, has changed its name and is now part of the University of California Press (access requires subscription): http://www.ucpressjournals.com/journal.asp?j=lal
Lawyers and Literature
Website created by James Elkins, Professor of Law, West Virginia University, for his course on lawyers and literature. Various readings, links and suggestions for students and bibliographies included
Assignments for Class #1:
1. Book of Genesis: 4:1-24 The Story of Cain and Abel: 9:6, the law as explained to Noah.
Is the judge fair? Is the punishment just? Where does it come from and who imposes it? What is the nature of the justice system in the story? Identify all of Cain’s crimes. Which is the most serious? What does it mean to be avenged sevenfold? Is Lamech a murderer? Is he punished or protected?
2. Psalm 19, 7-11. What are the elements of a good legal system according to Psalm 19? Where does the law originate? What is its source, its authority? Does the source of the law in Psalm 19 have anything in common with the United States Constitution or the Declaration of Independence? Does crime pay?
3. Dante, The Divine Comedy Canto V, XX, XXVIII line 142, XXXIV [Google the word ‘contrapasso’ with Dante’s name]. Is Cain’s punishment consistent with Dante’s theory of contrapasso? What exactly is Cain’s punishment(s)? Did God provoke Cain?
____________________________________________________
Lecture #2 and #3: WORDS
[January 13 & 20, 2011]
______________________________________________________________________________
Assignments for Classes #2 and #3:
1. Mr. Justice Holmes, dissent Lochner v. New York, 198 U. S. 45, 74 (1905) (Holmes, J., dissenting) POSNER pp.341-349. See also POSNER discussion of rhetoric Chapter 9, pp. 329,331-332, 337 (Homer) -339, 450-455.
2. Richard POSNER, Law and Literature A Relation Reargued, Virginia Law Review 72, 1986, IV A. Rhetoric and Knowledge and especially his critical discussion of Justice Holmes’ dissent in Lochner “…a rhetorical masterpiece.” (POSNER p.347). How can Judge POSNER reconcile his criticism and his praise? Does POSNER approve of the use of rhetoric in the law?
3. Through the Looking Glass by Lewis Carroll
Chapter VI Humpty Dumpty (his digression on words) http://www.sabian.org/Alice/lgchap06.htm
4. Harper Lee, To Kill a Mockingbird, Chapter 19 (Mr. Gilmer’s cross examination of Tom Robinson. Begin with Tom Robinson’s answer to the last question posed by Atticus Finch. p. 386 Law & Literature: Text & Theory, edited by Lenora LEDWON (New York, 1996) (available online from Google Books).
5. Benjamin Franklin, Poor Richard’s Opinion. LEDWON, pp. 469.
6. Alice’s Adventures in Wonderland, Chapter XI, Who Stole the Tarts? and Chapter XII Alice’s Evidence: http://www.aliceinwonderland.com/ch11.html / http://www.aliceinwonderland.com/ch12.html ALICE'S ADVENTURES IN WONDERLAND/by Lewis Carroll/THE MILLENNIUM FULCRUM EDITION 2.7a/(C) 1991 Duncan Research
It is not necessary to read the following work (s) that will be cited or explained during the lecture:
*7. Ovid, Metamorphoses Book 12 (612-631), and Book 13 The Judgment of Arms (1-393). Upon the death of the great warrior Achilles on the battlefield of Troy, two people claims his sword and shield. An assembly is convened to hear the evidence and decide who is worthy: the wily Odysseus or the warrior Ajax. Each makes their case their case to the jury. http://www.mythology.us/ovid_metamorphoses_book_13.htm. The lesson from this debate is in the last 16 lines of the report.
*8. Aristophanes, The Clouds (419 BCE, Greece). A man wants his son to study rhetoric in order to learn to talk his way out of debt. http://records.viu.ca/~johnstoi/aristophanes/clouds.htm translation by Ian Johnston of Malaspina University-College (Vancouver Island University since 2008), Nanaimo, BC. The translation has certain copyright restrictions. For information please use the following link: Copyright. For comments or question please contact Ian Johnston.
*9. The Internet Encyclopedia of Philosophy, Protagoras of Abdera.http://www.utm.edu/research/iep/p/protagor.htm Author Information: Carol Poster
Email: cposter@english.fsu.edu
English Department State University FL 32306.
*10. Plutarch, Solon Athenians used to cover up the ugliness of things with auspicious and kindly terms, giving them polite and endearing names.
*11. Apollodorus of Athens (born c. 180 B.C.E.) (The Library 3.180), Pausanias and Suidas both recount the myth of the rape of Ares’ daughter Alkippe by Poseidon's son Aalirrhothios. Ares slew the rapist and was tried by the gods for murder upon the Arepagos. The trial was held on the “Hill of Ares” overlooking Athens. The trial raises the following questions? Why was the trial held at night? What role did rhetoric play in the trial? What is the “Areopagus”? See also Pausanias, Guide to Greece 1.28.5. Who was Apollodorus and what role did he play in the courts of Athens?
_____________________________________________________
Lecture # 4: JUSTICE, LAW & MERCY
[January 27, 2011]
_____________________________________________________
Assignments for Class #4 (classes #4, #5 and #6 are interrelated treating themes of justice, law, mercy and revenge):
1. William Shakespeare, Merchant of Venice (1597) (Oxford World's Classics: the Oxford Shakespeare) by William Shakespeare and Jay L. Halio (Paperback - May 15, 2008) or see POSNER pp. 139-163 Lecture # 4, January 27, 2011. See especially Portia's argument, The Merchant of Venice, IV, i. Read also Act V and answer the question: Is Portia consistent? What does the play have to say about law and equity? Also read the plot outline, story synopsis and commentary on Shakespeare’s Measure for Measure by POSNER pp. 154-163 see also Lecture #5. The two plays should be discussed and evaluated together.
2. Steiker, Carol S. Lecture on the role of mercy and the administration of criminal justice (one hour, begins 14 minutes into tape, the lecture is less than an hour): Watch a webcast of Professor Steiker's lecture. (RealPlayer Required) @ http://www.law.harvard.edu/news/spotlight/criminal-law/03_steiker.html (using fiction to illustrate truth). The following text is read in the preceding film clip:
3. Austin Sarat, Nasser Hussain, Forgiveness, mercy, and clemency, Mercy and the Administration of Criminal Justice by Carol S. Steiker [22 pages, Google Books, books.google.com/books?isbn=0804753334... http://books.google.com/books?id=KOAoQiRFo70C&pg=PA16&lpg=PA16&dq=Steiker+mercy+justice&source=bl&ots=.. ]
4. O’Henry. Summarize the two O’Henry stories used by Professor Steiker. Can the two stories be reconciled?
5. Genesis 4: 13-19. After Cain asks for mercy, what happens? What is the section heading in the King James Version for this verse? The template described in the story illustrates a key factor about mercy and justice: the greater good is served when mercy is shown.
6. Luke 15: 11-32: The Parable of the Prodigal Son. What arguments does the faithful, prudent, older brother make about mercy granted to the prodigal son? Are they valid?
It is not necessary to read the following works that will be cited by the lecturer:
*7. Dan Markel, Against Mercy, Florida State University College of Law Minnesota Law Review, Vol. 88, 2004
*8. New Testament: The Gospel of John 8:1-11. The Scribes and Pharisees bring the adulteress to Jesus for execution by stoning. Confer, The Hebrew Bible: Micah 6:8; Zechariah 7:9.
*9. New Testament: The Parable of the Workers in the Vineyard Matt: 20:1-16. Equal pay for UN-equal work.
*10. Do unto others as you would have others do unto you. Matt: 7:12
______________________________________________________
Lecture #5: LESSONS FROM SHAKESPEARE: JUSTICE, LAW & MERCY
[February 3, 2011]
Assignments for Class #5 (classes #4, #5 and #6 are related):
1. POSNER, Measure for Measure pp. 154-163 (law and equity, rigidity and flexibility). Define the word desuetude and be prepared to say what you think of it.
Shakespeare, Measure for Measure (1604): This play is the best introduction to Shakespeare’s overall view of the law. While The Merchant of Venice has received more legal commentary, Measure for Measure has more legal themes: for example kill all the lawyers… What happens to mercy and the law in this play? What does the play have to say about morality and the law and corrupt judges? How is Angelo like Creon, Captain Vere and Draco? What is the penalty for fornication? Is it better to enforce laws strictly or equitably? Do you think the anti-fornication used to prosecute Claudio would violate his right to privacy in modern American law?
2. Bowers v. Hardwick, 478 U.S. 186 (1986) [upholding the Georgia sodomy statute.] Overruled in Lawrence v. Texas, 539 U.S. 558 (2003). Compare the opinion in Bowers to the legal themes in Measure for Measure: Extreme punishment/minor offense; law to enforce morals; is immoral also illegal? What is the importance of respect for the law in enforcement of the law? How does the law work when the source of law is power?
3. Victor Hugo, Les Miserables. Google or otherwise research Bishop Myriel and Jean Valjean and summarize the story of the candlesticks. Is this a story of justice, mercy or madness?
It is not necessary to read the following works that will be cited by the lecturer:
*4. Kornstein, Daniel J., A Scarecrow of the Law from Kill All the Lawyers: Shakespeare’s Legal Appeal (1994 Princeton University Press). This is a tour de force analysis of the Merchant of Venice and Measure for Measure as they enunciate theories of justice.
_____________________________________________________
Lecture #6: REVENGE & MERCY
[February 10, 2011]
______________________________________________________
Assignments for Class #6 (lectures #4, #5 and #6 are related):
1. Shakespeare, Hamlet (Paperback) the grave digging scene: Why not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures, and his tricks? Hamlet, V, i, 99. See POSNER pp. 103-123
2. The New Testament, Matthew 5:38: An eye for an eye… A law of mercy?
It is not necessary to read the following works that will be cited by the lecturer:
*2. Shakespeare, Henry V, IV, I, 132 (the "following orders" defense): Henry V orders the massacre of prisoners at Agincourt.
*3. Shakespeare, Timon of Athens. Pity is the virtue of the law. III, v, 8. Is pity the same thing as compassion? As mercy?
*4. Shakespeare, Taming of the Shrew I. ii, 277: Do as adversaries do in law, / Strive mightily but eat and drink as friends. Note: Does the ‘adversaries’ reference describe a system of law (the ‘adversarial system’) that is peculiar to England or does it pervade Europe. What other types of legal systems are alternatives to the ‘adversarial’?
*5. Shakespeare, The Winter's Tale: as she hath/ Been publicly accused, so shall she have/ A just and open trial. II, iii, 201.
*6. Shakespeare, Julius Caesar, III, 2. The funeral oration is a masterpiece of forensic oratory. See POSNER pp. 450-455.
*7. See Kill all the lawyers? Shakespeare's legal appeal By Daniel Kornstein (1994 Princeton University Press) Chapter 5 Skull of a Lawyer, Hamlet.
_____________________________________________________
Lecture #7: REVENGE & MERCY
[February 17, 2011]
______________________________________________________
Assignments for Class #7:
1. Aeschylus, The Orestia (Paperback) Agamemnon, The Libation Bearers and The Eumenides (525-456 B.C.E.) (Penguin Classics) by Aeschylus, W. B. Stanford, and Robert Fagles (Paperback - Feb 7, 1984) and see POSNER “Revenge Literature” pp. 86-92 and http://en.wikipedia.org/wiki/The_Oresteia. Lecture # 7, February 17, 2011.
2. POSNER, Chapter Two Revenge as Legal Prototype pp. 49-92.
3. SEE http://records.viu.ca/~johnstoi/aeschylus/oresteiatofc.htm Text of The Orestia . This is the webpage of Ian Johnston Malaspina University-College (Vancouver Island University since 2008) Nanaimo, British Columbia and prepared, September 2002. See also an analysis by Ian Johnston http://records.viu.ca/~johnstoi/introser/aeschylus.htm focused on the first play in the trilogy Agamemnon.
Lecture #8: REVENGE & THE NATURE OF LAW
[February 24, 2011]
______________________________________________________
Assignments for Class #8:
1. Charles Dickens, The Trial of Bardell v. Pickwick [from The Pickwick Papers]; Why didn’t Bardell and Pickwick testify? What do you think of the reason? What does Mr. Perker think of hungry jurors? [Begin your reading at “I wonder what the foreman of the jury, whoever he’ll be, has got for breakfast,” said Mr. Snodgrass…..to “I know’d what ‘ud come o’ this here mode o’ doin’ bis’ness. Oh Sammy, Sammy….” POSNER pp.187-191, 224 (is the jury always a safeguard?).
2. Charles Dickens, In Chancery [from Bleak House]. What does the suit Jarndyce v. Jarndyce mean? (What do you think about justice being rendered according to the conscience of the judge or jury? How does equity fare in this story? Where is the pendulum now?)
3. POSNER pp. 75-86 Revenge as Legal Prototype. See also p. 162 (and try to add to the list). Compare the concept POSNER calls ‘composition’ (page 83) and the phrase ‘restorative justice’ (Google the phrase).
It is not necessary to read the following works that will be cited by the lecturer:
*4. Cicero, On Duties. On Duties, or On Obligations, has generally been the most popular of Cicero’s writings, and perhaps exercised more influence on thought and standards of the western world than any other secular work ever written. Michael Grant, Penguin Classics (1971): Book I. VII, 20 [role of justice and kindness], 21 [private property], 22 [duties to the state], 23 [foundation of justice], 24 [reason for crime], 26, 27 [injury and injustice], 28 [passive injustice], 29 [self-interest], 31 [the two principles of justice], 33 [chicanery], XI. 33 [limits to retribution and punishment], XIV. 42 [kindness and generosity], XVI. 50 [kindness], 51, 52 [public property], 63 [the soul of justice], 71 [duty to engage in public affairs], 87 [electioneering and scrambling for office], Book II, 49, 50 [winning admiration through lawyering], 51 [capital charges against the innocent and defending the guilty], 66, 67[eloquence at the bar], 70, 71 [ representing the poor], 74 [property taxes], 78-80 [agrarian laws], 83 [impartiality], 84 [debt and public safety], 85 [courts of equity], Book III, 54-57, 65-67 [a seller’s duty to disclose], 60-61 [criminal fraud], 69 [civil law versus moral law], 70 [good faith in contracts], 97 [doing evil to do good]. How would Cicero resolve conflicting duties? “The historical roots of casuistry can be found in ancient Rome and Greece. Cicero, the great rhetorician, described early casuist methodology in his work, On Duty (106-43 BCE). In it he states that “we need to consider ‘what is most needful in each individual case,’ … and that .different circumstances should be carefully scrutinized in every instance.’” (David Jonsen, The Abuse of Casuistry, 1988 p. 10). In On Duty, Cicero explores this proposal in cases that he presents where “conflicts of duty appear to arise.” His approach: what is most needful in each individual case, Jeramy Townsley, professor Butler University, 2003, http://www.jeramyt.org/ ; http://www.jeramyt.org/papers/casuistry.html
*5. Cicero, The Laws, Book One, 16-35. Where does justice come from? Is law synonymous with wisdom?
*6. Cicero, The Laws, Book Two, 37-40. What does music have to do with law? Why did Athens cut off strings from the instrument played by Timotheus? What would Plato think? See Plato, Laws 3. 700-1; Aristotle, Pol. 8. 5-7, Horace, Ars Poetica 202-19.
*7. Michel de Montaigne, Of Custom (1572-1574) (the last 14 paragraphs of the essay). What is Montaigne’s theory about the source of law? Would Montaigne support the idea ‘health care reform’ and innovation? Why does Montaigne think the legal reformer should wear a rope around the neck? What does Montaigne think about legal tricks and artifice?
*8 The Hebrew Bible, Exodus (21-23ff); Leviticus (24:17-20); Deuteronomy (19:21). Compare with Dante’s concept of contrapasso or counter-punishment.
*9. Rabelais, On Judge Bridlegoose and Lord John the Loony [from Gargantua and Pantagruel]. HOW PANTAGRUEL PERSUADED PANURGE TO SEEK COUNSEL OF A FOOL through PANTAGRUEL’S STRANGE TALE OF THE PERPLEXITIES OF HUMAN JUDGEMENT. Judge Bridlegoose decides cases by rolling dice.
*10. Kafka, The Problem of Our Laws: Our laws are not generally known; they are kept secret by the small group of nobles who rule us … for the laws were made to the advantage of the nobles from the very beginning, they themselves stand above the laws
*11. Piers Plowman (14th c.): Neede hath no law. Publilius Syrus, Necessity gives the law, but does not herself accept it. What do the two maxims mean? Who is Ananke (or Anance) and what role does she play in the law.
____________________________________________________
Lecture #9: CRIME, PUNISHMENT AND LEGAL FORMALISM
March 3, 2011]
_____________________________________________________
Assignments for Class # 9:
1. Sophocles, Antigone (in THE OEDIPUS CYCLE) (441 B.C.E.) (Cambridge Translations from Greek Drama) (Paperback), David Franklin (Translator), John Harrison, Translator, P.E. Easterling (Introduction) or see POSNER pp. 133-135. Lecture #9, March 3, 2011. How is Creon like Captain Vere? For analysis and synopsis see: http://www.bookrags.com/notes/ant/ (Antigone)
2. Dante: contrapasso [Google the word with Dante’s name).
4. Walker v. Georgia 555 U. S. 1 (2008) (proportionality review).
5. 1 Kings 3:16-28: The Judgment of Solomon.
It is not necessary to read the following works that will be cited by the lecturer:
*6. Kristen M. Nugent. Proportionality and Prosecutorial Discretion: Challenges to the Constitutionality of Georgia’s Death Penalty Laws and Procedures amidst the Deficiencies of the State’s Mandatory Appellate Review Structure University of Miami Law Review (2009). At: http://works.bepress.com/kristen_nugent/1 (look for ‘download the paper’ option in upper right hand corner).
*7. Plutarch, Lives: Solon [legendary Athenian lawgiver, died 539 B.C.E] written 75 C.E. translated by John Dryden http://classics.mit.edu/Plutarch/solon.html [this essay describes the architecture of a complete system of justice in Athens and compares it with the system of justice in Sparta]: First, then, he repealed all Draco's laws, except those concerning homicide, because they were too severe, and the punishment too great; for death was appointed for almost all offences, insomuch that those that were convicted of idleness were to die, and those that stole a cabbage or an apple to suffer even as villains that committed sacrilege or murder. So that Demades, in after time, was thought to have said very happily, that Draco's laws were written not with ink but blood; and he himself, being once asked why be made death the punishment of most offences, replied, ‘Small ones deserve that, and I have no higher for the greater crimes.
*8. Plutarch Lives: Lycurgus [legendary Spartan lawgiver, 800-730 B.C.E.]. Compare Solon with Lycurgus with Draco. What did Lycurgus think of music and the law? What did the Delphic Oracle think of Lycurgus’s laws? http://classics.mit.edu/Plutarch/lycurgus.html [this essay describes the complete system of justice in Sparta].
Friedrich Schiller (1789): Solon and Lycurgus were great and righteous men, but there laws differed greatly since they proceeded from principles diametrically opposed. The character of an entire people is the most faithful impression of its laws, and the surest judge of its value. Limited was the mind of the Spartan, and insensitive his heart. He was proud and haughty toward his fellows, severe toward the vanquished, inhuman toward his slaves, and slavish toward his superiors; in his transactions, he was unscrupulous and faithless, despotic in his decisions, and his greatness, even his virtue, lacked the pleasing grace, which alone wins hearts. The Athenian, quite the contrary, was gentle and tender of behavior, politely intelligent in discussion, kind to inferiors, hospitable and helpful to foreigners.
*9. 1 Kings 3:9-12; and 10: 24: Solomon’s Wish: Give Thy servant an understanding heart to judge…
Lecture #10: CRIME, PUNISHMENT& LEGAL FORMALISM
[March10, 2011]
_____________________________________________________
Assignments for Class #10:
1. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924 posthumously). Has any work of American literature generated more antithetical and mutually hostile interpretation than Herman Melville's Billy Budd, Sailor? And all the battles about the moral and political vision at the heart of the tale swirl around one question: Are we supposed to admire or condemn Captain Vere for his decision to sentence Billy Budd to death by public hanging? Somehow, astonishingly enough, nobody seems to have noticed that central to the story is the subject of capital punishment and its history. H. Bruce Franklin Reprinted from AMERICAN LITERATURE, Copyright 1997 by H. Bruce Franklin): See POSNER pp. 122,148-50, 162, 163, 165-173, 179, 181, 242. Posner thinks Captain Vere acts on the basis of expediency, i.e. the common good that dictates the death of one for the sake of the many. Melville’s story is also about war and its folly (Lord Nelson) and its ability to transform good and evil into each other as illustrated by the ‘impressed men’ who are jailbirds, insolvent debtors (L 98) and lame ducks of morality at one moment (L 96) then transformed into defenders of the King by their impressments only to become mutineers ( L 57) and then patriots and heroes as they help win the naval crown of crowns at Trafalgar. The minister of the Prince of Peace gets his stipend from the God of War, the ‘prudent surgeon’ dedicated to healing directs a hanging and science, religion, innocence and guilt change places in the jugglery of circumstance. Sailors who aim guns at the enemy have swords aimed at their backs by their own officers lest they turn the guns on their superiors. War is a rat pit of quarrels. Compare Captain Vere, Creon, Lycurgus, Draco and Solon and Solomon.
2. Richard Weisberg,Yeshiva University, Benjamin N. Cardozo School of Law conducted extensive research into the history and practice of naval law in England during the era in which the novel is set. He rejects the reading that Captain Vere is a good man, trapped by a bad law in a time of war and concluded that Captain Vere deliberately distorted substantive and procedural laws to support hanging Billy Budd. See The Failure of the Word: The Lawyer as Protagonist in Modern Fiction [orig. ed., 1984; expanded ed., 1989] chapters 8 & 9. Posner sharply contests Weisberg’s reading. See POSNER pp. 211, 213-216, 222.
3. http://stevencscheer.com/billybudd.htm by Steven C. Scheer @ stevenscheer@wowway.com. This excellent essay traces four readings of the novel and describes the system of justice as seen through the prism of Billy Budd,
4. David Padilla, The University of Virginian American Studies site: http://xroads.virginia.edu/~HYPER/bb/bb_main.html . This hypertext version of Billy Budd, Foretopman, is based is large measure on the 1924 Raymond Weaver edition and F. Barron Freeman’s 1948 edition and Elizabeth Treeman’s later modification and includes certain chapter Weaver excluded or incorporated into other chapters. Also, this text refers to the warship on which the action takes place as the Indomitable not the Bellipotent as Harrison Hayford and Merton Seals maintain that Melville intended. The hypertext version points out these variations in appropriate places.
http://herbinator.blogspot.com/2005/11/laws-are-silent-in-times-of-war.html> Laws are silent in times of war---Cicero.
Inter arma enim silent leges is a Latin phrase meaning "For among [times of] arms, the laws fall mute," although it is more popularly rendered as "In times of war, the law falls silent." This maxim was likely first written by Cicero in his published oration Pro Milone, although Cicero's actual wording was "Silent enim leges inter arma." Loud cannons silence laws. Laws are silent when the drums beat.
MARCH 17, 2011 is SPRING BREAK
Lecture #11: CRIME & PUNISHMENT
[March 24, 2011]
_____________________________________________________
Assignments for Class 11: (subject to completion of Billy Budd, Sailor):
1. Lon L. Fuller, Speluncean Explorers: In the Supreme Court of Newgarth, 4300 http://www.nullapoena.de/stud/explorers.html (Harvard Law Review, 1949). Would Judge Bridlegoose approve of the method used to decide? Consult notes from Lecture #8. Be prepared to discuss the five divergent legal theories.
Lecture #12: PUNISHMENT
[March 31, 2011]
Assignments for Class # 12: (subject to completion of Billy Budd, Sailor).
1. Albert Camus, The Stranger (1942) [A Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial, the arbitrariness of justice). POSNER pp. 40-48. Is the novella a polemic against capital punishment? Is it imaginative literature? What does this story say about capital punishment? What does Billy Budd (the man) have in common with Mersault? What does this work have in common with Dickens’ Bleak House? Jarndyce v. Jarndyce drones on. This scarecrow of a suit has, in course of time, be- come so complicated, that no man alive knows what it means. The parties to it under- stand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Charles Dickens, Bleak House 7-8.
Lecture #13: Crime & Punishment (Continued)
[April 7, 2011]
Assignments for Class # 13: (subject to completion of Billy Budd, Sailor).
1. Jack L. Sammons, On Teaching the Legality of Televising Capital Punishment.
2. Gilbert & Sullivan, The Mikado (1885). Scan or research the opera text to determine why Ko-Ko, the Lord High Executioner was appointed to his position; what he or the Pooh-Bah thinks of his position; the Pooh Bah’s explanation as to why the executioner enjoys such high status in the town of Titipu.
3. Homer, The Odyssey, Book XXII http://classics.mit.edu/Homer/odyssey.22.xxii.html . Read only the last eight paragraphs of Book XXII that describe how and why Telemachus executed Penelope’s twelve handmaidens. Could these executions take place today in the United States?
4. Greek Mythology, Theseus. Using classical dictionaries, reference books and your own research ingenuity, determine how Theseus cleared the road from Troize, over Corinth and Isthmus to Eleusis and Athens from bandits and other criminals such as Sinis, Procrustes (Damastes), Periphetes and Sciron. http://www.in2greece.com/english/historymyth/mythology/names/theseus.htm . Would Dante approve of Theseus’s methods of punishing crime? Also see Minos, the Odyssey Book XI 568. Where does Judge Minos do his judging? What kind of lawmaker was he?
____________________________________________________
Lecture #14: CULTURE, FEMINISM
[April 14, 2010]
_____________________________________________________
Assignments for Class # 14 (Consider with class deliberation and about vote using this final lecture to review, discuss strategies for the paper).
1. The Apocrypha Susanna and the Elders. Is there any trial technique utilized in the storythat modern American justice continues to use? What type of offense justifies the death penalty in the story? If the Elders had intended to wreck Susanna’s marriage and her social standing, would they have received the death penalty? Daniel 13 in the New American Bible or here: http://bible.oremus.org/?version=nrsvae&vnum=yes&passage=Susanna
2. Carolyn Heilburn and Judith Resnik, Convergences: Law, Literature and Feminism. LEDWON pp. 91-126. Be prepared to discuss Jude the Obscure, A Doll’s House, Hoyt v. Florida, Michael M. v. Superior Court.
3. W. H. Auden, Law Like Love [LEDWON 221].
4. Susan Glaspell, A Jury of Her Peers (1917). What do you think of Mrs. Hale and Mrs. Peters story about the canary and their repair of the quilt? What is the difference in the jury make-up in the story and the jury that heard the actual case the story is based on? Why do Mrs. Hale and Mrs. Peters help Minnie? POSNER pp. 164-166. (Are the women in the story like Portia?).
CLASSES END
Lecture #15: PUNISHMENT
[]
____________________________________________________
Assignments for Class # 15:
1. Michel Foucault, Panopticism, Discipline and Punish, LEDWON 323.
2. Franz Kafka, The Trial (1925) (Willa & Edwin Muir trans. Revised E.M. Butler, Schocken n Books, New, Introduction by George Steiner). POSNER 127-140, 183-205, and especially 176, 184-185, 188, 192, 217, 238, 240-241 and LEDWON pp. 255-256. http://en.wikipedia.org/wiki/The_Trial. Do you discern any relation to Dickens’ Bleak House?
Donald Vish, Middleton Reutlinger, counsel; executive director and board member, The Joan & Lee Thomas Foundation; director of advocacy, The Kentucky Coalition to Abolish the Death Penalty; Louisville Bar Association (Committee on Judicial Integrity and Independence); elected life member, The American Law Institute. Member of the Kentucky and Florida bars.
Criteria for grading papers
Law & Literature
From the Syllabus: “Each paper should relate the story line or a character to the important legal principles you discern in the text….as it impacts law or justice….Good reportage is a “C” and superb insight and analysis is an “A.”
Criteria based on analyzing the architecture of the best papers 68, 61 and 72:
1. Facts: are the facts (a) sufficient to tell a non-reader of the book the basic story line or plot; (b) sufficient to support the points made by the writer; (c) animated with nuances of the story?
2. Themes: does the paper describe the theme (s) in sufficient detail that a non-reader of the story will appreciate what the story is about in the abstract? (This is a reportorial standard, not analytical). Think of the ‘theme’ as the ‘issue(s)’ in a case.
Points 1 & 2 are sufficient to get a C for the paper with the ++ range achieved through use of nuance and good execution.
3. Organization: does the paper have a clear beginning, middle and end? Do the paragraphs logically flow from point to point?
4. Thought: does the paper display some thought about the subject treated in the paper or is the treatment superficial? (See the ‘insight and analysis’ #8 below, which goes further).
5. Interest: does the paper reflect interest on the part of the writer and command interest on the part of the reader?
6. Justice: does the paper talk about justice though the plot or characters of the story and address the central question of the entire course? As the Syllabus points out, the entire course and every assigned work is about the same thing: what is justice?
Point 3, 4, 5 & 6 are necessary to achieve a B with the + or – range being impacted by execution—how well is it done and the absence or presence of some minimum analysis.
(Here is the ‘superb insight and analysis’ features):
7. Context: does the paper reflect the student’s ability to place the assigned reading into context with the rest of the course assigments and from a broader perspective of law and justice?
8. Original thought: has the student raised any original ideas? Is there superb insight and analysis EITHER from the student or borrowed from critics (either is acceptable).
Points 7 & 8 raise the grade into the A range with the + or – range impacted by execution.
***
“A” papers demonstrate ‘superb insight and analysis’ to evaluate issues not merely report on them. All “A” papers have one thing in common that distinguishes them from “B” papers: (i) an analytical meditation about the nature of justice, (ii) a broad perspective and (iii) obvious thought. “Insight” means to see things beyond face value and to see the relationship and context of things in juxtaposition to each other and where they fit into a wider world. The top of the “A” range is marked by the use of outside sources, thoughtful command of the material, use of class and other Syllabus materials and the fundamental architecture on display in paper #68988.
Excellent reportorial character distinguishes a “B” paper but analysis—if any—is conclusory, abbreviated, narrow and without elaborated insight and reasoning. As stated in the Syllabus, ‘good reportage’ will earn a “C”. The “B” paper rises to a higher level of reportage. Many B papers have no analysis and those that do display a superficial analysis narrowly drawn, without elaborated insight or reasoning, of subsidiary importance to the paper and merely conclusory use of catch words and phrases. However, this is sufficient to earn a + to the B grade. The B+, however, is not on the cusp of an A-. The A papers are different universes. The B+ paper is at the top of the universe it occupies.
May 12, 2010/ May 13, 2010; December 19, 2010
Sunday, December 19, 2010
Sunday, October 31, 2010
Thursday, October 28, 2010
Let There Be Light
Let There Be Light
Stories about the nature and power of the soil pervade art, poetry, history and religion. Antaeus, the mythological giant, got his strength from the soil. So each time he was knocked down he got up stronger.
In ancient Greece, soil was sacred. Plato and Homer described it as ‘divine’ and wrote about soil as having the power to influence the soul. The Book of Genesis and the Hebrew bible reported the world’s first crime, murder, and its terrible punishment: "When thou tillest the ground, it shall not henceforth yield unto thee her strength…"
Today, a chorus of farmers and philosophers, poets and politicians, songwriters and scientists are raising their collective voices and their concerns about tilling the ground and whether it will continue henceforth to yield her strength.
Some writers argue that soil issues are moral and ethical issues uniquely within the providence of the world’s religions. Dr. Larry Rasmussen and Martin Palmer are examples.
Dr. Rasmussen is one of the world’s foremost Christian environmental ethicists. He has mentored a generation of Christians in eco-theology and ‘green religion.’
Martin Palmer, an Anglican Christian who is a regular contributor to the BBC on religious, ethical and historical issues, leads the Alliance of Religions and Conservation (ARC) in an effort to encourage religions of the world to advance environmental programs based on their own core teachings, beliefs and practices.
ARC plans to launch its international Faith in Food initiative during the November 2010 Festival of Faiths in Louisville. The theme of the festival is “Sacred Soil: Foundation of Life”. Palmer selected the Festival of Faiths as a venue because:
"The unique atmosphere and history of the interfaith movement in Louisville, Kentucky, makes it the obvious place to launch an international movement of faiths purchasing and producing food ethically and sustainably. The theme of this year's festival - Sacred Soil - reflects the wisdom in each faith that the earth itself is a dynamic part of the sacred responsibility of faithful people.”
Dr. Rasmussen will address an interfaith prayer breakfast during the festival.
From November 3 through 9 at the Henry Clay Hotel, a Tibetan Sacred Sand Mandala will be created by monks from the Drepung Gomang Institute.
A wide range of soil themes will be explored through presentations and exhibits by more than 60 communities of faith, individuals, non-profits, corporations, academic institutions and artists.
Topics include: industrialized farming, living on the land, faith and food, urban farming, manufactured landscapes, farming with a purpose, sustainable agriculture, food justice, sustainable food production, farming knowledge and best practices, creation care and the earth, Native American soil blessings, the difficulties and rewards of being an environmentalist of faith, how architecture should manifest sacred aspects of the land, the ecological impact of burials and a faith in action sacred soil tool kit.
Panels and workshops include many notable speakers and activists such as Wendell Berry; Matthew Sleeth; Will Allen of Growing Power, Wes Jackson, President of the Land Institute; Josh Viertel; President of Slow Food USA, Patrick Holden, former director of The Soil Association International, the United Kingdom’s leading environmental charity; Ellen F. Davis of Duke University Divinity School, Rabbi Dr. Ron Kronish Interreligious Coordinating Council in Israel, Dr. Roger S. Gottleib author of “The Greening of Faith :Religions Environmentalism and our Planet’s Future; Rev. Mitch Hescox, CEO of Evangelical Environmental Network and Dr Jill Bolte Taylor author of “My Stroke of Insight”.
The Festival will also host screenings of award winning films, including “DIRT! The Movie,” “Grown in Detroit,” “The Real Dirt on Farmer John,” and “Manufactured Landscapes.”
A Sacred Soil Faith in Action Toolkit will be available for purchase and includes DIRT ! The Movie the official award winning festival film. Wendell Berry and Wes Jackson are honorary co-chairs of the 2010 festival.
Now in its fifteenth year, the Festival of Faiths celebrates the diversity of belief and spiritual practices among the world’s religions and the common themes that unify all communities and people of faith.
The festival is sponsored by the Louisville based Center for Interfaith Relations which takes to heart the first words spoken by G-d in the Book of Genesis.
Let there be light.
DV
692 words as revised/October 27, 2010 and written for publication by the Louisville Courier Journal
Note: The Henry Clay Building, 604 S. Third St., is the headquarters for the Festival,
Tickets and Reservations: There is a charge for some events. Tickets may be purchased at the Kentucky Center Box Office: 502-584-7777 or 800-775-7777: The Box office is at 501 West Main Street.
Center for Interfaith Relations/415 W. Muhammad Ali Blvd./Louisville, KY 40202/502-583-3100.
Donald Vish is a Louisville lawyer, writer and photographer. He served as president of Interfaith Paths to Peace from 2005-2010.
Stories about the nature and power of the soil pervade art, poetry, history and religion. Antaeus, the mythological giant, got his strength from the soil. So each time he was knocked down he got up stronger.
In ancient Greece, soil was sacred. Plato and Homer described it as ‘divine’ and wrote about soil as having the power to influence the soul. The Book of Genesis and the Hebrew bible reported the world’s first crime, murder, and its terrible punishment: "When thou tillest the ground, it shall not henceforth yield unto thee her strength…"
Today, a chorus of farmers and philosophers, poets and politicians, songwriters and scientists are raising their collective voices and their concerns about tilling the ground and whether it will continue henceforth to yield her strength.
Some writers argue that soil issues are moral and ethical issues uniquely within the providence of the world’s religions. Dr. Larry Rasmussen and Martin Palmer are examples.
Dr. Rasmussen is one of the world’s foremost Christian environmental ethicists. He has mentored a generation of Christians in eco-theology and ‘green religion.’
Martin Palmer, an Anglican Christian who is a regular contributor to the BBC on religious, ethical and historical issues, leads the Alliance of Religions and Conservation (ARC) in an effort to encourage religions of the world to advance environmental programs based on their own core teachings, beliefs and practices.
ARC plans to launch its international Faith in Food initiative during the November 2010 Festival of Faiths in Louisville. The theme of the festival is “Sacred Soil: Foundation of Life”. Palmer selected the Festival of Faiths as a venue because:
"The unique atmosphere and history of the interfaith movement in Louisville, Kentucky, makes it the obvious place to launch an international movement of faiths purchasing and producing food ethically and sustainably. The theme of this year's festival - Sacred Soil - reflects the wisdom in each faith that the earth itself is a dynamic part of the sacred responsibility of faithful people.”
Dr. Rasmussen will address an interfaith prayer breakfast during the festival.
From November 3 through 9 at the Henry Clay Hotel, a Tibetan Sacred Sand Mandala will be created by monks from the Drepung Gomang Institute.
A wide range of soil themes will be explored through presentations and exhibits by more than 60 communities of faith, individuals, non-profits, corporations, academic institutions and artists.
Topics include: industrialized farming, living on the land, faith and food, urban farming, manufactured landscapes, farming with a purpose, sustainable agriculture, food justice, sustainable food production, farming knowledge and best practices, creation care and the earth, Native American soil blessings, the difficulties and rewards of being an environmentalist of faith, how architecture should manifest sacred aspects of the land, the ecological impact of burials and a faith in action sacred soil tool kit.
Panels and workshops include many notable speakers and activists such as Wendell Berry; Matthew Sleeth; Will Allen of Growing Power, Wes Jackson, President of the Land Institute; Josh Viertel; President of Slow Food USA, Patrick Holden, former director of The Soil Association International, the United Kingdom’s leading environmental charity; Ellen F. Davis of Duke University Divinity School, Rabbi Dr. Ron Kronish Interreligious Coordinating Council in Israel, Dr. Roger S. Gottleib author of “The Greening of Faith :Religions Environmentalism and our Planet’s Future; Rev. Mitch Hescox, CEO of Evangelical Environmental Network and Dr Jill Bolte Taylor author of “My Stroke of Insight”.
The Festival will also host screenings of award winning films, including “DIRT! The Movie,” “Grown in Detroit,” “The Real Dirt on Farmer John,” and “Manufactured Landscapes.”
A Sacred Soil Faith in Action Toolkit will be available for purchase and includes DIRT ! The Movie the official award winning festival film. Wendell Berry and Wes Jackson are honorary co-chairs of the 2010 festival.
Now in its fifteenth year, the Festival of Faiths celebrates the diversity of belief and spiritual practices among the world’s religions and the common themes that unify all communities and people of faith.
The festival is sponsored by the Louisville based Center for Interfaith Relations which takes to heart the first words spoken by G-d in the Book of Genesis.
Let there be light.
DV
692 words as revised/October 27, 2010 and written for publication by the Louisville Courier Journal
Note: The Henry Clay Building, 604 S. Third St., is the headquarters for the Festival,
Tickets and Reservations: There is a charge for some events. Tickets may be purchased at the Kentucky Center Box Office: 502-584-7777 or 800-775-7777: The Box office is at 501 West Main Street.
Center for Interfaith Relations/415 W. Muhammad Ali Blvd./Louisville, KY 40202/502-583-3100.
Donald Vish is a Louisville lawyer, writer and photographer. He served as president of Interfaith Paths to Peace from 2005-2010.
Thursday, October 21, 2010
The Death Penalty is Killing Itself
Text of Remarks
To the
Fellowship of Reconciliation
October 21, 2010
Louisville, KY
The Death Penalty is Killing Itself
By
Donald Vish
Kentucky Coalition to Abolish the Death Penalty
The death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: most of the time nothing happens but every now and then somebody gets killed.
But we may be on the verge of a lot happening.
Death Penalty History: 1957-2008
The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.
Today, there are 35 people on death row and four people have been executed in the last 53 years.
Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.
The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done in an even-handed manner.
How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?
What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?
Death Penalty History: 2009—present
The attorney general requested three death warrants from the governor in November 2009. Before the governor could act on the request, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for execution. The DOC complied and new and revised procedures were back on the books by May, 2010. The governor began the procedure for setting execution dates for the three men when he discovered the state had a limited supply of a key drug used in lethal injections, enough for only one dose, and even that supply expired in October 2010. So, the governor asked his justice secretary to formulate a selection process so that at least one of the three could be executed while the others waited for fresh supplies of the lethal drug needed to complete the injection cocktail. The Department of Corrections has said that a new supply cannot arrive before the first quarter of 2010.
Status of the Wilson Case and Executions Generally?
The death warrant authorizing Wilson’s execution expired at midnight September 16, 2010. According to representations made by the Department of Corrections to the Franklin Circuit Court, a key ingredient in the lethal injection mix will not be available until the first quarter of 2011. As a result, there is no current date for Wilson’s execution and the state lacks the chemical means to execute until the first quarter of 2011.
There are also legal issues pending about the Wilson case that may affect executions generally:
1) The Kentucky Supreme Court is reviewing a decision by the Kenton Circuit Court denying Wilson’s request for DNA testing and a determination of whether he is exempt from execution due to mental retardation. If the Supreme Court grants Wilson’s request, an evidentiary hearing will be scheduled in Kenton Circuit Court. It is highly improbable that the governor would seek to execute Wilson before a hearing was concluded and it is highly probable that he would be enjoined if he did. This ruling does not affect capital punishment generically.
2) The Kentucky Supreme Court is also reviewing a case from Franklin Circuit Court involving the new execution procedures written by the Kentucky Department of Corrections pursuant to a November 2009 order of the Kentucky Supreme Court.
This case has the potential to impact all executions in Kentucky.
Wilson intervened in the case and the trial judge enjoined the state from executing Wilson while the court was reviewing the legal adequacy of the new execution procedures. In the course of enjoining the Wilson execution, the trial judge expressed official interest in (i) the lack of procedures to test for mental retardation prior to execution and (ii) possible legal flaws in Wilson’s trial where he was given no choice but to represent himself most of the time. Judge Shepherd has established an expedited briefing schedule on these matters, which concludes on October 25th.
The Kentucky Supreme Court is currently reviewing legal briefs from the litigants concerning the Franklin Circuit Court case, after which it may rule that the case is moot since there is no current death warrant applicable to Wilson; or, it might affirm the judge’s ruling, the effect of which would be to require the Department of Corrections to supplement its execution procedures to provide for mental retardation testing; or, it might reverse the trial judge’s ruling in effect finding that the judge had no good reason to delay the Wilson execution. In the latter case, Wilson would be scheduled for execution if and when (1) the governor signs a new death warrant and (2) the state receives new supplies of the drugs needed for the lethal injection.
If the Supreme Court finds the case is moot or it agrees with Judge Shepherd, the case would nevertheless be returned to Franklin Circuit Court for such further hearings as the trial judge may require in order to render a final judgment on the legal adequacy of the new execution procedures.
Facts about the Death Penalty(As of October, 2010)
35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 34 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 35
Women on Death Row (Kentucky) 1
Georgraphy
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.
Conclusion
The death penalty is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law).
A recent example of Murphy’s Law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could find not a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!
Of the Wilson case, Judge Boyce Martin of the United States Court of Appeals for the 6th Circuit wrote earlier this month:
The rape and murder of Debbie Pooley was a heartbreaking and reprehensible
act. But at Gregory Wilson’s murder trial, the state’s ignominy began…*** virtually every branch of our justice system failed —from the judiciary, which allowed a sex scandal between a colleague of the trial judge and Wilson’s co-defendant to jeopardize the fairness of Wilson’s trial; to the defense counsel, who were woefully unqualified and left Wilson abandoned at trial. The judiciary failed both Wilson and our legal system in this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of Wilson’s trial. Brenda Humphrey, Wilson’s co-defendant and the woman who identified him as Pooley’s killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial judge during Wilson’s trial:*** …This scandal is an embarrassment to all segments of the judiciary, from the judge who violated the Code of Judicial Conduct by having a sexual relationship with a defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex. When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying.
Perhaps even more egregiously than the judiciary, Wilson’s defense counsel
failed him and the principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a charade:****
…Over my more than thirty years on the bench, Wilson’s trial stands out as one of
the worst examples that I have seen of the unfairness and abysmal lawyering that
pervade capital trials. Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.” Moore v. Parker, 425 F.3d No. 09-6306 Wilson v. Rees, et al. Page 7250, 270 (6th Cir. 2005) (Martin, J., dissenting). To maintain the legitimacy of our adversarial system of justice, we must be confident that its two foundational components are sound: a neutral and fair arbiter, and adequate legal representation for both parties.
If either pillar is fractured, as in this case, then we are left with a system that does not function. Its results cannot be trusted, particularly when a life is at stake. When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death.
DV
October 21, 2010
To the
Fellowship of Reconciliation
October 21, 2010
Louisville, KY
The Death Penalty is Killing Itself
By
Donald Vish
Kentucky Coalition to Abolish the Death Penalty
The death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: most of the time nothing happens but every now and then somebody gets killed.
But we may be on the verge of a lot happening.
Death Penalty History: 1957-2008
The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.
Today, there are 35 people on death row and four people have been executed in the last 53 years.
Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.
The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done in an even-handed manner.
How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?
What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?
Death Penalty History: 2009—present
The attorney general requested three death warrants from the governor in November 2009. Before the governor could act on the request, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for execution. The DOC complied and new and revised procedures were back on the books by May, 2010. The governor began the procedure for setting execution dates for the three men when he discovered the state had a limited supply of a key drug used in lethal injections, enough for only one dose, and even that supply expired in October 2010. So, the governor asked his justice secretary to formulate a selection process so that at least one of the three could be executed while the others waited for fresh supplies of the lethal drug needed to complete the injection cocktail. The Department of Corrections has said that a new supply cannot arrive before the first quarter of 2010.
Status of the Wilson Case and Executions Generally?
The death warrant authorizing Wilson’s execution expired at midnight September 16, 2010. According to representations made by the Department of Corrections to the Franklin Circuit Court, a key ingredient in the lethal injection mix will not be available until the first quarter of 2011. As a result, there is no current date for Wilson’s execution and the state lacks the chemical means to execute until the first quarter of 2011.
There are also legal issues pending about the Wilson case that may affect executions generally:
1) The Kentucky Supreme Court is reviewing a decision by the Kenton Circuit Court denying Wilson’s request for DNA testing and a determination of whether he is exempt from execution due to mental retardation. If the Supreme Court grants Wilson’s request, an evidentiary hearing will be scheduled in Kenton Circuit Court. It is highly improbable that the governor would seek to execute Wilson before a hearing was concluded and it is highly probable that he would be enjoined if he did. This ruling does not affect capital punishment generically.
2) The Kentucky Supreme Court is also reviewing a case from Franklin Circuit Court involving the new execution procedures written by the Kentucky Department of Corrections pursuant to a November 2009 order of the Kentucky Supreme Court.
This case has the potential to impact all executions in Kentucky.
Wilson intervened in the case and the trial judge enjoined the state from executing Wilson while the court was reviewing the legal adequacy of the new execution procedures. In the course of enjoining the Wilson execution, the trial judge expressed official interest in (i) the lack of procedures to test for mental retardation prior to execution and (ii) possible legal flaws in Wilson’s trial where he was given no choice but to represent himself most of the time. Judge Shepherd has established an expedited briefing schedule on these matters, which concludes on October 25th.
The Kentucky Supreme Court is currently reviewing legal briefs from the litigants concerning the Franklin Circuit Court case, after which it may rule that the case is moot since there is no current death warrant applicable to Wilson; or, it might affirm the judge’s ruling, the effect of which would be to require the Department of Corrections to supplement its execution procedures to provide for mental retardation testing; or, it might reverse the trial judge’s ruling in effect finding that the judge had no good reason to delay the Wilson execution. In the latter case, Wilson would be scheduled for execution if and when (1) the governor signs a new death warrant and (2) the state receives new supplies of the drugs needed for the lethal injection.
If the Supreme Court finds the case is moot or it agrees with Judge Shepherd, the case would nevertheless be returned to Franklin Circuit Court for such further hearings as the trial judge may require in order to render a final judgment on the legal adequacy of the new execution procedures.
Facts about the Death Penalty(As of October, 2010)
35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 34 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 35
Women on Death Row (Kentucky) 1
Georgraphy
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.
Conclusion
The death penalty is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law).
A recent example of Murphy’s Law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could find not a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!
Of the Wilson case, Judge Boyce Martin of the United States Court of Appeals for the 6th Circuit wrote earlier this month:
The rape and murder of Debbie Pooley was a heartbreaking and reprehensible
act. But at Gregory Wilson’s murder trial, the state’s ignominy began…*** virtually every branch of our justice system failed —from the judiciary, which allowed a sex scandal between a colleague of the trial judge and Wilson’s co-defendant to jeopardize the fairness of Wilson’s trial; to the defense counsel, who were woefully unqualified and left Wilson abandoned at trial. The judiciary failed both Wilson and our legal system in this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of Wilson’s trial. Brenda Humphrey, Wilson’s co-defendant and the woman who identified him as Pooley’s killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial judge during Wilson’s trial:*** …This scandal is an embarrassment to all segments of the judiciary, from the judge who violated the Code of Judicial Conduct by having a sexual relationship with a defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex. When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying.
Perhaps even more egregiously than the judiciary, Wilson’s defense counsel
failed him and the principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a charade:****
…Over my more than thirty years on the bench, Wilson’s trial stands out as one of
the worst examples that I have seen of the unfairness and abysmal lawyering that
pervade capital trials. Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.” Moore v. Parker, 425 F.3d No. 09-6306 Wilson v. Rees, et al. Page 7250, 270 (6th Cir. 2005) (Martin, J., dissenting). To maintain the legitimacy of our adversarial system of justice, we must be confident that its two foundational components are sound: a neutral and fair arbiter, and adequate legal representation for both parties.
If either pillar is fractured, as in this case, then we are left with a system that does not function. Its results cannot be trusted, particularly when a life is at stake. When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death.
DV
October 21, 2010
Friday, September 10, 2010
From Kentucky Law Review
Thursday, November 19, 2009
OP-ED: Atty Donld Vish's special to the CJ re death penalty
The death penalty has put the Constitution on a collision course with itself.
The path to collision was cut and cleared in 1976, when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion' template proposed by the Model Penal Code (MPC).
The ‘guided discretion' approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.
Rhetoricians have a name for rubrics like “guided discretion”: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).
The precise place where justice fits between “guided” and “discretion” is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding, then reaching, the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.
As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society's search for justice, competing constitutional values get in the way of one another and, like Virgil's army, crowd the field so totally that none has room to do its work.
The sponsor of the MPC, The American Law Institute, has now withdrawn the guided discretion template and its legal consultants, Professors Carol S. Steiker, Harvard Law School, and Jordan M. Steiker, University of Texas Law school, have declared the “guided discretion experiment” unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model. The template is merely a mirror for what is required by the Constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.
As courts grapple with the balance between the two, justice in death penalty cases is becoming to the Constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.
Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can't uphold it because the applicable legal standards collide with each other.
Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.
Posted on Thursday, November 19, 2009 at 10:44 PM in Apple, Criminal, Opinions and Editorials (Op-Ed) | Permalink
TrackBack
Thursday, November 19, 2009
OP-ED: Atty Donld Vish's special to the CJ re death penalty
The death penalty has put the Constitution on a collision course with itself.
The path to collision was cut and cleared in 1976, when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion' template proposed by the Model Penal Code (MPC).
The ‘guided discretion' approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.
Rhetoricians have a name for rubrics like “guided discretion”: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).
The precise place where justice fits between “guided” and “discretion” is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding, then reaching, the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.
As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society's search for justice, competing constitutional values get in the way of one another and, like Virgil's army, crowd the field so totally that none has room to do its work.
The sponsor of the MPC, The American Law Institute, has now withdrawn the guided discretion template and its legal consultants, Professors Carol S. Steiker, Harvard Law School, and Jordan M. Steiker, University of Texas Law school, have declared the “guided discretion experiment” unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model. The template is merely a mirror for what is required by the Constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.
As courts grapple with the balance between the two, justice in death penalty cases is becoming to the Constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.
Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can't uphold it because the applicable legal standards collide with each other.
Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.
Posted on Thursday, November 19, 2009 at 10:44 PM in Apple, Criminal, Opinions and Editorials (Op-Ed) | Permalink
TrackBack
Ky. governor holding off on some executions due to shortage of key drug
Ky. governor holding off on some executions due to shortage of key drug
WHAS TV News Report: August 26, 2010
by Claudia Coffey
WHAS11.com
Posted on August 26, 2010 at 6:34 PM
Related:
•Condemned Ky. inmate asks judge to halt execution
(WHAS11) - Kentucky Governor Steve Beshear has set a September 16 execution date for a rapist and murderer but held off on two others because of a shortage of a key drug used in the execution.
Beshear said he signed only one warrant because the state has enough sodium thiopental for just one execution.
Kentucky's stock expires October 1 and a new supply of the drug is not expected until early in 2011.
It's raising a number of ethical questions; the biggest is whether one dose for one execution even safe to use so close to the date it expires.
The person facing execution? Gregory Wilson. Wilson was sentenced to die October 31, 1988, for his part in the 1987 kidnapping and murder of Deborah Pooley a year earlier in Kenton County in Northern Kentucky.
53-year-old Gregory Wilson will face an execution chamber similar to this one on September 16.
The last person executed in Kentucky was Marco Chapman back in 2008.
Wilson is one of three death row inmates for which death penalty is being sought but the state doesn't have enough chemicals on hand to execute the other two.
"I can't make anything of any of this," says Donald Vish with the KY Coalition to Abolish the Death Penalty.
Donald Vish, the Director of Advocacy for the Kentucky Coalition to Abolish the Death Penalty, says his organization has asked the governor to stay the execution until the entire system can be reviewed especially now given a key chemical is set to expire just two weeks after the Wilson execution.
"I think it creates a substantial risk of a botched execution or a substantial risk of lingering pain if the efficacy of those drugs has been diminished in any way," says Donald Vish with the KY Coalition to Abolish the Death Penalty.
The Department of Corrections has a sufficient amount of a drug called sodium thiopental, that amount expire October 1. The drug is a sedative.
"In this setting they use three different drugs. This drug is used first to make the person unaware of the effects of the other drugs," says George Bosse of the KY Regional Poison Control Center.
George Bosse - the medical director of the Kentucky Regional Poison Control Center - says like all drugs this too has an expiration date and it’s likely to remain effective until that date.
It should last until the expiration date and what happens after that is somewhat controversial and there is some concern it could lose its effectiveness and there is concern that it could cause toxicity which is less likely but the bigger concern is it could be less effective," says Bosse.
end--
The Death Penalty: Guest Editorial, WAVE TV 6-3-10
June 3, 2010
Guest Editorial: WAVE-TV
The Death Penalty
By Donald Vish
Kentucky Coalition to Abolish the Death Penalty
Aggravated murder cases in Kentucky show a disparity in treatment so inexplicable and so extreme that the legitimacy of the death penalty must be called into question.
In the last two years a serial killer, a child-killer rapist and a $1,000 hit man got life sentences while over the years some aggravated murderers got death. Why: A bad crime; a bad lawyer or bad luck?
Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility.
The governor needs to get to the bottom of this dysfunction before signing any death warrants. Confidence in our justice system depends on getting an explanation for a disparity that is now inexplicable-and unacceptable.
Copyright 2010 WAVE News. All rights reserved.
Guest Editorial: WAVE-TV
The Death Penalty
By Donald Vish
Kentucky Coalition to Abolish the Death Penalty
Aggravated murder cases in Kentucky show a disparity in treatment so inexplicable and so extreme that the legitimacy of the death penalty must be called into question.
In the last two years a serial killer, a child-killer rapist and a $1,000 hit man got life sentences while over the years some aggravated murderers got death. Why: A bad crime; a bad lawyer or bad luck?
Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility.
The governor needs to get to the bottom of this dysfunction before signing any death warrants. Confidence in our justice system depends on getting an explanation for a disparity that is now inexplicable-and unacceptable.
Copyright 2010 WAVE News. All rights reserved.
Abolish the Death Penalty: Guest Editorial WAVE TV
Abolish the Death Penalty
(WAVE TV Guest Editorial
1-22-10)
By Donald Vish
KY Coalition to Abolish the Death Penalty
The rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity – three since 1977 and only four since 1956.
Three conclusions are warranted:
1.The death penalty no longer serves any legal purpose
2.It offends Kentuckians' evolving standard of decency
3.It's arbitrarily applied
A 2006 University of Kentucky poll showed that 67% of Kentuckians prefer a penal option other than death in capital murder cases. The Kentucky Supreme Court should reconsider the continuing legality of the death penalty in light of its marginal and erratic use. Through looking at jury sentencing patterns, the court should conclude the death penalty does not meet legal standards, and that juries believe that life in prison without parole adequately protects the public and punishes the worst of the worst.
That's my opinion.
Copyright 2010 WAVE-TV. All Rights Reserved.
Eliminate the Death Penalty
(Lexington Herald Leader
Sunday, September 5, 2010)
Eliminate the Death Penalty
by
Donald Vish
The death penalty has become an embarrassment. Its administration has undermined public confidence in the way the justice system works. The best thing its supporters can say about is it’s not used very much.
The modern history of the death penalty in Kentucky undercuts its credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky. Many were eligible for a death sentence. Today there are 34 people on death row. Four people have been executed in the last 53 years. Infrequent use of the death penalty in Kentucky is not proof that executions are reserved for the worst of the worst.
In the last two years a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences while over the years some aggravated murderers got death. Why? A bad crime or a bad lawyer or bad luck?
The disparity in treatment of aggravated murder cases is so inexplicable and so extreme that the legitimacy of the death penalty must be called into question. An honest and impartial examination of aggravated murders in Kentucky would lead one to conclude that it is impossible to discern the legal criteria by which some are sentenced to death and others are not. The gravity of the crime does not appear to be the determining factor.
Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility. Within the universe comprised of heinous crimes and brutal perpetrators administration of the laws governing executions resembles the equivalent of Russian roulette: most of the time nothing happens but every now and then someone gets killed in accordance with the laws of chance.
Last fall, The American Law Institute, the organization that created the blueprint for modern death penalty laws in this country, concluded that the system it created does not work and cannot be fixed because the constitutional imperatives of consistency in sentencing and the need for individualized sentencing cannot be reconciled. In the context of death penalty jurisprudence, the Constitution is at war with itself and has lost.
The current order scheduling for September 16 the execution Gregory Wilson, 53, for the brutal murder and rape of a popular restaurant worker Deborah Pooley, necessitated in part by the need to complete the execution before the sleep drug used in the lethal injection mix expires in October is an example of a broken system. Since there is not enough of the drug on hand to execute the other two inmates whose death warrants are on Governor Beshear’s desk, he had to ask his justice secretary to come up with a selection process. While the process may be formulated in utmost good faith, any process that selects one of three under these circumstances more resembles the verdict of chance than the verdict of justice.
The death penalty is riddled with contradictions and contradictory imperatives.
Using a deadly chemical employed in both lethal injection and euthanasia, executions serve the contradictory goals of
* retribution and a humane death imposed after a
* legal process that applies contradictory legal mandates of even-handed administration of the law and personal consideration of each case and
* all in a special time warp that hurries along slowly.
There are too many pieces to the death penalty puzzle. It’s impossible to make them fit because they don’t. Add accidents of geography, race, demographics and wrong convictions to the lethal mix that capital punishment law has become and you get a justice system that’s killing itself.
Donald Vish is a lawyer, a life member of the American Law Institute and the Director of Advocacy and Education for the Kentucky Coalition to Abolish the Death Penalty
Sunday, September 5, 2010)
Eliminate the Death Penalty
by
Donald Vish
The death penalty has become an embarrassment. Its administration has undermined public confidence in the way the justice system works. The best thing its supporters can say about is it’s not used very much.
The modern history of the death penalty in Kentucky undercuts its credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky. Many were eligible for a death sentence. Today there are 34 people on death row. Four people have been executed in the last 53 years. Infrequent use of the death penalty in Kentucky is not proof that executions are reserved for the worst of the worst.
In the last two years a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences while over the years some aggravated murderers got death. Why? A bad crime or a bad lawyer or bad luck?
The disparity in treatment of aggravated murder cases is so inexplicable and so extreme that the legitimacy of the death penalty must be called into question. An honest and impartial examination of aggravated murders in Kentucky would lead one to conclude that it is impossible to discern the legal criteria by which some are sentenced to death and others are not. The gravity of the crime does not appear to be the determining factor.
Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility. Within the universe comprised of heinous crimes and brutal perpetrators administration of the laws governing executions resembles the equivalent of Russian roulette: most of the time nothing happens but every now and then someone gets killed in accordance with the laws of chance.
Last fall, The American Law Institute, the organization that created the blueprint for modern death penalty laws in this country, concluded that the system it created does not work and cannot be fixed because the constitutional imperatives of consistency in sentencing and the need for individualized sentencing cannot be reconciled. In the context of death penalty jurisprudence, the Constitution is at war with itself and has lost.
The current order scheduling for September 16 the execution Gregory Wilson, 53, for the brutal murder and rape of a popular restaurant worker Deborah Pooley, necessitated in part by the need to complete the execution before the sleep drug used in the lethal injection mix expires in October is an example of a broken system. Since there is not enough of the drug on hand to execute the other two inmates whose death warrants are on Governor Beshear’s desk, he had to ask his justice secretary to come up with a selection process. While the process may be formulated in utmost good faith, any process that selects one of three under these circumstances more resembles the verdict of chance than the verdict of justice.
The death penalty is riddled with contradictions and contradictory imperatives.
Using a deadly chemical employed in both lethal injection and euthanasia, executions serve the contradictory goals of
* retribution and a humane death imposed after a
* legal process that applies contradictory legal mandates of even-handed administration of the law and personal consideration of each case and
* all in a special time warp that hurries along slowly.
There are too many pieces to the death penalty puzzle. It’s impossible to make them fit because they don’t. Add accidents of geography, race, demographics and wrong convictions to the lethal mix that capital punishment law has become and you get a justice system that’s killing itself.
Donald Vish is a lawyer, a life member of the American Law Institute and the Director of Advocacy and Education for the Kentucky Coalition to Abolish the Death Penalty
Friday, June 4, 2010
Tuesday, May 25, 2010
Review Needed Before Death Warrants Signed
Fom the Frankfort State Journal, May 25, 2010: Donald Vish
Review Needed Before Death Warrants Signed
Similar punishments for similar crimes committed by similar people acting under similar circumstances are the foundation of the criminal justice system. On this foundation stand essential constitutional and public policy pillars of due process, equal protection and proportional punishment.
Recent aggravated murder cases show a disparity in death penalty cases so divergent, so inexplicable and so extreme that the death penalty is called into question as a matter of public policy.
In the last two years, for example, a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences rather than death. One prosecutor immediately changed a death penalty case to a life without parole case simply because the prosecuting attorney made a mistake requiring a new trial.
To determine the proper symmetry of aggravated murder cases and capital punishment it is necessary to look at a universe of cases in which
Similar crimes got the death penalty
Similar crimes did not get the death penalty
Similar crimes were not prosecuted as death penalty cases.
While this three-pronged method of review is not required under Kentucky statutory law mandating proportionality reviews of all death sentences or the United State Constitution as interpreted by the United States Supreme, the extraordinary disparity in outcome of potential death penalty cases is troubling enough to justify a broad inquiry by the governor before signing a death warrant.
The governor has vast clemency powers without constraints and virtually beyond review. The drafters of Kentucky's constitution made a plenary grant of executive power to enable the chief magistrate do justice on a plane beyond the minimum required by statute. Confidence in the justice system can only be achieved by finding a reasonable explanation for a disparity that is now inexplicable.
May 25, 2010
Donald Vish, Kentucky Coalition to Abolish the Death Penalty, Louisville
Monday, May 3, 2010
Friday, February 26, 2010
Remarks to Libertarian Party of Kentucky Annual Convention
The Death Penalty is Killing Itself
Text of Remarks
To the
Kentucky Libertarian Party
February 27, 2010
Lexington, KY
The Death Penalty is Killing Itself
By
Donald Vish
Kentucky Coalition to Abolish the Death Penalty
Thank you for entrusting your podium to me. We all know there’s no thief worse than a bad speech to a captive audience. A wise old stump speaker from that place I’ll just call ‘down-home’ once told me that the worst speakers make speeches that are always fixin’ to get ready to get started. I am not going to do that. I’m going to get to the point right away which is this: the death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: most of the time nothing happens but every now and then somebody gets killed.
But we may be on the verge of a lot happening. The attorney general has requested three death warrants from the governor. Before the governor could act on the request in November, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for executions and took public comments on the procedures. Those steps have been taken and the execution protocols are on their way to the governor’s desk for signature. On their way to the governor’s desk, the procedures must go through a legislative committee. The governor has said he will sign the protocols when they arrive. So execution procedures could be back on the books by April or May which means Kentucky could have multiple executions in 2010: at least three and this in a state that has executed only four people in the last 53 years.
Lethal Injection: Humane Executions
The Holy Grail of modern civilized executions is to have someone dead, not to make someone dead much less to actually kill anyone. The civilized execution seeks to perfect a process that has only a past tense, a protocol that takes the dying out of death and the killing out of killed. Civilized killing aspires to be a sentence without a verb. In a perfect execution, nothing happens, there is no beginning or middle and the end is always in the remote past. The coroner has to announce later that it happened earlier. The civilized execution is a perfect demonstration of the proverb: nothing produces nothing made all the more remarkable by having done it with nobody.
In the humane execution the actual executioner is merely unknown but in the perfect execution lethal injection strives to achieve, there is no executioner, a perfect illustration of the dictum: everybody’s business is nobody’s business.
The humane execution is choreographed to occlude its entanglement with brutality, barbarism, violence or a freakish and lingering death, to silence the voice of pain. So the body sleeps in muscular paralysis so one knows if it wakes up.
The execution is disguised to resemble a medical procedure. Trappings of humanitarianism, healing and kindness conceal the reality: there’s a noose in the needle.
Death Penalty History Condemns Itself
The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.
Today, there are 35 people on death row and four people have been executed in the last 53 years.
Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.
The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done though the heavens may fall.
How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?
What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?
The Death Penalty Doesn’t Work
The death penalty is a failure on every level: legal, social, political, penal, financial and moral.
First, there is no way to kill humanely.
Secondly, there is no way to kill in compliance with constitutional procedures.
Thirdly, there is no way to kill without the risk that innocent people will be executed.
Fourthly, administration of the death penalty has failed to deter heinous murders in Kentucky and to exact proportional retribution for and from the worst of the worst.
Finally, the people are not getting their money’s worth from an unnecessary system that serves no penological purpose.
In Kentucky, the death penalty makes nothing happen.
Nationally, it is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law). A recent example of Murphy’s law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel simply could not find a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!
Law of Lightening
Imposition of the death penalty has been analogized to the capriciousness of lightening. The comparison is unfair. It is much easier to predict WHERE the death penalty will be used than to predict where lightening might strike. The death penalty has a measurable geographic vortex. The geography of the death penalty is so pronounced that it is an exercise of poetic license to say the United States endorses the death penalty. Actually, most places in the United States do not use the death penalty.
Since the death penalty was reinstated in 1977
• more than two-thirds of American counties have never imposed it and
• Only 3 percent (92 out of 3,066) of the nation’s counties have generated 50 percent of its death sentences.
Death Penalty Use is Limited and in Decline
The death penalty has become an embarrassment to our legal system. Its administration has undermined public confidence in the way the law works. The best thing its supporters can say about it is the best thing its opponents can say about it: it’s not used very much.
In fact, in some precincts, both social and geographic, it’s not used at all.
In 2009, eighty-seven percent of executions in the United States were in the south, and over half of those were in Texas. A single county in Texas has furnished more than 33 percent of the state’s death row population.
While 35 states have the death penalty, executions are clustered in just a few. There have been 1,188 executions since 1977and 54 percent of those have come from three states:Texas,with 447 (37.6 percent),Virginia with 105 and Oklahoma with 91.
Even where the death penalty is used, its use is declining. There were fewer death sentences in 2009 than any year since executions resumed in 1977. Death sentences reached a high point in 1994, 328, and since then have declined 63 percent. 2009 is the seventh straight year the number of death sentences has declined .
Deterrence
Justification for the death penalty has been based on the penal goals of deterrence and retribution. But in 10 of the 12 states without capital punishment, the homicide rates are below the national average and FBI data shows that half of the states with the death penalty have murder rates above the national average. A New York Times analysis found that over the last 20 years, states with the death penalty have murder rates between 48 percent to 101 percent HIGHER than states without the death penalty (December 14, 2009 New York Times.)
Retribution
Gallup polls show that among those who support the death penalty, retribution is most often cited as the reason. A June 30, 2006 Gallup poll, citing a 2003 Gallup study stated:
The reason is very likely their concept of justice. According to a 2003 Gallup study, close to half of Americans who supported the death penalty cited some aspect of retribution for the crime as the reason. [An October 13, 2009 Gallup Poll updates public opinion on the death penalty reporting 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it -- continuing a trend that has shown little change over the last six years. ]
The most recent 2009 Gallup poll on death penalty support does not update the 2003 findings about the reasons for support of capital punishment nor does it update the 2006 finding, quoted in the 2009 study:
An Explicit Alternative to the Death Penalty? Gallup research has found that support for the death penalty is lower if Americans are offered an explicit alternative -- "life imprisonment, with absolutely no possibility of parole." In May 2006, for example, 65% of Americans supported the death penalty in general (matching the current figure), while, separately, 47% said they preferred the death penalty to life imprisonment as a penalty for murder when given that choice (48% favored life imprisonment).
The Gallop finding is consistent with a 2006 University of Kentucky poll that found 67% of Kentucky residents questioned preferred a long prison sentence over execution for those convicted of murder. As part of a larger statewide survey in August and September, 2006 the University of Kentucky Survey Research Center asked 836 randomly selected Kentuckians over age 18 which of five possible punishments was most appropriate for someone convicted of aggravated murder.
Findings include:
• 36.2 percent favored life with no possibility of parole.
• 31.4 percent favored one of three other prison sentences: life without parole for 20 years, life without parole for 25 years, 20 to 50 years with no parole possible until 85 percent of the sentence is served.
• 30.5 percent favored the death penalty.
Balancing Retribution with Risk of Executing the Innocent
Gallop surveys have stated the retribution case in four ways: 1) the punishment fits the crime (37%); 2) the criminal deserves the punishment(13%); 3)it is fair 3%) and 4) it serves justice(4%)Gallop Poll June 30, 2006 citing a 2003 Gallop survey most of which may be summed up in the dictum ‘an eye for an eye.’
So the retribution case has two overarching formulations: (1) the punishment fits the crime(37%)and(2)the criminal deserves the punishment(20%).
When New Mexico abolished the death penalty in 2009, Governor Richardson acknowledged the retribution theory. But he rejected the practice because of the possibility of executing an innocent person. He concluded that life in prison without possibility of parole was a just penalty and adequate retribution perhaps even worse than death.
Governor Richardson’s concern about executing the innocent is well founded. Since 1977, 139 death row prisoners have been exonerated (in most cases ‘exonerated’ means the defendant was acquitted upon retrial and in a handful of cases ‘exoneration’ means the defendant was declared innocent based on DNA evidence). And now there is a 2009 report commissioned by the Texas Forensic Science Commission that points toward the conclusion that Texas executed an innocent man in 1991. Cameron Todd Willingham was electrocuted in 1991 for the arson murder of his three children. The new report finds that the arson claims were not sustainable (although this finding is hotly contested by some law enforcement officials). Resolution of the matter awaits adjudication by the State of Texas but progress is on hold since the Governor recently changed the composition of the committee assigned to sort out the facts and findings.
In Kentucky, the very recent Louisville case of Edwin A. Chandler is cause for grave concern. The judge that released Chandler in 2009 apologized to him from the bench (he was not the original sentencing judge) and called his case a miscarriage of justice. Chandler served nine years in prison for a murder he did not commit during a robbery he had nothing to do with. He could have received the death penalty.
Chandler’s innocence claims were corroborated by an eye witness that called the police and said that Chandler was not the shooter (but the witness was never called to testify at trial), by a fingerprint and DNA sample at the crime scene that was not found until years later and by a convenience store surveillance tape that the police lost before Chandler’s trial. The jury that convicted Chandler was ‘death qualified’ during voir dire meaning the state could have asked for the death penalty. But by closing argument it did not even though Chandler was convicted. The jury decision was based in part on the strength of Chandler’s actual confession to the crime which he said he made it in response to a threat by police to prosecute his family for being criminal accessories to murder if he did not.
Policy Conundrums
Retribution with Kindness
Administration of capital punishment requires navigating between the separate worlds of too much and not enough. The dual imperatives of getting more blood for blood in a humane way while at the same time satisfying the sense of equivalence that distinguishes retributive justice are impossible to reconcile.
How can a punishment informed by a sense of justice that imposes retributive equivalence be harmonized with the quest for a painless execution? How can the state methodically kill a person as an act of just retribution and at the same time comport with standards of decency that distinguish a civilized society? How can killing be kindness? How does the state reconcile the conflicting imperatives of retributive equivalence and humane execution?
Dr. Alfred P. Southwick thought he had the answer to the question in 1890 after ten years of work on his invention: the electric chair. Upon witnessing its first jolt in 1890 on killer William Kemmler, Dr. Southwick exclaimed:
There is the culmination of ten years work and study! We live in a higher civilization from this day.
Dr. Southwick didn’t know it when he spoke but the first jolt failed to kill Kemmler and George Westinghouse later said of the messy execution that ensued: It could have been done better with an ax.
Lethal injection is the direct successor to Dr. Southwick’s 19th search for a method of premeditated, ritualized and efficient killing that demonstrates that we live in a higher civilization. Other methods have proved to have too much potential for misadventure to compete for the oxymoronic title of humane killing.
Legal Conundrums
Capital punishment has placed the constitution on a collision course with itself. On the one hand the constitution requires wise discretion applied to the special facts of every death penalty case and on the other hand the use of an objective, uniform standard consistently applied to all persons in all death penalty cases. In reinstating the death penalty in 1976, the U. S. Supreme Court approved state death penalty laws that yoked together the two disparate requirements under a due process template of the Model Penal Code called "guided discretion." But guided discretion is a contradiction of terms: the more there is of one, the less there is of the other. As a result, the 'guided discretion' templates aims for a very narrow target, perhaps a theoretical target, and is always in danger of erring either on the side of arbitrariness or on the side of inflexibility. The difficulty in applying the guided discretion standard is the reason why so many death penalty cases are reversed and retired and why the appeals are so protracted.
In 2009 The American Law Institute (ALI), the author of the Model Penal Code withdrew the standard from the model penal code … in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.
The reauthorization of the death penalty by the Supreme Court was predicated on this standard which the ALI has now withdrawn. The ALI legal consultants that evaluated how the template has fared since 1976 have declared it a failure.
At some point, the courts will have to confirm the ALI’s conclusion.
Conclusion
The death penalty has failed as a matter of law and social policy.
The death penalty is not compatible with central values of our constitution: justice and basic fairness. It is impossible to formulate workable procedural rules in harmony with substantive legal requirements of eliminating arbitrariness and discrimination while achieving fundamental fairness through individualized sentencing.
The mere possibility of prosecutorial misfeasance or malfeasance in a death penalty case or the possibility of executing the innocent together with evidence of discrimination, including geographic discrimination, protracted litigation that seems to turn on technicalities collectively damages the legitimacy of the law and the credibility of the legal system.
No combination of procedural rules, substantive regulations, death protocols and eventless executions can save the death penalty from the genealogy from which it derives its inherent barbarism, its humane deficiencies, its premeditated cruelty and its costly failures.
The death penalty is killing itself.
DV
2968 words/ 25 minutes
February 26, 2010
Facts about the Death Penalty
(As of December, 2009)
35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 36 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 36
Women on Death Row (Kentucky) 1
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.
Text of Remarks
To the
Kentucky Libertarian Party
February 27, 2010
Lexington, KY
The Death Penalty is Killing Itself
By
Donald Vish
Kentucky Coalition to Abolish the Death Penalty
Thank you for entrusting your podium to me. We all know there’s no thief worse than a bad speech to a captive audience. A wise old stump speaker from that place I’ll just call ‘down-home’ once told me that the worst speakers make speeches that are always fixin’ to get ready to get started. I am not going to do that. I’m going to get to the point right away which is this: the death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: most of the time nothing happens but every now and then somebody gets killed.
But we may be on the verge of a lot happening. The attorney general has requested three death warrants from the governor. Before the governor could act on the request in November, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for executions and took public comments on the procedures. Those steps have been taken and the execution protocols are on their way to the governor’s desk for signature. On their way to the governor’s desk, the procedures must go through a legislative committee. The governor has said he will sign the protocols when they arrive. So execution procedures could be back on the books by April or May which means Kentucky could have multiple executions in 2010: at least three and this in a state that has executed only four people in the last 53 years.
Lethal Injection: Humane Executions
The Holy Grail of modern civilized executions is to have someone dead, not to make someone dead much less to actually kill anyone. The civilized execution seeks to perfect a process that has only a past tense, a protocol that takes the dying out of death and the killing out of killed. Civilized killing aspires to be a sentence without a verb. In a perfect execution, nothing happens, there is no beginning or middle and the end is always in the remote past. The coroner has to announce later that it happened earlier. The civilized execution is a perfect demonstration of the proverb: nothing produces nothing made all the more remarkable by having done it with nobody.
In the humane execution the actual executioner is merely unknown but in the perfect execution lethal injection strives to achieve, there is no executioner, a perfect illustration of the dictum: everybody’s business is nobody’s business.
The humane execution is choreographed to occlude its entanglement with brutality, barbarism, violence or a freakish and lingering death, to silence the voice of pain. So the body sleeps in muscular paralysis so one knows if it wakes up.
The execution is disguised to resemble a medical procedure. Trappings of humanitarianism, healing and kindness conceal the reality: there’s a noose in the needle.
Death Penalty History Condemns Itself
The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.
Today, there are 35 people on death row and four people have been executed in the last 53 years.
Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.
The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done though the heavens may fall.
How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?
What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?
The Death Penalty Doesn’t Work
The death penalty is a failure on every level: legal, social, political, penal, financial and moral.
First, there is no way to kill humanely.
Secondly, there is no way to kill in compliance with constitutional procedures.
Thirdly, there is no way to kill without the risk that innocent people will be executed.
Fourthly, administration of the death penalty has failed to deter heinous murders in Kentucky and to exact proportional retribution for and from the worst of the worst.
Finally, the people are not getting their money’s worth from an unnecessary system that serves no penological purpose.
In Kentucky, the death penalty makes nothing happen.
Nationally, it is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law). A recent example of Murphy’s law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel simply could not find a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!
Law of Lightening
Imposition of the death penalty has been analogized to the capriciousness of lightening. The comparison is unfair. It is much easier to predict WHERE the death penalty will be used than to predict where lightening might strike. The death penalty has a measurable geographic vortex. The geography of the death penalty is so pronounced that it is an exercise of poetic license to say the United States endorses the death penalty. Actually, most places in the United States do not use the death penalty.
Since the death penalty was reinstated in 1977
• more than two-thirds of American counties have never imposed it and
• Only 3 percent (92 out of 3,066) of the nation’s counties have generated 50 percent of its death sentences.
Death Penalty Use is Limited and in Decline
The death penalty has become an embarrassment to our legal system. Its administration has undermined public confidence in the way the law works. The best thing its supporters can say about it is the best thing its opponents can say about it: it’s not used very much.
In fact, in some precincts, both social and geographic, it’s not used at all.
In 2009, eighty-seven percent of executions in the United States were in the south, and over half of those were in Texas. A single county in Texas has furnished more than 33 percent of the state’s death row population.
While 35 states have the death penalty, executions are clustered in just a few. There have been 1,188 executions since 1977and 54 percent of those have come from three states:Texas,with 447 (37.6 percent),Virginia with 105 and Oklahoma with 91.
Even where the death penalty is used, its use is declining. There were fewer death sentences in 2009 than any year since executions resumed in 1977. Death sentences reached a high point in 1994, 328, and since then have declined 63 percent. 2009 is the seventh straight year the number of death sentences has declined .
Deterrence
Justification for the death penalty has been based on the penal goals of deterrence and retribution. But in 10 of the 12 states without capital punishment, the homicide rates are below the national average and FBI data shows that half of the states with the death penalty have murder rates above the national average. A New York Times analysis found that over the last 20 years, states with the death penalty have murder rates between 48 percent to 101 percent HIGHER than states without the death penalty (December 14, 2009 New York Times.)
Retribution
Gallup polls show that among those who support the death penalty, retribution is most often cited as the reason. A June 30, 2006 Gallup poll, citing a 2003 Gallup study stated:
The reason is very likely their concept of justice. According to a 2003 Gallup study, close to half of Americans who supported the death penalty cited some aspect of retribution for the crime as the reason. [An October 13, 2009 Gallup Poll updates public opinion on the death penalty reporting 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it -- continuing a trend that has shown little change over the last six years. ]
The most recent 2009 Gallup poll on death penalty support does not update the 2003 findings about the reasons for support of capital punishment nor does it update the 2006 finding, quoted in the 2009 study:
An Explicit Alternative to the Death Penalty? Gallup research has found that support for the death penalty is lower if Americans are offered an explicit alternative -- "life imprisonment, with absolutely no possibility of parole." In May 2006, for example, 65% of Americans supported the death penalty in general (matching the current figure), while, separately, 47% said they preferred the death penalty to life imprisonment as a penalty for murder when given that choice (48% favored life imprisonment).
The Gallop finding is consistent with a 2006 University of Kentucky poll that found 67% of Kentucky residents questioned preferred a long prison sentence over execution for those convicted of murder. As part of a larger statewide survey in August and September, 2006 the University of Kentucky Survey Research Center asked 836 randomly selected Kentuckians over age 18 which of five possible punishments was most appropriate for someone convicted of aggravated murder.
Findings include:
• 36.2 percent favored life with no possibility of parole.
• 31.4 percent favored one of three other prison sentences: life without parole for 20 years, life without parole for 25 years, 20 to 50 years with no parole possible until 85 percent of the sentence is served.
• 30.5 percent favored the death penalty.
Balancing Retribution with Risk of Executing the Innocent
Gallop surveys have stated the retribution case in four ways: 1) the punishment fits the crime (37%); 2) the criminal deserves the punishment(13%); 3)it is fair 3%) and 4) it serves justice(4%)Gallop Poll June 30, 2006 citing a 2003 Gallop survey most of which may be summed up in the dictum ‘an eye for an eye.’
So the retribution case has two overarching formulations: (1) the punishment fits the crime(37%)and(2)the criminal deserves the punishment(20%).
When New Mexico abolished the death penalty in 2009, Governor Richardson acknowledged the retribution theory. But he rejected the practice because of the possibility of executing an innocent person. He concluded that life in prison without possibility of parole was a just penalty and adequate retribution perhaps even worse than death.
Governor Richardson’s concern about executing the innocent is well founded. Since 1977, 139 death row prisoners have been exonerated (in most cases ‘exonerated’ means the defendant was acquitted upon retrial and in a handful of cases ‘exoneration’ means the defendant was declared innocent based on DNA evidence). And now there is a 2009 report commissioned by the Texas Forensic Science Commission that points toward the conclusion that Texas executed an innocent man in 1991. Cameron Todd Willingham was electrocuted in 1991 for the arson murder of his three children. The new report finds that the arson claims were not sustainable (although this finding is hotly contested by some law enforcement officials). Resolution of the matter awaits adjudication by the State of Texas but progress is on hold since the Governor recently changed the composition of the committee assigned to sort out the facts and findings.
In Kentucky, the very recent Louisville case of Edwin A. Chandler is cause for grave concern. The judge that released Chandler in 2009 apologized to him from the bench (he was not the original sentencing judge) and called his case a miscarriage of justice. Chandler served nine years in prison for a murder he did not commit during a robbery he had nothing to do with. He could have received the death penalty.
Chandler’s innocence claims were corroborated by an eye witness that called the police and said that Chandler was not the shooter (but the witness was never called to testify at trial), by a fingerprint and DNA sample at the crime scene that was not found until years later and by a convenience store surveillance tape that the police lost before Chandler’s trial. The jury that convicted Chandler was ‘death qualified’ during voir dire meaning the state could have asked for the death penalty. But by closing argument it did not even though Chandler was convicted. The jury decision was based in part on the strength of Chandler’s actual confession to the crime which he said he made it in response to a threat by police to prosecute his family for being criminal accessories to murder if he did not.
Policy Conundrums
Retribution with Kindness
Administration of capital punishment requires navigating between the separate worlds of too much and not enough. The dual imperatives of getting more blood for blood in a humane way while at the same time satisfying the sense of equivalence that distinguishes retributive justice are impossible to reconcile.
How can a punishment informed by a sense of justice that imposes retributive equivalence be harmonized with the quest for a painless execution? How can the state methodically kill a person as an act of just retribution and at the same time comport with standards of decency that distinguish a civilized society? How can killing be kindness? How does the state reconcile the conflicting imperatives of retributive equivalence and humane execution?
Dr. Alfred P. Southwick thought he had the answer to the question in 1890 after ten years of work on his invention: the electric chair. Upon witnessing its first jolt in 1890 on killer William Kemmler, Dr. Southwick exclaimed:
There is the culmination of ten years work and study! We live in a higher civilization from this day.
Dr. Southwick didn’t know it when he spoke but the first jolt failed to kill Kemmler and George Westinghouse later said of the messy execution that ensued: It could have been done better with an ax.
Lethal injection is the direct successor to Dr. Southwick’s 19th search for a method of premeditated, ritualized and efficient killing that demonstrates that we live in a higher civilization. Other methods have proved to have too much potential for misadventure to compete for the oxymoronic title of humane killing.
Legal Conundrums
Capital punishment has placed the constitution on a collision course with itself. On the one hand the constitution requires wise discretion applied to the special facts of every death penalty case and on the other hand the use of an objective, uniform standard consistently applied to all persons in all death penalty cases. In reinstating the death penalty in 1976, the U. S. Supreme Court approved state death penalty laws that yoked together the two disparate requirements under a due process template of the Model Penal Code called "guided discretion." But guided discretion is a contradiction of terms: the more there is of one, the less there is of the other. As a result, the 'guided discretion' templates aims for a very narrow target, perhaps a theoretical target, and is always in danger of erring either on the side of arbitrariness or on the side of inflexibility. The difficulty in applying the guided discretion standard is the reason why so many death penalty cases are reversed and retired and why the appeals are so protracted.
In 2009 The American Law Institute (ALI), the author of the Model Penal Code withdrew the standard from the model penal code … in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.
The reauthorization of the death penalty by the Supreme Court was predicated on this standard which the ALI has now withdrawn. The ALI legal consultants that evaluated how the template has fared since 1976 have declared it a failure.
At some point, the courts will have to confirm the ALI’s conclusion.
Conclusion
The death penalty has failed as a matter of law and social policy.
The death penalty is not compatible with central values of our constitution: justice and basic fairness. It is impossible to formulate workable procedural rules in harmony with substantive legal requirements of eliminating arbitrariness and discrimination while achieving fundamental fairness through individualized sentencing.
The mere possibility of prosecutorial misfeasance or malfeasance in a death penalty case or the possibility of executing the innocent together with evidence of discrimination, including geographic discrimination, protracted litigation that seems to turn on technicalities collectively damages the legitimacy of the law and the credibility of the legal system.
No combination of procedural rules, substantive regulations, death protocols and eventless executions can save the death penalty from the genealogy from which it derives its inherent barbarism, its humane deficiencies, its premeditated cruelty and its costly failures.
The death penalty is killing itself.
DV
2968 words/ 25 minutes
February 26, 2010
Facts about the Death Penalty
(As of December, 2009)
35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 36 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 36
Women on Death Row (Kentucky) 1
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.
Subscribe to:
Posts (Atom)
Posts
