A Thanksgiving Litany

The Bee Makes the Bitter Sweet

I am thankful for the beauty and wonder of the world, for all that is gracious, good and kind in human nature, for family and friends, for minds, hearts and hands that think, love and serve, for the health and strength to work, the leisure to play, for the benediction of laughter, for the blessings of life, for brave souls among us who are faithful in times of adversity and patient in times of suffering, for peacemakers, for courageous seekers of social justice and for wise judges who harmonize law with mercy.

FLAWED

Bad Design

Missing Pieces

The legal organization responsible for designing the model penal code has withdrawn its support for a key provision of the code that inadvertently served as the cornerstone for modern death penalty statutes.

The American Law Institute intended to remain neutral on capital punishment when it crafted the model penal code in 1962. The code contained, however, a template for considering conflicting constitutional values in death penalty cases that required due process of law based on objective criteria and individual consideration of the special facts and circumstances of each capital case.

The guided discretion construct was ignored by the states until 1972 when the United States Supreme Court invalidated all state death penalty laws for failing to provide due process of law in a nondiscriminatory manner that weighed the competing interests of even-handed administration of law with individual consideration of each capital case.

States attempted to fix the problem by adopting the guided discretion template of the MPC. In 1976 the Supreme Court approved resumption of capital punishment on the strength of the MPC endorsement.

As a result, the ALI gained first-hand experience with the only law beyond its expertise: the law of unintended consequences.

In October 2009, the ALI withdrew its support for the guided discretion template and a legal report evaluating its application over the years said it had not worked.

It’s now time to look at all other legal and administrative aspects of death penalty administration to determine whether the system is merely broken or intrinsically flawed beyond repair.

253 words

dv

11-18-09

Collision Course

Collision Course

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 (ALI), 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.

474 words

Saturday, November 14, 2009

DV

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.

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Lecture # 1: INTRODUCTION

Class plan: Eight major literary works will be considered during lectures #3, #5, #7, #9, #11, #13, #15 and #17. Lectures #2, #4, #6, #8, #10, #12 and #14 will cover fragments and excerpts of other literary works as well as expository prose and poetry germane to various themes.

Textbook: Law and Literature: Text & Theory (paperback edition) edited by Lenora Ledwon (1996, Garland Publishing, Inc). [$40.00 new from Amazon, some used at $22.00] [“Ledwon” in this syllabus].

Reading assignments: many can be accessed online. The eight major works may be purchased from Amazon.com and delivered for less than $100.00. Here are the eight major literary works each to be reviewed in a written essay not exceeding 750 words and due at the beginning of the lecture at which the piece will be discussed:

1. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924) (Harrison Hayford & Merton Seals, eds. U. Chicago Press, 1962). Please use this edition and read the essays, commentary and observations about the story. Lecture # 7, February 18, 2010.

2. William Shakespeare, Merchant of Venice (Oxford World's Classics) by William Shakespeare and Jay L. Halio (Paperback - May 15, 2008) Lecture # 3, January 21, 2010.

3. Franz Kafka, The Trial [introduction by George Steiner] A. A. Knopf, Inc. Schocken Books, Inc. ISBN 0-8052-1040-7. Lecture #17, April 29, 2010.

4. Albert Camus, The Stranger (1942) [A Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial). Lecture # 15, April 15, 2010.

5. 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). Lecture #9, March 4, 2010.

6. 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) Lecture # 5 February 4, 2010

7. Thomas Hardy, Jude the Obscure (and Michael M. v Superior Court 450 U.S. 464 (1981). (Oxford World's Classics) by Thomas Hardy and Patricia Ingham (Paperback - Jan 15, 2009). Lecture #13, April 1, 2010.

8. Helen Prejean, Dead Man Walking: An Eye Witness Account of the Death Penalty in the United States (paperback, 1994). Lecture #11, March 18, 2010.

Literary fragments, excerpts and the expository prose and poetry works are identified in the assignments section of each lecture plan.

Assignments for Class #1:

1. Book of Genesis: 4:1-24 The Story of Cain and Abel

Is the judge fair to Cain? Is the punishment just? Is it merciful? 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? Why did God reject Cain's offering?

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. Read Dante’s theory of contrapasso.

[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?

Botched Executions

New Questions about the Death Penalty

News of a botched execution attempt in Ohio and a miscarriage of justice in Texas where an innocent man was executed for the arson murder of his three children has raised new questions about the death penalty.

A growing chorus of diverse voices that support the death penalty in principle are turning against it in practice because of risk, cost, unfairness, the availability of a life sentence without parole and a growing realization that the death penalty system takes a toll on victims’ family and friends.

A 2006 University of Kentucky poll showed that 67% favor a penal option other than death in capital murder cases. A 2009 report by the Kentucky Legislative Research Commission stated that 108 cases were potentially eligible for the death penalty in 2007. Public records show that no new inmates have joined the 36 death row inmates since November 2006, the last time a Kentucky jury returned a death sentence.

Some informed observers think a cluster of Kentucky Death Row cases could reach final conclusion in the same year thereby presenting the potential for multiple executions in a narrow time frame.

Since 1962, three death row inmates have been put to death in Kentucky and two of them dropped their court cases and asked to be executed.

A justice system that produces the grim spectacle of multiple executions after only 3 in 47 years is presumptively dysfunctional and suggests the system is regulated by the same laws that govern lightning: no one knows where or when it will strike or whom, if anyone, it will hit or whom, if anyone, it will kill.

DV