On the right to DNA testing: Skinner v. Switzer

Our criminal justice system is sometimes arrogant.

We believe — at least, as the written code tells it — that our juries are infallible, or that their fallibility is an acceptable ill. And we must do so in order to keep the system working, to keep the problems contained. Most of the time, I agree with the acceptable ill attitude. But we often cling to that belief too doggedly, refusing to reconsider convictions when we should.

At no time is our responsibility to reconsider greater than when we decide to execute someone. Before we impose an irreversible sentence, we must take every opportunity we can to correct any possible mistake. We shouldn’t stand on process when someone’s life is at stake.

It would be wrong to refuse to hear a death-row appeal because the paperwork was filed a week late.

It would be wrong to refuse to consider new evidence that had surfaced after the jury made its decision.

And it would be wrong not to allow examination of evidence that existed but that had not been examined.

Yet that last is the concern of a case that the U.S. Supreme Court will hear tomorrow, the case of Hank Skinner (click through, then search for skinner):

The Texas state and federal courts — hearing Skinner’s habeas corpus pleas — refused to allow post-conviction testing of biological evidence, including blood, hair, fingernail clippings and vaginal swabs. The courts held that, under Texas law, a convict must prove, by a preponderance of the evidence, that he or she would not have been prosecuted or convicted had DNA testing been performed. To get DNA testing, a Texas inmate must also demonstrate that his failure to seek such testing at trial was not a strategic decision.

The law shifts the burden onto the defendant, who must show not just that doing the DNA testing would be reasonable, not just that the DNA testing might exonerate him, but that by a preponderance of the evidence, the state would have let him go without even going to trial if they’d done the tests then. And he has to do that just to get the testing done. Then to top that, he also has to explain away the procedural aspects of why this hadn’t been requested earlier.

Now, I’m as curious as the next guy, and I certainly want to ask why his defense team didn’t deal with this before. But I can’t imagine my decision on the testing hinging on that aspect. And I don’t want him to prove anything in order to get the biological evidence tested. The fact is that it’s available and it wasn’t tested, for whatever reasons, and, here: they’re going to kill Mr Skinner; they owe him an assurance that they did everything they could to be sure they’re right about that.

As if that weren’t enough, we have the heads of the justice departments of twenty-two states giving another crazy reason we should deny the request: they say that the states should get to decide this, and the federal government should keep out of it. If they’re short on money and personnel for testing, condemned prisoners will just have to accept their fates.

At least 22 states told the justices that granting Skinner DNA testing through a civil rights suit would undermine their individual statutes, which spell out when an inmate is entitled to it.

To allow this type of procedural legerdemain would both diminish the sovereign interests of the states and at the same time impose a significant burden on the states’ limited law enforcement resources, attorneys general from the 22 states wrote.

That sort of callousness seems enough of a reason, in itself, to demand that they take a step back and think. If it were your child standing accused, how would you want it to be handled? That couldn’t happen? Don’t count on that; sure, it could.

This should never have gotten to the Supreme Court, but now that it has, the court should require the testing. I’m not very confident that it will, though, with Justices Scalia, Thomas, Alito, and Roberts sure to vote against it. The outcome will likely rest on how Justice Kennedy votes, as I suspect this will be a five-to-four decision.

Haven’t there been enough people set free because DNA evidence showed that their convictions had been wrong? Can’t we see that this testing only makes sense from every just perspective? The only reason to refuse such a request is to stand with an arrogance that says, We did everything according to the law, and it’s too bad for you. If you think Mr Skinner is just a low-life who just isn’t worth keeping around, line up on that side.

But if you want to be more certain that the right man is being executed, do the tests.

Demographics and The Supremes

Yesterday evening, as I browsed the NY Times RSS feed, I saw a headline about retiring Supreme Court justice John Paul Stevens: “Justice Stevens, the Only Protestant on the Supreme Court”. The summary in the RSS feed said this:

The Supreme Court is made up of six Roman Catholics, two Jews and Justice John Paul Stevens. His retirement makes possible a court without a single member of the nation’s majority religion.

“Say what?”, said I, bristling. “Have we gone so far back in time that we’re going to worry about the religious affiliations of our Supreme Court justices?”

I clicked through to the article, though, and I was relieved: no; indeed, that’s exactly the point of the article, that we used to care about that, but we don’t any more. It used to be a big deal to consider appointing Catholics or Jews, but now it’s not remarkable.

Instead, we pay attention to other things, for better or for worse:

On the other hand, society seems to demand that the court carry a certain demographic mix.

It is hard to imagine the court without a black justice, for instance, and it may well turn out that Justice Sonia Sotomayor is sitting in a new “Hispanic seat.” It would surprise no one if President Obama tried to increase the number of women on the court to three.

I prefer that, but what I’m really waiting for is when it doesn’t matter at all. When we put people in positions based purely on their qualifications, and we honestly don’t think it matters whether they’re men or women, and what their ethnic backgrounds are. We’re a long way from that now, of course, and for now, it’s important to have a mix. I’m glad to see — especially considering the resurgence of the importance of religion in politics — that religion is not part of that mix today.

Mark Tushnet, a law professor at Harvard, had another suggestion.

President Obama, he said, could use Justice Stevens’s retirement as an opportunity both to honor tradition and to break new ground.

“The smartest political move,” he said, “would be to nominate an openly gay, Protestant guy.”

No, that’s not it. Let’s really show that it doesn’t matter. Pick an atheist.

Or is that still beyond the pale?

The Supremes on campaign financing

Yesterday, the U.S. Supreme Court handed down a 5-to-4 decision with significant consequences for elections in this country. Reversing several prior courts’ decisions, they declared unconstitutional the restrictions on campaign donations from corporations and labour unions.

There are valid arguments on both sides of this decision. Unfortunately, the main point taken by the majority is not one of them. The court has long and inexplicably supported the idea that money equates to speech — specifically, that donating money is a first-amendment right, amounting to free speech. That there was any intent toward that by the authors of the constitution is just silly. Freedom of speech was meant to protect people who would speak out, disseminate ideas, whether popular or not. It was never meant to allow the bankrolling of political candidates.

But even more ludicrous, on its very face, is the idea that corporations should have the same first-amendment rights as individuals. Yet Justice Kennedy, in the majority decision, says just that: “The court has recognized that First Amendment protection extends to corporations.”

Of course, the argument against that is the undue control that corporations can exert. With the enormous financial resources wielded by a large company, it can buy the loyalty of a candidate with donations, and intimidate legislators by toppling their colleagues who vote against the company’s interests.

This isn’t an idle fear: there are many ways for this to happen now. Allowing open financial support on a large scale just makes it much, much worse. And the Supreme Court’s conservative majority has just given the green light.

Yet the standard conservative argument for opening this up is also valid: by limiting contributions, we limit the ability for opposition candidates to raise funds with which to run campaigns. If we broaden the fundraising opportunities, we broaden the potential candidate pool. We make it possible for the average citizen to run for office.

Yet we don’t want the “average citizen” to wind up running with corporate interests on her back.

There is another answer. To even the chances for the average citizen, we can make sure she can come by the millions necessary to run for office. Or we can make sure that millions are not necessary.

Instead of campaign finance limits, we need campaign spending limits. The amount of money — and time — spent on political campaigns in this country is insane. Strict limits on both will save a lot of ridiculous waste, while putting elected office within reach of every citizen with the interest in serving.

And then the voters could decide, as our founders intended.

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Update, 6 p.m.: The New York Times has a good editorial on this decision. They, too, think the majority view is abusive and inappropriate.

Truth, justice, and the American way

Last week was a dark one for sensible, fair American justice:

Prisoners have no constitutional right to DNA testing that might prove their innocence, the Supreme Court ruled on Thursday in a 5-to-4 decision.

The court divided along familiar ideological lines, with the majority emphasizing that 46 states already have laws that allow at least some prisoners to gain access to DNA evidence.

The problems with this are clear:

1. The constitutional argument goes to due process, and it seems obvious to me. I can’t understand how five Supreme Court Justices don’t see it that way.[1] It just makes sense to examine evidence that we weren’t able to examine — technologically — at the time of the trial.
2. Many of the state laws are inadequate. For example, some only allow it for death-penalty cases, but will allow someone to die in prison rather than review the DNA. And in any case, prosecutors oppose the petitions, not wanting to risk having their convictions overturned.
3. No argument about how much trouble it might be will win me over, when we’re talking about years of someone’s life spent in prison for not knowing. No argument of “convicted in a fair trial” can counter the unfairness of a false conviction. If we don’t put the priority on a person’s life, what are we?

Such is the legacy of the Bushes, père et fils, and Ronald Reagan; this is where they’ve left us.
 

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[1] Actually, I can, when I consider who four of those five are. I’m disappointed that Justice Kennedy joined them.

Supreme Souter Steps aSide

Right about at the 100-day mark, President Obama already has his opportunity to make a Supreme Court appointment, with the impending retirement of Justice David Souter. It seemed likely that one of the justices would leave soon, though bets were on Justice John Paul Stevens, who’s been around much longer (since 1975, more than 33 years now), or Justice Ruth Bader Ginsburg, who’s recently been ill. Instead, we see the retirement of a healthy, not-so-old juror — Justice Souter will soon turn 70 and is younger than five of the other justices — who just wants to go home and relax.

Most of the news reports talk about how Souter was a “surprise” to the conservative side, for being less conservative than the president who appointed him (George Bush the First) and the Republicans who supported the appointment had hoped.

He may, indeed, have been a surprise to them, but as I look back on the the court and the decisions he was key to, I see him more as someone who put consistency and stability above ideology, and as someone who stood his ground as the court shifted around him. He did not, for example, vote to retain central aspects of the Roe vs Wade decision because he liked the decision, but because he thought it important to maintain the stability of the court’s decisions over time.

A look at the composition of the court is also in order. Note that Jimmy Carter got no appointments during his single term in office, and so seven of the sitting justices were appointed by Republican presidents — only Justice Ginsburg and Justice Stephen Breyer, who came during President Clinton’s administration, were appointed by a Democrat.

And yet we have Justice Souter and Justice Stevens (a Ford appointee) considered solidly on the “liberal” side of the court.

Yet that liberal side is not the side on which Justices Thurgood Marshall or William Brennan sat, for example. And yet note that Justice Brennan, considered very liberal, was appointed by President Eisenhower (a Republican)... and that Justice Byron White, a Kennedy appointee, dissented from ground-breaking liberal decisions, including both Miranda and Roe.

Justice White’s replacement by Justice Ginsburg has been the only shift back to the left for the current court. Apart from that, each change, from President Reagan’s replacement of Potter Stewart (of "I know it when I see it" fame) with Sandra Day O’Connor, to George Bush the Second’s replacement of Justice O’Connor with Samuel Alito, has moved the court more and more to a radically conservative position.

It’s no surprise that two justices appointed as “conservatives” to a more liberal court turn out to be “liberals” on an increasingly conservative court.

I hope that President Obama takes the opportunity to appoint a true liberal to the court. Not a radical liberal, and it seems clear that he wouldn’t want to anyway. But someone who will begin to move the court back to the center, where it belongs. That won’t happen with an attempt to please everyone with the appointment of a “centrist”.

Video evidence

The Supreme Court has been asked to hear a case about a man who was subjected to a Taser because he sat on the ground, cuffed and crying, and wouldn’t stand up and walk to the arresting officer’s car. The situation was recorded by the officer’s dashboard camera, and posted on YouTube.

The focus of the article is about how video evidence affects our perception of the events differently from, say, witness testimony. This is from a part of the article that refers to a different video, from another case:

Three law professors accepted that invitation and made it the basis of an interesting study published in January in The Harvard Law Review. They showed the video to 1,350 people, who mostly saw things as the justices did. Three-quarters of them thought the use of potentially deadly force by the police was justified by the risk Mr. Harris’s driving posed.

But African-Americans, liberals, Democrats, people who do not make much money and those who live in the Northeast were, the study found, “much more likely to see the police, rather than Harris, as the source of the danger posed by the flight and to find the deliberate ramming of Harris’s vehicle unnecessary to avert risk to the public.”

Video creates a danger, the study said, of “decision-making hubris” by judges.

The implication is that people will see what they want to see in video evidence — that what they see in it will support their existing bias.

I find to the contrary with respect to the video in the case under petition now.

The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Given how I feel about Taser use, well documented in these pages, you might think I’d howl “Appalling police brutality!” And I might do, if I were considering verbal testimony, where I was asked to believe what the officer had to say about the situation.

But the video shows things clearly. Far from being aggressive, unreasonable, and brutal, the officer is calm and respectful, and is trying to cope with a difficult situation. He is talking with Mr Buckley, trying firmly but calmly to get Mr Buckley’s cooperation. Consequently, I have respect for the officer and for how he’s trying to handle things. I think he believes he did the right thing, and I’m sure he’s supported by his department’s policy.

Yet I still think he’s wrong.

Mr Buckley is clearly no threat to the officer, and the only real problem here is that it’s wasting the officer’s time. Allowing someone who’s obviously genuinely upset the time to calm down and collect himself is a humane thing to do. Of course, no one wants to sit around with a crying man waiting for it to pass. But it will pass, and undoubtedly more quickly without the electric shocks, which can only serve to make things more tense and upsetting.

And then there’s the fact that calling for backup was all that was really necessary. When the second officer arrived, the two together easily moved Mr Buckley to the car, and that would have worked without the three Taser shocks — clear demonstration that the use of the Taser was unnecessary.

What the video did for me was show me that the officer was not being an insensitive power-freak. The video did not, in fact, support my bias, but demonstrated quite the opposite. It’s very clear to me that, at least in this case, having the video is crucial to understanding the situation and being able to judge it fairly.

And it’s also still very clear to me that the police must not be allowed to use Tasers in these sorts of situations.

Salt Lake City, in three acts

Utah is a beautiful place, but with pluses and minuses. As the seat of the Church of Jesus Christ of Latter Day Saints, it’s a very politically conservative place, and very insular in many ways. But the people can also be very friendly and caring. The skiing can’t be beat. And, well, it sure is beautiful country.

And, as it happens, the New York Times had three stories about Utah on Monday. Forthwith, Salt Lake City, in three acts.

Act I: Why you should keep your religious icons in your church

PLEASANT GROVE CITY, Utah — Across the street from City Hall here sits a small park with about a dozen donated buildings and objects — a wishing well, a millstone from the city’s first flour mill and an imposing red granite monument inscribed with the Ten Commandments.

Thirty miles to the north, in Salt Lake City, adherents of a religion called Summum gather in a wood and metal pyramid hard by Interstate 15 to meditate on their Seven Aphorisms, fortified by an alcoholic sacramental nectar they produce and surrounded by mummified animals.

In 2003, the president of the Summum church wrote to the mayor here with a proposal: the church wanted to erect a monument inscribed with the Seven Aphorisms in the city park, “similar in size and nature” to the one devoted to the Ten Commandments.

The city, not surprisingly, said no. The Summums, equally unsurprisingly, sued, and won in federal court on first-amendment grounds. Says a Summum counselor, “They’ve put a basically Judeo-Christian religious text in the park, which we think is great, because people should be exposed to it. But our principles should be exposed as well.”

And now it goes to the U.S. Supreme Court. I expect that this will go against the Summums, the conservative Court being as it is, and I have mixed feelings about that. I absolutely think that if you get to parade your basic principles around, then I get to trot mine out too.

Which brings us to the more important point that we should all keep our preaching where it belongs... and that’s not in the city parks. Neither monument belongs there. And this is the sort of conflict we invite when we ignore that.

Act II: I’m as mad as hell, and I’m not going to take this any more

SALT LAKE CITY — Leaders of Utah’s largest group supporting equal rights for gay people announced a proposal on Monday to increase the rights of same-sex couples in the state, saying they saw a silver lining in the passage last week of a same-sex marriage ban in California.

The measure in California stripped away the legality of thousands of same-sex marriages and incited protest rallies and marches against the Church of Jesus Christ of Latter-day Saints, one of the ban’s major supporters.

But leaders of the rights group here, Equality Utah, said statements made by Mormon leaders in defense of their actions in California — that the church was not antigay and had no problem with legal protections for gay men and lesbians already on the books in California — were going to be taken as an endorsement to expand legal rights that gay and lesbian couples have never remotely had in Utah, where the church is based.

Equality Utah’s chairwoman says, “We are taking the L.D.S. Church at its word.” The L.D.S. Church “declined to comment.”

One message here is, “Don’t piss people off.”

But the real message behind it is that everyone has the same rights, and attempts to hold them back and to stop people from exercising them will ultimately fail... maybe not today, maybe not next year, but ultimately.

Haven’t we spent enough time learning that throughout history?

Act III: People who need people...

SANDY, Utah — For months now, the emotions have welled up whenever Andy Williams has left the field after games. Some of it has come from his desire to lift Real Salt Lake to a new place, the Major League Soccer playoffs. Some from knowing that at 31, he is in the twilight of his career.

Mostly, though, it comes from thinking about his wife, Marcia.

She received a diagnosis this summer of a rare form of leukemia and has struggled to find a donor match for a bone-marrow transplant. Without one, she is likely to leave behind her husband to raise their daughter and hers from a previous relationship, alone.

But not entirely alone, no: the community is backing the Williamses up.

It’s not what they’d expected when they moved to Mormon country.

The community is giving their money and time. The community is looking for bone-marrow donors. The community is giving its full support to Andy and Marcia Williams, and it’s coming from the team, from the businesses, even from the high schools — two high school girls’ teams played a charity match to raise money.

This is the best that people can be.

Nothing rests; everything moves; everything vibrates.

— The Third Aphorism of Summum

Freedom from arbitrary imprisonment

Yesterday, the U.S. Supreme Court once again — it’s three times now — handed down a decision saying that the political prisoners being held in the Guantánamo Bay prison must be allowed to challenge their detentions. The 5-to-4 vote makes it seem like a closer decision than it is: the dissenters are King George’s hand-picked sycophants (Justices Roberts and Alito) and the court’s two ultra-reactionary wingnuts (Justices Scalia and Thomas). There was no doubt there. But the five with any sense of reason told us that they won’t tolerate the indefinite detention of anyone on the president’s say-so alone, with no judicial oversight.

Not surprisingly, the Lame Chimp himself doesn’t like it. Somewhat surprisingly, though, he claims he’ll go along with it, saying, during his visit to Rome, “We’ll abide by the court’s decision. That doesn’t mean I have to agree with it. [...] It was a deeply divided court, and I strongly agree with those who dissented.”

Perhaps, though, that doesn’t really mean anything. NPR’s report this morning said that Attorney General Mukasey says it will change little. So maybe the Bush regime won’t be abiding by it as much as he says.

Opinions are in from the two major presidential candidates, and it’s also not surprising that they disagree, and that Senator McCain is on Bush’s side. His reasoning is a perfect example of the problem with the situation:

Mr. McCain said here Thursday morning that he had not had time to read the decision but that “it obviously concerns me,” adding, “These are unlawful combatants; they’re not American citizens.”

No. They are not unlawful combatants. They are accused of being unlawful combatants, and that’s not the same thing at all. Their citizenship isn’t relevant; it’s a basic human right, as we reckon things in the United States, that no one can just be thrown into a dungeon at the emperor’s word. And the military tribunals don’t fix that, being too close to the situation and too much under the emperor’s thumb.

As Justice Kennedy puts it in his majority opinion:

Security subsists in fidelity to freedom’s first principles. Chief among these is freedom from arbitrary imprisonment.

No one thinks we should let all these people go. It’s just that if you claim they’re Bad Guys, we’re saying that you have to convince someone else — an impartial judge — of that claim. Simple. Basic. One of freedom’s first principles.

Antonin Scalia is very scary

I’ve written several times before about Supreme Court Justice Antonin Scalia, most recently about his thinking that torture is OK. That one was pretty scary. Well, in NPR’s report about yesterday’s death-penalty cases, he frightens us again, perhaps outdoing himself this time. Here’s how Nina Totenberg relates it, about 6:50 into the audio:

Justice Breyer: If we open the door to the death penalty for non-homicide crimes, states will start allowing it for all kinds of crimes — things that are very serious, but do not involve death.

Justice Scalia, triumphantly: Just the way it used to be!

Justice Breyer, caustically: Perhaps 200 years ago, that was true.

Triumphantly, indeed. It seems clear that had he been around in 17th-century Salem, the hangings wouldn’t have stopped at nineteen.

Whatever one thinks of this particular case — whether the brutal rape of a young girl should be a capital crime — Justice Scalia’s interest in returning to “the way it used to be” should frighten one to the core.

The man has the rest of his life to terrorize us from the Supreme Court bench... and he’s a healthy 72 years old.

The executions will continue....

Seven of the U.S. Supreme Court Justices today decided that the lethal-injection protocol used in U.S. executions is not “cruel and unusual punishment”. This was not a decision about the constitutionality of the death penalty, but only a judgment of this particular case; indeed, Justice John Paul Stevens, who sided with the majority in this case, also said that he now thinks that the death penalty itself is unconstitutional, notwithstanding this case.

It seems odd, but it’s a quirk of how cases are judged, that a statement that basically means, “Execution’s unconstitutional, but not for the reason you’re claiming,” would be one that agrees to allow executions to resume.

You know what else I find curious, though? There’s this note, from the AP story:

Wednesday’s decision was announced with Pope Benedict XVI, a prominent death penalty critic, in Washington and the court’s five Catholic justices — Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas — headed to the White House for a dinner in his honor. All five supported the lethal injection procedures.

I think the irony here needs no further comment.

The Supreme Court on the exclusionary rule

The US Supreme Court has agreed to hear a case that focuses on the exclusion of evidence that was obtained improperly. In this case, in particular, there’s a real question about the application of the exclusionary rule: it’s there to provide a deterrent to police abuse, and here they thought they were acting properly, so there isn’t a question of deterrence:

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

The argument for exclusion (of the meth and the gun) is that there wasn’t really cause to stop Mr Herring and to perform the search, and if they hadn’t been misinformed about the warrant, they wouldn’t have done so, and wouldn’t have found the items. The argument for giving the police an exception here is that they “acted in good faith” — they thought they had cause, and the Coffee County officers should not be penalized for the error in Dale County.

Given the current makeup of the Supreme Court, it would surprise me if they don’t uphold the exception that was granted by the lower courts. Beyond that, I expect them to use their opinions in this case to expand the scope of exceptions, and thus to tighten up the usage of the exclusionary rule.

And that gives me mixed feelings, because I’ve always had something of a love/hate relationship with the exclusionary rule. A part of me has always thought that valid evidence is valid evidence, and it shouldn’t be excluded even if it was found improperly. I’ve always wondered if there weren’t other deterrents we could come up with to the abuse of the system by the authorities.

But while I’ve thought that, I’ve looked at situations like the Rodney King incident, which showed that trying to hold the police legally liable for their overstepping boundaries is doomed to fail. And if the authorities can’t be held accountable, the only remedy we have is to throw out the evidence, and perhaps the whole case.

Back on the other side again, though, I have to question how much it really deters the abuse. How much abuse do they get away with anyway? And how many guilty criminals get convicted as a result? Do the police sometimes think it’s worth the risk, if they have no other way to catch the bad guy? The end doesn’t justify the means, but, again, isn’t there a way to hold back abuse that at the same time is more effective at it — less open to sneaking by — and doesn’t let guilty criminals go?

And for one more “on the other hand”, excluding evidence can result in a chain of exclusions that sometimes completely foils several cases, even when other evidence exists. Suppose the police kick your door in and find illegal drugs. Having found that, they ask around and find out who your friends are, and start following your friends. They catch a couple of your friends selling drugs to twelve-year-olds. They bang all of you up, but....

Your lawyer gets the evidence against you — the drugs they found at your house — excluded. You friends’ lawyers then argue that if the police hadn’t found those drugs, they never would have investigated your friends, and they never would have caught your friends selling drugs to the kids. That evidence, which depends on excluded evidence, is also excluded. And this can cascade and eliminate all or most of the evidence in a series of prosecutions, tossing them all out of court.

So it’s a difficult system to deal with, and I don’t know what the right answer is. I do know that I don’t want the police to be given free rein to violate people’s rights. But I’m not sure that the exclusionary rule, as implemented, is the right solution.

In any case, we’ll soon see what The Nine have to say about it.

Justice Scalia: the Supreme Court’s wingnut

Oh, my... how did I miss this?:

Justice Antonin Scalia said Tuesday that some physical interrogation techniques could be used on a suspect in the event of an imminent threat, like a hidden bomb about to blow up.

In such cases, “smacking someone in the face” could be justified, Justice Scalia told the British Broadcasting Corporation. He added, “You can’t come in smugly and with great self-satisfaction and say, ‘Oh, it’s torture, and therefore it’s no good.’ ”

[...]

Justice Scalia, speaking in an interview with “Law in Action,” a program on BBC Radio 4, said it would be “extraordinary” to assume that the Constitution’s ban on cruel and unusual punishment applied to “so-called” torture in the face of imminent threat. He said that the Constitution “is referring to punishment for crime.”

“And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime,” he said.

But “is it really so easy,” he said, “to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?”

Oh, there is just so much wrong with Justice Scalia’s statements.

Let’s start by reminding him that we’re not talking about love taps here, not just a “smack in the face”. It’s much more serious unpleasantness, repeated beatings that have in some cases left people with permanent limps. And let’s go on to say that the torture allegations aren’t limited to beatings. We have the sleep deprivation, the “stress positions”, the isolation, the freezing-cold cells. We have the waterboarding.

Next, let’s remind him that the people we’re doing this to are in many cases guilty of nothing, and cognizant of no useful information. We’re “smacking them around” not to find the location of the fictional “hidden bomb”, but to fish for what we can catch. It’s not clear that the fishing’s been very good, and it’s well documented that information obtained from abused prisoners isn’t reliable.

We’ll point out that the “ticking bomb scenario” that Justice Scalia refers to is just completely bogus. That we can try to give credibility to it in order to justify abusing people is a testament to where our collective conscience has gone — and to where Justice Scalia’s, in particular, is.

Then we’ll note how unconscionable it is to claim that our Constitution only assures those convicted that they’ll be treated humanely, but leaves those merely accused open to indefinite incarceration and whatever cruelty we choose to inflict on them. That’s bullshit, Justice Scalia, and you should be ashamed of yourself for even trying that one on.

But what’s perhaps the most troubling about these statements is that a Supreme Court Justice has gone on record — on vehement record — with prejudgments about situations that he’s quite likely to have to adjudicate with the court. How could he possibly be fair in his judgment on the bench? How could any case of an accused “enemy combatant” trying to free himself for indefinite prison, beatings, and other abuse — call it “torture” or not — possibly get a fair hearing from Justice Scalia?

This isn’t the first time, either, that he’s done this (see here and here, for example), and he’s shown that he will not recuse himself in cases that he’s prejudged.

A man like that has no place on the Supreme Court.

The Supremes: lethal-injection protocol

The US Supreme Court heard arguments, yesterday, on a death penalty issue: whether the lethal-injection protocol that’s the official method of execution in almost all states that have the death penalty... is humane, or whether errors in its use can make it so painful as to be unconstitutional.

The case does not bring up the general issue of capital punishment, of which more here later, but only addresses the protocol used. And those challenging the three-drug protocol are offering, to show that they’re not just anti-death-penalty activists, a one-drug alternative: a fatally high dose of a barbiturate. So let’s look, for a moment, about why there’s any question here — after all, if switching to a mega-dose of a sleep drug would satisfy everyone, why does the Supreme Court have to get involved?

The three-drug system has these effects:

1. Put the victim to sleep, anesthetizing him.
2. Paralyze him, which also stops his breathing.
3. Stop his heart.

It seems straightforward. The trouble is that if the first effect isn’t sufficient, the rest is pretty awful and painful. So why do it this way?

The paralysis serves to avoid any convulsions, twitches, or other unpleasant motions that might make spectators think that something bad is happening. Even if the prisoner is dying peacefully, such movements will disconcert those who have to — or choose to — watch.

The third step causes “official” death quickly. One of the criticisms of the single-drug alternative is that it can take up to half an hour for the prisoner to die that way.

The thing is, in that case the prisoner is asleep, and dies painlessly in his sleep. What bothers us with all this, what brings us to add the second and third drugs, is that we want to think that it’s all quick and easy and neat. No jerky motions that would be unsettling. No time spent watching a sleeping man die, and contemplating what we’re doing.

We want the modern equivalent of the ideal beheading, where we imagine that it’s so quick that the beheaded doesn’t know what hit him.

The reality is that he does know, and we know, and we can’t really dress it up and make it as neat as we’d like. As long as we persist in this, we should switch to the barbiturate-only protocol. And if it unsettles us to think that the prisoner isn’t just dying in a wink, we should think about why we’re naturally bothered by that.

Our societal morality tells us not to kill people, and, for most of us, the idea of doing that is repugnant. Yet we make exceptions. Some are willing to kill “enemies”, saying that, well, war is an unpleasant necessity. Some will abort a developing fetus, while others consider that to be killing a human. We draw our lines in different places.

But I think we all agree that killing someone for a crime he didn’t commit... is horridly wrong.

Yet we mistake accusation for conviction, and conviction for certainty. We become sufficiently convinced that an accused murderer is guilty that we call for his death even before the trial. When a jury hands down a “guilty” verdict, we forget about the times we saw jury verdicts with which we disagreed, and we cry for blood. When George Bush governed Texas, executing more than 130 convicts during his five-year reign, he avowed that every one of those men was guilty of his crime and deserved to die, and he worked to reduce the appeals and speed the executions.

And yet, look at what’s happened since Bush left Texas. DNA tests have exonerated 15 convicts, with half again that many pending analysis, just in one county alone. Given those sorts of results, how can anyone have the arrogance to claim that our system “works”? How can anyone claim that we’re certain, and that we don’t execute innocent people? It’s clear that that can’t be true.

Yet we persist. The Supreme Court has agreed to consider a case that seeks to execute a man for raping a child (murder has been the only cause for executions in the last 40 years). Again, we call for blood; if the crime is sufficiently heinous, we forget the problems and just seek vengeance.

I actually think we should treat rape — of anyone — as severely as we treat murder, and that the penalties should be comparable. But when we, acting with authority, kill a criminal, we put ourselves in the criminal’s place. We brutalize ourselves in the process. And we can’t be sure we got it right. How many executions of innocent people are acceptable, in order to mete out justice to those who are truly guilty?

None.

We should certainly look at our lethal-injection protocol. But we should go further, and do what every other modern nation has done: eliminate capital punishment completely.

Presumption of innocence

Having recently acquired a little portable MP3 player for a project at work, I've downloaded to it a batch of podcasts that I've been collecting for some time, various bits from some talk shows on my local NPR affiliate and some This American Life shows, and have been listening to them here and there. Some of them are recent; some are from as far back as 2005.

One that I've just listened to is about the Supreme Court, and includes a statement from Justice Antonin Scalia in which he says that the “enemy combatants” at the Guantánamo detention facility were “shooting at my son”, and so he'll be damned if he's going to give them the right to a fair trial that US citizens are entitled to. The statement came up in a discussion of whether Justice Scalia should have then recused himself from any decision about trials for the political prisoners at Guantánamo, which led to a more general discussion of when the justices should recuse themselves.

But I want to look at the statement itself, what it says on the surface — and this is something I've thought about often during this extended public debate. Comments similar to Justice Scalia's have come up from many quarters. I recall hearing a “woman on the street” say, on the radio one time, “I don't think the freedoms that I enjoy should be applied to a terrorist.”

The general question is whether non-citizens, and particularly those who've been picked up as “enemy combatants”, particularly those accused of terrorism, should be given the rights that our constitution provides for citizens. Do accused terrorists get protection from unreasonable searches and seizures? Do they get the right to hear the charges against them? Do they get a speedy and public trial, by an impartial jury”? Do they have the right to be confronted with the witnesses against them; can they subpoena witnesses in their favour and have the assistance of counsel for their defense? Are they protected from cruel and unusual punishments?[1]

Well, we might say, the woman on the radio is right, Justice Scalia is right: we have no business giving these nasty people the same rights we give to good folk. No, indeed, the freedoms we enjoy should not be applied to a terrorist.

The question, though, is whether they should be applied to a suspected terrorist. Because, you see, the people we're accusing of things are, quite so, merely accused of them for now. And we know how often people are wrongly accused of things. That's why we have the concept of presumption of innocence — that one is, as we often say, innocent until proven guilty. And the presumption of innocence must apply to everyone, or it's meaningless. Whatever our answer is to the list of other questions above, if suspected terrorists are not presumed innocent, then someone can point at you and shout, “Terrorist!”... and you're lost.

If we accuse them of being our enemies, and then refuse to give them due process because they're our enemies, we're using circular reasoning. Presumption of innocence isn't just a right for US citizens; it is, according to our values, a basic human right. There are some crimes for which we find it too easy to assume guilt, crimes that we find especially awful. Terrorism. Child molestation. Particularly brutal murders. It's important to remember that it's exactly those cases where we have to be the most careful. The greater the consequences of convicting the wrong person, the more careful we have to be to get it right.

Once we see that we must prove the terrorist's guilt, rather than presume it, it's clear that we have to give them fair trials. If, after bringing out the evidence and allowing them to defend themselves in the light of day, we decide that they're guilty, then by all means, we should throw the book at them.

But if we don't give them fair, open trials, according to the laws that this country is rooted in, we're no better than the despot we declared independence from more than 230 years ago.
 

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Update, 13:30: Here's an item from today's NY Times about the hearings for the Guantánamo prisoners.
 

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[1] As an exercise for the reader, which Bill of Rights amendment applies to each of those questions? No need to answer here, but... do you know?

Supreme arrogance

It wasn't long ago that we heard John Roberts and Samuel Alito tell us that they wouldn't say how they'd decide, should their appointments be confirmed, on issues that might come up before the Supreme Court, because to give the cases fair hearings they would have to hear the arguments and decide each case based on its arguments. I agreed with them on that point, despite the general liberal opinion that they should be made to come out in the open with their right-wing ideas. I agreed with them because I believe that judges do have to try to hear the arguments of a case fairly. Clearly, anyone's general personal opinions colour her opinions in any specific case, but good people can be open-minded and it's what we hope for in our judges, and, most importantly, in our Supreme Court Justices.

How upsetting it is, then, to see that Justice Scalia has already decided key points in a case that will come before the court this week, about whether the detainees at Guantánamo Bay have the right to due process. The newsweek article refers us to "an unpublicized March 8 talk" in Switzerland, in which Justice Scalia says that "it's crazy" to give them a full jury trial. "Give me a break."

No, Justice Scalia, give us a break. Give our constitution and our laws and our way of life and how we treat people... give all that a break, and do it by sitting this one out. By coming out as so clearly biased on the subject, you have no business judging this case, so recuse yourself. Take what your fellow Justices, and your new Chief Justice, have said to heart: do not pre-judge cases, and if you can't help it, then step aside and let those who can hear it fairly do so without you.

Yes, Justice Scalia, give us a break.

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Update: The New York Times agrees; as they say in a 2 April editorial:

Justice Scalia was an active questioner at last week's hearing. Still, it is not too late for him to reconsider his decision to take part in the case. His colleagues should help persuade him that it is the right thing to do. While they are at it, they might try to convince Justice Scalia of his duty to take greater care before articulating ? or gesticulating ? his sentiments in public.

Justice O'Connor on judicial independence

On NPR's Morning Edition Nina Totenberg reported on a speech by retired Supreme Court Justice Sandra Day O'Connor last Thursday, in which she blasted Republican leaders for trying to manipulate the courts by attacking and criticizing them:

In an unusually forceful and forthright speech, O'Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedoms.

According to the report, O'Connor said, "The nation's founders wrote repeatedly that without an independent judiciary to protect individual rights from the other branches of government, those rights and privileges would amount to nothing. But, as the founding fathers knew, statutes and constitutions don't protect judicial independence; people do."

O'Connor particularly called out, without naming them, criticisms by two legislators from Texas, Representative Tom DeLay and Senator John Cornyn. In general, she warned against using such tactics as impeachment and budget cuts as means of retaliation for decisions that political leaders disagree with. "I am against judicial reforms driven by nakedly partisan reasoning."

On a topic that's especially resonant to me, she said, "We must be ever vigilant against those who would strong-arm the judiciary into adopting their preferred policies," citing that behaviour as enabling dictatorships to flourish. "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings."

We must, indeed, be vigilant, and we must stop such degeneration at its beginnings. We are, I believe well past the beginning, and, as I suggest here (and as others have suggested), it is well past time to do something about it. Thank you, Justice O'Connor, for reminding us of the importance of setting and enorcing limits on the executive and legistrative branches of government. And Justice Alito, you have big shoes to fill.

The Supremes and our water supply

The US Supreme Court is currently dealing with the Clean Water Act, in two cases, both rooted in Michigan. They heard arguments last week in one of those cases, wherein a developer refused to apply for a permit to build in a wetlands area. His claim is that the federal government should not be allowed to regulate this, and that he has a right to build there unimpeded. Actually, it's one of those funny sorts of arguments, where he claims that congress never meant to restrict what he's doing, when they passed the Clean Water Act, but if they did, they violated states' rights in doing so.

An interesting aspect of this is that while the developer is claiming "states' rights" on this, the states themselves are not, but are supporting the federal government's view here. The groundwater is shared, and pollution or other damage that starts in Michigan doesn't stay only in Michigan.

To the claim that congress only regulated the larger bodies of water, and not the feeders and wetlands that ultimately flow into them, Justice Souter had this to say:

Following this logic, Justice Souter said, "All you've got to do is dump the pollutant far enough up the water system to get away scot-free."

The conservative justices pushed the other way, though, as with this comment from Justice Scalia:

"I suggest it's very absurd to call that 'waters of the United States.' It's a drainage ditch."

Readers here will not be surprised that I stand on the side of Justice Souter on this. These cases will show us where the Roberts court will take our environment, and the wrong decisions here might show that Bush has done more harm in that regard by his Supreme Court appointments than he did by such things as pulling us out of the Kyoto Accord or pushing the misleadingly named Clear Skies Initiative.