More Texas justice

The Texas death chamber was temporarily silenced again this week when a federal court issued a stay of execution for Jeff Wood, convicted of murder under the state’s infamous law of parties and sentenced to death for his part in the murder of Kriss Keeran, a convenience store clerk, during a botched robbery attempt. The robbery was planned by employees of the store, and only the shooter could have anticipated a killing. Like Kenneth Foster who last year was hours from execution for a killing he did not commit, Wood’s part in this crime consisted of waiting a vehicle, this time while the inside job went horribly wrong. Wood’s capital crime under the law of parties appears to be not anticipating that his friend would shoot the clerk.

Wood’s trip through the Texas justice system , spelled out in detail in his clemency petition, included a determination of incompetence by a jury after reviewing school records, a 22-day stay at a psychiatric hospital where he was “returned” to competency, even though mental health professionals there had reservations about his ability to communicate effectively with his lawyers, and finally, a determination of future dangerousness made by Dr. James Grigson, one of Texas’ favorite forensic experts, despite the fact that his predictions are anything but a sure thing. As noted in an article in that bastion of liberalism, the Washington Times:

Andrea Keilen, an attorney with the Texas Defenders Service, said she knew of dozens of former death row inmates whose sentences were reduced for various reasons and who have never been involved in any difficulties though Dr. Grigson testified they should be executed because they would likely commit murder again.

In 1988, a report compiled by an assistant district attorney in Dallas concluded that after the study of 11 specific death penalty verdicts — where the defendants’ terms had been reduced — not a single one had been other than a model prisoner.

Grigson’s most well-known error was his determination that Randall Dale Adams was an extreme danger to society. Mr. Adams, convicted of killing a police officer and sentenced to death on the strength of Dr. Grigson’s determination, was later exonerated, freed, and has not been re-arrested.

Despite all of the above, many still consider this type of treatment to be a fair trial, and comments on the AP story in the Austin American Statesman include such suggestions as lining up the criminals since injections are cheap. This may be the result of a succession of state officials who have insisted on the fairness of the Texas criminal justice system despite all evidence to the contrary. Perhaps the Texas legislature will correct a statute that allows retribution to extend way beyond an eye for an eye.

Justice, American style

A recent spate of news reports has clearly illustrated the state of justice in the United States. It is dismal.

An Illinois man was released from prison after serving twenty six years for a murder he did not commit. The actual killer had confided in his lawyers, but they could not say anything about this until their client’s recent death. At least in Illinois the former governor had some notion that justice was ailing, and he called a moratorium on executions because so many death row inmates were being cleared. This has occurred on more than one occasion in other states as well.

In Texas, home of the hyperactive death chamber, a man convicted of rape and murder in Dallas County was freed after twenty seven years in prison. The district attorney’s office, intent on a quick and easy conviction, ignored a solid alibi and eyewitness testimony which implicated others, and neglected to offer exculpatory evidence to the defense. The current Dallas County DA has decided to remedy any past injustices by re-checking all the DNA evidence. Out of 40 cases revisited so far seventeen inmates have been cleared. Despite this and other evidence to the contrary, the state of Texas continues to insist that those brought to trial receive a fair hearing. Hence Texas has wasted no time and scheduled three executions since the Supreme Court decided the Baze v. Rees lethal injection case.

The fact that these individuals served almost thirty years in prison is no coincidence. The “Reagan Revolution” ushered in a tough on crime attitude among local law enforcers which appears to have led to many miscarriages of justice.

Then there are the immigrants held in our country’s detention facilities who face neglectful and abusive treatment while awaiting disposition of their cases. Too many are dying as the authorities confiscate their medications are confiscated and all but ignore their health issues. Haitian American author Edwidge Danticat chronicles this in her book Brother I’m Dying, and in testimony at a House hearing on immigration. She described the treatment her uncle faced at the Krome Detention Center in Miami while awaiting asylum hearings, abuse which led to his death. Now a front page story in the New York Times tells of another abused immigrant who died under very similar circumstances, accused of faking an illness, thrown into solitary confinement and left to die. There was a time when American teenagers were warned not to engage in certain drug-related activities overseas, or they would be thrown into some rat-hole prison and left to rot. But as these news accounts indicate, we have become practitioners of what we abhor in others.

Pain and justice

Two items in the news last week serve as reminders of how invested this country has become in the use and abuse of pain, so much so that our leaders are willing to use the Constitution to justify and legitimize abhorrent behavior.

The Justice Department’s Office of Professional Responsibility is finally able to investigate whether government lawyers improperly advised the president that he was not bound by laws and treaties on the treatment of prisoners of war. At issue is John Yoo’s now invalidated March 2003 memo to the Defense Department General Counsel about military interrogation of Taliban and al-Qaeda prisoners overseas. It concludes that the 5th and 8th Amendments do not apply and neither do the Geneva Conventions or war crime statutes. The memo also notes that harsh techniques could be used as long as interrogators did not intend to torture their prisoners. The memo also stresses the President’s Article 2 powers as a shield against prosecution. Other memos and opinions have cataloged acceptable interrogation techniques, and one such document infamously describes torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Short of this threshold, interrogators have plenty of leeway.

Also last week the Supreme Court ruled that lethal injection as it is practiced in at least 30 states does not violate the Constitution’s 8th Amendment ban on cruel and unusual punishment. In order to arrive at the voluminous 97-page decision, which includes seven opinions, the justices focused on such issues as whether there is an “objectively intolerable risk” of pain, whether the pain, if it occurs, was deliberately inflicted, and whether cruel and unusual punishment includes the pain and terror of suffocation caused by an improper administration of anesthesia, or is limited to the live disembowelments, quarterings, beheadings and burning alive with which the founders were familiar. Justice Thomas’ opinion is particularly instructive on prior methods of execution.

Most justices concurred that the plaintiffs had not proved that the three-drug regimen administered in 30 states met the definition of cruel and unusual. After all, how can there be an “objectively intolerable risk of harm” when thirty states use the procedure. They also noted that plaintiffs had not proved that the single drug administration of barbiturates used now in veterinary practice would be more humane. The ruling notes that veterinary practice is not “an appropriate guide for humane practices for humans.” Some vets might dispute that contention, as they find the preferred method of executing humans too cruel to use on the animals in their charge. Justice Stevens renounces the death penalty as an acceptable method of punishment in his opinion, an apparent sacrilege for which he was roundly criticized by Justice Scalia, who sees the sole Constitutional mention of capital crimes – “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” as ample illustration of the acceptability of the death penalty. Yet Stevens too does not find that the plaintiffs have proved their case as to the cruel and unusual nature of execution by lethal injection.

Only Justices Ginsburg and Souter noted that the execution process lacked the safeguards necessary to minimize the risk of torturous pain, especially adequate checks to ensure that the condemned is actually unconscious prior to administration of the paralytic and the heart stopper. The Ginsburg opinion notes that a visual inspection by the prison warden for the appearance of unconsciousness is not enough, and that other states have instituted more elaborate checks out of concerns about the level of unconsciousness. As to the arbitrary nature of the imposition of the death penalty and the possibility of mistakes, this was mentioned by some of the justices, but either dismissed as improbable by the plurality or not considered germane to the proceedings.

As states now resume their schedules of executions a little perspective is in order. Whether the topic is use of torture in prisoner interrogations or the infliction of pain during state-sanctioned executions, our government has investigated pain and found ways to excuse it. I realize there is voluminous legal scholarship on the meaning and interpretation of constitutional clauses. Nonetheless, the term “capital” is mentioned once in the Constitution (5th amendment, in a statement that begins with a negative). The President’s “commander in chief” status is spelled out in the following sentence fragment in Article 2 Section 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. Just for the sake of comparison, impeachment is stressed on at least three occasions as the proper method of removal from office – perhaps indicating an important yet all too often ignored tool of government functioning.