[Deathpenalty]death penalty news----USA, MISS., CONN., OHIO

[Rick Halperin]

Nov. 30



USA:

US capital punishment: 29 years, 1,000 deaths


Convicted double-murderer Gary Gilmore refused all appeals and insisted on
being executed in 1977, becoming the 1st prisoner put to death in the
United States since the Supreme Court had reinstated capital punishment 6
months earlier.

A career criminal who shot 2 clerks to death during a robbery spree in
Utah, Gilmore chose a firing squad over hanging and became a central
figure in one of the great debates about the US criminal justice system.

The case drew international attention and the first of many 11th- hour
protests by advocates on both sides of the issue. This week, the 1,000th
inmate since 1977 is expected to die.

Surging crime rates in the 1970s and 80s created massive popular support
for capital punishment in the US Today, 33 of the 50 states have laws
making the death sentence available.

The Supreme Court ruled in 1972 in a Georgia case that the death penalty
as applied at the time violated the US constitution's ban on cruel and
unusual punishment. Because of mounting legal challenges, it had already
been six years since the last execution.

The preferred execution method

In 1976, the court reinstated the capital punishment option with revised
state laws, which govern nearly all murder cases. Lethal injection has
become the preferred execution method in most states.

That is how Ohio inmate John Hicks died Tuesday for the 1985 murder of his
5-year-old stepdaughter, becoming the 999th prisoner executed since 1977.
In an admitted cocaine-fuelled rampage, he suffocated the girl to silence
her as a possible witness in Hicks robbery and murder of his
mother-in-law.

Robin Lovitt, convicted of killing a billiard-hall employee with a pair of
scissors during a 1998 robbery, escaped an execution set for Wednesday
when Virginia Governor Mark Warner commuted his sentence to life in
prison.

Warner's reasoning on Tuesday pointed to one of the critical disputes over
the death penalty: fairness in the chain of evidence.

Warner, who heads the state with the second-highest number of executions,
granted clemency because a judicial employee mistakenly threw away
possible DNA evidence - including the scissors - before Lovitt had
exhausted legal appeals.

Genetic evidence at Lovitt's trial proved the victims blood was on
scissors found at the scene, but tests were inconclusive on whether a
second persons DNA on the weapon was from Lovitt.

Lovitt's lawyers and even some prominent death penalty supporters argued
that the inability to retest the evidence demanded commutation to a life
sentence.

Debating racial and economic fairness

With several possible US executions scheduled Friday, the 1,000 mark was
still likely to be reached this week.

Yet recent surveys show that US public support for the death penalty has
declined.

In October, a poll showed that 64 per cent of Americans favour it, the
lowest support since the executions resumed and down significantly from 80
per cent in 1994.

Race, inequalities in the judicial system and the growing number of
inmates proven innocent by DNA testing have increasingly become part of
the debate.

In 2002, the US Supreme Court ruled that the mentally retarded could not
be executed. This year, a court ruling made it illegal to execute
offenders who were minors when they committed their offences.

USA Today reported that at least 34 executed inmates since 1977 showed
evidence of mental retardation. 11 of the 1,000 were women, 22 were
juveniles at the time of their crimes, and at least 20 were foreign
nationals.

Studies also show that a disproportionately large percentage of death row
inmates are poor, African-American men.

Rick Halperin, president of the Texas Coalition to Abolish the Death
Penalty and chairman of Amnesty International USA, cited racial and
economic fairness as one of many grounds to scrap executions.

"One of the main reasons, of course, is the fact that it is not a
foolproof system and that innocent people can be executed," he said.

Since 1971, 122 prisoners have been freed from death row.

"Many people are troubled by so many people being sentenced to death and
then later being proven innocent," Halperin said. "Another reason why
people are moving is that they are realizing that life without parole is a
viable option."

Halperin said he believes there are at least 3 cases of overwhelming
evidence that innocent people were executed. DNA evidence is now being
tested that could prove the innocence of one Virginia inmate who was put
to death, he said.

Last year, 59 people were executed in the United States, led by Texas' 23.

The Washington-based Death Penalty Information Centre reported that the
annual number of executions has declined by 40 % since the late 1990s,
along with an even sharper drop in the rate of courts sentencing convicts
to death.

Halperin said he believes a reversal of the nation's 1976 decision is
inevitable.

"It is no longer a case of if, but a case of when," he said.

(source: Khaleej Times)

**********************

Contempt of court


Lynch mobs, the death penalty, and torture in the US military: a history
The US military tortures. Will that help us find the truth? Even more
surprising than the torture itself is the pride that the torturers seem to
take in it. In the photos they upload, they smile for the camera as though
they were on family vacation.

In an e-mail to the author, US historian Michael Pfeifer defines "rough
justice" as part of American culture, as "harsh and ritualistic punishment
that satisfies collective prerogatives regardless of legal niceties - from
the death penalty to the degrading and ritualistic punishment administered
by some American military personnel at Abu Ghraib and elsewhere"

The Nazis kept meticulous records on actions that any sensible person
would have tried to hide. Of course, no sensible person would have done
such things to begin with. Now, US soldiers are publishing their crimes on
the Internet, and the Bush administration (especially Dick Cheney) is
openly supporting torture. But Americans are not keeping meticulous
records about their war crimes like the Nazis did; as US General Tommy
Franks put it in a different context, "We don't do body counts." Unlike
Nazi bookkeeping, the records of the crimes that US soldiers commit are
private - voluntary, bottom-up leisure pastimes. These photos are not
intended to document what happened where; rather, they are part of the
pleasure that the soldiers take in torturing.

So while the Nazis were cold-blooded, US soldiers seem to get a kick out
of war crimes. What does this "cultural" difference tell us?

Lynch mobs in the Wild West and in the South

If we go back some 150 years, we see some continuity in how Americans take
the law into their own hands, including the pleasure they take in
humiliating their victims. When most people hear the word "lynch," they
probably think of a black man hanging from a tree somewhere in the South,
but in reality lynching was common practice in the Wild West even before
it became a popular sport in the Reconstructed South.

In California and Texas, the legal system was fairly weak in the mid-19th
century, and lynch mobs sometimes could not wait for the law to provide
justice. Often, the victims were horse thieves, and most of them were not
black. Lynch mobs not only formed to apprehend a criminal because the
sheriff didn't have time to get there; they also sometimes took a suspect
that the sheriff had already arrested, for instance by demanding that the
lone sheriff release the victim from the local jail so that the mob could
take care of him.

Lynch mobs not only took the law into their own hands, but they also had a
macabre fascination with the humiliation of the victim even after he had
died. While the dead body was still hanging from the tree, people would
tear off a piece of bark or a leaf. The infamous case of Dr. John Eugene
Osborne http://en.wikipedia.org/wiki/John_Eugene_Osborne is typical of
some of the most outlandish practices: in 1881, he took the dead body of a
lynched man and soaked in the salt solution so he could remove the man's
skin to make shoes and a cap out of it. 11 years later, when Osborne was
elected governor of the new State of Wyoming, he is said (1) to have had
these shoes on.

When the South lost the Civil War, white Southerners then took up lynching
to keep "uppity" blacks in their place. Around 80% of the people lynched
in the South were black, but they were not generally charged with theft,
but rather with murder or rape. Often, it sufficed for a rape charge if a
white person found that a black man had violated the honor of a white
woman. Lynching had now taken on a racist and sexual component.

As late as August of 1955, an adolescent like Emmett Till could still be
lynched grotesquely in Mississippi for violating the honor of a white
woman. On a trip from Chicago to visit family, the apparently impertinent
Till made a pass at the 21-year-old white wife of the owner of a store he
was in, asking her for a date and then trying to put his arm around her
before finally saying "bye baby" when he left - or he may have whistled at
her; it is no longer clear. At any rate, a few days later his body -
unrecognizably mutilated - was found in a river.

Many Americans looked on in shock and hoped that Mississippi would let
justice prevail in the courtroom. But when Till's family charged two white
men with murder - unprecedented back then in Mississippi - the white jury
found the men not guilty because, as they put it, the prosecutor had not
sufficiently proved the identity of the victim. In all likelihood, the
defense attorney's concluding remarks (3) to the jury did not hurt either:

Your fathers will turn over in their graves if [Milam and Bryant are found
guilty] and I'm sure that every last Anglo-Saxon one of you has the
courage to free these men in the face of that [outside] pressure.

Winning the case did not, however, stop Milam and Bryant from allegedly
admitting (4) they had committed the murder a few months later.

The case of Emmett Till still makes headlines today although the 2 men
accused of the crime are now dead, as is Till's mother. For instance, a
few years ago a documentary (5) was made about Emmett's death, and on
November 23, 2005 the FBI completed the renewed investigation of the case
(6) that US Attorney General Ashcroft had refused to revisit (one of his
assistants decided to take on the case). The FBI's report on the latest
investigation is expected by the end of 2005.

Police brutality, the death penalty, and "legal lynching"

Lynching was not the same everywhere in the South. Where blacks made up
the majority of the population, lynches were not as common, and cities
like New Orleans practiced police brutality instead (which still plagues
the city) to protect the old order. Culturally, New Orleans is a bit of an
island, and this is also true of lynching: people living there did not
resort to lynch mobs as often as they did in the surrounding area, where
something as harmless as miscegenation could get you killed. Jefferson
Parish, which borders New Orleans to the west, was a bastion (7) of
lynching, as a contemporary cited in Pfeifer's "Rough Justice" puts it:

"Jefferson Parish of which Gretna is the county seat seems to have a great
antipathy to the nigger in general and are daily shooting and lynching
them: without apparent cause."

At the end of the 19th century, the racially mixed couple Charlotte and
Patrick Morris were killed in their houseboat moored in a canal in
Jefferson Parish. Had they been docked a few miles further down in Orleans
Parish, they might have been able to lead more peaceful lives.

Proponents (or at least apologists) of lynching argue that lynching is
more efficient: no court or sheriff has to get involved, and justice is
served more quickly - and at no cost to the taxpayer. In addition, courts
in the US speak on behalf of the people. Why take a roundabout route in
such clear cases? The impatience with due process and the tendency to want
to take the law into your own hands is found all over the US. Only in New
England did the death penalty replace lynching relatively early on.

For due process to be a true alternative to lynching, courts had to reach
guilty verdicts more quickly (= more efficiently) and not shy from the
ultimate penalty. At the end of the 19th century, the electric chair was
touted as a more humane way (compared to lynching) of putting the worst
criminals to death, as was the gas chamber a few decades later. Of course,
quick guilty verdicts for blacks charged with committing some crime
against whites constitute legal discrimination, but the elites in New
England were willing to pay the price to stamp out the embarrassment of
lynching. After all, New England elites were never really worried about
giving blacks equal treatment.

Today, the US justice system remains far from colorblind. As Pfeifer puts
it at the end of his insightful study: "capital punishment in the United
States carries the profound legacy of lynching". One in eight Americans is
black, but three fourths of all inmates serving time for a drug-related
crime are black. And yet, according to official statistics whites commit
drug-related crimes just as frequently as blacks per capita.

New England began doing away with the death penalty around a century ago,
adopting what Pfeifer calls "legal lynching." As in Europe, due process
was simply more firmly established in New England. But when "transplanted
Europeans" entered the frontier west of the Mississippi or the enslaved
world of the South, they, too, fell prey to barbarian anarchy.

In 1920, a group of Texans had no problem posing for the camera next to
the body of a lynched man, but unlike some US soldiers in Iraq they are
not smiling for the camera.

It was easier to get rid of the death penalty in Europe, where there was
no tradition of taking the law into your own hands - the powers-that-be
had been too firmly established since the Middle Ages. Admittedly, the
Nazis recruited their first members from the ranks of desperate young man
without futures, but they did not develop a culture of spontaneous lynch
mobs, but rather a top-down organization of death with unconditional
obedience to the leader. Nazi Germany was not anarchy the way the Wild
West and South were.

The French may have discovered that the guillotine is a more humane way of
executing people, and their penchant for mass protests later led them to
misuse the guillotine for mass executions. But when the Socialists
abolished the death penalty in 1981 under Mitterrand, it was a top-down
decision. Back then, a majority of the French supported (8) the death
penalty, and only a few years ago did a majority of the French finally (9)
swing to the other side. In 1949, Germany abolished the death penalty in
its constitution, but this too was a top-down decision against the
Germans, who had been indoctrinated in fascism for 12 years - estimates
are that up to 77% of them (10) supported the death penalty at the end of
World War II. Europe is just not as ashamed of its elites as the United
States is. In the US, simple citizens sit in juries and decide whether a
suspect is guilty or not guilty; in Europe, only judges may interpret the
law.

What's more, elites in the US are afraid of the masses. The US Supreme
Court put it bluntly in 1976, when it legalized (11) the death penalty
once again:

When people begin to believe that organized society is unwilling or unable
to impose upon criminal offenders the punishment they "deserve," then
there are sown the seeds of anarchy - of self help, vigilante justice, and
lynch law.

The joy of torture

Pfeifer sees lynching as part of a radical interpretation of the American
Revolution: the people have the right to take matters into their own
hands. Americans are loved the world over for their can-do mentality: just
get the job done. The flip side of that coin is impatience and
presumptuousness. And while much of the world has taken a liking to our
can-do mentality in their own lives, Americans are still fond of the flip
side: the death penalty, police brutality against blacks and
discrimination in the courts, and now lynching in the US military.

The connection between lynching in the history of the US and the pleasure
that some US soldiers obviously have in torture is clear not only on the
photographs that have become public, but also in the mere fact that these
photos were taken and uploaded by the soldiers themselves. The soldiers
are taking the law into their own hands - why call The Hague if you can
take care of things yourself?

In addition, the Arabs being tortured are also being humiliated as men.
While most victims of lynching were blacks, almost all of them were men,
and when a woman was lynched, there was even more outrage: "This is about
the poorest purpose a woman can be put to!", exclaimed one contemporary
when a woman was lynched, and the argument reminds us of the opponents of
slavery who exhorted slaveowners not to mistreat their slaves because,
after all, they would only be destroying their own property.

Pfeifer explains the connection between masculinity and honor in lynching:

The degradation of a corpse apparently signified the victor's privilege in
the satisfaction of western masculine honor, the ultimate humiliation of a
personal foe or communally defined villain.

Of course, a large number of Americans are outraged about the US military
practicing torture. But history suggests that mob rule has only been
overcome when the elites take control. At the moment, the elites running
the US do not seem to have much of a problem with a few US soldiers taking
matters into their own hands. Bush, Cheney and Rumsfeld did not put their
foot down when they saw the pictures from Abu Ghraib.

History repeats itself

There is no doubt that lynching was most common in the South between
1890-1940 or that most victims were black. But Americans outside the South
would be well advised to stop pointing the finger at the South and look
more closely at their own history.

Why did the author of the famous song Strange Fruit (12) write in the
first line "Southern trees bear strange fruit" after seeing a photo of a
lynching in Indiana (13) - is that the South?

Some of the best writers in the US have tried to put themselves in the
shoes of a black rapist to try to understand the problem from the other
angle. One of them was Nobel Prize winner Toni Morrison. Her first novel
(1970) "The Bluest Eye" begins with the statement that a black man has
raped his own daughter, but Morrison then does the unbelievable: she
spends the next hundred pages making the reader feel for this man. At the
beginning, we cannot help but think he is scum, but we come to realize how
he is suffered all his life as a black man in the US (in Ohio, not the
South), and when the act itself finally takes place at the end of this
short novel, we beg him not to do it - and we understand that he never had
a chance to learn to love in his American life.

Morrison deserves the Nobel Prize for this novel alone: a woman forcing us
to understand a rapist. We would probably all be a lot better off if we
tried to put ourselves in others' shoes the way Morrison does. But another
similar case is a bit more disconcerting. In his novel (1940) "Native
Son," Mississippi-born Richard Wright tells the tale of Bigger Thomas, who
is charged with murdering a white woman and raping and murdering a black
woman. Wright also tries to put the reader in the perpetrator's shoes:
Bigger is not portrayed as a monster the way the media in the US portray
just about every criminal today; rather, he is depicted as a product of
his environment - a native son of the United States.

What good did it do? The Book of the Month Club made a bestseller out of
the novel, but only after forcing Wright to tone down parts of it. For
instance, the white woman who is later raped was not to come on to Thomas
so clearly. And when Wright had the Club review his next novel, the Club
insisted (14) that the last third of the novel be taken out altogether,
and that the new ending be rendered more hopeful. Wright was literally
starving back then, and he watched the autobiographical novel he called
"American Hunger" - which told of a black man's desperate search for
freedom in Mississippi, Memphis, and Chicago - be transformed into "Black
Boy." At the end of this truncated novel, the protagonist is leaving
Memphis and cursing the racist south on his way towards Chicago, the land
of milk and honey.

For 32 years, Americans read this story as criticism of the South and
praise for the North. In 1977, the censored third of the book finally
appeared as "American Hunger." Here, the protagonist finds the North to be
a complete disappointment; not even the Communists play fairly. Wright
left Chicago and the US soon after "Black Boy" was published to escape
racism. He went to Europe, and we can only hope he wasn't disappointed
there, too.

Even now, Wikipedia contains the following argument (15) pro the death
penalty in the entry for capital punishment:

It upholds the rule of law, because it discourages vigilantism on the part
of the victim's family or friends (in the form of lynching or retaliatory
murder). If not controlled, such actions can lead to extremely destructive
vendettas or blood feuds. In the U.S., capital punishment is concentrated
in States where lynching was more common, although no one has been lynch
in the South since 1964.

In reality, New Englanders used the death penalty before the South did to
combat lynch law, which Wikipedia does not explain. Racially and sexually
motivated mob rule is not just a problem of the South, but an American
problem. Indeed, it may actually be the way people normally behave in
anarchy. It is certainly not uncommon in areas of armed conflict, such as
Sri Lanka (16). And the history of colonization also shows that Europeans
are also quick to take the law into their own hands when they live in
anarchy. If we do not come to terms with how our cultural legacy -
including the legacy of violence - lives within us, it will come back to
haunt us again and again.

Links

(1) http://www.wyomingtalesandtrails.com/rawlinsa.html

(2) http://www.panopt.com/photogra/withers/fulewtill05.html

(3) http://www.watson.org/~lisa/blackhistory/early-civilrights/emmett.html

(4) http://www.insightnews.com/search.asp?mode=display&articleID=1362

(5) http://www.insightnews.com/search.asp?mode=display&articleID=397

(6) http://www.suntimes.com/output/news/till23.html

(7) http://academic.evergreen.edu/p/pfeiferm/Jefferson.html

(8) http://www.deathpenaltyinfo.org/article.php?scid=17&did=399

(9) http://fr.wikipedia.org/wiki/Peine_de_mort_en_France

(10)
http://www.washingtonpost.com/wpdyn/content/article/2005/06/03/AR2005060301450.html

(11) http://www.thenation.com/doc/20011210/neufeld

(12) http://de.wikipedia.org/wiki/Strange_Fruit

(13) http://en.wikipedia.org/wiki/Abel_Meeropol

(14) http://www.findarticles.com/p/articles/mi_m1254/is_3_32/ai_62828414

(15) http://en.wikipedia.org/wiki/Capital_punishment

(16) http://www.inwent.org/E+Z/content/archive-eng/04-2005/foc_art5.html

(source: Telepolis

******************

What Is "Cruel and Unusual"?


The eighth amendment is a jurisprudential train wreck. Its proudly humane
language banning "cruel and unusual punishments" may remain among the Bill
of Rights most famous sound bites, but nobody today has the faintest clue
what it means. The reason is as simple as it is sad: The Supreme Court's
case law has left the amendment without coherent meaning. No principle
guides its reach. No methodology solemnly pronounced in any case do the
justices predictably follow in the next. A punishment upheld today can be,
without alteration, struck down tomorrow with no justice even admitting
that his or her mind has changed. The justices no longer even pretend to
examine whether a punishment offends the amendment's textual prohibition.
Instead they apply perhaps the single most impressionistic test ever
devised by the court: whether the challenged practice has run afoul of
"the evolving standards of decency that mark the progress of a maturing
society."1 Unsurprisingly, nine judges of wildly different politics,
temperaments, and backgrounds do not generally agree on the standards or
the methodology for assessing societys maturation, much less its
substance. As a consequence, more than two centuries after its
incorporation into the Constitution, the amendment has been rendered
nothing more than a vehicle to remove from the policymaking arena punitive
practices that offend a majority of the court at any moment in time.

The train wreck does not end there. Normally, when the court runs a major
doctrinal area off the rails, a cogent line of dissent over time helps
rationalize the errant line of cases by offering a more legally faithful,
a more constitutionally stable, or simply a more sensible alternative. The
Eighth Amendment has not proven so lucky. To be sure, the court's
conservative flank - led by Justice Antonin Scalia - has dissented from
its emerging Eighth Amendment jurisprudence and has offered a compelling
critique. It has even proposed a principled alternative - at the core of
which lies the premise that the amendments protections are static and
contain no evolutionary dimension whatsoever. As Scalia once poetically
declared, "the Constitution that I interpret and apply is not living but
dead - or, as I prefer to put it, enduring. It means today not what
current society (much less the Court) thinks it ought to mean, but what it
meant when it was adopted."2

In reality, however, this principle is not nearly as self-evident, at
least in the context of the Eighth Amendment, as Scalia's bombastic
rhetoric would have one believe. It is, rather, somewhat implausible as a
textual matter, uncertain as a historical matter, and utterly at odds not
only with the courts jurisprudence during its recent period of
intellectual incoherence but with its entire century-long history of
interpreting the amendment altogether. Moreover, Scalia's reading would,
in effect, render a major plank of the Bill of Rights a dead letter that
protects Americans only against those punishments that are politically
unthinkable anyway. The Eighth Amendment is thus trapped in a shouting
match between the entirely inconstant and the most foolish of
consistencies.

This stalemate by no means flows inexorably from some inherent defect in
the amendment itself. Though its specific language presents some unique
challenges, the text of the Eighth Amendment is no vaguer than the Fourth
Amendment's requirement that searches and seizures be "reasonable" or the
Fifth Amendments demand that an individual's life, liberty, and property
be secure from government in the absence of "due process of law." Yet in
contrast to the Fourth and Fifth Amendments, where generations of case law
have put meat on these rather bare constitutional bones, the Eighth
Amendment's key terms ?" "cruel" and "unusual" - remain almost entirely
undefined. In their zeal to unravel how societys standards of decency have
evolved - or to snipe at how the court has done so - both sides in the
debate seem to have forgotten what the words of the amendment actually
say.

In my view, however, a potential key to rationalizing the Eighth Amendment
lies in a jurisprudential return to those two words. For they in fact
suggest an elegant 2-part judicial examination: whether a challenged
punishment is "cruel" - that is, needlessly and wantonly harsh and with
some significant purpose of inflicting pain or misery - and, if so,
whether it is by some reasonably measurable standard "unusual" or rare.
Such a return would place the amendment on a more principled footing that,
even in acknowledging the amendment's dynamic character, would both
restrain judicial action and render it more predictable and less
freewheeling.

I do not intend this essay as a doctrinal treatise expounding on Eighth
Amendment jurisprudence, but rather as a kind of sketch of how it went
awry and of how it can now be righted. In the first section, I look at the
train wreck itself: how badly the court has foundered and how unacceptable
the outcome should be even for those, like me, who find its results
politically congenial. In the 2nd part, I look at Justice Scalias crude
alternative to the courts path and argue that it is not viable, being both
somewhat weaker than the justice contends as an original matter and being,
in any event, at odds with the courts entire history of interpretation of
the amendment. In the final section, I attempt a brief outline of what a
more textually rigorous approach to the amendment would look like.

Rank subjectivity

Over the past few Supreme Court terms, the court has struck down capital
punishment for the mentally retarded and for juvenile offenders, both
practices it upheld as recently as 1989.3 In both cases, as Scalia put it
this year of the juvenile death penalty in Roper, the court was announcing
its "conclusion that the meaning of our Constitution has changed over the
past 15 years - not, mind you, that this Courts decision 15 years ago was
wrong, but that the Constitution has changed" (emphasis in original). One
doesnt have to share Scalias approach to the amendment to conclude, with
him, that this will not do. The challenged practices, after all, had not
changed. The court admitted no bottom-line error. In neither case could it
point to more than incremental evolution in political attitudes toward
these controversial punishments. A few more state legislatures had banned
the practices and public opinion had moved somewhat. Foreign governments
disapproved. Medical and psychological advances had taken place. So mehow,
out of these transient developments, a supposed consensus is born.

The dishonesty of the courts methodology makes it all the more
frustrating. The court has never bothered to say how many states need to
turn away from a practice before it becomes off-limits to other states.
Nor, more broadly, has it ever specified what weight it grants to any
particular factor in assessing whether a consensus has developed against a
particular punishment. Nor does it even explain why it relies on certain
factors while ignoring others in the first place. If American sources of
law don't by themselves form a consensus, the court feels free to consult
foreign practice. It relies on scientific studies that support its
position but leaves others out without comment. In the end, its hard to
resist Scalia's devastating conclusion that the courts methodological
approach "is to look over the heads of the crowd and pick out its
friends."

The court all but admits as much. In the juvenile death case this year,
the objective indicia of a national consensus - the acts of state
legislatures - just werent that strong. So the court relegated that
inquiry to the "beginning point" of its review. "This data gives us
essential instruction," Justice Anthony Kennedy writes for the court in
Roper. But "[w]e then must determine, in the exercise of our own
independent judgment, whether the death penalty is a disproportionate
punishment for juveniles" (emphasis added). In other words, at the end of
the day, whether society can be reasonably deemed to have turned away from
a punishment is less important than whether the justices have. The
methodology for assessing an Eighth Amendment claim is simply to put all
the factors into a pot, add whatever level of judicial discomfort the
majority on the court feels toward that punishment at the current moment
in time, let it all stew together, and then apply what Scalia in another
context once called "that test most beloved by a court unwilling to be
held to rules (and most feared by litigants who want to know what to
expect): th' ol' 'totality of the circumstances' test."4 Presto! The
public finds out that what the Constitution permitted the year before, it
now forbids - or not, as the case may be.

So the juvenile death penalty and the death penalty for the mentally
retarded are now unconstitutional. Yet executing a florid schizophrenic
can still pass constitutional muster, provided that the condemned is aware
of what is about to happen and why he is to suffer death.5 Meanwhile,
locking someone up for the rest of his life for shoplifting less than $200
in videos under a California 3-strikes law is okay.6 On the other hand,
locking someone up for life without parole under a recidivism statute in
South Dakota for passing a bad check worth $100 is unconstitutional.7 In
case thats too clear, the court has also said that a life sentence under
Texas recidivism law for fraudulently obtaining $120.75 is just fine.8

Those sanguine about the state of Eighth Amendment law are apt to shrug at
such doctrinal nonsense and treat the rank subjectivitof the courts
approach as somehow inevitable. Language as elastic as "cruel and
unusual," after all, invites judges to rule based on their own views, they
say. But the development of the Eighth Amendment mess was not predestined
by the amendment's text. It flows, rather, from the courts cop-out in the
1958 case of Trop v. Dulles. In Trop, the court considered a challenge to
a federal law under which desertion from the military could be punished by
revocation of citizenship. Instead of attempting to apply the language of
the amendment itself, the court majority invented a kind of surrogate
test, one that reflected the evolutionary quality of the Constitutions
words but defined their meaning in terms of the sociological and political
development of the country rather than anything fixed and durable. "The
Amendment," Chief Justice Earl Warren fatefully wrote, "must draw its
meani ng from the evolving standards of decency that mark the progress of
a maturing society."

It is in this language, not in the amendment itself, that the invitation
for judicial subjectivity lies. For exactly who is to decide - if not the
reviewing judges - how far societys maturation has progressed? The Trop
test offers no hint of how broad a legislative consensus needs to be
before the court can discover that societys evolution bars the proposed
punishment of an outlying state. If the acts of 49 state legislatures can
bind the 50th, what about 48? What about 47? Why not a bare majority,
supported by nearly uniform foreign practice? Why not, as Justice John
Paul Stevens did in striking down the death penalty for the mentally
retarded in Atkins, treat the raw numbers as less significant than "the
consistency of the direction of change"- in other words, why not find a
consensus in the fact that some states are doing away with a practice
while no new ones are embracing it? For that matter, why does the
consensus really need to be legislative at all? Why not a consensus of
public opinion? Or elite opinion? Or merely an emerging consensus of one
or the other? The courts underlying doctrine contains barely a word that
could constrain judicial discretion.

Scalia is particularly bitter about the courts ever more apparent view
that the amendments strictures depend chiefly on the subjective views of
judges rather than on the enactments of democratically elected
legislatures. "If the Eighth Amendment set forth an ordinary rule of law,"
he argues in dissent in Roper it would indeed be the role of this Court to
say what the law is. But the Court having pronounced that the Eighth
Amendment is an ever-changing reflection of "the evolving standards of
decency" of our society, it makes no sense for the Justices then to
prescribe those standards rather than discern them from the practices of
our people. On the evolving-standards hypothesis, the only legitimate
function of this Court is to identify a moral consensus of the American
people. By what conceivable warrant can 9 lawyers presume to be the
authoritative conscience of the Nation?

Scalia's complaint is analytically sensible, but it seems a bit naive.
Once the court declined in Trop to announce a coherent legal test and
proposed instead that the amendment vaguely tracks the emerging political
sensibilities of the country, the justices had crossed their Rubicon. It
asks a great deal of judges to expect them not to equate those emerging
political sensibilities with their own evolving attitudes. In other words,
having stated the Trop principle, it is hardly a surprise that the court
would rather swiftly eschew any methodology in assessing society's
evolution that restricts its own role to that of passively noticing a
consensus agreed to by others. The Trop doctrine, quite simply, suffers
from a birth defect, not a developmental one.

A dynamic amendment

To his credit, Scalia does propose a principled alternative to the current
morass. Unfortunately, his is the type of principle that gives principle
itself a bad name. Scalia regards the Eighth Amendment as banning only
those punitive practices it banned at the time of its adoption. The phrase
"cruel and unusual punishments" to him "means not . . . whatever may be
considered cruel from one generation to the next,' but what we [the
Amendment's drafters] consider cruel today'. . . . It is, in other words,
rooted in the moral perceptions of the time" - that is, of the eighteenth
century.9

For Scalia, therefore, constitutional inquiry under the Eighth Amendment
is a simple matter. The amendment does not ban disproportionate
punishments?, no matter how grossly disproportionate, but merely "disables
the Legislature from authorizing particular forms or 'modes' of
punishment" - in other words, certain especially torturous deaths.10 Life
in prison for a parking infraction? No problem.11 For Scalia writing in
the journal First Things, "the constitutionality of the death penalty is
not a difficult, soul-wrenching question. It was clearly permitted when
the Eighth Amendment was adopted (not merely for murder, by the way, but
for all felonies - including, for example, horse-thieving, as anyone can
verify by watching a western movie). And so it is clearly permitted
today." Whats more, the amendment will tolerate just about any imposition
of capital punishment, provided that the condemned is not drawn and
quartered. As Scalia cheerfully noted in one opinion, at the time of the
amendments adoption, "the common law set the rebuttable presumption of
incapacity to commit any felony at the age of 14, and theoretically
permitted capital punishment to be imposed on anyone over the age of 7."12
In other words, the Eighth Amendment would not be offended by executing a
7-year-old for not wearing a seatbelt.

One may be tempted to defend Scalia's view on grounds that no state would
actually contemplate the execution of a seven-year-old or life
imprisonment for a parking offense, and therefore, it is a kind of
academic game of gotcha to reject his principle for theoretically
tolerating such moral offenses. But this is, in fact, precisely the point.

In Scalia's reading the only punishments the amendment would forbid are
those that are politically unthinkable anyway. Scalia defends this reading
on the grounds that if the amendment were truly dynamic in character, "it
would be no protection against the moral perceptions of a future, more
brutal, generation."13 But this argument is a red herring. Nobody contends
that the amendment does not now and forever ban the barbarities of
seventeenth-century English justice that gave rise to it originally - the
torturous deaths inflicted under Stuart rule and banned after the Glorious
Revolution in 1688.14 The only question is which, if any, practices the
nation has unalterably set its face against since the founding the
amendment might also prohibit.

If the answer is truly none, as Scalia would have it, then the amendment
is nothing more than a historical relic, not an active protection against
any government action imaginable in this or any other contemporary
democracy.

Scalia could well be right as a matter of original interpretation that
this is what the drafters of the amendment had in mind. Justice Joseph
Story, an early commentator on the Constitution, treated the amendment as
exactly this sort of historical oddity. The prohibition, he wrote,

would seem wholly unnecessary in a free government, since it is scarcely
possible, that any department of such a government should authorize, or
justify such atrocious conduct. It was, however, adopted as an admonition
to all departments of the national government, to warn them against such
violent proceedings, as had taken place in England in the arbitrary reigns
of some of the Stuarts.15

State court judicial interpretation of the amendment during the nineteenth
century tended to favor Scalia's view.

But the amendments text is a pesky thing. As constitutional scholar John
Hart Ely elegantly put it, its language seems "insistently to call for a
reference to sources beyond the document itself and a 'framers'
dictionary." While it is possible, he acknowledges, to construe the
provision as Scalia does, "that construction seems untrue to the
open-ended quality of the language."16 Indeed, as a textual matter,
construing "cruel and unusual punishments" as strictly as Scalia does is a
little like construing the right to keep and bear arms as limited to such
eighteenth-century firearms as muskets. Scalia is dismissive of the notion
that the reference point for cruelty might be a contemporary one rather
than the framers own reference points. But the framers of the amendment
were well aware of the breadth of the language they used. Had they
intended to outlaw a specific series of practices, they could easily have
elaborated them. Even had they intended to prohibit gratuitously painful
deaths or tortures - the general category of Stuart-era cruelty ?" they
could have specified that too.

Instead, they chose language - variants of which were already common in
state constitutions - that, as Ely puts it, "invite[s] the person
interpreting it to freelance to a degree." The choice was not in any sense
a departure from the rest of the amendment, which, after all, also
prohibits "excessive" bail and fines - 2 clauses that similarly seem to
beg for a measure of judgment. Surely the excessiveness of a fine is not
to be measured in 1791 dollars. As a purely textual matter, it is hard to
see why a punishments unusualness should be more frozen in time.

Nor is the history of the amendment quite so clear as Scalia contends. It
received very little debate during the First Congress. But at least some
members worried about the vagueness of its language. One, according to the
Congressional Record, "objected to the words nor cruel and unusual
punishment,' the import of them being too indefinite." Another noted
presciently in opposing the amendment that:

The clause seems to express a great deal of humanity, on which account I
have no objection to it; but as it seems to have no meaning in it, I do
not think it necessary. What is meant by the terms excessive bail? Who are
to be the judges? What is understood by excessive fines? It lays with the
court to determine. No cruel and unusual punishment is to be inflicted; it
is sometimes necessary to hang a man, villains often deserve whipping, and
perhaps having their ears cut off; but are we, in future, to be prevented
from inflicting these punishments because they are cruel? If a more
lenient mode of correcting vice and deterring others from the commission
of it could be invented, it would be very prudent in the legislature to
adopt it, but until we have some security that this will be done, we ought
not to be restrained from making necessary laws by any declaration of this
kind.17

In other words, the notion that the amendment may have a dynamic character
based on changing judicial interpretation of its terms was not beyond the
realm of the imagination of members of the Congress that sent it to the
states for ratification.

Nor did judges prior to the court's modern era uniformly adopt Scalias
orthodox view. In an 1892 case, 3 Supreme Court justices - including the
famed Justice John Marshall Harlan - dissented from a decision not to
consider whether a Vermont conviction raised a question under the Eighth
Amendment. The dissents, rejecting Storys view (and Scalia's), stood
unambiguously for the proposition that the amendment banned, as Justice
Stephen Field put it, "all punishments which by their excessive length or
severity are greatly disproportioned to the offences charged. The whole
inhibition is against that which is excessive either in the bail required,
or fine imposed, or punishment inflicted."18

Scalias principle has another grave defect: It defies the entirety of the
courts history of interpretation of the amendment. This point bears some
emphasis; it is not an exaggeration. Scalias view does not merely cut
against the modern grain of Warren Court activism. It cuts against the
whole of the courts century-long interaction with the Eighth Amendment.

The court first authoritatively interpreted the "cruel and unusual
punishments" language in a 1910 case called Weems v. United States. The
court's understanding of the amendment warrants quotation at length, for
it illuminates just how long Scalias view has been just how decisively
rejected. The "predominant political impulse" of the founders, wrote
Justice Joseph McKenna, was distrust of power, and they insisted on
constitutional limitations against its abuse. But surely they intended
more than to register a fear of the forms of abuse that went out of
practice with the Stuarts. Surely, their jealousy of power had a saner
justification than that. They were men of action, practical and sagacious,
not beset with vain imagining, and it must have come to them that there
could be exercises of cruelty by laws other than those which inflicted
bodily pain or mutilation. With power in a legislature great, if not
unlimited, to give criminal character to the actions of men, with power
unlimited to fix terms of imprisonment with what accompaniments they
might, what more potent instrument of cruelty could be put into the hands
of power? And it was believed that power might be tempted to cruelty. This
was the motive of the clause, and if we are to attribute an intelligent
providence to its advocates we cannot think that it was intended to
prohibit only practices like the Stuarts, or to prevent only an exact
repetition of history. We cannot think that the possibility of a coercive
cruelty being exercised through other forms of punishment was overlooked.
We say "coercive cruelty," because there was more to be considered than
the ordinary criminal laws. Cruelty might become an instrument of tyranny;
of zeal for a purpose, either honest or sinister.

McKenna also wrote that the clause "may be therefore progressive, and is
not fastened to the obsolete but may acquire meaning as public opinion
becomes enlightened by a humane justice" (emphasis added). While the court
did not return to the subject again for many years, it never repudiated
this understanding, which is similar in character to the language it later
articulated in Trop.

In other words, if the dynamic view of the Eighth Amendment is a deviation
from the original understanding, it is neither of recent vintage nor some
creature of modern liberal judicial activism. In my view, it is better
understood as a plausible understanding of the text and its purpose made
essential by the utter pointlessness of an Eighth Amendment limited to
what may or may not be its narrow original construction. And, critically,
the court - despite a consistent line of dissent - has never understood
the amendment as the static restriction which Scalia insists it must be.
If the notion of stare decisis? - that is, the honoring of precedent that
may have been erroneous as an original matter - has any meaning at all,
surely the uninterrupted understanding of the court over the course of a
whole century warrants respect.

Defining "cruelty" and "unusualness"

There exists an alternative both to the unprincipled dynamic approach of
the current court and the unfortunate principle Scalia articulates in
response. That is, quite simply, to take the amendment's words seriously,
to deem a punishment barred by the clause if it meets some coherent legal
definition of both "cruel" and "unusual." These are, after all, words with
objective meaning, precisely the sort of words that, elsewhere in the Bill
of Rights, have given rise to generations of case law that provide
guidance to policymakers and lower courts. How exactly the courts should
understand them is a tricky question. As a preliminary matter, however, it
seems to me obvious that these 2 words - rather than the evolving
standards of decency - ought to be the focal point of the courts inquiry
in every case under the clause.

A jurisprudence under such an understanding would not be a freewheeling
license for judicial intervention in democratic life, as is the current
standard. A punishment could be barred only if it met some articulated
definition of cruelty and if it were in some defensibly measurable sense
rare. But neither is this reading of the Eighth Amendment a static one, as
Scalias is. It is conceivable, after all, that a punishment understood at
one time to have a legitimate penal purpose has seen that purpose so
eroded over time as to be rendered a simple act of cruelty; branding and
the cutting off of ears come to mind. These were common at the time of the
founding for a variety of minor offenses. Few today would describe their
infliction as less than cruel. They are certainly unusual. Under Scalias
reading of the amendment, it seems to me that they must be upheld. As he
put it about the death penalty, they would not even present "a difficult,
soul-wrenching question. [They were] clearly permitted when the Eighth Ame
ndment was adopted. [So they are] clearly permitted today." A more
textual, less historical approach would view them differently. They are
cruel. They are unusual. They are consequently forbidden. Notice that the
manner of societys evolution does not play a role in the analysis, which
focuses instead on the qualities of the punishment in question.

Such a reading necessarily puts a premium on the question of the
definitions of the two key terms. Neither is easy. Both could, if defined
mischievously, provide exactly the license for judicial impressionism that
the Trop test provides today. One mans reasonable retributive justice,
after all, is another's cruelty; one mans unusualness is another's
reasonable experimentation with a novel punitive practice. That said,
neither term is especially vague by the standards of the sweeping
generalities of the Bill of Rights. Without the benefit of argument in
many cases with specific facts and the constructive process of application
of precedent over time, it is impossible to articulate doctrine fully
formed and well developed; constitutional doctrines, unlike Greek gods, do
not leap from ones head full grown, armor-clad, and battle ready. What is
possible at this stage, however, is to sketch the outlines of plausible
definitions that might guide a healthier doctrinal development.

The hallmark of cruelty, in my judgment, is the needless infliction of
pain or suffering. Judging whether a punishment is cruel, therefore,
requires an assessment of whether the suffering it entails is necessary
for some legitimate government purpose or whether it is senseless. On its
face, this inquiry is not a complicated one: A punishment reasonably tied
to the goal of deterrence or disabling a criminal from further harm to
society is not cruel, however unpleasant it may be. A punishment that goes
beyond these goals to wanton violence, irrational harshness, gross
disproportionality, or needlessly degrading humiliation can reasonably be
described as cruel for constitutional purposes. The essential quality of
the cruelty, in other words, is that the punishment in question goes
somehow beyond any reasonable punitive purpose.

The chief concern about this definition (which is really more of a sketch
of a definition), is that deterrence is an inherently gauzy and
immeasurable concept. Breaking someone on the wheel naturally has more
deterrent power than merely executing that person. A more modern example
is that life in prison for a third felony conviction certainly has more
deterrent power than a lesser sentence enhancement. In fact, longer
sentences always have more deterrent power than shorter ones, at least in
theory. The notion of deterrence as a legitimate government interest -
which it certainly is - therefore has the capacity to swallow up the
entire definition of cruelty. Where cruelty meets legitimate deterrence is
one of the key questions case law would have to develop, and the risks of
judicial impressionism here are not trivial. But neither are they
prohibitive. The more extreme a punishment, the more difficult would be
the governmental burden of demonstrating its reasonableness.

The pressure on this inquiry, in any event, would be ameliorated by the
fact that it is only the threshold question. The amendment, after all,
does not forbid every "cruel" punishment, only those that are also
unusual. So even were judges to adopt a broad conception of cruelty
relative to deterrence, their definition still would not give them a
roving license to strike down punishments of which they disapproved. It
would merely entitle them to render a preliminary negative legal-moral
judgment and thereby proceed to assess their frequency.

Unusualness is harder to define, even sketchily. How unusual is unusual
enough to bar a practice already deemed cruel? Clearly, if a single
outlying state is engaged in a cruel punishment, any reasonable definition
of unusualness must be satisfied. One cant get more unusual than one
without the amendment's becoming a nullity, after all. But what about
punishments practiced in a few states, or authorized in many but carried
out only rarely? What about punishments in which American law is the
outlier set against the uniform (or nearly uniform) practice of other
civilized countries?

One possible resolution to this problem is a judicially adopted numerical
formula - for example, a punishment is unusual if authorized in the laws
of 5 or fewer jurisdictions, if carried out less than once every ten
years, or if practiced in no other Western democracy. Such a definition
has the benefit of analytical simplicity. It would make the inquiry a
purely objective one. It would also make it very clear how many states
would have to ban a constitutionally cruel punishment before disabling
other states from practicing it. On the other hand, any such definition
would suffer from a certain arbitrariness. In the hypothetical test just
articulated, for example, why five states and not six? Moreover, it would
grant unusual power to the legislature of the 45th state to ban a cruel
practice, as the enactment of that legislature would effectively bind 5
other supposedly separate sovereigns.

One way around the problem of both arbitrariness and the granting of
inordinate power to the threshold state would be to set the number of
states at three-quarters of the number of states in the Union, currently
38. This corresponds to the number of states required to amend the
Constitution, which is effectively what the court does when it strikes
down a punishment under a dynamic reading of the Eighth Amendment. The
advantage to this approach, which I favor, is that it is objective and has
a principled basis: Judges may disable a state from using a punishment
when that punishment has both been deemed cruel and been banned by enough
states to outlaw it in the federal constitution by other means. The
amendment in this reading would function as a kind of common law shortcut
to the amendment process for those punishments that would never quite
warrant a constitutional amendment on their own.

A more difficult possibility would be to assess unusualness as a function
of typical punishments for the particular crime in question. A person who
can show that a jurisdiction is subjecting him to a cruel punishment it
almost never deploys even for comparable offenses seems to me to have a
strong claim for the unusualness of the cruelty directed at him. In other
words, unusualness here is measured in terms of caprice and randomness.
This definition, however, has the problem of necessitating federal inquiry
into which offenses are comparable to which other offenses under state law
and potentially requiring a broad survey of the frequency of certain
punishments under state law. It might also paradoxically create an
incentive for states to use their cruelest punishments more often so as to
render them less unusual.

As with cruelty, the precise contours of the definition of unusualness can
be developed only through case law; they cannot be outlined prospectively.
What we can insist on prospectively, however, is that the two terms be
defined in some way as to offer some predictability as to which
punishments will be upheld and which struck down and to provide some
doctrinal constraint on judicial policymaking and discretion.

It is an open question in my mind whether such an approach would, over the
long term, generate a more liberal or a more conservative Eighth Amendment
jurisprudence in political terms. That depends on the rigor of the
specific definitions the court develops and the consistency with which it
applies them. To take the juvenile death penalty case as an example,
different iterations of the methodology I have outlined could produce
radically different results. One could, for example, regard the practice
as a cruel abdication of society's obligation toward children, authorized
only by the laws of increasingly few states - only a few of which actually
use it - and almost no other countries. Alternatively, one could regard it
as authorized by the laws of more than half of the death penalty states
and therefore, even if cruel, certainly not unusual. But whatever the
outcome, all sides would at least be arguing over the same questions and
in the same terms. Indeed, making the courts Eighth Amendment
jurisprudence either more or less muscular matters ultimately less than
making it more coherent and principled without denying its dynamic
character or reducing it to an historical anachronism.

In other words, how the court decides these cases - and most cases, for
that matter - is ultimately more important than the substance of what it
decides. In no area of law has the court more completely lost sight of
that basic truth than the Eighth Amendment. But it is never too late to
put the train back on the tracks.

Notes

1 Trop v. Dulles, 386 U.S. 86 (1958).

2 Antonin Scalia, "God's Justice and Ours," First Things (May 2002).

3 See Atkins v. Virginia, 536 U.S. 304 (2002), concerning the death
penalty for mentally retarded offenders and Roper v. Simmons, 125 S. Ct.
1183 (2005), concerning the death penalty for offenders under the age of
18.

4 See Scalia's dissent in U.S. v. Mead Corp., 533 U.S. 218 (2001).

5 See the concurring opinion of Justice Lewis Powell in Ford v.
Wainwright, 477 U.S. 399 (1986).

6 See Lockyer v. Andrade, 538 U.S. 218 (2003).

7 See Solem v. Helm, 463 U.S. 277 (1983).

8 See Rummel v. Estelle, 445 U.S. 263 (1980).

9 Antonin Scalia, A Matter of Interpretation (Princeton University Press,
1997), 145.

10 See Harmelin v. Michigan, 501 U.S. 957 (1991).

11 See footnote 11 in Harmelin: "It seems to us no more reasonable to hold
that the Eighth Amendment forbids 'disproportionate punishment' because
otherwise the State could impose life imprisonment for a parking offense
than it would be to hold that the Takings Clause forbids 'disproportionate
taxation because otherwise the State could tax away all income above the
subsistence level.'"

12 Stanford v. Kentucky, 492 U.S. 361 (1989).

13 Scalia, A Matter of Interpretation, 145.

14 See, for example, Justice Marshall's opinion in Ford v. Wainwright, 477
U.S. 399 (1986), in which he describes essentially universal agreement
"that the Eighth Amendment's ban on cruel and unusual punishment embraces,
at a minimum, those modes or acts of punishment that had been considered
cruel and unusual at the time that the Bill of Rights was adopted."

15 Joseph Story, Commentaries on the Constitution of the United States, 3
1896 (1833).

16 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review
(Harvard University Press, 1980), 13-14. 17 Quoted in Weems v. U.S., 217
U.S. 349 (1910).

18 ONeil v. Vermont, 144 U.S. 323 (1892). See also Justice Harlans
dissent.

(source: Policy Review (December/January issue) (Benjamin Wittes is an
editorial writer for the Washington Post specializing in legal affairs,
and the author of Starr: A Reassessment (Yale University Press, 2002))

***************************

US penalty reaches grim milestone


TONY EASTLEY: As the clock ticks down to Van Nguyen's scheduled hanging on
Friday, the United States is about to pass an execution milestone.

Barring any last minute reprieve, convicted murderer Robin Lovitt will,
tomorrow, become the 1,000th person executed since a moratorium on the
death penalty was lifted in the United States in 1976.

Unlike Singapore, the death penalty in the United States isn't mandatory,
but the Lovitt case has nonetheless re-ignited passionate debate over the
morality of capital punishment and its effectiveness in deterring serious
crime.

Washington Correspondent Michael Rowland reports.

MICHAEL ROWLAND: Like a lot of those who've preceded him to the execution
chamber, Robin Lovitt is proclaiming his innocence.

The 41-year-old was sentenced to death for fatally stabbing a man in a
Virginia pool hall in 1998. But his legal team is insisting he should be
spared because crucial DNA evidence has been destroyed.

Among those trying to save Robin Lovitt from a lethal injection is Kenneth
Starr, the special prosecutor who investigated former President Bill
Clinton's relationship with Monica Lewinsky.

KENNETH STARR: I support the death penalty in principle. The constitution
certainly contemplates the existence of the death penalty. But that
penalty should not apply here, for a wide variety of reasons, but
including above all right now, the destruction of the DNA evidence.

MICHAEL ROWLAND: These last minute pleas are likely to go unheeded,
meaning Robin Lovitt is about to earn the grim distinction of being the
1,000th person put to death since the US Supreme Court re-instated capital
punishment nearly 30 years ago.

The impending milestone has re-kindled the emotional debate over whether
the death penalty really deters crime. Public support for capital
punishment appears to be waning.

A Gallup poll last month showed 64 per cent of Americans supported the
death penalty - the lowest level in 27 years, down from a high of 80 per
cent in 1994.

Richard Dieter, the head of the Death Penalty Information Centre, says
there's now considerable public scepticism about whether all of those
being executed are in fact guilty.

RICHARD DIETER: I mean, a thousand executions is certainly a disturbing
number, but to think that in that same period, 122 people were about to be
executed, scheduled in some broad sense, and now have been freed -
exonerated by the courts - that's says we're making mistakes in the ratio
of for every eight executions, we're finding one person who never should
have been on death row in prison in the first place.

MICHAEL ROWLAND: But advocates of the death penalty, like Michael
Paranzino of the group, Throw Away The Key, say the victims of crime are
often ignored in the debate.

MICHAEL PARANZINO: But the idea we would mourn the 1,000th murderer that
died, when there are 600,000 families who will never recover, that's where
I think this debate has to be focused - the lasting harm to entire
families when people are murdered.

MICHAEL ROWLAND: And it's the victims that US politicians usually
sympathise with. Support for the death penalty is seen as a pre-requisite
for high office in America.

Texas, the home state of President George W Bush, has the highest
execution rate in the US and politicians who express concern about capital
punishment are routinely painted as soft on crime.

(source: Radio Australia ABC News)






MISSISSIPPI:

Death penalty----Looming execution date a reminder


Mississippi does have the death penalty, as the looming execution date of
John B. Nixon Sr. on Dec. 14 is a reminder, though one would be
hard-pressed to know it.

Only two Mississippi death row inmates have been executed since 1989.
Those 2 - cop killer Tracey Alan Hansen and rapist/murderer Jessie Darnell
Williams, both dispatched by lethal injection in 2002 - weren't upright
citizens. And neither is Nixon, though the memory of his death-earning
deed may be fading.

Nixon was convicted of capital murder in the Jan. 22, 1985,
murder-for-hire slaying of Virginia Tucker, 45, in her Brandon home. Her
ex-husband, Elester Joseph Ponthieux, is serving a life sentence for
hiring Nixon to kill her.

If Mississippi has the death penalty "to send a message" that's it's tough
on crime, it's falling short on the "swift and sure" part. Nixon, 77, has
been on death row for 2 decades, and quite plausibly has faced the Grim
Reaper more in his sleep than from an ultimate date with the state.

Make no mistake: Capital punishment exists for Nixon's ilk, cold-blooded
murderers with no regard for human life. But a two-decade wait for the
ultimate penalty hardly sends a message of this state being "tough on
crime."

If Mississippi really wants punishment that is swift and sure for capital
crimes, it must have an adequate state indigent defense system to shorten
the number of appeals.

It may seem backward that providing counsel for criminals is "tough" on
crime. But that's the way the system works.

The alternative is, as with Nixon, a death row that's more nursing home
than a hall of penance, with the ultimate sentence more euthanasia than a
punishment

. Message? Our indigent defense system needs changing.

Change needed

With Mississippi's inadequate provisions for legal counsel, its death row
is more nursing home than a hall of penance. To be "tough on crime," the
state needs a better indigent defense system to shorten appeals.

(source: Opinion, Clarion-Ledger)

*******************

Prosecutors Will Seek Death Penalty Against Alleged Cop Killer


In Wiggins, prosecutors said Tuesday they will seek the death penalty
against a Forrest County man accused of killing two Wiggins police
officers.

Stone County's assistant district attorney said the circumstances of the
case make pursuing a death sentence a natural choice.

Authorities said 46-year-old Ronald Husband was arrested Sunday about two
hours after officers, 48-year-old Odell Fite, and 23-year-old Brandon
Breland, were shot to death while responding to a domestic disturbance
call in Wiggins.

Investigators have said little about the case.

Each officer was shot twice. Neither appeared to be wearing
bullet-resistant armor.

Husband remains in jail on two capital murder charges. Husband served 5
years in prison in the 1980s on aggravated assault and sexual battery
charges. He surrendered to authorities after speaking with a local
minister.

A memorial service for Fite is planned Wednesday at Dixie Baptist Church
in the Dixie community, while funeral services for Breland are planned for
Thursday at Vardaman Street Baptist Church in Wiggins.

(source: The JacksonChannel)

*********************

69 now on death row in state


Clyde Wendel Smith has lived in Unit 32 at Mississippi State Penitentiary
at Parchman since April 24, 2001, according to records from the
Mississippi Department of Corrections.

He likely won't ever see life beyond the razor wire at Parchman.

Smith lives on death row.

He was convicted in Leflore County of homicide on July 1, 1993.

Records from MDOC shows he will suffer lethal injection for the 1992
murder of Johnny B. Smith during a liquor store robbery. Johnny B. Smith
was shot 3 times.

Smith is one of 69 people - 68 men and 1 woman - who face execution for
crimes various juries found them guilty of committing.

"All of them are at Parchman, except the woman," said Tara Frazier, a
spokeswoman for the corrections department. "She is at the Central
Mississippi Correctional Facility in Rankin County."

To date, 999 people across the United States have died of various methods
of execution for capital crimes since the Supreme Court reinstated capital
punishment in 1976.

On Wednesday, 41-year-old Robin Lovitt of Virginia could become the
1,000th executed in nearly 3 decades. A jury found him guilty of stabbing
Clayton Dicks to death with a pair of scissors during a 1999 robbery of an
Arlington, Va. pool hall.

Lovitt has admitted he took the cash box but denied killing Dicks.

Others on death row who have connections to this area include Curtis G.
Flowers.

He was sentenced in Harrison County in 1999 for killing Derrick Stewart,
16, on July 16, 1996, in Winona.

Bertha Tardy, 59, Carmen Rigby, 45, and Robert Golden, 42 were also
murdered.

Flowers continues to live on death row.

Also, Henry Curtis Jackson of Greenwood was sentenced in Copiah County for
the murders of 2 of his nieces and nephews at Rising Sun during a robbery
of his mother's house.

Jackson lives on death row.

In May 2002, a jury convicted Lawrence Branch of the beating death of
Dorothy Broome Jorden, 57. Jorden was a businesswoman. Court records
indicate her murder occurred in January 2001, during a robbery.

Branch remains on death row.

Although Edwin Hart Turner was convicted in Forrest County in February
1997, the jury found him guilty of killing two Carroll County individuals,
Eddie Brooks and Everett Curry.

Turner lives on death row.

Mississippians haven't seen an execution since that of Jessie Derrell
Williams on Dec. 11, 2002. Williams was the 817th murderer executed in the
United States since 1976.

A jury convicted him of raping, torturing and mutilating a teenager, Karon
Pierce. A Jackson County jury sent Williams to death row.

Williams, 51 at the time of his execution by lethal injection, refused to
eat or make any telephone calls that day, according to reports from
eyewitnesses. It took him 12 minutes to die, once officials injected him
with the poison.

But Mississippi may execute John Nixon Sr. before the end of the year.

On Monday the Mississippi Supreme Court on Monday set a Dec. 14 execution
date for Nixon Sr. convicted in a 1985 murder-for-hire case.

The 5th U.S. Circuit Court of Appeals had earlier denied Nixon's claims
that his lawyer didn't do a good job and that his Rankin County jury
shouldn't have been told about a previous rape conviction.

Nixon, a one-time Utica auto mechanic, was convicted of capital murder in
the Jan. 2, 1985, killing of Virginia Tucker, 45, in her Brandon home.

The victim's husband, Thomas, was wounded and identified Nixon as the
attacker.

Tucker's ex-husband, Elester Joseph Ponthieux of Raymond, is serving a
life sentence for hiring Nixon.

2 of Nixon's sons and a friend were also convicted in the killing.

(source: The Greenwood Commonwealth)






CONNECTICUT:

On Day Of Planned Execution, Room For Hope


Robert Nave was a precocious kid. At 14, he watched the furor surrounding
the 1977 Utah execution of convicted murderer Gary Gilmore. The year
before, the Supreme Court had validated state laws regarding the death
penalty, effectively ending a 10-year moratorium on state-sanctioned
executions.

At the time, Gilmore's case was a cause clbre. The career criminal refused
to appeal; the American Civil Liberties Union and the NAACP took up his
case. Norman Mailer's treatment of Gilmore's life and death in "The
Executioner's Song" won the 1980 Pulitzer Prize for fiction. A movie
followed.

But for Nave, a savvy teenager, one message rose above the chattering.

"I grew up during Vietnam, and wondering what day my brother would get
drafted," said Nave, now a teacher. "After Vietnam, I had a renewed sense
of hope for this country, and then I heard about this execution - I guess
I was a strange little kid - and I was appalled."

Gilmore's death was the midwife for the birth of Nave as a death penalty
abolitionist. Tonight, he'll speak to a college class in Hartford.

Today, the state of Virginia was supposed to put to death this nation's
1,000th prisoner since the reinstitution of capital punishment, but on
Tuesday, Gov. Mark Warner granted clemency to the prisoner, Robin Lovitt,
42, who was convicted of fatally stabbing a man with scissors during a
1998 robbery. Earlier, a court clerk had destroyed evidence, including the
scissors. One attorney who worked to overturn the sentence is none other
than Kenneth Starr of the infamous "Starr Report."

"The Robin Lovitt case contains everything that's wrong with the death
penalty," said Nave. "The governor should be commended for erring on the
side of life, something our President seems to espouse but not practice."

The commemoration will continue as planned, Nave said. Other executions
are planned in the next few days.

When people say they support the death penalty, the details of the actions
for which the prisoner is convicted are always part of the discussion.
Lovitt's purported scissors. Gilmore's remorseless firing of a gun.
Michael Ross' brutal attacks on women.

But that's not the point, is it? One, the courts don't always get it right
(see above, the Lovitt case). Two, focusing on the brutality of a crime
takes attention from where it ought to be.

"We have thousands of people in the state who've been murdered, yet we've
focused on the actions of individuals while denying services to the
thousands of victims," said Nave. "We shift the focus from the victims" -
the survivors - "to the perpetrator of the crime. What needs to be talked
about is collateral damage."

That includes - but is not limited to - the damage inflicted on the
families during the drawn-out legal process and the psychic damage
state-sanctioned executions does to the rest of us. Since Gilmore, the
United States has executed an average of one prisoner every 10 days, with
Texas leading the charge at 355, according to that state's Department of
Criminal Justice. That department's website includes the prisoner
information and their last, sad statements.

Besides Nave's speech (he also spoke earlier this month at the State
Capitol), anti-death-penalty events are planned statewide. Along with
others, Center Church in Hartford will ring its bells at 6 p.m. to protest
state-sanctioned murder. Dick Sherlock, senior minister there, said enough
members want to abolish the death penalty that ringing the bell is
appropriate.

Beyond the emotions of the cause, Sherlock says the question one has to
ask is how is it proper for a society to kill when it is against the law
to kill?

Beyond Lovitt, there is room for hope. Gov. Arnold Schwarzenegger has
agreed to meet with the legal team of Stanley "Tookie" Williams,
co-founder of the street gang Los Angeles Crips, who is scheduled to be
killed by lethal injection in mid-December. Nationally, death sentences
have dropped since the late '90s, says the Death Penalty Information
Center. Maybe - hopefully - we are losing the stomach for it.

(source: Hartford Courant)

********************

Death penalty protest scheduled in CT


The debate over capital punishment is sparking controversy across the
country on Wednesday.

America's 1000th execution was scheduled to happen, but Virginia Governor
Mark Warner has decided to spare the life of a convicted killer, commuting
his sentence to life in prison

Despite that last minute decision, death-penalty opponents are speaking
out across America and in Connecticut, and some polling numbers show those
protestors may have growing support.

Convicted killer Robin Lovitt was set to die tonight by lethal injection
in Virginia before the governor stepped in. Virginia is one of the most
active death penalty states with 94 executions since the Supreme Court
reinstated the death penalty in 1976.

During Warner's 4 years in office, 11 men have been executed. This is the
1st time the Democrat has granted clemency to a death row inmate.

Here in Connecticut Michael Ross became the 1st person to be executed in
New England in 50 years when he died by lethal injection in May.

Gov. Jodi Rell refused to get involved in that case, saying she'd allow
the court-ordered penalty to be carried out.

Across the country there are signs that opposition to the death penalty
has grown. While most Americans continue to favor capital punishment,
polling shows the number of people who say they're against executions has
gone up from 13 to 30 percent over the last 10 years.

There's a speech set for the University of Hartford at 5 p.m. tonight and
50 churches plan to toll their bells at 6. Also at 6 a rally will be held
at the intersection of Elm Street and Broadway in New Haven.

(source: WFSB News)






OHIO:

Court upholds death sentence for college student slaying


In Columbus,the Ohio Supreme Court on Wednesday upheld the death sentence
and conviction of a man for killing a college student in a crime that
generated attention over the cost to prosecute and defend death penalty
cases in small counties.

In the 6-1 ruling, the court rejected several arguments by attorneys for
Gregory McKnight, who shot Emily Murray, 20, of Cold Spring, N.Y., to
death in November 2000 in his trailer in southeast Ohio.

Vinton County Judge Jeffrey Simmons at first threw out the capital charges
against McKnight, saying his right to due process could be harmed because
the small county might not be able to afford an adequate defense. Simmons
reversed his decision after prosecutors and the state objected. The state
and a grant made up about half of the county's roughly $100,000 costs.

McKnight's 2002 trial led to an Associated Press study this year of
inconsistencies in how the death penalty is applied in Ohio.

The AP study found considerable variation among Ohio's 88 counties in how
many capital charges result in death sentences. It also found that
offenders facing a death penalty charge for killing a white person were
twice as likely to go to death row than if they had killed a black victim.
McKnight is black; Murray was white.

In McKnight's case, the court rejected claims that police illegally
searched his trailer after finding the missing student's car parked there
and that the judge erred by not moving the trial because of extensive
publicity.

The defense argued the trial was tainted because attorneys twice noted
that jurors appeared to be sleeping, but the justices said there was no
proof they were sleeping or evidence of what testimony they might have
missed.

Murray, a student at Kenyon College, drove McKnight to the trailer in
Vinton County from the restaurant where they both worked near the campus
in Gambier.

Her body was found wrapped in carpet in McKnight's trailer near the
village of Ray on Dec. 9, 2000, more than a month after she disappared.

After finding her body, police found the bones of a friend of McKnight,
Gregory Julious, 20, of Chillicothe, whose body had been dismembered and
burned 5 months earlier, on the property. McKnight was sentenced to life
in prison for that killing.

Justice Paul Pfeifer voted against a death sentence, saying there wasn't
enough evidence to justify a capital punishment case.

"There is no evidence beyond a reasonable doubt that McKnight kidnapped
Murray or that he stole her car," Pfeifer wrote. "Based on the evidence in
the record, it is as likely that Murray voluntarily drove McKnight home
and voluntarily entered his home."

(source: Associated Press)

********************

Cincinnati killer's deathbed apology doesn't ring true for victims' family


It started and ended with a drug needle.

John R. Hicks, 49, of Cincinnati, died by an injection of drugs yesterday.
20 years earlier, a crazed hunger for crack cocaine drove him to kill
Brandy Green, his 5-year-old stepdaughter, and Maxine Armstrong, 56, his
mother-in-law.

"It began with a syringe in my arm and it's ending with a needle in my
arm," Hicks said while strapped to the lethal injection table at the
Southern Ohio Correctional Facility near Lucasville. "It's come full
circle. I realize that."

As the drugs flowed, Hicks appeared to say, "Glory hallelujah." He laughed
and said, "Yes, thank you," then was silent and his eyes closed. He was
pronounced dead at 10:20 a.m.

Members of his victims' families who watched Hicks' execution said
afterward that they did not believe he was truly sorry for the lives he
took.

"He showed no real remorse," said Douglas Hughes, Armstrong's son-inlaw.

"He never once apologized to the family and never asked forgiveness. At
one point, he was actually laughing."

But Hughes said Hicks' execution will bring closure. "The family can move
on."

Hicks was the 4th Ohioan executed this year and the 19th since the state
resumed capital punishment in 1999. He was the 999th person to die in the
U.S. since the death penalty was reinstated in 1977.

The execution proceeded after the U.S. Supreme Court said shortly after 9
a.m. that it would not consider the condemned man's last-ditch appeal. The
U.S. 6th Circuit Court of Appeals turned down an appeal Monday, and Gov.
Bob Taft refused to grant clemency, sealing Hicks' fate.

Hicks contended he was under "cocaine psychosis" on Aug. 2, 1985, when he
strangled Armstrong and stole $200 to $300 from her Cincinnati apartment.
He used the money to buy more drugs, then returned 3 hours later to kill
Brandy, whom he considered a witness even though she was in the bedroom
sleeping when her grandmother was murdered.

He first tried to smother the sleeping girl with a pillow, but when she
struggled he used duct tape to seal her mouth and nose.

To cover his crime, Hicks tried to dismember his mother-in-law in the
bathtub using a kitchen knife. He abandoned that, however, went home and
had sex with his wife. He later stole her car and fled to Knoxville, Tenn.
2 days later, he turned himself in and confessed to his crimes.

After entering the death chamber yesterday, Hicks asked for his eyeglasses
so he could look to his left where members of his victims" families were
seated in a viewing area separated by glass.

"I know it has been 20 years that y'all have felt pain and hurt. But each
day y'all endured that pain, I did, too. I cared for and loved Maxine and
Brandy.

"I say I am sorry even though it may sound like hollow words."

Marc D. Mezibov, one of his attorneys, said later that Hicks was a changed
man who realized the horror of what he had done within 24 hours - and
regretted it for 20 years.

He called him a "thoughtful, articulate and caring individual."

Prison officials said Hicks spent his last night talking on the phone with
family members, reading the Bible and listening to music.

(source: Columbus Dispatch)

*******************

Hicks' death reignites debate


John Hicks was put to death Tuesday for the 1985 murder of 5-year-old
Brandy Green, but it didn't come too soon for Brandy's uncle.

"20 years did nothing to change the way he felt about taking her life,"
Douglas Hughes said of Hicks moments after he was declared dead.

But for Hicks' attorney, Cincinnatian Marc Mezibov, the execution was "a
senseless killing" that shouldn't have happened.

"It's easier to condemn a man than it is to understand him," Mezibov said.
Those 2 attitudes could neatly summarize the opinions of Americans about
the death penalty, a practice that has had the blessing of the courts and
the government since a U.S. Supreme Court ruling in 1976.

Hicks was the 999th person to be put to death since that ruling. He was
convicted in 1986 for the murder of Brandy and her grandmother, Hicks'
mother-in-law, 56-year-old Maxine Armstrong, at her Walnut Hills
apartment.

The 1,000th execution is now scheduled for Friday in North Carolina, where
Kenneth Lee Boyd is slated to die for killing his estranged wife and her
father.

The approach of that milestone has prompted further reflection about
capital punishment among Americans, said Richard Dieter, executive
director of the Death Penalty Information Center in Washington, D.C.

"It comes at a time when the number of people on death row is shrinking,
the number of executions is down, and public support for the death penalty
is down," Dieter said.

A Gallup poll released in 2004 found that public support for the death
penalty has shrunk since the early 1990s, although a large majority of
Americans still favor it.

But that survey also found that only 35 percent of Americans believed the
death penalty was a deterrent to murder, down from 60 % in the mid-1980s.
"People do recognize that the death penalty has been exposed with flaws,"
Dieter said.

But advocates of the death penalty argue that its opponents are ignoring
the real victims.

"Since 1999 we've had 100,000 innocent people murdered in the U.S., but
nobody is planning on commemorating all those people killed," said Michael
Paranzino, president of Throw Away the Key, a group that supports the
death penalty.

Hughes was one of three relatives of Brandy who witnessed Hicks'
execution. Hughes said the death helped him to deal with the loss of 20
years ago. "It brings closure," he said.

He said he was disappointed with Hicks' deathbed statement.

"He showed no real remorse," he said. "He never once apologized to the
family. He never asked for forgiveness."

Before he died, Hicks said, "I know it's been 20 years of pain and hurt,
but during those 20 years I suffered, too. I cared and I loved, too, for
Maxine and Brandy."

"God has forgiven me," he said. "I'm sorry and I wish I could bring them
back."

Hicks, whose quest for drug money in 1985 led to the murders, then said,
"It began with a syringe in my arm and this day is ending with a needle in
my arm. It's come full circle."

He thanked his attorneys and singled out 4 other death row inmates to
"hang in there and stay strong."

Then he said, "Take care, 'cause I'm coming home."

With that, the lethal drugs began to flow. As they did, he shook his head
and said, "Lord, hallelujah."

He laughed, smiled and said, "Yes, thank you."

Then he fell silent.

Warden Edwin Voorhies Jr. declared the time of death to be 10:20 a.m.
Mezibov said Hicks had changed much over the years. He called Hicks "a
thoughtful, articulate and caring individual."

"The John Hicks that committed these offenses is not the same John Hicks
that was lying on the gurney today," he said.

Mezibov said "a cocaine psychosis" was to blame for the murders, which
included a partial dismemberment of Mrs. Armstrong.

Hughes disagreed. It was Hicks' "direct disregard for human life that was
guiding him, not cocaine psychosis," he said.

(source: Cincinnati Post)