Good Points from Pat Leahy
I thought one Senate Democrat made a couple of good points during the Roberts confirmation hearings: Pat Leahy. Sen. Leahy had some meaningful things to say about the death penalty. And no, this isn’t satire, and there is no punch line.
First, he referenced the conflict between the “Rule of Four” (it takes four Justices to grant certiorari to hear an appeal in the Supreme Court) and the rule that five Justices must vote to grant a stay of execution. It has happened that men have been executed while their appeals have been accepted by (and pending before) the Supreme Court, because four Justices voted to hear the appeal, but only those same four voted for a stay of execution. Judge Roberts seemed surprised by this fact (he shouldn’t have been — it’s common knowledge among Court watchers), and said that he would be inclined to provide the fifth vote for a stay in such situations, when applicable. I think that’s the right answer.
Second, Sen. Leahy referenced memos written by Judge Roberts suggesting that the system operates well to exonerate the innocent. Sen. Leahy noted that many of the innocent people freed from Death Row have been exonerated by activists, not by the legal system. Another good point.
These are both genuine issues, and I thought it was good that they got an airing during the hearings.
If we’re going to quibble with Roberts’ answer, I would argue that the legal system is passive and, as such, ‘it’ doesn’t do anything on its own.
You and Leahy are right in that it did take activists to exonerate the innocent – but all the activists in the world are useless without a legal system such as ours that allows them to accomplish what they have.
So in that sense, I would say that Roberts was quite accurate with his view that the system operates well.
steve sturm (e37e4c) — 9/19/2005 @ 7:47 amThere are no innocents on death row- only people not guilty of that specific charge.
[Clam: Not only is that an unconvincing argument, it’s also likely false. Did you ever read Adams v. Texas (the book)? — P]
Angry Clam (fa7fff) — 9/19/2005 @ 7:59 amNot to minimize the plight of someone on death row innocent of the specific charge, but it reminds me of a person who told me he was incarcerated for a bank robbery that he did not commit, but he had no complaints, as he was planning one with friends at the time they were arrested!! He philosophically said, “Who knows, maybe I would have been killed, or killed somebody”.
MD in Philly (b3202e) — 9/19/2005 @ 9:12 amThat might be true of that guy, but there are others who weren’t guilty of anything.
Patterico (4c8f96) — 9/19/2005 @ 12:10 pm#2 – “likely false” is sugarcoating it. It’s wrong.
[Well, I don’t know it for an absolute certainty, but I’d place the likelihood at something very close to absolute certainty. — P]
#3 –
Actually, that would be minimizing it.
People sit on death row with legitimate appeals and significant new exculpatory evidence out there, and we fry them, and you don’t think there’s anything wrong with that?
Not to be simple-minded and overlook the legal nuances, but how the f— would you feel if that was you or someone you loved, or even knew? How would you feel about the smirking peanut gallery saying “well, he was guilty of something, that’s for sure.”
You’d understand, right?
biwah (f5ca22) — 9/19/2005 @ 2:43 pmNot that that we should be basing policy on how anyone feels, but to the extent that we should, I think it’s worth knowing what that “something” is. I’d hate to see a wrongly convicted murderer fry if the worst crime he actually committed was minor shoplifting, but I won’t lose any sleep over the possibility that some thug might erroneously end up frying over the one murder he didn’t really commit rather than any of the others, which he did.
Xrlq (428dfd) — 9/19/2005 @ 5:51 pm“There are no innocents on death row- only people not guilty of that specific charge”
Hell, there ain’t no innocents outside of Eden!
actus (5b2f21) — 9/19/2005 @ 6:06 pmI’d hate to see a wrongly convicted murderer fry if the worst crime he actually committed was minor shoplifting, but I won’t lose any sleep over the possibility that some thug might erroneously end up frying over the one murder he didn’t really commit rather than any of the others, which he did.
I think that would be an extremely rare situation.
Patterico (4e4b70) — 9/19/2005 @ 7:44 pmI don’t. Do you really think it is extremely rare for a death row inmate to have killed anyone besides the individual whose murder has him on death row?
Xrlq (428dfd) — 9/19/2005 @ 7:53 pm“Do you really think it is extremely rare for a death row inmate to have killed anyone besides the individual whose murder has him on death row?”
Well, since what we know about the exonerated is that they did not commit the 1 murder we all thought he did, it looks like the obvious leap is to imagine he committed others.
actus (5b2f21) — 9/19/2005 @ 7:58 pmDo you really think it is extremely rare for a death row inmate to have killed anyone besides the individual whose murder has him on death row?
That’s not the pool I’m looking at. The pool I’m looking at is the folks who didn’t belong there in the first place, because they were innocent of the crime that put them there.
I bet there’s almost no innocents there with *no* criminal record, but probably most of the innocents have not committed other murders.
Patterico (4e4b70) — 9/19/2005 @ 7:59 pmLet me clarify. My comment was an aside in regard to a specific person who had an unexpectedly wise perspective on his specific situation.
As a non-lawyer, I do not like or want to accept the idea that we have a “legal system”, not a “justice system”. There is great frustration with the idea that wicked people do not get convicted, or are given lenient sentences and paroled too soon simply to cause more crime, along with the concern that innocent people are convicted.
I think Patterico has discussed previously something I would be in favor of, that capital punishment needs to meet a higher standard than “beyond a reasonable doubt”. Essentially murders which are obvious in all respects, often mass murderers or other “outlandish” situations.
MD in Philly (b3202e) — 9/19/2005 @ 8:00 pmI must say, the idea of a prosecutor being concerned about the innocent not being falsely imprisoned sounds like what I would like in a justice system, people concerned primarily with finding out the truth, not winning an adversarial contest. But that calls into question what about the defense attorney trying to get an acquittal by out-lawyering the prosecution for someone you think is guilty.
MD in Philly (b3202e) — 9/19/2005 @ 8:07 pmWe have a different function than defense attorneys do. They owe their primary duty to their clients. It’s an important function and I don’t mean to denigrate it by saying that. But we prosecutors owe our allegiance to justice. It’s very important for us to make sure innocent people aren’t being prosecuted; it’s not just about the convictions.
Patterico (4e4b70) — 9/19/2005 @ 11:34 pmI appreciate your comment and taking your time to do so. Along with once being on a jury, I once was a witness in a criminal trial. I watched the mugging happen, called 911 from my cell, and left the scene in order to go around the block when one of the two perpetrators approached my car threatening me. The police were assisting the injured person, and around another block they had captured the defendents (record response for Police in N. Philly for defendants without a gun).
The defense attorney argued that the defendent was helping the person “who had fallen down” and was “trying to wave me down to help” (with a brick). The defendant entered an “X” on court papers as he couldn’t sign his signature (he was in his 30’s). I thought the client’s interests would have been better served getting him sentenced to a light security place to get his GED. Maybe such places don’t exist, or that’s not part of the job of the defense attorney, or just not how that attorney saw it.
Re the previous small thread about the OJ trial, (as well as my own experiences) it seems to me that a good defense attorney can get people confused enough so they don’t know if the sky is blue or light blue they’ve done their job. That may be unfair, but if the shoe fits…
MD in Philly (b3202e) — 9/20/2005 @ 11:06 am“But we prosecutors owe our allegiance to justice.” Give me a break. Prosecutors and police regularly indulge in “testilying” in order to convict at all costs.
The last time I had to do jury duty I was excused from the panel. I told the judge that I had no faith in the “justice” system and would be unable to find anybody guilty, given the widely reported lying, extortion, and other tricks by prosecutors and police. What I find especially reprehensible is the practice of threatening a suspect with decades of prison if he insists on going to trial. The pressure and coercion that prosecutors regularly employ in order to force guilty pleas is nothing less than torture, albeit psychological instead of physical. And such torture is legal, imagine. The system is corrupt to the core and does not deserve the support of honest people.
Odysseus160 (2aa7ed) — 9/20/2005 @ 11:15 amOdysseus160,
MD in Philly (b3202e) — 9/20/2005 @ 11:21 amIf you believe that then you must agree that the police and prosecutors must be very bad then at what they do, with so many criminals still walking around.
MD: You mean, other than the 2.1 million people already in American jails and prisons? The fact that there are more people incarcerated in the United States than in any other country on earth, and the fact that the U.S. incarceration rate is higher than that of any other country, including Inner Mongolia or Zimbabwe, leaves only one conclusion: Americans are the most wicked people on the planet. Otherwise, why would our justice-loving prosecutors ram so many in prison?
It’s not that the prosecutors and the pigs are “bad.” On the contrary, they are “good,” very good at what they do. For your education, evidently remiss in certain areas, I submit the following:
http://www.post-gazette.com/win/
(An ten-part series named “Win at All Costs.” Perhaps after you have read it we can communicate again …)
Odysseus160 (2aa7ed) — 9/20/2005 @ 12:03 pmWhen children are killed by sexual predators who have been released and others shot 100 ft from my house by some thug who was shooting at the same guy 1 year ago, I stand by my statement.
If the US incarceration rate is the highest in the world it is because people don’t go “missing” like they do in other countries. I am sure our incarceration rate was higher than Iraq under saddam, saddam knew that mass graves were cheaper and easier than prisons.
No more discussion.
MD in Philly (b3202e) — 9/20/2005 @ 8:23 pmOh, so *that* is why the incarceration rate is so high. Because no one goes missing. I was wondering. Having lived in several Western countries and speaking their languages, I don’t seem to recall anybody going missing, and few people were in prison. And “no more discussion” means what, exactly? That you are “right?”
You have pretty low expectations when you compare America, the Shining City on the Hill, with Iraq under Saddam Hussein. But perhaps your comparison is apt, fitting with the new realities of 9/11, the Afghanistan and Iraq wars, and Hurricane Katrina. Too bad, because America was once compared to the best, not the worst.
Odysseus160 (987a0f) — 9/20/2005 @ 8:37 pmActually, that’s why it’s such a dumb idea to compare countries’ incarceration rates while pretending it means something. If we did a perfect job of apprehending, trying and convicting every serious criminal in the country, our incarceration rate would be higher still.
Xrlq (428dfd) — 9/20/2005 @ 8:49 pmThat’s what I wrote, Xrlq. We Americans are without a doubt the most wicked people on the planet. And to imagine, the 2.1 million in jails and prisons, that’s not all, oh no, that’s not all, as the Cat in the Hat used to say. Untold others lurk in the streets, behind curtains, and on web sites, ready to pounce on the unwary.
Why are we Americans like that, Xrlq? How can we bear the thought that folks such as, for example, the French with all their immorality, are less wicked than we are? Even countries we normally point to with disdain, such as China, seem to be less wicked considering their number of (undisappeared) prisoners. Clearly, American Exceptionalism strikes again. We are exceptional. Exceptionally wicked, that is. Or it may be because not enough people disappear, as was suggested by someone, I don’t know …
Odysseus160 (987a0f) — 9/20/2005 @ 9:26 pmI’d be interested to know how many other countries have thousands of armed gang members running around. If such countries have as many armed gang members, but their incarceration rates are lower than ours, then I’d venture to say they’re not very safe countries.
I don’t think France has much of a gang problem, but I could be wrong . . .
Patterico (4e4b70) — 9/20/2005 @ 9:35 pm“No more discussion”, meant I was not going to continue a discussion when it is impossible to reason. Odysseus160, you start out trying to say that the problem is a cruel and corrupt police/prosecution system, then you morph into essentially saying (without saying it) that the problem is that we have so many in jail [because they deserve to be there] because we are such a wicked people. My comparison to Hussein was obviously a hyperbole (but true) dealing with your original point about corrupt police, not about a wicked society. It could easily be argued that the wickedness of society and incarceration rate do not necessarily have any correlation. (A really wicked society could have no incarceration. You are either a dead thug or a thug on the loose.)
MD in Philly (b3202e) — 9/21/2005 @ 3:57 amMD: I assume you don’t agree that Americans are the most wicked people in the world. You might even believe that we are no worse than any other nation, right? But then, if we are not the most wicked, why do we have more prisoners than any other country? The only alternate explanation is that while we are no more wicked than anybody else, our government is. It’s either the people’s fault or the government’s.
Odysseus160 (987a0f) — 9/21/2005 @ 6:14 amI think the differences are 1) our “war on drugs” and 2) the proliferation of armed and dangerous gang members. One can easily quarrel with the former, but no rational person can quarrel with imprisoning the latter when they commit crimes serious enough to merit a prison term.
Patterico (4e4b70) — 9/21/2005 @ 6:35 amPatterico: I agree. It’s the rotten, shitty, and moralistic war on drugs that has spiked the prison population (I was getting around to that, after establishing that Americans are no more wicked than any other people, of course.) Needless to say, violent criminals belong in prison, for our protection.
The war on drugs, combined with the official crimes and malfeasance detailed in the article series “Win at All Costs” (link above) has created a prison state in America, one that should be fought “at all costs.”
Odysseus160 (2aa7ed) — 9/21/2005 @ 10:35 amI agree w/ P. There is no point quarreling over what is the one right reason we have such a high incarceration rate. There are many factors and these two, reflecting both (1) laws and (2) behavior, are major:
This is where some sprightly individual poses the question: any chance the two are connected? they don’t make assault weapons and automatic pistols in the ghetto. how do they get there? where does the money come from? why go to war over a handful of desolate street corners? why can’t any of these adolescents get jobs? The answers aren’t simple, but obviously the decision to go balls to the wall on all drugs, at the street level, is related to the proliferation of gangs.
19 – MD – Our chances at having a really effective sex offender incarceration/monitoring system are crippled by political dysfunction more than anything. It is too political risky to say, “these guys are the worst, and we need to give judges & parole boards the stiffest guidelines” – why? – because that would actually making criteria that exclude less serious offenders and commit to rehabilitating them – which is effective with good screening.
But “on the ground,” you’re monitoring every “sex offender” under the sun, including the teenage father whose girlfriend was a little bit younger, the indecent exposures, the juveniles, anything consensual, etc… And so the system is half-assed, but the politicians are insulated.
In short, the failure to punish is equated with a stamp of approval on a particular behavior, which leads to withering political sniping. Therefore, the buck stops nowhere, and a lot of violent guys who are messed in the head for life (and are the savviest) can sneak through. I am speaking for the states I know about, and CA is not one of those.
Similar failure to distinguish what is really criminal where drugs are concerned. Similar fear-driven political dynamic.
To (over)simplify, the difference between “that behavior is not kosher” has to be distinguished from “you are going to be deprived any chance at a decent life because of this behavior.” That’s not soft on crime. It’s a rigorous definition of crime, and one we unfortunately don’t have the collective stomach to make.
There is a logical connection with the criticism of liberalism that the government’s “good idea” (re social engineering/new deal programs) does not amount to national necessity, and thus does not justify the taking of property, whether through taxes, eminent domain, or otherwise. Similarly, we need to think twice before deeming every “bad idea” a crime, particularly a felony or an adjudication as a sex offender. So undiscriminating tough-on-crime conservatives betray their own philosphy somewhat.
biwah (f5ca22) — 9/21/2005 @ 10:44 amPatterico – Responding to some of the earlier posts what would happen to a prosecutor who had a pattern of refusing to prosecute where he had a strong feeling (or proof) that an officer was going to lie on the stand?
Are there such prosecutors?
Will they be congratulated for their conscientiousness and low charging/conviction rate?
Sometimes you can do the right thing, but in an adversarial system and high political pressure, I thinnk it’s harder and rarer than you acknowledge in your post.
That said, it is good to know that you approach your role as one promoting justice.
And could there be a better opportunity than this to share your goodies on the O.J. trial?
biwah (f5ca22) — 9/21/2005 @ 10:54 amI think there is an obsession with crime in America, but in most cases the fears are greatly exaggerated. Who were the greatest murderers of the 20th Century? Who usually are the greatest murderers? Governments, that’s who. Ordinary criminals are the merest pikers compared to a government with a willing police apparatus. I think the record for an American serial killer was Henry Lee Lucas’ 57 victims. Compare that to Hitler, Stalin, or Pol Pot! I think nations might be better off being ruled by criminals-for-gain, rather than ideologues. The death toll would be lower.
Odysseus160 (987a0f) — 9/21/2005 @ 7:24 pmI think nations would be best off being governed by politicians willing to make key distinctions on what policies truly promote public safety, instead on how to milk the public’s capacity for fear to garner knee-jerk votes and funnel more money and lives into the prison-industrial complex.
Fear-mongering is a method utilized by both criminals for gain and ideologues. I don’t know why you are assuming that criminals for gain have a rational and limited self-interest that would produce a “market check” on the death toll.
biwah (f5ca22) — 9/22/2005 @ 6:48 amBecause I believe criminals-for-gain would be more interested in enslaving people in order to benefit from their labors, rather than killing them for reasons of cultural or religious “impurity,” such as being Jews, for example.
Odysseus160 (2aa7ed) — 9/22/2005 @ 10:27 amah, the all-important distinction between enslavement and killing.
biwah (f5ca22) — 9/22/2005 @ 11:25 am