Monday, October 31, 2016

Ballot-Box Tests on Death Penalty in States

      Public support for the death penalty has fallen to its lowest level in decades as measured not only in public opinion polls but also in the number of executions and newly imposed death sentences. And yet, if public opinion polls are reliable indicators, Californians are poised to reject a ballot measure to abolish the death penalty for the second time in four years and Nebraskans are about to vote to override the legislature’s decision in May 2015 to abolish capital punishment in their state.
      Harvard alumni might be forgiven for being surprised at these predictions after having received copies of Harvard magazine this month with a cover story provocatively entitled, “The End of the Death Penalty?” The story by the veteran legal affairs journalist Lincoln Caplan details at length the growing evidence that what he calls the 40-year-old “experiment” in Supreme Court-regulated capital punishment has failed and that more and more Americans are coming around to that view.
      Still, death penalty supporters outnumber opponents when asked in surveys whether they favor death sentences for persons convicted of murder. A Gallup Organization poll released in October found that 60 percent of those surveyed said yes compared to 37 percent who said no. That was the lowest support for the death penalty Gallup had found since the 66 percent figure recorded in 1976. A month earlier, the Pew Research Center reported a narrower margin: 49 percent in favor and 42 percent opposed. For Pew, that was the lowest figure since it began surveys on the issue in 1995.
      “We’re in the midst of a long-term political climate change on the death penalty,” says Robert Dunham, executive director of the Washington-based Death Penalty Information Center. But Dunham cautions against expecting developments on the issue to unfold in a straight line. “As with all forms of climate change, physical or metaphorical, there are extreme storms in both directions,” he says.
      The center is officially neutral on the death penalty and instead serves as an invaluable and all-but-authoritative resource on capital punishment as actually administered in the United States. By underscoring the wide variations in death penalty policy from state to state, however, the center helps opponents make the case that capital punishment is applied as arbitrarily and freakishly as it was before the Supreme Court’s 1972 decision to outlaw the death penalty as then administered.
      Californians actually have two choices on their ballots on what to do with the death penalty. Proposition 62 would abolish the death penalty for capital murder in favor of life imprisonment without eligibility for parole as the maximum sentence. Proposition 66, a ballot measure pushed by prosecutors, law enforcement, and conservative groups, would seek to speed up judicial review of death penalty cases by setting a five-year deadline for state court post-conviction challenges after regular appeals.
      If enacted, Proposition 62 would reduce the nation’s death row population by one-fourth in one fell swoop. California currently has 741 inmates awaiting execution, about one-fourth of the total number of 2,905 on death row in 32 states or in federal or military prisons.
      Despite that number, California lags far behind other death penalty states in actual executions. California has executed 13 inmates since the Supreme Court’s decision in 1976 to uphold revamped capital punishment laws—a tiny fraction of the 538 executions carried out in Texas and fewer than 15 other states with smaller populations. Death penalty supporters blame the lag on the California and federal court systems. Besides the five-year deadline, Proposition 66 is also aimed at giving trial-level judges instead of the state’s supreme court the responsibility for ruling on death row inmates’ state habeas corpus petitions.
      With one exception, polls in California indicate that Proposition 62 will fail, just as a similar proposition was defeated by 52 percent of the state’s voters in 1962. The respected Field Poll found 48 percent in favor and 37 percent opposed in late October, but four other polls found Proposition 62 averaging just over 50 percent in favor. Proposition 66 was ahead 51 percent to 20 percent in a poll in early October by Sacramento State University, but with nearly 30 percent undecided.
      In Nebraska, supporters of capital punishment qualified a referendum on the legislature’s decision, overriding a gubernatorial veto, to abolish the death penalty. Nebraska has executed only three people since capital punishment was restored in 1976. A survey in August found 47.8 percent of likely voters in favor of restoring the death penalty and another 10.5 percent likely to vote that way too.
      In jury rooms, however, Americans are less and less persuaded. The number of new death sentences imposed in the United States fell in 2015 to 49, according to the death penalty center, barely one-sixth of the 295 imposed in 1998. Meanwhile, the number of executions in 2015 fell to 28, the lowest number since 1991, and is on pace to fall even lower in 2016, with only 17 executions so far this year.
      At the Supreme Court, Justice Stephen G. Breyer argued in a dissenting opinion last year that the death penalty may be unconstitutional. He cited the dozens of death row exonerations in recent years as proof of its unreliability and the inevitable delays in judicial review as proof of its failure as either deterrent or retribution. Those doubts are gaining ground among the general public, but voters in two death-penalty battleground states apparently are not there yet.

Sunday, October 23, 2016

On the Web, Cults of Personality for Ginsburg, Thomas

      Welcome to the brave new world of Supreme Court fandom! Two of the current justices, one from each of the ideological blocs, now have web sites created by ardent fans to celebrate their lives, times, and jurisprudence.
      Ruth Bader Ginsburg has her Notorious R.B.G. tumblr, a site created by the then-law student Shana Knizhnik as she was inspired by Ginsburg’s forceful dissent in the court’s decision in 2013 to gut the Voting Rights Act. The site is a richly illustrated, constantly updated buffet of tidbits and morsels from Ginsburg’s opinions and effusive toasts from her admirers along with links to RBG T-shirts and merchandise.
      Not to be outdone, Clarence Thomas’s fans have built two online sites: an all meat-and-potatoes site created by the Washington lawyer Mark Paoletta, a veteran of the Thomas confirmation fight; and the Justice Clarence Thomas Appreciation Page, an in-construction blog that replaces a web site previously maintained by the unidentified author.
      Each of the sites unapologetically glorifies its subject. The Notorious R.B.G. home page promises “Justice Ginsburg in all her glory.” Paoletta describes Thomas on the site’s home page as “a stalwart defender of the original meaning of the Constitution” who “has led the Court back to that all-important document.” The Thomas appreciation page includes speeches and opinions from Thomas and news articles or columns, seemingly all selected to show Thomas not only as forceful and insightful in his opinions but also as generous and approachable off the bench.
      The Thomas web site appears to be newly created, based on the 2016 copyright date at the bottom of the home page. Paoletta, who helped win Thomas’s narrow Senate confirmation as a member of the White House counsel’s office, is not identified on the site but was identified as the creator in an op-ed written for The Hill, the political website chronicler of all things Washington. Paoletta did not respond to requests for an interview for this column; an email request sent to the “contact” address for the Thomas appreciation page also went unanswered.
      Paoletta created a separate website,, to counter what he viewed as the false account of Thomas’s contentious 1991 confirmation in the HBO docudrama Confirmation that aired in the spring. The home page describes the program as “a work of fiction . . . with imaginary scenes, fictional characters, and a biased agenda. . . .”
      In his op-ed, Paoletta joins several other of Thomas’s fans in criticizing what they see as the slight to Thomas in the newly opened National Museum of African American History and Culture. Thurgood Marshall, the first African American justice, apparently gets his due as the architect of the legal fight against racial segregation. As the second black justice, however, Thomas appears only indirectly in an exhibit that includes a picture of Anita Hill, the law professor who accused Thomas of sexual harassment while she worked for him at the Equal Employment Opportunity Commission.
      The critics see an ideological bias against conservatives in the museum’s curation. Paul Mirengoff, writing for the conservative web site Power Line, goes so far as to suggest that conservatives should boycott the museum in protest. The Smithsonian’s only published reply to date has been somewhat weak. “We cannot tell every story in our inaugural exhibitions,” Linda St. Thomas, the Smithsonian’s chief spokesperson, said in an email to Christian News Service.
      Whatever slight there may be, Paoletta arguably made up for it in advance by exaggerating Thomas’s impact at the Supreme Court. Under the heading “Jurisprudence,” Paoletta lists and includes links to 23 of Thomas’s “most significant decisions.” But only one of the so-called “decisions” is actually a majority opinion written for the court. The 22 others include 11 separate concurring opinions and 11 dissents. The compilation underlines not Thomas’s influence but in fact his lack of influence because of idiosyncratic views rejected time and time again by his colleagues, including his fellow conservatives.
      Thomas wrote for all four conservatives in only one of the dissents, and the case demonstrates the oversimplified description of Thomas as committed to originalism in constitutional interpretation. The court in U.S. Term Limits v. Thornton (1995) struck down an Arkansas law imposing term limits on members of the state’s congressional delegation. For the dissenters, Thomas found authority for the measure in the Constitution’s clause authorizing states to regulate “the time, place, and manner” of congressional elections. The majority equally relied on text and original meaning to conclude that states had no authority to add to the qualifications listed in the Constitution: minimum age of 25, at least seven years of U.S. citizenship, and residence in state.
      Through omission, Notorious R.B.G. also exaggerates Ginsburg’s influence. Visitors to the site might not guess that Ginsburg has relatively few major decisions to claim as author or that her liberal colleagues have been at least as forceful as she in their dissenting opinions —  for example, Justice Stephen G. Breyer in his 2007 dissent in a school desegregation case or Justice Elena Kagan in her 2014 dissent objecting to sectarian prayers in legislative sessions.
      Supreme Court watchers who prefer footnoted law review articles might find these sites unsatisfying, but they do make the court’s work more accessible for the Internet era. Sadly, however, the idolizing puffery may make an already overly politicized court appear to be that much more partisan as partisanship rages unabated outside the Marble Palace.

Saturday, October 15, 2016

Safeguard Needed for Racism in Jury Room

      Race is different: different from any of the other categories of prejudice that lurk in our individual or collective subconscious. That is the undeniable lesson of 400 years of American history from slavery through Jim Crow to the present.
      Chief Justice John G. Roberts Jr. resisted the import of this undoubted truth, however, in a closely watched case [Oct. 11] challenging what may have been a racism-infected guilty verdict in a weak criminal case against a Mexican American defendant.
      Miguel Angelo Peña Rodriguez was convicted in 2007 of groping two teenaged sisters in a darkened bathroom at a Colorado race track. The evidence in the brief trial consisted of little more than the girls’ identification — first in a roadside “showup” and then in court. The defense lawyer challenged the identification on a variety of well recognized grounds. Peña denied the accusation and was backed up by a fellow Hispanic who said the two were together in one of the race track’s barns at the time of the offense.
      The jury deliberated for 12 hours before convicting Peña of three misdemeanor counts but acquitting him of a more serious felony charge. In juror interviews after the verdict, his lawyer gathered affidavits from two members of the jury that one of the jurors had made a number of blatantly racist statements during deliberations about Peña and his alibi witness. None of the jurors had volunteered any racial prejudices during jury selection.
      The juror, a white former law enforcement officer identified as H.C., was quoted by his fellow jurors as saying that Peña was guilty because “Mexican men take whatever they want” and “think they can do whatever they want with a woman.” Based on his experience as a law enforcement officer, H.C. said that in his former patrol area Mexicans were guilty “nine times out of ten . . . of being aggressive toward women and young girls.”
      For good measure, H.C. also rejected the alibi witness’s testimony because he was “an illegal.” In fact, the witness testified at trial that he was a legal resident of the United States.
      The evidence, however damning, collides with a rule dating back to 18th century England against impeaching a jury verdict based on deliberations inside the jury room. The Supreme Court embraced the rule in a decision in 1915, saying it was important to protect “frankness and freedom of discussion” among jurors. The court has reaffirmed the rule more recently in decisions in different contexts in 1987 and 2014. The Colorado Supreme Court applied the rule in its 4-3 decision in 2015 upholding Peña’s convictions; he had been sentenced to two years’ probation and required to register as a sex offender.
      The Supreme Court agreed to hear Peña’s appeal, which noted that 18 states allow such challenges for racial bias while Colorado is among the majority along with federal courts that do not. Civil rights groups joined in urging the court to safeguard the Sixth Amendment right to an “impartial” jury by allowing criminal defendants to challenge verdicts based on racist statements in the jury room. The Obama administration sided instead with Colorado in opposing any exceptions to the rule against impeaching a jury verdict based on evidence of “racial prejudice or on other types of bias or misconduct.”
      Representing Peña, Stanford law professor Jeffrey Fisher was only two paragraphs into his argument when Roberts jumped in with an old standby: the slippery slope problem. “What about religious bias?” Roberts asked. “Wouldn’t that come under your exception?” Fisher sought to deflect. “Religion might be viewed similarly,” he said, but he stressed that the court did not need to deal with other contexts in this case.
      Justice Samuel A. Alito Jr. echoed Roberts’ concern. “You’re not being very helpful to the court in your answers,” he said. Roberts asked later about sexual orientation. That might be treated similarly as well, Fisher said, but perhaps decided under a different balancing test.
      Liberal justices, however, jumped in to distinguish race from the hypotheticals Roberts and Alito were raising. “I always thought the most pernicious and odious discrimination in our law is based on race,” Justice Sonia Sotomayor said. Fisher readily agreed. The cases in jurisdictions that allow such challenges all focus on race or national origin, Fisher told the justices. The hypotheticals, he said, were “theoretical arguments.”
      By the end of the arguments, it seemed likely that Peña had the votes of four liberal justices to allow him a hearing to present the evidence and have a court decide whether the verdict against him was constitutionally tainted. A fifth vote on the eight-justice court would be needed from Justice Anthony M. Kennedy, who seemed troubled by the state’s arguments but less than certain. In a preview session, court watcher Tom Goldstein, publisher of SCOTUSblog, suggested that Kennedy might write a decision that allowed such challenges but only under a test “very hard” to meet.
      Roberts had a simpler answer to racial discrimination in a school desegregation case back in 2007. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote then. Jurors may bring other kinds of bias into the jury room, but those cases are no reason to back away from one limited safeguard against the racial discrimination that still pervades criminal justice in the United States.

Monday, October 10, 2016

Trump's Singular Threat to Rule of Law

      Donald J. Trump has been a singular threat to civil liberties and the rule of law almost from the beginning of his presidential campaign. The danger reached a new low in the second presidential debate last night [Oct. 9] when Trump vowed, if elected, to prosecute his campaign opponent, Hillary Rodham Clinton.
      Some of Trump’s rights-endangering campaign promises may pose a lesser danger because they are beyond a president’s power to implement. The president has no unilateral power to change libel laws, for example, nor any power to order local police to adopt unconstitutional stop-and-frisk tactics. But the president does have the power to initiate a criminal prosecution unless a hypothetical attorney general were to decline the instruction.
      With Trump’s campaign in free fall for the past two weeks, the pledge appeared to be a rehearsed tactic to sharpen his attack on Clinton’s use of a private email server while secretary of state. “If I win,” he said when the issue came up during the 90-minute debate, “I am going to instruct my attorney general to look into your situation.”
      Clinton counterattacked. “It’s just awfully good that someone with the temperament of Donald Trump is not in charge of the law in this country,” she said. Trump interrupted to shoot back: “Because you’d be in jail.”
      The threat by one major party presidential candidate to put his opponent in jail if elected has no exact historical precedent, though it recalls the shameful history of the Federalists’ use of the Sedition Act to jail their opponents in the 1790s. Trump’s handlers quickly tried to minimize the threat as “a joke,” according to spokesperson Kayleigh McEnany’s tweet that night, or “a quip,” according to campaign manager Kellyanne Conway the next morning.
      It was surely not taken as a joke, however, by the many Trump supporters who have shown up at rallies wearing “Jail the bitch” T-shirts. Republican pollster Frank Luntz was quoted as saying that the comment registered as one of Trump’s best moments in the debate in the focus group he was monitoring. And Trump himself posted the exchange on Facebook the next morning, with no indication that he was less than serious.
      Clinton has acknowledged her mistake in using a private email server while secretary of state, but the Republican-appointed, tenure-protected FBI director James Comey said the bureau’s investigation found no basis for prosecution. In a rule-of-law system, that ought to be enough, but not for Trump, who went on in last night’s debate to call his Democratic opponent a “liar” and “the Devil.”
      For emerging democracies, it is often said that the real test is not the first election, but the second. The election must be free and fair and the result accepted as such by the public. Trump had already jeopardized that second condition by repeatedly warning about the supposed risk of voter fraud and a “rigged” election, with utterly no basis in fact. He invokes this danger to summon his supporters to serve as election monitors. True voting rights advocates see a real risk of harassment or intimidation of would-be voters by the Trump ballot-watchers in the Democratic-leaning precincts likely to be targeted.
      As a private citizen, Trump has expressly used legal process as a tool of intimidation. He filed an unsuccessful libel suit against author Timothy O’Brien over his critical biography TrumpNation. In a post-mortem, Trump seemed to recognize that the suit was unlikely to succeed, but he congratulated himself for sticking O’Brien and his publisher with a big legal bill.
      As a candidate, Trump has promised to “open up our libel laws” to permit suits when newspapers “write purposely negative and horrible and false articles.” With no federal libel law at present, Trump would need to ask Congress to write one. If one were enacted, it would have to pass muster with the Supreme Court. The court’s line of First Amendment decisions beginning with New York Times v. Sullivan in 1964 requires a public official or public figure a defamatory statement was published with knowledge that it was false or with reckless disregard as to its truth or falsity. None of the current Supreme Court justices has called for reconsidering those decisions.
      As a candidate, Trump has also called for use of stop-and-frisk, citing the policies in New York City in the 1990s as an example. The Supreme Court’s line of decisions beginning with Terry v. Ohio in 1968 permit police to stop and “frisk” someone if the officer has a reasonable suspicion that the person is committing or is about to commit a crime or that the person is armed and dangerous. In a vigorously litigated case, a federal judge found that the city’s indiscriminate use of the tactic against racial minorities was unconstitutional. In the first presidential debate, Trump wrongly disputed the correct account of the ruling by the moderator, NBC’s Lester Holt.
      Trump tosses blustery rhetoric around as if a presidential candidate’s policy pronouncements are no more than click-bait tweets. In the debate, Clinton repeated her line that anyone with Trump’s temperament should not be permitted to have his hands on the nuclear codes. In like vein, no one with Trump’s reckless disregard of the rule of law should have his hands on the Constitution.

Sunday, October 2, 2016

High Court Opens New Term With Low Profile

      The Supreme Court is set to open a new season on Monday [Oct. 3], but the reviews are already coming in — and they’re not good. One after another, court watchers opened preview sessions last month bemoaning the lack of hot-button issues among the unusually small number of 29 cases accepted for review before the justices left for their summer recess. “It’s a docket with cases not as sexy as some might hope,” according to Tom Goldstein, Supreme Court advocate and founder and publisher of SCOTUSblog.
      On the other hand, the justices may prefer a low profile until after the election, according to Carolyn Shapiro, a law professor and co-director of the Supreme Court Institute at Chicago-Kent College of Law. “The chief and most of the justices may want to stay below the radar till November 9,” Shapiro remarked at a preview sponsored by the liberal American Constitution Society.
      True, the cases teed up so far include none of the hot-button issues that produced liberal rulings in the two previous terms: gay marriage, abortion rights, and affirmative action. And there are no cases yet with sharply drawn challenges to major Obama administration policies like those from the last term involving the president’s immigration policy and Obamacare, round four. Both of those produced setbacks for the administration with the eight justices divided evenly between conservative and liberal blocs.
      Still, the cases already scheduled for arguments in the October and November calendars include a significant test of the government’s power to prosecute investment bankers for passing insider tips to family members (Salman v. United States, argument Oct. 5). The city of Miami is also pressing a long-shot civil rights suit against mortgage bankers for the damages their predatory lending practices caused to minority neighborhoods in the form of rampant foreclosures and boarded-up vacant properties (Bank of America v. City of Miami, argument Nov. 8).
      The justices added eight cases in orders issued on Thursday (Sept. 29) following the so-called long conference the previous Monday. “Boring,” snorted Ian Millhiser, the pugnacious Supreme Court watcher at the progressive news site Think Progress Memo. Two of the newly added cases are mind-numbing civil procedure disputes, but the new batch includes a closely watched case that mixes rock music, pro football and the First Amendment in a dispute over how far the government can go in policing racial intolerance.
      The all Asian-American rock band who proudly call themselves “The Slants” is seeking trademark protection for the name despite the finding by the Patent and Trademark Office (PTO) that it amounts to an offensive ethnic slur. The Lanham Act, the longstanding federal trademark law, prohibits federal registration of trademarks that “disparage . . persons, living or dead, institutions, beliefs, or national symbols.” The U.S. Court of Appeals for the Federal Circuit ruled that provision unconstitutional, and the Supreme Court agreed to hear the PTO’s appeal (Lee v. Tam, argument likely in January).
      The Slants are cheered on in their case by the owner of the Washington, D.C., professional football team, whose nickname was found unregistrable because offensive to most if not all Native Americans. The government argues in both cases against any First Amendment violation by noting that the band or the team can continue to use its challenged name but without any protection against infringement of the unregistered trademark.
      Despite its supposed conservative orientation, the Roberts Court has been surprisingly favorable toward criminal defendants in recent years seeking to limit federal sentencing practices or expansive readings of federal criminal statutes. However that issue plays out in the insider trading case, the court will hear pleas in its first two weeks from two criminal defendants seeking to reverse state court convictions based on alleged constitutional violations at trial implicating important questions about racial justice.
      A black death row inmate in Texas condemned for killing his former girlfriend and her new male companion is seeking to overturn his sentence because his lawyer called an expert witness who found black defendants to pose a statistical risk of future dangerousness (Buck v. Davis, argument Oct. 5). An Hispanic defendant in Colorado is asking to reverse his sexual misconduct conviction based on evidence that a juror influentially argued during deliberations that, because of their ethnicity, neither the defendant or an alibi witness was to be believed (Peña-Rodriguez v. Colorado, argument Oct. 11).
      The court gets off to a somewhat slow start with no arguments scheduled on the traditional First Monday in October because of the Jewish holiday Rosh Hashanah and two days blank the next week because of Columbus Day and Yom Kippur. But the second week features a high-stakes patent dispute between the rival combatants in the smartphone wars: Samsung and Apple.
      Samsung is seeking to overturn the $399 million judgment that Apple won by arguing that its rival infringed its design patents on such features as the rounded corners that make it easy to slip phones into pockets. Samsung argues that Apple is entitled if at all to only the portion of its profits attributable to the infringed designs, not the total amount (Samsung Electronics v. Apple, argument Oct. 11).
      Despite the poor reviews, the court bears watching, as always. And cases still in the pipeline may add to the interest and the legal stakes before the term ends next June.