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On Protecting The Innocent, Or, Is There A Death Penalty Compromise? September 24, 2011

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect. Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…”

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan’s W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so…get to it.

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On Judicial Empathy, Or, Random Roadblocks Aren’t Annoying. Really. May 7, 2009

So a Supreme Court justice that hardly anyone noticed has announced his retirement and all of a sudden the lips of The Experts are all a-flutter with the word “Empathy”.

President Obama reports he wants his nominee to have it; and Republicans are convinced that the word is a secret code for something that eventually ends in the death of free speech, massive roundups of guns by the Secret United Nations World Police, and the Internment Of All The White People In Reeducation Camps Run By Americorps And ACORN And Gay People Who Want To Marry And Are Funded By George Soros.

It is suggested that Evil Activist Judges will trample the Constitution as they create Law out of whole cloth; and that only those who interpret the Constitution just as it was written can bring the proper attitude to the Court.

It sounds like somebody needs to come along and provide a couple of cogent thoughts about this whole empathy thing…and lucky for you, Gentle Reader, we have before us today specific examples of how the quality of empathy can express itself in Court Doctrine.

So right off the bat, a few words about how cases are interpreted by the Supreme Court are in order:

A lot of the talking heads on the tee-vee frame the Court’s job as one of basically hearing the arguments in a case, reviewing the record, and deciding whether some action of Government violates someone’s constitutional rights.

That framing ignores two huge elements of the Court’s job: resolving the conflicts between the protected rights of two groups of private citizens (for example, does the right of all citizens to have access to the “public square” for purposes of political campaigning override the right of shopping center owners to control who has access to their private property?)…and creating rulings that attempt to discern what the mood or motivation of the public might be regarding aspects of potential Court Doctrine (for example, does a particular item of pornography violate “prevailing community standards”?).

The obvious example of how all this can play out might be found in the way the Court saw things when they ruled in Plessy v Ferguson, followed later by Brown v Board of Education; in which the Supremes first ruled that “separate but equal” was just fine and then ruled it wasn’t fine after all. Lots of others will examine these cases in detail, so, instead, we shall take a different tack.

The Fourth Amendment, in requiring that searches not be “unreasonable” and that warrants be justified by probable cause, guaranteed that Justices would forever be required to interpret without clear definitions to guide them.

Let’s now examine how “empathy’ has affected those interpretations.

If you are driving north from San Diego to Los Angeles…and you’re not a Marine…you’ll be inspected by Customs and Border Protection officers manning an immigration checkpoint on I-5. It’s possible that you might be directed to a “secondary inspection” area for a search of the contents of your vehicle, based on nothing more than the hunch of the Inspector on duty.

In 1975, the Court, showing one kind of empathy, unanimously ruled that:

“The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents…”

United States v. Ortiz, 422 U.S. 891

However, Chief Justice Burger, who generally joined in the concurrences of the other Justices, had his own “empathetic” point of view:

“Like MR. JUSTICE WHITE, I can, at most, do no more than concur in the judgment. As the Fourth Amendment now has been interpreted by the Court, it seems that the Immigration and Naturalization Service is powerless to stop the tide of illegal aliens — and dangerous drugs — that daily and freely crosses our 2,000-mile southern boundary….Perhaps these decisions will be seen in perspective as but another example of a society seemingly impotent to deal with massive lawlessness.”

Amado Martinez-Fuerte, who had been arrested at the same checkpoint, probably thought that the Court would continue to see things as they had in 1975…but by 1976, the Court no longer felt as empathetic towards the concept that consent or probable cause…or even reasonable suspicion…was required for vehicle searches as they had the year before:

“To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens.”

United States v. Martinez-Fuerte, 428 U.S. 543

This ruling is particularly significant in that it allowed the checkpoint to operate under a general “warrant of inspection” (a device usually used only to allow building inspections and the like), and for the evidence obtained there to be admissible against individuals in criminal trials.

However, the plain text of the Fourth Amendment seems to take a different view, stating that:

“…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

By this time, Thurgood Marshall had left the Court (his empathy demonstrated perhaps best by the fact that in 1954 he had argued—and wonBrown v Board of Education before the Supreme Court); and the new Court ruled 7-2 in favor of the Government’s position in Martinez-Fuerte.

You’ll recall that we discussed the fact that the Court often has to determine the public mood. Here’s a very specific example:

The Court, in deciding that the immigration checkpoint was not an “unreasonable” search, felt no empathy toward the idea that being stopped every day would bother any commuter who was legally using I-5 several days a week, nor to the concept that the delay of legal commercial traffic would be bothersome. Their sole concern was that the motorist would view the checkpoint as “legitimate”:

“Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere….The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops…”

(A quick Fun Fact: the location of the checkpoint near San Clemente appears to have been chosen specifically because it allows the stopping of virtually all traffic between San Diego and Los Angeles. You might think setting up a checkpoint to stop all traffic is a bit arbitrary…and I would agree with you. The Court, obviously, did not.)

The ruling in Martinez-Fuerte also does not display empathy with the Defendants’ assertions that being ordered to “Secondary Inspection” is intrusive…even if there for no reason at all to suspect the vehicle–or even if the reason for the stop is entirely race-based:

“The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby “stigmatizing” those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals – rather than questioning the occupants of every car – tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public…

… Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry…we perceive no constitutional violation…As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol…officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.”

And with that (and a few cases to supplement the concept), the idea that the police require an actual reason to stop people and then conduct searches and seizures has gradually faded into a quaint anachronism of history.

So where does all this leave us?

Well, how about this: it leaves us more aware of the fact that there are rarely “simple” interpretations of the Constitution. Rather than just relying on the plain text of the document, the Justices, using the sense of empathy they’ve developed throughout their lives, interpret and create new law in each and every case.

It should leave us more aware that the arguments made by those who support “strict constructionists” for the Court reflect less of a desire to remain pure to the principles of the Constitution, and more a desire to advance very specific, and often radical, policies that favor Government over the People who are supposed to be its master—policies that are often based more on a sense of fear than an appreciation of the strength of the system their new policies seek to “save”.

Mr. Obama is absolutely correct in seeking a Justice with “empathy”.

Let’s just hope the one he picks has the kind of empathy that, for a change, advances civil liberties, instead of sending them to the sort of “Guantanamo Chainsaw Massacre” that Justice Scalia finds so in keeping with his sense of empathy.

Warning—commercial message ahead: I’m competing for a Netroots Nation scholarship, and I could use your support. Just head on over to the Democracy for America website, click on the “Add your support” link under “Grassroots Supporters”, and offer a word or two…and with that, thanks very much, and we return you to your regular programming.

 

On Traffic Checkpoints, Part One, Or, Freedom? That’s So…Inefficient December 2, 2008

The holidays are in full swing…or at least they are in the US…which means your days—and nights—are full of running around like crazy. There’s a million things to do, a thousand errands to run, and…are you kidding me?!

A police sobriety roadblock?
Now?

That’s right: there’s a crowd of officers all around you, there’s no way to avoid it…and even though you’ve committed no crime whatsoever, you get to talk to the police…and if they decide it’s acceptable, you may continue on your way.

How can this be legal in America?
Does it actually serve any purpose?
And what happens when the police decide to blockade your neighborhood–for your own good?

Believe it or not, it’s my job today and tomorrow to answer those questions…and beyond that, to defend the simple right of Americans to go somewhere if we feel like it, without having to explain it to the police…and in today’s discussion, I intend to set the stage through an examination of history.

Sobriety checkpoints are an effective law enforcement tool involving the stopping of vehicles or a specific sequence of vehicles, at a predetermined fixed location, to accomplish two goals: raise the public’s perception of being arrested for driving while impaired (DWI ), and detection of drivers impaired by alcohol and/or other drugs.

–National Highway Traffic Safety Administration, “Low-Staffing Sobriety Checkpoints

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

–The Fourth Amendment to the Constitution of the United States

So, you might ask, how is it that the Fourth Amendment is interpreted to allow searches that are not based upon any probable cause whatever—in fact, that aren’t directed toward any particular individual, but instead, against anyone and everyone that can be processed through a location?

Oddly enough, this whole story, you could say, starts at Customs and Border Protection’s (CBP) San Clemente Station, an immigration checkpoint located roughly 60 miles north of the Mexican Border near San Diego, California (and the home of the famous “running family” traffic signs), where all northbound traffic on the Interstate 5 Freeway is required to stop for an inspection by CBP officers.

If an officer chooses, he can order any vehicle, for any reason, or for none at all, to pull over for a “Secondary Inspection”. That inspection can lead to a search of the vehicle, and possibly the arrest of its occupants.

A Mr. Amado Martinez-Fuerte was arrested at the checkpoint, after such an inspection, for illegally transporting aliens (the two passengers in his car), and when he got to trial his attorney moved to suppress all evidence based on a Fourth Amendment claim, specifically that absent any particular probable cause, the stop and search of his vehicle were illegal. That claim was denied at trial, but upheld upon appeal to the Ninth Circuit Court of Appeals.

His claim and a case with similar context but a differing result from the Fifth Circuit were eventually consolidated and reconciled by the United States Supreme Court in 1976 in United States v. Martinez-Fuerte, 428 U.S. 543.

“The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.

And in making that assessment it is imperative that the facts be judged against an objective standard . . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction…

… This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence. ”

Terry v. Ohio, 392 U.S., at 21-22

The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol.

United States v. Ortiz, 422 U.S. 891

And with those inspiring words to guide them, the Court’s majority decided to completely ignore the text of the Fourth Amendment and established precedent and uphold the right of Government agents to search you, even if you’re not suspected of anything at all (and in fact, upholding the “inarticulate hunch” standard)…because the Court felt it was really inconvenient to have to have a reason to search people:

To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens. Such a requirement also would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.

In order to justify this line of thought, the majority adopted a line of logic that suggested that the Government had an overriding need to stop the smuggling of aliens, that this is an effective way to prevent the smuggling of aliens…and that you would find the fact that you have to be stopped and searched as you go about your day—even though you’ve done nothing wrong—so minimal of an intrusion that a warrant would be unnecessary. From the majority opinion:

While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists’ right to “free passage without [428 U.S. 543, 558] interruption,” Carroll v. United States, 267 U.S. 132, 154 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which

“`[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.'” United States v. Brignoni-Ponce, supra, at 880.

Strangely enough, what the majority finds concerning is that citizens might object to being stopped and searched because the people running the operation might be some sort of fake police—not the fact that we’re being stopped and questioned in the first place:

“[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” 422 U.S., at 894-895…

… The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest….”

Beyond that, the majority felt that there is a justification for certain forms of “general search warrants”, based on a prior building inspection case (Camara v. Municipal Court, 387 U.S. 523)…meaning that a magistrate can legally issue an “area warrant” permitting the search of any vehicle passing a particular place.

Is this “checkpoint search” technique effective?

According to the record in the case, only 1 in 1,000 vehicles stopped and questioned at the checkpoint contained any deportable aliens, and more than ¾ of the vehicles stopped for Secondary Inspection were in fact unconnected with any smuggling activity.

My guess is that the police could simply choose vehicles that contain Mexican-looking drivers randomly and achieve similar results—and that guess is based on the fact that, at the checkpoint, that’s basically what they do, as the record reveals.

We are going to wrap this up in a minute, but I want to offer a few salient quotes from the dissent in this case:

Today’s decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures… the Court’s decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment. This holding cannot be squared with this Court’s recent decisions in United States v. Ortiz…

…This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual’s protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct…

…The motorist whose conduct has been nothing but innocent – and this is overwhelmingly the case – surely resents his own detention and inspection. And checkpoints, unlike roving stops, detain thousands of motorists, a dragnetlike procedure offensive to the sensibilities of free citizens. Also, the delay occasioned by stopping hundreds of vehicles on a busy highway is particularly irritating…

… Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today’s decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists…

… Finally, the Court’s argument fails for more basic reasons. There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied.”

So that’s today’s Part One: the sobriety checkpoint that has you ensnared and irritated—again—is only Constitutional because our Government feels that when it comes to catching criminals it’s just too big a pain to follow the rules we set out for them…and all of this is based on an immigration control checkpoint ruling.

When we return, we’ll examine another ruling, Michigan Department of State Police v. Sitz (496 U.S. 444), which specifically authorized sobriety checkpoints…then we’ll see how checkpoints have morphed into something that, at its worst, allows authorities to literally lay siege to a neighborhood, as is happening even today in the Nation’s Capitol…and, finally, we’ll examine the efforts by the Federal Government to spread checkpoints to the states that today ban them.