Illinois outlaws death penalty

In Illinois, capital punishment is no more.
Today Governor Pat Quinn:
► Signed legislation abolishing the death penalty,
► Commuted all existing death sentences to life without parole, and
► Pledged to commute any death sentence levied before the law takes effect on July 1.
In his signing statement, Quinn said that he had:

concluded that our system of imposing the death penalty is inherently flawed. The evidence presented to me by former prosecutors and judges with decades of experience in the criminal justice system has convinced me that it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.
As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government.

Threatening government's legitimacy, he explained, was the troubling fact that since 1977, 20 persons condemned to Illinois' death row had been exonerated in postconviction innocence proceedings. It is that, more than anything, that today makes Illinois the 2d of the country's 5 most populous states to move into the abolitionist column. (By turning blue on the map below (credit), Illinois joins a Midwestern consensus that spreads over to Iowa and up to North Dakota and Michigan.) Said Quinn of the wrongful capital convictions:

To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.

He questioned claims that capital punishment has a deterrent effect, and further stated that

the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims’ families in overcoming their pain and grief.

Quinn, a Catholic who made the announcement on Ash Wednesday, drew support from a quote the late Joseph Bernardin, long Cardinal of Chicago's archdiocese. He expressed thanks for guidance from others -- "prosecutors, judges, elected officials, religious leaders from around the world, families of murder victims, people on death row who were exonerated and ordinary citizens" -- whom he did not identify by name.
Names of at least 3 persons jump to the mind amid this fundamental change in the governance of this 'Grrl's birth state. Recently retired U.S. Supreme Court Justice John Paul Stevens, who often criticized the administration of capital punishment in appearances before lawyers in his native Chicago, and whose recent New York Review of Books essay made points echoed in Quinn's statement. Professor Larry Marshall, who spearheaded innocence cases during his long tenure at Northwestern University School of Law (from which Governor Quinn, Justice Stevens, my classmate Larry, and I all received J.D.s). And the late U.S. District Judge Prentice H. Marshall, who spoke against the death penalty at a commemoration of Haymarket I attended while clerking for him years ago. One imagines each would agree with the words with which the governor concluded today:

... I firmly believe that we are taking an important step forward in our history as Illinois joins the 15 other states and many nations of the world that have abolished the death penalty.

On February 11

On this day in ...
... 1802, Lydia Maria Child (right) was born in Medford, Massachusetts. Raised in an educated family, she'd published 2 novels and founded annual publication, Juvenile Miscellany, by age 25. Married a year later, she and her husband became active in the slavery abolition cause; she "startled conventional circles with her Appeal in Favor of That Class of Americans Called Africans (1833)," and later became the editor of an abolitionist newspaper. She was a vocal opponent of capital punishment. A women's rights activist as well, another notable publication of hers was History of the Condition of Women in Various Ages and Nations (1835). Child "also helped Harriet Jacobs publish her compelling autobiography, Incidents in the Life of a Slave Girl (1861)." Child died in 1880. (photo credit) Perhaps the creation of hers that's best known today is the Thanksgiving ditty, "Over the River and through the Woods."

(Prior February 11 posts are here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'Just punishment can occur without resorting to the death penalty.'

-- Statement signed by the Archbishop of Cincinnati, the Bishop of Columbus, and 8 other Roman Catholic Church leaders in Ohio, reported to have "joined a chorus" of calls for repeal of the state's 30-year-old capital punishment statute. (credit for 2005 AP photo of Ohio's execution chamber) Others sounding this call include "Ohio Supreme Court Justice Paul E. Pfeifer, a Republican who helped write the state's original death-penalty law" (his anti-death-penalty op-ed is here), as well as "a former state prisons director who witnessed 33 executions." Data revealed Ohio to be 2d only to Texas in the number of recent executions; another is set for February 17. Ohio's death row houses 156 men and 1 woman.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'I don’t even have to read the briefs, for Pete’s sake.'

-- U.S. Supreme Court Justice Antonin Scalia (right), in a just-published interview with California-Hastings Law Professor Calvin Massey, about which we also posted here. (2008 photo credit) Scalia spoke in explanation of the scope of questions that he deems easily decided by his originalist approach to constitutional interpretation. In the Justice's words:

'We don’t have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide ....'

On January 15

On this day in ...
... 1976 (35 years ago today), a woman who'd tried 4 months earlier to assassinate President Gerald Ford was sentenced to life in prison. U.S. District Judge Samuel Conti deemed her behavior "'a product of our times, a product of a permissive society,'" and in giving her the maximum possible term, asserted that the defendant, Sara Jane Moore (left), "a one-time F.B.I. informer and would-be revolutionary," would never have shot at the President as he left San Francisco's St. Francis Hotel "'if we had in this country any effective capital punishment law.'" (photo credit) (Conti, an appointee of President Richard M. Nixon, currently serves as a Senior District Judge in San Francisco.) Moore's life sentence followed another given the same month to another woman, Lynette Fromme (right), a Charles Manson devotée who, like Moore, had tried to assassinate Ford the prior September. (photo credit) Moore would be released on parole in 2007, at age 77; Fromme's parole followed, in 2009, when she was 60 years old.

(Prior January 15 posts are here, here, and here.)

On December 24

On this day in ...
... 1906, judgment was issued following the only criminal trial ever conducted by the Supreme Court of the United States. In the case, United States v. Shipp, a sheriff and his deputy, plus 4 members of a lynch mob, were convicted of criminal contempt arising out of the killing of "an almost certainly innocent black man" in Chattanooga, Tennessee, hours after the town learned that the Court had stayed the man's scheduled execution following conviction for capital rape. Trial took place in the Court's former headquarters, the old Senate chamber above right. (photo credit) The tragic story was told in this recent ABA Journal article.

(Prior December 24 posts are here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

[C]apital punishment today is 'reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.' Instead, the death penalty promotes 'gratifications,' of 'professional and political users, of the mass media, and of its public audience.' ... [C]apital punishment derives 'its emotional power, its popular interest, and its perennial appeal' from five types of 'death penalty discourse.' They are: (1) political exploitation of the gap between the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural tensions between capital punishment and liberal humanism; (3) the political association of capital punishment with larger political and cultural issues, such as civil rights, states’ rights, and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing and death. ... '[T]he American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.'

-- Retired U.S. Supreme Court Justice John Paul Stevens (right, credit), summarizing and quoting the conclusions drawn by New York University Professor David Garland in his just-published book, Peculiar Institution: America’s Death Penalty in an Age of Abolition.
In the same review, Stevens restated his own conclusion, which he had announced in his opinion in Baze v. Rees (2008), that

the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.'

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Teresa Lewis Is Dead. Outcome Is Right, More Or Less.

-- headline of a biting Faculty Lounge commentary, by Drexel Law Associate Dean Dan Filler, on Thursday's execution of a woman with a 72 IQ on the ground that she was the "mastermind" of a double murder. Yesterday, Washington Post writer Maria Glod published an eyewitness account of Lewis' death by lethal injection at a prison in Virginia. (photo credit)

On August 6

On this day in ...
... 1890 (120 years ago today), at New York's Auburn prison (left), in an "awful spectacle" that the next-day New York Times proclaimed "FAR WORSE THAN HANGING," convicted murderer William Kemmler became the 1st person ever executed by electrocution. (credit for 1901 photo) Two jolts of electricity -- the 1st lasting 17 seconds, the 2d much longer -- were required to complete the grisly event detailed in The Times. The execution took place after the failure of bids to declare the electric chair unconstitutional.

(Prior August 6 posts are here, here, and here.)

Guest Blogger: Aparna Chandra

It's IntLawGrrls' great pleasure to welcome Aparna Chandra (left) as today's guest blogger.
Aparna is a Visiting Professor at the National Law School of India University in Bangalore, from which she received B.A. and LL.B. degrees with honors, as well as numerous awards. She holds an LL.M. degree from Yale Law School, where she is currently pursuing her J.S.D. Aparna has also worked at the National Judicial Academy of India, as a Law Associate and a Research Fellow.
Aparna's areas of scholarly interest include international human rights and civil liberties, gender and the law, and judicial process reform. She also teaches international criminal law.
In her guest post below, Aparna discusses her paper, Gender Dimensions of the Death Penalty in India. Her other publications include several articles. The most recent article, co-authored with her colleague Mrinal Satish, discussed the Indian Supreme Court's approach to terror-related adjudication. Aparna also recently co-authored a report on the implementation of the Protection of Civil Rights Act for the Government of India's Centre for the Study of Casteism, Communalism, and the Law.
Heartfelt welcome!

Gender & the death penalty in India

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

The Indian Supreme Court has had to grapple time and again with the constitutionality of the death penalty.

The leading decision on the issue is Bachan Singh v. State of Punjab (1980). Here the Court (below right) recognized that there was scope for arbitrariness in the award of the death penalty due to unguided judicial discretion in determining sentences. To rectify this, the Court established a paradigm for guided discretion, and restricted the award of death penalty to the “rarest of rare” cases, where the convict is beyond reform and the option of life is “unquestionably foreclosed”. This conclusion has to be based on an analysis of aggravating and mitigating circumstances pertaining to each individual case.

However, as I have argued in my paper, Gender Dimensions of the Death Penalty in India, the principles by which the “rarest of rare” determination is governed are applied in a manner that devalues the forms and sites of violence commonly experienced by women, as compared to those that are more familiar to the male worldview. Thus is retained the arbitrariness of the death penalty regime.
The principles by which the “rarest of rare” determination is governed are morally contingent, and operate against a backdrop of social norms that justify and legitimate (and sometimes even mandate) violence against certain segments of the society (including women).

For example, courts are required to examine:

► Whether the crime is one of extreme depravity;

► Whether there is any continuing threat to society from the perpetrator; and

► Whether there is any scope for the reform and rehabilitation of the offender.

Mental and emotional disturbance or feelings of moral justification are significant mitigating circumstances.

As I show in my paper, courts do not consider women’s common experiences of violence to be particularly “depraved,” because there are often underlying social justifications that provide a veneer of legitimacy to the infliction of such violence. Killings for honour, shame, love, and lust fall into this category, as do the killings of nagging wives, resisting rape victims, and disappointing lovers. In these instances, courts regularly find that the crimes are not heinous enough to fall within the rarest of rate category -- and thus that the perpetrator does not constitute a continuing menace to society. His actions are seen as an aberration rather than an indication of a “criminal tendency.” In all these cases, the Court is therefore able to determine that the perpetrators would be able to reform and get rehabilitated. Such men are seen as “unlikely recidivists,” because the blame for the offence is shifted to the woman who provided unusual provocation, and therefore “called the crime upon herself,” a common social justification for the infliction of violence in the first place.

It is unfortunate that social justifications translate into legal devices for the perpetuation of violence.

Courts also privilege crimes committed for power, for property, and in the public sphere, over crimes within the family. The distinction drawn by courts creates a form of public/private divide, with the law privileging violence within the former sphere. This is discriminatory, since the most common form of violence faced by women around the world is within the family and by acquaintances. Women have unequal access to property, power, and public spaces. It is therefore much less likely that women will face violence in these contexts than within the home or in intimate settings.
The implication of these findings is not that the death penalty should extend to all crimes. Rather, it is that arbitrariness in the award of the death penalty will not disappear merely by providing a set of principles for determining the award of the death penalty.

At the same time, even if the death penalty were to be removed (as I believe it should be), it has to be remembered that law and punishment serve expressive ends. Patriarchal law reaffirms society’s entrenched views about women’s role and their worth.

By consistently discounting women’s experiences of violence in determining the norms by which a society is to be governed, law threatens to continue and further legitimate the already entrenched notions of hierarchy, discrimination, and violence in society.

On July 19

On this day in ...
... 2005 (5 years ago today), boys aged 18 and 16 were executed by public hanging in Iran (flag at left). The punishment stemmed from allegations that they had sexually assaulted younger boys. A defense lawyer said that according to national child-offender laws, the sentences should have been commuted to 5 years in jail. The death penalties -- banned by the 1989 Convention on the Rights of the Child, to which Iran is a state party -- provoked widespread condemnation. Individuals like Shirin Ebadi, an Iranian attorney and the 2003 Nobel Peace Prizewinner, reiterated criticism of the juvenile death penalty, and some rights groups contended that the boys were punished not for committing assault but for engaging in gay sex.

(Prior July 19 posts are here, here, and here.)

Go On! International law & capital punishment

(Go On! is an occasional item on symposia and other events of interest) Judges' use of foreign and international legal norms -- an issue often treated at IntLawGrrls (most recently here) -- will be the topic of discussion for a free-of-charge panel to be held in conjunction with the upcoming annual meeting of the American Bar Association (a meeting, incidentally, that will conclude the year-long term of the ABA's current President, Carolyn Lamm, an expert in international arbitration, litigation, and trade).
Here's the plan for the session entitled The Influence of International Law and Opinion in US Death Penalty Cases, to be held 8-9:30 a.m. Saturday, August 7, at Bingham McCutchen LLP, Three Embarcadero Center, San Francisco, California:

Panelists will discuss whether it is legitimate to consider international human rights instruments or treaty obligations in capital cases, recent capital cases involving issues of international law and comity, and the effect of foreign governments’ opposition to the implementation of the death penalty on foreign nationals. We will conclude the session with a discussion on what, if any, universal principles of fairness and due process exist among countries that retain the death penalty.

Speakers confirmed so far are Juan Manuel Sanchez, Consul for Protection and Legal Affairs at the Consulate General of Mexico in San Francisco, and our colleague Richard J. Wilson, Professor of Law and Director of the International Human Rights Law Clinic at American University Washington College of Law. Moderator will be Maurice Possley, a Pulitzer Prizewinning journalist and Lecturer at the University of Michigan Law School.

No need to be registered for the ABA annual meeting to attend this event. RSVP here.

Read On! The Vagrants

(Read On! ... occasional posts on writing we're reading)

To tell the same story from different viewpoints is not new. The technique won renown in the film Rashômon (1950), and has remained a staple of storytelling ever since.
Yet the way that Yiyun Li (below right) deploys multiple narratives in The Vagrants (2009) is indeed something new.
This novel is the 1st by Li, who was born in Beijing, lived in China till 1996, and who's now an Assistant Professor of English at the University of California, Davis.
Li's novel revolves around a single event yet reveals a myriad of details about a time, a place, and a people.
The event is the execution of Gu Shan, an enemy of the state who years before had given her all to the Maoist vanguard. The time is 1979, the year Li turned 7; desires for democracy are stirring a decade after the Cultural Revolution. The place is Muddy River, a soulless, purpose-built factory city in a Chinese province far from the capital. The people are those who've come to inhabit this city -- vagrants all regardless of their station.
From among these vagrants, Li chooses her narrators. It is a rich assortment, richly characterized. Tiny Tong's tale of bewilderment is told alongside that of Kai, a broadcaster and mother who's married into the seeming safety of a leading political family, yet chafes at her role. Adolescent Nini's resentment at her very different restraints leads her to the loathsome arms of the amoral Bashi. The old Huas collect rubbish, and discarded daughters.
Li addresses an array of issues in The Vagrants: disability, poverty, criminal justice and capital punishment, education, familial hierarchy and filial duty. But she does so without polemic, through wonderfully written, intimate portraits of her characters. Each narrator's small story remains in mind even as the reader ponders Li's larger narrative of an empty and arbitrary society, in a state at odds with its people.
A literary jewel.

On June 29

On this day in ...
... 1972, in Furman v. Georgia, the U.S. Supreme Court ruled 5-4 that execution of petitioners would violate the constitutional ban on cruel and unusual punishment. The single-page per curiam opinion was followed by 200 pages of concurrences and dissents, resulting in a moratorim on executions but no clear direction regarding the future of capital punishment in the United States.

(Prior June 29 posts are here, here, and here.)

On May 21

On this day in ...
... 1780 (230 years ago today), a daughter, Elizabeth, was born into a banking family in Norwich, England. They were "'relaxed'" Quakers, dressing in clothes more colorful and fashionable than was typical for their denomination. Over time she grew more serious, married and gave birth to 11 children. Elizabeth Fry became renowned for her work in English prisons, among them Newgate, where women were detained. Among her achievements was an end to shackling of women convicts during transport. She founded a prisoners' aid society and testified before Parliament. Her work extended beyond prison reform to include aid for the poor, training of nurses, rights for women, and abolition of the death penalty. As posted, societies bearing her name continue to work toward these goals. Fry's been depicted on Britain's £5 note (above right) since 2002. (credit)


(Prior May 21 posts are here, here, and here)

IACHR on the Death Row Phenomenon

On March 17, 2010, the Inter-American Commission on Human Rights (IACHR) deemed admissible a petition filed on behalf of a California inmate who has been on death row for 18 years but has yet to have his first appeal heard by the Supreme Court of California. (Case No. 12.74) The petition was filed by the University of San Francisco’s Frank C. Newman International Human Rights Law Clinic on behalf of two groups, Human Rights Advocates and fos*ters. The latter is a group formed in Switzerland to address the specific issues surrounding this inmate’s case.
The IACHR ruled that the petitioner does not have to exhaust domestic remedies to raise the claim that long delays on death row constitute torture because there are none really available to him under the procedures that exist in the United States. If he filed habeas corpus or other actions at this time, he would end up waiving claims that might arise after the appeal is heard since successive petitions are not allowed. Further, the IACHR referred to petitioner’s claim that the United States Supreme Court has repeatedly rejected arguments challenging prolonged detention on death row as cruel and unusual punishment.
The IACHR rejected the United States’ claim that the delay was due to petitioner’s requests for extension since those requests were tied directly to the loss of large portions of the trial transcripts by the trial court. It also mentioned long delays in the appointment of appellate counsel following the trials in California. The IACHR also ruled that the claim regarding the denial of medical care could not go forward without exhaustion of administrative remedies that are available to petitioner.
The IACHR will now consider the merits of the claim that long stays on death row constitute torture. Petitioner has cited to various provisions of the American Declaration of the Rights and Duties of Man that are violated by the death row phenomenon. The IACHR ruled that it is competent to examine the alleged violation of articles I, XVIII, XXIV, XXV and XXVI of the American Declaration. The petition cites to cases of the European Court of Human Rights and the Privy Council of Great Britain to support the claim that long periods on death row violate international human rights law. Petitioner will also clarify that the health care situation in the California prison system contributes to the intolerable conditions on death row.

Judge takes on Texas death penalty

Details here. And here's the reasoning by Judge Kevin Fine, whose colleague in Harris County set the execution date for José Ernesto Medellín a while back, as we then posted:

'Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed. It's safe to assume we execute innocent people.'

IntLawGrrls' other posts on capital punishment -- in addition to that titled Death in the Heart of Texas -- are here, here, here, here, here, and here.

On January 25

On this day in ...
... 1890 (120 years ago today), Elizabeth Jane Cochran, who as a journalist used the name Nellie Bly, "returned to New York in triumph," 72 days after beginning a global journey inspired by Jules Verne's book Around the World in Eighty Days (1873). She'd begun her trek in New Jersey, then went to Europe, the Middle East, and the Far East, all the while cabling her adventures to New York World readers back in the United States. (image credit) Bly's news writing career went beyond this famous feat, however; among other things, she was an "outspoken critic of the death penalty."

(Prior January 25 posts are here and here.)

On January 19

On this day in ...
... 1649, in what was then part of Nouvelle-France (left) and is now Quebec, "[t]he first executioner in Canada, a pardoned criminal, perform[ed] his first assignment." the subject of this 1st use of capital punishment in Canada was "a 16 year old girl found guilty of theft."

(Prior January 19 posts are here and here.)