The Death Penalty and the Society We Want

[Excerpt] “At the local level, we can tell a lot about a community by how it treats a homeless person suffering from schizophrenia who is begging on the street. One possibility is to look upon that person with the thought that there but for grace go I, that this person is desperately in need of help, and that we—individually and as a community—must respond by giving a helping hand and making sure that the person receives food, shelter, clothing, and care for such a debilitating mental illness. Another possibility is to simply ignore the person, to step around him or her on the way to buying a five-dollar cup of coffee, asking one’s self only: “Why should I help this person? Why should I give any money? Why should I do anything at all?” Another approach—the predominant view in many communities today—is to ask, why isn’t that person in jail? Why hasn’t the person been arrested for violating one of the “quality of life crimes” which many communities have adopted to protect the quality of life of those better off at the expense of those who are worse off? They have accomplished this by criminalizing behavior such as jaywalking, loitering, panhandling, and other conduct that makes it possible for the police to arrest almost anyone to clear the street of people we do not want to see. This is the “broken windows” approach to policing that Rudolph Guiliani used in New York. It uses the criminal law to clear the streets of the homeless, the mentally ill, and other “undesirables.” So there are three possible approaches: compassion, indifference, and hostility. The one adopted by a community tells us a lot about it.

Elected Judges and the Death Penalty in Texas: Why Full Habeas Corpus Review by Independent Federal Judges Is Indispensable to Protecting Constitutional Rights

Carrying out over two hundred executions in the last twenty years, Texas has dramatically demonstrated that the Bill of Rights-particularly, the most fundamental right, the right to counsel-cannot be left in the hands of partisan elected judges. The Texas judiciary has responded to the clamor for executions by processing capital cases in assembly-line fashion with little or no regard for the fairness and integrity of the process. In doing so, it has shown the need for full habeas corpus review by independent, life-tenured federal judges. However, the once Great Writ of habeas corpus barely survives the restrictions put on it by the Supreme Court and Congress. As a result, those most in need of the protection of the Constitution-the helpless, weak, outnumbered . . . victims of prejudice and public excitement -often do not receive it, even in cases where their lives are at stake

The Failure to Achieve Fairness: Race and Poverty Continue to Influence Who Dies

Despite the promise of “Equal Justice Under Law” etched on the Supreme Court building, the outcomes of criminal cases continue to be influenced by race and poverty. Race comes into play in the discretionary decisions made by actors, primarily prosecutors, in how cases are treated. It is often hard to ferret out the effect of racial animus on cases because racial attitudes may be subconscious and race may be one of many factors which influence a prosecutor or a jury. Courts are generally unwilling to wrestle with these issues, and when they do address them, the available remedies are completely inadequate. The impact of a defendant’s poverty is more apparent. As a result of poverty, a person accused of a crime may be unable to contest the prosecution’s case and present a defense due to the inability to obtain a competent lawyer and investigative and expert assistance. Two aspects of the system are important in addressing the impact of race and poverty. First, the overwhelming majority of those accused of crimes are poor. There are of course some white collar cases, some cases involving big drug dealers, and some cases involving middle class people or their children who have run afoul of the law. But for the most part, the people accused are poor. For the most part, if you visit the courtrooms where criminal cases are being heard, you will see poor people being processed. Because the criminal justice system deals almost exclusively with poor people, it is out of sight and out of mind for most Americans. They do not know what happens in the criminal courts. They may assume that it is operating justly and fairly, or they may not even think about it. I hope that as a result of the information provided here, those of you who graduate from this law school will care about the quality of justice for poor people whose lives and liberty are at stake in the criminal justice systems of this county. Second, the overwhelming majority of criminal cases—90% to 95%—are resolved with plea bargains. Only a few minutes are spent in court on each case—just long enough for the defendant to waive his or her rights in answers to a judge’s questions. This means that prosecutors—not judges or juries—have most of the power with regard to how cases are resolved. Prosecutors decide what charges to file, whether to seek enhanced penalties, such as death sentences or mandatory minimums, and whether to agree to plea bargains that resolve the cases with less severe sentences than those originally sought. The extraordinary breadth of this discretion—whether to charge at all, whether to seek death or settle for lesser penalties—makes it possible for racial biases to enter the process

Legal Representation for the Poor: Can Society Afford This Much Injustice

A New Yorker cartoon depicts a lawyer facing his client, asking the critical question: You\u27ve got a pretty good case, how much justice can you afford? Of course, the promise is equal justice for all. But that is an aspiration, not reality. The poor person accused of a crime cannot afford any justice. So how much justice is society going to provide? Competent counsel for the accused, with the resources needed for investigation and consultation with experts, is essential for the proper working of our adversary system of justice. States can afford to provide high quality representation for the accused - appropriate for the high stakes involved: liberty or even life - but most states are not willing to provide a decent level of representation for poor people accused of a crime. The result in many places is a system that lacks legitimacy and credibility, sometimes does not provide reliable results, and, on occasion, produces great miscarriages ofjustic

Death by Lottery--Procedural Bar of Constitutional Claims in Capital Cases Due to Inadequate Representation of Indigent Defendants

After the execution of Washington Goode, a black man sentenced to be hanged for murder in Massachusetts in 1848, the Boston Herald observed that if a “white man who had money had committed the same crime, he would not have been executed.” The same can and has been said with regard to many executions which occur today. A united States Supreme Court law clerk observed after a year of reviewing petitions in capital cases that “[w]hether somebody received the death penalty very often seemed to be a function of the lawyers. . . . [T]he death penalty frequently results from nothing more than poverty and poor lawyering.” Poor people accused of capital crimes are frequently represented by inadequately compensated, inexperienced, and incompetent court-appointed attorneys. Poverty and poor lawyering may result in a less than vigorous defense at a trial where the death penalty is imposed. It may also mean less than full federal habeas corpus review. Failure of counsel to recognize a constitutional violation and properly preserve the issue may be deemed a waiver by the indigent defendant and a death sentence obtained in violation of the United States Constitution may be carried out