Monday, September 28, 2009

Death Costs More

The New York Times has an excellent editorial this morning, "High Cost of Death Row." Most people believe that killing someone is cheaper than putting them in prison for life but solitary confinement, execution chambers, and lengthy capital trials — to say nothing of the absolutely necessary federal habeas corpus proceedings — all result in a much higher cost. As the Times correctly informs us, "Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells."

Cost is not the most morally persuasive argument but when you consider the other ways in which we could spend the money, the right thing to do is quite clear.

Sunday, September 27, 2009


At a chili cook-off the other day, a friend dared me to eat half a habañero pepper in exchange for $20. I ate half, and it tasted pretty good, so I ate the other half, too, just for kicks. After about a minute and a half, I started to feel the heat. Drank about half a beer, which seemed to help. About five minutes in, the worst of the heat set in, and I sweated it. After half an hour, I ate a roll of antacid tablets, mostly as a precaution against further damage, because friends were telling me of dangerous times ahead. I'm happy to report that I'm in fine health. And for another $20, I'd probably do it again.

This guy wouldn't.

Friday, September 25, 2009

Live-blogging David Baugh, Virginia civil rights attorney

8:56 a.m.—This morning the William & Mary Law Library is hosting David Baugh, a civil rights attorney and the Capital Defender in Richmond, Va. He has lectured the last two years, and is always a dynamic speaker. He'll be discussing "The Bill of Rights and the Roberts Court." Should be an excellent hour. There are about 50 people in attendance at the law school this morning, many of them first-year law students, public policy graduate students and many from the Williamsburg community. A fine turnout for a Friday morning.

9:01 a.m.—Jim Heller, head librarian, has introduced David Baugh, the son of a Tuskegee Airman. "I don't like the Supreme Court," Baugh says.

9:02 a.m.—Baugh says the justices should not care about the outcome of a case. "They're there to protect the rules, and the rules are in our Constitution. The Supreme Court does not understand that."

9:05 a.m.—Baugh is often introduced as a civil rights scholar. "I'm not, I'm a trial lawyer. I'm a thug. I go to court and I beat people up." Baugh is plugging Judge A. Leon Higginbotham's open letter to Clarence Thomas, which I haven't read. Here's the cite: An open letter to Justice Clarence Thomas from a federal judicial colleague, 140 U. Penn. L. Rev. 1005-1028 (1992).

9:08 a.m.—Most law schools don't teach the Constitution. We're going to talk about why we have it. "Thomas Jefferson was one of those guys who really was a genius. He knew that the key to life was happiness. Yeah, they screwed slaves, but he knew what he was talking about." Another plug: download The Universal Declaration of Human Rights, adopted by the United Nations in 1948.

9:10 a.m.—"Government always will be in opposition to freedom." Two opposing forces: one is freedom. No issue is taboo. "What do you think about the Man-Boy Society?" (He's talking about NAMBLA here.) "We ought to talk about it."

Baugh is talking about his former client, a grand dragon of the KKK. "If any one of you believe there's a superior race, talk to a Klansman. He was dumb as a rock."

9:12 a.m.—On one side is freedom, and on the other side is order. "Those forces are in opposition because the greater the freedom, the less order. We have to have order, but we have to have freedom. The opponents of freedom will always be the government, the majority, and you when you're scared." So we have to maintain a system of laws that recognizes freedom while keeping order in place. It will always be a sliding scale.

9:15 a.m.—We're the only government in the world that swears allegiance to a philosophy, to a document. That's brilliant. Others swear an allegiance to a king or queen. He's talking now about freedom of religion, "which is a brilliant idea." The only way to allow everyone to practice the kind of religion they want is to have no laws establishing religion. "That's kung fu crap. That's like, 'The only way for everyone to have religion is to leave religion alone, Grasshopper." (Big laughs from the crowd.)

9:18 a.m.—Talking about harm to others and the First Amendment. Up until 10 years ago, consensual sex between married adults was illegal in this state. How does gay people getting married harm others? "It's going to destroy the American family. Don't look now but heterosexuality and monogamy destroyed the American family."

9:25 a.m.—On defending clients: every time someone walks, the rules get stronger. Most people view the Constitution and the Bill of Rights as an impediment to convicting guilty people. Only the ACLU and criminal defense attorneys protect the rules.

9:26 a.m.—"For every freedom, there is a corresponding responsibility. If I want freedom of speech, I have to tolerate the rights of other dumb son-of-a-bitches to talk, too."

9:28 a.m.—On to the KKK case. (I should mention here that Mr. Baugh is black. He represented a KKK Grand Dragon who burned a cross.) How to tell a Klansman from anyone else: it's not a cross burning, it's a "cross illumination."

9:29 a.m.—"When it comes to constitutional issues, there are only two sides. There's the government on one side, and everybody else on the other side." The reason Baugh took the case is because he and the Klansman were on the same side.

9:32 a.m.—"Human beings are basically good." Baugh says he's never defended someone he thought was bad. Even bigots aren't bad people, he says. They're good people who pay their bills and love their kids but who have a distorted sense of values.

9:34 a.m.—Baugh on his mother, who he says, "should have been a Nazi," for her stances on pornography. She didn't want him defending someone accused of having pornography, and he told her he believed it was important to protect that person's freedom of speech. "I've been called a bastard before but never by the person who really knows."

9:35 a.m.—A few links to articles about David Baugh and his former client, Barry Elton Black, the Klansman: and

9:38 a.m.—On human rights: should we support countries who oppress their women? Should we support countries that discriminate against minorities? How about the burqa issue? Baugh did the bombing case at the U.S. Embassy in Nairobi. He represented an al-Qaida member who blew up 200 people. He started researching and realized he didn't know anything about Islam. A friend recommended him a book called, "Teach Yourself Islam." He highly recommends it, even though it's the equivalent of "Islam for Dummies." The book is about 250 pages (224, to be exact).

9:40 a.m.—On suicide bombing: Suicide is a sin in Islam, but giving your life for the cause of war is not. That's how Islamic extremists draw the distinction. It's easier to extend rights to other people if you understand those people and their religion.

9:42 a.m.—On rights in America: We rank about 33rd in infant mortality. "I think it's obscene that we have bombers that cost $2 billion and we have dying children." Health care is a right.

9:45 a.m.—"You have a duty, not just to get educated, but to understand other cultures, other people. Every time you get a chance to study another culture, take it."

On Tim Kaine (the current governor of Virginia): He came from Harvard and moved to Richmond. The most segregated place in America is a church on Sunday morning. Well Tim Kaine went to a black church and joined the choir.

9:46 a.m.—"For those of you who are law students, if you know why you're doing it, it's the greatest job in the world." That's the end of the lecture. On to questions.

9:47 a.m.—"Should we have voluntary slavery? Other than prostitution and marriage."

9:58 a.m.—A little experiment. Baugh stands in the middle of the room and says, "I think Dick Cheney is an evil bastard who should die and rot in hell." There. He says in most countries, a person couldn't do that without the threat of being imprisoned. But not a single person in this room, he says, believes that saying that deserves a criminal penalty. "And that's what gives me hope, hope for our Constitution and for our country."

Maybe the best line of the day. Baugh's final point is about having courage. "It's not enough to be smart, and you all are smart. You have to have kahones, too. Oh wait, excuse me. You have to have ovarian fortitude."

On that note, Baugh heads to the public policy class to discuss upcoming Supreme Court cases.

Sunday, September 20, 2009

From the Execution Chamber Back to the Courtroom

Romell Broom's lawyers will return to court tomorrow, just days removed from the botched execution of their client. They will argue that trying to execute Broom a second time would constitute cruel and unusual punishment, in violation of his Eighth Amendment rights, as well as a violation of his 14th Amendment due process rights. Lawyers for the state of Ohio will likely argue that because the three-drug lethal injection cocktail never reached Broom's veins, that a second go-around is just fine.

It's worth taking a look at some pertinent language from the Supreme Court's 2008 ruling in Baze v. Rees, when the Court upheld Kentucky's lethal injection procedure as constitutional. In his plurality opinion, Chief Justice John Roberts hinted at where the Court might say, "Enough is enough":
Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident, with no suggestion of malevolence,” did not give rise to an Eighth Amendment violation.
As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, “a hypothetical situation” involving “a series of abortive attempts at electrocution” would present a different case. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure”—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”
Roberts suggests in Baze that multiple execution attempts may indeed prove too much for the Constitution to bear. Let's see if the lower courts follow that logic. I certainly hope so.

Thursday, September 17, 2009

A Re-Execution in Ohio

To legally kill death row inmates, most states use a three-drug lethal injection protocol. One drug is designed to anesthetize the inmate (sodium thiopental), one drug paralyzes him and stops his breathing (pancuronium bromide), and the third drug stops his beating heart (potassium chloride). Executions without an anesthetic drug would be unbelievably painful, and would almost certainly violate the Eighth Amendment's ban on cruel and unusual punishment. Executions would simply fail without the drug that kills. The paralytic drug, however, serves no humane purpose. In fact, quite the opposite: when the anesthetic drug doesn't work, the inmate is paralyzed but feels incredible pain when the death drug arrives. It's a shocking thing our government does, behind closed doors. The ACLU has of course challenged the use of this paralytic drug in federal court, after several botched executions in California, the state with the nation's most populous death row. This legal challenge helped impose California's current 3 1/2-year moratorium on executions. More California death row inmates have committed suicide than have been executed since 1976.

But the paralytic drug isn't the only problem with lethal injection. As many medical personnel know, some people have difficult veins to stick. The same holds true for death row inmates, including Romell Broom of Ohio. In an appalling story that should give us all pause, executioners in the state of Ohio this week gave up on their attempt to execute Broom, a convicted rapist and killer, when they could not find a suitable vein to inject the drugs. Broom, to his credit, squeezed his fist (and sweated bullets) in an attempt to assist his killers.

Broom's lawyers are headed to court. Now Ohio and likely some federal courts will have the sick task of coming up with a rationale for the state to execute Broom a second time, without violating the Eighth Amendment. The state could, of course, simply commute his sentence to life imprisonment without chance of parole, but that would be too simple (and heck, it might encourage other death row inmates to make their own veins difficult to stick). No, the state will undoubtedly argue that executing the same person twice does not constitute cruel and unusual punishment, and the Ohio courts will without question rubber-stamp that logic. But should the case reach the federal courts, Ohio's attorney general may have a tougher time convincing a judge that the state's lethal injection protocol, which failed to execute Broom, is constitutional after all. It's a case worth watching.

UPDATE, 9/19:
A federal judge has stepped into Romell Broom's case, giving him and his lawyers a 10-day reprieve. The temporary restraining order prevents Ohio from executing Broom next week, as the state had planned. Instead, Broom will testify in court Monday about his botched execution. This is fantastic news.

Sunday, September 13, 2009

In Defense of Vegetarianism

A little more than a year ago I stopped eating meat. It was a goal I had held for several years, based primarily on the health benefits of not eating red meat in particular, but one I found difficult to accomplish. Ironically enough, I had not achieved my goal because I did not know how to sustain a healthy vegetarian diet — basically, I didn't know how to cook good food. Though it seems counterintuitive, many vegetarians live on a junk food diet, eating primarily cheese and carbs and gaining weight along the way. I didn't want to go that route.

The past year has blessed me with the opportunity to spend time with a great vegetarian cook and live a summer in the Bay Area, home to an incredible array of farmer's markets. I am now a passable cook, and will not drift into "junk vegetarianism" anytime soon. But only in the last couple of months have I acquired a real rationale for the way I eat. People become vegetarian for a multitude of reasons: health, spirituality, sustainability, as protest against animal cruelty, even economic populism. Most often, vegetarians I've met combine these rationales or start with one and gravitate toward another. When the logic for one reason falters, as it almost inevitably does, they argue another point and most often win the argument with meat-eaters.

I mention these rationales because now that I've learned how to sustain myself on a vegetarian diet, I find that the most difficult part of being a vegetarian is explaining the decision to carnivores. Most do not appear threatened by vegetarians — they're not converting anytime soon — but they want to push them anyway, see why anyone who otherwise appears smart would be dumb enough to give up eating meat.

Finding the real reason for my vegetarianism has taken quite a while. Plenty of people live healthy lives while eating meat regularly. Moreover, because the animals we eat subsist on grains and vegetables, the same vitamins and minerals found in meat exist in most vegetarian diets. (I'm leaving veganism out of this discussion because of its sheer rarity. I learned this summer that the only vegan I knew has dropped the lifestyle.) If it's the saturated fat in meat that you're trying to avoid, then you'd have to drop a lot more than just meat. Some oils, cheese, yogurt and other flavorful sources of protein contain plenty of saturated fat. Moreover, saturated fat may not be as evil as we once thought, anyway. There are plenty of health benefits from becoming vegetarian but at least in my experience, they tend to come not from the vegetarian diet itself, but from buying fresh ingredients and learning how to cook.

Ever since I read Plato's Allegory of the Cave and Friedrich Nietzsche's Twilight of the Idols, spirituality has taken a backseat to other priorities, to put it mildly. Spirituality, thus, is not my rationale. I still get plenty of satisfaction from eating mouth-watering meals, but I will not claim that it puts me in touch with a higher power.

Sustainability is a powerful argument for vegetarianism, and has gained much attention with the rise of Michael Pollan, the UC-Berkeley journalism professor and author of The Omnivore's Dilemma, In Defense of Food, and numerous op-eds in the New York Times. The argument as I understand it goes something like this: to produce one pound of beef, a cow such as a cow must consume 16 pounds of grain. That's a lot of wasted energy. Wouldn't we be better off if we just grew more fruit, vegetables, and grain instead of trying to eat all those inefficient cows? Moreover, and here's where Pollan has really devoted his time, the fossil fuels required to move all this meat across the country is incredibly damaging to the environment. We would be much better off to grow and buy all our food locally. But as you can see, Pollan's argument (at least this last one) applies with equal force to all kinds of food: California strawberries consumed in Virginia, Iowa corn consumed in China, Wisconsin cheese consumed in Florida. This system exists (and here's where the economic populism argument comes into play) because we continue to subsidize the agribusiness industry and its factory farmers with billions of taxpayer dollars each year. Even if we all stopped eating meat tomorrow, our food distribution system would still place an unconscionable burden on the environment. We need to do much more than become vegetarian. We need buy local food and convince our farmers, grocers and senators to change the way they think about feeding America and the world.

And so I find myself back in a place I hadn't imagined, eating a vegetarian diet primarily because of the way we treat our animals. This summer I listened to Peter Singer's powerful book (on CD), The Way We Eat: Why Our Food Choices Matter. He illustrates, in an unabashedly graphic way, the repulsive ways that we raise and kill chickens, just to collect their eggs. We raise them in cages and breed them to lose their wings so that they pose less of a "flight risk." Then to try to kill them, we hand-dip them in scalding water. The chickens, if you can still call them that, live pathetic lives yet before dying, feel intense amounts of pain. It's enough for me to make sure that every carton of eggs I buy comes from "cage-free" hens. And having grown up in Iowa among hog confinements, I know that the way we treat pigs and cows leaves much to be desired. I will never believe that humans have a right to use the rest of Earth's creatures as they wish. It's just another example of where the Bible and I part ways.

And yet, even the animal cruelty brand of vegetarianism leaves a potential gap: what about those farmers who do everything they can to treat their animals well? Moreover, what about the farmers who, in addition to humane farming, sell their meat locally? And here's where my vegetarianism ends. Yesterday I bought a pound of ground beef from a local farmer who grass-feeds her cows. It may not be the most efficient pound of food I eat this month, but I can feel good about supporting her, much more so than I could about buying a bunch of bananas from Ecuador, produced with the labor of exploited workers and shipped thousands of inefficient miles to my grocery store.

Thinking about food, it seems, is a life-long endeavor, filled with complexities. But I believe I've found an argument that can withstand the scrutiny of non-discriminating carnivores, who eat whatever meat is put on their plates. And it might even hold up against other vegetarians, too.

Thursday, September 10, 2009

Back to School

Apparently I still have some readers out there, so here we go, for one more year. I just finished the last class of my third week, and I can now say with some authority that the third year of law school is by far the best. The old cliché, once again is: the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. But you can't get too bored if you take great classes or solid professors, and somehow I've managed to pull that off. This semester I'm branching out from my usual comfort zone of criminal law. My classes include Business Associations, a popular topic on the Bar exam, and three others dealing with highly relevant topics: Health Law & Policy (tonight we did a comparative analysis of the health care plans in Congress); Media, Technology & the Courts; and an Election Law class studying Bush v. Gore and other Supreme Court gems. I'm also doing a fantastic externship (I think that means "internship for credit," in law school jargon) with a federal public defender's office.

I returned from my summer in California—not to mention a 4,600-mile road trip—happy, relaxed, and refreshed. I learned an incredible amount this summer, but unfortunately I can't blog about it. For anyone who's interested, let me know, and I'll send the essay I wrote to fulfill my summer funding requirement.

It seems impossible that my fellow 3Ls and I have ascended to the last tier of law school, just two sets of exams away from graduation. An energetic group of 1Ls has filled the W&M Law Library, brandishing their highlighters and looking to us for advice. We start the year with a new, terrific dean, Dave Douglas, whom many in my class had (and loved) as a Con Law professor during first year. Most of us 3Ls are looking for jobs, or in the case of the firm crowd, waiting to hear about offers. Many of us, including me, applied for judicial clerkships over the summer. Clerkships typically last a year, and if you get an offer from a judge, you're basically obligated to take it. After two-plus years of spending time with my classmates, I find it fascinating to see who goes where. People will scatter all over the country and the world. Many will work at firms, some in the federal government, others at prosecutor's and public defender's offices. A few people won't even take the Bar, and may go back for more graduate degrees. One of my classmates learned to brew beer over the summer while living at his parents' house. More power to him. (I'm still waiting to taste the beer.)

This year should afford me more time to write. Before I close this entry, I do want to mention a particularly important case that the Supreme Court heard in a special session yesterday, and which we've discussed in my Media class. It's called Citizens United v. Federal Election Commission. Briefly, in 2007, a conservative group funded at least partially by corporations wanted to show a 90-minute documentary criticizing Hillary Clinton (to put it lightly). The FEC ruled that because the group was funded by corporations, and because the documentary mounted an attack on a political candidate, broadcasting the documentary would violate a 2002 federal campaign finance law — the McCain-Feingold Act. The Supreme Court upheld the constitutionality of that Act back in 2003, though in recent years it has stripped a few provisions away from McCain-Feingold. But this time, the Supreme Court wants to decide whether restricting the broadcast violated the free speech rights of Citizens United, and the corporations that fund it. The case pits the interests of free speech advocates, from the Swift Boaters to the ACLU, against campaign finance advocates, from Bill Moyers to John McCain.

Normally I'm a big free-speech guy, but I do not believe that corporations should have the same First Amendment rights as individuals. Although McCain-Feingold is a flawed law, I agree that we should be able to regulate how much money corporations can pour into political campaigns. Unfortunately, we likely have a Supreme Court with five members who believe that corporations do have the same free-speech rights as you and me. A decision in the case will probably come later this fall.

It's great to be back in the Burg.

Tuesday, September 1, 2009

Execution of an Innocent Man

No, this post isn't about Troy Davis, the Georgia death row inmate I've written about many times before. This is about Cameron Todd Willingham, a Texas man who tried desperately to save his children in an accidental house fire back in 1991. On the night of the incident, firefighters had to physically restrain the 23-year-old Willingham with handcuffs to keep from going into the house to save his kids, as Bob Herbert writes in today's NY Times. Later, a state fire marshal concocted a theory that Willingham had started the fire that killed his young children. The local district attorney believed the fire marshal, some neighbors said that Willingham had acted "strange," a mentally unstable and drug-addicted jailhouse snitch testified against Willingham, and voila! Texas put an innocent man to death. Scientific research, commissioned by the state of Texas, has demonstrated unquestionably that the fire marshal had no basis on which to rule the fire an arson.

Craig Grann's phenomenal, thoroughly researched article in the current New Yorker tells the painful story of Willingham, who maintained his innocence until his final days.

For decades, opponents of the death penalty have pondered when this day would come — when a state would admit that it had sanctioned the killing of an innocent person. Today's the day.

I'll repeat the obvious question: Why on Earth do we have a death penalty?

UPDATE: Barry Scheck, co-director of The Innocence Project, has an excellent op-ed discussing Willingham's case and the array of problems with forensic science. Just this term in the Supreme Court, none other than Justice Antonin Scalia—someone not typically a fan of criminal defendants—described how unreliable these "sciences" can be.