Good Eggs and Research Papers

I'm working on three research papers at the moment, not an uncommon task for a second- or third-year law student. This gives me the pleasure (no, really) of spending inordinate of time reading news and law review articles, cases, and statutes which may or may not be helpful to my cause. Doing research for a legal paper involves a hodgepodge of systematic exhaustion and serendipity. The latter comes when you find that amazing piece of work that seems as if the author wrote it just to help you with your particular project.

The three papers include my Note, a criticism of the portion of Virginia death penalty law that allows people to die if a jury determines they pose a "serious continuing threat to society." I've been working on this since August, and it's finally due in two weeks. In the last few days, I have completely revamped this 42-page article with the help of a fantastic, brilliant lawyer, writer and friend. The second paper is a 15-25 pager for my Death Penalty seminar. My outline is due Monday. Today I'm reading Albert Camus' terrific essay, Reflections on the Guillotine, for inspiration and to get started on what I think will turn into a law student/philosopher/former journalist's view on why America continues to execute criminals when most of the rest of the Western world quit decades ago. The final paper is a 25-40 pager I'm just starting for my Post-Conflict Justice/Rule of Law class. This week I switched topics, ultimately deciding to write about the new legal rights given to victims in the Khmer Rouge trial.

My original topic, and my reason for writing today, was the conflict in Gaza between Israel and Hamas. I could not come up with a post-conflict thesis for my paper, in part because the conflict has not ended. I did, however, become even more interested in the crisis and the myriad problems that both sides face. Perhaps coincidentally, my girlfriend posted this fantastic article on her Facebook profile. A Japanese novelist, Haruki Murakami, faced the difficult decision of whether to go to Israel and accept a literary award, at a time when Israel's popularity in the world continues to plummet. In his amazing piece for Salon, he creates an apt metaphor for the conflict:

"Between a high, solid wall and an egg that breaks against it, I will always stand on the side of the egg."

Of course, Israel, with its superior weaponry and U.S. backing, is the wall and the Palestinians are the egg. Or do the Israeli government and Hamas together form the wall, making Israeli and Palestinian civilians the egg? Haruki leaves an important ambiguity there, one worth pondering.

A first in international law

One of my classes this semester is International Criminal Law, a burgeoning field of law that began in earnest after World War II, with the Nuremberg and Tokyo Tribunals. When most people think of criminal law, they think of crimes like murder, robbery, theft, etc. There are hundreds, if not thousands, of domestic crimes, and they vary by state and country.

International crimes, on the other hand, are few — but they are hefty. After Nuremberg, there were essentially three international crimes: war crimes (breaking the rules of war, a series of treaties that includes the Geneva Conventions), genocide (systematically killing a group of people because of their ethnicity or religion), and crimes against humanity (engaging in systematic persecution, torture, rape, or other inhumane acts as part of a governmental policy). A fourth international crime, aggression, is still in development, and is not used as often as the others.

Most international crimes have been prosecuted by ad hoc tribunals — courts set up to deal with international crimes after they have occurred. This has been the case for situations like the former Yugoslavia (the ICTY) and Rwanda (the ICTR). The field of international criminal law got a huge boost in 1998, when 120 countries signed a treaty containing the Rome Statute, which established a permanent, forward-looking International Criminal Court. The court has its permanent seat at The Hague, Netherlands, and operates independently — for the most part — of the United Nations.

(Although the Clinton Administration helped draft the Rome Statute, the Bush Administration and Republicans in the Senate refused to ratify the treaty, so the U.S. is not a member of the International Criminal Court.)

This is just a little background to help explain what's happening today, which is a first in international criminal law. The ICC has issued an arrest warrant for Omar al-Bashir, the president of Sudan. He is accused of war crimes, genocide, and crimes against humanity. Obviously it's difficult to arrest a sitting president, so it's not at all clear when or if that will happen. But he has been indicted, and an ICC prosecutor is waiting for Bashir in The Hague, should he somehow be delivered. For a depressing look at what has happened in the Darfur region of Sudan on Bashir's watch, go to savedarfur.org.

What happens next may depend on the actions of five key nations: China, France, Russia, the U.K., and the U.S. These are the five permanent members of the UN Security Council. If the Security Council so chooses, it may permanently delay Bashir's prosecution. As the Times article suggests, some people believe that it could be detrimental to any peace process in Darfur if Bashir is extradited to The Hague and put on trial. That could lead to many more years of chaos in Sudan. But it would also likely mean the first prosecution of the sitting president of a country — a revolution in international law.

UPDATE: Turns out the Times article may have been a bit premature. The Associated Press reports that the ICC is denying that its judges have made a decision to issue a warrant for Bashir's arrest.

SFIP & BLSA Death Penalty Symposium

The William & Mary Law chapter of Students for the Innocence Project and the Black Law Students Association co-sponsored the second annual Death Penalty Symposium on Saturday, Feb. 7 at the law school. The forum featured capital trial and appellate lawyers and John Thompson, who was convicted of a crime he did not commit and was exonerated in 2003 after 18 years in prison, including 14 on death row.

Judge Tommy Miller, a federal magistrate judge in Norfolk, moderated the symposium and provided opening remarks on the history and constitutionality of the death penalty in the United States.

Miller said a conversation about the death penalty is highly relevant. The State of Maryland is considering abandoning the death penalty. There were recent editorials on the topic in both the Washington Times and Washington Post, with each paper taking opposing sides of the debate.

“It always puzzled me why the death penalty is considered part of the conservative philosophy because conservatives generally don’t believe the government can get anything right, so why should they believe [the government] would get the death penalty right?” Judge Miller said.

Miller said the first legal execution in the United States took place in 1608, just five miles down the road at Jamestown Colony. The death penalty was very much in vogue in England, he said, and when we drafted the Constitution, we included the Eighth Amendment — “nor shall cruel or unusual punishment be inflicted.”

The case of Furman v. Georgia, 408 U.S. 238 (1972), declared the death penalty unconstitutional as applied. At the time it was announced, the opinion was the longest in Supreme Court history, and included opinions by all nine justices.

The death penalty returned with the Court’s decision four years later, in Gregg v. Georgia, 428 U.S. 153 (1976). That decision, 7-2, held that changes Georgia had made to its death penalty scheme were sufficient for the system to be constitutional.

Since Gregg, the Court has narrowed the situations in which the death penalty can be used. It cannot be used for certain crimes, such as the rape of an adult woman, Coker v. Georgia, or a child, Kennedy v. Louisiana; or for certain defendants, such as juveniles, Roper v. Simmons, the mentally ill, Atkins v. Virginia, or the insane, Ford v. Wainwright.

The arguments against the death penalty include arbitrariness. This can take place at many levels — the police who investigate the crimes, the attorneys who prosecute the offenses, the judges who oversee the cases, the juries who hear them, and the appellate judges who take up the cases on review. One recent example is the case of Jackson v. Commonwealth, 255 Va. 625 (1998).

The Supreme Court decided an important death penalty case last year in Baze v. Rees, which upheld the constitutionality of Kentucky’s system of lethal injection. In that case, however, Justice John Paul Stevens, wrote for the first time in his 32 years on the Court that he believes the death penalty to be unconstitutional.

So is the death penalty unconstitutional? Judge Miller’s conclusion is that the Constitution is what five members of the U.S. Supreme Court say it is. Justices William Brennan and Thurgood Marshall consistently wrote that the death penalty was unconstitutional, including their majority opinions in Furman. Justice Harry Blackmun voted for the death penalty’s constitutionality in both Furman and Gregg, but writing in a denial of a writ of certiorari in Callins v. Collins several months before his retirement in 1994, Blackmun voiced his regrets, saying he would “no longer tinker with the machinery of death” or “coddle the Court’s delusion” that the death penalty worked in the United States. Justice Lewis Powell, a consistent vote for the death penalty, retired from the Court in 1987, 11 years after he joined a seven-justice majority in Gregg. But in a 1991 interview, he said that if he had it to do over again, he would vote the other way in every death penalty case, including the Court’s landmark decision of McCleskey v. Kemp (1987), which held that the death penalty was not racially discriminatory in its application. Combined with Justice Stevens’s remarks in Baze, that’s five votes against the death penalty’s constitutionality. (Of course, only one of those justices — Justice Stevens — remains on the court today.)

Richard Dieter, Death Penalty Information Center
Richard Dieter, executive director of the Death Penalty Information Center in Washington D.C., spoke about death penalty trends in the United States. The number of executions steadily rose between 1976, with the Court’s decision in Gregg, and the late 1990s. More jurisdictions implemented the death penalty, including Kansas and New York.

But then something happened — the case of Kirk Bloodsworth. Bloodsworth was a former Marine who had no prior criminal record. One day in 1984, he was in a park in Rosedale, Maryland, where a nine-year-old girl was raped and murdered. Some child witnesses identified Bloodsworth, who was convicted of first-degree murder and sentenced to death. Nine years after his conviction, in 1993, a DNA test exonerated Bloodsworth, who had always maintained his innocence.

“It wasn’t just the courts or lawyers who freed Kirk Bloodsworth. It was science,” Dieter said. “If it wasn’t for science, Bloodsworth might still be in prison.”

Kirk Bloodsworth became the first death row inmate to be exonerated based on DNA evidence, but he wasn’t the last. As of January 2009, 130 death row inmates have been exonerated in the U.S., including 51 between 1997 and 2004.

“That’s a disturbing number,” Dieter said.

In 1998, Northwestern University Law School hosted the first-ever exoneree conference, where each former death row inmate stood up and told his story. The event is credited with contributing to the current moratorium on executions in Illinois. See Henry Weinstein, Victims of the Justice System, L.A. Times, April 9, 2006 at B1, available at http://articles.latimes.com/2006/apr/09/local/me-wrongly9.

Death row exonerations have not been limited to DNA cases. Dieter told the story of Anthony Porter, a death row inmate in Illinois, who was convicted based on erroneous eyewitness testimony. Journalists interviewed the witness, who recanted her testimony and gave the name of the real killer. The journalists went to Milwaukee to find the man, who confessed to the murder and was later convicted. Porter was freed, and then-Illinois Gov. George Ryan commuted the death sentences of all 156 Illinois death row inmates before leaving office in 2003. See Governor Clears Illinois Death Row, BBC News, Jan. 11, 2003, available at http://news.bbc.co.uk/1/hi/world/americas/2649125.stm.

After the Illinois moratorium, the number of death sentences nationwide began to fall dramatically, from about 300 in 1999, to about 125 in 2005. That trend has been aided by jurisdictions dropping the death penalty altogether. The New York Court of Appeals held that state’s death penalty unconstitutional in 2004, and the New Jersey Legislature abolished the death penalty largely for cost and efficiency reasons in 2007.

“I think innocence has played a significant role,” Dieter said. “But clearly innocence is not the whole story.”

Executions have also dropped from a high of 98 in 1999 to 37 last year, but that trend is likely to go the other way this year. After the Court granted certiorari in Baze, there was a moratorium for several months in 2008 as states waited to hear whether the constitutionality of lethal injection would be upheld.

The vast majority of executions occur in the South — of the 37 executions nationwide last year, 95 percent of them occurred in Southern states.

Recent polls show that the public is now evenly split on the death penalty.

Dieter spoke about several cases like that of Larry Griffin, who was executed in Missouri, despite questions about his innocence. Thus far, there has not been a case in which someone has been exonerated after an execution, but should that happen, Dieter believes it would give the public real pause about keeping the death penalty.

Dieter also raised the issue of cost. The death penalty has cost the State of California $1.25 billion in 10 years, and there are nearly 670 people on California’s death row. California has not executed an inmate in more than three years, and has only executed 13 people since Gregg in 1976.

One audience member said that when he thinks about the death penalty, one person comes to mind: John Malvo. Malvo, the younger participant in the sniper shootings in Maryland and northern Virginia, was convicted and sentenced to life imprisonment without chance of parole. The audience member said that the people wanted Malvo executed, and that he believes that when a person is found guilty of first-degree murder, that’s what should happen.

“The problem has been, it just hasn’t worked,” Dieter said.