Our Common Good

Against this backdrop, Barack Obama’s criminal-justice and drugs record seems tepidly sensible; a decade or two ago he might have been felled by the soft-on-crime charge. His drug-control strategies, released annually, have emphasised treatment and prevention as much as jail. His most recent drugs budget spends more on the former than the latter. His health reforms will require health insurers to provide addiction and mental-health services. And his top drugs official has relegated the phrase “war on drugs” to the dustbin, and has warned that Americans “cannot arrest our way out of this problem”.

Crack v coke

Mr Obama also corrected a long-standing injustice in federal policy when, in 2010, he signed the Fair Sentencing Act. That reduced the disparity of punishment for possession of crack versus powder cocaine from 100:1 (a five-year term was mandated for first-time possession of five grams of crack, while it took 500 grams of powder to trigger the same sentence) to 18:1.

On other issues, however, Mr Obama remains a committed drug warrior. Although the Fair Sentencing Act reduced penalties for crack-cocaine possession, it increased them for drug trafficking. During his 2008 campaign, Mr Obama vowed not to use federal law-enforcement to go after people acting within state medical-marijuana laws (medical marijuana is legal in 17 states and in Washington, DC). As president, however, his Justice Department has vigorously pursued medical-marijuana growers and dispensaries, raiding about 200 since 2009. Mr Obama insists that his campaign promise referred to individual users, and Eric Holder, his attorney-general, told Congress that the raided growers and dispensaries were “going beyond that which the states have authorised”. That is a very fine distinction, and it will receive a greater test in November, when voters in Washington state, Oregon and Colorado decide whether—in direct contravention of federal law—to legalise marijuana for recreational use.

Mitt Romney’s criminal-justice record is thinner but clearer: he seems to be a standard law-and-order candidate, though his campaign has been cagey about answering detailed questions in this area. He was the first governor in modern Massachusetts to deny every request for pardon or commutation. He increased the size of the state’s police-force and its crime lab. He opposes drug legalisation and, hauling out a hoary old drug-war chestnut, has called marijuana “a gateway drug”. He also opposes the use of medical marijuana, but has called it a “state issue”, leaving open the possibility that his policy towards states that legalise it might be one of benign neglect. On that particular matter, the choice is stern-faced or two-faced.

Using data on annual crime rates for large cities in the United States, we find that living wage ordinances are associated with notable reductions in property related crime and little impact on non-property crimes.
Jose M. Fernandez et al., The Impact of Living Wage Ordinances on Urban Crime (2012).  Download the paper at SSRN.  h/t CrimProf Blog. (via letterstomycountry)


Heartbreaking interview. I can’t even imagine what it must be like for people who are wrongfully convicted and then pay for something they never did with years of their lives.

The backlog of DNA testing should be a priority for state budgets. I would really love to see an Innocence Project established in every single state, with a generous budget & skilled staff. 

If we’re going to give liberty so much lip service in America, then we really should make it a priority.

Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle. Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders. In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice. With an ever-expanding list of behaviors and actions deemed criminal, and increasingly harsh sentencing options for these offenses, prosecutors are able to put pressure on most criminal defendants to give up many of their most fundamental Constitutional rights and plead guilty to avoid potentially draconian outcomes.


This week marked the eleventh anniversary of the execution of Timothy McVeigh and Andrew Cohen wrote an excellent piece about the concept of closure in reviewing Jody Lyneé Madeira’s Killing McVeigh: The Death Penalty and the Myth of Closure.

In particular, Cohen highlights the experience of my friend Bud Welch, who lost his daughter Julie in the bombing and who was outspoken in his opposition to McVeigh’s execution. I worked with Bud and many other remarkable people like him in the eight years that I served on the Board of Directors of the Journey of Hope; they made it possible for me to understand that words like forgiveness and reconciliation aren’t descriptions of an event so much as an ongoing process, thereby highlighing the insidiousness of those who hold out the possibility that victims’ family members will “get closure” from witnessing an execution.

Cohen does a nice job of using Bud’s story to bring this home:

From Killing McVeigh:
One of the most spectacular participant experiences with perpetrators’ family members arose out of media interview with McVeigh’s father. Bud Welch [the father of bombing victim Julie Welch] was struck by a television interview with Bill McVeigh [the bomber’s father] about a year after the bombing in which he was “physically stooped in grief”; Welch explained, “He had a deep pain in his eye that I recognized immediately because I was living that same pain at that same moment,” Then and there, he said, “I knew that someday I needed to go tell that man that I truly cared how he felt and did not blame him or his family for what his son had done.

Welch and McVeigh met in September 1998 in upstate New York, Madiera tells us, and “the two men spent the first half hour of the visit literally finding common ground in Bill McVeigh’s garden.” Inside the house:

One particular photo of Tim soon caught Welch’s attention, and his gaze was repeatedly drawn to that image. He eventually realized that he had to say something about why he was drawn to the picture. “Finally, I just said, ‘God, what a good looking kid,” Welch recalled. His comment was greeted by silence; finally, Bill McVeigh looked at him and said, “That’s Timothy’s high school graduation picture.” At that moment, Welch related, “There was this big tear that rolled out of right eye, down his cheek. And I could see at that moment that this father could cry for his son.”

Reflecting back upon this meeting, Welch said: “I think what happened that Saturday morning in western New York is that I found a bigger victim of the Oklahoma City bombing than myself.” While Welch has had numerous opportunities to talk about [his daughter, Julie, killed at the Murrah federal building on April 19, 1995], he emphasized, “Bill doesn’t have a chance to ever say anything positive about Tim.”

What happened inside the kitchen of Bill McVeigh’s house that September day is how and why tortured people achieve a measure of peace from the torment in their lives. For them, nothing ever closes. And nothing ever will.


From a 2008 post at Simple Justice, Scott Greenfield takes a commenter to task for defending Paul Cassell’s absurd claim that Blacks are disproportionately imprisoned because Blacks simply commit more crimes than Whites.  The commenter references FBI UCR statistics:

…Access the FBI uniform crime reporting program on their website. You can wade thru the stats or cut to the chase and just go to table 43, arrests by race, 2005 (last year of stats ). These corrolate with the DOJ victim stats. For instance, blacks make up approx. 13% of the U.S. population. In 2005 they made up 56% of the robbery suspects. 

..We don’t get to make up the facts, just our opinions, and it’s not racist if it’s fact. Based on what the facts are, as contained in DOJ and FBI stats, and my own personal experience, black folk, mainly menfolk, commit a higher frequency of crime than other ethnic groups or races. Much higher. If you have any evidence that I’m wrong in my belief, bring it out or referrence it, I’d like to see it. I’m willing to change my opinion if the facts have changed, or I read them wrongly. But I’m not willing to substitute my emotion for my intellect.

What’s the problem with using these statistics as proof that Blacks commit more crimes than Whites?  As Greenfield notes, conviction rates have almost zero relevance to who is actually committing crimes:

The stats do not show who commits crimes.  They show who are arrested, prosecuted and convicted for crimes.  The breakdowns don’t account for variables.  If blacks and whites live in the same upper middle class neighborhood, do they still commit 56% of the crimes?  If not, then you eliminate the variable of black from propensity and are left with poverty.  If the lives and circumstances of whites and blacks were reversed today, then the stats would be the opposite because race plays no role in propensity to commit crime.  

Blacks are disproportionately in prison because they are disproportionately investigated, arrested, and sentenced to prison for behavior that all races manifest in equal measure.  As I explained in November:

Imagine you have two groups of individuals: call them A and B.  Let us assume that both Group A and B participate in behavior that is punishable as a crime at equal rates.

Now let us imagine that the police are allowed wide discretion in whom they investigate for crime.  Obviously, if the police decide to pay closer attention to one group rather than the other, they will discover more crimes within that group, and thus, make more arrests.  But remember that both Group A and B participate in behavior punishable as crime at roughly equivalent rates.  Yet because the police pay extra-close attention to Group B, more of Group B’s members end up in jail.  This gives people the impression that members of Group B are more likely to be criminals, even thought Group A participates in illegal behavior at the same rate as Group B.

If all races were investigated, convicted, and sentenced to prison at the same rate that Blacks in America are today, the criminal justice system would grind to a halt underneath the weight of its own “efficiency.”  Critical race scholars in legal academia have been screaming about this for years, but the inequities in our system continue unabated; in part because hacks like Paul Cassell, a former U.S. District Court judge, Supreme Court law clerk, and current professor of Law at Utah, continue to lend legitimacy to these theories by offering up statistics with zero critical analysis.


We’ve known for quite some time that our justice system is capable of condemning innocent men to death. But some people — like Antonin Scalia, George W. Bush, and Rick Perry — continued to claim the system worked so well that it was always able to save them from execution. With the all of this information about Carlos DeLuna and Cameron Todd Willingham, it’s hard to believe that anyone will continue to make such a claim going forward. Except we know, of course, that they will.

Many years ago now, I bristled at the plot of The Life of David Gale precisely because it implied that, since innocent people really aren’t executed, opponents of the death penalty would need to go so far as to enter into an elaborate conspiracy to make it happen.

That, of course, is demonstrably false:

A Texas judge who reviewed the controversial 2004 execution of Cameron Todd Willingham planned to posthumously exonerate the father who was put to death for killing his three daughters in a house fire.

Scientific experts who debunked the arson evidence used against Willingham at his 1992 trial and a jailhouse witness who recanted his shaky testimony convinced District Court Judge Charlie Baird in 2010 that “Texas wrongfully convicted” him. But Baird’s order clearing Willingham’s name never became official, because a higher court halted the posthumous inquiry while it considered whether the judge had authority to examine the capital case.


Baird’s intended order never came to light because the court of appeals criticized his handling of the case and prevented him from resuming work on it before he left the bench at the end of 2010 after choosing not to seek re-election. No one asked him for it after the court of appeals blocked him, he said.

Baird, now an attorney in private practice, said he was moved to share the document with HuffPost after reading about Carlos DeLuna, a Texan who a Columbia University team said this week may have been wrongly executed in 1989.

In 2006, Justice Scalia wrote that there hasn’t been “a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.”

When do we suppose Scalia will be prepared to shout his error from the rooftops?

The best I can figure … this appears to be a matter of sticking to a principal that nobody will explain. No matter how you look at, from my view … I can’t see a rational explanation.

So says Maren Chaloupka, a Scottsbluff, Nebraska attorney who has some experience representing death row inmates.

Chaloupka is talking, of course, about the state’s refusal to hand over to the FDA its ill-gotten supply of sodium thiopental, despite a U.S. District Court ruling that requires the state to do so.

And why not simply hand over the sodium thiopental and change the execution protocol so that sodium thiopental is no longer required? Well, it’s not so simple to do that:

State law says the director of Correctional Services has the authority to create and modify the state’s lethal injection protocol, including determining the chemicals that will be used.

But it’s not as simple as ordering up a change, state Corrections Department spokeswoman Dawn-Renee Smith said.

State officials would be required to follow certain administrative procedures that would require at least one public hearing on the matter, which would mean posting notice of the hearing at least 30 days before it’s held, gathering and considering public comment and implementing a new plan.

“It’s a much longer process than just changing it,” Smith said.

Smith said her department is working with the state attorney general’s office “to figure out where we go from here.”

OK. But let’s presume that the protocol could be changed, even if it takes a little while. Why not get that process started so that Nebraska can use some other drug to poison people to death? Well, that too is complicated, as my friend and colleague Eric Berger points out:

Changing to pentobarbital might not keep Nebraska officials from facing more lethal injection problems, said Eric Berger, a constitutional law professor at the University of Nebraska-Lincoln.

Berger noted that a Danish pharmaceutical company that manufacturers pentobarbital recently sent letters to correctional departments in 16 states saying it didn’t want the drug it makes used in executions.

“So, it’s conceivable that eventually pentobarbital would be scarce for executions just like thiopental is now,” Berger said.

The fact is that drug companies don’t want to be associated with executions … whether for moral or business reasons, or because the country or federation of countries where they’re headquartered opposes the death penalty. And that’s going to make it harder and harder for states to use drugs to kill people.

The full story here.

More of my thoughts on the death penalty mess in Nebraska (with a fair number of additional links) here.


I’ve been talking about the sodium thiopental issue in Nebraska for many months now (though, clearly, the issue extends to many states that want to continue to poison prisoners to death):

U.S. District Judge Richard Leon said the Food and Drug Administration ignored the law in allowing foreign-made sodium thiopental into the country. He ordered the FDA to immediately notify any state correctional departments with foreign-manufactured sodium thiopental that its use is prohibited by law and that the drug must be returned to the FDA.

“It is hereby ordered that the FDA … immediately notify any and all state correctional departments which it has reason to believe are still in possession of any foreign manufactured thiopental that the use of such drug is prohibited by law and that, that thiopental must be returned immediately to the FDA,” Leon wrote, “and … be permanently enjoined from permitting the entry of, or releasing any future shipments of, foreign manufactured thiopental into interstate commerce.”

Nebraska purchased its supply from an international drug dealer based in India who obtained it from its European manufacturer under false pretenses. The drug company wants it back, the Department of Corrections says it won’t give it back, and the Attorney General doesn’t think it matters if laws are broken to get the drugs so long as the drugs are effective at judicially murdering people like Michael Ryan. This is, of course, the second batch that Nebraska has obtained under sketchy or outright illegal circumstances; the Drug Enforcement Agency claimed that the first batch was imported illegally.

The reason that this ruling matters is that if Nebraska — and other states who rely on sodium thiopental to kill people — can’t use its ill-gotten drugs to kill the handful of men on death row, it will need to either find another source for the drug (increasingly unlikely) or rewrite its death penalty statute (time consuming). Michael Ryan, whose execution will almost certainly be stayed as a result of this ruling, isn’t getting any younger and there are a lot of people (especially elected officials) who have invested a staggering amount of time and taxpayer dollars into killing him before he dies of natural causes.

The saga continues …


As many of you surely know, the Supreme Court earlier this week decided a case by the name of Florence v. Board of Freeholders, in which they held that prison officials do not need probable cause nor reasonable suspicion to perform an incredibly invasive strip-search of incarcerated individuals, even where that search is made incident to a minor crime amounting to an administrative violation.

It’s important to understand what happened in this case in order to fully understand the implications of its holding: the petitioner in Florence was arrested during a traffic stop after a background check revealed that there was a bench warrant for his arrest after failing to appear at a hearing to enforce a fine.  He was later released after it was determined that the fine had already been paid.  Prior to his release, the petitioner was taken to two different county correctional facilities, where he was forced, inter alia, to strip off all of his clothes, shower in front of corrections officials, squat and lift up his genitalia for visual inspection, and was then forced to bend over and spread the cheeks of his buttocks apart by hand so that prison staff could visually inspect his anus.

After being released, Florence filed a § 1983 claim in federal District Court, seeking a declaration that persons arrested for a non-indictable offense should not be forced to remove their clothing, or be subject to naked, visual inspection of their private body parts absent reasonable suspicion that the person is carrying a weapon, drugs, or other illegal substances.  

The District Court granted summary judgment in favor of the petitioner, announcing that such invasive searches of people arrested for non-indictable crimes are unreasonable under the Fourth Amendment when done without reasonable suspicion that the person has weapons, drugs, or other illegal substances on their person.  A split Court of Appeals, however, reversed the District Court, reasoning that the prison’s strip-search protocol struck a reasonable balance between the 4th Amendment rights of the petitioner and the state’s interest in keeping prisons free from weapons, disease, or other contraband.  From there, it went to the Supreme Court, and the rest, as they say, is history: Kennedy et al. decided that requiring reasonable suspicion would be “unworkable,” and gave prison officials carte blanche to perform these invasive searches on whomever, for whatever reason.

Before I proceed, it is important that I be fair to the Court: in Alito’s concurring opinion, he notes that Kennedy’s opinion is limited to the facts of the case, and leaves open the possibility of an exception in future circumstances:

I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees  who are committed to the general population of a jail  to undergo visual strip searches not involving physical contact by corrections officers. To perform the searches, officers may direct the arrestees to disrobe, shower, and submit to a visual inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.

This limiting principle is, quite frankly, a cold comfort.  The entire point of the Fourth Amendment’s “reasonableness” requirement is that every interaction between law enforcement and the general public must be justified by some objective criteria.  In addition, the reasonableness of a search is proportional to both the invasiveness of the search, and the justification for the search.  When balancing Fourth Amendment rights in a case like this, the proper dispensation will always be a function of some sort of limiting principle, which allows law enforcement officials to competently perform their duties without impinging upon the rights of people who they interact with.

The limiting principle that the petitioners were asking for was reasonable suspicion.  Reasonable suspicion is literally the most trivial, easy-to-satisfy legal test in existence.  It is often fabricated by law enforcement officials, and is more of a formality than a meaningful legal threshold.  To wit, the Supreme Court has held that reasonable suspicion can exist if you are so much as standing in “a high crime area” (see Illinois v. Wardlow, 528, U.S. 119 (2000)).  Reasonable suspicion is essentially one step above no legal test at all.  Hence the reason why Justice Douglas, dissenting in Terry v. Ohio, admonished the Court for taking a “long step down the totalitarian path.”  It is more meaningful as an academic concept than a concrete restriction on law enforcement.

So the petitioners in this case were not asking for very much at all.  They even conceded that prison administrators have a legitimate interest in conducting strip searches of incoming detainees.  They simply asked that, in light of the invasive and humiliating nature of these strip searches, persons who have been arrested for a minor violation should not be subject to strip searches absent reasonable suspicion (i.e. one step above nothing at all) that the person has weapons, drugs, or contraband.  Apparently, even this was too much for the Court to bear.

The Florence case demonstrates just how out of touch the Court majority is with what street-level criminal investigation actually looks like.  The fact that the Court rejected the most trivial, easy-to-satisfy legal test, applied to a very select class of prisoners, shows that reasonable suspicion remains a fundamentally academic exercise for them, which bears no resemblance to the way in which reasonable suspicion actually manifests in the execution of law enforcement duties.  The emptiness of the reasonable suspicion standard is the worst kept secret in our criminal justice system.  It cannot be emphasized enough just how little the petitioners were asking for in this case.  The fact that the Court refused to give it to them is outrageous, and frankly, unexpected coming from Kennedy; who is usually a reliable vote when issues involving the negative liberty of an individual petitioner come before the Court.

The Florence case also demonstrates how, once again, the Court majority has missed the forest for the trees.  Everything that Kennedy identifies in his majority opinion regarding prison safety are legitimate concerns.  But the point here isn’t whether prisons have a legitimate interest in preventing weapons, drugs, and contraband from entering their prisons. Of course they do.

The point, rather, is where we strike the balance: do we want to live in a nation where minor offenses give law enforcement and prison officials the right to make you stand naked in front of strangers with guns that have absolute authority over you? Or do we want to live in a nation where the cops can’t force you to star in a soft-core porno because you were driving 55 in a 50? The dehumanizing effect of these procedures is precisely the sort of conduct that needs to be justified by a threshold legal test. And the prison conditions that Kennedy relied on in his opinion say more about the problematic nature of mass incarceration than they do about the unreasonableness of the petitioner’s suggested legal test.  It simply shocks the conscience that the Supreme Court doesn’t think we should draw a constitutional line (even a thin, trivial one), at the point where agents of the state are gazing into a person’s anus.

On one hand, we shouldn’t be surprised to see the Court once again selectively invoke “judicial deference” in order to justify its decision.  On the other hand, it doesn’t make it any less wrong, or for that matter, dangerous.  I can only hope that a future Court will bring us back from the brink, before we become buried under the suffocating weight of invidious precedents that forestall the reestablishment a more sanguine jurisprudence.


When two Austin filmmakers set out to chronicle the flawed forensics behind the 2004 execution of Cameron Todd Willingham, they found themselves in the middle of a pitched political battle, pitting criminal justice activists against the a Texas governor (Rick Perry) looking to sweep news of a wrongful execution under the rug. Joe Bailey and Steve Mims chat with MoJo about their new documentary, Incendiary.


Capital punishment’s mysterious wheel of life and death spins on, seemingly at random:

Gov. John Kasich commuted the death sentence today of Joseph Murphy of Marion, who was scheduled for execution Oct. 18.

It was the second time this year Kasich spared the life of a condemned killer.

In a statement, Kasich said the murder of Ruth Predmore was “heinous and disturbing” and Murphy deserves punishment despite his abusive childhood.

He added: “After examining this case in detail with counsel I agree with Chief Justice Moyer, the National Association of Mental Illness and the Parole Board’s unanimous 8-0 decision that considering Joseph Murphy’s brutally abusive upbringing and the relatively young age at which he committed this terrible crime, the death penalty is not appropriate in this case.

Not sure why this seems random to me? Click here. Or here.


Lawrence O’Donnell, Rewriting the American Death Penalty.

He absolutely nailed it.  This is one of the most powerful, thought-provoking things I’ve seen in a long time and I hope you check it out.

1) Join NCADP’s e@bolitionist listserv to get the latest news and action alerts, and tell a friend about it!  Sign up here.

2) Make a donation to support the work of an organizations working on the death penalty. There are groups at the national and local level that could greatly benefit from your support. Click here to donate to NCADP. 

3) Make plans to attend NCADP’s 2011 annual conference on the death penalty in Chicago, IL., Jan. 13 - 16. Details coming soon!

4) Find groups working on the death penalty in your state here and contact them to see how you can get involved locally. 

5) If your state legislature has abolition or moratorium bills pending, write your representatives in the state legislature and/or your governor expressing your support for the bill and articulating your personal objections to the death penalty.  If there is no such bill pending in your state legislature, write your representatives to ask that they consider sponsoring such a bill. 

6) Wear your opposition to the death penalty. Click here to purchase an article of clothing, bumper sticker or pin.

7) Visit the following websites on a regular basis to stay apprised of death penalty information and breaking news and actions:

National Coalition to Abolish the Death Penalty
Death Penalty Information Center
Amnesty International
Equal Justice USA

8) Write a Letter to the Editor in response to an article that appears in your local newspaper on the death penalty or related topics. 

9) Talk to your faith leader about engaging your house of worship on the death penalty.

10) Sign up for an account on MySpace.com or Facebook.com and network with others on the death penalty.

A lot of people have been mobilized by the Troy Davis case, especially in the past few days. You called and emailed elected officials; you petitioned political appointees; you demanded that people be held accountable for a decision that put proper procedure ahead of anything else. But what will all of you do tomorrow? Will you dedicate yourselves to putting an end to the system whose flaws became so apparent to so many tonight? Or will you forget about the continued injustice of the death penalty until the next Troy Davis is moved to the death house? You have many other legitimate concerns in your daily lives and many other important issues that demand your attention. But you cared so much this time; do you think you can continue to care about the brokenness of our justice system as you do right now, tonight?


A lot of people have been mobilized by the Troy Davis case, especially in the past few days. You called and emailed elected officials; you petitioned political appointees; you demanded that people be held accountable for a decision that put proper procedure ahead of anything else. But what will all of you do tomorrow? Will you dedicate yourselves to putting an end to the system whose flaws became so apparent to so many tonight? Or will you forget about the continued injustice of the death penalty until the next Troy Davis is moved to the death house? You have many other legitimate concerns in your daily lives and many other important issues that demand your attention. But you cared so much this time; do you think you can continue to care about the brokenness of our justice system as you do right now, tonight?