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Tag: "civil liberties"

Injustice and Felony Murder

[ 20 ] December 4, 2007 |

Via Plumer, Adam Liptak discusses the case of a 20-year-old in Florida serving life without parole for lending some friends his car. What’s particularly useful in the article is that Liptak makes clear how unusual it is for the U.S. to have retained the concept of felony murder that holds accomplices equally responsible for murders committed by others regardless of their intentions:

Most scholars trace the doctrine, which is an aspect of the felony murder rule, to English common law, but Parliament abolished it in 1957. The felony murder rule, which has many variations, generally broadens murder liability for participants in violent felonies in two ways. An unintended killing during a felony is considered murder under the rule. So is, as Mr. Holle learned, a killing by an accomplice.

India and other common law countries have followed England in abolishing the doctrine. In 1990, the Canadian Supreme Court did away with felony murder liability for accomplices, saying it violated “the principle that punishment must be proportionate to the moral blameworthiness of the offender.”

Countries outside the common law tradition agree. “The view in Europe,” said James Q. Whitman, a professor of comparative law at Yale, “is that we hold people responsible for their own acts and not the acts of others.”

The point here is not that Holle is entirely innocent, but it seems far more appropriate to sentence him as an accomplice before the fact than as a murderer. (And when combined with another distinctive feature of the United States compared to other legal regimes — maintaining the death penalty — the potential for injustice is even more severe.)

The Immolation of Privacy, Cot’d.

[ 12 ] November 26, 2007 |

The latest from the War On (Some Classes of People Who Use Some) Drugs, a/k/a where the Constitution goes to die. Wheeler does a very good job of explaining the illogic behind claims that the government doesn’t need probable cause to get access to tracking data; if taken seriously, it would eviscerate large parts of the Bill of Rights. It would also make hash of existing Fourth Amendment doctrine; one doesn’t surrender their constitutional rights by using new private technologies to communicate with other people. As Justice Stewart correctly observed, “the Fourth Amendment protects people — and not simply ‘areas.’” People should be entitled to the reasonable expectation that the state will not have access to private tracking data, email, etc. without some independent reason to suspect wrongdoing.

On the other hand, this does give me another excuse to resist getting a cell…

Lethal Weapon

[ 0 ] November 24, 2007 |

Sasha Undercover says that 300 people have died from the use of tasers in the U.S. this year. This is, however, not solely an American problem: a case where a Polish immigrant who died after being tasered was major news in Canada last week. It seems likely that although they’re presumably an alternative to using firearms tasers are much more likely to lead to deaths that one might think, and serious questions need to be asked about the frequency of their use.

Cautious Optimism

[ 0 ] November 16, 2007 |

A long way to go, but this is obviously excellent news. The state enlisting private entities to reveal information about their customer will be a major privacy issue, and it’s critical that incentives remain in place that would force companies to actually consider the rights of their consumers before assisting in illegal government activity.

Sentencing on Crack

[ 3 ] November 13, 2007 |

As a number of bloggers have noted, the U.S. Sentencing Commission will be hearing testimony today about whether their new guidelines reducing the gross and arbitrary disparity between sentences for crack and powdered cocaine should be applied retroactively. Sentencing Law and Policy points to this WaPO story, noting that upwards of 90% of those affected by the change would be black, while only 6% are white. Hopefully the Commission will act to address this injustice for those who have already been affected. Jeralyn Merritt concludes with this argument:

Reducing the crack penalties is just the beginning. A renewed fight to get Congress to change mandatory minimum sentences based on drug quantity alone must come next. Perhaps with the internet’s ability to spread the word, it will come, before all those serving life sentences die in prison of old age and can still benefit from it.

Evidently, the War on (Some Classes of People Who Use Some) Drugs — expensive, ineffective, and where civil liberties go to die — is in need of serious reform. One thing I’ve wondered is how politically damaging opposing at least its most draconian aspects would be at this point. Hopefully some popular incumbents with a conscience will allow us to find out sooner rather than later, although there’s a very long way to go. It’s very important, however, for drug laws to be applied more equitably if headway in reforming them is going to be viable.

The Lodi Lieberman

[ 50 ] November 10, 2007 |

Dianne Fienstein (Senator Desperately In Need Of A Primary Challenge-CA) supports immunizing companies who acted illegally by violating the privacy of their customers. It would be holding companies “hostage” to punish them for illegal activity, since state actors were also involved! Boo-hoo-hoo-hoo! For reasons I can’t understand, the fact that litigation would be “costly” — and hence deter future illegal behavior and violations of customer privacy — is supposed to be a bug, not a feature. The classic coservertarian bait-and-switch.

With Lieberman out, it’s becoming overwhelmingly clear that with the appropriate regional adjustments Fienstein is the worst Democrat in the Senate. Can we at least get her booted off the Judiciary Committee?

Lethal Injection and Moral Seriousness

[ 0 ] November 5, 2007 |

An interesting article by Elizabeth Weil on the strange origins of the current formula for lethal injections now under challenge at the Supreme Court:

Hoping to coat the nastiness of killing with a veneer of medical respectability — and also hoping to save the state the expense of fixing its electric chair — Dr. Jay Chapman, then the chief medical examiner in Oklahoma, devised the three-drug cocktail in 1977. Dr. Chapman has described himself as “an expert in matters after death but not in getting people that way,” and he has acknowledged never having done any research on how best to kill a man. Nonetheless, some version of his three-drug cocktail is now used by the federal government and the 37 states that kill inmates by lethal injection. (Nebraska, the 38th state with a death penalty, uses the electric chair.)

The three-drug cocktail is meant to mimic the induction of general anesthesia and it works like this: The execution team inserts an IV line into the condemned prisoner and then delivers a dose of sodium pentothal, an “ultrashort-acting barbiturate,” intended to render the inmate deeply unconscious. A second drug, pancuronium bromide, a muscle relaxant, then paralyzes all skeletal muscles including the diaphragm. (This keeps the inmate from gasping, moaning, flopping around on the gurney or otherwise disturbing the witnesses; it also keeps him from breathing.) The third drug, potassium chloride, stops the heart.

In theory this method should kill inmates quickly and painlessly. The problem is that in practice lethal injections are botched routinely. In May 2006, in Ohio, Joseph Clark raised his head in the middle of his own execution to say, “It’s not working.” In December 2006, Angel Diaz, in Florida, grimaced on the gurney for 26 minutes. He sustained 11-inch and 12-inch chemical burns on his left and right arms respectively, and took 34 minutes to die.

So, basically, we have a set of procedures that don’t always work, that we literally consider insufficiently humane to use on animals, and were developed by someone with no relevant expertise in the field — and yet they were quickly adopted by every state. And as Weil points out, the second, paralyzing drug — which prevents us in many cases from seeing if the prisoner was executed in intense pain — is part of the formula to exempt witnesses from having to see the consequences of the state’s action, which is an especially bad reason to do it.

Also interesting is this case, in which various public officials have reacted in a fury against a judge in Georgia who has taken the radical step of requiring the state to provide adequate resources to a defendant in an extremely complex capital case. This is part of a trend towards death penalty prosecutions that are failing because the state is unwilling to provide the necessary resources, which rather tends to undermine claims by death penalty advocates about its importance to criminal justice. If the death penalty has a powerful deterrent effect, reflects the Moral Seriousness of the Community. etc. etc. then spending the resources necessary to ensure a fair process seems relatively trivial in the context of what the state spends. That many advocates aren’t willing to face these choices simply reinforces my assumption that the death penalty in fact doesn’t accomplish much of anything that imprisonment doesn’t.

And even if (like me) you think that the Constitution does not categorically forbid the death penalty for first degree murder, both of these cases are instances where judicial intervention is appropriate. Assuming arguendo that the death penalty is permissible, it has to be carried out in manner consistent with the Sixth, Eighth, and Fourteenth Amendments. If states can’t be bothered to design a means of execution that minimizes the possibility of someone being tortured to death, or to provide the resources necessary to mount a competent capital defense, then it shouldn’t be allowed to execute prisoners at all.

About Time

[ 16 ] October 26, 2007 |

Georgia Supreme Court rules, 4-3, that Genarlow Wilson’s 10-year sentence for receiving a consensual blow-job from a 15 year-old when he was 17 was cruel and unusual punishment.

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