April 2008 Archives

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The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners. 

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations. 

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

Cruel and Unusual History

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THE Supreme Court concluded last week, in a 7-2 ruling, that Kentucky’s three-drug method of execution by lethal injection does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In his majority opinion, Chief Justice John Roberts cited a Supreme Court principle from a ruling in 1890 that defines cruelty as limited to punishments that “involve torture or a lingering death.” 

But the court was wrong in the 19th century, an error that has infected its jurisprudence for more than 100 years. In this nation’s landmark capital punishment cases, the resultant executions were anything but free from torture and prolonged deaths.
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WASHINGTON — When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case. For those accustomed to watching Justice Stevens, it was a familiar sight. 

But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky’s method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty. 

In an opinion concurring with the majority’s judgment, Justice Stevens said he felt bound to “respect precedents that remain a part of our law.” But outside the confines of the Kentucky case, he said, the time had come to reconsider “the justification for the death penalty itself.” 

He wrote that court decisions and actions taken by states to justify the death penalty were “the product of habit and inattention rather than an acceptable deliberative process” to weigh the costs and risks of the penalty against its benefits.
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WASHINGTON — As federal courts begin the unprecedented task of deciding whether thousands of prisoners should receive lower sentences for crimes involving crack cocaine, some judges are telling poor convicts that they won't get lawyers to help them argue for leniency. 

As a result, some prisoners are being left to argue on their own behalf against skilled prosecutors in cases that have already been labeled unjust. 

Defense advocates have argued for more than 20 years that the more severe sentences given for crack cocaine offenses, compared to those handed down for crimes involving powder cocaine, were unfair to African-American defendants. A majority of crack cocaine defendants are African-American, while most powder cocaine defendants are white. 

Last year, the U.S. Sentencing Commission recognized the disparity and recommended lighter penalties in crack cocaine cases. 

Now the 20,000 prisoners who're eligible for the lower sentences must ask a court to reconsider their cases. Many have said they're too poor to hire lawyers to ask for the lower sentences, and judges have appointed federal defenders to represent them at taxpayers' expense. 

But other judges have declined to appoint attorneys, saying they aren't needed for what should be a straightforward sentencing matter nor are they required under the Constitution. Judges have the sole authority to appoint such attorneys. 

The constitutional right to an attorney after criminal indictment and during trial and sentencing is undisputed. But several federal appeals and district courts have concluded that judges generally don't have to appoint attorneys for convicted criminals who're seeking corrected sentences.
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The US supreme court yesterday cleared the way for executions to resume when it ruled that the lethal injection procedure used in Kentucky does not violate the American constitution’s ban on “cruel and unusual punishment”. 

The 7-2 ruling means that an informal moratorium on executions in place since the court agreed to hear the case last September can now be lifted. Virginia’s governor, Tim Kaine, wasted little time, immediately giving the go-ahead for executions in to resume in his state. 

The case, brought by two death row inmates, argued that the procedure of lethal injection, which is intended to knock out, paralyse and then kill, is inhumane. They suggested a single-dose of a powerful barbiturate as an alternative. The three-drug protocol used in Kentucky is similar to that used in the 36 other states which use lethal injection. 

But the court, in a splintered decision, disagreed with the plaintiffs in the case. Writing the majority opinion, which was only agreed in full by two other justices, the chief justice, John Roberts, argued that the standard for deciding whether a method violated the constitution was if it posed a “substantial risk of serious harm”. The plaintiffs had proposed that the standard should be “unnecessary harm”.
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When a ruler seizes office by extralegal means he rules the same way. Because he does not derive his power from the people--indeed, his rule relies on their passivity--he is not beholden to them. Selling the public on his policies is hard enough for a legitimately elected ruler; an illegal one has to resort to bullying, presented as a stern, autocratic triumph of the will. He is forced to order his lawyers to find legal loopholes using the most tortured reasoning imaginable. In the end, when citizens turn against him, the tyrant shrugs his shoulders. "So?" This is what the vice president replied when a reporter asked about polls showing that Americans have turned against the Iraq War. Cheney's question was perfectly reasonable. Why should he care what we think? We didn't elect him. He doesn't owe us the slightest consideration. 

Electoral illegitimacy begets illegitimate rule: Secret detentions and torture redefined into meaninglessness. Secret prisons. Ending habeas corpus, the right to have one's case heard before a judge--a right English-speaking people had enjoyed for 800 years. Secret "signing statements" purporting to negate laws signed in public. Spying on Americans, lying about it to Congress, and then, after getting caught, trying to legalize it retroactively. Destroying evidence. An executive order granting the president the power to declare anyone--without evidence--an "enemy combatant," then order that person imprisoned for life, or even assassinated.