Although we pretend otherwise, much of what we do in the law is guesswork.
In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has now been undermined by experience, legal scholarship and common sense. What I have listed below are some of the reasons to doubt that our criminal justice system is fundamentally just.
Here are just a few examples:
But crime rates have been dropping steadily since the 1990s, and not merely in the United States but throughout the industrialized world. Our intuition about harsh sentences deterring crime may thus be misguided. We may be spending scarce taxpayer dollars maintaining the largest prison population in the industrialized world, shattering countless lives and families, for no good reason.
This article is an edited excerpt of Alex Kozinski’s earlier article “Criminal Law 2.0,” which was published at 44 Georgetown Law Journal Annual Review of Criminal Procedure, at iii (2015).
In Unprecedented Change, No Death Sentences in Texas in First Half of Year
Friday, June 26, 2015
Texas, the nation's top state for using the death penalty, has not added a
single person to its death row so far this year, which is unprecedented.
Prior to 2015, the longest span Texas had gone was only three months,
according to Kathryn Kase, executive director of the Texas Defender Service,
a nonprofit organization of death penalty attorneys.
"This is the longest we've gone in a calendar year in Texas without a new
death sentence," Kase told the Texas Tribune.
Last year, Texas added only 10 prisoners to death row, quite a drop from
2000 when 40 were sentenced to execution.
The adoption of a law in 2005 that gave state prosecutors the option of
pursuing life-without-parole sentences in capital murder cases has clearly
had an effect. Since then, the size of Texas' death row has been shrinking.
It currently stands at 260 individuals, down from 460 in 1999. The death row
population is now dwarfed by the number of people serving a
life-without-parole sentence in the state: 745.
So far this year, Texas courts have had three cases that had the potential
to hand down a death penalty sentence, according to Kase, but all of them
resulted in life-without-parole decisions.
Back to Square 1
Many of us in Houston have seen the news of Alfred Dewayne Brown. He was recently released from death row after having his conviction overturned. There was significant alibi evidence withheld by the authorities in prosecuting him and he has consistently maintained his innocence.
Even after his release Harris County District Attorney Devon Anderson, Houston Police Chief Charles McClelland and Joe Grimaldi of the Houston Police Officers Union still maintain that they have the correct suspect in the murder of Officer Charles Clark and yet at the same time maintain that the evidence is not sufficient to obtain a conviction beyond a reasonable doubt. They fear that if her were retried, he would be acquitted. If they think that Mr. Brown is responsible, then they should try him. If they believe that the evidence is not sufficient then they should keep their mouths shut, apologize to Mr. Brown for hiding evidence and reinvestigate the case. If the evidence is not sufficient to prove his guilt, then Mr. Brown remains innocent. Their continuing to stand at the microphone and write checks that they can’t cash, means that they need to be disillusioned substantially.
The way our criminal law system works is that upon arrest and being charged with a crime, the defendant begins at the starting point that is the presumption of innocence. They remain innocent through the length of the case until there is a conviction entered into their criminal record. This means that they are legally guilty (though maybe not scientifically or factually guilty). However then the conviction is reversed (on whatever grounds) the defendant then reverts back to the original presumption of innocence that they started from before the case began. Everyone starts off with this presumption of innocence and it is not the job or the defense team to prove innocence. The prosecution must prove guilt. Our system is not setup in a manner where one has to prove themselves innocent and most rational people would not want to live in a society that does have this system. There is no verdict in our system that established innocence because we start the case off from that point to prove guilt.
Mr. Brown now that his conviction has been discarded, returns to the same presumption of innocence that everyone else has.
This reminded me of horrid episode back in 2011 when Anthony Graves was similarly released from prison and applied for compensation from the state comptroller. While I think he would have been better off suing the state on more than a dozen human rights violations (including attempted murder and torture), Mr. Graves instead chose to submit an application for compensation under the pittance of statutes that the Texas Legislature has enacted. Comptroller Susan McCombs refused to process his application because in the order releasing him and overturning his conviction the word “innocence” was not present. She failed to realize that it was never Mr. Graves responsibility to prove his innocence and in the absence of a conviction, Mr. Graves always had his innocence. Again, in the absence of the conviction the defendant still retains the human right of innocence until proven guilty.
I imagine that Mr. Brown will also have a similar struggle with the state to receive compensation (of which I would recommend a civil suit for greater damages).
We will be living in a very sad state when we have to prove our own innocence.
I will readily admit that I am someone who really gives the industry of law enforcement a lot of grief and that sometimes I misdirect my contempt at them. This misdirection that many of us participate in is a product of the circumstances in which we encounter police and knowledge of the separation of powers doctrine in our United States Constitution. The separation of powers clause was something that everyone should have learned in their high school government class. Police do not make policy decisions. The job of the police (and executive branch) is completely administrative in nature. They only enforce laws that the legislature put on the books. Their job is merely supposed to be one of reaction directed by a system and operational policy that was put into place by a totally different branch of the government. The decisions and what laws are enacted are the product of the legislative bodies. Police do not make laws, the legislature does. So when one has a problem with the police enforcing the laws, write or contact your representative or senator about the issue. Taking your anger out on the police is pointless and could become dangerous. By this same logic, if you don’t like paying taxes don’t take it out on the IRS. The IRS has no control over taxes and how much you pay. The laws that decide how much in taxes that you pay were a product of Congress and they are but the administrative messenger just doing as they are told to do by the law. The only control that the police have over policy is their advocacy groups and mercenary lobbyists that every other special interest group has.
In many ways our country has taken the industry of law enforcement a little too far. Recently I visited my former college campus (to listen to the TED talks) and noticed many changes since I had been there last. One of which was a campus police force (where we had previously had a small token security guard personnel). This is typical of many college campuses (both public and private that have their own law enforcement agencies). That is just another layer of government that civilians have to submit to and more government that can charge you with a crime. Standing at the relatively peaceful campus of University of Houston Downtown for another example one is under the jurisdiction of the UHD Police Department, Houston METRO Police, Houston Police Department, Harris County Sheriff’s Department, Texas Department of Public Safety and the federal government. That list includes at least 6 different law enforcement agencies that can charge you with a crime. This industry of law enforcement has gotten out of hand as the legislature authorizes all the small communities to incorporate into cities and have their own city ordinances and police forces. Here in the Harris County (greater Houston metropolitan) area there are more than 100 different law enforcement agencies operating looking for people to charge with any violation of legal statutes.
As you ponder the fear of God that this puts into you, let us remember that our legislature let this happen.
The problems start with the many lines that the state continues to draw between citizens and the police that continue to make it look like we are being occupied by a foreign army. An example of this is the current statute on the death penalty and which murders qualify as a capital offense. The single crime of homicide against a barber, chef, engineer, teacher, physician, dentist, sailor, fishermen, priest or any number of other civilian jobs have the maximum punishment of a life sentence. However the homicide of a police officer (judge and prosecutor as well) must be punished by death (especially in Texas). The message that the current law sends is that some lives are worth more than others and not all human lives are equal. Some people are but mere pawns and others more important pieces. The message is that if you kill a police officer you will face the death penalty. However the murder of any other civilian (for example the barber, chef, engineer, teacher, physician, dentist, sailor, fishermen or priest) is more tolerable and the punishment is less.
This separation creates two separate classes determined by employment. The first class consisting of police (including judges and prosecutors) and the second class citizens being everyone else. With the state choosing what lives are of more value than others I would expect significant animosity to breed and occasional violence to erupt between the first class and the second class. Under the current logic of this part of the capital murder statutes we could probably create a third class or citizens based on employment including the homeless, drug dealers and prostitutes with the murder of these individuals punishable by maybe 10 years in prison. This follows the logic of the state that certain lives are worth more than others based on the occupation of the victim.
So much for all that crap about all life being precious and all men being created equal.
Another example of this kind of thinking as TX Representative Jason Villalba’s House Bill 2918 in bill that (thankfully failed in the legislature this past session) criminalized the filming of police absent certain distances.
The more distance that we put between the police and the public will be measured by a loss of transparency, accountability and trust.
Of course innocent people have been executed
O. Ricardo Pimentel
The question for the state House candidates during a recent Editorial Board meeting involved Texas’ death penalty — whether they support it.
I paraphrase. Ina Minjarez, a former prosecutor, said that the justice system has its flaws, but, yes, she supports the death penalty.
I don’t mean to pick on her. Texas candidates for the death penalty are as ubiquitous as cheese on Tex-Mex. And whoever is elected will make a perfectly fine representative, whether it is Minjarez or her opponent, Delicia Herrera. But Minjarez’s wording was distressingly familiar.
Flawed? How much less than perfect is tolerable in a system that imposes a sanction that, once executed, cannot be walked back from? “Executed” being the exact right word there.
About 1,400 people have been executed since 1976 in the United States. There were, as of recently, 3,035 people on death row. And there have been, since 1973, at least 150 exonerations from death rows. Texas comes in third among the states, with 12.
So, given the number of exonerations, what do we suppose are the chances that nary another innocent person is left on a death row somewhere to wait for the needle and slow death? And once you answer that question — truthfully — how do you answer the next one?
Just how much collateral damage is acceptable?
You see, these days, if you haven’t reached the conclusion that unjustly convicted people have been executed and that no amount of improvement will remove human flaw from the system, you haven’t been paying attention to the system, humans or current events.
The flaws are common knowledge. So it’s difficult to avoid the conclusion that a lot of folks are pretty much OK with the execution of innocent people — as long as the overwhelming majority killed by the states really are monsters.
Two Texas cases in particular trouble me. One is the now infamous case of Cameron Todd Willingham, executed in 2004. He was convicted in the arson deaths of his three daughters on evidence that, it is now abundantly clear, was fictional or flawed. The forensic evidence pretty much points to no arson at all. A jailhouse witness to Willingham’s alleged confession recanted, but this was kept from the defense. And that witness, it appears, was given a deal for his testimony and, he says, was coerced — this, too, kept from the defense.
Others have a longer list of men wrongfully executed, Texas figuring prominently. Besides Willingham, I call your attention to Carlos DeLuna, executed by Texas in 1989 for the stabbing death of a convenience store clerk in Houston. It seems clear that another Carlos committed the crime.
Right; due process has been followed. OK, but the evidence should have at least prompted new trials as a matter of justice. The system, of course, tends to cling to legality — due process. That is not the same thing as justice.
But why tippy-toe? Of course innocent people have been executed. This doesn’t require much of a leap, particularly with Willingham. There is, by the way, a proposal, by Democratic Sen. Eddie Lucio Jr. of Brownsville, for a constitutional amendment to ban the death penalty in Texas.
I recently asked a couple of statistician friends whether there is a rule in their field that says if something happens often enough, it’s certain to happen again. No, there are just too many variables. And I’m still certain that innocent people will be executed as long as there is a death penalty because of a few of those variables — human error and prosecutors’ desire to win.
A couple of societal currents also intrude. Capital punishment exists because of an illusory belief that it guarantees safety — and, if we’re honest, because we crave eye-for-an-eye retribution. So we continue to tweak in pursuit of something else illusory — a system with no errors.
Later, one of my friends shared a joke, inadvertently on point: Three statisticians go hunting. One shoots and misses the deer by 3 feet to the left. The other shoots and misses 3 feet to the right. The third guy exclaims, “We got it!” Substitute any profession that operates with plus or minus margins of error.
Dear candidates and sundry elected officials: As you cannot logically guarantee perfection in our police and courts, I hope margin of error and due process are enough of a security blanket for you when it comes to the death penalty.
Personally, I find it flimsy covering.