Friday, July 25, 2014

Poetic Justice: law and literature in the classroom

  • Abstract: Connecting law and literature in the classroom enables students to tackle eternal dilemmas in the search for justice.
    Content Type Journal Article
    Category Looking at the Law
    Pages 108-111

    Authors
    Donald Vish, Middleton Reutlinger, Louisville, Kentucky
    Journal Social Education
    Print ISSN 0037-7724
    Journal Volume Volume 78
    Journal Issue Volume 78, Number 3 / May/June 2014
    PubDate: Thu, 12 Jun 2014 13:17:14 GMT
     

Friday, February 7, 2014

Criminal Law: Kind or punitive?

1840: "No country administers its criminal law with more kindness than the United States. (Tocqueville, "Democracy in America").

 2014: "Today, the United States' system of criminal justice ranks among the world's most punitive." (Traci Burch, "Trading Democracy for Justice..." University of Chicago Press, 2013).

Sunday, August 7, 2011

Law & Social Policy Syllabus

» You may download a Microsoft Word version of this syllabus «

August 2011 Draft
There is hardly a political question in the United States which does not sooner or later turn into a judicial one.  
---Tocqueville
LAW & SOCIAL POLICY
Spring 2012 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer
________________________________
Course Description
This course will focus on law as it shapes or reflects social policy not as it facilitates the resolution of disputes between private parties. This course will examine the relationship of law to social, political, cultural and economic conditions in the United States.
Overview of Classes
There will be twelve topics covered in fourteen classes. Here is an overview:
Introduction
1) The People and Social Policy. Tocqueville observations of democracy in America, The Federalist Papers, the antecedents and hallmarks of United States social and legal P
policy; separation and balance of powers: the social, civic and political ethos of the United States.
2) The Judiciary and Social Policy
3) The Legislature and Social Policy
4) The President and Social Policy along with twenty one questions about Tocqueville ‘s views on the source of law in a democracy, the role of the legal profession, judicial power, customs, religion, education, race, majority rule, a free press, criminal laws, executive power, possible tyranny of the legislature, individualism, family, material prosperity and love of money, how a new aristocracy may emerge in the United States, how democracy affects wages and why regulation is needed, the equality of men and women, waging war in a democracy, the main objective of law-making in a democracy and the basic social tableaux of the United States.
The Judiciary
5) Capital Punishment and Social Policy: An Evolving Standard of Decency
6) Race, National Origin, School Segregation: Law & Policy, A Pas De Deux
7) Libel: Weaving Together Law and Policy or is it Policy and Law?
8) Corporate Political Activity: Social Policy, Public Policy or Legal Policy?
The Presidency
9) War Powers: Who’s Policy?
10) Enhanced Interrogation: Law or Policy or Neither?
The Legislature
11) Sex, Marriage, Defense of Marriage Act: Limits on Majority Rule
12) The Takings Clause: Economics as Policy

Objective of the Course
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville p.58.

What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.
Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.
What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.
Social policy may be based on the culture, zeitgeist, necessity of the day, convenience, consent of the governed or popular will. Social policy is more permeable than law.
Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.
Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch, the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion or an informed elite?

Class Dates:
January: 9,16, 23, 30
February: 6, 13, 20, and 27
March: 5, 12, and 26
April: 2, 9
Course Syllabus
Basis of grading: There will be a final exam comprised of five essay questions each worth 20 points. The questions will invite straightforward expository prose responses (there are no hidden or subtle issues lurking in the questions). Each question will ask ‘what’ or ‘why’ or both or will begin with instructions to ‘discuss’ or ‘evaluate’ or ‘describe’ or ‘compare’ or ‘provide examples of’. Each question will invite the student to demonstrate both reportorial and analytical skills based on memory, preparation, analysis, critical thinking and command of class presentations. Good reportage will earn a “C” while superb insight and analysis will earn an “A”. [See the attached Appendix for more elaboration on the grading criteria].
You may contact me directly at dvish@middreut.com or you may communicate through a class ombuds committee of three students that will be appointed to facilitate presentation of any complaints, suggestions or requests that an individual student may not want to present directly.
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam): The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty one law and social policy questions considered by Tocqueville in his master work Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital Punishment and Segregation).
Textbooks
1) Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Student Treatise Series, 2011). ISBN 978-0-7355-9808-3.
2) The Federalist Papers, Introduction and Notes by Charles R. Kesler, Edited by Clinton Rossiter (Signet Classic, 1999) First Signet Classic Printing, April 2003.
3) Alexis de Tocqueville, Democracy in America (Penguin Classics, 2003) ISBN-13: 978-0-140-44760-6.
DV
August 7, 2011



Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71
______________________________________________
Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville culminates in the 4th Class with a discussion of twenty policy points presented in the book. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction in part, pages 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail in the 4th Class: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71]. The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END

Lecture #2: The Judiciary
[January 16, 2012]
…there is no liberty if the power of judging be not separated from the legislative and executive powers. The Federalist Papers, No. 78: The Judiciary Department (Hamilton)
…an American judge is dragged, despite himself, on to the political field. Tocqueville 121
There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Tocqueville 315
…the idea that gold and silver mines are the source of national wealth: a fatal idea which has done more to impoverish those European nations who were enslaved by it and has destroyed more men in America than the united influence of war and bad laws. Tocqueville 41.
______________________________________
Assignments for Class #2:
1. The Federalist Papers, No. 78: The Judiciary Department (Hamilton) pp. 463-471.
2. Alexis De Tocqueville, Democracy in America (Penguin Classics, 2003) Chapter 6 Judicial Power in the United States…pp. 116-124; The Federal Courts of Justice pp.161-177 (especially the head notes of each section); page 315. The three characteristics of judicial power, the political power of the judge, the power to declare laws unconstitutional [here is the threshold of law and social policy].
3. Tocqueville Chapter 8 “The Federal Courts of Justice” pp. 161-177.
4. Marbury v. Madison 5 U.S. 137 (1803)
5. Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Publishers, New York), Chapter 2, The Federal Judicial Power pages 32-37, 43-45, 52 (Advisory Opinions) 130-135 (Political Questions).
End


Lecture #3: The Legislature
[January 23, 2012]
It is to a legislature thus constituted that almost all the authority of the government has been entrusted. Tocqueville Ch XV
The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
____________________________________________________
Assignments for Class #3:
1. Chemerinsky Chapter 3 The Federal Legislative Power Section 3.1 pp. 238-240; Section 3.3.3—3.3.5 Commerce Clause Before and After 1937 pp. 251-269.
2. U.S. v. Lopez 514 U.S. 549 (1995) (limits of commerce clause found). Confer Chemerinsky pp.269-272.
3. Can Congress overrule the Supreme Court? Chemerinsky Section 3.6.2 “What is the Scope of Congress’s Power?” pp. 299-307.
4. Tocqueville Chapter 8 “The Federal Constitution: Legislative Powers” pp. 137-140.
5. The Federalist Papers No. 10 (Madison) on factions ( *compare with Tocqueville on associations) pp. 700-702; No. 47 (Madison) and No. 51 (Madison) on checks and balances, separation of powers.
End





Lecture #4: The Presidency and Twenty+-Policy Issues Observed by Tocqueville
[January 30 2012]
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
____________________________________________
Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (288, 304-305), (2) tyranny of the majority (68, 71, 223-224, 287-304), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 713, 721-722), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583- 586, 587, 589-91, 683), (16) religion (54-55, 336-352), (17) public education American style (53-54, 65 [job preparation], 352-357), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 ( Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
End



Lecture #5: Capital Punishment
[February 6, 2012]
Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49.
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840).
___________________________________
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). *Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.

End



Lecture #6: Race
His son is excluded from the school where the sons of Europeans come to be educated. At the theatre, any amount of gold could not buy him the right to take his seat beside his former master; in hospitals he lies apart. The black is allowed to pray to the same God as whites but not at the same altars. Tocqueville 402.
[February 13, 2012]
Americans have granted their judges the right to base their decisions upon the constitution rather than upon the laws. –Tocqueville 118
A lengthy war in a democratic country places freedom under threat. –Tocqueville 755
_______________________________________
Assignments for Class #6:
1. Dred Scott v. Sandford 60 U.S. 393 (1857).
2. Plessy v. Ferguson 163 U.S. 537 (1896).
3. Brown v. Board of Education 347 U.S. 483 (1954).
4. Korematsu v. U.S. 214 (1944). [Also germane to Lecture #10].
5. Tocqueville “The Position of the Black Race in the United States” pp.398-426.
6. The Federalist Papers No. 54 (Madison) on why slaves are counted in the census for purposes of congressional representation pp. 334-338.
7. Chemerinsky Chapter 9, Section 9.1.1 pp.684-685, 691 (first two paragraphs only), Section 9.3.1 “Race Discrimination” pp. 706-726.

End


Lecture #7: Libel
[February 20, 2012]
In order to enjoy the priceless advantages guaranteed by press freedom, one must submit to the unavoidable evils it produces. --Tocqueville 213
_____________________________
Assignments for Class #7:
1. Tocqueville “The Freedom of Press in the United States” Vol. 2, Chapter 3, pp.209-219.
2. The Federalist Papers No. 84 (Hamilton) (arguing against a bill of rights) on liberty of the press (513).
3. Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.
4. New York Times v. Sullivan 376 U. S. 254 (1964).
5. Curtis v. Butts 388 U. S. 130 (1967).
6. Gets v. Welch 418 U. S. 323 (1974).
7. Hustler Magazine v. Falwell 485 U. S. 46 (1988).
8. Dun & Bradstreet v. Greenmoss Buildings, Inc. 472 U. S. 749 (1985).

The press is by far the most effective democratic instrument of freedom. –Tocqueville 8 12.


End


Lecture #8: Corporate Political Activity
[February 27, 2012]
The business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. –Tocqueville 648

Assignments for Class #8:
1. Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.
2. Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED in….
3. Citizens United v. Federal Election Commission 130 S. Ct. 876 (2010).
4. Kentucky Constitution (1890) Section
5. Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116.


Generally speaking, I think the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on the earth; but at the same time, it is one of the most restrained and least dangerous. However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. –Tocqueville 648.

End


Lecture #9: War Powers
[March 5, 2012]
There are two things it will always be difficult for a democratic nation to do: beginning and ending a war. Tocqueville 755
A lengthy war in a democratic country places freedom under threat. Tocqueville 755
In America, conscription is unknown; men are enlisted for payment. Compulsory recruitment is so alien to the idea and so foreign to the customs of the people of the United States that I doubt whether they would ever dare to introduce it into the law. Tocqueville 260
___________________________
Assignments for Class #9:
1. Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp. 290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348; 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).
2. Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757; Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.
3. The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.
4. The Federalist Papers No. 69 (Hamilton) on executive branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.

(in process August 5, 2011)




Lecture #10: Enhanced Interrogation
[March 12, 2012]
All those who wish to destroy freedom within a democratic nation should realize that the most reliable and the most rapid means of achieving it is war. Tocqueville p.756
The clatter of arms drowns out the voice of the law. Thoreau
____________________________
Assignments for Class #10:
1. Federalist Papers No. 34 and No. 41 (Hamilton) cited by John Yoo.
1. Memorandum of John C. Yoo for the President (this memo has been withdrawn by the current Administration as not reflective of law or policy of the United States).
THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM
       The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
        The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
        The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
       September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
By John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
(In process 8-7-11)
Lecture #11: Family
[March 26, 2012]
___________________________
Assignments for Class #11: Marriage, Procreation and Sexual Orientation
1. Meyer v. Nebraska 262 U.S. 390 (1923).
2. Loving v. Virginia 388 U.S. 1 (1967).
3. Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003).
4. Buck v. Bell 274 U.S. 200 (1927).
5. Skinner v. Oklahoma 316 U.S. 535 (1942).
6. Bowers v. Hardwick 478 U.S. 186 (1986).
7. Romer v. Evans 517 U.S. 620 (1996).
8. Lawrence v. Texas 539 U. S. 558 (2003).
9. Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual Orientation” pp.807-809.
10. Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and cases cited in Section 10.2.1 on Defense of Marriage Act and California’s Proposition 8) **(Give special thought to whether the executive branch can refuse to defend a congressional law); Section 10.3 “The Right to Procreate” pp. 829, 833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868.

I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? Tocqueville 292.

In process 8-7-11
Lecture #12: The Takings Clause
[April 2, 2012]
Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them having any at all. –Tocqueville p. 705
…usually the love of wealth lies at the heart of Americans’ actions…--Tocqueville p. 713
_________________________________
Assignments for Class #12:
1. Pennsylvania Coal v. Mahon 260 U.S. 415 (1922).
2. Keystone Bit. Coal v. Benedictus 480 U.S. 470 (1987).
3. Eastern Industries v. Apfel 524 U.S. 498 (1998) (Coal Act).
4. Berman v. Parker 348 U.S. 26 (1954).
5. Kelo v. City of New London 125 S. Ct. 2655 (2005) (economic development).
6. Nollan v. California Coastal Comm. 483 U.S. 825 (1987) (beach access).
7. Chemerinsky Chapter 8, Section 8.4 “The Takings Clause” p. 656, “What is a Taking for Public Use” pp.678-681.


End. August 7, 2011.

Friday, July 8, 2011

The Fall of the House of Zeus

Reprinted from The Cardinal Lawyer
Bill CunninghamJustice Bill Cunningham of the Kentucky Supreme Court takes a keen interest in legal education, especially in the ethical training of law students and lawyers. He writes to recommend a book, The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer:

Fall of the House of ZeusI have just finished reading the book, The Fall of the House of Zeus [The Rise and Ruin of America's Most Powerful Trial Lawyer], by Curtis Wilkie. It is about the rise and fall of mega lawyer, Dickie Scruggs, of the famed asbestos-tobacco-Katrina lawsuits. The story dramatically relates how greed can transform erstwhile good people and fine people into criminals. If possible, I would make it required reading for every lawyer and law student in Kentucky.

Thursday, June 23, 2011

Logan's Battery



Dear friends:

Logan's Battery needs your help. On behalf of the University of Louisville, its School of Law, and the legacy of one of UofL's all-time legends, I ask you to save one of our university's most beloved historic landmarks.

John Alexander Logan was one of the first law school graduates from the University of Louisville. He received his degree in 1851. During the Civil War, he served under Generals William T. Sherman and Ulysses S. Grant and rose to the rank of major general. As commander in chief of the Grand Army of the Republic, Logan called for a nationwide observance in honor of fellow soldiers who did not survive the Civil War. The observance, then known as Decoration Day, eventually became Memorial Day.

Logan served a distinguished career in politics. Before the Civil War, he had been elected twice to the United States House of Representatives from Illinois. After the war, he served an additional three terms in the House and two terms as a United States Senator. He joined the 1884 Republican Party presidential ticket as running mate to James G. Blaine.

On May 13, 1978, Air Force General (ret.) Russell E. Dougherty, a 1948 law graduate of the University of Louisville, dedicated Logan's Battery, a replica of a three-inch Parrott Rifle used in the defense of Louisville during the Civil War. This cannon has paid tribute to John Alexander Logan, his law school alma mater, and to the entire University of Louisville community.

Logan's Battery desperately needs restoration. I ask that you join me in designating a gift toward the restoration of Logan's Battery to a condition befitting this distinguished alumnus of our law school and our university. Once restored, Logan's Battery will sit in a new place of honor in front of the Law School and the University's Oval. To make a gift, please visit the Law School's page for gifts from friends and alumni.


Very truly yours,

Jim Chen


Jim Chen
Dean and Professor of Law
University of Louisville

Friday, April 15, 2011

Thursday, October 21, 2010

The Death Penalty is Killing Itself

Text of Remarks

To the
Fellowship of Reconciliation
October 21, 2010
Louisville, KY


The Death Penalty is Killing Itself

By

Donald Vish
Kentucky Coalition to Abolish the Death Penalty

The death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: most of the time nothing happens but every now and then somebody gets killed.

But we may be on the verge of a lot happening.

Death Penalty History: 1957-2008
The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.

Today, there are 35 people on death row and four people have been executed in the last 53 years.

Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.

The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done in an even-handed manner.

How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?

What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?

Death Penalty History: 2009—present
The attorney general requested three death warrants from the governor in November 2009. Before the governor could act on the request, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for execution. The DOC complied and new and revised procedures were back on the books by May, 2010. The governor began the procedure for setting execution dates for the three men when he discovered the state had a limited supply of a key drug used in lethal injections, enough for only one dose, and even that supply expired in October 2010. So, the governor asked his justice secretary to formulate a selection process so that at least one of the three could be executed while the others waited for fresh supplies of the lethal drug needed to complete the injection cocktail. The Department of Corrections has said that a new supply cannot arrive before the first quarter of 2010.

Status of the Wilson Case and Executions Generally?
The death warrant authorizing Wilson’s execution expired at midnight September 16, 2010. According to representations made by the Department of Corrections to the Franklin Circuit Court, a key ingredient in the lethal injection mix will not be available until the first quarter of 2011. As a result, there is no current date for Wilson’s execution and the state lacks the chemical means to execute until the first quarter of 2011.

There are also legal issues pending about the Wilson case that may affect executions generally:

1) The Kentucky Supreme Court is reviewing a decision by the Kenton Circuit Court denying Wilson’s request for DNA testing and a determination of whether he is exempt from execution due to mental retardation. If the Supreme Court grants Wilson’s request, an evidentiary hearing will be scheduled in Kenton Circuit Court. It is highly improbable that the governor would seek to execute Wilson before a hearing was concluded and it is highly probable that he would be enjoined if he did. This ruling does not affect capital punishment generically.

2) The Kentucky Supreme Court is also reviewing a case from Franklin Circuit Court involving the new execution procedures written by the Kentucky Department of Corrections pursuant to a November 2009 order of the Kentucky Supreme Court.

This case has the potential to impact all executions in Kentucky.

Wilson intervened in the case and the trial judge enjoined the state from executing Wilson while the court was reviewing the legal adequacy of the new execution procedures. In the course of enjoining the Wilson execution, the trial judge expressed official interest in (i) the lack of procedures to test for mental retardation prior to execution and (ii) possible legal flaws in Wilson’s trial where he was given no choice but to represent himself most of the time. Judge Shepherd has established an expedited briefing schedule on these matters, which concludes on October 25th.

The Kentucky Supreme Court is currently reviewing legal briefs from the litigants concerning the Franklin Circuit Court case, after which it may rule that the case is moot since there is no current death warrant applicable to Wilson; or, it might affirm the judge’s ruling, the effect of which would be to require the Department of Corrections to supplement its execution procedures to provide for mental retardation testing; or, it might reverse the trial judge’s ruling in effect finding that the judge had no good reason to delay the Wilson execution. In the latter case, Wilson would be scheduled for execution if and when (1) the governor signs a new death warrant and (2) the state receives new supplies of the drugs needed for the lethal injection.

If the Supreme Court finds the case is moot or it agrees with Judge Shepherd, the case would nevertheless be returned to Franklin Circuit Court for such further hearings as the trial judge may require in order to render a final judgment on the legal adequacy of the new execution procedures.

Facts about the Death Penalty(As of October, 2010)

35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 34 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 35
Women on Death Row (Kentucky) 1
Georgraphy
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.


Conclusion
The death penalty is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law).

A recent example of Murphy’s Law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could find not a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!

Of the Wilson case, Judge Boyce Martin of the United States Court of Appeals for the 6th Circuit wrote earlier this month:

The rape and murder of Debbie Pooley was a heartbreaking and reprehensible
act. But at Gregory Wilson’s murder trial, the state’s ignominy began…*** virtually every branch of our justice system failed —from the judiciary, which allowed a sex scandal between a colleague of the trial judge and Wilson’s co-defendant to jeopardize the fairness of Wilson’s trial; to the defense counsel, who were woefully unqualified and left Wilson abandoned at trial. The judiciary failed both Wilson and our legal system in this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of Wilson’s trial. Brenda Humphrey, Wilson’s co-defendant and the woman who identified him as Pooley’s killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial judge during Wilson’s trial:***
…This scandal is an embarrassment to all segments of the judiciary, from the judge
who violated the Code of Judicial Conduct by having a sexual relationship with a
defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex. When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying.
Perhaps even more egregiously than the judiciary, Wilson’s defense counsel
failed him and the principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a charade:****
…Over my more than thirty years on the bench, Wilson’s trial stands out as one of
the worst examples that I have seen of the unfairness and abysmal lawyering that
pervade capital trials. Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.” Moore v. Parker, 425 F.3d
No. 09-6306 Wilson v. Rees, et al. Page 7250, 270 (6th Cir. 2005) (Martin, J., dissenting). To maintain the legitimacy of our adversarial system of justice, we must be confident that its two foundational components are sound: a neutral and fair arbiter, and adequate legal representation for both parties.
If either pillar is fractured, as in this case, then we are left with a system that does not function. Its results cannot be trusted, particularly when a life is at stake. When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death.

DV
October 21, 2010

Friday, September 10, 2010

KET: Death Penalty October 12, 2009

Death Penalty: A Constitutional Collision Course (Kentucky Law Review)

From Kentucky Law Review

Thursday, November 19, 2009
OP-ED: Atty Donld Vish's special to the CJ re death penalty

The death penalty has put the Constitution on a collision course with itself.
The path to collision was cut and cleared in 1976, when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion' template proposed by the Model Penal Code (MPC). The ‘guided discretion' approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.
Rhetoricians have a name for rubrics like “guided discretion”: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).

The precise place where justice fits between “guided” and “discretion” is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding, then reaching, the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.
As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society's search for justice, competing constitutional values get in the way of one another and, like Virgil's army, crowd the field so totally that none has room to do its work.

The sponsor of the MPC, The American Law Institute, has now withdrawn the guided discretion template and its legal consultants, Professors Carol S. Steiker, Harvard Law School, and Jordan M. Steiker, University of Texas Law school, have declared the “guided discretion experiment” unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model. The template is merely a mirror for what is required by the Constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.

As courts grapple with the balance between the two, justice in death penalty cases is becoming to the Constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.
Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can't uphold it because the applicable legal standards collide with each other.

Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.

Posted on Thursday, November 19, 2009 at 10:44 PM in Apple, Criminal, Opinions and Editorials (Op-Ed) | Permalink
TrackBack

Drug Shortage Impacts Kentucky Executions




Ky. governor holding off on some executions due to shortage of key drug

WHAS TV News Report: August 26, 2010
by Claudia Coffey

WHAS11.com

Posted on August 26, 2010 at 6:34 PM

Related:
•Condemned Ky. inmate asks judge to halt execution

(WHAS11) - Kentucky Governor Steve Beshear has set a September 16 execution date for a rapist and murderer but held off on two others because of a shortage of a key drug used in the execution.

Beshear said he signed only one warrant because the state has enough sodium thiopental for just one execution.

Kentucky's stock expires October 1 and a new supply of the drug is not expected until early in 2011.
It's raising a number of ethical questions; the biggest is whether one dose for one execution even safe to use so close to the date it expires.

The person facing execution? Gregory Wilson. Wilson was sentenced to die October 31, 1988, for his part in the 1987 kidnapping and murder of Deborah Pooley a year earlier in Kenton County in Northern Kentucky.

53-year-old Gregory Wilson will face an execution chamber similar to this one on September 16.

The last person executed in Kentucky was Marco Chapman back in 2008.
Wilson is one of three death row inmates for which death penalty is being sought but the state doesn't have enough chemicals on hand to execute the other two.

"I can't make anything of any of this," says Donald Vish with the KY Coalition to Abolish the Death Penalty.

Donald Vish, the Director of Advocacy for the Kentucky Coalition to Abolish the Death Penalty, says his organization has asked the governor to stay the execution until the entire system can be reviewed especially now given a key chemical is set to expire just two weeks after the Wilson execution.

"I think it creates a substantial risk of a botched execution or a substantial risk of lingering pain if the efficacy of those drugs has been diminished in any way," says Donald Vish with the KY Coalition to Abolish the Death Penalty.

The Department of Corrections has a sufficient amount of a drug called sodium thiopental, that amount expire October 1. The drug is a sedative.

"In this setting they use three different drugs. This drug is used first to make the person unaware of the effects of the other drugs," says George Bosse of the KY Regional Poison Control Center.

George Bosse - the medical director of the Kentucky Regional Poison Control Center - says like all drugs this too has an expiration date and it’s likely to remain effective until that date.

It should last until the expiration date and what happens after that is somewhat controversial and there is some concern it could lose its effectiveness and there is concern that it could cause toxicity which is less likely but the bigger concern is it could be less effective," says Bosse.

end--

Death Penalty: Guest Editorial June 3, 2010

June 3, 2010
Guest Editorial: WAVE-TV
The Death Penalty


By Donald Vish
Kentucky Coalition to Abolish the Death Penalty

Aggravated murder cases in Kentucky show a disparity in treatment so inexplicable and so extreme that the legitimacy of the death penalty must be called into question.

In the last two years a serial killer, a child-killer rapist and a $1,000 hit man got life sentences while over the years some aggravated murderers got death. Why: A bad crime; a bad lawyer or bad luck?

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility.

The governor needs to get to the bottom of this dysfunction before signing any death warrants. Confidence in our justice system depends on getting an explanation for a disparity that is now inexplicable-and unacceptable.

Copyright 2010 WAVE News. All rights reserved.

Abolish the Death Penalty: WAVE TV Guest Editorial



Abolish the Death Penalty
(WAVE TV Guest Editorial
1-22-10)

By Donald Vish
KY Coalition to Abolish the Death Penalty

The rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity – three since 1977 and only four since 1956.

Three conclusions are warranted:

1.The death penalty no longer serves any legal purpose
2.It offends Kentuckians' evolving standard of decency
3.It's arbitrarily applied
A 2006 University of Kentucky poll showed that 67% of Kentuckians prefer a penal option other than death in capital murder cases. The Kentucky Supreme Court should reconsider the continuing legality of the death penalty in light of its marginal and erratic use. Through looking at jury sentencing patterns, the court should conclude the death penalty does not meet legal standards, and that juries believe that life in prison without parole adequately protects the public and punishes the worst of the worst.

That's my opinion.

Copyright 2010 WAVE-TV. All Rights Reserved.

Eliminate the Death Penalty

(Lexington Herald Leader
Sunday, September 5, 2010)

Eliminate the Death Penalty
by
Donald Vish

The death penalty has become an embarrassment. Its administration has undermined public confidence in the way the justice system works. The best thing its supporters can say about is it’s not used very much.

The modern history of the death penalty in Kentucky undercuts its credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky. Many were eligible for a death sentence. Today there are 34 people on death row. Four people have been executed in the last 53 years. Infrequent use of the death penalty in Kentucky is not proof that executions are reserved for the worst of the worst.

In the last two years a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences while over the years some aggravated murderers got death.  Why?  A bad crime or a bad lawyer or bad luck?    

The disparity in treatment of aggravated murder cases is so inexplicable and so extreme that the legitimacy of the death penalty must be called into question. An honest and impartial examination of aggravated murders in Kentucky would lead one to conclude that it is impossible to discern the legal criteria by which some are sentenced to death and others are not. The gravity of the crime does not appear to be the determining factor.

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility. Within the universe comprised of heinous crimes and brutal perpetrators administration of the laws governing executions resembles the equivalent of Russian roulette: most of the time nothing happens but every now and then someone gets killed in accordance with the laws of chance.

Last fall, The American Law Institute, the organization that created the blueprint for modern death penalty laws in this country, concluded that the system it created does not work and cannot be fixed because the constitutional imperatives of consistency in sentencing and the need for individualized sentencing cannot be reconciled. In the context of death penalty jurisprudence, the Constitution is at war with itself and has lost.

The current order scheduling for September 16 the execution Gregory Wilson, 53, for the brutal murder and rape of a popular restaurant worker Deborah Pooley, necessitated in part by the need to complete the execution before the sleep drug used in the lethal injection mix expires in October is an example of a broken system. Since there is not enough of the drug on hand to execute the other two inmates whose death warrants are on Governor Beshear’s desk, he had to ask his justice secretary to come up with a selection process. While the process may be formulated in utmost good faith, any process that selects one of three under these circumstances more resembles the verdict of chance than the verdict of justice.

The death penalty is riddled with contradictions and contradictory imperatives.

Using a deadly chemical employed in both lethal injection and euthanasia, executions serve the contradictory goals of

* retribution and a humane death imposed after a
* legal process that applies contradictory legal mandates of even-handed administration of the law and personal consideration of each case and
* all in a special time warp that hurries along slowly.


There are too many pieces to the death penalty puzzle. It’s impossible to make them fit because they don’t. Add accidents of geography, race, demographics and wrong convictions to the lethal mix that capital punishment law has become and you get a justice system that’s killing itself.



Donald Vish is a lawyer, a life member of the American Law Institute and the Director of Advocacy and Education for the Kentucky Coalition to Abolish the Death Penalty

Tuesday, May 25, 2010

Review Needed Before Death Warrants Signed

From The Frankfort State Journal May 25, 2010 by Donald Vish

Review Needed Before Death Warrants Signed

Similar punishments for similar crimes committed by similar people acting under similar circumstances are the foundation of the criminal justice system. On this foundation stand essential constitutional and public policy pillars of due process, equal protection and proportional punishment.

Recent aggravated murder cases show a disparity in death penalty cases so divergent, so inexplicable and so extreme that the death penalty is called into question as a matter of public policy.

In the last two years, for example, a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences rather than death. One prosecutor immediately changed a death penalty case to a life without parole case simply because the prosecuting attorney made a mistake requiring a new trial.

To determine the proper symmetry of aggravated murder cases and capital punishment it is necessary to look at a universe of cases in which
Similar crimes got the death penalty
Similar crimes did not get the death penalty
Similar crimes were not prosecuted as death penalty cases.

While this three-pronged method of review is not required under Kentucky statutory law mandating proportionality reviews of all death sentences or the United State Constitution as interpreted by the United States Supreme, the extraordinary disparity in outcome of potential death penalty cases is troubling enough to justify a broad inquiry by the governor before signing a death warrant.

The governor has vast clemency powers without constraints and virtually beyond review. The drafters of Kentucky's constitution made a plenary grant of executive power to enable the chief magistrate do justice on a plane beyond the minimum required by statute. Confidence in the justice system can only be achieved by finding a reasonable explanation for a disparity that is now inexplicable.

May 25, 2010
Donald Vish, Kentucky Coalition to Abolish the Death Penalty, Louisville

Saturday, May 22, 2010

Wolf Pen Branch Mill Farm (1820-25)



This 430 acre working farm in Jefferson County (Louisville) is a rare jewel. Owner Sallie Bingham has granted a conservation easement for the farm ensuring its preservation.

Tuesday, March 9, 2010

Spring

Keeneland Race Course (Racing the Way it Was Meant to Be)

Friday, February 26, 2010

Text of Remarks Kentucky Libertarian Party Annual Convention

The Death Penalty is Killing Itself



Text of Remarks

To the

Kentucky Libertarian Party
February 27, 2010
Lexington, KY


The Death Penalty is Killing Itself

By


Donald Vish
Kentucky Coalition to Abolish the Death Penalty

Thank you for entrusting your podium to me. We all know there’s no thief worse than a bad speech to a captive audience. A wise old stump speaker from that place I’ll just call ‘down-home’ once told me that the worst speakers make speeches that are always fixin’ to get ready to get started. I am not going to do that. I’m going to get to the point right away which is this: the death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: ruled by the laws of chance that most of the time make nothing happen.

But we may be on the verge of a lot happening. The attorney general has requested three death warrants from the governor. Before the governor could act on the request in November, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for executions and took public comments on the procedures. Those steps have been taken and the execution protocols are on their way to the governor’s desk for signature. On their way to the governor’s desk, the procedures must go through a legislative committee. The governor has said he will sign the protocols when they arrive. So execution procedures could be back on the books by April or May which means Kentucky could have multiple executions in 2010: at least three and this in a state that has executed only four people in the last 53 years.


Lethal Injection: Humane Executions

The Holy Grail of modern civilized executions is to have someone dead, not to make someone dead much less to actually kill anyone. The civilized execution seeks to perfect a process that has only a past tense, a protocol that takes the dying out of death and the killing out of killed. Civilized killing aspires to be a sentence without a verb. In a perfect execution, nothing happens, there is no beginning or middle and the end is always in the remote past. The coroner has to announce later that it happened earlier. The civilized execution is a perfect demonstration of the proverb: nothing produces nothing made all the more remarkable by having done it with nobody.

In the humane execution the actual executioner is merely unknown but in the perfect execution lethal injection strives to achieve, there is no executioner, a perfect illustration of the dictum: everybody’s business is nobody’s business.

The humane execution is choreographed to occlude its entanglement with brutality, barbarism, violence or a freakish and lingering death, to silence the voice of pain. So the body sleeps in muscular paralysis so one knows if it wakes up.

The execution is disguised to resemble a medical procedure. Trappings of humanitarianism, healing and kindness conceal the reality: there’s a noose in the needle.


Death Penalty History Condemns Itself

The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.

Today, there are 35 people on death row and four people have been executed in the last 53 years.

Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.

The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done though the heavens may fall.

How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?

What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?


The Death Penalty Doesn’t Work

The death penalty is a failure on every level: legal, social, political, penal, financial and moral.

First, there is no way to kill humanely.

Secondly, there is no way to kill in compliance with constitutional procedures.

Thirdly, there is no way to kill without the risk that innocent people will be executed.

Fourthly, administration of the death penalty has failed to deter heinous murders in Kentucky and to exact proportional retribution for and from the worst of the worst.

Finally, the people are not getting their money’s worth from an unnecessary system that serves no penological purpose.

In Kentucky, the death penalty makes nothing happen.

Nationally, it is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law). A recent example of Murphy’s law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could not find a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!

Law of Lightening

Imposition of the death penalty has been analogized to the capriciousness of lightening. The comparison is unfair. It is much easier to predict WHERE the death penalty will be used than to predict where lightening might strike. The death penalty has a measurable geographic vortex. The geography of the death penalty is so pronounced that it is an exercise of poetic license to say the United States endorses the death penalty. Actually, most places in the United States do not use the death penalty.

Since the death penalty was reinstated in 1977

• more than two-thirds of American counties have never imposed it and
• Only 3 percent (92 out of 3,066) of the nation’s counties have generated 50 percent of its death sentences.


Death Penalty Use is Limited and in Decline


The death penalty has become an embarrassment to our legal system. Its administration has undermined public confidence in the way the law works. The best thing its supporters can say about it is the best thing its opponents can say about it: it’s not used very much.

In fact, in some precincts, both social and geographic, it’s not used at all.
In 2009, eighty-seven percent of executions in the United States were in the south, and over half of those were in Texas. A single county in Texas has furnished more than 33 percent of the state’s death row population.

While 35 states have the death penalty, executions are clustered in just a few. There have been 1,188 executions since 1977 and 54 percent of those have come from three states: Texas, with 447 (37.6 percent),Virginia with 105 and Oklahoma with 91.

Even where the death penalty is used, its use is declining. There were fewer death sentences in 2009 than any year since executions resumed in 1977. Death sentences reached a high point in 1994, 328, and since then have declined 63 percent. 2009 is the seventh straight year the number of death sentences has declined.

Deterrence

Justification for the death penalty has been based on the penal goals of deterrence and retribution. But in 10 of the 12 states without capital punishment, the homicide rates are below the national average and FBI data shows that half of the states with the death penalty have murder rates above the national average. A New York Times analysis found that over the last 20 years, states with the death penalty have murder rates between 48 percent to 101 percent HIGHER than states without the death penalty (December 14, 2009 New York Times.)

Retribution

Gallup polls show that among those who support the death penalty, retribution is most often cited as the reason. A June 30, 2006 Gallup poll, citing a 2003 Gallup study stated:

The reason is very likely their concept of justice. According to a 2003 Gallup study, close to half of Americans who supported the death penalty cited some aspect of retribution for the crime as the reason. [An October 13, 2009 Gallup Poll updates public opinion on the death penalty reporting 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it -- continuing a trend that has shown little change over the last six years. ]

The most recent 2009 Gallup poll on death penalty support does not update the 2003 findings about the reasons for support of capital punishment nor does it update the 2006 finding, quoted in the 2009 study:

An Explicit Alternative to the Death Penalty? Gallup research has found that support for the death penalty is lower if Americans are offered an explicit alternative -- "life imprisonment, with absolutely no possibility of parole." In May 2006, for example, 65% of Americans supported the death penalty in general (matching the current figure),while,separately,47% said they preferred the death penalty to life imprisonment as a penalty for murder when given that choice (48% favored life imprisonment).

The Gallop finding is consistent with a 2006 University of Kentucky poll that found 67% of Kentucky residents questioned preferred a long prison sentence over execution for those convicted of murder. As part of a larger statewide survey in August and September, 2006 the University of Kentucky Survey Research Center asked 836 randomly selected Kentuckians over age 18 which of five possible punishments was most appropriate for someone convicted of aggravated murder.

Findings include:

• 36.2 percent favored life with no possibility of parole.
• 31.4 percent favored one of three other prison sentences: life without parole for 20 years, life without parole for 25 years, 20 to 50 years with no parole possible until 85 percent of the sentence is served.
• 30.5 percent favored the death penalty.


Balancing Retribution with Risk of Executing the Innocent

Gallop surveys have stated the retribution case in four ways: 1) the punishment fits the crime (37%); 2) the criminal deserves the punishment (13%); 3) it is fair 3%) and 4) it serves justice (4%) (Gallop Poll June 30, 2006 citing a 2003 Gallop survey) most of which may be summed up in the dictum ‘an eye for an eye.’

So the retribution case has two overarching formulations: (1) the punishment fits the crime (37%) and (2) the criminal deserves the punishment (20%).

When New Mexico abolished the death penalty in 2009, Governor Richardson acknowledged the retribution theory. But he rejected the practice because of the possibility of executing an innocent person. He concluded that life in prison without possibility of parole was a just penalty and adequate retribution perhaps even worse than death.

Governor Richardson’s concern about executing the innocent is well founded. Since 1977, 139 death row prisoners have been exonerated (in most cases ‘exonerated’ means the defendant was acquitted upon retrial and in a handful of cases ‘exoneration’ means the defendant was declared innocent based on DNA evidence). And now there is a 2009 report commissioned by the Texas Forensic Science Commission that points toward the conclusion that Texas executed an innocent man in 1991. Cameron Todd Willingham was electrocuted in 1991 for the arson murder of his three children. The new report finds that the arson claims were not sustainable (although this finding is hotly contested by some law enforcement officials). Resolution of the matter awaits adjudication by the State of Texas but progress is on hold since the Governor recently changed the composition of the committee assigned to sort out the facts and findings.

In Kentucky, the very recent Louisville case of Edwin A. Chandler is cause for grave concern. The judge that released Chandler in 2009 apologized to him from the bench (he was not the original sentencing judge) and called his case a miscarriage of justice. Chandler served nine years in prison for a murder he did not commit during a robbery he had nothing to do with. He could have received the death penalty.

Chandler’s innocence claims were corroborated by an eye witness that called the police and said that Chandler was not the shooter (but the witness was never called to testify at trial), by a fingerprint and DNA sample at the crime scene that was not found until years later and by a convenience store surveillance tape that the police lost before Chandler’s trial. The jury that convicted Chandler was ‘death qualified’ during voir dire meaning the state could have asked for the death penalty. But by closing argument it did not even though Chandler was convicted. The jury decision was based in part on the strength of Chandler’s actual confession to the crime which he said he made it in response to a threat by police to prosecute his family for being criminal accessories to murder if he did not.


Policy Conundrums
Retribution with Kindness

Administration of capital punishment requires navigating between the separate worlds of too much and not enough. The dual imperatives of getting more blood for blood in a humane way while at the same time satisfying the sense of equivalence that distinguishes retributive justice are impossible to reconcile.

How can a punishment informed by a sense of justice that imposes retributive equivalence be harmonized with the quest for a painless execution? How can the state methodically kill a person as an act of just retribution and at the same time comport with standards of decency that distinguish a civilized society? How can killing be kindness? How does the state reconcile the conflicting imperatives of retributive equivalence and humane execution?

Dr. Alfred P. Southwick thought he had the answer to the question in 1890 after ten years of work on his invention: the electric chair. Upon witnessing its first jolt in 1890 on killer William Kemmler, Dr. Southwick exclaimed:

There is the culmination of ten years work and study! We live in a higher civilization from this day.

Dr. Southwick didn’t know it when he spoke but the first jolt failed to kill Kemmler and George Westinghouse later said of the messy execution that ensued:

It could have been done better with an ax.

Lethal injection is the direct successor to Dr. Southwick’s 19th search for a method of premeditated, ritualized and efficient killing that demonstrates that we live in a higher civilization. Other methods have proved to have too much potential for misadventure to compete for the oxymoronic title of humane killing.


Legal Conundrums


Capital punishment has placed the constitution on a collision course with itself. On the one hand the constitution requires wise discretion applied to the special facts of every death penalty case and on the other hand the use of an objective, uniform standard consistently applied to all persons in all death penalty cases. In reinstating the death penalty in 1976, the U. S. Supreme Court approved state death penalty laws that yoked together the two disparate requirements under a due process template of the Model Penal Code called "guided discretion." But guided discretion is a contradiction of terms: the more there is of one, the less there is of the other. As a result, the 'guided discretion' templates aims for a very narrow target, perhaps a theoretical target, and is always in danger of erring either on the side of arbitrariness or on the side of inflexibility. The difficulty in applying the guided discretion standard is the reason why so many death penalty cases are reversed and retired and why the appeals are so protracted.

In 2009 The American Law Institute (ALI), the author of the Model Penal Code withdrew the standard from the model penal code … in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.The reauthorization of the death penalty by the Supreme Court was predicated on this standard which the ALI has now withdrawn. The ALI legal consultants that evaluated how the template has fared since 1976 have declared it a failure.

At some point, the courts will have to confirm the ALI’s conclusion.

Conclusion


The death penalty has failed as a matter of law and social policy.
The death penalty is not compatible with central values of our constitution: justice and basic fairness. It is impossible to formulate workable procedural rules in harmony with substantive legal requirements of eliminating arbitrariness and discrimination while achieving fundamental fairness through individualized sentencing.

The mere possibility of prosecutorial misfeasance or malfeasance in a death penalty case or the possibility of executing the innocent together with evidence of discrimination, including geographic discrimination, protracted litigation that seems to turn on technicalities collectively damages the legitimacy of the law and the credibility of the legal system.

No combination of procedural rules, substantive regulations, death protocols and eventless executions can save the death penalty from the genealogy from which it derives its inherent barbarism, its humane deficiencies, its premeditated cruelty and its costly failures.

The death penalty is killing itself.

DV
2968 words/ 25 minutes
February 26, 2010


Facts about the Death Penalty
(As of December, 2009)

35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 36 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 36
Women on Death Row (Kentucky) 1
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.

Tuesday, January 19, 2010

The Death of the Death Penalty

The Death of the Death Penalty

The death penalty is dead. Killed not by judicial fiat or parliamentary maneuver or executive order but by the people. Juries comprised of citizens who swear they support the death penalty in principle have simply quit imposing it in practice.

There have been four executions in Kentucky since 1956. Two involved inmates who dropped their appeals. Scarcity can be a sign of selectivity but the rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity.

The death penalty record in Kentucky support two conclusions:

1) It no longer serves a law enforcement purpose;
2) It offends Kentucky’s evolving standard of decency.

The supreme court case that resulted in the upcoming public hearings on execution techniques did not rule that the death penalty is legal--only that its machinery must be tinkered, tuned and tended in public.

The U.S. Supreme Court case that reviewed lethal injection in Kentucky did not rule on the legality of the death penalty but only a particular method of execution based upon a particular limited record about a particular regulation that we now know was not properly adopted.

The Kentucky Supreme Court should next address capital punishment head on not to abolish it on its own authority but by ruling that the people already have, secure in the knowledge that life in prison without parole protects the public and punishes the criminal.