The American Bear

› Nathan Dunlap granted temporary reprieve by Colorado Gov. Hickenlooper | The Denver Post

Gov. John Hickenlooper on Wednesday issued an executive order granting convicted killer Nathan Dunlap a “temporary reprieve” from an execution that had been just three months away.

In an executive order that provides an indefinite stay of execution, Hickenlooper writes that the decision has weighed heavily on him.

He calls Dunlap’s crimes “horrendous” — although nowhere in the order does he refer to Dunlap by name — and declares his respect for the jurors who handed down the death sentence.

But more than 15 years have passed since that decision, and those years have provided “the benefit of information that exposes an inequitable system,” Hickenlooper’s order states.

“It is a legitimate question whether we as a state should be taking lives,” the order says. “Because the question is about the use of the death penalty itself, and not about Offender No. 89148, I have opted to grant a reprieve and not clemency in this case.”

The executive order will remain in effect until it is modified or rescinded by a future executive order.

› NYPD stop-and-frisk trial ends as activists call for sweeping changes | guardian.co.uk

Civil rights attorneys called for sweeping changes to the New York City police department’s controversial street-stop practices in the closing arguments of a landmark federal trial.

US district court judge Shira Scheindlin will now determine if the nation’s largest police force is responsible for longstanding and widespread constitutional rights violations, including systemic search and seizure and racial profiling abuses.

If Scheindlin sides with the plaintiffs in the case, the department could find itself supervised by an outside monitor, a shift the mayor and the police commissioner have said will put the city at risk.

While the judge did not provide a timeframe on when she would issue her ruling, she described the case as a “timely and pressing matter”.

“It has to be done,” she said. [++]

› Florida Lawmakers Pass Bill To Speed Up Executions | Rhania Khalek

For a state with 24 death row exonerations under its belt (the highest in the country), you would think Florida might want to slow down its execution process to avoid putting innocent people to death. But Florida lawmakers are doing just the opposite

Late last month both the Florida House and Senate passed the “Timely Justice Act”, which Republican Gov. Rick Scott is expected to sign into law, according to Reuters.

Under Florida’s current process, the Governor signs and issues death warrants at his discretion. The Act would change this by setting up automatic deadlines for filings to speed up the appeals process. Once appeals are exhausted and clemency denied, the Governor would be forced to issue a death warrant within 30 days and an execution date within 180 days.

Floridians for Alternatives to the Death Penalty, or FADP, says 13 of the 405 inmates on death row in Florida fall within this category and would therefore be issued death warrants immediately. Another 80 prisoners have exhausted their appeals and are waiting on clemency hearings, making them vulnerable to immediately issued death warrants as well. That means that if the “kill them faster” Act is signed into law, the state of Florida could execute as many as 90 inmates within the first six months of its signing.

Proponents of the Act argue that the appeals process is too lengthy, costly and delays justice. Indeed, the process can take decades and cost millions but that is to ensure justice not delay it. After all, several Florida exonerees were on death row for over a decade before proving their innocence. One example is Juan Melendez, who spent 18 years on death row and lost three appeals in front of the Florida Supreme Court before his release. Had the “streamline murder” Act been in place at the time there’s a good chance Melendez and others like him would have been killed for crimes they did not commit.

If the state insists on taking someone’s life (a morally corrupt position to start with), shouldn’t it be 110 percent certain that they are guilty? And therein lies just one of the many, many problem with the death penalty; rarely does this kind of certainty exist. The state can always overturn a sentence if an inmate is later found innocent, but not if they’re already dead. Lethal injection is permanent.

Republican Senator Rob Bradley basically admitted that he doesn’t care if Florida puts innocent people to death, saying, “this is not about guilt or innocence, it’s about timely justice.” Apparently, convenience is more important than life-or-death justice. [continue]

› Who is the Real Enemy of the State? | Gene Howington

You might be an enemy combatant if … Sen. Lindsey Graham (R – S.C.) says so.

This sounds like a bad joke, but it isn’t. The potential political misuse of the arbitrary “enemy combatant” status has been discussed here on many threads albeit usually in the form of using Executive abuse to illustrate that danger while Graham’s cavalier “suggestion” is clearly from the Legislative branch. In comments made by phone to the Washington Post’s Jennifer Rubin on Friday, April 19, Senator Graham said of the Boston bombers:

‘They were radicalized somewhere, somehow.’ Regardless of whether they are international or ‘homegrown,’ he said, ‘This is Exhibit A of why the homeland is the battlefield.’ Recalling Sen. Rand Paul’s filibuster, Graham noted that he took to the Senate floor specifically to object to Rand’s notion that ‘America is not the battlefield.’ Graham said to me, ‘It’s a battlefield because the terrorists think it is.’ Referring to Boston, he observed, ‘Here is what we’re up against,’ and added, ‘It sure would be nice to have a drone up there [to track the suspect.]‘ He also slammed the president’s policy of ‘leading from behind and criminalizing war.’”

That was not the end of Graham’s disturbing posturing.

Continuing his fear mongering rush to throw the Constitution under the bus, Graham took to Twitter.

If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes.

— Lindsey Graham (@GrahamBlog) April 19, 2013“

So he can be what, Lindsey? What’s that word … entrenched evasion … no, no …

If the #Boston suspect has ties to overseas terror organizations he could be treasure trove ofinformation [sic].

— Lindsey Graham (@GrahamBlog) April 19, 2013“

Enhanced interrogation! That’s it. Most sane and ethical people still call that torture. Which is still against Federal law under 18 USC § 2340, § 2340A and § 2340B, and is in direct violation of the Constitution’s 8th Amendment. Ironically enough …

The last thing we may want to do is read Boston suspect Miranda Rights telling him to ‘remain silent.’

— Lindsey Graham (@GrahamBlog) April 19, 2013“

But we’ll be coming back to this, however, this does not mitigate the enormously hilarious blather you say next, Senator.

The Obama Administration needs to be contemplating these issues and should not rush into a bad decision.

— Lindsey Graham (@GrahamBlog) April 19, 2013“

Do you mean bad decisions like ignoring and violating the Constitution and Federal law, foregoing prosecution of domestic war criminals, and aiding and abetting said war criminals escape justice after the fact, Senator? Or are you talking more “mundane” bad decisions like letting you use the phone or Twitter without a minder to keep you from putting your feet in your mouth? Bad decisions seem to be Washington’s stock and trade in the post-9/11 pre- (some might say “post-”) martial law America.

He was joined in his anti-Constitutional posturing by New York State Senator Greg Ball (R) who twitted when he tweeted on Twitter:

So, scum bag #2 in custody. Who wouldn’t use torture on this punk to save more lives?

— Greg Ball (@ball4ny) April 20, 2013“

Charming.

Senator Graham’s Constitutionally bellicose comments and State Senator Ball’s quite frankly abhorrent and inhumane comments are Exhibit A illustrating the war against your Constitutional rights going on in Washington and in other realms of American politics. This “War on Your Freedoms” (c) ™ is openly being prosecuted by the ever expanding and unitary Executive with the aid of the Legislature. Under the NDAA (theNational Defense Authorization Act for Fiscal Year 2012, specifically § 1021 ), the Obama Administration has maintained the stance that the President has the power to detain and curtail the rights of anyone he decides is an “enemy combatant” – including U.S. Citizens found within the U.S. like Dzhokhar A. Tsarnaev, 19, a naturalized American citizen – as enemy combatants. This definition is important because it subjects alleged criminals to the Law of War. This mean they can face sanctions without the benefit of judicial review including indefinite detention without trial or charge, transfer to foreign jurisdictions or entities (a.k.a. extraordinary rendition where they ship you off to a foreign jurisdiction to be tortured), and military tribunals. In essence, the NDAA seeks to designate the United States as an active war zone in regards to allegations of terrorism, or support of terrorism, wherein our most cherished all while putting your basic Constitutional Rights subject to the President’s whim. Herein we see the inherent danger of the expanding police state. Although the Obama Administration insists that it “has a firm and publicly stated policy against using military detention for domestic captures or U.S. citizens. So whatever the (National Defense Authorization Act) may theoretically authorize or tolerate, it doesn’t affect this situation,” as summarized by Benjamin Wittes, senior fellow and research director in public law at the Brookings Institution, we can clearly see that such promises of restraint in using an overreaching Executive power is dependent entirely upon the President in question. The value of political promises made to the general citizenry of the United States is a number rapidly, not just approaching zero, but zooming right on past it into the realm of negative numbers. This blurs the line between criminal law and the Law of War in a manifestly unconstitutional way. [++]

› Paine on Preserving Liberty • Harper's Magazine

jimicowan:

All these things have followed from the want of a constitution; for it is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, thus far shalt thou go and no further. But in the absence of a constitution, men look entirely to party; and instead of principle governing party, party governs principle. An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Relevant, I’d say. 

› Even Bipartisan Conventional Wisdom Report Says It Was Torture | Marcy Wheeler

The Constitution Project has released a major report on the government’s torture program. You can download the report here.

The report is important and comprehensive, but not without flaws. It took me a matter of minutes to find a number of errors, repetition of dangerous misinformation, and incomplete reporting. While I may lay out some of these problems at more length after the report has had its big publicity splash, suffice it to say the report tends to preference newspaper reporting over actual primary sources, and at times it appears completely unaware of what primary sources say.*

As such, the report represents a cautious, bipartisan, institutionalist view. Which is why its conclusion is so valuable. Because even this cautious, bipartisan, institutionalist report concludes the following (among other findings):

Finding #1

U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.

Finding #2

The nation’s most senior officials, through some of their actions and failures to act in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some U.S. personnel on detainees in several theaters. Responsibility also falls on other government officials and certain military leaders.

Finding #3

There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

Finding #16

For detainee hunger strikers, DOD operating procedures called for practices and actions by medical professionals that were contrary to established medical and professional ethical standards, including improper coercive involuntary feedings early in the course of hunger strikes that, when resisted, were accomplished by physically forced nasogastric tube feedings of detainees who were completely restrained.

Finding #19

The high level of secrecy surrounding the rendition and torture of detainees since September 11 cannot continue to be justified on the basis of national security.

Finding #21

The Convention Against Torture requires each state party to “[c]riminalize all acts of torture, attempts to commit torture, or complicity or participation in torture,” and “proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” The United States cannot be said to have complied with this requirement.

In short: it was torture, it was illegal, it was not valuable, and it still needs to be prosecuted. (And, among other findings implicating it directly, the Obama Administration needs to stop force feeding Gitmo detainees.)

And all that’s ignoring some of the more damning evidence out there.

Let’s see whether bipartisan convention wisdom serves its purported purpose, effecting change in cautious, institutionalist DC.

*I am admittedly biased on this front. I was within a day of being contracted to collect documents for this effort, but someone involved in the process deemed me — at a time when I was already loudly criticizing the Obama Administration for things they’ve done — too partisan for the project. Some of the documents I had already identified at that time are utterly absent from this report; in their place the report claims ignorance.

› Bronx Defenders redefining public defense | Moyers and Company

Fifty years ago, the Supreme Court ruled in the case of Gideon vs. Wainwright that criminal defendants have the constitutional right to legal representation, whether they can afford it or not. But today’s public defenders are overworked and underpaid, and the scales of justice still tilt heavily in favor of the wealthy.

An organization in Bronx, New York is trying to change that. The Bronx Defenders are redefining public defense with a holistic model that addresses the underlying problems driving people into the criminal justice system, providing both legal counsel and social services under one roof. It’s proven so successful that the Justice Department tasked them with teaching the model to public defenders in other cities. [video]

› Maryland moves to abolish death penalty

sinidentidades:

Maryland, which has not executed any one since 2005, is set to abolish the death penalty for good within days, becoming the 18th US state to do so.

A bill proposed by Governor Martin O’Malley to end capital punishment passed the state senate Wednesday, and the measure is widely tipped to also clear the house of representatives, where Democrats, who favor the bill, have a large majority.

Maryland has had capital punishment in place since 1638, when it was still a British colony. Today, just five inmates remain on death row in the state that borders the US capital, and their executions seem unlikely to take place.

› Britain and US asked to release secret torture reports | guardian.co.uk

A UN human rights advocate has called on Britain and the US to release confidential reports into the countries’ involvement in the kidnapping and torture of terrorism suspects, accusing them of “years of official denials, sophistry and prevarication” to cover up the truth.

In a speech to the UN human rights council in Geneva introducing a report on the issue, Ben Emmerson, a British barrister who is the UN’s special rapporteur on protecting human rights within efforts to combat terrorism, demanded that Britain publish the interim findings of a report by a retired judge, Sir Peter Gibson, into the involvement of MI5 and MI6 in the removal and mistreatment of terrorist suspects.

In a response delivered at the council, British officials said the government was “looking carefully at the contents of the report by the Gibson inquiry on its preparatory work, with a view to publishing as much of it as possible”. There was no word on when this might happen.

Emmerson also asked the US to release a similar report by the Senate’s select committee on intelligence into the CIA’s secret detention and interrogation programme.

Failure to do so showed a seeming unwillingness by both governments to face up to serious international crimes and “a policy of de facto immunity for public officials who engaged in acts of torture, rendition and secret detention, and their superiors and political masters who authorised these acts”, Emmerson said.

“Words are not enough. Platitudinous repetition of statements affirming opposition to torture ring hollow to many in those parts of the Middle East and North Africa that have undergone, or are undergoing, major upheaval, since they have first-hand experience of living under repressive regimes that used torture in private whilst making similar statements in public,” he added.

“The scepticism of these communities can only be reinforced if western governments continue to demonstrate resolute indifference to the crimes committed by their predecessor administrations.” [more]

› Supreme Court Rejects Challenge to Surveillance Law | NYT

In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone. “They cannot manufacture standing by incurring costs in anticipation of non-imminent harms,” he wrote of the plaintiffs.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion.

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissenting opinion.

The decision, Clapper v. Amnesty International, No. 11-1025, probably means the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the attacks of Sept. 11, 2001.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails.

› Unanimous juries for criminal convictions? Supreme Court declines case.

sinidentidades:

The US Supreme Court declined on Tuesday to take up a case examining whether the Sixth Amendment right to a jury trial requires that juries in criminal cases reach their verdicts unanimously.

Two states, Louisiana and Oregon, permit convictions on less than unanimous jury verdicts. In both states a defendant can be convicted by an 11-to-1 or 10-to-2 vote.

All other states and the federal government require that jurors reach a verdict unanimously.

Lawyers urging the high court to take up their case alleged that the jury process in Louisiana is a vestige of a Jim Crow-era policy that sought to undermine African-American participation in the criminal justice system.

The petitioning lawyers also charged that the system undercuts the reliability of jury verdicts. They note that Louisiana’s Jefferson Parish, where their case was tried, has the fourth highest rate of wrongful convictions in the country. Neighboring Orleans Parish has the highest rate.

The root cause of these failures is Louisiana’s embrace of non-unanimous verdicts – “a practice that stultifies the time-honored method of ensuring careful review of the prosecution’s case in the jury room,” Stanford Law Professor Jeffrey Fisher wrote in his brief urging the court to confront the issue.

Officials in Louisiana deny that their non-unanimous jury system perpetuates racist policies or shoddy justice.

“Petitioner asks this court to reverse a matter settled by this Court forty years ago and a settled matter of state law for over 100 years,” assistant district attorney for Jefferson Parish, Terry Boudreaux, wrote in his brief to the court.

The issue arose in the case of Corey Miller, a New Orleans rapper, who was convicted of second-degree murder in the 2002 shooting death of 16-year-old Steve Thomas at a nightclub. The crime scene was crowded and confused, with conflicting testimony about who the shooter was or might have been. Prosecutors charged Mr. Miller, put him on trial for second-degree murder, and the jury voted 10 to 2 to convict.

Miller was sentenced to life in prison without the possibility of parole.

The US Supreme Court ruled in 1972 that the Constitution does not bar states from adopting less-than-unanimous jury verdicts. The nine justices split 4 to 4 on the issue. Justice Lewis Powell broke the tie, siding with the justices supporting non-unanimous juries at the state level.

At that time only Louisiana and Oregon embraced the idea, and they remain today – 40 years later – the only two states with such a system.

› Warren Hill facing legal uncertainty despite stay of execution | guardian.co.uk

Warren Hill, the intellectually disabled prisoner in Georgia who came within half an hour of being put to death on Tuesday night, was in a state of legal uncertainty on Wednesday as lawyers struggle to work out what happens next.

With about 30 minutes to go before Hill was injected with a fatal dose of the sedative pentobarbital, two separate courts stepped in to impose a temporary delay in the proceedings. The federal appeals court in Atlanta ordered that the execution should be delayed for at least 30 days, while a Georgia court of appeals imposed its own stay to give the courts more time to consider the propriety of the single lethal injection as a method of killing.

The interventions take Hill, 52, out of immediate peril. But his position remains precarious given the temporary nature of the postponements.

While he was spared execution, Hill was delivered a serious blow in the form of a denial by the US supreme court to hear his case. That decision means that Hill’s options would be limited, should he come close to execution again.

It was unclear why the supreme court declined to hear the case – whether in deference to lower courts or for a more fundamental reason. The supreme court is heavily entwined in the Hill case because it was the court’s own 2002 ruling, Atkins v Virginia, that banned the death sentence for “mentally retarded” prisoners.

Hill has now been found to be intellectually disabled – or, as the courts still put it, “mentally retarded” – by all nine medical specialists who have evaluated him. But in a catch-22, the supreme court allows individual states to determine how they define the condition, and Georgia is the only state in the union that requires prisoners to prove it “beyond a reasonable doubt” – a standard that experts say is almost impossible to achieve. [++]