Monday, June 26, 2006

Scalia quotes Marquis


certiorari to the supreme court of kansas

No. 04-1170.?Argued December 7, 2005--Reargued April 25, 2006--Decided June 26, 2006
Finding three aggravating circumstances that were not outweighed by mitigating circumstances, a Kansas jury convicted respondent Marsh of, inter alia, capital murder and sentenced him to death. Marsh claimed on direct appeal that Kan. Stat. Ann. §21-4624(e) establishes an unconstitutional presumption in favor of death by directing imposition of the death penalty when aggravating and mitigating circumstances are in equipoise. Agreeing, the Kansas Supreme Court concluded that §21-4624(e)'s weighing equation violated the Eighth and Fourteenth Amendments and remanded for a new trial.
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Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Scalia, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
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Justice Thomas delivered the opinion of the Court.
Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. Kan. Stat. Ann. §21-4624(e) (1995). We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.


Respondent Michael Lee Marsh II broke into the home of Marry Ane Pusch and lay in wait for her to return. When Marry Ane entered her home with her 19-month-old daughter, M. P., Marsh repeatedly shot Marry Ane, stabbed her, and slashed her throat. The home was set on fire with the toddler inside, and M. P. burned to death.
The jury convicted Marsh of the capital murder of M. P., the first-degree premeditated murder of Marry Ane, aggravated arson, and aggravated burglary. The jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. On the basis of those findings, the jury sentenced Marsh to death for the capital murder of M. P. The jury also sentenced Marsh to life imprisonment without possibility of parole for 40 years for the first-degree murder of Marry Ane, and consecutive sentences of 51 months' imprisonment for aggravated arson and 34 months' imprisonment for aggravated burglary.
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Justice Scalia, concurring.
I join the opinion of the Court. I write separately to clarify briefly the import of my joinder, and to respond at somewhat greater length first to Justice Stevens' contention that this case, and cases like it, do not merit our attention, and second to Justice Souter's claims about risks inherent in capital punishment.
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Finally, I must say a few words (indeed, more than a few) in response to Part III of Justice Souter's dissent. This contains the disclaimer that the dissenters are not (yet) ready to "generaliz[e] about the soundness of capital sentencing across the country," post, at 9; but that is in fact precisely what they do. The dissent essentially argues that capital punishment is such an undesirable institution--it results in the condemnation of such a large number of innocents--that any legal rule which eliminates its pronouncement, including the one favored by the dissenters in the present case, should be embraced. See ibid.

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Of course, even with its distorted concept of what constitutes "exoneration," the claims of the Gross article are fairly modest: Between 1989 and 2003, the authors identify 340 "exonerations" nationwide--not just for capital cases, mind you, nor even just for murder convictions, but for various felonies. Gross 529. Joshua Marquis, a district attorney in Oregon, recently responded to this article as follows:

"[L]et's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent--or, to put it another way, a success rate of 99.973 percent." The Innocent and the Shammed, N. Y. Times, Jan. 26, 2006, p. A23.

The dissent's suggestion that capital defendants are especially liable to suffer from the lack of 100% perfection in our criminal justice system is implausible. Capital cases are given especially close scrutiny at every level, which is why in most cases many years elapse before the sentence is executed. And of course capital cases receive special attention in the application of executive clemency. Indeed, one of the arguments made by abolitionists is that the process of finally completing all the appeals and reexaminations of capital sentences is so lengthy, and thus so expensive for the State, that the game is not worth the candle. The proof of the pudding, of course, is that as far as anyone can determine (and many are looking), none of cases included in the .027% error rate for American verdicts involved a capital defendant erroneously executed.

Since 1976 there have been approximately a half million murders in the United States. In that time, 7,000 murderers have been sentenced to death; about 950 of them have been executed; and about 3,700 inmates are currently on death row. See Marquis, The Myth of Innocence, 95 J. Crim. L. & C. 501, 518 (2006). As a consequence of the sensitivity of the criminal justice system to the due-process rights of defendants sentenced to death, almost two-thirds of all death sentences are overturned. See ibid. "Virtually none" of these reversals, however, are attributable to a defendant's " 'actual innocence.' " Ibid. Most are based on legal errors that have little or nothing to do with guilt. See id., at 519-520. The studies cited by the dissent demonstrate nothing more.

Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment--in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes--outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.

read the full FindLaw article here.

Saturday, June 10, 2006

Guns and Butter and Jails

The prime duty of government is to protect its citizens. It does that in a number of ways, from funding police, prosecutors and jails to protect citizens from crime, to passing laws and funding agencies that protect the public health by ensuring the water is safe to drink and the air is safe to breathe.

All too often, however, politicians tell citizens, the people who underwrite government with their tax dollars, that they must make a choice between decent schools or enough jail beds. These "guns or butter" choices are largely false and based on assumptions that are just plain wrong.

One oft-heard claim is that we spend more money on prisons than schools, and that by extension any request to expand jail beds rips the books out of an eager second-grader's hands.

Prisons and schools in Oregon are allocated at the state level. In the most recent budget about 58 cents of every tax dollar pays for education (kindergarten through higher ed) and about 8 cents pays for the judges, the prison system and the community probation programs that are administered by the county. Otherwise the cost of public safety is borne mostly by local governments -- cities and counties. They pay, mostly through your taxes, the costs of operating police and sheriff's offices, the prosecutor's office, and the jails.

The state also funds the lawyers appointed to defend accused criminals who cannot afford their own legal assistance. This is a much larger amount of money than most people imagine. In fact the state spends several million more dollars each year for "indigent defense" than state and county monies combined spend on the District Attorneys' offices to prosecute the same defendants.

In other words, when an aggravated murder case is tried in Clatsop County, as has happened several times during my tenure as D.A., the amount of money paid to the defense lawyers, defense investigators and defense witnesses is several times that of the prosecution. In one recent trial (State vs. Anthony Scott Garner) a single defense witness was paid more than $30,000. That's twice the amount I have to spend for ALL costs of ALL expert witnesses and witness travel in ALL the hundreds of cases my office tries each year.

Here's a claim that gets some people scratching their head. Sometimes you'll find two headlines in the same paper. One reads: "Prison Populations At All Time High." The other proclaims: "Crime Rate Lowest in 3o Years."

Wondering why? A very small percentage of people commit the overwhelming majority or crimes. It's not that half the citizens of Clatsop County are stealing stuff -- or worse -- from the other half. It's that 2,500 of them are stealing the stuff of the other 33,000. Lock up as many of those 2,500 criminals as you can and, lo and behold, the crime rate decreases.

Decreasing crime is a complex challenge. Solid families of whatever makeup, good education and adequate nutrition all help lower crime rates. We spend the vast majority of our public and private charitable resources shoring up these positive values, trying to keep or put people and children on a track that embraces positive and productive lifestyles.

Still, incapacitation is the main force driving crime rates down. When the molester next door finally goes to prison, at least for six years he's not victimizing any other kids.

Here we can consider the much-maligned Measure 11 sentencing law and our county jail.

Measure 11 applies only to criminals convicted of the most serious crimes against people -- serious assaults, sex crimes, armed robbery and homicide. It was enacted by grassroots support after people got tired of criminals serving two years and four months for deliberately running down a 12-year-old girl (Lisa Doell in Lake Oswego), and of murderers serving less than eight years after being sentenced to life.

Measure 11 does not apply to any drug crime, forgery, theft of any amount or even burglary of an occupied home.

Of the almost 1000 criminal cases filed in Clatsop County each year, about 35 percent are felony crimes. These are more serious charges with the possibility of prison as a sanction. Of that 35 percent, more than 75 percent will not go to prison but will instead be placed on probation, with the possibility of being sent jail should they violate probation. It's this specter of jail time that the probation officer hopes will induce co-operation in treatment and rehabilitation.

The Clatsop County jail is currently “capped” at 60, with an additional 20 beds rented from Tillamook County. Very soon the Transition Center will open. Not a jail, it is more of a halfway house/dorm with a capacity of 30 beds. In theory the people who will go there instead of jail are motivated to change their lives and will take advantage of the more intensive supervision they will get while living at the Transition Center. But there are no locks on the doors, no bars on the doors. If an inmate choose to walk, he would face the prospect of being arrested and taken to the secure jail, assuming there is any room in that facility.

Clatsop County has spent many thousands of dollars on studies, all of which have recommended having a secure-bed jail with a capacity of 140 to 200. The trick is to keep the bed from being totall full so that probationers can let their charges know that if they screw up there is in fact a jail bed with their name on it. Sometimes this knowledge deters your garden-variety criminal as well.

As it stands now, someone who has failed his probation for the fourth time may be sentenced by one of our judges to the maximum pf six months. But it's not uncommon for that person to serve only a few days of the sentence because of what is called “forced matrix release.” Now the offender, who was supposed to be in treatment and staying away from bars but didn’t, is out free. And I do mean free, at least until the end of the six months that he was sentenced, because on paper he's “in jail” and, therefore, his probation officer can’t even supervise him.

Most of the people in jail are awaiting trial, some because they are accused of very serious crimes (like rape) but most because they have a long record of failing to show up the many other times the court has ordered them to appear. Every time the lawyers, judge, and witnesses show up ready for a hearing and trial and the defendant has taken a powder, it costs the taxpayers another part of the figurative arm or leg.

There's no question that we need a spectrum of sanctions. Those who are willing to change a destructive lifestyle need access to job and life skills training, and to education. A short jail stays can be enough to convince some offenders to change their lives. Some require a longer term. The hope is always that imprisonment will deter the criminal by making the consequences of his choices so unpleasant. Failing that, we need simply to separate some criminals from the larger community for the rest of their predatory life.

But we do have limited resources. Our task is to elect with care the government officials who make decisions at the city and county level -- mayors, city councilors, county commissioners, the Sheriff, judges, the District Attorney -- and tohold them accountable for sensible and productive uses of those resources.

As District Attorney it's my job to be the gatekeeper at the front end of the system for those who won’t obey the law; to filter out the cases that can’t be prosecuted and to elevate those that commit the greatest harm; and then to advocate for holding responsible those who are found guilty and seek consequences for their wrongdoings, all the while recognizing that any human system is imperfect and no-one has flawless judgment.

In a smaller community this is often a tough job because at some point a person I know or a family member or a friend of a friend will cross the line. Is there one rule of law for those I know and like and a different one for the faceless others? No. If I do my job right I’ll always have a someone mad at me for dragging their brother/sister/husband/child into court and changing their lives.

I don't get frequent flyer miles for the numbers of people who get locked up. I live in the same county as all of you and I simply want all my neighbors to be able to enjoy their homes and their property, to drive our winding roads without fear, and for their kids to be able play in a safe park.

And, contrary to popular myth, being a career District Attorney is actually a lousy job if you aspire to higher office. If you do it right you make more enemies than friends. But you get to sleep well at night, knowing that you’ve done your best to do the right thing, as best you can see it. What I like most about my job is that my sole allegiance as a lawyer is to the truth. I'm not beholden to someone paying the bill. It's a moral luxury few private attorneys enjoy.

[This essay was edited for typos and reposted on Thursday, June 15.]