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Views shift on use of executions

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Cost of Justice

What if 1976 hadn’t played out the way it did, and some of the jurists on the U.S. Supreme Court had held the view of capital punishment at that juncture that they did at the end of their judicial careers?

The death penalty may never have been reinstated.

That changing judicial perspective is making its mark on the continued evolution of the death penalty debate.

stevens-john-paul-mug.jpg Stevens

“This has all been a long experiment since the death penalty came back, and we’re all still working it out,” said Richard Dieter, executive director of the non-profit Death Penalty Information Center in Washington, D.C., that studies capital punishment. “Even if it’s theoretically constitutional and you get past the moral questions, many are seeing that in practice through the years (this system) lacks protections or predictability and just isn’t worth it.”

One of the most visible examples of this judicial change of heart comes from Justice John Paul Stevens, who hails from the 7th Circuit and retired from the Supreme Court of the United States in 2010 after 35 years. In 1976, after six months on the bench, Justice Stevens voted to bring back the death penalty because of what he saw as “a promise” of evenhanded justice and careful consideration of that penalty.

The case was Gregg v. Georgia, 428 U.S. 153, 206-07 (1976), one of five companion cases that was at the time considered the test for whether the death penalty could be reinstated nationwide following a 1972 5-4 ruling that had struck it down. Many states, including Indiana, had revised state laws concerning capital punishment, and Justice Stevens and six of his colleagues voted that the death penalty was constitutional with the right procedures and narrow, equitable application.

But 32 years and more than 1,000 executions later, Justice Stevens reversed course. Now retired, he says that he regrets his vote in Gregg and would have made a different decision if he knew what was ahead.

In the 2008 Kentucky lethal injection case of Baze v. Rees, 553 U.S. 35 (2008), Justice Stevens concurred with the use of lethal injection but wrote separately to explain his overall concerns with the death penalty. He wrote that the case questioned the justification for the penalty itself, and he stressed concerns about the process that often relies on emotion and ends with inconsistent result.

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” Justice Stevens wrote. “A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Following his retirement, Justice Stevens explained further his rationale and the historic perspective behind his change of heart. He wrote an essay that appeared in the “New York Review of Books,” reviewing a law professor’s book on capital punishment and explaining his reasoning.

He wrote that personnel changes on the court and “regrettable judicial activism” that chipped away at the foundation of the 1976 rulings were significant reasons for his shift, and that in his time on the bench the capital punishment system has become error-ridden, skewed toward conviction, and weighed down by political concerns of those involved in the decision-making on death. He wrote about how elections affect decisions of state prosecutors and judges who impose it, and said there has been a tilting of the playing field toward conviction because prosecutors often exclude jurors with qualms about the death penalty.

In the essay, Justice Stevens wrote that legislative imposition of death eligibility must be rooted in benefits for at least one of five classes affected by capital offenses – victims, survivors, legal community participants such as attorneys and judges, the general public, and the accused who would ultimately be condemned. The system doesn’t provide adequate justification for those parties, except for the survivors, but that can’t be taken alone, he wrote.

Justice Stevens joins other former justices whose views have altered since their time on the court. Former Justices Lewis F. Powell and Harry Blackmun, who retired in 1987 and 1994 respectively, switched their views and completely repudiated capital punishment, while Justice Stevens had continued to uphold those sentences when he believed that the court’s precedents led to that conclusion.

All three were part of the 7-2 majority reinstating the death penalty in 1977.

dieter-richard-mug.jpg Stevens

“Over their years on the court, they begin to see how the system often fails to provide even minimal due process,” Dieter said. “Although they may not feel empowered to overturn the death penalty until there is a national consensus against it, they recognize they can at least improve the justice system by requiring better representation, demanding unbiased jury selection, and explaining to judges what the law is.”

Statewide judicial view

From the Indiana Supreme Court perspective, former Justice Theodore Boehm, who left the bench in September 2010, doesn’t go into how his personal views changed over time but says as a judge he tried to be as consistent as possible in every death penalty case before him.

“As a judge, this is a legislative matter to decide on whether we should have it or not,” he said. “If it’s in place and constitutional, then it’s our job to administer – whether one thinks it’s wise or not.”

Clues about the five justices’ own judicial philosophies can be found in the published writings and rulings they’ve made through the years. The two most often aligned in dissenting on death and vocal about their views on the capital punishment system have been Justices Boehm and Robert Rucker.

No death penalty case has been decided by the Indiana Supreme Court since Justice Boehm retired Sept. 30 and Justice Steven David joined the bench. Justice David, a former Boone Circuit judge, has a unique perspective on death penalty cases. In his previous work as a judge advocate general, he served as the Office of Military Commissions’ chief defense counsel who attended American Bar Association death penalty training courses and helped build teams of military defense attorneys to handle complicated capital cases.

In May 2005, he presided over the case of Zolo Agona Azania, convicted in 1982 for murdering a Gary police officer. His death sentence had been overturned twice. The case went back for a third sentencing and then-Special Judge David ruled that too much time had lapsed and deprived the man of his constitutional rights, and he barred prosecutors from seeking a death sentence again.

According to the judge, “Fundamental principles of fairness, due process, and speedy justice warrant this court prohibiting the state to seek the death penalty against this Defendant in this case under these circumstances.”

The Indiana Supreme Court reversed that ruling in 2007, with Justices Rucker and Boehm dissenting. The case went back for a new trial, but a year later a plea agreement emerged that resulted in a largely suspended 44-year sentence for murder and robbery – meaning after time served Azania could be released by 2015.

Attorneys and judges who watch the capital punishment system say they are interested in seeing how the state Supreme Court’s newest addition impacts its death penalty decisions. But fewer filings and subsequent appeals mean the court has less opportunity to provide that guidance.

On the national stage, Dieter says costs of this system are contributing to the gradual execution of the death sentence.

“As former Justice Marshall predicted, the more people and fellow justices who learn about how it works in practice, the more likely they are to oppose it,” he said. “If it weren’t for the perceived political advantage to supporting the death penalty, it would probably be gone by now.”•
 

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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