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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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