Arizona’s Immigration Law: 3 Sections Down, 1 to Go

Immigrant rights activists participate in the annual May Day rally. AFP PHOTO / Robyn Beck/Getty Images

This week, the Supreme Court of the United States (SCOTUS) delivered its ruling on four sections of SB 1070, more than two years after Arizona’s discriminatory immigration bill was signed into law.

In a 5-3 decision, the Court struck down provisions criminalizing the acts of failing to carry immigration papers, seeking or performing work as an undocumented migrant, and provisions allowing police to arrest without warrant anyone suspected of committing a crime that could lead to deportation.

The fact that these provisions will not be able to take effect is a victory for immigrants’ rights activists and those fighting the draconian immigration laws that have been popping up in various parts of the country. Unfortunately, the good news is somewhat overshadowed by the fact that for Latinos and visible migrant communities in Arizona, the chances of being racially profiled have been both increased and de facto legitimized by this decision. SEE THE REST OF THIS POST

What We Can Learn From 'My Cousin Vinny' About The Death Penalty

joe pesci my cousin vinny

In a recent, pre-Oscars blog post, I asked you all to name your favorite death penalty themed movies. We got lots of responses, from the obvious, to the more obscure, to the somewhat off-topic. One film that did not get mentioned at all is celebrating its 20th anniversary this year: My Cousin Vinny.

Lawyers love My Cousin Vinny. It recently ranked third on the American Bar Association Journal’s list of top 25 movies. For many folks it’s an entertaining fish-out-of-water comedy about New Yorkers in Alabama, with classic (and in one case Oscar-worthy) performances by Joe Pesci, Marisa Tomei and Herman Munster.


Choosing To Be Executed, Or Choosing To End Executions?

Yesterday in Alabama, Christopher Johnson was executed.  Despite a childhood spent in and out of psychiatric hospitals, he had been allowed to represent himself at trial and then refuse to pursue appeals.  He seemingly wanted to die.

More than one in ten U.S. executions since reinstatement of the death penalty in 1976 has been a “volunteer” like Christopher Johnson.  Another, Gary Haugen, is slated to be put to death in Oregon on December 6.  Oregon, unlike Alabama, rarely executes prisoners; its last two executions (in 1996 and 1997) were also of “volunteers”.  Oregon is one of several states that have executed only “volunteers”.  (Connecticut, Idaho, New Mexico, Pennsylvania, and South Dakota are the others – Nevada has executed 11 “volunteers”, but only one prisoner whose appeals were fully heard.)  At least one study has found a strong correlation between “volunteering” for execution and mental illness.

There is evidence that Gary Haugen is not mentally fit to choose to give up his appeals.  But courts haven’t heard that evidence because, well, he’s given up his appeals.  For a state that has never been enthusiastic about the death penalty, that’s a troubling catch-22.


All Executions Are Wrong

The morning after Troy Davis was executed, the state of Georgia set another execution date.  Marcus Ray Johnson is slated to be put to death on October 5.  The Georgia Board of Pardons and Paroles should hear from us (fax: 404-651-6670;  email: about this case too, because all executions are wrong.

Even if there are no doubts about guilt (as there was in the case with Troy Davis, and as there is in the case with Reggie Clemons), even if there are no horrifying mitigating circumstances (like the ones that led Ohio’s Governor John Kacich to commute another death sentence), and even if the crime is particularly heinous (as was the case with the execution last week of Lawrence Brewer in Texas) the deliberate putting to death of a human being is not justice and is a fundamental violation of basic human rights.


Immigration Detention: The Golden Goose for Private Prisons

An immigrant stands in a holding cell at the U.S. Immigration and Customs Enforcement detention facility in Florence, Arizona. (Photo by John Moore/Getty Images

For many months now, states all over the U.S. and the federal government have taken steps to “get tough” on undocumented immigrants of color without taking into account the fact that workers are crossing the border because U.S. employers are desperate for their labor and no visas exist to permit their entry.

Instead of spending their time tackling this reality, which if actually addressed might create a basis for the nondiscriminatory enforcement of immigration laws, legislators are instead continuing to introduce bills, such as Rep. Lamar Smith’s H.R. 1932.

These bills throw more money at detention centers and enforcement operations and ups the ante by making their imprisonment mandatory and indefinite, regardless of Supreme Court precedent finding that it’s unconstitutional.


The Great Experiment?

In a recent report to the UN High Commissioner for Human Rights,  the US touted its human rights record and argued that:

The American experiment is a human experiment; the values on which it is based, including a commitment to human rights are clearly engrained in our own national conscience…

Yet US commitment to the death penalty, which only a shrinking minority of other nations still supports, belies these grandiose words.  A commitment to executions fundamentally conflicts with a commitment to human rights.

There have been around a thousand executions since former Supreme Court Justice Harry Blackmun famously declared that “the death penalty experiment has failed,” arguing succinctly that “…the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.”

A new short Amnesty International document illustrates just how pervasive these errors are, drawing just on cases from this month.  In Alabama, Georgia, Kentucky, Virginia and Washington state we have seen executions scheduled, and sometimes carried out, despite blatantly atrocious lawyering, clear racial bias, and defendants whose diminished capacity should have made them ineligible for the death penalty.  These cases show that our capital punishment system continues to be “little more than a lottery, with outcomes affected by issues such as prosecutorial resources, electoral politics, race, defence representation, jury composition, and so on.”

And just yesterday we saw an inmate, Brandon Rhode, rescheduled for execution three days after his life was saved following a suicide attempt.  The cruelty and absurdity, and completely arbitrary nature of American capital punishment has been on full display this month.  If the US wants its “commitment to human rights” to be taken seriously, it will have to give up its experiment with the death penalty.

The Cruelty of Killing the Intellectually Disabled

The state of Virginia plans to put Teresa Lewis to death on September 23, 2010.

How does killing the intellectually disabled give us justice?

The state of Virginia plans to put Teresa Lewis to death on September 23 for orchestrating the 2002 murders of her husband and stepson for insurance money.  Strangely, though, this so-called “mastermind” has an IQ of 72 and has been diagnosed with “borderline mental retardation”.  Further, one of the two shooters in the case admitted in 2004 that he was the true mastermind and that he determined shortly after meeting Lewis that she was “not too bright and could be easily manipulated.” And it seems that that is just what he did.  His IQ, incidentally was scored at 113.  The two shooters were sentenced to life.  Lewis, a non-shooter, was cooperative, pled guilty and now faces death.

This is the second execution date set for this month of a person whose mental capacity borders on intellectual disability.  The U.S. Supreme Court ruled that it would be unconstitutional to execute such individuals, except that these two individuals were not recognized in their legal proceedings as meeting the definition of “mentally retarded” (the outdated term used in legal-ese), which requires a look at a number of factors.  Accountability and providing justice for the sake of the murder victims is not the question here, but surely these individuals whose culpability is diminished by their mental capacity should not be executed in a humane society.

Holly Wood, an African American man in Alabama may be put to death tonight if Governor Bob Riley does not intervene.  At the crux of his case is the unsurprising issue of ineffective legal counsel.  The lawyer who represented him at the sentencing phase was a total rookie – no experience with death penalty cases, let alone criminal law.  He failed to share with the jury information about Wood’s mental impairments and as a result, this crucial mitigating factor was missing from deliberations that resulted in the decision to send him to the gurney.  While there was no question about his guilt, four federal judges in three courts, whose opinions did not carry the day, concluded that he was denied adequate legal representation.

The failure to investigate Wood’s mental disability was proof said two dissenting U.S. Supreme Court justices of “inattention and neglect.”  And so, another person goes to death row because of a system that is willing to allow poor legal representation for people facing the most severe and irreversible sentence.  Incidentally, his IQ has been assessed (post-conviction) at 64 and 59.  A reporter asked me yesterday how this score would not indicate his “mental retardation”; thus, how could Wood’s execution be constitutional?  I really don’t know.

Help us stop the pending executions of Teresa Lewis and Holly Wood by taking action today.

Paying for a Lawyer's Mistake with Your Life

Should a client suffer the consequences because his lawyers screwed up?  Adam Liptak, who covers the Supreme Court for the New York Times, wrote an interesting piece today about a new petition that asks this rather basic question.  In this case, the consequences are plenty severe, since the client in question – Cory R. Maples – is facing execution in Alabama.

Bad lawyering is one of the main reasons people end up on death row, rather than serving lesser sentences, but the bad lawyering in this case extended into the appeals process, when the high-priced law firm handling Mr. Maples’ appeal failed to meet a filing deadline due to a mailroom snafu. Should someone facing death be denied his chance to appeal because of poor communication in the bowels of some law firm’s New York offices?

There will always be a conflict in our justice system between the need to respect processes and procedures like filing deadlines, and the need for flexibility to ensure that verdicts and sentences are fair and accurate.   But lately, process and procedure have been getting the upper hand.

Our system’s rigid obsession with process may have reached its zenith in 2007, when the Supreme Court ruled that an appeal could not be heard, even though it was only late because a judge had given attorneys the wrong deadline.   This was not a death penalty case, but in the ruling Justice Clarence Thomas suggested that didn’t matter.   He noted that a man (Ryan Heath Dickson) had been executed earlier that year without the Supreme Court ever looking at his petition, because it had been filed one day late.  “The rejected certiorari petition was Dickson’s first in this Court, and one can only speculate as to whether denial of that petition would have been a foregone conclusion,” Justice Thomas observed remorselessly.

Earlier this year, the Supreme Court seemed to show a little more heart, giving Florida death row inmate Albert Holland the chance to show that extraordinary circumstances out of his control (lawyer negligence) caused a filing deadline to be missed.  We will see this Fall what the Supreme Court decides to do with this latest case.

Justice has to be more than mindlessly following a set of inflexible bureaucratic procedures, and inflicting death on someone because his lawyer committed some procedural error is not justice at all.

UN v. USA re: Death Penalty

On May 26, the United Nations released a report by the Special Rapporteur on extrajudicial, summary or arbitrary executions, which highlights, among other things, some of the major flaws in the US judicial system related to the death penalty.  The report focuses particularly on the sates of Texas and Alabama, where the research of the Special Rapporteur was concentrated. 

The report rightfully notes that the current judicial system in those two states is significantly flawed as it leaves room for the wrongful conviction and execution of innocent people, something that was confirmed even by interviews with public officials.  In that respect, the author provides a detailed review of the judicial failings related to the death penalty.  He notes that there are legal limitations preventing inmates from access to DNA tests once they have already been convicted.  In addition, the defense attorneys appointed to death penalty cases often receive compensation far lower than what is necessary to construct an adequate defense.  Appointed counsel also frequently have continuing professional relationships with the judges before whom they appear, which can be the source of “structural disincentives for vigorous capital defense.”  The access of defendants to federal habeas corpus proceedings, the report asserts, is also too limited. 

At the same time, finality in death penalty cases is often granted undue emphasis at the expense of a careful examination of the potential evidence related to innocence claims.  The author notes that in Alabama, “officials would rather deny (the execution of innocent people) than confront criminal justice system flaws.” Unfortunately, this is true not only in Alabama, as has become evident in the case of Troy Davis, who may soon face his fourth execution date in two years, despite the fact that the case against him was build predominantly on the testimony of nine witnesses, seven of whom have recanted their statements (and have alleged that they were coerced by authorities) since the time of Troy’s conviction.  However, despite opposition from human rights activists across the world, Troy has remained on death row for 18 years and has not yet received a hearing on the details of his case that have emerged since the time of his conviction.  Moreover, the failure of the judicial system to hear the evidence in support of Troy’s innocence means that the person truly responsible for the murder of which Troy was convicted, has not yet faced any legal consequences for his action.  This danger was also highlighted in the UN report, according to which “wrongful convictions mean that true criminals remain at large.” 

The UN report also points to the drawbacks in the electoral system for appointing judges in Texas and Alabama, which highly politicizes death penalty cases.  In fact, the author cites statistics suggesting that the likelihood of a death penalty sentence is directly correlated with the imminence of judicial elections or with the lobbying efforts of groups that are supporters of capital punishment.  He also pinpoints the particular problems with judicial elections in Alabama, where jury decisions can be overruled by elected judges, and where nine out of ten cases in which a judge overrode a jury decision resulted in a death sentence.  Finally, the report uncovers the existence of racial bias behind the imposition of the death penalty across the country, something that is confirmed by the research of Amnesty International USA.