Sunday, July 17, 2005

The Right to a Speedy Death

I've said it before and I'll say it again: progressives act to their peril if they turn their back on those ignorant rabid neocon theocratic boneheads currently in charge of our federal government for even 5 minutes......

In yesterday's New York Times, a quiet op-ed warning appeared about a stealth bill that a Google search confirms is managing to proceed well under the radar of most folks, the Streamlined Procedures Act of 2005.

In a nutshell, if passed, under the Streamlined Procedures Act (aka The Right to a Speedy Death ActTM):

. . . .the chief prosecutor of the United States would become the judge of whether state courts behave fairly enough toward defendants appealing capital convictions. If a state system was certified as up to snuff, then the federal courts would lose their jurisdiction and condemned defendants their last hope.

The entire op-ed piece is a must read: Attack on Habeas Corpus for Capital Cases

As the WaPo opined in its own editorial last week, entitled Stop this Bill:
It is no exaggeration to say that if this bill becomes law, it will consign innocent people to long-term incarceration or death.

This Act, which is only two months out of the starting block in the Senate and only 3 weeks old in the House, is already in mark-up phase in the Judiciary Committee despite having only 5 sponsors and has already had hearings in the House Subcommittee for Crime, Terrorism and Homeland Security". That's pretty fast for a bill that should have been dead in the water, congresspersons rolling on the floor laughing at the sponsors and lobbing copies of the Constitution at them, when it was introduced.

Except that it wasn't. And it isn't, despite some success in at least slowing it down this week. This should scare folks. Seriously.

If you think that you, a fully-law abiding, got it all together member of our Great Country TM have nothing to worry about if this bill even manages to get out of either committee it is presently assigned to, and to the floors of both houses of the current Legislature, think again. The writ of habeas corpus, which has existed since our nation was founded, having been grounded in England's Habeas Corpus Act of 1679, is the ultimate check on the power of incarceration granted to the state in our democratic republic. It creates the "last hope of review" as a balance against what no thinking person can deny is the lust for conviction when there has been a public wrong and the sense that without someone being held "accountable", there is no justice. It recognizes that only in a truly neutral forum, free from state-based partisan motives fueled by local politics and legitimate rage at crime, can we ensure a full and fair review of the evidence sending someone to their death. And, at least in theory, habeas is supposed to ensure that if that evidence is truly found lacking, no state will find itself standing in the same murderous shoes it is allegedly trying to punish.

Because it actually shines a spotlight on how our system of Justice is not all that just, habeas corpus has been under attack by the right wing for decades. Except that it hasn't just been the Right Wing, something that should also scare so called liberals and progressives. For example, habeas corpus took a serious body blow during the watch of that Bastion of Liberalism, President Clinton, in the form of the Antiterrorism and Effective Death Penalty Act of 1996, which largely eliminated federal review of all factual and legal questions decided at the state level and imposed a 6-month statute of limitations on seeking the writ after direct review was completed, as if somehow miraculously, lawyers -- assuming that a defendant actually had one willing to do the work, a usually false assumption -- could parse, analyze and develop legal arguments to attack court convictions based on records that in capital cases are tens of thousands of pages in a heartbeat, such that they didn't really need any time.

Yet even that gutting of habeas at the practical level in 1996 was not enough, such that the right wing has now come back for yet another bite at the habeas apple through the Streamlined Procedures Act. And almost nobody is paying any attention.

Of course, the current administration reflects the political will of its base - and frankly, reflects the thinking (or lack thereof) of the majority of people in this country, who still need to believe that nobody is ever caught up in the Criminal Justice System accused of murder if they aren't really guilty. That refusal to see is the only explanation for outrage over the fact that the legislation's current emphasis is not on ensuring that fairness in our criminal justice system, but expediency for the sake of expediency. Why else would the Legislature's resposne to increasingly successful legal efforts to show systemic flaws in our capital punishment system (Thank you, Innocence Project!) be to try and speed up, rather than slow down, the process of sending someone to their death? To cut off, rather than expand, opportunities to challenge capital convictions that are believed to be incorrect?

Can it possibly be that we as a society have came to the place where all that matters is the money? Have we done the societal calculus and truly concluded that the adverse impact on the public fisc from exhaustive review really is so bad that it is more of a benefit to society to roll the innocence-odds dice in connection with in the state's decisions to take human life in the name of "justice?" How does such an approach to the death penalty reconcile itself with our so-called Christian nation, our increasingly theocratic republic in which everything from curtailment of reproductive choice even in the non-grey areas (i.e. our access to birth control) and the public circus of Terri Schiavo is now being justified by our So-Called Leadership on the grounds that America is a Culture of LifeTM?

Make no mistake: Death is the one place from which we can reclaim absolutely, positively, no one. It is a harm that cannot ever be cured. No matter how much "mea culpa" is done afterward. No matter how large any court judgment (as if the current state of law would even permit it, given the success that the right has also had over the past 20 years curtailing the liability of state governments who fuck up). You'd think that death, because it is something that can never be reversed by anyone living on this particular planet, deserved the slowest, most deliberate, most thorough, exhaustive-to-the-point of nitpicking process human beings could come up with before it was imposed on anyone. Because even the most cynical about crime have to admit that the value of human life far exceeds the value that can possibly be conveyed by later by writing a check and saying "oops, my bad."

If you're still not convinced, just ask this brother, assuming that you can find him in the afterlife (since he appears by all accounts well on his way to earning the dubious distinction of being remembered as the first confirmed wrongful execution in this country):

That's right, ten years after the state of Missouri killed him, this man's case is being reopened - because he is likely innocent of the crime that sent him to his death, just as he claimed all along:

Larry Griffin

Looks like, if the word coming out of the prosecutor's office (and out of the mouth of the so-called victim who admits that Mr. Griffin was never at the murder scene yet also admits that he kept his lily-white mouth shut while they executed him anyway) the Show MeTM State is well on its way of having to go out with a backhoe, dig Mr. Griffin up, un-execute him and say "We're sorry" before sending him on home.

Oh wait....they can't do that, can they? Because he's DEAD.

Foo, those little details always get in the way...

The depressing fact is that this outcome, which is definitely being downplayed in the mainstream media, should not be a surprise to anyone actually paying attention, as Bob Herbert in his op-ed piece in the Times made clear this week:

The Inevitability of Larry Griffin

Make no mistake, there is an unavoidable nexus between cases like the late Larry Griffin's and the Streamlined Procedures Act of 2005. They go together like peas and pods. Like apples and cobblers. Like murder and the death penalty.

(For those who wish to keep track of this bill's progress, since in just two months it has already begun the mark-up stage in the Senate Judiciary Committe, the relevant Bill numbers are S. 1088 and H.R. 3035.


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