Death Penalty Roulette

While Senate Dems continue to battle for the release of Supreme Court Nominee John Roberts' papers from his time working for the DOJ under Bush Sr., a somewhat weird memo can be found in the three-story high document dump the White House has already released. According to Saturday’s  New York Times, a 1983 memo (written during Roberts’ years as a lawyer in the White House counsel's office during the Reagan administration) offers an unusual time-saver suggestion for SCOTUS.

• "…’If the justices truly think they are overworked, the cure lies close at hand," Mr. Roberts wrote. ‘The fault lies with the justices themselves, who unnecessarily take too many cases ….’

Roberts expanded on his view by explaining that if the court took fewer death penalty and prisoner-rights cases, the docket would be cut by at least a half-dozen cases a year. (Okay, yeah, that works.  The Supreme Court could take, like, every other worthy death penalty case.)

Mordant humor aside, according to some of the law blogs tracking the proposed appointment, retiring Justice O’Conner’s swing vote was critical in various critical decisions affecting sentencing policy, making Roberts' attitudes toward criminal justice issues worth scrutinizing. (TRANSLATION:  ROE is important, but it's not the ONLY thing that's important here.) While there is still little in the way of a paper trail to go on, what appears to be an aversion to prisoner appeals turns up other early memos as well.

For example, there’s this from the AP:

• “Roberts advocated a limited Supreme Court role on controversial issues in the 1980s such as death penalty appeals, according to documents released Tuesday, and flashed impatience with what he referred to as ‘judicial activism.’

• “He was critical, for example, of a system that he said offered convicts several avenues of challenging their sentences in both state and federal courts. The availability of federal court appeals, ‘particularly for state prisoners, goes far to making a mockery of the entire criminal justice system,’ Roberts wrote in a Nov. 12, 1981, memorandum."

In light of the above, it’s interesting to note that, prominent among the case papers that Senate Democrats are pushing to have released, is Roberts’ brief on a Texas death penalty case regarding whether a death row inmate with new evidence of his innocence had a right to reopen his case in federal court. The solicitor general---for whom Roberts was then working---urged the justices to reject such claims and, as it would turn out, the high court agreed that claims of "actual innocence" did not justify a federal judge reopening a state death penalty case. SCOTUS watchers want to know how much Roberts weighed in on that opinion.

AND THEN IN STRANGE AND IRONIC CONTRAST to Roberts' concern that the courts should hear fewer criminal appeals, it appears that House Judiciary Chairman James Sensenbrenner thinks Congress might do more in the way of sentencing oversight---or at least some Congress members anyway.  Like, for example…..him.

Sensenbrenner, who evidently figures he is a law unto himself, wrote a five page letter to 7th U.S. Circuit Court of Appeals in Chicago, explaining that a female drug courier wasn’t getting a harsh enough sentence. (She got 97 months in the slammer, but the good Congressman thought she really should get 120 months.) Fortunately, there is some small shred of sanity still left in the world as, according to yesterday's Chicago Tribune, Sensenbrenner is to be investigated for his little sentencing love note.

(Note to Jim Sensenbrenner:  Please complete and turn in your homework assignment on Separation of Powers ASAP.)

xo:  rosedog

Comments

[richard lo cicero]

Am I the only one here who remembers the Rose Bird Recall in CA back in the 80's? All the noise was one the death penalty; Well its still rare in the Golden State and I think felons like Scott Peterson stand a better chance of dying of old age than by lethal injection. But, oh what a difference in "Business Friendly" decisions,

So don'r get hung up on ROE or even criminal justice. There is a reason that Roberts is evasive over his membership in the Federalist Society. And that has to do with little matters like "Right to Contract" which states that you and your employer have a "Right" to contract your own wage and working conditions - thus minimum wage, child labor, and overtime laws should all be unconstitional.

Folks, this is a bait and switch operation and Roberts is step one.

[rosedog]

"Folks, this is a bait and switch operation and Roberts is step one."

Richard, agreed. And, I completely agree with Marc, that Roberts will be confirmed easily, and that we are foolish to allow the subject to be changed.

Frankly I bring up the criminal justice stuff simply because I think it's interesting. (But then I'm a criminal justice junkie, and most of my friends are bored to tears with the subject.)

Truth be told, on a gut level, I don't think Roberts is going to be so bad. A close friend of mine grew up with the guy who has purportedly long been been one of Roberts' closest friends (or so it was said when he was interviewed on MSNBC). This FOR (Friend-of-Roberts) is also an attorney, but a liberal one, and said when he was interviewed that he thinks that those worried about Roberts' hidden conservatism are going to be "pleasantly surprised." May it be so.

[reg]

The thing about cutting down the Supreme's docket isn't what I would have expected from this guy, given all of the Mr. Nice Guy Who's In Love With Jurisprudence press he's been getting. In fact, it's completely inane and, dare I suggest, unconstitutional in arbitrarily limiting access to the court. The only hopeful thing I've read about this guy in the last week - outside of the mash notes, like that bizarre Brooks column that was actually titled "How Do I Love Thee" or some such - is your bit of inside dope from the FOR. God I hope that guy has some insight into Roberts' soul that nobody else gets.

[rosedog]

Reg, my frustration is that, without having the original memos, and the underlying cases to which they refer, we the unwashed public out here only have access to the out of context snippets that are quoted in the media, so it's very hard to intuit firm meaning, since there's so little paper trail to begin with on this guy. (Which means, of course, as has been pointed out elsewhere in the press, the wingnuts don't know what they're getting either). With criminal justice issues it becomes even harder to sort out where he stands, as this is the area not likely to be scrutinized in any substantive or public way, except on the law blogs (who don't have access to the papers either), because generally it ain't a popular or galvanizing subject in that it primarily involves, you know, criminals....and the scrungy, uncosmetically-appealing poor. The exception is the death penalty, which IS a high profile issue, and I've read stuff all over the map about his stand on it, from he's a secret and passionate opponent, to the rather alarming stuff I quoted. Yet, on the appeals issue, again, what I’ve been able to find is little more than a collection of fragments so its difficult to say what it portends for the whole. If he truly is for limiting appeals, it is as you say, appalling and deeply unconstitutional.

And yeah, I hope to God my back door info is correct too. In that regard, I have one more six-degrees story. (For some peculiar reason, I seem to have an over amount of twice removed FORs. Don’t have a clue why that is.) Anyway, this one is from another friend, a lefty Mid East consultant who lives in DC. Okay, so MY LEFTY FRIEND has an acquaintance who had lunch with Roberts weekly over ten years or more and said in all that time, this LFOR (lunch friend of Roberts) never got an inkling of where Roberts stood politically.

So there you have it. We know nothing.

[too many steves]

A weekly lunch engagement and the LFOR never got an inkling of where Roberts stands politically? That is, to me, incomprehensible. Was it that he never spoke of politics or was he all over the map so it was impossible to pin him down?

No offense to your friend but I have a pretty good idea of the basic politics of most everyone I know - not because I ask lots of probing questions or because they are particularly outspoken, but because most people will share their opinions from time to time, even in little bits while riding the elevator or when walking to or from the company parking lot.

At the risk of enraging some folks, I will say that on Roberts I think Ann Coulter is basically correct: he is, at this time, unreliably conservative.

[rosedog]

TMS: 'twasn't my friend who said it but HIS friend, or acquaintance, or whatever he was. But, yeah, I figure after a half-hour coffee, I'll not only know the direction of my coffee partner’s politics, but the state of his or her marriage (or lack thereof), the person’s most embarrassing moment in high school, the most glaring dysfunctions in their family of origin---plus a bit about my coffee mate’s color preferences, should he or she decide to repaint the living room. I don’t get people who aren’t a tad more curious. But there seem to be a lot of them out there.

[steve]

I wonder what Roberts would say about the West Memphis 3? Rosedog, you should check out there situation and write about it, Marc is too busy attacking the left to write about such mundane matters as kids on death row due to hysteria about satanic ritual sex abuse...

http://wm3.org

[reg]

"I think Ann Coulter is basically correct: he is, at this time, unreliably conservative."

Translating from Coulterese, that means "not certifiably insane", right ???

[reg]

"I figure after a half-hour coffee, I'll not only know the direction of my coffee partner’s politics, but the state of his or her marriage (or lack thereof), the person’s most embarrassing moment in high school, the most glaring dysfunctions in their family of origin---plus a bit about my coffee mate’s color preferences, should he or she decide to repaint the living room."

You scare me...presumably you only haul out the heavy-duty hypnosis when you're planning to do a journalistic hit piece on the poor bastard, right ????

[reg]

"hysteria about satanic ritual sex abuse..."

Now you're talkin'...the balls in your court, Rosedog.

[rosedog]

Reg.... You are growing sleepy.....very sleepy....

Steve, sure I think it’s a very interesting case (As reg mentioned, who can possibly resist looking into ANY story involving satanic ritual sex abuse???) And if the supporters for Echols and the others are right, the story is completely tragic. The good news is that there are a great many smart energetic people working on the case; there have been 2 HBO documentaries, and there will be a book.

(In case you missed it, Salon did a good article on the West Memphis 3 in 2000.)

http://dir.salon.com/people/feature/2000/08/10/echols/index.html?pn=1

But although cases like this intrigue me, often they have already gathered their own supporters and chroniclers. So I find I’m best served working on miscarriages of justice closer to home on which no light has been shed. For example, I’m working on one case where a guy is 11 years into a “life-without” sentence for a murder I believe can prove he didn’t commit (It helps that I know all the players, including who did commit it, and that the actual murderer is already serving his own life sentence, so I’m hoping he’ll finally confess the truth to me. We’ll see.). But this guy who got convicted was a gang member, nothing hardcore, but a gang member nevertheless. So his public defender figured he was someone whose life didn’t really matter. Thus the PD never bothered to call the three existing alibi witness, never bothered with closing arguments (when the prosecution rested so did he), and…well you get the picture. (I know many PDs who are wonderful and devoted people, who give much more than they are ever paid for just to make sure that everyone---guilty or not--- has decent representation. This dude wasn’t one of them.)

Frankly, I get called about this kind of thing all the time. So I try to pick the stories where I believe I can do some good. Doesn’t seem like there are enough hours in the day.

(So what am I doing now???? FREAKING BLOGGING!!! [Oh, yeah. And trying to hypnotize reg.] In view of this---feel free to call in a 72-hour-psych hold on me. I’d understand. Really I would.)

[Jay Byrd]

"Richard, agreed. And, I completely agree with Marc, that Roberts will be confirmed easily, and that we are foolish to allow the subject to be changed."

That's amusing, because the subject that was most often offered up by the media as what the Roberts nomination was a distraction from was TurdblossomGate, which Marc loves to deride. To me what is most foolish is this notion that there's just one "subject", so if people are concerned about Roberts they can be bashed as not being concerned about Iraq, and if some people focus for one day on the Downing Street Memo they can be bashed for not focusing on labor, etc. ad hominem ad nauseam. The fact is, I think you missed Richard's point entirely: "Roberts is step one". The error is not in focusing on the Roberts nomination, it is in focusing on it too narrowly: "So don'r get hung up on ROE or even criminal justice". The point is that the Roberts nomination is one part of the destruction of the very social framework we value. *That* is the subject Richard referred to.

[rosedog]

Jay Byrd... Yeah, well, after I replied it occurred to me that I HAD missed RLC's point. But, it was already posted.

Two things. I was alarmed right after Roberts was named because, judging from the flurry of e-mails I got in the next 24 hours, it looked like groups such as MoveOn and PFAW had gobbled up the bait, and were going to take their collective eyes off the ball. Yet, most seemed to right themselves as the days wore on and came to the conclusion that you point out---namely that we can walk and chew gum at the same time---i.e. we can talk about Roberts, and still talk about Iraq and...uh... Turdblossomgate (We actually have a president who calls his best friend Turd Blossom. How reassuring.) By the same token, I disagree a bit with you and Richard, in that I think we can focus the Big Picture and the specifics, like criminal justice et al, as well---mainly because we can't afford not to do both.

(Truthfully, on a lot of days, the specifics feel like about all I can handle.)

PS: I still think the reality is that Roberts is a slam dunk, but I'm holding out a frail hope that he'll be okay, based on my entirely unchecked and unproven anecdotal evidence rambled about above.

[Jim Rockford]

Rose Bird? She was recalled because she never met a murderer she didn't love. There are very bad, and evil people out there, who commit unspeakable crimes. That monster who killed Shasta Groen's entire family, before her eyes, is one of them.

Dems had better tread VERY lightly here, they already have the label (deserved I think) of being the Criminal's best friend. Dukakis being the ultimate example. He WAS soft on crime, particularly murder and rape. This matters to people, who can pencil in their families or themselves as the victims.

I think there is broad public support for review that quickly establishes basic questions of guilt or innocence, including DNA evidence review or other emerging forensic technologies unavailable at time of trial. However monsters like Scott Peterson, or Avila, or Duncan, should not and must not sit around and die of old age on Death Row. The public, broadly speaking does not want that, and to the degree that Teddy Kennedy, Patty Murray, Hillary Clinton, and other "soft on crime" Senators define the public face of the Democratic Party as opposition to executing horrible murderers the Party faces more electoral catastrophe. Unless of course you want to drink the Moveon koolaide.

A Conservative Judge has his upside. Kelo was the result of the LIBERAL judges all; Scalia, Thomas, Rehnquist, and O'Connor all opposed it. Actual limits on judges extending the Commerce clause past all reason is a good thing, and has strong implications for gay marriage (and the nullification of the Defense of Marriage Act). A conservative judge is more likely to take the position that Commerce Clause is not all encompassing, and states not the Federal Government have the right to define marriage in their own jurisdictions.

Dems have relied too much on Judges to overcome popular distaste for policies and enforce them on unhappy citizens. Brown vs. Board and other Civil Rights era struggles probably mandated this approach because public opinion was not ready to embrace the right thing. But it has it's drawbacks when connected to pure power-politics devoid of fundamental questions of equality under the law. Kelo, excessive death penalty technicalities (such as a key witness dying after trial, unavailable for appeals) are not only unpopular but show a fundamental inability of the party to persuade the people the policies are the right thing to do, and relies on outside actors (courts) to force unpopular opinions. Putting International Law or other countries laws over the Constitution as Souter or Kennedy want is an example of disaster that a conservative would avoid.

My heretical thought is that Roe is settled, most people are happy with the status quo and don't want a huge fight over it.

[reg]

It's truly hilarious to see Rockford railing against "international law" when the war in Iraq was legitimatized by Bush as necessary enforcement of U.N. Resolutions. What a bunch of hypocritical, disingenuous spew we get from the folks who have circled their wagons around this sorry episode.

[reg]

"Dems had better tread VERY lightly here, they already have the label (deserved I think) of being the Criminal's best friend. Dukakis being the ultimate example."

Interesting...since the furlough program on which the GOP launched it's "Willie Horton's Gonna Get Your Momma" attack on Dukakis was initiated under Francis Sargent, the Republican Governor of Mass. who preceded Dukakis. Also, the rate of most serious crime was down under Dukakis.

(And to put another urban legend to rest before some kook tosses it out here, Al Gore never mentioned Willie Horton in the Dem primary campaign - he asked Dukakis a critical question about the furlough program in a debate. The GOP picked up on it and discovered "Willie Horton", of whom one GOP campaign aide said,"Willie's going to be politically furloughed to terrorize again. It's a wonderful mix of liberalism and a big black rapist." Also Horton's name was never contracted to "Willie" until the Bush campaign started using it because it sounded more "black" than William, which was Horton's first name in every court document and press report prior to the GOP's KuKluxing of Dukakakis.)

Why do you repeat this slime, J.R. ???

[reg]

"so I’m hoping (the actual murderer will) finally confess the truth to me."

Take him out for "coffee"...

[rosedog]

...Just grateful I wasn't drinking "coffee" or any other beverage that stains while reading the above post.

[Jay Byrd]

"came to the conclusion that you point out---namely that we can walk and chew gum at the same time"

Fair enough.

"I disagree a bit with you and Richard, in that I think we can focus the Big Picture and the specifics, like criminal justice et al, as well"

Well, so do I -- I was pointing out what (IMO) Richard's point was, and that you seemed to be interpreting it in an opposite sense. I believe not only that we can focus on more than one thing, both big and small, but that there's no "we" as a monolith -- different people focus on different things. And that there's not much we can do about that in any case, unless we want to adopt the right's controlling methods. What I find particularly offensive is bashing group nouns for specific actions or failure to act, like focusing on Downing Street, not focusing on labor, etc. And some people make a career out of it.

[richard lo cicero]

Jim, the money to fund the Rose Bird Recall came from partners in the Corporate Departments of firms like Gibson,Dunn, and Crutcher and Pillsbury, Madison, and Sutro. The people were not foaming at the mouth over the Death Penalty and on that subject the current Court has been anything but a rubber stamp for it. But the court went from being one of the most liberal to a place where Janice Roberts Brown - remember the little lady who finds the New Deal to be "Socialistic" - could warm a seat until Shrub found a place for her on the DC Circuit, the second most important Court in the Land.

[rosedog]

"Dems had better tread VERY lightly here, they already have the label (deserved I think) of being the Criminal's best friend..."

Uh, Rockford, that would be, no doubt, why liberal Blue State California has the THIRD LARGEST PRISON SYSTEM IN THE WORLD. (Only ranking behind China, and the US as a whole, in that order.)