A Jury Trial in Brazil

On September 3, 2008, Marcos Venicius Amon Barbosa finished his 48-hour shift at the shipyard. Before driving home, he stopped for a drink. Shortly after he resumed his trip, he ran a red light at an intersection in Vitoria, killing one woman and injuring eight more people.
Today, six years after the event, I attended his trial for vehicular manslaughter at the First Criminal Department of Vitoria. I was graciously invited by the prosecutor, Daniela Moysés, whom I had met the day before on our prison tour. Prior to her impressive legal career, Daniela had been a civil engineer, which requires five years of study in Brazil, and after a few years of working as the engineer of the court system she decided to change direction and studied law at UFES (another five years of education!). After passing a special competition for a prosecution position, she worked for several years in a rural area, and transferred to Vitoria as a special jury prosecutor.
In Brazil, jury trials are reserved only for crimes against life that involve criminal intent or recklessness. The state selects 25 people to serve on a jury, and they serve for two months. Every trial requires only seven jurors, which are elected from the 25-person panel by way of lottery. Employers have to eat up their employees’ two-month absence, even though they are unhappy about it. It is a big commitment, which is why Judge Victor Ribeiro Pimenta started the hearing by thanking everyone for their service.
At this point, after several weeks, the judge, the prosecutor, and the jurors know each other fairly well, and the judge told me that he tries to make it a positive experience for them even though the trials revolve around heavy matters. So, he joked with them a bit before the defendant was brought in.
Escorted by the military police, the defendant sat in front of the court on a chair with no table. His attorneys sat at a table to his left, requiring them to get up and approach him if they wanted to tell him something or confer with him. Today, he had three defense attorneys, all private, to speak on his behalf.
Then, the judge ran the lottery. He put labels with the jurors’ names in a special box, shook it, and removed labels one by one.

For each juror who was selected, the judge asked the defense attorney and the prosecutor if they had any objections. Each side gets three strikes, all peremptory, and they don’t need to offer an explanation. The prosecutor objected once, to a man whom she and the other prosecutors had seen falling asleep at the trials. I asked whether the challenges are sometimes used strategically. Daniela said that, in a drunk driving case, she preferred female jurors, whom she felt would be less sympathetic to a drinking man then male jurors. She got four women and three men. As each newly selected jurors stepped to the jury box—two rows of chairs behind tables—they wore black robes. The judge then announced the “jury winner”—the juror whose number had come up most frequently in the history of that particular panel—and awarded her a box of chocolates as gratitude for her service.

Everyone smiled and clapped. It was a nice, warm gesture to alleviate the stress and gravity of the trial to follow, and was very characteristic of the way Judge Pimenta runs his courtroom, always adding a smile and levity to the situation. Of course, the only person not laughing was the defendant, and conscious of his anxiety, Daniela muted her reaction to the joviality. Judge Pimenta swore the jurors one by one.

From the moment of selection, the jurors are prohibited from communicating with each other about the case. Deliberations are forbidden, and each juror votes secretly according to his or her own conscience.
Prior to the jury selection, the prosecution and defense conferred briefly on testimonies. Out of the eight surviving victims, four showed up for the trial. One of them testified that the traffic light was yellow when the defendant’s vehicle entered the crosswalk. The defense wanted that victim to testify. However, said the judge, if that’s the case we’ll want to testify all of them, and the rest will testify the light was red. Daniela didn’t want the witnesses to testify; she was concerned that they would go off on tangents and be unhelpful. One of them even said, shortly after arriving to the courtroom, that she did not want to see the defendant. The bottom line was that no witnesses testified at all.
The jurors were handed copies of the accusatory document, which already includes summaries of the evidence against the defendant and the judge’s “pronúncia” – the decision to bring the case to the jury in the first place. They were given some time to read it, and one of the court workers brought in a big tray with little cups of strong coffee for everyone to sip while they read. All parties, except the defendant, were served coffee, and small trays of cookies for everyone followed. Food is very meaningful in Brazilian culture, and eating together is an important social ritual. At cookie time, Daniela explained to me that the judge had the discretion to close the case based on police evidence, and sometimes does, and also the discretion to decide that the case was not befitting a jury panel and should be sent before the judge.
After the jurors familiarized themselves with the facts, the judge asked the defendant a few questions about his work, familial status, etc. He explained to the defendant that he had the right to testify and very respectfully presented everyone—the jury, the prosecutor, even me—to the defendant, as if we were all seated in the judge’s living room. He then asked the defendant whether he wanted to testify. The defendant replied that he did not, and that his testimony in the police station—in which he admitted to being drunk and falling asleep behind the wheel—could speak for him. He was visibly anxious and very miserable.
The judge allowed the prosecutor to speak, and she started by acknowledging every single person—even me—by name. She smilingly introduced the defense attorneys, referring to each by name, and gently needled them about being “three against one”. She started by expressing thanks to the jurors for their important service, and ended by saying to the defendant that we all wanted justice and that we were hoping to be fair to him.
Then, she proceeded to present to the jury her theory of the case. In the absence of witnesses, the attorneys were allowed to give lengthy speeches to the jury, walking them through the evidence. I was told that, had there been witnesses, they would first be examined by the judge to give their version, then by the prosecutor, and then by the defense attorneys. Parties are allowed to cross-examine the other side’s witnesses. Attorneys could object to questions and the judge could disallow them, and often judges would disallow questions on their own, not prompted by a party’s objection. In general, the judge plays a much more active role in conducting the trial, getting up frequently from his chair, conferring with the attorneys, addressing the jury, and attending to administrative matters (it also is possible that Judge Pimenta is particularly lively and engaged.)
In this particular case, the speeches pertained to an interesting question of substantive criminal law. Brazilian law allows for two types of criminal intent: a desire that the result occur, which is the equivalent of first/second degree murder mens rea in American common law, and awareness of the possibility that the result might happen. According to the prosecutor, this case fell into the latter category. Because the defendant had just left his shift and then decided to go drinking, he must have been aware of the possibility that he could commit an accident, and therefore assumed the risk of doing so. She combined her explanations of criminal doctrine with testimonies of the victims in the case, and the defendant’s own testimony in the police station. The jury attentively followed her, flipping through their materials. While obviously sympathetic to the victims and their suffering, the prosecutor was also sympathetic to the defendant, especially given the long time that had passed since the accident. After her speech was finished, she and I discussed her theory of the case. Brazil does not have plea bargains, except in very small cases, where they are legally proscribed “discounts” for pleading guilty and/or for providing information about the crime. Had the Brazilian system allowed them, she would probably had agreed to a guilty plea to a lesser charge of homicide, even though she thought her theory of the case was sound and the defendant acted with “conscious negligence” (the equivalent of recklessness in common law), because of the time that has passed since the accident and its effect on the defendant. She therefore told the jury that her argument was doctrinal-technical, but that they should vote with their conscience. She thought that her lucid but tempered argument may have communicated to the jury that, as opposed to other homicide cases they had seen during their two-month tenure, this one was not one of the serious ones.
After the prosecutor finished, the first of three defense attorneys, Joao Angelo, rose to speak. Like the prosecutor, he started his speech with a very gracious address to everyone in the room (including me). He thanked the prosecutor for her “calm and respectable” presentation (perhaps hinting to the jury that even the prosecutor was not out to get the defendant.) He then proceeded to argue the case. He spoke mainly of two things: the fact that the defendant obviously had not desired the lethal outcome and did not seek it, and the suffering he had been through in the years since the accident. Some of the argument was legal, but for the most part it was a plea for clemency. Criminal procedure in Brazil allows the prosecutor the opportunity for rebuttal, but doing that opens the door for a subsequent rebuttal by the defense. Because she didn’t feel the case merited a severe outcome, Daniela quietly made the decision not to rebut.
After the defense attorney’s speech, we all broke for lunch. When the judge invited me to eat with them—which was very kind of him—I didn’t quite know where we were headed. It turns out that, on days in which trials are heard in the morning, everyone—the judge, the prosecutor, the defense attorneys, the jurors—share lunch together in the courtroom, sitting around a large table. The court employee in charge of the jury, who also wears a little black robe, arranges for a very nice and rich meal, and so we all chatted amicably around the table, eating roasted chicken, rice, vegetables, plantains, and manioc flour. There was a tacit agreement that no one spoke about the case, and people just had a nice, companionable lunch together for almost an hour before the trial resumed.
When we returned to our seat, the two remaining defense attorneys proceeded with their argument. Their arguments were fairly theatrical and exaggerated, but their essence was the same as that of the first attorney: that the defendant should receive clemency. The second attorney even mentioned that the aftermath of the accident drove the defendant to a suicide attempt, which was not proven in any external materials (and the jury might or might not have believed.) He was divorced after the accident, but we did not know whether the divorce was related to the accident. The prosecutor felt that the attorney misquoted her, arguing a point of law she hadn’t actually made, but she clearly prioritized fairness in the defendant’s case over an ego battle and decided to let it go.
As the defense attorneys argued their case, the judge typed up a list of interrogatories for the jury. It was titled “Quesitos”, and for each of the nine victims it listed four questions:
1.     Had the victim suffered an accident?
2.     Did the defendant drive the vehicle that caused the victim’s death?
3.     Did the defendant assume the risk that he might cause the accident?
4.     Does the jury choose to absolve the defendant?
Questions 1-2 are matters of fact (and clearly were not in dispute in this case). Question 3 is a matter of law, and Question 4 is a matter of ethics and morals. The breakdown of jury decision into interrogatories is new to Brazilian law, introduced in a 2008 amendment. The judge shares the interrogatories with the parties and revises them if they express reservations he accepts.
After the attorneys were done, the judge emptied the room of audience (especially of the crime victims, because the vote is secret and there is concern about retaliation) and addressed the jury. He explained that he didn’t need their vote with regard to each victim, because the accident was the same. He also said that, since questions 1 and 2 were not in dispute, they were going to assume an affirmative answer to both, and start with question 3. He would ask question 4 only depending on the result of question 3. Each juror was handed a green ballot by the court employee, consisting of “sim” and “não” options. The judge asked question 3, again briefly explaining assumption of risk, and the jury voted. A court employee collected the ballots in a wooden box and closed the lid. The judge shook the lid and counted the votes. After 3 “sim” and 4 “não” responses, the deciding seventh vote was “não”, and the defendant was therefore declared not to have assumed the risk. The judge concluded that, in light of this decision, question 4 was not necessary. Daniela explained that, even though the interrogatory separates between the legal and ethical questions, juries frequently combine their answer in the legal vote.
With that, the jury’s part of the trial was over and I had to rush to the airport, but the judge and parties still had some work left to do. In the absence of a vote of intent, this was no longer a jury case, and the judge convicted the defendant of negligent homicide. The punishment was 4 years, but it was substituted by community work, and the defendant agreed to pay each of the living victims $250,00 dollars. The prosecutor walked away from the case feeling the decision was fair. Since the case presented a rather meaty legal question, as well as special personal considerations, no one was surprised that the vote came close. The jury faced a genuine dilemma and faithfully made an effort to follow the case and decide fairly.
“Is it crazy?” my friends, local academics and lawyers, asked me as they graciously gave me a lift to the airport. Crazy? I thought. Not really; that is, not necessarily less or more crazy than an American trial, or of any way which human beings orchestrate to pass judgment on their peers.
Many thanks to Daniela Moysés for inviting me to join her workday, to Judge Victor Pimenta for accepting me so kindly into his courtroom, and to everyone else involved in their trial for their graciousness.

CCC Visit to a Maximum Security Prison in Brazil

I got extremely lucky today. My very gracious hosts here in Vitoria organized for me to visit a maximum security prison out of town!

Brazilian prisons are fairly brutal places with abysmal conditions. Only two days ago, a prison riot in Cascavel claimed three lives in horrible ways. A story on The Economist, which was published a few months ago, ascribes the brutality, and the murders of about 220 inmates in the last year and a half, to the severe overcrowding in the system.

In the past 20 years Brazil’s population has grown by 30%, while that of its prisons and police cells has almost quintupled, to 550,000—the fourth-highest in the world, behind the United States, China and Russia.

Officially, Brazilian penitentiaries have room for around 300,000 people. There is federal money to spend on building extra prisons, which are largely run by the states. But it can flow only once a project is approved by a local town. They are reluctant hosts, fearing that penitentiaries both bring crime when prisoners are released and also divert resources from other public works. “Everyone wants hospitals and schools,” says Antonio Ferreira Pinto, a former security secretary in São Paulo state. “No one wants a prison.” Federal-prison spending fell in 2012.

Brazil needs cells to house genuine criminals: the murder rate stood at 24.3 per 100,000 in 2012, more than six times higher than in Chile. But really it needs fewer inmates. Lucia Nader of Conectas, a human-rights group, attributes an upsurge in prisoners since 2006 to a law that decriminalised possession of drugs for personal use but stiffened penalties for trafficking. The distinction between the two is left to the arresting officer. “A light-skinned yuppie smoking pot on the beach is a user and left in peace,” says Ms Nader. “A dark-skinned slum-dweller lighting a spliff on the street is a peddler and thrown in jail.” Since the law’s introduction, the number of people held for trafficking has swelled from 33,000 in 2005 to 138,000 in 2012.

There are two bottlenecks that prevent the release of inmates that would alleviate the overcrowding: undiscriminating pretrial detention (41% of all inmates) and a paucity of legal advice that would enable inmates to benefit from Brazil’s theoretically world-class laws on parole and alternative sentences like community service.

With too many prisoners flowing in, and not enough flowing out, a cesspool festers in the middle. On paper Brazil’s prisons are a paragon of modernity. In practice, says Marcos Fuchs of Instituto Pro Bono, another human-rights group, they are medieval. In one São Paulo penitentiary he visited, 62 people were crammed in a cell meant for 12, taking turns to sleep on the floor or by leaning against a wall. According to official figures, half a million inmates received care from 367 doctors in 2012. Fifteen gynaecologists served 32,000 female prisoners, many of whom use bread to stanch menstrual bleeding.

Knowing all this, I was invited to join two Espirito Santo prosecutors on a trip to audit Capixaba, a maximum-security prison located in a rural area of the state. Every month, the office of the prosecutor conducts an audit of the prisons.

When we came in, we were met by Bruno, the energetic prison warden. I was very impressed with him; for someone so young, he is not only incredibly practical and capable, but also full of good, sound ideas, and he treats all the inmates, all of whom he knows personally, like full-fledged human beings–with a balance between discipline and compassion.

The prison is located in a modern building. The state purchased the model from the United States and built it in 2011. It is a fairly new institution, with automatic doors that control everything from entrances to the water in the showers. What you can’t see are the cells, which we were not allowed to document out of concern for the inmates’ privacy. We were, however, allowed to walk. There are four hallways, three of which are regular hallways. One of them is devoted to students and allows them time to study. In each cellblock, there are a few inmates who study theology and their cells are designated “Igreja” (church). They have volunteered to offer spiritual help to the other inmates.

The cells are very crowded: at their design capacity, they hold four inmates in two bunk beds in a space equivalent to one SHU cell in California. Moreover, at the moment Bruno has approximately 750 inmates in a space designed for 650, and some cells have 6 inmates in them, which means two folks sleep on mattresses on the floor.

I asked about solitary confinement. Bruno was surprised, then explained that he did not believe in segregation, so he simply never did that. Instead, if someone violated the discipline, they were sent to a special aisle of cells where disruptive folks lived, to enable the other people to live in peace.

The gardener.

At the entrance to the prison, we were greeted by a beautiful organic vegetable garden. The garden is run by an employee of the state who is also a biologist. He has transformed the outside of the entire prison into a bountiful farm, and the produce goes straight to the kitchen. At lunchtime, we saw the meal, which was very decent – chicken, rice, beans, vegetables – and contained produce. The surplus is donated to needy families.

The garden manager chooses frail, ill inmates to work in the garden, because he reasons that they can benefit more from the sunshine.

The garden.

This is another picture of the garden. Not all the inmates who work here are from this prison; some come from a nearby “semi-open” prison, in which inmates walk to work. At the moment, the Brazil prison bottleneck means that anyone who gets four years or less doesn’t actually do any prison time, and folks sentenced to a bit more sometimes get to do their time in an institution where they only go to sleep. They work outside the prison all day. The guys we met, who were proud and happy of their vegetable garden, stroll without any supervision from the other prison here every day to work, and calmly return to bed at night.

Outside the prison, near the garden, we met the prison’s two full-time psychologists, who conduct extensive intake interviews with the inmates and help them put together education and work plans.

Lawyers meet the inmates through plexiglass in a special meeting room that looks like the one in any American prison. But they’re not the only visitors, of course; inmates are allowed a one-hour conjugal visit with their wife, or a legally-recognized partner, once every 15 days. The prison has basic but decent and clean rooms for this purpose, with a bed, a mattress, and a washbasin. The women undergo a search coming in but are treated with respect by guards and inmates. While Bruno created some rules for walking around the prison, the inmates came up with an informal code of their own: out of respect for their fellow inmates and their wives and a willingness to avoid violence and anger, they look away when women pass by.

There is also a big yard and a big family room, and children can come visit and play in the yard. Because of the good influence of visits on inmates’ morale and behavior, last year, Bruno transferred several inmates from a distant part of the country to an institution close to their families, and accepted local inmates in return.

Vinicius and his art.

Bruno strongly believes that inmates who keep busy and better themselves are happier and cause less trouble, so he runs a rigorous study and work program. The prison school has at least five classes. Every class teaches on an accelerated pace–the curriculum of two regular schools in one year. Many of the inmates learned their alphabet for the first time in prison. They continue from grade to grade. We saw algebraic equations, anatomy, and language classes going on while we were touring the prison. There is also a library, where some inmates are doing a librarian apprenticeship program. Bruno is fairly well read on pedagogy, and he’s come up with a plan: the inmates will finish high school, then attend a technical school on the grounds, and then be assigned a job.

In Bruno’s prison there are several ways to spend your time. There is an art studio, where inmates paint and make marvelous objects of art. Their teacher, who was enthusiastically explaining perspective to them, is Vinicius, a gifted oil and charcoal painter himself, who is serving his second sentence for drug trafficking. A gentle and intelligent soul, Vinicius explained about his program and we became friends. At the end of my visit, he very generously gifted me this beautiful painting.

Net factory.

There are also two prison industries: one that makes football and volleyball nets, and one that makes handmade quality footballs. These are not industries supported by outside corporations. They were conceived and created by Bruno and the prison staff, and the nets and footballs are donated to schools and other institutions.

Football factory.
Footballs!

The prison infirmary has nurses and a dentist for eight hours a day and a physician for 20 hours a week. It’s fairly calm and undercrowded; the inmates are, for the most part, young and healthy, and sentences in Brazil are much shorter than in the United States. But there are several inmates with AIDS and diabetes, and the staff treats them on the premises. In rare cases, very ill inmates are simply released home, to house arrest.

A local church has started a music program with the prison, and several inmates have joined a choir. There are also several talented musicians who started a samba band, and they were rehearsing when we came to visit. They told us that some of them had been musicians outside and some learned music behind bars. I thought they sounded fantastic.

Samba band.

On the way out, we told Daniella, the prosecutor, that we hope she doesn’t now get motivated to send inmates there. We know that there are only eight prisons like Capixaba in the state, and the rest of them are awful, full of violence, boredom, and terrible conditions. Since apparently there is federal money to reform prisons, I very much hope Brazil will model more of its prisons like Capixaba, with one variation: an improvement in the impossibly-small cell size. The key to stay sane and healthy in Capixaba is to spend as much time out of the cell as possible, working, studying, and learning new skills; being in the cells is extremely depressing and requires being with at least other three human beings in very close quarters.

With warden Bruno and the psychologists.

Tomorrow, I’m heading with Daniella, the prosecutor, to see a negligent homicide trial in the lower courts. Stay tuned for more adventures.

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Many thanks to Daniella and her fellow prosecutor, as well as to Ricardo Gueiros and Marco Olsen, for bringing me to Capixaba and treating me with generous hospitality; to Bruno, for allowing us an extensive tour of his well-run prison; and to Vinicius, for sharing his art and talent with us.

CCC Field Trip: Vitoria, Brazil – Appellate Courts

I am visiting Vitoria, Brazil, as part of a collaboration between Hastings and Universidade Federal do Espirito Santo (UFES), who has invited a few of us to offer a week-long comparative procedure mini-course. I’m teaching policing, courtroom processes, and American incarceration, so naturally I’ve been very curious about the Brazilian criminal process.

Our hosts have very generously taken me to see some fascinating things. Yesterday, we visited the Appellate Court of the State of Espirito Santo.

Here we are with some of the judges of this upper level court (any appeals go straight to the Supreme Court of Brasilia), standing in the great hall of the court. There are currently 26 judges, and in important matters of government they all sit in justice, deciding the case by a majority vote.

Our hosts, the Chief Judge of the court (4th from the right) and Judge Manuel Rabelo (1st on the right) sit in criminal and civil cases respectively. We got to see a criminal appeal. It was a burglary case; the appellant was charged with breaking into car windows and was caught in flagrante delicto (in the act), which is a fairly important consideration in Brazilian substantive law.

When the court hears an appeal, there are three judges present. The prosecutor sits with the judges and basically does nothing. The defense attorney stands across the room in street clothes and pleads her case (overall, in this system, the defense gets very little respect, and it’s a job poorly regarded and poorly remunerated compared to those of prosecutors and judges). Only one judge of the three reads the case, and s/he renders an opinion. Based just on listening to the judge’s opinion, the other judges decide whether they affirm or withdraw to read the case on their own. All of this debate takes place in open court; the judges do not discuss the case amongst themselves.
To become a judge, you have to pass a civil justice exam. Most appellate judges are first-instance judges who received a seniority or merit promotion, but a few come from the prosecutorial service. About half the judges in lower courts are women, but only two out of the 26 in the upper court are women. Each judge has several clerks and a couple of estagiers (externs) who help write the opinions.

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Many thanks to Ricardo Gueiros and Marco Olsen who made our visit to the court happen.

New Law Bans Inmate Sterilization

This trend has, thankfully, somewhat changed, and we know much more about the experience of female inmates thanks to the works of feminist criminologists and human rights lawyers and advocates. But once in a while, a new report or study sheds light on a particularly shocking or brutal occurrence previously unknown.

In this way, the last few years have exposed several “pains of imprisonment” that harm women in unconscionable ways, particularly pertaining to their autonomy over their own sexuality and reproduction. Interviews with female inmates expose the common occurrence of sexual harassment and abuse on the part of guards. Romantic and sexual relationships between inmates and staff are, by nature, plagued by a power differential that is impossible to bridge, even when not accompanied by brutal coercion. Female reproduction is severely monitored and sanctioned; according to the ACLU, most prisons in the United States still shackle pregnant inmates, even when they are in labor.

In 2013, the Center for Investigative Reporting uncovered a California scandal of massive proportions: the sterilization of female inmates without proper state procedures. A 2014 California Auditor examination uncovered 144 cases of tubal ligations performed in inmates between 2006 and 2010, 39 of which were performed without consent and a further 27 in which the inmates’ physicians did not sign the appropriate forms. Interviews with the inmates that had undergone the procedure reveal disturbing degrees of paternalism and pressure on the part of medical staff.

Thankfully, the California legislature has unanimously adopted SB 1135, which “would prohibit sterilization” of an inmate “except when required for the immediate preservation of life in an emergency medical situation or when medically necessary . . . to treat a diagnosed condition and certain requirements are satisfied, including that patient consent is obtained.” The bill requires special follow-up on sterilizations performed in compliance with these conditions, as well as an annual report of data on sterilizations, disaggregated by race, age, medical justification, and method of sterilization.

In approving the bill, which is now on Gov. Brown’s table, California has taken an important step away from two painful legacies: its historically dysfunctional health care system, lambasted by the Supreme Court in Brown v. Plata (2011) and the history of medical experimentation in inmates with dubious, or nonexistent, consent, now strictly regulated by federal law. But rather than the neglect that categorizes the former or the exploitation that categorizes the latter, the sterilizations are the manifestations of another disturbing factor: supposedly benevolent paternalism and an assumption that the sterilizations are for the benefit of the inmate herself, and perhaps of society as a whole.

A story published today on the Sacramento Bee quotes Crystal Nguyen, a former Valley State Prison inmate, who reports having heard, back in 2007, medical staff asking inmates to agree to sterilization.

“I was like, ‘Oh my God, that’s not right,'” said Nguyen. “Do they think they’re animals, and they don’t want them to breed anymore?”

Also quoted by the Bee is Christina Cordero, who was talked into undergoing the procedure after giving birth to her son while incarcerated. “As soon as [the institution’s OB-GYN] found out that I had five kids, he suggested that I look into getting it done. The closer I got to my due date, the more he talked about it. . . He made me feel like a bad mother if I didn’t do it.”

What these paternalistic notions have in common with medical neglect and scientific exploitation is the lack of recognition that the inmates, regardless of their respective offenses and histories, are human beings, and as such must be given at least a modicum of autonomy regarding the only thing that is still theirs: their own bodies. It is to be hoped that SB 1135 represents not only a remedy for a recently uncovered horror, but a willingness to acknowledge our shared humanity on both sides of the prison gates.

BREAKING NEWS: Appeal in Jones v. Chappell

I have disappointing news to share: the Attorney General has decided to appeal in Jones v. Chappell.

I am not surprised, but I am very disappointed, just as all of you must be. Whoever has taken part in reaching this decision is not supporting the law or defendants’ rights; they are supporting wasteful, unconscionable expenditures of $130 million annually on a lengthy incarceration in a dilapidated facility, complete with decades of state-funded post-conviction litigation. This is a very sad day for any reasonable, conscious Californian.

The next frontier will be in the Ninth Circuit, where odds that we will prevail are not very good, but not non-existent. Please follow up on our coverage of this issue,and do not be discouraged: we will fight on, in litigation and through legislative and political means, and we will see nationwide abolition in our time.

Offshoot Sister Blog: Iron in War

Friends and readers – I have a new sister blog to CCC called Iron in War, in which I blog about matters pertaining to the front end of the criminal process: policing and law enforcement. I’m blogging extensively there about Ferguson and will blog about other issues, such as private policing, criminalization, neighborhood watches, search and seizure, interrogations, and investigations. Come check us out.

More Death Penalty News: Robert Justice Comes to the Rescue

On Monday morning, I drove to Sacramento and submitted this petition, calling on Gov. Brown and Attorney General Harris not to appeal the decision in Jones v. Chappell, in which Judge Carney of the U.S. District Court found the death penalty in California unconstitutional. It started as a small plea on Facebook, and without any pushing or prompting from me found its way to the Daily Kos and to the Daily Journal (twice). By the time I submitted the petition, it was 2,198 signatures strong. That’s me on the left with the gubernatorial bear.

There are still 12 days left for the Attorney General to appeal the decision, and as I explained here, if her office does not do so, it doesn’t mean the death penalty in California is effectively abolished, but it would be a great start of a series of legal and political moves that could spell its demise. I’m beginning to think that the death penalty can’t be executed; rather, it has to die a slow death from a chronic disease (delays, costs, malfunctions)–much like the vast majority of the inmates on death row.

I think everyone understands this, even if they don’t like it, and that includes death penalty proponents, who seem to be freaking out about the prospect of $130 million annually in savings and folks being put in general population serving life without parole (which they do anyway, just without the expenditure.) And it seems that death row supporters in California are beginning to freak out at the not-unlikely possibility that the Attorney General is going to leave this decision alone. First was this post on Crime and Consequences, inviting district attorneys to risk their jobs and eat up their lives by appealing a decision their boss might not appeal against her officer’s discretion (really?). But then, the decision was actually appealed. Yesterday. Not by the Attorney General. By a guy named Robert Justice.

Don’t believe it? Here’s the notice of appeal.

I bet you’re wondering who these mysterious appellants are, and what gives them standing, given that they are not Jones OR Chappell OR the Attorney General. Well, the signatures on the petition give away their interest in seeing the death penalty continue its slow limp into the sunset. Mr. Soos and Mr. Justice are “citizens of the State of California”.

First thing’s first: this is obviously not going to work. Unless Mssrs. Soos and Justice have some truly acrobatic standing argument up their sleeve, the issue of standing in a case like this has already been decided by the Supreme Court. If the Attorney General does not support our 1978 voter initiative to reinstate the death penalty, citizens have no standing to do so in her stead, not even if they’re the ones who fundraised and pushed the initiative in the first place. This is going to be thrown out of court for lack of standing faster than I can say “Hollingsworth v. Perry.”

I will give Dr. Justice credit for his enthusiasm regarding the political and legal process. It’s good to see citizens of California spend energy and resources on vital matters of public importance, such as his previous legal endeavor, which involved trying to get the State of Hawaii to reveal President Obama’s birth certificate (yes, it’s the same guy. He’s a birther).

The Hawaii court said, “while Dr. Justice may have a strong desire to personally verify President Obama’s eligibility, pursuant to article II, section 1 of the United States Constitution, to serve as President of the United States, such desire does not constitute compelling circumstances within the meaning of HRS ÿÿ 92F-12(b)(3). Dr. Justice does not have the power or authority to determine President Obama’s eligibility. Only the Congress of the United States has the power to remove a sitting president. Indeed, Dr. Justice has not alleged any factual basis for his implicit contention that President Obama may not be a natural-born citizen of the United States. Dr. Justice has not stated an overpowering or urgent need for the records to protect the life or safety of an individual in a medical or other emergency.” I expect Dr. Justice’s newest foray into the exciting world of legal standing will meet with similar success.

But let’s get serious for a bit. I want to give Robert Justice the credit that he doesn’t seriously think he has standing, and that this might be his attempt to persuade, or shame, our elected officials into doing his bidding. Anticipating some arguments from death penalty supporters, here goes:

The Attorney General has to do what the people want.

No. No, she doesn’t. Not when the people’s will goes against what’s fair and just and makes sense. Remember Jack Conway, Attorney General of Kentucky? This is him, courageously saying that he is going to do the right thing and refrain from appealing a decision that same-sex marriage bans are unconstitutional “even if some disagree.”


The people want the death penalty to remain.

What we know from the last election is that the percentage of people who want the law to remain is the lowest it’s been in decades: 53 percent. And it will continue to go down, in the same way that support for same-sex marriage went up. The population is getting younger. And, as a French student reminded me this week, France abolished the death penalty before most of the public agreed with abolition.

The Attorney General should uphold the law.

Well, of course she does. But what counts as “law” is a changing, evolving thing. The death penalty was constitutional until 1972. That was “the law”. Then it stopped being “the law”, and became “the law” again in 1976. When Jack Conway declined to defend a bigoted, homophobic law, he expressed his opinion–that the court’s decision was law now. Similarly, a decline to appeal Judge Carney’s decision makes it “law”, and opens the door to more changes and processes that may make abolition “law” in the entire state of California.

The Attorney General owes it to us to see this through, so we can have a Ninth Circuit decision up or down. 

That’s an interesting one, and I’ve heard it from several people I respect. But I think we all understand that litigation involves strategy. Appeals are discretionary for a reason, and it is a legitimate opportunity to employ strategy and shape the law of the future–whether by appealing or by refraining from appealing.

This is the end of the death penalty. Isn’t it healthier if it comes about by means of extensive public debate?

First of all, this is not the end of the death penalty, for reasons I explain in detail here. There is still plenty to be done and plenty of room for extensive public debate to take place. But public debate about this has been going on for centuries, and many arguments have been made on the pro and con sides for the last forty years in particular. We’ve discussed deterrence, racial discrimination, innocence, botched executions, ad nauseam. In some ways, it’s befitting that the death penalty perish in the same way that most of its subjects perish–namely, slowly, quietly, of natural causes, exhaustion and dysfunction.

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Props to the anonymous kind soul who provided some of the sources for this post.