Death Penalty Oral Argument: Procedural Debate Belies Anger at State’s Dysfunction

This morning, the Ninth Circuit (Judges Graber, Rawlinson and Watford) heard oral argument in Jones v. Davis (formerly Jones v. Chappell). As you may recall, the original case was decided by District Court Judge Cormac Carney, who found the death penalty in California unconstitutional because of the severe delays in its application. The decision was appealed by the Attorney General, and nothing much happened since then in terms of addressing the delays on death row.

What did happen more litigation relying on Jones–notably, Andrews v. Davis before the Ninth Circuit and People v. Seumanu before the California Supreme Court.

At today’s hearing, the Government representative argued that Jones was barred from benefitting from the delay in his case for two reasons:

1. It is a claim purporting to create a new rule, not brought up before, and as such is barred by Teague v. Lane.



A little bit of background: New substantive rules apply retroactively. For example, if a certain behavior ceases to be a criminal offense, whoever is still doing time for that offense will probably be let out immediately. But for new procedural rules, appellants can benefit from them only if these rules come into being while their case is still “alive”, that is, still under direct review. In the diagram to the left, the rule change can benefit people in situations (1) and (2), but not (3). Note that, if the new rule came into being when (2) was still under direct appeal, but now (2) is arguing for it in a habeas proceeding, (2) still gets to benefit from the rule. (3), however, does not–his case became final before the rule change.

What about announcing a new rule on Habeas? According to Teague v. Lane (1989), the dilemma is as follows: the defendant who is asking for the new rule is, essentially, (3) from the previous diagram. That is, he would not be able to benefit from the new rule if it were announced today in someone else’s case. Which also means that all the people who are similarly situated to this defendant–whose cases are final and on habeas–will not benefit from the new rule. Since the court doesn’t want to just announce the rule and not enforce it, or to enforce it only in the particular case and not in those similarly situated (inequality), it reached the bizarre conclusion that it will simply not announce new rules on Habeas–unless these rules fundamentally change criminal justice, either in terms of legalizing previously prohibited behavior or being a “watershed rule of criminal procedure.”

Jones’ representative, Michael Laurence from the Habeas Corpus Resource Center, argued that the issue at stake here is substantive, not procedural. That is, the application of the death penalty is not merely a change in procedure, but rather a fundamental issue of applying the death penalty, as it was regarded in Furman v. Georgia (1972), Atkins v. VA (2001), and Schriro v. Summerlin (2003), the latter specifying that “rules that regulate the manner of punishment” are considered substantive, rather than procedural. Even if it is a procedural rule, it is essentially a reframing of the problem of arbitrariness, which led to the death penalty abolition in Furman, and therefore not a “new one” but merely the application of an old one.


In response, the government’s representative argued that the arbitrariness claim, in this context, is a “new rule”, and moreover, a procedural one. There hasn’t been precedent directly on point claiming that arbitrariness can manifest itself in delay, and since this is a new question, it cannot result in a new rule on Habeas under Teague.

There was some back and forth about whether the court’s decision in Andrews, which rejected a Jones-based claim, should be used to interpret whether the rule is new or old. 

2. Even if it’s a claim relying on an old rule, Jones has not exhausted his argument in state court (in fact, never brought this up in state court) and is therefore barred from raising it in federal court under the Habeas provisions in section 2254. As 2254(d)(1) says,


(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) 

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]

This was not the case here, claims the government; Jones didn’t even go to state court, and cannot therefore challenge the sentence at the federal court.

Jones’ representative argues that Jones benefits from an exception to the exhaustion clause, which appears in 2254(b)(2)(b)(ii):

(b)

(1)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A)

the applicant has exhausted the remedies available in the courts of the State; or

(B)

(i)

there is an absence of available State corrective process; or

(ii)

circumstances exist that render such process ineffective to protect the rights of the applicant.

This may seem very technical, but there’s actually a lot of anger beneath the technicalities. As Jones argues through Laurence, the California Supreme Court would not have provided a cure to the delay, but rather delayed things even further. In 1997, the Ninth Circuit found that 140 people on death row were unrepresented, and released them from the timely submission obligations under AEDPA. Now, there are 358 unrepresented people. The wait for an attorney can be 16 (!!!) years, and after that, litigation can last 8-10 years (!!!)–all this time, obviously, spent by the applicant on death row. Amazingly, the only office limited in its number of lawyerly hires, the Habeas Corpus Resource Center, can only hire 34 (!!!) lawyers, which is a woefully inadequate number of people to handle 758 (!!!) cases. Before and after Jones, the California Supreme Court did nothing to remedy this situation, argued Laurence, and therefore there was no point in trying to “exhaust” the claim in state court. That would be, literally, exhausting.

In response, the government representative said that the prospective delays in state resolution of such issues is speculative.

There was also a bit of back and forth on the merits, with the government resisting the assertion that death penalty in California is “arbitrary” but rather that cases are carefully examined.

I’m hoping that, no matter the result in the Ninth Circuit, this case will go to the Supreme Court, where the dysfunctional application of capital punishment in the state might find a receptive ear in Justice Kennedy and in Justice Breyer, who explicitly said, in Glossip v. Gross, that he would welcome an opportunity to address the constitutionality of the death penalty on the merits.

Today! Live Argument in Jones v. Davis

Starting at 10am, Jones v. Davis, the case in which the death penalty in California was declared unconstitutional because of the delays, streams live here:

If you’re at Hastings, join me at my office at 10am. If not, tune in to the blog later today for fresh commentary.

Collard Pesto and Caprese

To your left is a nice, summery Italian meal: pasta with a Pesto of Hidden Value and magical caprese. All of this is vegan, with a helpful hand from Miyoko’s Kitchen!

First, the clandestine pesto. I added an entire giant bunch of raw collard greens to the classic recipe, to which it adds some intense green color and a bit of flavor. It’s the newest addition to my old bag of tricks–I try to add leafy greens to everything I make, partly because of their fabulous calcium content–and pesto is the ideal delivery vehicle for it.

To make this marvel, you’ll need:

1 bunch collard greens
4 large garlic cloves
3 tbsp pine nuts
1 cup basil leaves
olive oil (in a bottle that allows drizzling)
salt
a dollop of Miyoko’s Kitchen Double Cream Chive

Cut collard greens into ribbons and place in food processor. Process until very thinly chopped. Add garlic, pine nuts, and basil, and continue processing; slowly drizzle olive oil from the top as you’re processing everything else until it reaches a consistency you like. Add a few small chunks of Miyoko’s Kitchen cheese, if you like, and continue processing until more or less homogenous. Mix with pasta and serve.

Second, the caprese: this salad was one of the grand loves of my pre-vegan life, and today a marvelous thing happened: I received my shipment of Miyoko’s buffalo-style vegan mozarella. We had a giant heirloom tomato lying about, so I sliced it, placed a piece of mozarella on each slice, and decorated each with a basil leaf.

Now that I’ve eaten this salad I can happily say that veganism does not entail even a shred of sacrifice, and all my culinary pleasures are well satisfied without cruelty. Thank you, Miyoko!

Summer Hosting: Stuffed Mushrooms and Eggless Salad

Sunday Streets, a city-organized block party occurring in a different neighborhood every month, was in the Excelsior today. Salsa and rock bands, booths, food trucks, and lots and lots of happy people on bicycles.

On a whim, we sent out an email inviting friends over for an open house today, so I made some cool snacks: it’s always good to serve some cherry tomatoes, carrot sticks, and blanched green beans, and I had a winter truffle cheese from Miyoko’s Kitchen. I also roasted an eggplant and served two fun inventions:

Eggless Salad

1 block extra-firm tofu
1.5 tbsp Just Mayo or Vegenaise
2 tbsp good quality brown mustard
about an inch off a leek, just the white part
1 large dill pickle
1 tbsp paprika
1 tbsp chana masala/garam masala powder
salt and pepper to taste

Mix mayo and vegenaise in a mixing bowl. Slice leeks very finely, then cut through to obtain thin strips. Cut pickle into small cubes.

Crumble entire block of tofu into bowl. Add leeks and pickle and mix well. Season to taste and keep refrigerated.

Stuffed Mushrooms

20 white or brown champignon mushrooms
1-2 tbsp Bragg’s Liquid Aminos
2 tbsp parsley
3 onion cloves
2 tbsp strained tomatoes
1 vegan sausage (I like using Field Roast)

Carefully remove stems from all mushrooms. Place stemmed mushrooms on a tray and sprinkle Bragg’s Liquid Aminos on top. Slice sausage into twenty discs and place one in the hollow of each mushroom. Finely chop the stems, parsley, and garlic, and mix with strained tomatoes. Spoon a bit of the mix on top of the sausage in each mushroom and bake for about 30-45 mins or as long as you like until the tops are browned.

Jones v. Chappell Oral Arguments Coming Up at the Ninth Circuit

Remember Jones v. Chappell?

At the time we were very excited: A federal District Court judge, Judge Cormac Carney of Orange County, declared the death penalty in California unconstitutional because of the decades-long delay in its administration. In fact, we were so excited that we organized a public petition to the Attorney General, asking her not to appeal the decision. We got some press and support from more than 2,000 signees (thank you!) and there were even a few surreal plot twists.  Much to our disappointment, the Attorney General decided to appeal the decision.

On August 31, the Ninth Circuit will hear oral arguments in the case (now called Jones v. Davis–change of wardens). CCC will be there to report. If you want to read up a bit in the meantime, here’s the amicus brief submitted by Death Penalty Focus.

BREAKING NEWS: Connecticut Supreme Court Finds Death Penalty Unconstitutional

Today, the Connecticut Supreme Court ruled the death penalty unconstitutional, in a broad retroactive decision that removed all 11 inmates from death row and into general population. The Hartford Courant reports:

The majority decision, written by Justice Richard N. Palmer, found a host of flaws in the death penalty law, which banned “prospective” death sentences, those imposed after the effective date of the law. But the majority wrote that it chose to analyze capital punishment and impose abolition from a broad perspective.

After analysis of the law and “in light of the governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose,” Justice Richard Palmer wrote for the majority.

“”For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.”

Congratulations, Connecticut! Come on, California Supreme Court!

Good News on Health Care for Transgender Inmates

Today a settlement was reached in Quine v. Brown, a case involving housing and healthcare for transgender inmates. The Transgender Law Center reports:

Today, the California Department of Corrections and Rehabilitation reached a groundbreaking settlement with Shiloh Quine, a transgender woman held in a men’s prison, to move her to a women’s facility and provide medical care, including gender-affirming surgery, determined necessary by several medical and mental health professionals. In the settlement, the state also agreed to change its policies so that transgender prisoners can access clothing and commissary items consistent with their gender identity. The state also affirmed that it is revising its policies regarding transgender inmates’ access to medically necessary treatment for gender dysphoria, including surgery.

“This historic settlement is a tremendous victory, not just for Shiloh and transgender people in prison, but for all transgender people who have ever been denied medical care or basic recognition of our humanity just because of who we are,” said Kris Hayashi, Executive Director of Transgender Law Center, which represented Shiloh along with pro bono counsel from the law firm of Morgan, Lewis & Bockius LLP. “After years of unnecessary suffering, Shiloh will finally get the care she desperately needs – and transgender people nationwide will hear a state government affirm that our identities and medical needs are as valid as anyone else’s.”


Fantasy Vegan Cookbooks: Perfect Photos, Perfect People, Perfect Food

Right after polishing off a plate of veg, bean, and potato salad, I realized something interesting: I was inspired to make these very simple dishes after spending last night gushing over Rich Roll and Julie Piatt’s The Plantpower Way. Is it just me, or have vegan cookbooks massively improved in production, photography, and design recently?

Fancy cookbooks are all over the place; our local cookbook store, Omnivore Books,  has tons of gorgeous exemplars. But I think that in vegan cuisine this trend is a conscious effort to counter an opinion that may still prevail among some meat eaters–namely, that veganism is ascetic, joyless and prohibitive, and that we don’t enjoy our food. Which is why I’m noticing beautifully-photographed and conceptualized books devoted to the pleasures of veganism.

The Plantpower Way is a classic example. It’s essentially a coffee-table cookbook full of pictures of Rich Roll, the lawyer-turned-ultra-athlete, and his very good looking family (gorgeous yogini wife and four exceedingly handsome teenagers.) The book is so saturated with images of these folks’ beautiful house, great clothes, and fantastic food, that it gave me the uncomfortable feeling that these folks’ happy family life is a sex scandal waiting to happen. 🙂 If you have a cynical bone in your body, you have to ask yourself whether these folks are always as happy and brimming with vitality as they are in the photos (and whether collaborating with their teenagers on such a nutritious diet is always successful). But if you are willing to suspend your disbelief a bit and engage in the fantasy lifestyle of the Rich and Famous, these folks are the poster children for happy, healthy vegans. The recipes are also pretty great, and despite the elaborate photographic appeal not all that cumbersome, if you have a good blender and food processor. The text is all about optimizing nutrition, throwing greens in whenever possible, and other principles–occasionally it veers into not-uncommon hooey about “food vibrations”–but the recipes themselves seem very tasty. Even though the book admonishes us to make our blends (smoothies) more about vegetables than fruit, and to eschew the nut milks, the recipes themselves don’t feel masochistically healthy, have a healthy share of fruit and other yummy ingredients, and there’s a whole chapter on latte coffees and teas that features abundant nut milks. I should mention that these folks have a mysterious aversion to onions and garlic, presumably to make their meals more palatable to kids, but I grew up eating tons of onions and garlic in the Middle East as a kid and am surrounded by children who love both. But what do I know? Your pleasure in this book depends on how fantasy-prone you are, or on how much you’re willing to “live with your imperfections” (as these perfect folks instruct us) and enjoy the recipes without turning green with envy at the time and resources that make this diet possible.

The Plantpower Way is not the first exemplar of this trend, of course. One of the first cookbooks I bought last year was Pure Vegan, which does not feature fancy characters but does have luxurious, hedonistic recipes. The sweets and desserts section is particularly marvelous, and I’ve made the olive oil and pistachio cake from this book with great success (even neater if you bake it in a bundt pan!). On the health-hedonism spectrum, I’d say this book falls toward the latter end. Some of the recipes are elaborate and involved, but some only seem so because of the gorgeous photography. There’s not a ton of information here, but it is certainly an inspiringly beautiful book that I like to leaf through when I plan a party or something of that ilk.

Then, of course, there’s The Oh She Glows Cookbook, which evolved from the famously beloved blog of the same name. As with the Plantpower Way, the book features beautiful people living in a beautiful home, exquisitely photographed cooking and enjoying beautiful food (according to the blog, there’s now a baby in the mix, also!). This one also promises to be fairly hedonistic, and there’s a good mix between elaborate and simple recipes. There are also some practical make-ahead solutions, which are far less fancy-schmancy in terms of preparation than the excellent photography would suggest. And again, the sweets and desserts section is interesting and useful, at least to those of us that still indulge in added sugars once in a while.

Finally, no round-up of fantasy vegan publications is complete without Alicia Silverstone’s The Kind Diet and her lifestyle blog, The Kind Life. This book is an intro to veganism, full of thoughts from Silverstone, who talks about being a celebrity invested in a cause that is near and dear to her heart. There are some photos (beautiful people, beautiful home, beautiful food…) but the recipes are not a big part of it. It’s more of an introductory text for folks for whom Silverstone might open the door to compassionate eating and living. The website is full of sweets, baked goods, and hedonistic recreations of non-vegan foods–made with healthy ingredients and sometimes credited to other vegan cooks. A nice transition, perhaps, for new vegans.

I enjoy these books mostly as visual inspiration, but I find the humorous and down-to-earth work of Isa Chandra Moskowitz, and the practicality and pioneering inventiveness of Miyoko Schinner, more useful on an everyday basis. And, of course, my beloved classic by Phyllis Glazer is at this point the foundation of my cooking style. I’m probably going to continue inventing my own recipes, but looking at the pretty photos for inspiration and presentation.

Three Simple Salads

I woke up in the mood for something simple and nostalgic for lunch and dinner. My grandma and I talk on the phone every day, and her stories about her family reminded me of the salads she used to make for us when I was little. They are a mix of Russian and Egyptian cuisine, simple and flavorful.

The bottom 50% of the plate is filled with a simple vegetable salad with romaine, raw zucchini matchsticks, cherry tomatoes, red onions, parsley, and a very simple dressing: 1tsp mustard and 1tsp apple juice (I made an enormous bowl and ate it all up; this is just the remainder).

In the top right corner is a bean salad, made from the leftover Christmas lima beans:

1/2 onion, thinly sliced
3 cups cooked beans
olive oil
salt and pepper

Caramelize the onion in a bit of olive oil. Meanwhile, place the three-or-so cups of leftover cooked beans, with a tablespoon of olive oil, into the food processor. Add salt and pepper. After processing it for a few moments, add half of the caramelized onions and process again to the desired consistency (I like it a bit chunky), and finally mix it with the remaining onions and placed in the fridge.

And in the top left corner is a quick potato salad. I’m not as pro-potato as I was when my metabolism was faster, but I still like it a lot, so this is a special treat.

4 medium-sized potatoes
1/2 onion, thinly sliced
big handful parsley
big handful other herbs (chives, green onion, oregano, thyme)
3 dill pickles
1 tbsp Just Mayo or Vegenaise
salt and pepper to taste

Microwave, bake, steam, or boil the potatoes until soft, then dice them up (my grandma always peeled them, but I never do). Place in a mixing bowl and add a very thinly sliced 1/2 onion, and the thinly sliced parsley and other herbs. Add the pickles, thinly diced, and mix with vegenaise, salt and pepper.