The Question of Jury Nullification

Should a juror vote to acquit a criminal defendant on the grounds that the law behind the charges is unjust? Is such a practice of jury nullification legal, whether or not it is moral?

Jury nullification is a live issue in Colorado because of ongoing legal disputes between activists who hand out jury-nullifcation literature outside Denver’s Lindsey-Flanigan Courthouse and Denver officials who wish to restrict such activity. Continue reading “The Question of Jury Nullification”

Colorado’s Amendment T and the Meaning of Involuntary Servitude

How did slavery and involuntary servitude become active issues in the 2016 Colorado election? What is the significance of Amendment T, the ballot measure that addresses slavery and involuntary servitude with respect to criminals? Would Amendment T affect current criminal justice practices regarding in-prison work, work release, community service, or mandatory employment for parolees? Continue reading “Colorado’s Amendment T and the Meaning of Involuntary Servitude”

When It’s Wrong for Lawyers to Help Guilty Clients Go Free

Philosopher Michael Huemer makes a claim that will surprise many attorneys and observers of the legal system: With some important exceptions, lawyers should not help a clearly guilty client go free or otherwise evade justice. This runs counter to the common notion that attorneys can or even should help their guilty clients go free (within the boundaries of the law). Huemer presented his case, based on his 2014 paper on the subject, at a September 12 meeting of Liberty on the Rocks in Westminster, Colorado. Continue reading “When It’s Wrong for Lawyers to Help Guilty Clients Go Free”

Seeking Justice after the Racist Murders in Dallas

Terrorism is violence perpetrated against peaceable people to foment social or political change. The murder of police officers in Dallas was an act of terrorism.

On the evening of Thursday, July 7, at the location of an otherwise peaceful protest of recent troubling police killings of black men, Micah Xavier Johnson murdered five Dallas police officers and shot seven more for explicitly racist reasons. Continue reading “Seeking Justice after the Racist Murders in Dallas”

Richard Glossip Case Shows Injustice of the Death Penalty

At least in the conditions under which we live, the death penalty is unjust and it must be abolished.

Lethal Injection for Death Penalty
California Department of Corrections

On September 30, Richard Glossip was moments away from being killed by Oklahoma government employees via lethal injection. “With minutes to spare,” Governor Mary Fallin stayed the execution—not because of any concern about the justice of the sentence, but because the Department of Corrections had on hand a nonapproved drug for the purpose, CNN reports. Now all executions in the state, including Glossip’s, are “suspended indefinitely” as the state’s attorney general investigates the situation with the drugs.

What was Glossip’s alleged crime, and on what grounds was he convicted of it? The Tenth Circuit Court of Appeals, which heard one of Glossip’s appeals, offers a fairly thorough background—although the account offered is based partly on the testimony of a potentially unreliable witness.

In 1997, Glossip managed a hotel owned by Barry Van Treese, and he informally hired Justin Sneed to do maintenance work. Apparently Glossip was stealing from Van Treese and otherwise mismanaging the hotel, and Van Treese was conducting an audit. On January 7, Sneed beat Van Treese to death with a baseball bat in a hotel room. Sneed testified that Glossip asked him to murder Van Treese and offered him money and job security in exchange.

As NBC reports, Sneed—the man who actually beat Van Treese to death—”cut a deal” for life in prison in exchange for testifying against Glossip.

Unlike many of Glossip’s defenders, I don’t actually think Glossip is innocent; I think he probably conspired with Sneed to murder Van Treese. The case against Glossip is entirely circumstantial, but it’s fairly convincing. He had the means, motive, and opportunity to commit the crime, as they say. This is true despite the fact that an “inmate [where Sneed was imprisoned] allegedly said he heard Sneed brag in prison that he set Glossip up,” as KFOR reports. The details of the case fit together too well against Glossip for me to think the inmate’s hear-say claims establish Glossip’s innocence.

I also think sentencing Glossip to death in horrifically unjust, given the circumstances. Indeed, I think the case illustrates why, in the context of the modern American criminal justice system, the death penalty should be abolished.

Consider some of the major problems with imposing the death penalty in Glossip’s case:

  • In what universe is it fair for the man who actually committed the murder to get a radically less-severe sentence than did the man who only talked about it? It is cruel and unusual to sentence Glossip to death while Sneed—who actually beat Van Treese to death with a bat—gets life in prison.
  • The fact that Sneed obviously sold his testimony against Glossip in exchange for a less-severe penalty should automatically make that testimony inadmissible in court. That fact also renders the evidence against Glossip, on the whole, inadequate to establish Glossip’s guilt beyond a reasonable doubt, in my view. Sneed’s testimony is corrupt. In essence, the prosecution said to Sneed, “Look, we’re going to try to kill you unless you say that Glossip conspired with you.” How is that not testimony under compulsion? In general, I think the practice of eliciting testimony under threat of much more severe criminal penalties is inherently and extremely unjust.
  • Keeping someone on death row for nearly two decades is cruel and unusual, and indeed it constitutes prolonged psychological torture. Granted, much of that delay was caused by the appeals pursued by Glossip and his attorneys. However, it would also be cruel and unusual to effectively tell a man, “Sure, you can let us kill you right now, but you’ll never know if a protracted legal battle might spare your life.” If the death penalty can be applied in a relatively humane, Constitutionally sound way, it would have to be applied swiftly and with due confidence that the legal process was not corrupted. Practically, I think meeting those conditions is impossible—so the alternative is to abolish the death penalty.
  • Last-minute stays in execution are cruel and unusual, and they also constitute psychological torture. In effect, the governor said to Glossip, “Psych! We were going to kill you right away, but now we’re going to wait some indefinite period to kill you so we can make sure the way we kill you is in accordance with largely arbitrary rules.” If that practice is Constitutional, then so should be forcing a person to play Russian roulette with a loaded handgun.
  • The fact that Oklahoma officials brutally tortured a man to death just last year—the death was intentional, the torture was not—renders subsequent attempted similar executions by these officials (or their replacements) cruel and unusual. Imagine reading the story of Clayton Lockett’s death, then realizing that many of the same people responsible for his horrific death will also be responsible for your death. To say the least, you would not be confident of a humane end. Oklahoma’s handling of previous executions imposes psychological torture on others on death row there.

Maybe some people will glibly dismiss my concerns about psychological torture and it constituting cruel and unusual punishment. But I don’t think any person can honestly imagine themselves in Glossip’s position and not recognize the fact that he has been severely (albeit psychologically) tortured. That Van Treese suffered an even worse fate does not justify what government officials have done to Glossip—the Constitution’s ban on cruel and unusual punishment does not carry the disclaimer “unless the bastard really deserves it.”

I don’t have a firm position on the death penalty in the context of a well-constructed legal system. I’m leaning in the direction of thinking that merely the act of forcing a criminal to anticipate and await death constitutes cruel and unusual punishment, even if the death itself can reliably be made peaceful and painless. But, in the present legal context, those theoretical discussions are largely beside the point.

The fact is that we live in a world in which police officers and prosecutors sometimes lie, in which government officials and juries sometimes are biased, in which prosecutors sometimes put their political ambitions as well as their own convenience before justice, in which defendants often have huge incentives to lie about others on the stand in exchange for lesser sentences, in which tax-funded defense attorneys frequently are severely overworked or just plain incompetent, in which executions sometimes result in torturous deaths. In the world we live in, “Since 1973, over 140 people have been released from death rows in 26 states because of innocence.” How many were killed despite their innocence?

Someday, if we’re able to effectively reform the criminal justice system, we can talk about whether the death penalty properly plays a role in that system. But, at least in the conditions under which we live, the death penalty is unjust and it must be abolished.

Related:

Reynolds on Militarized Police

Image: Wikimedia Commons
Image: Wikimedia Commons

Glenn Harlan Reynolds writes for USA Today: “[B]lurring the lines between civilian policing and military action is dangerous, because soldiers and police have fundamentally different roles. . . . The people [police] are policing aren’t enemy combatants, but their fellow citizens—and, even more significantly, their employers. A combat-like mindset on the part of police turns fellow-citizens into enemies, with predictable results.” Reynolds also endorses three specific reforms: Abolish police unions, require that officers wear video cameras, and let people sue cops more easily for abuse.

I’ve endorsed requiring officers active with the public to wear and use video cameras. I’ve also advocated district attorneys prosecuting officers for crimes they commit. Reynolds’s other two ideas sound potentially good, too, but I think they’re secondary.

I’d like to publicly thank Reynolds as well as Radley Balko and Dave Kopel for drawing attention to the important issue of militarized police and the resulting abusive practices.

Do Colorado Police Really Need 1,160 M-16s and 8 Mine-Resistant Vehicles?

Image: Wikimedia Commons
Image: Wikimedia Commons

Kudos to Chris Vanderveen and Denver’s 9News team for reporting this important story: “Colorado’s law enforcement agencies have acquired a vast arsenal of military-grade weapons, vehicles and equipment since 1999 under a Department of Defense program. . . .” Among other things, Colorado police have acquired “1,160 M-16’s and eight mine resistant vehicles.” Do we seriously expect the police to keep the peace when they’re outfitted for war?

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“There Is a War on the Black Male”—By Black Males

Image: Angela George
Image: Angela George

Spike Lee believes “there is a war on the black male” in America, as the Spectator reports. He is absolutely correct, but he has not to my knowledge pointed his finger at the primary culprit: other black males who are part of the gang culture.

As I pointed out last year for the Objective Standard, about half of all homicides in the United States involve black victims. And it simply is not the case that usually the problem is whites killing blacks; as the Wall Street Journal reported a couple years ago, “Bureau of Justice Statistics data show that from 1976 to 2005, white victims were killed by white defendants 86% of the time and black victims were killed by blacks 94% of the time.”

So, yes, march against police brutality—and demand changes to prevent such abuse (such as by requiring officers to wear and use video cameras). Yes, demand changes in America’s drug laws that enrich violent gangs and imprison low-level drug offenders. Yes, demand the repeal of economic regulations that especially harm minorities. But let’s not lose sight of the very real problems of America’s gang-fueled subculture. Where are the marches to address that?

Violence-Minded Cops on Patrol in Missouri

Image: Loaves of Bread
Image: Loaves of Bread

According to the Daily Caller, a police officer in Missouri, Matthew Pappert, allegedly stated on Facebook that the protesters in Ferguson “should have been put down like a rabid dog the first night” and that he wished for a “Muslim with a backpack” to blow up the assembled “thugs and white trash” (referring to KKK members). Hat tip to the St. Louis Post Dispatch via the Week.

And, a couple years ago, reports the Dispatch, St. Louis County police officer Dan Page said, “I personally believe in Jesus Christ as my lord savior, but I’m also a killer. I’ve killed a lot. And if I need to, I’ll kill a whole bunch more. If you don’t want to get killed, don’t show up in front of me, it’s that simple. I have no problem with it. . . . I’m into diversity. I kill everybody, I don’t care.” I do get the sense that there’s some additional context to Page’s remarks, but I didn’t want to watch the full hour-long video of Page to run down the details. I watched the first few minutes, and that was enough to convince me that, at a minimum, Page holds some very bizarre views.

Here’s a thought: How about not employ police officers who sound like sociopaths?

Related:

Staten Islanders Protest Eric Garner’s Death by Police

Image: Tommy Miles
Image: Tommy Miles

Thousands of people marched in Staten Island yesterday to protest the police-caused death of Eric Garner on July 17, as the New York Daily News reports. What was Garner’s “crime” for which police killed him? It was allegedly “peddling single, untaxed cigarettes near a Staten Island park,” the News reports. The man who filmed his death claims that the police confronted Garner for breaking up a fight. That video does show Garner resisting arrest, but not aggressively so; he merely told the police he was tired of them harassing him for no good reason, then he said “don’t touch me” when they began to invade his personal space. Police officers placed Garner in an extended choke hold, causing him to complain he couldn’t breath, and pushed his body into the ground.

Pause to let the facts of this case sink in. Garner was killed by police for allegedly selling untaxed cigarettes. No, the officers in question didn’t mean to kill him; they “merely” executed an extremely dangerous assault on Garner that happened to result in his death. In other words, Garner’s killing was not premeditated murder, but I cannot see how, morally, it was anything short of manslaughter. Morally, you don’t get to kill people indiscriminately or violently assault them for petty reasons, just because you’re wearing a badge. The simple fact is that if anyone other than a police officer had done to Garner what the officers did to him, the assailant already would have been prosecuted for manslaughter—and rightly so. So why do police officers not have to follow the same laws against violating people’s rights the rest of us follow?

Of course, it would help immensely if legislators would stop authorizing police to use potentially deadly force against people who are violating no one’s rights.

“Staten Island District Attorney Daniel Donovan announced this week that a grand jury will begin considering criminal charges next month,” the News reports.