Mark Silverstein, Legal Director of the ACLU of Colorado, discusses your rights when interacting with police, troubling police actions during protests, and Colorado police reforms. This is the Self in Society Podcast #16.
“Please, I can’t breathe!” George Floyd begged as a Minneapolis police officer crushed a knee into his neck as he lay prone and handcuffed. The officer who killed Floyd deserves to be tried for murder, and the officers who participated or stood by and watched deserve to be tried as accomplices.
It doesn’t matter here what Floyd is alleged to have done. The person who called 911 said that Floyd was trying to pay a store with fake bills and that he was intoxicated. I have no idea whether the allegations are true. The officers involved claimed that Floyd resisted arrest. Video shows that Floyd struggled as police yanked him from a vehicle, after which Floyd cooperated. [Update: Subsequently released video seems to show Floyd struggling with police in a police vehicle.] Regardless, the officer’s extreme use of force obviously was entirely unnecessary to subdue Floyd. No reasonable person doubts that crushing a person’s throat for minutes on end can kill the victim. It is a police officer’s job to bring the accused to the courts for justice, not to play street executioner.
What, practically, can we as regular people do toward stopping such senseless violence by a minority of the people we pay to protect us? Here I review six main ways.
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”
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”
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”
At least in the conditions under which we live, the death penalty is unjust and it must be abolished.
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.
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.
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?
Spike Lee believes “there is a war on the black male” in America, as the Spectatorreports. 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 Journalreported 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?