To contact us Click HERE
The Supreme Court may hear a case next term reminiscent of George Orwell’s book 1984. Chief Justice John Roberts indicated this week that the Court may reverse the Maryland Court of Appeals’ decision on the state’s DNA Collection Act, thereby permitting police officers to collect arrestees’ DNA samples without warrants. A Supreme Court reversal would also significantly narrow Fourth Amendment protections against unreasonable searches and seizures.
According to the Maryland DNA Collection Act, once you are arrested, the police can take a warrantless sample of your DNA before you are even convicted, and permanently enter it into a DNA crime database. However, in April, the Maryland Court of Appeals — the highest court in the state — held that the law was unconstitutional under the Fourth Amendment. Since then, Maryland prosecutors have appealed the case to the Supreme Court. The Supreme Court has not yet agreed to hear the case, but Chief Justice Roberts stayed the Maryland court’s judgment and mandate on Monday, strongly suggesting that the Court will hear and reverse the case. The stay also means that the DNA Collection Act is back in force until and unless the Supreme Court denies the government’s petition to hear the case.
The case, King v. Maryland, was brought by Alonzo King after a DNA search permitted by the DNA Collection Act led to his conviction for first-degree rape. In 2009, King was arrested for first- and second-degree assault. On the day of his arrest, his cheek was swabbed and his DNA was entered into the Maryland DNA database. Before he was convicted on the assault charges, a match was found between King’s DNA and evidence collected from the unrelated 2003 rape of a 53-year-old Salisbury, Maryland, woman. In April 2012, Maryland Court of Appeals Judge Glenn Harrell held that an arrestee’s expectation of privacy not to be subjected to warrantless searches outweighed the state’s general interest in swabbing presumably innocent persons to solve cold cases. Therefore, the DNA Collection Act was unconstitutional under the Fourth Amendment.
Prosecutors appealed and requested that the Supreme Court stay the judgment while the Court decides whether it will hear the case. In order to stay a judgment, the petitioner has to demonstrate that there is a reasonable probability that the Court will hear the case, a fair prospect that the decision will be reversed, and a likelihood of irreparable harm should the stay not be granted. Roberts agreed with the prosecutors that all of these conditions were met. Principally, Roberts was concerned with how the Maryland court’s outcome varies from other states that have upheld their DNA collection laws.
However, while harmonizing state law is important, so too is the Fourth Amendment. Unconstitutional state laws should be overturned, not replicated. Indeed, just because collecting arrestees’ DNA samples is easy does not make it constitutional.
Moreover, if the Supreme Court reverses the Maryland Court of Appeals’ decision, there could be dire consequences for Fourth Amendment rights. The Fourth Amendment protects against unreasonable searches and seizures and requires probable cause to obtain a warrant. Yet, Maryland law allows police officers to “search” a person’s biological identity at their discretion without a warrant. In a 1980 case, Walter v. United States, the Supreme Court held that the police need to have probable cause to search containers. Thus, a reversal in King would mean that police officers need more articulable reasons to search a limited physical area than they need to “search” the core of one’s biological identity.
14 Ağustos 2012 Salı
Contraceptive coverage facing challenges in the courts
To contact us Click HERE
Yesterday an important piece of the Affordable Care Act comes into effect: the contraceptive coverage and preventative health care for women provision. Among other services, this preventive services provision requires new insurance plans to provide all FDA-approved forms of birth control to women with no co-pay or deductible. By 2014, it is expected that 90% of private health care plans will come under the reach of this provision, and that eventually it will apply to all insurance plans. This is a great step forward for women’s health; unfortunately, it is already being challenged in the courts.
The provision is under legal attack by some who are pushing a skewed interpretation of the First Amendment’s “free exercise” clause. They claim that their religious beliefs are infringed by the requirement that they offer insurance plans to their employees covering the full range of preventative health service, including no-cost contraception. Expressly religious organizations like churches, synagogues, and mosques are already exempt from the provision. Religiously affiliated organizations--for instance, charities, colleges and hospitals with ties to a religious institution, even though they operate independently--have been exempted for a year while the administration works with them on a compromise that will still allow employees to access insurance with full preventative services while respecting the organization’s affiliations. Nonetheless, legal challenges from some religious employers are being brought to overturn the provision on the grounds that it violates the organizations’ freedom of religion.
U.S. District Judge James Boasberg dismissed a suit brought by Belmont Abbey College, a Catholic college in North Carolina, holding that the school had not yet suffered any harm since they were exempted from the requirement for a year and the government may come up with a compromise acceptable to them. Another suit brought by seven states was dismissed on the grounds that they did not have standing, since the states failed to prove they would suffer actual harm by the enactment of the provision. Wheaton College, an evangelical school in Illinois, has joined with the Catholic University of America in a suit against the provision. As in the other lawsuits, the schools say that their religious liberty is violated by having to provide employees with insurance plans that cover contraception.
Now, individuals who are employers are trying to claim that their personal religious beliefs should exempt them from having to provide insurance covering no-cost preventative services to their employees. They assert that because they do not personally believe their religion allows them to use contraception, their exercise of religious freedom would be violated if they were required to provide a plan that allowed their employees to choose to take advantage of contraceptive coverage.
In Colorado, a family-owned air conditioning company filed a lawsuit against the contraception provision citing a violation of their personal religious freedom. On July 27th, Judge John L. Kane Jr. ruled that the government’s interest in health care was overridden by the Newland family’s claim to constitutional rights. Accordingly, Judge Kane imposed an injunction on the requirement that the Newlands’ business comply with the provision. Judge Kane says he is going to address whether a non-religious company, in this case the HVAC company owned by the Newlands, can invoke the personal religion of the employers as a reason for not complying with this aspect of the ACA.
With the numerous challenges to this provision making their way through the federal courts, it is possible that one or more will wind up in the Supreme Court sooner or later. At that point, the Court would be required to determine whether the First Amendment’s freedom of religion clause allows religiously affiliated institutions and individuals holding a personal belief to impose their faith on others by denying their employees the right to make personal decisions about their health care and well-being and access to comprehensive preventative health services.
The provision is under legal attack by some who are pushing a skewed interpretation of the First Amendment’s “free exercise” clause. They claim that their religious beliefs are infringed by the requirement that they offer insurance plans to their employees covering the full range of preventative health service, including no-cost contraception. Expressly religious organizations like churches, synagogues, and mosques are already exempt from the provision. Religiously affiliated organizations--for instance, charities, colleges and hospitals with ties to a religious institution, even though they operate independently--have been exempted for a year while the administration works with them on a compromise that will still allow employees to access insurance with full preventative services while respecting the organization’s affiliations. Nonetheless, legal challenges from some religious employers are being brought to overturn the provision on the grounds that it violates the organizations’ freedom of religion.
U.S. District Judge James Boasberg dismissed a suit brought by Belmont Abbey College, a Catholic college in North Carolina, holding that the school had not yet suffered any harm since they were exempted from the requirement for a year and the government may come up with a compromise acceptable to them. Another suit brought by seven states was dismissed on the grounds that they did not have standing, since the states failed to prove they would suffer actual harm by the enactment of the provision. Wheaton College, an evangelical school in Illinois, has joined with the Catholic University of America in a suit against the provision. As in the other lawsuits, the schools say that their religious liberty is violated by having to provide employees with insurance plans that cover contraception.
Now, individuals who are employers are trying to claim that their personal religious beliefs should exempt them from having to provide insurance covering no-cost preventative services to their employees. They assert that because they do not personally believe their religion allows them to use contraception, their exercise of religious freedom would be violated if they were required to provide a plan that allowed their employees to choose to take advantage of contraceptive coverage.
In Colorado, a family-owned air conditioning company filed a lawsuit against the contraception provision citing a violation of their personal religious freedom. On July 27th, Judge John L. Kane Jr. ruled that the government’s interest in health care was overridden by the Newland family’s claim to constitutional rights. Accordingly, Judge Kane imposed an injunction on the requirement that the Newlands’ business comply with the provision. Judge Kane says he is going to address whether a non-religious company, in this case the HVAC company owned by the Newlands, can invoke the personal religion of the employers as a reason for not complying with this aspect of the ACA.
With the numerous challenges to this provision making their way through the federal courts, it is possible that one or more will wind up in the Supreme Court sooner or later. At that point, the Court would be required to determine whether the First Amendment’s freedom of religion clause allows religiously affiliated institutions and individuals holding a personal belief to impose their faith on others by denying their employees the right to make personal decisions about their health care and well-being and access to comprehensive preventative health services.
AFJ releases new report on the Supreme Court's 2011-12 term
To contact us Click HERE
The 2011-12 U.S. Supreme Court term will be best remembered for the Court’s landmark ruling on the Patient Protection and Affordable Care Act (“ACA”), in which it upheld the constitutionality of the Act but opened the door to placing future limits on Congress’ ability to regulate interstate commerce and to impose conditions on federal grants to the states. That decision, however, was far from the only ruling of major significance this term. The Court issued a number of important decisions that reflect its continuing bias in favor of corporate interests and against the rights of everyday Americans, demonstrating that Chief Justice John Roberts’ One-Percent Court was once again open for business.
Click here to download the full 2011-12 End of Term report.
 |
| Photo: Mike Sheridan |
Click here to download the full 2011-12 End of Term report.
Will the Voting Rights Act survive the Roberts Court intact?
To contact us Click HERE
Yesterday marked the forty-seventh anniversary of the passage of the Voting Rights Act of 1965, a landmark piece of civil rights legislation that secured the right to vote for minorities. When signing the Act into law, President Lyndon Johnson said,
The right to vote, however, stands in danger of being denied. Five cases challenging central provisions of the Voting Rights Act were filed in federal court last term, and one or more of these is almost certain to come before the Supreme Court this coming year. With a hostile track-record on civil rights cases, the Roberts Court could take action to eviscerate, or severely impede, this "basic right without which all others are meaningless [that] gives people … control over their own destinies."
The targeted provisions require states with a history of discriminating against minorities at the ballot box to obtain “preclearance” from the Department of Justice before making changes to their voting laws in order to ensure the laws have not been enacted with a discriminatory purpose and will not have a discriminatory effect. States and localities that fall under this requirement are challenging the constitutionality of the law, alleging that circumstances in the state have changed such that they should no longer be subject to the preclearance requirement. Others are defending laws passed by the state that have been blocked by the Department of Justice under the Act. In 2006, Congress almost unanimously voted to reauthorize the Voting Rights Act until 2031, showing clear Congressional understanding that the law was still necessary.
In 2010, Shelby County, Alabama challenged the Act, claiming that Congress exceeded its enforcement powers and that the reauthorized Act therefore violated the Constitution. The county lost when the United States Court of Appeals for the D.C. Circuit ruled 2-1 this May that the Act is constitutional. Judge David Tatel, writing for the majority, held that while some things have changed in the covered jurisdictions since 1965, “serious and widespread intentional discrimination persisted” and that the preclearance requirement is necessary to continue to protect the rights of minorities. Shelby County filed a cert. petition before the Supreme Court on July 20, appealing the Circuit Court’s ruling.
South Carolina and Texas have both filed challenges to Department of Justice action under the Act that has blocked the implementation of voter ID laws passed by the states. The Department of Justice determined that the laws would have a harmful effect on the turnout of minorities at the polls. The Texas challenge was heard in the U.S. District Court for the District of Columbia in early July. A three-judge panel heard arguments from Texas, which both defended the Voter ID law and argued that Section 5 of the Voting Rights Act, which requires Texas and 15 other states to get preclearance. The U.S. Department of Justice argued that the Voter ID law will have a racially discriminatory effect that results in voter suppression, and that laws such as the Voter ID law and Texas’ 2003 and 2011 redistricting efforts are exactly the type of race-specific voter suppression efforts that the Voting Rights Act was written to prohibit. The arguments from the state only raised constitutional questions in passing, but many legal observers suspect that Texas is seeking to use this case as a vehicle to challenge the constitutionality of the Voting Rights Act. The District Court is expected to issue its decision in late August, at which time the case will be able to be appealed directly to the Supreme Court.
In a 2009 voting rights challenge that was decided on procedural grounds, not the merits, Chief Justice Roberts signaled – in fact, almost invited – a future challenge to the Act, writing for the majority that that the preclearance requirement raises “serious constitutional questions”. Professor Kermit Roosevelt, a former clerk for Associate Justice David Souter, believes the Court will take a case challenging the Act, and predicts, “I expect the Voting Rights Act to go down. The court has foreshadowed that result, and Roberts seems to want it.” Should the Court decide to take one or more of these cases, the coming term could see the fundamental right to vote – the right “without which all others are meaningless” – significantly rolled back for the first time in 47 years.
This act flows from a clear and simple wrong. . . . Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. The wrong is one which no American, in his heart, can justify. The right is one which no American, true to our principles, can deny.
The right to vote, however, stands in danger of being denied. Five cases challenging central provisions of the Voting Rights Act were filed in federal court last term, and one or more of these is almost certain to come before the Supreme Court this coming year. With a hostile track-record on civil rights cases, the Roberts Court could take action to eviscerate, or severely impede, this "basic right without which all others are meaningless [that] gives people … control over their own destinies."
 |
| President Lyndon Johnson signs the Voting Rights Act as Martin Luther King, Jr., and other civil rights leaders look on LBJ Library photo by Yoichi R. Okamoto |
The targeted provisions require states with a history of discriminating against minorities at the ballot box to obtain “preclearance” from the Department of Justice before making changes to their voting laws in order to ensure the laws have not been enacted with a discriminatory purpose and will not have a discriminatory effect. States and localities that fall under this requirement are challenging the constitutionality of the law, alleging that circumstances in the state have changed such that they should no longer be subject to the preclearance requirement. Others are defending laws passed by the state that have been blocked by the Department of Justice under the Act. In 2006, Congress almost unanimously voted to reauthorize the Voting Rights Act until 2031, showing clear Congressional understanding that the law was still necessary.
In 2010, Shelby County, Alabama challenged the Act, claiming that Congress exceeded its enforcement powers and that the reauthorized Act therefore violated the Constitution. The county lost when the United States Court of Appeals for the D.C. Circuit ruled 2-1 this May that the Act is constitutional. Judge David Tatel, writing for the majority, held that while some things have changed in the covered jurisdictions since 1965, “serious and widespread intentional discrimination persisted” and that the preclearance requirement is necessary to continue to protect the rights of minorities. Shelby County filed a cert. petition before the Supreme Court on July 20, appealing the Circuit Court’s ruling.
South Carolina and Texas have both filed challenges to Department of Justice action under the Act that has blocked the implementation of voter ID laws passed by the states. The Department of Justice determined that the laws would have a harmful effect on the turnout of minorities at the polls. The Texas challenge was heard in the U.S. District Court for the District of Columbia in early July. A three-judge panel heard arguments from Texas, which both defended the Voter ID law and argued that Section 5 of the Voting Rights Act, which requires Texas and 15 other states to get preclearance. The U.S. Department of Justice argued that the Voter ID law will have a racially discriminatory effect that results in voter suppression, and that laws such as the Voter ID law and Texas’ 2003 and 2011 redistricting efforts are exactly the type of race-specific voter suppression efforts that the Voting Rights Act was written to prohibit. The arguments from the state only raised constitutional questions in passing, but many legal observers suspect that Texas is seeking to use this case as a vehicle to challenge the constitutionality of the Voting Rights Act. The District Court is expected to issue its decision in late August, at which time the case will be able to be appealed directly to the Supreme Court.
In a 2009 voting rights challenge that was decided on procedural grounds, not the merits, Chief Justice Roberts signaled – in fact, almost invited – a future challenge to the Act, writing for the majority that that the preclearance requirement raises “serious constitutional questions”. Professor Kermit Roosevelt, a former clerk for Associate Justice David Souter, believes the Court will take a case challenging the Act, and predicts, “I expect the Voting Rights Act to go down. The court has foreshadowed that result, and Roberts seems to want it.” Should the Court decide to take one or more of these cases, the coming term could see the fundamental right to vote – the right “without which all others are meaningless” – significantly rolled back for the first time in 47 years.
Swimming upstream: the execution of Marvin Wilson
To contact us Click HERE
Guest post by Professor Lee Kovarsky
This past Tuesday, Texas executed my client of 6.5 years, Marvin Wilson. Marvin had mental retardation (“MR”). When I talked to Marvin three hours before Texas administered a lethal dose of pentobarbital, I tried to keep the conversation light. Inmates facing execution get a last meal; I asked Marvin what he was going to eat. He said, “Mr. Lee” (Marvin has never been able to pronounce or spell my last name), “I got me some good food but I told ‘em not to make it too nice ‘cause the Supreme Court might give me that stay you been askin’ for.”
That response broke my heart. I knew that Marvin’s request for an eleventh-hour stay would almost certainly fail. The issue was not that Marvin lacked a good case for a stay; it was that the Supreme Court almost never intervenes to stop Texas from executing inmates in Marvin’s situation. In capital crisis litigation, inmates swim against a punishing upstream current. That current is strongest where Texas imposes a death penalty, the United States Court of Appeals for the Fifth Circuit reviews it, and the currently-composed Supreme Court makes a last minute decision about whether to halt the state machinery of death.
The problem starts with Texas, and ends with federal abstention that many people find incomprehensible. Marvin’s case was, in all respects, a textbook example of how a dreadful Texas execution concludes with the ritualized drama and media coverage anticipating Supreme Court intervention that almost never materializes. I want to try to explain why.
Atkins and the Eighth Amendment exemption
The victim, a police informant, was murdered in 1992. In 1998, Texas convicted Marvin of murdering the victim because the victim had provided the police with information leading to Marvin’s narcotics arrest. Marvin and his co-defendant bumped into the victim at a convenience store, an altercation ensued, the two defendants forced the victim into a car, and the victim’s body was found the next day. The only evidence that Marvin was the shooter was the testimony of the co-defendant’s wife, stating that Marvin confessed his role to her, telling her not to “be mad” at her husband. Her husband got a life sentence; Marvin was sentenced to die.
In 2002, the Supreme Court decided Atkins v. Virginia, which announced a categorical Eighth Amendment exemption from capital punishment for offenders with MR. Atkins used a definition of MR from the leading standard-setting bodies, but delegated to the states the particulars of enforcing the Court’s categorical mandate. Atkins stated that the exemption not only reflected a national consensus that offenders with MR were less culpable, but also the concern that, because of their cognitive limitations, they were particularly vulnerable to wrongfully-imposed capital sentences. Offenders with MR don’t communicate well with their lawyers, they reject plea bargains that they should accept, they disproportionately take the fall for more-sophisticated accomplices, they don’t learn from their mistakes, they make terrible witnesses, and they are usually unable to express remorse in the terms necessary to avoid a capital sentence.
Swimming against the current
In the years following Atkins, almost every state legislature passed a statute defining MR. Not Texas. In 2004, the Texas Court of Criminal Appeals (“TCCA”—basically, the state criminal supreme court) stepped into the breach. In judicially defining MR for Texas Atkins litigation, it gestured at the accepted clinical definitions, but questioned the wisdom of using scientific definitions with which a majority of Texans might express disagreement. To address the gap between MR-as-defined-by-science and MR-as-defined-by-Texans, the TCCA devised seven “Briseño factors,” named after the TCCA case announcing them.
The Briseño factors involve questions such as whether an offender can “lie in his own self interest” and whether a person “is coherent and rational.” I don’t want to belabor a point that this week’s coverage has exhausted, but the Briseño factors have the imprimatur of no doctor or scientist, anywhere. They are self-evidently premised on stereotypes about people with the most profound variants of MR—the decision invokes John Steinbeck’s Lennie—but they continue to metastasize, and they now dominate the Texas MR inquiry. Their elasticity allows judges to narrow the Atkins exemption so that it protects only the most severely-incapacitated offenders.
The Briseño factors allowed Texas to execute Marvin, because he had MR under any clinical standard. He got a 61 on the clinically-accepted tool for intellectual assessment, his Wechsler full-scale IQ (“FSIQ”) test. When Marvin was examined by a board-certified neuropsychologist who had evaluated thousands of patients with MR, Marvin was diagnosed, based on years and years of corroborative data, as having mild MR. Marvin failed his special ed classes for years; he read and wrote at a second-grade level; he was still sucking his thumb when he became a father; he cinched his belt so tightly that it impaired his circulation. In short, Marvin’s intellectual and adaptive functioning was not close to borderline.
I’ve read the argument that intellectual functioning was a closer issue because there were other, MR-inconsistent FSIQ tests. That’s incorrect. There was an MR-consistent FSIQ score of a 73 on a test Marvin took when he was 13; the rest of “scores” in the briefing and circulating on the Internet are scores on tests that are not FSIQ assessment instruments. Moreover, those scores corroborated MR insofar as they confirmed Marvin’s effort on the nonverbal portions of his FSIQ testing.
What did Marvin in was the Briseño test. Marvin could “lie in his own interest” because he denied his guilt, the state court said. He was “coherent and rational” because the neuropsychological evaluators said that Marvin understood that he was being asked questions and tried to answer them. He was convicted of murdering the victim after a chance encounter at a convenience store, which the state court described as a crime exhibiting “complex execution of purpose.” Marvin did not have adaptive deficits, the Texas court reasoned, because he had a wife and a child. Apparently most Texans do not believe that people with MR can have families and love people.
The federal courts, especially the Supreme Court, would avoid this result, right? No. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) is the federal “habeas corpus” statute passed in the wake of the Oklahoma City bombing. AEDPA restricts the authority of federal courts to vacate state capital sentences. AEDPA reads like a straightjacket in need of a spell check; federal courts can’t intervene to stop executions that they consider to be “merely” erroneous. Under AEDPA, the capital sentence must be “unreasonable” before a federal court can even consider vacating the penalty.
The currently-composed Supreme Court will issue a stay to halt the execution in only a small subset of those cases—cases involving a recurring legal issue that the Court wants to address. The days where one or more Justices have an appetite for mounting a sustained campaign against the death penalty seem to have passed us by. Some Justices used to dissent from orders denying Supreme Court review of capital cases on the ground that capital punishment was in all cases unconstitutional. Naturally, Justices expressing such views in mine-run cases were also Justices promoting more energetic intervention in particularly problematic executions. Like Marvin’s. There are none of those Justices left on the Court.
The phone call
Our ritualized executions end with a needle, but the legal fight usually concludes with a phone call from a dutiful clerk to a lead attorney (me), explaining that “the Court” has denied review and a stay. I sometimes make the mistake of referring to the Court as an “it” when I talk to families—rather than as a collection of “hes” and “shes.” The families find this impossible to understand; they want to know “who” is killing their son, father, uncle, or brother. But my answers can only give them “what.”
I try to explain that the state has imposed the sentence, and that a series of institutions subsequently decides whether to exercise a veto. One court is bound by statute to defer to another one, and that the Texas court had discretion to make up its own definition of MR, that the Justices don’t do “mere error correction,” and so on and so forth.
I hate this part of it; these explanations don’t make sense to normal people. The Supreme Court is a “they,” not an “it.” The Justices that comprise it are men and women who, like every other judge and jury member involved in the imposition of a capital sentence, base their decisions about what MR “is” on varied cultural, political, and personal experience.
After I told Marvin he was going to die, I told him it would not be in vain. I told him that he might not have changed the minds of “courts”, but that his story would eventually change the minds of living, breathing people—that his story would help highlight a particularly impoverished state of discourse about how we punish people like him.
Lee Kovarsky is Assistant Professor of Law at the University of Maryland Carey School of Law. Professor Kovarsky regularly represents capital prisoners during federal appellate and Supreme Court review of their sentences.
 |
| Marvin Wilson in 2006. Photo: Texas Department Of Criminal Justice / AP |
That response broke my heart. I knew that Marvin’s request for an eleventh-hour stay would almost certainly fail. The issue was not that Marvin lacked a good case for a stay; it was that the Supreme Court almost never intervenes to stop Texas from executing inmates in Marvin’s situation. In capital crisis litigation, inmates swim against a punishing upstream current. That current is strongest where Texas imposes a death penalty, the United States Court of Appeals for the Fifth Circuit reviews it, and the currently-composed Supreme Court makes a last minute decision about whether to halt the state machinery of death.
The problem starts with Texas, and ends with federal abstention that many people find incomprehensible. Marvin’s case was, in all respects, a textbook example of how a dreadful Texas execution concludes with the ritualized drama and media coverage anticipating Supreme Court intervention that almost never materializes. I want to try to explain why.
Atkins and the Eighth Amendment exemption
The victim, a police informant, was murdered in 1992. In 1998, Texas convicted Marvin of murdering the victim because the victim had provided the police with information leading to Marvin’s narcotics arrest. Marvin and his co-defendant bumped into the victim at a convenience store, an altercation ensued, the two defendants forced the victim into a car, and the victim’s body was found the next day. The only evidence that Marvin was the shooter was the testimony of the co-defendant’s wife, stating that Marvin confessed his role to her, telling her not to “be mad” at her husband. Her husband got a life sentence; Marvin was sentenced to die.
In 2002, the Supreme Court decided Atkins v. Virginia, which announced a categorical Eighth Amendment exemption from capital punishment for offenders with MR. Atkins used a definition of MR from the leading standard-setting bodies, but delegated to the states the particulars of enforcing the Court’s categorical mandate. Atkins stated that the exemption not only reflected a national consensus that offenders with MR were less culpable, but also the concern that, because of their cognitive limitations, they were particularly vulnerable to wrongfully-imposed capital sentences. Offenders with MR don’t communicate well with their lawyers, they reject plea bargains that they should accept, they disproportionately take the fall for more-sophisticated accomplices, they don’t learn from their mistakes, they make terrible witnesses, and they are usually unable to express remorse in the terms necessary to avoid a capital sentence.
Swimming against the current
In the years following Atkins, almost every state legislature passed a statute defining MR. Not Texas. In 2004, the Texas Court of Criminal Appeals (“TCCA”—basically, the state criminal supreme court) stepped into the breach. In judicially defining MR for Texas Atkins litigation, it gestured at the accepted clinical definitions, but questioned the wisdom of using scientific definitions with which a majority of Texans might express disagreement. To address the gap between MR-as-defined-by-science and MR-as-defined-by-Texans, the TCCA devised seven “Briseño factors,” named after the TCCA case announcing them.
The Briseño factors involve questions such as whether an offender can “lie in his own self interest” and whether a person “is coherent and rational.” I don’t want to belabor a point that this week’s coverage has exhausted, but the Briseño factors have the imprimatur of no doctor or scientist, anywhere. They are self-evidently premised on stereotypes about people with the most profound variants of MR—the decision invokes John Steinbeck’s Lennie—but they continue to metastasize, and they now dominate the Texas MR inquiry. Their elasticity allows judges to narrow the Atkins exemption so that it protects only the most severely-incapacitated offenders.
The Briseño factors allowed Texas to execute Marvin, because he had MR under any clinical standard. He got a 61 on the clinically-accepted tool for intellectual assessment, his Wechsler full-scale IQ (“FSIQ”) test. When Marvin was examined by a board-certified neuropsychologist who had evaluated thousands of patients with MR, Marvin was diagnosed, based on years and years of corroborative data, as having mild MR. Marvin failed his special ed classes for years; he read and wrote at a second-grade level; he was still sucking his thumb when he became a father; he cinched his belt so tightly that it impaired his circulation. In short, Marvin’s intellectual and adaptive functioning was not close to borderline.
I’ve read the argument that intellectual functioning was a closer issue because there were other, MR-inconsistent FSIQ tests. That’s incorrect. There was an MR-consistent FSIQ score of a 73 on a test Marvin took when he was 13; the rest of “scores” in the briefing and circulating on the Internet are scores on tests that are not FSIQ assessment instruments. Moreover, those scores corroborated MR insofar as they confirmed Marvin’s effort on the nonverbal portions of his FSIQ testing.
What did Marvin in was the Briseño test. Marvin could “lie in his own interest” because he denied his guilt, the state court said. He was “coherent and rational” because the neuropsychological evaluators said that Marvin understood that he was being asked questions and tried to answer them. He was convicted of murdering the victim after a chance encounter at a convenience store, which the state court described as a crime exhibiting “complex execution of purpose.” Marvin did not have adaptive deficits, the Texas court reasoned, because he had a wife and a child. Apparently most Texans do not believe that people with MR can have families and love people.
The federal courts, especially the Supreme Court, would avoid this result, right? No. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) is the federal “habeas corpus” statute passed in the wake of the Oklahoma City bombing. AEDPA restricts the authority of federal courts to vacate state capital sentences. AEDPA reads like a straightjacket in need of a spell check; federal courts can’t intervene to stop executions that they consider to be “merely” erroneous. Under AEDPA, the capital sentence must be “unreasonable” before a federal court can even consider vacating the penalty.
The currently-composed Supreme Court will issue a stay to halt the execution in only a small subset of those cases—cases involving a recurring legal issue that the Court wants to address. The days where one or more Justices have an appetite for mounting a sustained campaign against the death penalty seem to have passed us by. Some Justices used to dissent from orders denying Supreme Court review of capital cases on the ground that capital punishment was in all cases unconstitutional. Naturally, Justices expressing such views in mine-run cases were also Justices promoting more energetic intervention in particularly problematic executions. Like Marvin’s. There are none of those Justices left on the Court.
The phone call
Our ritualized executions end with a needle, but the legal fight usually concludes with a phone call from a dutiful clerk to a lead attorney (me), explaining that “the Court” has denied review and a stay. I sometimes make the mistake of referring to the Court as an “it” when I talk to families—rather than as a collection of “hes” and “shes.” The families find this impossible to understand; they want to know “who” is killing their son, father, uncle, or brother. But my answers can only give them “what.”
I try to explain that the state has imposed the sentence, and that a series of institutions subsequently decides whether to exercise a veto. One court is bound by statute to defer to another one, and that the Texas court had discretion to make up its own definition of MR, that the Justices don’t do “mere error correction,” and so on and so forth.
I hate this part of it; these explanations don’t make sense to normal people. The Supreme Court is a “they,” not an “it.” The Justices that comprise it are men and women who, like every other judge and jury member involved in the imposition of a capital sentence, base their decisions about what MR “is” on varied cultural, political, and personal experience.
After I told Marvin he was going to die, I told him it would not be in vain. I told him that he might not have changed the minds of “courts”, but that his story would eventually change the minds of living, breathing people—that his story would help highlight a particularly impoverished state of discourse about how we punish people like him.
Lee Kovarsky is Assistant Professor of Law at the University of Maryland Carey School of Law. Professor Kovarsky regularly represents capital prisoners during federal appellate and Supreme Court review of their sentences.
Kaydol:
Kayıtlar (Atom)