Holder: Let's "Modify" Miranda, Weaken It

I awoke this morning to Eric Holder's concession on ABC about "modifying" Miranda in terrorism cases. I am really unhappy that the Administration is willing to give ground on this Constitutional principle, especially when in the most recent terror case the Pathfinder Bomber, who was twice given his Miranda warnings, is being such a conversationalist with the authorities.

An attack on Miranda, a precedent that has weathered 42 turbulent years, even a concession as mild as Holder made today, is usually an offering to certain kinds of voters, voters who are afraid, who are "law and order," who are ready to sacrifice the Constitution for "safety." So I see today's remarks as a dog whistle. But I don't know why Holder is calling these particular stray dogs.

Apparently, the Attorney General had this to say:

"The [Miranda] system we have in place has proven to be effective," Holder told host Jake Tapper. "I think we also want to look and determine whether we have the necessary flexibility -- whether we have a system that deals with situations that agents now confront. ... We're now dealing with international terrorism. ... I think we have to give serious consideration to at least modifying that public-safety exception [to the Miranda protections]. And that's one of the things that I think we're going to be reaching out to Congress, to come up with a proposal that is both constitutional, but that is also relevant to our times and the threats that we now face."

So, in response to Republican screams that the Pathfinder Bomber, who parenthetically is talking and confessing his brains out as I write, shouldn't have been given Miranda warnings, the AG is agreeing. This is tough to understand. Instead of pointing out that Miranda didn't hurt anything in this case and in many others, and in fact, there is no case where giving Miranda seems to have hurt a terrorism investigation, the Attorney General is offering some red meat to the howling canines.

If you think about Miranda and terrorism, there are some obvious points that seem to have been missed. First, Miranda has been on television around the world numerous times daily since 1968, when the decision was announced. You can probably recite most of the warning from memory. We all know that it applies when someone in custody is being questioned by cops. Do we really think that after all this time terrorists, whether or not they are read the Miranda warnings from a crumpled, little yellow card, don't know they have a right to remain silent? That they've not been told that there is Miranda if you get arrested in the US? So that reading them their rights will be a revelation to them and spur them to sudden silence?

And what if you don't give warnings, what happens then? Then the police aren't allowed to use the confession in their direct case at the trial of the person who didn't get warnings. It doesn't stop them from using the evidence you give against somebody else. It doesn't stop them from trying the person they are questioning. It just stops the use of the confession. That's suppressed. Just that. And everything that they derive from that about the accused. Does that ruin the case? Maybe. Maybe not. But giving Miranda is not equivalent to finding the accused not guilty. Far from it.

Even more preposterous in today's concession is the lack of history brought to the table.

In 1968, two years after the Miranda decision, Congress passed a law that purported to overrule it. This statute, 18 U.S.C. § 3501, directed federal trial judges to admit statements of criminal defendants if they were made voluntarily, without regard to whether he had received the Miranda warnings. Under § 3501, voluntariness depended on such things as (1) the time between arrest and arraignment, (2) whether the defendant knew the crime for which he had been arrested, (3) whether he had been told that he did not have to talk to the police and that any statement could be used against him, (4) whether the defendant knew prior to questioning that he had the right to the assistance of counsel, and (5) whether he actually had the assistance of counsel during questioning. But the "presence or absence of any of" these factors "need not be conclusive on the issue of voluntariness of the confession." Because § 3501 was an act of Congress, it applied only to federal criminal proceedings and criminal proceedings in the District of Columbia.

source

And in Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held the requirement that the Miranda warning be read to federal criminal suspects, and struck down this federal statute that purported to overrule Miranda v. Arizona in a 7-2 decision written by Rehnquist with Scalia and Thomas dissenting. So, to make a long story short, a decade ago the question of whether Congress could modify or overrule Miranda was already dead letter.

Sure, that was before 9/11. Sure, the Court has changed. Sure, the original majority in Dickerson has left the Court. But there is no case in the pipeline that even tangentially approaches the issue. Because there is no such legislation. Holder's remarks aren't about a repeal or modification of Miranda by the Court. They're directed toward an eventual statute that will seek to modify Miranda.

Holder's remarks are a sop for the whining republicans. And their perceived constituencies. These remarks are directed exclusively at the extremely fearful, those who are ready to give up Constitutional rights for their perception of their safety, who might think at some future time that the administration is "soft on terrorism." That's just pitiful.

Wow! It's Growing!!

The Petition to have Attorney General Holder review all of the pending death penalty cases and to require prosecutors not to seek death in them, a step that would save about 50 lives, has grown to 231 signatures. Hurrah!

I'm leaving it up for the month of March. After that, I'll take it down and send it to the Attorney General. Wouldn't it be excellent to send 700 signatures on March 31, 2009?

To do that, I'm going to need your help. You know what to do. Please do it.

Holder Steps In To End California Federal Death Penalty Case

Well, well, well. Maybe, just maybe, somebody has been listening to all of my complaining.

Cal Law reports:

New Attorney General Eric Holder has authorized a deal that could abruptly end a rare San Francisco death penalty trial only days after it began.

Not only does Holder's reversal likely spare defendant Emile Fort his life, but it may signal a less aggressive approach to the death penalty in federal court. And it vindicates the local U.S. attorney's office: Months ago federal prosecutors in San Francisco had recommended a 40-year plea bargain for Fort to their higher-ups in Washington — only to be rebuffed by Holder's predecessor, Michael Mukasey.

The jury heard opening statements Wednesday in the case against Fort, an alleged member of San Francisco's Down Below Gang who's accused of three murders. Yet when defense lawyers arrived in Northern District Judge William Alsup's court Friday morning — expecting another day of witness testimony — federal prosecutors announced their decision to deal, said Michael Thorman, one of Fort's attorneys.

Alsup dismissed the jury and scheduled a special hearing for today. The defendant had the weekend to decide whether he wants to plead out, and Thorman anticipated that he would.

There you go. No more Washington directed death penalty trial. Fort can plead to 41 years (40 plus no credit for 16 months in state custody), which, needless to say, is a huge and probably entirely appropriate sentence. And the federal death penalty is off the table. Just like that.

I'm applauding. This is definitely a step in the right direction. It's a step toward abolition.

h/t to Sam Pratt

Obama Dishes Up A Cup Of Same Old Same Old

What a colossal disappointment. Remember when Barack Obama was going to severely curtail the use of the "state secrets" doctrine, throw the windows open, and let the sun shine in, dispersing Bushco's unnecessary secrecy? Forget about it. That was just eyewash.

Yesterday in the United States Court of Appeals for the Ninth Circuit the Obama Justice Department astonished the three judge panel by sticking with Bushco's "state secrets" argument in the case of Binyam Mohamed. The New York Times reports:

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations. ... snip

...a government lawyer, Douglas N. Letter, made the same state-secrets argument [as Bushco made] on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

There you go. This is "thoroughly vetted." These are "authorized positions." It's the same old. It's not exactly change you can believe in, at least not in this case.

Said a spokesperson for the Obama Justice Department:

A Justice Department spokesman, Matt Miller, ... seemed to suggest that Mr. Obama would invoke the privilege more sparingly than its predecessor.

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

“The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” he said. “It is vital that we protect information that, if released, could jeopardize national security.”

That review, folks, isn't worth a cup of warm spit. Evidently, it doesn't matter that the court papers

describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, “he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death.”

Evidently it doesn't matter that everybody in the world already has access to virtually everything about Binyam Mohamed's illegal extradition, torture, and continuous confinement. Pointing out how widely reported Binyam Mohamed's case has been, Ben Wizner, a lawyer for the A.C.L.U., told the judges that what the government was trying to keep secret by asserting the "state secrets" doctrine isn't secret at all. The details of the administration’s "extraordinary rendition program" (read: illegal extraditions) have already been told, as have how those facts applied directly to the plaintiffs. “The only place in the world where these claims can’t be discussed,” Mr. Wizner said, “is in this courtroom.”

Maybe the moderate/liberal panel of the Ninth Circuit that heard this case will overturn it. I hope so. But my disappointment at the position taken by the Obama Justice Department leaves me shaking my head in sorrow. This isn't change we can believe it. It's not old wine in new bottles. It's just the same old same old. And it still stinks.

Saving 49, strike that, make it 51 Lives (Part 8)

This may be my final, daily essay on this topic. This is my essay for Sunday, February 8, 2009, but I'm putting it up now.

This essay is about reason number 2,781 for signing this petition and for emailing Attorney General Holder at Whitehouse.gov or askDOJ@usdoj.gov to ask the Attorney General to reconsider whether prosecutors should seek the death penalty in the pending 49 50 51 federal death penalty cases, and when he determines that these cases are not appropriate for that extremely barbaric, horrific, inhuman penalty (no cases in actuality are ever appropriate for the death penalty), to direct prosecutors not to seek the death penalty.

As you can see, something distressing happened on Friday.

Unfortunately, the November, 2008 election didn't stop Bush and his Attorneys General from making decisions about which federal cases merited the death penalty. They continued to order federal prosecutors to seek the death penalty even as they were on their way out the door. And so on Friday, February 6, 2008, we learned that the United States Attorney for Connecticut had been directed by the former Attorney General to seek the death penalty in the case of Azibo "Dreddy" Aquart and his brother, Azikiwe "Zee" Aquart, and that a notice that the death penalty would be sought was filed in Federal Court in Bridgeport. I have no idea how many other notices will now be hauled out, all asking that the death penalty be imposed in federal cases, the final barbaric legacy of a corrupt Attorney General's office.

The Connecticut Post reports:

BRIDGEPORT -- Federal prosecutors are seeking the death penalty for two brothers accused of ordering and participating in the 2005 triple murders of rival drug gang members.

Acting U.S. Attorney Nora R. Dannehy notified Senior U.S. District Judge Peter C. Dorsey that her office will be seeking the death penalty if Azibo "Dreddy" Aquart, 28, and his brother, Azikiwe "Zee" Aquart, 29, are convicted "for one or more of the intentional killings" of Tina Johnson, 43: her boyfriend, James Reid, 40; and a visiting family friend, Basil Williams, 54.

The trio was found covered with blood after being bludgeoned to death in an apartment at 215 Charles St., where the Aquarts are accused of running a crack cocaine trafficking ring.

The faces of all three victims were covered with duct tape.

The Aquart brothers were indicted this past June. They remain incarcerated.

This isn't the first time the Attorney General ordered Connecticut federal prosecutors to seek the death penalty.

In 2003, federal prosecutors tried Luke "Mega" Jones, the head of a violent drug trafficking ring based in the P.T. Barnum Housing Project, on operating a continuing criminal enterprise that engaged in murder.

It was the first federal death penalty trial in at least 50 years in Connecticut.

After hearing evidence, Senior U.S. District Judge Alan H. Nevas declined to allow the death penalty charge to go to the jury after determining one of the murders was not linked to drug trafficking. Instead Nevas imposed four life sentences and two 10-year terms on Jones.

But apparently, even though Connecticut has a state death penalty statute, in Republican Attorney General land, it's always try, try, try again. Try to spread death. Try to expand state killing. It's always dogged persistence in the service of killing.

I think those of us opposed to state killing also need to be persistent. I've tried to model persistence for the past week. I will no doubt continue in the future. In the battle to end state killing, we repeatedly need to take to heart the wisdom of the Dalai Lama:

Never give up
No matter what is going on
Never give up
Develop the heart
Too much energy in your country is spent
developing the mind instead of the heart
Develop the heart,
Be compassionate
Not just to your friends but to everyone,
be compassionate
Work for peace in your heart and in the world
Work for peace, and I say again
Never give up
No matter what is happening
No matter what is going on around you
Never give up.

And so, I ask you again, dear reader, please don't give up. Not now. Not ever.

Please ask Attorney General Holder to review each of the now 51 cases in which federal prosecutors are seeking the death penalty, and ask him to determine that the death penalty is not appropriate in these cases, that a maximum penalty of life without parole will suffice. As I've said before, that's not asking a lot.

Please join the 115 people who have signed this Petition since February 2, 2009. Please sign the petition.

Please email the Attorney General at Whitehouse.gov or askDOJ@usdoj.gov. You can use this text or make up your own 500 character text:

Please review all of the determinations made by previous administrations to seek the federal death penalty. There are 49 defendants who presently face the death penalty because of decisions made by former attorneys general. Many of these decisions overruled local US Attorneys' views, were politically motivated, and do not meet the expressed criteria of the present administration for seeking execution. Such a review can save lives and restore confidence in the justice department. Thank you.

Please do all you can to stop state killing.

Saving 49 Lives (Part 7)

For most of my life, I've been passionately opposed to state killing. I remember as a child knowing that California's gas chamber execution of Caryl Chessman was unjust. I remember hearing with horror about the federal electric chair executions of Julius and Ethel Rosenberg. And I admit that since I was 10 I have never understood how civilized people could justify state killing. From the beginning state killing has appeared to me to be barbaric and horrific. Yes, there are lots of other barbaric things in the world, you could make a long, annotated list of them, but for one reason or another, despite all of the other terrible things in the world, something about state killing deeply appalled me. And eventually, the fight to end state killing spoke to me, so I took it up. That was a long time ago.

It's probably my feelings about barbarism that are driving me today to try to save the 49 people facing the federal death penalty. I know we are better than this. I know we are not killers. I know we are more compassionate than that. I know we are more just than that. It's my feelings about barbarism that has me writing an essay every day about the same thing. That's what has me asking you over and over again to email Attorney General Eric Holder at Whitehouse.gov or at askDOJ@doj.gov. That's what has me asking you to sign a petition. In short, I'm appalled by state killing, and I want to stop it.

What's necessary now in my opinion is to ask Attorney General Eric Holder please to review all of the decisions made by his predecessors in office that directed federal prosecutors to seek the death penalty in federal cases and to determine whether he agrees with those decisions. If he does not think that the death penalty is entirely appropriate, he should withdraw authority for federal prosecutors to seek death. It's really quite simple. I'm not asking him to dismiss the indictments. I'm not asking him to drop cases. I'm not asking him to perform acts of mercy. I'm just asking him whether the United States can be satisfied asking for a maximum of life without parole and not death in these cases. That's all I'm asking for.

It's not much to ask for. Really it isn't. What, if anything, is the government giving up by not asking for death and asking instead for life without parole? In my view the government gains in stature and it gives up nothing of value. What it does give up are things it should have abandoned decades ago. In my view, by not asking for death, the government gives up some of its inhumanity, it gives up a horrific difference from other civilized nations, it abandons an old harbor for its racism, it leaves behind its most unenlightened, violent, hypocritical aspect. It emerges wiser, more powerful, more human, more compassionate, and more just. It acknowledges that humans are imperfect and that there are weapons that should not be used.

Is it my buddhism that makes me opposed to state killing? It's true that I frequently ask, "May all beings refrain from killing and prevent others from killing." It's true that I try not to swat mosquitoes. It's true that I am captivated by the story of Padmasambhava's reflexively swatting a fly, and unable to stay his hand, assuring its rebirth as a boddhisatva, as his hand crushed it. I love all of that. But I was opposed to state killing long before I was a buddhist.

Is it my being a lawyer that makes me opposed to state killing? It's true that I have handled a pro bono death penalty appeal, that it turned many of my hairs gray, that I have tried to help others defend those facing death. I am honored to have been able to do that. I am thankful that I could do that. But I was opposed to state killing before I was a lawyer.

Is it my being a writer that makes me opposed to state killing? It's true that I have written hundreds of pieces about state killing in the United States, that I consider myself an advocate for life and against state killing, that I gladly took on the project of writing daily about the federal death penalty and Attorney General Eric Holder. But I was opposed to state killing before I was a writer. Maybe these aren't the things that made me oppose state killing.

Is it my being a human being that makes me opposed to state killing?

Is it that I refuse to be desensitized by the pervasive violence in our culture and that I want to live in peace in a just and human society?

Is it more simple, is it just that I feel in my heart that it's wrong for the state ever to kill, that we don't have the right to kill, and that my heart breaks at our callousness?

And because I have these deep feelings, is it because remaining silent is just not an option for me?

Please sign the petition asking Attorney General Eric Holder to review these decisions and to spare these 49 lives. There are now 102 signatures on the petition.

Please send an email to Attorney General Eric Holder asking him to review these decisions and to spare these 49 lives at Whitehouse.gov or at askDOJ@doj.gov. I have not yet received a response to my letter.

Maybe this will help you understand how I feel:

Saving 49 Lives (Part 6)

The voice of him that cryeth in the Wilderness
Isaiah 40:3

Ut oh. Ut oh. Ut oh. I'm wondering whether my little, disorganized, spontaneous, repetitive campaign to require the new Attorney General to review the 49 pending federal death penalty cases and to decide that federal prosecutors shouldn't be seeking the death penalty in these cases, has worn out my readership, my welcome, and any remaining goodwill. That's how it is, sometimes when there's more persistence than creativity. But I soldier on, vox clamatis in deserto.

The petition now has 75 signatures, for which I am incredibly thankful. If you haven't signed it yet, please do so. It is a concrete way to ask Attorney General Holder to review all of the 49 pending federal death penalty cases and to decide that his prosecutors have no business seeking the death penalty in these cases.

And many, many people have sent Attorney General emails at Whitehouse.gov or via askDOJ@doj.gov, the Justice Department's email address, encouraging him to review these 49 cases and not to seek the death penalty in them. Again, please do so, too.

This is the sixth essay in a weeklong series. You can also read Part 1, Part 2, Part 3, Part 4, and Part 5 at docuDharma and also at GOS and right here at The Dream Antilles.

Today someone asked me an interesting question about my efforts to have Attorney General Holder review these cases. Said he, "Can the Attorney General actually review these cases and change the previous decision on whether to seek the death penalty?" The answer is, yes, and it's happened before.

Here's a National Law Journal article from December, 2004:

On Nov. 12, Nicholas Garaufis, a federal judge who sits in the Eastern District of New York (Brooklyn and Long Island), criticized Ashcroft's decision to seek the death penalty in the pending murder trial of mob boss Joseph Massino. Convicted in July of seven racketeering murders, Massino already faces a mandatory sentence of life without parole.

"Mr. Ashcroft's choice to make such a sobering and potentially life-ending decision now," Garaufis read from a prepared statement at a court hearing, "after several delays, and only after tendering his resignation to the President and announcing to the country that he no longer wishes to preside over the Department of Justice, is deeply troubling to this court."

The judge acknowledged his responsibility to accept the decision, but added that he hopes Gonzales, upon taking office, will "reach an independent assessment."

"Accordingly," Garaufis said, "at the appropriate time, I shall issue an order directing the Government to resubmit the matter to the new Attorney General for his consideration."

Four days later came the announcement that Ashcroft had rescinded an order he issued in January 2003 demanding that prosecutors seek the death penalty in the murder trial of Jairo Zapata. The earlier decision drew immediate fire because lawyers from the U.S. Attorney's Office for the Eastern District of New York had already signed a cooperation agreement with Zapata. The attorney general's action was criticized for jeopardizing future agreements.

Ultimately, Massino pleaded guilty and Garaufis sentenced him to life without parole, as required. And the Government didn't seek the death penalty against Zapata.

The point: the Attorney General has previously reviewed decisions to seek the death penalty, and has also reversed the previous decisions. Attorney General Holder clearly can reverse any of the death penalty decisions made by his three Republican predecessors.

Please ask your friends, relatives, colleagues, family members to sign the petition and to write to AG Holder. And please, if you have any ideas that will bring others to making this request to the AG, leave them in the comments.

We can save these lives. Let's do that.

Saving 49 Lives (Part 5)

Evidently, though I'm all fired up about getting the new Attorney General to review all of the pending federal death penalty cases-- there are 49 of them-- and to forbid prosecutors from seeking the death penalty, not so many others are quite as ignited as I am. I think I know why.

The petition now has 62 signatures. Many people have emailed the Attorney General at whitehouse.gov or at askDOJ@usdoj.gov to request that he review these cases. I appreciate everyone's efforts on this.

Please join me in DC, where things are somewhat "different."

Others, however, have asked me an important question. Why, they ask, am I trying to start a confrontational, net based movement when I haven't formally asked the Attorney General, who was sworn in only yesterday, to do something, and he hasn't ever said that he wouldn't do it? Do I anticipate that he wouldn't listen once he has a chance to focus to the request I'm making? Well, yeah, usually, I confess, I think he wouldn't. Maybe I'm just cynical, or lacking hope, or well, demanding. Maybe I'm used to being on the far fringe and being thrown under any on coming vehicle operated by a common carrier.

Regardless, this argument for calm and reason made a certain kind of deflating sense to me. What if, I wonder, the AG actually did adopt my request? That would be remarkable, stunning, delightful. So why not give it a try? Why not see whether the new administration is listening?

So, I have decided to adopt a brand new, albeit far less fun strategy for today. For today only.

Today I am temporarily suspending my many efforts to start a wide ranging, internet based, popular movement to make demands of the Attorney General. Instead, I am only posting this diary and I am sending the following thoughtful letter to the new Attorney General:

February 5, 2009

The Honorable Eric Holder
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Re: Federal Death Penalty Cases

Your Honor:
I am a criminal defense attorney who has practiced in the state and federal courts for more than thirty years. I am writing to request that you review all of the prior Attorneys Generals’ decisions directing federal prosecutors to seek the death penalty, and that you withdraw permission for seeking the death penalty in all of the appropriate cases.

As I’m sure you are aware, under Attorney General John Ashcroft, the decision to seek the death penalty for federal crimes was “federalized.” United States Attorneys were no longer permitted to decide this question; the decision was made to broaden both the number of cases and geographical area in which death was sought. That regrettable policy, which was continued by Alberto Gonzalez and Michael Mukasey, has resulted in approximately 49 individuals presently facing the federal death penalty.

Previously, in response to requests by federal judges or prosecutors, the Attorney General has reviewed and reconsidered his decision to seek the death penalty. Those requests have sometimes resulted in withdrawal of the request for death.

In light of your previous, reported statements and the reported statements of President Obama, I doubt that the criteria previously used to determine that the death penalty should be sought, continue to have vitality. Accordingly, I am requesting that you now review these determinations, and if they do not meet the currently applicable standards to seek the death penalty, that you direct the United States Attorneys to withdraw their demand for the death penalty in these cases.

Thank you very much for your attention to this matter.

Sincerely,
davidseth

That will be my only activity on this issue other than this diary for Thursday. I will act like a responsible adult. For today. I make no promises about tomorrow. Or the next day.

I am, of course, inviting you, dear reader, to send a similar letter.

If after a reasonable amount of time the request in this letter has not been granted, i.e. by Friday morning at 11 am ET, I will again consider my other alternatives and I will again start beating the pots and pans. And writing essays. And sending emails and creating petitions. And stirring things up.

But for now, for today only, I have decided temporarily to pause and to wait and to see whether the current administration's promises of responsiveness will result in a favorable response to my request.

Will it? What do you think??

I should add this. This is what I call wonderful, beautiful help in reaching out to our fellow net citizens and to the new Attorney General. I am so delighted to see this. And, of course, you know that you can do the same thing. I know you can do it!!

Saving 49 Lives (Part 4)

I woke up Sunday thinking that Attorney General Eric Holder could save the lives of the 49 people who are presently facing the federal death penalty. He could save their lives simply by reviewing the determinations made by the Bush Administration AG's directing that federal prosecutors should seek death in these cases, and he could decide that death wasn't an appropriate maximum penalty in these cases. He could decide, for example, that life without parole was enough. More than enough. And this simple decision could save someone's life. This simple decision could also put the United States in the main stream of civilized countries in the world that do not impose the death penalty. Ever. And it could prevent us in the United States from having even more unjustifiable blood on our hands. And it would move us slowly, gradually toward ultimate abolition of the death penalty in the United States. What a great idea!

I made a small miscalculation, however. I initially thought that this was such a splendid idea, it's reasoning was so clear and so compelling that I'd post just a few items on the Internet, and send a few hundred emails, and then, poof! through the magic of the Internet there would arise a movement akin to the Alice's Restaurant Masscre, and wham! the Attorney General would get the message and Pow! 49 lives would be instantly saved. And best of all, I'd receive an email from Attorney General Holder saying, "Davidseth, Basta ya! Enough already! I will review all these cases. Thanks for the reminder." That would have been so very wonderful.

This, however, has not yet happened. There are still 49 people facing the federal death penalty, I have no email, and no review has been promised. By anyone. What was required, I was reminded by smart friends, my own experience, the ghosts of Saul Alinsky and IF Stone and Martin Luther King, was dogged persistence. So I decided to be dogged, to write an essay on the topic every day. Every day until I give up or something good happens. And I decided I wouldn't write about anything else for a while. I'd devote my daily time and essay allocation to only this one topic. I figured I have enough material for the first week. I don't mind repeating myself. This is, after all, Wednesday's essay. After that, who knows.

I'm reminded that the Argentinian writer Cesar Aira likes to write himself into corners from which he deftly extricates himself. I'd like to write an essay about that and how clever he is, but alas, I can't right now. I'm staying on topic, and the topic is the 49 people facing the federal death penalty and how to spare them. I realize that there are risks to this kind of persistence: boredom and ridicule. I will try not to deserve either.

What exactly do I want you to do? I want you to request that Attorney General Holder review each of these 49 cases. This is not very much to ask for. But it is, nevertheless, what needs to be done. I want you, dear reader, to take at least two very immediate, simple action steps:

First, I would like you to send a 500 character email to the White House to request that the Attorney General review the 49 cases in which the federal death penalty is presently being sought. Here is a suggested text (497 characters):

Please review all of the determinations made by previous administrations to seek the federal death penalty. There are 49 defendants who presently face the death penalty because of decisions made by former attorneys general. Many of these decisions overruled local US Attorneys' views, were politically motivated, and do not meet the expressed criteria of the present administration for seeking execution. Such a review can save lives and restore confidence in the justice department. Thank you.

You can of course edit and revise it and make it your own.

Second, I would like you to sign a petition asking Attorney General Holder to review these 49 federal death penalty cases and to tell federal prosecutors to withdraw their intention to seek the death penalty.

Which brings me to the further steps. The further steps have to be invented. They don't exist yet.

Please help me out with this.

You know how to use the Internet to spread this idea far and wide. Please do that. Please request that people write to the Attorney General and sign the Petition.

Please volunteer and spontaneously write an essay about this topic at your own blog or your favorite group blog.

Please think of other, creative steps that we can take so that the Attorney General will hear this request to review these cases and will act on it. And write those creative ideas in the comments.

Saving 49 Lives (Part 3)

There are 49 people presently facing the federal death penalty. If we wanted to, we might be able to spare them. We might be able to get the new Attorney General, Eric Holder, to review the decisions by the three Bush Administration Attorney Generals to pursue the death penalty in these cases, and if the new Attorney General thought, if there were convictions, that the defendants shouldn't be killed, he could require prosecutors not to seek the death penalty, to be satisfied with a maximum sentence of life without parole. This would be a remarkable development. It would save lives. The United States would join the civilized world that has stopped state killing. The essential hypocrisy of an eye for an eye would be abandoned. It would be a new era. We would not have these people's blood on our hands.

In general, the 49 people facing the federal death penalty aren't very nice people. They've been charged with horrible crimes. Many have previously been convicted of horrible crimes. Many of them really should be confined so that they will not kill and maim again. But the issue before the new Attorney General isn't whether to invite these people to a Georgetown dinner party. It's whether, once a jury has convicted them of terrible crimes, to ask that the jury vote to kill them. That is a step in the criminal process that can easily be foregone. Life without parole is a horrible sentence. And it is enough. It is enough in every single case.

So, I have been writing about the 49 lives and what it will take to save them. On Sunday, I wrote an essay which began with a discussion of how the three Bush Administration Attorney Generals had broken previous tradition and had decided that they, and not the local US Attorney in a district, should decide whether the death penalty should be sought in federal cases. I wrote that the new Attorney General should review each of these cases and should apply new criteria, his own criteria, to determine whether it was appropriate to continue to seek the death penalty in each of the cases. This made sense to me. I posted the essay here, at dailyKos, at Wild Wild Left, at Never In Our Names, and at my beloved The Dream Antilles. That it received little response didn't matter to me: it was Superbowl Sunday, and, after all, it was an essay about the death penalty. Most death penalty essays quickly degenerate into brawls in which some people, even on supposedly progressive blogs, argue that they're ok with the death penalty and that we should make it work better, to keep it from making the kinds of mistakes that have now caused the exoneration of more than 130 people who were sentenced to death.

The essays all scrolled off. The response was minimal. When I awoke on Monday, I thought I needed to keep this idea alive. So, instead of doing other, pressing things, I wrote an essay about the same topic, saving the lives of the 49 people facing federal death penalty prosecutions. I explained that I wanted readers to email the new Attorney General, Eric Holder, who was expected to be confirmed on Monday evening, and to request that he review all of the 49 pending federal death penalty cases and that he withdraw permission to seek the death penalty when the cases did not meet his criteria. I provided a link so that readers could send their own message to the White House, or the 500 character message I proposed to ask for this. I again posted the essay here, at dailyKos, at Wild Wild Left, at Never In Our Names, and at The Dream Antilles. I also sent the essay along to blogs dealing with criminal justice and to blogs dealing with criminal defense. I also sent the essay along to mailing lists dealing with death penalty abolition and death penalty defense. That this second essay received little response didn't matter to me: it takes a lot, an awful lot to get folks motivated to do anything about those who might be facing the death penalty. OPOL and NPK and others offered encouragement. I agreed to be persistent. I agreed to continue to raise the issue. But the second essay, also, scrolled off. And then there was again cavernous silence. And the 49 people were still facing the death penalty, and nobody in Washington was calling me to say that these cases would be reviewed.

Very well. I decided I needed to write a third essay, this one. I decided that I needed go through the whole drill yet again, but first, I decided that I would start an online petition asking Attorney General Holder to review all of the pending federal death penalty cases and to direct federal prosecutors not to pursue the death penalty if the cases didn't meet his criteria. I would tell you, dear friends, about this first. Tomorrow, when I can post again at the other blogs, I will edit this and post this there.

Why did I create and post an online petition? Generally, I dislike online petitions. I don't think they do very much. But I created this petition because I want to find ways of helping people to tell the Attorney General that it is important to us, that we want him to review the 49 pending death penalty cases, that we want him to save these lives. And also, it's important for us to have something that we can circulate across the wide and boundless Internet so that others can learn about this issue and can say, "Yes," I want the Attorney General to review these cases and cancel the prosecutors' authority to ask for death in each of them. The petition is an easy to use tool to spread the word.

I also created the online petition because I see that quickly, very quickly I am going to run out of material for essays on this topic. I think I have enough material for an essay every day this week. After that, I am afraid that I might start repeating myself even more egregiously than I am now. So be it. If I cannot write about anything else for the next month except getting Attorney General Holder to review these cases, so be it. Which brings me to you.

Please help me out with this.

Please post this essay or a link to it in your blogs. Please send this essay or a link to it to your friends, to your email lists and to other blogs that might post it. Please sign the petition. And when you sign, please send the petition to others who will in turn pass it along. Please send an email to the White House.

I realize how very odd all this is. I find it exceedingly strange to think that by having a lot of people send emails to the White House or sign a petition I have written or forward essays about this topic, that critical mass will be achieved and then the Attorney General will listen to the request and review the cases. I'm not used to having power listen to common voices like ours. So in many ways, this is a living experiment about democracy. In a democracy, our voices will be acknowledged.

This is a most idealistic, most hopeful thought. I don't know whether it will happen, but my intention is to keep banging away on this until it has a chance. I ask only that you join me in this effort in whatever ways you think are appropriate. It's not often that so many lives can be saved with what amounts to so little effort. And it's not often that we get to test our love of justice and our belief in democracy in such a practical way.

Saving 49 Lives (Part 2), The First Action

Yesterday I wrote about the 49 people facing the death penalty in the federal courts, and that these were lives we could save. This essay continues that discussion.

The Bush Justice Department went far, far off the tracks on torture, rendition, black sites, wiretapping, the federal death penalty, and on and on and on. It went so far afield that articles about this evening's expected confirmation of Eric Holder as Attorney General note the gigantic changes expected at DoJ from the new, Obama Administration. The NY Times, for example, writes:

The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.

“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department.

The article also enumerates several of the important, pending cases in which AG Holder's DoJ has to make immediate decisions about the scope of habeas corpus and the state secret defense, among other topics, and anticipated changes in the Civil Rights Division.

Missing entirely from the article is mention of the 49 people presently facing federal death sentences. Have they been forgotten? Is the present administration going to permit their trials to go ahead and, if they are convicted, allow them to be executed? Are these 49 lives so unimportant that they don't require any attention? Shouldn't the administration revisit the Bush AGs' decisions that these cases were somehow appropriate ones in which to seek the death penalty?

Yesterday I wrote that we should be asking Attorney General Holder to review all of the previous administration's decisions to seek the death penalty in these cases. I pointed out that imo many of the federal death cases were selected for the political purpose of "federalizing" the death penalty, and not because of any specific non-political reason. I didn't request any specific action.

Today, I'm asking you, dear reader, to send an email via whitehouse.gov asking that the Attorney General review each of the pending federal death penalty designated cases to determine whether the death penalty is appropriate. The consequence of this, I hope, will eventually be a de novo review of each of the cases, the recognition that the United States, like the overwhelming majority of other nations in the world, can do very well with a maximum sentence, should there be a conviction, of life without parole, and that in light of this and other circumstances, seeking the federal death penalty is inappropriate. This review may actually save lives.

Please send an email to AG holder at whitehouse.gov. Your message has to be limited to 500 characters. Here's some help (497 characters):

Please review all of the determinations made by previous administrations to seek the federal death penalty. There are 49 defendants who presently face the death penalty because of decisions made by former attorneys general. Many of these decisions overruled local US Attorneys' views, were politically motivated, and do not meet the expressed criteria of the present administration for seeking execution. Such a review can save lives and restore confidence in the justice department. Thank you.

Please join me. Please send an email.

Remembering The Federal Death Penalty, Saving 49 Lives

It might be easy to forget the Federal Death Penalty. We might not want to think about it. It wasn't an issue in the past election. For eight years the Bush DoJ used its muscle to expand federal use of capital punishment by overruling local United States Attorneys' decisions not to seek death. Those political decisions to seek death are still very much in effect: the US government continues in court to seek the death penalty in all of those cases.

As the new Attorney General arrives in Washington, it's vitally important that the new DoJ immediately remember to re-evaluate all of the federal cases in which the death penalty is presently being sought. And it's important that if these cases do not meet their professed higher standards for imposition of the death penalty (this is an oxymoron, standards that allow state killing cannot be high), authorization to seek the death penalty be withdrawn. This may save 49 lives and prevent state killings from being carried out in our names.

Remember John Ashcroft? He who left the AG's office at the end of 2004? He who wanted to "federalize the death penalty?" Ashcroft's plan was that the Attorney General in Washington and not the local United States Attorneys, who would prosecute the crime and were located where the crime was alleged to have been committed, should decide which cases were appropriate for the federal death penalty. It wasn't right, the argument went, that in some places the death penalty was eschewed. So the feds would seek to have it imposed in federal courts in places like Michigan, Vermont, New York, places where the states had no death penalty. Then, the argument went, the death penalty would be more uniform. It wouldn't be an event occurring solely in the Southern Death Belt. That was supposed to be a good idea.

Ashcroft was succeeded by Alberto Gonzalez. He who wrote grotesquely inadequate memos to W about Texas death penalty commutation requests. He of the poor memory. He of the politicization of DoJ. He who explained so very little. Gonzalez, of course, continued to make decisions about which cases the feds would pursue the death penalty, and in which they wouldn't. And so did his successor, Michael Mukasey.

In response to questions from Senator Feingold, in June, 2007, DoJ laid out the entire history and all the numbers since 2001 here (pdf). In sum, there's a procedure for deciding what cases are death eligible. The procedure is basically a series of recommendations from lower to higher prosecution officials, but ultimately, the AG decides what should occur. That decision cannot be reviewed. How he makes the decision is never revealed. It's essentially a secret. And the criteria by which this decision is ultimately made have not been explicitly stated. If you're a judge or a defense lawyer or a prosecutor, you can ask that this incredibly important decision be reconsidered. And sometimes it is. But in general, the buck stops with the AG, who then acts like the Sphinx.

According to the Death Penalty Information Center, there are now 51 prisoners on federal death row in Terra Haute, Indiana. According to CapDefNet 23 federal death penalty cases are now on or awaiting trial, 5 are awaiting re-trial or re-sentencing after appeal, and 21 cases are now on appeal or seeking post conviction relief. In other words, 49 people have pending federal death penalty cases in which the Bush DoJ's decision to seek the death penalty, the decision made by Ashcroft, Gonzalez or Mukasey, makes the defendant eligible for execution.

These cases should all be immediately re-evaluated by Eric Holder and the Obama DoJ to determine whether they remain death penalty eligible. 49 lives stand in the balance.

There's no reason to believe that the criteria the DoJ initially applied in deciding to seek the death penalty in these cases, particularly the obviously political one of "federalizing" the death penalty, would meet the criteria Holder and/or Obama might require in these cases.

It is not clear what the present criteria for death eligibility might be or how they would be applied. Holder, for example, has said that he personally opposes the death penalty but has pursued it as a prosecutor and he told Congress it should "feel very assured that ... those statutes that have death penalty provisions will be fully enforced by me." And "Obama wrote in his recent memoir that he thinks the death penalty "does little to deter crime." But he supports capital punishment in cases "so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment." I have no idea how these subjective measures might be calibrated and applied to the pending cases.

I am personally opposed to state killing in all cases. If it were up to me, I would withdraw death penalty eligibility in all of the pending cases, and I would instruct prosecutors never to seek the death penalty. I know the present administration doesn't agree with me about this. Fine. There is nevertheless the possibility of saving 49 lives. This does not mean releasing people who should be imprisoned. It means choosing a penalty, if they are convicted, that includes life without parole but not death.

This is not a small difference. It's a step toward ending the barbarity of state killing. It's a step toward joining virtually all of the rest of the world by ending state killing. Please join me in urging the administration to review all of the pending death eligibile cases and to withdraw the request for the death penalty in each of them.