The Fickle-Finger of SCOTUS – WABAC to the Death Penalty

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"Where is the WABAC Machine going to take us this time, Mr. Peabody?

“Where is the WABAC Machine going to take us this time, Mr. Peabody?

“Let’s go back to June 29, 1972 and watch the Judicial Branch of the United States government in action on a matter of life and death, Sherman My Boy.”


U.S. Supreme Court Rules

Death Penalty Unconstitutional


A Legal Brief

On June 29, 1972, the Supreme Court of the United States stunned the nation by ruling in Furman v. Georgia that the death penalty violated the 8th and 14th Amendments.  This decision basically outlawed capital punishment until each state that wanted to reinstate it reworked their laws and procedures to meet Supreme Court guidelines.

The law of the land…

It seems that over 200 years of previous experience had not perfected the procedure.  The court found judicial practices so arbitrary and inconsistent that a grossly uneven administration of capital punishment was the result.  So much so, that it constituted cruel and unusual punishment.

In wake of their ruling, those convicts on death row awaiting execution were given a reprieve since they had been sentenced under a system found to be unconstitutional.  Even Sirhan Sirhan, the murderer of Robert F. Kennedy, was spared.

Over the next few years, 37 states rewrote their capital punishment laws and procedures, and by 1976, those stated had re-entered the legal people-killing business.  Currently, 31 states still maintain capital punishment, although vigorous campaigns have been mounted to make all forms of execution illegal in the United States.

Greater impetus for the movement to ban capital punishment is partially the result of botched executions, where the condemned was seen by witnesses to be writhing in pain for extended lengths of time.  Drug companies have also been refusing to sell the drugs used for lethal injection to those states that use that form of capital punishment, which has created a whole new set of problems as new concoctions are being formulated to efficiently kill the condemned.

Medical and scientific advancements in DNA have brought to light that some executed criminals were innocent after all.   This sad fact together with the many non-death penalty cases that have been overturned as a result of DNA analysis have cast a dark shadow on the U.S. legal (we will not call it “justice”) system.

Accusations of prosecutorial misconduct, police misconduct and mistaken or purposely misleading testimony by “experts” have also created serious doubts about the fairness (or lack thereof) in death penalty cases.  Even people who have no moral objection to killing people convicted of heinous crimes are now troubled by the specter of all too frequent mistakes and miscarriages of justice.  In Nebraska, for example, the state legislature overrode the veto of the governor and outlawed capital punishment in that otherwise conservative state.

The Fickle-Finger of SCOTUS

– WABAC to the Death Penalty

Flawed Justice

Top Tenz from WIF

Top Tenz from WIF

Top 10 Worst Aspects of the

American Justice System

The United States has a Constitution that protects its citizens from abuse in the criminal justice system. The right to a trial, to fair treatment by law enforcement are enshrined. Importantly, the Eighth Amendment also protects those convicted from cruel and unusual punishment.

In spite of all this, the American penal system is broken in many ways. Here are ten human rights crises that are happening right now, as a result of American justice.

10. Three Strikes Laws


Three Strikes laws became popular in the mid-90s, heralded as a way to be tough on crime. The idea was to remove repeat offenders of serious crimes from society. Three strikes laws mandate minimum punishments of usually 25 years for a third “serious” offence. The first example of a 3-strikes law actually came from Texas in the 1980′s, but they were introduced at their strongest and most infamous in California in 1994. There are similar laws in 26 states.

Many examples of convictions under the law have caused them to be considered disproportionate, if not outright cruel. Stories include people given 25 to life for stealing a pair of socks, or some baby shoes. Two life sentences involve the theft of pizza — one of a single slice — though this was overturned after five years due to public outrage. A law team from Stanford began challenging many of these rulings one by one, often using what they term the “You’ve gotta be kidding me” defense. There are stories of judges and prosecutors writing to those convicted, apologizing about the excessive nature of sentences.

Campaigners were able to have the law amended in California at the end of 2012, allowing prisoners with minor, non-violent convictions to appeal their sentences. Whilst many have been freed since these rule changes, there are still fights to release others that have served lengthy sentences for minor crimes.

9. Over-Incarceration


You might have heard that the US has just 5% of the world’s population, but 25% of its prison population. The prison population increased by 700% between 1970 and 2005, compared to a 44% increase in the population as a whole. Recently, California’s prison system was operating at almost 150% capacity, with prisoners placed in increasingly small holds.

Prison overcrowding has been linked to problems with psychological health and increased prisoner violence. It also causes obvious issues for the staff. This problem doesn’t look to go anywhere anytime soon, either; federal prisons ran at 139% capacity towards the end of 2011, and this is set to increase to 145% by 2018, according to a report by the Bureau of Prisons.

8. High Recidivism


Recidivism, or reoffending, is a big issue in the United States. A study in 2006 by the bipartisan Commission on Safety and Abuse in America’s Prisons found that 52% of former prisoners were re-convicted.

Prison is popularly seen as a means of punishment and isolation from the rest of society. Unfortunately when people get out of prison, they’re back in the same position that led them to commit a crime, but with even less chance of getting a job and resuming their life. After all, who wants to hire a felon? In recent years, programs focused on greater rehabilitation have proven a success in several states.

Internationally, the lowest recidivism rate can be found in Norway. There, the justice system is much more focused on preparing people to re-enter society as useful and productive individuals, rather than punishing them for their misdeeds. Whilst many might be uncomfortable with being “soft” on criminals, Norway’s murder rate is an eighth of that in the US. The choice to be made is between an extremely thorough punishment, or improvement to society as a whole – both don’t work together.

7. Lack of Compassionate Release in Federal Prisons


Prison is not set up to care for people with serious or terminal illness. Keeping people locked up after a stroke, or in the late stages of cancer, can cause suffering that may be considered inhumane or excessive. That is the reason for compassionate release, and it is very much in the spirit of the Eighth Amendment, which forbids cruel and unusual punishment.

Yet the compassionate release system in the US, particularly in federal prisons, is shockingly poor. An April 2013 review by the Department of Justice found the Bureau of Prisons’ compassionate release program was poorly managed and inconsistent. They also concluded that a better system would save money, due to the high cost of caring for seriously ill inmates.

Grounds for release can vary from prison to prison – some will release a prisoner with 6 months to live, while some grant freedom to someone with a year left. Worse, prisonerscannot challenge the BOP’s decisions in courts, and compassionate release is rarely granted. Many die while waiting for a decision to be made.

6. Placing Children in Solitary Confinement


Solitary confinement is known to present the risk of mental illness, including depression, anxiety, and even psychosis. This risk is particularly pronounced in children. The American Academy of Child and Adolescent Psychiatry has called for a ban on solitary confinement of children in correctional facilities. They also call for any child that’s been confined alone for 24 hours or more to be evaluated by a mental health practitioner.

Human Rights Watch reports that children as young as 13 have been confined for over 22 hours per day. In their report, they quote a youth from Florida subjected to the treatment: “The only thing left to do is go crazy – just sit and talk to the walls.” This problem is particularly bad for the 90,000 youngsters held in adult prisons that are often kept apart for their own protection. Ironically, the majority of youth suicides in prisons take place amongst those kept in solitary confinement.

5. Prison Healthcare


Prisoners have significantly more risk of health problems than the general population. Infectious disease can spread in the confined environment of a jail. Addiction and mental illness are also obvious risks. Other, more surprising, statistics show that prisoners are 55% more prone to diabetes and 90% more likely to have had a heart attack than those on the outside.

The right to healthcare in prison is protected by the Eighth Amendment, and it’s big business.Illinois recently signed a $1.4 billion contract with Wexford Health Sources to provide healthcare for ten years, despite never auditing them.

Providing adequate healthcare to prisoners is not just important for them, but for the wider community. Proper care in prison reduces the burden on society when prisoners are released, and reduces the risk of disease being spread on the outside. Despite this, the number of prisoners with health complaints that don’t have access to medical care is high. One study found that 14% of federal prisoners and a fifth of state prisoners hadn’t seen a health-care provider in spite of persistent issues. Thousands of prisoners die in custody each year. Many of the deaths are preventable, caused by undiagnosed or untreated problems.

4. Sentencing Children to Life in Prison


The United States is the only country in the world that sentences children to life in prison without parole, sometimes as young as 11 years old. Often these sentences are automatic, and the circumstances of the child aren’t taken into account. Until 2005, it was even considered constitutional to execute young criminals, and 365 people under the age of 18 have been executed in US history. Today, almost 3000 people are serving life sentences for crimes committed as youths, effectively fated to die in prison.

Many groups have called for an end to these sentences, pointing out that children aren’t emotionally and physically mature enough to be held culpable in the same way as an adult. Amnesty International describes the policy as a violation of international law and standards of justice recognized around the world.

3. Prison Rape


Prison rape is almost a cliché, and normalized in popular culture, but the statistics paint a pretty horrifying picture. Whether in prison or not, rape is rape and is about as horrific a crime as can be committed, short of murder. Estimates of the number of prisoners that have been sexually victimized by fellow inmates or staff put figures at as high as one in ten. In sheer numbers, that’s over 200,000 people that have been the victims of sexual assault in prison.

Men and women are both at risk of assault. Bisexual and gay inmates, male and female, are at highest risk of being raped. In thousands of cases, the perpetrator is a member of prison staff. In one case in Alabama, a guard that impregnated an inmate received six months for “criminal sexual misconduct,” but wasn’t charged with rape. Lawyers for the woman in question believe the case wasn’t investigated properly.

2. Placing Children on Sex Offender Registers


The Human Rights Watch recently published a report that highlights the problem of children being placed on sex-offender registers. The intention of such registers — to protect children from predatory pedophiles — is good. Unfortunately, the laws behind these have proved susceptible to misuse and ineffectiveness.

Some of the crimes described in the report for which children were forced to register include a thirteen-year-old girl, convicted for willingly having sex with her twelve-year-old boyfriend and becoming pregnant. The boyfriend was also convicted and registered as a sex offender. Luckily, this was later overturned by a higher court, which pointed out “the law was not intended to apply to such cases.” Meanwhile, a fifteen-year-old girl was convicted of distributing child pornography for posting nude photographs of herself online. She was tried as an adult and required to register as a sex offender for life, despite the fact she was the sole child victim of her “crime.”

Individual injustices might almost be forgivable where a law serves a greater good, such as protecting children. But these laws often serve only to stigmatize and victimize youngsters for making decisions or performing actions which, in many cases, they are too young to understand. The HRW notes, “Several studies—including one study of a cohort that included 77 percent youth convicted of violent sex offenses—have found a recidivism rate for youth sex … are so low that they do not differ significantly from the sex crime rates found among many other (and much larger) groups of children, or even the general public”.

In general, the picture painted is that of a system that drains police and court resources, ruins the lives of children and their families indefinitely, fails those it aims to protect, and serves as a carriage for significant injustices.

1. The Death Penalty


The United States is one of only 21 countries to use the death penalty. It is the only country in the Americas to have carried out executions in 2012 (43 in total.)

There is a growing international trend towards abolition of execution. For example, only one country in Europe — Belarus — still has the death penalty on its books. That’s because there is no evidence that the death penalty works as a deterrent any more than any other type of sentence. Murder rates are lower in states without the death penalty, and have remained consistently so for over two decades.

One of the biggest arguments against the death penalty is the fact that innocent people are convicted to die. Some of them are released, but humans are fallible and there are undoubtedly innocent people that have died at the hands of the state. A bill in Florida actually seeks to speed up the execution process, despite the fact that had it been in place previously, people would now be dead that were released in light of new evidence.

Groups such as Amnesty International and Human Rights Watch have called on the US to abolish the death penalty altogether. If the United States wishes to consider itself a humane and dignified country, then it surely must.

Flawed Justice