Pennsylvania should follow in New Jersey’s footsteps

Anyone still seeking a definitive blow-by-blow list of reasons to understand why Pennsylvania’s death penalty must be overturned, read yesterday’s editorial in the Philadelphia Inquirer. The piece urges Pennsylvania to follow the lead of our enlightened brethren in New Jersey, who abolished the death penalty last year.

The editorial is about Nick Yarris, who spent 22 years on death row in Pennsylvania for the rape and murder of a Delaware County woman. Yarris would have died in prison if not for a DNA test that showed he wasn’t the rapist or killer.

The editorial outlines the flaws with the death penalty and the judicial system that carries it out. But it saves its most important point for the end.

…there are countless people rotting in prisons across the country who are innocent but can’t mount a credible claim because the evidence no longer exists.

DNA testing has been around only since 1988. The test helps in only a tiny fraction of crimes – mainly those involving rape – where DNA evidence exists.

Those wrongly convicted of a robbery or a shooting where there isn’t DNA have a slim-to-none chance of overturning the verdict.

A review of scores of cases where a person was found to be wrongly convicted shows that the leading cause by far is eyewitness misidentification.

False confessions, government misconduct, lying snitches, and poor legal representation can all lead to a wrongful conviction.

All of those factors appear to have played a role in Yarris’ case. Getting his verdict overturned was an uphill battle akin to winning the Powerball.

At one point, after contracting hepatitis C in prison and wanting to avoid dying from the painful disease, Yarris asked a judge to expedite his execution.

But after spending more than 8,000 days behind bars, Yarris narrowly escaped having the governor of Pennsylvania sign a death warrant for a crime it now appears he didn’t commit.

That alone is enough to end the death penalty.

Lauri in York

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The prison at Guantanamo Bay: Our national disgrace

Maybe I haven’t yet had enough coffee this morning. Maybe I’m just tired. But as I’m reading the newspapers today, I’m feeling … a bit emotional. I feel as if I might…get a little misty. Not in a blubbery sort of way. No woman should ever do that! But I feel as if I might shed a few tears.

Six years ago today, the first shackled prisoners captured on the fields of Afghanistan were shuffled to Guantanamo. ACLU executive director Anthony Romero has some powerful words on the subject in today’s

Make no mistake: There were, and are, innocent people imprisoned at Guantánamo. Brig. Gen. Jay Hood, who was Guantánamo’s commander for several years, candidly acknowledged in the Wall Street Journal: “Sometimes, we just didn’t get the right folks.” And we now know that only a small percentage of the many hundreds of men and boys who have been held at Guantánamo were captured on a battlefield fighting against Americans; far more were sold into captivity by tribal warlords for substantial bounties.

But the appalling fact that innocent men have been imprisoned and abused at Guantánamo is not the only reason why its closure is of such urgent importance. The most profound and enduring stain of Guantánamo is its corrosive effect on America’s reputation and standing, and on respect for the rule of law worldwide.

Now, I know I can’t cry without coming across as either a weak and ineffective writer or a cold calculated ice queen merely using the topic of tears as a writing device to segue into different topics.

But if Gitmo’s ongoing human rights’ atrocity isn’t moving enough, perhaps you men can weep in frustration at this article in today’s Washington Post. (Us women will just stuff down our emotions by eating cookies.)

As you know, our government believes it is of vital importance to this nation’s safety to turn our telecommunications industry into a vast, and outside the law, spy agency. But what apparently the government finds less vital to the war on terror is paying its phone bills on time. So the companies sometimes have to cut off these vital wire taps.

A report by the Justice Department Inspector General found that “late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance results to the FBI, resulting in lost evidence.”

Lauri in York

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"Freedom from torture is a fundamental right"

Update II

This is one of those days that reminds me why I work for the American Civil Liberties Union.

In a rebuke of an overreaching executive branch, Judge Thomas Vanaskie of the federal Middle District of Pennsylvania ruled that Sameh Khouzam has “a fundamental right” to be free of torture and that Sameh must be released immediately from York County Prison. In short, Sameh escaped religious persecution and torture in his home country of Egypt and, after years in U.S. jails, won protection under the Convention Against Torture, only to be detained in May and threatened with deportation. The Bush Administration claimed it had “diplomatic assurances” from the Egyptian government that Sameh would not be tortured.

We’ll soon have an official statement. For more information on the case, visit our website.

So much for my plan to post on the oral arguments in the voter ID and lethal injection cases.

Update, 6:10pm EST: Our press release is available here, and the judge’s decision is available here (PDF).

Update, 6:20pm, EST: Judge Vanaskie has granted the government’s request for a five day stay of Sameh’s release so that DHS can appeal the release decision to the 3rd Circuit Court of Appeals. The government is also appealing the entire ruling. Sameh won’t be released today. Let’s hope he sees freedom next week.

Andy in Harrisburg

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Capital punishment: Walking the longest walk

The death penalty is all over the place this week. Yesterday SCOTUS heard oral arguments in a Kentucky case (two cases, actually) in which the petitioners argue that the three-drug cocktail used for lethal injection is cruel and unusual punishment. I’m going to get into this a bit more on Thursday. (I know, I know, you’re on the edge of your seat waiting for that.)

Meanwhile, locally, Allentown Morning Call columnist Paul Carpenter has been all over the map this week with two columns that address crime and the ultimate punishment.

On Sunday, Carpenter argued that because PA’s three strikes law could sentence someone who steals cookies to life without parole, then first degree homicide has to be something harsher than LWOP. Enter stage left the death penalty.

(Death penalty opponents) say life in prison is a more appropriate penalty. This is at a time when some nonviolent or minor crimes carry, in essence, that same penalty. Homeless hobo Kevin Weber got up to life for stealing chocolate chip cookies, under the provisions of California’s crazy 1994 ”three-strikes” law, which served as the model for Pennsylvania’s three-strikes law a year later.

We tell the Gary Heidniks of our state’s post-1999 society that sadistic and lethal crimes have about the same sanctions as cookie theft or having pot.

No wonder they run amok.

In his zeal for death, Carpenter completely brushes aside the absurdity of sending a homeless man to prison for life for stealing cookies. When it comes to crime and punishment, common sense is too often tossed out the window.

By 2012, Pennsylvania will build three new state prisons at a cost of $200-$300 million each and $50 million annually to maintain. According to one state senator, the Department of Corrections estimates we will need to build a prison per year for the foreseeable future to keep up with the increase in the state prison population. Meanwhile, we’re sending a homeless man to prison for life for stealing cookies. This is madness.

Two days later, Carpenter returned to acknowledge misinformation in his Jan 6 column. We do not sentence 3200 people per year nationwide to death. That’s the total nationwide death row population. In fact, last year 110 people were sentenced to death, the lowest total since SCOTUS reinstated the DP in 1976.

Meanwhile, at Huffington Post, John Holdridge and Cassandra Stubbs of the ACLU’s Capital Punishment Project deftly swept aside the folly of the argument that capital punishment is a deterrent to homicide.

Imagine the moments leading up to a murder. Are we to believe a person about to commit a homicide would consider whether or not his state has a death penalty as opposed to just life imprisonment without the possibility of release? Common sense suggests that lucid, rational calculations about capital punishment statutes are not among the things that would cross the mind of a would-be murderer.

But the best piece I’ve seen this week is in Time magazine. David von Drehle has Death Penalty Walking:

In a perfect world, perhaps, the government wouldn’t wait 30 years and several hundred executions to determine whether an execution method makes sense. But the world of capital punishment has never been that sort of place. This weighty moral issue, expressive of some of our society’s deeply held values, involves a lot of winging it. In 1990, for instance, a sponge used in the headpiece of Florida’s electric chair wore out. There’s no factory or parts catalog for execution devices, so the prison sent a guy to pick up a sponge at the store. Problem was, he bought a synthetic sponge instead of a genuine sea sponge, and when Jesse Tafero was strapped in, his head caught fire. Florida officials diagnosed the problem afterward by testing a similar sponge in a toaster.

In comparison, lethal injection sounds more scientific–almost therapeutic–but its history is as improvised as that supermarket sponge. In 1977 an Oklahoma lawmaker sketched the protocol on a notepad with the help of a medical examiner. More research has gone into the proper way to brush your teeth. But the idea caught on, and now, years later, more than half the states have adopted some version of the Oklahoma cocktail. Judges in courts across the country are scratching their head over the odd concoction, and the Supreme Court has effectively halted all executions to untangle a mess of belated questions: How much risk of torture is too much? How many safeguards are necessary? What makes a punishment cruel and unusual?

Decades of well-intentioned brainstorms like this one–legal, medical, procedural, political–have accumulated into one thoroughly screwed-up system. Any other government program that delivered 3% of what it promised–while costing millions of dollars more than the alternative–would be a scandal, but the death penalty is different. In its ambiguity, complexity and excess, the system expresses a lot about who we are as a nation. We’re of mixed minds, and most of us would rather not spend a lot of time thinking about killing. A majority of Americans support the idea of capital punishment–although fewer are for it if given a choice of life without parole. At the same time, a substantial number in a recent poll said they could not serve on a death-penalty jury.

Andy in Harrisburg

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Revise the Constitution? Check. Revise History? Check.

Be afraid. Be very afraid.

There was an interesting post on Daily Kos last week about the little noticed House Resolution 888, introduced last month by Congressman Randy Forbes (R-VA).

The resolution seeks to affirm “the rich spiritual and religious history of our Nation’s founding and subsequent history and expressing support for designation of the first week in May as ‘American Religious History Week’ for the appreciation of and education on America’s history of religious faith.”

Chris Rodda, the Senior Research Director for the Military Religious Freedom Foundation, and the author of Liars For Jesus: The Religious Right’s Alternate Version of American History, writes:

While the recent House of Representatives ‘Christmas resolution’ was being covered and discussed ad nauseum on countless websites, blogs, and elsewhere, another far more heinous resolution was introduced, one which, unbelievably, does not appear to have been noticed by anyone…

Rodda continues:

The resolution, which purports to promote ‘education on America’s history of religious faith,’ is packed with the same American history lies found on the Christian nationalist websites, and in the books of pseudo-historians like David Barton. It lists a total of seventy-five “Whereas’s,” leading up to four resolves, the third of which is particularly disturbing — that the U.S. House of Representatives ‘rejects, in the strongest possible terms, any effort to remove, obscure, or purposely omit such history from our Nation’s public buildings and educational resources,’ a travesty of the highest magnitude, considering that most of the ‘history’ this resolve aims to promote in our public buildings and schools IS NOT REAL!

But you don’t have to take Rodda’s word. Read the whole scary resolution for yourself.

Lauri in York

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A year to go….

I don’t know about the rest of you, but I’m basking in a warm glow of hopefulness today. The Pennsylvania primaries remain a long way off – eons in campaign time – but no matter who you support, last night’s Iowa caucus served as a reminder that George Bush won’t be president forever. (Unless of course you’re like some paranoid individuals, who believe that we are one “state of emergency” away from the suspension of elections. But really, what’s to be paranoid about?)

So as Harvey Keitel said in Pulp Fiction, “Let’s not go sucking …” OK, you remember the line. And it ain’t over yet.

Dan Froomkin reports in the Washington Post on President Bush’s top priority for 2008. (Before you read any further, close your eyes and try to guess what that is.) Yup, you got it: “Permanent expansion of government spy powers, including retroactive immunity for the telecom companies that assisted in warrantless surveillance.”

For a lame duck president, Bush certainly has lofty goals. As Froomkin says

In short, it’s a historic battle over the future of the country as a surveillance state.

There are those who question the risk inherent in the Executive Branch’s mission of expansion of powers and its ability to operate outside constitutionally established checks and balances. Those individuals should take a look at what the destroyed CIA interrogation tapes, an issue only recently revealed, meant to the 9/11 commission and the war on terrorism.

In a powerfully worded New York Times op-ed piece, the 9/11 commission’s chairman and vice chairman on Wednesday blasted the White House and the CIA for hindering their investigation.

As Thomas H. Kean and Lee H. Hamilton wrote

Our role was to investigate the history and evolution of Al Qaeda and the 9/11 plot. Beginning in June 2003, we requested all reports of intelligence information on these broad topics that had been gleaned from the interrogations of 118 named individuals, including both Abu Zubaydah and Abd al Rahim al-Nashiri, two senior Qaeda operatives, portions of whose interrogations were apparently recorded and then destroyed.

The C.I.A. gave us many reports summarizing information gained in the interrogations. But the reports raised almost as many questions as they answered. Agency officials assured us that, if we posed specific questions, they would do all they could to answer them.

The op-ed further said that White House counsel rejected their attempts to directly interview detainees and never mentioned that videotapes existed.

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.

Lauri in York

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While most of MSM snoozes, Boston Globe hits a home run

Tonight the first votes of the 2008 presidential election will be cast as Iowans caucus, minus disenfranchised members of the military, second-shift workers, and parents who can’t find a babysitter. While most of the mainstream media focuses on the horse race angle of the election- I watched Hardball last night and the only issue I can recall being discussed was Mike Huckabee’s bizarre claim that the way to respond to the assassination of Benazir Bhutto is to build a fence on the Mexican border- two weeks ago The Boston Globe published the results of a survey on executive power that the paper sent to all of the presidential candidates. (Hat tip Arianna Huffington. Glenn Greenwald also wrote extensively about the survey.) The results showed that while the ACLU has taken on the phrase “One more year, No more damage,” there could still be great damage to our system of checks-and-balances if the wrong candidate is elected.

Democrats Hillary Clinton, Barack Obama, John Edwards, Joe Biden, Bill Richardson, and Christopher Dodd and Republicans John McCain, Mitt Romney, and Ron Paul all responded to the questions. Rudy Giuliani wrote a general response but did not answer the questions.

Because the ACLU is non-partisan, you won’t see much commentary here. But the answers speak for themselves.

Issue: Warrantless Surveillance

Obama: The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.

Clinton: No. The President is not above the law.

Edwards: I strongly oppose George Bush’s illegal spying on American citizens. Surveillance that takes place within the United States should be performed with judicial oversight, as the law provides.

Richardson: No.

Dodd: Absolutely not – I have been a very vocal and early opponent of this Administration’s warrantless wiretapping program and efforts to provide retroactive immunity for the companies who participated. The choice between national security and civil liberties is a false choice. Indeed, our adherence to the rule of law enhances our international standing and leverage, and accordingly enhances our national security. I’ve made it clear that I will return from Iowa and filibuster any bill that makes it onto the Senate floor including retroactive immunity language.

Biden: No. The President is not above the law, he is bound by valid acts of Congress. Our laws state clearly that no one can wiretap Americans without a warrant. By willfully authorizing warrantless wiretaps of Americans, the President violated the law, and he should be held accountable.

McCain: There are some areas where the statutes don’t apply, such as in the surveillance of overseas communications. Where they do apply, however, I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is. … I don’t think the president has the right to disobey any law.

Romney: Intelligence and surveillance have proven to be some of the most effective national security tools we have to protect our nation. Our most basic civil liberty is the right to be kept alive and the President should not hesitate to use every legal tool at his disposal to keep America safe.

Paul: Absolutely not.

Issue: Detaining U.S. citizens without charge as unlawful enemy combatants

Obama: No. I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

Clinton: No.

Edwards: George Bush has abused our constitutional traditions in his detention policies and has created a national embarrassment at Guantanamo Bay. Judicial review ought to be restored to the process of detentions. As president, I will not detain U.S. citizens as enemy combatants without charges, and I will close Guantanamo Bay on my first day in office.

Richardson: No.

Dodd: No.

Biden: No. The Supreme Court resolved this issue in a case called “Hamdi” in 2004. An American citizen held as an enemy combatant has a constitutional right to due process to determine whether his detention is legal and is adequately based on fact.

McCain: The Supreme Court ruled in 2004 that, under the Congressional authorization of the use of force, the U.S. can hold even American citizens under the law of war if they are enemy combatants. But the Court also said that U.S. citizens must have due process to challenge their detention. And I think that is very important when it comes to American citizens.

Romney: All US citizens are entitled to due process, including at least some type of habeas corpus relief regardless whether they are designated unlawful enemy combatants or not.

Paul: No.

Issue: Torture– Can the President use an interrogation technique prohibited by Congress?

Obama: No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.

Clinton: No.

Edwards: It is hard to believe that the president and his supporters are engaged in a debate about how much torture we should have. The United States should never torture, for several reasons: because it is not the American way, because it undermines our moral authority in the world, because it places our troops at risk, and because it does not work. I strongly oppose George Bush’s possible veto of the Congressional bill prohibiting torture.

Richardson: No.

Dodd: No, and I was absolutely shocked that Attorney General Mukasey, in his testimony before the Judiciary Committee, said that in certain circumstances could thwart the law. This, and his declaration that he could not say whether or not waterboarding was in fact torture, led me to believe that he would not be the kind of nominee I could support.

Biden: No. The President must comply with all valid acts of Congress. That’s why I’ve introduced the National Security with Justice Act, unequivocally banning waterboarding and other forms of torture.

McCain: No. Article I, Section 8 gives Congress that power. Unless the president chooses to willfully violate the law and suffer the consequences, he must obey the law.

Romney: A President should decline to reveal the method and duration of interrogation techniques to be used against high value terrorists who are likely to have counter-interrogation training. This discretion should extend to declining to provide an opinion as to whether Congress may validly limit his power as to the use of a particular technique, especially given Congress’s current plans to try to do exactly that.

Paul: No.

Issue: Habeas Corpus– Agree or disagree with Alberto Gonzales that nothing in the Constitution gives a right to habeas corpus?

Obama: Disagree strongly.

Clinton: I disagree with Attorney General Gonzales. I have long believed that the right to habeas corpus offers fundamental protection against unchecked government power. It is a constitutionally guaranteed right. The Supreme Court should reaffirm this principle in the Boumediene case now pending and correct the mistake Congress made when it attempted to rescind habeas corpus through the Military Commissions Act.

Edwards: I disagree.

Richardson: This is clearly wrong. The Framers, in their declaration that habeas may be suspended only in cases of rebellion or invasion, made clear that the Constitution presumes the existence of the common law right to habeas corpus. Any other interpretation is sophistry.

Dodd: I Disagree. Article 1, Section 9 of the Constitution confers the fundamental right of habeas irrespective of Congressional actions to statutorily expand or limit the federal role relative to the states.

Biden: I disagree categorically with Mr. Gonzales. The Constitution guarantees the right of habeas corpus unless in the case of rebellion or invasion it is suspended. My National Security with Justice Act reinforces this Constitutional right by extending by statute meaningful habeas review for all Guantanamo detainees.

McCain: On that one, the Supreme Court just heard oral arguments in the Boumedienne case and it is expected to rule early next year on that question. So I will be interested in seeing how the Court rules.

Romney: The availability and limitation of habeas corpus is governed by current federal statutory law and the Suspension Clause of the US Constitution, Article I, § 9, cl. 2.

Paul: I strongly disagree with him because I think it was absurd. If we can’t deny habeas corpus it infers that you have habeas corpus. So I would strongly disagree with his whole interpretation of habeas corpus. … [As for whether that extends to non US citizens in US custody overseas]. I think that might depend upon the circumstances of declared war, and what the circumstances might be. … [In the case of Guantanamo detainees,] I would think then that we should, under those circumstances, follow the principles of habeas corpus.

The survey contained a total of 12 questions with other topics covered including international human rights treaties, the power of Congress to cap troop deployments, and how the candidates feel about other candidates who did not answer the questions. (Ron Paul had the best answer to that last one- “what are they trying to hide? Why are they embarrassed to answer the questions?”) Fascinating stuff.

Andy in Harrisburg

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Bush signs bill bolstering Freedom of Information Act

And in other news, “Seven-Year-Old Eats Broccoli“.

Yes, on Monday, President Bush quietly signed a bill to strengthen the Freedom of Information Act. The law now requires documents to be released unless to do so would cause harm, builds greater expediency to the process, and a variety of other things to make the whole process easier and more user-friendly.

Smintheus over at Daily Kos has more.

Now we’ll all wait for the Boston Globe story next week about Bush’s signing statement and his intent to completely ignore the law.

Andy in Harrisburg

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