Friday’s Filibusters

I’ll admit that I liked this essay quite a bit.  Speaking of which, LGBT history will be taught in California schools.

After the child migrant crisis in 2014, the issue of immigrant children not having adequate lawyers became a salient issue.  One of the judges at the most recent hearing regarding this issue called on Congress or the courts to make a “Gideon decision” for these children.  Seems like a good time to mention that H.R. 4646 would help with this.  Currently has 88 co-sponsors, all Democrats.

Should veterans deported for minor offenses be able to return?  Progressive champion Rep. Raul Grijalva believes so.  He has introduced a bill to help these veterans.

Veterans often come back home and don’t receive services to help them adjust back to civilian life, Grijalva said, which can lead to destructive behavior such as driving under the influence and drug use. But while any other veteran would serve a sentence for such a crime and be released, those like Barajas are deported after they have served their time.

The ACLU of San Diego has published a report about veterans being deported after completing their service.

Thursday Teddy’s

For some reason, I thought yesterday was Thursday when I put the links together.  That was embarrassing.

Professor Scott Lemieux finds the recent interview that Ruth Bader Ginsburg gave The New York Times is not as big of a deal as people think.  He writes, “and I do think there are some valid reasons to find Ginsburg comments inappropriate. But I also think that they need to be kept in perspective. Supreme Court justices have political views, and these views are reflected to lesser and greater degrees in politically salient cases, and these things remain true even if we have to merely infer how Supreme Court justices intend to vote.”  He continues:

Where I get off the bus, however, is with respect to the question of the magnitude of Ginsburg’s transgression. According to Drezner, Ginsburg “bears almost as much responsibility as Trump for the slow-motion crisis in American democracy.” This conclusion is overwrought. Ginsburg’s comments didn’t tell us anything we didn’t already know about her or about Supreme Court justices in general, they won’t change the nature of the Supreme Court as an institution, and they won’t have a meaningful causal impact on the polarization of the Court.

Read the whole thing.

Alex Pareene writes for Gawker about the return of Evan Bayh.  Pareene notes that Bayh was part of the Repubilcan hawks who were trying to sabotage the Iran deal.

It is generally accepted that Bayh-style politics are necessary if Democrats wish to win in conservative states. (Indiana, which experimented with voting for Obama in 2008, swung decisively back to the GOP in 2012, and Trump is expected to win easily.) The weird thing has always been that the actual policiesof Bayh-style moderates aren’t really popular with anyone. There is no mass constituency for “entitlement reform” or war with Iran. Bayh-style politics work in reddish states mainly through rhetorical distancing from liberalism—not opposition to popular liberal ideas, but careful tribal signaling that you’re not one of those liberals.

Scott Lemieux over at Lawyers, Guns, and Money believes that Bayh running is good news.  His argument is that the Supreme Court will be of the utmost importance as it will shift the median vote of the Supreme Court to liberals.

It’s been a long time since the Vice President nominee has meant anything, a piece in Politico magazine argues.  Politico magazine is so much better than the regular Politico website.  That seems…odd.  The political science literature is a mixed bag on the impact of Vice Presidents.  They don’t usually help except maybe in small states they might provide a small bump.  Otherwise the nominee usually does more harm than good.  This is why I want Joe Biden to be Vice President for life.

Why, though, was there any choice to be made? Four years earlier, Henry Wallace had been put on the ticket at the insistence of FDR himself; indeed, Roosevelt was so adamant about running with his then-secretary of agriculture that when serious opposition arose—he was too committed to civil rights, too liberal for more conservative Democrats, too “enthusiastic” about spiritualism—the only way Roosevelt got him on the ticket was by publicly threatening that he’d otherwise decline the presidential nomination.

It’s a very interesting article to read.

Thursday’s Teddy’s

Meet Senator Rand Paul.  On the one hand he can write his opinions on the opioid epidemic here where I almost agree with him.  On the other hand, he can say things like in this article where he comes off as a crank.

Governor Pat McCrory signed HB 972 into law in North Carolina.  This bill exempts dash cam and body cam videos exempt from the public record.  Not surprisingly, the ACLU of North Carolina is not happy with this development.

Ruben Kihuen is trying to win an election in Nevada against a Republican incumbent.  He posted pretty good fundraising numbers.

Progressive Zephy Teachout has raised a considerable sum of money to help her try to win a Congressional seat against her Republican opponent.

Barack Obama wrote an article for the Journal for the American Medical Association.  And consistent with the Obama of the last few years, he’s finally willing to say what’s on his mind.

“The first lesson is that any change is difficult, but it is especially difficult in the face of hyperpartisanship. Republicans reversed course and rejected their own ideas once they appeared in the text of a bill that I supported. For example, they supported a fully funded risk-corridor program and a public plan fallback in the Medicare drug benefit in 2003 but opposed them in the ACA. They supported the individual mandate in Massachusetts in 2006 but opposed it in the ACA. They supported the employer mandate in California in 2007 but opposed it in the ACA—and then opposed the administration’s decision to delay it. Moreover, through inadequate funding, opposition to routine technical corrections, excessive oversight, and relentless litigation, Republicans undermined ACA implementation efforts. We could have covered more ground more quickly with cooperation rather than obstruction. It is not obvious that this strategy has paid political dividends for Republicans, but it has clearly come at a cost for the country, most notably for the estimated 4 million Americans left uninsured because they live in GOP-led states that have yet to expand Medicaid.”

 

Legislative Priorities: Voting Rights

 

Legislative goals:

  1. States that require voter registration should make same-day voter registration available at the polling place on the day of the election
  2. Allow the use of a single absentee ballot application for subsequent elections
  3. Prohibit election officials for requiring identification that has a cost as a condition to vote or register to vote
  4. Require states to automatically register individuals registering with DMV’s for driver’s license.  Require states to follow pre-registration for individuals who are 16 to ensure that they are registered to vote by the time that they are 18.
  5. Change election day to  Friday, Saturday, and Sunday for the first Friday after the first Monday in November on even number years, as well as every fourth year for presidential elections.  Election day Friday should be declared a federal holiday.
  6. Create a new determination for preclearance by the Department of Justice for any changes made to voting laws and regulations.  This new determination will be for states if there there were at least 5 voting rights violations in the last 25 years and 3 voting rights violations during the previous 15 years, if at least one of the violations were committed by the state itself.  The preclearance requirement for districts and states would also be triggered if it was determined that less than 50% of those who are of voting age are registered to vote on November 8, 2016.
  7.  Restores the right to vote for non-violent felons provided that they are not in a correctional facility at the time of the election.  For those on probation, the right to vote will be restored at the end of their probation.  This will also apply retroactively.  Those affected will be automatically registered to vote and will be notified that their voting rights are restored and that they are registered to vote.
  8. Redistricting after a census can only take place once after each census and can only be done by an independent district commission.

Information for legislative goals:

Our goal is to try to make voting even easier than it currently is.  The hope is that when people do not have as many roadblocks in their way, it will increase voter turnout and provide a more representative electorate.  I’m not naive enough to believe that a more representative electorate will elect politicians that share my views.  I do believe that having a more representative electorate is a worthy goal in and of itself.

In the 1980 book, Who Votes?, the authors concluded that the voter registration date was the single largest impact on voter turnout.  They recommended a move to same-day voting registration.  Same-day voting registration allows voters who are not registered to vote to go to their polling place and fill out the voter registration form and then be able to vote.  The authors predicted that if same-day voting registration was enacted in all 50 states, voting turnout would be 9% higher.  This prediction held on rather nicely.  In a study titled “Election Day Registration’s Effect on U.S. Voter Turnout” the authors Craig Leonard Brians and Bernard Grofman project based on their studies that moving to same-day registration would product about a 7 percentage point boost in the average state.  Laura Rokoff and Emma Stokking looked at the effect of same-day registration in “Small Investments, High Yields: A Cost Study of Same Day Registration in Iowa and North Carolina” for Demos and write that average turnout in states with same day registration are 10-12 percentage points higher than states without same day registration.  In 2008, same-day registration states led the nation in turnout by 7 percentage points and by nearly 6 percentage points in the 2010 elections, they write.  Brians and Grofman conclude that it may be a higher turnout boost in states with higher urban populations.  By looking at past elections, they found that those in the low and high portion of the socioeconomic spectrum have a 3% boost by moving from voting registration from 30 days out to same day registration.  The middle socioeconomic status which has more people in it had a 5% increase when moved from a 30 day deadline to same day registration.

The biggest stumbling block for this policy is the idea that same day registration would advantage one political party.  While intuitively it would make sense that voters taking advantage of same-day registration would tend to be Democratic voters, they did not find any significant evidence that same-day registration would help one way or the other for either major political party.  The University of Wisconsin-Madison’s Jacob Neiheisel and Barry Burdern found that there was a slight increase for Republican voters with the same-day registration rules. The other stumbling block that I can think of is that it is cost prohibitive.  Rokoff and Stokking looked at North Carolina and Iowa in their paper.  In 2008, over 250,000 citizens used same day registration in 2008 and 45,000 used it in Iowa in 2008.  Rokoff and Stokking found that the majority of counties in Iowa reported little to no additional costs.  The costs that they discovered were primarily due to printing and mailing the forms.  North Carolina, likewise, did not see that much of an increase in spending but did need additional staffing at smaller counties.

Voter ID is a very common response called on for trying to fix our electoral woes.  On the one hand, conservatives and Republicans argue that voter ID is necessary to ensure that the electoral system is not abused by fraud.  On the other hand, liberals and Democrats claim that voter ID unfairly target minority voters and the poor.  In an investigation of over 1 billion votes cast, Loyola Law School professor Justin Levett found only 31 credible incidents of voter impersonation.  In a study by the Government Accountability Office (GAO) where they reviewed 10 studies regarding voter ID, they found that 5 studies showed that there was not a statistically significant effect on voter turnout.  In 1 study, there was an increase in voter turnout nationwide of 1.8 percentage points.  The 4 other studies showed voter turnout decreased by 1.5-3.9 percentage points. More than half of the population of the United States now lives in states that require ID’s to vote, as 34 states have passed some type of voter ID law.  The strictest voter ID laws have been passed since 2008.  Justice Ruth Bader Ginsburg has called the laws “purposely discriminatory.”

It’s fairly difficult to pin down the exact percentage of the population does or does not have proper identification to be able to vote.  The Washington Post reports that there’s an estimated 1-11% of registered voters who do not have valid photo identification.  The GAO looked at various studies to help determine this information.  In a 2012 study that they looked at, 86% of all registered voters had a driver’s license, state id card, or gun permit.  Yes, a gun permit is a valid ID for voting purposes in Texas.  89% of registered whites had valid voting ID.  This compared to 83% of Hispanic registered voters and 79% of African-American registered voters.  Comparatively, a similar study showed that 84% of all registered voters had valid photo ID in Indiana.  In a nationwide study in 2013, they found that 84% of white registered voters had a valid driver’s license.  This compares to 73% of registered Hispanic voters and just 63% of registered black voters.  That seems like a problem as Zoltan Hajnal, Nazita Lajevardi, and Lindsay Nielson present in a working paper from the University of California-San Diego note that there is clear evidence that they “tend to emerge in states with larger black populations.”  If we couple that with the fact that minorities are disproportionately asked for identification by poll workers, we can see the problem for voter id’s.

The studies show that there is not a statistically significant effect on voter turnout, overall.  However, as Nate Silver points out that is giving deference to the null hypothesis.  Or to paraphrase former President Bill Clinton, it depends on what your definition of statistical significance is.  In the working paper by Hajnal, Lajevardi, and Nielson they tried to identify the impact on voter id compared to states without strict voter id laws.  What they found is fairly striking.  In general elections, they found that Latino turnout was 10.3 points lower in states with photo ID than in states without strict photo ID regulations. For multi-racial Americans, turnout was 12.8 points lower under strict photo ID laws. For blacks, the turnout was 4.8 points lower in general elections with states with stricter voter id laws.  Multi-racial Americans voted at almost the exact same predicted rate as whites in non-photo ID states but were 9.2% less likely than whites to participate in general elections in photo ID states.  The GAO’s study looked at turnout in Kansas and Tennessee compared to a list of other states that did not implement voter id laws.  Turnout declined by 1.9-2.2 percentage points more in Kansas and 2.2-3.2 percentage more in Tennessee.  Nate Silver noted in that FiveThirtyEight piece that photo id decreased turnout by about 2% as a share of the registered voting population.

Possibly a bigger effect on voter turnout would be the restoration of voting rights who have completed their sentence and probation.  According to The Sentencing Project, 2.5% of the total US voting age population is disenfranchised due to a current or previous felony conviction.  Taking away voting rights from those who are felons effects African-Americans disproportionately.  1 out of every 13 African-Americans of voting age is disenfranchised.  In some states including Florida and Kentucky, more than 205 of African-Americans are disenfranchised.  In a study of felon voting patterns, the authors found that on average about 30% of felons and ex-felons would vote, if given the chance.  Not surprisingly, based on the racial disparities of this laws, the vast majority (about 3 our of 4) would vote for the Democratic nominee for President.

Taking away the right to vote of a criminal has a long tradition going back to ancient Greece and Rome.  However, I don’t believe it does anything in our modern society.  The Brennan Center for Justice argues in numerous amicus briefs that “permitting individuals the right to vote upon release from prison substantially promotes” reintegration mechanisms.  In their amicus brief for Griffin v. Pate LVW, they argue that continued disenfranchisement “undermines the process of reintegration by treating individuals who have served prison sentences as second-class citizens.”  In McLaughlin v. City of Canton, the court argued:

Disenfranchisement is the harshest civil sanction imposed by a democratic society.  When brought beneath its axe, the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box…[he] must idly by while others elect his civic leaders…choose the fiscal and governmental policies which will govern him and his family.

As we see with voting and most political issues, how you choose to vote is generally based on discussions that you have with your family or with other members of your community.  Giving felons the right to vote gives them an additional way of conversing with their neighbor to be able to help reintegrate into society.  Further, voting is an acquired trait.  In their amicus brief, the Brennan Center argues “taking one’s children to vote…is seen as a simple and effective way to demonstrate to them the function and importance of American democracy.”  They argue that this is a ripple effect.  If one person is disenfranchised, they will not take their children to vote and an entire family can become discouraged.  If the family is discouraged, they may not show up to vote.  Their voices are weakened and not heard.  It continues on until an entire community is weakened from their voices not being heard.

Changing the registration date deadline, not requiring ID to vote, and restoring felon’s voting rights would have the biggest impacts on voter turnout.  Our goal for a democracy is to have as many people turn out to vote to allow their voices to be heard.  We believe that out democracy and our communities are strengthened when there are more voices heard.  Much like the Brennan Center for Justice argues, is a ripple effect.  We will have more people interested in strengthening their communities.  These three ideas are relatively simple to implement and should be implemented as soon as possible on a national level to maximize turnout.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wednesday’s Washingtons

The American Civil Liberties Union of Southern California was one of the biggest advocates for reform of the Los Angeles Police Department.  Their work for body cams with LAPD officers is still very important.

Gary Johnson is the Libertarian nominee for President.  He thinks that he can get to 15% in polls to be able to make the national debate stage.  Johnson got just less than 1% of the popular vote in 2012.  A third party has received 15% of the popular votes twice in the last 100 years.  Those two times were Ross Perot in 1992 who self-funded his campaign and Robert La Follette in 1924.  Intuitively, it makes sense for Johnson to be able to pick up Republicans who refuse to vote for Trump in November, I’m not sure of how many votes that actually will be.

Representative Patrick Murphy has been endorsed by another member of Congress. This time it is Rep. Gwen Graham.  One of the weirdest things of this cycle is that Florida Democratic bench is so thin in Florida that voters have to choose between Murphy and Rep. Alan Grayson.

Former Rep. Joe Garcia is hitting Carlos Curbelo for donating money to Rep. Barbara Comstock who once questioned why we couldn’t track immigrants like Fed Ex tracks  packages.  The only problem is that Rep. Garcia once said something very similar, using American Express, instead.

Iowa’s 1st Congressional District has been changed from tossup to leans Democratic thanks to a strong fundraising performance from Democratic candidate Monica Vernon.

Former Senator and Governor Evan Bayh has decided to run for Senate in Indiana.  Indiana voted for a moderate Democrat in 2012 for Senate.  Bayh is a little to the right of a moderate Democrat but definitely increases the chances of Democrats taking back the Senate in November.

 

Monday’s Madisons

I’m going to try to change up what I’m posting a little bit more this week.  I’m hoping that it continues.  I’ll still work on getting longer pieces posted, as well as more mini-profiles on as many candidates out there running for office in November.  But I wanted to give a few links out there to read.  I’m hoping I’m giving you some new things to read in the meantime.

A few weeks ago, two members of Congress helped to introduce a bill that would change the Fair Labor Standards Act to keep minor league baseball players not treated as typical hourly wage employees.  Due to outrage from baseball fans, I’m pretty sure, Representative Cheri Bustos withdrew her support for the bill.  It’s important to note: “Minor leaguers are paid in season only. Any offseason training is on them. They are not paid (except expenses) during the Arizona Fall League. They are not paid during spring training except for the meals not provided by the team…More perspective: Major league teams spend anywhere from $10 million to $30 million on their entire farm system per year. Arizona Diamondbacks pitcher Zack Greinke is making $34,416,667 in 2016.”  Baseball is an $8 billion industry.  Pay the players who work hard to make it to Major League Baseball.

The Baton Rouge Police Department had a history of racial violence prior to the killing of Alton Sterling.  From the article, “Many law enforcement officials came to Louisiana immediately after Hurricane Katrina to provide reinforcements, and one state trooper from Michigan said Baton Rouge police attempted to thank him for his help by letting him “beat down” a prisoner. A trooper from New Mexico wrote a letter to the Baton Rouge police expressing the concerns of seven New Mexico troopers and five Michigan troopers that Baton Rouge police were engaging in racially motivated enforcement, that they were physically abusing prisoners and the public and that they were stopping, questioning and searching people without any legal justification…But the bad reports aren’t confined to the time around Hurricane Katrina. In 2014, a 15-year-veteran of the force resigned after a series of racist text messages were attributed to him. Michael Elsbury, who routinely patrolled an area around Southern University, resigned as the department was looking into text messages that called black people monkeys (and worse) and expressed pleasure ‘in arresting those thugs with their saggy pants.'”

There will be a discussion on Tuesday, July 12 about what is going to happen next in California for battling income inequality.  As California goes, so does the nation, they say.

Speaking of which, there was a defeat of a bill that would have included greater transparency in body cams for police officers in California.

My old county, Orange County, is under fire for some more issues involving jailhouse informants.    “The OCDA’s office has been under fire for almost three years for its involvement in mishandling evidence produced from a secret jailhouse informant program that has allegedly violated the rights of countless defendants. Assistant Public Defender Scott Sanders, who first unearthed the informant network, has been arguing since 2013 that a tainted snitch network in county jails has existed in secret for decades. Sanders argues that county prosecutors and police have violated multiple defendants’ rights by illegally obtaining, and sometimes withholding, evidence gleaned from jail informants.”

The heir apparent to Sheriff Lee Baca’s job as sheriff of Los Angeles County has been sentenced to federal prison for five years.  More information about his role in hiding an FBI informant can be found here.

 

 

The case against the death penalty

The troubling case of Carlos DeLuna

In February of 1983, Carlos DeLuna and Carlos Hernandez went to a bar in Corpus Christi.  The two Carloses looked very similar.  Sometimes they were even mistaken for twins.  They were the same height and weight.  Although, there was a slight difference.  Hernandez had a moustache while DeLuna did not.  After the bar, Hernandez went to a gas station, the Shamrock to buy something.  After waiting a while, Hernandez had not returned.  DeLuna went to see what was taking so long and he saw Hernandez wrestling a woman behind the counter.  Scared because of his prior police record for sexual assault, DeLuna took off running.  When he heard sirens, he got even more scared and hid underneath a pickup truck.

deluna carlos.JPG

Image: Carlos DeLuna from the Corpus Christi Police Department; image from the Atlantic

Forty minutes later, he was found there by Corpus Christi Police.  He was arrested for the murder of Wanda Lopez.  Lopez had been stabbed to death.  Police photos showed blood splattered over three feet high.  DeLuna did not have any blood on him.  Police assumed that the rain washed away the blood.  Less than two hours after the murder, the owner of the Shamrock was allowed to wash down the store washing away crucial evidence that could potentially lead to the killer.  As far as the Corpus Christi police were concerned, they had caught their man.

DeLuna, for his part, claimed his innocence.  He took it one step further.  He named the killer.  Carlos Hernandez was the killer.  Corpus Christi police called Hernandez a “phantom.”  The prosecutors were given the name by DeLuna’s lawyers but they were unable to find any evidence that this person existed.  The chief prosecutor of the case called Hernandez a “figment of [DeLuna’s] imagination.”

hernandez carlos.JPG

Image of Carlos Hernandez from the Corpus Christi Police Department.  Image appeared in the Atlantic.

DeLuna was executed for the murder of Lopez on December 8, 1989.  In October of 1989, Hernandez was arrested for the attempted murder of Dina Ybanez.  This information was not brought to the courts of Texas in order to help exonerate an innocent man.

We know all of the information mentioned above and even more information showing the innocence of DeLuna because of the research of Professor James S. Liebman and his colleagues in the book Los Tocayos Carlos: Anatomy of a Wrongful Execution.

Liebman et al. found even more disturbing information regarding this case.  They found that Hernandez bragged to members of the community that he was a knife murderer and that he was the one who killed Lopez.  Further Hernandez joked that his stupid namesake was the one taking the blame.  Oh yes, they found this information out in less than 24 hours after hiring a private detective.  Yet, Hernandez was so elusive that he was unknown to prosecutors.  These claims that he was the killer reached the police within weeks but was dismissed by the prosecutors.

Hernandez had been on parole for virtually his entire adult life.  As reported by Liebman, Hernandez had been arrested 39 times.  Several of these crimes had been due to wielding his knife.  Some of his arrests were for holding up local gas stations.  What’s worse is that he was arrested twice for a 1979 murder.  Once in 1979 and once after DeLuna was on death row.  This information was not disclosed to the courts.  Instead, Hernandez was a phantom.

Liebman and his team of researchers pored over the crime details and police reports for this crime.  They found a shoeprint in blood at the crime scene that was never investigated.  No usable fingerprints were taken at the scene of the crime.  A beer can, a cigarette butt, chewing gum, a button, and a comb were not forensically examined for saliva and/or blood.  When the researchers went to examine the DNA of the crime after DeLuna’s death, they were told that all of it had disappeared.

Carlos DeLuna was executed for the murder of Wanda Lopez.

Nebraska and the Death Penalty

Picture of Governor Pete Ricketts of Nebraska picture originally appeared on Huffington Post

In May of 2015, Nebraska legislators brought LB268 to be considered for a debate.  LB268 was introduced by Ernie Chambers who had been working to this end for four decades.  LB268 would repeal the death penalty in Nebraska and would instead have life in prison as the maximum sentence for first-degree murder.  Nebraska Attorney General Doug Peterson wrote a letter to the Nebraska legislature that “under current Nebraska law, a sentence to life imprisonment is effectively life imprisonment without (the possibility of{ parole.”

Governor Pete Ricketts said in a statement ahead of the vote, “no one has traveled the state more than I have in 18 months, and everywhere I go there is overwhelming support for keeping the death penalty in Nebraska.  Ahead of this morning’s vote, I am reminding senators that a vote for cloture on LB268 is a vote to repeal the death penalty and to give our state’s most heinous criminals more lenient sentences.  This isn’t rhetoric.  This is reality.”  The stakes were high.  Legislators knew that this bill would face the veto by Governor Ricketts.

Conservative legislators banded together with their progressive counterparts and passed the bill 32-15.  In order to override the veto, they would need 30 votes.  Governor Ricketts criticized the legislature for their votes when issuing a veto saying that “while the legislature has lost touch with the citizens of Nebraska, I will continue to stand with Nebraskans and law enforcement on this important issue.”  After intense lobbying by the Governor and his team, a vote to override the veto succeeded 30-13.

State senator and loyal Ricketts ally Beau McCoy announced that he would do everything he could to stop this bill from being enacted.  McCoy launched a new organization called Nebraskans for Justice to help put the measure on the ballot for the November general election ballot.  McCoy said,”I am standing with Nebraskans who are thoroughly disappointed with Nebraska legislators who voted to end Nebraska’s death penalty.”

McCoy was not the only one disappointed.  State Senator Bill Kintner of Papillion filed an amendment on LB268 to replace the method of execution from lethal injection to the firing squad.  Kintner was disappointed and bitterly complained, “this body is intent on moving the progressive-left agenda ahead.”  Senator McCoy was successful in getting this measure on the ballot in time for the November 2016 election.  If voters in Nebraska vote in favor of the amendment there will effectively be a repeal of the repeal of the death penalty.  Rejecting the measure will keep the death penalty repeal.  I urge all Nebraska voters to reject this measure.  It is time to show Governor Ricketts that he is wrong.  We need to show Senator Kintner that he is wrong.  This is not a partisan issue.  The death penalty as it stands is arbitrary, unconstitutional, and economically infeasible.

Economic costs of the death penalty

The American Law Institute (ALI) is made up of 4,000 judges, lawyers, and law professors.  They helped create the penal system that we currently have and helped create the death penalty, as we know it.  In 2009, they voted to remove the death penalty from their model penal code.  They argued that the death penalty is “so arbitrarily fraught with racial and economic disparities and unable to serve quality legal representation for indigent capital defendants, that it can never be administered fairly.”  As we will see later with regards to the arbitrariness of the death penalty, poorer defendants are more likely to have their crime considered a capital offense.  The American Civil Liberties Union (ACLU) has found that 90% of those on death row could not afford to hire a lawyer at the time of their trial.

In Gideon v. Wainwright, the Supreme Court found that the 6th Amendment’s guarantee of counsel is a fundamental right essential to a fair trial.  Writing for the majority, Justice Hugo Black wrote a fair trial “cannot be realized if the poor men charged with crime has to face his accusers without a lawyer to assist him.”  Even looking at this case, we see that Florida and other states would only allow lawyers appointed for the indigent in capital cases.  This certainly adds to the cost of death penalty cases.

As we see in state, after state, after state, the death penalty is significantly more expensive than other options.  The Nevada Legislative Auditor issued a report studying the cost of the death penalty in Nevada.  They found “the death penalty, from arrest through the end of incarceration, costs about $532,000 more than other murder cases where the death penalty is not sought.”  Where the death penalty was sought, sentenced, but the offender was not executed the cost was $1.3 million and the cost was only slightly lower where the death penalty was sought but not sentenced at $1.2 million.  Where the death penalty was not sought, the costs were $775,000.

Kansas issued a study on the cost of the death penalty and the Kansas legislature approved the linked report.  The total cost for the 9 trial cases where the death penalty was sought costs on average $395,762 compared to $98,963 on average for the 6 trial cases where the death penalty was not sought.  Some of that has to do with the the fact that when the prosecution sought the death penalty, there was an average of 40 days in court compared to 17 days for cases where the death penalty was not sought.

Seattle University commissioned a study on the death penalty in Washington.  The found that the total costs of the death penalty cases were about $3.07 million compared to $2.01 million for non-death penalty cases.  The biggest differences in the costs were found with the defense costs, prosecution costs, and the petition/appeals for death penalty cases.  The defense costs were about 2.8 to 3.5 times more expensive than non-death penalty cases.  Prosecution costs were about 2.3-4.2 times more expensive and the appeals were 5.7-6.3 times more expensive.

Seeking the death penalty is consistently found to be more expensive than non-death penalty cases.  The only question really is how much more expensive it is.  The rebuttal to this is that while seeking the death penalty in trial is more expensive, the costs even out after a criminal is executed compared to the cost of incarcerating a criminal for the remainder of their life.  Intuitively, this argument holds some appeal.  Unfortunately, it does not match reality.  This is because of two main reasons.  The first one is that in 2014, the executions occurred on average about 18 years after the conviction of the defendant.  Because of the lengthy time in prison, it is hard to find easy cost-savings.  The other reason for a lack of cost-saving is that keeping and maintaining death row is fairly expensive.   In fact, death row inmate management costs more on average than the management of non-death row inmates.  There are a couple of factors for this which include greater security, inmates having their own cells, and that there is a disparity in the inmate-to-staff ratios.

The Seattle University studied linked to earlier found that the cost for incarcerating non-death penalty inmates was 0.7-0.8 times the cost of death row inmates.  As they note in their report, though, they used the “same average daily cost post-2013 for both the [Death penalty] and [non-death penalty] groups.  This resulted in an underestimation of DPS/DPI DOC costs.”  The report of the Kansas legislature noted that it cost $49.3 thousand per inmate per year for a death penalty inmate compared to $24.69 thousand per inmate per year for non-death penalty inmates.  The report from the Nevada legislative auditor found that for incarceration costs, the death penalty is the most expensive sentence for those convicted of first degree murder.  Noting “incarceration costs are higher for the death penalty subgroup, since they are typically housed at a higher cost facility.”

All of this is before we even get to the cost of obtaining the drugs needed to execute an inmate with lethal injection.  With a number of pharmaceutical companies no longer offering the drug cocktail, the prices have skyrocketed.  I do understand that we cannot just reduce moral questions of actions such as the death penalty with an economic rebuttal.  It’s not enough to show that a policy is economically unsound to show that the described action is immoral or should otherwise not continue.  With all policies, I believe that we should do a calculus of cost-benefits to see what we should do going forward.  The death penalty as it currently stands is not viable only on economic grounds but is on shaky constitutional grounds, as well.

Unconstitutional?

I should note that before we continue that a lot of the information for this section is based on the brilliant dissent from Justice Stephen Breyer in Glossip v. Gross.

The 8th Amendment of the United States Constitution plainly states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In Weems v. United States, the Supreme Court found “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.”  Justice John Paul Stevens wrote in the opinion for Atkins v. Virginia “a claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloddy Assizes’ or when the Bill of Rights was adopted but rather by those that currently prevail.”  It is on this precedent where Justice Breyer calls into question the constitutionality of the death penalty.

Justice Breyer writes that the death penalty fails the constitutional question because of “serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose.”  As we’ve seen, there have been innocent people executed for crimes that they commit.  Beyond that, there has been a number of cases where people have been sentenced to death but were exonerated.  There have been 115 exonerations in capital cases.  In his dissent, Justice Breyer notes that courts are 130 times more likely to exonerate a defendant when a death sentence is at issue.  Comparing to other murders, they are nine times more likely to exonerate a defendant with a capital murder compared to noncapital murder. Why does this happen?

The simplest explanation is that there is tremendous bias with the jurors.   In an article titled The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, Susan D. Rozelle explores the bias found in jurors.  The term used to describe potential jurors who will not convict someone of death even if they are convinced of a defendant’s guilt beyond a reasonable doubt is nullifiers.   She cites a Supreme Court Case Lockhart v. McCree  that allowed nullifers to be excluded from the guilt phase section of a capital case.  Further, the Supreme Court found that each juror should be “willing to consider all of the penalties provided by state law.”  Early social science studies found that once prosecutors were able to eliminate nullifiers from juries, those who remained were more likely to hold beliefs that would help the prosecution.  An example of this belief was “if the police have arrested an individula and the district attorney has brought him to trial, there is good reason tto believe that the man on trial is guilty.”

Moreover, eliminating nullifiers from jury pools made the juries more homogeneous.  This may not sound like a problem.  But similar people see evidence the same way.  When you have more people who are different who have different worldviews and different backgrounds, the same piece of evidence is seen in a different way.  As Professor Cass Sunstein wrote “normative bias is well supported by evidence of confirmation bias, by which people tend to seek out, and to believe, evidence that supports their won antecedent views.”  Or more simply, there is a tendency to see what we expect to see.  When you have the same worldviews or same backgrounds people will have the same expectations for what they should see so it will match up.

The Capital Jury Project (CJP) undertook a large study interviewing 1200 jurors who served on 350 capital trials in fourteen states to help study the behavior of capital case jurors.  Their conclusion was that “capital jurors hold disproportionately punitive orientations toward crime and criminal justice, are more likely to be conviction-prone, are more likely to hold racial stereotypes, and are more likely to be pro-prosecution.”  Over 70% of jurors interviewed felt that death was the only acceptable punishment for a murder committed by a defendant with a prior murder conviction.  Almost 60% agreed that death was the only acceptable punishment for planned or premeditated murder.  There were a few other categories including where the victim as a police officer or prison guard, murders involving multiple victims, and murders committed by a drug dealer.  About half of those interviewed felt that death was the only acceptable punishment in each of those situations.  About 30% of those interviewed stated that death was the only acceptable punishment for all of the above crimes.  About 24% of the jurors stated death was the only acceptable punishment for felony murder where the killing that occurs during another crime.  More troubling, some of the capital jurors offered some situations where they would not vote for the death penalty which included war time, children playing with a gun, hunting accident, or if the guy was not guilty.  Comparatively, only 2-3% of jurors who were interviewed stated that the death penalty is unacceptable in those situations mentioned.

What could be more troubling than that?  Perhaps the fact nearly half of those interviewed admitted that they decided the proper punishment before “they had heard a single piece of evidence on the issue of punishment.”  Or that about 10% of jurors stated that the death qualification question (being asked if they would consider the death penalty) “made them think the defendant must be or probably was guilty and that death must be or probably was the appropriate punishment.”

But before we get to the trial, there is tremendous pressure on the community including police officers and prosecutors to find the person who committed this crime.  Capital cases tend to be horrendous crimes.  There the police face pressure to quickly find the person who committed the crime.  In cases where the defendant was exonerated, the police investigation was shorter than those where the defendants were not exonerated according to the article “Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases.”  Because of this pressure, there is a greater likelihood of of the hallmarks of wrongful convictions as noted in Convicting the Innocent: Where Criminal Prosecutions Go Wrong including false confessions, mistaken eyewitness testimony, and untruthful jailhouse informants.  Because of all of these factors, researchers estimate that about 4% of those sentenced to death are actually innocent.

Justice Breyer notes in his dissent that when the death penalty was reinstated in Gregg v. Georgia that the death penalty would be unconstitutional if “inflicted in an arbitrary and capricious manner.”  A lot of studies found that individuals who were accused of murdering white victims as opposed to minority victims were more likely to receive the death penalty.  The Government Accountability Office (GAO) found in 1990 that 82% of the 28 studies found that “race of victim influences capital murder charge or death sentence.” A similar finding was found in the article Furman, McCleskey, and a Single County Case Study published in 2013.  The geographic location of the defendant and victim make a difference, as well.  29 counties nationwide account for half of all death sentences imposed nationwide.  In 2012, 59 counties accounted for all death sentences nationwide.  The reasons for this are that only some states permit the death penalty, the counties may have weaker public defense programs, or it could be that the federal district that the jurors will be filled are a big racial difference than the county where the crime occurred.

Beyond that arbitrariness, there is an arbitrariness involved with what crimes are going to be charged as capital crimes.  Justice Breyer lists a number of crimes that were prosecuted as capital crimes compared to other murders.  Most of them include a single murder from a defendant who previous felony convictions compared to a murderer with multiple victims or other offenses in the context of the crime that make it seemingly more heinous.  I won’t repeat them all here.  But the crimes he chooses are supposed to show that capital charges are arbitrarily chosen and I believe him.

As we look at Gregg v. Georgia, we know that every safeguard has to be observed when a defendant’s life is at stake.  These requirements take a long time to implement.   As Justice Breyer writes, “unless we abandon the procedural requirements that assure fairness and reliability, we are forced to confront the problem of increasingly lengthy delays in capital cases.”

There were 35 executions in 2014.  These executions occurred on average about 18 years after the initial sentencing.  Some states have even longer waits.  For instance, in Florida, the last 10 prisoners executed spent nearly 25 years on death row before execution.  The delays have only increased in recent years.  The average delay in 1960 was two years.  In 2004, it was 11 years.  According to the Bureau of Justice Statistics, nearly half of the 3,000 inmates on death row now have been there more than 15 years.

The ACLU found that inmates on death row are kept in isolation for 22 or more hours per day.  Solitary confinement can lead to anxiety, paranoia, hallucinations, rage, and panic.  Beyond that as Justice John Paul Stevens wrote in Gomez v. Fierro lengthy delays subject “death row inmates to decades of especially severe, dehumanizing conditions of confinement.”  Or in the denial of cert for Lackey v. Texas, Stevens wrote that “excessive delays from sentencing to execution can themselves constitute cruel and unusual punishment prohibited by the Eighth Amendment.”

The delays are necessary because they provide additional safeguards to make sure that the inmate is guilty but they are damaging in their current form.  These delays undermine the claim that the death penalty is a retributive punishment that effectively deters crime.  This claim is undermined by social science research.  The National Research Council reviewed the empirical evidence saying “despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.”

If we take it all into consideration: the unreliability, the arbitrariness, and the delays, I find myself agreeing with Justice Breyer that we need a wholesale review of the constitutionality of the death penalty.

Conclusion

If ridding ourselves of the death penalty were as straightforward and easy as simply agreeing with Justice Breyer, we wouldn’t have these debates that we’ve been having for over 40 years.  Instead of focusing on concrete issues and what has happened in the past, we are often faced with abstract questions or hypotheticals over would we support the death penalty in what situations.  While it’s impossible to predict how I would respond given a particular situation, based on the evidence that is out there, the death penalty should be repealed.  In Nebraska, it was successfully repealed.  I urge all of you to vote AGAINST the Nebraska Death Penalty Repeal Referendum on November 8.