Death Penalty Discrimination – Part 1 Different Systems

“Capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

Ever since the death penalty was reinstated nationally in Gregg v. Georgia, 428 U.S. 153 (1976), it seems there is always some debate about whether or not the death penalty is applied in a discriminatory manner.  There are on-going discussions whether the death penalty is applied disproportionately against certain races or sex.

Without taking a stance as to if the system currently discriminates or not, I argue in my paper “Correcting a Fatal Lottery” that the system for adjudicating discrimination claims in the death penalty is unconstitutional.  I argue that there are two different systems of adjudicating discrimination: one for the death penalty and another for every other type of discrimination claim.

In the death penalty context, claims of discrimination use the evidentiary standard of  “exceptionally clear proof.”    McCleskey v. Kemp, 481 U.S. 279, 292 (1987).  Whether there is exceptionally clear proof of discrimination is argued in a single step.  Both sides make their arguments and the judge then makes her determination.

Every other type of discrimination – employment discrimination, housing discrimination, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws, and discrimination in jury venire – are decided with a burden shifting system using the preponderance of the evidence standard.  The burden shifting standard allows the judge to organize evidence so it can be more easily digested.  The preponderance of the evidence standard is which ever side has the more convincing evidence shall win. See e.g. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (employment discrimination in a mixed-motive case); Lindsay v. Yates, 578 F.3d 407, 421 (6th Cir. 2009) (housing discrimination); Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000) (reverse-racial discrimination) etc.

Is it just that claims of discrimination in administering the death penalty not only use a different system, but one that is much more rigorous?

My assertion in the paper is that with a defendant’s life on the line, the judicial system should not impose more strict measures to prove discrimination occurred.  If discrimination occurs then it is a flaw within the justice system.  We have all seen the pictures of where Lady Justice is blind.  If a person is being treated differently because of her sex or her skin color then Lady Justice is not administering proceedings with impartiality.  No matter what the crime a person is accused of, justice should be administered fairly and impartially.

This is the first of a  series that I will use to break down the argument of my paper detailing the differences in how the courts judge discrimination and why it is unconstitutional.

The race of the victim has been shown to be statistically significant in several studies.  Racial Discrimination and the Death Penalty in the Post-Furman era (full text). Prosecutorial Discretion in Requesting the Death Penalty (abstract only).

To download and read my entire paper visit:

Revenge Porn Legislation

Technology allows scorned lovers to easily extract retribution by posting nude photos or videos with the intent to humiliate.  Arizona is among the many states whose legislature has proposed bills to outlaw ‘revenge porn.’  The Arizona bill would make it unlawful to:

[K]nowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.

The language of each bill is different, which in turn effects how it is implemented. As some critics have noted this particular bill does not allow for any exceptions.  It precludes revenge porn in all circumstances.  University of Arizona law professor Derek Bambauer, says the the bill is “almost certainly” unconstitutional because of the breadth of the scope.  For example, if former Rep. Anthony Weiner did not release the picture of underwear-covered genitals, and instead a journalist broke the picture and the story it may be illegal under this proposed law.  This piece of legislation could violate the First Amendment by restricting the Press’ ability to report on issues of public concern.

A personal concern I have of the legislation is that the bill only requires written consent.  Probably just mere consent is too low of a standard because it does not take into account a person’s knowledge of how the picture will be used.  A better standard might be informed consent of the scope of use.  This would cause the subject of the photos to be educated about the intended use.  There is a saying that the internet is forever.  It can be impossible to erase something off of the internet once it is posted, and as technology continues to advance to make it easier to post things online this can be a vexing problem for revenge porn.  That is why it is important that a person understands what will be done with the photos when consenting, rather than just giving consent itself.

This is a relatively new phenomenon and the constitutionality of legislation outlawing revenge porn is currently being debated by legal academics. I think it will be really interesting to see how privacy concerns are addressed with the First Amendment when dealing with revenge porn.

The Fourth Amendment and Encrypted Documents

I stumbled across this story recently about an Arizona man who encrypted his hard drive before the police seized it for allegedly containing child pornography.

Law enforcement suspected the defendant of sharing child-porn images and video on the internet in 2011. Tipped off by Child Protective Services (a state agency) law enforcement started investigating his online behavior for allegedly sharing child pornography.  Fast-forward nearly into the investigation, Maricopa County Sheriff’s Organization took the suspect into custody because they linked him to 70 photos and videos of child pornography on the internet.  He is charged with 10 counts sexual exploitation of a minor.

Looking for additional evidence law enforcement seized the suspect’s computer and tried to recover anything that may relate to their investigation.  The problem is the hard drive was completely encrypted using the super-strong True Crypt software.  So far law enforcement has not been able to breach the encryption.  It is likely the prosecutor has more than enough hard evidence against the defendant without the unencrypted contents of the hard drive.

The use of encryption is something the general public is starting to embrace.  With the revelations that governments around the world, primarily the National Security Agency (NSA), are spying on anyone and everyone, users of technology are starting to become more privacy conscious.  However it still unclear how the encrypted files will impact the Fourth Amendment, which protects citizens from unreasonable searches and seizures by the government.  With the case of encryption, the government has successfully seized the item, but is not able to see the contents.

Perhaps the litmus test for how encryption will be handled in the future lies with how the Lavabit case is decided.

Arizona State Hospital – Accreditation Problems

Arizona State Hospital is having accreditation problems because the hospital recently endangered patients.  For the past year, ABC 15 News has investigated
the safety, security and care of the patients of Arizona’s only state-funded mental health facility.

Because of the coverage, federal investigators went to look at the prison and see Medicare’s standards are currently being met. Here are highlights of some of the deficiencies found:

  • On three occasions, patients who returned from an emergency room visit received delays physical reexamination by a medical provider because the patient returned on a Friday after 5pm, or on a Saturday.  Arizona State Hospital policy did not dictate a time frame in which patients should receive a reexamination.  p. 3-4
  • Inadequate supervision allowed a patient to swallow harmful objects. Hospital documents show staff knew the patient suffered from impulse control disorder, and needed to be in close observation. p. 11-12
  • Patient who was admitted because of self-injurious behavior and suicidal thoughts needed to be under close operation.  Patient was found under the covers (hospital policy said this patient could not cover his/her hands) with a broken CD, pushing pieces of it up into the patient’s arm.  Approximately two week later, the same patient covered his/her hands with a blanket (again in violation of hospital policy), and while under the blanked removed the belt buckle from his/her pants and used the metal portions to make cuts in his/her arms. p. 15-18

There are many more incidents documented in the 46 page report.  Please read the full report to understand the severity of the problems at Arizona State Hospital.

While it appears that oversight within the hospital is severely lacking, oversight from the state seems to equally deficient.  The last time the State of Arizona audited the hospital was in 1999, and the State did not have plans to audit the hospital again until 2019, according to ABC 15 News.  The Legislature has the authority to choose when to audit the State hospital.  Fortunately, because of the media coverage and the federal investigation, the state Rep. Chad Campbell D-Phoenix, is going to introduce a bill to the Legislature to force an audit of the Hospital in 2014.

People with mental illnesses are some of society’s must vulnerable citizens.  Since they cannot take care of themselves, it is our job to take care of them. It is our duty as a state to make sure they are at the very least safe, and given proper care while in our custody.

Here is the Department of Human Services, Centers for Medicare and Medicaid Services report in its entirety, via ABC 15 News.

Should a defendant’s conviction should be ended if he dies during a post-conviction proceeding?

The Arizona Supreme Court decided an interesting issue: whether a defendant’s conviction should be ended if he dies during a post-conviction proceeding.

The background is the defendant was tried and convicted in a jury trial of first-degree murder and attempted murder.  Upon appeal, the Arizona Supreme Court affirmed the conviction and the United States Supreme Court denied certioria.  Then defendant timely filed an Arizona Criminal Procedure Rule 32 petition.  However, before the Superior Court could decide whether to accept the petition or not, the defendant died.  Because of the defendant’s death, the Superior Court Judge dismissed the Rule 32 petition, the indictment, and the conviction.

The problem is  the defendant claimed ineffective assistance of counsel in the Rule 32 proceeding.  This argument may or may not have been persuasive — it is a very high standard to prove ineffective assistance of counsel.  However, procedurally, the defendant could not make the claim of ineffective assistance of counsel during the direct appeal.  Direct appeals are based entirely on record created at the trial court level. Since whether the counsel effectively did her job or not is not a matter that was argued in the trial court, it is an argument that cannot be made on direct appeal (claims that not made based entirely on the trial court record are referred to as collateral attacks).  The Arizona Supreme Court noted that:

“A Rule 32 petition exists ‘separate and apart from the right to appeal’ and is ‘a collateral attack upon the judgment.’ Thus, following a conviction, a defendant has the right to challenge the sufficiency of evidence and to assert any trial errors through direct appeal.” State v. Glassel, Cr-13-0060-AP ¶9 (2013) (quoting State v. Carriger, 692 P.2d 991, 994, 997(1984)).

The Arizona Supreme Court held the defendant received all of his constitutional rights and protections due to him because of the completion of the direct appeal, which is constitutionally guaranteed. Post-conviction relief is not constitutionally guaranteed, thus the conviction and the indictment would stand.

The problem I have with the court’s holding is the right to effective assistance of counsel is guaranteed by Sixth Amendment to the United States Constitution via Strickland v. Washington, 466 U.S. 668 (1984).  Reasonable effective assistance of counsel is guaranteed, even if post-conviction relief is not. The United States Supreme “Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984).  However, nowhere in the Glassel opinion did the Arizona Supreme Court address the right to reasonably effective counsel is found under the Sixth Amendment and denying the defendant of the chance to make that claim, the Arizona Supreme Court effectively waived the defendant’s Sixth Amendment rights for him.

State v. Glassel, No. Cr-13-0060-AP (2013).

The Capital Criminal Process – Trial Through Federal Habeas

A Discussion About the Law in Arizona