Thnking Allowed about the Death Penalty

David Garland discussed his important new book on America's death penalty (Peculiar Institution) on BBC Radio Four's Thinking Allowed this afternoon (listen here). Along with host Laurie Taylor and former Director of Public Prosecutions, Ken (Lord) MacDonald, David focused on the paradoxes of American capital punishment in the age of abolition. For Garland, America's death penalty is not a reflection of our archaic commitment to blood and vengeance, but a product of a constitutional structure that places such an extraordinarily potent symbolic issue in the hands of locally elected legislatures, prosecutors, and judges (not to mention juries). The result is an extraordinary variegated institution that amounts to largely a symbolic legal statement in most states, and a reason to actually kill someone every month or so, in a couple of state (especially Texas).

While reminding us that more than a 1,000 people have been killed since the restoration of capital punishment in the late 1970s, Garland argues that the real value of capital punishment lies much more in the discursive opportunities it presents for politicians to signify their identity with vulnerable citizens, for the media to stroke existential anxieties that Americans share with most other people around the world, and in large part, to obscure the vastly larger system of mass incarceration which condemns millions to losing part of all of their lives in degrading prisons.

The happiest part of the discussion (for me) was the end where David talked about the possible path to abolition. The end game (which we are hopefully in) is all about states with symbolic death penalties choosing to abolish for cost savings issues. New Jersey and New Mexico have already done that. Illinois passed a law through its legislature but it looks like it may die on the desk of the new Republican governor. If such a process were to unfold, leaving the death penalty an all southern institution, it is possible that even a court dominated by conservatives and cautious liberals would decide that such a sectional institution was inherently cruel and usual (especially if they at least subrosa considered the international pattern).

I fear, however, there will be considerable resistance to this path by those who will argue that keeping even a symbolic death penalty is necessary to block the efforts of reformers to reduce mass incarceration by reducing lengthy sentences for non-capital murderers. This was the precisely the recent argument of conservative San Francisco pundit Debra Saunders (read her column here):

Is the answer to get rid of the death penalty because it's too expensive? Hell, no. As soon as the death penalty is gone, thug huggers will use the same appeals system to go after life without parole.

This suggests that the campaign for abolition must become part of the larger struggle against mass incarceration rather than a special pleading that often promotes longer punishments (like LWOP).

Sarkozy’s battle with the French magistrates

(Read Angelique Crisafis reporting in the Guardian here)

Special report from Simon Grivet, Paris

Her beautiful smile was everywhere. As soon as Laetitia’s disappearance appeared to be the result of a crime, her picture made front page news. She was an 18 year-old young woman living in Pornic, a small and tranquil seaside resort near Nantes. Hints of a tragedy soon accumulated as the police and gendarmerie intensified their search: her scooter was found, wrecked, on the side of the road; her boyfriend revealed text messages she sent the night of her disappearance in which she said she had been raped; moreover, the police finally arrested one Tony Meilhon, a 32-year-old marginal who had been seen with her the final night. Meilhon had a long record: at age 16 in jail he put a stick in the rectum of another inmate, sentenced for sexual crimes. Meilhon received a 5-year prison sentence he executed entirely. His life was never stable and he accumulated 14 other convictions for theft, robbery and his latest for contempt of the court. He was free under probation but had not yet met with his counselor and recently, in contradictions with the terms of his probation, moved to a new address. Meilhon stubbornly denied having kidnapped, molested or voluntary killed Laetitia. Confronted with such heavy hints of guilt as Laetitia’s blood and DNA in the trunk of his car, he stuck to the same improbable story: he had had a traffic accident with the young woman and, as he saw her dead after the shock, he threw her body in the river Loire. After harrowing days of wait for Laetitia’s family and friends, marked by silent demonstrations, the gendarmerie discovered parts of Laetitia’s body in a pond where the main suspect used to go fishing. The first investigation of the body would indicate that Laetitia had been strangled. Meilhon remains to this day defiant and mute.

On February 3rd, Nicolas Sarkozy came to the city of Orleans – 80 miles south of Paris – for one of his favorite duty: the inauguration of the a new police station. Sarkozy held the post of minister de l’intérieur Head of the Home Office between 2002 and 2005 and built his successful presidential bid in 2007 on a very determined and energetic “law and order” ideology. Security, the “fight against crime and criminals”, those he called “rabble” needed to be taking care of, even if it meant that some urban areas had be “cleaned with a Kärcher”. This tough talk almost immediately brought hostile reactions among civil rights advocates, lawyers and some magistrates. Once elected president, Sarkozy and his first Justice secretary, Rachida Dati, carried out a draconian program to impose a new severity against crime: in 2007 tougher sentencing guidelines for recidivists, in 2008 an almost unique law in Europe enabling the State to keep behind bars a criminal who would have done all his sentence but would have been adjudged “dangerous” by a special panel of magistrates and psychiatrists, etc. These policies have had debated results: more people are incarcerated than never before in France (62 000); at the same time, some French prisons are in disrepair and globally there are not enough spots in prison, overpopulation reaches 120%; crime statistics offer a mixed bag of conflicting results as delinquency appears to be declining but not the specific violence “against the person”, i.e. acts of violence, rape, murder, etc. are increasing. More generally, 15 months before the presidential elections, Sarkozy’s political situation is uncomfortable to say the least. He has lost every local elections held in France since 2007 and his approval ratings are stuck at 30%.

In this context, a couple of days after the discovery of Laetitia’s body, Sarkozy made the following comments about this affair:

“When a person like the presumed guilty is allowed to come out of prison without being sure that he would be followed by a probation officer, it is wrong. Those who have committed this fault or let it happened will be punished, it’s the rule.” And he added “When there is such a wrong which led to such a trap, our fellow countrymen would not understand if there weren’t any punishment.”

Those comments immediately stirred an intense emotion in the Nantes’ court were Meilhon had been sentenced for contempt of the court. First, many observers were surprised that Sarkozy would call Meilhon “the presumed guilty” as a suspect is of course presumed innocent until proved guilty. But magistrates more profoundly felt abused by Sarkozy’s comments as the President seemed to be implying that judges were somehow complicit in this tragic murder. Magistrates argued that they had warned their hierarchy many times that probation officers did not have an adequate workload: in spite of the recommended 60 cases they had 120 or more. Also, the Nantes’ court had only 3 juge d’application des peines (JAP) – a specific judge in France whose specific duty it is to follow and control probation and conditional releases of criminals – when they should have 4. In short, magistrates immediately reminded Sarkozy of the dire state of the justice system in France. Ranked only 37th out of 43 European countries for its justice system budget, France has had those issues for a long time. With only 7 billion Euros, the Justice department is supposed to run some 170 courts, pay all his personnel, their pensions and also run the prison system! Many courts in France are plagued with endemic and pitiful delays: a relatively simple criminal offense like speeding could take 6 to 9 months before being examined.

In Nantes and shortly in all other courts in France, magistrates postponed non urgent matters and adopted protestations motions against Sarkozy. Those actions were already exceptional in a group which by law has no right to strike and by tradition remains conservative and cautious about any involvement in the political arena. But to the surprise of many, especially older magistrates, the movement did not weaken. It led to an historic protest last Thursday when hundreds of magistrates, wearing their black robes, joined by lawyers and police officers, expressed their anger at Sarkozy and ask for better funding.

The fight between Sarkozy and the magistrates thus followed simple lines. Confronted with an original protest from a group he had previously castigated, Sarkozy and his allies presented themselves as the voices and representatives of the victim, close to the people and sharing his simple but essential indignation against such a terrible murder. Members of the government denounced a “corporatist, selfish” movement, “led by unions” and unable to understand the feelings of the population. The media named the magistrates’ movement “a Fronde” which is not a very pleasant denomination as historically the Fronde designated the nobility’s revolt against Anne d’Autriche, Mazarin and the young Louis XIV in 1648-53, a movement of the privileged few, compared to the great Revolution of 1789.

However a poll showed that 65% of the French understand the magistrates’ movement. Thursday night, Sarkozy spent 15 minutes in his 2 and a half hour televised show on the topic of security and justice. On the issues, he did not bulge: if mistakes were made in the Meilhon’s case, sanctions will be handed out. Moreover there will not be any new funding for the justice system. But he had to reassure the millions of viewers that “the immense majority of the French magistrates are doing an excellent job”. The following day, the magistrates’ unions expressed their disappointment and called for a continuance of the movement. Non urgent cases will be postponed again next week and it remains to be seen how the movement will end.

This episode illustrates several traits of the French political situation in a time of “government through crime” in all Occidental nations. First, Sarkozy plays the well-known “law and order” tactic: not only does he present himself as tough on crime and deeply concerned with victims but he also strongly criticizes the magistrates for being either incompetent or guilty of laxity. Second, the magistrates did react to this direct aggression although clumsily at times. The apprehension born out of the massive Outreau scandal – a dozen innocents spent 2 to 3 years in prison for imaginary pedophile crimes – has not disappeared. Sarkozy did play the Outreau card Thursday night reminding viewers that the main investigative magistrate responsible for it had only received a reprimand from his peers. However, the magistrates managed to set up an organized movement which was well received by the public opinion. Sarkozy’s operation of blaming the magistrates for the shortcomings of his policies might well fail this time.

Simon Grivet
History teacher, France

Should murderers have the right to vote in prison?

The fact that I'm even thinking about this issue is a testament to the cognitive difference of living in the European Community for the past six months. Five years ago, the Grand Chamber of the European Court of Human Rights held in the case of HIRST v UK, Application No. 74025/01 (read the case online here) that the UK must revise its law banning all prisoners from voting in at least Parliamentary elections. Hirst, who was convicted of manslaughter and sentenced to a discretionary life sentence with a tariff of fifteen years (the minimum term prior to any possible parole, based on retributive and deterrent considerations), claimed among other things, that the voting ban violated his rights under Article 3 of Protocol No. 1 of the European Convention of Human Rights, which provides that:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

The Court declined to specify which prisoners had to be able to vote, noting that in this area, the "margin of appreciation is wide" within which courts should defer to legislative judgments about the purposes of punishment and the conduct of elections; but they clearly implied that under Article 3 of Protocol No. 1, some prisoner must be given the right to vote.

In November, a chamber (roughly the equivalent of appellate court panels in the US) of the European Court of Human Rights took notice of the fact that five years and at least one national election had gone by since the decision in HIRST and the UK had still not revised its law. IN, CASE OF GREENS and M.T. v. THE UNITED KINGDOM, Applications nos. 60041/08 and 60054/08 (read it here) the Court ordered the UK to come up with a new law within six months, and ordered them to pay 5000 Euros in expenses to prisoners with claims currently before the court (with the strong implication that a similar payment would be required for any future litigation, perhaps multiplied by thousands of prisoners who could be expected to bring cases should the government continue to ignore the court).

As noted in yesterday's post, there is something of a backbench rebellion going on among both Tory and Labour MPs who would like to snarl at the European Court and denounce it for interfering with sovereignty. The government, however, is clearly moving rapidly toward a new law (the old one dates back to 1870). This morning on BBC4 radio, Justice Secretary Ken Clarke indicated as much (listen to it here, note there is along interlude on the finances of the Supreme Court before they get to the voting issue), and while he would not say where the government wants to draw the line, he did trot out the clear cases of those who would be excluded, murderers and rapists.

While the European Court may well approve not only the exclusion of murderers and rapists, but lots of other persons sent to prison for significant sentences (after all they did talk about "the margin of appreciation" being "wide" for the political choice element), there are some good reasons why a government less committed to populist punitiveness might well recognize a duty to let even murderers vote and an outside chance the Court will make them do it.

First consider that the Court declined in HIRST itself to question the legitimacy of the governments goal of punishing offenders through denying them the vote (choosing instead to focus on proportionality). But they may have to reach this issue in the next case. Is denying a murderer the right to vote for Parliament a legitimate form of punishment? In HIRST, the Grand Chamber did say this in paragraph 69 of its judgment:

In this case, the Court would begin by underlining that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention.

This expresses a theme elaborated even more by the The European Prison Rules (Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe) which states in paragraph 64:

Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.

While the recommendations of the Committee of Ministers are not binding on the Court, they have been influential. The essence of the argument is that, at least in Europe, punishment is limited to deprivation of liberty (and all that may be administratively necessary to accomplish that). Moreover, if there is to be a surplus beyond deprivation of liberty (the express argument of the UK government in HIRST), it surely cannot be one focused on status degradation, which offends the dignity principle running through much of the binding treaty law to which the UK is a signatory. For example, Article 10 International Covenant of Civil and Political Rights provides:

"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." (emphasis added)

I am taken, for the moment, with an analogy suggested in the Grand Chamber's judgment in HIRST to a prisoner's family status. In paragraph 69, the Court articulated examples of rights that prisoners do not lose by being imprisoned, and the very first one, other than the right not to be abused that they mention is "they continue to enjoy the right to respect for family life."

Should a murderer have their parental rights and duties terminated by conviction and imprisonment (beyond those duties made impossible by loss of liberty and penal segregation)? Is not being a parent just as honorable a status in our societies as being a voter? In fact, both mix duty and honor.

Beyond punishment, the UK government could claim that banning murderers and rapists is essential to preserve the integrity of the electoral process. Even assuming that murderers and rapists would vote their class interest in weakening criminal laws and law enforcement, what plausible argument is there that any competitive candidate standing for MP would seek to attract such votes by advertising their desire to be as lenient as possible with murderers and rapists, or weakening law enforcement to assure that fewer of them would get caught.

Perhaps there is an argument that if all prisoners were allowed to vote in the Parliamentary constituency where they are currently serving time they could swing a close election. But the government has a easy solution to that problem. It can allow prisoners to vote in the constituency in which they lived prior to incarceration (which is more likely to be their relevant community in any event). Even under conditions of mass incarceration (and just between the two cases, the numbers of potentially effected prisoners in the UK had grown by tens of thousands), there is no plausible scenario under which prisoner votes would alter the policy positions taken by candidates on law and justice issues.

On the other side there are compelling arguments that voting is an example of pro-social, non-self interested behavior that should be an integral part of the rehabilitative process which the UK remains committed to (at least in theory).

Prisoner Voting and Penal Populism in the UK

Last fall Justice Minister Ken Clarke issued a green paper [read the consultation paper here] on penal policy signaling a course correction from the mass incarceration policies promoted by New Labour during its 13 years in power (and indeed for the last two years of the Tory government which proceeded). Better use of community corrections for less serious crimes, reconsideration of mandatory minimums on life sentences, and restorative justice across the range of cases were all to be considered, with the goal of avoiding the continued growth of incarceration in England Wales. So far these signs have not been reversed. But the potential limits of the coalitions' experiment with reversing the larger constellation of penal populism, from which mass incarceration is a predictable result, are now on display as the government confronts a renewed call by the European Court of Human Rights to address a five year old mandate, utterly ignored by the previous government, to give most British prisoners the ability to vote in elections for parliamentary bodies (regional, national, or European), or face paying compensation damages to all otherwise eligible prisoners beginning with the upcoming regional elections (for the Scots parliament and the Welsh Assembly) [read the Guardian's coverage of the Novemeber decision].

Prime Minister David Cameron indicated that he would probably comply in order to avoid the hit on the exchequer of having to pay millions in compensation, but not without telling Parliament that it made him "physically ill" to think of prisoners voting [see it on YouTube here]. The PM chose an apt metaphor (I assume it was meant that way) to describe his response, since the attachment to voters through penal populism is required to be visceral. The fulle exchange should be viewed to see how committed the British polity seems to be to penal populism.

The exchange begins with a Tory backbencher asking whether hte Prime Minister agrees with him that the Human Rights Court's decision is "wrong" "because incarceration should mean a loss of rights, and that must surely include the right to vote." The PM said he "completely agreed" before sharing his bodily fluids issue. This exchange is followed by a labor backbencher who asks how the PM would look at "prisoners voting to to elect the crime commissioner or police chief." When Cameron attempts to pass it off, the Speaker to laughter (suggesting agreement) requests the PM to answer, after which he reiterates what a great point it is, before restating that it would be even more wrong to pay prisoners compensation money.

The implication, apparently shared by both the Conservative party and Labour (leaving Liberal Democrats possibly to resist on this), is that prisoners should lose all their rights, "certainly including a right to vote." The opposing view is now widely shared among European Human Rights experts. As Thomas Hammarburg, Europe's Commission for Human Rights, argued a few days ago in a Guardian Op-ed:

Convicts are human beings, with human rights. I hope the British authorities will respect the court ruling on voting rights for prisoners. They could do that knowing that most other member states of the Council of Europe already allow prisoners to vote – and this has caused no real problems and is not even an issue in these countries.

Hammarburg points out that the very idea of universal suffrage was a hard fought battle for equality won against the strong presumption that status should determine whether an adult citizen could vote or note. The UK is nearly alone in Europe in maintaining that prisoner status is an exception to that revolutionary democratic principle.

Whether the current British government will ultimately fulfill the mandate is unclear. The government faces a brewing backbench rebellion on the issue, and one prominent conservative think tank has now called for the UK to withdraw from the jurisdiction of the European Court of Human Rights, despite being one of its founding members some 60 years ago. [read Patrick Wintour's analysis in the Guardian here]

As if to solidify his presence as a "tough on crime" leader, David Cameron took the opportunity of a report on the previous government's role in forwarding Libya's appeals on behalf of Abdelbaset al-Megrahi (convicted as the Lockerbie bomber, but released more than a year and a half ago by Scottish authorities on compassionate grounds that he was dying of cancer), to let everyone know that he believed al-Megrahi should have "died in prison." [On the report see Severin Carrell's reporting in the Guardian here]