Begging The Question

Thursday, June 01, 2006

"You won't break my heart," and "I don't love you."
Mike at Crime & Federalism linked to this page from the Texas Department of Criminal Justice which includes the last statements from executed inmates. Some of them are as mundane as a statement under such circumstances can be; it's not as if some of these folks can suddenly become erudite and articulate. Some of them read like a prepared filibuster; some seem extemporaneous. But they all have some power simply because of the circumstances. Even "What about those [C]owboys?" It's an interesting browse. It reminds me of the page they used to have relating imates' last meals. (Data on about 300 last meals is available here, and more last meal info here.)

Some of the last statements are truly poignant. For example, the statement from Napoleon Beazley. It's an eloquent and thoughtful statement, and it's impossible to separate from Beazley the man and the facts of his case. Beazley gained some notoriety because he murdered the father of (former) Judge Michael Luttig. And, because he was 17 at the time of the crime, he would have been saved by the Roper decision if he'd lasted just a couple more years.

As moving as Beazley's statement is (and, to be fair, Judge Luttig's victim impact testimony at Beazley's sentencing, which I read in Texas Monthly, is incredibly powerful and moving, too), I wonder why we still have this tradition. Why do we still provide prisoners with an opportunity to make a last statement?

I suppose that, dating back to burning witches at the stake, the idea was to give the condemned one last chance to repent or perhaps express remorse. And certainly some modern inmates take advantage of that chance. Statements of regret and pleas for forgiveness aren't uncommon. It's rare, though, to hear a deathbed confession, and rare for an inmate to profess regret for the first time one he's strapped down. It's much more common to hear repeated denials and declarations of innocence.

Even if we did get confessions or statements of contrition, they really would be the epitome of "too little, too late." Any prisoner who wanted to use such sentiment as a means to avoid execution would certainly have pressed the matter in court prior to the zero hour. That's a consequence of the post-Furman jurisprudence that enhanced the role of the courts in "the machinery of death" and diminished the role of executive clemency. (Of course, it's not like the Governor is listening when the condemned makes his final statement.) I have trouble imagining a plausible scenario in which an inmate's last words could have a real, practical impact and delay or prevent the execution from proceeding mere moments later. (One exception: an inmate who has waived all appeals might be able to stall things if he suddenly became eager to litigate.)

So why maintain this tradition? If it's to give the condemned a chance to say goodbye to loved ones or make some final prayer or proclaim innocence one last time, there are opportunities for these before the convicts enter the death chamber. And there's certainly less pressure before they take that final walk. If it's to direct the statement to the family of the victim, there's no guarantee they'll come to witness the execution, and no reason the inmate couldn't issue a statement to them earlier. I'm not saying that prisons should silence condemned inmates, just wondering why they provide for a final statement when and where they do. Why the formal process at the absolute last, and most tense, moment?

Is it constitutionally required? I don't think so. It seems that such an argument could be based on the notion of "access to the courts" under the First Amendment. But, as I've noted, an attempt to halt the process is completely impractical once the inmate is horizontal. The prisoner would have had fair opportunity to petition the courts prior to the last minute. (I'm leaving aside a challenge to the method of execution that doesn't become apparent, or ripe, until the moment comes. Even then, it's doubtful that the inmate's formal last statement would make the difference, although a stray, unplanned comment might.)

Another argument might be that the inmate has a constitutional right to seek executive clemency right up until the moment of death. I think there is a constitutional right to seek clemency at some point -- too many of the Supreme Court's death cases depend on clemency as a final fallback for inmates who have exhausted appeals for it to be totally foreclosed as an option. But I think the Governor is probably able to set some limits on the application process, and would probably be able to justify denying clemency for the sole reason that the inmate waited too late (thus indicating it's probably just a stalling strategy). So, although it's a closer call, I think a state could forego the final statement process as long as the inmate had some other means to petition for clemency.

Are last words different than last meals? Most states have some restrictions on the meals, either by prohibiting certain items or limiting the inmates' choices. If we don't have to provide a special "last meal," do we still have to provide a special forum for last words? Even that forum isn't unlimited -- the warden probably won't let a convict talk himself hoarse before eventually giving the go-ahead. And note that we don't make the inmate eat the last meal inside the death chamber on top of the gurney.

Wikipedia says the last meal tradition is probably based on superstition and/or a desire for the condemned to meet his fate calmly. I suppose that explains the last words thing, too. Witnessess (and participants) might find it unseemly for the inmate to be frantically trying to shout out a final statement while the process is underway. The condemned might resist until he's said his piece. Still, we see cases where inmates forego a final statement and are calm and cooperative nevertheless, as well as instances where the inmate protests and fights before, during, and after the opportunity to say a few words.

I'm not suggesting that a state should do away with the last words tradition. I'm just pondering why it persists, what purpose it serves, and whether a state could stop if it wanted. As always, your thoughts are appreciated.
Well, the engineer said before he died
There are two more drinks that he'd like to try.
The doctor said, "What could they be?"
"A hot cup of coffee and a cold glass of tea."

--"Rock Island Line"

(Limitless internet glory to anyone who can provide the source for the title of this post. If no one figures it out without googling, I'll post the source in a few days.)

Tuesday, May 30, 2006

This and That
I took the long weekend off from pretty much everything, including blogging and blog-reading. A few thoughts collected from over the weekend.

1. I'm still really digging Pandora, the preference-matching music site I mentioned last week. It's like listening to someone else's iPod, in that you never know what's coming next, but it's pretty uncanny in sending similar music. It's not perfect -- note that it limits how many times you can skip ahead in an hour, so choose those skips wisely. And when you add a new artist to your station, it tends to load you up on them for a while, before getting back into the mix. (I eventually had to split my set of favorite artists into two stations to solve this.) But overall, it's a lot of fun, and it's pointed me to lots of bands and songs I wouldn't otherwise have found.

2. Prof. Yin had an interesting post about differing self-interest-protection norms in the restaurant business and lawyering. He notes that lawyers in litigation have to take steps to protect their interests, for example by not accidentally turning over too much information in discovery. At a restaurant, though, the norm might be that customers will bring it to the server's attention if they weren't charged for something. But (assuming such a norm exists, and I think among most honest people it would), it's not just because we've excused the retsaurant from protecting its interests. It's because we've already consumed the food, and it's fair to pay for what you order. The law analogy would be if the firm accidentally underbilled the client, for example by omitting Associate Yin's fine document review. The client has consumed those efforts, and it's only fair that the client pay for them. The difference is that, in the restaurant context, the customer has the information; the customer is much more likely to remember what he or she ordered and ate than a busy server working several tables. In the legal arena, the firm has the information; the client won't know who worked on a case for how long until the firm sends a bill. In the discovery mix-up Prof. Yin posits, the firm receiving the mis-sent document has the information, and the other firm lacks it.

So, the question is really about when we decide it's fair to obligate the information-holder to protect the interests of the information-lacking party. Even in the "adversarial" legal system, we don't always leave the parties to fend for themselves. This is especially true in the criminal context, owing to the unique role of the prosecutor. The prosecutor's obligations under Brady v. Maryland are the most obvious instance: the prosecutor is required to turn over potentially exculpatory evidence to the defense. In civil discovery, the roles of the parties are different, and the question is closer.

3. I finished King Dork over the weekend. Review to come, sometime. In brief: I really enjoyed it. Here's the author's blog. I didn't realize until I was finished that it's officially classified as "teen/young adult." That probably explains why I couldn't find it in the bookstore. As PG notes in regard to The Once and Future King, there's nothing wrong with adults reading books aimed at adolescents. And I re-read The Westing Game last year. Oh, and I suppose a few bajillion Harry Potter fans would concur. Anyway, I'm not going to make a habit of shopping in the "teen" section of the store, but I think a good book is a good book, so I didn't feel weird about liking King Dork. Anyway, more on the audience when I review it, if I can remember.

4. I'm not going to whine for a review copy of Jeremy Blachman's Anonymous Lawyer. But I checked out the Anonymous Law Firm mock site, which Jeremy produced as a tie-in for the book. There's a link here. There are some funny things on there, especially the "Diversity" page. Also, if this story is true, real life is still stranger than fiction.

5. Is Centinel still alive? Just wondering. Surely someone's done something worth mocking since he last posted in February.

6. Crazy story out of Atlanta. A group of teenagers had been undertaking a series of robberies, and thought they found a new victim. They accosted a 36-year-old waiter walking on the street. The four robbers had a shotgun and a .380 pistol. But the guy they picked on was an ex-Marine with a pocketknife. One of the robbers ended up dead; another is in serious condition at the hospital; the others are under arrest. The Marine had a cut and a bruise.

7. Will Baude and Marty Lederman, among others, are discussing Judge Richard Posner's review of the two new books about Supreme Court clerks. (They have all the links, so I'll send the traffic to them.) One idea Posner and Baude (who used to work for Posner) endorse is the publication of cert memos, to give the public a look at the reasons behind denials of cert. I wonder if they think judges should make their clerks' bench memos public as well. I've gone on record (somewhat tongue-in-cheek) in favor of the philosopher-king model of the imperial judiciary, so my feelings are at best mixed. I think I agree with Lederman's suggestion that we would be unlikely to learn anything new, especially if the memo writers start being extra-careful about what they say, lest posterity be watching. There's still always going to be some subjectivity to the criteria for granting cert, especially if the ground is something as nebulous as a sense that the case isn't "important enough." Unless the justices are required to reveal their inner thoughts, we can't ever really know the whole story. What will a perfunctory memo add to that? Baude, I presume, would place the burden of justification on those who would keep such items secret. I don't the risk of "chilling" candor is that great, although my guess is the justices would disagree.

I suppose if I were forced to come up with something, I'd offer this. Now, with "secret" cert memos, there's still a good chance that the public will eventually be able to examine them when a justice's papers become open to the public. Yes, it may be years later, but that's the system we have with lots of classified documents from the executive branch. Ordering the publication of cert memos runs the risk of driving some of the discussion "off the record," into private conversations between the justices and their clerks. History is unlikely ever to learn the content of those chats. At best, we might get some potentially inaccurate notes of the discussions. Perhaps the parties will be more candid if they know that the memos won't be made public at least until the justice is off the bench. (That's the norm, at least; there was some controversy when Justice Blackmun's papers were made public while several of his colleagues remained on the Court.) I don't know if this reason is convincing to anyone, but there it is. I wonder, though, if Will would articulate why it's so much better to see the memos now, rather than a few years later.

8. I'm thinking about a couple of blog projects, and occasionally musing about starting a new, "spin-off" blog. I'm not sure about any of these yet, so there may or may not be announcements in the near future. But I've got big dreams. Alas, I'm kind of busy at work these days, so blog-time is spotty. Thanks for hanging in there. At least I'm posting more than Centinel.

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