RSS FeedThe death of Troy Davis
On September 21, 2011, at 11:08 pm Eastern Daylight Time, Troy Anthony Davis was declared dead.
Cause of death: lethal injection. Administered by: employees of the state of Georgia. Legal justification of homicide: a court order. Grounds for the court order: Troy Anthony Davis’s murder conviction.
Societies punish crimes for specific reasons. Section 718 of the Canadian Criminal Code is a good summary of purposes of criminal sentencing:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Death penalty doesn’t rehabilitate or deter the offender, doesn’t compensate anyone, and doesn’t make the very dead offender feel any responsibility for or acknowledge anything. It should be pretty clear by now that it doesn’t deter others too. It does separate the offender from society, so to speak, but usually prisons do that job perfectly.
But denounce, it does.
So the only true reason for death penalty is denunciation. All other reasons either do not exist or do not require death penalty. Societies, at least rational societies, kill only to denounce, to show contempt for the crime, to assign a special measure of gravity to the illegal act. There is no other reason. The only reason for death penalty is really a symbol.
No doubt, denunciation can be a valid reason. But let’s see what price we pay for denouncing by death.
You can look up Troy Davis yourself and find out that his conviction was based on eye-witness testimony much of which was later recanted. I probably don’t need to explain why this creates a possibility that he was innocent. This possibility is also called reasonable doubt. And the supreme value of our society is preservation of innocent life. You would think the courts would choose the chance and the possibility of preserving innocent life over a chance to denounce murder. After all, no one would think more kindly of murder if Troy Davis got a life sentence or if he was released based on reasonable doubt in his guilt. And there is another value the courts would have protected if they spared Davis’s life: fairness. The more opportunities an accused person has to clear his name, the more fair our legal system is.
But the courts chose a different value over all the others: finality. Its purpose is to unclog our court system and to give litigants some sort of confidence that their case is not going to be reopened. This value is very important in civil litigation: hence, limitation periods, res judicata, etc.
In criminal law, finality serves victims and their families and the public purse to some extent. It doesn’t usually serve the accused, and it certainly didn’t serve Troy Davis.
The courts chose finality for the victim’s families and the public purse over fairness to Davis and preservation of his potentially innocent life. You decide if it was the right choice.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Against assisted suicide
A few days ago the Canadian House of Commons rejected an assisted suicide bill. The proposed legislation would allow doctors to help terminally ill patients or people in unrelenting pain to end their lives. Currently, doctors or nurses or anyone else who helped someone die would be liable to murder or manslaughter charges and perhaps civil damages. Very few jurisdictions in the world authorize assisted suicide, which seems to be a “victimless crime.” The recent failure of this bill in Canada is a good opportunity to review reasons why society denies us an inalienable right to control our own death.
The dying person certainly has an interest in the right to end own life. First, suicide would stop unimaginable suffering. Second, the debilitating suffering is an affront to the patient’s dignity. Third, the dying person may want to accelerate the transfer of his or her property to the heirs. Fourth, the patient desiring suicide may wish to spare his or her loved ones the mutual torture of the situation. Finally, the patient may want to cap his or her health care bill. That of course is not very relevant in Canada unless your province refuses to pay for a life-saving cancer drug.
Not all public interest is against the dying person’s wish. Respect for private will and the freedom to choose is an important part of the Western way of life. But the difficulty here is that dying patients and people in unrelenting pain may have lower decision-making capacity so the society must take extra steps to ensure it understands the will of the patient correctly and that the patient is capable of forming decisions.
Generally, all issues that the society has with assisted suicide are rooted in the overarching interest to protect human life. Death is irreversible, so the risk of mistake is unacceptable even if the risk is small. The harm from assisted suicide based on a mistaken conception of the true will of the patient is enormous. People in great suffering are vulnerable and may have a lower capacity to make decisions or to communicate their true will. It is reasonable to speak of a slippery slope where we take less and less precautions or where our precautions are not enough in harder cases, which we cannot recognize. That path will take the society to where it may kill people who do not really want to die but simply cannot tell us about it.
That’s why, incidentally, the death penalty should be abolished: unless we can guarantee guilt, every time we kill a convict we risk killing an innocent man. Unless a convict’s life is less valuable than a patient’s, our highest duty to preserve life must make any risk of unjustified killing, including in the death penalty, unacceptable.
Another slippery slope argument is that the society will be seduced into tolerating more relaxed requirements for assisted suicide to lower the high cost of caring for the dying. The flip side of this argument is that we should prohibit assisted suicide to protect our standards of caring for the dying.
Our society is extremely complex and it is far from perfect. We make mistakes all the time. Sometimes, politics, ideology, or emotion influence decisions that should be exclusively technical. The risk of killing a dying patient who may not really be willing to die is too high given our paramount social duty of preserving life. Besides, modern science can certainly come up with means of reducing or eliminating suffering on the death bed, if not push the death farther away. Authorizing assisted suicide (just like authorizing the death penalty) is not a good idea.
(Post sponsored by AdviceScene)
Into the minds of the condemned: statements from Death Row
What’s it like to live on Death Row? What’s it like to die there?
I wonder how a person can stand to wait in a small cell, watching the second hand of a clock tick down to their execution? After an average 10 year wait, the person is finally led down a hallway, strapped to a gurney, and injected with a lethal cocktail of drugs.
Since 1982, when Texas began utilizing lethal injections to kill people, 441 people have been executed by the State. Moments before the execution, the warden asked each of these inmates whether they had any last words. All of their last statements have been recorded.
A friend of mine sent me a link to the Texas Department of Criminal Justice’s Death Row page, which contains every last statement given since 1982.
I have to admit that I sat for an hour and read over a hundred of these last statements. There was something incredibly powerful and compelling about the final words that a person speaks when they know they are about to die. I had a hard time pulling myself away from them.
It doesn’t matter whether you are for or against capital punishment. If we move beyond the cold statistics of the offender’s height, race, and education level, their last statements poignantly remind us that these convicts are human beings that bleed and feel pain like you and I.
Many of the statements express remorse. Others are shocking. Some are even funny. But the common thread that ties all of the statements together is the foreboding sense of inevitability, resignation, and acceptance of a pre-determined fate. I have reproduced some of the statements below (in their entirety):
Blawg Review #228
If you’re just starting law school, law blawgs can be your best friend. In addition to this site, here are 99 other blog posts that you should read to help prepare for your adventure. It won’t help you though if you’re a judge about to be tested.
Most law students want to be in the top 10-15% of their class, and there are career opportunities that depend on that. Ken DeLeon of Top-law-schools.com provides some tips for success in law school, including a handy flowchart on how to prepare for your law school exams. But keep in mind that the end of the billable hour might result in some changes to your legal education, and law students have different learning styles than the rest of the population.
Still applying to law school? An undergraduate degree in physics or math might be your best option to get a solid LSAT score. Remember that these days a law career is considered a risky option, and there are lawyers in Jersey actually working for free. Where else is success defined by more work (even for less pay), and not more recreational or family time? Larry Ribstein still thinks law school is the cool choice. But is it really worth it?
On the other hand you could elect to skip your classes, get intoxicated regularly, sleep with all the members of the opposite sex, gain a reputation as being a total douche bag, and then score a book and movie deal.
Introducing Tucker Max – asshole extraordinaire – a graduate of Duke Law that claims assholes finish first.
An inspiring personality, certainly, and an approach that John Infante of Fearfully Optimistic would definitely disagree with. It does make you wonder how many Dukes are faking the Daisy to hazard “celebrity bias.” The Bitter Lawyer has an exclusive interview with Tucker that is, at the very least, amusing.
Then again, “skipping classes, playing basketball, doing cocaine and getting drunk” might help you become President of the United States – but eventually someone might start asking for your law school transcripts. None of this is likely to come up during the President’s special advice to students tomorrow (Sept. 8). An open and transparent government, perhaps, but not that open. Reality check: the last refuge of the persecuted crack smoker may not be in law school.
Hey, “Some people snort cocaine, others snort religion,” and the latter is not necessarily better. The Exit at My Legal Fiction suggests wearing lipstick as a law school study aid, for some very compelling reasons. If you’re a missionary in Kenya, please don’t vow to go to law school out of religious convictions, unless you’re going to a low-ranking religious-affiliated law school. Happy Belated Todd, but I won’t be paying $25,000 for dinner any time soon.
Still, your biggest youthful indiscretion might be going to law school itself (and graduating at the bottom of your class hardly precludes success). If your indiscretions precede law school and include a criminal record, there are some disclosure issues you should consider. Using stolen Social Security Numbers to steal student loans for partying, with Tucker, Todd, or otherwise, probably isn’t a great idea. Assistant Deans at law schools? Not a good idea either.
Robert J. Ambrogi also tells us about Branigan Robertson of Chapman University School of Law, who won $10,000 for this video in the My Inspiration video contest:
These law students are doing better than a lot of lawyers these days. When life gives you lemons (or a recession), you should just make lemonade. Dan Markel is asking, what kind of juice are you making?
On the other hand, if you’re looking to avoid personalities like Tucker Max at all costs, you might be interested in Above the Law’s Douchiest Law School Contest.
No surprise that Harvard and Duke are currently heading the pack as finalists. Also check out Paul Caron’s review of U.S. News Law School Rankings for Judicial Clerkships, which includes data from Brian Leiter’s rankings. If douchiness turns you off of Yale and clerkships are really important to you, the University of North Dakota might be a good alternative. However, great credentials don’t always make more satisfied lawyers, because these guys tend to be plagued by that green-eyed monster.
Charon QC’s musings might be useful in determining if a “douchy law school” is worse than a “McDonalds of law schools,” while Dan Slater of the NYTimes suggests just locking the doors to all law schools because there are too few hiring positions. Still having a hard time picking a law school? The iPhone app Law School 100 is free until midnight tonight (Sept. 7). Study aids are becoming more interactive, with West’s new Interactive Case Series now linking to directly to law review articles cited in the case series.
Keep in mind that law school is different than undergrad, and you should probably clean up those social networks you’re on. After all, you wouldn’t want your mom witnessing you pulling a Tucker Max, and some employers might require you to submit your social media for a background check. Social media is also being increasingly being used in the courtroom, and no, the judge doesn’t really want to be your “friend.” Don’t get rid of that social media entirely though, because “People don’t find lawyers in the phone book… They find them through TV ads or friends or by searching the Internet, including blogs and social networking tools.”
Apparently what clients really want from their lawyer is to “feel the love,” so if someone comes to your office complaining they hurt their “tushy bone,” try not to laugh too hard. Be forewarned though – that volenti non fit injuria doctrine you learn in Torts class also applies to contracting Herpes Simplex I from wrestling, also known as Herpes Gladiatorium.
That’s probably not what Lauren in Law School had in mind when she suggested gladiator games as an alternative to On Campus Interviews (OCIs). You can get a list of the guys in your university with herpes from the new Campus Gossip site just to be on the safe side.
Although the number of followers you have on Twitter is no sign of of expertise or influence, it might land you a job (or lose it) with a firm or get you published, even if Perz Hilton decides to sue you for defamation. No “love” (or wrestling) for him, sorry. Some people do take Twitter seriously, perhaps too seriously.
Eric Goldman’s interview with David Lat highlights the importance of students networking during a crisis. Dennis Jansen also thinks that networking with your peers might be useful, but consists of more than “beaming your peers with business cards or mass-adding people on Facebook and LinkedIn.” As popular as WordPress may be for blogs, it just might not be for your law firm, and you even might be held liable for content on your site to a tune of $32.4 million.
The Law Society or State Bar is probably not going to like it if you steal other people’s Twitter content and pass it off as your own, like Melina Beninghoff did . Stealing content doesn’t take brilliance, and it barely takes effort. What is clever is coming up with this CraigsList listing from Los Angeles. But is stolen content any worse than fake content?
Today is also Labour (sic) Day in Canada and the U.S. That’s the Canadian spelling, because Labour Day did originate in Canada in 1872 with the Trade Unions Act, which legalized unions. The United States followed in 1882 with informal observance in New York City, and by 1894 it was observed by 23 states through legislation. Still, it was the American President Lincoln, not a Canadian, who said in December 1881,
It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor…
Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not existed.
Although most Canadian law schools start the day after Labour Day, many Americans start a week or two earlier. According to Blawg Review 122 it seems that in Dublin they start as late as October, but it might just be that everyone (students and profs) are recovering from prolonged hang-overs.
Labour relations are highly relevant for this edition of Blawg Review, since law professors at the University of California are considering a walk-out despite having the “best public education in the world.” Perhaps they could use this list of 24 alternative mediation dispute resolution sites to read.
Maybe they should just settle this all over a beer. Then again, those Canadian brewers are at it again with their trade-mark litigation! Next time someone tells you “I Am Canadian,” you might want to do your due diligence.
The big thing up here in Canada right now is Copyright Consultation Reform. Although over-reaching legislation is great for the lawyers, it does little for end-users of copyright material. If you’re one of those folks with a keen attention for cyberspace cases, this new blog following the 10 most important U.S. cases will probably be of interest.
But the big thing about Canada in the U.S. right now seems to be our healthcare system, which we’re rather partial to, despite what they mights say (Ignore those pesky suits). Send us your gladiators with herpes, and your perdurable impetus. All that talk over at Volokh about a “lottery system” can only be described as nonsense.
(At 1:53 Glenn Beck repeats lottery libel, and at 3:21 yells at a caller to get off his phone, “you little pinhead,” for not listening to the “facts.” The remix is even funnier.)
Although she acknowledges that healthcare reform is needed, Althouse has 10 things she hates about it. Change is always hard due to “status quo bias.” Madeleine Begun Kane has a limerick she wrote just for the spats over healthcare in the U.S. (watch your pinkies!):
“Majority rule is just great,”
Said Gregg in the drilling debate.
“You’ve got 51 votes,
Then you win.” Check his quotes.
Yet 51 Dem votes don’t rate.
Seeking medical treatment is probably the first thing you should do after a car accident, irrespective of whether it occurs in Canada or the U.S. Passen Law provides 9 other things you should do, including, of course, getting an experienced personal injury lawyer.
Another thing we have in Canada absent in the U.S. is a prohibition against the death penalty. Perhaps the fact that 45% of wrongful convictions in capital cases are based on jailhouse snitches has something to do with it. Mark Bennett of Defending People points out the interesting observation that a Texan executioner appears to be committing murder by that state’s law,
…would you participate in a death penalty trial, knowing that, for the rest of your life, with the turn of a tide of public opinion you could be prosecuted for making what you believed to be the right decision? You may be betting your life.
Do you think that employment contract with the State would protect you? Don’t count on it, as Jeffery I. Gordon mentions that most contracts are too brittle to withstand scrutiny, even if those FirstDrafter clauses look like they can do the job.
On the other hand, if your employment contract follows an affirmative action plan that is not remedial and narrowly tailored for past discrimination, it may constitute unlawful discrimination. We’re still not sure if a stripper constitutes an employee or an independent contractor in Employment Law class.
More guys in that class would probably express their anticipation for seeing Jessica Alba as the stripper-law student Nancy Callahan in the upcoming Sin City 2 if they weren’t concerned about objectifying women.
Don’t lose any sleep over it, unless you’ve sexually assaulted employees and are settling for $1.72 million. Be careful though – the risk of contracting gladiator herpes (and sins) rises exponentially when wrestling with strippers. You could also get robbed or raped.
Personally, I would be okay with any affirmative action that sought to get everyone but Tucker Max and any potential douches into my law school. Nancy Callahan might get a pass, as long as she doesn’t hook up with Tucker while she’s there.
Special thanks to David Shulman for editing on this piece.
That’s it for this week’s edition! Remember: Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
