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Tookie Williams Clemency Petition Denied:
CNN.com has the story.
WB:
Schwarzenegger's written denial here.

Following some of the previous posts at this site on the Tookie case, see footnote 5 on page 4 of the denial. "Williams' perennial nominations for the Nobel Peace Prize and Nobel Prize in Literature from 2001-2005 and the
receipt of the President's Call to Service Award in 2005 do not have persuasive weight in this clemency request."

At first glance, it's a strong opinion. And Schwarzenegger got it right.
12.12.2005 4:08pm
Thorley Winston (mail) (www):
Good for Governor Schwarzenegger and good riddance to this piece of human filth who murdered four people.
12.12.2005 4:37pm
tefta (mail):
He lived 20 years longer than his victims. I hope this ends the trend for postponing and appealing executions until the original crime seems like ancient history. Right now there's someone on the radio ranting about black people and genocide. I'm glad it'll be over tonight.

I hope he does win the Nobel Peace Prize. Maybe a dual prize with Tookie and Cindy taking top honors. His share of the money to be given to his victims' families and hers for perpetual care of her poor son's grave.
12.12.2005 4:46pm
Bob Bobstein (mail):
Let us hope that some good may come of this-- attention to his anti-gang work, closure for the victims' families.

I don't like the death penalty-- the state is not infallible, and it is unevenly applied-- but it is hard for me to feel sorry for Williams.

The Nobel nominations shouldn't have any weight, right, much less persuasive weight.
12.12.2005 4:54pm
VC Regular (mail):
If man will not, then may God have mercy on his soul.
12.12.2005 4:54pm
Thorley Winston (mail) (www):
If man will not, then may God have mercy on his soul.


Wrong zip code.
12.12.2005 5:04pm
Cornellian (mail):
Seems like the right decision for the right reasons.
12.12.2005 5:04pm
therut (mail):
I agree May God have mercy on his soul. Justice now can be done.
12.12.2005 5:10pm
David M. Nieporent (www):
I hope he does win the Nobel Peace Prize. Maybe a dual prize with Tookie and Cindy taking top honors. His share of the money to be given to his victims' families and hers for perpetual care of her poor son's grave.
I know that wasn't really serious, but FYI, you can't win the Nobel posthumously.
12.12.2005 5:12pm
Matthew Valenti:
To me, the "look at all the good he has done" argument always rang hollow. Look at all the evil that has come from the gang he founded. If we are to grant clemency due to beneficent actions he has undertaken in prison and ignore his crimes, should we not also pile on his shoulders all of the bad the Crips have done since his conviction. If so, the scale is a bit lopsided against him.
12.12.2005 5:16pm
Shelby (mail):
I take no position on the clemency issue in this case. It does seem to me, though, that there was one good argument for it in this case that is rarely present: it would reward his efforts to do good works after he was imprisoned. If more people on death row felt an incentive to try to improve the world as he did, we might all benefit.
12.12.2005 5:17pm
Frank Drackmann (mail):
It amazes me that the execution protocals for most of the states include the option, in addition to a last meal of his choice, for the prisoner to recieve sedation (usually valium) several hours before the execution. Lethal injection isn't the cakewalk it seems to the layman. Usually they start 2 LARGE IV lines, and without the benefit of local anesthetic like your anesthetist would use starting your IV prior to surgery. The potassium injection burns like crazy although the prisoner should be unconscious by then. This is one example where there is probably more actual physical pain, albeit minor, compared to hanging,electrocution,or lethal gas. He still deserves it though.
12.12.2005 5:17pm
carpundit (www):
I was disappointed not to hear Governor Arnold say, "You're Ter-min-ate-d."

Sure, it wouldn't have been appropriate, but it would have been funny as hell.
12.12.2005 5:23pm
Andy Freeman (mail):
> attention to his anti-gang work

Did he ever rat-out Crips? If not, "anti-gang" work is something of an overstatement.
12.12.2005 5:32pm
Glenn W Bowen (mail):
the people of california sentenced him to death; even if his books did do any good (I read there was less than 50 of them sold), that does not address the crimes committed, and the will of the people of california.


[Dave Kopel here. I've also heard the "less than 50 sold" stuff, but I don't think it's true. I looked up his books on Amazon.com, and based on the sales ranks, there must have been far more than 50 sold. No sensible publisher, no matter how extreme its politics, would give a book contract to someone whose previous book had only sold 50 copies.]
12.12.2005 5:38pm
Visitor Again:
It's a very sad day.
12.12.2005 5:52pm
steveh2 (mail):
Can someone explain -- or provide a link to an explanation -- how so many posters on a purportedly pro-libertarian web site are so strongly in favor of the death penalty? Isn't granting the government the right to kill its own citizens the antithesis of "limited government"?
12.12.2005 5:57pm
The Editors, American Federalist Journal (mail) (www):

Isn't granting the government the right to kill its own citizens the antithesis of "limited government"?


"Isn't granting the government the right to imprison its own citizens the antithesis of 'limited government'?"
12.12.2005 6:21pm
Justin (mail):
Federalist, given the widely accepted concept that killing is "worse" than imprisoning, I don't think the idea that once you give the government some sort of power over an individual, you have no principled way of arguing for the government to have complete power over the individual, is one that liberterians generally support.
12.12.2005 6:37pm
PersonFromPorlock:
Can someone explain -- or provide a link to an explanation -- how so many posters on a purportedly pro-libertarian web site are so strongly in favor of the death penalty?

If we don't punish criminals after the fact, we have to restrain the whole populace to keep the crime from happening. Punishment may not be good but it is better for freedom than prior restraint. It's that simple.

I am not wild about the death penalty but it is a logical extension of punishment.
12.12.2005 6:44pm
AF:
steveh2: Because most of the posters aren't libertarians, they're conservatives.
12.12.2005 6:45pm
Steve:
Imprisonment for life is hardly a cakewalk in comparison to the death penalty, and some would find the prospect even worse. Both of them are very, very serious powers to arrogate to the government.
12.12.2005 6:50pm
The Editors, American Federalist Journal (mail) (www):
Justin,

How does a sentence of life in prison, without the possibility of parole, not constitute "complete power over the individual"?
12.12.2005 6:55pm
Glenn W Bowen (mail):
we can let the number of books sold go, then. my point would be he was convicted and sentenced by the state (the people) of california- the death penalty is not an instrument of rehabilitation or reform.

BTW I'm not a libertarian. I'm a conservative convert, and a gun nut.
12.12.2005 7:01pm
steveh2 (mail):
I have two responses on the imprisonment vs death issue.

First, death is clearly a greater exercise of power than imprisonment.

Second, I would imagine that strongly committed libertarians/small-government-types would grant the government the power to protect itself and its society, which would thus justify imprisonment as necessary to prevent crime. This could justify capital punishment IF it were shown that capital punishment actually protected society, i.e., deterred crime, and did so more effectively than imprisonment. This, of course, is subject to doubt.

Can anyone post a link to where this issue has been discussed?
12.12.2005 7:10pm
The Editors, American Federalist Journal (mail) (www):
steveh2,

First, death is clearly a greater exercise of power than imprisonment.

Yes, it is. And life imprisonment is a greater exercise of power than a twenty year sentence, or a ten year sentence.


I would imagine that strongly committed libertarians/small-government-types would grant the government the power to protect itself and its society, which would thus justify imprisonment as necessary to prevent crime.


The DP does prevent crime. No executed murderer has ever re-offended, but many imprisoned murderers have re-offended.

How should society punish a person who, while serving a life sentence, murders a guard or another prisoner?

The DP is the punishment that fits the crime of murder. It is unjust to allow someone to keep what he has stolen from another.
12.12.2005 7:28pm
Shelby (mail):
steveh2:

I don't have a link handy for you, but as far as I know libertarians are not per se opposed to judicial purposes other than crime deterrence/prevention. That is, I think one can be libertarian and still accept, e.g., punitive or retributive purposes. Though I'm open to counter-arguments.
12.12.2005 7:33pm
Frank Drackmann (mail):
Does the executioner tonight have to use alcohol to wipe the skin prior to starting the IV? Don't want Tookie to get a nasty infection.
12.12.2005 7:49pm
Owen Hutchins (mail):

The DP does prevent crime. No executed murderer has ever re-offended, but many imprisoned murderers have re-offended.

And every innocent person executed has continued to not kill people. It's a win all around!
12.12.2005 8:31pm
Marc Bohn (mail):
Wow. A lot of you seem pretty lustful for blood. Even if you believe someone deserves the death penalty, I don't think it's something that anyone should be gleeful about.
12.12.2005 9:47pm
The Editors, American Federalist Journal (mail) (www):
Owen, can you name an innocent person who has been executed, or are you dealing in hypotheticals? I can name a real murderer who re-offended because he wasn't executed, probably lots of them with a little research.
12.12.2005 10:13pm
breen (mail):
Here ya go:
Here ya go:
12.12.2005 10:53pm
Frank Drackmann (mail):
Just from an environmental standpoint..in his over 20 yrs on deathrow Tookie has used over 3million Litres of Oxygen, who knows how many gallons of water for his personal hygiene and laundry, and even in his last moments..that sodium pentothal,pancuronium,and potassium could be used in non lethal doess on some really sick patients..that stuffs not free you know. Oh and the paper used in his appeals probably killed 1/2 the redwoods in yosemite.
12.12.2005 10:56pm
Sully:
Accusations of bloodlust aside, there is reason to applaud the Governor's decision. In a nationally publicized clemency case such as this, the efficacy of the death penalty is at stake. Granting clemency in the Williams case would send the signal that the death penalty is unevenly enforced. After the particulars of this case have long been forgotten, the general public will remember the binary outcome of this sensationalized case (thumbs up, thumbs down) in a way that will shape the public's perception of capital punishment. I imagine that this effect would be felt outside the relevant jurisdiction; in a case that has captured the attention of a fickle viewing public, as this one has, the actions of California will impact Texas, &c. Recent scholarship in this area shows that the deterrent effect of the death penalty is contingent upon a perception that the penalty is utilized reliably -- if executions are like lightning strikes, nobody is deterred by the state's lamentable use of violence and the cost in terms of human life is not offset by a corresponding benefit, measured in the same denomination. So, if Williams's execution increases the life-saving yield (i.e., murders deterred) of future executions, and if those other executions are not the subject of our present inquiry, then there is good to be done by denying clemency in this case.

For those interested in reading more about this subject, I recommend Sunstein's &Vermeule's "Is Capital Punishment Morally Required?," forthcoming in the Stanford Law Review.
12.12.2005 11:00pm
JB:
Personally, I'm not opposed to the death penalty in theory, but in practice lots of innocents get condemned. As Williams is clearly not innocent, and his crimes were clearly brutal and horrific, I have no problem with the sentence.

As he refused to admit his guilt, I have no problems with the execution. Repentance cannot come without admittance of guilt, and forgiveness should not come without repentance.

May God, if there is a God, have mercy on his soul, if he has a soul.
12.12.2005 11:06pm
jgshapiro (mail):
After 24 years of litigation, it's almost over .

It really shouldn't take that long. How long does it take to determine whether a capital defendant's trial was fair? Five years? Seven years? Seems to me you could have a complete review in state court and both state and federal haeus appeals concluded in five years without a rush to judgment. Even if you had to conduct a couple of evidentiary hearings (as in Williams' case), it shouldn't take much longer than that.
12.12.2005 11:43pm
xx:
"Can anyone post a link to where this issue has been discussed?"

If you are referring to the deterrent effect of the death penalty, the studies are mixed. Most studies done by economists show a deterrent effect. Most studies done by sociologists show that there is not a detterent effect.

There is a good article forthcoming in Michigan Law Review that posits that the deterrence effect is related to the extent of executions. In brief, the data supports the thesis that either 1) banning the death penalty completely or 2) executing people on a very regular basis can reduce murder rates. Getting stuck in the middle, e.g. having a small number of high profile executions, is the worst option for a state.

This thesis would seem to suggest that the most common argument on each side of the debate (Pro deterrence: killing lots of people scares criminals straight. Con deterrence: Allowing the state to kill delegitimizes life, encouraging violence) might both have some truth. Thus, states that kill, but don't kill often enough to scare criminals, are missing out on obtaining either benefit.
12.13.2005 12:06am
Justin (mail):
Editors, if you want to engage in an intellectual debate, you're going to have to keep up with your side of the bargain. While your rhetoric is somewhat cute (okay, not really), you're ignoring the difference between the protection pupose for punishment and the deterrence. Furthermore, ou fail to explain why life in prison does not cure the problem.
12.13.2005 12:37am
jgshapiro (mail):
Justin:

Deterrance encompasses both specific deterrance (Williams can't kill anymore because he is dead) and general deterrance (other potential killers will see Williams' execution and (hopefully) think twice before following his path).

Specific deterrance is easy to measure. General deterrance is hard to gauge because you either have to rely upon violent crime stats (an increase or decrease to which could be caused by any number of factors) or you have to find people who are willing to admit that they would have killed but for the likelihood of receiving the death penalty.

But I'll buy xx's thesis that the more you execute, the more the general deterrant value of the death penalty (and vice versa). I don't know how you'd measure this, but I would hazard to guess that there is a greater general deterrant value to the DP in Texas, where the DP is the rule for murder and a term of years is the exception, then in other states, where a term of years or life w/o parole is the rule and the DP is the exception.
12.13.2005 2:05am
jgshapiro (mail):
I'm not opposed to the death penalty in theory, but in practice lots of innocents get condemned

There is a lot more judicial review of a death sentence than a sentence of life w/o parole, which is equivalent to being sentenced to death in prison. You will get automatic appeals, the full attention of the courts that do hear your appeals (at least on the first habeus petition), potentially the help of groups like the innocence project, etc.

Ironically, because of the specter of excuting an innocent, it would seem that you are more likely to be released because of a claim of actual innocence if you get sentenced to death than if you get sentenced life w/o parole. In the latter case, you could rot in jail for 70 years as a result of the same fabricated jailhouse confession for which you might have been freed had the jury not been as accommodating.
12.13.2005 2:14am
Splunge (mail):
Tookie is being given the respect of being allowed to follow his life's philosophy to its logical conclusion. He didn't believe in protecting innocent life when he had it in his power and it didn't serve his interests to protect it. Why would he expect his life, even if innocent, to be protected when it is in the power of others, and it does not serve their interests to protect it?

He did not believe in black solidarity. His gang preyed and continues to prey mostly on black folks. Like an inverse Robin Hood, they steal from the poor and give to the rich. Why would he expect black people to be in solidarity with him?

He did not believe in generosity and forgiveness. He believed in the main chance, and looking out for Number One. Tavis Smiley did an interesting radio interview with the guy a few days ago. When it came to whether joining a gang was a bad idea, Tookie spoke freely and with conviction. (It was surely a bad idea for Tookie.) When it came to the four murders, Tookie spoke slooowly and with much careful thought. He was very, very careful not to let slip any hint of a shade of an admission that, yeah, maybe he did do it.

Why not? What can a man fear who is scheduled to be executed in 48 hours? Well, clearly Tookie was still hoping for himself, hoping someone somewhere would believe he might be innocent -- which means he couldn't possibly admit he might be guilty. Now, he could have used his last chance to speak to take responsibility, to be a real man, like he yammers on about in his books. He could have freely given up his right to life -- OK, they're right, I done it -- in exchange for maybe saving the life of another. He could have spoken of the horror that resulted from his crappy decision making, maybe used that time on the air, with maybe half a million black folks listening to him, to dissuade just one young black man from making Tookie's choices. What could be more grimly persuasive than a personal appeal from a man about to die for his crimes?

But Tookie didn't do that. He was still looking out for Number One, and I expect he'll be doing so right up until the juice starts flowing. Probably making Pascal's wager by praying harder than he's ever done before, just in case there is a just and merciful God to receive his soul.

That being the case, he can hardly blame society for being equally selfish, and deciding that he's just too much trouble to watch, and that his death can serve as an interesting lesson to others, and not really giving a rat's fart about Tookie qua Tookie.
12.13.2005 2:31am
Andy Freeman (mail):
How long before the "Tookie Lives" t-shirts?
12.13.2005 9:56am
Curtis W (mail) (www):
Someone asked for an example of wrongful executions. Here is a link to a site that lists many such examples (some of them only "possibly" wrongful, but given that the person was executed before that "possibly" could be lifted, there's no way to tell).

link
12.13.2005 10:28am
Hemingway:
All 24 possibly wrongful executions you identify predate the resumption of the death penalty after the Supreme Court suspended it. The list is for the twentieth century, so that's 24 possibly wrongful executions in about 75 years. Assuming that we execute people at the same rate now as we did in the early 20th century (probably not, but someone can check), and that we're no more accurate in determining guilt or innocence before throwing the switch (I'd hope that we're better, with all the postconviction review we now allow in capital cases), we've probably executed 9 or 10 innocent people since resuming executions.

Again, that's a lot of assumptions, so the actual number may well be lower. But for purposes of comparison, I wonder how many people died in wrongful police shootings just last year?

I guess my point is that while we should make every effort not to execute innocent people, the death penalty does not figure prominently as an example of mistaken killing by the government.
12.13.2005 11:12am
Ryan Hecker (mail):
To all:

The question has been raised about whether libertarians can be pro-death penalty. I have a similar question. I'm wondering if any of the pro-death penalty posters are Christian. If so, how do you reconcile your support of the death penalty with a Christian notion of compassion/forgiveness, and the broadly Judeo-Christian dislike of vengeance or "playing G-d"? I don't mean to criticize; I'm just interested in Christian justifications of the death penalty.

Also, if you are pro-death penalty and anti-abortion, I'm also interested in knowing justifications. For this latter issue, I don't believe it's a very strong argument to say the human fetus is "innocent" while the executed human is "sinful" for two reasons:

1) We, as pro-lifers, don't often argue against abortion because these children are innocent. We say they are human beings. I guess we must assume their innocence, but I don't think that if they actually weren't completely innocent, we would suddenly support abortion. Especially since we know that these humans, once they are born, will not be innocent for very long. Like all humans, with our natural failings, we commit sin.

2) We are all sinful. Should the more innocent in our society be protected more than the more sinful? How do we determine this sliding scale of sinfulness? Do we just use legal violations as a substitute? In this sense, is a murderer in our country more sinful that a Stalin or Hitler because their laws allowed them to commit the acts that they did?
12.13.2005 11:36am
Visitor Again:
On the number of innocent people executed, there isn't much incentive after an execution to establish guilt or innocence. We usually find out only by accident, not because someone has undertaken an investigation of a case. Of course there are some cases that have been investigated thoroughly post-execution, the most famous being Sacco and Vanzetti and the Rosenbergs.
12.13.2005 12:02pm
DCLAWYER (mail):
There's also the Roger Coleman case in Virginia. Coleman was put to death despite serious questions about his guilt (which are detailed in John Tucker's book May God Have Mercy). Gov. Warner has been urged to test Coleman's DNA to settle the dispute once and for all and has yet to make a decision. His non-action is despicable. Either Coleman did it, and those of us who believe he didn't will be silenced. Or he didn't, and the real murderer has escaped. I guess some people, apparently some on this blog, don't want proof of an actual innocent being killed, although I bet they'd find a way of rationalizing that away too.
12.13.2005 1:42pm
Glenn W Bowen (mail):
to clarify the number of books sold:

from an article today by Stanley Crouch in the NY Daily News-


Still, Williams is being held up as an example of redemption because he has supposedly turned his life around. He has written children's books that speak out against gang violence. But the actor and writer Joseph Phillips discovered that the highest selling children's book written by Williams has sold only 330 copies. Not exactly a universal audience. The murderer has been nominated for the Nobel Peace Prize five times. But almost anyone can nominate you. That does not prove universal acknowledgment of importance.


article here
12.13.2005 11:13pm
Frank Drackmann (mail):
Wasn't Jesus executed? Wrongfully for sure,but it wouldn't have been near as cool if Jesus had just escaped from prison. We'd still be worshiping trees and greek and roman gods.
12.14.2005 6:37am
cfw (mail):
I thought TW had a weak and poorly-reasoned clemency request. Another case of bad lawyering, or simply a deranged client who would not "green light" the sorts of arguments that might have prevailed?

The innocence idea did not move me at all; nor did the idea that he is best saved because he wrote some books.

The argument I did not see, which is probably the fault of TW and not that of his lawyers (since modern, conventionally trained, habeas death penalty lawyers always make this point when they can), is that TW grew up in South Central LA, from a broken home, with no decent support or role models.

He had from the start a greater chance of going to prison than to college.

Find me a fifth grader in school in Compton, with little or no family support, and I will show you a disaster waiting to happen. Not in all cases, and not even in most cases, but in a significant percentage of the cases, that black fellow will naturally turn to a life of serious crime as part of his survival mechanism.

Does that excuse? No, but it mitigates and extenuates enough in my mind to say let the arrogant, high IQ, narcissistic TW (RIP) spend the rest of his days in prison.

Not recognizing the criminogentic part of our society, and how it tends to malform and ruin folks like TW, is the mistake made by AS. Those who praise AS need to think about spending their first 18 years or so of life in Compton with minimal or non-existent family support.

If AS had spent his time that way (black), could he have committed murders in 1981 or so? If it were a 1-10% possibility, would that make clemency (rot in jail TW, we will not inject you) sensible?
12.14.2005 3:20pm
xx:
cfw: I can see why your argument has some persuasive weight, but TW's attorneies' failure to argue it definitely isn't "another case of bad lawyering." If I had lawyers writing a clemency request on my behalf to a republican governor who is generally supportive of the death penalty I would definitely NOT want my argument to ride on a position that could just as easily justify commuting the death sentences of 8 out of every 10 people on death row. Focusing exclusively on TW's unique acts was the way to go, it just didn't work.
12.14.2005 7:26pm
cfw (mail):
"Focusing exclusively on TW's unique acts was the way to go, it just didn't work." I saw no page limit, practical or otherwise. TW had an 11 pager. He could not have added 5 pages or so that would express the arguments routinely made?

My sense is they are routinely made because they work and things like what TW submitted do not work.

AS is a Republican, but a bit of a RINO. I suspect he did a lot of soul searching, with Maria Shriver, his wife.

I doubt an argument that would work in 8 out of 10 DP cases (or 10 out of 10) would trouble him too much. After all, how many of the 500 will come before him - maybe 5 or 6 more?

An A+ brief (written by a John Roberts?) would have said what was said by the NY law firm, plus provided a discussion of race and family history. The I am innocent was a negative. The I write and have redeemed myself some was a mild positive.

Monday morning quarterbacking, of course, but I wonder how it all unfolded.
12.14.2005 8:59pm
xx:
In my opinion, adding the race and family history arguments would have actually decreased the chance that the request would have been granted. I am sure AS did some sole searching, and I suspect that during that process he also asked himself "What specifically do I say to my conservative voters if I commute this sentence." I think he, or his advisors, would come to the conclusion that the best way to paint the decision would be to focus on why TW was different from every other person on death row - why sparing him in particular did not commit him to commuting any other sentences.

In fact, I think the request failed because even the arguments advanced in the petition are suceptible to this criticism. TW is the only person (that I am aware of) on death row in CA who has written childrens books and been nominated for the Nobel Prize. But presumably, if AS had commuted his sentence, 10 other inmates would publish a children's book online and ask their mom to nominate them for the Nobel prize. Even the most limiting arguments TW's lawyers were able to make created a problem for the defense.

More generally speaking, an A+ brief has a consistent theme (or possible two) and argues it well. You get the plus for subtely playing up strengths. E.g. if you think Kennedy is the swing vote, you might support a proposition with a quotation by Harlan. You wouldn't quote Harlan, Brennan, and Black for the same proposition just to see what sticks. I don't think lifting the page limit changes the approach, just poses the hazard that you might go overboard and get the poor clerk who has to read your writing ticked off. This is especially true if you're assuming AS is actually going to read the thing. I think he only had about 3 pages of total dialogue to get through in Conan the Barbarian. . .
12.14.2005 9:50pm
Defending the Indefensible:
A primary reason Schwarzenegger cited in his denial of clemency was that Williams dedicated a book (Life in Prison) to a group of people including George Jackson. According to Schwarzenegger, "the inclusion of George Jackson on the list defies reason and is a significant indicator that Williams is not reformed." Well, maybe he should just fry Bob Dylan too, then.

I woke up this mornin',
There were tears in my bed.
They killed a man I really loved
Shot him through the head.
Lord, Lord,
They cut George Jackson down.
Lord, Lord,
They laid him in the ground.

Sent him off to prison
For a seventy-dollar robbery.
Closed the door behind him
And they threw away the key.
Lord, Lord, They cut George Jackson down.
Lord, Lord,
They laid him in the ground.

He wouldn't take shit from no one
He wouldn't bow down or kneel.
Authorities, they hated him
Because he was just too real.
Lord, Lord,
They cut George Jackson down.
Lord, Lord,
They laid him in the ground.

Prison guards, they cursed him
As they watched him from above
But they were frightened of his power
They were scared of his love.
Lord, Lord,
So they cut George Jackson down.
Lord, Lord,
They laid him in the ground.

Sometimes I think this whole world
Is one big prison yard.
Some of us are prisoners
The rest of us are guards.
Lord, Lord,
They cut George Jackson down.
Lord, Lord,
They laid him in the ground.
("George Jackson," by Bob Dylan, 1971)
12.15.2005 5:05am
cfw (mail):
"In my opinion, adding the race and family history arguments would have actually decreased the chance that the request would have been granted. I am sure AS did some sole searching, and I suspect that during that process he also asked himself "What specifically do I say to my conservative voters if I commute this sentence." I think he, or his advisors, would come to the conclusion that the best way to paint the decision would be to focus on why TW was different from every other person on death row - why sparing him in particular did not commit him to commuting any other sentences."

First objective in these cases is to humanize the prisoner - father, mother, sisters, medical problems, education problems, drugs, abuse and neglect suffered. That helps explain how he came to do terrible acts. It always has a unique perspective - it would be why one would hire a John Roberts and Fitzgerald. On top of that, you might hit on bad lawyering below, if any. Then hit on race issues constructively. Each case has unique facts, so there is no insurmountable problem about do we grant clemency in every case like this? And I am not so sure the electorate in CA cares as much as you might assume about death vs. LWOPP. A decent number of victim families have said do not kill in my name. What was said by the families of TW's victims?

"In fact, I think the request failed because even the arguments advanced in the petition are suceptible to this criticism. TW is the only person (that I am aware of) on death row in CA who has written childrens books and been nominated for the Nobel Prize. But presumably, if AS had commuted his sentence, 10 other inmates would publish a children's book online and ask their mom to nominate them for the Nobel prize."

Good point. But you might be surprised about how the DP folks at SQ turn themselves around once they end up in heavily structured settings. Significant numbers write a lot, get married, become ministers, etc. I would call that a good thing, that we can and should encourage.

"Even the most limiting arguments TW's lawyers were able to make created a problem for the defense."

This supports my idea of putting in the conventional arguments (humanizing TW, describing him in three dimensions, over time), yes?

I am assuming the lawyers did this in court in habeas proceedings. If not, they must have had a really stubborn client (who did not want to get into painful memories of abuse suffered as a child?) or highly unconventional strategy. If so, why not summariaze the history of TW and his traumas growing up int he clemency papers that went out to the world?

We may assume it is easy for others to describe the abuses and humiliations they suffered, and blocked out, or abuses they witnessed but did not prevent, or abuses they inflicted. This sort of information is normally out there, but it takes a dedicated, sensitive investigating team to uncover it. Sometimes folks like TW say I will not get into it and will fire you, lawyer, if you start poking around, interviewing my mom, etc. This calls for lawyer/client diplomacy, which takes time.

"More generally speaking, an A+ brief has a consistent theme (or possible two) and argues it well."

AS may have said no more than 10 pages. Fine. But attachments could have included a life history declaration from a social historian, backed up by declarations from family members, school records, medical records, old photos, etc. Show the person in 360 degrees, over time. I did not see that. No psych testing, no declaration about mental health issues. I cannot see six years of solitary leaving no mental scars.

"I don't think lifting the page limit changes the approach, just poses the hazard that you might go overboard and get the poor clerk who has to read your writing ticked off."

Typical briefs in Cal Sup Ct exceed 100 pages. 100 pages here about TW over time (including original public and medical records as exhibits) would have made more folks sit up and take notice in a positive way, I suspect.

"This is especially true if you're assuming AS is actually going to read the thing. I think he only had about 3 pages of total dialogue to get through in Conan the Barbarian. . ."

AS looks like the type who would read and care. TW pulled himself up after years of solitary with, inter alia, body building.
12.15.2005 9:30am
jgshapiro (mail):
CFW:

Has any governor in recent history commuted a sentence basd on your "I never had a chance" argument? That would be a tough sell to a liberal Democratic governor, who is probably sympathetic to the argument that you are a product of where you grew up. For a Republican governor like AS, who belives you pull yourself up by your bootstraps no matter where you are from, it sounds like a guaranteed loser.

TW didn't have a good innocence argument. His alibis had all been discredited in past appeals and not a single judge or justice in the last go-round showed any support for his latest alibi.

TW didn't have a good redemption argument. His refusal to even admit what he had done, let alone apologize for it, doomed this strategy from the beginning. Then there is his refusal to 'debrief,' his sentiments toward George Jackson, et., al., etc.

Your strategy is essentially to argue that the jury made he wrong call in the sentencing phase, when they determined that the aggravating factors outweighed the mitigating factors. All of the mitigating factors you raise were as true at the time of trial as they are today (raised in Compton, etc.) The only thing that has changed since the trial are the children's books, but unless we want to say that writing childrens books in prison is a get-out-of-the-death-chamber-free card, it doesn't change the basic equation upon which the jury sentenced him to death.

Seems to me that his attorney raised the arguments that were most likely to work at this stage and before this audience, but the facts were not on his (TW's) side. That is neither bad lawyering, nor a client who refused to let his attorney make winning arguments. Even the best lawyering will not spare someone who has bad enough facts. Lawyers can only do so much.

Moreover, the more arguments you put into a brief, the less persuasive any one of them is, especially to a non-lawyer like AS. It starts to sound not as though you have a legitimate beef, but that you are throwing darts against the wall to see which one sticks.
12.15.2005 2:07pm
Frank Drackmann (mail):
Maybe Arnold looked at the autopsy photo of Tookies victim with 1/2 of her head blown off and the other 1/2 covered with shotgun pellet wounds. Ironically, it looks alot like the advanced terminator did after Arnold blew its head off with a shotgun in "Terminator 2". And even more ironically,,that movie was subtitled"Judgement Day"
12.15.2005 4:45pm