Thursday, September 22, 2011

A question for conservatives

Imagine that you or someone you love have been charged with a serious crime. You (or they) didn't do it, but don't have a bulletproof alabi or other means of proving that.

Now imagine that for some reason, you and your defence lawyer are able to significantly control the number of conservatives on your jury.  Perhaps you have some ability to have the trial held in a very conservative county, or a relatively moderate county.

Which would you choose?  All else being equal about the jurors, and your lawyer is still going to ask the typical kinds of questions to filter out jurors that might have it out for you, but would you rather a jury that was mostly conservatives or one where they are only a minority on the jury?

I ask because in the wake of Troy Davis' execution, I remembered this research on the so-called 'death qualification' whereby potential jurors who admit to have moral objections to capital punishment are routinely excluded from juries on capital cases.  If you read the article, you'll find it isn't just hard core death penalty opponents like myself, but just about anyone who expresses any doubt or hesitation about the prospect of someone being put to death on their verdict.  It turns out that "death qualified" juries are significantly biased against defendants as a general rule, and significantly more likely to convict them:
The product is more than a dozen reported investigations which, in the overwhelming consensus of commentators, have confirmed three empirical hypotheses: (1) jurors excluded because of their inability to impose the death penalty are more attitudinally disposed to favor the accused than are non-excluded jurors; (2) excluded jurors are more likely to be black or female than non-excluded jurors; and (3) excluded jurors are more likely to actually acquit the accused than non-excluded jurors."
While naturally there are some liberals who support capital punishment, and some conservatives who oppose it, research is pretty clear that there's a significant difference in attitude that is strongly correlated with ideology:

That's from the US General Social Survey, using only 2008 data (though the longitudinal data looks similiar).  That graph doesn't show though that even liberals who might say they "favor" the death penalty for murder would more often have a series of caveats and hesitations; "only in the most serious cases", "only where guilt is absolutely certain", and so on.  Conservatives, in my experience tend not to have such hesitations.  Here's another disturbing study on "death qualified" jurors, and the propensity for many of them to fail at their job as jurors in that they refuse to consider mitigating factors that might lead to a lesser sentence than death, they simply equate the crime (murder) with the death penalty, no matter that the law may require them to take mitigating factors (say like being a minor, being mentally challenged or a difficult childhood):
The data presented here suggest that previous capital jurors, people who by definition were death qualified and sat through an entire trial to reach the difficult sentencing decision, still are often not able to perform rhe duties required of a juror in accordance with their instructions and their oath.
The result is that a more nuanced question about this would probably find a much greater disparity in the views of liberals and conservatives on capital punishment.  Even as it is, there's every reason that the "death qualification" serves to favour conservatives serving on juries.  I'll say unapologetically I would not want to be tried by a jury of conservatives, and would have no qualms about being tried by jury of liberals (even assuming the jury will know nothing about my political beliefs either way).

And if the trial was against someone who was accused of hurting or killing a loved one of mine, I'll say the same thing.  I would prefer the jury not be conservatives and would be comfortable with liberals (or moderates).

If you're conservative, can you say the same?  You've seen how your peers think about criminal justice.  Many conservatives really believe that if the police say you did something, that's enough.  The bias of our judicial system is supposed to be that a person is presumed innocent until the state proves its case beyond a reasonable doubt, but is there anyone really willing to claim that is the mentality most conservatives apply to criminal justice?  Maybe some of this is unfair on my part, after all, what someone spouts off in the comments section of a news article is not necessarily a good indicator of how they would approach the case if they were actually on the jury, with someone's fate in their hands.  I certainly hope conservatives who serve on juries tend to take it seriously and correctly view the state's case with skepticism until persuaded it is correct beyond a reasonable doubt.  But the anecdotal and statistical evidence suggests they too often do not.

And while it might be appealing to think a conservative biased jury hearing the trial of somone accused of harming you or a loved one will "get the bastard" by returning a conviction, I want the right person to be convicted of that crime, not just whomever the police happened to bring in for it because they want to pad their arrest stats or a conviction looks good on the department's record.  After all, if the wrong person is convicted, then the guilty party goes free to hurt others.   I'm not worried some soft-on-crime jury of liberals will acquit, if they do, then either the state didn't catch the right person, or they just didn't do their job in building a case.  

It's an important question, and a real one, since "death qualification" really serves as an ideological filter on juries.  Would you really want to be judged by a jury of your peers? 

Wednesday, September 21, 2011

Even Rick Perry's record on capital punishment doesn't really stand up

As I write this, people of conscience around the United States await the likely wrongful execution of Troy Davis for a crime that there is most certainly reasonable doubt that he committed. It got me thinking back to the Tea Partiers openly cheering for the death penalty, when the moderator questioned Rick Perry during that recent Republican Presidential primary debate:
WILLIAMS: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you…

There's a lot wrong with this, even aside from the supposed "pro-life" crowd cheering for death, it turns out that Perry has very little to do with Texas' rate of executions, and it's even quite arguable that Texas does not lead the nation in the pace of executions; Oklahoma has a strong claim to that title.

Now I am a straight up, unapologetic opponent of all capital punishment for any reason and under any circumstances. This diary is not for that debate, but if you want my reasoning, here you go. You may also want to read this which discusses a real case in Virginia that highlights how the mere existence of the death penalty perverts the normal function of justice and coerces false confessions.

What I really want to do here is note that the progressive line on Texas as being governed by sociopaths like Bush and Perry as an explanation for its high rate of executions is flawed. Bush and Perry are of course very likely sociopaths (or "high social dominators" if you like Bob Altemeyer's work), but it turns out that Texas Governors have surprisingly little power in this process. You may have heard sometimes that Texas is a "weak Governor" state, and that is a fair description of the Governor's powers vis-a-vis executions (for a general primer on Texas' weak Chief Executives, try here).

My own facile vision of the typical US execution involves the Governor signing a "death warrant" or some other legal document that sends a condemned prisoner to the death chamber. In the movies, there's always a moment where everyone wonders if that special phone in the chamber is going to ring, indicating a reprieve of some sort by the Governor. The implication is that the Governor really has the power over life and death, both directing the specific executions of those so-sentenced by the Judicial system, and being the last line of defence in halting an execution.

Well, if you read the details on Texas, very little of that applies. Let's recap some key features on how someone goes from arrest to lethal injection:

  • Texas criminal trials are conducted in district courts under Judges who face local partisan elections (so the Governor doesn't appoint them)
  • Prosecutors are similarly locally elected (so neither the Governor nor Attorney General has control of what cases they pursue and whether they seek the death penalty, and for that matter the Attorney General is a seperately elected office anyway)
  • Juries have the final say on whether a convicted murderer gets the death penalty, if the prosecutor has requested it
  • Judges, not the Governor actually schedule executions (after requisite review and appeals have taken place)
Now a person has gone from arrest to the very doors of the death chamber, and the Governor has had no formal influence over the process. But the Governor does have a role at this point, however, it is fairly limited even there (from the above link):
At the same time that the defense is exhausting its legal appeals, it may file a petition with the Texas Board of Pardons and Paroles. The members of the parole board are appointed by the governor. The board has the power to recommend everything from a 120-day reprieve, to a commuted sentence, to a full, unconditional pardon. The board does not meet as a body; rather, each member considers the case and faxes his or her vote to the governor. The governor may also request that the board members issue a certain ruling, but they do not have to comply. The parole board's vote is almost always taken the day of the execution. Decisions are rendered by majority vote. A favorable recommendation must then receive the governor's approval in order to take effect. If the governor rejects the board's recommendation to grant clemency, it is not granted.

Without a court ruling or parole board recommendation, there is only one person that can stop the execution, and that is the governor, who has the unilateral authority to grant a 30-day stay. This power may be used only once per prisoner. Even if the execution ends up being delayed for years, when it is ultimately reset, the governor (or his/her successor) may not issue another stay for that prisoner. Because of this, the governor always waits until every other last resort has failed, which means that if a stay is issued, it will be within hours or even minutes of the execution time.
The Governor cannot commute a death sentence without a majority vote recommendation of the Texas Board of Pardons and Paroles. He does appoint members to that board (subject to State Senate approval) but cannot fire them so (s)he really has very little ability to direct their votes. At most, on their own Texas governors can grant a 30-day stay. While that's not nothing, and may be enough to save a life in the event that some convict really has some shot of persuading a court to act, in practice most convicts face some very steep legal barriers to do more than delay their executions and even if you elected a Governor who promised to stop every execution he or she could, I doubt they could stop more than a small percentage of the executions. If you remember Illinois Governor Ryan's famous 2003 mass commutation of all death row inmates, it's useful to know that the Governor of Texas could not do such a thing.

Perry knows this of course. If we go back to that Republican debate, after the cheers here's the exchange between Williams and Perry:
[Williams:] Have you struggled to sleep at night with the idea that any one of those might have been innocent?

PERRY: No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which — when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required.

But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.
Notice Perry takes no personal credit for the executions. He describes it in terms of an automated process. If you do X, Y will result. Nothing really to do with him.

When I read through the Texas system, instead what I see is a system that is set up to widely distribute responsibility for death sentences so each actor in the play only has a moderate part: The prosecutor only decides whether or not to "seek" it, each member of the Jury is only 1 of 12 and has the psychological cover of group dynamics, the sentencing Judge actually has no discretion, and everyone up to this point knows there will be an automatic review by another court. Yet another Judge actually does the scheduling of the sentence. As for the Governor, (s)he really needs a positive recommendation from another group in order to actually prevent the sentence happening, otherwise it is automatic, and the governor never has to sign off on anything for the sentence to be carried out. When Perry says he doesn't lose any sleep over the number of Executions in Texas, it's fairly easy to see why even someone ambivalent about capital punishment in his job might feel the same: It's not really their doing. Like so many great travesties, it is the collective actions of many that lead to this result, so no individual really needs to feel particularly responsible for the outcome. It's a neat trick (and sheer collective cowardice in my view), and I think this, much more than the personal characteristics of the more recent Texas Governors explains why Texas kills so many people. For a state so inured in the ideology of conservativism, which demands "personal responsibility," ironically Texas' judicial system kills people without any.

But Does Texas really fry the most?

This one is a little more debatable, but for my money, the real metric that matters most is the per-capita rate of executions, rather than the raw numbers (it is somewhat similar to people who use the raw numbers of America's finances to make it sound scarier, rather than discussing things like debt as percentage of GDP). Texas is a very big state, and so it is easy for such a place to execute relatively few convicts and still beat out in absolute terms much smaller states that execute even 100% of the people they convict of capital crimes. Fortunately, no state actually executes 100% of its death row inmates, but Oklahoma actually comes closest.

It turns out that Oklahoma has more people on death row per capita, and executes more people per capita than Texas. Texas 12.73 inmates on death row per million residents, and has executed 18.8 people per million since 1976. Oklahoma has 20.67 per million on death row, and has executed 25.78 per million in the same period, which is by far the leader among US states. Texas is still pretty high on the relative rankings, but if Oklahoma was the same population as Texas, by my quick calculation it would have executed over 640 people since 1976, versus Texas' 474.

So by my reckoning, this is another hollow Texas governor whose record even on one of the right's most cherished subjects is as phony as George Bush's brush ranch. More importantly, we who oppose capital punishment have been letting Oklahoma off the hook while distracted to some extent by the sheer raw numbers in Texas. Progressives in these states, or others with capital punishment who want to at least reduce the number of executions should consider the various points in the system that lead to such vast differences from state to state at every step in the process, from the number of times the prosecution seeks death, the number of times the sentence is granted, through to how often the state actually goes through with executions. While banning capital punishment is of course preferable, there are plenty of significant legal reforms that can take place to vastly reduce the actual number of executions that take place while leaving the death sentence legally in place. It would be interesting to see what would happen if Democrats in some red state merely demanded that the law be changed so that the State's governor accept personal final responsibility for whether each death sentence took place, and had to sign his name on a document authorizing the execution the very day of the act. I think most people who support the death penalty support it being done by other people. Anyway, something to think about.

Wednesday, September 7, 2011

Ontario's election is kind of a big deal

October 6th, 2011 will be election day in Ontario's 40th general election.  This is a big deal for Ontario obviously, but for Canada as a whole.

The point isn't made very often but Ontario is simply enormous in comparison to the rest of Canada.  Ontario is 39% of Canada's population.  In US terms, if there was a state that combined California, Texas, New York, Florida and Illinois (the five biggest states) it still wouldn't be proportionally as big as Ontario is to Canada (you'd still only be about 36% of the US population by my quick math). 

Obviously this isn't a popular point to raise in the rest of Canada.  There's a long and bitter history over the real or perceived ways in which Ontario dominates the political scene.   I get at least some of where this resentment comes from, but I really don't see how you can avoid it, short of somehow levelling the population between the provinces.  There's a thing called "Western Alienation" that refers to the feeling amoung many in the four western provinces that they're "left out" of the important decisions in Canada, but whatever truth may be behind this, the four western provinces combined are about 32% of the population (and this is up significantly in the past decade, the disparity used to be even larger) so there's really no way to give them equal say with the significantly larger group of people who live in Ontario. 

For Americans or any other non-Canadian trying to understand us, it's important to realize too that Canadian provinces are much more powerful within Canada than States are within the US.  In the US, the total spending of the Federal government dwarfs the 50 states, while in Canada, the provinces actually spend a bit more overall than Ottawa.  So, not only is Ontario far bigger within Canada than any state within the US, but also it has a more prominent and powerful role by virtue of our system.  You cannot adequately study Canada without looking at the provinces, and in particular there, Ontario. 

I think that point should be made a little more often when analyzing Canada's economic performance through the Lesser Depression.  Many conservatives up here of course like to attribute Canada's relatively better economic situation (unemployment peaked south of 9% in 2009 and is now at 7.2% nationally) to the Harper Conservatives, but I really don't think you can tell the story of Canada's economy without reference to the provinces, and in particular, Ontario. 

Paul Krugman regularly makes the point that the US stimulus bill really didn't end up providing very much net fiscal stimulus because it really ended up just barely managing to counteract the automatic fiscal contraction that the 49 State governments undertook in service to their ridiculous constitutional budget balancing clauses (and Vermont, the smart hold out is doing pretty well last I heard).  In Canada, our Federal government had to be forced under threat of a Coalition government to undertake fiscal stimulus back at the beginning of 2009, but they did eventually implement a modest stimulus package sized at 2.8% of 2008 GDP. 

What didn't happen in Canada is that the provinces did not implement austerity budgets, and some, like Ontario, implemented their own fiscal stimulus packages.  Even conservative Alberta started running deficits with its 2009 budget rather than cut back during weak economic times. 

Those wishing to tell a partisan story about Canada's success in so-far weathering the Lesser Depression have a difficult slog.   The Federal Conservatives did pass a stimulus, but had to be pushed by the opposition, who held a parliamentary majority.  Liberal governments in Ontario, BC, Quebec and a Progressive Conservative government in Alberta (comprising the four biggest provinces) did at least no harm, and some attempt at good through the period.  The net result has been, well, not great, 7.2% unemployment really isn't much to brag about, but certainly less terrible than it could have been. 

So the fate of political power in Canada's largest province is worth watching.  For Ontarians, it is worth voting over.  The debate over the effectiveness of stimulus in the US is clouded, but in Canada the case is far clearer that it worked, while governments in Europe are busy proving unambiguously how counterproductive "austerity" is, it is important for Canada that Ontario not elect a government prone to breaking out the tight belt while conditions are still quite dicey. 

Thursday, September 1, 2011

The Emptiness of Conservativism

Often, when criticizing conservativism, we focus on its many glaring real world policy failures.  After all, we are living in a prolonged real world experiment in deregulation, rigged trade, lower and flatter taxation, privatization and well, just leaving everything to the market to solve itself.   The result has been a disaster, not just in America, but in the rest of the industrialized/rich world, and how bad it has been lines up quite well to how completely each country has implemented the modern conservative agenda (basically neoliberalism).

Today I came across PZ Myers linking to a good article talking about Finland's great success in education, a success found in doing basically nothing the neoliberals say will fix education in America.  Pieces like this are not hard to find.  In the heath care debate, liberals point at places like Canada, France, Japan and Australia as having health systems that deliver better results for less money than America's.  On taxation or general matters of equality, we point to, say, Sweden or maybe Japan.  Here in Canada, where we are allowing the tar sands oil reserves to suck us into the resource trap by killing off other sections of the economy, I could easily point to Norway as an example of an oil rich country that manages not to let the oil warp and pervert their entire system and where everyone benefits from the natural bounty left in the ground by sheer providence.

What can conservatives point to?  Where are their great success stories?  Where are the nations living well using conservative policies?  Aside from the Pinochet period in Chile and pre-2008 Ireland, generally the only nation conservatives could point to as containing both success and heavily conservative policy was America itself.  Now, they are reduced to pointing at a place like Texas, which by virtue of creating a higher absolute number of jobs in the past couple years than other US states becomes the metric of "success."

Which really highlights the abject failure that is conservativism.  Texas is your success?  Because it had a slightly less terrible job creation record?  Really, is that the heights of conservative vision?  I think it is.  A world of minimum wage earners bowing and scraping to their betters for fear of being excluded from the job market in an "at-will" and "right to work" labour market, and hoping against hope to defy the odds and be one of the few called to some higher strata of the economy.  A world of hard knocks and a constant awareness that no one will help you up if you fall.  What do we all get in exchange for this?  Even if we take their economic claims at face value, we supposedly get higher aggregate economic growth and maybe a wider variety of consumer goods.  On the one hand you might be laid off any day for any reason without warning or compensation.  On the other hand, you'll have lots of shiny gadgets to play with while you're unemployed.  If you can afford them.

This is something I think could be a fruitful line of attack on conservativism, if any prominent liberals were inclined to actually attack it.  Conservatives can and do debate whether liberal ideas work in reality, but at our best, our vision is just head and shoulders better than theirs.  We propose a world free from deprivation and desperation, free from fear, and most of all a world of dignity for all.  It isn't utopia by any stretch, someone still needs to clean the toilets and take out the trash.  But the people who do that in the liberal vision are treated with respect, like everyone else is.  And if you want to claim that our economic system of high marginal taxes and judicious regulation limits economic growth and reduces consumer choice, that really doesn't seem like so much to give up in exchange. 

Most humans seem to agree.  Every social insurance scheme that I know of, from Social Security, Medicare and Medicaid in the US, to their various counterparts in the rest of the rich world are very popular with their populations.  Even America's heavily corporate and right wing media, cut loose from the fairness doctrine for decades now has been unable to convince the public that these programs are bad for them.  At best, they're sometimes able to convince a majority that the programs are unaffordable.   These claims are nonsense, but the tactic highlights the enduring popularity of safety over the vaunted "choice."  People don't really want to make choices where "abject poverty" or "death" are distinct possibilities for choosing wrong.  This is what conservatives offer:  "Come, gamble on your retirement at the Wall Street casino.  You may just strike it rich!  Or you can die in a gutter if you bet wrong."  In fact, we generally treat people willing to gamble at stakes this high as mentally ill.  Despite a population with north of 40% of people calling themselves "conservative" and another 40% who are "moderate" US conservative leaders cannot manage to get majorities on board with the propositions involved in gambling on your healthcare or retirement.

The conservative vision stinks and people know it intuitively.  Even if their ideas worked as they claim, the result would be generally terrible for almost everyone who wasn't filthy rich.  It's time to make this point regularly.