Monthly Archives: April 2013

We Are Not Afraid

I have spent most of the day cooped up in my apartment while the entire Boston area was essentially shut down with a massive manhunt going on just across the Charles in Watertown.

But you can’t shut down a city indefinitely. We may not have the remaining suspect in custody yet but we return to living life. The T is back up and running, the Shelter-In-Place orders have been lifted, and we here in Boston are hitting the town tonight. Because we can’t be intimidated. Because we are not afraid.

-Zachary Cloud

Are Random Searches of Passengers on the T Illegal?

One of the worst side-effects of terrorist acts is the resulting threat to our civil liberties. From our infancy as a nation, we have always prided ourselves in our commitment to placing freedom over fear. That’s why Hobbes’ theory lost. It’s also why we must be vigilant in the wake of violent tragedy about our rights.

I don’t have any first-hand accounts of it yet, but the official word is that police may conduct random bag / package checks of passengers on the subway (known as the ‘T’ here in Boston). The Globe isn’t particularly specific about the manner of the searches except to say that, at some stations, all bags were being searched. How long or detailed the searches were is not clear. Whether passengers were given any prior notice is also unclear. It begs the question: is this lawful?

To begin to answer that question, we need to understand what the baseline, status quo is. Generally speaking, the Fourth Amendment to the United States Constitution and Article XIV of the Massachusetts Declaration of Rights prohibit warrantless searches and seizures. Without getting off on a long tangent full of caselaw citations, police normally may not randomly stop you and conduct a search of your bag or belongings—that violates both state and federal law.

But law enforcement would argue this is not normal. Instead, they would argue these random bag checks fall under what is termed the “special needs” or “administrative search” doctrine. Turning attention to the law in Massachusetts is important here because it varies a little bit from cases in other jurisdictions.

Nine years ago, the Massachusetts Supreme Judicial Court handed down its opinion in Commonwealth v. Carkhuff, 441 Mass. 122 (2004). In Carkhuff, the defendant was arrested about one month after 9/11 for operating a motor vehicle under the influence of alcohol when he was stopped by State Police near Cobble Mountain Reservoir. Federal authorities had previously informed state authorities about a “credible threat” to an unspecified Massachusetts target and state law enforcement decided to increase security at potential targets such as the reservoir. To guard the reservoir, the State Police decided to implement a policy of stopping all people traveling alongside the reservoir and inquire about why they were there. Further, State Police were to search any tanker truck or box truck including locked items inside. These searches were to be uniform and conducted without regard to suspicion of particularized criminal activity. One of the individuals stopped as part of this policy exhibited signs of drunkenness and was subsequently arrested for operating under the influence. See id. at 123-24.

The defendant moved, prior to trial, to have the stop and all resulting evidence suppressed because the police had no specific, articulable facts providing reasonable suspicion that the defendant was engaged in any criminal activity. The prosecution responded by asserting the “special needs” doctrine and analogizing the stops as akin to screenings at the entrances of court houses or at airports. The trial court suppressed the search and the Commonwealth appealed. See id. at 122-23.

Upholding the trial court’s ruling, the SJC focused in on two factors: (1) is the search “part of a scheme that has as its purpose something ‘other than the gathering of evidence for criminal prosecutions[]’”? and, (2) was the search “ reasonable’ in the sense that it ‘must be limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it[]’”? See id. at 127. The SJC found the first factor satisfied but questioned whether the second factor had been met. In particular, the lack of any warnings, notices, or other signs warning people of the possibility that they could be stopped was problematic. “As such, persons who did not wish an encounter with the police had no opportunity to turn back and use an alternative route away from the reservoir.” Id. at 129. Further remarking that posting notice “would not have compromised the government’s objectives[,]” the court found the procedure unreasonable and affirmed the trial court. Id. at 130.

What does this mean for random bag checks on the T? We can tell from looking at Carkhuff that there are some important differences between its facts and the nature of random bag checks on a subway system. The biggest difference is that of notice. The Carkhuff court did not speak at too much length about the broader applicability of its opinion but it did have this to say: “When, as part of an administrative search, the police seek to stop, question, and potentially to search persons as to whom they have no articulable suspicion of wrongdoing, they must take all reasonable steps to reduce the intrusiveness of that encounter.” Id.

The SJC’s opinion in Carkhuff remains the law at the state level. Federally, things are even murkier. In 2006, a federal case in the Second Circuit dealt with an almost identical random bag check policy. In MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006), a class of New York City Subway riders sued the New York Police Department under 42 U.S.C. § 1983 for violation of their civil rights after their belongings were subject to random search. See id. at 263. Under the NYPD’s “Container Inspection Program,” officers would set up search stations at the turnstyles of selected subway stations. People were warned via megaphone that by entering the station they would be potentially subjecting themselves to a search and those wishing to avoid a search would have to leave. Declining to be searched did not subject individuals to arrest but they were not allowed to enter the station. A supervising officer establishes a selection rate (e.g. every fifth person) and officers would select people for inspection according to the rate. The inspection itself was designed to be as minimal as necessary to ensure an item didn’t contain an explosive device. See id. at 264-65. The Second Circuit Court of Appeals dismissed the lawsuit challenging the search program after considering several criteria aimed at investigating the reasonableness of the random screening. Id. at 275.

Some important points need to be made about the MacWade case. First and foremost, it is not binding law here in Massachusetts. The Second Circuit’s jurisdiction spans New York, Connecticut, and Vermont. Massachusetts is located in the First Circuit, which has not had a case similar to MacWade. Indeed, a search of the cases citing MacWade reveals only one from the First Circuit and that one does not deal with random bag checks—the citation is for a broader legal principle. Similarly, no state cases in Massachusetts cite to MacWade either. Nor has the U.S. Supreme Court heard any case dealing with this sort of program. So, while MacWade remains the “go-to” case regarding random bag checks on the subway, it is only persuasive authority in Massachusetts and no state or federal court is required to follow it.

All of this points to a frustrating reality: the law in Massachusetts is silent on the permissibility of random bag checks on the T. Based on Carkhuff, we know only that any such program needs be designed to minimize the intrusiveness of the search policy. Thus, the manner that law enforcement officers are conducting these bags probably matters a lot. Perhaps the single most important question is whether they are giving sufficient warnings to passengers about the possibility of a search. The warning needs to allow passengers uninterested in consenting to search an opportunity to leave. I don’t have those sorts of facts right now. Thankfully, as of this writing, I have not been requested to submit to such a search nor have I observed one. My reading of the law suggests that such a random bag check policy probably violates state law unless it is carefully tailored to be as minimally invasive as possible and riders are afforded ample opportunity to leave rather than be searched.

Now as to how you should handle being asked to submit to such a search? I’m not going to give you legal advice but I will lend some common sense. Honestly, if police will allow you to leave that is probably the most sensible thing to do. If that is not an option for one reason or another, I would just remind you that there is more than one way to vindicate yourself when your constitutional rights have been violated. You don’t need to be arrested and charged with a crime to litigate your issue—there is always the federal lawsuit under § 1983 for violation of constitutional rights. So don’t get yourself arrested. If police order you to open a bag for inspection, make it clear that you’re not consenting but don’t get confrontational. Gather the information you might need if you pursue a lawsuit at a later point but remain respectful.

Reading over the Boston Globe’s article, I find myself alarmed at the quotes of individuals who felt ‘comfort’ by the heightened police presence. Personally, I find it disturbing. One of the truly great things about this country is that we don’t tolerate giving up personal liberty in exchange for marginally better safety. With all of the armed officers and National Guard members roaming around Boston, its starting to look like a police state. And that means the terrorist(s) won. The proper response here is to go about life as if there is no increased threat in a show that we won’t be terrorized into changing our way of life. I am greatly dismayed to see people of this great city highlighting the police state as a source of comfort. It is anything but. It is a disturbing recognition of terrorism’s success. I only hope that in the days to come, we reduce our police presence and go about our lives as they used to be.

-Zachary Cloud

Safe But Heartbroken In Boston

I don’t really have the words to express the pain today’s event has caused me…has caused all of us here in Boston. Thankfully, I’m safe. I’d contemplated going to see the Marathon today but opted not to. I stayed home trying to catch up on work.

And now life goes on…because it must. Because this act of terrorism won’t shake us or break us. It’s a new day and I feel blessed that I am alive and well to live it.

-Zachary Cloud

Making the Case for Life

Today I will explain to you why I personally oppose the death penalty and what motivates me to make the case for life.  I hadn’t originally planned to do such a post. Then things changed. It began with me recently quoting one of my favorite books on public defenders, Defending the Damned. I’ve previously praised this book and I still recommend it to anyone interested in understanding what life inside a busy public defender office is like.

You see, I enjoy giving my friends in finance a hard time. So I emailed one such friend this quote:

A bankruptcy lawyer once hired Musburger to handle a case because of his trial experience. “He said to me, ‘I’m really glad to have you because you seem to be able to handle the pressure of this.’ And I remember thinking, This is only money. The only thing that can happen to us is that our client will lose money. Until you sit next to someone who can lose his life, you don’t know what pressure in a courtroom is all about.”

I won’t reproduce the response here but I’ll summarize the sentiment: money is hard to earn and those who kill hardworking, money-earning individuals deserve to die.

It may not be a secret to those who know me that I have done a little bit of death penalty work in the past. But, I don’t recall ever writing or blogging about my opposition to the death penalty before now.

So I will.

I will proceed to make the case for life.

I know from the outset that I probably cannot say anything new or make any point somebody else hasn’t made already. The death penalty is such a widely-debated and discussed topic that essentially every angle worth illuminating has been written on at length. And so, I do not hold this out to be anything other than an explanation for what motivates me to do death penalty work and make the case for life.

I. My Christianity Compels My Compassion

I would not be upfront with you if I ignored the core basis of my opposition to capital punishment: my religion. God’s message is unequivocally one of forgiveness, not of judgment. We are reminded: “avenge not yourselves, but give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” Romans 12:19 (emphasis added). Thus, the Apostle Paul reiterates one of the important facets of Christianity that sets it apart from Old Testament scripture—we are not to act retributively.

Many of my fellow Christians might point to verses in Exodus 21 as justification for the death penalty. There, the Hebrews are told: “He that smiteth a man, so that he die, shall be surely put to death.” Exodus 21:12. And we all are familiar with the instruction that “Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe.” Exodus 21:24-25. Jesus comments on this directly, telling us: “Ye have heard that it hath been said, ‘An eye for an eye, and a tooth for a tooth.’ But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.” Matthew 5:38-39.

I don’t mean to belabor the point too much for those who are not Christian but I highlight the scripture as an important rebuttal to the far too many Christians who are pro-death penalty. It seems to me such a position is at odds with the teaching of God. The very essence of Christianity is compassion and redemption. The notion that we should take the ‘life for a life’ approach not only contravenes God’s command to us on the specific issue of punishment but also is incompatible with what it means to be Christian.

In the amazing play-turned-movie Doubt, Sister Aloysius remarks early on that, “when you take a step to address wrongdoing, you are taking a step away from God, but in his service.” By the end of the story, this notion is called starkly into question and Sister Aloysius acknowledges that “of course, there is a price” to be paid in stepping away from God. Quite right. And indeed, I am very skeptical of any compatibility between the notions of serving God and taking a step away from him. We need not sacrifice our closeness to the Lord in order to do him service. We need not take retribution into our own hands. We need not kill those who have killed.

II. Proof Beyond A Reasonable Doubt Is Too Low A Standard When Someone’s Life Is At Stake

Those knowledgeable about criminal justice in America understand the concept of a “burden of proof.” Jurors have to unanimously be convinced beyond a reasonable doubt that the defendant is guilty of the charge(s) alleged. What does that mean? Good question. A lot of jurisdictions define reasonable doubt as the kind of doubt that would give you pause in a matter of personal importance to you. Here’s how the New York criminal jury instructions suggest that a judge explain it to a jury:

A reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a manner of this importance, would be likely to entertain because evidence that was presented or because of the lack of convincing evidence.

That leaves it a little nebulous about whether a juror needs to be 100% convinced of guilt. The language, on its face, says that you can convict even if you have doubts so long as those doubts are not “reasonable doubts.” The quote above mentions “imaginary doubt”—I don’t know what exactly that is. However, I think one could argue that any doubt you can support / explain would be ‘reasonable’ in New York thus you essentially must be 100% convinced of guilt.

Compare that with the jury instruction in Massachusetts, which says “proof beyond a reasonable doubt is not proof beyond all possible or imaginary doubt. Instead, it is proof that excludes every reasonable hypothesis except that the defendant is guilty. It is proof to a moral certainty—as distinguished from an absolute certainty—that the defendant committed the crime(s) charged.”

This is a troubling notion when the consequence of finding guilt is death. If we are to expose a person to death as a potential punishment, there should be zero doubt allowed in the minds of the jurors. The burden should be “proof beyond all conceivable doubt.” Absent the requirement of absolute certainty, we continue risking the possibility of future Cameron Todd Willinghams and Troy Anthony Davis’

That is unacceptable.

Those who have no moral issues with the death penalty should still recognize this truth. It is simply not just to risk killing a person who is innocent. But right now, no state has come close to putting measures in place that would eliminate the risk. The first and foremost place to start would be raising the burden of proof. That should not be where things stop. As I see it, here are some other measures that we really would need in order to eliminate the risk of executing the innocent:

  1. Alter the charging process and create a committee that determines if a case is ‘death eligible’ prior to prosecution. In most if not all jurisdictions right now, it still lies solely in the discretion of the prosecuting authority to determine whether or not they will pursue the death penalty. This is an error. I think it would make more sense to have a screening committee comprised of prosecutors, defense attorneys, judges, and other community members who review the evidence at the time of indictment and make a case-by-case determination about whether the death penalty should be available for the prosecutor to pursue. This determination should occur prior to the trial. If the committee flags the case as death eligible, the prosecutor would still have the option to seek a lower sentence and the sentencing authority would still have to independently agree to impose the death penalty after a sentencing hearing where the defense could present mitigating evidence.
  2. Require an independent review by a special prosecutor. If the prosecuting authority seeks the death penalty, a special prosecutor should be appointed by the court to review the case and make an independent determination regarding the strength of the evidence. This special prosecutor should be from somewhere far, far away with essentially no connection to or knowledge of the case. This would help reduce the political pressure on a DA to be ‘tough on crime’ and mitigate the risk that those too close to the crime geographically and emotionally might have blinders on to the full range of suspects, punishments available, etc…
  3. Increase the size of capital juries and change the structure of deliberation.  For several reasons, a death penalty jury should have more members. First, it increases the likelihood that the jury venire will be diverse and bring a range of experiences to the deliberations. Second, and related, it increases the likelihood that all the evidence will be considered and weighed carefully. Next, a death penalty jury should be moderated by an independent legal professional sworn to secrecy who does not cast a vote regarding the verdict. This serves a few purposes. It will help facilitate more complete and thorough deliberation by all of the jurors not just the vocal few. It also will allow an independent member of the judiciary to deter or detect misconduct such as improperly considering propensity evidence or media coverage not admitted into evidence at trial.
  4. Improve the conditions for capital defense attorneys. This one is tough because its where the greatest variation lies. In some states, the court does a decent job appointing qualified attorneys and giving them appropriate resources to do zealous defense. In other places, funding is abysmal. There should be a required certification process for all defense attorneys—not just court appointed ones—seeking to defend those accused of the death penalty. Complementing this, the court must be willing to properly fund the defense in cases where the individual is indigent.

Some may be quick to point out that all of these suggestions would be costly. Yes. Yes they would. But you can’t put a price on life and these steps would all have a concrete ability to eliminate the risk that innocent people end up on death row. Absent these sorts of measures, and wholly aside from my moral opposition to the death penalty explained above, I cannot support taking someone’s life. The risk that an innocent man or woman is killed is simply too great under the current system.

III. Guilt & Innocence Are Not Often Black & White

In addition to my fundamental worries that factually innocent people could end up on death row, I also worry that many criminal defendants who face the death penalty are not mentally well. This may mean that they have a really low IQ or that they suffer from anti-social disorder. Look at James Holmes or Adam Lanza as prime examples. These people may have solidified their reputation as mass murders but they also displayed clear signs of mental illness.

Regrettably, it is likely that most people who kill on such a scale or in such a manner that they are facing the death penalty are the same people who have mental illnesses needing addressed. It is problematic enough to suggest that a mentally healthy, sane person should be killed for their crimes. It is unconscionable to say that of a mentally ill person. The death penalty is a sort of social contract in and of itself. Even in states with the death penalty, not all murders face capital punishment and for good reason. The choice of death as opposed to LWOP does not turn on the crime itself but looks to a variety of factors. Essentially, we’re looking to see how ‘acceptable’ or ‘understandable’ the murder was. Could this arguably be self-defense because a rival gang member started to pull something out of his pants? Was this a reaction to finding the deceased in bed with the killer’s spouse? Did the defendant inflict unnecessary harm?

All of these questions seek to understand something deeper: to what level did the defendant flout and reject society’s expectations? We find it unacceptable to kill a rival gang member in a shoot-out but even more unacceptable to kidnap and kill innocent children for sport. Certain types of murder are a greater rejection of the social contract and the defendant ‘goes in’ to the crime not only recognizing that he has crossed a line but relishing the fact that he has crossed a line.

Except that this isn’t often quite the case.

The people ‘capable’ of committing death-worthy murder are often not ‘capable’ of understanding or rejecting the social contract described above. Every major shocking killing I can think of lately illustrates this. Jared Loughner’s shooting of Senator Gabby Giffords; the school shootings at Columbine, Virginia Tech, and Sandy Hook Elementary; James Holmes’ movie theater massacre; and the Fort Hood shooting all feature shooters with widely-acknowledged signs of mental illness. It’s precisely because these individuals didn’t have the ability to understand and accept social conventions that they so thoroughly flouted them. The implicit social contract we presume these people accepted doesn’t exist.

Guilt and innocence are not black and white concepts because culpability entails a number of separate components. Did you know what you were doing? Did you have the ability to control it? Did you appreciate the unlawfulness of your conduct? Some mentally ill people fully appreciate that they are violating established laws but cannot control impulses. Other mentally ill people can control behavior but lack an ability to grasp what behavior is prohibited. The complexities involved in a calculation of culpability illustrate why the death penalty is often inappropriate. A finding of ‘guilty’ encompasses more than an acknowledgment that the defendant is factually responsible for another’s death—it also incorporates certain findings of mens rea (the mental intent to kill). Even those who we have no question caused the death of someone else are not necessarily guilty in the fullest sense of the word because they may not have appreciated the extent to which their conduct was socially unacceptable. That’s especially problematic and is all the more reason to shy away from death as a tool of punishment.

I can summarize all of this in simpler language though. How often have we heard someone work to temper another’s anger by saying, “don’t get mad at him; he doesn’t know any better”? Conversely, when do we feel most vindictive and willing to punish? When “he knew exactly what he was doing and meant to. He has no remorse!” The latter sentiment is the one we use to support the death penalty but it’s often wrongly formed on a lack of complete information. The risk that we incorrectly come to this latter line of thinking is too high and thus inspires in me the same trepidation that I have due to concerns of factual innocence.

IV. The Typical Manner of Execution Is Inhumane

Lastly, I can’t help but find the current method of execution to be profoundly inhumane. Lethal injection, whether by a three-drug or one-drug protocol, is probably the most undignified way to kill someone. This is something that perhaps you have to watch to grasp in its fullest but the individual is strapped down to a gurney almost as you might expect a crazy person to be. Essentially unable to resist, a needle is inserted into the person’s vein. In the three-drug protocol scenario, a first drug is injected to put them to sleep in much the same way a tranquilizer is used to sedate a wild animal. Next, a second drug is injected forcing their body to betray them by preventing them from vocalizing or moving at all. It is a paralytic that even prevents breathing. Finally, a third drug stops the heart. These days, more and more states are switching to a one-drug protocol. Under the one-drug protocol, only the anesthetic is administered but at a lethal dose by itself. The two most common anesthetics routinely being used in the one-drug protocol are pentobarbital and sodium thiopental. In fact, this one-drug method is the same way in which animals are euthanized.

I find this so inhumane because it is essentially forcing the body to kill itself. The lungs are made to stop working, the heart is made to stop beating. Death may be death but it seems far less degrading to die because someone shot you than because you were strapped down to a gurney against your will and drugs were forced into to switch you off. Its as if the human body is naught but a robot which can be unplugged and disassembled. The clinical, sterile nature of it creeps me out. Wouldn’t it be more dignified to die by a single gunshot to the brain? From what I understand, it would not only be faster but also would be painless. More to the point, it would lack the undignified nature of forcing the individual into a state of paralyzed unconsciousness, never aware of the moment of their own death. I recognize that I probably am far from the consensus view on this point but it is nevertheless how I feel.

V. Concluding Remarks

There are lots of arguments against the death penalty, which range from the philosophical to the practical. I have not attempted to make all the arguments; just the ones that compel me to oppose the death penalty. As a Christian, I believe in seeking out and promoting the best in people. I believe in compassion and redemption. I believe in second-chances. And I believe that vengeance is for God alone—not for me. These tenets of my faith couple with my concerns about the all-too-high risks of the state killing those who are not fully culpable and my belief in the inhumanity surrounding the mechanisms used to carry out the death penalty. Put together, these considerations have lead me to champion for liberty and make the case for life.

-Zachary Cloud