To take a life when a life has been lost is revenge, not justice.
– Desmond Tutu

The path for Troy Anthony Davis’s to receive a lethal injection appears to be now cleared. His execution is scheduled for 7 pm on Wednesday.

The Christian Science Monitor (among others) has the story. Here’s a clip:

Pope Benedict, President Carter, and former FBI head William Sessions were among nearly 700,000 people around the world who campaigned, via signatures and testimony, that Mr. Davis’s life be spared after seven of nine witnesses to the 1989 murder of off-duty Savannah, Ga., police officer Mark MacPhail changed or recanted their testimony in recent years.

The parole board appeal was a last-ditch effort for Davis after the Supreme Court, in a highly unusual move, demanded a district court review of the case last year. In the end, the review found that new evidence and changes in witness testimony didn’t substantially affect the validity of the original 1991 murder conviction.

After three hours of testimony on Monday, Davis’s lawyers said they believed they had demonstrated “substantial doubt” that Davis was the triggerman in the shooting of Mr. MacPhail, a former Army Ranger and young father, outside a Burger King in Savannah, Ga. One piece of new evidence included testimony that a different man at the scene later confessed he pulled the trigger.

But MacPhail’s family, including his wife, told the clemency board that “it’s time for justice.” Joan MacPhail-Harris, his wife, told reporters that Davis’s claim of innocence was “a lie.”

Because of its high profile and byzantine journey through the US death penalty system, the Troy Davis case has been seen by some legal experts as a bellwether case for a justice system that sets a high bar for death row inmates trying to prove their innocence.

“Davis could not clearly establish that he was actually innocent,” despite dramatic reversals in witnesses’ stories and new questions about a key ballistics test, says Russell Covey, a law professor at Georgia State University, in Atlanta.

Here’s an impassioned essay from writer/commentator Kevin Powell.

The Atlanta Journal Constitution columnist Jim Galloway is keeping track of reactions from local figures in the state of Georgia.

From E.D. Kain writing for Forbes

….If Davis is not guilty and we kill him nonetheless then we have simply stacked one murder on top of another. The life of Mark MacPhail will not be avenged. If Davis is guilty, surely serving out the remainder of his life in state prison should be enough. Justice does not require retribution.

Death is tragic. The death of Mark MacPhail is a tragedy that will never be undone. Not by blood, not by prison bars, not by time, not by proof that Davis is guilty or proof that he is innocent. But if we have even a glimmer of doubt about his guilt, there will be no justice in his death. If we have even a hint of uncertainty over whether this man did the deeds he was accused of, but which most of his accusers have since recanted, we should stay his execution.

But the history of justice in America is scarred across by such tragedies.

Andrew Cohen, chief Legal analyst and legal editor for CBS writing for the Atlantic.

……In the modern era of capital punishment — since the Supreme Court’s decision in Gregg v. Georgia — three main camps have emerged. First, there are those who are for the death penalty all the way; the ones who lament the time and money it takes from trial to execution. Then, there are those who are against capital punishment all the way; the ones who believe that the state should never be in the business of killing its own citizens. And between the two solitudes, there is a vast middle; those who believe that there is a place for the death penalty, but only if it can be administered fairly and accurately, free from the sort of arbitrary and capricious decision-making that pushed the justices to do away with it in the first place in 1972 in Furman v. Georgia.

With the Buck case coming back around later this month, with the Davis case right before us this week, with a leading presidential candidate making his capital punishment record a point of political pride, and with the Tea Party crowd cheering execution statistics, now seems as good a time as any to dig around a little at this strange legal confluence we’ve come to on the death penalty. Nearly 40 years after the Supreme Court first took away the death penalty, we may be closer than many people think to another turning point on capital punishment. We may be reaching the Icarus point — and don’t say I didn’t warn you.

[HUGE SNIP]

Whether the trial witnesses against [Davis] were lying then or are lying now, by fighting against his requested relief Georgia is saying that its interest in the finality of its capital judgments is more important than the accuracy of its capital verdicts. You can certainly find concern for such chilling sentiment in the gloomy language of Furman. But you sure can’t find it in the puffy language of Gregg. In their zeal to make good on cynical campaign promises to be “tough on crime,” in their pursuit of vengeance on behalf of grieving families, in their reckless disregard for the racial realities of capital punishment, elected or appointed proponents of the death penalty are in the process of ruining the mandate the Supreme Court gave them 35 years ago.

Fool me once, shame on you. Fool me twice, shame on me. I’ll continue to cover these death penalty stories, sure I will, but I promise I’ll no longer coddle what Justice Brennan called the “delusions” of opportunists like Rick Perry when they look into a camera and tell us that they’ve “never struggled” over death penalty cases. It’s crazy talk like that, truly “wanton and freakish,” to use Justice White’s words in Gregg, which gave us Furman to begin with and which, I believe, will ultimately bring it round again.

UPDATEs: TROY DAVIS’S ATTORNEYS SAY DAVIS WILL TAKE A POLYGRAPH TO PROVE HE IS NOT THE KILLER

This was the news from late Tuesday night. The Atlanta Journal Constitution has the story.

Also, here’s a link to the Board of Parole’s full statement.

NY TIMES CALLS THE DECISION “A GRIEVOUS WRONG.”

Here’s how the editorial opens:

Troy Davis is scheduled to be executed on Wednesday for the 1989 killing of a police officer in Savannah, Ga. The Georgia pardon and parole board’s refusal to grant him clemency is appalling in light of developments after his conviction: reports about police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime. …

A NEW GROUP OF 250,000 PETITION SIGNATURES will be delivered to to the offices of Chatham County District Attorney Larry Chisolm Wednesday morning at 9 a.m., in the hope that Chisolm will intervene and request that Davis’ death warrant be revoked.

(Of course, last week, more than 650,000 signatures were delivered to the Georgia Board of Paroles and Pardons—and we saw how well that worked out.)

This seems like something of a frail hope in that the prosecutor said in a statement Tuesday that he is powerless to withdraw an execution order for Davis issued by a state Superior Court judge.

That leaves the U.S. Supreme Court.

WEDNESDAY MORNING, POLYGRAPH REQUEST BLOCKED BY GEORGIA DEPARTMENT OF CORRECTIONS. ATTORNEYS ASK FOR LAST MINUTE 90 DAY STAY FROM LOCAL SUPERIOR COURT

CBS News has the story.

#TooMuchDoubt and #Who Is Troy Davis are each drawing about 20 tweets every 30 seconds.

Photo by David Tulis for the AP

Late on an August night in 1989, an off-duty Savannah police officer named Mark Allen MacPhail tried to intervene when he saw a homeless man being pistol whipped in a restaurant parking lot by another man. But as MacPhail ran toward the scene, the person doing the whipping turned his .38 on the approaching officer and fired three times, killing the father of two who was trying to be a good Samaritan.

In short order, then-20-year-old Troy Anthony Davis was arrested and, in 1991, tried and convicted of the murder of Mark Allen MacPhail, and sentenced to death.

Other than the bullets, there was no physical evidence at the crime scene, and no gun was ever recovered, so Davis was convicted largely on the basis of witnesses. Over the years, however, seven of the nine primary witnesses have recanted saying that they were pressured to ID Davis when they did not see him do the shooting at all. One of the two witnesses against who has not disavowed his or her story is a man named Sylvester “Redd” Coles whom other witness now say was, in fact, the man who did the beating and the shooting. Interestingly, back in 1989, it was Coles who went to the police and pointed the finger at Davis.

Now more than 20 and many appeals later (Including a trip to the U.S. Supreme Court), 42-year-old Davis is scheduled to die on September 21, this Wednesday. MacPhail’s mother says Davis’s execution will bring her and her family “peace.”

The only thing that stands between Davis and a lethal injection is the Georgia Board of Pardons and Paroles which will hear Davis’s petition for clemency on Monday.

Although Davis has hundreds of thousands supporters all over the world, including such unlikely people as William Sessions (the former Director of the FBI under Presidents Ronald Regan, George HW Bush and Bill Clinton), 1,500 legal professionals, more than 3,300 religious leaders, 26 death-row exonerees and 110 relatives of murder victims, absent the magic of DNA or some other conclusive evidence (like, say, someone else—Redd Coles, maybe— confessing convincingly to the murder), there is no way to conclusively prove Davis innocent—if in fact he is innocent. (Davis has never wavered in his insistence that he had nothing to do with the crime, but was leaving the parking lot when he heard the shots fired that killed MacPhail.)

Yet, the problem that many have with this case is the fact that the more deeply one looks into the changed testimony and at the affidavits of new witnesses who have come forward with statements damning to Coles, the more doubt about the guilt of Troy Anthony Davis emerges. Two of the jurors who sentenced Davis to death in 1989 have famously stated that they would not do so knowing what they know today. There is now much too much doubt, they say.

And that, in the end, is the point: Maybe Davis is innocent but, absent physical evidence, will never be able to prove it, and so the real killer will go free. Or maybe the original prosecutor and the cops who investigated the murder decades ago are correct, that the right man was convicted.

The truth is, we simply don’t know.

One thing we do know, is that there is a hell of a lot of uncertainty surrounding this case—reasonable doubt and then some.

And we cannot in any kind of good conscience execute a man when his guilt is not a sure thing. Maybe we can legally. But morally we cannot.

In the case of the death penalty, the moral truth must hold the high card.

Otherwise who are we?

NOTE: For those wishing to research the issue further, here are a couple links to get you started:

The local Savanna news coverage of the 1991 trial.

Savanna’s more current coverage.

Statements from affidavits by those who recanted witness statements or by others who have come forward with evidence against Redd Coles.

Marisa Taylor For McClatchy has done an excellent three-part series on the military’s use of the death penalty.

Here are clips from all three parts:

RACE AND THE DEATH PENALTY IN THE MILITARY

Interestingly, it seems that the racial disparities are the starkest when those killed are outside the military. Military on Military murders seem to be less affected to the st

Ten of the 16 men whom the military has sentenced to death in the last 27 years share another common characteristic: They’re all minorities.

The racial imbalance in the military’s death penalty isn’t new. As far back as the early 1970s, the military has acknowledged racial bias in its judicial system. The civilian court systems have similar disparities.

But one recent statistical analysis has found that the problem endures and is in some ways worse than on the civilian side.

A study by a group of law and statistics professors found that minorities in the military were twice as likely to be sentenced to death as their white counterparts, a statistic higher than is known to exist in most civilian court systems.

DEATH SENTENCES HANDLED SO POORLY THEY ARE FREQUENTLY OVERTURNED

It is rarely question of innocence at all when these military capital cases are overturned. It is a matter instead of hopeless bungling by the defense at trial, of evidence grossly mishandled by prosecutors, and more.

In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.

The rapist and murderer of four women had sat on death row for two decades by the time President George W. Bush approved his death warrant.

But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal.

Now, federal defenders who took over his case say they’ve found new evidence that his original military lawyers should have discovered. If they’re successful, Gray could join a growing number of soldiers, airman and marines who have been spared execution.

Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military’s appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men’s guilt, but because of mistakes made at every level of the military’s judicial system.

The problems included defense attorneys who bungled representation, judges who didn’t know how to properly instruct a jury and prosecutors who mishandled evidence.

In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.

Yet by many measures, they’re the military’s worst of the worst. Convicted of crimes such as serial murder and rape, they’re the kinds of criminals that many people would agree the death penalty should be reserved for.

Then why have they been spared?

Critics say the military botched the cases because its judicial system lags behind civilian courts and isn’t equipped to handle the complex legal and moral questions that capital cases raise.

THE DETAILS OF A BAD DEFENSE

Nobody is suggesting Army Maj. Nidal Malik Hasan didn’t commit the horrific murders of which he was accused. “It’s not a whodunit, but a whydunit,” said Dwight Sullivan, senior appellate defense counsel for the Air Force.

When military jurors sentenced former Marine Lance Cpl. Ronnie Curtis to death, they had every reason to believe that he deserved to be executed. No one disputed that he’d stabbed and killed his superior officer and the officer’s wife inside their home. The only real question was why.

But what the jury learned at trial made the crime seem even more inexplicable. After all, he had a good Christian upbringing by caring parents. No one could have predicted the murders based on his background.

On appeal, his lawyers discovered a very different story. They found that Curtis’ adoptive father was frequently drunk, including during the lawyers’ visit to their client’s childhood home in Kansas. When questioned about his son, Curtis’ father showed off the horsewhip he’d used to beat him after adopting him at age 2.

In capital cases, such details could be enough to save a defendant from death row. Yet the realities of Curtis’ troubled childhood, along with evidence that he was drunk when he committed the murders, were never presented at his sentencing at Marine Corps Base

AND THERE’S THE LITTLE MATTER OF THE MILITARY CRIME LAB

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AND IN OTHER NEWS: TWO SIDES CLASH OVER RELEASE OF PROP 8 TRIAL VIDEO

The SF Chron has the story:

Adversaries in the legal battle over same-sex marriage in California clashed Monday over the release of courtroom videos, with gay-rights groups arguing for the public’s right to watch last year’s trial and their opponents saying the judge promised to keep the footage sealed.

The videos, whose live broadcast was blocked by the U.S. Supreme Court, are still “the ultimate judicial record (that) will allow the public to see exactly what led Judge (Vaughn) Walker to strike down Proposition 8,” Theodore Boutrous, lawyer for two gay and lesbian couples and an advocacy group, said at a federal court hearing in San Francisco.

NOTE: LIGHT BLOGGING TODAY (WEDDING PREP AND ALL THAT)

CAN NEUROSCIENCE HELP US SENTENCE MORE EFFECTIVELY?

An intriguing new book by Professor Deborah Denno is coming from Oxford University Press: It’s called Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively.

Here is some of the summary from the abstract on the book:

A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.

The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change — either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.

PS: Thanks to Doug Berman at Sentencing, Law & Policy for pointing to Denno’s book.

I hope the book lives up to its promise. If so, it could be particularly helpful in the arena of juvenile justice, where we seem to be ever more eager to shove kids into adult court in defiance of everything we know about how the human brain matures (not to mention just basic psychology).

In fact, it has long struck me that so much of contemporary sentencing, incarceration and parole policy is designed with a bizarre disregard for nearly everything we have learned about human behavior in the last century. With rare exceptions, we use our prisons almost solely to punish—even though there is nothing in research or anecdotal observation that tells us that punishment alone will improve behavior and/or expand one’s ability to function as an upright, productive citizen. In most cases, it makes people worse, not better. We seem also to forget that 95 percent of 2.3 million who are locked up in our nation’s prisons at any given time, will eventually come home. Then, we act shocked and dismayed when more than half of the more than 700,000 Americans who are paroled each year, do not succeed on the outside.

I long for the time when our policies are based more promoting public safety and community health instead of some atavistic notion of vengeance.

THE FEDS AND THE DEATH PENALITY

Carrie Johnson for NPR reports that “…a quiet revolution has overtaken the death penalty debate. Like many trends, this one started in the states and moved to the federal level..” That “quiet revolution” means fewer executions. Read the details here.

THREE MULTIMILLION $$ EXECUTIONS

The Seattle Times reports that various counties in Washington state have put capitol punishment on hold due to budgetary concerns. In King County, which still has active death penalty cases, the paper reports that “.…the cost of prosecuting two men and a woman accused of two of the most heinous crimes in King County in recent years is $656,564 and counting.

The cost of defending them is even higher: $4.3 million, and also climbing.”

Last year’s prosecutor of a third case has thus far cost the county $2.4 million.

All three of these cases, the defendants appear to be the worst of the worst-–people that one is hard-pressed to believe that the planet will miss all that much.

Still, even some of the Washington’s death penalty advocates are wondering if maybe the price tag is too high for the state to afford.

IF LAW-N-ORDER STATES LIKE TEXAS CAN REVISE THEIR SENTENCING LAWS, WHY CAN’T CALIFORNIA?

Charlie Savage of the New York Times has this story:

Fanned by the financial crisis, a wave of sentencing and parole reforms is gaining force as it sweeps across the United States, reversing a trend of “tough on crime” policies that lasted for decades and drove the nation’s incarceration rate to the highest — and most costly — level in the developed world.

While liberals have long complained that harsh mandatory minimum sentences for nonviolent offenses like drug possession are unjust, the push to overhaul penal policies has been increasingly embraced by elected officials in some of the most conservative states in the country. And for a different reason: to save money….

FULLERTON’S CITY COUNCIL APPROVES LA’S MIKE GENNACO TO EXAMINE THE PRACTICES OF FULLERTON P.D. IN WAKE OF KELLY THOMAS BEATING DEATH

The LA Times’ Richard Winton has the story. Here’s a clip:

The Fullerton City Council late Tuesday gave the go-ahead for an independent review of the city’s embattled Police Department and to investigate the circumstances surrounding the death of a homeless man after a violent encounter with six officers.

Michael Gennaco, who oversees Los Angeles County’s Office of Independent Review and scrutinizes the Los Angeles County Sheriff’s Department’s actions, said the two contracts approved by the Fullerton council allow him to review Kelly Thomas’ death and conduct a separate extensive review of department policies and procedures.

The council’s decision came after a meeting dominated by more than two hours of public comments criticizing how the Police Department and the city handled the July 5 altercation that resulted in Thomas’ death and its aftermath. The meeting grew so heated that three council members briefly walked out.

Illustration from SerenaDraws

Since the advent of DNA evidence, America has been dealing with an ever growing list of men and women who have been found to be innocent of serious crimes after having spent years or decades behind bars.

When the innocent are released we have laws in place (on a state by state basis) that allow an individual and a family to bring suit for the harm done.

But what if the injustice is taken to the extreme? What happens if we find that we have executed an innocent person? What then are we obligated to for the surviving family?

Professor Meghan Ryan has written a provocative paper about this question.

You can find the abstract here. (You can also download the full paper at that same site.)

In the meantime, here’s a clip:

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts was recently in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court has been interrupted by objections from Texas prosecutors and the presiding judge’s retirement, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill-equipped to provide any relief for such an egregious wrong, however.

This Article identifies the difficulties that the heirs, families, and friends of wrongfully executed individuals face in attempting to obtain compensation for this wrong. The Article highlights that statutory compensation schemes overlook the issue of wrongful execution and the greater injustice it entails and urges that the statutes be amended in light of this grievous wrong that has come to the fore of American criminal justice systems.

Part I traces Willingham‘s story of a man who was executed in the face of evidence suggesting that he was innocent. It takes a look at his relatives‘ recent attempts to clear his name and explains that his story is not yet over. Part II examines the difficulties of exonerating individuals who have been wrongfully executed. It explains how DNA is often essential to posthumous exonerations and notes prosecutors‘ reluctance to release DNA evidence for fears that it could undermine interests in finality of convictions and even prosecutors‘ own convictions rates. Part III explores possible remedies for determinations of wrongful executions….

NEW REPORT TELLS HOW SIX STATES ARE REDUCING INCARCERATION RATES AND COSTS WHILE PROTECTING COMMUNITIES

The ACLU has released a new report called Smart Reform Is Possible: States Reducing Incarceration Rates and Costs While Protecting Communities.

It looks in detail at what six traditionally “tough on crime” states — Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio — in the way of significant reforms to reduce their prison populations and budgets. These same states saw their crime rates drop while the new policies were in place.

The report also looks at some states that are “working toward reform,” with California at the top of the list as the governor works to successfully implement his realignment strategy.

DID SCHOOL ADMINISTRATORS IGNORE WARNING SIGNS BEFORE OXNARD MIDDLE SCHOOLER BRANDON MCINERNEY SHOT AND KILLED CLASSMATE LARRY KING?

The LA Times’ Catherine Saillant, who is covering the trial, writes a nuanced and sad story on the issue that has become a big deal in McInerney’s defense.

Here’s a clip:

Brandon McInerney is the defendant in the Chatsworth courtroom, accused of bringing a gun to his middle school and killing gay classmate Larry King. But as the case unfolds, the school itself has come under scrutiny.

One teacher after another has testified in the murder trial about their deep worries that King’s feminine attire and taunting behavior could provoke problems — and that E.O. Green Junior High administrators ignored them.

It wasn’t just that King, 15, had begun wearing makeup and women’s spiked-heeled boots, witnesses testified. It was that he seemed to relish making the boys squirm at his newly feminized appearance and was taunting them with comments like “I know you want me.”

“They wanted to beat Larry up for what he was doing to them and they came to me because I wanted to keep them out of trouble,” E.O. Green teacher Jill Ekman testified. “I told them that I would work on getting assistance from the office and we would work this out.”

But that didn’t happen, Ekman and others testified. After days of escalating tensions between King and McInerney, McInerney, then 14, brought a handgun to the Oxnard school on Feb. 12, 2008, and shot King twice in the back of the head. King died two days later.

Photo courtesy of Willingham family

SCOTUS REVIEW IS SOUGHT FOR 2 ONLINE FREE SPEECH CASES, ONE INVOLVING STUDENTS AND “DOUCHEBAGS”

(Yes, you’re right, my inner 9-year-old does think it’s funny each time I type the word “douchebag.”)

Ahem…

The Student Press Law Center reports that the lawyers for two cases that involve online communication by students, and First Amendment rights, hope that the US Supremes will agree to hear their cases. Both address similar issues and have the potential to set precedent. Here are the rundowns on the cases, as reported by SPLC:

CASE 1: The Right to Mock in MySpace

“J.S.” was a student at Blue Mountain Middle School in Pennsylvania in 2007 when she was suspended for 10 days after creating a MySpace profile mocking the school principal, James McGonigle. Her parents sued the school district on her behalf for violating her First Amendment rights and their due process rights to discipline their child as they wished.

Both the district court and a three-judge panel of the Third Circuit found in favor of the school district. However, when the full Third Circuit court reheard the case along with an extremely similar one, Layshock v. Hermitage School District, it found in favor of the students in both cases.

CASE 2: The…er….Douchebag Matter

On April 25, a panel of judges from the 2nd U.S. Circuit Court of Appeals concluded that Connecticut student Avery Doninger’s First Amendment rights were not violated when she was prevented from running for class office, and later prevented from accepting the office she was elected to by write-in ballot, after calling school administrators “douchebags” on her blog in 2007.

The Second Circuit determined that the district had been “objectively reasonable” in their decision to punish her for her blog post. It granted the district immunity from the lawsuit but did not address whether Doninger’s rights were violated.

Doninger attorney John Schoenhorn wrote in an email that he intends to ask the Supreme Court to hear an appeal in this case as well because the conflict between the Second Circuit and Third Circuit’s decisions could create confusion.

Here’s a more detailed account of the Doninger case.

Let us hope that the Supremes take on or both cases as the arguments will be interesting.

LAUSD AND THE NEW HOMEWORK POLICY

The LA Times Howard Blume writes about the Los Angeles Unified School District’s new homework policy, and how it is not a simple wrong/right matter.

Here’s how it opens:

Vanessa Perez was a homework scofflaw. The Marshall High School senior didn’t finish all of it — largely because she worked 24 hours a week at a Subway sandwich shop.

Alvaro Ramirez, a junior at the Santee Education Complex, doesn’t have his own room and his mother baby-sits young children at night. “They’re always there and they’re always loud,” he said, explaining his challenges with homework.

The nation’s second-largest school system has decided to give students like these a break. A new policy decrees that homework can count for only 10% of a student’s grade.

Critics — mostly teachers — worry that the policy will encourage students to slack off assigned work and even reward those who already disregard assignments. And they say it could penalize hardworking students who receive higher marks for effort.

Some educators also object to a one-size-fits-all mandate they said could hamstring teaching or homogenize it. They say, too, that students who do their homework perform significantly better than those who don’t — a view supported by research.

But Los Angeles Unified is pressing forward.….

IS THE LOCKE TAKEOVER BY GREEN DOT WORKING? A REPORT CARD

It’s been three years since Green Dot Charter Schools fought for and won the right to take over and try to transform LAUSD’s desperately failing Locke High School. So how is the grand experiment doing?

An LA Times editorial says the progress is not exactly dramatic, yet it is slow, steady and in small increments.

That’s what I’ve heard too. In my experience, however, some miracles occur, not in a blinding flash of light, but in slow motion. Yet they are miracles nonetheless. Maybe the changes at Locke could be said to fall in that category.

Let us hope so.

The editorial is a good one. Here’s a clip. But read it all.

How did Green Dot do at stemming the tide of students who disappear from campus into lives usually plagued by high unemployment and low wages? Solidly better, but not the quick and extraordinary transformation everyone had hoped for. Not yet, anyway.

Charter schools are not the ultimate solution to bad public schools; rather, the solution lies in improving public schools so that they have adequate resources, good teachers and a stimulating curriculum. Like many charter operators, Green Dot has had financial help from outside foundations, help that isn’t available to most public schools.

Still, well-run charter schools have played a valuable role in pressuring public schools to improve, and they can be a lifeline to students who are sinking in crummy neighborhood schools or, in many cases, leaving school far too soon. In the case of Locke, the switch appears to be working, albeit more slowly and haltingly than Green Dot expected.

The charter operator deserves praise for its massive and earnest effort at Locke. It was the first charter school in Los Angeles to accept all of the students within its attendance boundaries, just as public schools do, rather than restricting enrollment and accepting students through a lottery. Students who choose their charter schools are motivated to follow the rules and achieve; public schools take all comers. The Locke takeover served as the model for L.A. Unified’s Public School Choice initiative, in which new schools and some failing schools were turned over to outside groups that filed the most promising applications. Some of those were groups of teachers, others were charter schools. All had to follow Green Dot’s example and admit all students within their enrollment boundaries.

BILL WANTS TO ABOLISHED THE DEATH PENALTY IN CALIFORNIA

Don Thompson of the AP has the story. Here’s how it opens:

A state lawmaker on Monday introduced a bill seeking a public vote on whether California should abolish capital punishment and convert death sentences to life in prison, citing a study that said most condemned inmates die of suicide or old age despite billions in taxpayer costs.

Democratic Sen. Loni Hancock, of Berkeley, said the state can no longer afford the cost of trying capital cases, defending them through a lengthy appeals process and housing inmates in the nation’s most populous death row.

She cited a study prepared by Judge Arthur L. Alarcon of the 9th U.S. Circuit Court of Appeals and Loyola Law School professor Paula M. Mitchell that calls the capital punishment system “a multibillion-dollar fraud on California taxpayers.”

Their analysis, to be published next month, estimates California has spent more than $4 billion on capital punishment since the death penalty was reinstated in 1978. In that time, California has executed just 13 inmates, which works out to $308 million per execution.

“Capital punishment is an expensive failure and an example of the dysfunction of our prisons,” Hancock said in a statement. “California’s death row is the largest and most costly in the United States. It is not helping to protect our state; it is helping to bankrupt us.”

Yeah. What she said.

NBC San Diego also has a report on the bill.

THE SUPREMES THREW OUT THE GIANT CLASS ACTION SUIT AGAINST WAL-MART, & THE NY TIMES & THE LA TIMES SAY SCOTUS WAS WRONG

It is a case of far reaching consequence. Reuters explains the basics of the case and the ruling

The Supreme Court threw out on Monday a massive class-action sex-discrimination lawsuit against Wal-Mart Stores Inc, the biggest ever such case, in a major victory for the world’s largest retailer and for big business in general.

The justices unanimously ruled that more than 1 million female employees nationwide could not proceed together in the lawsuit seeking billions of dollars and accusing Wal-Mart of paying women less and giving them fewer promotions.

The Supreme Court agreed with Wal-Mart, the largest private U.S. employer, that the class-action certification violated federal rules for such lawsuits.

It accepted Wal-Mart’s argument that the female employees in different jobs at 3,400 different stores nationwide and with different supervisors do not have enough in common to be lumped together in a single class-action lawsuit.

Tuesday’s LA Times has a well-reasoned editorial about why the Supremes got it wrong and the women should have been allowed to sue.

Here’s a clip:

….The legal issues in the case were complicated, but the central question was a simple one and the court got it wrong. As a result of the decision, serious allegations against Wal-Mart dating back a decade won’t be tested in court, and similar lawsuits against other employers will never be undertaken at all.

The overall decision was 9 to 0 in favor of Wal-Mart. But on the specific and most substantial issue of whether Wal-Mart’s female employees might seek to join together because of a common experience of discrimination, the vote was 5 to 4.

Class-action suits of the kind Wal-Mart employees wanted to bring provide significant advantages over individual lawsuits. Among other things, they allow an avenue of relief for far-flung employees who might not be able to afford to bring lawsuits on their own.

The New York Times goes even further in an editorial that points out that the ruling will restrict class action suits in general.

The majority opinion by Justice Antonin Scalia will make it substantially more difficult for class-action suits in all manner of cases to move forward. For 45 years, since Congress approved the criteria for class actions, the threshold for certification of a class has been low, with good reason because certification is merely the first step in a suit. Members of a potential class have had to show that they were numerous, had questions of law or fact in common and had representatives with typical claims who would protect the interests of the class.

Justice Scalia significantly raised the threshold of certification, writing that there must be “glue” holding together the claims of a would-be class. Now, without saying what the actual standard of proof is, the majority requires that potential members of a class show that they are likely to prevail at trial when they seek initial certification. In this change, the court has made fact-finding a major part of certification, increasing the cost and the stakes of starting a class action.

Read the rest.

ONT A COMPLETELY DIFFERENT TOPIC: $184 MILLION – THE YEARLY COST OF THE CALIFORNIA DEATH PENALTY

We’ve known for a long time that there is a very high price tag on the California death penalty, way more than confining an inmate to life without parole.

But a new study by U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell. “Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle,” details the costs and comparisons.

Alarcon and Mitchell’s work will appear in the Loyola of Los Angeles Law Review. But Carol Williams has an extensive article about the study in the LA Times.

Here are a few clips:

The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

The heightened security practices mandated for death row inmates added $100,663 to the cost of incarcerating each capital prisoner last year, for a total of $72 million.

The study’s findings replicated many of those made by the bipartisan California Commission on the Fair Administration of Justice in 2008, and a year later, when the American Civil Liberties Union of Northern California researched the death penalty’s fiscal effects ahead of public hearings on how to revise lethal injection procedures after a federal judge ruled the state’s practices unconstitutional.

As with the recommendations in Alarcon’s 2007 report, none of the remedies outlined by the commission chaired by former Atty. Gen. John Van de Kamp has been adopted by lawmakers or put to the public for a vote…..

As the the various Innocence Projects around the country continue to find people on death row who turn out to be factually and provably innocent, the death penalty is steadily losing advocates. Many of those who have long believed in the eye-for-an-eye morality of capital punishment are now given pause by the specter of the state taking the life of someone who may turn out to be innocent of the murder for which he or she was sentenced to death.

It is precisely that fear that led first New Jersey in 2007, New Mexico in 2009, and then Illinois last year, to ban executions.

Now, in addition to the innocence factor, there is a new strategy used by capital punishment opponents that is meaning fewer death sentences even in the formerly execution-happy state of Texas. It is called mitigation.

In this week’s New Yorker, legal correspondent, Jeffrey Toobin, describes the strategy in a profile of one of its most successful practitioners, Houston-based Danalynn Recer.

Unfortunately, full access to the story requires a subscription.

However, this is a fairly decent abstract:

The death penalty is withering. The change has been especially striking in Houston, which has long reigned as the death-penalty capital of the nation. If Harris County, which includes Houston and its nearby suburbs, were a state, it would trail only the rest of Texas for the number of people executed. But last year prosecutors in Harris County sent only two people to death row. Explanations for the change vary. Crime is down everywhere, and fewer murders means fewer potential death-penalty cases. Widely publicized exonerations of convicted prisoners, based on DNA evidence, may have given some jurors second thoughts about imposing the death penalty.

Another explanation for the decline in death sentences has been the increasing use of mitigation, a strategy that aims to tell the defendant’s life story. In Texas, the most prominent mitigation strategist is a lawyer named Danalynn Recer, the executive director of the Gulf Region Advocacy Center. Based in Houston, GRACE has represented defendants in death-penalty cases since 2002. When the Supreme Court allowed executions to resume, in 1976, after a four-year hiatus, the Justices mandated a two-phase structure for death-penalty trials that has become familiar in subsequent decades. The “guilt phase” would determine whether the prosecution established beyond a reasonable doubt that the defendant committed the charged capital offense. Following a conviction, the “penalty phase,” a separate mini-trial before the same jury, would consider whether the defendant should be sentenced to death. To make that determination, the Court sought to insure that jurors follow a rational process, rather than make a snap judgment about whether a defendant should live or die. This system, which became known as “guided discretion,” required jurors to weigh “aggravating factors” and “mitigating factors.” Mitigating factors generally include a defendant’s mental illness, or the absence of a prior criminal record, but the Court also made sure that defendants could come up with their own mitigating factors to present to jurors.

For a long time, defense lawyers didn’t know how to use this option to their advantage, and many largely ignored the penalty phase. In the nineteen-eighties, some death-penalty activists started taking a more systematic approach. The key figures in the change were not lawyers but anthropologists, ex-journalists, and even recent college graduates. The idea was to use the mitigation process to tell the life story of the defendant in a way that explained the conduct that brought him into court. The work was closer to biography than criminal investigation, and it led to the creation of a new position in the legal world: mitigation specialist. Tells about Recer’s work with Clive Stafford Smith and discusses the use of mitigation in the death-penalty cases of Scott Thibodeaux and Juan Quintero.

As attorney Clive Stafford Smith says of Recer at the story’s end: “There were lawyers who would do death-penalty cases and do no mitigation investigation at all. She’s changed that standard. There wasn’t anyone who was doing that work before her. When she want back to Houston, it was the death penalty capital of the world. She can take a lot of credit for the fact that it isn’t anymore.”

Photo of Recer by Aaron M. Sprecher For The Houston Chronicle

CALIFORNIA STATE SENATE PASSED BILL TO REQUIRE TEACHING GAY HISTORY IN SCHOOLS

The AP gets this story exactly right:

California conservatives were outraged in 1966 when the state Board of Education adopted a new junior high school history textbook. The book’s inclusive treatment of the civil rights movement and influential black Americans would indoctrinate students, undermine religious values and politicize the curriculum, they said.

Forty-five years later, gay rights advocates say similar arguments are being advanced to defeat a bill that would make the state the first to require the teaching of gay history in public schools. The California Senate approved the landmark measure last week, but it needs to clear the Democrat-controlled Assembly and Gov. Jerry Brown’s desk.

Yet the debate about what children should learn about sexual orientation mirrors earlier disputes over whether groups such as 20th Century German immigrants, women, Muslims and Jews would have a place for their heroes and heartbreaks in the history books.

The AP points out that, right now, California requires schools to teach about women, African Americans, Mexican Americans, entrepreneurs, Asian Americans, European Americans, American Indians and labor.

Advocates point to studies that suggest that bullying dramatically decreases in schools where gay history is added to the curriculum.

STUDY SUGGESTS THAT NORTH CAROLINA SHOULD REPEAL THE DEATH PENALTY

A new study by an Appalachian State University professor finds that the state’s death is expensive, ineffective and racially biased—and should therefore be repealed.

The Winston-Salem Journal has the story. Here’s a clip.

The study was done by Matthew Robinson, a professor of government and justice studies. Robinson analyzed data from more than 20 studies on the death penalty and released his findings Monday at a news conference in Raleigh.

“In the past six years, three states have abolished the death penalty: Illinois, New Mexico and New Jersey,” Robinson said in an interview after the news conference. “They did it for the same reason. They found racial bias, they found it to be costly, they found it to be ineffective and a threat to innocent people.”

Robinson said the studies he looked at were remarkably consistent in their conclusions — that the death penalty doesn’t deter crime, is racially biased and has led to people being wrongfully convicted.

TOUGH LOVE JUDGE FIGHTS BACK, THREATENS IRA GLASS WITH LAWSUIT

A few weeks ago the radio show This American Life profiled a Georgia drug court program that, in the words of the producers, ” we believe is run differently from every other drug court in the country, doing some things that are contrary to the very philosophy of drug court. The result? People with offenses that would get minimal or no sentences elsewhere sometimes end up in the system five to ten years.”

The show, called Very Tough Love, reported by TAL’s host, Ira Glass was an excellent and very affecting piece of journalism that was very critical of Judge Amanda Williams who presides over the court and seemed, by all accounts, to misuse her power as a jurist.

Judge Williams didn’t take very kindly to Glass’s criticism and was very vocal about her displeasure. First she released a press release about her vexation. Now, most recently, through her lawyer, Williams has publicly accused Glass of libel, plus has threatened a lawsuit.

Listen to the story here. Then read the letter from Williams and company, and Ira Glass’s response.

On Wednesday, LA County’s Chief Executive Office (CEO), Bill Fujioka released a report reviewing the deaths of children in LA county whose families were under the supervision of or had been investigated by the Department of Children and Family Services—DCFS. Fujioka compliled the report in response to a motion authored by Supervisors Mark Ridley Thomas and Mike Antonovich, who asked for 10 years of figures on kid deaths, so that the causes might be better assessed and future deaths might be prevented.

[The full report may be found here, helpfully posted by Richard Wexler of the National Coalition for Child Protection Reform. Wexler's commentary on the report is here.]

The motion was, in part, a response to some articles in the LA Times (like this one) that suggested more kids were dying while left with their families after being investigated by DCFS. The Times implied that the increase in deaths could be due to a change in foster care policy called the Title IV-E waiver, that meant an effort to keep more kids with their families and provide support for those families, rather than removing them to the foster care system.

Many foster care watchers, myself included, questioned the Times’ conclusions and worried that a bad diagnosis might have the unintended consequence of more kids being damaged by being unnecessarily yanked from their families.

The CEO’s report helps to clarify matters by teasing out more details on those awful yearly deaths.

This is from Ridley-Thomas’s office’s statement regarding the new report:

It is particularly important to resist the temptation to exploit child deaths to push ideological agendas, the Supervisor said: “The CEO’s report shows we cannot honestly link child deaths to specific policies or the performance of particular government departments or individuals.”

In 2010, the total number of child deaths for children with DCFS histories was 175, in line with the annual average since 2000 of 166. “It would be negligent to be satisfied with any total more than zero; but it is also reckless to suggest there are quick fixes,” he said.

“We must shun policy gimmicks that produce sound bites for news conferences but yield no true solutions. We must not trivialize the enormity of the challenge, and we expect that all in society understand this is a problem for all of us to solve.”

It is particularly important to resist the temptation to exploit child deaths to push ideological agendas, the Supervisor said: “The CEO’s report shows we cannot honestly link child deaths to specific policies or the performance of particular government departments or individuals.”

In 2010, the total number of child deaths for children with DCFS histories was 175, in line with the annual average since 2000 of 166. “It would be negligent to be satisfied with any total more than zero; but it is also reckless to suggest there are quick fixes,” he said.

“We must shun policy gimmicks that produce sound bites for news conferences but yield no true solutions. We must not trivialize the enormity of the challenge, and we expect that all in society understand this is a problem for all of us to solve.”

Yep.

And to demonstrate the complexity of the problem there was this saddest of facts in the report: Nearly one-in-five (17%) of the children who died in LA County in 2010 had a parent who had themselves been referred to DCFS as a child.