Saturday, September 24, 2016

Death, Plus Four

Four years can be - often is - a lifetime, and with us it easily could have been. In the universe of possible life experiences, standing next to a person being publicly sentenced to death cannot be a large sampling. Even smaller, then, is embracing the same person for the first time four years later, and knowing in that embrace the legal sentence of death will never be carried out.

Four years before that embrace I had awkwardly said goodbye. What do you say when minutes before society told them they were unfit to continue living? Do you apologize because your advocacy was not good enough? That even after years of sifting through the records and talking to the people that define a life, you came up short? Try and explain how you just could not stop the gears of state sponsored death from engaging?

Immersion in the details of a life is like jumping down a rabbit hole into some shared Wonderland. In the end it binds people like chewing gum to August asphalt. That bond is forged over years of shared work and discoveries large and small, and in my case, in small steps. It happens in the voice of a ninety year old man re-living in a slow drawl fifty years of teaching those he called educable mentally retarded. The success. The failures. The frustration. These small things bind you because not only do you learn about the best and worst of them, but also yourself.

Yet the victim also lived in that immersion. Life taken is as important as a life worth saving. So it was that many months before that public judgement of death and years before that embrace I stood in a row crop field in a far away state, eyes closed forcing myself into the horror of consciousness disappearing into a terrifying spasm of violence. I felt it because bracing terror lived in that field. Terror as real as that I tried to imagine.

I believe we often have the wrong conversation about the death penalty. Yes it is flawed public policy. Yes it has wrongfully condemned the innocent and continues to disproportionately impact communities of color. Yet even states like California with direct ballot initiatives are having difficulty taking it off their books.

Why is this? My two-cents worth? In the abstract the death penalty is a fair trade to most. Like a elegant but flawed algebraic formula, it seems to balance on both sides of a symbol for equal. Such thinking will continue until we engage on the most fundamental level on the death penalty: That as a community we are worse off because we kill. Until this is embraced by a majority of those who live among our civilized society, we are doomed right along with it.

Tuesday, September 13, 2016

Hypocrisy About Marijuana - Arizona Edition

The lede from The Intercept story by Lee Fang tells the story:
Pharmaceutical executives who recently made a major donation to an anti-marijuana legalization campaign claimed they were doing so out of concern for the safety of children — but their investor filings reveal that pot poses a direct threat to their plans to cash in on a synthetic cannabis product they have developed.
Arizona has Prop 205 on the November ballot to legalize possession and consumption of marijuana for those 21 years of age and older. Polling done on August 6, 2016 showed approval of the measure up 10%. With this polling in the public domain, on August 31, 2016 the pharmaceutical company Insys gave $500,000 to a group called "Arizonans for Responsible Drug Policy" which opposes approval of Prop 205. By so doing Insys became their single largest contributor.

Not coincidentally, Insys manufactures the drug Subsys, marketed to physicians as cancer pain reliever. Fentanyl is an synthetic opioid analgesic that is similar to morphine but is 50 to 100 times more potent, according to the National Institute of Drug Abuse. Fentanyl is the painkiller on which Prince overdosed.

All of this information has been widely reported.

The story The Intercept and Lee Fang broke is more interesting. It turns out Insys has another product in their developmental pipeline:
Insys is currently developing a product called the Dronabinol Oral Solution, a drug that uses a synthetic version of tetrahydrocannabinol (THC) to alleviate chemotherapy-caused nausea and vomiting. In an early filing related to the dronabinol drug, assessing market concerns and competition, Insys filed a disclosure statement with the Securities and Exchange Commission stating plainly that legal marijuana is a direct threat to their product line:  
'Legalization of marijuana or non-synthetic cannabinoids in the United States could significantly limit the commercial success of any dronabinol product candidate. … If marijuana or non-synthetic cannabinoids were legalized in the United States, the market for dronabinol product sales would likely be significantly reduced and our ability to generate revenue and our business prospects would be materially adversely affected.'
The truth is Insys wants to defeat Prop 205 for competitive reasons. The whole charade is rich with dark irony. Big Pharma is now funding anti-marijuana campaigns to market competing drugs with the same active ingredient in marijuana - THC, or in fentayl's case, opium. What Big Pharma wants is to continue a virtual monopoly, charging prices with impunity rather than compete in a regulated market. This lays bare the fallacy that marijuana is somehow more dangerous than widely prescribed drugs.

In Texas, as I have written before, here, here and here, arrest and criminal prosecution of possession of a small amount of marijuana can result in life altering consequences. De-criminalization, or simply using laws currently on the Texas books, could change this. Big Pharama recognizes the challenge to this emerging market and is overtly challenging de-criminalization for money reasons, not public health reasons.

Are you paying attention Texas?

Saturday, September 10, 2016

Texas' Intellectual Disability Idiocy - Part II

This is second in a series of posts related to Moore v. Texas. currently pending before the United States Supreme Court (SCOTUS).

The State of Texas has filed their Merits Brief in Moore v. Texas. At issue is how Texas defines intellectual disability (ID) for purposes of exclusion from eligibility for the Death Penalty. Such claims are called Atkins claims - named after the case in which the SCOTUS decided this category of Defendant is ineligible for the death penalty.

Moore is significant for many reasons. A decision against the State of Texas would impact prosecutors who increasingly wrestle with doubts about the use of the Death Penalty, and a subtle, but growing number of taxpayers becoming more vocal in their desire to limit Death Penalty prosecutions. Decreased use of the Death Penalty buttresses the argument that a national consensus exists for abolishment under the 8th Amendment as fewer states are utilizing it, and within those states, use is restricted to a handful of counties.

A defeat for the State of Texas in Moore would further this push. Why? If the State of Texas loses, every Texas Death Penalty case with an ID claim decided since 2002 will potentially be found to have been decided under an erroneous legal standard. Evidence of the effect SCOTUS consideration of Moore has already had in Texas can be found in the fact that since the grant of certiorari the Texas Court of Criminal Appeals (CCA) has granted stays for every execution scheduled.

In addition to Moore's Merits Brief, discussed in Part I, of this series, amici Briefs in favor of Moore's position have been filed by the two most important organizations that diagnosis ID and by legal organizations such as the American Bar Association and the American Civil Liberties Union (ACLU), among others.

How the State of Texas argued their Merits Brief in SCOTUS has been therefore highly anticipated. The Brief was filed September 6, 2016. The State's Merits Brief opened aggressively. From the "Summary of Argument":
Neither the Eighth Amendment nor this Court’s decisions in Atkins and Hall [v. Florida] require States to adhere precisely to a particular organization’s clinical definition of intellectual disability. Atkins gave States latitude to develop substantive standards implementing the prohibition on executing persons with intellectual disability. Hall explained that States must consider the views of medical experts so that their Atkins standards are 'informed by the medical community’s diagnostic framework.' But neither case directed States to strictly follow a particular clinical definition of intellectual disability. To the contrary, the Court confirmed in Hall that those definitions 'do not dictate' the Atkins analysis, and '[t]he legal definition of intellectual disability is distinct from a medical diagnosis.' (citations omitted).
Hall v. Florida held the Florida ID Death Penalty scheme unconstitutional because of the use of a strict cutoff of 70 for the first of the three accepted clinical definitions of ID - intellectual functioning. Both the leading authorities on ID, the American Psychological Association (APA) and the American Association for the Intellectual and Developmentally Disabled (AAIDD) incorporate a Standard Error of Measurement (SEM) into intellectual functioning (commonly called IQ) testing. Florida did not, and SCOTUS held in Hall this failure doomed their Atkins claim procedure.

The State of Texas briefing points out that SEM is incorporated as part of Texas' Atkins claims. It is the second ID clinical prong inquiring into whether an individual's adaptive behavior deficits meet certain clinical standards, where the legal issue before SCOTUS exists. The most difficult argument for Texas to overcome is that deviation from clinically accepted standards regarding adaptive behaviors - use of the so called Briseno factors - is logically the same constitutional defect present in Hall. This argument is straightforward: Like Florida's non-constitutional use of a strict cut off in intellectual functioning testing, Texas' standard uses non-medically accepted standards in assessing adaptive behaviors.

Adaptive behaviors standards assess whether an individual has an inability (deficits) to adapt aspects of their behavior - called "domains" clinically - to the community that surrounds them. The strongest argument Moore and the amici make is that the Briseno factors improperly weigh adaptive strengths against adaptive deficits instead of considering deficits alone. This argument hammers that this non-medically accepted standard renders all but the most severely ID eligible for the Death Penalty in Texas, rendering the substantive promise that all ID are ineligible for the Death Penalty meaningless.

Texas's Brief rebuts this argument as follows:
The CCA also correctly noted that Texas’s requirement that adaptive deficits be 'related' to intellectual impairments 'is consistent with the APA’s current position on this issue.' Thus, although the AAIDD 11th definition omits that requirement, the CCA chose to retain it. After noting those definitional consistencies, the CCA relied on both the AAIDD 11th and the DSM-5 to explain specific clinical concepts relating to its analysis of petitioner’s evidence. Having thus 'consider[ed]' various clinical definitions of intellectual disability and “consult[ed]” them where it deemed appropriate, the CCA complied with Hall. The CCA’s informed decision not to go further and adopt either the AAIDD 11th or DSM-5 wholesale as Texas’s legal standard presents no error. (citations omitted).
The State also mined the evidentiary record to make what amounts to a legal sufficiency argument - that the evidence adduced at Moore's evidentiary hearing established Moore did NOT meet even the clinical definitions of ID under either the DSM-5 or the AAIDD 11th. Before going into that detailed fact based argument, I will wait for Moore's Reply Brief to see how it addresses this issue. It is noteworthy, however, that the habeas judge that heard the evidence regurgitated by the State in their Merits Brief decided Moore met the clinical definition of ID.

Finally the State addressed what has made the CCA's decision in Briseno media ready for ridicule. The CCA, unfortunately, referenced John Steinbeck's intellectually compromised Lennie Small in the novel Of Mice and Men in Briseno.
In all events, any assessment of the optional Briseno factors—or Texas’s separate three-part test for intellectual disability—should not be tainted by then strained efforts of petitioner and amicus ACLU to link them to Briseno’s fleeting mention of the character 'Lennie' from the novel Of Mice and Men. That lone literary reference has never been part of Texas’s Atkins standard....[The] “Lennie” comment should be understood for what it actually was: an aside. If redacted, the meaning of the paragraph would be unchanged—the CCA did not want to adopt an Atkins standard without consulting guidance from the Legislature. The remark has nothing to do with the pre-existing definitions of intellectual disability that the CCA endorsed, nor does it inform the optional Briseno evidentiary factors that the court described later in the opinion. (citations omitted).
As strong as I feel about the idiocy of the Briseno factors, the State of Texas is correct here. Although it probably was a bad idea to reference the fictional character, the reference was, in fact, an aside in Briseno. The APA and the AAIDD's amici briefs wisely stay away from the reference, hewing instead to the problems in the science. The same cannot be said of the ACLU's amicus brief. The Briseno factors (which have never been treated as "optional" by trial or appellate courts) are scientifically flawed. Attempting to leverage this unfortunate literary reference only diminishes the intellectual integrity of exposing those flaws.

Tuesday, September 6, 2016

What Bo Knows

There has been much discussion, posting and commenting on Florida State University football player Travis Rudolph's gesture last week of sitting at an empty middle school lunch table with an autistic boy named Bo Paske. It is a great story, mainly because of what Bo's mother, Leah, wrote about it in a Facebook post:
Several times lately I have tried to remember my time in middle school, did I like all my teachers, do I even remember them? Did I have many friends? Did I sit with anyone at lunch? Just how mean were kids really? [I] do remember middle school being scary, and hard. Now that I have a child starting middle school, I have feelings of anxiety for him, and they can be overwhelming if I let them. Sometimes I'm grateful for his autism. That may sound like a terrible thing to say, but in some ways I think, I hope, it shields him. He doesn't seem to notice when people stare at him when he flaps his hands. He doesn't seem to notice that he doesn't get invited to birthday parties anymore. And he doesn't seem to mind if he eats lunch alone. It's one of my daily questions for him. Was there a time today you felt sad? Who did you eat lunch with today? Sometimes the answer is a classmate, but most days it's nobody. Those are the days I feel sad for him, but he doesn't seem to mind. He is a super sweet child, who always has a smile and hug for everyone he meets. A friend of mine sent this beautiful picture to me today and when I saw it with the caption 'Travis Rudolph is eating lunch with your son' I replied 'who is that?' He said 'FSU football player', then I had tears streaming down my face. Travis Rudolph, a wide receiver at Florida State, and several other FSU players visited my sons school today. I'm not sure what exactly made this incredibly kind man share a lunch table with my son, but I'm happy to say that it will not soon be forgotten. This is one day I didn't have to worry if my sweet boy ate lunch alone, because he sat across from someone who is a hero in many eyes. Travis Rudolph thank you so much, you made this momma exceedingly happy, and have made us fans for life! 
As the father of a non-verbal autistic son in middle school, there is much about Leah Paske's Facebook post that is familiar to me. Travis Rudolph's gesture is laudable, but what struck me while reading the story was why Bo was left so alone that Rudolph felt compelled to sit with him in the first place. Bo has been described as a high functioning but that means really nothing without context. Bo's mother refers in her post to hand flapping, a autistic characteristic Bo shares with my son.

My son has been fortunate. He has had the benefit of wonderful special education teachers and assistants for many years. The school district has a program pairing special needs children with "typical" students. This benefits both the special needs student and the mainstreamed student who become their "buddy." My son has never had to eat alone, and is in the hallways constantly interacting with students of every kind. Thank you, College Station ISD.

To my surprise, I have learned not all districts do things this way - which may explain why Bo was alone. A special education teacher who I respect greatly took a position at a nearby school district middle school this year. This teacher found out before classes started that special needs students last year seldom left their classroom. This teacher told me they have to coax the special needs children out of the classroom. The reason? They feel different - even more so than most middle school students for whom this awkward time of life is already a challenge.

What a shame. It does not, and should not be this way.

Bo knows.

Saturday, August 20, 2016

Party Liability Problem in Death Penalty Escapes Review

The execution of Jeff Wood next Wednesday, August 24, 2016, has been stopped. The Texas Court of Criminal Appeals (CCA) in a non-published order, granted an application for habeas relief and remanded the case back to the trial court for an evidentiary hearing on issues of junk science and false testimony. The CCA's non-published order, however, did not send the case back to the trial court on the issue media, celebrities and even a conservative Texas legislator have focused on as the reason to not execute Wood: He did not actually kill the victim.

Judge Elsa Alcala cut to the chase of this important issue in her published concurring opinion. Before I get to Judge Alcala's opinion, some knowledge of the law surrounding the death penalty and non-triggermen is required. According to the Supreme Court of the United States (SCOTUS), a defendant is eligible for the death penalty even if they themselves did not kill. Instead the inquiry is whether there is evidence of a sufficient level of culpability in the killing, even if carried out by another.

Defining "sufficient level of culpability" has always been the legal bother.

Two cases from SCOTUS attempt to define this area. First, Edmund v. Florida, which seemed to limit the death penalty to those who it was proved had intent to kill. This bright line seemed to be the standard until SCOTUS decided Tison v. Arizona, which held the death penalty does not violate the 8th Amendment, even if the defendant lacked specific intent to kill, so long as it was proved the defendant acted with reckless indifference to human life and was substantially involved in a violent felony under circumstances likely to result in the loss of innocent human life.

One problems with this Tison standard? In application it has the legal consistency of jello - it can mean almost anything. In death decisions, inconsistency means arbitrary and capricious results.

But I digress.

Judge Alcala's concurring opinion accepts Tison, but raises the question of whether Texas' capital scheme is nevertheless inconsistent with it. The death penalty necessarily requires as a pre-condition conviction of a capital offense. The problem (as Judge Alcala has noted in prior opinions) is there are a literally hundreds of ways a Defendant can be convicted of Capital Murder in Texas - supposedly reserved for the worst of the worst. Many of these ways include conviction under the Texas criminal law of parties. A conviction under the law of parties requires less than necessary to be death penalty eligible under Tison. To convict in Texas, it is only required that the non-killing defendant should have anticipated death would have resulted from a conspiracy to commit the underlying crime which their confederate's separate act of murder aggravates to Capital Murder.

As I have previously blogged, the criminal party liability theory necessary for conviction for Capital Murder (or any other penal offense) does not even have to be unanimous.

This was an issue in Wood's habeas application (minus the unanimity issue) yet will not be remanded for consideration under the unpublished per curium decision. Judge Alcala thought it should, hence her published concurring opinion to grant habeas relief for Wood. She wanted it known that there are systemic problems in the criminal law of parties as it applies to the Texas Capital Punishment scheme:
The guilt-innocence jury instructions permitted the jury to convict [Wood] of capital murder...if he acted with the intent to commit robbery and another person was killed as a result of that robbery under circumstances that showed that applicant should have anticipated that a death would result, even if he had no intent for a death to occur. The jury, therefore, may well have convicted of capital murder even if it believed that his sole intent was to rob the victim and that he should have anticipated, not that he actually did anticipate, the death of the victim by his co-defendant. Because the guilt-phase instructions permitted him to be found guilty of capital murder for a death that he may not have actually anticipated, applicant is correct that these instructions would have failed to comply with the requirement of Tison that the defendant exhibit at least reckless indifference to human life, coupled with major participation in a felony offense. (citation omitted) (emphasis added).
So Jeff Wood's execution is off, and with it the issue of when, if ever, an individual who participated but did not kill should be death penalty eligible has receded back into the shadows. The issue will rise again, like a Phoenix, the next time arises a party head is on the block.

Oh, by the way, Presiding Judge Keller and Judge Meyers dissented from the granting of Wood's Application. No opinion on either dissent.

The next date with the Texas execution chamber belongs to Renaldo Ruiz on Wednesday, August 31, 2016.

Saturday, August 13, 2016

Stats on Marijuana: Same Song, Different Verse

As I wrote yesterday, a Grits for Breakfast post alerted me to the new Office of Court Administration (OCA) judicial case statistics. As I practice primarily in Brazos County, I was (and have been) curious to tease out data rather than rely on anecdotal evidence. The OCA statistics allow for an apples to apples comparisons from counties based not only on population, but also demographics.

The statistics below reflect OCA data on new misdemeanor filings for the 2015 CALENDAR year (CY) for counties with comparable populations to Brazos County. I have taken, ranked by population, Texas counties beginning with number 18 (Lubbock County) through number 23 (Hays County). If you check the misdemeanor filings I used yesterday for FISCAL year 2015 the total filing numbers are higher. I do not have a ready explanation, but used numbers based on the OCA database HERE for purposes of accumulating this table.

One note on the numbers. The population totals DO use the FY population totals. I use them here because these totals are more current, and do not impact the percentages related to the filings within the counties surveyed.

The numbers below reflect for CY 2015, the total number of new misdemeanor filings in the county, of that number how many of the filings were Possession of Marijuana (both Class A and B filings), what the percentage of the total filings were then POM related, and the same number and percentage of total for DWI (first only) filings. For additional context I took statewide totals as well.

Here are the results. Comments after the jump.

County        Population       CY 2015       POM  % of Total          DWI   % of Total          

Lubbock      293,974             4037               587          15%                   659         11%                        

Webb          266,673               2241               239          11%                  247         11%                                                

Jefferson     252,235               4022               551         14%                  476        12%                                                      

McLennan  243,441                4168              575         14%                  544         13%                                                      

Smith          218,842               3227              471           15%                 457        14%                                                

Brazos        209,152                3878              800           21%                525        14%  

Hays           185,025               3880               616           16%                 573       15%

Statewide    27M                  419,0001        60,875        15%               57,583     14%

Brazos County is filing Possession of Marijuana cases at a rate more than 6 percentage points higher than the statewide average, and more than 5 percentage points higher than the closest comparable county by population - Hays County. Several of these counties are demographically similar to Brazos County. Lubbock, McLennan (Waco), Hays (San Marcos) also are the homes of large university populations. This discrepancy in POM filings is more noticeable given Brazos County's DWI filings are identical to the DWI filing percentage statewide and in line with the compared counties.

Putting it another way, Lubbock County, home to Texas Tech University, has around 85,000 more in population than Brazos County, yet filed 223 fewer POM cases, while still managing to file 159 more total misdemeanor cases.

I use POM cases because of all the misdemeanor crimes currently on the books, this is the category of offense most likely to be decriminalized in the near future. Most counties have either relaxed enforcement or utilized pre-trial diversion programs that reduce their POM filings. This makes fiscal sense for the counties with these programs, while at the same time allowing arrestees with small, personal use amounts to avoid an unnecessary criminal prosecution that could effect them for years.

It would interesting to find out how more, if any, bonds for POM cases are for these counties. In Brazos County someone arrested on a Class B POM (less than 2 oz.) can expect to post a bond of $2000-$3000. I have a feeling that figure is substantially smaller in other counties, but do not have the data to back that up - yet.                                                  

Friday, August 12, 2016

New FY 2015 Texas OCA Statistics - Interesting

Grits for Breakfast alerted me to the new Office of Court Administration (OCA) judicial case statistics for fiscal year 2015. I dug out some of the statistics and did some additional computing based on the numbers provided by the OCA. I concentrated on new misdemeanor filings for the year for counties with comparable populations to Brazos County. Below are ranked, by population, Texas counties beginning with number 18 (Lubbock County) through number 23 (Hays County).

The last column is the one I computed based on the numbers given by the OCA. It breaks the numbers down to make a comparison between these mid-sized counties based on how many FY 2015 new filings there were per 100,000 residents. In other words, I wanted to compare formal charging decisions from the mid sized counties in a way that took into account population differences.

The results are below. A few comments after the jump.

County        Population        New Misd filings FY 2015         Filings Per 100,000 in Population

Lubbock      293,974               4,896                                            1,665/100K (7)

Webb          266,673                3,236                                            1,213/100K  (6)

Jefferson     252,235                4,974                                            1,972/100K (4)

McLennan  243,441                5,353                                             2,199/100K (1)

Smith          218,842                4,010                                            1,832/100K  (5)

Brazos        209,152                4,442                                             2,124/100K (2)

Hays           185,025                3,758                                             2,031/100K (3)

Conclusion? McLennan County (Waco) filed more misdemeanor cases per 100,000 residents (almost 2,200 per 100,000 in population) than any of the 7 mid sized counties in Texas. Brazos County (Bryan) was a close 2nd with 2,100 per 100,000 in population. Brazos County includes Texas A&M University, Lubbock, Texas Tech, Hays (San Marcos), Texas State, and McLennan, Baylor.

It is worth noting Lubbock County is 7th in the per capita calculation, while McLennan, Brazos, and Hays Counties are 1st, 2nd and 3rd in misdemeanor filings per 100,000 in population. The results are interesting, yet the reasons for the numbers are a little harder to come by.

I have other statistical breakdowns coming in a post in the near future concerning the specific case categories in which new filings occurred in misdemeanor cases in 2015. I will attempt to again compare these misdemeanor charging decisions between these same counties.