prison_cover

<div class="at-above-post-homepage addthis_tool" data-url="https://blog.lareviewofbooks.org/essays/will-los-angeles-county-become-part-national-movement-elect-progressive-reformers-district-attorney/"></div>Having opposed the death penalty all my adult life, represented a California death row inmate in his federal habeas corpus proceeding, worked on the clemency team for Stanley Tookie Williams, and served on the board of directors of Death Penalty Focus for over 25 years, I jumped at the chance to play a role in the emerging national movement to elect progressive district attorneys who seek to reform the criminal justice system in general and, in some cases, oppose the death penalty.
Larry Kramer, an avowed reformer, was elected in 2017 as the DA of Philadelphia County. In 2018, progressive Rachael Rollins was elected the DA in Suffolk County, Massachusetts, which includes Boston. In 2019, Wesley Bell, a reformist prosecutor, was elected in St. Louis County, the first black prosecutor in that county&#8217;s history. Joe Gonzales, the Bexar County, Texas, criminal district attorney, calls himself a believer in restorative justice.
A few months ago I was invited to join reformer George Gascon&#8217;s policy team on the issue of capital punishment. I was thrilled to have the opportunity to take my previous legal work and advocacy to another level in hopes of having a direct impact in actually reducing the number of executions in America. Gascon is running against incumbent Los Angeles County District Attorney Jackie Lacey. They will face off in the November election. By helping to research and draft his policy and inspired by his own clear vision, I was excited to put my knowledge and experience in service of a candidate who outspokenly opposes the death penalty. I did so in my personal capacity as an individual and not on behalf of Death Penalty Focus which is not allowed by law to endorse or oppose candidates for elected office, and has not done so in the LA DA race.
Lacey supports the death penalty. Since her election in 2012, Los Angeles County has sentenced more new inmates to death than the states of Tennessee, Georgia, Virginia, Mississippi, and Louisiana combined. Lacey’s office has secured death sentences against 23 defendants, 22 of whom are people of color (13 Latinx defendants, eight black defendants, and one Asian defendant). Only one defendant is white. Of those sentenced, over a third were represented by legal counsel who had prior or subsequent serious ethical or misconduct charges. One had a lawyer who presented no opening statement, put on no defense whatsoever during the guilt phase, and repeatedly fell asleep during the trial. Another had no lawyer at all, and represented himself.
In February, Gascon issued a <a href="https://www.georgegascon.org/campaign-news/george-gascons-plan-to-end-the-death-penalty-and-resentence-those-condemned-to-death/">comprehensive public statement</a> detailing the reasons he opposes capital punishment. &#8220;I do not support the use of the death penalty on moral and practical grounds,&#8221; he stated. As District Attorney of San Francisco his office did not seek the death penalty in any case. He campaigned against the death penalty when CA Proposition 34 was introduced in 2012, and again in 2016 when Proposition 62 was on the ballot. Gascon admits that he was not always an opponent of the death penalty, &#8220;but after decades in law enforcement,&#8221; his statement explained, &#8220;I have come to realize that the death penalty does not make us safer as a community. Instead, it drains limited public safety resources that could be better used on programs that actually improve the quality of life and safety for all of our communities.&#8221;
Gascon&#8217;s statement recounted what opponents of the death penalty have been saying for years. &#8220;Since the Briggs Initiative reinstated the death penalty in California in 1978, taxpayers have spent approximately $4 billion on a death penalty system that has resulted in just 13 executions. Yet, study after study shows us that the death penalty fails to deliver on its promise of improving public safety. In fact, when surveyed, two-thirds of police chiefs said they did not believe the death penalty significantly reduces homicides and a 2009 survey of professional criminologists found that 88% rejected the notion that the death penalty acts as a deterrent to murder.&#8221;
The statement noted that in 2019, two justices of the California Supreme Court described the death penalty as “an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.” This conclusion echoes the findings of the nonpartisan blue-ribbon California Commission on the Fair Administration of Justice, which identified a host of flaws in the system rendering it a dysfunctional disaster.
People of color comprise 58 percent of death row prisoners in the United States; in California, the figure is 66 percent. A 2005 study published in the Santa Clara Law Review, the statement pointed out, found that those who kill white victims are three times more likely to be sentenced to die as those who kill African-Americans, and four times more likely to be sentenced to die as those who kill Latinos. This same study found that a person convicted of a crime is three times more likely to be sentenced to die if the crime was committed in a predominantly white, rural community rather than a diverse, urban area.
Executing innocent people is another serious risk of maintaining with the death penalty. Gascon’s statement points out that “since 1973, at least 167 persons facing execution have been exonerated with evidence of their innocence, including five in California. Some of these condemned men and women were exonerated within mere days or even hours of their scheduled executions.” Vicente Benavides, who was released from death row in California in 2018, served 25 years on death row for a crime he didn’t commit.&#8221;   Other notable investigations have also provided substantial evidence that innocent people have been executed. These include Cameron Willingham, who was executed in Texas in 2004 despite the existence of new evidence showing that the fire that caused the tragic death of his three daughters was actually an accident, not arson.
These great flaws in the death penalty are already known to the voting public. A majority of voters in Los Angeles County supported ballot measures in 2012 and 2016 to repeal the state’s death penalty. A March 2019 Public Policy Institute of California poll found that 62 percent of Los Angeles County voters prefer life in prison over the death penalty. I am proud to be associated with a candidate who opposes using the death penalty under any circumstance. If elected, his statement declares, he &#8220;will not seek an execution date for any person already on death row&#8221; and he &#8220;will also embark upon a thorough review of every existing death penalty case from Los Angeles County&#8230; to get as many of the 229 people currently on death row from Los Angeles County resentenced to a sentence other than death.&#8221;
Every voter in Los Angeles County will decide for themselves whom to support for District Attorney. In the upcoming campaign, the issue at the heart of Death Penalty Focus&#8217; work will receive significant attention. Whether Jackie Lacey or George Gascon wins, the prominence of the death penalty in an election drawing national attention will advance the cause of abolition. In my experience as an advocate and activist — and as opinion surveys continue to show — the more the public learns about the fatal flaws in what has been called the &#8220;machinery of death,&#8221; the more the opposition to this barbaric form of punishment grows.
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Will Los Angeles County Become Part of a National Movement to Elect Progressive Reformers for District Attorney?

mueller

<div class="at-above-post-homepage addthis_tool" data-url="https://blog.lareviewofbooks.org/essays/witness-prosecution/"></div>Robert Mueller may not have exhibited the eloquence of a Daniel Webster, an Atticus Finch, or a Bryan Stevenson during his July 24, 2019 testimony before the House Judiciary and Intelligence Committees, but he had already done his job and now Congress and the American people need to do theirs.
Mueller had warned everyone in advance that his comprehensive 448-page report —  damning Donald Trump with extensive and credible evidence of treachery and over ten separate acts of obstruction of justice — was “my testimony.” We should have taken him at his word. In April, in <a href="https://lareviewofbooks.org/article/the-mueller-report-oh-my-god-this-is-terrible-this-is-the-end-of-my-presidency-im-fucked/">a review for the Los Angeles Review of Books</a>, I called the Mueller report “one of the most important documents in the history of the US presidency.”
Proponents of impeachment were hoping Mueller would testify that by obstructing justice in such a deliberate and systematic manner, Trump is guilty of “high crimes and misdemeanors.” Others anticipated Mueller would disappoint Trump’s adversaries by deflecting most questions with some version of “my report speaks for itself.”
In fact, for anyone who was actually paying attention, in addition to reaffirming his report, Mueller made several significant statements which emphasized the gravity of his devastating findings of Trump’s disloyalty and wrongdoing.
Right off the bat, in response to a very effective line of questioning by Jerry Nadler, Chair of the Judiciary Committee, in rapid succession Mueller testified that: the report did not conclude that Trump did not commit obstruction of justice; did not “totally exonerate the President;” documented “multiple acts by the president that were capable of exerting undue influence over law enforcement investigations, including the Russia interference and obstruction investigations;” established incidents “in which the president sought to use his official power outside of usual channels” to exert undue influence over the investigations; and, in his own words, that the report indicates “that the president was not exculpated for the acts that he allegedly committed.”
This testimony alone, under oath and backed by a 448-page summary of a mountain of evidence, establishes ample grounds to open an impeachment inquiry.
Then at the outset of the House Intelligence Committee hearing, Chair Adam Schiff deftly drew out Mueller’s testimony that the Trump campaign “welcomed” Russia’s help; that when approached about “dirt” on Hillary Clinton, Donald Trump Jr. said he would “love it;” that Trump himself called on the Russians to hack Hillary’s emails; that Trump praised the release of Russian-hacked emails through WikiLeaks; that Trump was trying to make millions from a real estate deal in Moscow; that numerous Trump associates lied to investigators, the grand jury, and to Congress; and that Trump officials built their messaging strategy around stolen documents and lied to cover it up.
Again, extraordinary evidence of presidential wrongdoing, sufficient to open impeachment proceedings.
And at the end of six hours of testimony, and under questioning by Schiff, Mueller agreed that Trump knowingly accepting assistance from a foreign government in an election campaign is “unethical” (and Mueller added “a crime”); that to the degree such conduct undermines our democracy and our institutions, it is “unpatriotic” and “wrong;” that we “absolutely” (Mueller’s word) should hold our elected officials to a higher standard than mere evidence of criminality; and when people act unethically it exposes them to compromise particularly in dealing with foreign powers which can extort and blackmail them.
All of this, in public, on the record, and under oath, from a law enforcement official with an unblemished reputation about a sitting president of the United States. Of course, Congress has a duty to pursue impeachment.
¤
Based on his impressive report, Robert Mueller’s testimony on July 24 could have been stronger. Under oath, and as a man of principle, Mueller was obligated to respond to specific questions about impeachment if the questions had been scrupulously tied to statements he himself made in his own report.
Consequently, Mueller could have been asked:
&nbsp;
<ol>
<li>In Volume II of your report at page 178, you make specific reference to impeachment. You begin by stating that based on your analysis, “we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers.” In footnote 1091 to that statement you specifically identify the “possible remedy of impeachment for abuses of power,” which you contrast with “potential criminal liability after a President leaves office.”</li>
</ol>
What did you mean by “abuses of power”?
&nbsp;
<ol start="2">
<li>Volume II sets forth in detail the evidence you gathered regarding obstruction of justice, divided into 10 different sections, several with numerous subparts.</li>
</ol>
Based on your own definition of “abuses of power,” does the evidence you gathered constitute “abuses of power”?
&nbsp;
<ol start="3">
<li>You also state in footnote 1091 that under the Constitution “criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment.”</li>
</ol>
Is it correct that a President can be impeached for conduct which would not necessarily constitute a crime under our criminal law?
&nbsp;
<ol start="4">
<li>Consequently, assuming a President cannot be criminallyindicted for obstruction of justice under the current policy of the Office of Legal Counsel, could that official be impeached and removed from office for those same acts of obstruction of justice?</li>
</ol>
&nbsp;
<ol start="5">
<li>In footnote 1091, you characterize impeachment as “a drastic and rarely used remedy.” In making that statement, is it fair to assume you were not in any way attempting to dissuade Congress from pursuing impeachment if after careful review of the evidence a majority of the House concludes that President Trump engaged in one or more acts of obstruction of justice which amounted to impeachable offenses?</li>
</ol>
&nbsp;
<ol start="6">
<li>Volume II of your Report states that several reasons “prevented us from conclusively determining that no criminal conduct occurred.” Consequently, you were unable to “conclude that the President committed a crime,” but the Report “also does not exonerate him.”</li>
</ol>
Is it fair to say that under the different standards which apply to impeachment vs. a criminal prosecution, Congress, as an independent branch of government, could view the very same evidence you gathered and conclude that the President’s acts of obstruction of justice did in fact constitute impeachable offenses?
&nbsp;
<ol start="7">
<li>In the Introduction to Volume II you set forth considerations which guided your obstruction of justice investigation. At the end of the third consideration, you observe that one of the reasons you “conducted a thorough factual investigation” was “to preserve the evidence when memories were fresh and documentary materials were available.”</li>
</ol>
Would you agree, that under the Constitution, one purpose for which the evidence you carefully preserved could be used is in an impeachment proceeding regarding President Trump?
&nbsp;
Answers to these questions would have been icing on the cake. The very asking of such questions would have drawn attention to how the Mueller report is a blueprint for impeachment.
Mueller is now entitled to take a well-deserved vacation.  The rest of us need to get to work.
&nbsp;
Stephen Rohde is author of American Words of Freedom and Freedom of Assembly and is a frequent contributor to the Los Angeles Review of Books and The American Prospect. 
&nbsp;
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Witness for The Prosecution

Worse Than Nothing: The Dangerous Fallacy of Originalism

Stephen Rohde is a writer, lecturer, and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law. He is a past chair of the ACLU Foundation of Southern California and past National Chair of Bend the Arc, a Jewish Partnership for Justice. He is a founder and current chair of Interfaith Communities United for Justice and Peace, member of the Board of Directors of Death Penalty Focus, and a member of the Black Jewish Justice Alliance. Rohde is the author of American Words of Freedom&nbsp;and&nbsp;Freedom of Assembly (part of the American Rights series), and numerous articles and book reviews on civil liberties and constitutional history for Los Angeles Review of&nbsp;Books,&nbsp;American Prospect,&nbsp;Los&nbsp;Angeles&nbsp;Times, Ms. Magazine, Los Angeles Lawyer, Truth Out, LA Progressive, Variety, and&nbsp;other&nbsp;publications. He&nbsp;is also&nbsp;co-author of&nbsp;Foundations of Freedom, published by the Constitutional Rights Foundation. Rohde received Bend the Arc’s “Pursuit of Justice” Award, and his work has been recognized by the ACLU and American Bar Association. Rohde received his BA degree in political science from Northwestern University and his JD degree from Columbia Law School.&nbsp;

Stephen Rohde

An Obituary for Originalism: On Erwin Chemerinsky’s “Worse Than Nothing”

“The only stable state is the one in which all men are equal before the law.” — Aristotle

"You can't ignore politics, no matter how much you'd like to." — Molly Ivins

Politics

"Hegel was right when he said that we learn from history that man can never learn anything from history." — George Bernard Shaw

History

The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma

What Makes Censors Tick?

Free Speech: A History from Socrates to Social Media

The Endless Struggle Between Censorship and Free Speech

The Rise and Fall of Morris Ernst, Free Speech Renegade

Liberal Icon or Right-Wing Renegade?

How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart

Making Sure Our Rights Stay Right

Facebook Bans Donald J. Trump for Two Years: The Anatomy of an Unprecedented Social Media Decision

Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical

Hamilton, Hip-Hop, and the Law

Gavan Titley is senior lecturer in Media Studies at Maynooth University.

Gavan Titley

Letter to the Editor: Gavan Titley Responds to Stephen Rohde

Is Free Speech Racist?

Confessions of a Free Speech Lawyer

Dare to Speak

Free Speech and the Question of Race

After Trump

Grab Your Shovels as the Elephant Leaves the Tent

The Prosecution of Julian Assange and the Threat to Freedom of the Press and Human Rights

Defender in Chief

John Yoo Tortures History and Law to Defend Donald Trump

Stephen Rohde is a writer, lecturer, and political activist. For almost 50 years, he practiced civil rights, civil liberties, and intellectual property law. He is a past chair of the ACLU Foundation of Southern California and past National Chair of Bend the Arc, a Jewish Partnership for Justice. He is a founder and current chair of Interfaith Communities United for Justice and Peace, member of the Board of Directors of Death Penalty Focus, and a member of the Black Jewish Justice Alliance. Rohde is the author of American Words of Freedom&nbsp;and&nbsp;Freedom of Assembly (part of the American Rights series), and numerous articles and book reviews on civil liberties and constitutional history for Los Angeles Review of&nbsp;Books,&nbsp;American Prospect,&nbsp;Los&nbsp;Angeles&nbsp;Times, Ms. Magazine, Los Angeles Lawyer, Truth Out, LA Progressive, Variety, and&nbsp;other&nbsp;publications. He&nbsp;is also&nbsp;co-author of&nbsp;Foundations of Freedom, published by the Constitutional Rights Foundation. Rohde received Bend the Arc’s “Pursuit of Justice” Award, and his work has been recognized by the ACLU and American Bar Association. Rohde received his BA degree in political science from Northwestern University and his JD degree from Columbia Law School.&nbsp;