warinner (![[info]](http://l-stat.livejournal.com/img/userinfo.gif){kind=small} warinner) wrote,@ 2008-05-16 08:58:00 |
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Clive Stafford Smith and the power of governments
I went to see Clive Stafford Smith speak last night. Once a anti-death penalty lawyer and campaigner, founder of Reprieve, over the last few years he has taken on the issues of torture, Guantanamo Bay, extraordinary rendition, secret prisons and the detainees of the War on Terror.
Smith is a gadfly, in both the best sense and worst sense of the word. He is glib and entertaining and practiced in his arguments but I was disappointed at points, especially he spoke on the death penalty in the US.
He took the usual European cheap shot of pretending the US has some homogeneous judicial system instead of a patchwork of local, state and federal law. This is a familiar conceit of Europeans and has the added bonus of making Americans look benighted and backwards. If I condemned the European Court of Justice for a miscarriage of justice in Greece, Europeans can still fall back on their nationalities ("it is regrettable, but that is not how we do things in Britain|Germany|France...") or plead the weakness EU and its lack of a constitution but they would not acknowledge an analogous situation exists in the US.
As an American (as Smith is as well), I am not going to defend the justice system of Texas or Mississippi while holding up Massachusetts as an example of enlightened judicial practice without acknowledging the varying quality of state legal systems.
I had a brief discussion on the death penalty in the US with Smith afterwards. His take on abolishing the death penalty in the US is that the Supremes can (and should) do it with a stroke of their collective pens.
The obvious counterargument to this solution is that is exactly what the Supremes did in the 70s and it didn't stick. He acknowledged that the death penalty has a certain level of political support but he countered that the US judiciary and specifically the Supremes should just override the political sentiment and ban the death penalty. This is where Smith shows the limitations of his understanding of American politics.
This week John McCain gave a major speech on his judicial philosophy to pass the usual Republican litmus test. McCain toed the line and vowed to appoint "strict constructionists" to the federal bench.
The "strict constructionist" code covers a wide variety of pet Republican causes from abortion to affirmative action to privacy. It shows the Republicans still think that it is a live political issue in spite of the fact that Republican Presidents since Reagan have been making that promise and have appointed a majority of the sitting Supreme Court and federal judges. The Republicans stuck the soft-on-crime, activist-judge-appointing labels on the Democrats and have been profiting from them ever since.
By my lights abolishing the death penalty by judicial fiat is not the way to go. Judicial intervention won't necessarily last and it still takes a major political commitment by one party to push it through.
So any way you cut it, with elected prosecutors and judges, the death penalty is always a political issue in the US. Why not bite the bullet and put the emphasis on the electoral arena rather than the courtroom when fighting the death penalty?
I oppose the death penalty but the arguments for the abolishing it are aren't political gold.
The death penalty is immoral. I buy into this one but that doesn't mean there are not plenty of Old Testament fundamentalists out there who are for killing them all and letting God sort them out. It pushes the debate into the sphere of religion and morals (at least as far as Americans will allow that morality can exist outside of religion, which is not far at all) and makes it contest of piety. It is hard to build a political consensus on that ground.
The death penalty is inhumane. Hanging, firing squad, lethal injection, gassing and electrocution are all barbaric, but this argument falls down when you find a painless, practical and effective means of execution.
Michael Portillo went looking for exactly this and found it: hypoxia. It is practical; it just takes a tank of carbon dioxide and a mask. It is painless; the victims experience euphoria before death. And it is 100% lethal. So if states were to about this method of execution, it would close off the "cruel and unusual" avenue of legal argument.
The state cannot redress any mistake in the judicial process after the death penalty has been applied. For me this is the most persuasive argument against the death penalty. It feels the most democratic: the state bears a responsibility to its citizens to administer justice. But it is a rational argument without a lot of emotive punch.
The death penalty is unfairly administered and falls exclusively on the poor and minorities. Persuasive to me but the problem with this argument is it an argument for judicial reform and not necessarily against the death penalty. It is easily possible to see the death penalty being applied in a more perfect judicial system.
The death penalty distorts the judicial system into pursuing the maximum penalty in all cases. Again this is a persuasive argument for me but it is another argument for judicial reform and it is just isn't political dynamite.
Smith advocated making Europe (I suppose 'Europe' in the sense of the 'European Union' to be specific) the champion of human rights and rule of law as opposed to the way the US has so conspicuously failed to live up to those ideals. It is a noble aspiration but it is doomed to the same kinds of failures and inconsistencies that the US commits in the tug of war between states and the federal government.
Smith seems to look at the EU with the kind of hopes many Europeans had for it in the 90's. Does he really believe that the European Court of Justice will have the same kind of clout the Supreme Court has? Does he really believe that there is such a consensus of European opinion. The Europeans are having an even more difficult time than Americans did in writing a constitution and ultimately will end up with a confederation what will have far more latitude for hypocrisy and inconsistency than exists in the US.
On the legal ramifications of the War on Terror, Smith can't be gainsayed, however much my knee might have wanted to jerk. Once again I was angered by the ticking time bombs (political, legal, foreign policy) Bush has bequeathed his successor. If he wasn't such a screwup and we didn't have that pesky 22nd amendment, it would almost be worth keeping him in office so he would have to deal with the messes he created.
He threw out a number of intriguing factoids that I am going to look into:
I went to see Clive Stafford Smith speak last night. Once a anti-death penalty lawyer and campaigner, founder of Reprieve, over the last few years he has taken on the issues of torture, Guantanamo Bay, extraordinary rendition, secret prisons and the detainees of the War on Terror.
Smith is a gadfly, in both the best sense and worst sense of the word. He is glib and entertaining and practiced in his arguments but I was disappointed at points, especially he spoke on the death penalty in the US.
He took the usual European cheap shot of pretending the US has some homogeneous judicial system instead of a patchwork of local, state and federal law. This is a familiar conceit of Europeans and has the added bonus of making Americans look benighted and backwards. If I condemned the European Court of Justice for a miscarriage of justice in Greece, Europeans can still fall back on their nationalities ("it is regrettable, but that is not how we do things in Britain|Germany|France...") or plead the weakness EU and its lack of a constitution but they would not acknowledge an analogous situation exists in the US.
As an American (as Smith is as well), I am not going to defend the justice system of Texas or Mississippi while holding up Massachusetts as an example of enlightened judicial practice without acknowledging the varying quality of state legal systems.
I had a brief discussion on the death penalty in the US with Smith afterwards. His take on abolishing the death penalty in the US is that the Supremes can (and should) do it with a stroke of their collective pens.
The obvious counterargument to this solution is that is exactly what the Supremes did in the 70s and it didn't stick. He acknowledged that the death penalty has a certain level of political support but he countered that the US judiciary and specifically the Supremes should just override the political sentiment and ban the death penalty. This is where Smith shows the limitations of his understanding of American politics.
This week John McCain gave a major speech on his judicial philosophy to pass the usual Republican litmus test. McCain toed the line and vowed to appoint "strict constructionists" to the federal bench.
The "strict constructionist" code covers a wide variety of pet Republican causes from abortion to affirmative action to privacy. It shows the Republicans still think that it is a live political issue in spite of the fact that Republican Presidents since Reagan have been making that promise and have appointed a majority of the sitting Supreme Court and federal judges. The Republicans stuck the soft-on-crime, activist-judge-appointing labels on the Democrats and have been profiting from them ever since.
By my lights abolishing the death penalty by judicial fiat is not the way to go. Judicial intervention won't necessarily last and it still takes a major political commitment by one party to push it through.
So any way you cut it, with elected prosecutors and judges, the death penalty is always a political issue in the US. Why not bite the bullet and put the emphasis on the electoral arena rather than the courtroom when fighting the death penalty?
I oppose the death penalty but the arguments for the abolishing it are aren't political gold.
The death penalty is immoral. I buy into this one but that doesn't mean there are not plenty of Old Testament fundamentalists out there who are for killing them all and letting God sort them out. It pushes the debate into the sphere of religion and morals (at least as far as Americans will allow that morality can exist outside of religion, which is not far at all) and makes it contest of piety. It is hard to build a political consensus on that ground.
The death penalty is inhumane. Hanging, firing squad, lethal injection, gassing and electrocution are all barbaric, but this argument falls down when you find a painless, practical and effective means of execution.
Michael Portillo went looking for exactly this and found it: hypoxia. It is practical; it just takes a tank of carbon dioxide and a mask. It is painless; the victims experience euphoria before death. And it is 100% lethal. So if states were to about this method of execution, it would close off the "cruel and unusual" avenue of legal argument.
The state cannot redress any mistake in the judicial process after the death penalty has been applied. For me this is the most persuasive argument against the death penalty. It feels the most democratic: the state bears a responsibility to its citizens to administer justice. But it is a rational argument without a lot of emotive punch.
The death penalty is unfairly administered and falls exclusively on the poor and minorities. Persuasive to me but the problem with this argument is it an argument for judicial reform and not necessarily against the death penalty. It is easily possible to see the death penalty being applied in a more perfect judicial system.
The death penalty distorts the judicial system into pursuing the maximum penalty in all cases. Again this is a persuasive argument for me but it is another argument for judicial reform and it is just isn't political dynamite.
Smith advocated making Europe (I suppose 'Europe' in the sense of the 'European Union' to be specific) the champion of human rights and rule of law as opposed to the way the US has so conspicuously failed to live up to those ideals. It is a noble aspiration but it is doomed to the same kinds of failures and inconsistencies that the US commits in the tug of war between states and the federal government.
Smith seems to look at the EU with the kind of hopes many Europeans had for it in the 90's. Does he really believe that the European Court of Justice will have the same kind of clout the Supreme Court has? Does he really believe that there is such a consensus of European opinion. The Europeans are having an even more difficult time than Americans did in writing a constitution and ultimately will end up with a confederation what will have far more latitude for hypocrisy and inconsistency than exists in the US.
On the legal ramifications of the War on Terror, Smith can't be gainsayed, however much my knee might have wanted to jerk. Once again I was angered by the ticking time bombs (political, legal, foreign policy) Bush has bequeathed his successor. If he wasn't such a screwup and we didn't have that pesky 22nd amendment, it would almost be worth keeping him in office so he would have to deal with the messes he created.
He threw out a number of intriguing factoids that I am going to look into:
- The US holds 27,000 foreign detainees in military custody at various sites around the world. I suppose the majority of those are Iraqis detained and held in Iraq but I am curious about the exact breakdowns of who and where.
- With the shutting of the secret prisons in Eastern Europe, the US has been sending to Iraq detainees captured elsewhere.
- The US has outfitted a number of prison ships for holding detainees. Given the US Navy's seakeeping ability, who need to worry about those troublesome territorial entanglements?
