Recently in International Category

Joshua Keating has this post with the above title at Slate. "With India, Japan, and Indonesia rejoining the U.S., the world's largest democracies are death penalty countries and the practice has heavy popular support in all of them."

Should We Follow International Law?

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No.  We should follow the Constitution.  But we can learn from international law, absolutely. We can learn something this very day, as it happens, from the world's largest democracy. Too bad the Supreme Court didn't get it a few years back.

Perhaps evolving standards of respect for women, not to mention respect for the most minimal human decency, will bring about a change of heart.

P.S.  When abolitionists tell us that we should adhere to the opinions of the "international community," what they actually mean is that we should adhere to the opinions of white people in Europe.  The death penalty predominates among "people of color" (as the phrase goes) in the Orient, the Subcontinent, the Middle East, the Caribbean, most of Africa and most of North America. 

Another Clueless Baldwin Rant

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Before you blast someone, especially in public, it's a good idea to make sure you have your facts straight and are aiming at the right target.  The notorious Alec Baldwin is apparently unaware of this.  Nardine Saad reports in the L.A. Times that Baldwin tweeted this on Monday:

"Flying from Nassau, Bahamas 2 NY. TSA 'random selects' my 5 month old daughter 4 a pat down. I am not kidding. #travelinginUSisadisgrace."
The TSA is, of course, a part of the United States Department of Homeland Security.  The TSA does not do the airport screenings in the Bahamas for the obvious (to persons of sense) reason that the Bahamas are not part of the United States.  The esteemed (by many, though I can't fathom why) Mr. Baldwin was apparently unaware that he was in a foreign country being screened by an agency of a foreign government.  So his hashtag says traveling in the United States is a disgrace because of an incident that occurred outside the United States completely out of the control of the U.S. government.

Upon this being pointed out, his "correction" says, "I guess what I'm saying is: Traveling in the US is a pain in the ... ass."  Ms. Saad notes, "Still not the U.S., though, Alec."
Opponents of the death penalty never tire of telling us how other countries have rejected it.  That rejection, though, is usually by a fiat from above, not by the people.  Nowhere is the disconnect between the government position and popular opinion greater than south of our border.  David Agren has this story in USA Today.

Texas' execution of Edgar Tamayo for the murder of a U.S. police officer was heavily criticized by Mexican officials, who say their country rightly banned capital punishment years ago.

But if many people in Mexico had their way, the death penalty would be an option to deal with murderers such as Tamayo, surveys and criminal experts say.

Surveys by polling firms and media outlets in Mexico over the past seven years show that support for the death penalty has increased to a point where a majority would like to see it reinstated. Recent polls found 70%-80% would like to see the death penalty imposed for crimes such as murder and kidnapping, a rate above the majority support for the death penalty in the USA.


Tamayo Execution Proceeds

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Edgar Tamayo was executed in Texas last night for killing Police Officer Guy Gaddis in 1994.  AP story here.  Prior post here.

The U.S. Supreme Court denied petitions for certiorari and stays of execution in two orders, here and here.  No dissent is noted for the first.  Justices Ginsburg, Breyer, and Sotomayor would have granted the stay in the second.  That is the last-minute Atkins claim of supposed mental retardation.  The Fifth Circuit held, correctly IMHO, that the District Court did not need to put up with this strategy of holding a claim until election eve.

Finally, we agree with the district court that Tamayo's claim was not brought within a reasonable time." See, e.g., In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004). The [Supreme] Court's opinion in McQuiggin was issued on May 28, 2013, nearly 8 months ago. Tamayo waited until January 20, 2014, two days before his scheduled execution, to file this motion. The district court did not abuse its discretion in concluding that this was not a "reasonable time" and in denying the motion. [Footnotes omitted.]

Vienna Convention, Once Again

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The State of Texas intends to execute Edgar Arias Tamayo at 6:00 p.m. CST today, which is about five hours from this writing. Tamayo is one of the murderers whose case was included in the International Court of Justice (ICJ) case of Mexico v. United States, more commonly known as the Avena decision.  The issue in these cases has to do with the failure of the police to advise an arrested foreign national of his right to have the consulate notified, as required by the Vienna Convention on Consular Relations.  The AP has this story on the objections of the Mexican government.  Update:  Michael Graczyk has this story for AP on the case, including the Fifth Circuit's rejection of Tamayo's Atkins claim.  Update 2:  Tamayo was executed.  See later post.

As of this time, a certiorari petition is before the Supreme Court as case No. 13-8358, and a stay application has been filed as No. 13A762.  The Supreme Court denied relief in similar circumstances in 2011 in the Leal case, and nothing has changed since.  See this post at that time.

The problem is considerably more complex than is commonly perceived.  In a nutshell, I believe the United States should comply with the decision of the ICJ in the cases actually before it in Avena, which includes Tamayo, and not otherwise.

300 Strikes and Still Not Out?

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The Mirror (London) reports:

Career criminals are avoiding jail despite committing more than 300 offences.

Eight crooks with the shock crime record escaped prison in 2012, figures released under freedom of information have revealed.

Dozens more hardened offenders avoided time behind bars - despite racking up more than 250 offences.

Critics said the revelations exposed Britain's soft-touch justice system for repeat offenders.
The author of the study, Peter Cuthbertson of the Centre for Crime Prevention, said:

"The most prolific offenders are responsible for a growing percentage of all crime, and locking them up would have a massive impact on the crime rate.

"New Zealand recently fought rising crime by letting criminals know that it is 'three strikes and you're out'. In Britain, we don't even have 300 strikes and you're out."

The majority of the country's most prolific criminals avoided prison despite their previous offences often numbering in the triple figures, according to the study.
We learned that lesson the hard way in the United States, but apparently we have now forgotten it and are rushing headlong to repeat the mistakes of the past.  See, e.g., this post.

Hate Crimes

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French prosecutors have charged a visiting 72-year-old American with "inciting hate" for supposedly comparing Croats with Nazis.

The defendant's name is Bob Dylan.  Yes, that Bob Dylan.  Inti Landauro has this story in the WSJ (subscription).

Opinions vary on hate crime laws, even among those of us who generally agree on criminal law matters.  Some think they should be abolished altogether.  Speaking strictly for myself, I think they have a place when a person is targeted for a crime of violence because of his race.  Broadly defined hate crime laws are a different matter.  As the French example shows, they slip too easily into gross violations of freedom of speech, and such laws should be given the heave-ho.

If convicted, BTW, Dylan will probably get off for a fistful of euros.

Opening Argument at Nuremberg

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Sixty-eight years ago today, chief prosecutor Robert H. Jackson (TDY from the Supreme Court) delivered his opening argument at the Nuremberg trials.  John Q. Barrett writes an email list with lots of biographical information about Justice Jackson, although his opinions while on the Supreme Court are curiously absent, even when highly relevant to current controversies.  Today's entry is on the Nuremberg argument.  It will later be archived here, but it's not there as of this writing, so I have taken the liberty of copying it after the break.

Standing Up to Europe

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In 1776, the United States of America declared that our people were going to "assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them."  Our forefathers then fought a long and bloody war to make that declaration a reality.

Among other things, that means we are not going to let Europe tell us whether we can give our worst murderers the punishment they deserve.

Alan Zagier reports for AP:

Missouri will move ahead with two planned executions despite efforts in Europe to block a common anesthetic from being used in the procedure, Gov. Jay Nixon said Monday.

German company Fresenius Kabi produces almost the entire supply of propofol, but the European Union is considering possible export limits as part of its anti-capital punishment policies. Missouri has enough to carry out it next two executions and one more, the first scheduled for later this month, but Nixon declined to say what the state would do if it is unable to get more propofol. The drug made headlines in 2009 when pop star Michael Jackson died of an overdose. The Missouri executions would be the first to use propofol.

Nixon said state and federal court systems, not European politicians, will decide death penalty policy in Missouri.

A Conservative Win Down Under

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The conservatives won Australia's election over the weekend.  The coalition of the Liberal and National Parties ousted the Labor Party.*

Crime was not the central issue, but I was curious what the new government's approach would be.  The coalition's crime policy is here.  The overall tone is a tough-on-crime one.

Another Inadequate Sentence

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Greg Johnson reports for AP:

JOINT BASE LEWIS-MCCHORD, Wash. (AP) -- The U.S. soldier who massacred 16 Afghan civilians last year in one of the worst atrocities of the Iraq and Afghanistan wars was sentenced Friday to life in prison with no chance of parole -- the most severe sentence possible, but one that left surviving victims and relatives of the dead deeply unsatisfied.

"We wanted this murderer to be executed," said Hajji Mohammad Wazir, who lost 11 family members in the attack by Staff Sgt. Robert Bales. "We were brought all the way from Afghanistan to see if justice would be served. Not our way -- justice was served the American way."

One Step Forward and Two Steps Back

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One step forward:  One of the most air-headed federal judges in the history of the Republic is leaving.  So long, Rosemary Barkett.

Two steps back:  She's going to the international court that resolves claims arising from the Iranian seizure of the American embassy, thus giving Iran one more vote; and Barack Obama will name her replacement.


How's That Reset Going?

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Remember when candidate Obama was blasting George's Bush's wahoo, cowboy, blunderbuss handling of foreign relations?  Russia was the prime example. According to Obama, Bush was alternately a sycophant or a bully.  All this was going to change when Mr. Smooth took office.  As Powerline notes:  

Remember the good old days when the Obama administration promised "smart diplomacy?" Hillary Clinton mocked the Bush administration for not cozying up sufficiently to Vladimir Putin's Russia, and presented the Russians with a "reset" button to demonstrate that from now on, things would be better. Right.

Now the administration is feuding with Putin over Edward Snowden. It is a bad sort of feud, because the Russians hold all the cards, in the person of Snowden. Whatever Snowden knows they can easily learn, and at this point there is nothing we can do about it.

I bring this up not to stick my tongue out at Mr. Obama (well, OK, I confess), but because it presents a serious criminal law issue.  Russia is harboring a fugitive from grave charges  --  specifically charges that he stole and published extremely sensitive national security secrets.

My purpose here is not to attempt to try Snowden in a media entry instead of a court.*  My purpose is to wonder just what Obama plans to do to get him to court. A country that commands power and respect would have a chance of doing that, Russian intransigence notwithstanding.  Instead, it seems like it will take us longer to get Snowden into court than it took to litigate the length of Maj. Hasan's beard. Could the reason that justice for Snowden will be so long in coming, if it comes at all, be related to the President's enthusiastic world apology tour?

Ain't nostalgia grand?  The humbly bowed Presidential head seemed like such a good idea before we roused ourselves to the unpleasant if persistent reality that what advances America's interests in the world  --  including its interests in justice  --  is not the downcast "America-as-contrite-bully" stance so popular in the faculty lounge, but big-time power and no crippling hesitation to use it.

*  Not that the Administration is unwilling, in the right circumstances, to conduct a trial in the media.  That's exactly what's going on with the President's and the Attorney General's alternately moping and seething reactions to the Trayvon Martin verdict.  Mr. Holder has been sufficiently crass to suggest that George Zimmerman just might be indicted on federal civil rights charges, even though DOJ has known for weeks that it has no case.

Trading with the (former) enemy

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Nothing sends our friends on the left side of the aisle into ecstasy quite like warming up relations with former enemy nations that remain communist.  Those of us who are old enough remember the China-mania that followed ping-pong diplomacy and the Nixon trip.  Later, there were the media rhapsodies over the soon-to-collapse Soviet Union that Rush Limbaugh called "Gorbasms."

So this story from AFP suggests a fruitful new basis of expanded trade with Vietnam that should make our friends delirious.

Vietnam executed its first prisoner by lethal injection on Tuesday, state media said, after a two-year hiatus in carrying out capital punishments due to problems procuring the chemicals.

The communist country stopped using firing squads in July 2011 in favour of "more humane" lethal injections but was unable to import the necessary drugs due to a European Union export ban.

In May this year, Vietnam amended the law to allow locally-produced chemicals to be used, a move which was widely expected to bring about a resumption of executions.

On Tuesday the first death row prisoner, convicted murderer Nguyen Anh Tuan, was administered three injections "for anaesthesia, paralysing the nervous and muscle system, and stopping the heart", according to an online report in the Thanh Nien newspaper.

We will probably have some FDA issues to clear out first.  But then let's start placing orders.

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