May 5, 2006

A referendum on the death penalty...

In the state that has banned the death penalty since 1853 -- the longest ban in the United States.

38 comments:

MadisonMan said...

It seems like the legislature is shirking its duty when it does something like this. Aren't the elected to lead? Yet when they get a tough question (read: one that could get them booted from office) they say "Hey! Let's have the public decide!"

Ann Althouse said...

I think it's more about attracting more people to the polls and making something an issue in the campaign. It's about Doyle, isn't it?

Jack Wayne said...

Yeah, we wouldn't want the people of Wisconsin to be asked to exercise democracy or anything dangerous like that would we, madisonman?

Too Many Jims said...

I understand it is about politics but I would think that, if they were serious about it, proponents of a revived death penalty should lay out a procedural framework for ensuring that safe guards are in place to avoid some of the problems that Illinois has been grappling with.

Simon said...

I share what I take to be MadisonMan's hesitancy about direct democracy as tending to short-circuit the process of representative government (believe it or not, this is precisely what one of the men now seeking the Democratic nomination for the Presidency wants to see. Between Sandy Levinson and Mike Gravel, it's getting harder and harder for Democrats to pretend they aren't basically at war with the U.S. Constitution). However, if a state's constitution makes provision for a referendum, and the politicians think it will call "the contending sides of a national controversy to end their national division by accepting a common mandate rooted in" the expressed will of the majority, I don't see the harm in it.

As with the gay marriage referendums, I choose not to believe that those who are opposed to these referenda are actually opposed to the basic principle of self-government and participatory democracy, but rather, that they oppose the referenda for the far more practical reason that they are sure they will lose. After all, a referenda that rejected the death penalty would make it much harder to reinstate it any time soon, and a referenda showing overwhelming support for gay marriage would essentially take that issue out of play, just as overwhelming rejection at the ballot box has damped down the ID debate. A referendum lends an air of "this is what the people really think," because it asks a narrow and direct question, rather than the plethora of issues entailed in choosing which party to vote for. Hence, the only real reason to oppose it is if you think it will lend that air of legitimacy to the side that you aren't on.

If you disagree, what is the argument you'd make that in America, the people should not govern, that they should be led by elites who know what's best for them?

Bissage said...

Overall, I think the statewide advisory referendum is a good thing. Still, I miss the old days when we used to have the statewide advisory rumble.

Ah, so many memories. So many happy memories.

MadisonMan said...

we wouldn't want the people of Wisconsin to be asked to exercise democracy

The people won't be doing anything. The voters will.

Ann is right -- this is an effort by the Republicans to get their people to the polls. This and Gay Marriage should do it, I suppose. Unfortunate that they can't get people to the polls for something basic like good clean governing or small government or lower taxes or balanced budgets, or anything remotely close to a traditional republican idea.

Nope. The Republican Party is strictly the anti-gay, kill 'em after they're born Christianist party nowadays.

Glenn Howes said...

Jim. The article says the death penalty would only apply when DNA evidence linked the convict to the crime. Is that what you mean by safeguard?

Regardless, I'm sure the state supreme court would throw out the death penalty. They have moral certainty and power.

Ann Althouse said...

" I'm sure the state supreme court would throw out the death penalty."

Which will play very well in the coming judicial elections.

Too Many Jims said...

One of the big problems (for me) with government by plebiscite is that most of the proposals are less than precise. Also, there is the potential to have conflicting proposals passed at the same time. I am waiting for the day when the following 3 propositions make it to the ballot in CA: 1) the State must balance it's budget, 2) abolishing all state taxes and 3) every student gets a gold plated education.

After all don't we suspect that a majority would vote yes to all 3.

MadisonMan said...

The article says the death penalty would only apply when DNA evidence linked the convict to the crime.

Can anyone say what that means, precisely? I can certainly envision a plausible scenario where DNA evidence would put a suspect at the scene of a crime he (or she) did not commit. What does link mean here?

Simon said...

MadisonMan - don't you think it's a bit of a dodge to complain about why this question will be on the referenda as a substitute for actually engaging with the substance of what Jack, Jim and I have said? As an abstract matter - that is, forget for a moment that it's actually happening - what's your argument that this SHOULDN'T go to a referendum?

Glenn:
"I'm sure the state supreme court would throw out the death penalty. They have moral certainty and power."

Interesting - democrats aren't so keen on conjoining moral certainty and power when it comes to President Bush, are they?

It seems to me that moral certainly and power are a very potent mixture for a judge to resist. One can readily see the tension in Justice Blackmun's last few terms as he struggled to reconcile his moral disagreement with the death penalty, his awareness that it was constitutional, and the fact that he yet had in his power to abolish it. It takes a monumental effort of self-restraint to resist the temptation, and as we all now know, see Callins v. Collins, 510 U.S. 1141 (1994) at 1143-59 (Blackmun, dissenting from denial of cert), Justice Blackmun was not equal to the task. It remains to be seen if the Wisconsin Supreme Court is made of sterner stuff, but sadly, Justice Sykes - whoops, got ahead of myself there: Judge Sykes) has given us reasons to be doubtfull that they will.

Joe said...

I just love it when Democrats call the democratic process "despicable." That usually means they will lose at the polls again and have to rely on courts to legislate their agenda from the bench.
There are so many layers of appellate review in this country that I have serious doubts as to whether an innocent person could be executed today. I suppose anything is possible, but the odds are strongly against it.

me said...

Joe -- there are many layers of appellate review, but the standard for reversible error is VERY high, as is the deference to the trial court's decisions. Trial court lets questionable evidence in - appellate courts asks if they abuse their discretion. Trial court's makes a questionable finding of fact -- appellate court reviews to see if it was clearly erroneous. To find reversible error you must ask "is there a high likelihood that the result would have been different without the error?" If there was a lot of evidence against the defendant, the answer is NO, and the error is harmless. But, there can be a lot of evidence against someone and they could still be innocent. Appellate courts reverse convictions quite rarely and legislatures and Congress are hemming them in more all the time (see the AEDPA).

Bissage said...

MadisonMan asked whether anyone can explain precisely what it means to have DNA evidence "link" a defendant to a crime.

Sure, I can. When an authority figure declares that DNA evidence links a defendant to a crime, our brains all shut off and we do what we're told.

I jest in earnest because it's all about plausible deniability.

Too Many Jims said...

Glen,

Mea culpa. The DNA would take care of a lot of the problems Illinois faced. I must have skipped over that sentence, though I supposed there still is the question of how prosecutors choose which defendants the death penalty is sought against.

Joe said...

At least here in NY, the intermediate state appellate court can review sufficiency of the evidence de novo, and can even reverse if the verdict, supported by legally sufficient evidence, is against the weight of the evidence. AEDPA reined in federal habeas jurisdiction to a degree by instituting a statute of limitations, but I don't believe their standard of review was so altered as to make the execution of an innocent any more likely.

David said...

I always enjoy the rhetorical yoga positions people go through when justifying abortion as opposed to lack of support for the death penalty.

It seems logical for me to understand that some people give up their right to live among us. The opposite side of that is abortion is unacceptable because the fetus is a tabula rasa with potential before it is destroyed.

It still costs close to $75,000 dollars a year to incarcerate a convicted criminal.

I think if the public were allowed to vote on these subjects, common sense would prevail. Certain states would vote against capital punishment and for abortion. Most other states would vote the opposite.

The inevitable appeal would find the SCOTUS would vote yay or nay on the state's rights issue. We are a nation of laws and sometimes, however inconveniet these laws are, they are the will of the majority.

Recent cases in point are the antics of Mckinney and Kennedy who don't believe the laws apply to their exalted position.

I see a pattern here!

Ann Althouse said...

Joe: "I just love it when Democrats call the democratic process "despicable." "

And I just love it when Republicans prefer direct democracy to "a Republican Form of Government." (The quote is from the U.S. Constitution.)

MadisonMan said...

what's your argument that this SHOULDN'T go to a referendum?

Why is a referendum needed? Why can't the legislature just pass something allowing the death penalty, and if the Governor vetoes it, use that veto as a cudgel? I guess I'm saying advisory referenda waste time.

If Legislators really meant to enact the death penalty, they'd amend the constitution directly to allow it. That takes the State Supreme Court out of the equation. It's not like Republicans are afraid of tampering with the Constitution -- but now suddenly they can't?

I vaguely recall that it's not too far past that a Republican was in the Governor's Mansion here (when he wasn't flying all over the state, that is). Why didn't the Legislature pass the death penalty then?

me said...

I see we can't go very long without bringing up abortion.

To Joe:
"At least here in NY, the intermediate state appellate court can review sufficiency of the evidence de novo, and can even reverse if the verdict, supported by legally sufficient evidence, is against the weight of the evidence."

Wow, that is amazingly liberal! I wonder if many other states have those sorts of provisions --- I assure you in KY we don't.

"AEDPA reined in federal habeas jurisdiction to a degree by instituting a statute of limitations, but I don't believe their standard of review was so altered as to make the execution of an innocent any more likely."

From the AEDPA wiki:

"One provision of the AEDPA, not previously applied by federal courts, prohibits federal judges from granting a petition for writ of habeas corpus unless the state court's adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. This provision, and its subsequent interpretation by the federal courts, essentially allow convictions and sentences -- even death sentences -- to be upheld by federal courts even if they were concededly obtained in violation of the United States Constitution. With the AEDPA, not unless a state court resolves a claim "unreasonably" may a federal court intervene and protect the inmate's constitutional rights."

I think it does change the standards quite a bit -- I think its wrong, but I don't think its illegitimate -- the law is just saying as a society we are willing to decrease review of criminal convictions. States don't even have to allow appeal from the trial court level -- now that would be a brave new world.:)

Joe said...

Ann, as someone pointed out, WI permits referendums, so why shouldn't it be used. Believe me, I am in favor of the republican form of government, the electoral college too (not to open THAT can of worms).
Poster Me, I am aware of the new standards of AEDPA, my position is that they are functionally - in practice - not all that different from pre-AEDPA.
Let's face it, a court that wants a certain result in a particular case will find a way to reach that result, despite any minor differences in new and old standards of review.

me said...

"a court that wants a certain result in a particular case will find a way to reach that result, despite any minor differences in new and old standards of review."

That certainly is true -- but then why pass the AEDPA in the first place? Why even have standards of review? Good judges follow the law, even when the law produces disagreeable results. Bad judges can do whatever they want -- they just get out the law wrench when writing their opinion. I think AEDPA does increase the likelihood of an innocent being executed if it is applied correctly, simply by virtue of its high standard to get into federal court.

Joe said...

Me, I think we are mostly in agreement here. AEDPA (Answer Every Damned Petition Anyway) was passed because of the explosion in federal habeas litigation. Courts sympathetic to petitioners will still find ways around it. It is not designed to be a new level of plenary appellate review, it is supposed to be a final resort for a federal constitutional violation only. Constitutional violations should determined by the Supreme Court, not, for instance, the 9th Circuit.

Ann Althouse said...

AEDPA is the Anti-terrorism and Effective Death Penalty Act. That's how it got passed. The terrorism that produced the momentum was the Oklahoma City bombing. Before that, bills to limit habeas had been kicking around for years and were fended off.

Joe said...

Ann, you are correct.... the habeas reforms really were tacked on and have nothing to do with the anti-terrorism provisions. Since my job concerns federal habeas review of state convictions, that is the only portion of the statute I deal with, and the other stuff is out of sight, out of mind.

brian said...

I wouldn't call the democratic process "despicable," because I don't think that what happened in this instance could even be considered a form of representative democracy.

Democrats fumed that three Republican lawmakers who opposed the death penalty - Reps. Sheryl Albers of Reedsburg, Jerry Petrowski of Marathon and Judy Krawczyk of Green Bay - were asked to leave during the vote so it could pass without a majority.

"This is the most unbelievable and despicable maneuver in the 36 years that I've been here," said Rep. Marlin Schneider, D-Wisconsin Rapids.

It was not immediately clear why the three were excused before the vote.


It seems to me that what happened wasn't very "representative" or "democratic" by any stretch of the imagination.

Richard Dolan said...

In reading this thread, I'm struck by how quickly the discussion sinks into assertions about the motives of players on either side. Those pushing the referendum are doing so because it's "about Doyle" or are trying to get out their base voters or something else. Presumably the opposition to the referendum oppose it because it's not "good for Doyle" or it's not good for them if the other side's voters show up and vote. I take it as a given that politicians have political motives for what they do. But here's a heretical thought: perhaps even politicians are sometimes driven to do what they do because they actually think it is the right thing to do.

Putting that little heresy aside, let's all just agree that (1) all of the political players have political motives (whether or not they have other ones), and (2) those of us with an interest in politics tend to look kindly on the motives of the home team and not so kindly on the motives of the opposing team.

Now that we're done with that, what's wrong with invoking a procedure, evidently made available by the Wisc state constitution, to put an important issue before the voters in a referendum? Nothing that I can see. Frankly, it's a nice contrast to see the voters consulted on an issue that, at its core, is all about moral values -- should the state ever take a life, is "eye for an eye" an unacceptable standard in today's world, does the incontestable fact that fallibility is the hallmark of every human institution including courts deciding capital cases make the imposition of capital punishment immoral? On all of those issues, it seems to me that the instincts of ordinary citizens are at least as reliable a guide as any pronouncement from a robbed priesthood. Good for Wisconsin that something important will be presented to the voters. Here in NY, the only ballot referenda we get to vote on typically relate to bond measures -- where the politicians ask us to approve, say, a Clean Water Act bond without disclosing that none of the money will be used to clean up any waterways -- but almost never anything like this Wisc referendum.

David said...

The debate is not about the tangential issues of capital punishment and abortion. It is about the value of life and the concommitant responsibilities for judgement that naturally follow from that value.

The virtue that follows from a value based life enhances us all. Many of the laws written today remind me of the monster created by Dr. Frankenstein in the book written bt Mary Shelley.

The monster is inherently flawed because it was created by imperfect human beings. Fortunately, most human beings are imbued with common sense that is the strength of direct democracy and the bane of those opposed to it.

Bissage said...

Richard Dolan: Damn, that was excellent!

Danny said...

Perhaps we should have this referendum every year until the death penalty is made legal again. And after that we can have an annual referendum to abolish it again. And anyone who is against this plan is against democracy!

Joe said...

Democracy is messy, Danny. Taking an issue away from the voters - see Roe v Wade - does not make it go away.

Danny said...

Three members of the State Assembly were "asked to leave" from voting because of they oppose the death penalty. As a Wisconsinite, should I ignore that lapse of democracy in our legislative branch and be happy that I might get to vote on another referendum in November?

Joe said...

I don't see that as a lapse of democracy, it was a parliamentary maneuver to enable democracy - the referendum.

Danny said...

I'm a novice when it comes to political theory but I would argue that the act of electing officials who then vote in the State Assembly embodies the represenative democracy of the United States far better than a public vote on the death penalty. The referendum greatly resembles an exercise of direct democracy, a system better designed for smaller institutions and organizations (I think...feel free to correct me as I haven't studied this).

Abraham said...

The referendum greatly resembles an exercise of direct democracy

I disagree, precisely because it is a nonbinding referendum. This means it is really nothing more than a poll of actual voters, commissioned and conducted by the government. I don't see that as inconsistent with representative government at all.

Simon said...

Joe said...
"Democracy is messy, Danny. Taking an issue away from the voters - see Roe v Wade - does not make it go away."

Precisely. "It used to be said that libraries filed French Constitutions among periodicals. The [proposed 500+ page] EU Constitution will someday seem as dated as a yellowing newspaper, because it gives canonical status - as fundamental rights elevated beyond debate- to policy preferences, even to mere fads, of the moment." George F. Will, The Slow Undoing: the assault on, and underestimation of, Nationality in THE NEOCON READER (I. Stelzer, ed.) (2004), pp.129-139, 133. Our Constitution has endured in a way that few other constitutions have endured precisely because - until very recently - we resisted such temptations. We understood that not every right or activity must be protected by the Constitution in order for it to be protected in some manner (which is precisely what I argue the ninth amendment's injunction against disparaging other - i.e. not constitutionally protected - rights means), but rather, that the Constitution set a floor and a structure for the American polity. We abandon such thinking at our peril, but in recent decades, a compulsion that was once a worrying aberation (see, e.g., Lochner) has become comonplace.

Daryl Herbert said...

I don't understand what is meant by that the lawmakers were "asked" to leave so the vote could "pass without a majority."

Is it as simple as: the pro-death penalty side saw that they wouldn't have enough votes, so they lobbied 3 representatives to sit this one out, so they could get their way?

So the 3 reps chose not to vote, of their own free will? If that's all there is to it, why is this a scandal/the subject of complaints? How does this threaten our democracy? Even if they were threatened with "consequences," that doesn't change anything. Legislators are always being threatened/cajoled/lobbied/etc.

They chose not to vote. Am I missing something, or is this a completely artificial scandal manufactured by liberal media types who oppose the death penalty?