Is Ramsey’s Campaign Against Justices — or Against Justice?

Guest post by Penny J. White

Those opposing the retention of veteran Tennessee Supreme Court justices Gary Wade, Connie Clark, and Sharon Lee are being urged to ignore the three justices’ vast judicial experience – they have served collectively for almost six decades — and consider instead the Court’s capital punishment experience.   In television commercials, PowerPoint presentations, and campaign materials, the justices are being labeled as “soft on crime” and soft, in particular, on capital punishment.

The opposition to the justices is led by Lt. Governor Ron Ramsey, who at times has admitted candidly that his objective is to “get[] the Republicans in.” But because appellate judges stand for nonpartisan retention in Tennessee, Ramsey has commandeered hot-button political issues to try to provoke the public. A portion of the campaign presentation his office created to share with business leaders and moneyed interests is entitled “Tennessee Death Penalty (or lack thereof.)” It implies that Tennessee is not executing quickly enough and that the Tennessee Supreme Court is to blame.

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Although this type of Machiavellian rhetoric is neither new nor imaginative, its effects are nonetheless tragic. Since the famous Willie Horton ad aired in 1988, politicians have used the soft-on-crime tactic frequently to frighten, mislead, and manipulate the voting public.   Ramsey’s campaign to oust Justices Wade, Clark, and Lee does all three. It frightens the public by implying that in two cases, individuals who had been sentenced to death were “let . . . out [and were] back in [] society.” It misleads the public by suggesting that ouster of the justices will speed up executions in Tennessee. It manipulates the public into regarding their vote as a referendum on capital punishment.

The decision whether a state can and should kill one of its citizens is exceptionally complex. It is affected by legislative acts and judicial decisions, both state and federal; by executive orders and prerogatives; and by professional and public opinion. Suggesting to the voting public that this complexity can be distilled into a simple “for”- or- “against” proposition perpetuates and exacerbates a lack of understanding about the administration of capital punishment law.

Thus, perhaps, even more tragic than the effect on the electorate is the systemic effect on the institution of justice. In response to Ramsey’s campaign, supporters of the sitting justices have touted the court’s death penalty record, advertising that twice as many executions have occurred during the current court’s term as during the previous four decades and emphasizing that the justices have upheld convictions in twenty of twenty-one capital cases. While setting the record straight is important and understandable, judicial campaigns that underscore the number of affirmances in criminal cases, in effect, yield to the opponents’ distasteful and misleading tactics and accede to the notion that accomplishing justice in a capital case is a simple “for”-or-“against” proposition.

Of equal concern is the potential effect that the opponents’ campaign and the supporters’ reactions will have on other judges. In 1996, when I became the only Tennessee appellate judge to lose a retention race, (I hope to retain that distinction, not because of my desire to remain unique but because it will mean that our justices are retained), those who commented on the consequences of my loss predicted a more wide-spread ripple effect. Headlines across the state proclaimed that “Judges Face a Future of Uncertainty,” that “Judges Got a Message,” and that “Ouster Seen as Sign of Clout.”

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Others were more direct in their prognosis. Then-Governor Don Sunquidst famously commented that judges should “look over their shoulders to the next election” in deciding how to rule. Scholars who study Tennessee’s trial and appellate courts argue that judges did indeed look over their shoulders, toughening up following the 1996 election. As one group put it, judges had begun “killing for votes.”

If Tennessee’s judges allow the campaign against the justices to intimidate them or influence their decisions, Ramsey’s campaign to “get [] the Republicans in” could potentially cast the rule of law out.  Our system of justice is based on the principle that law, not power, should govern; that courts must act independent of political influence; and that judges must rule with neither fear nor favor. As U.S. Supreme Court Justice Stevens observed, “It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.”   At the end of the day, the quality of justice in the state of Tennessee will depend first and foremost on the willingness of Tennessee’s judges to remain resolute in their dedication to the rule of law in even the most difficult of capital cases.

Penny White is the Director of the Center for Advocacy and Dispute Resolution and the Elvin E. Overton Distinguished Professor of Law at the University of Tennessee College of Law.  Before beginning her teaching career, White served as a judge at every level of the court system in Tennessee, serving as the first female Circuit Judge in the First Judicial District and the second woman to serve on the Tennessee Court of Criminal Appeals and the Tennessee Supreme Court. White teaches and writes on topics related to evidence, criminal procedure, capital punishment, and ethics. She is a strong advocate for judicial independence and integrity and has written an article on the topic — “Relinquished Responsibilities— which was published in Volume 123 of the Harvard Law Review. White is most proud of her authorship of the Tennessee Capital Case Handbook, a book for criminal defense lawyers who represent those facing the ultimate punishment.


Constitutional Killing

Guest Post by Colin Dayan, Robert Penn Warren Professor in the Humanities, Vanderbilt University

There is a real legal history to the death penalty. In some ways it is as barbaric as the fact of execution itself. It also helps to explain why the death penalty in the United States will not go away.

Since the 18th century, “cruel” and “unusual” have been coupled in our legal language and courts. Their rhetorical ambiguity has been alternately used to protect prisoners and to legitimize violence against them. Only at the start of the 20th century in Weems v. United States, and again in 1958 with the opinion of Chief Justice Earl Warren in Trop v. Dulles, did the Supreme Court turn away from the mere ban on “barbarous” punishments and begin to consider whether punishments were disproportionate to the offense. In Trop, Warren emphasized a flexible interpretation of the 8th Amendment that would adapt to enlightened public opinion. The “dignity of man,” he said, was the linchpin of the 8th Amendment.

The 8th Amendment attracted great attention during Furman vs. Georgia in 1972. This landmark case declared capital punishment to be cruel and unusual — and therefore unconstitutional. Not only was it “degrading to human dignity,” wrote Justice William J. Brennan Jr., but it also had proved to be “irrational and arbitrary.” Justice Potter Stewart said: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The court voted 5 to 4 to strike down every capital punishment law in the United States.

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The Importance of Judicial Independence

Today’s edition of The Tennessean includes two important critiques of Lt. Gov. Ron Ramsey’s campaign to oust three judges from the state Supreme Court, as discussed in Lisa Guenther’s guest post, “Death and Taxes: The Real Story Behind Tennessee’s Electric Chair.”

In an Opinion piece entitled, “Politics has no place in Tennessee appellate courts,” Jim Edwards writes:

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The Pitfalls of the Death Penalty

Thanks to everyone who came out to hear attorneys Dawn Deaner, Justyna Scalpone, and Kelley Henry speak about the pitfalls of the death penalty in Tennessee!  Here’s a brief summary of the event.  Read more about the panel in The Tennessean.

Photos by Rohan Quinby

Davidson County Public Defender Dawn Deaner explained that her office provides legal representation for defendants who cannot afford to hire their own attorneys.  But in the case of capital defendants, the resources for hiring mitigation specialists to examine whether it is appropriate to seek the death penalty in this particular case are not available until after the death penalty has been sought.  At that point, the trial becomes a “runaway train” and it is difficult to ensure that the defendant has a fair trial.  Not only are there fewer resources for poor people, but there are also racial biases in the system, and the jury selection process explicitly excludes anyone who is against the death penalty — so the odds are already against the defendant before the trial even begins.

Justyna Garbaczewska Scalpone, head of the Tennessee Office of the Post-Conviction Defender, explained what happens at the post-conviction level in capital cases.  The post-conviction office is meant to serve as a safety net to ensure that people are not falsely convicted or improperly sentenced.  After a sentence has been handed down, the post-conviction office reviews both the case and the trial process, checking for possible errors and constitutional violations such as ineffective assistance of counsel, jury misconduct, and Brady violations (in which prosecutors are found to have withheld evidence that could have benefited the defendant).  Scalpone reported that, in the past 3.5 years, 8 of the 10 death sentences reviewed by her office were overturned.  In 6 of these cases, the death sentence was reversed, and in the other 2 cases, a whole new trial was ordered.  She noted that more resources were needed at the trial court level to prevent factual and procedural errors, while still maintaining a robust safety net at the post-conviction level.

Finally, Federal Public Defender Kelley Henry spoke about her own work at the level of federal habeas review.  She recalled the feeling of elation when then-Governor Bredeson  commuted the death sentence of Gaile Owens to life imprisonment.   But not every client has been so fortunate. As an example, Henry recounted the case of Sedley Alley, in which prosecutors failed to disclose evidence that there was another suspect in the case, with material evidence suggesting that someone other than Alley committed the crime.  Alley’s attorney’s requested DNA evidence to rule out the possibility that Alley was falsely convicted.  But this request was denied.  There was also ample evidence that Alley had an intellectual disability, which would have disqualified him for execution.  But none of this prevented the state of Tennessee from executing Sedley Alley on June 28, 2006, for a crime he may not have committed.

At all three levels of the court system, underfunding for public defenders and a relative lack of accountability for prosecutors have resulted in wrongful convictions in the state of Tennessee.

Kelley Henry highlighted both the injustice of wrongful conviction and also the economic cost of using taxpayers’ money to incarcerate innocent people.  She noted that, across the US, 314 people have been exonerated through the work of The Innocence Project.  These people spent a total of 4202 days in jail, at a cost of about $30,000 per year.  In total, this amounts to $126 million of taxpayers’ money spent to incarcerate innocent people.

But dollar figures cannot begin to express the ethical harm of wrongful conviction – the loss of time, family connections, emotional well-being, and basic life chances that result from time spent behind bars on false charges.

The last word goes to Dawn Deaner, quoted by Brian Haas in his article for The Tennessean:

“Do we really want the death penalty?” Deaner asked. “Do we think that this is something that should be carried out on our behalf as citizens in this community, given the problems that exist?”


The Pitfalls of the Death Penalty in Tennessee: Three Public Defenders Share their Perspectives

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Monday, March 31, 12 noon – 1pm
Vanderbilt University, Furman Hall, room 114
111 – 21st Avenue South, Nashville (click here for parking information)


The state of Tennessee is planning to execute an unprecedented number of prisoners in 2014-15.  Now, more than ever, it is important for all Tennesseans to understand the death penalty system and its pitfalls.  

Join us on Monday, March 31 at 12 noon for a panel discussion of issues raised by the death penalty in Tennessee with three public defenders at three different levels of the court system:

Dawn Deaner is the Metropolitan Public Defender for Nashville-Davidson County, a position she has held since 2008.  Before then, she spent 11 years as an Assistant Public Defender in Nashville.  Dawn is also an Adjunct Professor of Trial Advocacy at Vanderbilt University Law School.  She received her law degree from George Washington University Law School, and her undergraduate degree from Columbia University.  In 2011, Dawn received the Tennessee Bar Association’s 2011 Ashley T. Wiltshire Public Service Attorney of the Year award.  In 2012, she was recognized by Gideon’s Promise (formerly the Southern Public Defender Training Center) with the Stephen B. Bright Public Defender Award for her contributions to improving the quality of indigent defense in the South.

Justyna Garbaczewska Scalpone is the Tennessee Post-Conviction Defender.  She obtained her law degree in 2002 from the University of Illinois at Urbana-Champaign.  Following graduation, Justyna worked for almost ten years at the Office of the State Appellate Defender in Chicago, first representing non-capital indigent defendants on direct and then death row inmates in post-conviction proceedings.  In addition to providing direct representation to clients, Justyna has served as the supervisor to mitigation and investigative staff.  In the spring of 2011, Illinois abolished the death penalty and Governor Quinn commuted sentences of all the death row inmates to life in prison.  A year later, the Appellate Defender’s capital post-conviction unit closed its doors.  Having found her calling as a capital defense attorney, Justyna moved to Tennessee in June 2012 to work at the Office of the Post-Conviction Defender in Nashville.  She has been serving as the director of the office since March 2013.

Kelley Henry is the supervisor of the capital habeas unit of the federal
 public defender’s office in Nashville. The Capital Habeas Unit represents 
men and women on death row who are challenging their capital convictions
 and sentences on federal constitutional grounds. The unit represents these
 clients through federal district court, the Sixth Circuit Court of Appeals, 
the United States Supreme Court, and in executive clemency. Ms. Henry has
 represented poor people charged with capital crimes at trial, direct
 appeal, state post-conviction, federal habeas, and clemency in Missouri,
 Arizona, and Tennessee.

This event is free and open to the public.  Pizza will be served for lunch.

Co-sponsored by Tennessee Students and Educators for Social Justice, Law Students for Social Justice, and the Vanderbilt Prison Project.


Why Does Colin Dayan Support This Initiative?

Dr. Colin Dayan is Robert Penn Warren Professor in the Humanities and Professor of Law at Vanderbilt University.  She is the author of The Law is a White Dog: How Legal Rituals Make and Unmake Persons (2011) and The Story of Cruel and Unusual (2007), as well as many other books, articles, and op-eds.

Dr. Dayan writes:

How cruel and unusual is the practice of humane and sanitized death? In Baze v. Rees (2008), the Supreme Court upheld Kentucky’s method of lethal injection. It rejected the claim that the effects of the 3-drug protocol qualified as cruel and unusual punishment under the 8th Amendment. Even though the paralyzing drug pancuronium bromide leaves an improperly sedated inmate unable to move or cry out, but conscious and in excruciating pain, the Court ruled that the procedure is more humane, more dignified than others. In other words, it is less disturbing to witnesses. 

The Tennessee Department of Correction has announced that only pentobarbital will be used to execute death row inmates despite a shortage of the drug.  In other words, our state will use the single-drug lethal injection method instead of the three-drug method it has used in the past. But since the drug is in short supply individual pharmacies can concoct recipes to make it, increasing the risk of an agonizing, degrading death.

The “painlessness” of lethal injection depends on an excessive saturation of the body with chemicals.  This “ethics of care” always remains what Sister Helen Prejean once called “an elaborate ruse.”  The familiar surround of a clinic, as I once wrote in “The Blue Room in Florence,” “offers the guarantee that this body-altering penetration has the prestige of a healing process.” But the odor of death cannot be redeemed.

The process of “humane” killing has unlimited resources at its disposal: to benumb, paralyze, and exterminate.  We remain the only country in the so-called “civilized” world that practices execution, though nineteen states do not have an enforceable death penalty statute. When will Tennessee join them and stop “tinkering with the machinery of death,” in the words of Justice Harry Blackmun?

To view the full list of signatories to our open letter to stop executions in Tennessee, click here.

If you are a student or educator in Tennessee, and you would like to add your signature to this open letter, click here.

If you are not student or educator in Tennessee, but you would like to support the open letter, please sign this petition.

And join us for a Death Penalty Teach-In on Monday, January 27 at 5:30pm in Vanderbilt’s Alumni Hall 201!

Why Does Larry May Support This Initiative?

Larry May is W. Alton Jones Professor of Philosophy, Professor of Law, and Professor of Political Science at Vanderbilt University.  He is the author of many books, including After War Ends (2012), Global Justice and Due Process (2011), and Genocide: A Normative Account (2010).

 Dr. May writes:

One can be opposed to the death penalty for many good moral reasons that are grounded in principle, such as the principle that the right to life must be respected, or that the state should never intentionally kill one of its own citizens.  But often today people express a different type of reason for why they are opposed to the death penalty, namely, a concern that the institutions responsible for the death penalty in America cannot be trusted to make sure that only those who deserve to die are the one’s who are executed.  This is a contingent objection to the death penalty in its current form and as it is currently administered and it is the position I also support. I don’t see the criminal justice institutions in the United States reforming themselves, or being reformed, sufficiently in the foreseeable future to make it likely that these institutions would guarantee that only those who deserved to die are the ones who are executed.

Specifically three facts are worth mention: 1) the current tendency for prosecutors to engage in wrongdoing so as to get a conviction and to thereby enhance their own prospects of attaining higher political office within their states [See Larry May, “Missouri’s Death Row Cases,” Journal of the Missouri Bar, March/April 2003, pp. 72-79];  2) the likelihood that the defense attorney representing the accused will not be as skilled, or have anything like the same resources, as those of the prosecutor;  and 3) the fact that prosecutors often react to certain kinds of killing in a visceral way, rather than in a reasoned way. Such facts have caused me and many others to lose faith in the promise that only those who deserve to die will be executed. And this is also a reason to have a moratorium on the administration of the death penalty.

To view the full list of signatories to our open letter to stop executions in Tennessee, click here.

If you are a student or educator in Tennessee, and you would like to add your signature to this open letter, click here.

If you are not student or educator in Tennessee, but you would like to support the open letter, please sign this petition.