Yale Law School Legal Scholarship Repository

In Defense of Life: Enforcing the Bill of Rights on Behalf of Poor, Minority and Disadvantaged Persons Facing the Death Penalty

Stephen B. Bright — Wed, 18 Jan 2012 14:00:53 PST

I am grateful to have the opportunity to be here, to meet with distinguished members of the legal profession and law students and to talk with you about how well the legal system and our profession are responding to the challenge of deciding who dies.

This year is the twentieth anniversary of the United States Supreme Court's decision in Furman v. Georgia, in which the death penalty as it had existed for 200 years in our country's history was found to be unconstitutionally applied. We have now had about nineteen years of experience with the new death penalty statutes passed after Furman. We are in a position to examine whether the constitutional deficiencies identified in Furman-discrimination against minorities and the poor and arbitrariness and capriciousness have been eliminated from the process of imposing death.

We have also just completed the year in which we celebrated the 200th anniversary of the Bill of Rights. I know that those of you here today recognize that the Bill of Rights is not a collection of technicalities. The Bill of Rights is one of the most fundamental and important documents of our national existence. It is one of our nation's great exports. It is something that people around the world admire about our country.

It is thus appropriate for us to examine here today how well the Bill of Rights is being enforced in these cases, cases involving human life; how well our profession, the legal profession, has fulfilled its responsibility to make the protections of the Bill of Rights available to those facing the death penalty; and, finally, whether the Bill of Rights is serving its purpose of protecting the poorest and most powerless people of our society.

Is Fairness Irrelevant? The Evisceration of Federal Habeas Corpus Review and Limits on the Ability of State Courts to Protect Fundamental Rights

Stephen B. Bright — Wed, 18 Jan 2012 13:57:15 PST

John Randolph Tucker, for whom this lecture series is named, when asked how he could serve as counsel for the Haymarket Anarchists in Spies v. Illinois, reportedly answered: "I do not defend anarchy. I defend the Constitution. Such a voice is needed in this country's crime debate today to remind Americans that those who argue for fairness in our criminal justice system do not defend crime, they defend the Constitution. Such a voice is needed because, increasingly, due process and other guarantees of the Bill of Rights are regarded as little more than inconvenient impediments to ridding our society of murderers, rapists, robbers, and other criminals. That voice has been missing in the exceptionally one-sided debate on crime that has dominated politics in the United States for the last thirty years. Americans have been told that the answer to the crime problem is longer prison terms, harsher conditions of imprisonment, greater use of the death penalty, less due process, and less judicial review. There has been virtually no debate among politicians about the wisdom of these measures - whether they constitute an effective crime control policy or whether they will actually make Americans safer in their homes and on the streets.

Will the Death Penalty Remain Alive in the Twenty-first Century?: International Norms, Discrimination, Arbitrariness and the Risk of Executing the Innocent

Stephen B. Bright — Wed, 18 Jan 2012 13:53:46 PST

Supreme Court Justice Arthur Goldberg once said that the deliberate institutionalized taking of human life by the state is the greatest degradation of the human personality imaginable. Although most developed nations in the world have abandoned the death penalty, the United States, which purports to be a leader in the protection of human rights, retains capital punishment. Thirty-eight states, the federal government and the military provide for death as a punishment for certain crimes. Over 3,600 people are on death rows across the country. Executions have become "routine" in Texas and the pace of executions is increasing throughout the country.

The death penalty is a relic of another era, before the federal government and the states developed the vast prison industrial complex that exists today. In a frontier society, when many communities did not have prisons or jails, the methods of punishment were limited to such things as whipping, branding, cutting off fingers, placing people in stocks, and hanging or shooting them. But today those punishments are no longer necessary because communities can be protected and offenders punished by prison sentences-even, in some cases, sentences of life imprisonment without any possibility of parole-in institutions such as the "super maximum" prisons where inmates never come in contact with another human being.

Taney's Influence on Constitutional Law

EDWIN M. BORCHARD — Wed, 18 Jan 2012 13:44:19 PST

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name rested because of his views on the constitutional issues arising out of slavery, has diverted popular though not professional attention from the distinguished judicial service he rendered country in other matters over a period of Chief traditions of the and kindly, he was vigorous and convincing in the assertion his legal positions remarkably sound and prophetic. The brilliance and vigor the Jackson Administration derived substance and spirit from the powerful mind of Taney, Jackson’s Attorney General and Secretary of the Treasury.

Supreme Court and Private Rights

EDWIN M. BORCHARD — Wed, 18 Jan 2012 13:31:20 PST

Some of the social-political theories which influenced the framers of the Constitution were derived from Locke, Hume, Harrington, Coke and Blackstone. These men were less concerned with forms of government than with the relation between society as a whole and its individual members. They were sure that the individual possessed certain indefeasible, primordial rights and that government was designed to protect these rights against encroachment by the state or by classes within it. Perhaps the most important of these private rights was that of property, associated by Locke with liberty and often identified with it.' Thus, the effort of the British Parliament to levy distasteful taxes and impose commercial restrictions was pictured in America as a challenge to fundamental theories of government.

Strength and Weakness of the New International Court

EDWIN M. BORCHARD — Wed, 18 Jan 2012 13:19:03 PST

For an adequate understanding of the origin, jurisdiction and functions of the newly established court of international justice at the Hague, it will be necessary to revert to the two Hague Conferences of 1899 and 1907 and to examine the organization of the Permanent Court of Arbitration at the Hague created and developed at: those Conferences. The characteristic feature of the Court of Arbitration as distinguished from the new Permanent Court of Justice lies in the fact that the personnel of the former consists of an eligible list or panel, of which there are now some one hundred and twenty persons throughout the world, from which the two nations proposing to enter into arbitration may select their judges for the particular case, whereas the new court has a fixed bench whose members have a tenure of nine years and are subject to re-election. The word "permanent" used in both titles refers-to the institution itself, for which permanency was designed, rather than to the composition of the court.

State Indemnity for Errors of Criminal Justice

EDWIN M. BORCHARD — Wed, 18 Jan 2012 13:06:46 PST

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in courts of the United States." Under this law, any person who can prove that he was wrongfully convicted and sentenced for a crime against the United States may bring suit in the Court of Claims against the Federal Government for damages of not more than $5,000. The Federal act of May 24, 1938, limits the right of recovery to innocent persons who have been both convicted and served all or a part of their sentence. The innocence must be proved either by appeal or new trial or rehearing in which innocence is established, or by a pardon on the ground of innocence. It must also appear that the erroneously convicted person either committed none of the acts with which he was charged or that those acts constituted no crime against the United States or against any State or Territory. He must also show that he has not either intentionally or by willful misconduct or negligence, such as false, voluntary confession, contributed to bring about his arrest or conviction. On the establishment of all these conditions he may sue in the Court of Claims.

Some Lessons from the Civil Law

EDWIN M. BORCHARD — Wed, 18 Jan 2012 12:55:05 PST

The purpose of this brief article is not so much to set forth any specific institutions disclosed by a study of the civil law, as to point out some of those defects of our own system which are accentuated by comparison with the civil law, defects due to the methods rather than the substance of the common law. There is no desire to urge such a radical and perhaps impossible step as the substitution of civil law methods for our own; but in the consideration of plans for the improvement of our law, it may be profitable to observe that the other great legal system has avoided some of the most obvious- defects under which we labor, and the suggestion of a partial remedy may be ventured.

Shall the Executive Agreement Replace the Treaty

EDWIN M. BORCHARD — Wed, 18 Jan 2012 12:32:47 PST

In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the approval of two-thirds of the Senate, has become too cumbersome, inefficient, and “undemocratic." Because of well established “usage”, they claim, it has become valid and desirable to substitute for the treaty and executive agreement, preferably without congressional approval or, if necessary, with approval by a majority of Congress. Advocates of the change point out that some 1300 executive agreements have been concluded during our national history, as contrasted with some 900 treaties. It is not mentioned, however, that up to 1928 only 15 treaties had been rejected by the senate, usually for good reasons; that 47were not acted upon; and that while some 160 treaties have been amended by the Senate, in most cases the changes have benefited the nation.

Lawyer Troubles in Political Trials

Fowler V. Harper — Sat, 24 Dec 2011 20:28:14 PST

In the years that have elapsed since the beginning of the war, political trials have not been an uncommon phenomenon in the world. Until the indictment and trial in New York of the eleven Communist leaders, however, we have not, in the United States, had a clean cut example. The Hiss, Coplon and Bridges litigation had sharp political overtones, to be sure, but they were, after all, genuine criminal trials. The Communist trial, on the other hand, came much nearer being a political trial with criminal overtones.

Mr. Justice Rutledge and Full Faith and Credit

Fowler V. Harper — Sat, 24 Dec 2011 20:28:12 PST

"He is bold, willing to innovate, does not himself shrink from broad responsibility and would not have the Court abdicate its powers." This characterization is more applicable to some of the justices of the Supreme Court of the United States for the past decade than it is to others. It is applicable to none more than to Mr. Justice Rutledge and as to him, no more so than when he dealt with the complexities which from time to time plague the Court under the Full Faith and Credit Clause of the Constitution.

Mr. Justice Rutledge and Full Faith and Credit

Fowler V. Harper — Sat, 24 Dec 2011 20:28:10 PST

"He is bold, willing to innovate, does not himself shrink from broad responsibility and would not have the Court abdicate its powers." This characterization is more applicable to some of the justices of the Supreme Court of the United States during the past decade than it is to others. It is applicable to none more than to Mr. Justice Rutledge and as to him, no more so than when he dealt with the complexities which from time to time plague the Court under the full faith and credit clause of the Constitution.

In the Supreme Court of the United States October Term, 1964 - No. 496 - Estelle T. Griswold and C. Lee Buxton, Appellants, vs. State of Connecticut, Appelle - On Appeal from the Supreme Court of Errors of Connecticut - Jurisdictional Statement

Fowler V. Harper — Tue, 20 Dec 2011 14:49:55 PST

Appellants Griswold and Buxton appeal from the judgment of the Supreme Court of Errors of Connecticut entered on April 28, 1964, affirming the judgment of the Circuit Court, Appellate Division which had affirmed the conviction of appellants by the Circuit Court, Sixth District. Appellants submit this statement to demonstrate that the Supreme Court of the United States has jurisdiction of this appeal in that there are substantial federal questions involved.

Justice Rutledge and the Religious Clauses of the First Amendment

Fowler V. Harper — Tue, 20 Dec 2011 14:49:52 PST

A number of cases were decided by the Supreme Court of the United States in the late thirties and early fourties which involved the First Amendment's guarantee of the free practice of religion. Most of these cases involved members of the sect known as Jehovah's Witnesses. Three such cases upholding legislation requiring licenses for the street distribution of literature were decided by the Court on June 8, 1942. The decision was five to four, the majority consisting of Justices Reed, Roberts, Jackson, Frankfurter and Byrnes.

Mr. Justice Rutledge and the Fourth Amendment

Fowler V. Harper — Tue, 20 Dec 2011 14:49:49 PST

To the men who founded this nation the idea that "a man's house is his castle" was no mere figure of speech. One of the many just causes of complaint by the colonists and one largely responsible for the Fourth Amendment protection against unreasonable searches and seizures, was the practice of British courts to issue the notorious "writs of assistance." These writs enabled the Kings' customs officers to go ransacking at large through homes and warehouses on fishing expeditions for contraband. Smuggling during colonial days was costing the royal treasury large sums and the ruthless writ was a catchall device to meet it.

Lawyers and Marriage Counseling

Fowler V. Harper — Tue, 20 Dec 2011 14:49:47 PST

There are at least three million children of divorce under eighteen years of age in the United States today, and the divorce courts are adding about 300,000 new children to this group each year. At least 40 per cent of all the divorce cases which go through the nation's courts have minor children involved, averaging about two children per couple. The manner in which the courts deal with these victims of domestic catastrophe is no longer the problem of an aberrant minority: it is now a problem, the impact of which is felt directly or indirectly by a substantial proportion of our people. It presents a challenge to the stability of our social institutions which is assuming threatening significance.

Book Review: The Law of Conflict of Laws

Fowler V. Harper — Tue, 20 Dec 2011 14:49:44 PST

This book is the outgrowth of a project started by the author some twenty-five years ago. The origin was an undertaking to prepare and Arkansas annotation to the Restatement of Conflict of Laws. Professo Leflar soon discovered, as did so many other state annotators, that except in the most unsatisfactory way, this was an impossible task. Case after case just could not be lined up as "in accord" or "contra" the Restatement blackletter. They would fit only vaguely or tangentially into the neat moulds of Professor Beale's conceptualism. To be sure, cases were decided for one or the other side in the litigation, but opinions were often muddled, illogical and confused. Professor Leflar was unhappy with his project and had the good sense to throw it up. Instead, he wrote a small book in the nature of a treatise on the Arkansas law of Conflict of Laws in an attempt to give a more accurate description of the law in his state. He then discovered, to use his own words that "on a subject like Conflict of Laws . . . no one state's law is complete within itself; the law is made up of a national mass of cases and writings including locally binding precedents, the latter being in general locally distinguishable on their facts from almost any later case that may arise."

Book Review: Parental Authority: The Community and the Law

Fowler V. Harper — Tue, 20 Dec 2011 14:49:41 PST

This book reports a cross-disciplinary research project which should be of particular interest to lawyers and sociologists, so far as theory, technique, and methodology are concerned, and to legislators and the public generally, as to the substance of the findings. The research group (I would have used the word "team" if it had not recently fallen into disrepute) consisted of a law professor and two sociologists. The data were collected in a field study in which the questionnaire-interview method was employed in an effort to ascertain the extent to which the law, in a limited area of human relations with which most laymen have a working familiarity, coincides with or deviates from the "moral sense of the community."

Torts, Contracts, Property, Status, Characterization, and the Conflict of Laws

Fowler V. Harper — Tue, 20 Dec 2011 14:49:39 PST

This is a formidable title, involving areas where angels fear to tread. Nevertheless, some of us are foolish enough to rush in. A few years ago Dean Prosser, for example, somehow got himself tangled up in a conflict of laws problem involving torts. "[C]onflict of laws," he said, "is a dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon."' After pushing the problem around the swamp for sixty pages, he came to the startling conclusion that "something will have to be done about all this."

Book Review: Abortion in the United States

Fowler V. Harper — Tue, 20 Dec 2011 14:49:36 PST

This book is a report of a conference, consisting mostly of doctors, which was held at Arden House under the sponsorship of the Planned Parenthood Federation of America and the New York Academy of Medicine. Among the thirty-nine participants many names well known in medical and demographic circles are to be found-names such as Alan Guttmacher, Harold Rosen, Abraham Stone, P. I. Whelpton, and the late Alfred Kinsey, to pick a few at random. The first 184 pages consist of the report proper, edited by MIary Steichen Calderone, medical director of the Federation. This is followed by a summary of the abortion and the birth-control laws of the United States, a discussion of abortion in Japan, Germany, Finland, and the Soviet Union, and the presentation of a few characteristics of the 5,293 women interviewed by the staff of the Institute for Sex Research as set forth in its monograph on Pregnancy, Birth and Abortion. The book concludes with a selected bibliography on the subject of the conference.