The ACLU’s bid to save the Canadian on Death Row

By Colby Cosh - Wednesday, August 1, 2012 - 0 Comments

Aug. 4 will be the 30th anniversary of the double murder that put Albertan Ronald Smith on Death Row at Montana’s state prison near the city of Deer Lodge. “Death Row” is just a metaphor in this instance: Montana still has only two inmates awaiting execution, and they live among other maximum-security inmates at the prison. Smith has been, at times, mere weeks from his execution date. In my Alberta Report days, I remember discussing plans with other editors to have someone report on, and if possible, stand witness to, Smith’s demise.

Smith has long outlived that magazine now, and a few of the people who worked for it, too. But I am beginning to sense for the first time that Smith has a pretty good chance of dying in his prison bunk, rather than on a gurney. I know I’ll be pretty p.o.’ed if he outlasts me.

Smith has managed to attract increasing international interest in his professions of contrition==during the past few years, perhaps in part because of the controversy over the Canadian government’s refusal to help him with his clemency application. It would be amusing if the Conservative government had actually helped Smith’s cause, even slightly, by turning a deaf ear to his pleas. But what’s probably more important is the aid Smith is now getting from the American Civil Liberties Union’s Montana office. As Smith’s family goes to work on a popular Democratic state governor, the ACLU is presenting a strong challenge to the constitutionality of capital punishment in Montana.

If you have a morbid bent like mine, you may wish to peruse that challenge [PDF], which takes the bold form of a motion for summary judgment against the state’s execution protocol. The ACLU’s lawyers note that the state updated the protocol last year, but the technical manual continues to call for murderers to be put to death using the bizarre “triple cocktail”—a formula whose origins and rationale nobody really understands, and which is gradually being abandoned by other states in favour of the simpler one-drug method used by veterinarians to euthanize animals.

The actual statutes of Montana mention only two drugs, but that seems like a picky legal technicality. More important to Smith’s fate is the absence of humanitarian safeguards in the execution guidelines, an absence that persists in the new manual. The training and credentialing requirements for the people who would be killing Smith are specified very feebly. As the ACLU observes, the Supreme Court has set a fairly high procedural bar in death penalty cases. If Montana cannot afford to have a well-drilled and medically knowledgeable staff on call for executions, the motion suggests, then maybe it shouldn’t be doing them at all.

The real threat, of course, is not that Montana will have to recruit and develop an entire Death Squad for its two capital offenders. What’s more likely, even if the motion for summary judgment fails, is that the ACLU will win the right to a full and expensive hearing of its constitutional arguments, complete with expert testimony and lots of courtroom time. There’s a further risk, nay, a strong likelihood, that this hearing would probably end with a demand for an even more expensive rewrite of the state’s execution procedures book. (As a bonus, not one but two constitutions are involved here, and the state constitution of Montana has a different standard for “cruel and unusual punishment” than the federal law does.) The ACLU’s Ron Waterman more or less openly admits to CP’s Bill Graveland that he hopes Gov. Brian Schweitzer will take Smith’s age, maturation, and good behaviour into account and walk away from this potentially very obnoxious game.

It might provide the governor an additional reason to say at least there’s been litigation raised that questions the protocol, and this litigation is going to extend out for years and years, and it’s time to put this to bed.

On the other hand, Montana won’t be able to execute anybody at all until its execution manual is put to the judicial test. And there are still people around who very, very much want to see Ronald Smith die on that gurney.

‘I disagree with proponents of capital punishment for many practical and legal reasons’

By Aaron Wherry - Friday, July 6, 2012 at 3:18 PM - 0 Comments

Conservative backbencher Brent Rathgeber explains why he opposes the death penalty.

As with any socially controversial policy, individuals have varied and strongly held viewpoints. As a result, I fear that a jury, comprised of several death penalty opponents, would be much less likely to convict knowing a Sentencing Judge had a death penalty option following that jury’s finding of guilt. One can debate which is worse: finding an innocent man guilty or letting a guilty person be acquitted; suffice it to say both need to be minimized for the justice system to be just.

Moreover, I actually believe that in many instances, life in prison without any possibility of parole is actually a “stiffer” and therefore more appropriate sentence than sentencing a prisoner to death. A libertarian, facing the prospects of spending the rest of his natural life behind bars, might instinctively prefer to reduce the actual time liberty is to be denied.

Stephen Harper said last year he believes “there are times” when the death penalty is appropriate, but that he has no plans to bring the issue forward.

The Canadian Election Study included the death penalty among its various questions about public policy and found the following responses.

Favour 37.8%
Oppose 51.3%
It depends 5.8%
Don’t know 4.1%
Foreign justice

By Aaron Wherry - Friday, April 13, 2012 at 4:43 PM - 0 Comments

The Justice Minister’s decision to order the extradition of Hassan Diab is a source of concern. Meanwhile, interim Liberal leader Bob Rae has written to the governor of Montana to plead for clemency for Ronald Allen Smith.

Without excusing the brutality of the crimes committed by Mr. Smith or the severity of their impact on the families of his victims, his execution is still clearly unwarranted. It runs counter to basic principles of civil rights and fundamental justice, and offers no benefit to public safety. In writing you in this way I am standing by longstanding Canadian public policy and jurisprudence. The Canadian law is clear: the death penalty is tantamount to cruel and unusual punishment, and retribution alone does nothing to heal or rehabilitate communities.

In 2008, the Canadian House of Commons adopted a motion that the government should stand against the death penalty as a matter of principle, both in Canada and around the world, and I would reiterate the Liberal Party’s principled and unwavering support for that motion.
How to spin

By Aaron Wherry - Wednesday, February 8, 2012 at 10:00 AM - 0 Comments

Last week, the NDP criticized Conservative Senator Pierre-Hugues Boisvenu after Mr. Boisvenu suggested convicted murders be given rope and allowed to decide for themselves whether they wanted to live. Pat Martin referred to the Senator using a bad word.

On Monday, Conservative MP Greg Rickford rose before Question Period and reported those events to the House as follows.

The NDP wants to silence victims, urging a well-known victims’ advocate to stop speaking out about Canada’s justice system.

Mr. Martin has now apologized for his curse.
Boisvenu on convicted murderers: give them a rope

By Aaron Wherry - Wednesday, February 1, 2012 at 1:14 PM - 0 Comments

Senator Pierre-Hugues Boisvenu has some ideas on reducing prison expenses.

“Basically, every killer should (have) the right to his own rope in his cell. They can decide whether to live,” Sen. Pierre-Hugues Boisvenu told reporters Wednesday.

A victims’ rights advocate and now a senator, Boisvenu also says the death penalty should be considered in certain cases when there’s no hope of rehabilitation. He says limited use of capital punishment could save money. He cited the case of the Shafias — the Montrealers who were convicted this week of killing four female family members. Boisvenu estimates that it will cost Canadian taxpayers $10 million to keep them locked up.

In the case of the Shafias, Mr. Boisvenu apparently said “returning them to their country might be a tougher sentence than to keep them here, where our prisons are a lot more comfortable.”

Update 3:46pm. A statement (en francais) from Mr. Boisvenu. Continue…
Who supports the death penalty?

By Aaron Wherry - Wednesday, January 19, 2011 at 11:05 AM - 145 Comments

In his interview with the CBC, Mr. Harper acknowledged that he personally supports the death penalty in certain unspecified circumstances. In his support, the Prime Minister is conceivably joined by the Justice Minister, who voted in favour of the reintroduction of capital punishment in 1987.

When Ekos polled on the issue last March, it found that 40% of Canadians supported such reintroduction.

Data from 2000 suggests that opinions on this issue have remained relatively unchanged in 10 years. In June of 2000, 43 per cent disagreed with capital punishment while 44 per cent agreed with it. Those who support the reintroduction of capital punishment tend to be Conservative supporters (53 per cent), residents of Alberta (48 per cent), men (43 per cent), seniors (45 per cent), high school grads (48 per cent) and college grads (46 per cent).
Standing idle on foreign executions: yes we can

By Colby Cosh - Friday, October 15, 2010 at 7:44 AM - 0 Comments

Reasonable people can disagree over whether Canadian murderer Ronald Allen Smith ought to die by poison in the state of Montana’s execution chamber. But can we please get the facts about his situation straight? The Federal Court did not unconditionally order the Canadian government to resume lobbying Montana for clemency on behalf of Smith. It is a very clear matter of law that a court can’t set foreign policy: as Justice Barnes wrote, “Decisions involving pure policy or political choices in the nature of Crown prerogatives are generally not amenable to judicial review because their subject-matter is not suitable to judicial assessment.”

What a court can review is whether there has been procedural fairness in the application of a policy, including an international-relations policy, to an individual. Barnes found that the government seemed to have changed its standing policy concerning clemency advocacy with suspicious, unjustifiable casualness. Ministers had sketched or even improvised an apparent new stance in press interviews, and on the floor of the Commons, but there was no evidence of any actual legislative activity behind the scenes accompanying this—there were, for example, no written directives to the diplomatic corps outlining the “new policy”, and certainly no warnings made to Smith and his lawyers.

Smith, as a Canadian citizen, does not enjoy any inherent permanent right to Canadian government assistance with a clemency application, but he is entitled to the benefit of a written, objective government policy concerning his situation. The government didn’t give him that; the choice it was presented with by the Federal Court was to either resume clemency lobbying or to explicitly frame a new policy and apply it fairly. Canadian governments are still free to behave as they like concerning Canadians facing execution abroad, as long as their behaviour is consistent with some guideline. That guideline now exists, and it implies that the answer to a request for future help may well be “Sorry, no.”

The policy is not being applied retroactively to Smith, who is again receiving consular assistance. But we are no longer a formally “abolitionist” state when it comes to capital punishment abroad. If you care about this issue, or you just have an itch to head south and randomly slaughter a couple of Americans, it’s important for you to understand that judges can’t make the identity of the government irrelevant in this respect. A vote for the Conservatives really is a vote for Conservative foreign policy.
Front-row seat to an execution

By Stephanie Findlay - Thursday, August 26, 2010 at 10:40 AM - 0 Comments

Capital punishment in Japan it seems to be growing in popularity

Tomohiro Ohsumi/Bloomberg/Getty

While the death penalty is considered archaic in many countries, in Japan it seems to be growing in popularity. Last week, a poll revealed that 75.9 per cent of the public supports capital punishment.

The poll comes on the heels of two executions in late July, the first time the death penalty was used since the Democratic Party assumed power in September 2009.

Continue…
Reading Wolf Hall and the morning paper

By John Geddes - Saturday, July 10, 2010 at 11:26 AM - 0 Comments

I happened to stay up late last night to finish the Man Booker Prize-winning Wolf Hall, in which novelist Hilary Mantel imagines Thomas Cromwell, Henry VIII’s often vilified chief minister, as a wily humanist who ushers England toward modern government. This being a story of 16^th-century statecraft, torture and executions feature prominently. More than once the question of whether the king might show sufficient mercy to have someone’s head cut off, rather than burning them alive, arises.

I woke up this morning to read, on the front page of the paper, that the Iranian government has bowed to international pressure and is reviewing a sentence of death by stoning, handed down by one of its courts against a 43-year-old woman, Sakineh Mohammadi Ashtiani, convicted of adultery. The fear now is that Iran might hang her instead. It would have been comforting to pretend that the grislier concerns of Cromwell’s time were not still so precisely present in our own.

Continue…
On truth in $enten¢ing

By Colby Cosh - Thursday, June 24, 2010 at 4:11 AM - 97 Comments

The debate over the net costs of the government’s Truth in Sentencing bill is of the kind that makes me want to throw up my hands and whine “Aw, I don’t knowwwww…”. On the one hand, the Parliamentary Budget Office has presented an estimate of the costs that makes the bill seem demented. Kevin Page’s numbers don’t factor in the benefits of any potential deterrence effect; they admittedly rely, at many points, on wild assumptions; and they were assembled with the help of a lot of the sort of “independent” expert who sees prisons as inherently barbarous and would happily blow them all up if someone presented them with a big red button that would do it instantly. But as Page himself has pointed out, this is a fight between questionable evidence and no evidence. The government hasn’t really shown any good-faith sign of a serious effort to cost out the elimination of two-for-one credit for time in remand.

Penology, by and large, isn’t treated as a fundamental political issue in this country at all. We have a series of arguments over specific proposals; we don’t have explicit contending ideologies. Yet it’s discernible, surely, that those ideologies exist.

What we have, I think, is a group of citizens who believe that penology contains no moral component whatsoever. They are, or the most logical ones are, pure utilitarians who believe that punishment has no inherent place in a justice system. If we had a pill for perfect deterrence, one that could eliminate criminal tendencies with 100% effectiveness and no ill effects or pain, they would argue that the ethical thing to do would be to give it to all convicts, even serial murderers and child rapists, and turn them loose to reintegrate with society, preferably with their identities protected. And on the other side, we have the moralists, people who do believe in punishment even where it has no necessary utilitarian or deterrent value at all. They believe that the function of a criminal justice system is to provide justice, in the schoolyard, eye-for-an-eye sense of the term. These people would want prisons, and perhaps other miserable and dire punishments, even if we had a deterrence pill.

The camps don’t challenge each other ideologically very often. It goes unstated that the overwhelming majority of those who actually administer criminal sentencing don’t really believe in punishment—this is fairly obvious, for example, from their shiny-happy trade literature. And it goes unstated that people like Vic Toews are, in a sense, beyond evidentiary arguments like Page’s. Toews is pursuing “truth in sentencing” and applying the statutes of the land, which are based on an idea of punishment favoured by much of the citizenry (and by the framers and re-framers of our Criminal Code) but by few among the bureaucracy or the polite social elite. Toews’ bill may be stupid or insane, but his basic claim to be pursing an abandoned or betrayed “truth” is serious, and it is even half-supported by some critics, who agree that two-for-one remand credit is a substantially unlawful kludge.

I suppose a law-and-order conservative, somebody who has a moralist ideology when it comes to crime and punishment, can’t very well complain about the inspired passion for austerity displayed by critics of Truth in Sentencing. But when the Globe picked up its unsigned-editorial stick and gave Toews a broadly justified hiding with it on Wednesday, I wondered about the lede:

It is unfathomable that the Canadian government would be preparing to more than double annual spending on the country’s jails at a time when almost all other government departments are being held in check, or cut. Never mind deficit reduction. Never mind health care or education. Never mind the environment. Only one thing matters: to be seen as tough on crime.

When Canadian justice went on a liberalization binge between about 1965 and 1985, nobody thought it was necessary to provide an accurate accounting of every penny of the cost of the new measures. And while we’re on the subject, Page’s report notes, in passing, that the cost per individual federal inmate in our corrections system grew by about 50% in nominal dollars between 2001 and 2009. Where were the complaints about this extravagance, the demands that we be shown where the money was going? I must say it is funny how every newspaper columnist suddenly masters the Generally Accepted Accounting Principles as soon as a Conservative government wants to “be seen as tough on crime”.

(And, frankly, I’m not sure why the “seen as” is in that sentence, since Truth in Sentencing really would lengthen criminal sentences for virtually everybody that is held in pre-trial custody and eventually convicted. Can it be argued that this is not genuine toughness on crime?)

Anti-moralist utilitarians betray their own cause when they fail to count the social costs or benefits of a change to criminal justice. Surely, according to either ideology, formal line items in the federal budget should really be marginal considerations compared to whether the measures in question lead to a safer society and less fear. For the moralists, of course, the bar is even higher: the measures must also be just in themselves. The utilitarians, for their part, have a pretty strong case that we need not consider morality or Old Testament-y justice at all.* (This is basically how the emergent field of law-and-economics approaches criminal justice.)

*But then again, you can’t be a half-utilitarian: it’s not fair to fake it because you’re concealing a specious, one-sided romantic concern for the welfare of criminals. If you are going to scream for efficient deterrence as the ultimate penological standard and insist on evidence, you must be prepared to be held to the judgment of the evidence even where it supports apparently unjust or objectionable procedures.

(In the U.S., for example, I would say a consensus is forming around the proposition that capital punishment might save a large, even double-digit number of potential murder victims for each execution; but there have, on statistical grounds, just not been enough executions since Gregg v. Georgia to warrant much confidence in the relevant interstate comparisons. In other words, the jury is still out until the sample grows. So what if the large deterrent effect is upheld over time? Will reality-based liberals in Canada circa 2060 A.D. acknowledge their forebears’ mistake and bring back the noose?)
'I would like the firing squad please. There are no mistakes.'

By Rachel Mendleson - Saturday, June 12, 2010 at 10:00 AM - 26 Comments

A condemned man chose death by bullets rather than lethal injection—and he’s not alone

Francisco Kjolseth/AP

Update: Ronnie Lee Gardner’s execution went ahead and he was pronounced dead at 12:17 a.m. on June, 18 after being shot by a firing squad.

Just before midnight on June 17, barring any successful last-minute appeal, convicted murderer Ronnie Lee Gardner will be strapped to a chair in the special execution chamber in Utah’s state prison. A black hood will be placed over his head; a white target pinned above his heart. At 12:01 a.m., five anonymous sharpshooters will cock their .30 calibre rifles, and open fire.

The execution, if it goes ahead, will be the third by firing squad in the U.S. (and Utah) in more than 40 years. And it will have been Gardner’s choice.

Continue…
Philosophical question of the day

By Aaron Wherry - Friday, September 11, 2009 at 4:49 PM - 22 Comments

Colby Cosh, writing a few weeks ago about the government’s shift on clemency policy.

The Conservative policy, in a nutshell, is that Canada no longer executes people, or participates in executions by means of extradition, but that the right of other countries to punish serious crimes on their soil in such a manner will be respected, if the punishment is imposed according to the rule of law and norms of due process. This respect is no more than we ask for ourselves when we try a foreign national here … it is plain that a trial can be substantially fair and still result in an execution; that it is better for a country to kill a few murderers fairly than it is to imprison people unjustly, or permit lynching; and that the U.S. justice system is, on the whole, vastly superior to those of Turkmenistan or Nepal — where capital punishment has been abolished — and closer in spirit to our own. Note that even though DNA has been sequenceable for decades now, capital punishment opponents in the U.S. still have not found their smoking gun: the name of a single American individual who, in modern times, is certain to have been wrongly executed.

On that count, then, what bearing should the case of Cameron Todd Willingham have on the government’s position?
Is it possible to both condemn and condone?

By Aaron Wherry - Friday, July 24, 2009 at 4:45 PM - 6 Comments

Canwest’s Randy Boswell looks at the government’s policy on capital punishment abroad, specifically now its response to a United Nations review panel’s recommendation that Canada reconsider its qualified support for clemency. From Canada’s response.

Canada does not accept recommendation 30. The Government of Canada continues to consider whether to seek clemency for Canadians facing the death penalty abroad as these cases arise. Canadian citizens detained abroad continue to receive consular assistance.

According to a previous Canwest report, Rob Nicholson, now the Justice Minister, was among those MPs who voted for the reintroduction of the death penalty in 1987. The vote failed by a count of 148-127.

During debate in the House last year, Nicholson’s parliamentary secretary, Rob Moore, referenced that vote as so. Continue…
The judicial branch

By Aaron Wherry - Wednesday, April 29, 2009 at 12:15 AM - 3 Comments

First, Robert Allen Smith. Then, Omar Khadr. Now, the Military Police Complaints Commission.

And coming soon, In-and-Out.
The children, our future

By Aaron Wherry - Wednesday, March 18, 2009 at 8:13 PM - 10 Comments

Welcome to our Canada’s Next Great Prime Minister liveblog. Just like being there. Even if we’re not. And the show was actually taped last month.

7:51pm. Catching the last ten minutes of Jeopardy. Accepting that there’s something to be said for the CBC not spending its precious public dollars on American programming, surely there’s an exception to be made for Jeopardy, a show that screens for knowledge and lucratively rewards nothing more than intelligence and a quick thumb reflex. All things considered, it’s altogether remarkable that it’s still on television. There’s nothing remotely like it on network television. It and Fareed Zakaria’s GPS are the only things still separating us from the apes.

7:56pm. In the CNGPM promo they keep showing, Paul Martin observes that Canadians are looking for leadership but just aren’t seeing it. Not that that he’s had anything to do with that.

7:58pm. What is pop? No, gospel. Elvis won all his Grammys in the gospel category. Interesting. Continue…
Says him anyway

By Aaron Wherry - Thursday, March 5, 2009 at 12:25 PM - 5 Comments

Federal judge Robert Barnes rebukes the government’s policy toward Canadians facing the death penalty in other countries.

“Government policy cannot be created by a process as amorphous and unaccountable as the one followed here.”