"err on the side of life"

Would it cost money to always “err on the side of life”? Cut medicaid?

Would it require making defense lawyers in capital cases stay awake – contra one of Bush43’s favorite judges. Patricia Owens – to “err on the side of life”?

Would appointing someone who is stridently against humanitarian intervention (3 million dead in Congo) to the UN ambassadorship be "erring on the side of life"?

How about writing memos on death-penalty cases?

http://writ.news.findlaw.com/dean/20030620.html

Berlow's Assessment of the Memos: No Consideration of Crucial Issues

"During Bush's six years as governor 150 men and two women were executed in Texas," Berlow reports in the Atlantic, "a record unmatched by any other governor in modern American history."

From 1995 to 1997, Gonzales acted as his legal counsel when the then-Governor decided whether to grant clemency, or to allow the executions to go forward. What kind of counsel did Gonzales provide? According to Berlow, he "repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence."

Berlow writes that the memos reflect "an extraordinarily narrow notion of clemency." They appear to have excluded, for instance, factors such as "mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, the competence of the legal defense, or disparities in sentences between co-defendants or among defendants convicted of similar crimes."

Take the case of Terry Washington, a thirty-three-year-old mentally retarded man with the communications skills of a seven-year-old executed in 1997. Gonzales's clemency memo, according to Berlow, did not even mention his mental retardation, or his lawyer's failure to call, at trial, for the testimony of a mental health expert on this issue. Nor did it mention that the jury never heard about Washington's history of child abuse; he was one of ten children, all of whom "were regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts."

Execution of the mentally retarded was already under a shadow at that point - a shadow has only deepened over the ensuing years. In 2002, in Atkins v. Virginia, a majority of the Supreme Court held - too late for Washington - that executing the mentally retarded is "cruel and unusual" punishment prohibited by the Eighth Amendment.

And plainly, Washington's counsel had been ineffective: his strongest argument was never pressed. (Similarly, with respect to death row inmate Carl Johnson, "Gonzales failed to mention that Johnson's trial lawyer had literally slept through major portions of the jury selection.")

For these reasons, Gonzales' silence about Terry Washington's retardation is both inexplicable and stunning.

But according to Berlow, Gonzales went even further: "I have found no evidence that Gonzales ever sent Bush a clemency petition - or any document," Berlow writes, "that summarized in a concise and coherent fashion a condemned defendant's best argument against execution in a case involving serious questions of innocence...." This suggest that even the crucial issue of guilt versus innocence was frequently ignored.

What did Gonzales's memos include, then? They focused heavily on repeating the purported gruesome details of the crime. By doing so, they no doubt made it easier for the governor to feel he was doing the right thing by denying clemency.

Gonzales claimed to Berlow that his execution briefings had always provided Bush a "detailed factual background of what happened," along with "other outstanding facts or unusual issues." Berlow's review of the memos themselves, however, belied that claim.

A Possible Conflict with Bush's Own Account of His Clemency Review Procedures

In his 2000 campaign autobiography, A Charge To Keep, Bush refers to these "numerous" death penalty cases and says: "Each case [was] major, because each case [was] life or death."

Bush claims that he "review[ed] every death penalty case thoroughly," meeting with his legal counsel on the morning of every execution. And according to Bush, "In every case, I would ask: Is there any doubt about this individual's guilt or innocence? And have the courts had ample opportunity to review all the legal issues in this case?"

These two fundamental questions were apparently the only ones on which Bush focused. His record indicates, for instance, that he did not see his role as one of mercy, the traditional reason for clemency. Accordingly, he refused to grant clemency to born-again Christian Karla Faye Tucker, despite the pleas of death penalty supporters Pat Robertson and Jerry Falwell.)

Troublingly, the two fundamental questions upon which Bush says he exclusively focused, were also the very questions that, according to Berlow, Gonzales routinely declined to address in his memos to Bush.

How can this discrepancy be explained? It seems unlikely that Gonzales advised Bush only orally, and not on paper, as to these factors. The level of factual detail in each case, and the sheer number of cases considered, would have made a tradition of purely oral briefings impracticable.

It also seems unlikely that Gonzales failed in his duty to address Bush's questions - if so, why didn't Bush advise him that his memos were subpar and ask for more detail next time?

It's hard to reach any conclusion, after reading Berlow's account of the memos, except the obvious one: Bush considered only the narrow factors included in the memos, and not the two more expansive questions he claims in his autobiography to have raised. And in fact, the Texas clemency proceedings under Bush were even worse than previously believed.

Long before Berlow's article, Amnesty International had concluded that the "jurisdiction that executes more people than any other in the Western world, Texas has turned the final safeguard of executive clemency into nothing more than an empty gesture."

Indeed, by 1999, Amnesty judged that "the Texas clemency process violates minimum human rights safeguards, by failing to ... comply with reasonable concepts of fairness and provide [] protection against arbitrary decision-making by the court." The Gonzales clemency memos establish that, in fact, it was even worse than Amnesty knew.

Gonzales's Views Won't Trouble Bush, But Their Exposure May

Gonzales's apparent death penalty views are unlikely to stop Bush from nominating him to the U.S. Supreme Court. After all, Bush is already well aware of them, from his years in Texas. And he has said that Justices Antonin Scalia and Clarence Thomas are his High Court role models, and they hold similar views to those Gonzales expressed in his memos about what factors should, and should not, impede an execution.

Scalia wrote a stinging dissent in Atkins, and Thomas joined him. Both believe the Constitution allows executions of the mentally retarded.

And neither Justice is particularly concerned about ineffective assistance of counsel. For instance, in a 2000 ruling, both joined Chief Justice Rehnquist's dissent in Williams v. Taylor - in which the Chief Justice said, in essence, that the defendant looked like a bad guy to him, so regardless of whether he had good or bad legal representation, Virginia should go ahead and execute him.

However, the public exposure of Gonzales's views may play a role in convincing Bush to choose another nominee. George H.W. Bush seemed to prefer nominees without a paper trail, such as David Souter, and his son has already offered up one paper-free nominee, Miguel Estrada. for the U.S. Court of Appeals for the D.C. Circuit.

On the other hand, such a strongly pro-death penalty nominee might only bring Bush accolades from the public.

In May 2003, the Gallup organization reported that in all the years it has been polling the nation on the issues - since the 1930s - never has there been more support for the death penalty. Today a staggering seventy-seven percent of the nation is in favor.

Most shockingly, Americans still support the death penalty in large numbers despite an awareness that innocent people are executed. Gallup's most recent polls also find that seventy-three percent of Americans "believe an innocent person has been executed under the death penalty in the last five years."

Though "Liberals (84%) and Democrats (79%) are more likely than conservatives (64%) and Republicans (63%) to believe innocent people have been executed in the last five years," across the board this belief is strong. Yet support for the death penalty prevails.

In another country, Gonzales's paper trail might haunt him. (112 of the world's 195 countries have abolished the death penalty, either as a matter of law or of practice.) In this country, it may well put him on the Supreme Court.

A Thin View of 'Life'

By E. J. Dionne Jr.

Friday, March 25, 2005; Page A19

FORT MYERS, Fla. -- What does it mean to be pro-life?

The label is thrown around in American politics so blithely that you'd imagine it refers to some workaday issue such as a tax bill or a trade agreement. Might the one good thing to come out of the rancid politics surrounding the Terri Schiavo case be a serious discussion of the meaning of that term?

To begin with, why did Congress feel an obligation to turn Schiavo's tragedy into a federal case? President Bush's answer was compelling: "In a case such as this, the legislative branch, the executive branch ought to err on the side of life."

You don't have to be a religious conservative to agree with that or to worry about prematurely allowing someone to die. But what, exactly, does "a case such as this" mean? Does it refer to one that received widespread publicity and became a major national cause for the right-to-life movement? Does it refer to one in which the parents and the spouse disagree?

There are countless decisions made every week when a family member removes someone they love from life support. Just over a week ago, a 5 1/2-month-old baby named Sun Hudson died after doctors at Texas Children's Hospital removed the breathing tube that had kept him alive. It was removed over his mother's opposition under the provisions of the 1999 Texas Advance Directives Act signed by then-Gov. George W. Bush.

Democrats such as Rep. Debbie Wasserman Schultz of Florida have been arguing that Bush's decision to sign the bill aimed at protecting Schiavo's life is inconsistent with his earlier decision to sign a law designed to rationalize the way end-of-life decisions are made.

But leave that aside and just ask why Schiavo's case was a national cause and Sun Hudson's wasn't. I am sure there are medical and moral distinctions to be made, but honestly: How many bills would Congress have to pass to ensure that in every close medical call around the country, we "err on the side of life"? How many courts would have to be involved? That's why it's not surprising the Supreme Court decided yesterday to stay out of this controversy.

Whether or not signing that Texas bill puts the 1999 Bush at odds with the 2005 Bush, the act of approving it was an acknowledgment that end-of-life issues in an age of advanced medical technology must be confronted, however wrenching they are. Facing up to those questions and drawing distinctions is especially important for those -- and I'm one of them -- who oppose doctor-assisted suicide.

How has Terri Schiavo's care been financed? The available information suggests that some of the money came from one of those much-derided medical malpractice lawsuits and that the drugs she needs have been paid for by Medicaid.

The irony has not been lost on Democrats. Just a few days after most Republicans in both houses of Congress had supported cuts in federal funding of Medicaid, here they were erring "on the side of life" in a single case. The same issue has come up here in Florida, where Gov. Jeb Bush, a strong supporter of keeping Schiavo alive, has been proposing cuts in Medicaid spending.

Republicans cry foul when any link is made between the Schiavo question and the Medicaid question. "The fact that they're tying a life issue to the budget process shows just how disconnected Democrats are to reality," harrumphed Dan Allen, a spokesman for House Majority Leader Tom DeLay.

Forgive me, Mr. Allen, I know you're just doing your job, but what's disconnected from reality is refusing to accept the idea that health care is about life issues and money issues.

People who lack access to health care because they can't afford insurance often die earlier than they have to -- with absolutely no national publicity and with no members of Congress rising up at midnight to pass bills on their behalf. What is the point of standing up for life in an individual case but not confronting the cost of choosing life for all who are threatened within the health care system or by their lack of access to it?

What does it mean to be pro-life? As far as I can tell, most of those who would keep Schiavo alive favor the death penalty. Most favored allowing the assault weapons ban to expire and oppose other forms of gun control. The president makes an excellent point when he says we "ought to err on the side of life." It's a shame how rarely that principle is put into practice.