Sunday, November 21, 2010

Why do non-southerners still hold such a dim view of the South?

Three words: Hank. Williams. Junior.

There's so much to take apart in this piece of excrement.  But just for one, is he really suggesting that Texas would have a more draconian justice system than it currently has if it were not (nominally) part of the United States?


Andrew Oh-Willeke said...

I have no doubt whatsoever that habeas corpus in the South would not exist for people incarcerated pursuant to a criminal conviction (something that is mostly a Warren Court development, i.e. of the last forty years). This would speed up the time from conviction to execution to something on the order of one to two years, during a direct appeal from the conviction. Nationally, the average time from conviction to execution is eight to ten years. Most political support from narrowing the habeas corpus remedy has come from the South, and most the time associated with delay from conviction to execution comes from two layers of habeas corpus review (first in the state courts and then in federal courts) following a direct appeal review.

The Southern states would also probably have retained the death penalty for some subset of aggravated rape cases (something that ended only by U.S. Supreme Court fiat in the 1970s and which state legislatures actively pursued reinstating until smacked down a second time in the last year or two), and would not have per se prohibitions of the executions of juveniles and the mentally retarded (both of which exist as a result of U.S. Supreme Court rulings in the last decade).

Similarly most of the other Warren Court constitutional criminal justice rulings (e.g. Miranda, the exclusionary rule, and Gideon) would not be incorporated into Confederate criminal justice. Thus, significantly more confessions would be admissible even if coerced to a point short of torture, physical evidence obtained without a warrant or probable cause would be admissible in criminal trials, and there would be no constitutional right to counsel for indigent individuals in criminal cases although there would probably be a provision for ill paid counsel in some subset of very serious criminal cases by statute. It would also probably be harder to prevail in civil lawsuits against law enforcement officers for civil rights violations both substantively and procedurally.

Further, the constitutional provisions prohibiting racial bias in jury selection in our existing jurisprudence would not exist in the South.

On the other hand, due process protections in criminal justice in the North would probably be greater than they are now, and the death penalty would probably be used more narrowly in the North (e.g. it probably wouldn't be allowed in felony-murder cases for someone who participated in the felony but not the murder). said...

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