8 more death sentences in Xinjiang

Three more death sentences were announced today in the July 5, 2009 Urumqi riots. Two have Muslim names and one a Han name, according to China Daily's account today. Earlier this week five death sentences were announced but the press account (like today's) does not specify if any were with a two year reprieve - which usually converts to life in prison. On November 10 nine were executed, after Supreme People's Court review, for their part in the riots which left nearly 200 dead, says China Daily.

China Daily reports that on November 5 internet service was restored in Xinjiang.

Image: China Daily - President Hu Jintao visiting the region in August 2009

China: Executions in Contaminated milk cases

A year ago I was about to leave for China - to bring word of New Jersey's repeal of the death penalty (the stars had lined up for Jon Corzine and pro-repeal legislative leaders in December 2007). I was eager to spread the gospel of New Jersey as a Herald of Change.

Student audiences, academics, and prosecutors generally embraced a gradualist approach. They were encouraged by the Supreme People's Court's 2005 statement of policy "kill fewer, kill carefully", and the commitment of the SPC to review all death sentences. Reductions had already been accomplished the government reported - 30% by one estimate (though the PRC's secrecy is such that we don't know 30% of what number).

The people, we were told, demand the the death penalty. Probably true. You could get a pro-death penalty vote in New Jersey if you asked about the planners of 9/11. The mass killings of 197 in riots in Xinjiang - mostly Uighur against Han, it appears, have led to a dozen death sentences - carefully balanced to include wrongdoers on both sides of the ethnic divide. Here and Here - verdicts with which China Daily declared no one could argue.

Now comes news of two executions in the SanLu contaminated milk scandal. In that scandalous episode 6 children died and 300,000 were sickened by defective products of a major infant formula company. According to the NY Times account:

"The authorities described the two men who were executed, Zhang Yujun and Geng Jinping, as among the biggest culprits of the scandal. Mr. Zhang was found guilty of selling more than 1.3 million pounds of tainted milk powder from July 2007 to August 2008, and Mr. Geng was convicted of selling more than 1.9 million pounds of contaminated product.

Nineteen others were tried and sentenced in January for their roles in the scheme. Fifteen of them were imprisoned for terms of 2 to 15 years. One received a suspended death sentence, and three received life sentences."

The Chinese courts seem to be using rules of thumb: the most egregious offenders get the most severe punishment, and the scale slides down. This has a surface appearance of fairness. Defense attorneys in capital cases will doubtless recognize the futility of a direct assault and will have to focus on the arbitrariness of the imposition of death sentences. For example - in the SanLu cases "substantial certainty" that someone will die sufficed. In the Xinjiang cases some killers were executed and others spared.

The guidelinesissued by the Supreme People's Court in drug cases make distinctions based on quantity, whether children were involved, etc. But looking across the range a coherent pattern does not emerge: some who personally killed are spared; others who risked grave or fatal harm to others are not. Such divisions may be ground which Chinese capital defense lawyers can till. - GWC

Narcissistic Moment

I am grateful to Justice Thomas G. Saylor of the Pennsylvania Supreme Court, who, dissenting a few months ago, in a welcome footnote, plucked from obscurity a line of mine that I like, but that no other writer had ever cited. Here it is:

Dean Wade's reluctance to put a full panoply of risk-utility factors before lay jurors may well be justified, but the reality is that, in design cases, jurors will be charged with the duty to make an informed evaluation concerning design reasonableness, and the trial courts will be responsible to provide the jurors sufficient guidance to accomplish this task. Cf. George W. Conk, Compared to What? Instructing the Jury on Product Defect under the Products Liability Act and the Restatement (Third) of Torts, 30 SETON HALL L. REV. 273, 277 (1999):

"The quality of decisions will be better served if jury instructions invite the presentation of evidence and spur arguments that evoke the full vibrancy of the moment of design for the jury (and the court it assists). The clamor of the competing considerations in the good and prudent designer's mind should be heard in the courtroom and in the jury room.".

Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228, 1248 (Pa. 2009)

Images: Justice Saylor, me

One year to the Mid-Term Elections

It is time to look forward to the mid-term elections. My first was 1982 (before that I was too much the anti-war activist to be involved in electoral politics). I was on Bob Torricelli's issues committee. Unemployment was surging and in working class south Bergen County all we really had to say (and did on thousands of leaflets) was "If you don't vote Democratic they won't get the message". They did and it was a good year for Democrats.

The problem for Democrats now is unnervingly familiar. As a lawyer I remember most fondly my occasional smashing victories. But the reality is that most of the time we were building toward the best available compromise. It was always a hard sell. Politics is that art.

The gap between the message of `Yes we can!' HOPE and the slow slog of Obama's centrism and the persistence of high unemployment feeds skepticism about politics; and anti-tax sentiment (`I need cash') moves back toward ascendancy.

The danger of the current moment for progressives is this: the party in the White House and the majority in Congress ALWAYS loses strength in mid-term elections. 60 votes in the Senate are not really there (making Lieberman and the Blue Dogs king makers). With the bitter pill of compromise on the table progressives will be less motivated. The Right - buoyed by the inevitable loss of air in the 2008 election balloon - will be motivated because their oppositionist stance has freed them from the need to compromise. They can run totally negative, as the infelicitous Chris Christie showed in his New Jersey victory over the competent but hamstrung Jon Corzine.

So I come out for more boldness on the part of the President and the Democratic Party. The success of his Presidency depends on it. And requires a focus on things that can be felt sooner rather than later. For that I turn it over to Paul Starr, the groundbreaking author of The Social Transformation of American Medicine.

The founder and Co-Editor of the American Prospect concludes his December column Faster Please:

According to research by the political scientist Larry Bartels, presidents running for re-election have benefited when economic growth occurred late in their terms rather than at the start.

Democrats running in 2010 have no such consolation, however, and if they lose effective control of Congress, much of the promise of Obama’s presidency may be lost too. A little presidential impatience now would be a good stimulus in itself.

China: Third Tort Law Draft Published for Comment

The National People's Congress has published and is now accepting public comments on the draft tort law - a chapter in China's Civil Code. This, the third official discussion draft, will soon be taken up by the NPC. It is a statement of basic parameters - not an operational statute like the State Compensation Law or the Product Quality Laws.

The new draft can be found HERE (in Chinese). Comments on Greenlawblog are HERE.

My translation, with Wang Zhu, of the second draft was prepared for the ALI-Renmin University conference in July 2009. It is available on SSRN: Tort Liability Law of the People's Republic of China (2d official discussion draft December 21, 2008), as is my translation of the first draft and introductory essay, which appeared in the Fordham International Law Journal:

A New Tort Code Emerges in China: An Introduction to the Discussion and a Translation of Chapter 8 - Tort Law of the Official Discussion Draft of the Proposed Revised Civil Code.

MRGO: Judge finds Army Corps of Engineers at fault

In a federal tort claims act case U.S. District Judge Stanwood Duval has found the United States liable for the Army's failure to properly maintain the navigation canal known as the Mississippi River Gulf Outlet, contributing to the flooding of New Orleans when Hurricane Katrina struck:

It is the Court's opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness. ... The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so. Clearly the expression "talk is cheap" applies here.

A news account on the Jurist site and link to the opinion can be found HERE.

Fordham Law Review: Overcoming Barriers to Immigrant Representation

America is torn between the Statue of Liberty - the icon of welcoming the immigrant - and the immigration raid, between "give me your tired and your poor" and the demand that "illegal immigrants" be barred from federally assisted health care.

A dramatic legal expression of the contradiction is the statute which recognizes a right to counsel for those facing deportation but requires that it be "at no expense to the Government". 8 U.S.C. 1362

R.P.C. 6.1 says that "every lawyer has a professional responsibility to render public interest legal service." The current issue of the Fordham Law Review explores, in the words of 2d Circuit Judge Robert A. Katzmann, "deepening the profession's commitment to the immigrant poor".

FORDHAM LAW REVIEW

Vol. 78 November 2009 No. 2 LECTURE THE ROBERT L. LEVINE DISTINGUISHED LECTURE OVERCOMING BARRIERS TO IMMIGRANT REPRESENTATION: EXPLORING SOLUTIONS DEEPENING THE LEGAL PROFESSION’S PRO BONO COMMITMENT TO THE IMMIGRANT POOR Hon. Robert A. Katzmann REPORT OF SUBCOMMITTEE 1: INCREASING PRO BONO ACTIVITY THE REPRESENTATIONAL AND COUNSELING NEEDS OF THE IMMIGRANT POOR Jennifer L. Colyer, Sarah French Russell, Robert E. Juceam & Lewis J. Liman REPORTS OF SUBCOMMITTEE 2: ENHANCING MECHANISMS FOR SERVICE DELIVERY INTRODUCTION Claudia Slovinsky THE IMMIGRATION REPRESENTATION PROJECT: MEETING THE CRITICAL NEEDS OF LOW-WAGE AND INDIGENT NEW YORKERS FACING REMOVAL Jojo Annobil BARRIERS TO REPRESENTATION FOR DETAINED IMMIGRANTS FACING DEPORTATION: VARICK STREET DETENTION FACILITY, A CASE STUDY Peter L. Markowitz REPORT OF SUBCOMMITTEE 3: ADDRESSING INADEQUATE REPRESENTATION