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Many years later, as he faced the firing squad, Colonel Aureliano Buendía was to remember that distant afternoon when his father took him to discover ice. — Gabriel García Márquez

Firing squads feel like a relic, reserved for nations with histories pockmarked by military juntas. But death by firing squad is still kicking around within the United States where Oklahoma still deploys the punishment, while Utah still has a few more prisoners to execute before its ban on the punishment ends the practice there. And now the Trump Justice Department is racing in its final weeks to approve a new rule that would give federal authorities access to firing squads as a means of execution.

Most media outlets reported this over the holiday with deliberately shock-inducing headlines. That the administration is pursuing this rule on a fast-track and curtailing the usual comment period only added to the alarm. Is Trump making a final push to align his regime with the tinpot dictators of the past who would line the original “#resistance” up against a brick wall with a blindfold and a cigarette? After failing to make the trains run on time, the reasoning goes, this could be Trump offering to do the very least he can to enshrine his admiration for anti-democratic forces in the Federal Register.

But… maybe this isn’t actually a terrible idea?

Firing squads are symbolic of brutality in an American imagination that sees lethal injections as the “nice” way for the state to kill people. But folks are increasingly waking up to the reality that the cheap drugs that governments use in lethal injections result in horrifically cruel ordeals for the prisoner and have resulted in botched executions where the condemned struggles in wordless agony for an eternity as executioners scramble to figure out how they screwed up.

In an opinion dissenting from the denial of cert, Justice Sotomayor expressed willingness to hear from a prisoner who wished to avoid lethal injection in favor of firing squad. At the time, she noted that, based on the evidence, firing squads sounded like a superior method of execution:

As an alternative to death by midazolam, Thomas Arthur has proposed death by firing squad. Some might find this choice regressive, but the available evidence suggests “that a competently performed shooting may cause nearly instant death.” Denno, Is Electrocution An Unconstitutional Method of Execution? The Engineering of Death Over the Century, 35 Wm. & Mary L. Rev. 551, 688 (1994). In addition to being near instant, death by shooting may also be comparatively painless. See Banner, supra, at 203. And historically, the firing squad has yielded significantly fewer botched executions. See A. Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, App. A, p. 177 (2014) (calculating that while 7.12% of the 1,054 executions by lethal injection between 1900 and 2010 were “botched,” none of the 34 executions by firing squad had been).

Not that the Bill Barr Justice Department is acting with the pure intention of realizing Justice Sotomayor’s vision of the Eighth Amendment here. Lethal injection drugs are growing scarce as manufacturers, to borrow from Justice Blackmon, wish to “no longer shall tinker with the machinery of death.” The proposed rule seeks to bring back the electric chair too. The new rule is less an effort to bring a modicum of humanity to the death penalty than an effort to award the federal government with a grab bag of cost-effective mechanisms for state-sponsored killing. “Drugs gotten too expense? Have you considered the Iron Maiden?”

But even though the intentions behind this rule are garbage and the fact that the Biden administration’s seeming commitment to avoid pursuing death sentences altogether may render this rule moot — at least for four years — America needs to have a serious talk about why it viscerally recoils from the method of execution that’s more reliable and instantaneous in favor of ones that, well, aren’t.

Perhaps it’s just that the optics appear too fascist for American sensibilities. That could be an encouraging statement about the state of the country’s democratic institutions and it’s nice to look at glasses as half-full. But in the grand scheme of things, if the hangup is that the imagery of the state aiming rifles is materially worse than the state standing behind a one-way mirror, it’s possible that those institutions may already be wearing a bit thin.

Trump Races to Weaken Environmental and Worker Protections, and Implement Other Last-Minute Policies, Before Jan. 20 [Pro Publica]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

This weekend was packed with sports action. On top of the football docket, Mike Tyson returned to the ring 15 years after his last fight. Charles Barkley and Phil Mickelson defeated Peyton Manning and Stephen Curry in “The Match,” a charity golf outing.

And that wasn’t the only golf news on tap. On Friday, the PGA Tour struck a landmark strategic alliance with the European Tour.

Quick Regroup For The Non-Golfers

The PGA Tour is the premier global golf organization. It’s got the biggest tournaments, heftiest purses and attracts the top golf talent from around the world:

We hope you had a happy Thanksgiving. While associates at some Biglaw firms were enjoying their socially distanced feasts, they had something to be extra thankful for: up to six figures of bonus bucks soon to be deposited into their accounts.

One of the firms that made associates happy is Proskauer Rose, which recently came in at No. 41 in the Am Law 100 rankings, having raked in $1,004,942,000 gross revenue in 2019. On the day before the holiday, the firm announced that it would be matching the prevailing market bonuses (i.e., the Baker McKenzie year-end bonuses that were later adopted by Cravath, plus the Davis Polk special bonuses that were also adopted by Cravath).

Here’s what Proskauer’s 2020 bonus scale looks like:

Not everyone will be receiving these bonuses, though. The file name on the firm’s PDF is “2020 Bonus – BN,CH,LA,NY,DC.” Associates working at the firm’s Boston, Chicago, Los Angeles, New York, and D.C. offices will get the full scale bonuses, while those in the New Orleans and Boca Raton offices will receive bonuses on reduced scales. Bonuses for associates beyond the class of 2012 will be individualized.

All bonuses will be paid out to associates on December 22. Congratulations!

(Flip to the next page to see the full Proskauer bonus memo.)

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

* A new lawsuit alleges that a beer manufacturer falsely claimed its brew was made in Mexico instead of Holland. Would be amazing if free beer is part of any settlement… [Fox Business]

* Carter Page has filed a lawsuit against the FBI and others for allegedly illicit surveillance during the Russia investigation. [USA Today]

* The legal challenges facing the Attorney General of Texas may impede the state’s antitrust claims against Google. [Wall Street Journal]

* A man sought in the slaying of an Illinois lawyer is on the FBI’s Most Wanted List. [Fox News]

* Since Above the Law hasn’t had a “Lawyerly Lairs” feature in a while, wanted to share that a top Las Vegas attorney has placed his multimillion-dollar mansion on the market. [Review-Journal]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

The Zimbabwe Independent Complaints Commission Bill

Section 210 of the Constitution states:

“An Act of Parliament must provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

In 2015 Veritas applied to the Constitutional Court for an order calling on the Government to enact legislation implementing section 210.  On the 23rd September this year the Constitutional Court finally gave judgment in the case, giving the Government 45 days in which to gazette the requisite Bill.  The Government did not meet that deadline, but on Tuesday it published the Zimbabwe Independent Complaints Commission Bill in the Gazette.

In this Bill Watch we shall outline the provisions of the Bill, which can be accessed on the Veritas website [link].

Scope of Bill

The Bill will establish a commission to investigate complaints of misconduct on the part of members of the security services and to provide remedies for such misconduct.  The extent of the Commission’s powers, and therefore the scope of the Bill, depends very much on the meaning of “misconduct”, and fortunately the word is defined widely in clause 2 of the Bill to cover acts or omissions, whether criminal or not, on the part of members of the security services which are contrary to the proper exercise of their functions.  The definition lists as examples of misconduct:  death in custody, illegal discharge of firearms, rape, torture and violations of human rights.

Establishment and Membership of Commission

The Zimbabwe Independent Complaints Commission is established by clause 4 of the Bill.  It will consist of:

• a chairperson, who will be a judge or former judge, or a person qualified to be a judge, appointed by the President after consultation with the Judicial Service Commission [Note this means that the President need merely ask the JSC for its views and does not have to follow its advice], and
• four other commissioners appointed by the President from a list of seven candidates chosen by Parliament’s Committee on Standing Rules and Orders.  The Committee will choose the candidates after holding public interviews in the same way that it chooses candidates for appointment to independent commissions under the Constitution.  Of these four commissioners:

o   one must be a lawyer

o   one must be a medical practitioner

o   one must be a psychologist, and

o   one must have had experience in the security services.

According to the Schedule to the Bill, non-citizens and insolvents will be disqualified from appointment to the Commission, and so will people who have been convicted of crimes of dishonesty and certain other serious crimes.

Clause 6(5) of the Bill provides for the appointment of serving or retired security service members to be observers at any meeting or hearing of the Commission at which the conduct of members of a security service is being considered.  Observers will attend meetings and hearings and may participate in the proceedings if invited by the chairperson to do so, but will have no vote on any decision taken.

Various provisions of the Constitution and the Public Entities Corporate Governance Act are applied to the Commission, the effect of which is that:

• Commissioners will be appointed for five-year terms, renewable once.
• Commissioners must not be politically partisan and must not belong to any political party or organisation.
• Nor may they be Members of Parliament, members of local authorities, parastatals or other government-controlled entities.
• Commissioners’ remuneration and allowances will be fixed by the President and will not be reducible while they remain in office.
• The President will have power to dismiss commissioners from office for conduct inconsistent with their membership of the Commission or because they lack qualifications for appointment, or if they fail to attend three or more consecutive meetings.  Before dismissing them however the President will have to get approval from the Minister responsible for administering the Act – the President himself, by virtue of clause 2(2) of the Bill ‒ and also the Vice-President responsible procurement and research, who currently administers the Public Entities Corporate Governance Act.

Comment:  The provisions for dismissing commissioners come about through the application of section 16 of the Public Entities Corporate Governance Act to the Commission.  The provisions are clearly unsatisfactory.  Apart from the nonsense of making the President get approval from himself and a Vice-President before dismissing a commissioner, the grounds on which commissioners may be dismissed are far too wide, giving them no real security of tenure.  It is to be hoped that when the Bill passes through Parliament Members will insist that commissioners be given the same security of tenure as members of Independent Commissions under the Constitution.

Staff of the Commission

Under clause 9 of the Bill the Commission will appoint an Executive Secretary to be the Commission’s chief executive officer and responsible for running its day-to-day affairs.  The appointment will be made in accordance with the Public Entities Corporate Governance Act, which means that:

• The Executive Secretary will be appointed for a five-year term, renewable for one further such term if he or she complies with his or her performance contract, and
• The appointment will have to be approved by the President.
• The Commission will have power to appoint other staff members, including investigators who will have to have “knowledge and relevant experience of criminal investigations”, so presumably they will be former police officers.

Functions of Commission

Under clause 5 of the Bill, the Commission’s functions will be:

• to investigate complaints made to it about misconduct on the part of members of the security services,
• to investigate contraventions of section 206 of the Constitution [which requires the security services to respect the Constitution, fundamental rights and freedoms, democratic values and the rule of law] and section 208 of the Constitution [which forbids members of the security services from being politically partisan and prohibits their employment in civilian institutions].  The Commission will be able to act on its own initiative in carrying out these investigations, without waiting for a complaint.
• to inspect detention facilities controlled by a security service ‒ again the Commission will not have to wait for a complaint before inspecting police cells and prisons.

Investigation of Complaints by Commission

People who can submit complaints

Under clause 13 “any person who is aggrieved by misconduct on the part of a member of a security service” will be entitled to submit a complaint about it, in writing, to the Commission.  This is not as wide as it sounds, because an aggrieved person must be someone who has suffered a legal grievance.  Hence only people who have suffered legally actionable harm from misconduct [i.e. harm for which a remedy can be obtained in civil proceedings in court] will be entitled to complain to the Commission, though in the event of such people having died or being unable to make a complaint themselves, a representative or family member will be able to do so on their behalf.

Complaints that cannot be investigated

In terms of clauses 13(2) and 14(1) of the Bill, the Commission will be obliged to investigate all complaints submitted to it, except:

• complaints submitted more than three years after the misconduct complained of occurred, and
• complaints about misconduct that is the subject of court proceedings or an investigation by an independent constitutional commission such as the Zimbabwe Human Rights Commission.

Comment:  The Bill does not say whether the Commission can reject complaints that are obviously frivolous and without merit.  The Commission should have this power.

Time-limit for investigating complaints

Clause 14 of the Bill, which deals with the Commission’s response to complaints, is not at all clear.  Under subclauses (1) and (2) the Commission will have to start investigations within seven days of receiving complaints and notify complainants of progress within 21 days.  After that, things get a bit murky.  Subclause (5) permits the Commission to extend the period for responding to 60 days if it needs more time to investigate a complaint:  this implies that the Commission must complete its investigations within seven days or at most 60 days, an impression reinforced by clause 15(2).  All one can say with certainty is that the Commission is expected to investigate complaints quickly.

Hearings or inquiries

Under clause 15 the Commission will have power to hold formal hearings or inquiries conducted in much the same way as hearings by a commission of inquiry.  Hearings will be held in public though the Commission will be able to order evidence to be heard in camera ‒ in private ‒ and will have to do so if the President so orders.  Security services and the members whose conduct is under investigation will be entitled appear and to be legally represented.

Comments:  Complainants are not mentioned, and their rights should be clarified.  They should be entitled to appear at hearings either in person or represented by a lawyer ‒ and if necessary they should be given legal aid.  Also, the clause does not state who will preside over hearings and inquiries:  whether the whole Commission will have to preside, or one or two commissioners, or anyone else appointed by the Commission.  This point too should be clarified.

Remedies

After conducting its investigations into a complaint the Commission will have power under clause 16(1) of the Bill to “make such order or recommendation in the matter as it considers appropriate in the circumstances for the redress of the misconduct”.

Comment:  No legal problem arises with the Commission’s power to make recommendations, but the power to make orders should be dealt with in more detail because, under clause 18 it will be a criminal offence for anyone to contravene the Commission’s orders.

The Commission will be able to order redress for complainants [clause 16(1)(c)] and the institution of disciplinary proceedings against security service members [clause 16(2)(e)].  If therefore a commander of a security service refuses to discipline a member or pay compensation to a complainant, or if the Minister of Finance refuses to release funds for compensation, the commander and the Minister will be liable to prosecution under clause 18.

Comment:  However gratifying that may be for complainants, it is probably not what the drafters of the Bill intended.

Another way of enforcing the Commission’s orders and recommendations is set out in clause 17, whereby officials to whom orders and recommendations are directed will have to report to the Commission on the steps they have taken to comply with them, and if the Commission is not satisfied with their response it will report them to Parliament.

The Commission’s orders will be subject to review by the High Court under clause 19.

Funding of Commission

The Commission, like other Government institutions, will receive its funds from annual appropriations by Parliament.  It will be entitled to accept donations and grants from other sources but before it does so it will have to consult the President or whichever Minister the President assigns responsibility for administering the Act.

It should be noted that the Government will have a general obligation to keep the Commission properly funded.  Section 325 of the Constitution states that the Government must ensure that adequate funds are provided to all institutions of the State and government, to enable them to perform their obligations.

General Provisions

Three further provisions of the Bill call for comment:

• Clause 24 will require all the security services and the Ministers responsible for administering the security services, as well their civil servants, to co-operate with the Commission.  Failure to do so will be a criminal offence.

Comment:  Whether any senior official will ever be prosecuted for that offence may be open to doubt.

• Under clause 25 the Commission’s records will be open to public inspection.

Comment: This is a most welcome provision which will ensure transparency.

• Clause 29 will give the President, or the Minister to whom the President may assign the administration of the Act, power to make regulations covering matters such as the procedure for investigations, access to records and so on.  The President or the Minister will make regulations “in consultation with” the Commission”.

Comment:  That is a legally imprecise term:  it can mean “after consulting the Commission” or “with the agreement of the Commission”.  The clause should be amended to state which is intended.

Independence of Commission

The Commission will be called “the Zimbabwe Independent Complaints Commission” but how independent will it be?

On the one hand, clause 3 of the Bill states that the first objective of the Bill is:

“to give effect to section 210 of the Constitution by providing for an independent and effective mechanism for the investigation of misconduct committed by members of security services”.

This means that the Bill must be interpreted so as to preserve the Commission’s independence.

Also clause 24, as we have already pointed out, will oblige Ministers and government officials to co-operate with the Commission and help it exercise its functions.  This does not suggest the Commission is supposed to be subservient to those Ministers and officials.

A further, and very important, point is that there is no provision in the Bill giving the President or a Minister power to give the Commission instructions or directives on policy or anything else.  In the absence of such a provision it must be presumed they will have no such power.

On the other hand, the Bill has features that cast doubt on the Commission’s independence:

• There is no express statement, as there is in section 235 of the Constitution in regard to the independent constitutional commissions, that the Commission will be independent and not subject to the direction or control of anyone.
• The Commission’s chairperson will be a presidential appointee.
• All the commissioners will be liable to be dismissed by the President on vaguely-stated grounds ‒ for “conduct inconsistent with their membership of the Commission” ‒ and there is no provision for an independent inquiry to be held before they are dismissed.
• The appointment of the Commission’s Executive Secretary will have to be approved by the President.

Since the Commission’s actual, as opposed to legal, independence will depend on the quality of its members and staff, these features are worrying.

At the very least, the Bill should be amended to include a provision stating unambiguously that the Commission will be independent and not subject to control by the Government.

Conclusion

The Bill has flaws, some of which we have pointed out above, but generally it is a good one.  It will set up a commission with sufficient powers to investigate abuses that have become all too prevalent in Zimbabwe.  The Commission’s functions will go beyond those set out in section 210 of the Constitution ‒ investigating instances of misconduct ‒ and will extend to investigating political interference in the security services, inspecting places of detention and recommending changes to the law.  All this is welcome.

Whatever limitations and defects the Bill may have, may not matter much in the long run because the Commission’s effectiveness will depend more on the integrity and qualities of its members and staff than on the provisions of the law under which it operates.  Also, the very fact that such a commission is in existence may go some way to deter members of the security services from committing misconduct.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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