Crime and Consequences

The U.S. Supreme Court issued an orders list following its conference today. As expected, they took the capital child rape case, Kennedy v. Louisiana. They also took two federal sentencing procedure cases, Irizarry v. United States, 06-7517, and Greenlaw v. United States, 07-330.

As we have noted before, we at CJLF consider the death penalty for any nonfatal crime to be a bad idea, even if it is constitutional. There needs to be a meaningful differential in punishment between rape and rape-murder to give the rapist an incentive not to kill the victim. That is also why the death penalty is very necessary for rape-murder.

In procedural matters, the Court turned down the ABA's untimely motion to participate in oral argument as amicus in Virginia v. Moore. Yes, ABA, even you have to follow the rules. The SG gets in to Monday's argument in Baze v. Rees and in the Indiana voter ID cases, as usual.

According to the hearing list, Kentucky will be represented at oral argument by Roy Englert of Robbins, Russell, rather than by any of the state attorneys on the brief.

Expect an orders list Monday with a large number of cert. denials, no grants, and routine procedural stuff.

Posted by Kent Scheidegger at 01:37 PM | Permalink | Comments (3)

Mayo Clinic Proceedings has published some reaction to the articles previously noted here. Not content with having contemporaneously published two editorials critical of David Waisel's article on physician participation in executions, they now publish a third, plus a commentary by the anti side's favorite lethal injection expert, Mark Heath.

They also publish six letters, four of which are on the opposition side. Despite having called only for responses that address the ethics of physician participation and not capital punishment generally, they go ahead and violate their own limit by publishing two letters attacking capital punishment generally. One of them is from Margaret R. Wentz, BA, of the Mayo Clinic. (You have to wonder about a person who uses a bachelor's degree as a title.) Ms. Wentz demonstrates her lack of sophistication on the subject with this obvious non sequitur: "Additionally, the death penalty is not a deterrent to crime. National crime rates vary little between states that have the death penalty and those that do not." She cites the notorious Helen Prejean and the Death Penalty Information Center for this nugget, making no mention of the large body of peer-reviewed literature finding a deterrent effect. The editors claim "the various letters and commentaries were subjected to the journal’s typical rigorous peer-review process." Excuse me if I am unimpressed with your rigor.

One item that is worthwhile is the letter from C&C blogger Steven Erickson. He calls Arthur Caplan on the carpet for making the ridiculous statement that the United States executes "children" in an article published two years after Roper v. Simmons banned execution of anyone under 18. This is on top of the fact that 16- and 17-year-olds are not "children" in the first place.

Posted by Kent Scheidegger at 01:04 PM | Permalink | Comments (3)

The U.S. Supreme Court will hear oral argument in Baze v. Rees, the Kentucky lethal injection case, on Monday. Briefs and other pertinent documents are collected here. Orin Kerr has this post at the Volokh Conspiracy. Alison Nathan and Douglas Berman have this dialog on SSRN, forthcoming in PENNumbra. (Doug calls it a debate, but they don't really disagree enough to call it that, IMHO.) Adam Liptak has this story in the NY Times on the resistance toward going to a single-drug method.

Posted by Kent Scheidegger at 08:17 AM | Permalink | Comments (1)

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court redefined Confrontation Clause jurisprudence to keep out of criminal trials nearly all out-of-court statements if they are "testimonial" but to leave to state hearsay law the admissibility of statements that are not "testimonial." The details of exactly what is "testimonial" were left to be sorted out later.

One such case is going to trial in Wisconsin, following a ruling of that state's Supreme Court, Carrie Antlfinger reports for AP. Julie Jensen suspected that her husband, Mark, was going to kill her. She wrote a letter to the police and gave it to a neighbor to be given to the police in the event of her death. She also left voicemails for a police officer and talked to the neighbor and her son's teacher. Julie died of poison on December 3, 1998. Mark was charged with homicide on March 19, 2002.

After discussing the still-unclear boundaries of Crawford, the Wisconsin Supreme Court concluded, "that Julie's statements to the police and the letter are testimonial and Julie's statements to her neighbor, Wojt, and her son's teacher, DeFazio, are nontestimonial."

This case may be more important for its embrace of the "forfeiture by wrongdoing" rule, which Crawford accepts in dicta in part V. A., citing Reynolds v. United States, 98 U.S. 145, 158-159 (1879).* Mark should not be able to complain about Julie's unavailability for cross-examination if he is the one who made her unavailable by killing her. In practice, this means that the judge must decide if Mark is guilty by the preponderance of the evidence before allowing the jury to consider the otherwise-excluded evidence in deciding whether he is guilty beyond a reasonable doubt. The judge subsequently did find that, according to the AP article.

If Jensen is convicted, this case may be headed to the U.S. Supreme Court. Regrettably, the New Mexico v. Romero case on forfeiture by wrongdoing is due to be dropped. The case was dismissed in the trial court while waiting for a decision on the certiorari petition, we are told.

*There seems to be some disagreement on the date of the Reynolds decision. The U.S. Supreme Court's "dates of decisions" list gives it as Jan. 6, 1879.

Posted by Kent Scheidegger at 02:15 PM | Permalink | Comments (1)

Death Penalty: A Second Circuit ruling last Friday upheld the federal convictions and life sentences of two New York murderers, rejecting their claim that the trial judge's dismissal for cause of potential jurors opposed to the death penalty, based only on their written answers on a questionnaire rather than through direct examination, was unconstitutional. This AP story discusses the case. In fact, these two defendants lucked out. In a new trial, the prosecution might have been able to seek the death penalty again with a new jury.

Gangs: An Associated Press story by Thomas Watkins reports how the Los Angeles-based Latino street gang F13 has targeted blacks caught in the neighborhood marked as their "turf" for murder in order to keep rival black gangs at bay. This information comes from a joint federal and state effort to prosecute 102 members in the largest federal case involving a single gang. For years, groups which sympathize with criminal defendants have claimed that the criminal justice system is biased against minorities, citing the fact that mostly blacks and Hispanics are arrested for drug dealing and violent crimes in many large cities. The inconvenient truth is that the dominant urban gangs that traffic in drugs, racketeering, and violence are either black or Hispanic.

Penn. DP: Emilie Lounsberry has this story in the Philadelphia Inquirer on efforts to have the death penalty carried out in Pennsylvania. The state high court has affirmed four death penalties in five days.

Candidates' Views: The Pew Forum on Religion and Public Life has this summary of where the presidential candidates stand on the death penalty. Notably, not a single candidate with the proverbial snowball's chance is in favor of abolition of the penalty. (Nonfactors Dennis Kucinich and Ron Paul are the only ones.) If the country really were turning away from the death penalty, as opponents claim, one would think that at least one major candidate would be trying to ride that wave.

More Candidate Views, this time on the International Criminal Court, reported by Bob Egelko in the SF Chron.

Posted by CJLF Staff at 11:47 AM | Permalink | Comments (0)

"A conservative is a liberal who has been mugged," goes the old joke. Like many jokes, there is a grain of truth in it. It is easier to be blasé about crime when it hasn't touched you personally. It is not universally true, though.

One of California's many criminals carjacked one of its most criminal-friendly politicians Saturday. Don Perata, leader of the Democrats in the State Senate, has long insured that the Public Safety Committee of that body is a graveyard for tough crime legislation. He has kept it stacked with a soft-on-crime majority and chair at all times. Saturday night in Oakland, a man with a gun told Perata to get out of the 2006 red Dodge Charger he was driving and took off with it. The car didn't belong to Perata, though. It belongs to the people of California. Laura Kurtzman of AP reports here.

So, will Perata see the light? Don't count on it.

"This is a punctuation mark on what I've been doing for 20 years. There are too many guns out there," he said. "Anyone who would do that in broad daylight with hundreds of people around must be pretty desperate."

Same old stuff from a true believer. Guns magically cause otherwise law-abiding people to suddenly commit crimes, right? And people who commit crimes aren't morally deficient. They don't rob or steal because it's easier than working or because they think working is for chumps. They "must be desperate." Cue Elvis singing "In the Ghetto."

They found the car later, Henry Lee reports in the SF Chron. The car was apparently targeted for its 22-inch rims. Lee refers to Sen. Perata as someone who "has campaigned against assault weapons and crime ..." Not in my book.

Posted by Kent Scheidegger at 02:12 PM | Permalink | Comments (0)