Crime and Consequences

Joel Jacobsen at Judging Crimes has a series of long posts, 3 so far, titled "Intellectual dishonesty epic." The series provides some interesting historical background regarding one of the most dishonest decisions in the history of the Supreme Court, Fay v. Noia, 372 U.S. 391 (1963), overruled in Coleman v. Thompson, 501 U.S. 722 (1991). In that decision, Justice Brennan rewrote the history of habeas corpus in such a brazen manner that the only apt comparison is to the Ministry of Truth in George Orwell's 1984.

This variance from the truth did not go unnoticed at the time, of course. Justice Harlan wrote an entire section of his dissent under the heading "Departure from History," giving the real history. Professor Dallin Oaks wrote an article titled Legal History in the High Court -- Habeas Corpus, 64 Mich. L. Rev. 451 (1966), refuting the Brennan rewrite. "Legal historians--even those cited in the opinion--hold a view that is at odds with the historical analysis in the Fay case." Id., at 459. Legal scholars were more genteel in their expression in those days, but he still said it's a pack of lies. Louis Mayers wrote The Habeas Corpus Act of 1867: The Supreme Court as Legal Historian, 33 U. Chi. L. Rev. 31 (1965). He found that there was "no foundation" for one of the principal historical claims of the opinion. Id., at 55.

In 1973, Justice Powell called the Fay v. Noia version of history "revisionist" in Schneckloth v. Bustamonte, 412 U.S. 218, 252. He said that it was "recent scholarship" that cast doubt on the revisionist history, but that was a gentlemanly lie to avoid saying that his colleague was writing things known to be false at the time.

Fay v. Noia was pretty much gutted in Wainwright v. Sykes, 433 U.S. 72 (1977), but it didn't get the official ax until Coleman.

In a response to a comment I made there, Joel says "Fay v. Noia isn't even the high point." I will be interesting in reading what he thinks is the high point (or perhaps it should be called the low point) in the next installment.

Posted by Kent Scheidegger at 01:58 PM | Permalink | Comments (0)

Patriot Act: A former sailor, charged with leaking information about a navy battle group to suspected terrorist supporters in London, has lost his bid to have incriminating evidence intercepted by taps to his phone and emails suppressed, according to this AP story by John Christoffersen. Defendant Hassan Abu-Jihaad's claim that the provisions of the USA Patriot Act which allowed his communications to be intercepted are unconstitutional was rejected in a decision by Connecticut Federal District Judge Mark Kravitz. This holding conflicts with a September 2007 ruling by Oregon District Judge Ann Aiken, who struck down the challenged provisions of the Act.

Five Ohio Death Penalty Cases have been taken from a federal District Judge who one state prosecutor called a "black hole" for capital cases, as reported in this Cincinnati Enquirer story by Dan Horn. The most recent among the five death penalty appeals removed from Judge Walter Rice's docket was filed three years ago; two others were filed eight years ago. In reassigning the cases, Chief Judge Sandra Beckwith said that Judge Rice "has a very heavy docket." After learning that the cases had been taken from Judge Rice, Hamilton County prosecutor Joe Deters said "just the fact that they appear to be out of his courtroom is a victory for victims in these cases."

Posted by CJLF Staff at 09:09 AM | Permalink | Comments (1)

An attempt to repeal the death penalty in Connecticut was rejected by a vote of 89-49 by that state's House of Representatives, Keith M. Phaneuf and Jenna N. Carlesso report in the Journal Inquirer.

Posted by CJLF Staff at 04:47 PM | Permalink | Comments (0)

It seems fashionable lately for many scholars to decry our criminal justice polices surrounding sex offenders. Indeed, classifying all sex offenses - from adolescents who take nude pictures of themselves to the worst sex abuse imaginable - seems unwise. Moreover, the civil commitment of sex offenders seems problematic and encompasses an ominous trend to attribute biological causes as the root problem for so many antisocial behaviors, including sexual deviancy. And it is true that the "science" surrounding much of the sex offender debate is a minefield of pitfalls and spurious links.

But those criticisms and limitations do not mean that sex offenders are a minor risk and that all of the retributive rhetoric about them is misplaced. As many forensic psychologists know, conducting a risk assessment evaluation on a convicted sex offender often entails a lengthy tread into the world of recidivism, failed treatment programs, and eternal denial on the part of the offender. A recent, albeit, extreme story regarding the tragic case of Dylan and Shasta Groene demonstrates why public sentiment is so starkly in favor of heavy penalties and restrictions against sex offenders.

This story from today's Associated Press recounts the horrific story of the abduction of Shasta and Dylan Groene and Dylan's subsequent murder by lifelong sex offender Joseph E. Duncan III. As detailed in this curious and detailed blog, Duncan was no stranger to authorities. Outrageously, Duncan was apparently employed as a teacher's aid after: (1) disclosing to therapists that he had raped multiple children; (2) convicted of raping a 14 year old boy at gunpoint, beating him, and burning him with a lighted cigarette; and (3) rejected from sex offender treatment for lack of interest in rehabilitation. After a 14 year sentence, Duncan was paroled despite his failure to complete sex offender treatment and several infraction reports including some involving inappropriate sexual behavior. From there, Duncan's history is an encyclopedia of perversion, psychopathy, and an indictment against our criminal justice system's ability to manage and account for offenders with enormous risk factors for recidivism. Duncan even had the gall to start a pro-pedophilia blog which he continued to operate from jail.

People may scoff at the simplicity of risk assessment measures such as the Static-99, but the truth is these instruments are reliable insofar as they measure known recidivism risk variables that time and time again show (or should have shown as with Duncan) that the best predictor of future behavior is past behavior. This inconvenient truth will bedevil our policy debates about sex offenders and helps explain why it is so difficult to generate public opinion to moderate our criminal justice system's approach to these offenders. We should avoid a "one size fits all" approach to the ever increasing defined population of sex offenders, but until those who advocate reform admit that in cases like Duncan and numerous others the system's best response would have been lifelong incapcitation early in his sadistic criminal career, the public opinion will only continue towards more punishment and retribution.

Update:

Corey Yung has this thoughtful reaction to this post. He asserts that "STATIC-99 is nothing like the MMPI or other more complete diagnostic tools." While the MMPI may have more studies behind it, the idea that it is somehow a more complete diagnostic tool is misplaced. First, the Static-99 and MMPI measure different constructs and serve different purposes. No reasonable clinician claims that the Static-99 provides a general personality overview; the Static-99 serves as a specific assessment tool related to recidivism risk for sex offenses. Second, while the MMPI may be a reliable and valid measure, the implied notion that Yung and others make that it is somehow a "gold standard" misjudges its utility: Rarely does the MMPI provide much insight to clinicians who use it which is one of its purported purposes; yet the Static-99 does seem to adequately measure recidivism risk among limited populations when matched with other assessment procedures which is exactly what it's designed to do.

Posted by Steven K. Erickson at 06:48 AM | Permalink | Comments (2) | TrackBacks (0)

In 1990, the voters of California passed Proposition 115, which among other things added a discovery chapter to the Penal Code, §§ 1054.1 et seq. (Most important criminal law is enacted by initiative in California, due to the permanent dysfunctionality of our Legislature.) Among the provisions of this law is: "This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant...." (Emphasis added.) The Legislature can amend the chapter, but only by a 2/3 vote.

What part of "only" did the solons not understand? They enacted a statute, Penal Code § 1054.9, giving new postconviction discovery rights to defendants sentenced to death or life without parole, and they passed it by less than a 2/3 vote. Although on its face the statute does not seem terribly burdensome, in practice it has been used in a much more aggressive manner.

In the case of Barnett v. Superior Court, the California Supreme Court was considering some issues related to the application of this statute, but CJLF asserted in an amicus brief that the whole statute was unconstitutional as an unauthorized legislative amendment of an initiative. (This theory was first advanced by the Contra Costa County District Attorney's Office.) Today the court issued this order:

The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to establish a briefing schedule and then consider and decide the issues raised in the brief of amicus curiae, Criminal Justice Legal Foundation, filed November 5, 2007, and petitioner's answer to that brief, filed December 17, 2007. (Cal. Rules of Court, rule 8.528(d).) Kennard, J., was recused and did not participate.

Posted by CJLF Staff at 03:23 PM | Permalink | Comments (0)

The Tennessean has this article on Gov. Bredesen's opposition to a proposal to change lethal injection from the three-drug method presently under attack in Baze v. Rees to a one-drug method similar to that used by veterinarians. His position, in essence, is that any change from an established method triggers many years of litigation. In other words, the hyperlitigiousness surrounding the death penalty and the willingness of some courts to accept flimsy reasons for stopping executions actually operate to preserve a method that the opponents say is cruel.

"While some Tennessee lawmakers and death penalty advocates were pushing for the state to go ahead with a one-drug protocol to continue with executions, most are waiting to see what the nation's high court will decide" in Baze.

Posted by Kent Scheidegger at 04:02 PM | Permalink | Comments (2)

Jose Padilla was sentenced to 17 years, 4 months for conspiracy to commit terrorism, Curt Anderson reports for AP. He is a U.S. citizen who was detained on charges of a "dirty bomb" plot, leading to this Supreme Court decision on jurisdiction in habeas corpus cases.

The sentence today does not reflect the most serious charges against Padilla. The information gained from him during interrogation is inadmissible in a regular criminal trial under the Miranda rule.

The AP story says, "Padilla's lawyers argued for a lenient sentence," meaning no more than 10 years. But he has gotten off leniently. If even a portion of the plots alleged are true, he is guilty of "levying war against [the United States], or ... adhering to their Enemies, giving them Aid and Comfort," U.S. Const. Art. III § 3, i.e., treason. The appropriate punishment for that crime is death.

Posted by Kent Scheidegger at 09:43 AM | Permalink | Comments (0)

The Supreme Court today issued an orders list and one opinion. The opinion in Ali v. Federal Bureau of Prisons is an exercise in statutory interpretation on the federal government's waiver of sovereign immunity in 28 U.S.C. § 1346(b)(1) and an exception to that waiver in 28 U.S.C. § 2680(c). The interpretation question had split the Courts of Appeals 6-5, and today it split the Supreme Court 5-4. The lineup was a little unusual, with Justice Kennedy in the dissent and Justice Ginsburg joining Justice Thomas's majority opinion. The bottom line is that the government does not waive sovereign immunity for a claim arising out of detention of property by any federal law enforcement officer, not just those enforcing customs and excise laws. There is an administrative remedy for prisoner Ali's claim, but it was decided against him.

The orders list, as expected, consists of "vacate and remand in light of..." orders and denials of certiorari. The grants for full briefing and argument were announced Friday. Among the denials are Jones v. Jennings, No. 07-654, on excessive force on a resisting arrestee and Gilmer v. Mississippi, No. 07-183, on that state's "video voyeurism" statute.

On the March argument calendar, the most important case for general criminal law practice is Indiana v. Edwards, No. 07-208, scheduled for Wednesday, March 26. In this case, the Supreme Court will finally answer the question raised 33 years ago when it constitutionalized the right of the defendant to represent himself in Faretta v. California, 422 U.S. 806 (1975). Many states have interpreted this case to extend that right to anyone mentally capable of making an intelligent waiver of counsel, even if he is not capable of making a coherent defense. This view of Faretta produced the circus in Panetti v. Quarterman, decided last June. See CJLF Panetti brief here. CJLF will file a brief in Edwards asking the Court to clean up this mess of its own making.

Also on the calendar are the D.C. gun case March 18, Rothgery v. Gillespie County on when the Sixth Amendment right to counsel attaches on March 17, two federal sentencing cases on March 24 and 25, and a pair of citizen detainee cases on March 25.

Tony Mauro has this post at Blog of the Legal Times on the grammatical disputes in the present Supreme Court term. He closes with this amusing comment on Justice Breyer's amusing comment in his dissent today in the Ali case:

Footnote: Breyer's separate dissent focuses on the word "any" in the statute, and he offers an amusing illustration for his point that "any" is not a universal word, but has context. Breyer writes, "When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.' The context makes clear to her that I am talking about the contents of our refrigerator." In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: "The butter is staring me in the face, but because I am a man, I can't find it."

Posted by Kent Scheidegger at 07:57 AM | Permalink | Comments (2)

Daryl Atkins, the subject of the Supreme Court's June 2002 ruling in Atkins v. Virginia, has won a Virginia Circuit Court ruling commuting his death sentence to life in prison according to this Associated Press story . Atkins was sentenced to death in 1996 for the kidnap, robbery and murder of a young Air Force recruit. While the Supreme Court ruled it unconstitutional to execute a mentally retarded person in Atkins' appeal, it did not decide if Atkins himself was retarded. A new jury empaneled after the Atkins ruling found he was not retarded, but that verdict was overturned on appeal and a new hearing ordered. In this latest holding, Virginia Judge Prentis Smiley Jr. based his decision to commute Atkins' death sentence on the claim that prosecutors had withheld potentially favorable evidence from the defense. It is not known at this time if the state will seek review of this latest holding. Commuting a sentence is not normally an available remedy for a nondisclosure claim. Such a claim normally results in a new trial or a new sentencing hearing.

John Yoo has this op-ed in the Wall Street Journal on terrorist Jose Padilla's suit against him. This is one more example of why the law of attorneys' fees in civil rights suits needs to be reformed, as previously noted here.

Ted Cruz, the Solicitor General of Texas, and his role in death penalty cases are the subjects of this article by Jonathan Gurwitz in the WSJ.

Oakland mayor Ron Dellums, if he "wants to put a dent in crime, [is] going to have to develop long-term strategies and become a crime-fighting mayor, like his predecessor. It will not be popular, especially among liberal-minded Bay Area residents - and it will not reflect Dellums' long-held political beliefs," Chip Johnson writes in the SF Chronicle.

Posted by CJLF Staff at 03:34 PM | Permalink | Comments (0)