Crime and Consequences

In its decision yesterday in State v. Mata, S05-1268, the Nebraska Supreme Court affirmed the judgment, including the death sentence, of child-killer Raymond Mata. However, as noted in yesterday's News Scan, the court declared the sole method of execution prescribed by statute in that state, electrocution, to be unconstitutional. So does that mean the death penalty is on hold unless the Legislature affirmatively restores it by enacted a new method? Would the advocates of repeal be able to achieve their goal through a combination of a court changing the rules and a legislative deadlock, as they have in New York?

Not necessarily.

At one point, the court appears to assume this is the case. At page 67, the court says, "His sentence of death, although it cannot be implemented under current law, also remains valid." But law is more than statutes. Regulations and case law are also law. In any event, this statement is dictum, as the possibility of replacing electrocution with another method without legislation was not the issue before the court. The dispositive language is this, on pages 68-69 (footnotes omitted):

And Nebraska’s statutes specifying electrocution as the mode of inflicting the death penalty are separate, and severable, from the procedures by which the trial court sentences the defendant....

On direct appeal in a capital case, our responsibility extends beyond the validity of the conviction and sentence. We are also charged with the duty to administer and supervise the implementation of the death penalty by appointing the day for execution of the sentence and issuing a death warrant. It is in exercising that duty that we have considered whether electrocution is constitutional. And obviously, the State cannot carry out Mata’s sentence without a constitutionally acceptable method of execution.

Thus, although we affirm the judgment, we decline to “appoint a day certain for the execution of the sentence” and stay Mata’s execution. When the State moves that an execution date be set, in addition to the other requirements for such a motion, the State should allege, and be prepared to demonstrate, that a constitutionally acceptable method of carrying out Mata’s sentence is available.

Because the method-of-execution statute is invalid but severable, the state of the law in Nebraska is the same as if the Legislature had provided for the death penalty but not specified the manner of execution. Can the death penalty be constitutionally carried out in that situation? It certainly could in the nineteenth century. That was the issue actually before the Supreme Court in Wilkerson v. Utah, 99 U.S. 130 (1878). In the coverage of Baze v. Rees, that case has commonly been misreported as addressing a substantive Eighth Amendment challenge to the firing squad, but it did not. Here is the actual holding of the case:

Had the statute prescribed the mode of executing the sentence, it would have been the duty of the court to follow it, unless the punishment to be inflicted was cruel and unusual, within the meaning of the Eighth Amendment to the Constitution, which is not pretended by the counsel of the prisoner. Statutory directions being given that the prisoner when duly convicted shall suffer death, without any statutory regulation specifically pointing out the mode of executing the command of the law, it must be that the duty is devolved upon the court authorized to pass the sentence to determine the mode of execution and to impose the sentence prescribed. [Citation.]

Persons guilty of murder in the first degree "shall suffer death," are the words of the territorial statute, and when that provision is construed in connection with sec. 10 of the code previously referred to, it is clear that it is made obligatory upon the court to prescribe the mode of executing the sentence of death which the code imposes where the conviction is for murder in the first degree, subject, of course, to the constitutional prohibition, that cruel and unusual punishment shall not be inflicted.

So, if the Nebraska court follows Wilkerson, it is now the court's duty to prescribe the method of execution if the Legislature does not act. The executive branch should develop a method and submit it to the court for approval in connection with the motion to set a date mentioned in the Mata opinion.

Posted by Kent Scheidegger at 01:42 PM | Permalink | Comments (2)

Electrocution: Cruel and Unusual? Currently, Nebraska is the only state that utilizes the electric chair as their sole means of execution. However, Nate Jenkins from the Associated Press writes today that the Nebraska Supreme Court has ruled electrocution to be cruel and unusual. The high court issued this decision in the case of Raymond Mata Jr., sentenced to death for the kidnapping and murder of three-year-old Adam Gomez. The child's body parts were found in Mata’s freezer and dog's bowl. In the majority opinion Judge William Connolly opined that prisoners sometimes “retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body.”

In his dissent, the Chief Justice pointed out that the U.S. Supreme Court has upheld the electric chair and that the wording of the Nebraska Constitution's prohibition on cruel and unusual punishment is identical to the Eighth Amendment. He suggests that the correct test for method-of-execution claims is that both the state and federal constitutions prohibit “deliberate indifference to an unreasonable risk of severe and prolonged pain in execution,” quoting CJLF's brief in Baze v. Rees, presently pending before the U.S. Supreme Court.

Update: Adam Liptak has this story in the NYT.

Releasing Crack Convicts Early On our News Scan Wednesday the Associated Press discussed the U.S. Attorney General's call for changes in newly minted Crack Sentencing Rules. According to the LA Times, the U.S. Sentencing Commission felt that crack laws were unfairly affecting African Americans, who constitute 9 out of 10 crack defendants. The new sentencing guidelines go into effect on March 3rd, but some U.S. Attorneys are already implementing them. AG Michael B. Mukasey is repeating his concerns about this today before the House Judiciary Committee. For example, Deborah Woodard was convicted of possessing more than 50 grams of crack with the intent to distribute and was sentenced to 135 months in a federal prison. In Boston, a federal judge recently took 15 months off of her sentence, which will make her eligible for release this June.

Mental Health Courts According to a story by Emma Schwartz in U.S News, more than twice as many people with mental illnesses currently live in prison than in hospitals. Having these individuals restricted to prison cells rather than in treatment worsens their illness, often resulting in violence. There are about 175 mental health courts nationwide dealing with problems in overcrowded prisons. These courts are focused on diverting treatable defendants to programs rather than prisons, monitoring their subjects' success at attending treatment and staying off drugs. In many cases a violation of probation results in assignment to more treatment or increased supervision. Our post from last week discusses a new effort to prevent the mentally ill from purchasing firearms.

Posted by CJLF Staff at 11:00 AM | Permalink | Comments (0)

As mentioned previously, the recent National Institute of Mental Health's CATIE study suggested a link between schizophrenia and violence. That conclusion generated a lot of controversy from folks who assert that there is no link between mental illness and violence, touting the frequent mantra that those with mental illness are no more likely to become violent than the general population. Indeed, we should be careful not to needlessly contribute to the enduring stigma that burdens those with mental illness. Nonetheless, we shouldn't ignore the link between mental illness and crime simply because it makes some people uncomfortable or is at odds with the vested rhetoric of political correctness. Several recent studies in the journal Psychiatric Services shed some new light on the subject and are worth a few comments.

The first article, The MacArthur Violence Risk Assessment Study Revisited: Two Views Ten Years After Its Initial Publication, presents a debate between E. Fuller Torrey and Johnathan Stanley of the Treatment Advocacy Center and the original authors of the the seminal 1998 article, Violence by People Discharged From Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhoods published in the Archives of General Psychiatry. This study reported "there was no significant difference between the prevalence of violence by patients without symptoms of substance abuse and the prevalence of violence by others living in the same neighborhoods who were also without symptoms of substance abuse." This study has been widely cited by those who claim there is no link between mental illness and violence. Yet, as the commentary in Psychiatric Services suggests, much of this rhetoric falls short once a critical lens is placed upon the MacArthur study. As authors Torrey and Stanley rightly claim:

The prevalence of violent behavior among the discharged patients in the original MacArthur Study was, in fact, high. The details of the violent acts committed by the discharged patients were made available in publications after the initial report. Among the 951 discharged patients followed up after discharge from the hospital, 262 (27.5%) “committed at least one act of violence while in the community” during an average follow-up period of 41 weeks.

Torrey and Stanley also raise a number of other points about the MacArthur study which cast doubt about the popular interpretations of that study, including the astounding fact that the comparison group for the MacArthur study consisted almost entirely of people selected from neighborhoods with the highest crime rates. Thus, the comparison group had an inflated violence rate when compared to the general population, which essentially minimized the rate of violence among those with mental illness in the study. Despite these facts, Torrey and Stanley also wisely suggest that the upshot of the MacArthur and similar studies is that the risk factors for violence among those with mental illness are more similar to the general population rather than any unique facet within mental illnesses. That is, alcohol and drug abuse seems to account for a large amount of the risk for violence among those with mental illness just like everyone else. The elephant in the room, however, is the exceedingly high rate of substance abuse among those with severe mental illnesses.

The second study, Perpetration of Violence, Violent Victimization, and Severe Mental Illness: Balancing Public Health Concerns reviewed all studies in the United States published since 1990 which examined the prevalence of violence and mental illness. It found a prevalence rate among psychiatric outpatients between 2-13% over follow-up periods ranging from 6 months to 3 years. It also found that those with mental illnesses are often the victims of violence as well (20% to 34%).

The third study, Risk of Incarceration Between Cohorts of Veterans With and Without Mental Illness Discharged From Inpatient Units, compared the rates of arrest between veterans with and without mental illness in Connecticut from 1993-1997 (n=36,385) (disclaimer: the author of this post is the lead author). There were two particularly noteworthy findings of this study. First, during the study period the overall rate of incarceration among veterans with mental illnesses declined. This happened during the same period when over 80% of the inpatient psychiatric beds in the VA Connecticut system were closed. It also occurred during a time when incarceration rates among the general population for Connecticut rose substantially. Second, the greatest risk factor for incarceration among the sample was substance abuse as this table indicates:

These studies confirm what other studies have found, which is a strong link between criminality and substance abuse. As a recent commentary noted, it is increasingly clear that this link extends to violence among those with mental illnesses as well. Yet as author Friedman aptly concluded:

The challenge for medical practitioners is to remain aware that some of their psychiatric patients do in fact pose a small risk of violence, while not losing sight of the larger perspective — that most people who are violent are not mentally ill, and most people who are mentally ill are not violent.

Putting all of the rhetoric aside, the risk of violence and crime among those with mental illness who abuse alcohol and drugs is a serious risk in need of candor within the academic and popular realms of debate. It isn't foolish to observe the sadly obvious:

Posted by Steven K. Erickson at 05:07 PM | Permalink | Comments (0) | TrackBacks (0)

Daryl Atkins: A Virginia circuit judge, who had previously commuted the death sentence of murderer Daryl Atkins, has announced that he will stay his order while the state's appeal is pending. A story by AP writer Sonja Barisic reports that in the appeal, the state contends that a local trial judge lacked the authority to commute Atkins' sentence. As posted on January 21, Atkins was the subject of the Supreme Court's June 2002 ruling in Atkins v. Virginia, which held that the Constitution prohibited the execution of mentally retarded defendants. A jury later restored Atkins death sentence after finding that he was not mentally retarded.

Maryland's Death Penalty has been targeted for repeal by anti-death penalty advocates in recent years. A story by Andrew Schotz in today's Herald Mail reports that the families of murder victims are now uniting to oppose these efforts. The aunt of a murdered police officer, the sister of a murdered mother of two and the wife of a murdered corrections officer are writing letters to legislators and speaking out in favor of keeping capital punishment as an option for the state's worst murderers.

Posted by CJLF Staff at 01:22 PM | Permalink | Comments (0)

Brooklyn Police Scandal: Four Brooklyn narcotics officers have been charged with misconduct and falsifying records. Christine Hauser of the New York Times reports that Gravesend and Bay Ridge are the two areas in Brooklyn where cases have been affected the most. Detective Sean Johnstone was heard on a tape recording saying he and his partner, Officer Julio Alvarez, recovered 28 bags of cocaine yet only turned in 17. When Internal Affairs started investigating Johnstone and Alvarez, it led to the arrest of Sgt. Michael Arenella and Officer Jerry Bowens. The Brooklyn district attorney’s office has dismissed over 183 cases because either one or more of the officers have played a significant role in them. In addition, the city’s special prosecutor Bridget G. Brennan has thrown out five indictments against eight defendants.

Juvenile Crime: Katie Zezima writes in this New York Times report that cases under a Rhode Island law that allowed juveniles to be tried in adult court would be dismissed or transferred. Judge Daniel A. Procaccini from the Rhode Island Superior Court ruled that approximately 100 pending cases would be dismissed. Cases that resulted with an indictment will be sent to Family Court; only if the attorney general believes the crime is heinous, will a juvenile be tried in adult court. The judge concluded that juvenile's rights were violated because the cases were sent directly to adult court. Attorney General Patrick C. Lynch appealed the ruling and says it places the victims and their families in a “state of uncertainty.”

AG Seeks Change in Crack Sentencing Rules
According to this AP story, Attorney General Michael Mukasey wants Congress to modify the recently amended sentencing guidelines to prevent the early release of thousands of violent crack offenders. Mukasey is asking that the new law be changed to allow sentence reductions for only first-time and nonviolent offenders. Less than month ago, the U.S sentencing commission ruled that over 20,000 federal inmates would be eligible for reduction for their crack cocaine sentences. Mukasey argues that full retroactive application of the new guidelines will increase violence in communities and clog up the courts.

A "jailhouse lawyer" wrote the successful certiorari petition in the Supreme Court case of Burgess v. United States, No. 06-11429, reports Meg Kinnard for AP. The case is set for argument March 24, but petition author Michael Ray won't be arguing it. He remains a guest of Uncle Sam. The petition is here via Legal Writing Prof Blog.

Posted by CJLF Staff at 11:43 AM | Permalink | Comments (0)

First the good news. When California's Legislature convenes for its next session after the November election, the criminal-friendly persons presently running both houses won't be running them. The voters of California have once again shown that they have much better judgment when they vote directly on issues than they do in electing legislators. With 88% of precincts reporting (as of 5:09 am), Proposition 93 is losing 53.3-46.7.  That measure would have watered down the term limits and allowed present Senate President Pro Tem Don Perata and Assembly Speaker Fabian Nunez to stay on for years.

Now the bad news.

California's Legislature will likely remain severely dysfunctional and fail to represent the people's views on crime issues. The new leaders who emerge for both chambers may be just as bad as the ones we presently have. Term limits alone are like running with only one shoe. It doesn't matter if it's the best running shoe available; you need the other one.

Term limits deal with one reason why a legislature may fail in the basic function of representative democracy -- to represent the views of the people on the issues. When a legislator gains seniority, he may get reelected through his ability to bring home pork for the district and to raise campaign funds from big donors, even though he strays substantially from the median voter's views on the issues. There are limits to how far he can stray, of course, but the variance is substantial.

There is an additional reason, though. California's bipartisan gerrymander has all the districts skewed heavily to one party or the other. The primary is the real election in many districts, and the general election is an afterthought. Without a competitive general election, legislators have no need to be moderate. They can win the primary by playing to the base, and they don't need to track back to the center for the general.

If the Legislature tracked the population, moderate Democrats would hold the balance of power between the Republicans on one side and immoderate Democrats on the other. On those issues where independents and moderate Democrats favor the "conservative" position, which generally includes crime issues, bills would pass. That is not how it is. With Democrats having a majority and no need to moderate, the left fringe gets the leadership positions, runs the house, and makes sure conservative bills do not make it to the floor to be voted on. For crime issues, that means the Public Safety Committees of both houses are stacked with soft-on-crime majorities and chairs at all times. The committees have long been graveyards for good crime legislation, and they will likely remain so. Important, needed changes in criminal law in California must be made by initiative, with all the problems that entails.

To change this situation, we need a reapportionment reform that will (1) be passed by the people, and (2) actually work. Yet another "independent commission" proposal is headed for the ballot, but I am not optimistic on either score. The people have rejected such proposals in the past, and I'm not sure the commission would really be independent if it did pass.

Posted by Kent Scheidegger at 05:41 AM | Permalink | Comments (2)

With John McCain's emergence as the front-runner for the Republican nomination, there has been much discussion about the kind of judicial appointments he would make. For issues related to crime, judicial appointments are the single most important aspect of presidential authority. The federal government has relatively little to do with protection from and prosecution for crimes against individuals. Federal prosecution is more appropriately directed to terrorism, drug smuggling, and other specifically federal areas. However, the federal courts have a great deal to do with how prosecutions are conducted in state courts. Judge Henry Friendly warned us over four decades ago that the Bill of Rights was being transformed into a detailed code of criminal procedure. Judicially created rules that are not really in the Constitution and often have nothing to do with the reliability of the verdict -- and in some cases actually obstruct the search for truth -- operate to defeat the cause of justice every day in American courtrooms. Will the next President appoint judges who will take us further down that path or judges who will realize we have already gone too far?

Last week, John Fund kicked up a fuss with a story that Senator McCain had said that he would appoint judges like John Roberts but not like Samuel Alito, because the latter "wore his conservatism on his sleeve." There are multiple posts on National Review's Bench Memos. McCain says he doesn't recall saying that, he touts his record of supporting Alito, and he reaffirms that Alito is the kind of justice he would appoint. Libby Quaid has this story for AP. (The remark is factually wrong, of course. Alito isn't really much, if any, more conservative or more publicly so than Roberts. He is less smooth and polished, much like McCain is less polished than Mitt Romney. That isn't necessarily a bad thing.)

Collin Levy wrote on Thursday in the WSJ that "conservative court watchers are questioning whether [McCain] could be trusted to fill seats on the Supreme Court." To relieve these fears, Sen. McCain should go beyond naming examples and make clear his position on the Great Question of constitutional law:

In the context of judicial review of statutes, what is the nature of the Constitution? Is it a contract between the people and their government, to be enforced according to its terms as understood by the contracting parties at the time? Or is it a portal for wise, wonderful, black-robed platonic guardians to plug in to a Jungian cosmic consciousness, decide what is truly best for the great unwashed, and ram it down their throats whether they agree or not?

Many conservatives were deeply concerned with the nomination of Harriet Miers because, after reading every word of every published article she had written, we still had no idea what she thought of the Great Question. I had the deeply unsettling feeling that she hadn’t thought about it at all.

America’s law schools and bar associations are deeply committed to the second, wrong answer to the Great Question. A justice who sticks to the right answer will be flamed in the law reviews and will be persona non grata at ABA conventions. Sticking to the right answer, and not “evolving” to the wrong one, requires backbone and commitment.

A candidate seeking conservative support needs to make clear that he understands the Great Question, understands the answer, and is committed to appointing judges who are committed to the right answer.

Just as I finished this post, I received an email from the Federalist Society that they have an online debate among the candidates on the subject of judicial appointments. Senator McCain's submission is encouraging.

Posted by Kent Scheidegger at 02:12 PM | Permalink | Comments (1)

Crime and Politics: In Olympia, Washington, lawmakers are now targeting drunk drivers and sex offenders with new bill proposals. With 2008 being an election year, officials are now trying to get tough on crime. According to Curt Woodard, an AP writer in the Seattle Post–Intelligencer, officials seem to be focusing on areas such as privacy and free speech.
The proposals include:
- Allowing police to search cars without any suspicion in hopes of catching a drunk driver. Essentially, more DUI checkpoints.
- Force those convicted of multiple misdemeanors to submit a DNA sample into a government database
- Create the crime of viewing child pornography (even if it is an accident). People are urged to report any accidental viewing of child porn if they would like to be granted immunity.
House Judiciary Chairwoman Pat Lantz, D-Gig Harbor, is sponsoring the bill but questions the constitutionality of the measure. Gov. Chris Gregoire, who is proposing the bill, believes the bills are crafted well to create a balance in civil liberties.

Victims informed of inmate status
Under Colorado law, a victim has the right to be notified by the court, jail, and prison of the status of their offender. In the past, county jails have not been alerting victims fast enough when their perpetrators are release from jail.
Instead of using an electronic system the Sheriff's Office will start using the Victim Information and Notification Everyday web system (VINE), which will monitor inmates in only 64 county jails in Colorado. This internet system will notify crime victims by phone or email when the inmates are released from jail. The VINE system should be up and running in Colorado by August 2009. According to The Gazette, it will be funded by a $430,000 grant from the Bureau of Justice Administration.
The VINE system has been successful in 42 states helping fo free deputies from contacting multiple victims in one day and notifying the crime victim in a timely manner.

Posted by CJLF Staff at 10:08 AM | Permalink | Comments (0)