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The NY Times' new Supreme Court reporter will be Adam Liptak, reports Lyle Denniston at SCOTUSblog. Congrats to Adam. We have worked with him on other legal issues in the last couple of years and look forward to discussing the Supreme Court cases with him.
On the 40th anniversary of the assassination of Martin Luther King, Jr., Juan Williams has this op-ed in the Wall Street Journal on the state of Black leadership and Barack Obama. "While speaking to black people, King never condescended to offer Rev. Wright-style diatribes or conspiracy theories. He did not paint black people as victims." Can Obama do the same? "Last March in Selma, Ala., Mr. Obama appeared on the verge of breaking away from the merchants of black grievance and victimization. At a commemoration of the 1965 Selma-to-Montgomery march for voting rights, he spoke in a King-like voice."
But it wouldn't last.
But as his campaign made headway with black voters, Mr. Obama no longer spoke about the responsibility and the power of black America to appeal to the conscience and highest ideals of the nation. He no longer asks black people to let go of the grievance culture to transcend racial arguments and transform the world.
He has stopped all mention of government's inability to create strong black families, while the black community accepts a 70% out-of-wedlock birth rate. Half of black and Hispanic children drop out of high school, but he no longer touches on the need for parents to convey a love of learning to their children. There is no mention in his speeches of the history of expensive but ineffective government programs that encourage dependency. He fails to point out the failures of too many poverty programs, given the 25% poverty rate in black America.
And he chooses not to confront the poisonous "thug life" culture in rap music that glorifies drug use and crime.
Instead the senator, in a full political pander, is busy excusing Rev. Wright's racial attacks as the right of the Rev.-Wright generation of black Americans to define the nation's future by their past. He stretches compassion to the breaking point by equating his white grandmother's private concerns about black men on the street with Rev. Wright's public stirring of racial division.
Leadership failure is a recurring theme with Williams. Two years ago, he published a book titled Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America -- and What We Can Do About It. Here are a few excerpts from Chapter 5, Crime and Punishment:
Very few leading black voices in the pulpit or on the political stage are focused on having black people take personal responsibility for the exorbitant amount of crime committed by black people against other black people. Today's black leaders sing like a choir when they raise their voices against police brutality in the increasing number of black people in jail. The high note is always centered on white politicians who demonize black criminals.... But any mention of black America's responsibility for committing the crimes, big and small, that lead so many to prison is barely mumbled if mentioned at all.
[Bill] Cosby first broke with this orthodoxy during his original speech in May.... He really went off message when he directed fury at the parents, the church leaders, and the black intellectuals who defend black criminals as victims of racism deserving of sympathy. Cosby had another idea. He said they deserved contempt. He called them pure thugs, knuckleheads, and an embarrassment to the race....
In an interview for this book, Bill Cosby noted that the NAACP's national headquarters is located in Baltimore, a city with one of the highest murder rates in the nation. "I've never once heard the NAACP say, 'Let's do something about this,' " said Cosby. They never marched or organized, or even criticized the criminals.
Jeremiah Wright epitomizes the "phony leaders" that Williams denounces. His paranoid, hysterical rants may very well aggravate the problem of crime. Alienation from society inevitably weakens or even dissolves the bonds that cause people to believe they must obey society's rules regardless of whether or how much they might be punished for violating them. Crackpot conspiracy theories that our own government has intentionally unleashed an incurable, fatal disease can only serve to deepen the alienation and weaken the bonds. So, too, does the nonsense that the government is somehow affiliated with the Ku Klux Klan. Not only are Jeremiah Wright and others of his ilk not solutions to the crime problem and the incarceration problem, they are part of the cause.
Back to Williams' WSJ article today:
As the nation tries to recall the meaning of Martin Luther King today, Mr. Obama's campaign has become a mirror reflecting where we are on race 40 years after the assassination. Mr. Obama's success has moved forward the story of American race relations; King would have been thrilled with his political triumphs.But when Barack Obama, arguably the best of this generation of black or white leaders, finds it easy to sit in Rev. Wright's pews and nod along with wacky and bitterly divisive racial rhetoric, it does call his judgment into question. And it reveals a continuing crisis in racial leadership.
What would Jesus do? There is no question he would have left that church.
Clowning in Court: Memo to advocates: don't make stupid attempts at humor when you are in court on a very serious topic. Everybody knows that, right? Not quite. In a hearing on lethal injection in Ohio, ACLU legal director Jeff Gamso brought three Darth Vader masks to court and suggested that the three anonymous, medically trained members of the execution team could wear them while testifying. Judge James Burge was not amused. Neither was Ohio AAG Steve Maher. Brad Dicken reports here for the Chronicle-Telegram.
Phoenix Sniper Pleads Guilty: One of the two suspects arrested in 2006 for a series of random shootings in Phoenix between 2005 and 2006 has agreed to plead guilty. AP writer Chris Kahn reports that Samuel Dieteman also agreed to testify against his co-defendant Dale Hausner in a plea agreement which may spare him from a death penalty. The pair are implicated in shootings that killed seven and wounded 17. It is likely that Arizona taxpayers and the victims in this case will see justice done with less expense and more speed because the state has a death penalty that Dieteman wanted to avoid.
Creative Financing of the San Francisco District Attorney's budget has been found by federal auditors who want the city to repay $5.4 million in grants made by the Southwest Border Prosecution Initiative. The program funds border state prosecution of drug smugglers which could have been prosecuted by the federal government. The defendants are often illegal aliens. SF Chronicle reporter Jaxon Van Derbeken writes that while the city claimed it handled 2,241 cases, the audit reported that none were prosecuted by DA Kamala Harris' office. As a sanctuary city, San Francisco refuses to assist federal law enforcement in cases involving illegal aliens.
Police ID Bank Robber: Michigan police arrested a woman one hour after she attempted to rob a bank in Warren. Moments prior to pulling a gun and demanding money, the woman completed an account application and included the required picture ID. When she panicked and ran, police went to her nearby apartment and arrested her. "We're probably not dealing with the smartest person in the world," said the police commissioner. The AP story is here.
Releasing Criminals: "Lawmakers from California to Kentucky are trying to save money with a drastic and potentially dangerous budget-cutting proposal: releasing tens of thousands of convicts from prison, including drug addicts, thieves and even violent criminals," reports Ray Henry for AP. "'To open the prison door and release prisoners back into communities is merely placing a state burden onto local governments and will ultimately jeopardize safety in communities,' said Fresno Police Chief Jerry Dyer, who could see 1,800 inmates released in his area."
The Jefferson Warrant: The Los Angeles Times has this editorial regarding the case of the search warrant for Congressman Jefferson's office, previously noted here and here. "The U.S. Supreme Court this week missed an opportunity to make it clear that members of Congress suspected of a crime must answer to the law just as any ordinary citizen must."
Domestic Violence: The WaPo has this editorial on the case of Mark Castillo, who is charged with drowning his three young children. Among the problems, "A court-ordered psychological evaluation had concluded that the 'risk of harm Mr. Castillo poses to his children is low,' while noting that he loved and cared for his children."
Covert DNA Sampling: Amy Harmon has this story in the NYT on legal challenges to police gathering DNA from discarded items such as cigarette butts.
The Presidential Candidates' positions on crime and law enforcement are discussed in this article from Harvard's Nieman Watchdog by researcher Nonna Gorilovskaya. While the piece draws most its information from the decidedly pro-defendant Sentencing Project it does identify the change of positions on the death penalty by Senator Obama and Senator McCain's opposition to the a 1994 House measure called the "Racial Justice Act", which would have allowed defendants to litigate the false issue of "race-of-victim bias" in capital cases. The smoke and mirrors on this issue are explained here.
The Ninth Circuit today decided Osborne v. District Attorney's Office (Anchorage), No. 06-35875. (Hat tip: Ward)
William Osborne, an Alaska prisoner, brought this action under 42 U.S.C. § 1983 to compel the District Attorney’s Office in Anchorage to allow him post-conviction access to biological evidence—semen from a used condom and two hairs—that was used to convict him in 1994 of kidnapping and sexual assault. Osborne, who maintains his factual innocence, intends to subject the evidence, at his expense, to STR and mitochondrial DNA testing, methods that were unavailable at the time of his trial and are capable of conclusively excluding him as the source of the DNA....
[U]nder the unique and specific facts of this case and assuming the availability of the evidence in question, Osborne has a limited due process right of access to the evidence for purposes of post-conviction DNA testing, which might either confirm his guilt or provide strong evidence upon which he may seek post-conviction relief.
Connecticut residents were horrified last summer when two lifelong criminals reportedly raped, murdered, and killed a mother and her two daughters before setting their house on fire in an effort to cover their crimes. Stories here and here. Suspect Joshua Komisarjevsky lengthy arrest and parole history is detailed here.
Now comes information that another home invasion and murder this past weekend in Connecticut likely involved a sex offender with several previous convictions whose PSI's were waived several times:
When Williams was sentenced in 1996 and 2000 for burglary and sexual assault, the judges in both cases did not seek a report examining his personal history.Pre-sentencing investigative reports, known commonly as PSIs, are an exhaustive look into an offender's life.
Written by about 25 to 30 probation officers across the state, they can delve into an offender's drug abuse problems, school records, family history, past offenses, any mental health issues, social history and past success or failure with probation. Interviews with victims and family members are often conducted, giving a judge a fuller picture of an offender about to be sentenced.
According to a news story, the suspect said he had "no choice" but to kill the two women.
Hot on the heals of a recent study that found that neuroscience jargon made unlikely scientific claims more believable, comes a new study, covered by the BPS Research Digest, that found that simply showing a picture of a brain scan made bogus science more convincing.
More to read at the site, plus a link to How to Lie with fMRI Statistics.
Also referenced at Neuroethics & Law Blog.
California Attorney General, and former Governor, Jerry Brown is hinting he may run for governor again, according to this article in the SF Chron by John Wildermuth. His speech to the Democratic convention includes this statement:
When he was governor, there were 20,000 people in state prison, Brown said. Now there are more than 170,000, and "we've got more crime than ever before."
Um, excuse me. According the Bureau of Justice Statistics, the violent crime rate in 1982, the last full year Mr. Brown was governor, was 814.7 per 100,000 population. In 2006, the last year with final numbers, it was 532.5/100k. That is not more, Mr. Brown, that is 34.6% less. The property crime figures per capita are 6,470.7 and 3,170.9, respectively. That's less than half.
Even the absolute crime numbers are down from 1982 to 2006, despite a 47% increase in population.
Of course, there are multiple factors involved in the crime drop, but saying we have more crime now than then is just factually wrong.
Here is the BJS Data Online, if you'd like to check for yourself.
The Los Angeles City Council debated a resolution declaring a 40-hour moratorium on murder, David Zahniser reports for the LA Times. Commenters at the Volokh Conspiracy discuss whether this was an April Fool's joke. Ultimately, the council "decided instead to use the upcoming anniversary of Dr. Martin Luther King Jr.'s assassination as an occasion for promoting peace."
Of course, if they actually wanted to lower the homicide rate, they should call on the Legislature to enact reforms to actually enforce California's death penalty. As Paul Rubin of Emory University testified to Congress a couple of years ago, "The literature [on deterrence] is easy to summarize: almost all modern studies and all the refereed studies find a significant deterrent effect of capital punishment." But then again, if you only interested in making a statement and not in actually accomplishing anything, the research is irrelevant.
Appeal of Congressional Search Denied: The U.S. Supreme Court refused to hear the government's appeal of last year's DC Circuit holding regarding a search of the Congressional office of Rep. William Jefferson (D-La). A story by LA Times reporter David Savage discusses the lower court ruling in U.S. v. Rayburn Office Building and the effect of the high court's refusal to reconsider it. Jefferson is facing prosecution in Virginia on bribery charges.
Death Row Appeals by seven Mexican-born inmates in Texas were rejected by the Supreme Court yesterday. The condemned murderers had raised international rights claims which were addressed in last week's Medellin decision. A story by Houston Chronicle reporter Bennett Roth reports that fourteen Mexican nationals are currently awaiting execution in Texas.
Also on Medellin, the Federalist Society has an online debate here and here with Texas SG Ted Cruz, St. Louis U. Law Professor David Sloss, Georgetown U. Law Professor Nick Rosenkranz, and former State Dept. lawyer Edwin Williamson.
Military Commissions, challenged as unconstitutional in the pending Supreme Court cases of Boumediene v. Bush and Al Odah v. US, are the subject of this editorial in today's Wall Street Journal. The piece discusses the recent filing of charges against Gitmo detainee Ahmed Khalfan Ghailani, who is implicated in the 1998 bombing of two U.S. embassies which killed over 200, including 12 Americans.
Psychology and Crime News mentions several studies in the current issue of The Social Science Journal. The abstract for the study: Secondary analysis of dangerousness among death sentenced capital murderers reads thusly:
The theory of incapacitation involves reducing an offender's ability or capacity to commit further crimes. Capital punishment accomplishes this goal. An executed murderer never murders again. However, we do not execute all murderers, only capital murderers. This policy produces several research questions. Do capital murderers present a special risk to society? Are capital murderers more likely to murder or commit other violent crimes again than other murderers or the average citizen? To answer these questions, many states require a prediction of future dangerousness of a newly convicted murderer. To what extent has the judgment of future dangerousness matched actuarial data of subsequent murders and serious crimes? Using a secondary analysis, this investigation attempted to assemble available data of postconviction dangerousness of death sentenced capital murderers to create a more comprehensive actuarial account of subsequent dangerousness and to present the data in a common format used by the Federal Bureau of Investigation and the Bureau of Justice Statistics. Across 14 studies identified with relevant data, there were 13 instances of subsequent murder and 462 serious crime or prison rule violations.
From the very beginning -- in the pre-Internet dial-up BBS days -- online discussions have been infested with intellectual ankle-biters who have little or nothing of substance to add to the discussion and simply sling insults at those who do. This pollution of an otherwise valuable medium continues in the form of comments on blogs. A year and a half ago, SCOTUSblog tried an interesting experiment to clean up its comments by requiring commenters to use their real names. The experiment was a partial success, in my view, but not enough for the sponsors of the blog. A post there today states, in part:
At the beginning of OT06,* we instituted our current comment policy, whereby commenters will not be approved unless they leave their full names. We did that to prevent what we saw as unproductive sniping by a tiny minority of our readers that took away from the overall quality of the blog. After a year and a half of that policy, that sort of silly sniping has not abated despite the change.
As such, beginning immediately, we are going to formally disable the comments feature on most of our posts....
It is indeed unfortunate that it has come to this. I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.
So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.
*October Term 2006, the term of the United States Supreme Court beginning on the first Monday in October.
Julie Seamon has this article in the Georgetown Law Review on the impact of Crawford v. Washington on the practice of experts testifying on the basis of hearsay facts.
With respect to prosecution experts who testify in the form of opinions based upon testimonial hearsay statements, the answer is clear: such opinions should not be permitted. They fall squarely (so to speak) within the three corners of the expert testimonial triangle and sit at the convergence of the various lines of trust and distrust of juries, government, and experts. In other contexts, however, the answers are less clear. Where a government expert relies on evidence that is inadmissible, but not testimonial, Crawford and the Confrontation Clause do not apply and thus only two legs of the triangle are implicated. And with respect to a criminal defendant’s offer of expertise that rests on otherwise inadmissible hearsay, or in civil litigation, the expert testimonial triangle offers not concrete answers but rather directions for further exploration.
More on Medellin: An editorial in today's Washington Post reports its agreement with the Court's decision last week in Medellin v. Texas.
In addition, the Supreme Court denied certiorari in seven Texas capital cases it had been sitting on while it decided Medellin. Michael Graczyk has this story for AP.
Not much of interest in criminal law in the Supreme Court today. The Court decided an original jurisdiction case, New Jersey v. Delaware, involving a long-running dispute between those states regarding jurisdiction over the Delaware River. The only point of interest for us is that Justice Ginsburg wrote the opinion. See sudoku update, below.
In the orders list, the Court granted two civil First Amendment cases. No hot button criminal cases are in the denied list. Update: There is a criminal-related case that probably qualifies as "hot button." The Court turned down the Justice Department's certiorari petition regarding return of the materials seized in a search of Congressman William Jefferson's office. Robert Barnes reports here for the WaPo. DC Circuit opinion here. Cert. petition here. Curiously, the named party is not Congressman Jefferson but his office, Room 2113 in the Rayburn Building. I've heard of an office with prestige, but an office with standing is a new one to me.
Sudoku Update: The premise of SCOTUS sudoku is explained here. Since that previous post, we have had Medellin from the October sitting, written by Chief Justice Roberts, Hall Street from the November sitting, written by Justice Souter, and today's NJ v. Del from the December sitting, written by Justice Ginsburg. If the premise is correct, then United States v. Santos, the money laundering case, is being written by Justice Breyer or Justice Alito. Given the slowness of this opinion's emergence, I would bet on Breyer, who obviously spent a lot of time on his treatise dissent in Medellin. From November, United States v. Williams, the kiddie porn vagueness case, is being written by Justice Scalia or Justice Alito, probably not a good sign for the defendant. The biggie, Boumediene v. Bush, the Gitmo detainee case, is now down to Justice Kennedy or Justice Souter. Stay tuned.
In conjunction with James Q. Wilson's op-ed about the recent Pew report on incarceration and crime rates, Bill Stuntz states about a week ago:
One of the key lessons of the Iraq surge is that putting more boots on violent ground tends to reduce the violence. The same lesson applies in American cities, but for the most part, the lesson hasn’t been learned. For reasons that mystify me, the same state and federal governments that shower money on urban school systems give nearly nothing to urban police forces. That gets it backward: the correlation between more money and better schools is weak at best; the correlation between more cops and less crime is very strong.
There's much more to Professor Stuntz's post, including:
Overstretched big-city police forces tend to make lots of drug arrests, because those arrests are easy to make—and too few arrests for violent crimes, which require more manpower to investigate. Over time, those police forces have come to see drug punishment as a substitute for punishing violent crime. As the crime statistics of the last generation show, that substitution doesn’t work.
Perhaps this is true, but disentangling violence from drugs is a tall order:
From Bureau of Justice Statistics
Many more good thoughts about race, crime, and drugs from Professor Stuntz here and here.
James Q. Wilson has this op-ed in the Sunday LA Times, responding to the Pew report about 1 in 100 in prison and the accompanying hullabaloo.
In the last 10 years, the effect of prison on crime rates has been studied by many scholars. The Pew report doesn't mention any of them. Among them is Steven Levitt, coauthor of "Freakonomics." He and others have shown that states that sent a higher fraction of convicts to prison had lower rates of crime, even after controlling for all of the other ways (poverty, urbanization and the proportion of young men in the population) that the states differed. A high risk of punishment reduces crime. Deterrence works.But so does putting people in prison. The typical criminal commits from 12 to 16 crimes a year (not counting drug offenses). Locking him up spares society those crimes. Several scholars have separately estimated that the increase in the size of our prison population has driven down crime rates by 25%.