Results matching “first”

As a matter of Constitutional law, it seems to me that the dissents in Miller had the better of the argument.  But for those worried that Miller is nothing more than the continuation of the slow chipping away of both capital punishment and LWOP, with Justice Kennedy providing the key vote (see Roper and Kennedy v. Louisiana), let me try to provide some cheering up.  Miller is different in one very important way.

Nearly as suddenly, violent crime began to ebb across the country. The reasons for the drop-off are vigorously debated, with many liberals denying any link to incarceration rates. But William G. Otis, a top Justice Department official under the first President George Bush who is an adjunct law professor at Georgetown University in Washington, said there was little doubt in his mind that one reason for the decline was that "the people who have been committing these crimes are now in jail."

Still, he expressed satisfaction with Monday's ruling because it reduced reliance on mandatory sentencing and gave discretion back to judges who may still decide to put someone away for life.

"It's a mistake for the system to carve out classes," he said. "You should look at each case individually." 

Just so that I won't be misunderstood, my "satisfaction" with the opinion in Miller lay in its rejection of a blanket rule barring LWOP and its embrace of a case-by-case approach, not in its Constitutional holding that a penalty in force in 29 states is cruel and "unusual."

I take further heart that the case-by-case approach was set forth by Justice Kagan, giving credence to her confirmation hearing testimony that she would not adopt the one-size-fits-all rule for death penalty cases used by Justice Marshall, for whom she clerked.

Arizona Executes Inmate for 1986 Murder: Bob Ortega and Michael Kiefer of The Arizona Republic report Samuel Lopez was executed by lethal injection in Arizona this morning for sexually assaulting and stabbing a woman to death in 1986. Estefana Holmes, a grandmother and seamstress, was stabbed more than 23 times and her throat was slashed with her own kitchen knives. For the first time, the state's Department of Corrections allowed witnesses to watch the executioners insert the intravenous catheters that deliver the single drug pentobarbital, via close-circuit TV. More than a dozen of Holmes' family members spoke at the Board of Executive Clemency hearing on Friday in favor of Lopez's execution. "We are not here to seek vengeance nor to avenge, but to seek justice for our family. This execution today will not bring our beloved Tefo back, but hopefully will bring closure," Holmes' brother said after the execution.

Prison Lawsuits Over Air-Conditioning, Food: Manny Fernandez of The New York Times reports a wrongful-death lawsuit was filed in federal court in Texas on Tuesday on behalf of the family of former prison inmate Larry Gene McCollum, who died last summer due to hyperthermia. The 345-poud McCollum, who also had hypertension, had a seizure and fell from his bunk bed while at the Hutchins State Jail outside Dallas. In 2008, former South Texas inmate Eugene Blackmon filed a lawsuit claiming the hot conditions inside his dormitory caused him to have headaches, blurred vision, and nausea. Blackmon was in prison during the summer of 2008 for a parole violation on a stolen-goods charge. The lawsuit claims 54 inmates were exposed to conditions in which the heat index topped 126 degrees for 10 days indoors. The lawsuit was denied by a lower court, and is waiting on a ruling by the Fifth U.S. Circuit Court of Appeals. John Marzulli of New York Daily News reports ex-Rikers Island inmate Michael Isolda is suing the city of New York for $80 million. Isolda previously underwent gastric bypass surgery, and says he needed more time than was allowed to chew and swallow food. Isolda claims the rushed eating caused him to vomit after every meal and eventually caused his stomach to become separated from his intestine. As a note, the article contains some unsightly photos of Isolda.

Arkansas Supreme Court and the Separation of Powers: Roy Ockert has this piece in Arkansas News regarding the Arkansas Supreme Court's ruling Friday that declared the state's execution method unconstitutional. The decision came in a lawsuit filed by 10 condemned inmates against the Arkansas Department of Correction that challenged a 2009 law in which the Legislature gave the state's Department of Correction discretion in determining how to carry out lethal injections. The law was passed in an attempt to correct issues cited in a previous lawsuit regarding the state's lethal injection process. The Arkansas Supreme Court said the move violated the constitutional doctrine of separation of powers. Associate Justice Karen R. Baker pointed out in his dissent that the "separation of powers" argument had been rejected in similar death penalty challenges in Texas, Delaware, Idaho and Florida. Those states had assigned the relevant administrative agency the responsibility for determining the execution procedures. "The Supreme Court justices need to figure out how to carry out the responsibilities of the judicial branch and administer justice to these men," Ockert says.

A few more quick thoughts on the scope of today's decision in Miller v. Alabama.

Many states are already in compliance.  For example, California Penal Code § 190.5(b) provides that the sentence for a juvenile convicted of first-degree murder with special circumstances (our odd term for capital murder) is LWOP or 25-to-life "at the discretion of the court."  In my opinion, this complies with today's decision.

All new U.S. Supreme Court decisions are retroactive to cases pending on direct appeal, as Miller was.  They can be retroactive to cases on state collateral review, as Jackson was.  States can choose to follow the Teague rule or not.  (Danforth v. Minnesota.)

New rules that make a defendant categorically ineligible for a punishment (Atkins, Graham) apply retroactively on federal habeas corpus.  New rules of procedure do not unless they are "watershed" rules, and the Supreme Court has not found a single new rule to be "watershed" since it set up this framework in 1989.

In addition, Congress has provided that a claim rejected on the merits in state court cannot be overturned on federal habeas if it was reasonable under Supreme Court precedent existing at the time.  (28 U.S.C. §2254(d))

So, for cases that were already final on appeal before today, I think there is a strong case for resisting retroactive application.

Regrettably, it appears that the Court has imported its entire, deeply flawed, "individualized sentencing" regime from capital punishment into JLWOP.  Juveniles facing LWOP now have a federal constitutional right a la Lockett to bring in everything including the kitchen sink and then file federal habeas petitions to second-guess the trial judge on the details of the proceeding.

One more reason for the next Congress to remove sentencing-phase claims from federal habeas altogether.

The initial report from AP this morning said that the Supreme Court had banned life-without-parole for juveniles convicted of murder.  That is wrong.  The Court actually held in Miller v. Alabama that a mandatory sentencing statute for JLWOP is unconstitutional.  In other words, the Court is continuing on the track of applying to life-without-parole for juveniles the same kinds of limitations it has long applied to the death penalty for adults.  First they banned the penalty for crimes less than murder.  Today, they require that the sentencer have discretion to impose it or not.

AP reports that the President of Uruguay has proposed that the government itself sell marijuana, as a monopoly.

As a purely personal opinion (CJLF has taken no position on the legalization issue), I think that government monopoly may be the least bad of the alternatives.

Some years back, Nicole Richie was in a TV show (which I never watched*) called The Simple Life.  Two spoiled rich girls do the Green Acres bit and go live in the country.  So on the 2003 Billboard Music Awards, she said, "Why do they even call it The Simple Life? Have you ever tried to get cow @#*& out of a Prada purse? It's not so $%*&ing simple."

The question of whether it violates the First Amendment for the FCC to punish the broadcaster for this made its way for the second time to the Supreme Court.

What's the answer?  It's not so $%*&ing simple. 

So the Court ducked the First Amendment question and decided on the due process ground that the broadcasters had not received sufficient notice of the standards to be applied.

Solitary Confinement Hearing on Capitol Hill: Erica Goode of The New York Times reports the Senate Subcommittee on the Constitution, Civil Rights, and Human Rights on Tuesday held a hearing to review the use of solitary confinement in U.S. prisons - the first time the issue has been taken up by lawmakers on Capitol Hill.

New State Law Requires Sex Offenders to List Status on Social Media Sites: Michael Martinez of CNN reports a new Louisiana state law effective August 1 requires sex offenders and child predators to state their criminal status on social networking pages like Facebook. The law states that sex offenders and child predators must include in their profile for the sites an indication that they are a sex offender or child predator, the crime for which they were convicted, the jurisdiction of conviction, a description of their physical characteristics, and their residential address. Violators could face time in prison without parole and a fine.

Prosecutors Ask for Psychiatric Care Instead of Prison for Norwegian Mass Killer: The Associated Press reports prosecutors on Thursday requested that confessed mass killer Anders Behring Breivik be sent to a mental institution instead of prison for killing 77 people in a gun and shooting rampage in Norway last year. The court is expected to issue its ruling next month.

Changes to Racial Justice Act Head to Governor: The Associated Press reports the North Carolina Legislature gave final approval Wednesday to a bill that would make changes to the state's 2009 Racial Justice Act. Statistics alone will no longer be enough to prove race was a significant factor in a death penalty case. The time period in which statistics can be used to prove bias will be capped to 12 years around the murder case, and statistics can only be used for the county and prosecutorial district where the crime occurred. When the bill reaches her desk, Governor Beverly Perdue will have ten days to decide whether to veto the bill or sign it into law.

Inmates Rewarded for Beating New Locks: The Associated Press reports jail officials in Atlanta are challenging inmates to defeat the new locks being tested on doors in one cell block, and are offering free food as a reward. Hundreds of locks at the Fulton County Jail can be jammed, which allows inmates to get access to each other. Fulton County's chief jailer, Col. Mark Adger, said they are choosing experienced lock beaters to try and get past the new locks.

7 California Cities in Top 10 for 2011 Vehicle Thefts: PR Newswire reports information from the National Insurance Crime Bureau shows seven California cities are in the top ten for vehicle thefts across the country in 2011. Fresno, Modesto, and Bakersfield-Delano were ranked first, second, and third for the second year in a row. Under California's new Realignment law, car thieves will not be sentenced to prison.

Florida Hit With Another Lawsuit Over Voter Purge: Newsmax reports Florida was hit with another lawsuit Tuesday over Governor Rick Scott's effort to purge the state's voter rolls of non-citizens. The lawsuit was filed in federal court in Miami by a coalition of voting rights organizations on behalf of various plaintiffs that include the Florida Immigrant Coalition, the National Congress for Puerto Rican Rights, and a local chapter of the Service Employees International Union. The lawsuit names Florida Secretary of State Ken Detzner as the defendant. It accuses Florida of violating Section 2 of the Voting Rights Act because a large number of those targeted in the purge of non-citizen voters are Hispanics.

Chicago Event Offers $100 for Turning in Guns: CBS Chicago reports the Chicago Police Department is partnering with 20 churches on Saturday for a gun turn-in event called, "Don't Kill a Dream, Save a Life." Anyone who turns in a real gun will receive a $100 gift card, and replicas and BB guns are worth $10. "No questions asked," said First Deputy Supt. Alfonza Wysinger. "Just show up at the church, and hand over the weapons to the CPD officer that will be there, and get your $100 gift card."

Dead Dog Receives Virginia Voter Registration Forms: Aaron Martin of WSLS 10 (VA) reports Tim Morris of Bedford County, Virgina received a document asking his dog, Mozart, to register to vote. It is addressed to Mo, the family's nickname for the dog, who would have been eligible to vote for the first time in 2012 if he was a human. "He would have been 19 years old this year and he passed away two years ago," Morris said. "I still have no earthly idea how they got his information." The forms were sent by the non-profit Voter Participation Center, not the State Board of Elections, which says that since the Voter Participation Center is a private organization, they can't stop the group from sending out voter registration forms.

Condemned Inmate Says in Letter His Death Will Bring Justice: Kristi Eaton of the Associated Press reports, in his first public comments since his October sentencing, South Dakota death row inmate Eric Robert said in a letter that the South Dakota Supreme Court owes it to him and his victim's family to let his execution proceed in a timely manner. He said it's the only way his victim's family can get justice. Robert pleaded guilty to killing a prison guard in April, 2011. He had been serving an 80-year sentence for a kidnapping conviction. "Victims of non-capital offenses receive their justice when the perpetrator is placed in custody. Victims in capital cases receive their justice when the perpetrator is executed. Give the Ron Johnson family their justice, they have been forced to wait too long," he said.

U.S. Will Seek Death Penalty Against Rhode Island Inmate: The Associated Press reports federal authorities announced Monday their intention to seek the death penalty against Jason Pleau if he is convicted of the shooting death of a gas station manager outside of a bank in 2010. Pleau had been in the middle of a legal tug-of-war between Rhode Island's governor and federal prosecutors. Rhode Island Governor Lincoln Chafee had been fighting to prevent Pleau from being tried in federal court, where he could face the death penalty. Rhode Island, where Pleau is serving an 18-year sentence for a probation violation in another case, does not have capital punishment. The Justice Department was ordered by a U.S. District Court judge earlier this month to say whether or not it intended to seek the death penalty in this case.

Execution Date Set for Oklahoma Inmate: Rachel Petersen of McAlester News-Capital reports an execution date has been set for August 14 for Oklahoma death row inmate Michael Edward Hooper. In 1993, Hooper killed his 23-year-old ex-girlfriend and her two children - Tanya, age 5, and Timmy, age 3. "Hooper shot each victim in the head twice and buried their bodies in a shallow grave in a secluded field," said Oklahoma Attorney General Scott Pruitt. "The victims had been missing for several days before being discovered."

At NLJ, Tony Mauro reviews Reading Law: The Interpretation of Legal Texts, the second book by Justice Scalia and Bryan Garner.

Overall, the 567-page book is an extended plea for judges to hew to the text of statutes and the Constitution in making their decisions and to ignore extraneous factors such as legislative history, the workability of the statute, and the presumed purpose of legislation - though it says that the tongue-twisting "purposivist" approach is sometimes relevant. "We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation" about the drafters' intentions and the law's anticipated consequences.

*                               *                              *

In the preface, Scalia and Garner address that point. "If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it." Describing himself as a "confessed law-and-order social conservative," Scalia said textualism has led him to seemingly liberal positions on criminal sentencing, confronting witnesses, punitive damages and the constitutionality of bans on burning the American flag. For his part, Garner said he is pro-choice and supports same-sex marriage, but "finds nothing in the text of the Constitution that mandates these policies."

If the defense claims that the prosecutor is challenging jurors on the basis of race, and the prosecutor asserts race-neutral reasons, who decides if the prosecutor is telling the truth?  The trial judge does.  The appellate court's review of that decision is deferential -- "substantial evidence."  On federal habeas, review is "doubly deferential."  Habeas is denied if the state appellate court's deferential review of the trial court is at least reasonable.

Briggs v. Grounds, No. 10-16683, decided by the Ninth Circuit today, is a good example.  The opinion is by Judge Tallman, joined by Judge Graber.  Judge Berzon dissents.  All three were appointed by President Clinton, for those who like to keep track.

The case is also an example of how a rule that sounds good in theory can produce a lot of unproductive litigation.  Here are the facts of the case, from the opinion:

The US Supreme Court has denied a stay and certiorari for Mississippi murderer Jan Michael Brawner.  Earlier, Holbrook Mohr had this story for AP on the crime and the Mississippi Supreme Court's denial of a stay.

Brawner was sentenced to death for the April 25, 2001, shooting deaths of his daughter, Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft. Brawner killed them in their in Tate County home, stole about $300 and used his former mother-in-law's wedding ring to propose to his girlfriend the same day, according to court records.

*                                *                               *

He shot the former mother-in-law first, then his ex-wife. His daughter, Paige, watched the killings, court records said.

"After Brawner determined that Paige would be able to identify him, and in his words, he 'was just bent on killing,' he went back into the bedroom and shot his daughter twice, killing her," court records said.

He shot and killed Carl Craft when he got home from work and stole his wallet and the ring.

Paige was three years old.

Further info is in the Mississippi DoC media kit.

Update:  Done.  See AP story.

Judge Kozinski described the crime in his opinion last year affirming denial of federal habeas relief.

With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom. Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood--just as his ex-wife had seen him do to "play[ ] with the female sexual organs of a deer." State v. Leavitt (Leavitt I), 775 P.2d 599, 602 (Idaho 1989). We decide whether Leavitt's lawyer rendered ineffective assistance of counsel while trying to have him acquitted of the death penalty.

The crime was in 1984.  Leavitt's first death sentence was reversed on appeal, and he was resentenced to death in 1990.  That sentence was affirmed on appeal in 1991.  Localnews8.com, an Idaho television station, has this timeline.  The execution was completed at 10:25 MDT this morning, the Spokesman-Review reports.

Most of the time from 1991 to the present has been taken up in federal habeas proceedings relating only to sentence.  It is time to recognize that these proceedings are doing more harm than good and get rid of them.  Execution of a person who is, in fact, guilty of murder and legally eligible for the death penalty is never an injustice of a magnitude that justifies the resources we are spending on these reviews.  The delay in the execution of well-deserved death sentences, such as this one, is an injustice of far greater magnitude.

Federal habeas for state prisoners should be limited to issues relevant to the determination of guilt and legal eligibility for punishment.  Once we know the petitioner is guilty and the punishment was within the range of discretion of the sentencer, all other issues should be left for final determination by the state courts.

The US Supreme Court today took up a double jeopardy case, Evans v. Michigan, No. 11-1327, for argument and decision next term.  This case arises on direct appeal, so there are no AEDPA issues.  The Michigan Supreme Court opinion is here.  The first paragraph is:

This case presents the question whether the Double Jeopardy Clauses of the state and federal constitutions bar defendant's retrial. Defendant was accused of burning a vacant house and charged on that basis with burning other real property in violation of MCL 750.73. There is no dispute that the trial court wrongly added an extraneous element to the statute under which defendant was charged. Specifically, the trial court ruled that the prosecution was required to present proof that the burned house was not a dwelling, which is not a required element of MCL 750.73. As a result of the trial court's erroneous addition of this extraneous element to the charged offense, it granted defendant's motion for a directed verdict and entered an order of acquittal, dismissing the case. We hold that when a trial court grants a defendant's motion for a directed verdict on the basis of an error of law that did not resolve any factual element of the charged offense, the trial court's ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Accordingly, because the trial court's actions did not constitute an acquittal for the purposes of double jeopardy, we affirm the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

Contempt Vote Against Holder Scheduled: Sharyl Attkisson of CBS News reports Rep. Darrell Issa (R, CA) announced Monday the House Oversight Committee will vote Wednesday, June 20, on whether to hold Attorney General Eric Holder in contempt of Congress. The contempt action stems from Holder's failure to hand over documents subpoenaed on October 12, 2011 related to the Fast and Furious "gunwalking" investigation. Issa says the contempt process can be stopped at any time by the Justice Department turning over the subpoenaed documents. A full House vote will likely be scheduled in the matter if the House Oversight Committee approves the contempt citation.

FBI Says Reported Crime Down: Pete Yost of the Associated Press reports the number of reported violent crimes across the U.S. fell 4 percent in comparison to 2010. The FBI also said the number of reported property crimes went down 0.8 percent. This is the fifth straight year of declines for violent crimes and ninth straight year of declines for property crimes, according to preliminary FBI data. The decline in crime was more significant in the first half of 2011 than the second half of the year. The FBI gathered information from 14,009 law enforcement agencies around the country.

9th Circuit Rules in Favor of News Groups for Execution Viewing: Jessie L. Bonner of the Associated Press reports the 9th U.S. Circuit Court of Appeals on Friday ruled that witnesses, including reporters, should be allowed full viewing access to Idaho's upcoming execution. The decision came a day after the court heard arguments in a lawsuit from the Associated Press and 16 other news organizations seeking to change Idaho's protocol, which prevents witness from viewing executions until after catheters have been inserted into the veins of the inmate.

Florida Sued Over Voter Roll Purge: Gary Fineout of the Associated Press reports a Hispanic civic organization and two naturalized citizens filed a lawsuit on Friday, asking a federal court to stop Florida from continuing its purge of ineligible voters from the state's voter rolls. On May 31, the U.S. Department of Justice sent a letter to Florida saying the purge violates federal law. Last week, the state said it disagreed with federal authorities.

CA Supreme Court Clarifies Residential Burglary: Bob Egelko of the San Francisco Chronicle reports the California Supreme Court ruled unanimously on Thursday that in the case of residential burglaries, "Something that is outside must go inside for an entry to occur," Justice Goodwin Liu said. The ruling came in the case of Christopher Magness, who was arrested in July 2010 after using a remote control to open a garage door. The homeowner heard the door opening, found Magness standing outside, chased him down, and called sheriff's deputies, who arrested Magness. Deputies found the garage remote control on the driveway, which Magness had taken from the owner's car. Magness was charged with burglary, but Liu wrote that even though Magness may have intended to break into the home, "he did not commit burglary because he did not enter the residence. Nothing penetrated the outer boundary," which means he can only be convicted of attempted burglary. Magness also has a previous felony conviction that falls under the state's three-strikes law. His lawyer said that by charging the more serious crime only if there is a physical entry, "you're giving perpetrators pause to think about what they're doing."  The case is Magness v. Superior Court, S194928.

Officer-Involved Shootings Trending Upwards Nationwide: Chip Johnson of the San Francisco Chronicle reports that the recent increase in officer-involved shootings in the Bay Area (five since May 6) are part of a national trend. Craig W. Floyd, executive director of the National Law Enforcement Officers Memorial in Washington, D.C., said the number of officers slain in the U.S. has risen by 75 percent since 2008. Johnson makes the point that while police officers face criticism and allegations over these incidences, it's police officers who have increasingly become the targets of violence as symbols of authority. "The cops across America I speak to every day say there is a more brazen, desperate criminal they are dealing with," Floyd said. "A lot of people who assault police officers are career criminals who've been in jail and don't want to go back. Oftentimes they don't think twice about assaulting the officer who comes to make the arrest, and we're seeing more and more of it."

CA Parolees Released From Supervision At Alarming Rate: Jason Song and Andrew Blankstein of the Los Angeles Times report about 8,500 parolees were released from supervision in April, compared to about 1,300 in March. "Taking away parolee status, from a law enforcement perspective, removes a valuable tool that officers use to ensure compliance with the law," Long Beach Police Chief Jim McDonnell said. "We will no longer have the ability to violate their parole based on criminal behavior but rather we will have to arrest and prosecute them on a new charge, which is resource-intensive and time-consuming." Under Realignment, some parolees can be discharged from supervision in as little as six months, whereas before they had to wait at least a year. Some law enforcement officials fear the reduction of services and assistance for offenders will make recidivism more likely.

Why Three-Strikes is Worth the Cost: Brik McDill, in an opinion piece for The Bakersfield Californian, discusses the criticism of the cost of California's three-strikes law, but says many cost analyses neglect to consider the incalculable costs of the direct and indirect damage caused by career-criminals. McDill reminds the reader that a criminal has typically committed numerous unapprehended crimes by the time of his first arrest, and is often given numerous second chances before incarceration, so to be sentenced for a third-strike is no small feat. He says the costs of not incarcerating a third-striker are greater when we factor in the front- and back-end costs of crime, in addition to the costs to the victims and those entities directly and indirectly affected by one criminal. "In the broader view, $47,000 per year to incarcerate the career criminal might be the better deal, at least until we've found what reliably works in terms of criminal rehabilitation," McDill says.

Arizona Public Defenders Withdraw Execution Petition: The Associated Press reports the Federal Public Defender's Office in Phoenix withdrew its petition to the 9th U.S. Circuit Court of Appeals on Thursday over Arizona's execution procedure. Dale Baich said his office wanted to clarify whether lawyers would be included as witnesses allowed to see the IV process before withdrawing the petition. Arizona's new policy will begin with the June 27 execution of Samuel Villegas Lopez. Baich says he is on the witness list as Lopez's counsel.

Here is an entry from the It Could Have Been Worse file.  (In this case, vastly worse.) Joanna Molloy reports for the NY Daily News:

Bill Clinton confirmed Tuesday night for the first time longtime speculation that he offered then-Gov. Mario Cuomo a spot on the U.S. Supreme Court.

The point the former President was trying to make was how dedicated Cuomo was to New York.  The point he actually made is how lucky America is that Clinton didn't completely screw up his Supreme Court nominations.

Ohio Governor Issues 2-Week Reprieve for Condemned Inmate: Andrew Welsh-Huggins of the Associated Press reports Ohio Governor John Kasich granted a temporary reprieve on Tuesday night for Abdul Awkal, who was scheduled to be executed within 18 hours when the governor made his announcement. Kasich granted the two-week reprieve to allow for a hearing on Awkal's mental competency. Awkal was sentenced to death for killing his estranged wife and brother-in-law at a Cleveland courthouse.   

Federal Judge Rejects Media Groups' Idaho Execution Access Lawsuit: Jessie L. Bonner of the Associated Press reports a federal judge on Tuesday rejected a lawsuit filed by the Associated Press and 16 other news groups last month over a policy in Idaho that prevents witnesses from viewing the entire lethal injection process. "The claim was brought very late, and if granted, it would undoubtedly change the execution protocol and could disrupt the scheduled execution," U.S. District Judge Edward J. Lodge said. "The public has an interest in viewing the whole execution process, but it also has an interest in seeing the judgment enforced without disruption." The attorney for the news organizations said they will appeal to the 9th U.S. Circuit Court of Appeals.

Jury Recommends Death for CA Cop Killer: The Associated Press reports a jury on Tuesday recommended the death penalty for Earl Ellis Green, who was convicted of first-degree murder last month for killing a Riverside police officer.  Officer Ryan Bonaminio pulled Green over in response to a hit-and-run report. In 2010, Bonaminio chased Green on foot down a darkened park path, where Green beat him with a metal bar and shot Bonaminio with his own service weapon after he slipped and fell. 27-year-old Bonaminio was a Riverside native and a war veteran, having served with the Army in Iraq. Green was also found guilty of vehicle theft with a previous conviction for vehicle theft and of being a felon in possession of a firearm. He is scheduled to be sentenced on June 25.

NYC Mayor Supports Decriminalization of Marijuana: Thomas Kaplan of The New York Times reports New York City Mayor Michael Bloomberg on Monday endorsed a proposal to decriminalize the open possession of small amounts of marijuana. The proposal is an effort by New York Governor Andrew Cuomo to cut down on the number of people arrested because of police stops, specifically due to the police department's stop-and-frisk practices. Bloomberg and police officials agree that the practice has made the city safer, but it has been criticized as racially biased. Under Cuomo's proposal, the possession of 25 grams or less of marijuana in public view would be downgraded from a misdemeanor to a violation. The maximum fine for first-time drug offenders would be $100. 

Another Case Challenges Provision of Connecticut Death Penalty Repeal: Brian Burnell of New England Cable News reports Connecticut's Supreme Court on Monday overturned the death sentence of Eduardo Santiago and ordered him a new penalty phase trial for his conviction in the killing of a man in exchange for a broken snowmobile. The state's recent death penalty repeal is prospective in that it keeps the death sentences intact for those sentenced before the repeal, but bans any future death sentences. Burnell questions how that is going to work in this situation. If Santiago gets another death sentence from the new penalty phase trial, "Doesn't that mean he's being sentenced to death in a state that doesn't have capital punishment anymore?  Sounds like another avenue of appeal," Burnell said.  

The District Attorney's office is not for sale, not even in America's largest county, where media campaigning is more of a necessity than elsewhere.

On Sunday, Christina Villacorte reported in the L.A. Daily News that "City Attorney Carmen Trutanich ... ha[d] more than twice as much money as his closest rivals, Deputy District Attorneys Alan Jackson and Jackie Lacey."  That was evident to anyone watching L.A. television Monday night.

This morning, with all precincts reporting, the county election office shows Lacey first, Jackson second, and Trutanich third, meaning a runoff between Lacey and Jackson.  Jackson's margin over Trutanich is only 1.3%, but that is likely enough to preclude any change in result through a recount.

FWIW, Trutanich was endorsed by Gov. Jerry Brown, and Lacey was endorsed by outgoing DA Steve Cooley.

There are several doctrines related to criminal law in which the decision turns not on a federal court's opinion on a point of law as such but rather how clearly that point was established at the time someone else had to make a "judgment call."  Among these are the retroactivity rule of Teague v. Lane, the qualified immunity rule for civil suits against law enforcement officers, and the so-called deference rule for federal habeas review of points decided on the merits in state court, 28 U.S.C. §2254(d).

Do you need Supreme Court precedent to establish a rule with sufficient clarity, or will on-point circuit precedent do?  For §2254(d) there is no doubt.  Congress explicitly said Supreme Court precedent.  For the other two judge-made rules, however, the issue remains unresolved.

In Reichle v. Howards, the Supreme Court today decided one subsidiary question.  Howards claimed that an arrest by Secret Service agents was actionable, despite probable cause, because it was in retaliation for his exercise of First Amendment rights.  He had on-point precedent of the Tenth Circuit (the circuit the case was in) for that proposition.  Easy case, right?

Much of the difficulty conservatives have in presenting their side of the criminal law debate lies in what the popular press elects to cover, and what it elects to ignore. When there is an exoneration from a conviction and sentence (an actual exoneration, that is) we often get a front page story.  But when, for twenty years, the crime rate has been in free fall  -- with, and in significant part because of, increased incarceration  --  there might be an occasional raised eyebrow in the press, but only to note that incarceration is oh, so inhumane  -- and, besides, golly, we can't really know the reasons for so much less crime, except maybe sunspots.

10 California Inmates Held in Isolation Sue State: Bob Egelko of the San Francisco Chronicle reports 10 inmates held in isolation at California's Pelican Bay State Prison sued the state Thursday. The proposed class action on behalf of the unit's 1,000 inmates seeks court orders limiting stays in the isolation unit to 10 years, requiring regular review, and barring what is described in the suit as sensory and environmental deprivation.

Prison to Hire Friends for Norwegian Mass Killer: The AFP reports if mass murderer Ander's Breivik is sentenced to the high security prison in Norway, the government will pay people to socialize with him, because he cannot have normal contact with others inside the prison, and it is illegal to hold people in complete isolation in Norway. Ila prison director Knut Bjarkeid said Breivik could be allowed to do things like playing sports with the guards or playing chess with someone the prison hires. "We are planning a professional community around him, with employees and hired personnel," Bjarkeid said. In July 2011, Breivik bombed a government building, killing eight people, before going on a shooting rampage at a summer camp, killing 69 people, most of them teenagers.

CA Bill Would Extend Medical Release to County Jails: Patrick McGreevy of the Los Angeles Times reports the California Senate on Wednesday approved a bill that would allow county jails to release terminally ill and medically incapacitated inmates before they have served their full sentence. Sheriffs could release prisoners determined by a doctor to have six months or less to live and are deemed not a threat to society. A county sheriff could also grant medical probation to physically incapacitated inmates. The most recent version of the bill, SB 1462, is here. 

Justice Department Tells Florida to Stop Non-Citizen Voter Purge: Marc Caputo of The Miami Herald reports the Justice Department, in a letter sent late Thursday night, ordered Florida's elections division to stop its effort to find and purge noncitizen voters from the state's voter rolls. T. Christian Herren Jr., the Justice Department's lead civil rights lawyer, says Florida's effort violates the 1965 Voting Rights Act and the 1993 National Voter Registration Act. So far the state has flagged about 2,700 noncitizen voters, and is asking counties to contact those voters by mail. Those who haven't responded by a certain time after being contacted could be stricken from the rolls. The state has until next Wednesdays to reply to the Justice Department with its planned course of action.   

CA Senator Calls for Repeal of Realignment: California Senator Tom Berryhill (R, Modesto), who represents the 14th Senate District, has this opinion piece, where he calls on the majority party in California to put communities first and repeal the state's realignment law. He writes, "...our communities are prey to the violent felons they have released early because they refuse to prioritize public safety." He says realignment should really be called "the early release of violent criminals into our neighborhoods for political expediency's sake."

California AG Will Not Appeal Release of Convicted Murderer: Bob Egelko of the San Francisco Chronicle reports Lynda Gledhill, a spokeswoman for California Attorney General Kamala Harris' office, said the office will not appeal last week's ruling by a state appeals court in San Francisco that Carl Wade is entitled to "compassionate release." Harris' office could have asked the state Supreme Court to review the case. Wade was convicted of first-degree murder in 1989 for the 1986 shooting death of a fellow woodcutter who shared his trailer home. He was sentenced to 32 years to life in prison. Wade was classified as totally disabled in 2007, and diagnosed as terminally ill last summer. His lawyer says Wade will be freed from a state prison in Vacaville within days to live with his sister and her family in Chico.

Unabomber Submits Update to Harvard Alumni Book: Denise Lavoie of the Associated Press reports Unabomber Ted Kaczynski, a Harvard University graduate, was invited to submit an entry for the 50th class reunion report. In the alumni directory, Kaczynski lists his occupation as "prisoner" and says his awards are "Eight life sentences, issued by the United States District Court for the Eastern District of California, 1998." The alumni association says it now regrets allowing his update to be published. "While all members of the class who submit entries are included, we regret publishing Kaczynski's references to his convictions and apologize for any distress that it may have caused others," the Harvard Alumni Association said in a statement. A Harvard spokesman said the update was submitted by Kaczynski, though did not say how that was confirmed.
Shermantine Admits Involvement, Says Tries Not to Think About It: Koula Gianulias of CBS13 reports California death row inmate Wesley Shermantine, who has blamed all of the murders he was convicted of on Loren Herzog since his arrest in 1999, admitted some responsibility for the crimes that spanned two decades. In an interview, Shermantine said, "I had an active role." Shermantine wouldn't say any names, and said he's going to reveal everything in a book. He said he was inspired to confess after so many years after one of his son's stopped speaking to him, which Shermantine said caused him to think about how the families of victims must have felt. He also said in the interview, "to think about the stuff that I did, I try not to. I would have nightmares."

Judge Orders Mediation Talks in Idaho Execution Policy Suit: Todd Dvorak of the Associated Press reports U.S. District Judge Edward J. Lodge on Thursday ordered mediation talks between Idaho prison officials and the 17 news organization that filed a lawsuit this week challenging the state's policy that limits public access to lethal injection executions. The order requires the parties to begin nonbinding mediation on or before June 1 under the supervision of Magistrate Judge Candy Dale.  

Jim Salter has this story for AP on Missouri's announcement that they will be using propofol for their new single-drug protocol.  (Prior post is here.)

Last week the Missouri Department of Corrections announced it was switching from its longstanding three-drug method to use of a single drug, propofol. Missouri would be the first state ever to use propofol as an execution drug.

"This is very, very concerning with a drug that we don't know, and seeing the problems of the one-drug method," said Kathleen Holmes of Missourians for Alternatives to the Death Penalty.

Now if we assume that the antecedent of "this" is the statement immediately preceding (and I have to hedge because out-of-context quotes do happen), that's a strange position.  Obviously somebody has to be first.

A drug we don't know?  Propofol's properties are very well known.

As for the "problems of the one-drug method," we should remember that this is the opponents' proffered alternative method in their attacks on the three-drug method, just as lethal injection generally was their proffered alternative to the gas chamber and electric chair.

That's not to say that propofol is problem-free.  I've been told that some patients scream when the injection begins, and that would certainly be bad PR in an execution.  Personally, I'm not concerned that an inmate being executed feels an amount of pain that is small enough that it is not considered a big deal in a medical treatment context.  But witnesses might interpret this as more painful than it really was, and unlike a surgery patient the executed inmate won't be able to tell us afterward.  A state going to propofol would do well to take precautions to insure this doesn't happen.

News Media Sues Idaho to Open Entirety of Executions to Public: Rebecca Boone of the Associated Press reports the Associated Press and 16 other organizations sued the state of Idaho on Tuesday, arguing that the news media and public have a First Amendment right to view all the steps of the state's lethal injection procedure. After the execution of William Bonin in California, the California First Amendment Coalition sued, saying the limited viewing access of executions violated the public's first amendment right. In 2002, the 9th U.S. Circuit Court of Appeals rejected the argument from California officials that the restrictions were necessary to preserve the identity of the execution team. Idaho state officials said the decision did not apply to their procedures.

First Amendment Coalition of Arizona Wants to See Execution Preparation: Michael Kiefer of the Associated Press reports the First Amendment Coalition of Arizona was given "amicus" status in a federal lawsuit filed by several Arizona death row inmates that challenges the state's lethal injection procedures. The First Amendment Coalition of Arizona will argue the public has the right to witness executioners inserting the IV lines that deliver the lethal injection drugs to inmates.

15 States Urge Feds to Intervene in Lethal Injection Drug Ruling: Bill Mears of CNN reports 15 states on Monday called on the Food and Drug Administration to appeal a federal judge's decision in March to block the importation of thiopental, saying upcoming executions are being undermined. Judge Richard Leon also ordered state corrections departments to return their supply of thiopental to the FDA. The states called it a "flawed decision," and said, "If the (court) decision is not overturned, we as state attorneys general will be forced to take actions to ensure execution by lethal injection remains a viable option."

Lifers Could Qualify for Parole Sooner Under Louisiana Law: Ed Anderson of The Times-Picayune reports a bill that won final passage Tuesday and now heads to the Louisiana Governor will allow some non-violent, non-sex-crime offenders serving life sentences to be eligible for parole sooner, after serving a certain amount of their term. Inmates sentenced to life between the ages of 18 and 25 who have been model prisoners, are deemed low-risk if released, have completed 100 hours of pre-release programs, have obtained a GED or literacy certificate, and have completed drug rehabilitation if required, would be eligible for parole after serving 25 years of their life sentence. Those who meet the same conditions and were sentenced between the ages of 25 and 35 must serve 20 years of their life sentence. If sentenced between the ages of 35 and 50, offenders who meet all of the other conditions must serve 15 years of their sentence. Offenders sentenced to life at age 50 or older must serve at least 10 years and meet all of the other requirements.  

... and you can't refuse to turn over a prisoner to the United States government because you don't like the possibility he might get a thoroughly deserved death penalty.

Sheri Qualters reports in the NLJ (registration required):

Rhode Island's attempt to delay transferring a state prisoner who could face the death penalty in federal court has been rebuffed by the en banc U.S. Court of Appeals for the First Circuit.

In a 3-2 order issued on May 21 in U.S. v. Pleau and In Re Pleau, the court denied a request by the state of Rhode Island and defendant Jason Wayne Pleau to block the transfer. The court also denied the federal government's request to expedite the process.

Bill's prior post on this case is here.

Update:  Gov. Chafee's SCOTUS application for a stay, 11A1113, is here.  Interestingly, he is represented by Akin Gump, not the Rhode Island Attorney General.

Canadian on Death Row in Montana Denied Clemency Recommendation: Matt Gouras of the Associated Press reports Ronald A. Smith, believed to be one of only two Canadians on death row in the United States, received a recommendation of no clemency from the Montana Parole Board on Monday. In 1982, Smith marched two young men into the woods near a highway and shot them both in the head with a rifle. Montana Governor Brian Schweitzer could grant or deny him clemency, or take no action at all before leaving office at the end of the year, leaving the decision to his successor.

New York City Bans Junk Food in Jails: Reuven Blau of New York Daily News reports a proposal is in place to ban popular junk food items from the  commissary snack bars at all city jails. Junk food in vending machines on Rikers Island that are accessible to staff and visitors may also have junk food removed from them. Some officials worry that the change will anger inmates and lead to increased violence. Other officials hope the move could help reduce the rising costs of medical care for inmates.

Juvenile Conviction Still Counts as Strike: Bob Egelko of the San Francisco Chronicle reports the U.S. Supreme Court on Monday denied review of DeShaun Staunton's challenge to California's three-strikes law, specifically the part in which some juvenile convictions are counted as a strike. Staunton was convicted at age 16 for the robbery of an ice cream vendor. He pleaded guilty to residential burglary in 2010, and was sentenced to twice the normal term because of his first strike. Serious or violent felony convictions in juvenile court at ages 16 or 17 qualify as a strike, according to the state law. A state appeals court in San Jose upheld Staunton's sentence last year. The U.S. Supreme court previously rejected an appeal in another San Jose case from a 2009 state Supreme Court ruling that reached the same conclusion.

Texas Killer's Execution Delayed: The Associated Press reports the scheduled June 6 execution of Bobby Lee Hines has been delayed. Hines was convicted of killing 26-year-old Michelle Wendy Haupt in 1991. She was strangled and stabbed with an ice pick. At the time, Hines was on probation for a burglary conviction. Dallas County prosecutors asked a judge to withdraw the execution date because results of additional DNA testing won't be available by then. The request was approved by District Court Judge Don Adams in Dallas on Friday.

Study Claims 2,000 Exonerated in 23 Years: Pete Yost of the Associated Press reports a national database compiled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law claims more than 2,000 people have been exonerated for serious crimes in the U.S. in the past 23 years. The database compiled and analyzed really only contains information on 873 exonerations that have the most detailed evidence, with researchers saying they are aware of nearly 1,200 other exonerations, for which they don't have as much data. Nearly half of the 873 exonerations were homicide cases, and DNA evidence led to exoneration in about one-third of those 416 homicides. The researches estimates that there are nearly a million felony convictions in the U.S. a year, making that 873 exonerations out of 23 million felony convictions in the past 23 years.

Brandy Marie Arreola is 21 today, but there is no party.  She lies in a coma in San Joaquin General Hospital in California.  Jordan Guinn has this story in the Stockton Record.  The subhead of the story reads, "Sitting beside a hospital bed, Diana Muñoz focuses on love and hope. In private, she rages at the man and law she says put her daughter there."

"Hi, baby, what do you want momma to get you for your birthday?" Muñoz said as she stroked Arreola's raven hair and kissed her forehead during a visit Tuesday evening. "I love you. I'm here."

When Muñoz asks her daughter if she can hear her, the only response is the automated clicks and hisses of the machine removing fluid from Arreola's lungs.

Muñoz cycles from grief for her daughter to rage at the suspect in custody to contempt for California's prison realignment plan, which she believes also is to blame for the attack.

Clayton Cramer has this article in the current issue of Engage.

Deinstitutionalization played a substantial role in the dramatic increase in violent crime rates in America in the 1970s and 1980s. People who might have been hospitalized in 1950 or 1960 when they first exhibited evidence of serious mental illness today remain at large until they commit a serious felony. The criminal justice system then usually sends these mentally ill offenders to prison, not a mental hospital.

The result is a system that is bad for the mentally ill: prisons, in spite of their best efforts, are still primarily institutions of punishment, and are inferior places to treat the mentally ill. It is a bad system for felons without mental illness problems, who are sharing facilities with the mentally ill, and are understandably afraid of their unpredictability. It is a bad system for the victims of those mentally ill felons, because in 1960, a mentally ill person was much more likely to have been hospitalized before victimizing someone else. It is a bad system for the taxpayers, who foot the bill for expensive trials and long prison sentences for the headline tragedies, and hundreds of thousands of minor offenses, instead of the much less expensive commitment procedures and perhaps shorter terms of treatment.

Deinstitutionalization of the mentally ill was one of the truly remarkable public policy decisions of the 1960s and 1970s, and yet its full impact is barely recognized by most of the public. Partly this was because the changes did not happen overnight, but took place state-by-state over two decades, with no single national event. While homelessness received enormous public attention in the early 1980s, the news media's reluctance to acknowledge the role that deinstitutionalization played in this human tragedy meant that the public safety connection was generally invisible to the general public. The solution remains unclear, but recognizing the consequences of deinstitutionalization is the first step.