Results matching “first”

Review of Study on Death Penalty Reversals:  Homicide Survivors posts "A Broken Study," Dudley Sharp's critique of James Liebman's notorious "A Broken System: The Persistent Pattern of Death Penalty Reversals in the United States," along with its 2002 updates. Sharp finds that less than 30% of the 5555 death sentences handed out between 1975-1995 were overturned because of error.  This contradicts the study's conclusion that 68% of the death sentences were overturned because of error.  The post goes on to say that "[e]ven the 30% is too high, because some of those cases were overturned because of either new legislative or case law that didn't exist at the time of the trial."  Dudley Sharp then offers up some criticisms by others of the study's review of Pennsylvania, Florida and Nevada death sentences.  In Nevada, for example, the AG responded that "death penalty records are kept by the Nevada Supreme Court, Attorney General, Department of Prisons, 17 district attorneys and 17 court clerks, yet Liebman got his from criminal defense attorneys (who apparently reported their wins, but not their losses) and the NAACP Capital Punishment Project...."

Two Different Ninth Circuit AEDPA decisions:  At Sentencing Law and Policy, Doug Berman has a quick post on Jones v. Ryan and Libberton v. Ryan, two Ninth Circuit cases granting habeas because the defendant received ineffective assistance of counsel.  Jones reversed the district court's denial of habeas because counsel failed to: 1) secure the appointment of a mental health expert; 2) timely move for neurological and neuropsychological testing; and 3) present additional mitigation witnesses and evidence.  Libberton affirmed denial of habeas as to the guilt phase of petitioner's trial, but reversed as to the penalty phase where counsel failed to call a sufficient number of mitigating witnesses and to pursue evidence of another perpetrator's primary responsibility for the crime.  Berman comments: "Though I think the Ninth Circuit has generally failed to live up to its (deserved?) liberal reputation in much of its post-Blakely and post-Booker non-capital sentencing jurisprudence, the judges on the Ninth Circuit continue to find ways to reverse capital sentences...."

En Banc Hearing in Ninth Circuit Search Case:  Eugene Volokh posts on Volokh Conspiracy that the Ninth Circuit has agreed to to rehear a Fourth Amendment search case addressing the search of a family member's home for a suspect's weapon.  Millender v. County of Los Angeles addressed the search of a felon's foster mothers' home after police heard the felon might be staying at his foster mothers'.  The police obtained a warrant for "all firearms and firearm-related items."  When they searched the house, police did not find Bowen or the gun with which he had committed the crime, but they did find and seize "Mrs. Millender's personal shotgun ... and a box of 45-caliber ammunition."  Mrs. Millender then sued, claiming the search violated the Fourth Amendment.  In May the Ninth Circuit held that the defendant police officers were shielded by qualified immunity because the search was authorized by the warrant, and that this would be so even if the warrant was unconstitutionally overbroad.  Concurring Judge Fernandez agreed that the officers were shielded by qualified immunity because of the warrant, but concluded that the search was indeed unconstitutional.  Dissenting Judge Ikuta concluded "no officer of reasonable competence could have thought [the] affidavit established probable cause to search for the items listed in the warrant."  Stay tuned for the Ninth's en banc ruling.

SCOTUSblog with a UK Accent:   Kristina Moore posts on SCOTUSblog that barristers at Matrix and solicitors at Olswang LLP have launched UKSC Blog to cover the United Kingdom's new Supreme Court.  The United Kingdom's Supreme Court opened for its first session yesterday and has already handed down it's first decision, in the JSF (or Jewish Free School) case.  UKSC Blog reports on the decision as well as opening day at the Court.

No Delay for Ohio Execution:  At Sentencing Law and Policy, Doug Berman writes that the Ohio Supreme Court has refused to delay the October 8 execution of Lawrence Reynolds Jr.  Yesterday's News Scan reported that Lawrence Raymond Reynolds Jr. had claimed Ohio's execution protocol was inadequate and had requested a stay.  Today, Alan Johnson of the Columbus Dispatch reported that the Ohio Supreme Court "dismissed the appeal and denied the stay request, both on 6-0 votes."  Berman predicts that the Sixth Circuit will grant a stay.

The Outer Limits of Edwards v. Arizona:  At CrimProf Blog Don Dripps and Yale Kamisar discuss upcoming Supreme Court case Maryland v. Shatzer, a case where the facts "read almost like a question on a law professor's criminal procedure exam."  Shatzer addresses whether the incriminating statements of a child molester, made almost three years after he first invoked his right to an attorney, are inadmissible under Edwards' rule that when a suspect asserts his right to counsel the police cannot re-initiate interrogation. The Maryland trial court ruled that Edwards did not prevent use of the defendant's statements, but the Maryland Court of Appeals reversed. The court of appeals was unable to find any case that relied "solely upon the passage of time factor standing alone" (emphasis in the original) to conclude that the Edwards protection had expired.  Dripps and Kamisar predict that the Supreme Court will overrule the court of appeals' decision.  They believe that "odds are high that the Court will say that no reasonable suspect could possibly believe that the police were pestering him if they had "tried again" 31 months after their first meeting with the suspect."  The Supreme Court will hear arguments on Monday, October 5th.  CJLF's brief in the case is available here.  Orin Kerr has a quick post on Dripps and Kamisar's piece on Volokh Conspiracy.

Pilot Program to Protect Maryland Domestic Abuse Victims:  Jordan Weissman writes for The Blog of Legal Times that courts in Montgomery County, Maryland are launching a new program to safeguard domestic abuse victims.  The program will allow victims to file protective orders without ever setting foot in court.   Instead, they will file protective orders from the Montgomery County Family Justice Center, and have judges hear their requests via a video link to the courthouse.  The program is meant to respond to instances where women were killed by their abusers at or near courthouses in Maryland.  According to Chief Judge Ben Clyburn of the District Court of Maryland the program is patterned after a model used in San Diego, where courts have also adopted video conferencing to protect abuse victims.

Petition for Cert. in Exclusionary Rule Case:  Today, on Volokh Conspiracy, Orin Kerr posts snippets from his petition for certiorari in McCane v. United States.   According to Kerr, McCane addresses "[w]hether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional."  He, and co-counsel William H. Campbell, argue that Court should grant certiorari because this particular exclusionary rule question "is raised every time a court issues a ruling in a defendant's favor that departs unexpectedly from earlier decisions. Criminal defendants with similar cases still in the pipeline will invoke the new ruling in support of suppression. The question is, does the new case apply in full force so that the evidence is suppressed? Or does the good-faith exception to the exclusionary rule apply so that the evidence is admitted?" Kerr's petition, written on behalf of defendant Markice McCane, addresses the Tenth Circuit's conclusion that McKane's conviction for being a felon in possession of a firearm should nevertheless be upheld because the good-faith exception to the exclusionary rule applied.   The search revealing McKane's possession of the gun was conducted before Arizona v. Gant overruled New York v. Belton.

Supreme Court Irrelevant?:  Wall Street Journal Law Blogger Ashby Jones posts on Barry Friedman's New Republic article "Benched. Why the Supreme Court is Irrelevant."  According to Jones, Friedman's main point is that the Supreme Court is becoming irrelevant as it continues to regularly punt "on the big issues of the day."  Friedman faults the Roberts court for looking to avoid trouble by taking fewer hot-button cases and by handing down rulings on relatively narrow grounds on the big cases they have decided to take.  He believes the Court's actions are largely a matter of politics.  A skeptical Friedman writes, "don't expect much in the way of blockbusters from the Roberts Court anytime soon. Stuck between political forces on the left and conservative disarray on the right, the Court will most likely continue to creep rightward with no bold agenda."

CSPAN has this poll on the US Supreme Court, taken Sept. 17. Question 11 asks, "Of the following list, which issue or issues do you think the U.S. Supreme Court should deal with more often?" Capital punishment ties for first, with free speech, at 32%. (Multiple responses were permitted.) That does not bode well for Doug Berman's quest to have the Court take fewer.

Interestingly, the desire for the Court to take more capital cases is highest among Democrats and lowest among Independents, with Republicans in the middle. I suspect that people with strong views on the issue either way tended to choose this issue, with opponents wanting the high court to reverse more death sentences and supporters wanting it to reinstate more.

As Doug notes, no new capital cases were taken on the long conference list released yesterday, discussed here, but there are already three on the docket for the term: Spisak, Kindler, and Wood. So this term will not be unusually light on capital cases, even if they take no more. (And I do expect them to take more.)

Inmate Claims Ohio Incapable of a Successful Execution: New York Times writer Bob Driehaus reports that Ohio another death row inmate, Lawrence Raymond Reynolds Jr., is asking for a stay in his execution because Ohio's lethal injection procedures are inadequate, and his execution is cruel and unusual punishment.  Reynolds, 43, was found guilty of the 1994 murder and attempted rape of 67-year-old Loretta Foster.  He confessed to the crime while playing pool the night of her murder.  Reynolds' lawyer, Kelly Schneider, says that Ohio's failed attempt to execute Romell Broom demonstrates that the lethal injection protocol is flawed and should not be used to execute Reynolds.  But Assistant Attorney General Charles L. Wille stated in a federal court filing that "[t]he difficulties in accessing Broom's veins and the postponement of Broom's execution are not indications that the execution of Reynolds or other prisoners cannot be conducted appropriately."  Reynolds' execution is scheduled for next Thursday, October 8, 2009.

DNA Finds Suspect in a 20-Year-Old Murder Case:  Newsday writers Andrew Strickler and John Valenti report that DNA evidence has linked suspect Joey Bethea, 36, to the 1989 murder of Dorothy LeConte.  Police say LeConte was raped, thrown or pushed from a bridge, and died from asphyxiation.  Bethea, who has a long rap sheet, was not previously a suspect in the case.  Bethea was linked to the crime by semen gathered from LeConte's body.  Arrested three times since 2005, Bethea had never submitted a DNA sample.  It was not until August 2009 that the police were able to go to his home and obtain a sample.  On Tuesday, Bethea was charged with second-degree murder and felony murder.  

Study Looks at Massachusetts' 1996 Law, and Its Affect On Juveniles:  Boston Globe writer Jonathan Saltzman reports that Massachusetts has one of the harshest laws in the country when sentencing minors to life in prison, according to a study done by the Children's Law Center of Massachusetts.  The study reports on a two-year review of juveniles, aged  14 through 16, who were tried for first degree murder in adult court and then sentenced to life.  Under Massachusetts' 1996 law the court does not review past conduct, level of participation of the crime, personal background, or potential for rehabilitation.  When the law was passed in 1996, the harshest punishment for a juvenile who committed first degree murder was incarceration until 21-years-old.  This was insufficient to address the juveniles who committed first-degree murder, especially in a state like Massachusetts that does not impose the death penalty. Two law makers, Representative Eugene L. O'Flaherty and Senator Cynthia Stone Creem, said that they were willing to reexamine the law.  Sentencing juveniles to LWOP has garnered plenty of attention since the Supreme Court agreed to review the issue in Sullivan v. Florida.  Several amicus for Sullivan cited scientific studies to argue that teenagers cannot appreciate the consequences of their actions. CJLF took a look at some of these studies and addressed them in our own brief.  We argue that certain juveniles are just as dangerous as adults and should be punished accordingly.  Doug Berman also has a post on the report at Sentencing Law and Policy.   

The Supreme Court this morning issued its orders list for cases granted certiorari in the "long conference" yesterday. The list is here. SCOTUSblog's list with documents is here. The criminal and related cases are

Carr v. United States, No. 08-1301, sex offender registration and Ex Post Facto. The Court considered a similar issue with Megan's Law in Smith v. Doe, 538 U. S. 84 (2003), in which the State of Alaska was represented by John Roberts.

Two Sixth Circuit habeas cases from Michigan:

Berghuis v. Smith, No. 08-1402: Jury discrimination disparity analysis and AEDPA deference.

Berghuis v. Thompkins, No. 08-1470: Police officer follow-up after arrestee neither waives nor asserts his Miranda rights.

Holder v. Humanitarian Law Project, No. 08-1498 and Humanitarian Law Project v. Holder, No. 09-98: the constitutional right, if any, to support terrorist organizations in their nonterrorist efforts.

McDonald v. Chicago, No. 08-1521: Second Amendment as applied to the states.

United States v. O'Brien, No. 08-1569: Apprendi and mandatory minimums.

The long list from the long conference, denying certiorari in most of the cases not granted today, will be issued on the First Monday in October.  However, a few are usually "relisted" to be considered again at another conference. Let us hope that the very bad decisions in capital cases from the Ninth Circuit are only relisted.

Justice Kennedy at the Ninth Circuit is the subject of this post by Orin Kerr at VC: "I understand that Justice Kennedy was the final speaker on a panel about the procedure for issuing Ninth Circuit opinions.  The first speaker talked about how Ninth Circuit opinions are drafted; the second speaker talked about how the opinions are released; and then Justice Kennedy spoke about how the opinions are reversed."

Scary Law: More seriously at VC, Eugene Volokh responds to a comment by the French Culture Minister that American criminal law is "scary." Yes, says Eugene, when it comes to punishing acts such as raping 13-year-old girls, it should be.

Drug Courts: Doug Berman at SL&P notes a report by the National Association of Criminal Defense Lawyers that is highly critical of the "drug court" movement. That is a bit of a surprise.

Docket Number Mystery Revealed: Kevin Russell at SCOTUSblog explains "a piece of Supreme Court minutiae that has always befuddled" him (and me too). Why does the Supreme Court clerk begin in June 2009 numbering incoming cases with "09-" docket numbers, when the October 09 Term does not begin until October, and we are officially still in the October 08 Term?

The December Calendar is also at SCOTUSblog, in a post by Lyle Denniston. The criminal cases are the Florida v. Powell case regarding variations on the Miranda warning theme and two cases on the very controversial federal "honest services" statute.

More on Polanski: WSJ Law Blog asked its readers if Roman Polanski should be brought back to the US to face the prosecution from which he fled so many years ago. The response was so overwhelmingly affirmative that blogger Ashby Jones wondered if anyone disagreed. Yes, of course, Hollywood gets it wrong again. Note to Ms. Winger: if you are still looking for an officer and a gentleman, Polanski is neither.

From the Stockton Record:

The so-called I-5 Stranger, Roger Reece Kibbe, pleaded guilty today to murdering and raping six women under a deal that will send him to prison for the rest of his life.

Kibbe is 70, so the three available sentences for first-degree murder in California -- death, life without parole, and 25-to-life -- are all the same as a practical matter. He would leave prison when he dies of natural causes under any of these sentences, given the length of death penalty appeals and the success of the opposition in blocking the reforms that would speed them up.

When researchers do studies on sentencing "disparities" and fail to include the age of the defendant in their models, this case will show up as disparate sentence. This will assist in much wailing about how unfair the death penalty is, when a serial killer such as Kibbe does not get the death penalty and others who only killed one victim do. Yet it makes sense and is obviously neither invidious discrimination nor arbitrary when you look at the individual case.

Panhandling Permits Required: Raleigh's local station WRAL's Adam Owens reports on panhandling permits being issues by the city of Raleigh, NC.  In the city of Raleigh, a panhandler could be arrested and fined if caught panhandling without a permit.  Permits can be obtained, for no charge, from the Raleigh Police Department with a photo ID and are good for one year.  There are two purposes for the permit.  The first is to help the police identify the panhandlers.  The second is to point out city guidelines like, no aggressive begging, no blocking traffic, stay away from ATM machines, and operating between the hours of 8 a.m. to 9 p.m.  Panhandler Martin Sansalone, 62-years-old, has been panhandling within the city guidelines for four years.  Sansalone says, on a good day he can make $20 an hour.  A permit will be issued to any applicant unless the panhandler is wanted for a crime.

UPDATE November Execution sought for D.C. Sniper: Richmond Time-Dispatch writer Jim Nolan reports that the execution of John Allen Muhammad is still on schedule.  November 10, 2009, is Muhammad's scheduled execution date for the slaying of Dean Meyers.  Meyers is one of the ten people shot to death by Muhammad in October 2002.  Muhammad's attorney Jonathon Sheldon has said that Muhammad will appeal to the U.S. Supreme Court and ask the governor for clemency.  But Virginia Governor Timothy M. Kaine says, "I know of nothing in this case now, that would suggest that there is any credible claim of innocence or that there was anything wrong with the prosecution... So I would know of no reason why clemency would be granted."

The Supreme Court's Up and Coming Term:  Wall Street Journal writer Jess Bravin reports on the questions facing the Supreme Court when it begins a new term on Monday.  Some of the questions the court could consider include, whether juvenile offenders can be sentenced to life without parole for crimes such as rape or robbery; whether a prosecutor can be sued for winning a conviction by procuring false testimony; and whether the government can criminalize depiction of animal cruelty.  Recently, there has been a change in membership with Justice Sonia Sotomayor replacing Justice David Souter, and many wonder if there are any other changes in store for the new term.  Ed Whelan, president of the conservative Ethics and Public Policy Center, says, "I am hopeful that the chief justice will demonstrate a willingness to overturn wrong precedent when the occasion for reconsidering the precedent is ripe."  The courts ordering of a special September 9 reargument, seems to suggest they are willing to review case law that they disagree with.  But, Mr. Calabresi, board chairman and co-founder of the Federalist Society, says that "the court under Chief Justice Roberts has so far sought to distinguish precedents rather than overrule them when it can."  Looking at last years term, suggests a court of division rather than unanimity.  Tom Goldstein, the founder of the scotusblog.com, which follows the Supreme Court, wonders if last years divided court "[i]s an anomaly or are we settling into a pattern of a bitterly divided court."   

Technology Allows You To Track Sex Offenders:  CNN writer Stephanie Chen reports on an iphone application called Offender Locator that allows users to access information revealing whether there are sex offenders living within a 10 miles radius of the iphone.  Tracy Rodriguez says, she uses the application several times a day because she is constantly worrying about her family's well being.  Rodriguez is not the only one taking advantage of the application.  The application has been downloaded more than a million times, and is breaking into the top 10 most popular applications.  In the past, law enforcement has relied on email and texting to interact with the public, but now iphone is expanding their ability to interact by allowing people to access information wherever they get cell service.  Since the iphone launched, there have been a couple of crime-fighting applications, and they continue to be developed.

 

David Kaye has this essay in Michigan Law Review First Impressions on the DNA testimony at issue in McDaniel v. Brown. Our prior posts on the case are here, here, and here.

Kaye's essay is a balanced look at the trial testimony and what Brown's attorneys and the Ninth Circuit have said about it. The bottom line, as I read it, is that although the expert did err in response to questions from counsel, the errors are not as prejudicial as Judge Wardlaw's overheated opinion makes them out to be.

I especially enjoyed Kaye's mild rebuke of the opinion for referring to Bayes' Theorem as a "complicated formula."

But Bayes' theorem is not a "complicated formula." It is derived in nearly every introductory text on probability or statistics. It has been discussed ad nauseum in law reviews. It states that the probability of a hypothesis changes with new information in the following simple way: posterior odds = likelihood ratio × prior odds.

As one of the few lawyers with a scientific undergraduate degree, I am often appalled at how little math it takes to make some lawyers throw up their hands and declare the matter too complicated for their comprehension. Anything past the fourth grade level seems to do it.

Anyhow, I doubt the Supreme Court's decision will actually turn on a discussion of the DNA. As noted in our prior posts, the petitioner abandoned the theory he prevailed on in the Ninth Circuit, and the Supreme Court took the case off the argument calendar. I'm betting on a "vacate, remand, and do it right this time, dummies" order.

Update: From David Kaye by email: "By the way, at a conference at George Washington University, when I read the part of the Ninth Circuit opinion on how 'complicated' Bayes' Theorem is, the assembled statisticians broke out in laughter."

Yesterday, the Supreme Court granted a stay of execution in the Texas case of Mosley v. Thaler, No. 08-9991. Mosley argued that a stay was in order due to alleged similarities between his case and the Alabama case of Wood v. Allen, to be argued November 4. The state responded that the cases are quite different.

The case has come to the Supreme Court in the usual course, after the initial federal habeas proceeding. It is not a last-minute stay on a successive petition. In addition, a certiorari petition is pending and has not yet been set for conference. Given these two factors, I would not read much into the grant of a stay. We will see what happens when it is set for conference and whether the petition is decided the first time or relisted.

Our brief in Wood goes in tomorrow.

Better Supervision of Sex Offenders Needed:  California has taken strides in catching and prosecuting sex offenders, but their ability to keep track of those offenders' activities after being released, needs vast improvement.  Michael Rushford, president of the Criminal Justice Legal Foundation, has this op-ed in the San Francisco Chronicle about the lack of supervision of habitual sex offenders. The recent case of Jaycee Dugard's 18 year captivity by repeat sex offender Phillip Garrido, who was on supervised parole, has brought to light problems with parole systems.  Rushford gives two reasons for California's inadequate parole system.   The first is the state's budget problems.  The second is California does not have the resources to supervise all the sex offenders among us.  California's inadequate parole system can be fixed if the legislature makes it a priority.  Increased funding and reorganization is the key to fixing California's broken parole system.

Death Sentence Upheld for Murder and Repeat Sex Offender:  The Eighth Circuit Court of Appeals upheld the death sentence of Alfonso Rodriguez for the kidnapping, rape, and murder of Dru Sjodin, opinion found here.  Associated Press writer Steve Karnowski reports  that the Eighth Circuit Court of Appeals has rejected the defense arguments on all points.  A couple of points raised on appeal include, the court abused its discretion by denying the defense motion to move the trial from North Dakota to Minnesota, the victim's father's act of shaking hands with the prosecutor after the completion of his testimony improperly bolster the father's testimony and it suggest that the family desired a death sentence, and evidence about semen in Sjodin's body was improperly admitted.  Sjodin's mother, Linda Walker, said the family was pleased with Tuesday's ruling, but she's sure that the process is not over yet.  A few months before the kidnapping of Sjodin, Minnesota had let Rodriguez, classified level 3 sex offender, the kind most likely to re-offend, free after serving a 23 year prison sentence.  Walker said, "This is another reason why we should not let these predators out to re-offend time and time again."  Sjodin's case has lead to Minnesota and North Dakota enacting tougher laws for sexual predators.

Investigation Launched into ACORN's Internal Activities:  The Justice Department and Maryland Attorney General's office have decided to investigate the Association of Community Organizations for Reform Now's (ACORN) activities.  Washington Post writers Garance Franke-Ruta and Aaron Davis report on the investigations that have been planned by both the Justice Department and the Maryland Attorney General's office.  The investigations are being launched because of videos circulating that appear to have ACORN employees offering tax help to a couple posing as a pimp and prostitute.  Attorney General Douglas asked and received permission from Governor Martin O'Malley to investigate and possibly prosecute ACORN.  The Justice Department wants to determine if ACORN as ever applied for or received grant funds from them, and how those funds were used.  Representative Lamar Smith (Tex) says, "[a]s the primary federal law enforcement agency, the Justice Department has a responsibility to ensure that no organization receiving federal funds ignores our nation's laws."  ACORN, says that it welcomes the internal probe in order to set the record straight. 

From the Northwest comes another case, along the lines of the Green River killer, where the ending is far from happy yet far better than it would have been if the state had no death penalty. KPTV, Portland has this story. ABC News has this story. The photo to the left is an AP photo from the ABC site.




From the KPTV story:

[Brooke] Wilberger was a 19-year-old Brigham Young University student when she was abducted at knifepoint by [Joel] Courtney on May 24, 2004. She vanished while working a summer job at an apartment complex managed by her sister in Corvallis near the Oregon State University campus.

Wilberger's remains are on a mountain in Benton County on private property, said Benton County District Attorney John Haroldson in a press conference Monday in Corvallis. The recovery of those remains began over the weekend. The exact location will not be released until the process is complete, Haroldson said.

Courtney accepted a plea deal in Wilberger's death in order to avoid a possible death sentence. In exchange, he pointed investigators to the location of the remains.

*                  *                   *

Prosecutors said Wilberger was not the first woman Courtney had kidnapped and raped. In 2004, Courtney was arrested in the sexual assault and kidnapping of a foreign exchange student in New Mexico. That victim managed to escape.

What would have happened if Oregon had no death penalty? Would they have offered Courtney a deal that would allow him to get out someday? I don't believe the DA could have agreed to such a travesty. Would he have given up the details of the crime and the location of the remains without a deal? Almost certainly not.

Although the word "closure" has been much misused (especially in straw-man-fallacy arguments by the opponents), it is very clear watching Brooke's mother in this video that something important has been accomplished for the family in this case, call it what you will.

Irving Kristol died yesterday at the age of 89. From the Wall Street Journal, we have this story by Stephen Miller, this editorial, and this set of Kristol quotes. Here is the one most on-topic for this blog:

Or take the issue of crime. It is not sufficiently appreciated how extraordinary--one can even say unique--the situation with regard to crime is in the U.S. today. Ours may well be the first society in all of human history in which the average citizen lives with the constant fear of being victimized by criminal assaults against his person--assaults perpetrated, not by the government or its police forces, but by one's fellow citizens. It is a novel condition. . . . How did it happen?

A good part of the answer is that our sociologists and criminologists and jurists have applied their theories and their presumed expertise to create a criminal justice system that was supposed to reduce criminality but has instead caused it to proliferate wildly. It is an ironical fact that those so-called "less-developed" nations, which have far fewer criminologists than we do, also have much lower crime rates. That is what results when one permits "sophisticated" theories--elaborate ideologies, really--to prevail over common sense and traditional wisdom. In modern societies, crime (like education) becomes a problem when our expert theorists make it one.

I also like this one:

"All bad poetry springs from genuine feeling," wrote Oscar Wilde, and I would like to suggest that the same can be said for bad politics. . . .

It seems to me that the politics of liberal reform, in recent years, shows many of the same characteristics as amateur poetry. It has been more concerned with the kind of symbolic action that gratifies the passions of the reformer rather than with the efficacy of the reforms themselves. Indeed, the outstanding characteristic of what we call "the New Politics" is precisely its insistence on the overwhelming importance of revealing, in the public realm, one's intense feelings--we must "care," we must "be concerned," we must be "committed." Unsurprisingly, this goes along with an immense indifference to consequences, to positive results or the lack thereof.

I don't know if he was thinking of the soft-on-crime crowd, but that captures them perfectly. They have such a high opinion of themselves as great humanitarians with their generous sympathy for people who rape and murder, and they rationalize away the very real consequences of causing more rape and murder.

Sotomayor Asks, Are Corporations the Same as Humans Beings?:  During arguments in the campaign-finance Citizens United case, Justice Sonia Sotomayor wondered if corporations should be given the same broad First Amendment rights as people.  Wall Street Journal writer Jess Bravin reports on Sotomayor's provocative comment that probed at foundations of corporate law.  While the Court was hearing arguments in the campaign-finance case, Bravin quotes Sotomayor as saying, "[Judges] created corporations as persons, gave birth to corporations as persons.  There could be an argument that the court's error to start with...[imbuing] a creature of state law with human characteristics."  As a matter of history justice Sotomayor is correct.  As corporations began to multiply in this country, courts started extending them many of the rights that human beings are afforded.  For example, a corporation has the right to make contracts and own property.  U.S. Supreme Court Chief Justice Morrison Waite said that the Court believed the 14th Amendment's equal protection clause applied to corporations.   Recently, even conservatives, including Chief Justice Rehnquist, have been skeptical of corporate rights.   Professor William Simon of Columbia Law Schools says, "Today, it's 'just complete confusion' over which rights corporations can claim." The final decision in the campaign-finance case should shed some light on the subject.    

Killer Escapes During A Field Trip To The Fair.  Thursday morning mental patient and killer, Phillip Arnold Paul, 57, escaped while on a field trip to the Spokane County Interstate Fair.  Fox News and the Associated Press reports that the escape of Paul, during a mental institutions field trip to the fair, was not reported until two hours after he disappeared.  Paul was acquitted by reason of insanity and committed to the Eastern State Hospital indefinitely for the 1987 murder of an elderly woman.  He had slashed her throat, soaked her body in gasoline to throw off search dogs, and buried the remains in her garden because voices told him she was a witch.  Paul was diagnosed as being criminally insane and a schizophrenic.  This is not the first time Paul has escaped.  In 1990, Paul walked away from custody and then attacked the sheriff's deputy who tried to apprehend him.  Spokane County sheriff's Sgt. Dave Reagan said that "had the institution told the police about the incident earlier, the 'odds of catching him would have been much greater.'"           

Figures on Crime: At Judging Crimes, Joel Jacobsen comments on some differing crime figures from two different divisions of the Department of Justice.  Jacobsen writes that the results National Crime Victimization Survey (NCVS) reported 19.3 victimizations per 1,000 persons age 12 or higher in 2008.  That's 1,930 victimizations per 100,000.  Just twelve days later the FBI released a report stating "there were an estimated 454.5 violent crimes per 100,000 inhabitants in 2008."  Why the discrepancy? Jacobsen writes that the "chief explanation is that little word 'simple.'"  Apparently, the NCVS classifies about 3,472,590 of its estimated assaults as "simple."  "Simple" assaults require less than 2 days of hospitalization.  Jacobsen continues to expand on why the NCVS and FBI report different rates of vicitimization, and then states "it's almost a given that the NCVS understates the prevalence of crime, because it depends on what respondents are prepared to say when called up."

The NCVS and FBI numbers have always differed because of their different methodologies and scope, as explained in this BJS webpage.The FBI's UCR is crimes known to police, while the NCVS is a phone survey. The NCVS only asks respondents about crimes committed against them personally, so obviously it does not include homicide.

Toobin Comments on President Obama's Judicial Nominations:  Thanks to Sentencing Law and Policy's Doug Berman we were informed that Jeffrey Toobin has a new New Yorker  piece discussing President Obama's judicial appointment policy.  In "Bench Press," Toobin wonders whether the President's nominations "[a]re really liberals?"  Toobin reports on the nominations of David Hamilton to the Seventh Circuit, on Justice Sotomayor's nomination to the Supreme Court, and on the nominations of seven nominees to the circuit courts.  Toobin  reports that while Justice Sotomayor's confirmation process went relatively smoothly,  Judge Hamilton faces threats of Republican filibuster for a ruling striking down the daily invocation at the Indiana legislature and invalidating a part of Indiana's abortion law.  Some Republicans, like Senator Orrin Hatch, blame the President for the delay.  Hatch points to the President's vote against Chief Justice John Roberts, and states "You have to be a partisan ideologue not to support Roberts.  There is a really big push on by partisan Republicans to use the same things that they did against us."  Toobin calls this ironic, "because Obama has long sought to define himself as something other than a traditional legal liberal."  This could be why the President chose to nominate Sonia Sotomayor to the Supreme Court, and could by why Toobin believes "at times [during her confirmation] the post-partisan language of the White House sounded a lot like that of traditional judicial conservatism."

And Speaking of Judicial Nominees...  At Blog of Legal Times, David Ingram tells us that "[b]y a vote of 94 to 3, the Senate confirmed Judge Gerard Lynch for the U.S. Court of Appeals for the 2nd Circuit."  Ingram wrote earlier today that Judge Lynch, a federal judge in the Southern District of New York since 2000, was almost assured confirmation.  Ingram reports there are still three vacancies left on the Second Circuit, and in other circuits Judge Andre Davis, Judge David Hamilton, and Judge Beverly Martin are still waiting to be confirmed.  (Judge Lynch's questionnaire is available here.)

Disparate Reactions to the Death Penalty:  Much has been said about the attempted execution of Rommell Broom this Tuesday (our posts can be found here, here and here), and today Ashby Jones nicely combined some of the "disparate reactions" that have emerged as a result.  Some, like the ACLU, called for Ohio to stop all executions indefinitely, and others,  like Cleveland Plain-Dealer columnist Phillip Morris want to create more method-of-execution options.  In an article published in yesterday's Plain-Dealer, Morris wrote:  

"The death penalty was once administered with ropes, guns and electric chairs, not technicians with syringes. What we have now is a gentle form of euthanasia designed to ease the conscience of civil libertarians or those who want to take out the garbage in the most humane way possible. 
We kill with just a bit too much kindness."

Trying Terrorists:  SCOTUSblog reporter Lyle Denniston posts that the Justice Department has told a federal court that within the next 60 days it will decide whether to try in civilian court or military court those accused of taking part in the terrorist attacks of Sept. 11, 2001. Denniston reports the Department's decision was motivated by "a sweeping challenge to the entire system of terrorism trials in specialized military tribunals[.]"  Ramzi Bin Al-Shibh filed his challenge to the military tribunal system on September 9th, and last Friday, September 11th, the D.C. Circuit Court asked the the Obama Administration to reply to his challenge.  Al-Shibh faces war crimes charges, related to the 9/11 attacks.  If convicted, he could receive a death sentence.  He has challenged the constitutionality of the tribunals, and asked for a stay.  The Justice Department opposes a stay, but as Denniston reports the government has asked for a 60 day stay and has "not indicat[ed] that it wants the military commission trial of Al-Shibh to go ahead with pre-trial proceedings that are already scheduled." 

More Reports On Possible Supreme Court Retirement:  At Blog of Legal Times, Tony Mauro reports that a Monday post on Newsweek's blog, The Gaggle, "sent another tremor through the Supreme Court community about the possibility that Justice John Paul Stevens is planning to retire at the end of the upcoming term."  The Gaggle reported that in an apparently unusual move, Justice Stevens sent an e-mail to former law clerks inviting them to a clerk reunion next May.  Gaggle reporters believed this was another sign Justice Stevens plans to retire.  Mauro spent some time tracking down former clerks, who informed him that a former clerk, and not Justice Stevens, was organizing the reunion.  Former clerks also stated that reunions are not atypical - the last one was in 2004.

The End of Breathalyzer?:  CrimProfBlog points us to an AP story reporting that officers in Idaho and Texas are being trained to draw blood from people suspected of driving under the influence of drugs or alcohol.  The officer's training is part of a federal pilot program to determine if drawing blood by law-enforcement officers can be an effective tool against drunken drivers, and aid in their prosecution.  In 1966, in Schmerber v. California, the Supreme Court allowed officers to forcibly draw blood from a drunk driving suspect.  Arizona was the first state to implement this practice, and its phlebotomy coordinator, Alan Haywood, is directing the training programs in Idaho and Texas.  

Federalist Society SCOTUScast on Citizens United:  The Federalist Society has posted a "post-re-argument" SCOTUScast for Citizens United v. Federal Election Commission.  Mr. James Bopp Jr., General Counsel for the James Madison Center for Free Speech and an attorney with the law firm of Bopp, Coleson, and Bostrom in Terre Haute, Indiana, provides a summary and his analysis of the argument.  Ed Whalen also has a post discussing Citizens United at NRO's Bench Memos.  Whalen's post addressed comments that Chief Justice Roberts "would be betraying his supposed confirmation testimony on precedent if he were to vote to overrule the Court's holdings on corporate speech in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC."   

Killer's Execution Delayed: Unable to find a vein, Governor Ted Strickland postponed Rommel Broom's execution until next Wednesday, which is one day after the 25th anniversary of when Broom abducted, raped and killed 14-year-old Tryna Middleton. (Comments by Kent here)  Columbus Dispatch writer Alan Johnson reports on the failed attempt to execute Broom by lethal injection.  Broom's failed execution attempt is unusual and was the longest attempt since May 2006, when it took 90 minutes to establish an IV line in Joseph Clark. Clark had weak veins from drug use.  Ohio has changed its lethal injection procedure and until now, has had no problems. Broom was sentenced to death after abducting Middleton who was walking home from a football game.  Broom has declared his innocence, but DNA testing showed that there was a one in 2.3 million chance that Middleton's killer was someone else.  Broom had a history of molesting young girls. Previously, he had served 8 1/2 years in prison for a raping a 12-year-old babysitter and was arrested three months after Middleton's murder, for forcing an 11-year-old into his car. 

Repeat Sex Offender:  Thousands of child pornography images were found at the home of registered sex offender, Jaime Enrique Feliciano.  Sacramento Bee writer Kim Minugh reports that Feliciano, a state employee and former local union leader, was sentenced today to 25 years in state prison after pleading no contest to child molestation.  After a tip in September 2008, authorities searched Feliciano's home and found thousands of child pornography images on DVDs in his home.  Feliciano viewed these on a personal computer, as well as a laptop owned by his employer.  During the search authorities found home-made child pornography showing Feliciano molesting a young female.  Feliciano had managed to dissuade the girl and her mother from reporting the incident, but once the girl was identified by authorities, she revealed the abuse.  In 1993, Feliciano was convicted of child molestation.  In 2006, he was convicted for failing to register as a sex offender.

Man Wants To Take Responsibility For Slaying:  Not only does Stephen Moody believe he should die for killing Joseph Hall, but he wants to die.  The Associate Press reports that after more than 15 years on Texas death row, Moody just wants to take responsibility for his actions and die.  Moody, who was scheduled to receive lethal injection Wednesday evening, insisted that no appeals be filed that would block his execution.  On Oct. 10, 1991, Moody shot and killed Joseph Hall, 28, while trying to rob him at his home.  "It was just supposed to be a robbery.  But when you go into a place with a loaded gun, you put yourself in that situation." says Moody.  Moody had a long criminal history including burglary, auto theft, and robbing a Houston Bank.  Moody would be the 17th prisoner executed this year on Texas death row and the first of four to die over the next two weeks.       



   

During the Bush Administration, there was much wailing and gnashing of teeth from the lefties about a provision of the Patriot Act that supposedly was going to have the government prying into everyone's library records to see if they read forbidden books, or something like that. Actually, the provision was for business records. So, when the lefties got their candidate in the White House, the "library" provision would be the first thing thrown over the side, right?

Not quite. Devlin Barrett reports for AP,

The Obama administration supports extending three key provisions of the Patriot Act that are due to expire at the end of the year, the Justice Department told Congress in a letter made public Tuesday....

In a letter to lawmakers, Justice Department officials said the administration supports extending the three expiring provisions of the law, although they are willing to consider additional privacy protections as long as they don't weaken the effectiveness of the law.

Update- Victims' Family Outraged By Alleged Killer's Dodge of Death: The Bologna family's suit against the city of San Francisco for the death of Tony Bologna and his two sons, Michael and Matthew will move to state court.  San Francisco Chronicle writer Bob Egelko reports that U.S. District Judge Susan Illston has declined to rule on whether the city's negligence caused the shootings, because the claim challenging the city's policies is state-law based, giving jurisdiction to a state court.  Last month Illston had ruled against the family's claim that city violated the shooting victims' constitutional due process right.  Ramos, the alleged killer, is a native of El Salvador and was arrested twice as a juvenile in San Francisco.  The Juvenile court sent Ramos to a shelter after the first arrest and then to a city-run Log Cabin Ranch in the Peninsula after the second arrest.   It is not clear whether the courts knew that Ramos had entered the country illegally, but even if they did know his illegal status, during that time city policy would not have allowed them to pass the information on to federal authorities.  The Bologna family claims the city is responsible for the shootings because they allow Ramos to go free. 

Incompetency Could Allow An Inmate To Leave Death Row: According to the Ninth Circuit Appeals Court, Viva Leroy Nash, 94 year-old death row inmate, must be competent enough to assist in his appeals.  KSAZ Fox Phoenix News reports on the Ninth Circuit Court of Appeals decision, found here, to remand the case to the District Court for a competency hearing in order to determine if Nash can adequately assist in his appeals.  On May 25, 1983, Nash was convicted of murder for fatally shooting a Phoenix coin shop sale clerk and sentenced to death.  In 1985, the Arizona Supreme Court affirmed his conviction.  Nash has a long criminal history, including a shooting of a Connecticut police officer in 1947 and the shooting death a Salt Lake City man in 1977. During his long stay on death row, Nash has filed many unsuccessful petitions for post conviction relief in both state and federal court.  Nash claims that his progressive mental deterioration over the years has made him incompetent and would like a competency hearing.  Nash is asking for a stay of appeal until he gains competency. 

FBI Reports That Crime Decreased in 2008: According to the FBI's report, the number of violent crimes and auto thefts have dropped in 2008.  New York Times writer David Stout reports that the information gathered by the FBI from police agencies show that in 2008 violent crimes have fallen, but burglaries and larceny thefts have gone up.  The FBI does not have an explanation for any of their findings.  FBI spokes man Bill Carter says, "we leave that up to the academics and the criminologists and the sociologists." 

Another Perspective on Willingham's Case:  Over the weekend, Homicide Survivors posted a piece by Janet Jacobs of the Corsicana Daily Sun on Texas' execution of Cameron Todd Willingham.  Jacobs piece, "No doubts," was published in the local paper of Corsicana, Texas where Cameron Todd Willingham lived with his family in 1991.  In early September, the New Yorker published an article, "Trial by Fire," wondering whether Willingham had committed the arson that he was executed for.  Jacobs article starts with a brief synopsis of Willingham's case:

"The undeniable facts of the Cameron Todd Willingham case are these:
• On Dec. 23, 1991, 2-year-old Amber Louise Kuykendall, and 1-year-old twins Karmon Diane Willingham and Kameron Marie Willingham died in a mid-morning house fire at 1213 W. 11th Ave. in Corsicana.
• Willingham, 23, the children's father, and the only adult home at the time of the fire, was found guilty of murder and sentenced to death on Aug. 21, 1992.
• After five appeals and 12 years on death row, he was put to death by lethal injection on Feb. 17, 2004.
Everything else is controversial." 

Appointing a "Professional" Judiciary:  At Sentencing Law and Policy, Doug Berman posts his thoughts on Gerard Magliocca's Concurring Opinion's post "A Professional Judiciary?"  Both Berman and Magliocca are concerned that President Obama's "early pattern" of elevating lower court judges in his nomination choices could, in Magliocca's words, "harm[] the quality of the bench and creates undue pressure on District judges to act in a politically safe way in the hope of getting promoted."  Berman writes that he is a fan of judicial diversity, and believes that "federal circuit sentencing law might be improved by having more circuit judges who have experienced sentencing first-hand."

Washington Supreme Court Allows Warrant to Obtain Blood Alcohol Test of Drunk Driving Suspect:  At Volokh Conspiracy, Orin Kerr has a quick post on Seattle v. St. John, where the Washington Supreme Court said that police could get a warrant to force a blood alcohol test on a drunk driving suspect after St. John refused to give one voluntarily.  St. John challenged the warrant and the test as a violation of Washington's implied consent statute.  FourthAmendment.com also has a link to the case. 
 
Would Overruling Austin and McConnell on Narrow Grounds be "Faux Judicial Restraint"?  That's what Rick Hasen wonders over at Election Law Blog.  In his post, Rick discusses oral arguments in Citizens United v. Federal Election Commission, focusing in on Justice Scalia's line of argument that the requirement that corporations pay for federal-election related expenditures is not flat-out unconstitutional (as Justice Scalia has repeatedly said in the past) but perhaps merely "overbroad," because it includes non-wealthy corporations.  Hasen, who has "always been a fan of Justice Scalia's opinions," does not agree with this line of reasoning and calls it "faux judicial restraint that obfuscates what the Court is really doing."  He believes that if the Court accepts Scalia's argument (transcript here), and remands to Congress to rewrite the statute more narrowly, any new law would then be struck down as unconstitutional under the First Amendment.

Victims' Family Outraged by Alleged Killer's Dodge Of Death: Edwin Ramos will not face the death penalty for allegedly murdering a father and his two sons.  San Francisco Chronicle writer Jaxon Van Derbeken reports that San Francisco District Attorney (and attorney general hopeful) Kamala Harris, will not be seeking the death penalty for the 2008 slayings.  Harris made a ridiculous campaign promise never to seek the death penalty.  The victims were Tony Bologna, 48, and his sons Michael, 20, and Matthew, 16.    Ramos, believed to be an MS-13 gang member, had two gang related offenses as a juvenile for assault of a Muni passenger and attempted robbery of a pregnant woman.  Danielle Bologna says that "she is outraged,... She feels that the city of San Francisco has let her and her family down." The San Francisco Districts Attorneys Office spent many months considering whether or not to seek the death penalty in this case.   San Francisco has had a long history of not seeking the death penalty.  In 1991, Clifford Bolden was the last person to receive the death penalty in San Francisco for  1986 murder of Michael Pedersen.  Bolden continues to appeal his conviction. 

Appeals Panel Reinstates Overturned Jury Verdict of Excessive Police Force: An appeals panel reinstated a jury's verdict of excessive police force after Chief U.S. District Judge Ernest C. Torres had overturned the verdict.  Providence Journal writer Katie Mulvaney reports on the First Circuit Court of Appeals decision to reinstate the jury's findings that a Trooper used excessive force.   Jennings' claims the trooper used excessive force while subduing him during the police raid of a Narragansett tribal smoke shop.  The tribal smoke shop raid was to prevent the tribe from selling tax-free cigarettes.  During the raid, there was a scuffle that required State Trooper Kenneth Jones to maintain his grip on Jennings because he kept resisting.  Jennings claims his civil rights were violated because his ankle was twisted until it broke, although it is unclear when his ankle actually broke.  On August 24, 2005, Torres overturned the verdict, (story found here) because he found that state police testimony was more credible than Jennings or other defense witnesses.  The Appeals court found that Jennings' broken ankle proves there was excessive force. 

Not Guilty Due To Asperger Syndrome:  William Cottrell was prevented from presenting evidence he has Asperger syndrome during his arson trial.  Los Angeles Times writer Carol J. Williams reports that the Ninth Circuit Court of Appeals, which initially upheld the arson conviction because Cottrell's disability did not rise to the level of "gross and verifiable disability" preventing him from understanding what could happen from his initial intention of vandalizing the SUVs with stickers, has revised this holding.  In 2004, Cottrell was found guilty of arson for vandalizing and firebombing 125 SUVs.  Cottrell believes that his Asperger syndrome proves he is not guilty because it prevented him from forming the specific intent to commit the arson attacks.  Williams article explains that Asperger syndrome is a form of autism that impairs a person's ability to interact normally with other and inhibits understanding of facial gestures, body language, and other nonverbal signals.  Currently, the U.S. attorney's office is reviewing the case to decide if they will take the case back to the trial court. 

Inmates' Attorneys Join The California Prison Overcrowding Case: Inmates' attorneys have filed a brief in the prison overcrowding case. Sacramento Bee writer Denny Walsh reports that after Governor Schwarzenegger applied for a stay pending an appeal of a lower court's decision requiring a plan to decrease overcrowding in state prison, inmates' attorneys filed a brief with the U.S. Supreme Court.  On August 4, a three judge panel ordered the administration to submit a plan to reduce the prison population, because overcrowding is the main reason inmates receive unconstitutionally deficient medical and mental health care.  Our position on the judges' order can be found here.  The inmates' attorneys stated, "a stay at this stage 'would delay a remedy for prison crowding that harms local communities and prison staff, in addition to prisoners.'"   

A Cluster Of Pedophiles: Local officials and experts across the country have discovered that most sex offenders move to the same areas.  Fox News writer Edward Barnes reports that sex offender clustering is a problem throughout the country.  The problem of pedophile clustering was brought to the polices' attention during the Jaycee Dugard case.  Police found that Phillip Garrido was one of 100 sex offenders living in the area.  Barnes writes, "Experts call that a recipe for disaster that could create far more danger to the public and undo all the work that imposing restrictive living measures for offenders has tried to accomplish."  There is no national data on clustering, in the past it has been discovered during the investigation of a crime.

A Decreased Sentence For Possession of Child Porn: Some people believe that the sentence for possession of child pornography is too harsh and needs to be lowered.  Law.com writer Lynne Marek reports, judges testified before the U.S. Sentencing Commission in Chicago to lower the sentence of those convicted of possessing child pornography. Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of Eastern District of Michigan claim that many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders. The Sentencing Commission is looking for feedback from those involved in the criminal justice system because it is the 25th anniversary of the Sentence Reform Act, and the start of the Commission.  Much of the discussion is based on the 2005 decision in United States v. Booker.  Booker made federal sentencing guidelines advisory rather than mandatory. Tomorrow, U.S. Attorney Patrick Fitzgerald, who oversees the Northern District of Illinois, will testify.  He is expected to testify that the Booker decision has "aggravated the situation concerning child pornography." 

California Death Row Inmate Hopes His Love Of The Irish Will Save Him: A creative death row inmate has written the Irish government, pleading with them to save his life.  IrishCentral.com writer April Drew reports that Scott Collins has asked the Irish government to help him after he discovered that the government is against the death penalty.  During Collins' prison term he started studying the Irish and fell in love. Collins is on death row for the abduction, robbery, and murder of Fred D. Rose in North Hollywood.  Collins abducted Rose in Palmdale, CA, and forced the construction supervisor to accompany Collins to the San Fernando Valley.  Collins then shot Rose in the back of the head.  At the time of the murder for which is is on death row, Collins was just 21 -- and was just one month out of prison after a five year stretch.  




 

Citizens United Oral Argument:  At SCOTUSblog, Lyle Denniston and Kristina Moore post information on today's Supreme Court argument in Citizens United v. Federal Election Commission.  Denniston's post provides his analysis of the argument, while Moore provides links to to the Court's transcript as well as an audio recording from PBS' NewsHour.  Denniston appears to believe that today's oral argument signals the beginning of the end for precedent's set in Austin v. Michigan Chamber of Commerce (1990) and McConnell v. FEC (2003).  He writes that three Justices, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas, seemed to stand firm in their belief that the two precedent's should be overturned, while Justices Ginsburg, Stevens, Breyer and Sotomayor argued for a more narrow ruling.  This made the Chief Justice and Justice Alito the two Justices for supporters of campaign finance laws to convince.  Denniston does not believe they were successful.  He writes that although "supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections.  None of those arguments seemed to appeal to either Roberts or Alito."  Tony Mauro also reports that the "Supreme Court Majority [was] Critical of Campaign Law Precedents" for Blog of Legal Times, and posts pictures, taken after arguments, of the the lawyers who argued Citizen.  Mauro believes that former solicitor general Theodore Olson, and the attorney for Citizen United, may have gained the upper hand with his argument that corporations are entitled to the same protection under the First Amendment as individuals when it comes to participating in elections.  

"Uptick" for Sentences Below Guidelines:  At Sentencing Law and Policy, Doug Berman posts on recent U.S. Sentencing data that shows an increase in below-guideline sentences.  Preliminary Quarterly Data from the U.S. Sentencing Commission shows that of 57,846 cases, 1,034 were above guide-line range and 23,581 were below guideline range.  14,471 of these were government sponsored (meaning "the prosecution initiated, proposed, or stipulated to a sentence outside of the guideline range, either pursuant to a plea agreement or as part of a non-plea negotiation with the defendant") and 9,110 were not.  Berman reports that the data shows "another...uptick in below-guideline sentences imposed by judges," with judges deciding 15.8% of the time to impose a below-guideline sentence.  This is up from the 13.8% below guideline sentencing Berman noticed before President Obama's election.

The Economics of a Border Fence with Mexico:  At Freakonomics Blog, Daniel Hamermesh writes that last week's horrific killings at the Ciudad Juarez drug treatment center demonstrate how "Fewer Drugs in America Means More Problems for Mexico."  The murders, according the Hamermesh, are an example of "what happens in a market when restrictions on supply are imposed in a related market."  Because of increased border enforcement it is harder to ship drugs from Mexico into the United States and Mexico's drug supply has increased.  Increased domestic competition has pushed the price of drugs down in Mexico and caused an increase in Mexican drug addiction and the violence associated with it.  Hamermesh opines "Sadly, I imagine that the new giant border fence will make shipping drugs to the U.S. even more difficult and result in still more addiction -- and violence -- in Mexico."

It's Official - Our 111th Supreme Court Justice:  At SCOTUSblog, Lyle Denniston reports that in today's official ceremony Justice Sonia Sotomayor took her seat today as the nation's 111th Supreme Court Justice.  After Chief Justice Roberts, Jr. administered the Judicial Oath, Justice Sotomayor took the traditional seat of the newest Justice -- on the far right as the audience sees the bench. Denniston also reports that today's ceremony is the first of two Court events that will take place before the start of the official October term.  Tomorrow, the Court will hold an 80-minute hearing on the controversy surrounding Citizens United v. Federal Election Commission (08-205).  Citizens is a carryover case from last term that addresses whether the Court should overrule either or both Austin v. Michigan Chamber of Commerce, and the part of McConnell v. Federal Election Commission, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. §441b.  Denniston reports the audiotape of the oral argument will be available sometime after tomorrow's session concludes.  Tony Mauro also reports on the ceremony at Blog of Legal Times.  Mauro's post includes pictures of our new Justice and the Chief Justice on the steps of the Supreme Court.  Ashby Jones blogs on Wall Street Journal's Law Blog that now that the new Justice is seated, it's time to "[l]et the games begin."

Louisiana Death Penalty:  Over the holiday weekend, Doug Berman posted a "Detailed examination of the death penalty in Louisiana" on Sentencing Law and Policy.  Berman's post is based on an article by Alison Bath in Sunday's Shreveport Times.  The article, Louisiana death penalty: an eye for an eye or ineffective?, promises to be the first in a series "will explore reasons for an apparent slowdown of executions, the costs of seeking the death penalty and the increasing number of death row inmates who are exonerated of their crimes and those whose sentences are overturned."  The series will also feature interviews with families of victims, prosecutors and defense attorneys.  Bath's article on Sunday makes the case that implementation of the death penalty in Louisiana, one of the "most active death penalty states in the first 10 years after the death penalty was reinstated," has dwindled in recent years.  Of the 27 men put to death since Louisiana reinstated the death penalty in 1979, 18 were executed between 1983 and 1988. Seven more were put to death during the '90s and just two were executed since 2000.

Ninth Circuit Decides Preventive Detention Case:  At Volokh Conspiracy Orin Kerr posted on the Ninth Circuit's decision in al-Kidd v. Ashcroft, and speculated that the decision "added a new case to the Supreme Court's docket next year."  According to Kerr, the Ninth Circuit held "that the post-9/11 practice of using the material witness statute to detain suspected terrorists is not only unconstitutional, but clearly unconstitutional, and that former AG Ashcroft can be personally sued for his role in it."  Al-Kidd apparently had ties with a suspected terrorist who had recently been arrested and charged with fraud.  When al-Kidd announced his plans to travel Saudi Arabia to study Islam, U.S. officials feared he was trying to leave the U.S. to escape U.S. authorities. The Department of Justice obtained a "material witness" warrant, ordering that al-Kidd be detained as a possible witness in the criminal case against the terrorist.  Al-Kidd was was detained for 2 weeks, and released when he agreed to comply with specific conditions of release for 15 months. He then filed a civil suit alleging that his detention violated his Fourth Amendment rights and the material witness statute, and that his treatment during the detention violated his Fifth Amendment and Eighth Amendment rights.  Kerr's post goes through each of the issues decided by the Ninth Circuit, and offers his analysis of the decision.  Kerr believes the court's decision is "Partly Right, Partly Wrong."  For Kerr, the key inquiry is what is the probable cause inquiry for national security detention warrants.  Kerr's problem is that the majority opinion never addresses this question. This could be one reason the case makes it way to the Supreme Court.  Ashby Jones also has this post on Wall Street Journal's Law Blog, and Jonathan Adler posted an excerpt from the opinion on Saturday.  Howard Bashman rounded up press coverage for How Appealing.
  

Parole Policy Permeates Press:  Thanks to Doug Berman for posting several links to regional news articles discussing local parole reform and decisions.  Berman links to a Reuters article by Dan Whitcomb, detailing California's decision not to parole former Manson follower Susan Atkins; a Richmond Times-Dispatch piece by Frank Green reporting on a study that shows that "Some Inmates eligible for parole held longer than guidelines suggest"; and an editorial from the Gainesville Sun on Florida's efforts at parole reform.  Berman's post highlights aspects of the articles that make state determinations to withhold parole appear unreasonable.  For example, he points to the portion of the Richmond Times-Dispatch article that states: "Some 706 parole-eligible inmates are being been held longer in Virginia prisons, at $24,332 each per year, than recommended under the current no-parole sentencing guidelines."  He balances this statement with the quote "However, the report also found that of the parole-eligible inmates still in prison, 88 percent were convicted of violent crimes and nearly 80 percent have not yet served longer than stipulated under the sentencing guidelines."  A person that reads the article a little further will learn why some of these offenders are serving longer than stipulated under the guidelines.  First, some of the aggravating factors that lead to longer sentences are not considered within the sentencing guidelines.  "For example, of the 80 parole-eligible drug offenders serving longer terms than would be required now, three out of four already had been revoked from parole at least once, and one-third had two or more parole revocations." Second, as described by Helen Fahey, the parole board chairwoman, these prisoners "are almost all violent criminals -- they're predominantly murderers and sex offenders. . . . They're not in there for stealing cars or writing bad checks."

Comparing Texas' Prison Reform with California:  At Grits for Breakfast, Scott Henson compares California's "partisan prison meltdown" with Texas' struggle over prison overcrowding.  Henson writes that when the Texas legislature confronted the issue in 2003, 2005 and 2007 it did not turn the issue into a partisan debate.  Instead, it approached projections that Texas' already full prisons would require billions in new construction to keep up their astronomical growth rate with bipartisan support.  This led to laws requiring judges to sentence offenders to probation for first-offense, less-than-a-gram possession cases; revamp probation in order to provide more meaningful supervision and leave sentence lengths alone; and expand funding for diversion programs.  Henson contrasts Texas' approach with California's "partisan meltdown characterized by tuff-on-crime demagoguery, not to mention gridlock in the face of federal court orders requiring" California to release inmates.  He writes, "[i]ronically, California may be suffering because it's trying to confront this problem with a Democratic majority. The turning point for Texas' prison system came in 2003, when Republicans found themselves in charge..."

Prison Privatization:  CrimProf Blog posts a link to Richard Culp's SSRN article "Prison Privatization Turns Twenty-Five: The Evolution of a Mature Private Prison Industry in the United States."  Culp's article argues that the realities of the mature prison privatization market do not match the promise of innovation and quality improvements voiced by privatization advocates during the 1980s and early 1990s.  He believes that with fewer companies running private prisons, and fewer states buying incarceration services "[t]he net effect is that any real cost advantages of privatization are marginal at best, private prison programs have become virtually indistinguishable from public prisons, and the promise of innovation remains unfulfilled." 

And one for fun...Ashby Jones reports on Wall Street Journal's Law Blog on a Honolulu city council bill that would criminalize being "smelly" while riding the city's public-transportation system.  Gordon Y.K. Pang covers the story in the Honolulu Advertiser.  If it passes, the bill would give one more reason to choose Hawaii over New York for your next vacation. As Jones notes, "devoted riders of New York City's subway system...[have] had the occasion to smell some unholy smells."

I have received some inquiries on why we have not posted on the New Yorker article on the Willingham case. Two reasons:

First, the case has been kicking around a long time, and I do not regard the article as the kind of major event that demands immediate comment.

Second, and more importantly, the broader subject of innocence and the death penalty does not lend itself to the kind of "quickie" post I can dash off in a few minutes. When we do post on the subject, it will be one of the longer posts on this blog, and we will have to go over it carefully to minimize the ability of the more dishonest elements of the opposition to distort what we say. (We can never eliminate that possibility entirely, of course.)

CJLF has three briefs and two law review articles due this month, so in the short run blogging will be limited to things we feel comfortable writing and posting quickly. This case is not one of them.

New Article on "Race, Death and Disproportionality":  At Sentencing Law and Policy, Doug Berman posts this link to Scott Howe's SSRN article discussing "racial bias in capital selection."  Howe, of Chapman University School of Law, argues that the Eighth Amendment requires examination of "[s]tatistical studies showing unconscious racial bias in capital selection[.]"  He seeks to show "why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to 'cruel and unusual punishments.'"  He seeks to show how these studies will influence the Supreme Court's death penalty decisions in the future.  Howe's article does not appear as though it will give much insight into what the Supreme Court will do with these studies.  The Baldus study was rejected as grounds for overturning Georgia's death penalty in McCleskey v. Kemp because McCleskey had failed to show Georgia acted improperly, and with a discriminatory purpose, in his case.

Criticism of Sex Offender Article:  On Sex Crimes yesterday, Corey Rayburn Yung posted a link to Wendy Murphy's opinion piece "Sex Offender Laws Flawed But Critical."  In her op-ed, Murphy criticizes the Economist article, "America's Unjust Sex Laws," as a "puff piece about how sex offenders are treated unfairly and sex offender registries are barbaric."  She writes that the Economist article did not reveal all of the relevant facts and "misse[d] the most important point of all - that the American legal system has historically perpetuated sexual violence by disproportionately failing to redress violence against women and children...." Yung agrees with Murphy that the American legal system has failed and continues to fail women and children in regards to sexual violence, but counters that because the problems in the the system are at the law enforcement and trial phases of criminal justice, increasing collateral restrictions on sex offenders does nothing to correct those deficiencies.  In another, somewhat related post on sex offender registries, CrimProf Blog posts the lead-in to a New York Times article by Monica Davey on how the case of Phil Garrido, "Shows Limits of Sex Offender Alert Programs."

Supreme Court Retirement Speculation:  At Blog of Legal Times, Tony Mauro reports on an Associated Press story that has bloggers wondering whether Justice Stevens will be retiring next year.  Apparently, Justice Stevens has hired only one clerk for the October 2010 term, which contradicts his custom of hiring his full complement of four clerks for the term that begins a year hence.  Mauro states that such speculation is often "inaccurate," but those who have clerked for the Justice in the past believe the move is telling, particularly since Justice Stevens will be 90 next year.  Doug Berman also posts on the story at Sentencing Law and Policy, as does Jan Crawford Greenburg at Legalities.  Greenburg points out that the reporter who broke the story, Mark Sherman, is the same reporter who let us know in April that Justice Souter hadn't hired any new clerks for the October 2009 term.       

Off topic News Article on Unlikely Amicus Bedfellows:  On Saturday New York Times writer Adam Liptak reported on the Supreme Court's decision to hear a new argument in the First Amendment case, Citizens United v. Federal Election Commission.  Arguments are scheduled for September 9th.   The case centers around "Hillary: The Movie," a documentary prepared by a conservative advocacy group called Citizens United.  The issue is whether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers.  Liptak reports that the court's order calling for re-argument "has generated more than 40 friend-of-the-court briefs," and has the ACLU aligned - surprisingly - with the National Rifle Association.  The ACLU's usual allies have taken a different stance, arguing that allowing corporate money to flood the airwaves would pollute and corrupt political discourse.  According to Liptak, the strange ACLU-NRA alliance comes from the ACLU's long supported position that regulation of corporate campaign spending may violate the First Amendment.  He reports several others in the civil rights community disagree with this position. 

To understand the Constitution of the United States, one must study the history of England, especially the Stuart era. The original Bill of Rights, the Habeas Corpus Act of 1679, and other immediate progenitors of provisions of our Constitution come from that era. In the WSJ, historian William Anthony Hay has this review of "1688: The First Modern Revolution," by Steve Pincus. Hay and Pincus disagree on the extent to which the Glorious Revolution was blazing a new trail versus rescuing old traditions from recent usurpations.

A Break for Cold Cases:  At Sentencing Law and Policy Doug Berman reports "Links to Sex Crimes to Follow Texas Suspects," the title of a Wall Street Journal article by Ann Zimmerman.  According to the article, starting tomorrow Texas will begin implementing a law that lets prosecutors and parole boards see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried.  The law is the first of its kind in the country and is meant to close a gap created by improved technology. It will not apply to alleged assaults before 2001, but will enable prosecutors to take advantage of advances in genetic testing and access even the smallest DNA samples to identify suspects in old criminal cases.  At Wall Street Journal Blog, Ashby Jones reports that, when implemented, the law will affix DNA results to a suspect's criminal record so they can be used in subsequent prosecutions or sentencing decisions.  Both Berman and Jones report that the law has its supporters and critics.  Supporters believe the law, conceived and championed by a small group of rape survivors who had joined a Dallas Police Department support group launched as part of the city's cold-case project, will force prosecutors and parole boards to take a harder look at these offenders.  Critics, like the ACLU, worry about the offenders' due process rights.  We side with victims, like Desirée Wood, who will never see the man who raped her prosecuted for his crime.

A Chance to "Derail" California's Parole Reform Bill?:  At Wall Street Journal Blog, Ashby Jones wonders whether the tragic case of Jaycee Duggard (reported on by Kent last Friday) and her abduction by career offender Phillip Garrido could derail California's efforts to release over 27,000 prisoners.  Jones' question came from this New York Times article, by Carolyn Pogash and Solomon Moore, reporting on how some corrections reform advocates in Sacramento and politicians are worried that the fallout from the Garrido case could have a big effect on the Assembly bill that will reduce the state's prison population.  State Senator Tom Harman (R) correctly stated, "This demonstrates the problems that we're going to have if we release thousands of prisoners into our local communities."  Harman raises valid concerns even though Scott Kernan, a deputy secretary of the California Department of Corrections and Rehabilitation, believes that a man who had committed crimes like those that sent Garrido to prison initially would never have been released early from prison under the proposed law.  After all, if a released man like Garrido was under federal supervision when he kidnapped Duggard, and has been under state supervision since 1999, how can we trust that a massive release of prisoners won't claim similar victims?

McDaniel v. Brown SCOTUS Preview:  On SCOTUSblog, Erica Goldberg reports on McDaniel v. Brown, a criminal case that the Supreme Court will hear on October 13th.  Brown involves the brutal rape of a nine-year-old girl in Carlin, Nevada. While her mother was at a local bar, "Jane Doe" was raped in her home by an identified assailant.  When she was interviewed at the hospital Jane described her attacker as resembling Troy Brown, and Brown was eventually tried in state court.  During the trial, a DNA expert testified for the prosecution.  The expert had tested a sample from the victim's underwear using Restriction Fragment Length Polymorphism (RFLP) analysis, and testified to a conservative estimate that the chance that a person chosen at random would match the profile was one in three million.  Brown was convicted and sentenced to life.  As Goldberg points out, the expert's testimony is "at the heart of McDaniel v. Brown."  After state courts affirmed his conviction, Brown filed a federal habeas petition and the district court granted relief.  The district court permitted petitioner Brown to expand the record with an affidavit from another DNA expert, who criticized the testimony of the state's DNA expert in response to a question by the prosecutor but not the conclusion in her main testimony.  The district court granted relief, and the Ninth Circuit affirmed.  The Supreme Court granted certiorari in January 2009.  In its merits brief, the State argued that a federal habeas court must limit its consideration to evidence presented at trial when determining whether evidence is insufficient as a matter of law.  It argued that a habeas court cannot consider evidence outside of the trial record in assessing a sufficiency claim.  The State's brief also emphasizes that based on the evidence, it is highly likely that Troy Brown, and not one of his brothers, is guilty.  Brown's merit brief raises an entirely new argument to the Supreme Court, apparently recognizing that the the Ninth Circuit's sufficiency analysis and relief were seriously flawed.  He argues that the Ninth Circuit must have been conducting due process analysis instead of an assessment of the sufficiency of the evidence, and argues that the questions presented (pertaining to a sufficiency-of-the-evidence analysis) were not relevant.  He asked that the judgment be remanded for the Ninth Circuit to clarify its decision.

  Unfortunately, a couple of important points are missing or only implicit in Goldberg's summary. To begin, Goldberg's description of Brown as a "potentially innocent defendant" is a stretch. The chance of his brother matching the profile is low, and if he did that fact could easily be confirmed by just testing the brother.  Second, the DNA evidence remains powerful even considering the issues raised by the defendant's expert. This evidence alone excludes all unrelated suspects to a near certainty and excludes Brown's brother to a high degree of confidence. Third, the defendant is taking the audacious step of trying to introduce an entirely new theory for the first time in his brief on the merits in the Supreme Court. The notion that the Ninth Circuit "must have been" doing an analysis different from the one it plainly said it was doing is nonsense. Should be an interesting oral argument.
 
  CJLF also filed a brief in Brown, available here.  Our brief had to be filed before the defendant's, unfortunately, so we were not able to discuss the defendant's change of theory, but the state does so in its reply brief.

Guilty Plea Ends "One of the Largest" Identity Theft Prosecution:  At Blog of Legal Times, Mike Scarcella reports that Albert Gonzalez, 28, a one-time Secret Service informant, has agreed to plead guilty in U.S. District Court for the District of Massachusetts next month. (USDoJ information on United States v. Gonzalez is available here.)  Gonzalez allegedly participated in a conspiracy that netted more than 40 million credit and debit card accounts from at least nine big time corporations, including Barnes & Noble, Sports Authority and, TJX Companies.  TJX, which owns discount clothing stores T.J. Maxx and Marshalls, has claimed more than $130 million in losses stemming from the intrusion.  In the agreement, Gonzalez also agreed to plead guilty to charges brought in the U.S. District Court for the Eastern District of New York.  Gonzalez was indicted in New York in May 2008 for allegedly breaking into the computer system of Dave & Buster's restaurant chain. He agreed to serve 15 to 25 years for offenses.  Scarcella reports the sentence will run concurrent to any sentence that is imposed in a case pending in New Jersey.  Scarcella also fills readers in on some interesting facts of the case.  For example, Prosecutors have fought for restrictions on what evidence Gonzalez and his legal team could see, because the USDoJ and Secret Service created new technology--spending $150,000 at Carnegie Mellon University in Pittsburgh for a secure database--to hold the billions of files containing names, passwords, account numbers, and corporate network data that make up the bulk of electronic evidence being gathered in the case. Lawyers for the defrauded companies have encouraged these restrictions. Lawyers for TJX told a judge that allowing Gonzalez access to its trade secrets could expose the company to further computer attacks.

Conference on the Philosophical Foundations of Criminal Law:  For those who will be in or around Rutgers School of Law-Newark on September 25-26th, CrimProf Blog has posted the schedule for a conference entitled "Philosophical Foundations of Criminal Law."  The post informs that the papers presented at the conference will be published by Oxford University Press in a book by the same title.