Results matching “first”

News Scan

July 23, 2008 10:30 AM | Posted by CJLF Staff

CA Jessica's Law Nets Conviction, 20-year sentence: California enacted Jessica's Law in 2006, and it seems to be working, according to Niesha Lofing's story for the Sac Bee. The Yolo County District Attorney's Office won a 20-year sentence under Jessica's Law against a 27-year-old man who molested two girls, age 10 and 12.

GPS Gains Support After PA Loses Track of 900 Sex Offenders: Pennsylvania Auditor General Wagner is recommending a minimum of 5 years of GPS tracking for sex offenders who refuse to comply with Megan's Law after a state audit revealed that officials lost track of 900 registered sex offenders, or roughly 10%. According to Martha Raffaele's AP article, the state would require offenders to participate in the cost of GPS monitoring.

Sac Crime Rate Down 8%: According to Chelsea Phua's report for the Sac Bee, the Sacramento Police Department is "cautiously optimistic" about the 8% decline in crime for the first half of 2008. The department is continuously reviewing what works and what doesn't in order to make Sacramento's law enforcement efforts as effective as possible.

News Scan

July 23, 2008 10:30 AM | Posted by CJLF Staff

CA Jessica's Law Nets Conviction, 20-year sentence: California enacted Jessica's Law in 2006, and it seems to be working, according to Niesha Lofing's story for the Sac Bee. The Yolo County District Attorney's Office won a 20-year sentence under Jessica's Law against a 27-year-old man who molested two girls, age 10 and 12.

GPS Gains Support After PA Loses Track of 900 Sex Offenders: Pennsylvania Auditor General Wagner is recommending a minimum of 5 years of GPS tracking for sex offenders who refuse to comply with Megan's Law after a state audit revealed that officials lost track of 900 registered sex offenders, or roughly 10%. According to Martha Raffaele's AP article, the state would require offenders to participate in the cost of GPS monitoring.

Sac Crime Rate Down 8%: According to Chelsea Phua's report for the Sac Bee, the Sacramento Police Department is "cautiously optimistic" about the 8% decline in crime for the first half of 2008. The department is continuously reviewing what works and what doesn't in order to make Sacramento's law enforcement efforts as effective as possible.

Sequential Lineups

July 23, 2008 9:30 AM | Posted by Kent Scheidegger

Sequential lineups have been touted as inherently superior to simultaneous lineups. A new study indicates that the situation is not quite that simple. (Hat tip: Psychology and Crime News) The article is:
Lineup composition, suspect position, and the sequential lineup advantage.
Carlson, Curt A.; Gronlund, Scott D.; Clark, Steven E.
Journal of Experimental Psychology: Applied. 2008 Jun Vol 14(2) 118-128

Abstract after the jump:

Continue reading Sequential Lineups.

Sequential Lineups

July 23, 2008 9:30 AM | Posted by Kent Scheidegger

Sequential lineups have been touted as inherently superior to simultaneous lineups. A new study indicates that the situation is not quite that simple. (Hat tip: Psychology and Crime News) The article is:
Lineup composition, suspect position, and the sequential lineup advantage.
Carlson, Curt A.; Gronlund, Scott D.; Clark, Steven E.
Journal of Experimental Psychology: Applied. 2008 Jun Vol 14(2) 118-128

Abstract after the jump:

Continue reading Sequential Lineups.

Blog Scan

July 22, 2008 3:33 PM | Posted by Lauren Altdoerffer

A Below-Guideline Sentence Unreasonable in Sixth Circuit: At Sentencing Law and Policy, Doug Berman reports a split Sixth Circuit panel reversed "a sentence well below the guidelines as substantively unreasonable." The opinion, U.S. v. Funk, No. 05-3708, was released today. Berman comments: "There is a lot of Funky spunk in both the majority opinion's effort to make sense of reasonableness review," and notes that "reasonableness review" is "challenging." Berman points to Judge Bogg's dissent as an example as to why reasonableness review after Rita, Kimbrough, and Gall, is difficult for appellate courts to implement. Berman comments that given the split, the case may be ripe for en banc review. This means more review for a case that has been around since Funk's 2002 federal indictment for conspiring to possess cocaine and marijuana with intent to distribute.

Louisiana v. Kennedy's Petition for Rehearing: At Bench Memos, Ed Whalen highlights three aspects of the Petition for Rehearing filed by Louisiana yesterday. First, Louisiana retained Georgetown law professor Neal Kumar Katyal as lead counsel for the Petition. Katyal, has said on the record that he agreed to help Louisiana with the opinion "[s]ince the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case" and "I am...opposed to courts taking fundamental decisions away from American voters…. " Second, the rehearing petition correctly states that while Louisiana erred in omitting the federal law, "Louisiana’s mistake 'should neither inhibit the Court’s work nor diminish its fealty to the Constitution.'" And finally, "the rehearing petition documents that the change effected by the 2006 law was “deliberate and premeditated,” was supported by a Department of Defense report that, among other things, discussed Louisiana’s child-rape law, was highlighted to Congress, and was implemented by an executive order and by amendments to the rules governing courts-martial."

Blog Scan

July 22, 2008 3:33 PM | Posted by Lauren Altdoerffer

A Below-Guideline Sentence Unreasonable in Sixth Circuit: At Sentencing Law and Policy, Doug Berman reports a split Sixth Circuit panel reversed "a sentence well below the guidelines as substantively unreasonable." The opinion, U.S. v. Funk, No. 05-3708, was released today. Berman comments: "There is a lot of Funky spunk in both the majority opinion's effort to make sense of reasonableness review," and notes that "reasonableness review" is "challenging." Berman points to Judge Bogg's dissent as an example as to why reasonableness review after Rita, Kimbrough, and Gall, is difficult for appellate courts to implement. Berman comments that given the split, the case may be ripe for en banc review. This means more review for a case that has been around since Funk's 2002 federal indictment for conspiring to possess cocaine and marijuana with intent to distribute.

Louisiana v. Kennedy's Petition for Rehearing: At Bench Memos, Ed Whalen highlights three aspects of the Petition for Rehearing filed by Louisiana yesterday. First, Louisiana retained Georgetown law professor Neal Kumar Katyal as lead counsel for the Petition. Katyal, has said on the record that he agreed to help Louisiana with the opinion "[s]ince the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case" and "I am...opposed to courts taking fundamental decisions away from American voters…. " Second, the rehearing petition correctly states that while Louisiana erred in omitting the federal law, "Louisiana’s mistake 'should neither inhibit the Court’s work nor diminish its fealty to the Constitution.'" And finally, "the rehearing petition documents that the change effected by the 2006 law was “deliberate and premeditated,” was supported by a Department of Defense report that, among other things, discussed Louisiana’s child-rape law, was highlighted to Congress, and was implemented by an executive order and by amendments to the rules governing courts-martial."

News Scan

July 18, 2008 11:00 AM | Posted by CJLF Staff

TX to Proceed with Internationally Contested Executions: The ICJ ordered a review of 5 Texas capital cases after Mexico again complained that the convicts had not been allowed to talk to the Mexican consulate after their arrests. But today, a spokesperson for the governor announced that the executions will proceed as planned, with the first scheduled for August 5.

Chicago Crime Epidemic May Require National Guard: According to ABC 7 Chicago, the governor has offered to send Illinois State Troopers and National Guard equipment to Chicago to help control spiraling violence in Cook County. According to Governor Blagojevich, 16 children have been killed in the last three weeks, and there are five times as many gang-bangers as police officers.

Investigation Reveals Serious Flaws in Nation's Largest Jail: The AP's Mike Robinson details the results of a 17-month federal investigation of the Cook County Jail in Chicago. While officials were praised for their cooperation, the report alleges a "culture of abuse" within the jail, in which guards conducted organized beatings of inmates who insulted them, among other issues. So far, jail officials are cooperating with efforts to address the problems.

Sac County Drops Gang Tax Plan: Citing opposition from Sacramento County's suburban cities and a not-so-enthusiastic sheriff, the County Supervisor announced that he is abandoning his plan to increase the sales tax to raise funds to combat gangs. According to Ed Fletcher's article for the Sacramento Bee, Supervisor Dickinson will suggest that the Sacramento City Council pursue the tax increase on its own.

News Scan

July 18, 2008 11:00 AM | Posted by CJLF Staff

TX to Proceed with Internationally Contested Executions: The ICJ ordered a review of 5 Texas capital cases after Mexico again complained that the convicts had not been allowed to talk to the Mexican consulate after their arrests. But today, a spokesperson for the governor announced that the executions will proceed as planned, with the first scheduled for August 5.

Chicago Crime Epidemic May Require National Guard: According to ABC 7 Chicago, the governor has offered to send Illinois State Troopers and National Guard equipment to Chicago to help control spiraling violence in Cook County. According to Governor Blagojevich, 16 children have been killed in the last three weeks, and there are five times as many gang-bangers as police officers.

Investigation Reveals Serious Flaws in Nation's Largest Jail: The AP's Mike Robinson details the results of a 17-month federal investigation of the Cook County Jail in Chicago. While officials were praised for their cooperation, the report alleges a "culture of abuse" within the jail, in which guards conducted organized beatings of inmates who insulted them, among other issues. So far, jail officials are cooperating with efforts to address the problems.

Sac County Drops Gang Tax Plan: Citing opposition from Sacramento County's suburban cities and a not-so-enthusiastic sheriff, the County Supervisor announced that he is abandoning his plan to increase the sales tax to raise funds to combat gangs. According to Ed Fletcher's article for the Sacramento Bee, Supervisor Dickinson will suggest that the Sacramento City Council pursue the tax increase on its own.

Blog Scan

July 17, 2008 3:25 PM | Posted by Lauren Altdoerffer

Hamdan's Trial Will Go Forward Next Week: At the BLT, Joe Palazzolo has this post on the denial of Hamdan's request to halt his war crimes trial, noted in today's News Scan. The trial is scheduled for next Monday. After a two hour hearing this morning, U.S. District Judge James Robertson ruled he would not grant the request, because "challenges to the lawfulness of the military commissions must be resolved, in the first instance, by the commissions themselves." This ruling came hours after a military judge rejected Hamdan's arguments that the military tribunals violate the Constitution's equal protection clause. During the hearing, Justice Department lawyer John O'Quinn stated that he interpreted Boumediene v. Bush to mean "the applicability of the Constitution to detainees at Guantanamo is context-specific. The opinion made plain that the Suspension Clause applied to detainees, but the applicability of others, like the equal-protection clause, should be determined in the commissions..." Judge Robertson may have bought the argument here, but also made clear that his decision was not binding on other judges.

The Second Amendment After Heller: Hattip to Eugene Volokh at Volokh Conspiracy for the link to Glenn Reynolds & Brannon Denning's article on Heller in Northwestern Law Review's Colloquy. The article, "Heller's Future in Lower Courts", argues "many commentators have missed an important point" because, according the the authors, Heller's most important contribution "is its complete and unanimous rejection of the 'collective rights'" - something lower courts have relied on for "nearly seventy years." In the article the authors discuss how the Heller decision may allow the lower courts, when addressing challenges to state gun laws, to rewrite case law on the Second Amendment. Also, Volokh and Doug Berman at SL&P disagree over whether a recent unpublished Ninth Circuit decision is "sensible" in rejecting Heller-based challenges to law against machine guns, sawed-off guns, and possession of guns by felons.

Texas Still Plans to Execute Prisoner, Despite World Court Ruling: At Sentencing Law and Policy Doug Berman sums up the legal drama that has unfolded between the World Court and Texas over the past two days. As reported on SCOTUSblog yesterday, the World Court had ordered Texas to halt the five planned executions Jose Ernesto Medellin, Cesar Roberto Fierro Reyna, Ruben Ramirez Cardenas, Humberto Leal Garcia and Roberto Moreno Ramos. The Houston Chronicle reported today that despite the World Court's order, Texas still planned to proceed with the August 5th execution of Medellin.

Blog Scan

July 17, 2008 3:25 PM | Posted by Lauren Altdoerffer

Hamdan's Trial Will Go Forward Next Week: At the BLT, Joe Palazzolo has this post on the denial of Hamdan's request to halt his war crimes trial, noted in today's News Scan. The trial is scheduled for next Monday. After a two hour hearing this morning, U.S. District Judge James Robertson ruled he would not grant the request, because "challenges to the lawfulness of the military commissions must be resolved, in the first instance, by the commissions themselves." This ruling came hours after a military judge rejected Hamdan's arguments that the military tribunals violate the Constitution's equal protection clause. During the hearing, Justice Department lawyer John O'Quinn stated that he interpreted Boumediene v. Bush to mean "the applicability of the Constitution to detainees at Guantanamo is context-specific. The opinion made plain that the Suspension Clause applied to detainees, but the applicability of others, like the equal-protection clause, should be determined in the commissions..." Judge Robertson may have bought the argument here, but also made clear that his decision was not binding on other judges.

The Second Amendment After Heller: Hattip to Eugene Volokh at Volokh Conspiracy for the link to Glenn Reynolds & Brannon Denning's article on Heller in Northwestern Law Review's Colloquy. The article, "Heller's Future in Lower Courts", argues "many commentators have missed an important point" because, according the the authors, Heller's most important contribution "is its complete and unanimous rejection of the 'collective rights'" - something lower courts have relied on for "nearly seventy years." In the article the authors discuss how the Heller decision may allow the lower courts, when addressing challenges to state gun laws, to rewrite case law on the Second Amendment. Also, Volokh and Doug Berman at SL&P disagree over whether a recent unpublished Ninth Circuit decision is "sensible" in rejecting Heller-based challenges to law against machine guns, sawed-off guns, and possession of guns by felons.

Texas Still Plans to Execute Prisoner, Despite World Court Ruling: At Sentencing Law and Policy Doug Berman sums up the legal drama that has unfolded between the World Court and Texas over the past two days. As reported on SCOTUSblog yesterday, the World Court had ordered Texas to halt the five planned executions Jose Ernesto Medellin, Cesar Roberto Fierro Reyna, Ruben Ramirez Cardenas, Humberto Leal Garcia and Roberto Moreno Ramos. The Houston Chronicle reported today that despite the World Court's order, Texas still planned to proceed with the August 5th execution of Medellin.

News Scan

July 17, 2008 10:12 AM | Posted by CJLF Staff

World Court Demands Stay of Execution for Avena Inmates: In 2004, the World Court ruled that the United States had violated the Vienna Convention by not allowing 51 arrested Mexican nationals to contact consular officials after their arrest and by invoking procedural default rules against belated assertions of these claims. President Bush issued a directive to state courts to comply with the decision, but in Medellin v. Texas the Supreme Court held that his memorandum had no legally binding force. Five of these murderers are now approaching execution in Texas. Mexico returned to the World Court seeking an injunction.

Judge Okays First Gitmo Trial: According to James Vicini's article for Reuters, Salim Hamdan's attorneys argued that the military tribunal should not proceed while they challenge their client's designation as an enemy combatant and the constitutionality of the tribunal system. The judge ruled that those challenges can only be heard after a trial occurs and that the trial could begin next week as planned.

Infamous NJ City Sees Drop in Homicides: Newark has gained notoriety as a very violent city, but thanks to a tough-on-crime mayor and his hands-on police director, that's changing. Through more effective policing and a campaign against community apathy, Newwark's violent crime rate fell in all 7 categories last year, according to David Porter's AP report.

News Scan

July 17, 2008 10:12 AM | Posted by CJLF Staff

World Court Demands Stay of Execution for Avena Inmates: In 2004, the World Court ruled that the United States had violated the Vienna Convention by not allowing 51 arrested Mexican nationals to contact consular officials after their arrest and by invoking procedural default rules against belated assertions of these claims. President Bush issued a directive to state courts to comply with the decision, but in Medellin v. Texas the Supreme Court held that his memorandum had no legally binding force. Five of these murderers are now approaching execution in Texas. Mexico returned to the World Court seeking an injunction.

Judge Okays First Gitmo Trial: According to James Vicini's article for Reuters, Salim Hamdan's attorneys argued that the military tribunal should not proceed while they challenge their client's designation as an enemy combatant and the constitutionality of the tribunal system. The judge ruled that those challenges can only be heard after a trial occurs and that the trial could begin next week as planned.

Infamous NJ City Sees Drop in Homicides: Newark has gained notoriety as a very violent city, but thanks to a tough-on-crime mayor and his hands-on police director, that's changing. Through more effective policing and a campaign against community apathy, Newwark's violent crime rate fell in all 7 categories last year, according to David Porter's AP report.

The Spam King

July 11, 2008 3:09 PM | Posted by Kent Scheidegger

Doug Berman at SL&P solicited comments regarding what sentence is appropriate for the "Spam King." He has gotten a lot of comments, 60 as of this writing.

What is fascinating to me is that the commenters on this blog, who overall tend to lean toward a more lenient sentencing policy, as the host does, have absolutely no mercy for this guy. Why not? In part, I suspect it's because his crime is one that every user of the Internet (and hence all the commenters) has personally been a victim of. People tend to be more lenient when we have not been victims ourselves. But we shouldn't.

Continue reading The Spam King.

The Spam King

July 11, 2008 3:09 PM | Posted by Kent Scheidegger

Doug Berman at SL&P solicited comments regarding what sentence is appropriate for the "Spam King." He has gotten a lot of comments, 60 as of this writing.

What is fascinating to me is that the commenters on this blog, who overall tend to lean toward a more lenient sentencing policy, as the host does, have absolutely no mercy for this guy. Why not? In part, I suspect it's because his crime is one that every user of the Internet (and hence all the commenters) has personally been a victim of. People tend to be more lenient when we have not been victims ourselves. But we shouldn't.

Continue reading The Spam King.

A Neat, Plausible, & Wrong Answer to the "Too Many Prisoners" Problem

July 11, 2008 1:30 PM | Posted by Kent Scheidegger

The Washington Post has this editorial, titled "Too Many Prisoners." The editorial bemoans the high number of prisoners and the financial burden of the prisons. No dispute there. The editorial also says, "Tough sentences for murder, rape and the like are unquestionably necessary and contributed to a drop in such crimes over the past two decades." Right.

Then there is this sentence: "But prisons should be focused on holding the most dangerous criminals rather than on warehousing nonviolent, first-time offenders."

The implicit premise in this statement is that a large chunk of the current prison population consists of offenders who are in the big house for their first offense of a nonviolent crime and that releasing people who fit that description would make a big dent in the prison population. A closer look is in order.

Continue reading A Neat, Plausible, & Wrong Answer to the "Too Many Prisoners" Problem.

A Neat, Plausible, & Wrong Answer to the "Too Many Prisoners" Problem

July 11, 2008 1:30 PM | Posted by Kent Scheidegger

The Washington Post has this editorial, titled "Too Many Prisoners." The editorial bemoans the high number of prisoners and the financial burden of the prisons. No dispute there. The editorial also says, "Tough sentences for murder, rape and the like are unquestionably necessary and contributed to a drop in such crimes over the past two decades." Right.

Then there is this sentence: "But prisons should be focused on holding the most dangerous criminals rather than on warehousing nonviolent, first-time offenders."

The implicit premise in this statement is that a large chunk of the current prison population consists of offenders who are in the big house for their first offense of a nonviolent crime and that releasing people who fit that description would make a big dent in the prison population. A closer look is in order.

Continue reading A Neat, Plausible, & Wrong Answer to the "Too Many Prisoners" Problem.

Virginia's Lethal Injection Protocol Upheld

July 10, 2008 3:27 PM | Posted by Lauren Altdoerffer

Hattip to Doug Berman at Sentencing Law and Policy for pointing us to, and providing a link to the Fourth Circuit's decision in Emmett v. Johnson, No. 07-18 (4th Cir. July 10, 2008). As Berman reports, a split panel affirmed Virginia's lethal injection protocol. The decision allows Emmett's execution, scheduled for July 24, 2008, to go forward.

In Emmett, the Fourth Circuit reviewed a "nearly identical challenge" to the lethal injection protocol upheld by the U.S. Supreme Court in Baze v. Rees. The prisoner, Christopher Scott Emmett, challenged the constitutionality of Virginia's lethal injection protocol. Today's Fourth Circuit decision rejected Emmett's claim that Virginia's protocol created a "significant and unnecessary risk that the thiopental would not be properly administered..."

Continue reading Virginia's Lethal Injection Protocol Upheld.

Virginia's Lethal Injection Protocol Upheld

July 10, 2008 3:27 PM | Posted by Lauren Altdoerffer

Hattip to Doug Berman at Sentencing Law and Policy for pointing us to, and providing a link to the Fourth Circuit's decision in Emmett v. Johnson, No. 07-18 (4th Cir. July 10, 2008). As Berman reports, a split panel affirmed Virginia's lethal injection protocol. The decision allows Emmett's execution, scheduled for July 24, 2008, to go forward.

In Emmett, the Fourth Circuit reviewed a "nearly identical challenge" to the lethal injection protocol upheld by the U.S. Supreme Court in Baze v. Rees. The prisoner, Christopher Scott Emmett, challenged the constitutionality of Virginia's lethal injection protocol. Today's Fourth Circuit decision rejected Emmett's claim that Virginia's protocol created a "significant and unnecessary risk that the thiopental would not be properly administered..."

Continue reading Virginia's Lethal Injection Protocol Upheld.

New Mitigation "Guidelines"

July 9, 2008 7:34 AM | Posted by Kent Scheidegger

Hofstra Law Review has an entire issue on the "Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases." (Hat tip: SL&P.) Unlike the American Bar Association, which at least pretends to represent the entire bar, these guidelines are a purely defense-side effort.

The defense side was successful in getting the Supreme Court to delegate to the ABA the power to amend the Constitution of United States by saying in Wiggins v. Smith, 539 U.S. 510 (2003) that it would look to ABA guidelines to decide what the Sixth Amendment requires in capital defense. The goal here appears to be to convince courts to let the defense side dispense with even the pretense of letting other segments of the bar have a say and decide on its own what is required. I'm not sure why they need to go outside the ABA, given that the ABA is simply a sock-puppet on the defense's hand in these matters, but they apparently think they need to.

The end goal is to convince the American people they cannot afford the death penalty, after the people have rejected all the other arguments. First, promulgate standards. Second, get courts to overturn sentences in any case where the standards are not met. Third, tell legislatures they must make huge new appropriations to meet the standards. Fourth, tell the legislature they just can't afford this, and the only alternative is to abolish the death penalty.

New Mitigation "Guidelines"

July 9, 2008 7:34 AM | Posted by Kent Scheidegger

Hofstra Law Review has an entire issue on the "Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases." (Hat tip: SL&P.) Unlike the American Bar Association, which at least pretends to represent the entire bar, these guidelines are a purely defense-side effort.

The defense side was successful in getting the Supreme Court to delegate to the ABA the power to amend the Constitution of United States by saying in Wiggins v. Smith, 539 U.S. 510 (2003) that it would look to ABA guidelines to decide what the Sixth Amendment requires in capital defense. The goal here appears to be to convince courts to let the defense side dispense with even the pretense of letting other segments of the bar have a say and decide on its own what is required. I'm not sure why they need to go outside the ABA, given that the ABA is simply a sock-puppet on the defense's hand in these matters, but they apparently think they need to.

The end goal is to convince the American people they cannot afford the death penalty, after the people have rejected all the other arguments. First, promulgate standards. Second, get courts to overturn sentences in any case where the standards are not met. Third, tell legislatures they must make huge new appropriations to meet the standards. Fourth, tell the legislature they just can't afford this, and the only alternative is to abolish the death penalty.

FedSoc Commentary

July 7, 2008 11:49 AM | Posted by CJLF Staff

Issue 9.2 of Engage, the journal of the Federalist Society's practice groups, is now available online. This issue has four criminal law articles, because the Federalism group's articles are both on criminal law topics. The articles are:

From Apprendi to Booker to Gall and Kimbrough: The Supreme Court Blunders its Way Back to Luck-of-the-Draw Sentencing by William G. Otis

Forensic Science Needs Checks and Balances by Roger G. Koppl & Radley Balko

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota by Ilya Somin

The Fourth Amendment and Federalism: The Supreme Court Tussle Over the Two by Marc M. Harrold & Michael John Gorman

More details after the jump:

Continue reading FedSoc Commentary.

FedSoc Commentary

July 7, 2008 11:49 AM | Posted by CJLF Staff

Issue 9.2 of Engage, the journal of the Federalist Society's practice groups, is now available online. This issue has four criminal law articles, because the Federalism group's articles are both on criminal law topics. The articles are:

From Apprendi to Booker to Gall and Kimbrough: The Supreme Court Blunders its Way Back to Luck-of-the-Draw Sentencing by William G. Otis

Forensic Science Needs Checks and Balances by Roger G. Koppl & Radley Balko

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota by Ilya Somin

The Fourth Amendment and Federalism: The Supreme Court Tussle Over the Two by Marc M. Harrold & Michael John Gorman

More details after the jump:

Continue reading FedSoc Commentary.

Blog Scan

July 1, 2008 2:52 PM | Posted by Lauren Altdoerffer

Post-Heller Second Amendment Lawsuits: Lyle Denniston reports over at SCOTUSblog on the five Second Amendment lawsuits filed by the NRA last Friday, June 27, 2008. The lawsuits attack the constitutionality of gun control laws adopted in California and Illinois. Denniston's post provides links to each of the NRA's complaints. According to Denniston, each case addresses an issue that has not been before the U.S. Supreme Court since 1894 - whether the Second Amendment is applicable to state and local governments through the Fourteenth Amendment. In 1894, the Supreme Court stated the Second Amendment applied only to the federal government. However, a district court may find reasoning to overturn that decision, Miller v. Texas, based on the language used by Scalia'a majority opinion in Heller.

Legal Guidance for Detainee Review: Dan Slater at Wall Street Journal Blog has a post on the Court of Appeals for the D.C. Circuit's opinion that provides guidance for federal district court judges who are about to begin reviewing the government's evidence against the Gitmo detainees. Last Monday, the Court of Appeals for the D.C. Circuit released an opinion ordering a new military hearing for detainee Huzaifa Parhat. Today's opinion, a partially-redacted version of the original, compares the government’s legal reasoning with a characterfrom an 1876 Lewis Carroll poem called “The Hunting of the Snark.” Slater provides a summary of the opinion, as well as a link to the actual opinion.

Blog Commentary on E.J. Dionne's Washington Post Column: Ed Whalen at NROs Bench Memos and Jonathan Adler at Volokh Conspiracy, both address Dionne's "hallucinations" over the threat posed by a conservative U.S. Supreme Court. According to Whalen, Dionne's article,"The Court vs. Voters,", mischaraterizes the threat posed by "judges appointed during the right’s ascendancy" and ignores the threat posed by Obama's potential appointments. Adler, notes that Whalen has been "too kind" and gives a few arguments to counter Dionnes' claims. First, Adler argues we are not on the verge of a conservative Court movement to overturn "the will of Congress and local legislatures". Adler states that while the Court did overturn D.C.'s handgun ban, and a small portion of the McCain-Feingold law, a 5-4 majority also struck down federal and state legislative policy in Boumediene and Kennedy. Adler argues "it appears Dionne is only concerned about judicial invalidation of legislative policies he favors."

Blog Scan

July 1, 2008 2:52 PM | Posted by Lauren Altdoerffer

Post-Heller Second Amendment Lawsuits: Lyle Denniston reports over at SCOTUSblog on the five Second Amendment lawsuits filed by the NRA last Friday, June 27, 2008. The lawsuits attack the constitutionality of gun control laws adopted in California and Illinois. Denniston's post provides links to each of the NRA's complaints. According to Denniston, each case addresses an issue that has not been before the U.S. Supreme Court since 1894 - whether the Second Amendment is applicable to state and local governments through the Fourteenth Amendment. In 1894, the Supreme Court stated the Second Amendment applied only to the federal government. However, a district court may find reasoning to overturn that decision, Miller v. Texas, based on the language used by Scalia'a majority opinion in Heller.

Legal Guidance for Detainee Review: Dan Slater at Wall Street Journal Blog has a post on the Court of Appeals for the D.C. Circuit's opinion that provides guidance for federal district court judges who are about to begin reviewing the government's evidence against the Gitmo detainees. Last Monday, the Court of Appeals for the D.C. Circuit released an opinion ordering a new military hearing for detainee Huzaifa Parhat. Today's opinion, a partially-redacted version of the original, compares the government’s legal reasoning with a characterfrom an 1876 Lewis Carroll poem called “The Hunting of the Snark.” Slater provides a summary of the opinion, as well as a link to the actual opinion.

Blog Commentary on E.J. Dionne's Washington Post Column: Ed Whalen at NROs Bench Memos and Jonathan Adler at Volokh Conspiracy, both address Dionne's "hallucinations" over the threat posed by a conservative U.S. Supreme Court. According to Whalen, Dionne's article,"The Court vs. Voters,", mischaraterizes the threat posed by "judges appointed during the right’s ascendancy" and ignores the threat posed by Obama's potential appointments. Adler, notes that Whalen has been "too kind" and gives a few arguments to counter Dionnes' claims. First, Adler argues we are not on the verge of a conservative Court movement to overturn "the will of Congress and local legislatures". Adler states that while the Court did overturn D.C.'s handgun ban, and a small portion of the McCain-Feingold law, a 5-4 majority also struck down federal and state legislative policy in Boumediene and Kennedy. Adler argues "it appears Dionne is only concerned about judicial invalidation of legislative policies he favors."

Florida to Resume Executions

July 1, 2008 8:23 AM | Posted by CJLF Staff

Update: The execution was carried out on schedule and completed at 6:15 EDT. AP story here.

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Florida executions are scheduled to resume today following a de facto moratorium for the revision of procedures following the Diaz execution and the pendency of the Baze v. Rees litigation. Ron Word has this story for AP. First up is the very execution-worthy repeat child rapist Mark Dean Schwab. After getting out of prison for his first atrocity, he raped and murdered 11-year-old Junny Rio-Martinez in 1991. He has now lived 6 years longer since the crime than Junny's entire, much too short, life.

The revised protocol was upheld by the Florida Supreme Court in Lightbourne v. McCollum, SC06-2391, 969 So. 2d 326 (Nov. 1, 2007). In Baze v. Rees, Justice Ginsburg cited the Florida protocol as superior to Kentucky's for its additional safeguard of a consciousness check after the pentothal dose (dissent pp. 7-8).

Florida to Resume Executions

July 1, 2008 8:23 AM | Posted by CJLF Staff

Update: The execution was carried out on schedule and completed at 6:15 EDT. AP story here.

---------------------------------------------------------------------------------------------------------------------------------

Florida executions are scheduled to resume today following a de facto moratorium for the revision of procedures following the Diaz execution and the pendency of the Baze v. Rees litigation. Ron Word has this story for AP. First up is the very execution-worthy repeat child rapist Mark Dean Schwab. After getting out of prison for his first atrocity, he raped and murdered 11-year-old Junny Rio-Martinez in 1991. He has now lived 6 years longer since the crime than Junny's entire, much too short, life.

The revised protocol was upheld by the Florida Supreme Court in Lightbourne v. McCollum, SC06-2391, 969 So. 2d 326 (Nov. 1, 2007). In Baze v. Rees, Justice Ginsburg cited the Florida protocol as superior to Kentucky's for its additional safeguard of a consciousness check after the pentothal dose (dissent pp. 7-8).

Dubious California Death Penalty Report Due Today

June 30, 2008 9:24 AM | Posted by Kent Scheidegger

The California Commission on the Fair Administration of Justice plans to release its report on the death penalty today. The press release is here. The circumstances of this commission's creation and its actions to date do not bode well for anyone hoping for a fair, balanced report.

The commission was created by former California Senate leader John Burton, a dyed-in-the-wool opponent of the death penalty. Normally, commissions are set up by legislation through the standard process of bicameral approval plus governor's signature. Burton set up his commission by a unilateral resolution of the Senate alone, Senate Resolution 44 of 2004. This unique mode of creation enabled him to keep the appointments entirely in the hands of the Senate Rules Committee, which is firmly under the control of the left wing-tip of the Democratic Party.

The commission promptly retained as its executive director Dean Gerald Uelmen of Santa Clara U. Law, a well-known partisan for the anti-death-penalty side of the debate. If they had intentionally wanted to undermine their credibility as a fair review, they could scarcely have made a better choice.

The commission has funded various people to do research on the administration of the death penalty in California. All but one of the contracts went to anti-death-penalty academics. The one exception was a feasibility study on costs by Rand Corporation, and that study produced no firm conclusions.

Update: The report is now online here. I have extracted the dissent and posted it here. Here is the first paragraph:

We respectfully dissent from the Report and Recommendations on the Administration of the Death Penalty in California, which was issued today by the California Commission on the Fair Administration of Justice. Regrettably, we believe the majority report indirectly assaults California’s death penalty by seeking to undermine public confidence in our capital punishment law and procedure. While the majority refrains from making specific recommendations to weaken this voter approved law, the tone and unbalanced discussion of potential reform is anything but neutral. By doing so, the majority exceeds the scope of its original charge and unfortunately, diminishes the value of other worthwhile recommendations.

Dubious California Death Penalty Report Due Today

June 30, 2008 9:24 AM | Posted by Kent Scheidegger

The California Commission on the Fair Administration of Justice plans to release its report on the death penalty today. The press release is here. The circumstances of this commission's creation and its actions to date do not bode well for anyone hoping for a fair, balanced report.

The commission was created by former California Senate leader John Burton, a dyed-in-the-wool opponent of the death penalty. Normally, commissions are set up by legislation through the standard process of bicameral approval plus governor's signature. Burton set up his commission by a unilateral resolution of the Senate alone, Senate Resolution 44 of 2004. This unique mode of creation enabled him to keep the appointments entirely in the hands of the Senate Rules Committee, which is firmly under the control of the left wing-tip of the Democratic Party.

The commission promptly retained as its executive director Dean Gerald Uelmen of Santa Clara U. Law, a well-known partisan for the anti-death-penalty side of the debate. If they had intentionally wanted to undermine their credibility as a fair review, they could scarcely have made a better choice.

The commission has funded various people to do research on the administration of the death penalty in California. All but one of the contracts went to anti-death-penalty academics. The one exception was a feasibility study on costs by Rand Corporation, and that study produced no firm conclusions.

Update: The report is now online here. I have extracted the dissent and posted it here. Here is the first paragraph:

We respectfully dissent from the Report and Recommendations on the Administration of the Death Penalty in California, which was issued today by the California Commission on the Fair Administration of Justice. Regrettably, we believe the majority report indirectly assaults California’s death penalty by seeking to undermine public confidence in our capital punishment law and procedure. While the majority refrains from making specific recommendations to weaken this voter approved law, the tone and unbalanced discussion of potential reform is anything but neutral. By doing so, the majority exceeds the scope of its original charge and unfortunately, diminishes the value of other worthwhile recommendations.

Interpretation Nuggets in Heller

June 26, 2008 2:22 PM | Posted by Kent Scheidegger

When reading Supreme Court opinions, I like to keep track of "nuggets," particularly nice statements of basic principles that may be useful in other contexts. The Heller opinion has a number of nuggets on the interpretation of enactments, applicable both to statutes and the Constitution.

Continue reading Interpretation Nuggets in Heller.

Interpretation Nuggets in Heller

June 26, 2008 2:22 PM | Posted by Kent Scheidegger

When reading Supreme Court opinions, I like to keep track of "nuggets," particularly nice statements of basic principles that may be useful in other contexts. The Heller opinion has a number of nuggets on the interpretation of enactments, applicable both to statutes and the Constitution.

Continue reading Interpretation Nuggets in Heller.
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