Results matching “first”

"It wasn't bad. I just went to sleep." So wrote mine foreman Martin Toler, Jr. shortly before his death from carbon monoxide poisoning in the Sago mine accident a little less than a year ago. Although no one comes back to tell us how much pain they suffer in death, this is very close. The miners who knew they were close and had seen others go before them told us that carbon monoxide is a painless death. See Charleston Gazette story here.

California used the gas chamber as its method of execution until the execution of Robert Alton Harris in 1992. In that case, there was a flurry of last-minute litigation as attacks on the gas chamber, withheld until the eleventh hour, were unleashed in a ploy to stop the execution. See Gomez v. U.S. District Court, 503 U.S. 653 (1992). Justice Stevens wrote in dissent, "The unnecessary cruelty of this method of execution convinced Arizona's Attorney General that that State should abandon execution by gas in favor of execution by lethal injection. His conclusion coincides with that of numerous medical, legal, and ethical experts."

Listening to "ethical experts" got us where we are today. The problem wasn't with the gas chamber itself; the problem was the choice of gas.

Lyle Denniston at SCOTUSblog reports that the District Court has dismissed for lack of jurisdiction the habeas petition of Guantanamo detainee Salim Hamdan, whose case went to the Supreme Court in Hamdan v. Rumsfeld. The memorandum by Judge Robertson is here.

The opinion has three main points. First, the statute did repeal the court's habeas jurisdiction. The court brushed aside rather easily the shaky statutory interpretation argument that it did not.

Second, Congress has not validly suspended the writ of habeas corpus. The constitutional conditions for suspension, rebellion or invasion, are not present. "If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional."

Third, Hamdan is not constitutionally entitled to it. Here Judge Robertson has an analysis of the historical cases of habeas for aliens that is quite consistent with our brief in Hamdan and rejects the superficial citation of these cases by Justice Stevens in Rasul v. Bush, n. 11.

Much scholarly debate centers around the conflict between law and mental illness. Numerous commentaries and law review articles decry what is perceived as a gross injustice that has occurred in our society regarding how the legal system treats those with mental illness. This concern is well-placed in many ways, since a decent society should be judged by how it treats those who are ill and cannot fend for themselves. But the issue is not as simple as it may appear at first blush. Fixing the problem entails solving complicated problems that involve competing interests and viewpoints. Moreover, by examining one issue in particular – the involuntary administration of antipsychotic drugs – we can get a glimpse of how vexing these issues tend to be.

The California Court of Appeal for the Third District, which rarely gets involved in capital cases, has issued a long opinion on discovery in the case of Barnett v. Superior Court, C051311. (Hat tip: Ward.) The most interesting part for people outside California is Justice Sims' concurring opinion with his commentary on the state of capital litigation today. An excerpt follows:

The Bureau of Justice Statistics has released its annual report on prison populations. As usual, the report emphasizes the number of people in prison and what they call the "incarceration rate," i.e., the number in prison relative to the total population. The latter invariably prompts much hand-wringing every time it is announced, even though by itself it is a nearly useless number that tells us almost nothing about policy.

This "incarceration rate" is actually made up of at least two factors which must be determined and considered separately to see anything meaningful. The number of prisoners per capita is the product of prisoners per criminal times criminals per capita. For the algebraically inclined, Pr/Pop = Pr/Cr * Cr/Pop. The first factor is the percentage of criminals society chooses to lock up; the second is the percentage of people who choose to commit crimes. Because the two factors represent different choices by different people, it makes little sense to lump them together, and the undifferentiated product of the two tells us very little. A high "incarceration rate" could mean a society has strict sentencing policies, or it could mean the society is plagued with a high crime rate, or it could be a combination of the two.

The first factor could actually be broken down further as prisoners per criminal we catch times the proportion of criminals we catch. That separation would further separate our ability and determination to catch criminals from our determination to punish the ones we catch.

The situation is further complicated by interrelation of the factors. The probabilities of being caught and of being punished if caught are factors that go into a rational actor's decision to commit a crime. Were the low sentencing rates of the 60s and 70s a cause of the high crime rates of the 80s and 90s and the subsequent high sentencing rates? Quite possibly. The increase in prison population in California from the Three Strikes Law was much less than projected. That may be in part because the law contributed to California's rapidly declining crime rate. A dated but possibly still interesting article on these topics by yours truly and Michael Rushford is available here.

Stand by for a raft of simplistic denunciations that ignore these issues and cite the "incarceration rate" as proof that America is a cruel and heartless society. Bonus points to any reader who finds a single mention of how many people have not been robbed, raped, or murdered because we toughened up sentencing in the 80s and 90s.

Judicial Activism. Ed Whelan reviews The Myth of Judicial Activism by Kermit Roosevelt in the Weekly Standard.

Prisons Sacramento Bee columnist Dan Walters discusses the overcrowding problem in California's prison system in a piece published in Saturday's paper. He fixes responsibility where it belongs, with a legislature which refuses to act, and the state's new Attorney General, who as Governor set in motion the forces which have prevented rational reform for three decades.

Death Penalty In a recent radio interview, a former member of Britain's House of Lords admitted that while a majority of the English support the death penalty for the worst murderers, Parliament has no intention of enacting such a law. Perhaps a change is in the wind. A story in today's issue of The Evening Standard reports that a 34-year-old political novice has defeated several experienced politicians and "is now set to become Britain's first woman Asian PM (Parliment member)." Central to her campaign was her interest in restoring capital punishment.

Woman missing 10+ days found dead in own home. Mariesa Weber’s mother was the last to see her daughter alive after she had returned home on October 28. After searching the home for clues, her family members suspected she had been kidnapped and contacted the sheriff’s office. On November 9, Weber’s sister found Mariesa’s lifeless body in her own room behind a bookcase. According to the Associated Press story, the woman died after leaning over a bookcase to adjust a television plug and falling behind it head first. Authorities believe she couldn’t breathe in the position she was in and died as a result of it.

In the Dec. 4 issue of The New Yorker, Jeffrey Toobin has an article titled "Killing Habeas Corpus: Arlen Specter's about-face." (Hat tip: Ward Campbell.) The thrust of the article is that the Great Writ has been killed by the Military Commissions Act of 2006, denying the writ to enemy aliens, but the Supreme Court will likely strike this provision down. It goes into how Arlen Specter opposed the provision but voted for the final bill. Curiously absent from the article is any evidence of awareness on Toobin's part that there is a strong historical argument that enemy aliens did not have the privilege of habeas corpus at common law and therefore do not come under the constitutional guarantee of that privilege. The curious thing is not that Toobin isn't convinced by that argument. What is strange is that he seems to be blissfully and smugly ignorant that a controversy exists. The first half page of the article is all about how important habeas was historically and the narrow circumstances under which the privilege could be suspended, without a single word about whether that historical privilege ever extended to enemy aliens.

Lethal Injection The Kentucky Supreme Court has unanimously upheld that state's four-drug lethal injection combination according to an Associated Press story by Brett Barranguere. The opinion is here.

Violent Crime A preliminary report from the California Department of Justice indicates that violent crime rose in the state's largest cities during the first six months of 2006, as reported in an Associate Press bulletin available here.

Guest Post by Steven K. Erickson, J.D., LL.M., Ph.D., MIRECC Fellow, Yale University

An enduring controversy within the law is what effect a defendant’s mental illness should have in terms of culpability. While the 1980s saw a backlash against the insanity defense after the acquittal of John Hinckley, Jr., recent years have witnessed a far more perplexing situation: the elevation of the sexual predator beyond the deviant lurking in the proverbial trench coat to the online super-predator whose lascivious trap lies behind every child’s next mouse click. The evolution of the sexual offender is both remarkable and revealing. Remarkable because contrary to insanity movement post-Hinckley, the courts have readily accepted the notion that sexual offending involves some type of “mental abnormality”; revealing because the law’s skepticism of mental health professionals evaporates nearly instantaneously when science provides a means to lifetime incarceration. Yet, in some ways, the law cannot be blamed: the number of “classifiable” mental disorders has grown exponentially in the past 60 years and, so too, has society’s acceptance that most bad behavior is in some ways due to “something in the head.” Yet, the history of psychiatric nosology is colored as much by cultural fads as by science, and we should think carefully about how mental health concepts influence the law.

The Guantanamo detainees have filed a supplemental reply brief addressing the government's argument that the Military Commissions Act of 2006, Pub. L. 109-366, repealed the habeas jurisdiction of the federal courts with respect to the pending cases. Among other arguments, the brief contends that the MCA doesn't really apply to pending habeas cases. Lyle Denniston at SCOTUSblog characterizes this argument as an "appeal to judicial modesty," because it invokes the doctrine of constitutional doubt to ask the court to resolve a claimed ambiguity in a way that avoids a constitutional question. This brief is modest in the same sense that Charles Dickens's character Uriah Heep was 'umble. It is in fact a request for the court to commit an audacious act of rewriting a statute in the pretense of interpreting it.

Forged Affidavits. During clemency proceedings for California death row inmate Michael Morales, attorneys Kenneth Starr and David Senior turned in affidavits from jurors stating that they now did not want the sentence executed. Problem was, the jurors never saw or signed those affidavits. They never met investigator Kathleen Culhane, who supposedly obtained them. Yesterday, state DoJ officers executed a search warrant at Culhane's apartment. She is suspected of similar misconduct in three other cases, and the ripples could extend further. Scott Smith of the Stockton Record reports here, and Bob Egelko of the San Francisco Chronicle here.

Crime Votes. CJLF Legal Director Kent Scheidegger has this letter in the Wall Street Journal, noting that even as the Democrats were winning Congress, voters were sticking with the tough-on-crime approach in ballot measures, even in so-called "blue states."

The "60 Freeway Slayer" was convicted of six counts of first-degree murder in Los Angeles, the AP reports. The defense contested only the degree of murder, arguing that the killings were not premeditated.

The Federalist Society had its convention last week, and David Montgomery has this article in the Washington Post. The notion that the FedSoc is somehow "conspiratorial" is complete nonsense, as all its cards are face up on the table.

From Tampa, Florida, the Associated Press reports on the case of Rudolph Holton: "A man who was freed from death row in 2003 after being cleared by DNA evidence was sentenced to 20 years in prison for choking his wife." Holton has a space on the DPIC's notorious "innocence list."

But was he really "cleared by DNA evidence"? The DNA test in question merely showed that one item of evidence, a hair on the victim's body, was hers and not his. Circumstantial cases are often built up of many items of evidence, each of which is neither necessary nor sufficient by itself to prove guilt. "A brick is not a wall." See Note to FRE 401. According to Gov. Jeb Bush, this is just one more case where a new trial was ordered many years after the first one, and the prosecution could no longer make the case beyond a reasonable doubt. Yet it is reported in terms that would lead the general public to believe it was a case of clear proof he was actually innocent, continuing to build the myth.

Holton's attempted murder of his wife was not his first physical attack on her. In 2003, the same year he was released, the story says, "he was arrested for punching his wife and striking her several times with a golf club. She ended up in the hospital and he went to prison for 14 months." Altogether, he had 11 prior felonies. Twelve strikes and you're out?

Whose fault is all this? His wife's, of course. "'I married the wrong lady,' he said." Yeah, right.

For anyone tired of election and abortion news, here are some more thoughts on yesterday's argument in Burton.

No error. Although the case is about the retroactivity of Blakely v. Washington, there is considerable doubt whether this case involves a Blakely error at all. The first question for defense counsel Jeffrey Fisher out of the gate involves whether the sentence imposed was legally available to the judge (within the "statutory maximum") based on the offenses of conviction in the present case and Burton's criminal record. The state appellate court held it was in the present case.  See pp. 11-13 of our brief. On page 6 of the transcript, Fisher cites another Washington case for the contrary proposition, but even if he is correct that question of state law is not a ground for federal habeas relief. In the present case, the sentence was affirmed as within the legal range based on convictions alone. While there is little doubt that the judge considered other facts in deciding whether to actually impose that available sentence, that is not Blakely error.

New rule. Surprisingly, Fisher does not lead off with his best argument, that Blakely was a "watershed" rule, but instead with the weak argument that it was not "new" within the meaning of Teague v. Lane. Given how narrowly the Court has defined "old" rules and given how Blakely was uniformly regarded as a bombshell on the day it was announced, this argument borders on frivolous. Justice Kennedy notes the "dictated by precedent" requirement on page 22. Not until page 24 does Fisher get to the "watershed" argument.

Nonbarking dog. Sometimes an unexpected nonevent can be as significant as an event. On pages 48-49, ASG Roberts goes on for two pages as to why Blakely does not qualify for the retroactivity exception. No questions.  Maybe they consider it obvious.  Justice Souter's questions at the end of the state DSG's argument seems to indicate an awareness that if a court could plausibly find Apprendi distinguishable, then the decision that it is not distinguishable is a new rule. This has been the law since at least Butler v. McKellar, 494 U.S. 407 (1990). Another possibility is that they have already decided they are going to decide this case on jurisdiction.

Teague and AEDPA. On page 25, Chief Justice Roberts notes, "it is not clear that it matters whether [Blakely] is a watershed rule if you read AEDPA 2254(d)(1) by its terms." Lyle Denniston at SCOTUSblog posits that this comment may be tipping the result of the Court's conference on Whorton v. Bockting, where the relationship of AEDPA to the second Teague exception is also at issue. However, Lyle is incorrect that the issue is whether AEDPA overrules Teague. Horn v. Banks, 536 U.S. 266, 272 (2002) settled that the Teague and AEDPA inquiries are distinct. Both of them are prerequisites to habeas relief where they both apply. The Chief Justice's suggestion that the "watershed rule" issue may not matter in this case simply suggests that these two distinct inquiries need not be made in any particular order. If a court determines that the petitioner cannot clear one hurdle, it need not decide whether he can clear another. AEDPA, if read according to its terms, has no exception similar to the second Teague exception, but it does not overrule Teague.

   I will split the discussion of the Burton argument into two parts, jurisdiction first and retroactivity in a later post.

   The Court is clearly well aware of the jurisdictional successive petition problem in this case, and fears that it might make a major change in successive petition law by inadvertence appear to be unfounded. Most observers appear to think the Court will dispose of the case on jurisdiction. See, e.g., the AP story by Mark Sherman and Lyle Denniston at SCOTUSblog.

   Burton filed two federal habeas petitions: one challenging his conviction while his resentencing was still on appeal in the state courts, and the present petition after the state courts had rejected his sentencing claims. The second petition is therefore successive and subject to the very strict limits on successive petitions in the Antiterrorism and Effective Death Penalty Act of 1996. Jeffrey Fisher, for the defendant, says on pages 15 and 17 that the district court should have dismissed the first petition for lack of jurisdiction but that there is no proper objection to the second. This is so wrong it is painful to read. When a prisoner has exhausted state remedies on some claims but not others and files a habeas petition on the exhausted claims, the habeas court does not lack jurisdiction to consider them. Rose v. Lundy, 455 U.S. 509 (1982) is very clear that if a petitioner does proceed with his exhausted claims, he risks being barred by the successive petition rule if returns later with the others. Ideally, the district judge should advise a pro se petitioner of this consequence, but it is not required. As our brief notes at page 6, there is a warning in the form that prisoners are required to use.

   From their questions on pages 12-15, it appears that Justices Kennedy, Souter, and Ginsburg are aware of how wrong Fisher's argument is. At 15:20-23, Justice Souter says, "But if the first proceeding was not in fact jurisdictionally barred, then you would lose under the second and successive objection in this case, right?" Right.

   On pages 26-29, the state DSG makes a fact-specific argument based on the timing of the judgments in this case. It's a valid argument and a possible winner, but I personally hope the Court does not rule on this basis. The precedent thus set would leave open the question of whether prisoners can file two federal habeas petitions when the timing is different from this case, a question which should be answered with a loud, clear "no."

   The federal ASG argues (p. 45) that it doesn't matter for federal prisoners because the statute is different. 28 U.S.C. § 2255 authorizes a motion to vacate, set aside, or correct a sentence and so must necessarily follow any resentencing required by the decision on the direct appeal. A point that could have been made here is that Congress understood when it enacted that statute that is was a complete replacement for habeas corpus as a collateral attack, so this statute illustrates that habeas also should follow any required resentencing.

   On rebuttal, Fisher claims again that the state should have objected to the first petition and is now barred from objecting to the second (p. 50). Nope.  Nonexhaustion of other claims not mentioned in the petition is no ground for objecting to a habeas petition. You can't default an issue by not making a meritless objection, and you have no obligation to warn your opponent he is defaulting claims he may want to make in the future. Further, the successive petition rule in AEDPA goes to subject matter jurisdiction. Such issues cannot be defaulted.

   The transcript tends to confirm what the observers of the argument concluded. This case will probably go down on the successive petition rule. Doug Berman thinks this will be a "major ruling on habeas law," but I think it will be relatively minor as Supreme Court cases go. It will confirm what the habeas lawyers have known for a long time, at least since Lundy in 1982.

UPDATE 2: The transcript is available.

UPDATE (10:35am PST Tuesday): Lyle Denniston reports at SCOTUSblog that the jurisdictional question was indeed a major portion of the argument. We will wait for the transcript before commenting on the Teague v. AEDPA issue.

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The long awaited argument in Burton v. Waddington is tomorrow, and the high court will consider the retroactive application of Blakely v. Washington to sentences already affirmed on appeal when that decision came down. Here are links to CJLF's press release, briefs in the case (including ours), and Lyle Denniston's comments on SCOTUSblog.

Press coverage may be limited as there might be other newsworthy events tomorrow, but the Court's same-day transcript should be available, and we will post a link here.

Here are a couple of things to look for. First, how much interest is there in the question of whether the Court even has jurisdiction of this apparently successive petition? To rule that this petition is not successive would be a massive change in habeas corpus law. Yet petitioner is acting like it's no big deal, not mentioning it in his main brief and devoting only four pages to it in the reply.

Second, will petitioner stick to his argument that Blakely was simultaneously not "new" and "watershed"? That is, can he say with a straight face that Blakely changed nothing and Blakely changed everything? Which Justice will pounce first if he does?

Third, will Justice Scalia remember that he wrote, on the very same day he wrote Blakely, "it is unlikely that any [rule qualifying for retroactivity on habeas] has yet to emerge."

City Crime Rates. The AP reports here on a rank-ordered list of cities from safest to most dangerous, based on the FBI's Uniform Crime Reports. Where is New Orleans on the list, one might ask? It isn't. One of the problems in crime research is that the cities in deepest crisis sometimes have no data, because the reports that provide the raw data are a low-priority task for police departments and among the first things to be cut.

Md. AG. The Washington Post endorses Douglas Gansler for Maryland Attorney General, while hoping that he "learns the art of understatement." As the Democratic nominee, the Post notes his election is nearly certain, as no Republican has won this office since 1919.

Mental Health Reform. In Sunday's Post is this editorial calling for mental health reform in Virginia. The Post notes that overly restrictive civil commitment criteria are part of the reason too many mentally ill people are in jail. As so often happens, yesterday's "reform" is today's problem in need of reforming.

The Fifth Circuit today affirmed the District Court's denial of relief to Mississippi murderer Bobby Glen Wilcher. Wilcher was previously a "volunteer" who knowingly and voluntarily dismissed his habeas petition. The Supreme Court granted a stay last July while it considered a certiorari petition, noted here, but that stay automatically terminated when the Court denied certiorari on the First Monday, noted here. The execution is scheduled for tomorrow.

FRCP Rule 60(b) allows the losing party in a civil case to seek relief from judgment under certain circumstances. "I changed my mind" is not one of them. Application of the rule to habeas cases was the subject of Gonzales v. Crosby, 545 U.S. 524 (2005).

Hat tip: Sonny White

SCOTUSblog has posted this orders list, issued today by the Supreme Court. Lyle Denniston's post on the orders is here. Update: The list is on the Court's site here.

Missing Indictment Elements. As we noted Tuesday after the oral argument in United States v. Resendiz-Ponce, the Supreme Court's review of the question of whether omission of an element from an indictment can ever be harmless error was significantly complicated by the likelihood that there was no missing element and the indictment in the case before it was not erroneous. Justice Kennedy strongly hinted that the Court might order supplemental briefing on whether there was really anything missing (a question the Government did not petition to have reviewed), and the Court so ordered today.

Texas Death Penalty. Last Friday, the Court took a Texas death penalty case on direct appeal, where the claim involves Texas's implementation of the rule of Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court effectively overruled Jurek v. Texas, 428 U.S. 262 (1976) and disapproved the Texas system it had upheld in Jurek, even while denying it was doing so. Today the Court took two Fifth Circuit habeas cases on similar points. The first case is Abdul-Kabir v. Quarterman, No. 05-11284. In the Fifth Circuit, the case was Cole v. Dretke, panel opinion here, denial of rehearing en banc with dissent here. This case was previously remanded by the Supreme Court for reconsideration in light of Tennard v. Dretke, 542 U.S. 274 (2004). The second case is Brewer v. Quarterman, No. 05-11287, Fifth Circuit opinion here. It appears that Penry issues and the Texas death penalty will be a major part of this Term. The issues are difficult because the Court has been narrowly divided on the Texas system, with narrow, shifting majorities issuing opinions that give strained interpretations of earlier decisions. It will be interesting to see how this shakes out, particularly with the new two members of the Court.

After reading the transcript of oral argument in Carey v. Musladin, I call for a round of applause for Justice Ruth Bader Ginsburg. Though I often disagree with her, she can be very good when she is right, and she cast decisive fifth votes in Montana v. Egelhoff, 518 U.S. 37 (1996) and Medellin v. Dretke, 544 U.S. 660 (2005). Several of her comments in today's argument are noteworthy.

Death Penalty Missouri law allows a trial judge to sentence a convicted murderer to death if the jury deadlocks. Earlier this month a jury convicted Scott McLaughlin of first degree murder and separately found aggravating circumstances. After hanging on the sentence, the jurors were dismissed, leaving the trial judge to choose between LWOP or a death sentence. According to a story by William Lhotka in the St. Louis Post Dispatch, both the Attorney General's Office and the state Public Defender are uncertain if a death sentence from the judge will withstand a Sixth Amendment challenge.

The Supreme Court heard oral argument today on a Ninth Circuit ruling which overturned a federal conviction because the grand jury indictment did not allege an overt act toward carrying out the defendant's intent to illegally enter the United States after previously being deported. The defendant was subsequently convicted at trial on evidence that he used false identification to cross the U.S. border with Mexico, according to an Associated Press story by Mark Sherman. The case is United States v. Resendiz-Ponce, No. 05-998.
Update: The transcript is available here. It appears that the Supreme Court's review of this case is significantly complicated by the likelihood that the Ninth Circuit is wrong on the merits and there is nothing defective about this indictment, but the Government did not petition for certiorari on that question. On page 53, Justice Kennedy suggests that rebriefing may be in order to address the merits of the underlying question.

"The Innocent Man". Joshua Marquis reviews John Grisham's latest in the Wall Street Journal (subscription).

The Eleventh Circuit has issued a split decision in the case of Rutherford v. McDonough, a companion case to Hill v. McDonough, the lethal injection case decided by the Supreme Court on June 12. Judges Carnes and Hull are more than a little ticked off at counsel for Rutherford, who among other things petitioned the Supreme Court for a writ of mandamus ordering the Eleventh Circuit to expedite its decision without (1) first asking the Eleventh itself to do so; or (2) mentioning to the Supreme Court that counsel herself had contributed to the delay by taking a vacation in the middle of the briefing and then asking for an extension. They are also displeased that the Governor signed a death warrant three days before this mandamus petition and no one bothered to tell them.

In substance, the opinion follows that of another Eleventh Circuit panel in the case of the late Clarence Hill. You can't wait until the eve of execution to challenge a method adopted five years earlier. Judge Wilson dissents.

Thanks to Dave Pancione for bringing this decision to our attention.

The Supreme Court formally opened its October 2006 term today. There were no arguments, today being the first day of Yom Kippur. Mark Sherman of the Associated Press reports on the first day here. The headline story in the San Francisco Chronicle is Bob Egelko's piece on the "pivotal" term. Not for criminal law, though. The only criminal case mentioned is Cunningham v. California, at the very end.

As expected there were no grants of certiorari for argument in today's orders list. The grants from the "long conference" were announced last Tuesday, and today's list consisted of denials, routine orders, and "vacate and remand in light of ..." orders. Denial of certiorari in the case of Mississippi murderer Bobby Wilcher automatically terminates the stay granted July 11 over the dissent of Chief Justice Roberts, Justice Scalia, and Justice Alito, noted here.

Of the ten criminal and crime-related cases from Tom Goldstein's "reasonable chance" list, previously reported here, two were granted last Tuesday, and the remaining eight were denied today.

Gallup reports here that public confidence in the Supreme Court is at its highest point in four years. (Gallup's content is typically free to nonsubscribers on the day of release only.) The trend graph is kind of interesting. Bush v. Gore, which gets political junkies all excited, was apparently a minor blip on the radar screen for the public at large, with only a small drop in January 2001 from the previous Labor Day. The big slide in public confidence came in 2003-2005, from which the high court has apparently recovered. Gallup analyst Jeffrey Jones suggests Lawrence v. Texas, Kelo v. New London, and McCreary Co. v. ACLU as the reasons for the slide.

The hearing on California's lethal injection protocol begins today in federal district court in San Jose, and there is a lot of coverage on it. Here is Bob Egelko's story yesterday, and here is David Kravets' story for the AP. Update: Howard Mintz of the S.J. Mercury-News reports on the first day of the hearing here.

Broken Windows The theory advanced by Professors James Q. Wilson and George Kelling, that cracking down on low level crimes, like petty theft and vandalism, discourages more serious crime, has been proven effective in the New York subways for over a decade. A story in the New York Daily News by Pete Donohue discusses the recent impact of putting more cops in the subways to bust fare-beaters over the past Summer.

On Wednesday, the Texas Court of Criminal Appeals issued this order in Ex parte Alba, asking for briefing on whether a lethal injection claim is cognizable on habeas corpus. This is the flip side of the question considered by the Supreme Court in Hill v. McDonough, whether the claim can be brought as a civil rights suit instead of on habeas. The U.S. Supreme Court considered method of execution claims on habeas when the electric chair was first being used in 1890. See page 17 of CJLF's Hill brief. Habeas was also used in the LaGrand case in 1999. The prisoners lost their enthusiam for using habeas after AEDPA clamped down severely on successive petitions in 1996. Habeas was no longer useful for method-of-execution claims held until all other issues were litigated in order to further delay the execution. That was why Hill was so interested in using the civil rights law.

In Texas state court, the civil v. habeas question could have a different angle. Which court of Texas's two-headed judiciary would have the final review of civil suit? Would it be the Court of Criminal Appeals or the Supreme Court? I suspect the justices of the Texas Supreme Court want nothing to do with this. Lone Star lawyers who have some insight on this are cordially invited to comment.

Comments elsewhere in the blogosphere include the TDCJ Blog, Capital Defense Weekly, and Sentencing Law and Policy.

Death Penalty A study by the liberal think tank New Jersey Policy Perspective on the cost of the death penalty has concluded that each capital case costs the state about $11 million. The study also estimates the cost of sentencing a murderer to death in other states. It has been cited in public hearings held by the New Jersey Policy Commission, which is reviewing that state's process for handing capital cases according to a story by Robert Schwaneberg in the New Jersey Star Ledger.

Sentencing A federal judge has sentenced three animal rights activists to four to six years in prison for threatening researchers and vandalizing a New Jersey laboratory of Huntington Life Science. The case is the first application of the Animal Enterprise Protection Act, adopted by Congress in 1992, according to a story by Laura Mansnerus in the New York Times.

Sex Offenders. The Virginia State Crime Commission is pondering voluntary castration as an alternative "treatment" for sex offenders, reports Frank Green in the Richmond Times-Dispatch. Among the problems with this proposal are a lack of evidence it works and the question of how "voluntary" this procedure can be when the alternative is indefinite incarceration.

A Indiana sentencing law passed in 2005 in response to the U.S. Supreme Court's decision in Blakely v. Washington is facing its first test before that state's highest court. To avoid Blakely's requirement that any factor utilized to increase a sentence by found by a jury, the law provides a range of sentences a judge can impose “regardless of the presence or absence of aggravating circumstances or mitigating circumstances" according to a storyby Niki Kelly in the Fort Wayne Journal Gazette.

The Louisiana Supreme Court has rejected a challage to procedures the state adopted in 2003 to accommodate Atkins v. Virginia. The case involves a man facing the death penalty for a double-murder who claims that he is mentally retarded. Louisiana law requires that the claim be tried by a jury prior to trial. The trial judge ruled such claims should be decided by a judge to minimize the risk that a "death qualified" jury would make a finding and sentence a mentally retarded person to death. The story by Vickie Welborn is from yesterday's Shreveport Times. The Louisiana Supreme Court decision is in the case of Louisiana v. Turner.

South Dakota Governor has halted the state's first execution since 1947. The Governor's decision was based upon a discrepency between the lethal injection protocol in state law and the one the department of corrections planned to use, according to a story in the Rapid City Journal by Kevin Woster.

Former Whitewater prosecutor Ken Starr has filed a cert petition in the United States Supreme Court seeking review of a Ninth Circuit ruling which held that an Alaska high school principal violated a student's First Amendment rights by suspending him for holding up a banner proclaiming "Bong Hits 4 Jesus" at a 2002 Olympic Torch rally. The Associated Press story story reports that Starr and two of his colleagues at the Los Angeles firm of Kirkland & Ellis are arguing that the lower court ruling was improper. The ruling in Frederick v. Morse is here

CSI: Backlog. Stateline.org has this story on backlogs in state crime labs, noting that overemphasis on DNA can aggravate backlogs on other kinds of forensic evidence.

First execution in South Dakota in 59 years to take place tomorrow evening. 24-year-old Elijah Page is scheduled to be executed by lethal injection tomorrow in South Dakota. After planning on stealing from him, Page and two accomplices tortured and murdered Chester Allan Poage. Page and Briley Piper were sentenced to death and Darrell Hoadley was sentenced to life in prison with no chance of parole. The AP story reports that because Elijah Page chose to be executed, he has up until the last minute to change his mind and continue his appeals.

Why should the Department of Correction pay for sex-change operations for transgender inmates?
Robert J. Kosilek, an inmate serving a life in prison sentence for murdering his wife, has caused quite a debate. After two lawsuits and two trials, it now rests in the hands of a federal judge as to whether or not the DOC should pay for inmates to have sex-change operations. Kosilek legally changed his first name to Michelle in 1993, says he is a woman trapped in a man’s body. According to the AP story a court has never ordered a sex-change for an inmate in this country.

Death Penalty Upheld. The California Supreme Court has upheld the conviction and death sentence of an Oakland man who killed a bartender during a 20-day crime spree in 1988/89. The story by San Francisco Chronicle reporter Bob Egelko reported that the defendant planned to appeal his Batson claim, which was rejected in the state court's decision.

An Oregon law that makes it a crime to disobey a police officer was upheld by that state's Supreme Court yesterday according to a story by Oregonian reporter Ashbel S. Green. The Court's unanimous decision in Oregon v. Illig-Renn is available here.