Results matching “Plata”

When the Supreme Court, 5-4, affirmed the California prisoner release order, it very strongly hinted that if the State asked for more time, the panel should grant it.  This post on the LA Times politics blog indicates Gov. Brown will indeed ask for more time.

Now, the three judges on this panel don't actually give a hoot what the Supreme Court thinks.  They are the most pro-criminal, anti-law-enforcement panel in the history of the federal judiciary.  However, they know that the State has an appeal as of right to the Supreme Court.  Unlike almost all other cases, the high court has to take it if asked.  So Judge Reinhardt's "they can't reverse them all" maxim doesn't apply here.  So maybe they actually will pay attention to what the Supreme Court said.  Maybe.

The notorious Ninth Circuit has been reversed yet again by the US Supreme Court in a crime-related case.  Yet again, not a single member of the high court thought the Ninth's judgment was correct.  Yet again, the Ninth was warned by a strong dissent from denial of rehearing en banc by many of its own judges.

The key question in Ashcroft v. al-Kidd is whether a Fourth Amendment attack on a seizure can be made by claiming an invalid subjective motivation, even though the seizure is objectively valid, meeting the requirements of the Fourth Amendment for a seizure of that type.

We thought we had killed that argument off 15 years ago in Whren v. United States, 517 U.S. 806 (1996), but like the monster in a formula horror movie it springs back to life and attacks again.  Despite Whren and a host of other Supreme Court precedents on this question, the Ninth Circuit held to the contrary based on a strained inference from the drug checkpoint case, Indianapolis v. Edmond, 531 U.S. 32 (2000).  That case involved stops with no individualized suspicion.  To think that Edmond is more closely analogous to this case, involving a material witness warrant issued by a magistrate on an individualized showing, than the cases where the Supreme Court has rejected subjectivity, is an enormous stretch.

Far worse than its merits holding, though, was the Ninth Circuit's assertion that the law was "clearly established" in favor of its holding.  That is absolutely preposterous.  All eight Justices participating agree that this holding is wrong, see the first paragraphs of all three concurring opinions, and the opinion of the Court includes a severe but thoroughly deserved rebuke.

Kent gives Marc Howard the benefit of a doubt when he marks up to laziness, rather than deceit, Mr. Howard's claim that most of those to be released under Plata will be more-or-less harmless people.

I don't know Marc Howard, so Kent might be right.  Still, I have my doubts.  Lying about the facts has become a standard part of the Left's debate inventory, along with its first cousin, smearing the opposition.

What paricularly arouses my suspicion is the breezy contempt Howard uses in introducing his soothing "information" about the prospective releasees (emphasis added):  "[Conservatives'] panic-stricken reaction conveniently ignores the fact that more prisoners are incarcerated as a result of property, drug, public order, and other crimes than of violent crimes--and presumably the former would stand to benefit from early release."

Notice that there is no such thing as legitimate concern  --  only "panic-stricken reaction."  Notice also that conservatives "conveniently ignore"  --  guess what  --  exactly the "fact" that isn't a fact at all (and that would therefore be a really good candidate to, ummmm, get ignored!)  Notice further that the thousands of inmates to be released are presumably of the harmless variety  --  said presumption being based on  --  well, what?

Answer: willful blindness and wishful thinking.  Kinda like "hope and change," to coin a phrase.  Except it gets worse, because (a) presuming that thousands of release decisions will be made correctly by the very system whose years of colossal ineptitude required such decsions to start with would seem, uh, moderately stupid; and (b) within the last 48 hours, we learned that California, without the haste and pressure of a court order, nonetheless released to non-revocable parole hundreds of criminals with "a high risk of violence."  But not to worry, now that it has the courts breathing down its neck, and many times the number of release decisions that must be made, California will, we can all presume, be releasing only Mr. Nicey.

I respectfully suggest that the better presumption is that California residents do what I did the day I graduated from Stanford Law School, i.e., move to Virginia.

Yesterday, CJLF's Legal Director Kent Scheidegger was on the Diane Rehm Show from WAMU in Washington, along with Joan Biskupic of USA Today and Amy Fettig of the ACLU, discussing Monday's Plata decision.  Carter Phillips, who represented the governor in that case, was on briefly at the beginning.  Audio is here; transcript is here.

Listener James Flood of San Antonio sent us this email regarding the show:

I wanted to say thank you for participating in the panel discussion on the Dianne Rehm show on NPR this week.  I did not appreciate how you were treated by the host and instead of facilitating a discussion, she had a dissenting opinion and wanted to hear from the other two panel members.  Even though you were cut off and not allowed to respond to at least three key points, you presented your position professionally and respectfully.  I do like a lot of the NPR programming, but I am increasingly becoming disinterested in Ms. Rehm's show.  I am a moderate Republican and very much appreciate people such as yourself trying to have rational, open discussion about these topics.

One of the many problems with prison litigation is that the cases tend to end up in the hands of the most pro-prisoner, anti-law-enforcement judges.  In the Brown v. Plata case decided by the Supreme Court today, that problem hit a new low.  Congress had required in the Prison Litigation Reform Act that a prisoner release order can only be issued by a special three-judge district court -- a throwback to days of yore when trial courts commonly had multiple judges for important cases.  Well in this case the three-judge court was the criminals' dream team -- Circuit Judge Reinhardt and District Judges Henderson and Karlton.  If counsel for the prisoners could have chosen the three judges in the entire federal judiciary most likely to rule in their favor, those are very likely the three they would have chosen.

Gov. Jerry Brown is nominally the losing party in today's Plata decision, but you wouldn't know it to read his statement on the case.

"The Supreme Court has upheld a lower court's decision that California must reduce its prison population. In its ruling, the Supreme Court recognized that the enactment of AB 109 is key to meeting this obligation. We must now secure full and constitutionally guaranteed funding to put into effect all the realignment provisions contained in AB 109. As we work to carry out the Court's ruling, I will take all steps necessary to protect public safety."

"Realignment" means shifting much of the work of the state prison system to local governments.  Supposedly the state will also provide the money.  Believing that is like Charlie Brown believing that Lucy will really hold the football while he kicks it this time, even though she has jerked it away every single time in the past.

A narrowly divided Supreme Court today upheld the massive prisoner release order in Brown v. Plata.  The impact will be primarily political given that Brown, automatically substituted for the Governator as defendant, actually wants to unleash hordes of thugs on the people of California.  A court order gives him political cover to do so, and legislation has already been rammed through, without hearings, and signed into law.  Justice Scalia notes at page 13 of his dissent "the inevitable murders, robberies, and rapes to be committed by the released inmates."

What is the message for law-abiding people in California?  Buy a gun.  Get a dog.  Put in an alarm system.  Even seriously consider bars on the windows.

Oh, and don't bother investing much in a car.  It will be open season on cars given that car thieves ("nonviolent offenders") will never go to prison no matter how many times they are caught.

Let us hope that in 2012 the voters of the United States continue on recovery of their good sense and the voters of California regain theirs.  With both houses of Congress in the hands of persons of sense, the Prison Litigation Reform Act can be tweaked to present travesties such as this.  When Californians come to realize just what they have done by giving control of the Legislature to the soft-on-crime crowd, perhaps they will come to their senses and throw the bums out.

Following up on Bill's post yesterday, the WSJ has this story by Ashby Jones and this editorial on the flap over King and Spalding's bailing out of the Defense of Marriage Act case and Paul Clement's bailing out of King and Spalding.

As Bill noted, CJLF takes no position on the underlying DOMA controversy.  Not our field. Jonathan Adler at VC has a post on people, including himself, "who oppose DOMA have nonetheless praised Paul Clement's willingness to defend the law, and his refusal to abandon the representation."

Paul Clement and K&S represent the prison inmates seeking release in Brown v. Plata, which I noted yesterday.  Arguing for tens of thousands of thugs to be dumped on the streets of California to commit new crimes is not too controversial for K&S.  All in a day's work.  Lawyers are supposed to represent the unpopular.  Yada, yada, yada.  But the House of Representatives is too controversial a client.  Can't touch that.  The WSJ calls K&S "invertebrate."  Nice choice of words.

Naturally, we can count on the American Bar Association (the neutral, even-handed, non-political representative of the entire bar and defender of the high standards of the profession in defending the unpopular), to come out and vigorously denounce the blackmail of the firm.  After all, to defend defense only for some causes and not for others based solely on their Political Correctness quotient would be the grossest of hypocrisy, and the ABA would never lower itself to that. 

I cruised over to the Presidential Statements Page to check.  Nothing there as of 11:45 a.m. Monday.  Well, I'm sure he'll get around to it.  He is probably very busy.

Update:  Clement picked up some support from AG Holder, AP reports.

On Friday, counsel for the Governor of California asked leave to file a supplement brief in Brown v. Plata, the prisoner release case.  The very brief supplemental brief merely advises the Court of further legislative developments.  AB109, recently enacted, will make a major shift of inmates from state prison to county jail.  (Of course, the jails have no room, so the felons will either be further shifted to the street or displace other crooks from jail to the street, a dollar savings to the state government paid in the blood of innocent people.)  The brief contains no argument on the implications of this for the case, but the Court should understand that it further aggravates the panel's error in failure to consider changes between the time the individual judges called for the three-judge court and the time the three-judge court issued its injunction.

The US Supreme Court's Monday orders list is here.  No new cases were taken up.  Bobby v. Mitts, No. 10-1000, Ohio's bid to take up yet another wrong-headed USCA6 capital decision, is missing and already relisted for this Friday's conference.

Opinions are expected tomorrow.  The "ripest" of the cases we are following is Brown v. Plata, the big California prisoner release order case.  (Moonbeam is automatically substituted for the Governator.  See Sup. Ct. Rule 35.3.)  See separate post.

It's always hard, and risky, to say the New York Times has surpassed itself in mendacity and foolishness, but today's editorial has to be a candidate.

The Times says, picking through the oral argument in Plata v. Schwarzenegger, that less imprisonment will mean, as a "growing body" of unnamed "experts" is about to conclude, less crime.

If I were a smartypants, I would take the Times at its word and recommend that we empty the prisons entirely, so we can have no crime at all.  But, preferring to try to at least simulate Kent's seriousness, I will just say, as I did in evaluating this on Doug Berman's SL&P, that the editorial is a pack of lies.

As the prison population has grown over roughly the last two decades, the crime rate has fallen by more than 40%. And it's not all that hard to figure out. When you take off the street the people who are committing crime, less crime gets committed.

The Times, however, will have none of this rube-like simplemindedness, and sniffs that imprisonment has been a "failure."

Not exactly.  If we want to look at what "failure" actually means, we don't have to look far. In the late 60's and 70's, in the heyday of the liberal rehabilitation model the "experts" want to bring back, the crime rate doubled. That is what failure looks like -- not that the NYT is about to tell us.

Still waiting for the transcript of the argument in the California prisoner release case, Schwarzenegger v. Plata. The AP reports, "The Supreme Court appears ready to endorse an order calling on California to move thousands of inmates out of its overcrowded prisons so that those who remain get adequate health care."  However, Lyle Denniston at SCOTUSblog has a quite different take:

Both the Court and the two lawyers who argued were so locked into a review of the details of the actual release order issued by a three-judge District Court in the case that no one spent even a second of the lengthy hearing discussing procedural complications that might have kept the Justices from ever ruling on the validity of that order.  It appeared that the Court had silently accepted the notion that the entire case, with some parts of it stretching back 20 years, was before it for a definitive ruling.

The focus of attention shifted fully to Justice Kennedy, as the other Justices appeared very closely divided as they made clear where they stood for or against what the District Court had done in ordering that upwards of 35,000 inmates be turned loose in California over the next two years.  And, if what Kennedy said controls how he would be voting on the final outcome, it seemed that he would not be willing to overturn that release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope.

The jurisdictional argument was a significant part of CJLF's brief.  We argued that the whole case is indeed before the Court, so it is encouraging that this point appears to be accepted.

Update: The transcript is here.

After reading the transcript, I think Lyle has it pretty much right.  Justice Kennedy seems appropriately skeptical of the three-judge court's choice of a number for prison population reduction.  Given the burden of proof, if there is a range of uncertainty, they should be picking the less-intrusive end of the range.  Justice Alito was appropriately skeptical of the claim that a reduction of this magnitude can be achieved without danger to public safety, but it doesn't look like he is in the majority on that.

Anything short of an outright affirmance means there will be a remand.  I hope the Court will take up CJLF's suggestion of reassignment to a new panel, although that point was not mentioned in the oral argument.

Greg Stohr has this report for Bloomberg.

Next week on Monday, the Supreme Court will issue an orders list, indicating which cases it will take up and which it will not from those considered in today's conference. Some of the petitions considered are listed at SCOTUSblog. The Court will hear oral argument in Wall v. Kholi, an AEDPA statute of limitations case, and Walker v. Martin, on when a state procedural default rule is "adequate" to preclude review of the defaulted claim on federal habeas.

On Tuesday, the Court will issue one or more opinions in argued cases.  Opinions issued this early in the term are typically the less controversial ones with decisions that are unanimous or nearly so.  The Court will also hear oral argument in the big California prisoner release case, Schwarzenegger v. Plata, featuring Phillips v. Clement.

As a general rule, if you want to assert a federal claim in state-court litigation and fail to follow the state's rules for doing so, you cannot make the same claim in federal court.  This rule applies on writ of certiorari in the U.S. Supreme Court in all kinds of cases and on habeas corpus in any federal court when a state criminal conviction results in incarceration.

An exception to this rule is when the state ground is deemed "inadequate."  This area of jurisprudence was the subject of many Supreme Court decisions during the civil rights struggle of the 1950s and 1960s, when southern state courts tried to evade civil rights precedents with creative interpretations of their procedural rules to declare federal claims defaulted.  Unfortunately, the Warren Court completely botched the task of formulating a coherent rule.  The incoherence of this jurisprudence has been denounced by numerous commentators.  Many are cited in our Philip Morris v. Williams brief.  See also this article by Tom Gede and yours truly in the September issue of Engage. The Ninth Circuit has exploited this incoherence to run roughshod over state procedural rules on a regular basis, a practice the Supreme Court has finally decided to review in Walker v. Martin, to be argued next week.

Today we have a perfectly sensible order from the Supreme Court regarding the late filing of an amicus brief in the prisoner release case, Schwarzenegger v. Plata.  What this otherwise unremarkable order illustrates is that the Supreme Court's own rules would be declared "inadequate" if subjected to the same kind of review that the Ninth Circuit applies to state court rules.

On November 30, the Supreme Court will hear argument in Schwarzenegger v. Plata.  In that case, the Criminals' Dream Team of Judges Reinhardt, Henderson, and Karlton ordered California to downsize its prisons by between 38,000 and 46,000 inmates.  But don't worry, the "experts" testified and the Dream Team found that this can be done without increasing crime rates, just like the "experts" assured America back in the 1960s that enacting the Great Society would reduce crime by addressing the "root causes."  Remember how well that turned out?

In today's orders list, the Supreme Court denied the prisoners' motion for divided argument.  However, the Court did add an additional 10 minutes of argument time for each side.

CJLF's brief in the case is here.  We ask the Court to not only reverse the order, but also to send the Dream Team to the showers.

Last term, there was some discussion in the press about the unusual number of Sixth Circuit cases taken up by the Supreme Court, and people were asking whether the Sixth was the new Ninth.  My opinion was that we should not read too much into one year's statistics, which could be just an anomaly.

Lawrence Hurley reports in the LA Daily Journal (via How Appealing) that the Ninth has resumed its usual place as the most-reviewed circuit.  Fully one-third of the Supreme Court's cert-granted docket (18/54) is Ninth Circuit cases, disproportionate even after considering the Ninth's size. "Commenting on the proportion of 9th Circuit cases, University of Pittsburgh School of Law professor Arthur Hellman noted that the circuit was 'overrepresented on the docket.'" And 6 of the 54 are from state court, so the Ninth's share of federal cases is 18/48 or 37.5%, close to double its 20% of total federal circuit cases.

The story describes Harrington v. Richter, a habeas case in which CJLF has filed an amicus brief, and several civil cases.

As "federalist" notes in the comments, Ed Whelan has this post on the numbers.  Ed says it is "not much of a stretch" to count the prisoner release order case, Schwarzenegger v. Plata, as a Ninth Circuit case. Maybe, but I won't make the stretch.  This case is a direct appeal, not a certiorari petition, so I would not count it in either the numerator or denominator.

There are actually two appeals to the Supreme Court challenging the prisoner release order in California. The Prison Litigation Reform Act gives various people, including state legislators, standing to challenge such orders. The reason for this is to deal with possible collusion between prisoner advocates and the executive branch of government, which may want to put the squeeze on the legislative branch to pony up more funds (i.e., tax dollars) for prisons. In the California  case, a number of Republican legislators exercised their right to intervene.

In the governor's appeal, Schwarzenegger v. Plata, No. 09-1233, noted yesterday, the Court deferred consideration of a jurisdictional issue. The orders list did not mention California State Republican Legislator Intervenors v. Plata, No. 09-1232. Today, the online docket shows no order issued in that case, even though it was on the same conference. Not sure what's happening here.

On the Supreme Court's orders list for today is this order in Schwarzenegger v. Plata, No. 09-1233:

Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.

Lyle Denniston at SCOTUSblog interprets this order as meaning that "the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order."

I do not agree. [Update: Lyle has revised his post.] I think the jurisdictional question that the Court deferred is whether the Supreme Court has jurisdiction to review the order of a single-judge district court calling for the three-judge court to be convened. The Governator tried to appeal that order to the Ninth Circuit when it was issued, and the prisoners moved to dismiss on the ground the Ninth did not have jurisdiction.  The Ninth's docket in case 07-16361 says (emphasis added):

Order filed: The motions to exceed the page limit for aples' opposition and aplts' reply are granted. Aples' opposed motion to dismiss these appeals for lack of jurisdiction is granted....CITE. The district court orders from which aplts seek to appeal can be effectively reviewed following the entry of a final order by the three−judge district court. All other pending motions are denied as moot. DISMISSED.

The appeal referred to in the italicized language is the appeal now before the Supreme Court. In other words, the Ninth Circuit ruled that the Supreme Court would have jurisdiction on the motion of the very people now denying the Court has jurisdiction.

Counsel for appellees win the chutzpah award of the week.

California Early Release Law Opposed By Victims' Group: The Associated Press reports that a victims' rights group has sued to block a state law that could allow thousands of inmates out of prison early.  The lawsuit, filed Monday in San Diego, claims the measure violates early-release restrictions in Proposition 9, which voters approved in 2008 to protect victims rights.  The inmate release law that took effect in January grants reduced prison terms to low-risk felons if they take job classes or earn high school equivalency diplomas. It is designed to save $500 million and ease prison overcrowding.  The lawsuit was filed by Crime Victims United of California.  SignOnSanDiego released on article today that can be found here.

Medical Parole Proposed to Cut Prison Costs: Sacramento Bee writer Susan Ferriss reports on an idea proposed by J. Clark Kelso, the federal court-appointed prison health receiver for Plata v. Schwarzenegger, suggesting that California could save millions of dollars a year if officials could grant parole to a handful of inmates who are comatose or severely incapacitated.  An aide in Kelso's office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated.  "These people are not even capable of realizing they're being punished," said Kelso aide Luis Patino.  "Society becomes the victim, because it's paying the cost." Last year, Governor Schwarzenegger and Attorney General Brown petitioned U.S. District Judge Henderson to replace Kelso.  The judge denied California's request.

"Militia Charged With Plotting to Murder Officers": New York Times writers Nick Bunkley and Charlie Savage report on a militant group compromised of nine individuals, calling themselves the Hutaree, indicted Monday for plotting to kill law enforcement officers in hopes of inciting an antigovernment uprising.  The court filings said the group planned to kill an unidentified law enforcement officer and then bomb the funeral caravan using improvised explosive devices based on designs used against American troops by insurgents in Iraq. The members of the group could face a maximum penalty of life in prison if convicted of the most serious charge, attempted use of a weapon of mass destruction.

At the top of today's orders list is this order in the appeal of Schwarzenegger v. Plata and a companion case:

The appeals are dismissed for want of jurisdiction. The Court takes note that a further order has been entered in this case, but that order is not the subject of these appeals. It is also noted that the district court has stayed its further order pending review by this Court.

Understanding what the Court did and did not decide (mostly the latter) takes a bit of background.

The Supreme Court orders list is here. The controversial Abu-Jamal case is vacated and remanded to the Third Circuit to reconsider in light of Smith v. Spisak. On the WaPo site is this AP story. The headline writer refers to Abu-Jamal as a "suspect."

The Court also sent a California case, Patrick v. Smith, back to the Ninth Circuit to reconsider in light of the high court's spanking of the Ninth in McDaniel v. Brown.  Anyone care to bet that the Ninth will say Brown has no bearing on Smith only to be reversed by the Supreme Court? We've seen that scenario a time or two.

Attached to the order list are opinions in summary dispositions of Presley v. Georgia, on exclusion of the public from voir dire, and Wellons v. Hall, previously noted here, on a federal habeas claim where the facts had been insufficiently developed in state court. Wellons is remanded for reconsideration in light of Cone v. Bell.

The court turned down the California prisoner case, Schwarzenegger v. Plata, "for want of jurisdiction." I'll have more on that in a separate post.

The Supreme Court's orders list from today's conference is available on SCOTUSblog but not, as of 2:00 pm PST, on the Court's own web site.

All five cases granted are civil. Conspicuously absent is Schwarzenegger v. Plata, the big California let-em-all-out case. Usually when the Court releases a list of cases accepted on Friday, the list at the beginning of the following week* is all denials. We'll have to wait and see whether the Governator's case is denied or relisted. There have been further developments in the lower court, and the appellant just filed a second supplemental brief yesterday, so possibly they took it off the calendar to give the opposing party a chance to respond.

*Tuesday next week because Monday is a holiday.

The SCOTUSblog post on Schwarzenegger v. Plata noted in today's Blog Scan has a version of the Questions Presented that may be a bit confusing. The full text of the QP from the Jurisdictional Statement is after the jump.

Supreme Court Schedules:  The U. S. Supreme Court will hold a private conference tomorrow to discuss pending petitions for ceritorari.  Today, SCOTUSblog's Erin Miller posted its "Petitions to Watch" for the conference, in addition to a rare "Appeals to Watch."  The "Appeals to Watch" tomorrow involve the early release of thousands of California prisoners in the cases Schwarzenegger v. Plata and California State Republican Legislator Intervenors v. Plata.  Kent blogged back in December that the Court was likely to hear the case, so don't be surprised if the appeals are at the top of the Court's orders list.  The Court also released its oral arguments calendar for March 2010.  The D. C. Circuit's detainee case, Kiyemba v. Obama, will be argued March 23rd, and a "second successive" petition question will be addressed on March 24th in Magwood v. Culliver.  

Hollingsworth v. Perry - Lower Courts Can't Fudge Procedural Rules:   At Volokh Conspiracy, Orrin Kerr comments on a theme he finds running throughout the Supreme Court's opinions in Hollingsworth v. Perry and Bush v. Gore.  Kerr believes that yesterday's opinion in California's Prop. 8 case reflects the Court's objection "lower court or state court judges intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process."  He writes that the Court invoked this principle once before in Bush v. Gore, a case also involving lawyers Ted Olson and David Boies.  In that case, the Florida Supreme Court was repeatedly fudging state election law to try to help out Al Gore in the 2000 election; and in Hollingsworth, the trial judge "was fudging the rules on broadcasting trials to try to give the plaintiffs a national forum to make the case for gay marriage."  Kerr writes this must have been an "odd deja vu moment" for Olson and Boies.

Surveillance Drones in Houston:  CrimProf Blog's editor, Kevin Cole, has posted a YouTube video describing the Houston Police Department's use of a small, unmanned aircraft that can be used for surveillance.  The Department is testing use of the drones, but some people are already questioning whether use constitutes a search for purposes of the Fourth Amendment.

The U.S. Supreme Court has scheduled for its January 15 conference its consideration of the jurisdictional statement in the California prison case, Schwarzenegger v. Plata, No. 09-416. There is very little to decide, as this is one of those rare cases where Congress has provided for an appeal rather than a writ of certiorari. It is not in the Court's discretion to take it or not. If they have jurisdiction, they have to take it. Howard Mintz has this story in the San Jose Mercury-News.

They probably want to take it anyway, though. On Sept. 11, they denied a stay but added this unusual note: "In denying the stay, the Court takes note of the fact that the three-judge district court has indicated that its final order will not be implemented until this Court has had the opportunity to review the district court's decree."

California Prison Case and the Supreme Court:  At PrawfsBlawg, Jonathan Simon, a Boalt Hall Law Professor, comments that the California inmate case, Plata v. Schwarzenegger, is likely to end up in the Supreme Court "sooner or later."  Referencing the Sacramento Bee's October 9th story on the inmates request to hold Governor Schwarzenegger in contempt, Simon focuses his post on some of the "legal flash points" that will spark interest if the case reaches the Supreme Court.  But the case is already there: Schwarzenegger v. Plata, No. 09-416.

Supreme Court Case Discussing Strickland in Deportation Context:  At SCOTUSblog, Anna Christensen previews tomorrow's Supreme Court argument in Padilla v. Kentucky, a case that will address whether a criminal defendant's guilty plea can be set aside because his defense counsel affirmatively misadvised him with regard to the deportation consequences of the plea.  In her post, Christensen goes through the parties' briefs, and discusses the United States amicus' position that misadvice with regard to immigration consequences can be ineffective assistance of counsel, so long it satisfies both the performance and prejudice prongs of Strickland (Padilla can't do this because evidence of guilt is overwhelming).  This position is contrary to the Kentucky Supreme Court's position that Strickland did not apply because Padilla's deportation constituted only a "collateral consequence" of his guilty plea.  Kentucky's brief supports this decision, and argues that after Brady v. United States and Boykin v. Alabama, trial courts have a duty only to ensure a defendant's understanding of the "direct" consequences of his guilty plea.  SCOTUSblog is likely to post transcripts of the oral arguments tomorrow.

Reconsidering Deference to Favor Uniform Rule of Law:  At Sentencing Law and Policy, Doug Berman posts the abstract of Marquette Law Professor Michael O'Hear's SSRN article, Appellate Review of Sentences: Reconsidering Deference.  According to the abstract, O'Hear believes it is "unfortunate" that appellate courts defer to the"sentencing competence of trial judges."  O'Hear writes this type of deference could hinder advancements in "uniformity and other rule-of-law values that are threatened by broad trial-court discretion."  Instead of relying on a sentencing judge's knowledge of the case and the procedure, O'Hear proposes "a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient."

Accuracy of Forensic Psychiatric Evaluators:  CrimProf Blog editors have posted on Douglas Mossman, MD's finding that "psychiatrists who evaluated mental competence from case files of 156 criminal defendants performed at a strikingly high level of accuracy."  According to the study's press release, the results of Dr. Mossman's study show that, on average, in "29 out of every 30 cases, the psychiatrists could distinguish competent defendants from incompetent defendants."  In reference to the results of his study, Quantifying the Accuracy of Forensic Examiners in the Absence of a "Gold Standard," Mossman is quoted as saying,"[t]hese results help us see how courtroom experts can be quite accurate in distinguishing competence from incompetence, but still reach different conclusions.  It's a matter of where experts draw the line on the issue of competence."  Mossman advocates adoption of a statistical techniques that "make it possible to estimate diagnostic accuracy without gold standards." 

NYT's Cooper Story: At TCS Daily, Lester Jackson has a critical review of a New York Times story on Judge Fletcher's dissent in the Kevin Cooper case in California.

Federal Judge Involvement in California Sentencing Reform:  At Sentencing Law and Policy, Doug Berman posts portions of "Assembly Invites Judges to Intervene," one of the editorials in today's Sacramento Bee.  The editorial reports that Governor Schwarzenneger has until Friday to submit his prison population reduction plan to the three-judge panel that decided Plata v. Schwarzenegger in early August.  The editorial is critical of the California Legislature's ability to pass "a feasible and timely proposal to reduce prison population before leaving town last Friday."  It calls the package finally sent to Governor Schwarzenegger's desk "watered down."  It also faults the Assembly for failing to include an " independent, professional sentencing commission" to rewrite sentencing laws in its plan.  CJLF has been critical of this proposal because it "creat[es[ a politically-appointed sentencing commission, it removes the ability of voters to hold elected representatives accountable for decisions that directly affect the safety of law-abiding Californians."  Another problem with the Bee's editorial is that it assumes the Legislature should disregard public safety and do exactly what three federal judges tell it to do. 

More on Obama Administration's Decision to Take "Prisoner-Photo Case to the Supremes":  At Wall Street Journal's Law Blog, Ashby Jones writes that "President Obama really really doesn't want the world to see certain photographs showing the abuse of prisoners in Iraq and Afghanistan."  Jones' basis his statement on yesterday's New York Times article by Adam Liptak detailing the Obama Administration's decision not ask the Supreme Court to block the release of photographs showing the abuse of prisoners in Iraq and Afghanistan last spring, and the "about-face" it made last month.  Last month, the Justice Department appealed and filed a brief asking the U. S. Supreme Court to hear the case.  (Other reports on the brief can be found here.)  Liptak writes that "the president's decision balanced two important interests," but Jones believes "the case will likely turn not on a clash of fundamental principles, but on a reading of a federal statute, the Freedom of Information Act, which makes disclosure of information held in the executive branch mandatory unless one of a list of exemptions applies."  Jones writes that this case is a tough one.  He likes the idea of exposing information, but "can see Obama's point: that such photos might be used selectively to create anti-American violence."

A Collector's Item for Supreme Court Junkies:  Tony Mauro reports on Blog of Legal Times that "[s]oon you'll be able to send mail with the image of a favorite Supreme Court justice affixed to the upper right corner."  On September 22, the U. S. Postal Service will debut four 44-cent stamps honoring justices Joseph Story, Louis Brandeis, Felix Frankfurter, and William Brennan Jr. at a dedication ceremony in the U. S. Supreme Court.  Mauro's post includes pictures of the stamps.  Just don't rush to your printer to use the stamps, the 44 cent marks have been struck-through on all of the pictures. 

Economic Commentary on "The Great California Prison Experiment:"  At Freakonomics Blog, Steven Levitt has posted his thoughts on the recent federal court decision to reduce California's prison population.  (h/t Doug Berman at Sentencing Law and Policy).  Levitt's post discusses the results of a 1996 study he did on the "impact that changes in the prison population have on the crime rate."  To conduct his study Levitt looked at what happened to the crime rate after a case like California's, Plata/Coleman v. Schwarzenegger, was filed.  He found that after the case was filed, but before it was decided, the growth of prison populations would slow down.  Then, when the decision is final, the prison population "shrink[s] by about 15 percent relative to the rest of the country over the next three years."  Levitt saw this happen in California before Plata/Coleman's ruling, and anticipates, based on his previous study, that "ultimately violent crime will be roughly 6 percent higher in California than it would have been absent the lawsuit. That is roughly 150 extra homicides a year, 500 additional rapes, and 4,500 more robberies."  Levitt, a true economist, does not see this as a complete loss from the societal cost-benefit perspective.  "The money we save from freeing the prisoners is on the same order of magnitude as the pain and suffering associated with the extra crime."

Civilian Courts Cannot Interfere With How Detainees Treated:  At Blog of The Legal Times, Jordan Weissmann reports on federal Judge Gladys Kessler's holding that civilian courts cannot intervene in in the force-feeding of detainees at Guantanamo Bay.  Senior Judge Kessler, of the U.S. District Court for the District of Columbia, wrote that not only would she decline to second guess the the judgment of Gitmo's officers because the force feedings did not demonstrate a "deliberate indifference" to the detainee's needs, but, she also wrote that although Boumediene v. Bush gave detainees habeas corpus rights, the Military Commissions Act of 2006 still prohibited civilian courts from ruling on the living conditions of the detainees.  She found Boumediene to be a narrow ruling where the Supreme Court had "refused to address" habeas corpus "with respect to confinement."