Results matching “thomas”

My friend Prof. Josh Blackman at the Law School of the University of South Texas is more pessimistic than I about the prospects that the Supreme Court will outlaw the death penalty, but he does a brilliant job of describing the Court's potentially "abolition-by-slow-drip" jurisprudence:

I freely admit that I find the 8th Amendment uninteresting. At least five Justices have made up their mind that the death penalty needs to be eliminated, but because they don't want to do it all at once, they are systematically, step-by-step, making it harder and harder to execute someone.

Uber will Hire Ex-Felons under Prop 47:  Uber, the ride-sharing company, announced last week that it plans to hire ex-felons whose felony sentences have been reduced to misdemeanors under California's Proposition 47.  William Bigelow of Breitbart reports that previously, Uber barred the hiring of drivers with felonies, even those whose felonies were reduced to misdemeanors under the voter-approved measure, but have since notified disqualified applicants to inform them that they are now eligible to apply despite their criminal records.  Contrary to state taxi companies, Uber uses court records rather than Live Scan, which relies on an FBI database and fingerprinting technology, to perform background checks, prompting district attorneys in San Francisco and Los Angeles to criticize the checks as "completely worthless."  Last August, the ride-sharing company made headlines reporting that it had hired registered sex offenders, identity thieves, burglars, a kidnapper and a convicted murderer.

Suspect who Killed OH Cop Arrested:  A man with a lengthy criminal history who had alleged plans to kill cops was arrested Monday for gunning down an Ohio police officer.  Fox News reports that 32-year-old Herschel Ray Jones III was arrested for killing Danville Officer Thomas Cottrell behind the Danville Municipal Building shortly before midnight, taking the officer's service weapon and cruiser.  A short time before the shooting occurred, Jones' ex-girlfriend called police to warn them that Jones "had weapons and was looking to kill an officer."  Jones had priors dating back to 2001 for breaking and entering, burglary, receiving stolen property and carrying a concealed weapon.  He served four years in prison after being convicted in 2011 for receiving stolen property and possession of chemicals for manufacture of drugs, and was released in April 2015.

Comey v. Holder on Policing and Racism:  The contrasting views between FBI Director James Comey and former Attorney General Eric Holder on race, crime and the police, and the fact that Holder's statements were given much more attention than Comey's, exemplifies the tendency for the mainstream to bury its head in the sand in spite of "essentially irrefutable data" that shows the disproportionate amount of crime committed by people of color.  Barry Latzer has this op-ed in the Washington Examiner arguing that while Comey explained that our problem with race and policing "is rooted in the reality of high crime in minority communities and the way our police are affected by it," Holder asserts that the "overrepresentation of young men of color in our criminal justice system" is a product of racism.  Data from the Centers for Disease Control and nationwide Census Bureau crime victimization surveys show that blacks commit, on a per capita basis, about two to five times the prison eligible offenses as whites.  Blacks are more likely to be victims as well, suggesting the tendency of victims and perpetrators to share the same demographics, with 94% of black homicide victims killed by black murderers. Comey's remarks coupled with data show that the over representation of people of color in our criminal justice system is "not a reflection of police racism but rather of misconduct by African-Americans."

The Marshall Project, a liberal but not unhinged group, has a commentary out with this appalling news:  The "national spike in murder [in 2015 is] the largest single-year increase since at least 1960."

LA Group Admits Losing Track of Refugee:  Catholic Charities, the group that assisted a Syrian refugee resettle in Louisiana, has revealed that it doesn't know where the refugee is because the group is simply "on the receiving end" and doesn't track the refugees they place.  Michelle Fields of Breitbart reports that after helping a refugee settle in Baton Rouge, the group claims that the individual left the state entirely, though no one knows where.  Louisiana Gov. Bobby Jindal, who says that refugees began being placed in New Orleans last week without his knowledge or the state's involvement, wrote a letter to President Obama on Monday demanding more information regarding Syrian refugees.  Jindal is one of the many U.S. governors who this week have publicly rejected Obama's resettlement plan over renewed concerned about Syrian refugees in the wake of Friday's deadly terror attacks in Paris, in which at least one terrorist was in possession of a Syrian passport and entered Europe by posing as a refugee.

Six Murdered at TX Campsite:  Six people, including a young child, were killed over the weekend at a rural campsite southeast of Dallas and law enforcement have a suspect in custody.  Fox News reports that 33-year-old William Hudson is, so far, charged with one count of murder in the deaths of Thomas Karp, who had recently purchased the land where the massacre took place, his girlfriend Hannah Johnson, her 77-year-old father Carl Johnson, her young son Kade and two other males.  Few details have emerged in the case, including the victims' causes of death or a possible motive, which is unclear given that Hudson did not appear to know any of the victims.  Carl Johnson's wife, Cynthia, survived by hiding in the woods while her family was being slain.  Anderson County Sheriff Greg Taylor says Hudson was picked up weeks ago for a separate assault and acknowledges that he is "violent."

The face of pure evil showed itself again in Paris today.  Stacy Meichtry, Inti Landauro and Thomas Varela report for the WSJ:

PARIS--Terror swept the French capital late Friday as a series of attacks--in a bustling nightlife district and outside a soccer stadium--left more than 100 people dead in one of the bloodiest assaults in the country's history.

The sheer scale of the mayhem--six separate attacks--left authorities reeling. The government declared a state of emergency, sending military forces onto the streets of Paris, sealing off roads and reinstating border controls. Sirens blared across the city as police and emergency workers rushed to respond.

On Tuesday, while discussing the summary affirmance by the U.S. Supreme Court in Missud v. Court of Appeal of Cal., No. 15-5601, I engaged in some speculation as to why five Justices of the Supreme Court might have recused themselves.  Missud's certiorari petition is now available on the web.  It is nice to see one's speculation confirmed.  Here is Missud's List of Parties section:

All interested parties do not appear on the cover's caption. Well over 100 state & federal judge$ who already sold decisions, rigged hearings, railroaded actions, or otherwise scuttled a case, appeal, or writ should now be terrified of going to prison for at least Honest Services Fraud, 18 USC §201 Corruption, §1962 Racketeering, and §2381 Treason & Overthrow of Government.³

319 Million Americans who've had their constitutionally-mandated neutral judiciary commandeered by corporation$, $pecial intere$t$ & corrupt judge$ want their "government of and by the people" back, and are hence interested parties too.

Footnote 3 is a long list of judges ending in, you guessed it, "John Roberts, Clarence Thomas, Antonin Scalia, Anthony Kennedy, Samuel Alito."

Steven Mazie, Supreme Court correspondent for the Economist, has this article in the WaPo, noting, "when the justices disagree, they rarely split neatly along ideological lines. In fact, of the 66 cases decided in the term that ended in June, only five resulted in a razor's-edge split along the left-right fault line."

All well and good, but I was struck by this line: "Ultraconservative Justice Clarence Thomas joined the four liberals against his right-wing brethren to allow Texas to refuse to issue a license plate featuring the Confederate battle flag."

Ultraconservative?  By what standard?

Illinois Lawmaker Pushes to Restore Death Penalty:  An Illinois lawmaker is planning to introduce a bill in the next  legislative session that would restore capital punishment in certain cases. The death penalty was abolished in the state in 2011.  Evie Allen of WSIL reports that Democratic state Senator Bill Haine, a former state's attorney for Madison County, will propose the bill to allow a death sentence in cases involving serial killings, the murder of a child, seniors, persons with disabilities, murders of witnesses, and murders of correctional and law enforcement officers.  Capital punishment was abolished in the state in 2011 by Gov. Pat Quinn, 12 years after Gov. George Ryan suspended executions and commuted the sentences of 167 death row inmates to life in prison.

Rookie Officer Killed in KY:  A Kentucky State Trooper was shot and killed Sunday evening by a suspect who was later fatally shot when he refused orders to drop his weapon.  Awr Hawkins of Breitbart reports that 31-year-old State Trooper Joseph Cameron Ponder was engaged in a high-speed chase when 25-year-old Joseph Thomas Johnson-Shanks sped off after being pulled over.  During the pursuit, Johnson-Shanks purposely slammed on his brakes, causing Ponder to crash his cruiser into his vehicle, and fired multiple shots at Ponder before taking off on foot, before being shot by another officer.  Ponder, a U.S. Navy veteran, had been a State Trooper only since January 2015.

Professor Fatally Shot on College Campus:  A history professor was fatally shot Monday morning in his office at Delta State University in northwestern Mississippi, and a manhunt for the killer is underway.  Fox News reports that the victim, Prof. Ethan Schmidt, was an assistant professor who had just published his second book and was a member of several organizations at the university.  The Cleveland, MS campus has been on lockdown since word of the incident spread, with students and faculty instructed to remain indoors and away from windows.  New information indicates that the suspect may be a faculty member who is also a person of interest in the killing of another woman, possibly in a love triangle.

Prison Worker Who Aided Escape Blames Depression:  The former New York prison worker who assisted in the elaborate June escape of two convicted murderers from a maximum-security prison near the Canadian border said that she was depressed at the time and her weakness was exploited by the two inmates.  The AP reports that 51-year-old Joyce Mitchell explained that she helped in the escape plan of Richard Matt and David Sweat because Matt had threatened harm to her family.  She claims, "I was going through depression and I guess they saw my weakness and that's how it all started."  Mitchell is accused of smuggling in tools that the two inmates used to break out of the Clinton Correctional Facility on June 6, prompting an intensive manhunt that ended three weeks later when Matt was fatally shot by police and Sweat was apprehended.  Mitchell pleaded guilty to smuggling the tools and faces up to seven years behind bars.

Adam Liptak has this article in the NYT.  The first two paragraphs read:

Justice Clarence Thomas has not asked a question from the Supreme Court bench since 2006. His majority opinions tend to be brisk, efficient and dutiful.

Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.

From that opening, the headline of the article, and the prominent picture of Justice Thomas, readers would likely get the impression he is very different from any of his colleagues on this measure.  Here are the actual numbers from further down the article:

Over the years, the average rate of nearly identical language between a party's brief and the majority opinion was 9.6 percent. Justice Thomas's rate was 11.3 percent. Justice Sonia Sotomayor's was 11 percent, and Justice Ruth Bader Ginsburg's 10.5 percent.

In other words, Justice Thomas is barely different at all from Justice Sotomayor and not much different from Justice Ginsburg, a result very different from the initial impression formed by the top of the article.  Liptak's characterization of Justice Thomas's rate as "unusually high" is particularly questionable.  On any measure, one of the nine has to be highest, and the fact that Justice Thomas's number happens to be a smidge higher than the next highest does not come close to justifying that characterization.

Dallas Police Face Unfair Discipline, Stress:  Officers in the Dallas Police Department have been taking longer to respond to 911 calls, partly due to officers being "mentally beaten down," according to the head of the Dallas Police Association.  J.D. Miles of CBS DFW reports that the association's president, Ron Pinkston, says that many of the 3,000 officers he represents "are moving slower because of concerns over safety and fears about violating department policies."  Dallas Police Chief David Brown attributes new training requirements to the slower responses to priority one calls, which at eight minutes and 13 seconds is the highest it has been in three years.  Ultimately, there is a lack of motivation within the force due to the fear of doing the right thing coupled with the fear that "nobody's going to support them."

Illegal Immigrant Carjacks Woman Minutes After Release:  An illegal immigrant, who had previously been deported, violently carjacked a woman 30 minutes after his release from jail.  Josh Fatzick of the Daily Caller reports that 24-year-old Guaynar Cabrera-Hernandez was released last Monday from the Montgomery County Detention Center in Washington, D.C., and approached a woman in a parking lot while wielding a knife and a brick, put the knife to her throat, forced her out of the car and hurled the brick at her before speeding off in her vehicle.  He struck again two days later, throwing a bottle at the head of a 68-year-old woman and taking her vehicle, crashing through a security gate with police in pursuit and apprehended when he attempted to flee on foot.  Cabrera-Hernandez was arrested in 2007 for being in the country illegally, and then again in 2011 for which he was subsequently deported.  According to U.S. Immigration and Customs Enforcement (ICE), Cabrera-Hernandez's past crimes did not meet the agency's "civil immigration enforcement priorities."  Currently, he is wanted in Maryland for an outstanding armed carjacking warrant and is in custody.

Prop. 47: 'A Well-Intentioned Blunder':  In this column on the San Diego Source, Thomas D. Elias acknowledges that Proposition 47, a ballot measure passed by a 60-40 margin last November that downgrades several felonies to misdemeanors, is a bad policy that endangers Californians.  With crime statistics for the first half of the year pouring out from around the state showing, to name but a few, a 47 percent increase in car burglaries in San Francisco and a 12.7 percent increase in overall crime in Los Angeles, "this measure looks worse and worse."  The consequences of Prop. 47, as Elias points out, are plentiful.  Criminals are adjusting their practices by stealing less than $950 worth of goods to avoid a felony charge. Enrollment in drug treatment programs have dropped now that addicts are relieved of the pressure to kick their habits, knowing they'll never do serious time.  Persons with prior convictions of crimes such as carjacking, armed robbery, child abuse and assault with a deadly weapon are not facing jail time because those crimes qualify for misdemeanor status for new non-violent offenses.  "Now it's time for legislators to fix this flawed measure," says Elias.

CA Lawmen Protest Parole of Cop Killer:  Unions representing Los Angeles police and California prosecutors have joined   the widow of a slain LAPD detective in an attempt to block the parole a man who indirectly helped murder him 30 years ago.  Dana Bartholomew of the LA Daily News reports that on August 4, two members of the California Department of Corrections and Rehabilitation (CDCR) recommended the parole of 52-year-old Voltaire Williams, who is serving a sentence of 25 years to life for conspiracy to commit murder in the death of 42-year-old LAPD Detective Thomas C. Williams (no relation) in 1985. Williams, 26-years-old in 1985, was hired by a man named Daniel S. Jenkins to kill the policeman for $2,000, but didn't go through with it.  Jenkins ended up doing the deed himself, gunning down the officer in front of his six-year-old son.  Critics of Williams' parole believe that the state is trying to "empty out overcrowded penitentiaries by releasing inmates such as Williams on good behavior," noting that 900 such lifers were granted parole this past year.  

Surging Immigration Backlog Overwhelms Judges:  Working conditions for the country's 247 immigration judges are growing progressively worse each year, and 130 of them will be eligible to retire this fiscal year, which ends Sept. 30.  Molly Hennessy-Fiske of the LA Times reports that according to the Immigration Policy Center, immigration judges typically handle more than 1,400, and some even handle over 3,000 cases at a time, totaling to a massive backlog of more than 450,000 cases, exacerbated by the increasing number of Central American youths seeking asylum.  Judges across the country are outraged at the unmanageable working conditions, and say that the courts need to hire an additional 100 judges "immediately."  An immigration court spokeswoman insists that officials in the U.S. attorney general's office have begun "an aggressive hiring process."

Boston Bomber Wants New Trial, Changed Venue:  In a court filing Monday, Boston Marathon bomber Dzhokhar Tsarnaev's defense attorneys said that their client deserves a new trial in a different location "where jurors will be impartial."  The AP reports that their argument states that the widespread outrage and emotional media coverage following the 2013 attack that left three people dead and several others injured prevented Boston jurors from looking at the case or the defendant objectively before finding him guilty and sentencing him to death.  The attorneys request that Tsarnaev's sentence be overturned and the court order a new trial.  The filing also includes arguments, citing a recent U.S. Supreme Court ruling that "throws many of [Tsarnaev's] convictions into question," believing that he should be acquitted of 15 convictions that were for crimes of violence because the trial court failed to explain which part of the definition they met.

One of the reasons that the U.S. Court of Appeals for the Ninth Circuit is so often reversed by the Supreme Court (and often summarily, unanimously, with a harsh rebuke, or all of the above) is that the full court chronically fails to correct the errors of rogue panels when they favor a state prisoner, especially in capital cases.

Last December I noted that a 2-1 majority of a 3-judge panel (Thomas and Reinhardt, Kozinski dissenting) had overturned yet another death sentence, after four previous reviews of the case by other courts had found no reason to disturb the judgment.

Today, wonder of wonders, the Ninth agreed to rehear the case pseudo-en-banc, i.e., before an eleven-judge panel comprised of the chief judge and ten randomly selected judges.  Unfortunately, the automatically selected chief judge is the author of the erroneous opinion, so Arizona will need to draw six persons of sense out of ten.  That is less than even money in the Ninth, but not out of the question.  We do know that a majority of the pool voted to rehear the case.

New Surge of Illegal Families Across Border:  The number of illegal immigrant families captured at the border increased in July, contrary to expectations that the surge would subside as the late summer heat intensifies.  Stephen Dinan of the Washington Times reports that the trend has been exasperated by Judge Dolly M. Gee's July 24 ruling prohibiting the detention of illegal immigrant families which has enticed Central American parents to bring their children on the treacherous journey as "shields to get them released" once they arrive.  U.S. Immigration and Customs Enforcement (ICE) officials told Judge Gee that they need to detain families for at least a few days "in order to make their determinations and conduct necessary health screenings."  The Justice Department has asked for a hearing later this month of present more evidence in an effort to sway the judge to reconsider the order.  

Gunman who Killed Shreveport Officer Arrested:  The gunman accused of killing an on-duty police officer in Shreveport, Louisiana on Wednesday evening was arrested without incident Thursday afternoon as he sat in a garage.  Fox News reports that 27-year-old Grover Deandre Cannon, already wanted for a murder that occurred on July 15, shot 24-year-old (reported as 29-years-old in a previous article) honor graduate Thomas LaValley multiple times when the officer confronted him in response to a report of a suspicious person.  The last fatal shooting of a Shreveport police officer was in 2010.

Texas Sheriffs Oppose Federal Immigration Policies:  Texas Sheriffs have voiced their opposition to the federal government's creation of a sanctuary state for criminal aliens through its Priority Enforcement Program (PEP), which has "gutted the immigration system" by promoting dangerous catch-and-release practices.  Lana Shadwick of Breitbart reports that U.S. Immigration and Customs Enforcement (ICE) used to be able to place a 48-hour hold on illegal immigrants when they were wanted on immigration-related issued, however, that is no longer possible since the PEP program replaced the U.S. Department of Homeland Security's (DHS) Secure Commissions plan, allowing criminal aliens free rein.  Under the PEP program, a criminal alien cannot be held until after a final conviction, so "these criminals bond out and disappear into the country."  Lt. Gov. Dan Patrick promises that the senate will pass legislation to handle the problems of sanctuary cities in the next legislative session.

Officer's Attorneys Say Baltimore Prosecutors Hid Evidence:  Defense attorneys representing the six Baltimore police officers charged in Freddie Gray's death say prosecutors steered investigators away from allegations regarding Gray's behavior in past interactions with law enforcement.  The AP reports that defense attorneys filed a motion on Thursday alleging that investigators on the case had information on Gray's history of participating in "crash-for-cash" schemes in which people hurt themselves to collect insurance settlements, and that he once injured himself so severely while in jail that he required medical attention.  However, when they sought to probe the evidence further, they were told by prosecutors "not to do the defense attorneys' job for them."  Other allegations include the state's attorney's failure to provide the Chief Medical Examiner with a copy of a statement made by the man who was inside the van when Gray suffered his injuries.  Gray died on April 19, one week after suffering a spinal injury in the back of a police van, leading to the arrest and charging of six Baltimore police officers in his death.

Illegal Held in Rape/Murder was on Probation:  One of the two men charged in last month's home invasion, rape and fatal bludgeoning of a 64-year-old California woman was an illegal immigrant out on probation.  Paul Gonzalez of the Santa Barbara News-Press reports that 29-year-old Victor Aureliano Martinez Ramirez, charged along with his 20-year-old accomplice Jose Fernando Villagomez, attacked Marilyn Pharis on the morning of July 24 in her Santa Maria home, beating her with a hammer and sexually assaulting her.  Ramirez was out on probation for committing battery in 2014 while in possession of methamphetamine.  Both offense are considered "low level" crimes under Realighment.  This year, he was charged twice for violating probation, once for possessing a concealed knife, and the other for drugs, but under Realignment he was allowed to enter a substance abuse program in lieu of jail.  Villagomez also has a history of battery, drug possession and probation violations, and was similarly diverted to a substance abuse program.  They are due in court on August 13.

Nashville Theater Attacker Had Mental Issues:  The suspect who entered a movie theater in Nashville on Wednesday with pepper spray, an airsoft pellet gun, an ax and a fake bomb in his backpack was a homeless man with a history of psychological issues.  The AP reports that 29-year-old Vincente David Montano, who was killed by police when they mistook his gun for a real weapon, had been committed for psychiatric treatment at least four times, twice in 2004 and twice in 2007, and was arrested in 2004 for assault and resisting arrest.  Montano entered a near-empty theater on midday Wednesday where only seven others were present and began spraying them with pepper spray.  He was fatally shot by police officers, who arrived quickly, when he fired his pellet gun, which looked and sounded like an authentic firearm.  One man received a superficial cut on his shoulder from the ax, but no one else was seriously injured or killed.

Shreveport Police Officer Shot and Killed:  A police officer in Shreveport, Louisiana was shot multiple times while responding to a call of a suspicious person in a neighborhood around 9:15 p.m. on Wednesday.  The killer is still at large.  Melissa Chan and Jason Silverstein of the NY Daily News report that 27-year-old Grover Cannon is wanted in connection for the murder of 29-year-old Officer Thomas LaValley, a four-year veteran of the Shreveport Police Department who graduated at the top of his class.  Cannon is also a suspect in a shooting that took place last month.  LaValley was dispatched to the neighborhood after receiving a call from a person reporting that an armed man was threatening a family member inside a home, and was met with a barrage of bullets when he arrived.  LaValley is the first Shreveport officer to be fatally shot since 2010, and Police Chief Willie Shaw vows to "scour the earth" until Cannon is found.

Extra Million Alien Work Permits Issued Annually:  More than 7.4 million work permits have been issued to foreign nationals from 2009 to 2014 by the Obama administration, which exceeds the approximately one million lawful permanent residents and 700,000 foreign guest workers admitted to the U.S. each year.  Caroline May of Breitbart reports that work authorizations are being issued to some categories of immigrants that Congress never intended to work in the U.S., such as immigrants granted Deferred Action for Childhood Arrivals (DACA) or Temporary Protective Status (TPS), spouses of guest workers, various types of foreign students, immigrants granted voluntary departures, as well as parolees, asylees and refugees.  Additionally, over 113,800 individuals with final orders of deportation were also granted work permits in the six-year period.  Jessica Vaughn of the Center for Immigration Studies says that "the Obama administration has been abusing what should be considered a very limited authority to issue work permits."

Edward Blum notes at the WSJ, "Fifty years ago, on Aug. 6, 1965, President Lyndon Johnson signed the Voting Rights Act, legislation he would later identify as the most important of his political career."

Continuing with the term summary (part 1 was yesterday), here are the federal criminal law cases, the prisoner rights cases, and a trio of summary error corrections.


Federal Criminal Law

Yates v. United States, February 25, 2015, 5-4 on the judgment, 4-1-4 on reasoning.  The Sarbanes-Oxley law, enacted to address financial fraud, prohibits among other things destroying a "tangible object" to obstruct an investigation.  Does that cover throwing fish overboard to obstruct a charge of a size limit violation?  No.  Justice Ginsburg wrote the plurality opinion, joined by Chief Justice Roberts, Justice Breyer, and Justice Sotomayor.  Justice Alito wrote a concurrence, and cast the deciding vote on the judgment, with a different path to the same result.  Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas dissented from the Court's departure from what she sees as the plain language of the statute.

Henderson v. United States, May 18, 2015, 9-0.  If, in the course of a criminal case, the government gains control of the defendant's guns and upon conviction he can no longer possess them, can he direct their transfer to someone else?  Yes, so long as steps are taken to insure the transferee is not a straw man.  Justice Kagan wrote the opinion for a unanimous Court.

Here is the first part of my two-part wrapup of the criminal cases in the Supreme Court term from October 2014 to July 2015.

The Big Cases

Ohio v. Clark, June 18, 2015, 9-0 on the judgment, two dissenting votes on the main issue and one hard to classify vote.

The question is whether a statement of a very young child to a teacher regarding who abused him is "testimonial" and therefore subject to exclusion under the Confrontation Clause, and whether it makes a different that the teacher is a mandatory reporter under the state's child abuse reporting statute.  This opinion goes a very long way toward cutting back the expansive definition of "testimonial" statements - and therefore the range of evidence excluded by the Confrontation Clause - that had been stated in Davis v. Washington (2006).  Although the Court does not categorically shield all statements to anyone other than law enforcement officers from exclusion under Crawford, we can see that such exclusion is going to be very much the exception and not the rule.  State-law hearsay rules will now be the primary authority for whether such statements are admitted. 

Justice Alito wrote the opinion.  Justice Scalia, joined by Justice Ginsburg, would preserve Davis in its original breadth, though they agree that it is not so broad as to cover this child's statements.  Justice Thomas continues to go his own way, focusing on the formality of the statements, a criterion obviously lacking here.

This case will likely have the largest impact of any of the term.  It is a huge win for prosecuting violent crime generally and domestic violence in particular.  The fact that only two Justices voted for a broad definition of "testimonial" statements is particularly striking.  CJLF's brief is here.

A small newspaper in central Pennsylvania published an editorial on Monday hailing Governor Tom Wolf's statewide moratorium on the death penalty.  It begins with a quote from novelist Raymond Chandler claiming that law is not justice but rather an imperfect mechanism that randomly jets out results - sometimes we get what we call justice; sometimes naught. 

 

The editorial proceeds by mentioning the case that led to the moratorium:  Hubert Lester Michael Jr.  Michael was convicted of the murder of 16 year old Trista Eng.  Eng had posted an ad to sell a chair, which Michael responded to.  Later Michael picked her up while she was hitchhiking. He bound, raped and killed her.  Eng's life was over at 16 because she posted an ad to sell someone a chair.   Her family is left to pick up the pieces. 

 

To which the editorial staff at the York Daily Record state:

All of us feel for these families. Many of us will never fully understand what they are going through.

And certainly, for them, and for many others, the death penalty is an emotional issue. But for the sake of justice, however imperfect, we have to be able to take a rational look at the death penalty and its purpose, its cost and its flaws, no matter how difficult that may be.

Mr. Michael is a poor candidate for this kind of rational reflection. He admitted his crimes. He had a history of brutality. He is a monster. It is easy to say, as York County District Attorney Thomas Kearney did, that he is "the poster child" for the death penalty.

Perhaps Mr. Michael deserves death.

But he is not what this debate is entirely about.

The rational debate about the death penalty is - at base - really about retributive justice.  The abolition movement is fond of recounting the "death is different" motto, which the Supreme Court invoked at least as far back as 1977.  But that is precisely the point: murder is a uniquely grievous crime that calls upon any civilized and orderly society to punish in an exceptional manner.   Society, of course, wants to deter murder and it wants to preserve the safety of its citizens, but justice, at least in this world, is an entirely human enterprise and it derives from the simple idea that people deserve to be punished when they have transgressed seriously against the social norms embodied in the law.

There is no "perhaps" in Michael's just deserts; what he deserves is worse than death but he mercifully gets less.  The conversation, though, is about deserving.  It is emotional but that does not render it irrational.  The touchstone of our humanity is that we can feel for others: the families of the victims; the outrage at the conduct of someone like Michael; the loss of safety that we all experience upon hearing of a horrendous crime; the brief thought: that could have been my child.  It is this same emotional affair that lends us to extend a lesser punishment for those who have truly extenuating circumstances.  Justice is not cold nor should it be because it is an entirely human endeavor not a mechanical one.   The debate about the death penalty does include concerns about its reliability as does the entire criminal justice system, but it is, at heart, a debate about what people like Hubert Lester Michael deserve and that is reason at its best. 

1.  Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence.  For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.

The opinion is here, 5-4, by Justice Alito.  I will have more later.

Update:  At the end, the opinion of the Court says,

Finally, we find it appropriate to respond to the principal dissent's groundless suggestion that our decision is tantamount to allowing prisoners to be "drawn and quartered, slowly tortured to death, or actually burned at the stake." Post, at 28. That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments.

There is a side debate between Justices Scalia and Thomas and Justice Breyer regarding the constitutionality of capital punishment itself.  At first glance, Justice Breyer's argument appears to be all the usual stuff we have refuted time and again.

Update 2:  CJLF has this press release.