June 2006 Archives

The Impact of Justice Alito

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SCOTUSblog has this post on their analysis of the rates at which the Justices agree and disagree with each other, with particular attention to Justice Alito. Along with the numbers, the post includes this comment:

Still, one result that may give conservatives slight pause, and which liberals may see as a glimmer of hope, is the data regarding which conservatives Alito agrees with most frequently. Despite Alito’s being characterized as “Scalito” by some people during his nomination hearings due to what many thought to be strong similarities between the two, he has voted more consistently with Roberts and Kennedy than with Thomas and Scalia.

These "liberal" and "conservative" labels must be taken with at least a grain of salt, and maybe a heaping tablespoon. In United States v. Gonzalez-Lopez, Justice Scalia wrote the opinion favoring the defendant, while Justice Alito wrote the dissent favoring the prosecution, joined by Chief Justice Roberts, Justice Kennedy, and Justice Thomas.

Should "conservatives," generally regarded to be on the prosecution side in simplistic analyses, be given "pause" by the fact that Justice Alito agreed with Chief Justice Roberts and Justice Kennedy rather than Justice Scalia in this case? I don't see why.

As noted in today's News Scan, Gallup has recapped some of their historical death penalty polling data. Gallup's Web content is typically free on the day of posting only and limited to subscribers thereafter.

On the generic question Gallup has been asking since 1936, support is at 65%, a little above the 70-year mean of 63.7%. The historical data for this question are copied on CJLF's site here. The "anti" side likes to trumpet that support is down 15% from its all-time high in 1994. Sure, and it's also up 23% from its all-time low in 1966. Most numbers are down from their peaks and up from their troughs.

Regrettably, Gallup's release today does not recap the question that best captures support and opposition for the death penalty as it presently exists, i.e. whether the survey respondent believes the death penalty is presently imposed too often, not often enough, or about right. That question has, for the last several years, shown that three-quarters of the American people either support the death penalty as it is or want it tougher.

News Scan

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The Supreme Court decision in Gregg v. Georgia, which reinstated the death penalty in the United States will be celebrating its 30-year anniversary on July 2nd. Read the complete Gallup Poll story here.

David Rivkin and Lee Casey at the Wall Street Journal (subscription) comment on Hamdan v. Rumsfeld, "a setback with a sterling silver lining."

Maryland Injection Decision Overturned The Baltimore Sun has this story on the reversal of an administrative law judge's decision against the state's lethal injection process.

Hamdan v. Rumsfeld


Terrorists Win Crucial Ruling in Hamdan
Justice Kennedy joined the Stevens wing of the Supreme Court in a ruling today, which grants the rights of United States Citizens to terrorists captured on the battlefield and held at Guantanamo Bay, Cuba. Justice Stevens' seventy-three page opinion needs only eleven to brush aside the Detainee Treatment Act adopted by Congress in December 2005 which specifies in part that "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by an . . . alien detained by the Department of Defense at Guantanamo Bay . . . ." The rest of the majority opinion explains how the President lacks the authority to designate military commissions to prosecute terrorists. The ruling is remarkable for its complete disregard for the separation of powers and detachment from reality. Dissents by Justices Scalia and Thomas define the scope of this disaster.

Vienna Convention Cases

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Updated 10:50 am PDT

The Supreme Court today decided in Sanchez-Llamas v. Oregon that suppression of a post-arrest statement is not required as a sanction for the failure of the police to notify a foreign arrestee of his right under the Vienna Convention to have his country's consulate notified. In the companion case of Bustillo v. Johnson, the Court reaffirmed its 1998 ruling in Breard v. Greene that a claim under the Vienna Convention can be defaulted by failure to raise it when required by state procedural rules.

The majority opinion in Sanchez-Llamas shows the same hostility to suppressing evidence that we saw in Hudson v. Michigan earlier this month. The argument for suppression was particularly weak in light of the absence of genuine support in the decisions of any other country or in the International Court of Justice's decision in the Avena case. These points are discussed in CJLF's amicus brief. They also form the basis of Justice Ginsburg's concurrence in the judgment on this point.

Justice Ginsburg's positions were that (1) the Vienna Convention does grant individual, judicially enforceable rights; (2) suppression of post-arrest statements is not required for a Vienna Convention violation alone, although such a violation might be part of a broader voluntariness inquiry; and (3) a violation might be a ground for waiving procedural default in a proper case, but a case such as Bustillo where trial counsel was actually aware of the issue prior to trial is not such as case. As she notes in footnote 5, ineffective assistance remains an available claim where appropriate.

In the Medillin case, Justice O'Connor wrote a dissent joined by the three dissenters in today's decision. If Justice O'Connor were still on the Court, could Justice Ginsburg have quilted together a majority for her positions? Probably, but we will never know for sure.

Railroad Killer Execution

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Angel Resendiz, the "Railroad Killer," was executed June 27 for one of at least 15 murders he committed. The Houston Chronicle has this story on the execution. Although his lawyer and the anti-death-penalty crowd have loudly maintained he was not competent to be executed, his last words are clearly those of a person who knows what is happening and why.

The Marsh Innocence Debate

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The debate in Kansas v. Marsh between Justice Scalia and Justice Souter regarding wrongful convictions has received considerable attention in the blogosphere. As Doug Berman notes, the debate was odd and off-topic in a case where the question presented dealt only with the penalty phase and not the guilt verdict. Two other cases decided this term, House and Holmes, actually did address issues related to actual innocence. Why didn't Justice Souter raise his complaints in these cases? Maybe he thought it would have seemed even stranger to raise them in cases where the defendant won a new trial or hearing from the Supreme Court and the problem was being effectively addressed.

As Ward Campbell noted in a comment to an earlier post here, Justice Scalia may have gotten much of his ammunition from the amicus brief of California and 14 other states filed in the House case. That brief is available here.

California Prisons

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The Governator has called a special session of the California Legislature to deal with the prison overcrowding problem. (The Legislature is already in session, but a concurrent "special session" has different rules.) Here is the Governor's press release, with links to full text and video of his remarks to the California District Attorneys' Association. Here is the San Francisco Chronicle article.

Blog Scan

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Reason has this essay by Cathy Young called "Knock Knock Knocking on Trouble's Door: The Supreme Court's Unreasonable Position on Home Searches." (Hat tip, How Appealing).

Joel Jacobsen at Judging Crimes has this comment on a case where a judge dismissed a rape case because the prosecutor showed up late.

Tom Goldstein at SCOTUSblog has this post on The Effect of Justice Alito. By counting opinion assignments, he concludes that Justice O'Connor's retirement changed the outcome in Garcetti v. Ceballos and Hudson v. Michigan but not Kansas v. Marsh.

Doug Berman at Sentencing Law and Policy has this post on lethal injection, with links to other posts and articles. He also has this post with commentary on Marsh.

News Scan

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Serial killer Angel Maturino Resendiz, also known as the “Railroad Killer” will be executed this evening in Texas. Resendiz, who was once on FBI’s Most Wanted List has been linked to 15 murders throughout the country and will be the 13th execution of the year for Texas. Read the full AP story here.

The Atlanta Journal-Constitution reports that a federal district judge has issued a temporary restraining order against enforcement of a law that forbids registered sex offenders from living within 1000 feet of a school bus stop.

Reefer Madness and the United Nations. The UN Office on Drugs and Crime "warned that cannabis was now considerably more potent than a few decades ago and said it was a mistake to dismiss it as a 'soft' and relatively harmless drug. Evidence that cannabis use can cause serious mental illness is mounting." The press release, including a link to the full report, is here.

Harmless Errors and Broad Brushes

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Today, the U.S. Supreme Court decided two cases on the continuing conundrum of "harmless error." That is, under what circumstances can a reviewing court decide that a ruling by the trial court was an error yet affirm the judgment because the error made no difference in the outcome.

The outcomes of these cases are not particularly remarkable. What is somewhat peculiar is the way the Court deals with its own precedents. The line of cases involved here is a case study in the wisdom of minimalist judging and the danger of painting with too broad a brush.

The End of Tinkering?

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Is the Supreme Court finally ready to stop tinkering with capital sentencing procedure? Today's decision in Kansas v. Marsh raises that possibility. Years ago, when Justice Blackmun said he would "no longer tinker with the machinery of death," many of us said, "Good! Stop tinkering!" Regrettably, the Court continued.

For 34 years now, the Supreme Court has been unable to agree with itself from one year to the next what the Constitution forbids and what it requires. Some of this history is described in CJLF's brief in Ayers v. Belmontes, a California capital case to be argued next Term. While the whole line of Eighth Amendment cases beginning with Furman v. Georgia was intended to prevent arbitrariness in capital sentencing, the constant tinkering with the rules has itself been a primary source of arbitrariness. Murderers have been regularly taken off death row with no regard for the heinousness of their crimes because a court decided that a standard procedure or instruction previously considered valid has magically become a violation of an amendment ratified over 200 years ago.

News Scan

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Update: 4:00 pm PDT
U.S. District Judge Fernando Gaitan has halted executions in Missouri until the state changes its injection protocol, according to this AP story.

Wisconsin to Hold Referendum on Death Penalty
This November voters in Wisconsin will let its legislature know if the state should enact a death penalty law. While the vote on the legislative measure approved for the fall ballot will be advisory, it will will provide a signal to lawmakers on whether Wisconsin should join the 38 states which currently allow the death penalty for the worst murderers. Read more on the story from the Chicago Tribune here

Nevada Enacts On-Line Sex Offender Registry
Nevada has joined the over forty other states in posting a registry of convicted sex offenders available to the public. The story from the Reno-Gazette Journal is here

Study Claiming Meth Epidemic a Myth Challenged
Virginia law enforcement officials are not buying a recent report by the Sentencing Project (read Anti-Sentencing Project) which suggests that concerns about widespread methamphetimine use is misplaced. The story from the Rocktown Weekly, highlights a reality often unaccounted for by some think tanks. Read it here

Today's Supreme Court Decisions


The Supreme Court reinstated the Kansas death penalty law by a 5-4 vote in Kansas v. Marsh. Decision here. CJLF press release here.

In Washington v. Recuenco, the Court also held by a 7-2 vote that "Blakely error," i.e., having a fact necessary to raise the maximum sentence found by the judge rather than the jury, is subject to harmless error analysis, as almost all errors are. Decision here. CJLF press release here.

In United States v. Gonzalez-Lopez, the Court held by a 5-4 vote that erroneous denial of counsel of choice is not subject to harmless error analysis. Decision here.

We will post comments on these cases later today.

News Scan

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Gina Holland of AP has this article on the remaining cases of the Supreme Court term.

The Chicago Tribune was widely rumored to be coming out with proof that Carlos De Luna, executed in Texas in 1989, was actually innocent. Turns out the first article in the series says they have evidence that "suggests" that.

SCOTUSblog has this report on the Washington Legal Foundation's briefing on the Supreme Court term, including Tom Goldstein's comments on the large number of Ninth Circuit reversals.

Doug Berman at SL&P points us to this article by Rachel Barkow at NYU, making the case that "the relationship between originalism, politics, and criminal law [is] far more complicated than is commonly believed." That is, you can't assume that "conservative" judges necessarily favor the prosecution, with the Apprendi line of cases as Exhibit A.

The New York Times has this article on alternatives to the prevailing lethal injection protocol.

Joel Jacobsen at Judging Crimes has this post on Hudson v. Michigan and the exclusionary rule.

The Bureau of Justice Statistics has this report on citizen complaints regarding police use of force.

Tough-on-Crime Attitudes and Race

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Richard Morin of the Washington Post has this article on, among other things, attitudes toward aid for Hurricane Katrina victims and how they vary by race. (Hat tip: James Taranto at opinionjournal.com) The study found that Republicans on average favored giving less aid to victims of Hurricane Katrina, but the amount they would give did not vary by race of the recipient. Democrats, on the other hand, favored more aid overall, but they "were willing to give whites about $1,500 more than they chose to give to a black or other minority." What is intriguing from the perspective of crime studies is this statement by the researcher:

[Shanto] Iyengar [of Stanford] said he's not surprised by the latest findings: "This pattern of results matches perfectly an earlier study I did on race and crime" with Franklin D. Gilliam Jr. of UCLA. "Republicans supported tough treatment of criminals no matter what they encountered in the news. Others were more elastic in their position, coming to support more harsh measures when the criminal suspect they encountered was non-white."

Exhaustion and Injection

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On June 12, the Supreme Court decided in Hill v. McDonough that death row inmates could use the civil rights law rather than habeas corpus to challenge lethal injection procedures. This decision effectively denied the states two protections against last-minute challenges enacted in 1996: the habeas statute of limitations and the rule against successive habeas petitions.

Ten days later, though, the high court may have handed the states an alternative defense, based on another statute enacted the same year: the Prison Litigation Reform Act (PRLA).

Thursday's Supreme Court Action

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Today the Supreme Court decided one criminal case and one law-enforcement-related civil case. In Dixon v. United States, a 7-2 opinion by Justice Stevens, the Court decided that the burden of proving the affirmative defense of duress may be placed on the defendant. In Woodford v. Ngo, a 6-3 opinion by Justice Alito, the Court held that the administrative exhaustion requirement of the Prison Litigation Reform Act requires a prisoner to actually use the administrative remedy within the time allowed for it, not just let the time lapse and then file in federal court.

Still undecided are . . .

News Scan

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The Associated Press reports on the Dixon case on the duress defense here.

A 21 year old in the UK is the first person to be caught through an International police agency website targeting pedophiles. The full story published by the ITV.com is available here.

Supreme Court of Canada decided that one day in jail was an acceptable sentence for a teen who beat a man to death using a billiard ball wrapped in a sock. The controversial story can be found here.

by Barry Latzer
Professor, John Jay College of Criminal Justice

David McCord’s Afterword in Judicature (March-April 2006) contends that capital punishment is akin to consumer fraud. These are the same old anti-death penalty arguments in new guise.

Consider first his claim that the death penalty “does not work to sentence only the guilty to death” because “over 20 demonstrably innocent persons . . . have been sentenced to death in the post-Furman era.” In the first place, the death penalty has nothing to do with the wrongful convictions. These 20 (I will assume McCord’s number is accurate) also would have been wrongly convicted if they had been given life sentences. Does McCord think that capital trials, which, as a rule, are far more scrupulously conducted than noncapital proceedings, are less reliable for guilt determination? I’d be interested to hear his arguments on this point.

Second, again assuming that there were 20 miscarriages of justice, isn’t the “does not work” conclusion premature without looking at the failure-to-success ratio? According to the recent Bureau of Justice Statistics count, there were 7,187 death sentences from 1977 to 2004. With 20 wrongful sentences, the failure ratio is .003 (20/7187). Does Professor McCord know of any other product – criminal justice or otherwise – with that low a failure rate?

On Monday, the Supreme Court decided in Samson v. California that a California law requiring that parolees be subject to search by any police officer at any time does not violate the Fourth Amendment. CJLF's press release on the case is here, and our brief is here. There were three possible theories under which this condition might have been upheld: consent, special needs, or the general reasonableness of the requirement. The Court chose the latter theory.

Quintuple Play in Tennessee?

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Capital Defense Weekly is appalled that Tennessee has set five execution dates for June 28. They call it a "bloodbath." They can relax. The Memphis Commercial Appeal reports that three of the five still have both state and federal appeals left.

The Downside of Baggy Pants

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For comic relief, the Wall Street Journal (subscription) has this article on the plight of perpetrators who attempt to flee while encumbered by baggy pants. Here is a sample:

Ill-fitting pants aren't suited for jumping, either, as Noah Donell Brown of Hendersonville, N.C., learned. The 24-year-old tried to leap over the counter of a Subway sandwich shop during a robbery attempt, but he stumbled and came crashing down in front of several startled store employees. Mr. Brown, armed with a gun, got up and fled into a nearby residential neighborhood as the police were notified.

Police didn't have to work hard to arrest him. As Mr. Brown tried to scale a picket fence in someone's backyard, he caught his pants, according to the police department. He was found dangling upside down, his pants at his ankles and tangled in the fence.

The Supreme Court's 5 to 4 decision in the case of Hudson v. Michigan on Thursday is a confrontation between two distinct views on law enforcement. The decision allows the introduction of criminal evidence uncovered during a warranted search, even when the police did not properly knock and announce their presence as required by an earlier Supreme Court decision. Critics of the decision, including the Cato Institute and the ACLU, fear that it will allow paramilitary police units to kick in the doors of private homes, violating the privacy of all citizens. Supporters, including the Criminal Justice Legal Foundation, view the decision as an important signal that the Court does not intend to extend the exclusionary rule and that police with a warrant retain some flexibility on how to conduct a search in situations where their safety is at risk or the evidence may be destroyed.

A Gallup Poll released today shows that the American people remain strongly in favor of capital punishment. When asked, “In your opinion, is the death penalty imposed: too often, about the right amount, or not often enough?” 51% said not often enough and 25% said about right. The sum of 76% for current or tougher capital sentencing has been steady in a narrow range of 71% to 77% for the five years Gallup has been asking this question.

This poll confirms that the American people are not turning away from the death penalty. Claims to that effect by opponents of the death penalty are wishful thinking.

Thomas Sowell goes after social engineers who claim that the liberal policies of the 1960s saved the country. In his syndicated column, Sowell writes "To those who believe it, this vision is a treasure beyond price because it is also a wonderful vision of themselves -- and they are not likely to give it up for anything so mundane as grubby facts".

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