Rwanda is the latest country to be bludgeoned into abolishing the death penalty by Europe, Canada, et al. These countries refused to extradite accused criminals even for genocide until Rwanda agreed to let them off with inadequate punishment for their crimes. The Globe and Mail of Canada has this story. The EU, in a press release, had the gall to say the decision reflects a determination to "ensure justice," according to this story. Big Brother's Ministry of Truth could hardly have done a better hatchet job on the word "justice."
July 2007 Archives
"Capital punishment is exclusively for people without capital," is one of the anti side's favorite lines. The well-heeled and the politically connected never receive death sentences, they will tell you. One minor problem: it's not true. Yesterday, the California Supreme Court upheld the death sentence of Enrique Zambrano.
The prosecution’s evidence indicated that defendant, a member of the Berkeley Waterfront Commission, bludgeoned the Mishells, a University of California professor and his wife, because he believed they had made anonymous telephone calls exposing his extramarital affair. The evidence further indicated that defendant then fatally shot Reyna, a fellow waterfront commissioner, to prevent Reyna from testifying against him in the Mishell matter.
Defendant admitted attacking the Mishells, but claimed provocation. He asserted that Reyna’s death was an accident. Defendant admitted that, to cover up the homicide, he decapitated, dismembered, and scattered Reyna’s body, then fled to Mexico with his girlfriend.
Henry Lee has this story in the SF Chron. There are other examples, such as the Thomas Capano case in Delaware. They are not common simply because the well-heeled rarely commit capital murder, but they are frequent enough to disprove the exaggerated claims we often hear.
Shortsighted on Judges is the title of this National Journal article by Stuart Taylor. He contends that the Democrats' blocking of the nomination of the well-qualified Leslie Southwick for the Fifth Circuit may backfire if and when their party gets the White House back. (Hat tip: How Appealing.)
Cutting inmate population in Missouri: A supervision center for qualified inmates is cutting down the amount of inmates in prison, while giving inmates a second chance. Inmates must serve 85% of their sentence under the new law, for those convicted of second-degree murder, rape, sodomy, kidnapping, first-degree assault, arson and first-degree robbery, reports Virginia Young and Tim O’Neil with the St. Louis Post-Dispatch. The center offers a program for qualified inmates leaving prison, but not quite ready for the real world, by providing them with transitional housing units. In the center, inmates are provided help in applying for jobs, writing resumes and given state issued identification cards. Non-violent offenders are offered employment workshops, drug treatment, and are given the opportunity to take a GED test to gain a high school diploma.
New Sex offender laws in Florida: Tomorrow sex offenders in Florida will be required to obtain a new driver’s license or ID card that will have a special statute number printed on the front, indicating the offense. Effective October 1, 2007, offenders will have to register any e-mail addresses and/or instant message names with the Florida Department of Law Enforcement. Starting February 1, 2008 any offender or predator who has failed to obtain a new card will be charged with a third-degree felony. As reported in the Scripps Treasure Coast Newspaper “60% of boys and 80% of girls sexually victimized are abused by someone known to the child or his or her family.”
The Gallup Poll shows support for the death penalty essentially steady, with 65% answering "yes" to Gallup's traditional question, an insignificant change from last year's 66%. (As we have noted before, the traditional question understates public support by implying that the respondent is being asked to specify a single punishment for all murderers, not just the worst.) This report by Lydia Saad of Gallup, free for a limited time, emphasizes the racial differences in responses. The myth that the death penalty is imposed disproportionately on black defendants, despite the opponents' own studies showing the contrary, is doubtless a large part of the lack of support among black Americans and the resulting lesser justice and protection for black victims of crime. More on this is available in Kent Scheidegger's 2003 article on the racial studies.
Gov. Signs Warrant for Killer’s Execution
The Pittsburgh Post-Gazette reports here that on Wednesday, Gov. Ed Rendell signed a warrant authorizing the execution of a man convicted of killing four members of a family, including the fetus of the pregnant daughter. Mark Duane Edwards, Jr. is scheduled to die by lethal injection on September 19th for the April 2002 murders of the Bobish family, after breaking into their mobile home to avoid a drug debt. However, the case has only finished the first round of appeals, direct appeal through denial of certiorari by the Supreme Court, so this date will doubtless be stayed.
Supreme Court "too conservative”? An article in the Washington Post on Sunday reports that although half of Americans think that the Court is balanced, a growing number of Americans say that the Supreme Court has become “too conservative” in the two years since President Bush began nominating justices. An ABC News story by Gary Langer has a link to the actual poll results. Overall, 47% think the Court is about right, 31% too conservative, and 18% too liberal.
New Hampshire collecting DNA from parolees: The Boston Globe reports that New Hampshire's Corrections Department will begin collecting DNA samples from sexual or violent offenders on parole or probation so that police around the country can compare samples in criminal investigations.
Pamela MacLean has this article in law.com on reaction to circuit-split proposals at the Ninth Circuit conference in Hawaii. (Hat tip: SCOTUSblog.) They're mostly against it. There also appears to be some consternation over an article by Brian Fitzpatrick noting that the mathematical probability of "extreme" decisions is lower with a smaller circuit. (It is, but only if the two circuits have similar ideological spectra, which most of the presently floating split proposals would not produce.)
Of the potential for "extremist" decisions in a large circuit, Chief Judge Mary Schroeder said, "You have got to be kidding. We don't appoint the judges, the president does. You don't split up a court because you don't like the decisions it makes."
True, Judge Schoeder, you don't appoint the judges, but you and your colleagues do decide when to grant rehearing en banc, and you haven't done that enough. Here's a start. Make a list of all the Ninth Circuit decisions reversed unanimously or summarily by the Supreme Court in the last three terms. Those are, by and large, patent errors that you should have fixed en banc but didn't. Not all, but most.
See what those cases have in common. When more panel decisions like that come up, fix them en banc. That would go a long way toward correcting the Ninth's image as an extreme court.
Justice Thomas's jurisprudence is the subject of this article by Brent Kendall in the LA Daily Journal, available through How Appealing.
From The Montgomery Advisor an AP story, reports that Darrell Grayson was executed Thursday evening by lethal injection for the murder of 86-year-old widow Annie Laura Orr and pronounced dead at 6:16 p.m.. The 46-year old Grayson had been adopted by activists as an example of the need for a state law mandating DNA testing for Death Row inmates. The Innocence Project, a New York-based nonprofit that represents the condemned, had argued that DNA tests not available at the time of Grayson's trial might have proved him innocent. The victim’s granddaughter, who witnessed the execution, wiped away tears and in a statement said, “The Orr family has seen the final chapter of a 27-year struggle.” More on this in yesterday’s News Scan.
Home Invasion Suspects on Parole Hit Other Homes, Prosecutors seeking the Death Penalty
The AP reported Thursday that Joshua Komisarjevsky and Steven Hayes, both on parole for non-violent crimes, could face the death penalty if convicted of killing Dr. William Petit’s wife and two daughters, then setting the house on fire. The Houston Chronicle has story today about the two suspects possibly being involved in two other burglaries in the area the night before. Two other homeowners who spoke with police said the suspects had burglarized them while they were sleeping. “We were within 24 hours of being that family,” said one of the victims of the burglaries.
CA Supreme Court overturns Inmates Death Sentence
The California Supreme Court, in a rare ruling, withdrew an inmate from death row after concluding that a new penalty phase is needed because there is now “substantial doubt” that he was the actual killer. The LA Times reports that the prosecution alleged that James Edward Hardy was hired by Mark Reilly (also convicted in 1983) to murder Reilly's wife and 8-year old son to collect insurance money. Hardy's lawyers presented evidence that a third man was the actual killer. The Supreme Court agreed that the evidence proved Hardy wasn't the actual killer but still guilty of murder for his active participation in planning it. In an opinion written by Justice Kathryn Mickle Werdegar, she said that the new evidence "so undermines our confidence in the penalty verdict that a different, more favorable result was reasonably probable had this evidence been presented to the jury."
This article by psychiatrist and psychologist Sally Satel and Scott Lilienfeld in Slate magazine offers compelling arguments against the current trend to see addictions as brain diseases (hat tip: Mind Hacks). Much of the rhetoric about addictions as a disease has been motivated by the Director of the National Institute of Drug Abuse, Dr. Nora D. Volkow. Since addictions are currently not considered diseases in the traditional sense, health insurers often refuse or limit their coverage for substance abuse treatment. The effort by Dr. Volkow is a noble one in a certain sense since the cost of addictions literally and figuratively is enormous. Indeed, HBO recently aired a gripping documentary pretty much espousing the additions as a brain disease model. What is troubling, however, is that brain scans have been heavily implemented by the addictions-as-disease model proponents in an effort to convince the public that addictions are indeed caused by brain abnormalities indicative of disease pathology. But, of course, brain scans cannot tell us anything about causation and as the Satel and Lilienfeld article notes, there's much skepticism surrounding their use in addictions. This article by law professor Stephen Morse, also notes the difficulties in conceptualizing addictions as brain diseases. But this is hardly new, see also: Herbert Fingarette, Addiction and Criminal Responsibility, 84 YALE L. J. 413, 414-415 (1975) (sorry, no link).
Alabama Execution: Darrell Grayson who has been on death row since 1982, is scheduled to die by lethal injection this evening in Atmore, Alabama. In 1982 Grayson was convicted and sentenced to death for the 1980 murder of 86-year-old Annie Laura Orr, reports Phillip Rawls with the AP. The pro-death penalty website (scroll down, last story on page) has more details about this crime committed by Grayson and his already executed accomplice Victor Kennedy.
Public support for the death penalty has been the focus of polls here in the U.S. and internationally for decades. At least twice each year, opposition groups announce that American support is dropping, usually citing a variation in responses to the commonly used polling question ie: "which punishment do you support for murderers, life in prison with no possibility of parole or the death penalty." More recently we have been told that a drop in support is evidenced by the fact that juries are recommending fewer death sentences. The cause for the drop in death sentences may be as simple as the fact that there are far fewer murders today than there were 10 years ago, in part because many states adopted extended terms for repeat felons, taking the most likely capital defendants off the streets before they killed someone. The polling question, which puts the issue in the abstract and infers that all murders are capital offenses, invites a soft response. When the facts surrounding an aggravated murder are known to the public, support for a death sentence increases dramatically. A story by Kenton Robinson on theday.com makes this point.
Unbelievable. That is the only word to describe the dissent in Getsy v. Mitchell, noted in yesterday's News Scan. After all that has happened in the law of habeas corpus over the last two decades, some federal judges still don’t get it.
Habeas corpus is not an appeal from the state courts to the federal courts. Both Congress and the Supreme Court have told the lower federal courts this many times. A federal district court is not authorized to set aside the considered judgment of a state court on a collateral attack merely because the federal court would have decided the issue differently if that issue had come before them in a federal criminal case. The Supreme Court held in 1989 in Teague v. Lane that federal courts cannot create new rules on habeas corpus and that a new rule is any rule not “dictated by precedent.” Further, Congress enacted in 1996 that a state court decision on the merits of a question of federal law cannot be overturned on habeas unless the contrary rule was clearly established by Supreme Court precedent, not circuit precedent.
Sex Offenders in Kentucky sentenced before July 2006 may not have to comply with a state law which prohibits offenders from living within 1,000 feet from a school, daycare facility or park according to this story from the Louisville Courier-Journal by Jason Riley. A state District Judge ruled yesterday that applying the new restriction to those sentenced prior to the law's enactment was unconstitutional. Other Kentucky judges have handed down similar rulings, with an appeal pending before the State Supreme Court.
Execution Update: Shortly after the U. S. Supreme Court denied his appeals, Lonnie Earl Johnson was executed yesterday evening in Texas. Johnson was pronounced dead at 6:44 p.m. CDT reports AP staff writer Michael Graczyk.
State officials last week were told that Myspace.com found more than 29,000 sex offender profiles on their website. In May, Myspace had removed 7,000 profiles of sex offenders who had violated their parole. North Carolina AG Roy Cooper is proposing a new law that would block offenders from using social websites, such as Myspace, Facebook or Xanga reports April Bethea with the Charlotte Observer. Cooper is also teaming up with other state law officials in an attempt to urge Myspace to “use age and identity verification methods voluntarily.”
Not Your Ordinary Deck of Cards: In an attempt to help solve statewide cold-case homicides and missing persons cases, law enforcement officials in Florida are giving prison inmates cold-case playing cards. Each playing card has the victim(s) name(s), picture(s), date, location, homicide and/or last seen information, followed by a crime stoppers tip number. Inmates in Polk County jails were first given the cards in 2004, and helped lead authorities to the arrest of 2 people involved in a May 2004 homicide, Marc Caputo reports for the Miami Herald.
Getsy Decision: An en banc panel of the Sixth Circuit has rejected a proportionality claim in a murder-for-hire case which had been upheld by a three-judge panel last year. The Associated Press story describes the case. The decision in Getsy v. Mitchell is here. The good news is that eight of the fourteen judges acknowledged that Supreme Court and circuit precedent and federal law prohibited the lower court's holding. The bad news is that the other five and a senior circuit judge did not.
Texas Gangs: A one week gang raid in North Texas cities netted 121 suspects arrested, half on criminal charges. Operation Community Shield introduced more than two years ago, teamed with federal agents and local police, leading to the arrests of members from 27 different gangs. As reported in yesterday's AP story in the San Francisco Chronicle, the arrests included members from one of the nation’s largest and most violent gangs—“MS-13,” also known as “Mara Salvatrucha.”
Texas Execution: Double-murderer Lonnie Earl Johnson is scheduled to be executed this evening by lethal injection in Huntsville, Texas. Johnson was found guilty of fatally killing two teenage boys 17 years ago, taking their truck to Austin, then selling the gun to buy drugs. Johnson (who is black), has insisted that the killings were in self-defense, after the teenage boys (who were white), pulled a gun and made racial threats against him. Johnson will be the 19th death row inmate executed this year in Texas. As reported by AP staff writer Michael Graczyk, Johnson's execution would mark the 398th inmate executed by lethal injection since the 1982 return of capital punishment in Texas.
In the California prison litigation, Judges Lawrence Karlton and Thelton Henderson issued an order for a three-judge district court, Don Thompson reports for AP. Congress has provided that only a special three-judge panel can issue a prisoner release order. The panel will consist of two district judges and one circuit judge, designated by Chief Judge Mary Schroeder of the Ninth Circuit. The process is governed by the Prison Litigation Reform Act available here. A decision of the three-judge district court is appealable directly to the U.S. Supreme Court.
The Sky's Still Up There: Jan Crawford Greenburg of ABC takes some liberal commentators to task for ridiculous exaggerations of the Supreme Court's conservative turn, "almost breathtaking in its over-the-top hysteria." She compares them with Chicken Little, tabloids, Jerry Springer, and the WWF. A person unfamiliar with the comments and the reality might think Ms. Greenburg is doing some exaggerating herself, but she is not. (Hat tip, SCOTUSblog.)
The Griffin Case: Barbara Shelly, a member of the Editorial Board with the Kansas City Star has this commentary titled, “Focusing on death-penalty issues” published on July 19, 2007. Part of the article is a comparison of the two reports on the Larry Griffin case, one by the NAACP LDEF and one by the prosecutor's office. Ms. Shelly is clearly no fan of the death penalty. Later in the article she recites some of the usual anti-DP talking points. With regard to these two investigations, however, she says, "By my reading, [prosecutor] Joyce’s report is thorough and objective. Some of the methods and assertions of [NAACP study author] Gross’ investigation appear dubious in comparison."
Calibrated Depravity: The Washington Post has this article by Neely Tucker on the efforts of psychiatrist Michael Welner to create a scale for measuring which murders are more depraved than others.
Charges dropped in sex-abuse of minor: Mahamu Kanneh, a Liberian immigrant living in Maryland, was arrested in 2004 for the rape and repeated sexual assault of a 7-year-old female relative. Recently a trial judge dropped the charges because almost 3 years of delays “violated his right to a speedy trial.” In short, an interpreter fluent in Kanneh’s native language Vai, (spoken in West Africa) could not be found. Kanneh’s attorney had demanded that an interpreter was needed, even though Kanneh had attended high school and community college in Montgomery Couty, Maryland and had spoken to detectives in English. Prosecutors are now considering whether or not they should appeal the Judge’s ruling, because Kanneh’s charges cannot be refiled, reports Ernesto Londono of the Washington Post.
Former death row inmate Aaron Patterson, pardoned by then-Gov. and now-convict George Ryan, awaits sentences on drug and weapons charges, reports Don Babwin of the AP. Three days ago Patterson had to be "dragged yelling and kicking from the courtroom," apparently "set off by court officials' use of a phrase common at sentencing hearings: career criminal."
This post by David Bernstein at the Volokh Conspiracy reminded me of a new book that I'm currently reading, The Case Against Adolescence by Dr. Robert Epstein. Since I haven't finished the book I can't offer my opinion on the subject, but if Epstein's argument holds true, then perhaps our efforts of protecting young adults through the increasing maze of laws and regulations is unwise. Additionally, many of the arguments proffered by my fellow psychologists for the prohibition of the juvenile death penalty (and given credence by the Supreme Court in Roper v. Simmons) may be faulty. The immaturity that juveniles express about matters as serious as life and death could be a creation of our own modern culture or do not really exist at all. One thing that is likely true is that our understanding of childhood development is surely influenced by our cultural expectations and demands of how we want adolescents to behave. Immaturity may indeed call for more responsibility rather than less.
California Supreme Court: Maura Dolan of the LA Times has this article titled “State high court rules inmates’ sentences can be upheld.” The California Supreme Court yesterday decided People v. Black and People v. Sandoval upholding most existing inmate sentences. CJLF’s brief in People v. Hernandez and People v. Sandoval is here.
Adam Walsh Act Enforced: Authorities finally caught up with John Collins of Massachusetts, who had violated his parole by failing to renew his registration as a sex offender. However, after Collins crossed the stateline into New Hampshire he was arrested by authorities because he failed to give police his new address. Under the Adam Walsh Act, signed into law in July 2006 by President Bush, sex offenders are to be prosecuted if they cross state lines and fail to notify police with an updated address. Collins, who appeared in a U. S. District Court on Tuesday is now facing charges on failing to register and failure to update his registration as a sex offender, as reported by James A. Kimble of the Eagle-Tribune in Massachusetts.
From the "be careful what you ask for" file, comes this story by Michael Kiefer of the Arizona Republic. In Ring v. Arizona, 536 U. S. 584 (2002), the Supreme Court decided that it violates the Sixth Amendment to have judges decide the facts that make a case eligible to be considered for the death penalty. The facts that the high court had previously considered and rejected precisely the same argument and that states had massively relied on that holding were but minor considerations. In fact, the opinion did not mention reliance at all.
In Arizona, according to the story, "Defense attorneys at the time of the decision believed that juries would be more lenient with defendants, but the opposite has proved to be true." By a factor of three, it turns out.
Defense counsel are hopeful they can get better at bringing in life verdicts from juries, the article says. Yes, the fine art of Oprahfication of sentencing is one they hadn't needed to master until Ring.
Ring himself got a deal for a life sentence.
Today the Sixth Circuit issued an interesting little decision called Helms v. Zubaty that reminds us once again of the distinction between acquitted and actually innocent.
The California Supreme Court has released its opinions in People v. Black, following a GVR for reconsideration in light of Cunningham v. California, and People v. Sandoval. Here are some notes following a very quick read.
For cases pending on appeal, only one valid finding of an aggravating circumstance is needed to make the defendant eligible for the upper term and therefore satisfy the requirement of Cunningham and allow affirmance of the sentence. In Black's case, the jury made a finding that rendered Black ineligible for probation under California law and was also an aggravating circumstance for the term choice. The judge may find additional circumstances to inform the sentence choice. The sentence was therefore affirmed outright.
For cases where a remand is necessary, the Court in Sandoval eliminated the requirement that an aggravating circumstance be found, instead giving the judge the discretion to choose any of the three terms without such a finding. This is the same fix the Legislature enacted, but the statute did not specify whether it applied to pending cases. It also follows, in general approach, the remedial portion of United States v. Booker, where the U.S. Supreme Court took the mandatory portion of the law that created the constitutional problem and made it not mandatory. An ex post facto objection to such a fix is discussed and rejected.
Both opinions are unanimous, by Chief Justice Ronald George.
This article in today's New York Times discusses an unpublished study by the Bureau of Prisons (BOP) suggesting a strong link between viewing child pornography and sexual abuse of children. Specifically, the study reports that 85% of men who admitted to looking at child pornography also admitted to sexually abusing children. There's a big problem though with the study: The sample consisted only of men serving federal prison sentences at the federal prison in Butner, NC.
The California Supreme Court has announced that it will issue opinions in two coping-with-Cunningham cases tomorrow, People v. Black and People v. Sandoval. This cases relate to how the courts will cope with existing cases after the U.S. Supreme Court overturned a part of California sentencing law. The Legislature has enacted a fix for future cases.
Death Penalty Deterrence findings, and their impact on a New Jersey commission's recommendation to overturn that state's capital punishment law (or lack of impact) is the subject of a Cybercast news story by Kevin Mooney. The piece points out that "several academic studies have found an unambiguous link between executions and fewer homicides."
Florida will resume executions following a change in its lethal injection process, if a warrant signed by Gov. Crist today is carried out as scheduled on November 15. Bill Kaczor reports for AP. Mark Dean Schwab has lived 15 years on death row. That is four years longer than Junny Rios-Martinez lived altogether before Schwab kidnapped, raped, and murdered him. The Eleventh Circuit opinion is here.
Incarceration Rates: The Sentencing Project released a national study (pdf version) today titled “Uneven Justice: State Rates of Incarceration by Race and Ethnicity, authored by Marc Mauer and Ryan S. King. An article published in the Des Moines Register, reports that the state of Iowa (ranked no. 1) more than doubles the national average when incarcerating blacks over whites, as indicated in today’s Sentencing Project study.
Conspicuously absent from the study are any data to separate out the effects of crime rates and sentencing policy, both of which contribute to incarceration rates. Crime rates are only mentioned in passing. The "policy responses" in the study are, without exception, directed to reducing the number of criminals incarcerated for their crimes rather than reducing the number of crime committed.
The height defense: An appellate court has affirmed the decision of a District Judge in Cheyenne County, Nebraska to sentence 5-foot-1 Richard W. Thompson to 10 years probation, instead of jail time for the sexual assault of a 13-year-old. An examination to determine if Thompson would reoffend concluded that he is “neither a pedophile nor a sexual predator.” While the height factor contributed to the sentencing of probation, the appellate court conclude that the judge did have valid reasoning, reports Josh Funk with the AP. Regarding Thompson’s size, Judge Cecava stated, “I look at your basic ability to cope with people and, quite frankly, I shake to think what might happen to you in prison because I don't think you'll do well in prison.” What about the assault that the 13-year-old girl endured and her ability to cope with it? AG Jon Bruning plans to seek review by the Nebraska Supreme Court.
The Counterterrorism Club: Thane Henderson has this op-ed in the Wall Street Journal describing how other democracies are having their own "Patriot Act moments," realizing that the rules for ordinary criminal investigations and prosecutions need to be modified for terrorism.
DP in NH: The Manchester Union-Leader has this editorial on the death penalty in New Hampshire.
Florida Circuit Court Judge Ric Howard will hear argument at a pre-sentencing hearing from John Couey’s attorney today. Couey was found guilty of kidnapping, raping and murdering 9-year-old Jessica Lunsford in February 2005. “The jury voted 10-2 to recommend the death penalty” as noted in this CNN story by Kim Segal. Couey’s attorney will try to persuade the judge that Couey is mentally incompetent, sparring him from the death penalty. Jessica’s Lunsford father, Mark Lunsford will also testify, bringing him face to face with his daughter’s murderer. The judge will formally sentence Couey next month. Court TV has several articles following the Couey trial and hearing as well.
Ohio legislators passed Bill 18 into law last week with the help of a once sexually abused victim. The bill became known as “Jennifer’s Law,” named after the minor who was sexually abused by her stepfather 6 ½ years ago. After revealing the abuse to her mother, who notified police, her stepfather was charged with felony sex crimes. Deborah Dixon with Local 12 news in Ohio reports that he “pleaded guilty to misdemeanors, paid a fine, was put on probation, then got his record expunged.” Jennifer’s Law will prohibit the removal of all criminal records of sex crimes against children under 18 in the state of Ohio. The stepfather is now living free of a criminal record with his wife and three small children, all of which are girls.
The U.S. Supreme Court has issued a press release on its adoption of revised rules. (Hat tip: SCOTUSblog.) We previously commented on the proposed changes here, and CJLF's formal comments to the Court are here. Our main comment was that the Supreme Court should adopt for itself the 7-day stagger rule for amicus briefs that it promulgated for the courts of appeals.
According to the press release, the Court has, in fact, revised the revision to adopt the 7-day stagger. Amicus briefs will be due 7 days after the party supported, as in the courts of appeals. This is a most welcome change, for the reasons stated in our formal comments.
The new rules take effect October 1.
In the case of Troy Davis, scheduled to be executed in Georgia tomorrow (see today's News Scan) the claim is being made that the Antiterrorism and Effective Death Penalty Act of 1996 prevented the federal courts from hearing his evidence of innocence. The story in the Atlanta Journal-Constitution, for example, says, "Courts have declined to hear Davis['s] new evidence, in part because of a federal law aimed at expediting seemingly endless death penalty appeals." This article in the Washington Post goes even farther, claiming AEDPA is "[a]t the heart of Davis's difficulties...." There is just one small problem with this claim. It is false.
The Ninth Circuit partially fixed one of its own errors today. The case involves extradition, sentencing, and the doctrine of specialty. In another case decided Friday, we saw a stunning display of how far some lawyers will go making "disproportionality" arguments.
South Dakota's first execution in the modern era went smoothly, according to this article in the Argus Leader. "From the time the lethal injection began until [Elijah] Page stopped breathing took around 30 seconds, [the Attorney General] said."
Inmate states his case is “mistaken identity”
Troy Davis is scheduled to die by lethal injection tomorrow in Georgia for the death of a police officer. The state Board of Pardons and Paroles is meeting today to decide whether Davis’ execution should be carried out tomorrow as planned or if he should be granted a reprieve. Davis has maintained his innocence the whole time, contending that he did not shoot Savannah police officer Mark MacPhail in August 1989, but was at the scene of the shooting. Davis’ lawyers have specifically complained about the AEDPA and argued that new evidence has not been considered by the courts. Prosecutors, on the other hand, have argued that witness-signed affidavits from 1996 and 2003 were included in prior appeals and should not count as new evidence. Three signed affidavits by those who did not testify stated that a man by the name of Sylvester Coles confessed to shooting the officer. Coles later identified Davis as the shooter, as reported in today’s Washington Post AP story. The Georgia Attorney General's summary of the case is here.
Texas Governor Rick Perry is expected to sign Jessica’s Law today. Mark Lunsford, Jesssica’s father, will be present today for the signing of the law that will go into effect September 1, 2007. After September 1, prosecutors will now be able to ask for capital punishment for second-time offenders in child rape cases, reducing the re-offending chances. Bettie Cross of CBS42 News in Austin, Texas reports more on the story here. 30 states have established some type of Jessica’s Law, reports The Jessica Marie Lunsford Foundation website.
D.C. Gun Ban: The District of Columbia will ask the U.S. Supreme Court to review the Court of Appeals decision striking down the District's handgun ban, David Nakamura reports for the WashPost.
The Ninth Circuit panel that decided Irons v. Carey, issued an amendment to the opinion today and denied panel rehearing. Rehearing en banc is still pending. This is the strange case where the panel called sua sponte for briefing on whether the deference standard for federal habeas for state prisoners is unconstitutional, and after much gnashing of teeth decided what everyone knew the whole time: Ninth Circuit precedent settles that question.
Along with some minor editing, there is a new paragraph of Judge Noonan's opinion, along the same lines of his original opinion, expounding on the supposed duty of Congress to enact legislation in certain situations and then concluding that a decision on this question is unnecessary to the question before the court. Right, so why even bring it up? The paragraph includes this gem:
It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process.
Note the uncertain "may" and the passive voice "be considered." Considered by whom? When some consensus of the great and the wise and the wonderful takes hold, then decisions that the Constitution clearly vested in Congress become divested? This is pseudoprofound babbling.
Orin Kerr at the Volokh Conspiracy quotes the whole paragraph and asks, "Does anyone know what that is supposed to mean?" It means Judge Noonan's real, complete retirement is overdue.
Here are a couple of certiorari petitions to watch for those dealing with the aftermath of Crawford v. Washington, 541 U.S. 36 (2004).
Crawford indicated and Davis v. Washington confirmed "that one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." 165 L.Ed.2d. 224, 244 (2006). One popular method of obtaining the absence of the witness is to murder her. But does the state have to prove not only that the defendant murdered the witness but that his specific intent was to prevent her from testifying? That is the issue in New Mexico v. Romero, 07-37. The cert. petition is here, courtesy of AAG Joel Jacobsen. As a practical matter, such proof could be extremely difficult. Motives of preventing testimony, retaliation for going the police, and whatever the motive was for the original act of violence could all be mixed. When the killer has multiple motives, how do you prove specific intent?
Another Crawford case to watch is Cage v. California, 07-5156.
I don't have the cert. petition on this one yet. The Cal. Supreme opinion is here for now but will scroll off in about a month. Lisa Marie Cage is a mother who will never be mistaken for June Cleaver. She was convicted of aggravated assault for carving a long, deep gash in the face and neck of her son with a piece of glass. Cal. Supreme held that the son's statement to the emergency room doctor in response to the question "What happened?" was not testimonial. A statement to the investigating police officer was testimonial, but it was harmless due to being cumulative to the other statement.
Update: The cert. petition in Cage is here, courtesy of Gary Schons. Counsel for Cage has stated the question as the admissibility of the doctor's testimony rather than the harmlessness of the officer's testimony. Not the way I would have done it.
Serial killer Chester Turner was formally sentenced to death Tuesday for the murders of 10 women in Los Angeles. John Spano reports for the LA Times. We previously noted the case here at the time of the jury verdict. In this LA Times photo, "cousins James Parham, left, and Thelma Davison celebrate in front of the criminal courts building after Turner's sentencing."
An AP story in The New York Times today reports that Elijah Page’s execution did go through in South Dakota. Page died by lethal injection last night and was pronounced dead at 10:11p.m. CDT. The last inmate to be executed in South Dakota died in the electric chair 60 years ago.
76-year-old widow left to repay inmate? The 1958 murder of 29-year-old Charles Bernoskie, a police officer, got a break in 1999. Robert Zarinksy was implicated for Bernoskie’s murder, but was acquitted of the murder in 2001. In 2003, Elizabeth Bernoskie was awarded $154,000 in a wrongful-death lawsuit against Zarinksy. Last year, the Appellate Court dismissed the 2003 ruling, giving Zarinksy the ability to recover his money in court. Police officers are vowing to help the widow by raising the money if she is ordered by a court to pay it back. As it stands, Zarinksy is serving a life term sentence in prison for the murder of 17-year-old Rosemary Calandriello in 1969. The teenage girl's body has never been found. This article by Home News Tribune reports that no court date has been set for the collection of the money. The Star-Ledger has this story on the case.
Earlier this year, I debated the death penalty with Timothy Ford at Seattle University. As usual, I cited the new generation of deterrence studies, including the Dezhbakhsh, Rubin, and Shepherd study at Emory University and the Mocan and Gittings study at University of Colorado, among others. Mr. Ford responded with an allegation I had never heard before. He stated that studies I was relying on had been funded by right-wing organizations with a pro-death-penalty agenda.
Never having heard this claim before, I did not immediately have the facts to refute it. I do now. The claim is false.
Larry Griffin has been one of the anti-death-penalty crowd's favorite examples of an innocent person wrongly executed. The St. Louis Circuit Attorney investigated the claim and released a report today. The announcement is here, with links to the full report, an executive summary, and a press release. According to the press release, many of the "facts" promoted by Griffin's supporters are simply false. Why are we not surprised? Jim Salter reports the story for AP.
Along similar lines, the Bexar County (San Antonio) District Attorney's Office issued this report on June 26 on the Ruben Cantu case.
In June 1973, in Alameda, California, Jesse R. Crisp murdered a 21-year-old sailor stationed on the USS Enterprise. California had no death penalty at the time.
Last Sunday, Crisp, who now calls himself Jesus Jihad, was arrested for stabbing his wife to death and wounding her 15-year-old son and her sister. See stories by Harry Harris at the Oakland Tribune and John Coté at the SF Chron.
The June issue of NIJ Journal has an article by Marilyn Moses and Cindy Smith titled "Factories Behind Fences: Do Prison ‘Real Work’ Programs Work?" They describe the results of a study on the rehabilitative benefits of employment within prison. However, as noted in a sidebar, the study has a major flaw. Prisoners volunteer for employment, and hence the groups being compared differ in a way other than the "treatment." A valid experiment requires random selection to experimental and control groups. Even so, it is good that this neglected component of rehabilitation is getting some attention.
Fear of putting American workers out of work has long hindered prison industries, but the reality today is that there are large swaths of the economy that are almost entirely imports. We should be putting prisoners to work making goods in those segments to at least partially offset the cost of their incarceration. If the work has rehabilitative effect, as Moses and Smith suggest, so much the better.
Senate Report 110-90 on the Habeas Corpus Restoration Act of 2007, S. 185, is available here. As seems to be de rigueur in habeas debates, the opposing parties lock horns over history. At page 7, the majority cites the flawed history that found its way into the Supreme Court's opinion in Rasul v. Bush, 542 U.S. 466 (2004). On pages 23-24, the minority responds with a long quote from the CJLF brief in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). See also Hamdan v. Rumsfeld, 464 F. Supp. 2d 9, 16-18 (D.C.D.C. 2006) (on remand).
The Terrorists' Court is the title of this NYT op-ed by former AAG Jack Goldsmith and Georgetown Prof. Neal Katyal. "The two of us have been on opposite sides of detention policy debates, but we believe that a bipartisan solution that reflects American values is possible. A sensible first step is for Congress to establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure."
The House Judiciary Committee is holding a hearing on the Libby commutation. Of course, clemency is an entirely discretionary power vested in the executive branch, so any claim to an oversight responsibility here is bogus. However, there may be some interesting points made on federal sentencing generally. All but one of the witness statements are on the site as of this writing, and the last will probably be added later.
Ninth Circuit - To Split or Not to Split? Vanderbilt Law School professor, Brian T. Fitzpatrick has an interesting article in today’s Los Angeles Times titled “Disorder in the court.” Fitzpatrick, a former clerk on the Ninth Circuit and U. S. Supreme Court points out that the justices spent an undue portion of the Court’s last term overturning Ninth Circuit Court of Appeals cases. In the last term, the Supreme Court reversed or vacated a total of 19 times out of 22 cases that were reviewed. As reported, lawyers, judges and legal scholars are in favor of splitting the Ninth Circuit because it “is so large and unwieldy.” Some who also propose the split do not see a relation between the size of the Ninth Circuit and the rate of reversals, but Fitzpatrick provides a mathematical explanation for a connection between size and the likelihood of out-of-the-mainstream results.
Cockfighting and Free Speech: Advanced Consulting and Marketing, which airs cockfights online, filed suit yesterday in Miami federal court claiming a ban on video of cockfighting violates the First Amendment. The company operates an online website that airs cockfighting that takes place in Puerto Rico, where it is legal. A lawyer for the company is arguing that the airing and selling of this video online is not crime. As reported by Adam Liptak with The New York Times, legal experts stated, “the question of whether the First Amendment allows the government to ban depictions of illegal conduct, as opposed to the conduct itself, is a difficult one.” Eugene Volokh is quoted saying the statute is unconstitutional, and he has a post on it at VC.
A scheduled execution in Texas was postponed yesterday evening for death row inmate Rolando Ruiz. A three-judge panel voted on the stay in the Fifth Circuit Court of Appeals for Ruiz. Two judges stated more time was needed in determining whether Ruiz’s argument that jurors should of been allowed to take into account the fact that he had a poor childhood and suffered from a substance abuse problem in the determination of his sentence. In prior appeals, Ruiz’s state appointed attorney failed to indicate this information to the jury. Ruiz would of become the 19th death row inmate executed in the state of Texas for this calendar year. AP writer Michael Graczyk has the story here and an earlier story here. On Monday, Crime and Consequences first reported on this murderer, who was hired to kill the victim by her husband and brother-in-law in a scheme to collect insurance money of the deceased.
The Eighth Circuit yesterday vacated the preliminary injunction against the execution of Arkansas murderer Don Davis. Davis "shot and killed Jane Daniel in the course of burglarizing her home in Rogers," Arkansas in 1990. Davis v. State, 44 S.W.3d 726 (Ark. 2001). Chuck Bartels has this story in the Pine Bluff Commercial. The Eighth Circuit opinion in Nooner v. Davis is here.
Once a state inmate's sentence of death has become final on direct review in the state's courts, there is no impediment to filing a § 1983 action challenging the constitutionality of a state's lethal injection protocol as long as lethal injection is the established method of execution, the protocol is known, and no state administrative remedies are available.
Relying on Gomez v. U. S. Dist. Court for the N. Dist. of Calif., 503 U.S. 653, 653-54 (1992) and Cooey v. Strickland, 479 F.3d 412, 421-22 (6th Cir. 2007), the court holds that Davis's belated challenge is untimely.
Dakota Voice (South Dakota) has this article today titled “Death Penalty Polls: Support Remains Very High” by guest columnist Dudley Sharp with Justice Matters. Sharp’s article finds that 66% of Americans believe capital punishment is acceptable according to a May 2007 Gallup Poll. As noted in the article, the death penalty for terrorists is supported by a whopping 79%, including some of the same people who are against the death penalty in general. The article is definitely worth reading.
South Dakota execution: After a 60-year drought, South Dakota has an execution scheduled tomorrow for murderer Elijah Page. 19-year-old Chester Allen Poage, a witness to a theft, was tortured, beaten, and murdered in 2000 by Elijah Page, Briley Piper and Darrell Hoadley. Piper is also on death row for the killing, while Hoadley is serving a life sentence in prison without the possibility of parole. 25-year-old Elijah Page has asked to end his appeals and speed up his death sentence. However, his attorney has stated that Page can still call off his own execution and restart the appeals process if he chooses to do so. South Dakota’s Argus Leader article states that this particular case is “unusual because a judge, not a jury, imposed the death sentence.”
Rosebirds in the Garden (State): Joel Jacobsen at Judging Crimes has this entertaining (if not quite 100% accurate) post comparing the current New Jersey Supreme Court with the pre-1986 California Supreme Court in death penalty matters.
Crack: Debra Saunders at the SF Chron weighs in on the crack/powder problem and the Biden bill.
The Washington Post on Sunday had this article by Shankar Vedantam on a claimed link between lead exposure of children and crime rates years later when the children grow up. One red flag that immediately goes up is Vedantam's determined effort to spin the story into an anti-Giuliani piece. Another is that is seems unlikely that a factor such as this could explain a sharp drop in crime in a short period. If a cohort of children is exposed to sharply less lead than the cohort before, both cohorts are in the population for a long time, and if one is less crime-prone than the other, the drop would be gradual.
Steven Levitt has this skeptical post at Freakonomics Blog.
A federal appeals court ruled on Friday that search warrants are not necessary when monitoring a suspect’s computer use to the extent of determining e-mail addresses and viewed web pages. The Ninth Circuit stressed that computer users “should know they lose privacy protections with e-mail and Web site addresses when they are communicated to the company whose equipment carries the messages.” More on this story by Bob Egelko of the San Francisco Chronicle is here. The opinion in United States v. Forrester is here.
AEDPA Constitutionality: Also in the Ninth Circuit, the argument that the "deference" standard of the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional was rejected yet again in Crater v. Galaza.
Rolando Ruiz shot and killed 29-year-old Theresa Rodriguez in 1992 in Texas. Ruiz was hired to kill Rodriguez by her own husband and brother-in-law, in hopes of collecting a quarter-million dollars in life insurance on her. Michael Graczyk of AP reports that the execution is scheduled for tomorrow. Ruiz was arrested on a tip received after Ms. Rodriguez's employer, San Antonio-based insurance company USAA, posted a reward. In his appeal for clemency, Ruiz claimed that the jurors at his trial were not able to fully consider his "abuse excuse" evidence. The Texas AG news release dated last Tuesday has more details on the crime and penalty phase.
SCOTUS Stats: Ben Winograd has some statistics on criminal and related cases in the Supreme Court term just ended at SCOTUSblog.
Only in LA: Police are searching for Chewbacca on charges of sexually assaulting Marilyn Monroe in front of the Kodak Theatre in Hollywood. Actually, they were both impersonators. The LA Daily News has this story.
Page the Ents: A man robbed the Citizens Bank in Manchester, NH Saturday while disguised as a tree. "He really went out on a limb," Sgt. Ernie Goodno is quoted saying in this AP story. James Coldwell was arrested for the crime the next day.
One of the favorite tricks of mathematical prestidigitators is to keep the audience's eyes on the numerator while slipping something fishy into the denominator, producing a startling ratio. This article by Terry Woster in the Argus Leader (Sioux Falls, SD) contains a good example.
Almost one of every nine persons sentenced to death since 1977 has asked, as Elijah Page did in South Dakota last summer, to have all legal appeals ended and the execution carried out, a University of Colorado death penalty scholar says.
Those of us working the field immediately suspect that so-called "volunteers" aren't that common, and indeed they are not. It turns out the numerator of 126 volunteers is placed over a denominator of 1083 executions to yield the 1/9 ratio. But there is a vast difference between the number of people sentenced to death and the number executed. It's about a factor of 7. See BJS, Capital Punishment 2005. So that 1/9 is really more like 1/63.
Controversial economist John Lott has released a new book titled "Freedomnomics," apparently a takeoff on Steven Levitt's "Freakonomics." The Amazon page is here. All the press on the book so far seems to be from conservative media sources.
Catherine Herridge of Fox News has an interview with Lott here (halfway down), focusing on his criticisms of a report by the Police Executive Research Foundation. Lott says PERF engaged in data "cherry picking" to produce misleadingly high crime numbers.
Then there is this column by Ann Coulter. Even taking Ms. Coulter with the requisite grain of salt, it appears there are some crime-related nuggets in the book. Perhaps the real reason that Democrats are so enthused about giving felons the right to vote is not a high-minded concern for the disparate impact of disenfranchisement laws, but rather because felons vote overwhelming for Democrats.
It looks like an interesting book, and I'll have to pick one up before my next long plane trip.
Seeking Justice: A story by Jeff Mangum from the Orange County Register discusses the 17-year ordeal of an Arizona woman whose 9-year-old daughter was stabbed to death in 1990. The murderer, who was an 18-year-old drug addict and prostitute at the time, confessed to killing the little girl in order to burglarize their home for money and valuables to feed her drug habit. Since "Rosie" Alfaro was sentenced to death in 1992, her case has dragged on through the appellate courts.
Wiretapping Terrorists: A divided panel of the Sixth Circuit has overturned a lower court ruling which had held as unconstitutional the government's warrantless electronic surveillance of international communications by suspected terrorists. A Bloomberg story by Robert Schmidt reports the court's decision announcing that the ACLU and others lacked standing to challenge the surveillance.
In Schroeder v. Tilton, No. 06-15391, the Ninth Circuit rejected an Ex Post Facto challenge to a retroactive change in California evidence law. The change broadened the admissibility of prior sex offenses in sex crime cases. The state court found the change distinguishable from the one in Carmell v. Texas, 529 U.S. 513 (2000). "The decision of the California courts was neither contrary to nor an unreasonable application of clearly established Supreme Court law under Carmell."
I previously noted here an article by Charles Keckler in the Journal of Law, Economics, and Policy. I said that we would not be adding it to our deterrence abstracts list because JLEP is not a peer-reviewed journal. Turns out that although JLEP is published by a law school and run by students, the articles are peer-reviewed. We stand corrected and have added the article to our collection of abstracts.
For those who like to keep track of these things, the last docket numbers for the term just ended were 06-1723 on the paid docket and 06-12132 on the in forma pauperis (IFP) docket, which began with 06-5001. Thus, there were 8855 cases filed, with about 80% being IFP. The Court decided 75 cases, 12 IFP and 63 paid. If we overlook the timing difference (cases are sometimes decided in the term they are filed and sometimes not), that means certiorari is granted in about 1 of 27 paid cases and 1 of 594 IFP cases.
The Clerk begins numbering incoming cases with the new term as soon as the Court adjourns for the summer, even though the new term does not formally begin until the first Monday in October.
With the end of the U. S. Supreme Court's term, there is lots of discussion in the press and the blogosphere of the 5-4 decisions, Justice Kennedy's remarkable position as the deciding vote in all 24 of them, and of the more conservative direction of the court, usually exaggerating the latter point.
A perennial end-of-term topic that hasn't received much attention this year is the rate of reversal of the various federal circuits. As I have noted in previous years, simple reversal rate doesn't mean much. The Supreme Court reverses most of the decisions it accepts for full review, 72% this term according to SCOTUSblog. Reversal by a 5-4 Supreme Court generally indicates the issue was close, and there was plenty of room for disagreement. More telling is the number of decisions reversed by a Supreme Court that is unanimous or nearly so. Given the ideological spread on the Court, a large number of reversals with no votes or only one vote to affirm indicates a problem.
I tallied the regional, numbered federal circuits, relying on SCOTUSblog's statpack for the votes. (The Federal and D.C. Circuits have a different mix of cases and aren't comparable. Certiorari to state courts is granted too sporadically to get much of a sample.)
By my count, there were 23 cases where the lower court judgment was reversed or vacated without dissent or with only one dissenting vote. Of these, 11, or nearly half, came from the Notorious Ninth. The Ninth is large, to be sure, but it comprises less than one-fifth of the national population. Its proportion of these cases is out of whack even considering its size. If we look only at 9-0 reversals, it's even worse: 9 of 17.
As noted here, there is some indication that the Ninth is beginning to clean up its act and granting rehearing en banc more often to rein in its rogue panel decisions. It has got a long way to go, though.
Vacancies on Conservative Court
Larry O'Dell of the AP has this story on the high vacancy rate in the U.S. Court of Appeals for the Fourth Circuit, which is "prompting concerns about its ability to resolve cases promptly." University of Richmond law professor, Carl Tobias explains that it will be difficult to get conservative judges confirmed as the Presidential election approaches. "In 2008 it's going to be toughter. The sooner Bush moves, the more likelihood he can have them confirmed," Tobias said.
State defends death penalty in Addison case
The New Hampshire Union Leader reports that the prosecutors in the Addison case are saying that his defense team is misreading the capital murder law. Addison's lawyers argue that the state Supreme Court has not written special rules to handle a death sentence appeal and that the high court's failure to do so violates his constitutional rights to due process and adequate representation. Michael Addison, 27, of Manchester, is charged with capital murder for allegedly shooting Officer Michael L. Briggs, 35, once in the head Oct. 16 while the bicycle patrol officer pursued him on foot in a city alley.
Imprisoned rapist is indicted in new case
The AP has this story in Cleveland.com regarding the new DNA evidence that linked Earl Mann to the crime that was blamed on another man. Earl Mann, now a convicted child rapist, just happened to be serving time at the same prison as the man accused of the 1998 rape and murder of Judith Johnson and the beating of her six-year-old granddaughter. Clarence Elkins, the man accused of murdering his mother in law, had maintained his innocence. He managed to get the DNA from inside the prison after his wife had done some investigative work of her own. Clarence picked up a cigarette butt that Mann put down and mailed it to his lawyer for testing. Mann's DNA came back as a match for evidence found at the crime scene.
Easy Living on Death Row
Here is an interesting report by Rob Amen of the Pittsburgh Tribune Review regarding Life on Pennsylvania's death row. He talks to Ken Hairston who sits on death row for bludgeoning to death his wife and 14-year-old son in 2001. Hairston describes his life on death row and that he is confident that he won't die in prison. "I'm comfortable, very comfortable," said Hairston. His execution date has not yet been set.
Text Busters: The Wall Street Journal has an interesting article by Li Yaun on the use of text messaging to track down criminals. Police agencies distribute information about a crime and suspect via text to cell phone users, who can text back if they spot him, stolen property or other critical information. This tool is currently being used more in Europe and Asia than in the U.S.