November 2007 Archives

DNA Testing

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The Ninth Circuit today upheld Congress's expansion of DNA testing to persons convicted of any felony in United States v. Kriesel, No. 06-30110. The previous decision in Reynard upheld an earlier version of statute, which included a list of mostly violent felonies. The Supreme Court denied certiorari in Reynard on Monday, noted here. Today's decision is by Judge McKeown. Judge B. Fletcher dissents.

News Scan

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Anti-Gang Injunctions have been used for over a decade in Los Angeles to drive street gangs away from crime-infested neighborhoods. The city is now seeking to expand these injunctions to include drug dealers as reported in this AP story. The injunctions would focus on the city's skid row district, which accounts for 20% of the local drug trade.

Prostitution could become a federal crime if Congress reauthorizes the federal human trafficking statute adopted eight years ago. A provision added to the statute would add prostitution to the other crimes in the measure according to this Washington Post story. The Justice Department is opposing the change.

ABA Blawg 100

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The American Bar Association Journal has a list of 100 top legal blogs (or "blawgs") here. We are somewhat surprised to find ourselves on it, in the crime section. (Hat tip: How Appealing.)

Photos, NPR Radio, and the Media

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The Last Psychiatrist has posted "Which Is Worse: An Altered Photo of Reality, Or A Photo That Alters Reality?" which examines the use of doctored photos in the media and a special issue of the journal Applied Cognitive Psychology. Always entertaining, the anonymous Last Psychiatrist offers a jab at NPR listeners, the media, and the authority of news accounts. Worth a quick read.


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The California Supreme Court decided today that a criminal court can order restitution to the spouse of a homicide victim for the lost support the victim would have provided. The opinion in People v. Giordano, S138382 is here. Justice Moreno wrote the opinion, joined by 5 others. Justice Kennard dissented.

Engaging Commentary

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Volume 8, number 4 of Engage, The Journal of the Federalist Society's Practice Groups is now available here. Criminal law articles include:

Minding Moral Responsibility: The Supreme Court's Recent Mental Health Rulings by Steven K. Erickson

Genetic Information and Privacy Interests: The DNA Fingerprinting Act by Ronald J. Rychlak

Sanctuary Cities and the Second Circuit's Challenge in New York v. U.S. by Marc Harrold

Making Prisons Compete: Private Prisons and the Demands on the Public System by Geoffrey F. Segal & Alexander McCobin

Book Review: Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case by Stuart Taylor, Jr. & K.C. Johnson, Reviewed by Michael Madigan

SCOTUS Orders List

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The U.S. Supreme Court issued its orders list from the pre-Thanksgiving conference. No new cases were taken for full briefing and argument. The court denied certiorari in Reynard v. United States, No. 07-5195, a challenge to DNA testing of federal prisoners. The Ninth Circuit opinion is here. CJLF's briefs in two companion cases are here and here.

The Court also turned down the case of Arthur v. King, No. 07-397, in which an Alabama death row inmate decided that he needed some additional DNA testing 25 years after the killing and five days before the state set an execution date. The Eleventh Circuit denied the claim. "The evidence which he seeks is the same evidence that was considered by the district court during his habeas corpus petition and which will not clearly exonerate him." "There was no justification for Arthur’s failure to bring his request for physical evidence for DNA testing earlier to allow sufficient time for full adjudication on the merits of this claim." AP reports here.

Lyle Denniston at SCOTUSblog has this post on other certiorari denials, including search as a condition of welfare, police officer immunity, and a faith-based program for "troubled youth."

The Court summarily affirmed a three-judge district court's rejection of a voting rights challenge in Alabama.

News Scan

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Sex Offender Law Overturned: The Georgia Supreme Court has overturned the state law placing residential restrictions on registered sex offenders as reported by this AP story by Greg Bluestein. The decision in Mann v. Georgia Dept. of Corrections is here. Twenty-two states currently have some type of restriction on where registered sex offenders can live.

Death Penalty: A New Jersey Senator told reporters at a press conference yesterday that Democrats are trying to ram a bill abolishing the death penalty through the state legislature during the current lame duck session. The senator's request to delay the vote and allow a more careful review of the issue is reported in a story by Jeremy Peters in today's New York Times.

Illegal Immigrants in San Francisco will be entitled to receive a municipal identification card beginning next August according to this story by Javier Olvera in the San Jose Mercury News. The cards will be considered legitimate ID for city services. This adds to the city's sanctuary policy which currently prohibits city employees and police from inquiring about anyone's immigration status.

Parole for Murderers is the subject of this Sacramento Bee editorial entitled "Young lifers deserve at least a chance at parole". The article confirms the suspicion that if death penalty opponents were successful at abolishing capital punishment, they would then focus on eliminating the sentence of life without parole. A report by the University of San Francisco Center for Law and Global Justice is cited for its startling conclusion that "life without parole is an effective death sentence carried out by the state slowly over a long period of years."

Cal. Capital Appeal Proposal

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The California Supreme Court has issued this press release with a proposal to modify the system of appealing all capital cases directly to the Supreme Court. In noncapital felony cases, the appeal lies to the intermediate appellate court, the Court of Appeal, and review in the Supreme Court is discretionary. For capital cases, the California Constitution presently vests the appeal exclusively in the Supreme Court. That court has a huge backlog.

There is much to be said for moving most of the load to the Courts of Appeal. There are simply more of them, and at least in theory more hands should make quicker work. Although as Latzer and Cauthen have pointed out, a two-stage process is generally slower than one stage, that is not necessarily true where the one stage is overloaded to the point of breakdown.

However, we know from experience that there are many judges who approach capital cases looking for an excuse to reverse. We saw it in the California Supreme Court through 1986. We see it in the Ninth Circuit today. We would doubtless see it in the California Courts of Appeal if they had jurisdiction. Allowing a simple majority of a three-judge panel to overturn a death sentence with only discretionary review of that decision would mean that affirmance or reversal depends as much on what panel is drawn as it does on the merits of the case.

This proposal addresses that issue by requiring the California Supreme Court to review the decisions and allowing summary affirmance only if the court agrees that the Court of Appeal decision is correct. In theory, at least, this is different from the discretion to review the case or not that the California Supreme Court has in noncapital cases and the United States Supreme Court has in almost all cases.

In practice, though, is there really a difference between summary affirmance and denial of certiorari or review? By the time the U.S. Supreme Court's mandatory appeal docket was shrunk to its present size, there was not a lot of difference.

This is an idea worth considering, along with other possibilities. The change would require a constitutional amendment, though, and getting 2/3 of California's present Legislature to approve anything positive is a longshot. It might require an initiative.

Deterrence in the NYT


We have some more major media attention to the modern generation of deterrence studies. Last June, an Associated Press article noted here caused quite a stir. Today, Adam Liptak has this balanced story in the New York Times. He quotes two of the authors of studies finding deterrence as saying they are personally opposed to the death penalty for other reasons. I think that is significant. As noted here, scholars doing these studies have been attacked, sometimes with patently false allegations. Not only are these studies not driven by an ideological agenda, but in some cases they actually point in the opposite direction from the authors' personal position on the death penalty question.

Federalist Society

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Here is some coverage of the Federalist Society convention: Fred Lucas of CNS News on Justice Thomas's talk Thursday; Robert Barnes of the Washington Post, on the Thursday night dinner with remarks by President Bush and by Justices Scalia, Thomas, and Alito; and Blog of the Legal Times on today's Barbara Olson Memorial Lecture by Chief Justice Roberts.

None of the press coverage I have seen picked up on what I thought was the most interesting remark in Justice Thomas's talk. An audience question began with the premise of his "commitment to natural law." He rejected the premise. He said natural law was an important concept in the philosophy that went into the Constitution, so one needs to understand it to understand the document, but he has never made natural law itself a basis for judging. That was very good to hear. When "natural law" is used as a basis for judicial review of statutes, it carries the danger of greasing the already slippery slope to judicial activism.

Also on today's program was a debate between Judge Reinhardt and Judge Kozinski of the Ninth Circuit on property rights. In the middle of a property rights debate, Judge Reinhardt managed to get in a swipe at the Antiterrorism and Effective Death Penalty Act of 1996's limitations on habeas corpus. Really.

News Scan

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Federal Agents have raided the headquarters of a anti-government group which has allegedly printed $20 million of its own paper currency and minted several tons of coins according to this Associated Press story by Ryan Lenz.
The group, called the National Organization for the Repeal of the Federal Reserve and Internal Revenue Code, claims that its money is backed by silver stored in Idaho. Among the coins sized were two tons of copper dollars featuring GOP presidential primary candidate Ron Paul.

Wiretapping: The Ninth Circuit has gutted an Oregon Islamic group's lawsuit that claims the federal government has illegally wiretapped it, as reported in the AP story by Paul Elias. In its unanimous ruling the three-judge panel held that a top secret call log, mistakenly turned over to lawyers representing the plaintiffs by the Treasury Department, cannot be used as evidence. The Ninth Circuit's ruling upheld an earlier District Court holding that the call log could not be used.

Street Gangs: An Orange County Superior Court Judge has approved a preliminary injunction declaring the Varrio Viejo street gang a public nuisance and barring it from claiming San Juan Capistrano as its turf, according to this AP report by Gillian Flaccus. The injunction, which allows police to arrest gang members who congregate in designated areas, is similar to those used in Los Angeles and other California cities, to drive gangs out of neighborhoods they have claimed.

Supreme Court Halts Schwab's Execution

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The United States Supreme Court has stayed the execution of Mark Schwab. The order can be found here. Schwab was scheduled for execution at 6pm tonight. If the execution had gone forward Schwab would have been the first inmate executed under Florida's new lethal injection protocol.

Ron Wood's article for the Associated Press can be found here.

This stay was issued in connection with the U.S. Supreme Court's direct review of the Florida Supreme Court's decision, discussed here, not the separate federal suit that was the basis for the district court stay lifted by the Eleventh Circuit this morning. The Florida Supreme Court, unlike the Mississippi Supreme Court in the Berry case, considered the claim on the merits, so the independent state ground noted by the U.S. Supreme Court in Berry is not applicable.

USCA 11 Lifts Schwab Stay

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The U.S. Court of Appeals for the Eleventh Circuit has vacated the stay issued yesterday and noted here.

The district court’s action in granting the stay is contrary to the unequivocal law of this circuit that because grants of certiorari do not themselves change the law, they must not be used by courts of this circuit as a basis for granting a stay of execution that would otherwise be denied.

* * *

After carefully considering the evidence on which Schwab bases his claim ... the Florida Supreme Court held that regardless of which standard the Supreme Court chooses in the Baze case, the result will be the same insofar as the Florida procedures, protocols, and drugs are concerned.... The evidence that Lightbourne and Schwab rely on does not show that those procedures, protocols, and drugs pose an unnecessary risk of pain.

Politics and Funding at NIH

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Shelly Batts over at Retrospectacle has a post titled, Bush Vetoes NIH Budget And Open Access Bill that is highly critical of the Bush administration's funding of the National Institute of Mental Health. It may be good policy to generously fund NIH as Batts points out -- and I've been critical of some of the funding decisions NIH has made -- but there's more to the story than Batts discusses.

Critics have aptly noted that what gets funded at NIH raises important questions about the Institutes's mission and priorities. Moreover, what Batts doesn't fully discuss -- but her graph alludes to -- is the fact that between 1998-2003 the NIH budget doubled. That's impressive growth for a governmental agency by any measure. Furthermore, while Batts criticizes the Bush administration's spending of $43 billion on military intelligence, it is hardly surprising that the government would allot generous funds for this purpose in a post-9/11 world.

I am sympathetic to those who decry the decline in funding at NIH. After all, grant funded research is difficult enough with the endless bureaucracy entailed with it, the lack of job security, and difficulty in obtaining promotion. Spending money on science and health services research seems a wise investment as it often provides a direct benefit to the public as Batt's points out in her post. But honesty also demands that we acknowledge that few agencies can be expected to sustain the growth that NIH enjoyed in the distant past.

Florida District Court Stays Execution

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Noting that it "would not issue this stay absent the Supreme Court's grant of certiorari in Baze", the District Court for the Middle District of Florida decided to stay the execution of Mark Dean Schwab today. The court's decision can be found here.

In reaching her decision, Justice Anne C. Conway reasoned that in light of the U.S. Supreme Court's decision to grant certiorari in Baze, Schwab had met his burden of showing a "significant possibility of success on the merits of his claims" that Florida's lethal injection protocol violated Eighth Amendment protections against cruel and unusual punishment. "Success on the the merits" of claims is just one of the four criteria a judge must weigh when determining whether to grant a stay. The others include: the strong presumption against issuing a stay when the inmate could have brought the claim earlier; protecting the state from speculative suits; and most importantly, the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts. Justice Conway ultimately determined that in Schwab's case, federal court interference was not "undue" since postponing execution only a "short time until Baze is decided" was not impermissible interference with Florida's execution process. The Florida Attorney General is appealing the decision (view Florida Today's report here) but if the appeal fails Schwab will not be executed under Florida's new protocol until the U.S. Supreme Court issues its decision in Baze, .

The Associated Press report on the decision can be found in the International Herald Tribune. The Orlando Sentinel also has an article by Sarah Lundy.

Programming Note

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My contributions to the blog will be spotty this week, as I am traveling to Washington for the convention of the Vast Right-Wing Conspiracy Federalist Society.

News Scan

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Arave v. Hoffman: Our post last Monday discussed this Supreme Court case involving a death-sentenced murderer claiming ineffective assistance because his lawyer did not accept a plea bargain. Today's Los Angeles Daily Journal has this OpEd by CJLF Legal Director Kent Scheidegger expanding on the issues involved.

Second Amendment: Next Tuesday, the Supreme Court will announce whether it will hear a challenge to the DC Circuit's decision last March which overturned the district's ban on the possession of a functional firearm in a private residence. The number of participants listed on the first three pages of the decision, and Google's listing of 277 news stories covering the case, indicate strong interest in this issue. A story by Lee Ross of Fox News provides some background.


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The U.S. Supreme Court released its orders list from Friday's conference this morning. No criminal cases were granted. One of the Confrontation Clause cases we were following, Cage v. California, was denied. Prior post on Cage is here.

Daily Writ tallies humor in oral argument here. They count the number of times "(Laughter)" appears in the transcript following a justice's question or statement. In order: Scalia, Roberts, Stevens, Breyer, Souter, Kennedy, and Alito. Goose eggs for Thomas and Ginsburg.

News Scan

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More from New Jersey: As posted below, the New Jersey Legislature has promised to vote on a proposal to abolish the state's death penalty before adjourning on January 8. An article by Lynda Cohen in today's Atlantic City Press discusses how Sharon Hazard-Johnson, whose parents were murdered during a 2001 robbery feels about this. Richard and Shirley Hazard were beaten and stabbed to death by Brian Wakefield, who is on death row waiting for the legislature to let him off the hook.

Texas is often portrayed as the most likely state for a murderer to receive a death sentence, but according to an investigation by the Dallas Morning News, 120 murderers have received the lightest sentence, probation, over the past eight years. An Associated Press story released Sunday, reports that many of the killers given probation are habitual criminals and that at least three had prior murder convictions.

Surrender in New Jersey?

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Tom Hester of AP has this story on the forthcoming vote to change New Jersey's abolition of capital punishment from de facto to de jure, and this one on the politics of saving the vote for the "lame duck" session. New Jersey is the opposition's exemplar of the war-of-attrition strategy. Compliant courts obstruct the death penalty and render it ineffective and expensive, so that people who would normally support it simply give up.

The story quotes Assembly Speaker Joseph Roberts saying, "The New Jersey death penalty has become a paper deterrent, the epitome of false security." True, so why not fix it? When I testified to the New Jersey Commission last year, I was appalled at how little interest there was in fixing it. Only one member seemed interested in even considering that approach.

Certainly there is no point in maintaining the status quo in New Jersey. The choices are to mend it or end it. Mending it means fixing New Jersey's disgrace of a state supreme court, and that would require a constitutional amendment. I doubt the political will exists to do that. Does the New Jersey Legislature have the will to openly admit that the state chooses to sacrifice the lives of the innocent to save the guilty? We'll see.

Mukasey Confirmed

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The Senate confirmed Michael Mukasey to be U.S. Attorney General. Dan Eggen and Paul Kane have this story in the Washington Post, reporting that the 53-40 vote is the lowest since 1952. That narrow margin for this well qualified nominee is a reflection on the Senate, not the nominee. Backbone Awards go to Senators Feinstein, Schumer, Bayh, Carper, Landrieu, Nelson, and Lieberman.

CQ on Prosecutor Misconduct

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The Nov. 9 issue of CQ Researcher (subscription) is a look at prosecutor misconduct issues by Ken Jost. It discusses the Duke rape case, the Jena 6 controversy, and several other cases. The "At Issue" opinion pieces are on the question "Should it be easier to sue prosecutors for misconduct?" Joshua Marquis, DA of Astoria, Oregon, wrote the con and Margaret Johns of UC Davis wrote the pro.

Although arguably a different topic, it would be good to see some discussion of defense attorney misconduct to provide context.

The Florida Supreme Court denied Mark Dean Schwab's and Ian Deco Lightbourne's motions for rehearing yesterday. Schwab's denial can be found here, and Lightbourne's denial can be found here.

In a 5-2 decision, the Florida Supreme Court also denied Schwab's Motion to Stay Execution. This means Schwab's execution might take place next Thursday, November 15, 2007. The Florida Supreme Court denial of stay can be found here.

News Scan

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Capital Punishment: The annual United Nations anti-death penalty resolution lost a sponsor nation this year as reported in this Associated Press story. Canada, which abolished the death penalty 31 years ago, announced yesterday that it would end its sponsorship. This follows last week's announcement, posted earlier, by the Canadian government that it would no longer fight to commute the death sentences of its citizens in foreign democracies.

Emergency DP Appeals in Texas can now be filed via email. The Texas Court of Criminal Appeals announced the change in policy Tuesday, according to this report from Reuters. This follows the protest by defense groups after the Court refused to accept a last-minute appeal to delay the September 25 execution of Michael Richard, who was sentenced to death for the rape, burglary and murder of a nurse in 1986. An Associated Press story reports that Richard's wife has filed a federal lawsuit against Presiding Judge Sharon Keller for unspecified damages, alleging that Keller violated the "open courts" provision of the Texas Constitution.

Call for Papers

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For those who may be interested:


Special Issue on The Neuroscience of Decision Making and the Law

Behavioral Sciences and the Law announces a forthcoming special issue on the neuroscience of decision making and the law, to be co-edited by Steven K. Erickson, J.D., LL.M., Ph.D. and Alan R. Felthous, M.D., Manuscripts that address the following issues are especially welcome: Neuroscience and neuroimaging results of areas of moral judgment; the impact and limitations of such finings on legally relevant behavior; neuropsychiatric, neuropsychological and genetic disorders which impinge on intent and responsibility. Original research reports and forensically relevant literature reviews will be included.

PBS Death Penalty Podcast

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PBS's Insider Forum, an online supplement to the News Hour with Jim Lehrer, has audio and a transcript of a discussion of the death penalty with CJLF's Legal Director Kent Scheidegger and the Constitution Project's Virginia Sloan.

News Scan

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Arave v. Hoffman, 07-110: Linda Greenhouse at the New York Times has this story on the case of the Idaho murderer who argues that his conviction is invalid because his attorney failed to agree to a more favorable plea bargain. Our post Monday provides more details.

Rapist-killer Mark Dean Schwab is the next Florida murderer scheduled for execution as reported by Fred Grimm in today's Miami Herald. The story suggests that death penalty opponents will get very little traction with Floridians with this killer, whose own attorney chose a bench trial because "any jury anywhere in Florida, in our estimation, was going to recommend death."

Ryan heading to Prison: The former Illinois Governor who, on his last day in office, commuted the death sentences of every murderer on death row, will start serving his prison sentence for racketeering and fraud tomorrow. A story in today's Chicago Sun-Times by Mike Robinson reports that Ryan's last ditch appeal for bail was denied today by Supreme Court Justice John Paul Stevens.

The Irons Case Exits

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The seemingly mundane parole case of Irons v. Carey gained national attention with a bang on May 18, 2005, when the Ninth Circuit panel sua sponte asked for briefing on the question of whether the deference standard for federal habeas review of questions already considered by the state courts, 28 U.S.C. § 2254(d)(1), is constitutional. That question had been thought to be long settled, as every circuit to consider the question, including the Ninth, had decided it was.

CJLF's brief is here. Prior posts are here, here, here, here, and here.

Today, the case ended with a whimper as the Ninth denied rehearing en banc. The dissent, surprisingly, is from Judges Kleinfeld and Bea, protesting the opinion's dicta and Ninth Circuit precedent obscuring the line between holding and dictum. Not a peep about AEDPA from the authors of the previous grousing concurrences.

It would appear that there is very little enthusiasm on the court to produce an en banc opinion that would surely be smacked down in short order by the Supreme Court. That is a hopeful sign. The Ninth will not be a conservative or even middle-of-the-road court in the foreseeable future, but at least the fringe is no longer running things.

The current issue of the American Journal of Psychiatry has an interesting article form researchers at Duke University, titled "Childhood Psychiatric Disorders and Young Adult Crime: A Prospective, Population-Based Study." Briefly, the researchers followed several cohorts of adolescents for several years and examined the link between childhood mental illness, juvenile delinquency, and arrests for crimes as adults. As other studies have shown, there is a link between mental illness and criminal behavior, and the current study supported these findings:

Nearly half of the young adults with criminal record in our sample had a history of mental illness, as compared to with one in three male or one in four female young adults with no criminal history (p.1672).

But there are some caveats here worth noting.

Today the U.S. Supreme Court granted certiorari in the Idaho murder case of Arave v. Hoffman, No. 07-110. The panel opinion is here. The denial of rehearing en banc, with dissent by Judge Bea and six others, is here. SCOTUS blog has the petition and the brief in opposition. The case involves a claim of ineffective assistance of counsel in the plea bargaining stage of the proceedings.

Siebert Reversed

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The Supreme Court, 7-2, summarily reversed a decision of the Eleventh Circuit in Allen v. Siebert this morning. The 11th's opinions in the case can be found at 334 F.3d 1018 and 480 F.3d 1089.

A state prisoner has one year from the completion of his direct appeal to file a federal habeas petition, but the period is tolled during the pendency of a "properly filed" state collateral review petition. Untimely petitions are not properly filed for this purpose. The Supreme Court said in Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005), "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of [28 U.S.C.] § 2244(d)(2)," quoting Carey v. Saffold, 536 U.S. 214, 226 (2002). The Eleventh Circuit tried to weasel its way around this unequivocal holding by distinguishing jurisdictional time limits, like the one in Pace, from nonjurisdictional ones, ignoring the facts that (1) Saffold also involved a nonjurisdictional limit, and (2) the jurisdictional nature of the limit in Pace was barely mentioned in the opinion and no part of the analysis.

Today's decision is an appropriate rebuke of this evasion of controlling precedent. It is also a vindication for the district judge, who correctly read Pace as inconsistent with the Eleventh's first opinion in this case, only to be tersely reversed by a now-discredited opinion by Judge Barkett.

CJLF filed an amicus brief in support of the State of Alabama in this case.

DSM v. Freud

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The Diagnostic and Statistical Manual of Mental Disorders (DSM) is an influential work that comes up in nearly every criminal case with a mental issue. In Saturday's Wall Street Journal, Paul McHugh of Johns Hopkins U. reviews Shyness: How Normal Behavior Became a Sickness, by Christopher Lane. McHugh credits Lane with a revealing look at how the DSM-III (1980) was prepared and how it was a reaction to Freudian psychoanalysis. "He is also right in observing that the [DSM] errs by designating [shyness and] other kinds of normal human variation as mental disorders and so exaggerates the incidence of mental illness." This is, in part, a product of the DSM's "field guide" approach to mental diagnosis, identifying mental disorders with checklists of characteristics similar to those used by birdwatchers to identify birds.

McHugh parts company with Lane on where to go next. He says that Lane, a professor of literature, not psychology, has a fondness for psychoanalysis and thinks the profession should return to it. Absurd, says McHugh. "Today, Freud is deader than Elvis. Nobody investigating psychiatric disorders is dancing to Freud's tunes." Overdiagnosis is a real problem and needs to be addressed, McHugh says, but not by going backward.

Of course, the DSM and its "field guide" approach identified by Lane and McHugh are not the only reasons for diagnosing normal human variation -- both variation between people and the ups and downs of one person's life -- as mental disorders. Here are a few others:

International Notes

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Canada: "The Conservative government has ended a long-standing federal policy of automatically seeking clemency for any Canadian facing the death penalty in a foreign country, CanWest News Service has learned. The decision is likely to seal the fate of Alberta-born Ronald Allen Smith, the only Canadian on death row in the United States, who faces a lethal injection in Montana for killing two men in 1982."

Australia: Prime Minister John Howard rejected criticism that his stance on the death penalty was hypocritical, reports ABC News. Earlier, Howard said it would be "a major injustice" if the Bali bombers were not executed in Indonesia, even though he opposes capital punishment within Australia.

In a post this morning, we noted an article in the Wall Street Journal on a deterrence study from two professors at Pepperdine. Most of the recent studies have been from economists, so it is interesting that a pair of academics from outside that discipline have looked at the same problem and come to the same basic conclusion.

There are a couple of indicators that warrant caution here, though. The estimate they give of 74 lives saved per execution is an order of magnitude greater than most of the previous estimates. I haven't been able to find a "working paper" version of the study on SSRN or by other search methods. It is difficult to judge methodology from an op-ed, so I'd really like to see the full paper. The authors' use of "until now" in the paragraph quoted in our previous post seems to imply they are unaware of the previous deterrence work.

At this point, we will neither endorse nor reject this study, but wait until we have more information.

Update: Prof. Summers has responded to my inquiry, "This article [in the WSJ] is our only publication so far on this subject." He has also provided the data and calculations in spreadsheet form.


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The effort by Los Angeles Police Chief William Bratton to clean up skid row has been difficult, primarily due to lawsuits by the ACLU and homeless advocates. A piece in today's Wall Street Journal by Heather McDonald points out that the agenda of these advocates appears more pro-criminal than pro homeless.

Yesterday the Supreme Court of Florida upheld Florida's Lethal Injection Protocol. The decision, Lightbourne v. McCollum, can be found here.

Lightbourne reached the Florida Supreme Court when the Governor put a halt to all Florida executions in 2006, after an inmate's lethal injection execution took "34 minutes, which was substantially longer than in any previous lethal injection in Florida." The Governor then created the Governor's Commission on Administration of Lethal Injection which held hearings and made recommendations to the Florida Department of Corrections ("DOC"). The DOC revised its procedures in May 2007. When a trial court found these procedures inadequate, the DOC issued new procedures in August 2007. It is the August 2007 procedures that Lightborne challenged.

Mukasey Nomination

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UPDATE: Senators Schumer and Feinstein declared their support for AG nominee Mukasey, making his confirmation "virtually assured," report Richard Cowan and Thomas Ferraro of Reuters.


Sen. Charles Schumer, who had recommended AG nominee Michael Mukasey, finds himself in a tough spot as fellow Democrats turn against the nomination over waterboarding. The Washington Post has an article by Dan Eggen and Paul Kane today. Memo to Senators: Have you forgotten you are the legislative branch? Just pass a law. Instead of grilling Judge Mukasey about whether he thinks waterboarding is legal, specify in a statute whether it is or not.

In the constitutional system of checks and balances, the separation of powers is not total. The President exercises legislative power in the veto. The Senate exercises executive power in its advice and consent function. There are a few other examples. These checks on other branches' powers are important, but they should be used sparingly. The President should sign almost every bill Congress sends him, and historically he has. Similarly, the Senate should confirm the vast majority of nominees, and historically it has. Using the advice and consent function to grill nominees regarding their interpretation of what the statutes presently allow is a misuse of that function. Instead of asking whether the nominee thinks that general law X allows specific practice Y, Congress can and should pass a statute specifically governing Y. If the members concerned about Y can't pass the statute because they can't convince a majority of their colleagues of their position, then the nominee's views are not so far outside the mainstream as to justify not confirming him.

New Deterrence Study


Roy Adler and Michael Summers of Pepperdine University have this op-ed in the Wall Street Journal on their new study on death penalty deterrence.

The conclusion that each execution carried out is associated with the saving of dozens of innocent lives creates an extraordinarily difficult moral dilemma for those who campaign against the death penalty. Until now, those activists could look into the eyes of a convicted killer, hear his or her sad story, work tirelessly to set aside the execution and, with that goal accomplished, feel good about themselves for having "saved a life." These data suggest that the moral equation is not nearly that simplistic.
It now seems that the proper question to ask goes far beyond the obvious one of "do we save the life of this convicted criminal?" The more proper question seems to be "do we save this particular life, at a cost of the lives of dozens of future murder victims?" That is a much more difficult moral dilemma, which deserves wide discussion in a free society.

Florida Injection Decision

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The Florida Supreme Court has rejected the Eighth Amendment challenge to the revised Florida lethal injection protocol. The opinion is "per curiam," meaning it is the opinion of the court as a whole with no designated author. Six of the seven justices joined the opinion. The seventh concurred in the result without a written opinion. The revised protocol provides for medically trained personnel to perform the needle insertion and for confirmation that the first drug has rendered the inmate unconscious before proceeding with the second and third.

Life Insurance

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Chutzpah award of the week goes to the infamous Scott Peterson, who actually tried to collect on Laci's life insurance. Cal. App. decision here. Bob Egelko reports for the SF Chron here. The money goes to Laci's estate, of which her mother Sharon Rocha is the adminstrator. (On the remote chance that anyone doesn't know, Peterson is presently on death row for murdering his wife Laci and their unborn son, Connor.)

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