April 2008 Archives

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Thoughts on the oral arguments in Kennedy v. Louisiana: Sherry Colb at FindLaw posted an article today reporting the the U.S. Supreme Court's oral arguments in Kennedy v. Louisiana. The article takes specific notice of Justice Ginsburg and Chief Justice Roberts' interpretations of Coker v. Georgia, the 1977 case that found the death penalty to be a grossly disproportional penalty for the rape of an adult woman. In her article, Colb suggests the Chief Justice may be in favor of allowing the death penalty where "the line between capital-worthy and non-capital-worthy offenses is so hard to draw" and suggests that Justice Ginsburg would be willing to draw the line at allowing the death penalty for the rape of children, but not for the rape of adult women. For more reading on posts regarding Kennedy v. Louisiana check out Douglas Berman's link to the article at Sentencing Law and Policy.

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A Shift on The Supreme Court. L.A.Times writer David Savage suggests that the Supreme Court has changed its approach in deciding constitutional questions. The piece compares previous courts that were “willing to strike down laws before they went into effect,” to recent decisions by The Roberts Court which have upheld Indiana's voter ID law, lethal injections and laws on partial birth abortions.

Racial Profiling A review of the over 300 complaints of racial profiling brought against the LAPD last year has concluded that every one was meritless. An L.A.Times story by Joel Rubin reports that 2007 was the sixth consecutive year that all racial profiling allegations have been declared "outright unfounded." Responding to complaints that these findings are difficult to believe, Police Chief William Bratton will survey other urban police departments to compare their findings with the LAPD.

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Comparison of Crawford and McConnell v. FEC: Orin Kerr at the Volokh Conspiracy had an interesting post today. Kerr compares the U.S. Supreme's decision in yesterday's Crawford v. Marion County Election Board with its 2003 decision in McConnell v. FEC, 540 U.S. 93 (2003). According to Kerr the U.S. Supreme Court's decisions in McConnell and Crawford both addressed the basic issues of: (1) The degree of scrutiny for a facial challenge to a statute that is claimed to infringe on constitutional rights central to the voting process, and (2) The amount of evidence of a problem, and how hard should the courts look for it. Kerr also notes the political parties' reactions to the two pieces of legislation - Democrats favored campaign finance reform and opposed voter ID legislation, while Republicans had the opposite reaction.

More Crawford: Richard Samp of Washington Legal Foundation has this guest post at SCOTUSblog

Ventura FedSoc Program

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Tomorrow evening (Wednesday), the Gold Coast Chapter of the Federalist Society (Ventura County, CA) will have a program on "Murderers, Terrorists & Treaties: Current Supreme Court Cases on the Treatment of Aliens," discussing the Guantanamo cases and Medellin. The speaker is CJLF Legal Director Kent Scheidegger. Details here.

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DP Challenge Rejected: A Superior Court Judge in Delaware has dismissed a lawsuit challenging the state's lethal injection protocol. A story by AP writer Randall Chase reports that Robert Jackson's suit claimed that the state's protocol were illegally established because corrections officials did not open up the determination process to public review and comment. A similar claim has been made by condemned murderers in California. Jackson, by the way, was sentenced to death for beating a woman to death with an ax while burglarizing her home.

Florida Murder Executed: A Florida murderer has apparently executed himself, using a non-approved protocol. A brief AP story reports that William Coday, sentenced to death for the beating and stabbing murder of his girlfriend in 1997, was found in his cell, having bled to death from a self inflicted wound. In 1978, Germany threw the book at Coday, making him serve an entire 15 month sentence for beating another girlfriend to death with a hammer.

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Scalia on 60 Minutes: The Corner at National Review Online has a link to transcripts of Justice Scalia's interview with Lesley Stahl from 60 minutes. The interview aired last night on CBS. Gerard Bradley at Bench Memos also has this post on his thoughts from Justice Scalia's interview. The ABA Journal also has this link to excerpts from Justice Scalia's new book "Making Your Case: The Art of Persuad­ing Judges."

Book Review of "Conservative Legal Movement":
Todd Zywicki posted a review of Steven Teles' new book "The Rise of the Conservative Legal Movement" on Volokh Conspiracy today. Zywicki praises the book and recommends it as easy summer reading. He also has some interesting points on Teles' discussion of the success of the Federalist Society in the book.

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Train Crash Could Result in Death Penalty. On the morning of January 26, 2005, Juan Miguel Alvarez parked his jeep on the Los Angeles Metrolink tracks about 1/2 mile from downtown Glendale. As a train full of commuters approached, Alvarez ran from the jeep. The collision killed eleven and injured 180. In an LA Times story, writer Ann S. Simmons reports that, at the upcoming trial, Alvarez will claim that he was attempting suicide and never intended to hurt anyone. The prosecution will argue that the jeep was doused with gasoline with the parking brake set when Alvarez left it, suggesting he intended to kill. If the jury finds intent, he could receive a death sentence. Murder in the course of train wrecking is a "special circumstance" in California. See Penal Code § 190.2(a)(17)(I). Not sure if this paragraph has ever been used before.

Death Penalty Politics: In the aftermath of the Baze decision, the speed with which some death penalty states move to resume executions may be more about politics than substance. AP writer Stephen Majors has this story on Ohio Governor Ted Strickland's reluctance to take action, contrasting him with Florida Governor Charlie Crist.

Funding Terror: Mary Anastasia O'Grady has this article in the WSJ on the role of "nongovernmental organizations" (NGOs) in funding lobbyists for terrorist organizations. George Soros's Open Society is among those funding an organization that lobbies for the Peruvian terrorist group Tupac Amaru.


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The Supreme Court reminded us in Crawford of the importance of cross-examination as an engine for the discovery of the truth. No, I'm not referring to Crawford v. Washington, 541 U.S. 36 (2004) but to today's decision in the voter ID case, Crawford v. Marion County Election Bd., No 07-21. Footnote 20 on page 19 of the lead opinion says, "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication." So take that, all you Google-infatuated clerks.

In a fractured opinion, by the way, the Court rejected a facial attack on Indiana's voter ID law. Such laws have a disparate impact on persons of decomposition and are vehemently opposed by the Democratic Party, which apparently believes this demographic will skew their way. I guess they would know.

Other than that, it's pretty quiet at 1 First Street, NE. No Boumediene. No new cert. grants. Bell v. Kelly, No. 07-1223, the only criminal case on SCOTUSblog's petition to watch list for Friday's conference, has apparently been relisted.

Update: Rick Hasen, who doesn't like the Crawford decision at all, has this guest post at SCOTUSblog. "In a nutshell ... a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong." Sounds like Batson.

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Is War on Terror a Crime?
According to Rivkin and Casey in the Wall Street Journal, law professors, activist lawyers, and pundits are accusing the attorneys who have advised the President on the war on terror of aiding and abetting criminal activity. Among these advisers are some of country's finest legal minds. Liberal critics are attempting to fix them with responsibility for government actions ranging from Abu Ghraib to denying habeas rights to Gitmo detainees.

Maryland’s Court redefines the concept of rape
The Johns Hopkins News-Letter reports that the Maryland Court of Appeals (the state's highest court) has redefined the definition of rape to include circumstances when one party withdraws consent after penetration. The Court's decision was announced in Baby v. Maryland, available here.

Blast Your Tunes, Lose Your Wheels
A story by OhMyGov.com reports, on an effort in Sarasota, Florida to adopt a law allowing police to impound vehicles and fine repeat violators if music can be heard from more than 25 feet. Last year police issued 282 citations for loud music from cars.

New Trial for convicted Killer The Arkansas Supreme Court has overturned a murder conviction for a Miranda violation. A story in the Baxter Bulletin reports that the Court's 6-1 ruling found that Brian Edward Robinson's incriminating statements were improperly admitted at trial because they were made after he told the arresting officer that he did not want to talk. Court's opinion is here.

New U.S. Strategy on Afghan Police. “Afghanistan will be a stable, self sufficient state only when it can both defend its borders and provide law and order to its citizens” writes Ann Marlowe in the WSJ. A new American plan aims to strengthen the Afghan National Police (ANP). Major General Robert W. Cone is the commander in charge with the mission to make the 78,000 member police force capable of maintaining local security. We don't need to make these cops as good as the 82nd Airborne," he says, referring to the storied unit that just finished a 15-month rotation here. "We just need to make them two-and-a-half times better than the enemy."

California’s New DNA Rules. Attorney General Jerry Brown is expanding the use of DNA results. The current policy requires exact matches of a suspects DNA before law enforcement is notified. The new policy will release suspect information if 15 of the 26 markers are matched, allowing the identification of relatives as possible suspects. The Attorney General announced this change today at the California District Attorneys Association annual DNA/Cold Case Summit. His press release is here.

Journalists' Shield Law

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The Federalist Society is having a program Tuesday in DC on a proposed federal "shield law" for journalists. Details here.

Merritt Upholds Death Sentence

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Ohioans, sit down before you read this. The Sixth Circuit today upheld the conviction and death sentence of Marvallous Keene for "eight counts of aggravated murder, six counts of aggravated robbery, one count of aggravated burglary, one count of burglary, two counts of kidnapping, and two counts of attempted aggravated murder." Judge Gilbert Merritt was on the panel and did not dissent. Among the claims was a supposed equal protection violation for not seeking the death penalty against other murderers who had killed far fewer people. Yes, there are arguments in capital cases so bogus that they don't even pass Judge Merritt's smell test.

Religious Freedom in Prison

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"Robert Loblaw" over at Decision of the Day points to the Seventh Circuit case of Koger v. Bryan, 05-1904 (7th Cir., April 24, 2008) reversing a district court's summary judgment dismissal of inmate Gregory Koger's claim under Religious Land Use and Institutionalized Persons Act. Koger, a member of Thelema, a religion founded by famed devil worshipper Aleister Crowley, sued when the state denied his dietary requests. The post notes Judge Evans concurrence:

RLUIPA, I submit, fosters the potential for mischief and game-playing. Koger’s case is, potentially at least, a pretty good example of that. . . . [W]as his request for a nonmeat diet a mere preference (he practiced yoga) or the result of a sincerely held religious belief? On this record, we have no reason to doubt that it was the latter. But one would not be terribly surprised if Mr. Koger has had a beef tenderloin or a Big Mac since he left the prison a little over two years ago.. . .

So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L. Oldham, who by the way has done an outstanding job, will get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean towards saying “yes.”

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U.S. Sentencing Commission On Retroactivity of Crack Amendment: Thanks to Douglas Berman at Sentencing Law and Policy for his post on the U.S. Sentencing Commission's release of data on the retroactive application of the crack amendment. The Commission's data, found here, compiles the preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). The data compiles cases that were received by the Commission before April 14, 2008. Berman notes that he hopes the data is frequently updated.
Lara Jakes Jordan at the Associated Press also had this story on the Commission's findings.

Vienna Convention Post-Medellin: Howard Bashman at How Appealing provided this post, and a link, to the Second Circuit's decision that failure to inform detained aliens of the prospect of consular notification, as required by Article 36 of the Vienna Convention, cannot be vindicated by a private action for damages. While Article 36 has been addressed by courts in a variety of contexts, the U.S. Supreme Court's decision in Medellin v. Texas did not directly address this issue. Instead, the Medellin decision assumed, without deciding, that Article 36 creates the judicially enforceable right to request that consular officers be notified of their detention.

Yesterday, the U.S. Supreme Court adopted amendments to the Federal Rules of Criminal Procedure. The amendments implemented the Crime Victims' Rights Act (18 U.S.C. §3771). Yesterday's order amended Criminal Rules 1 (Scope; Definitions), 12.1 (Notice of an Alibi Defense), 17 (Subpoena), 18 (Place of Prosecution and Trial), 32 (Sentencing and Judgment), 41 (Search and Seizure), 45 (Computing and Extending Time), 60 (Victims’ Rights), and added Criminal Rule 61 (Title). The Court's order adopting the amendments can be found here.

For the most part, the Court's order rubber-stamped the September 2007 recommendation of the Federal Judicial Conference, which had adopted the May 2007 proposals of the Federal Advisory Committee on Federal Rules of Criminal Procedure. One interesting deviation from the recommendation was the U.S. Supreme Court's decision not to adopt the Advisory Committee's amendments to Rule 45(a) for "Computing and Extending Time." The Court did amend Rule 45(c) slightly to conform to last year's revision of Civil Rule 5.

The amendments take effect December 1 unless Congress acts to the contrary.

Mutiny on the Full Means

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Among the powers granted to Congress is the power "To define and punish Piracies and Felonies committed on the high Seas." Art. I § 8 cl. 9. Yes, there really are cases of tyrannical captains and resulting mutinies to this day. The Ninth Circuit ponders the jurisdictional issues in United States v. Shi, No. 06-10389.

Who Decides?


Patrick J. Buchanan has this editorial at Human Events, titled "The Greenhouse Effect":

There is another and larger issue here.

It is the question not of what is decided, but of who decides.

Whether Citizen Stevens abhors the death penalty should not matter to Justice Stevens. For if the constitution provides for a death penalty, and capital punishment has been imposed throughout our history, and the form it takes does not violate the ban on cruel and unusual punishment, Stevens' decision should be automatic, no matter his personal beliefs.

What Stevens is signaling, however, is that his altered opinion of the death penalty may cause him to start voting against it -- that is, to substitute his personal view of capital punishment for the decision of the elected leaders who have voted to retain it.

The Big Island

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From Fox News:

HONOLULU (AP) — A 65-year-old first-time drug offender on the Big Island is facing a maximum 20-year sentence.

The case against farmer David Finley of Volcano involves possession of more than 75 pounds of marijuana. Police say they also found nearly 200 marijuana plants in greenhouses on Finley's 29-acre ranch, along with other drugs.

Circuit Judge Glen Hara has sentenced Finley to two maximum 20-year sentences to be served simultaneously. He said any other sentence would undermine respect for the law and hurt society.

But the judge said he is convinced Finley is not an evil person. He was arrested Jan. 29, 2007 and already has served 14 months in jail.

The judge said marijuana is fully entrenched in the Big Island way of life with many people starting to use it before they are teenagers.

Make of it what you will.

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Giles Commentary: Yesterday, Richard Friedman's Confrontation Blog had this post by Joan Meier, of George Washington Law School and DV LEAP. Meier's post argues that the conflict between the confrontation clause and the forfeiture principle addressed in Giles v. California cannot be resolved by looking to the Framer's intent or early United States common law. Meier's also argues that Framing-era courts decisions in dying declaration cases and child rape cases indicate the forfeiture principle would have been applied in a case like where the defendant's wrongdoing caused the witness's absence at trial.

Scalia's Use of Di Re in Moore: Orin Kerr at the Volokh Conspiracy comments on the Justice Scalia's use of United States v. Di Re in today's majority opinion of Virginia v. Moore. Kerr's post states that Scalia misapplied Di Re by "saying it was just a case of federal supervisory power" and agreeing Justice Ginsburg that Di Re was "pinned on the Fourth Amendment and not our 'supervisory power.'"

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Robot Bums-Rush.
AP writer Greg Bluestein has this story about a homemade remote controlled robot built by ex-marine Rufus Terrill. The 300 pound waist high robot marked “security” patrols the street in front of his Atlanta bar after dark, running off vagrants with bright lights, a loudspeaker and a water cannon. The electronic vigilante has enraged neighborhood activists, but Terrill assures that his actions are innocent. He believes the police now patrol more, the parks are safer and there have been no break-ins since the robot hit the streets last September.

Virginia v. Moore: The Associated Press has this take on today's decision to uphold a police search even though the arrest turned out to be improper.

Technicality Puts Lifer on Parole The Charlotte Observer reports that North Carolina murderer Ronald Earl Small was approved for parole after serving a life sentence given to him in 1977 for first-degree murder and assault. Small confessed to brutally beating Alexandria Hill, 18, for refusing to have sex with him in September 1976. Days later she died from her injuries. Because he was convicted before 1994, when the state revised its sentencing laws, Small was eligible for release on parole.

Imprisonment Article in the NYT

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Adam Liptak has this article in the New York Times today on the controversy over incarceration rates and how ours is so much higher than Europe's. The article begins with the usual stuff we hear all the time. Later, it quotes Paul Cassell and an article of ours for the proposition that locking up criminals really has saved a lot of people from victimization. The articles cites "specialists" for "dismiss[ing] race as an important distinguishing factor." That is significant, and unusual, as for some folks race seems to be the explanation of first resort on every conceivable subject.

One point I would have liked to see expanded on is this: "From 1981 to 1996, according to Justice Department statistics, the risk of punishment rose in the United States and fell in England. The crime rates predictably moved in the opposite directions, falling in the United States and rising in England."

As noted on this blog Monday, the comparative data are more dramatic than that. Liptak notes elsewhere in the article that the United States has (present tense) lower burglary and robbery rates than England, but omits the fact that this is a fairly recent development. Americans have gone from a much greater risk of these crimes, compared to England and France, to a significantly lower risk. The tougher sentencing has been a big part of that.

Decision Days

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Today is the last day of oral arguments for the U.S. Supreme Court's current term. The term calendar shows "non-argument sessions" (in blue) on Monday of each week from now to June, except Memorial Day. The session is Tuesday that week. Conference days are Thursdays. Looking at the opinion dates for last term, we see that 40 opinions were issued after the conclusion of oral arguments. Of these, 31 were issued on the scheduled non-argument session days, and 9 were issued on Thursdays: June 14, 21, and 28. There are 36 argued cases remaining undecided in the current term.

The Supreme Court today decided Virginia v. Moore, holding 8-1-0 that an arrest based on probable cause is not a violation of the Fourth Amendment even though the officer was not authorized by state law to arrest for that offense. David Moore was properly stopped for driving with a suspended license. The officers arrested him instead of citing him, as they were supposed to do, and the search incident to arrest revealed 16g of crack.

The actual question in the case is the admissibility of the crack in evidence. The drastic, disproportionate, ill-advised remedy of exclusion of valid evidence once again spills over into the substantive law of the Fourth Amendment.

Last Friday, this post at Capital Defense Weekly said, "Monday’s order list will give a better understanding of which challenges may or may not meet the plurality’s standard." Yes, I think so. Over at SCOTUSblog, Lyle Denniston writes, "The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with" a slew of capital cases. The number of capital cases the Court turned down is reported as 11 by Lyle and by an AP story. However, I count 14, including a rehearing denial. The cases are listed at the end of this post.

Lyle seems surprised that the Court gave no explanation for its actions. I do not find this remarkable. The Court usually does not give a reason for denial of certiorari. Moreover, looking at the lower court opinions, none are obviously "certworthy" in light of the Baze opinion's rejection of most of the defense arguments.

Today's Supreme Court oral arguments in Giles v. California started and ended well for the Petitioner, Giles, a man who was convicted for the first degree murder of his former girlfriend Brenda Avie. In today's arguments, Petitioner contested the admissibility of a testimonial statement Avie had made to police officers following a domestic dispute between the Petitioner and Avie. The domestic dispute occurred sometime before Giles shot Avie in what he claimed was self-defense. At Giles' murder trial, the California court allowed the officer to testify about Avie's statements. The statements were admitted under California's rules of evidence as evidence of Giles' propensity to commit acts of domestic violence.

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Mumia Abu-Jamal: Steven D. Levitt, at Freakonomics Blog authored this post, cautioning against the uninformed support of convicted murderer Mumia Abu-Jamal. Mumia Abu-Jamal was convicted and sentenced to death for the murder of police officer Daniel Faulkner in 1981. The federal district court granted habeas relief as to the death sentence but denied relief on the guilt verdict. The Third Circuit affirmed last month in this decision. Levitt's post encourages those who support Mumia to read Murdered by Mumia written by Maureen Faulkner and Michael Smerconish. Maureen Faulkner is Daniel Faulkner's widow, and offers a victim's perspective of the Mumia legal battle. Levitt writes: "If you are a college student, or a Hollywood celebrity, thinking about publicly proclaiming Abu-Jamal’s innocence, I strongly recommend that you read this book first."

Giles Argument: Lyle Denniston reports at SCOTUSblog on today's argument regarding the Confrontation Clause and the murdered witness.

Baze Comments: Volokh Conspirator Paul Cassell has this clarification to his earlier comment on Justice Stevens' opinion in Baze, with links to his prior posts and Orin Kerr's in the same blog.

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Fight Crime, Shoot Back: The owner of an Oakland liquor store, shot in the leg during and attempted robbery last Saturday, shot back with his own gun, hitting the robber three times according this report by SF Chronicle writer Henry K. Lee. It was the second time in two days that area store employees had defended themselves against criminals. Another Chronicle story reports that tonight, the Oakland Police Chief will announce his new plan to reduce crime, which has been spiraling out of control in the city for the past several years.

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SCOTUS Podcasts: The Federalist Society has podcasts on the Kennedy v. Louisiana argument by Bill Otis and on the Baze v. Rees decision by Kent Scheidegger.

Reaction to Baze Commentary: SCOTUSblog has posted a commentary by Eric Berger, an assistant professor at University of Nebraska College of Law. Berger's commentary responds to Kent Scheidegger's April 18th commentary that the Court's opinions in Baze v. Rees will allow states with protocol's similar to Kentucky's to move forward with their executions. Berger argues that because there are often discrepancies between States' written protocols and actual implementation of the protocol, cases challenging whether actual lethal injection implementation causes severe pain may still be necessary.

Kennedy and Eighth Amendment jurisprudence: Doug Berman at Sentencing Law and Policy has posted his thoughts on the oral arguments in Kennedy v. Louisiana here. Berman's post expresses his hope that the Court's Kennedy decision will "revive" the Eighth Amendment to give the current vague standard of "evolving standards of decency that mark the progress of a maturing society" clearly defined parameters.

Does the Commerce Clause Allow Congress to Regulate Interstate Moves By Sex Offenders?: Ilya Somin posted this comment at the Volokh Conspiracy on a federal court decision to strike down part of the Adam Walsh Act because the Act violated the Commerce Clause. Somin states the Adam Walsh Act does not violate the Commerce Clause as interpreted by the U.S. Supreme Court's decision in Gonzales v. Raich. Somin argues that any interstate movement by a sex offender qualifies as "economic activity" as defined by Raich because the offender is engaged in the consumption of commodities - such as gas and food - as the offender moves from one state to another. Somin believes that while this definition of "economic activity" is too broad, the Adam Walsh Act is valid under current precedent.

Ninth Circuit Allows Border Search of Laptop: Howard Bashman at How Appealing discussed the Ninth Circuit's decision that will allow the prosecution of a child pornography case to go forward. The defendant in United States v. Arnold had successfully argued to the district court that reasonable suspicion was required to search his laptop at the border. Today's Ninth Circuit opinion rejected Arnold's argument that "laptop computers are fundamentally different from traditional closed containers," and, therefore, a higher standard of "particularized suspicion" is not required to search a laptop at the border.

This post is by Julia Wobbe, a student at California State University, Sacramento.
There has been much controversy about the incarceration rate in the United States, which is much higher than in European countries. It is informative to consider these differences in the context of how comparative crime rates have changed over time. The European Sourcebook of Crime and Criminal Justice, (2nd ed. 2003) and (3rd ed. 2006), reveal the rate of violent crimes and the prison population rate. United States data are given by the FBI's Uniform Crime Reports and the Bureau of Justice Statistics website.

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Genetic Informants. Washington Post writer Ellen Nakashima reports on a new tool that is helping to identify suspects through a relative's DNA. The initial use of this tool was in the BTK murder case. Police in Kansas obtained a court order to collect a pap smear sample from Dennis Rader's daughter, which eventually lead to his arrest for the killings in 2005. The ACLU is mostly against this.

Update on Court denials of DP appeals
Updating our earlier post, the AP’s Michael Graczyk
reports, on the three DP cases denied by the Court this morning.

Giles v. California
Oral argument will be held in Giles tomorrow. An AP story by reporter Mark Sherman discusses the case. Giles was sentenced to 50 years in prison for the first-degree murder of Brenda Avie, based in part on the introduction of statements the victim made before she died. Giles argues that introducing the statements violated the Sixth Amendment. California Attorney General Jerry Brown wants the high court to uphold the conviction.

More DNA: The federal government plans to begin DNA testing of everyone arrested by a federal law enforcement agency, rather than only after conviction, as noted previously here. The John Birch Society is against it, and the ACLU agrees. "A Chicago study in 2005 found that 53 murders and rapes could have been prevented if a DNA sample had been collected upon arrest," according to the AP story.

The Supreme Court denied certiorari this morning in several capital cases it had been sitting on since the fall, when it took up the lethal injection case of Baze v. Rees. The cases include Taylor v. Crawford (Missouri), No. 07-303, Biros v. Strickland, No. 07-6243, and Cooey v. Strickland, No. 07-6234, both from Ohio, Berry v. Epps (Mississippi), No. 07-7348, and Arthur v. Allen (Alabama), No. 07-395. As previously noted here, the stay of execution previously granted in Berry terminates automatically upon the denial of certiorari. Ditto in Arthur.

The Court also denied certiorari in other capital cases that had not been held up, but were briefed and decided on a normal schedule, e.g., Bower v. Quarterman (Texas), No. 07-8315 and Nicklasson v. Roper (Missouri), No. 07-8434.

In two of today's denials, Justice Stevens chimes in with a reminder that denial of certiorari does not imply an opinion on the merits. See Velasquez v. Arizona, No. 07-8946 and Frasier v. Ohio, No. 07-9052. Curious that he chooses two direct appeals from state courts to make these statements, not any of the federal actions. I'm not sure what, if anything, is implied by that.

The Supreme Court-imposed moratorium is over. Now we will see how quickly justice can be resumed in the several states and whether Supreme Court intervention is necessary in certain circuits.

Mark Sherman reports here for AP.

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Commentary on Baze: SCOTUSblog has posted a commentary by our own Kent Scheidegger on what the Court's opinions in Baze will mean for the states as they look to implementing death sentences. The commentary states that in the wake of Wednesday's opinions, the delay in executions "should be nearly over."

Crackdown on Sex Offenders: Sentencing Law and Policy posted a link to Stateline.org's article titled "Lawsuits test crackdown on sex offenders." The article gives summaries of some cases challenging state punishments for sex criminals pending in state and federal courts.

More on Kennedy v. Louisiana: Dan Slater at Wall Street Journal Law Blog posted yesterday on highlights from the oral arguments.

Statutory Interpretation

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Nearly lost in the hubbub over Baze v. Rees were two federal sentencing decisions handed down by the high court this week. For those who practice mainly in the state courts, the results are less important than the statutory interpretation principles applied. These are likely to have persuasive value in state cases.

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Execution on Hold. Although the U.S. Supreme Court upheld lethal injection to be constitutional, the Nevada Supreme Court will not lift a stay on a convicted murderer’s execution. AP writer Brendan Riley reports that a Nevada Supreme Court spokesman says the justices will review the U.S. Supreme Court’s ruling. In the case of William Castillo, the state supreme court stopped his execution 90 minutes before he was to receive a lethal injection for beating a woman to death with a tire iron. Read more on this story here.

Special Order 40 Confusion to be Resolved.
Richard Winton, LA Times staff writer,reports that LAPD Police Chief William Bratton said Wednesday that the department’s controversial policy dealing with illegal immigrants would be cleared up within the next few weeks. Special Order 40 was designed 29 years ago to “encourage illegal immigrants to cooperate with the police without fear of being deported.” This policy is being scrutinized after the killing of a teenager, Jamiel Shaw, by an alleged illegal immigrant gang member. Bratton believes the recent criticism is based on a faulty understanding of the rule.

Fighting Back: An employee of the Wah Fay liquor store in Oakland, California took an "old school" approach to combating armed robbery. He shot one of the robbers, reports Henry Lee in the SF Chron. Now let's see if the robber sues the employee or the store.

Journal of Law and Economics

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The August, 2007 issue of JLE is now available online. Two articles relate to criminal law: Is Crime Contagious? by Jens Ludwig and Jeffrey R. Kling and Heavy Alcohol Use and Crime: Evidence from Underage Drunk-Driving Laws by Christopher Carpenter. Abstracts after the jump.

Berry on Deck?


Last October, the Supreme Court denied certiorari and a stay in Earl Berry's case from the Mississippi Supreme Court but then granted a stay in his federal § 1983 case from the Fifth Circuit. Previous posts are here and here. By its terms, that stay terminates automatically if the certiorari petition is denied.

Berry's certiorari petition, No. 07-7348, is now on conference for tomorrow. A decision on it will probably be announced Monday. Lyle Denniston at SCOTUSblog has this post and Berry's supplemental brief, noting differences between Mississippi's protocol and Kentucky's.

But the judgment Berry wants reviewed wasn't decided on the merits.

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Judicial Thought Process: Ed Whelan at Bench Memos (NRO) posted a link to his review on Judge Posner's new book How Judges Think. The review strings together a series of seven comments on Posner's book, and ultimately argues that Posner has failed to make a case for legal pragmatism over legalism. Whelan's commentary on Chapter 10 of Posner's book, "The Supreme Court Is a Political Court", is particularly interesting. There, Whelan discusses whether a Justice's personal politics do actually interfere with his judicial findings.
More Baze: Orin Kerr at the Volokh Conspiracy posted these thoughts on yesterday's decision in Baze v. Rees.
Professor Denno on Baze: Capital Defense Weekly had this post on a quote from Fordham University's Professor Deborah Denno, one of the experts who testified in the Franklin Circuit court hearings on Kentucky's death penalty protocol. Fordham University School of Law also authored an Amicus brief on behalf of Petitioners.
Washington finds Blakely error not harmless: Sentencing Law and Policy has a post on today's Washington Supreme Court decision in State v.Recuenco, on remand from Washington v. Recuenco, 548 U.S. 212 (2006). The opinion holds that while the United States Supreme Court held in Washington v. Recuenco, that a Blakely-type error could be subject to harmless error analysis, Washington law did not permit harmless error analysis under the circumstances of this case. The Washington opinion can be found here.

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DNA samples will soon be taken on every person arrested by federal law enforcement officers according to this story by Washington Post writers Ellen Nakashima and Spencer Hsu, and another by AP writer Eileen Sullivan. The new authorization, part of the Violence Against Women Act, passed recently by Congress, may also allow samples to be taken of illegal aliens captured by border patrol agents.

Baze Coverage

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The Baze decision has extensive coverage in the news today. Here is a sampling:

Adam Liptak in the New York Times.
Jennifer McMenamin in the Baltimore Sun.
Debra Saunders in the San Francisco Chronicle.
David Savage in the Los Angeles Times.
A Florida-enhanced version of the LAT story in the Tampa Tribune with contribution by Valerie Kalfrin.
Kelley Shannon for AP in Austin.
Sean O'Sullivan in the Wilmington News Journal.
Heather Ratcliffe in the St. Louis Post-Dispatch.

Some Points of Agreement in Baze

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Baze is one of those dreaded splintered opinions where we will have to pick our way through to figure out what the law is for some time to come. Even so, there are a number of important points on which the Court not only has a coherent majority but actually is unanimous. These are worth noting.

The plaintiffs got no support for a standard of "unnecessary risk" in the sense that any method of execution could be challenged indefinitely into the future merely by showing that some other method had less risk of pain. Justice Ginsburg writes at page 4, "Proof of 'a slightly or marginally safer alternative' is, as the plurality notes, insufficient."

No one endorses the argument that monitoring by a person qualified to assess "anesthetic depth" is required. See petitioner's brief 57-59. The plurality recognizes the Catch-22 strategy of requiring the participation of people who are forbidden to participate and rejects it. No one on the Court disagrees.

No justice buys the argument that a single-drug protocol is constitutionally required. The contrary standard for human euthanasia in the Netherlands pretty well neutralized the veterinary standard argument. A comment in the Stevens opinion was the only positive mention of that argument, and both the plurality and Justice Breyer dismiss it.

All appear to be agreed that the three-drug protocol is clearly constitutional in those states that add a consciousness check after the pentothal injection. The main point of the dissent is to emphasize that such a check sharply reduces the chances of a "botched" execution. Kentucky and other states that do not yet have such a check would be well advised to add one.

News Scan

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DNA testing methods are found “scientifically sound.” The Wales Government commissioned an independent study to test the reliability of low template (LCN) DNA testing as reported by Gavin O’Connor in the Western Mail. The test is considered accurate but recommendations were made for improving the collection and interpretation of samples. The soundness of LCN testing was questioned in December after one test wrongly linked a sample from a car bomb in Northern Ireland to a 14-year-old boy in Nottingham.

Virginia schedules an execution this May
Washington Post reporter Tim Craig writes that Virginia Gov. Timothy M. Kaine will proceed with executions now that the U.S Supreme Court has upheld lethal injections in Baze v. Rees. The state has set May 27 for the execution of Kevin Green, who was convicted of murdering a convenience store owner in 1998.

Kentucky improves child abuse law
WAVE 3 News reports that the statute will make it a felony to sexually abuse a child up to 16 years of age. The law extends the victim's age to 18 if the abuser is an authority figure. The law also allows victims to report the crime within five years of their 18th birthday.

Supervisor found guilty of sexually assaulting inmates
Jon Cassidy of the Orange County Register reports that animal shelter supervisor Frank Bojorquez Jr., 55, has been convicted of sexually assaulting six female inmates assigned to the shelter as part of their sentence. Bojorquez, who will be sentenced on May 30, is facing 33 years in prison for six felonies and five misdemeanors. The six victims testified that they feared no one would believe them if they reported the crime.

Blog Scan

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U.S. Supreme Court Opinions: SCOTUSblog has posts on the U.S. Supreme Court decisions released today. Today the Court announced rulings in Begay v. United States, Baze v. Rees, and Burgess v. United States. Lyle Denniston's in-depth post on the opinion in Baze can be found here, and a quick summary of Breyer's majority opinion in Begay can be found here.

Kennedy v. Louisiana: Today the U.S. Supreme Court heard oral arguments in Kennedy, a case addressing Louisiana's implementation of the death penalty for child rape. Corey Rayburn Yung's summary of the arguments can be found at Sex Crimes Blog.

Concurring Opinions: Dave Hoffman at Concurring Opinions has an interesting post comparing Stevens' and Scalia's concurring opinions in Baze. Both Scalia and Stevens address whether empirical studies support the deterrence theory of capital punishment. Stevens notes recent scholarship supporting the deterrent effect but then claims, without explanation, that the criticisms of those studies constitute "an equal, if not greater, amount of scholarship." Scalia asserts the Court cannot rely on empirical studies when making this judgment - at least not yet. Hoffman says, "Justice Scalia has the better of the argument here."

Giles Preview: Richard Friedman at The Confrontation Blog has this post on an article he wrote for the ABA's Preview of United States Supreme Court Cases. Giles will be argued on April 22 and addresses whether an accused forfeits his right to confront a witness who would have testified against him if he murders the witness. Friedman is an amicus in Giles, taking the unusual posture of supporting the petition for certiorari at the petition stage but supporting the respondent on the merits. His article can be found here.

Death Penalty Statement

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My written statement on the death penalty to the California Commission on the Fair Administration of Justice is now available here.

Baze Decided

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The Supreme Court decided the lethal injection case, Baze v. Rees today. The opinion is here. There is no majority, but I expect the plurality opinion by Chief Justice Roberts will be treated as the authoritative word. A couple of key passages:

Accordingly, we reject petitioners’ proposed “unnecessary risk” standard, as well as the dissent’s “untoward” risk variation. See post, at 2, 11 (opinion of Ginsburg, J.) [footnote omitted]

Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment. [footnote omitted]

Slip op. at 11-12.

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

Slip op. at 22 (emphasis added)

Blog Scan

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Social Science Journal: Psychology and Crime News posted comments on three Social Science Journal articles that addressed: homicide in the southern United States, individual perceptions and how they affect hate crime legislation, and a study on whether capital murderers (murderers who are executed) were “more likely to murder or commit other violent crimes again” if they had not been executed, compared to "other murderers or the average citizen."

Arguing for a Windfall: Orin Kerr at Volokh Conspiracy had this amusing post on the Ninth Circuit's decision to deny a criminal defendant's request for all of the money listed in his presentencing report. The defendant had been convicted for his role in an ecstasy ring, and the presentencing report stated $485,000 had been found on his dresser. The government claimed the $485,000 was a typo, and only $485 had been found on the dresser. The defendant argued the government was estopped from making this argument since he had been sentenced using the larger number.

Justice Department and Wesley Snipes: In a sentencing report released today the Justice Department argued that Wesley Snipes should be sentenced to three years in prison for failing to file income tax returns. The Blog of the LegalTimes post has more details. It's April 15th... think this request for a three year prison penalty might have been strategically planned by the Justice Department...


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The U.S. Supreme Court celebrated Tax Filing Day by filing two tax opinions. Lyle Denniston discusses them at SCOTUSblog.

This is also National Crime Victims' Rights Week. Perhaps the Court could celebrate that by deciding Baze v. Rees and bringing to an end the de facto moratorium on justice in the worst murder cases that the Court has imposed since last fall. Among the rights of victims of crime and their families is the right to proceedings free from unreasonable delay, and that includes federal habeas corpus. See 18 U.S.C. § 3771 (a)(7) & (b)(2)(A).

Speaking of delay, the high court yesterday denied certiorari in the case of Fields v. Ayers, No. 07-8724. Stevie Fields is on California's death row for a "one man crime wave" in 1978. His conviction and sentence were affirmed on direct appeal in 1983. Since then, there has been a quarter century of collateral review of a case with no question of guilt. A previous post on this exemplar of overdue process is here.

"The Supreme Court said Monday it would take up a Los Angeles case to decide whether a chief prosecutor can be held liable for a man's wrongful conviction of murder." David Savage has this story in the LA Times on Van de Kamp v. Goldstein, No. 07-854.

Tony Mauro has this post at BLT on the unusual circumstance of the Court hearing two cases on the same day where the United States had declined to defend a judgment in its favor and the Court appointed an amicus to argue in support of the decision below. Defending a position the SG has abandoned is usually a lost cause, but Mauro thinks these two have a shot.

Crime and Foreclosures

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Stop the presses. A politician has wildly exaggerated.

“If you take a one-eighth square mile which is generally the size of a city block in most cities, and you end up with one foreclosure on that city block, two things happen immediately,” [Sen. Christopher] Dodd told two separate radio interviewers. “The value of every other home on that city block declines by 1% immediately, and the crime rates go up 2% immediately in that square block.”

An immediate 2% increase from one foreclosure? Oh, come now. Mark Lieberman, senior economist at Fox Business, dissects this claim here.

Crime Rates and Legal Abortion

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The reasons for the United States' crime drop in the 1990s have been the subject of considerable debate. As noted here, tough sentencing policies are one major reason, with even the anti-punishment side's experts grudgingly conceding that tough sentencing caused more than a quarter of the drop. Other estimates are higher.

One of the most controversial* hypotheses is that of Donohue and Levitt that the legalization of abortion by the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973) was actually a major factor. See Donohue & Levitt (2001) The Impact of Legalized Abortion on Crime, Quarterly Journal of Economics, 2, 379-420.

A new study of English data challenges that hypothesis.

New Study on Supreme Court Justices

A New York Times Editorial directed me to a study published in Constitutional Commentary's Spring 2007 issue. The article, titled “An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court”, comments on the correlation between a Supreme Court nominee's statements during Senate confirmation hearings, and the same Justice's Supreme Court voting decisions and opinions. The study focused on the years 1994-2005, a period where the same nine Justices served together, and examined the statements each Justice made during their confirmation hearings on the subjects of: (1) stare decisis; (2) commitment to originalism; (3) commitment to criminal defendants' rights; and (4) use of legislative history. The study then compared the statements made during hearings with the voting records of each of the Justices. Some interesting findings from the study can be found after the break.

News Scan

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Rape and the Death Penalty. Wednesday the United States Supreme Court will determine if a state law which allowed a child rapist to receive a death sentence is constitutional. The case of Kennedy v. Louisiana, (see blog scan April 10), involves the death sentence that Patrick Kennedy received for raping his 8-year-old stepdaughter. Robert Barnes from the Washington Post notes that while supporters demand retribution for those that harm the most vulnerable, child advocacy experts say if the death penalty is utilized for child rapists, it might encourage the rapist to kill the victim.

Cameras for speeders. Steve Hymon of the L.A. Times reports on the new idea that Beverly Hills police have for speed demons. They want the Legislature to allow cameras to capture the faces and license plates of motorists that speed along residential roads. Since similar cameras have been used on roadways in Arizona, the average speed has dropped about 9 mph. While the subject is somewhat controversial, residents and officials think the cameras would focus the attention of motorists.

U.S Supreme Court denied Teen Killer appeal
A story by CNN’s Bill Mears reports that the Court has rejected 12-year-old Christopher Pittman's appeal of his 30-year prison sentence. Pittman killed both of his grandparents with a shotgun and was tried as an adult. His lawyer wanted to argue that the sentence was cruel and unusual because there is no other inmate serving as severe a sentence for a crime committed at such a young age.

National Crime Victims' Rights Week
April 13th through the 19th is the week when the nation recognizes crime victims, with rallies, candlelight vigils, and other events to honor victims and those who advocate for them. To get more information about what you can do this week go to the National Center for Victims of Crime website.

Death Row inmate Challenges Alabama Lethal Injection Process
The Birmingham News reports that serial murderer Daniel Lee Siebert is challenging the state’s death penalty procedures. Siebert was convicted of killing five people and has confessed to killing more across the country. Alabama's protocol requires that after administering anesthesia to a murderer, a prison officer must call the inmates name, pinch his arm and brush his eyelashes to ensure he is unconscious, before the other two other drugs are injected. Siebert’s argument is that the officer who will test the inmates’ response has no medical background and could make a mistake.

A Nebraska inmate is a "sewer"

According to the AP story, jail Inmate Eric Lewis, awaiting trial for second degree murder, has filed 149 lawsuits since January, 2007. Lewis' lawsuits have sought protection orders against jail employees. All six Lancaster County District Judges signed an order that would limit him to six lawsuits a year unless he can show he is in immediate danger. The judges stated in the order that “Lewis has flagrantly and repeatedly abused the judicial process.”

Weekend Opinion

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Judicial Confirmations: The LA Times has this editorial on confirmation of judicial nominees. Following the most recent confirmation, there are "10 pending nominations to appeals courts and 18 to district courts that should not be put on hold in hopes that a Democrat will be elected president in November."

Parent's Lawsuit: The Washington Post has this editorial on a suit against the city by the father of a 16-year-old girl allegedly killed by her mother. It seems the father wasn't too concerned about the girl while she was alive. "Paternity wasn't established until Brittany was 10; child support was spotty, and eventually all contact was lost. Mr. Penn is said not to have known how to find his daughter; apparently the idea of hiring a lawyer occurred to him only after her body was found."

Clinton Crime Plan

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Hillary Clinton has announced a crime plan. AP story here. Campaign blog post here.

I'm pleased to see that the crime issue is getting attention in the presidential race, and some of the elements in the plan are encouraging. Making prisoners work 40 hour weeks has long been needed. Unfortunately, it appears that Senator Clinton has bought into the myth that our prisons are chock full of drug "offenders" who are there merely for personal use as opposed to sale.

Conspicuously absent is any mention of the federal government's role in blocking the enforcement of Pennsylvania's death penalty and thereby denying its people the benefits of deterrence. What kinds of judges will you appoint to the Third Circuit and Pennsylvania District Courts, Sen. Clinton? Will your AG certify Pennsylvania under Chapter 154 of 28 U.S.C.? Of course, Pennsylvania's Supreme Court bears a large share of the blame, and there is nothing the feds can do about that, but the federal role is also significant. If you are going to talk about cutting the murder rate in half, you should address this issue.

Baze Documents

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The "redacted" version of Volume 4 of the Joint Appendix has now been filed with the Court, and it has been added to our Baze v. Rees document collection.

Blog Scan

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Urban Institute Report: Thanks to Doug Berman at Sentencing Law and Policy a post on the Urban Institute's Report on treating drug offenders. The report is titled "To Treat or Not to Treat: Evidence on the Prospects of Expanding Treatment to Drug-Involved Offenders." The link to full the report can be found here.

Of course, given the Urban Institute's track record, see, e.g., here, everything they say must be taken with a heaping tablespoon of salt.

Possible Supreme Court Judge Appointments: Orin Kerr at Volokh Conspiracy also has this comment on Senator Barack Obama's recent comments on qualities he would look for in a Supreme Court Justice nominee.

News Scan

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Death Penalty Methods. AP writer Joe Milicia reported Tuesday that lethal injections are on hold nationally while the Supreme Court considers a challenge in the case from Kentucky. Dr. Mark Dershwitz testified in a hearing saying the process of execution in Ohio was not inhumane, while Dr. Mark Heath says the method is unfit to euthanize a dog. The major claim is that the inmate could suffer from too much pain if not enough anesthetic is administered or there are mistakes injecting the drugs.

Threat maker Found.
After years of searching for the racially motivated threat maker, he has been identified. David Tuason, from Cleveland, is alleged to have targeted black men that dated white women. In one of his letters he threatened to blow up the U.S. Supreme Court. A Supreme Court Spokeswoman confirmed that Justice Clarence Thomas was one of Tuason’s victims. The one trait all had in common: they were black.

Virginia: New DUI law

Register-Herald News reporter Mannix Porterfield writes that a West Virginia new law has tougher penalties on drunken drivers. The law will require anyone with a blood alcohol content (BAC) of .15 or higher to have mandatory jail time of two days to six months. Also, anyone with a BAC lower then .14 will have an alcohol ignition device installed in their car known as the Interlock. National MADD director Glynn Birch says, “The new law would “absolutely” lower the number of accidents involving drunken motorists.”

Arizona has the Nation’s toughest drunken driving law

According to the Arizona Republic, DUI first time offenders have an alcohol ignition device installed in their car for a year and when the offender is driving the device will require them to retest. It will cost the offender $75 a month to lease the device. In Arizona a DUI is having a BAC over .08.

Should Sex Offenders’ Home Be Marked?
Today on KPRC News in Houston, Rev. Gilda Black proposed a bill that would identify registered sex offenders by having curbs painted in front of their homes. According to the DPS registry, Black’s neighborhood is home to 32 sex offenders. Some of her neighbors feel that it will bring the value of their property down and it will make sex offenders subject to violence.

Is it right for a repeated sex offender to receive life in prison?
Yes, according to this report by KVUE News in Texas. James Ray Ross was sentenced to life on Wednesday for his second conviction for the sexual assault of a 15-year-old girl more than six years ago. Prosecutors say, “He was prosecuted under a special statute for repeat sex offenders that sets an automatic life in prison for the second conviction of sexual abuse of a child.

Blog Scan

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Sixth Amendment Cases Podcast: The Federalist Society has this podcast of comments by Tom Gede on two Sixth Amendment cases argued last month: Rothgery v. Gillespie County and Indiana v. Edwards. CJLF's brief in Edwards is here.

Federal Sentencing at SCOTUSblog: On Tuesday, the U.S. Supreme Court will hear Irizarry v. United States, No. 06-7517, to decide whether the district court must provide notice to the parties if it is contemplating a departure from the Sentencing Guidelines when the basis for departure was not in the presentence report or the party's prehearing submission. The U.S. admits error, but argues such error is harmless.

Statistics on Federal Crime Convictions: Orin Kerr at Volokh Conspiracy has a post on the 72,000 people convicted for federal crimes in 2007. The post gives the breakdown of the defendants by race in the 95% or so cases where race was recorded.

Incarcerations Impact on Crime: Thanks to Douglas Berman at Sentencing Law and Policy for this post on a new publication from the Pew Public Safety Performance Project. The publication titled, “The Impact of Incarceration on Crime: Two National Experts Weigh In”, gives Dr. Alfred Blumstein's and Dr. James Q. Wilson's views on the degree to which increased incarceration deserves credit for the drop in crime across the nation.

Kennedy v. Louisiana
Corey Rayburg Yung at Sex Crimes reports that Sex Crimes will provide extensive coverage of next weeks arguments in Kennedy. The case that will weigh the constitutionality of the death penalty for child rape. More information can be found at Sex Crimes' Kennedy v. Louisiana Resource Page.

News Scan

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SF Gun Ban: While the U. S. Supreme Court ponders D.C.'s gun ban in the Heller case, the California Supreme Court denied review to a Court of Appeal decision striking down San Francisco's. The basis was not the Second Amendment, though, but the more mundane issue of preemption. This is a matter of state law, not local ordinance. The AP story is here. The Court of Appeal opinion in Fiscal v. San Francisco, A115018 (1/9/2008), is here for the time being but will scroll off in a few weeks.

Airline Bomb Plot: Daniel Henninger has this column in the WSJ on the trial of would-be airline bombers in Britain, a reminder of the importance of being able to intercept terrorist communications.

CA District Attorneys and GOP legislators are introducing a package of bills which will speed up the enforcement of the death penalty. Sacramento Bee reporter Andy Furillo reports that, if adopted, the reforms will cut time time from sentencing to execution for most capital murderers in half. Proponents, which include victims groups, do not expect the Democrat-controlled legislature to pass the bills. They plan to put them before the voters as a ballot initiative in 2010.

Blog Scan

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Ninth Circuit News: Howard Bashman at How Appealing, reports on today's Ninth Circuit decision to reject rehearing an en banc decision that immunized from a criminal defendant from prosecution for false statements made to a probation officer preparing the defendant's presentence report.

Interesting Reads: Some interesting criminal procedure and criminal law articles are being published. Legal Theory Blog has this post on a new article by Carlton Larson entitled, The Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials. The article can be found here.

Jack Balkin has also blogged on some books he recently received at Balkinization. Balkin's thoughts on Steve Teles's, The Rise of the Conservative Legal Movement can be found here, and Balkin's comments on Statutory Default Rules: How To Interpret Unclear Legislation, Predictocracy: Market Mechanisms for Public and Private Decision Making, and Electronic Elections: The Perils and Promises of Digital Democracy can be found here .

And finally, Douglas A. Berman at Sentencing Law and Policy has this post on a seasonal read entitled "The Little Green Book of Golf Law."

News Scan

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Death Sentence Overturned. The Ohio Supreme Court overturned the death sentence of double murderer Clifton White as reported AP writer Andrew Welsh-Huggins. On Christmas Eve of 1995, White killed Deborah Thorpe and Julie Schrey. Prosecutors say he was angry over the break up with Schrey’s daughter. The Ohio Supreme Court agreed he should not be executed because he is mentally retarded. A lower court ruled he did not meet the U.S. Supreme Court’s three-prong test for mental retardation. Here’s the Court decision on this case.

Following up on a recent post Crime and Consequences: Race and Homicide, police have now linked the death of Jamiel Shaw Jr. to an illegal immigrant. Shaw’s family is challenging LAPD’s Special order 40, which limits officers from asking about the citizenship status of suspects. LA Times writers Andrew Blankstein and Richard Winton report that Pedro Espinoza had been released just hours earlier from county jail before killing Shaw. His crime is linked to a possible gang loyalty test.

Megan’s Law going International

CBS reports that Representative Chris Smith has expanded the federal ‘Megan’s Law’ by having a system that will notify government officials when a convicted sex offender has entered the United States or traveled abroad. Megan’s Law was adopted after the 1994 kidnapping, rape, and murder of seven-year-old, Megan Kanka of New Jersey.

Quadruple Murder Conviction Dismissed in Indiana
According to the AP story, in 1989 Jeffrey Pelley used a shotgun to kill his father, stepmother and two young stepsisters so he could attend his high school prom. Pelley was not charged until August 2002 and convicted in July 2006. The Indiana Court of Appeals ruled to dismiss the case with no retrial because he did not receive a speedy trial. A spokeswoman says, “The attorney general’s office plans to ask the state Supreme Court to take up the case.”

St. John Fisher college in Rochester, NY announced plans for the city's first law school.

Sometimes, It Takes Two to Tango

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Walter Olson over at Overlawyered points out that when it comes to school bullies, sometimes the victim isn't so innocent:

Could there be another side of the story, you may wonder? Well, as a matter of fact, there is. To find it you need to consult the local paper, the Northwest Arkansas Times (Scott F. Davis and Dustin Tracy, "Who's the bully?: Police, school records raise questions about claims made by Fayetteville High student", Apr. 3)(via Childs). One may argue about whether Wolfe's own alleged exploits in victimizing other kids, as catalogued in the NWAT article, will or should affect the disposition of his family's legal claims. What seems beyond dispute is that the NYT's story would have been very different in the emotional reactions it evoked -- and much less effective in promoting the particular "cause" it was advancing -- had it included that other side of the story.

School bullying has received a lot of attention in the past few years since it was identified by many experts as "the cause" of school shootings. It has become an intellectual fad in some ways - and like most fads - encourages lazy thinking.

A crime involves four people: the mastermind, an "insider" who exploits his position of trust with the target, and two accomplices. The first two have prior convictions; the latter two have little or no records and cooperate with the police. So, knowing nothing more than this, who would you expect to get the more severe sentences, and who would you expect to receive the lesser sentences?

From the AP in Tennessee:

State prosecutors say a death penalty study committee formed by the Legislature is unfairly stacked with too many members who oppose the punishment.

James "Wally" Kirby, executive director of the Tennessee District Attorneys General Conference, has told legislators the committee's intent is to abolish capital punishment.

As American states struggle with how to deal with prison overcrowding and the attendant budget problems, this WSJ article by Gabriel Kahn gives us a splendid example from across the pond on how not to do it:

Less than two years ago, Italy's prison system faced a crisis: Built to hold 43,000 inmates, it was straining to contain more than 60,000.
So the government crafted an emergency plan. It swung open the prison doors and let more than a third of the inmates go free.
Within months, bank robberies jumped by 20%. Kidnappings and fraud also rose, as did computer crime, arson and purse-snatchings. The prison population, however, fell so much that for awhile Italy had more prison guards than prisoners to guard.

Nonfatal Maltreatment of Infants

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Medical News Today cites to a recent CDC study reporting 905,000 children were victims of maltreatment in one year (2005-06).

As the figure from the study shows, neglect remains the most common form of child maltreatment reported in the United States:

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Regular readers of this blog know of my interests about science, law, and policy. The Last Psychiatrist has two great posts (here and here) discussing the recent flap about the cholesterol drug Vytorin and the Enhance study (basics here).

Also off topic, but noteworthy: Ed Silverman at Pharmalot notes that two years after Health Canada warned about prescribing antidepressants to children, a new study reports that the number of children and teens who died by suicide increased 25 per cent after years of steady decline.

As mentioned before, there's been a lot of discussion -and spin- about the dangers associated with antidepressants use in children.

Blog Scan

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Volokh Conspiracy: Orin Kerr has been blogging about Judge Jack Weinstein's opinion in United States v. Polizzi. The links can be found here. Of particular interest is Kerr's discussion of the Booker and Blakely decisions, especially in light of SCOTUS grant of certiorari in Oregon v. Ice, and whether the judge or the jury should find specific facts.

And in other Blakely news:
How Appealing and Sentencing Law and Policy both had links to a Hawai'i Supreme Court decision approving the constitutionality of Hawai'i legislation addressing the Blakely issue. According to an article quoted at Sentencing Law and Policy, the court held that "enhanced" sentences may be imposed on criminals identified as dangers to the community so long as prosecutors notify defendants at the outset that enhanced sentencing will be pursued.

Ohio Injection Hearing

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Ohio's hearings on lethal injection are going forward. Joe Milicia reports here for AP on the defense testimony. Dr. Mark Heath testified for the defense, again, saying pretty much the same things he has said in other states. Tomorrow Dr. Mark Dershwitz will testify for the state, again.

No mention of Darth Vader this time.

News Scan

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Crime Stoppers: A program that works. Karen Bune, Victim Specialist Contributor from officer.com reports that Atlanta has finally found an innovative program that aids with solving crimes. From 2000 to 2002, Atlanta was ranked as the city with the highest rate of violent crime and the only city that did not have a Crime Stoppers program. Now within the first year, Atlanta’s Crime Stoppers has helped clear 64 cases. One example was solving the case of 9-year-old Annijah Rolax who was killed by a stray bullet last July while sitting at her computer.

Cyber crime costs big bucks.
Martin Bosworth writes on consumeraffairs.com of a report issued on April 4 by the Internet Crime Complaint Center (IC3), a partnership with the FBI’s Bureau of Justice Assistance and the National White Collar Crime Center. The report found that US citizens lost $239 million in various Internet based fraud schemes, which has risen from $189 million in 2006. The highest dollar loss per incident was reported by internet-based investment and retirement scams.

Missouri woman receives death penalty
for the killing an expectant mother and keeping the child for her own. Lisa Montgomery strangled Bobbie Jo Stinnett and then cut the baby out of her abdomen. In Capital-Journal published Saturday, Steven Fry wrote that a federal judge sentenced Montgomery to death after an eleven-minute hearing. Neither the victim’s family or Lisa’s in laws had anything to say. Yet her defense attorney Fred Duchardt said “I'm sad that we were not able to convince the jury of what a sweet individual, a loving person, Lisa is.”

Discrimination Alleged Florida in Murder Case
Today ABC News reports, on an NAACP claim of discrimination in Manatee, Florida murder case. Michael Walker, a 19 year old, is connected with the death of 67-year-old Daniel Ramsey. Ramsey was shot on Valentine’s Day when he and his wife discovered two men robbing his home. Walker, who was the driver of the getaway car, is facing a 25 to life sentence if convicted. Local NAACP president Trevor Harvey says, “In similar cases white accomplices have received lighter sentences.”

Florida: Mental incompetence claims have doubled
According to the New-Press, a legislative study reports Florida has experienced a dramatic increase in felons found mentally incompetent to stand trial. Last year analysts estimated that 2,123 adults were judged incompetent for trial, more than twice the number judged incompetent in 2002. The Office of Program Policy Analysis and Government Accountability said, “This increase suggests that individuals with mental illness are coming into contact more frequently with the criminal justice system.”

Charlton Heston died Saturday night. This story from the Associated Press describes his achievements as an actor, most notably in historical epics, and then says this:

The actor assumed the role of leader offscreen as well. He served as president of the Screen Actors Guild and chairman of the American Film Institute and marched in the civil rights movement of the 1960s.
With age, he grew more conservative and campaigned for conservative candidates. In June 1998, Heston was elected president of the NRA, for which he had posed for ads holding a rifle.

Note how the change to being considered "more conservative" is reflexively attributed to a change in the man rather than a change in the times.

The Day Freedom Died

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Charles Lane, who formerly covered the Supreme Court for the Washington Post, has a book titled The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction. The subject is the 1873 murder of scores of black men in Colfax, Louisiana, the prosecution of that case by the U.S. Attorney, and the Supreme Court's reversal in United States v. Cruikshank, 92 U.S. 542 (1875). Cruikshank is one of the cases near the end of Reconstruction that effectively gutted the Fourteenth Amendment for a time. Guest-blogging at the Volokh Conspiracy, Chuck has posts on the book and the case here, here, here, here, and here.

The case is a reminder that the worst violations of equal protection of the laws have come not in prosecutions but in failures to prosecute.

New York Times and SCOTUS

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The NY Times' new Supreme Court reporter will be Adam Liptak, reports Lyle Denniston at SCOTUSblog. Congrats to Adam. We have worked with him on other legal issues in the last couple of years and look forward to discussing the Supreme Court cases with him.

Juan Williams on Black Leadership

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On the 40th anniversary of the assassination of Martin Luther King, Jr., Juan Williams has this op-ed in the Wall Street Journal on the state of Black leadership and Barack Obama. "While speaking to black people, King never condescended to offer Rev. Wright-style diatribes or conspiracy theories. He did not paint black people as victims." Can Obama do the same? "Last March in Selma, Ala., Mr. Obama appeared on the verge of breaking away from the merchants of black grievance and victimization. At a commemoration of the 1965 Selma-to-Montgomery march for voting rights, he spoke in a King-like voice."

But it wouldn't last.

News Scan

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Clowning in Court: Memo to advocates: don't make stupid attempts at humor when you are in court on a very serious topic. Everybody knows that, right? Not quite. In a hearing on lethal injection in Ohio, ACLU legal director Jeff Gamso brought three Darth Vader masks to court and suggested that the three anonymous, medically trained members of the execution team could wear them while testifying. Judge James Burge was not amused. Neither was Ohio AAG Steve Maher. Brad Dicken reports here for the Chronicle-Telegram.

Phoenix Sniper Pleads Guilty: One of the two suspects arrested in 2006 for a series of random shootings in Phoenix between 2005 and 2006 has agreed to plead guilty. AP writer Chris Kahn reports that Samuel Dieteman also agreed to testify against his co-defendant Dale Hausner in a plea agreement which may spare him from a death penalty. The pair are implicated in shootings that killed seven and wounded 17. It is likely that Arizona taxpayers and the victims in this case will see justice done with less expense and more speed because the state has a death penalty that Dieteman wanted to avoid.

Creative Financing of the San Francisco District Attorney's budget has been found by federal auditors who want the city to repay $5.4 million in grants made by the Southwest Border Prosecution Initiative. The program funds border state prosecution of drug smugglers which could have been prosecuted by the federal government. The defendants are often illegal aliens. SF Chronicle reporter Jaxon Van Derbeken writes that while the city claimed it handled 2,241 cases, the audit reported that none were prosecuted by DA Kamala Harris' office. As a sanctuary city, San Francisco refuses to assist federal law enforcement in cases involving illegal aliens.

Police ID Bank Robber: Michigan police arrested a woman one hour after she attempted to rob a bank in Warren. Moments prior to pulling a gun and demanding money, the woman completed an account application and included the required picture ID. When she panicked and ran, police went to her nearby apartment and arrested her. "We're probably not dealing with the smartest person in the world," said the police commissioner. The AP story is here.

News Scan

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Releasing Criminals: "Lawmakers from California to Kentucky are trying to save money with a drastic and potentially dangerous budget-cutting proposal: releasing tens of thousands of convicts from prison, including drug addicts, thieves and even violent criminals," reports Ray Henry for AP. "'To open the prison door and release prisoners back into communities is merely placing a state burden onto local governments and will ultimately jeopardize safety in communities,' said Fresno Police Chief Jerry Dyer, who could see 1,800 inmates released in his area."

The Jefferson Warrant: The Los Angeles Times has this editorial regarding the case of the search warrant for Congressman Jefferson's office, previously noted here and here. "The U.S. Supreme Court this week missed an opportunity to make it clear that members of Congress suspected of a crime must answer to the law just as any ordinary citizen must."

Domestic Violence: The WaPo has this editorial on the case of Mark Castillo, who is charged with drowning his three young children. Among the problems, "A court-ordered psychological evaluation had concluded that the 'risk of harm Mr. Castillo poses to his children is low,' while noting that he loved and cared for his children."

Covert DNA Sampling: Amy Harmon has this story in the NYT on legal challenges to police gathering DNA from discarded items such as cigarette butts.

The Presidential Candidates' positions on crime and law enforcement are discussed in this article from Harvard's Nieman Watchdog by researcher Nonna Gorilovskaya. While the piece draws most its information from the decidedly pro-defendant Sentencing Project it does identify the change of positions on the death penalty by Senator Obama and Senator McCain's opposition to the a 1994 House measure called the "Racial Justice Act", which would have allowed defendants to litigate the false issue of "race-of-victim bias" in capital cases. The smoke and mirrors on this issue are explained here.

The Ninth Circuit today decided Osborne v. District Attorney's Office (Anchorage), No. 06-35875. (Hat tip: Ward)

William Osborne, an Alaska prisoner, brought this action under 42 U.S.C. § 1983 to compel the District Attorney’s Office in Anchorage to allow him post-conviction access to biological evidence—semen from a used condom and two hairs—that was used to convict him in 1994 of kidnapping and sexual assault. Osborne, who maintains his factual innocence, intends to subject the evidence, at his expense, to STR and mitochondrial DNA testing, methods that were unavailable at the time of his trial and are capable of conclusively excluding him as the source of the DNA....
[U]nder the unique and specific facts of this case and assuming the availability of the evidence in question, Osborne has a limited due process right of access to the evidence for purposes of post-conviction DNA testing, which might either confirm his guilt or provide strong evidence upon which he may seek post-conviction relief.

Connecticut residents were horrified last summer when two lifelong criminals reportedly raped, murdered, and killed a mother and her two daughters before setting their house on fire in an effort to cover their crimes. Stories here and here. Suspect Joshua Komisarjevsky lengthy arrest and parole history is detailed here.

Now comes information that another home invasion and murder this past weekend in Connecticut likely involved a sex offender with several previous convictions whose PSI's were waived several times:

When Williams was sentenced in 1996 and 2000 for burglary and sexual assault, the judges in both cases did not seek a report examining his personal history.

Pre-sentencing investigative reports, known commonly as PSIs, are an exhaustive look into an offender's life.

Written by about 25 to 30 probation officers across the state, they can delve into an offender's drug abuse problems, school records, family history, past offenses, any mental health issues, social history and past success or failure with probation. Interviews with victims and family members are often conducted, giving a judge a fuller picture of an offender about to be sentenced.

According to a news story, the suspect said he had "no choice" but to kill the two women.

Trust Me: I'm a Brain Scan

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From Mind Hacks comes this:

Hot on the heals of a recent study that found that neuroscience jargon made unlikely scientific claims more believable, comes a new study, covered by the BPS Research Digest, that found that simply showing a picture of a brain scan made bogus science more convincing.

More to read at the site, plus a link to How to Lie with fMRI Statistics.

Also referenced at Neuroethics & Law Blog.


Of Crime and Governors

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California Attorney General, and former Governor, Jerry Brown is hinting he may run for governor again, according to this article in the SF Chron by John Wildermuth. His speech to the Democratic convention includes this statement:

When he was governor, there were 20,000 people in state prison, Brown said. Now there are more than 170,000, and "we've got more crime than ever before."

Um, excuse me. According the Bureau of Justice Statistics, the violent crime rate in 1982, the last full year Mr. Brown was governor, was 814.7 per 100,000 population. In 2006, the last year with final numbers, it was 532.5/100k. That is not more, Mr. Brown, that is 34.6% less. The property crime figures per capita are 6,470.7 and 3,170.9, respectively. That's less than half.

Even the absolute crime numbers are down from 1982 to 2006, despite a 47% increase in population.

Of course, there are multiple factors involved in the crime drop, but saying we have more crime now than then is just factually wrong.

Here is the BJS Data Online, if you'd like to check for yourself.

Homicide Moratorium?

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The Los Angeles City Council debated a resolution declaring a 40-hour moratorium on murder, David Zahniser reports for the LA Times. Commenters at the Volokh Conspiracy discuss whether this was an April Fool's joke. Ultimately, the council "decided instead to use the upcoming anniversary of Dr. Martin Luther King Jr.'s assassination as an occasion for promoting peace."

Of course, if they actually wanted to lower the homicide rate, they should call on the Legislature to enact reforms to actually enforce California's death penalty. As Paul Rubin of Emory University testified to Congress a couple of years ago, "The literature [on deterrence] is easy to summarize: almost all modern studies and all the refereed studies find a significant deterrent effect of capital punishment." But then again, if you only interested in making a statement and not in actually accomplishing anything, the research is irrelevant.

News Scan

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Appeal of Congressional Search Denied: The U.S. Supreme Court refused to hear the government's appeal of last year's DC Circuit holding regarding a search of the Congressional office of Rep. William Jefferson (D-La). A story by LA Times reporter David Savage discusses the lower court ruling in U.S. v. Rayburn Office Building and the effect of the high court's refusal to reconsider it. Jefferson is facing prosecution in Virginia on bribery charges.

Death Row Appeals by seven Mexican-born inmates in Texas were rejected by the Supreme Court yesterday. The condemned murderers had raised international rights claims which were addressed in last week's Medellin decision. A story by Houston Chronicle reporter Bennett Roth reports that fourteen Mexican nationals are currently awaiting execution in Texas.

Also on Medellin, the Federalist Society has an online debate here and here with Texas SG Ted Cruz, St. Louis U. Law Professor David Sloss, Georgetown U. Law Professor Nick Rosenkranz, and former State Dept. lawyer Edwin Williamson.

Military Commissions, challenged as unconstitutional in the pending Supreme Court cases of Boumediene v. Bush and Al Odah v. US, are the subject of this editorial in today's Wall Street Journal. The piece discusses the recent filing of charges against Gitmo detainee Ahmed Khalfan Ghailani, who is implicated in the 1998 bombing of two U.S. embassies which killed over 200, including 12 Americans.

Interesting Reading...


Psychology and Crime News mentions several studies in the current issue of The Social Science Journal. The abstract for the study: Secondary analysis of dangerousness among death sentenced capital murderers reads thusly:

The theory of incapacitation involves reducing an offender's ability or capacity to commit further crimes. Capital punishment accomplishes this goal. An executed murderer never murders again. However, we do not execute all murderers, only capital murderers. This policy produces several research questions. Do capital murderers present a special risk to society? Are capital murderers more likely to murder or commit other violent crimes again than other murderers or the average citizen? To answer these questions, many states require a prediction of future dangerousness of a newly convicted murderer. To what extent has the judgment of future dangerousness matched actuarial data of subsequent murders and serious crimes? Using a secondary analysis, this investigation attempted to assemble available data of postconviction dangerousness of death sentenced capital murderers to create a more comprehensive actuarial account of subsequent dangerousness and to present the data in a common format used by the Federal Bureau of Investigation and the Bureau of Justice Statistics. Across 14 studies identified with relevant data, there were 13 instances of subsequent murder and 462 serious crime or prison rule violations.

From the very beginning -- in the pre-Internet dial-up BBS days -- online discussions have been infested with intellectual ankle-biters who have little or nothing of substance to add to the discussion and simply sling insults at those who do. This pollution of an otherwise valuable medium continues in the form of comments on blogs. A year and a half ago, SCOTUSblog tried an interesting experiment to clean up its comments by requiring commenters to use their real names. The experiment was a partial success, in my view, but not enough for the sponsors of the blog. A post there today states, in part:

At the beginning of OT06,* we instituted our current comment policy, whereby commenters will not be approved unless they leave their full names. We did that to prevent what we saw as unproductive sniping by a tiny minority of our readers that took away from the overall quality of the blog. After a year and a half of that policy, that sort of silly sniping has not abated despite the change.
As such, beginning immediately, we are going to formally disable the comments feature on most of our posts....

It is indeed unfortunate that it has come to this. I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.

So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.

*October Term 2006, the term of the United States Supreme Court beginning on the first Monday in October.

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