July 2008 Archives

News Scan

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Inmate Confesses to Murder, Halts Execution: Thomas Arthur received his third stay of execution on Wednesday after Bobby Ray Gilbert, in prison for murder, signed a sworn statement that he committed the murder for which Arthur was convicted. Judy Wicker, the victim's wife, served ten years for hiring the killer and maintains that she hired Arthur, not Gilbert. The AP reports that defense attorneys will be examining DNA and witness testimony in light of the new development.

New CA Law Targets Taggers: California's new law will require those convicted graffiti vandalism to clean up their 'art', and may be required to keep the surface clear for up to one year. According to the SF Chronicle's story, the judge will have the discretion to forgo the requirement if the defendant would be at risk of injury during cleaning, such as a highway overpass.

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Legal Rights for Detainees a Tool for Terrorists?: In her op-ed for the WSJ, Debra Burlingame illustrates the likely repercussions of traditional trials for Guantanamo detainees, particularly emphasizing the risk to Americans if other countries refuse to accept prisoner transfers. The account of a former detainee's recent martyrdom and his poem about imprisoning "Miranda" are particularly chilling.

San Quentin Death Row Costs Soar
: According to Matthew Yi's SF Chronicle article, the state auditor now estimates the cost of expanding San Quentin's Death Row will exceed original estimates by at least $40 million, and the addition could run out of space within a few years of its completion. Criminal justice advocates argue that the state should consider housing death row inmates in other prisons throughout the state so that San Quentin would not require continuous expansion.

Decriminalization of Marijuana Use?
: Despite the fact that the both the Drug Enforcement Administration and the White House Office of National Drug Control Policy argue that marijuana is dangerous and lacks any accepted medical use, members of Congress have introduced a proposal to legalize personal use of marijuana. The proposal would treat marijuana much the same as alcohol. According to CNN's report, the proposal would not affect current laws prohibiting on growing, importing, or exporting marijuana and selling for a profit would still be illegal.

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Court-Martial Death Sentence For Serial Rapist-Murderer: This morning, Dan Slater posted links to the New York Times and AP articles on the President's approval of the death penalty for Ronald A. Gray at the Wall Street Journal Blog. Our News Scan has the link to the Washington Post article. According to Slater's post, Gray was convicted of four murders and eight rapes from April 1986 through February 1987 while he was stationed at Fort Bragg. Gray has been held at the U.S. Disciplinary Barracks at Fort Leavenworth, Kan., since April 1988. Approval of Gray's death sentence yesterday does not mean he will immediately be executed. The President's decision only clears the way for a round of appeals in civilian courts, beginning with the Federal District Court. One of the issues the civilian courts are likely to review whether Gray can be executed as Congress has since required all capital cases to be considered by a 12-member jury.

Ninth Circuit Fun in Sun Valley, Idaho: Dan Slater also has a post on Judge Jay S. Bybee's speech at the annual judicial conference in Sun Valley, Idaho. Judge Bybee's speech to attendees used pictures to reflect on how the Ninth is viewed by other circuits. Judge Bybee's speech surely got some laughs when he displayed a slide of sword-wielding Mongol hordes attacking on horseback across a plain, and stated, “This is how we appear to the Supreme Court.” For a photo of a colorful band of 1960s hippies sprawled across a bus painted in psychedelic colors he said, “But this is how other circuits see us.” “And this is how other circuits look to us,” he said, for a shot of 1950s Boy Scouts marching in lock step carrying American flags.

Whalen, Dworkin and Boumediene: At Bench Memos, Ed Whalen has posted his critique of Ronald Dworkin's essay, published in the New York Review of Books, on Boumediene v. Bush. Dworkin's essay claims the Boumediene decision was a "Great Victory," but Whalen disagrees. Whereas Dworkin sees the decision, which “undermines the assumption, widespread among lawyers and scholars for decades, that the Constitution as a whole offers substantially less protection against American tyranny to foreigners than it does to America’s own citizens[]”, as a victory, Whalen contests Dworkin's premise "that there is a constitutional (or moral) mandate to afford foreigners abroad—especially including those detained by the military as enemy combatants—the same rights as American citizens." Whalen finds support for his argument in the Supreme Court's decision of Johnson v. Eisentrager, and the actual text of the text of the Constitution, which was meant to "'secure the Blessings of Liberty to ourselves and our Posterity,' not to the entire world."

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President Approves Soldier's Execution for Murder: A request to execute a member of the military has not been made since 1962, and one hasn't been granted since 1957. That changed yesterday when President Bush approved the execution of Army Private Ronald A. Gray, who was convicted in 1988 of 4 murders and 8 rapes. According to Dan Eggen's WA Post article, it will likely be several more years before an execution could occur due to anticipated "legal challenges".

Justice Department Probe Confirms Illegal Hiring Bias: Federal law prohibits political or ideological hiring for career civil-service jobs, but a recent internal investigation of the Justice Department revealed several violations by former senior department officials. According to Evan Perez's WSJ report, most violations occurred in a system designed to screen candidates for positions as immigration judges.

SF 'Road Rage' Slaying Gang Related: According to Bob Egelko's SF Chronicle story, SF police say the supposed "road rage" incident that left Tony Bologna and his two sons dead was actually a case of gang violence. Edwin Ramos, a suspected member of the Salvadoran gang MS-13, opened fire on the Bologna's car after mistakenly identifying Bologna's sons as members of a rival gang.

Endorsement for Obama

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Though little noticed in the national press, Barack Obama picked up an endorsement last week, according to this report by Kathleen Baydala in the Jackson Clarion-Ledger. "'For those who oppose the death penalty and want to see it end, our best bet is to vote for Barack Obama because his supporters have been working behind the scenes to end this practice,' [Dale Leo] Bishop said."

However, Mr. Bishop will not be able to vote for Sen. Obama because he is (1) a convicted felon, and (2) deceased. Shortly after making the above statement, he was executed for his role in the fatal claw-hammer beating of Marcus Gentry in 1998. The story says, "Bishop did not deliver the fatal blows." True, but he supplied the murder weapon, forcibly brought the victim back after he escaped, and actively participated in the fatal assault. The Fifth Circuit opinion is here. This is a prime example of a crime where the question of which perpetrator actually delivered the fatal blow has little to do with culpability.

Ramirez on Hamdan

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My favorite political cartoonist is Michael Ramirez of Investors Business Daily. (He used to be with the LA Times, which made a huge mistake in letting him go.) Not only are his cartoons funny and insightful, but he actually knows how to draw. That is a rarity for political cartoonists these days, with major newspapers publishing kindergarten-level stick figures. Here is his take on the Hamdan case. (The Supreme Court opinion is here.)

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U.S. Asks Supreme Court to Rehear Kennedy v. Louisiana: Last week, Louisiana asked the U.S. Supreme Court to rehear the 5-4 decision of Kennedy v. Louisiana. Today, Lyle Denniston at SCOTUSblog reports that the Justice Department has filed a motion asking the Supreme Court for leave to file an amicus brief and urging the Supreme Court to rehear Kennedy. Curiously, the Justice Department's brief makes no mention of Supreme Court Rule 37.3(a), which states: "The Clerk will not file ... a brief for an amicus curiae in support of, or in opposition to, a petition for rehearing." Normally, the Solicitor General's Office does not have to move for leave to file an amicus brief, but in this case, the Justice Department moves "pursuant to Rule 21 for leave to file this brief as amicus curiae in support of rehearing." While the Solicitor General's Office did not file a brief in Kennedy case, acting Solicitor General Gregory G. Garre argues in the motion that it should be granted leave to file because the U.S. “has a substantial interest in rehearing because the Court’s decision casts grave doubt on the validity of a recent Act of Congress and Executive Order of the President authorizing capital punishment for child rapists under the Uniform Code of Military Justice.” The motion further argues "rehearing is warranted to ensure that a material omission in the decisionmaking process has not tainted the Court’s decision on a matter of such profound institutional, moral, and practical importance."

A post-Heller Debate:
Over at Cato Unbound, Robert A. Levy, Dennis Henigan, David Kopel, and Erwin Chemerinsky debate the U.S. Supreme Court's decision in District of Columbia v. Heller. The Debate began on July 14th, with Levy's essay "District of Columbia v. Heller: What's Next?", and last week Chemerinsky joined the debate with a reaction essay, "The Heller Decision: Conservative Activism and its Aftermath." In his article Chemerinsky argues that Scalia’s majority opinion in Heller was based on a shoddy application of Scalia’s own judicial principles and “powerfully demonstrates that Justice Scalia’s constitutional rulings … ultimately are animated by his conservative politics.” Today, Levy responded to some of Chemerinsky's arguments, particularly the argument that Scalia's opinion ignored the militia clause of the Second Amendment. Levy comments Scalia did address the militia clause, but saw it only as explanatory. Levy writes: "In reality, the militia clause was a means to encourage ratification by the anti-federalists, who were fearful of both standing armies and an armed subset of the militia, which might have been equivalent to a standing army. By guaranteeing that all individuals, not just those in militia service, would have the right to keep and bear arms, the federalists assuaged that fear."

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Serial Rapist Commits Suicide as Police Close In: After nine long months of pursuing a serial rapist that left at least 9 victims in his wake, Prince George's County (MD) police were ready to make an arrest. But Mark Antonio Humphries, also known as the "Craigslist Serial Rapist", was always one step ahead of the police. Following a failed sting, police tracked Humphries to a hotel room, where he killed himself. Aaron C. Davis has the story for the WA Post.

Hamdan Trial Intended to Establish Credibility: While Salim Ahmed Hamdan, bin-Laden's former driver, is not a high-ranking al-Qaeda figure, his trial is still a landmark because prosecutors hope to establish the legitimacy of the military tribunal process. According to Jerry Markon's report for the WA Post, Hamdan's trial has gone according to plan so far, with experts saying that the prosecution has effectively established Hamdan's material support of terrorism.

Crime Rate Analysis Complicated by Data Collection Methods: Bernie Magnan's article for the Vancouver Sun reveals that the problem of accurate data collection for crime statistics is not just a problem in the US. Two different measures of crime are collected in both the US and Canada, one through police reports and one through victim surveys. Not surprisingly, many victims don't report crimes to the police, and a large discrepancy often exists between the two methods.

A Midsummer Morning's Orders List

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The Supreme Court issued one of the orders lists that we typically get during the summer between the June adjournment and the October commencement of the next term. As usual, there is nothing too interesting on it. Rehearings are denied in a bunch of cases the Court did not take for briefing and argument. Lyle Denniston notes at SCOTUSblog that there was no action on pending rehearing petitions in the child rape case, Kennedy v. Louisiana, or the Iraq turn-over cases, Munaf v. Geren and Geren v. Omar.

Justice Scalia referred a stay request to the Court, which denied it, in Stewart v. Superior Court, 07A963. This appears to be a civil case, probably domestic relations. Petitioner and real party in interest are both named Stewart. Cal. App. info here.

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'Jessica's Law' Gains Traction in Vermont: The murder of a 12-year-old Vermont girl, Brooke Bennett, has received nationwide attention. Her uncle, a registered sex offender, has been charged in connection with her death. According to this AP article, the revelation that a supposedly rehabilitated sex offender was likely involved in the girl's disappearance and death has sparked considerable support for Jessica's Law in Vermont.

Off-Duty Officers Nabs Sex Offender at Gym
: According to Stan Oklobdzija's Sac Bee report, Jeffrey Clarke Cameron of Rancho Cordova was taken into custody after an off-duty police officer noticed him talking to an obviously underage boy at a gym. The officer recognized the GPS ankle monitor Cameron was wearing as the type used to track high-risk sex offenders. As a condition of Cameron's release, he was forbidden to have contact with juveniles because he was convicted of lewd and lascivious acts with a child under 14.

FL Prosecutor Motions to Have Sex Offender's Bond Revoked: Following up on a report we did yesterday, South Florida prosecutors have asked that Aaron Mohanlal be taken back into custody. Mohanlal has not served a single day in prison after being sentenced to 43 years for 13 charges related to continual sexual abuse of a minor that lasted for nearly two years. Ashley Fants of CNN writes that Mohanlal is only monitored by a GPS tracking unit and would remain free throughout the initial appeal unless the prosecutor's motion is granted.

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New York Judge Finds Constitutional Right to DNA Evidence: Eugene Volokh at Volokh Conspiracy has a post on yesterday's decision in McKithen v. Brown. The decision came out of the U.S. District Court for the Eastern District of New York. It recognizes a constitutional right to DNA evidence for filing a clemency petition. Volokh cites to a portion of the opinion to demonstrate the basis of the decision. According to Judge John Gleeson, "The Petition Clause ... secures a right of meaningful access to whatever avenues remain, and the Due Process Clause confers a procedural right of access to evidence for DNA testing, if the testing can be accomplished at little cost and exculpatory results would undermine confidence in the outcome of the trial." McKithen was remanded to the Eastern District Court by the Second Circuit back in March 2007. Doug Berman's 2007 post at Sentencing Law and Policy can be found here.

The Right to Allocution in California:
Today at Sentencing Law and Policy Doug Berman reports on the California Supreme Court's decision in People v. Evans. Evans addressed whether before sentencing a convicted defendant had the right to make an unsworn personal statement in mitigation of punishment. In 1994, one California Court of Appeal said yes, in In re Shannon B. (1994) 22 Cal.App.4th 1235 (Shannon B.). Today's decision by the California Supreme Court gives the criminal defendant the right to make a statement in mitigation before sentencing, but "only while under oath and subject to cross-examination by the prosecutor." Berman also provides the link to the San Francisco Chronicle article on the case.

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Convicted Child Molester Free During Appeals Process: Aaron Mohanlal was convicted of 13 counts related to sexual abuse of a 13-year-old boy that lasted for nearly two years. Although he was sentenced to 43 years in prison, the Broward County, Florida judge has allowed him to remain in the community for the duration of his initial appeal. According to Ashley Fantz's report for CNN, the judge maintains he followed the law in making his decision. Perhaps it's time for the legislature to reexamine that law.

Two Murderers Executed: Texas and Mississippi have executed convicted killers Derrick Sonnier and Dale Leo Bishop, respectively. The AP reports that Sonnier was convicted for the 1991 rape and murder of a woman and the murder of her two-year-old son. Bishop was convicted for being an accomplice to the 1998 fatal beating of Marcus Gentry.

Struggle to Balance Homeland Security and Law Enforcement Needs
: Smaller jurisdictions like Providence, RI are struggling to strike a balance between funding homeland security initiatives and daily law enforcement needs, according to David Johnston's NY Times story. Like many law enforment agencies, Providence recommitted itself to aiding national interests after 9/11, as it should have, but officials argue that rapists, murderers, and gangs are just as dangerous for the community

Louisiana's rehearing petition in the Supreme Court case continues to prompt much discussion. Our post on the original decision is here. SCOTUSblog has the petition for rehearing here. Doug Berman's latest SL&P post, with a link to the prior one, is here. The main point of the rehearing petition is that the parties failed to brief, and therefore the Court was unaware, that Congress has provided for the death penalty for rape of a child in the Uniform Code of Military Justice. The "consensus" analysis of the opinion is therefore not entirely accurate.

I do not believe this will make a difference. The military is unique, and the fact that Congress thought this penalty is necessary in a military context says little about its appropriateness for the general population. The crime of rape by soldiers is one that particularly inflames the local citizenry against the military, and the damage may go far beyond the individual victim to an impairment of the mission. We have seen this in Iraq.

Indeed, it is an open question whether the entire Furman v. Georgia regime even applies to the military. In Loving v. United States, 517 U.S. 748, 755 (1996), the Court applied this line of precedent in a military case but noted it was assuming rather than deciding that question. The Government had not challenged the applicability of Furman. The ASG writing the brief wanted to but couldn't. It was the Clinton Administration. The issue was raised by a certain wascally amicus, but the Court took its usual position of limiting its decision to the issues raised by the parties.

So, I expect the most we will get from this rehearing petition is a minor modification of the opinion.

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CA Jessica's Law Nets Conviction, 20-year sentence: California enacted Jessica's Law in 2006, and it seems to be working, according to Niesha Lofing's story for the Sac Bee. The Yolo County District Attorney's Office won a 20-year sentence under Jessica's Law against a 27-year-old man who molested two girls, age 10 and 12.

GPS Gains Support After PA Loses Track of 900 Sex Offenders
: Pennsylvania Auditor General Wagner is recommending a minimum of 5 years of GPS tracking for sex offenders who refuse to comply with Megan's Law after a state audit revealed that officials lost track of 900 registered sex offenders, or roughly 10%. According to Martha Raffaele's AP article, the state would require offenders to participate in the cost of GPS monitoring.

Sac Crime Rate Down 8%: According to Chelsea Phua's report for the Sac Bee, the Sacramento Police Department is "cautiously optimistic" about the 8% decline in crime for the first half of 2008. The department is continuously reviewing what works and what doesn't in order to make Sacramento's law enforcement efforts as effective as possible.

Sequential Lineups

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Sequential lineups have been touted as inherently superior to simultaneous lineups. A new study indicates that the situation is not quite that simple. (Hat tip: Psychology and Crime News) The article is:
Lineup composition, suspect position, and the sequential lineup advantage.
Carlson, Curt A.; Gronlund, Scott D.; Clark, Steven E.
Journal of Experimental Psychology: Applied. 2008 Jun Vol 14(2) 118-128

Abstract after the jump:

Notable Opinions

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Here are a couple of noteworthy opinion pieces in the papers:

SF Chrontrarian Debra Saunders has a column on the SF "sanctuary" policy noted in today's News Scan. She notes "the concept started as a way of letting otherwise law-abiding residents know that they could report crimes to police, send their children to school and see a doctor - without fear that local authorities would turn them into federal authorities." But it didn't stop there.

It was only a matter of time before gang members, including foreign-based drug cartels, figured it out - that no matter what they did in San Francisco, no matter how serious the offense, they need not fear deportation. They knew that The Special City's special politics would shield them.
The worst of it is: Prosecutors went along. The courts went along.
Violent repeat offenders were getting an easy ride. In Ess Eff, that was business as usual.

Steven Calabresi, NWU law prof and co-founder of the FedSoc, has this op-ed in the ChiTrib. What if the Supreme Court read the constitutional age limit for President the same way it reads the Eighth Amendment? (Hat tip: Volokh Conspiracy)

Barack Obama is too young to be president. Yes I know he is 46 and the Constitution sets the presidential age qualification at 35 or higher, but Obama has said that we ought not to interpret the Constitution woodenly and formalistically. Perhaps we should look deeper at the presidential age limit. If we do, we will find that Obama really is too young to be president.
* * *
Of course these "purposive" and "pragmatic" interpretations are nonsense in my opinion for reasons that Supreme Court Justice Antonin Scalia and legal scholar Robert Bork have long made clear. The framers said 35 in plain English and 35 it is. If Obama wins the election, the courts should not find him barred from serving as president by reason of his youth—notwithstanding the evolving standards of mental acuity that mark the progress of a maturing society as to presidential eligibility.

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A Below-Guideline Sentence Unreasonable in Sixth Circuit: At Sentencing Law and Policy, Doug Berman reports a split Sixth Circuit panel reversed "a sentence well below the guidelines as substantively unreasonable." The opinion, U.S. v. Funk, No. 05-3708, was released today. Berman comments: "There is a lot of Funky spunk in both the majority opinion's effort to make sense of reasonableness review," and notes that "reasonableness review" is "challenging." Berman points to Judge Bogg's dissent as an example as to why reasonableness review after Rita, Kimbrough, and Gall, is difficult for appellate courts to implement. Berman comments that given the split, the case may be ripe for en banc review. This means more review for a case that has been around since Funk's 2002 federal indictment for conspiring to possess cocaine and marijuana with intent to distribute.

Louisiana v. Kennedy's Petition for Rehearing: At Bench Memos, Ed Whalen highlights three aspects of the Petition for Rehearing filed by Louisiana yesterday. First, Louisiana retained Georgetown law professor Neal Kumar Katyal as lead counsel for the Petition. Katyal, has said on the record that he agreed to help Louisiana with the opinion "[s]ince the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case" and "I am...opposed to courts taking fundamental decisions away from American voters…. " Second, the rehearing petition correctly states that while Louisiana erred in omitting the federal law, "Louisiana’s mistake 'should neither inhibit the Court’s work nor diminish its fealty to the Constitution.'" And finally, "the rehearing petition documents that the change effected by the 2006 law was “deliberate and premeditated,” was supported by a Department of Defense report that, among other things, discussed Louisiana’s child-rape law, was highlighted to Congress, and was implemented by an executive order and by amendments to the rules governing courts-martial."

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"Highly Coerced" Statements Inadmissible at Guantanamo Commission: Osama bin Laden's former driver, Salim Ahmed Hamdan, received a significant victory in his trial when the judge ruled that prosecutors cannot use some of the defendant's statements, citing coercive conditions in Afghanistan. According to Jerry Markon's WA Post article, experts anticipate that several military trials of Guantanamo detainees will be affected by the decision.

ACLU Aids Felons Challenging Voter Restrictions: The ACLU is challenging an Alabama law that allows felons to vote if their convictions were not for "crimes of moral turpitude". However, the process for having voting rights restored is considered difficult and ambiguous by people petitioning to have their rights restored. According to Bob Johnson's AP story, more than 40 states have made it easier for convicted felons to get their rights restored.

LA Homicide Rate Down: After a disturbing spike in homicides earlier this year, the year-to-date total homicide rate is 2% lower than last year's. According to Andrew Blankstein's LA Times report, last year had the lowest homicide rate in four decades. While homicide is unpredictable and rates change frequently, law enforcement efforts have resulted in a continued decline in homicides over the last five years.

DNA Solves 26 Year Old Homicide: Gerald Abernathy, a habitual criminal, died in prison, while serving a life sentence for kidnapping and murder; the truth might have died with him. Thankfully, a police detective discovered an evidence box from the 1982 rape-murder of a 20-year-old woman. When the DNA was tested using recent technology, the results matched Abernathy, a fugitive at the time of the crime. Dan Morse has the story for the WA Post.

"Sanctuary" Shields Criminals, Endangers Community: San Francisco has been criticized for its policy of not notifying federal immigration authorities of juvenile offenders who are in the US illegally, allowing illegal immigrants with often violent records to remain in the community. Jaxon Van Derbeken's coverage for the SF Chronicle reveals Edwin Ramos, now held for three counts of murder, was sheltered by the city despite convictions for two violent felonies. Ramos's latest charges stem from a road rage incident where he gunned down a father and his two sons, all unarmed.

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Louisiana Seeks Review of Kennedy v. Louisiana: As noted in the News Scan below, Louisiana has moved for rehearing in this case. SCOTUSblog has a post from Lyle Denniston on Louisiana's request. The Petition for Rehearing, was filed late this afternoon. According to Denniston the Petition asks the Court to grant the petition for rehearing and cites to Kennedy's omission of any mention of a federal law for the execution of a child rapist. Since petitions for rehearing are rarely granted, the Petition suggests that if the Court denies rehearing, it should at least seek comments from the U.S. Solicitor General.

NYT Watch: Jim Lindgren at Volokh Conspiracy has this post reporting on New York Times' decision to reject an editorial, written by John McCain, in response to last week's Obama editorial. According to Lindgren, The Drudge Report has a full copy of McCain's editorial. The New York Times Op-Ed Editor, David Shipley, said he would not accept the piece as currently written.

The Exclusionary Rule and Originalism: Also over at Volokh Conspiracy, Orin Kerr has posted his thoughts on whether the exclusionary rule is consistent with orginalism. Kerr states that while many critics say the doctrine is the product of judicial invention, he believes "the exclusionary rule is much more consistent with originalism than its critics believe." To support his argument, Kerr looks at the government's authority to seize property during the early days of the Constitution. He says, "as [he] understands it," "a seizure was permitted if and only if the government had a superior property interest in the item seized." Kerr then argues, that only in cases where the government could actually obtain a warrant, could the government lawfully seize property. It "could not get a warrant to search for and seize mere evidence of crime." Under this rationale, Kerr says evidence improperly seized had to be returned, and if the owner so desired, was excluded from court. To finish up his thoughts, Kerr states "tougher cases for an originalist came later, when the Supreme Court had to determine the scope of the exclusionary rule" and the exclusionary remedy "morphed from a rule about the return of property stolen from a suspect to a rule that evidence obtained in violation of the Fourth Amendment." It was with later cases, like Silverthorne Lumber v. United States, 251 U.S. 385 (1920) that the Supreme Court began using the exclusionary rule as a remedy to deter abuses by suppressing evidence.
Update: Paul Cassell responds here, also at VC.

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Only in America does a search and seizure violation automatically result in exclusion of the evidence. Adam Liptak has this story in the NYT.

Rehearing Petition in Child Rape Case: Louisiana has filed a rehearing petition in Kennedy v. Louisiana, the case in which the Supreme Court held that the death penalty for the rape of a child was unconstitutional. AP story here.

Felons Demand Gun Rights: In the wake of the Heller decision striking down blanket gun bans, felons are alleging their right to own guns for self-defense. According to Mark Sherman's AP article, some criminal defense attorneys argue that their clients, convicted felons, may be more in need of weapons for self-defense and that the restrictions on gun ownership for people convicted of certain crimes is unconstitutional.

Immigration Courts Overwhelmed: In LA County, a single immigration judge had 44 cases on the docket in one day, and another judge had 1600 active cases when he retired. Similar issues have arisen in courts nationwide. According to Anna Gorman's LA Times report, a deficit of attorneys and judges is making it difficult to process the increasing number of immigrants arrested, making immigration enforcement all but impossible.

Violent Crime Victim's Struggle Continues: Opponents of harsh sentencing for repeat offenders often paint a rosy picture of the possibilities of the alternatives to prison, but John Christoffersen and Susan Haigh's AP story is a stark reminder of the permanent damage caused by habitual criminals.

An Astonishing Quote

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The Los Angeles Daily News has this story by Tony Castro on the penalty verdict in the case of Manuel Alvarez. The jury decided on life without parole for a man who killed 11 people by parking on the train tracks. He says he did not intend to kill anyone but himself. Near the end of this story is this passage:

University of Colorado at Boulder sociologist Michael Radelet, one of the nation's leading criminologists and most-cited experts on the death penalty, said that often the extent or even the depravity of the crimes alone does not guarantee death sentencing convictions.
"This case reminds me a great deal of the Jeffrey Daumer case in Wisconsin where so much emotional testimony was allowed during the sentencing phase but Daumer wound up (with) 15 life terms in prison and eventually died there," said Radelet.

If this quote is accurate and in context (neither of which is certain), this is a truly astonishing thing to say. Dahmer did not get the death penalty for the simple and obvious reason that Wisconsin doesn't have the death penalty, not because of any discretionary decision that it was not warranted in his case. (The death penalty was subsequently administered by another inmate, who was criminally judgment-proof in the State of Wisconsin, as he was already sentenced to life.) The two cases are not remotely alike. Dahmer's crime was a long spree of premeditated killing and cannibalism, and the life sentence was a travesty. The Alvarez case was a single act without intent to kill (the jury found), and many people who believe in capital punishment generally would exclude all non-intent cases.

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Follow Up to Yesterday's Gitmo Case: Lyle Denniston at SCOTUSblog reports, and provides a link to Judge Roberston's written opinion explaining yesterday's refusal to delay Salim Hamdan's trial. According to Denniston, the memorandum opinion closely follows the oral announcement Judge Robertson made yesterday. For example, Judge Robertson was persuaded by the fact that to create the Military Commissions Act of 2006 (MCA), the two other branches of government had worked together, “Where both Congress and the President have expressly decided when Article III review is to occur, the courts should be wary of disturbing their judgment.” Robertson also found it significant that the MCA created a new three-layer system of court review of any convictions that resulted. In the earlier system, he noted, final power to review any conviction rested only with the President or Defense Secretary. Denniston also reports that the opinion stated "Hamdan’s challenge to the military commission was 'an issue' removed from the underlying question of detention, the 'historical core' of habeas."

Using State Constitutional Rights to Infer Federal Constitutional Rights: Over the past few days Orin Kerr and Eugene Volokh have been blogging about whether state constitutional rights should be relevant to whether there is an analogous federal constitutional right. Kerr's response to Volokh today provides links to their discussion. Kerr's post today is particularly interesting for its discussion of how inferring federal constitutional rights from the constitutional rights of the individual states "has troubling implications for federalism." Kerr notes that such a practice would reduce the diversity among states, something that has occurred "in the Eighth Amendment setting" but because of the word "unusual" occurs with less frequency. Yesterday, Volokh argued that "if courts look to traditional recognition of a right as evidence that the right should be further constitutionalized, it seems to me that recognition in state constitutions should be an especially influential form of recognition." Heller and Kennedy v. Louisiana, both looked at what the states had recognized to determine a federal constitutional right. Based on these decisions, the current Court appears to be more in line with Volokh's view than Kerr's.

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TX to Proceed with Internationally Contested Executions: The ICJ ordered a review of 5 Texas capital cases after Mexico again complained that the convicts had not been allowed to talk to the Mexican consulate after their arrests. But today, a spokesperson for the governor announced that the executions will proceed as planned, with the first scheduled for August 5.

Chicago Crime Epidemic May Require National Guard
: According to ABC 7 Chicago, the governor has offered to send Illinois State Troopers and National Guard equipment to Chicago to help control spiraling violence in Cook County. According to Governor Blagojevich, 16 children have been killed in the last three weeks, and there are five times as many gang-bangers as police officers.

Investigation Reveals Serious Flaws in Nation's Largest Jail: The AP's Mike Robinson details the results of a 17-month federal investigation of the Cook County Jail in Chicago. While officials were praised for their cooperation, the report alleges a "culture of abuse" within the jail, in which guards conducted organized beatings of inmates who insulted them, among other issues. So far, jail officials are cooperating with efforts to address the problems.

Sac County Drops Gang Tax Plan: Citing opposition from Sacramento County's suburban cities and a not-so-enthusiastic sheriff, the County Supervisor announced that he is abandoning his plan to increase the sales tax to raise funds to combat gangs. According to Ed Fletcher's article for the Sacramento Bee, Supervisor Dickinson will suggest that the Sacramento City Council pursue the tax increase on its own.

From my stack of post-SCOTUS-term catch-up reading comes this executive summary of a study titled "Assessing Consistency and Fairness in Sentencing: A Comparative Study in Three States." It was released May 22 by the National Center for State Courts. I was not able to find the full study on the web site. (Update: The full study is not online but is available from NCSC.)

Movements to curb discretion in sentencing came into vogue in the 1970s and 1980s due to a suspicion that too much discretion was contributing to discrimination on the basis of impermissible factors, especially race. That concern was a large factor in the Supreme Court's decision tossing out unbridled discretion in capital sentencing in Furman v. Georgia, 408 U.S. 238 (1972), as Justice Thomas explained in his great concurrence in Graham v. Collins, 506 U.S. 461 (1993).*

In noncapital sentencing, the same concerns brought about a political consensus that resulted in the enactment of guidelines systems. In federal sentencing, the Sentencing Reform Act creating the guidelines system was sponsored by the strange bedfellows of Ted Kennedy and Strom Thurmond. But do sentencing guidelines really minimize discrimination? The NCSC study supports the claim that they do.

Blog Scan

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Hamdan's Trial Will Go Forward Next Week: At the BLT, Joe Palazzolo has this post on the denial of Hamdan's request to halt his war crimes trial, noted in today's News Scan. The trial is scheduled for next Monday. After a two hour hearing this morning, U.S. District Judge James Robertson ruled he would not grant the request, because "challenges to the lawfulness of the military commissions must be resolved, in the first instance, by the commissions themselves." This ruling came hours after a military judge rejected Hamdan's arguments that the military tribunals violate the Constitution's equal protection clause. During the hearing, Justice Department lawyer John O'Quinn stated that he interpreted Boumediene v. Bush to mean "the applicability of the Constitution to detainees at Guantanamo is context-specific. The opinion made plain that the Suspension Clause applied to detainees, but the applicability of others, like the equal-protection clause, should be determined in the commissions..." Judge Robertson may have bought the argument here, but also made clear that his decision was not binding on other judges.

The Second Amendment After Heller: Hattip to Eugene Volokh at Volokh Conspiracy for the link to Glenn Reynolds & Brannon Denning's article on Heller in Northwestern Law Review's Colloquy. The article, "Heller's Future in Lower Courts", argues "many commentators have missed an important point" because, according the the authors, Heller's most important contribution "is its complete and unanimous rejection of the 'collective rights'" - something lower courts have relied on for "nearly seventy years." In the article the authors discuss how the Heller decision may allow the lower courts, when addressing challenges to state gun laws, to rewrite case law on the Second Amendment. Also, Volokh and Doug Berman at SL&P disagree over whether a recent unpublished Ninth Circuit decision is "sensible" in rejecting Heller-based challenges to law against machine guns, sawed-off guns, and possession of guns by felons.

Texas Still Plans to Execute Prisoner, Despite World Court Ruling: At Sentencing Law and Policy Doug Berman sums up the legal drama that has unfolded between the World Court and Texas over the past two days. As reported on SCOTUSblog yesterday, the World Court had ordered Texas to halt the five planned executions Jose Ernesto Medellin, Cesar Roberto Fierro Reyna, Ruben Ramirez Cardenas, Humberto Leal Garcia and Roberto Moreno Ramos. The Houston Chronicle reported today that despite the World Court's order, Texas still planned to proceed with the August 5th execution of Medellin.

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World Court Demands Stay of Execution for Avena Inmates: In 2004, the World Court ruled that the United States had violated the Vienna Convention by not allowing 51 arrested Mexican nationals to contact consular officials after their arrest and by invoking procedural default rules against belated assertions of these claims. President Bush issued a directive to state courts to comply with the decision, but in Medellin v. Texas the Supreme Court held that his memorandum had no legally binding force. Five of these murderers are now approaching execution in Texas. Mexico returned to the World Court seeking an injunction.

Judge Okays First Gitmo Trial: According to James Vicini's article for Reuters, Salim Hamdan's attorneys argued that the military tribunal should not proceed while they challenge their client's designation as an enemy combatant and the constitutionality of the tribunal system. The judge ruled that those challenges can only be heard after a trial occurs and that the trial could begin next week as planned.

Infamous NJ City Sees Drop in Homicides: Newark has gained notoriety as a very violent city, but thanks to a tough-on-crime mayor and his hands-on police director, that's changing. Through more effective policing and a campaign against community apathy, Newwark's violent crime rate fell in all 7 categories last year, according to David Porter's AP report.

Missouri Injection Protocol Upheld

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In Baze v. Rees, Chief Justice Roberts wrote,

"Justice Stevens suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1, but the standard we set forth here resolves more challenges than he acknowledges. 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 opinion at p. 22)

Much of the spin in the immediate aftermath of the decision claimed that Stevens was right and the decision just opened the door to a new round of challenges. But it appears that Roberts was right, as court after court rejects post-Baze challenges and allows executions to proceed. Missouri is the latest, with Federal District Judge Fernando Gaitan, the same judge who halted executions in that state pre-Baze, deciding they can now proceed.

Safe Neighborhoods Act Website

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The website for Proposition 6 on California's November ballot, the Safe Neighborhoods Act, is now up. Due to the chronic dysfunction of the California Legislature, it is necessary once again to turn to the initiative process to give public safety its appropriate priority.

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Debate Intensifies over New Death Row: Randy Dotinga for the CSM reports death penalty opponents are now opposing a proposal to move some of California's death row inmates to facilities outside San Quentin. Proponents argue San Quentin's intended expansion will cost $400 million unnecessarily since desert facilities could accomodate death row inmates. Opponents protest that lawyers, families, and activists will not have sufficient access to inmates if they are moved to the desert.

Tate Murderer Denied Compassionate Release
: 39 years after participating in the gruesome Tate-LaBianca murders that left 7 people dead, Susan Atkins applied for compassionate release, citing a terminal illness. Atkins testified that when Sharon Tate pleaded for the life of her unborn child, Atkins "told her I didn't have mercy for her." Fittingly, the State has decided that life without parole means just that.

'Street Time' Part of Sentence for Parole Violators: According to Robert E. Pierre's story for the WA Post, the DC Council is considering a bill that would allow "street time" to count toward a parole violator's original sentence if their parole is revoked for a violation. 24 states currently allow credit for street time while 14 others allow discretion to choose whether street time should count.

Support Increasing for Anti-Gang Tax Plan
: While opposition to the sales tax remains focused on the lagging economy, a new draft of the proposal will ensure that the proceeds remain in the counties where they are collected. The quarter-cent sales tax increase is intended to provide intervention and prevention for at-risk kids to combat the growing gang presence. According to Ed Fletcher's article for the Sac Bee, the provision to keep the revenue in county has garnered significant support from administrators.

Circle Sentencing Study

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From New South Wales, Australia, comes this study on "circle sentencing," an aspect of the "restorative justice" movement (hat tip: SL&P). Here is the abstract:

Circle sentencing is an alternative method of sentencing Aboriginal offenders which involves the offender’s community in the sentencing process. This bulletin considers whether people who participate in circle sentencing (1) show a reduction in the frequency of their offending, (2) take longer to reoffend and/or (3) reduce the seriousness of their offending. The results suggest that circle sentencing has no effect on any of these outcomes. Circle sentencing participants offended less in the 15 months following their circle. However, the same was also true of Aboriginal people sentenced in a traditional court setting (the control group). After a range of offender and offence characteristics were controlled for, we found no difference between the circle sentencing group and the control group in time to reoffend. Finally, there was no difference between the circle sentencing group and the control group in the percentage of offenders whose next offence was less serious than the reference offence.

ABC story here.

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Fourth Circuit Upholds Presidential Authority To Detain Foreign Student Living In U.S.: SCOTUSblog posted on today's Fourth Circuit ruling in Al-Marri v. Pucciarelli (06-6427). The decision allows President Bush to detain a foreign student living in the United States, based on claims the student has terrorist links. While the Fourth Circuit ruled the President has the authority to detain, it also found the petitioner had not had sufficient opportunity to challenge his status as an "enemy combatant." The Fourth Circuit split 5-4 on each of the two issues, with seven judges writing separate opinions. In his post, Lyle Denniston reports that because of the split, it is Judge Traxler’s 35 page opinion that will be considered controlling on both issues. Lyle Denniston also reports that the decision is now headed for the Supreme Court. Denniston reports the student's attorney's "expect to ask the Supreme Court to review the part of the decision upholding presidential detention power over those seized inside the U.S." Over at Volokh Conspiracy, Orrin Kerr provides his thoughts on the Al-Marri decision. He predicts that if the Solicitor General decides to appeal, the Supreme Court will take the case.

Federal Criminal Law: Also at Volokh Conspiracy, Ilya Somin posts his thoughts on an report by LSU Professor John Baker detailing the expansion of federal criminal law. In his article, Baker points out there are now 4500 different federal crimes, with the number growing consistently at a rate of about 50 new federal crimes every year. Somin's post urges individuals to pay attention to the growth of federal criminal law because (1) it "undermines the advantages of competition and diversity that flow from decentralized federalism"; (2) "federal sentences tend to be stiffer than state ones, and federal court procedural rules more pro-government"; and (3) "the expansion of federal criminal [law] further undermines the constitutional principle that the federal government is one of limited and enumerated powers."

Eyewitness Identification Study:
Psychology and Crime News has a post providing a link to the June 2008 Issue of Journal of Experimental Psychology: Applied (Volume 14, Issue 2). The June issue contains a study by Steve D. Charman and Gary L. Wells examining whether eyewitnesses can correct for external influences during lineup identifications.

News Scan

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Friends in Low Places: With the proliferation of the Internet has come a new phenomenon: prisoner blogs and requests for pen pals. The ACLU has championed this as a development for free speech, while victims' rights groups argue that it causes distress for victims' families and permits convicts to maintain too much freedom despite their incarceration. Tim Reiterman has the story for the LA Times.

Schillaci Charged for Molesting Pen Pals' Son: Being a convict's pen pal is a bad idea on general principle; inviting a convicted sex offender to live in your home certainly is. Jon Schillaci, a registered sex offender, was allowed to live with his pen pals after his release from prison, and even gave their five-year-old son piano lessons. Not surprisingly, he sexually assaulted the boy, and has been rearrested. That's all well and good, but where is the parental responsibility?

Not 'Surveillance' Cameras if not Surveilled
: C.W. Nevius's SF Chronicle column makes an interesting point. Expanding surveillance camera networks is a waste of resources unless someone actually monitors the cameras already in place. While safety and civil liberties must be balanced, refusal to monitor footage even though it's recorded seems to compromise both with few benefits.

Voters Demand Response to Violent Youth: Dealing with youth offenders is one of the most contentious decisions in the criminal justice system. Some people say that 16- and 17-year-olds should be held accountable as adults while others argue that overly harsh policies will create career offenders out of troubled youth. Robert E. Pierre's article for the WA Post examines DC's attempt to balance rehabilitation and punishment.

The United States Sentencing Commission symposium on alternative sentencing began yesterday and continues today. I participated in a panel yesterday and was able to attend part of that day's sessions. The commission is having the proceedings transcribed by actual court reporters (nice to be in judicial branch and have access to that resource), and I am told the full transcripts will be on the web site eventually. That is unique for a symposium of this kind, in my experience. Another innovation was to put the speakers' materials on a CD for the participants. Those of us who travel without checked luggage are grateful. One time I had to mail my conference materials back, as they wouldn't fit in my carry-on.

The opening plenary sessions included some talks on "what works," i.e., reduces recidivism. Unfortunately, the speakers' statements as to what works were necessarily conclusory and in some cases seemed to contradict each other. It will be necessary to get the full papers and check the references to untangle this.

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D.C's New Handgun Act: Lyle Denniston at SCOTUSblog reports on D.C's "planned response" to the Supreme Court's ruling in District of Columbia v. Heller. According to Denniston, the proposed "Firearms Control Emergency Act of 2008" will allow handguns to be "ready-to-use" only in cases of prompt threats to immediate harm in the home. The City Council is expected to act on the bill tomorrow. The proposed law will still ban handguns, except in cases of self-defense in the home. The law also requires all handguns to be stored unloaded, and either disassembled secured with a trigger lock or a gun safe. A link to D.C's News Release on the proposed legislation can be found here.

Ninth Circuit Upholds District Court's Decision To Sentence Below Guidelines: Doug Berman at Sentencing Law and Policy provides a link to the Ninth Circuit's decision in US v. Whitehead, No. 05-50458. The decision, issued today, upheld a district court's decision to impose a sentence that fell below Federal Sentencing Guidelines. Reviewing the decision for abuse of discretion, a majority of the panel found: "that a substantial amount of community service (1000 hours), a hefty restitution order ($50,000) and five years of supervised release were more appropriate than prison." The Ninth Circuit made this ruling despite the fact that Michael Whitehead sold over $1 million worth of counterfeit “access cards” which allowed his customers to access DirecTV’s digital satellite feed without paying for it, and a jury convicted him of breaking various federal laws, including the Digital Millennium Copyright Act. In his dissent, Judge Bybee critiques the distict court's action, stating: "This was not an exercise of discretion so much as an abdication of responsibility. Our substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice."

Predicting Obama's Candidates For the Supreme Court: PrawfsBlawg has a post listing the top contenders a Supreme Court nomination should Obama win the presidency. The author lists Diane Wood, Elena Kagan, and Merrick Garland, as the top three contenders. Cass Sunstein also makes the list. Predictions as to who John McCain might appoint is promised for next week.

News Scan

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Parole Process for Killers to Receive Court's Scrutiny: How many years behind bars for a person to atone for murder? Is a spotless prison record proof of rehabilitation? Does age or disability lessen the threat to society? These are some of the questions that will hopefully be addressed when the California Supreme Court examines the process by which the governor is able to overturn the parole board's decision to release convicted killers, according to Michael Rothfeld's article for the LA Times.

Child Prostitutes - Abuse Victims or Criminals?: New York is addressing that question, in an effort to treat underage prostitutes, some as young as 11 or 12. While the age of consent is 17, there is no minimum age for charges of prostitution, according to Robin Shulman's report for the WA Post. Some experts suggest social services are the best way to treat these kids while others argue treatment programs will only be completed if they are part of the legal process.

Inmates get Cold Case Playing Cards: 3 years ago, Florida officials introduced a program for working cold cases - distributing playing cards with the name and information of missing persons, unidentified deceased, and homicide victims to inmates. The hope was that someone would recognize a name or face and turn over information to police. The program had some success, and according to William Kates's AP article, similar programs are being instituted in cities across the country.

Too Many Lawyers and Persuading Judges: In honor of the release of his new book, Justice Scalia granted a rare interview. John Fund's op-ed in the WSJ discusses Scalia's views on the overly complicated nature of the justice system.

Questioning Field Sobriety Tests

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The latest issue of Law & Human Behavior has an article by psychologist Steven J. Rubenzer titled The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues (subscription required):

This article details the history and development of the National Highway and Safety Administration’s Standardized Field Sobriety Tests. They are reviewed in terms of relevant scientific, psychometric, and legal issues. It is concluded that the research that supports their use is limited, important confounding variables have not been thoroughly studied, reliability is mediocre, and that their developers and prosecution-oriented publications have oversold the tests. Further, case law since their development has severed the tests from their validation data, so that they are not admissible on the criterion for which they were validated (blood alcohol concentration), and admissible for a criterion for which they were not (mental, physical, or driving impairment). Directions for further research are presented.

Time constraints prevent me from a thorough reading, but a cursory read provides this assertion, that if true, sounds troublesome:

This review of the SFST [Standardized Field Sobriety Tests] empirical research finds many deficiencies and unanswered questions. The SFSTs are not validated as tests of impaired driving or as indicators of loss of normal physical functioning: I could not identify a single study, published or not, that that has ever addressed these issues. There is only one peer-reviewed study that reported moderate correlations of SFST performance with decrements in cognitive performance. The SFSTs do show substantial correlations with BAC in most studies, subject to the limitations cited throughout this paper.

It would be interesting to read an opposing view.

The Spam King

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Doug Berman at SL&P solicited comments regarding what sentence is appropriate for the "Spam King." He has gotten a lot of comments, 60 as of this writing.

What is fascinating to me is that the commenters on this blog, who overall tend to lean toward a more lenient sentencing policy, as the host does, have absolutely no mercy for this guy. Why not? In part, I suspect it's because his crime is one that every user of the Internet (and hence all the commenters) has personally been a victim of. People tend to be more lenient when we have not been victims ourselves. But we shouldn't.

News Scan

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House Asks Supreme Court to Reconsider Kennedy Decision: According to the David Stout's NY Times article, 85 Republican members of the House of Representatives have requested that the Supreme Court reconsider its controversial 5-4 decision to ban the death penalty for child rape. The unusual request was prompted by the revelation that the military permits the death penalty for child rape, contrary to the majority decision's statement that no federal jurisdiction permits it.

Gangster Paradise at Catalina Island?
: Police fear the Mexican gang, the Brown Pride Locos, has infiltrated the small community of Catalina Island, 22 miles off the coast of Los Angeles. But according to Gillian Flaccus of the AP, residents are largely reluctant to believe that. Perhaps disbelief and complacency facilitate gangs' becoming entrenched in communities.

Rehabilitation for Sex Offenders Not Likely: In 1992, Michael Jaques kidnapped and sexually assaulted an 18-year-old girl. In 2000, he completed a sex offender rehabilitation program. Last week, Jaques was charged with orchestrating the abduction of his 12-year-old niece, just days after being charged for sexual abuse of a 14-year-old girl over a five year period. This story certainly raises doubts as to the efficacy of sex offender rehabilitation.

The Washington Post has this editorial, titled "Too Many Prisoners." The editorial bemoans the high number of prisoners and the financial burden of the prisons. No dispute there. The editorial also says, "Tough sentences for murder, rape and the like are unquestionably necessary and contributed to a drop in such crimes over the past two decades." Right.

Then there is this sentence: "But prisons should be focused on holding the most dangerous criminals rather than on warehousing nonviolent, first-time offenders."

The implicit premise in this statement is that a large chunk of the current prison population consists of offenders who are in the big house for their first offense of a nonviolent crime and that releasing people who fit that description would make a big dent in the prison population. A closer look is in order.

Hattip to Doug Berman at Sentencing Law and Policy for pointing us to, and providing a link to the Fourth Circuit's decision in Emmett v. Johnson, No. 07-18 (4th Cir. July 10, 2008). As Berman reports, a split panel affirmed Virginia's lethal injection protocol. The decision allows Emmett's execution, scheduled for July 24, 2008, to go forward.

In Emmett, the Fourth Circuit reviewed a "nearly identical challenge" to the lethal injection protocol upheld by the U.S. Supreme Court in Baze v. Rees. The prisoner, Christopher Scott Emmett, challenged the constitutionality of Virginia's lethal injection protocol. Today's Fourth Circuit decision rejected Emmett's claim that Virginia's protocol created a "significant and unnecessary risk that the thiopental would not be properly administered..."

This press release from the Governor of Maryland announces the names of the Maryland Commission on Capital Punishment. Benjamin Civiletti, Attorney General in the Carter Administration, is the chairman.

Every study commission in every state to date has been stacked against the death penalty. I'll reserve judgment on this one until I have more information on the members. Anyone with info is invited to send it in, either via a blog comment here or through our contact page.

News Scan

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VA Execution Tonight?: Kent Jackson, 26, is set to be executed tonight in Virginia for the brutal beating, rape, and stabbing death of his 79-year-old neighbor. The case is particularly unique because Jackson was sentenced to death just five years ago, and most states take more than a decade to actually carry out a death sentence.

'Touch DNA' Tests Increase Probability of Arrest, Prosecution
: Police investigators can now use a few invisible skin cells or "touch DNA" to extract a DNA profile. Because it is virtually impossible not to leave trace skin cells after touching something, the ability to use "touch DNA" could vastly improve the chances of identifying a suspect in murder cases. The method has gained notoriety because it was used to clear the Ramsey family of involvement in JonBenet's death, according to Catherine Tsai's article for the AP.

9/11 Suspects Urged to Accept Counsel
: The military tribunal is in the process of hearing the government's case against the alleged perpetrators of the 9/11 attacks, but suspicions abound that Khalid Sheik Mohammed has bullied his fellow defendants into acting as their own attorneys. According to Josh Meyer's article for the LA Times, the military judge overseeing the proceedings has strongly advised two of the defendants not to represent themselves because of inexperience and lack of access to confidential documents.

Prison Contraband goes to the Dogs
: We've all heard of drug dogs, but according to Dan Morses' report for the WA Post, the newest trick in Fido's bag is sniffing out cell phones. Cell phones have become the most important item of contraband in prison because they allow inmates to maintain contact with illicit organizations on the outside, in addition to coordinating activities within the prison.

FISA Update Enacted: The heavily debated Foreign Intelligence and Surveillance Act has passed the Senate and been signed by President Bush. It includes immunity for telecommunications companies that participate in wiretapping under government direction. The debate largely focused on striking a balance between national security and civil liberties. Update: Orin Kerr has this long post at VC summarizing the act and criticizing the press coverage of it.

On the ChiTrib's "Exploring Race" blog, Dawn Turner Trice has this post on the Jesse Jackson - Barack Obama flap. (The video is here, if you haven't seen it.) What caught my eye was this excerpt from Jackson's apology/explanation:

"My appeal was for the moral content of his message to not only deal with the personal and moral responsibility of black males, but to deal with the collective moral responsibility of government and the public policy which would be a corrective action for the lack of good choices that often led to their irresponsibility."

Wow. Does Jackson really believe that government and public policy can be "corrective action" for the lack of personal responsibility that is the true "root cause" of crime and of the resulting high incarceration rates?

In a free society, the ability of government to shape culture is very limited. The failure of leadership that Juan Williams has denounced (see here) is a principal contributor to the culture rot. And failed black leader number one is....

News Scan

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Gunfire Sensors and Video Cameras Facilitate Policing: The ShotSpotter network, technology that identifies the location of gunshots to within 10 feet, has been in place in several major cities across the country to help police in high crime areas where crime often goes unreported. According to Allison Klein's article for the WA Post, DC will soon connect the ShotSpotter network to video cameras that will adjust to the scene of the gunshots in order to aid in both police investigation and prosecution.

DNA Clears JonBenet's Family: For more than a decade the police, the media, and the public at large have been suspicious that a member of the Ramsey family was guilty of the brutal rape and murder of 6-year-old beauty queen, JonBenet Ramsey. The most recent DNA tests in the case have cleared the family members of any wrongdoing. The DA's office has issued an apology, according to Catherine Tsai's report for the Associated Press.

New Mitigation "Guidelines"

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Hofstra Law Review has an entire issue on the "Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases." (Hat tip: SL&P.) Unlike the American Bar Association, which at least pretends to represent the entire bar, these guidelines are a purely defense-side effort.

The defense side was successful in getting the Supreme Court to delegate to the ABA the power to amend the Constitution of United States by saying in Wiggins v. Smith, 539 U.S. 510 (2003) that it would look to ABA guidelines to decide what the Sixth Amendment requires in capital defense. The goal here appears to be to convince courts to let the defense side dispense with even the pretense of letting other segments of the bar have a say and decide on its own what is required. I'm not sure why they need to go outside the ABA, given that the ABA is simply a sock-puppet on the defense's hand in these matters, but they apparently think they need to.

The end goal is to convince the American people they cannot afford the death penalty, after the people have rejected all the other arguments. First, promulgate standards. Second, get courts to overturn sentences in any case where the standards are not met. Third, tell legislatures they must make huge new appropriations to meet the standards. Fourth, tell the legislature they just can't afford this, and the only alternative is to abolish the death penalty.

News Scan

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Cold-blooded Killers Will Kill Again: Wil Haygood's two-part article for the WA Post describes in detail the hunt for Randall Smith who killed two hikers on the Appalachian Trail in 1981. He spent just 15 years in prison before he was released for good behavior in 1996. In May of 2000, Smith shot two more hikers on the very same trail, but both managed to escape with their lives. While prison overcrowding is a serious concern, early release for proven killers absolutely should not be the solution.

Convicted Killer Finally Leads Investigators to Wife's Body: When Hans Reiser was convicted of killing his estranged wife, many people were surprised because the case was largely circumstantial. Investigators had not even been able to locate the body. But Reiser was convicted and, according to Michelle Locke's report for the Associated Press, he has now guided police to the remains of the as-yet-unidentified body of a woman in hopes of receiving leniency in sentencing. "No body" doesn't necessarily mean "no crime".

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Filling A Supreme Court Vacancy: Over at Convictions, Doug Kmiec posted his thoughts on who the next President should appoint to the U.S. Supreme Court. Kmiec's post begins with comments on why each of the candidates, McCain in particular, have failed to make Supreme Court appointments an issue thus far in the campaign. He them predicts that while the next nominee will be female, he hopes the next nominee will be Carter G. Phillips, the managing partner of the Sidley Austin law firm in Washington, D.C.. Kmiec, an advocate of Justices like Roberts and Alito, cites Phillips experience of arguing five cases before the U.S. Supreme Court this term, as well as "his impartial legal judgment, personal integrity, and genuine friendship and assistance to his fellow members of the bar and to his community[,]" as reasons for Phillips appointment.

Assessing the Effects of U.S. Incarceration: Hattip to Doug Berman at Sentencing Law and Policy for pointing us to an article by political scientist Marie Gottschalk. The article, titled "Hiding in Plain Sight: American Politics and the Carceral State," discusses the connection between politics and the origins of the carceral state. The abstract to the article argues, "[t]he carceral state has grown so huge that it has begun to transform fundamental democratic institutions, from free and fair elections to an accurate and representative census." While the article in not available for free on-line, a link to purchase the article can be found here.

Prosecutor Discretion in Death Penalty Cases: Berman also posted a comment on an article in Missouri's St. Louis Post-Dispatch, discussing the different approaches that different prosecutors take when they consider pursuing a death sentence. Criminal Justice Legal Foundation's Michael Rushford is quoted in the article.

Roe v. Wade's Effect on Crime: Paul Cassell discusses whether Roe v. Wade reduced crime over at the Volokh Conspiracy. According to Cassell, the theory that Roe reduced crime, by decreasing the number of "unwanted children," has been advanced by economists like Steven Levitt. Cassell's post discusses an article by John Lott Jr. The article argues that Roe actually increased crime and points to the "clear link between single-parent families and crime."

This NYT article by Patricia Cohen claims that there is a generational change in academia. (Hat tip: Orin Kerr at VC.) "Baby boomers, hired in large numbers during a huge expansion in higher education that continued into the ’70s, are being replaced by younger professors who many of the nearly 50 academics interviewed by The New York Times believe are different from their predecessors — less ideologically polarized and more politically moderate."

That would be good news, if true. I have my doubts, though. An informal survey of CJLF's current and recent students (admittedly, a small sample size) had mixed results.

Cohen also maintains that the newer generation of academics leans more toward number-driven research as opposed to more subjective inquiries. That is also a good thing. While it is quite possible to lie with statistics, it is much easier to expose agenda-driven research for what it is when the methods are quantitative. More importantly, with quantitative methods, honest researchers are more often dragged to conclusions they personally don't like, something that occurs more rarely with qualitative methods. When have seen this in death-penalty deterrence research, where researchers who are personally opposed to the death penalty for other reasons nonetheless conclude that it does indeed deter.

FedSoc Commentary

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Issue 9.2 of Engage, the journal of the Federalist Society's practice groups, is now available online. This issue has four criminal law articles, because the Federalism group's articles are both on criminal law topics. The articles are:

From Apprendi to Booker to Gall and Kimbrough: The Supreme Court Blunders its Way Back to Luck-of-the-Draw Sentencing by William G. Otis

Forensic Science Needs Checks and Balances by Roger G. Koppl & Radley Balko

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota by Ilya Somin

The Fourth Amendment and Federalism: The Supreme Court Tussle Over the Two by Marc M. Harrold & Michael John Gorman

More details after the jump:

News Scan

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Former Critic Says "Three Strikes" Success Difficult to Dispute: Debra Saunders voted "no" on the "Three Strikes" initiative in 1994. But in an article for the San Francisco Chronicle, she says she was wrong for believing that the majority of those charged under the new law would be petty criminals instead of the violent or career offenders that have been charged. What she doesn't understand is why other former critics of the initiative can't admit they were wrong.

La. Considers Involuntary Civil Commitment for Sex Offenders: Shortly after the Supreme Court ruled that Louisiana could not execute child rapists, the state's legislatue has ordered a feasibility study to determine the benefits of involuntarily committing sex offenders at high risk for recidivism to mental health institutions. According to the KATC article, the proposal could risk legitimacy because it would have the effect of an additional prison sentence without an additional trial.

Hostage Rescue May Indirectly Verify NGO Link to Terrorists
: In her op-ed for the WSJ, Mary Anastasia O'Grady observes that apparently, the least difficult portion of Colombian hostage rescue was convincing rebels that an NGO provided a helicopter to assist in the hostage transfer. She argues that this fact, perhaps more than any other, provides critical evidence that some NGOs are functioning to aid terrorism.

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In Rare Admission, Justice Dept. Accepts Responsibility for Kennedy Error: According to Linda Greenhouse's follow-up for the NY Times, the Justice Department has admitted that government attorneys should have known about the change to military law which permitted the death penalty for child rape and should have filed a brief when the Kennedy case was before the US Supreme Court. Louisiana officials are considering asking the Court to review their decision.

Difficulties Inevitable for Soldiers after Boumediene
: According to the Rivkin and Casey op-ed in the WSJ, the Supreme Court's decision in Boumediene will have considerable long-term effects because of the dangers of collecting evidence on a battlefield. The long-term result is likely to be a significant number of prisoner releases after interrogation.

Justice in TX for 3 Underage Sex Abuse Victims: According to the Associated Press report, Rick Alley was convicted for sexually assaulting three teenage girls, the abuse spanning two years. Jurors sentenced him for more than 40 charges, and the judge ordered the sentences served consecutively for a total of 4,060 years in prison.

SF Halts Immigration "Sanctuary" Policy: According to Karl Vick's article for the Washington Post, San Francisco has been a sanctuary for illegal immigrants for nearly two decades, but the city is halting the policy now because of a federal investigation. Immigration and Customs Enforcement began investigating reports that the city was deporting underage illegal immigrants convicted of drug charges after a city probation official was detained in the Houston airport while escorting two Honduran juveniles for their deportation flight.

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Today's New York Times Kennedy Article: Matthew Franck at Bench Memos has a post discussing why Linda Greenhouse's article on Kennedy made the front page of the New York Times today. The article, summarized in our News Scan, can be found here. As Greenhouse points out in the article, the factual error relied on by the majority opinion went to a "central part of the court’s analysis." In his post, Franck wonders how this error escaped all nine Justices' attention. The oversight is particularly disconcerting because the Kennedy majority based its opinion on its understanding of "evolving standards of decency." This worries Franck because: "When the Court consults "objective evidence of contemporary values," it engages in something other than legal reasoning. When it consults its "own understanding of the Constitution," like as not it is shouting down a well. The echoes that come back will substitute for the authentic Constitution." Jonathan Adler at Volokh Conspiracy also has a post discussing the article.

Federal Sentencing Reporter Articles on Crack Retroactivity: Doug Berman at Sentencing Law and Policy provides a link, and the table of contents, for the latest issue of Federal Sentencing Reporter. The current issue is titled "Debates and Realities Surrounding Crack Retroactivity." It includes observations from Berman, as well as articles from David Yellen, and Judge Gregory Presnell.

International Journal of Law and Psychiatry:
Psychology and Crime News provides a link to the June/July issue of the International Journal of Law and Psychiatry International Journal of Law and Psychiatry (Volume 31, Issue 3). The new issue addresses psychopathic traits and risk assessment in children and adolescents. Some of the articles address: identifying psychopathic traits, prediction of violence and risk assessment.

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Factual Error in Kennedy Decision: Reporting for the NY Times, Linda Greenhouse examines the potential impact of the Kennedy ruling that the death penalty is not a suitable punishment for child rape in light of the fact that the justices appeared to place great emphasis on the belief that no federal jurisdiction permitted that punishment. No briefs were submitted containing contrary information, but apparently, the military changed its law in 2006 to make child rape punishable by death.

Taser Proliferation Likely after 2nd Amendment Ruling?: Paul H. Robinson's op-ed in the NY Times suggests that the new Supreme Court decision on the individual's right to bear arms will result in legislation to limit firearms in favor of non-lethal alternatives like the Taser.

Crime Stoppers Txt to Fight Crime
: Whether due to stereotypical fears of the police or youth obsession with text messaging, cities all over the country are hoping that anonymous text-based crime tip systems will get more young people, especially teens, to turn over information to the police. In a year-long trial period, Boston received almost as many text tips as they did phone tips, according to Mitch Stacy's article for the Associated Press.

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Post-Heller Second Amendment Lawsuits: Lyle Denniston reports over at SCOTUSblog on the five Second Amendment lawsuits filed by the NRA last Friday, June 27, 2008. The lawsuits attack the constitutionality of gun control laws adopted in California and Illinois. Denniston's post provides links to each of the NRA's complaints. According to Denniston, each case addresses an issue that has not been before the U.S. Supreme Court since 1894 - whether the Second Amendment is applicable to state and local governments through the Fourteenth Amendment. In 1894, the Supreme Court stated the Second Amendment applied only to the federal government. However, a district court may find reasoning to overturn that decision, Miller v. Texas, based on the language used by Scalia'a majority opinion in Heller.

Legal Guidance for Detainee Review: Dan Slater at Wall Street Journal Blog has a post on the Court of Appeals for the D.C. Circuit's opinion that provides guidance for federal district court judges who are about to begin reviewing the government's evidence against the Gitmo detainees. Last Monday, the Court of Appeals for the D.C. Circuit released an opinion ordering a new military hearing for detainee Huzaifa Parhat. Today's opinion, a partially-redacted version of the original, compares the government’s legal reasoning with a characterfrom an 1876 Lewis Carroll poem called “The Hunting of the Snark.” Slater provides a summary of the opinion, as well as a link to the actual opinion.

Blog Commentary on E.J. Dionne's Washington Post Column: Ed Whalen at NROs Bench Memos and Jonathan Adler at Volokh Conspiracy, both address Dionne's "hallucinations" over the threat posed by a conservative U.S. Supreme Court. According to Whalen, Dionne's article,"The Court vs. Voters,", mischaraterizes the threat posed by "judges appointed during the right’s ascendancy" and ignores the threat posed by Obama's potential appointments. Adler, notes that Whalen has been "too kind" and gives a few arguments to counter Dionnes' claims. First, Adler argues we are not on the verge of a conservative Court movement to overturn "the will of Congress and local legislatures". Adler states that while the Court did overturn D.C.'s handgun ban, and a small portion of the McCain-Feingold law, a 5-4 majority also struck down federal and state legislative policy in Boumediene and Kennedy. Adler argues "it appears Dionne is only concerned about judicial invalidation of legislative policies he favors."

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Guantanamo Detainee Charged in USS Cole Bombing: Almost 8 years after a small boat loaded with TNT detonated and ripped through the USS Cole at a Yemeni port, Guantanamo Bay detainee Abd al Rahim al-Nashiri has been charged for planning and surpervising the attack that resulted in the deaths of 17 US service members. According to Josh White's Washington Post story , the government has acknowledged that al-Nashiri was subjected to waterboarding, and his subsequent confession will likely be under intense scrutiny if the charges proceed to trial.

Rampart "Victim" Arrested Again: The most famous, or perhaps infamous, victim of the now notorious Rampart scandal of the late '90s has been arrested after an hour-long police chase for evading arrest, reckless driving, and assault on a peace officer. Richard Winton and Victoria Kim report for the LA Times that he is also being investigated for allegedly making criminal threats to the family that purchased his former home. While no one is condoning police misconduct, this provides pretty clear evidence that the Rampart "victims" were not ordinary, law-abiding citizens, but rather habitual offenders with gang connections.

Coverage of Cal. DP Report: Maura Dolan's article for the LA Times reviews the findings of the California commission charged with comprehensively examining the death penalty in California. The article highlights the fact that the time from sentencing to execution in California is twice the national average, resulting in unnecessary litigation and expense.

Hollywood Drug Case Dismissed after Video Contradicts Police Testimony: According to Jack Leonard's story for the LA Times, the defense for Guillermo Alarcon Jr's cocaine charges introduced a video tape, much to the surprise of the prosecution, which provided evidence that was highly inconsistent with the sworn testimony of the arresting officers. The new evidence prompted prosecutors to request to have the charges dismissed, and the judge exonerated Alarcon.

"Extraordinary Rendition" Case Dismissed: Alan Feuer reports for the New York Times that the Second Circuit in New York ruled in a very contentious decision that the federal courts had no jurisdiction to hear Maher Arar's claims of extraordinary rendition. This will probably not be the last we hear from Mr. Arar, as Amnesty International has focused quite a bit of attention on his case in their campaign against the War on Terror.

D.C. Guns: Legislation in the D.C. Council to allow the keeping of handguns for self-defense has been introduced and is expected to pass, reports Nikita Stewart for the WaPo.

Florida to Resume Executions

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Update: The execution was carried out on schedule and completed at 6:15 EDT. AP story here.

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Florida executions are scheduled to resume today following a de facto moratorium for the revision of procedures following the Diaz execution and the pendency of the Baze v. Rees litigation. Ron Word has this story for AP. First up is the very execution-worthy repeat child rapist Mark Dean Schwab. After getting out of prison for his first atrocity, he raped and murdered 11-year-old Junny Rio-Martinez in 1991. He has now lived 6 years longer since the crime than Junny's entire, much too short, life.

The revised protocol was upheld by the Florida Supreme Court in Lightbourne v. McCollum, SC06-2391, 969 So. 2d 326 (Nov. 1, 2007). In Baze v. Rees, Justice Ginsburg cited the Florida protocol as superior to Kentucky's for its additional safeguard of a consciousness check after the pentothal dose (dissent pp. 7-8).