August 2009 Archives

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A Break for Cold Cases:  At Sentencing Law and Policy Doug Berman reports "Links to Sex Crimes to Follow Texas Suspects," the title of a Wall Street Journal article by Ann Zimmerman.  According to the article, starting tomorrow Texas will begin implementing a law that lets prosecutors and parole boards see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried.  The law is the first of its kind in the country and is meant to close a gap created by improved technology. It will not apply to alleged assaults before 2001, but will enable prosecutors to take advantage of advances in genetic testing and access even the smallest DNA samples to identify suspects in old criminal cases.  At Wall Street Journal Blog, Ashby Jones reports that, when implemented, the law will affix DNA results to a suspect's criminal record so they can be used in subsequent prosecutions or sentencing decisions.  Both Berman and Jones report that the law has its supporters and critics.  Supporters believe the law, conceived and championed by a small group of rape survivors who had joined a Dallas Police Department support group launched as part of the city's cold-case project, will force prosecutors and parole boards to take a harder look at these offenders.  Critics, like the ACLU, worry about the offenders' due process rights.  We side with victims, like Desirée Wood, who will never see the man who raped her prosecuted for his crime.

A Chance to "Derail" California's Parole Reform Bill?:
  At Wall Street Journal Blog, Ashby Jones wonders whether the tragic case of Jaycee Duggard (reported on by Kent last Friday) and her abduction by career offender Phillip Garrido could derail California's efforts to release over 27,000 prisoners.  Jones' question came from this New York Times article, by Carolyn Pogash and Solomon Moore, reporting on how some corrections reform advocates in Sacramento and politicians are worried that the fallout from the Garrido case could have a big effect on the Assembly bill that will reduce the state's prison population.  State Senator Tom Harman (R) correctly stated, "This demonstrates the problems that we're going to have if we release thousands of prisoners into our local communities."  Harman raises valid concerns even though Scott Kernan, a deputy secretary of the California Department of Corrections and Rehabilitation, believes that a man who had committed crimes like those that sent Garrido to prison initially would never have been released early from prison under the proposed law.  After all, if a released man like Garrido was under federal supervision when he kidnapped Duggard, and has been under state supervision since 1999, how can we trust that a massive release of prisoners won't claim similar victims?

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McDaniel v. Brown SCOTUS Preview:  On SCOTUSblog, Erica Goldberg reports on McDaniel v. Brown, a criminal case that the Supreme Court will hear on October 13th.  Brown involves the brutal rape of a nine-year-old girl in Carlin, Nevada. While her mother was at a local bar, "Jane Doe" was raped in her home by an identified assailant.  When she was interviewed at the hospital Jane described her attacker as resembling Troy Brown, and Brown was eventually tried in state court.  During the trial, a DNA expert testified for the prosecution.  The expert had tested a sample from the victim's underwear using Restriction Fragment Length Polymorphism (RFLP) analysis, and testified to a conservative estimate that the chance that a person chosen at random would match the profile was one in three million.  Brown was convicted and sentenced to life.  As Goldberg points out, the expert's testimony is "at the heart of McDaniel v. Brown."  After state courts affirmed his conviction, Brown filed a federal habeas petition and the district court granted relief.  The district court permitted petitioner Brown to expand the record with an affidavit from another DNA expert, who criticized the testimony of the state's DNA expert in response to a question by the prosecutor but not the conclusion in her main testimony.  The district court granted relief, and the Ninth Circuit affirmed.  The Supreme Court granted certiorari in January 2009.  In its merits brief, the State argued that a federal habeas court must limit its consideration to evidence presented at trial when determining whether evidence is insufficient as a matter of law.  It argued that a habeas court cannot consider evidence outside of the trial record in assessing a sufficiency claim.  The State's brief also emphasizes that based on the evidence, it is highly likely that Troy Brown, and not one of his brothers, is guilty.  Brown's merit brief raises an entirely new argument to the Supreme Court, apparently recognizing that the the Ninth Circuit's sufficiency analysis and relief were seriously flawed.  He argues that the Ninth Circuit must have been conducting due process analysis instead of an assessment of the sufficiency of the evidence, and argues that the questions presented (pertaining to a sufficiency-of-the-evidence analysis) were not relevant.  He asked that the judgment be remanded for the Ninth Circuit to clarify its decision.

  Unfortunately, a couple of important points are missing or only implicit in Goldberg's summary. To begin, Goldberg's description of Brown as a "potentially innocent defendant" is a stretch. The chance of his brother matching the profile is low, and if he did that fact could easily be confirmed by just testing the brother.  Second, the DNA evidence remains powerful even considering the issues raised by the defendant's expert. This evidence alone excludes all unrelated suspects to a near certainty and excludes Brown's brother to a high degree of confidence. Third, the defendant is taking the audacious step of trying to introduce an entirely new theory for the first time in his brief on the merits in the Supreme Court. The notion that the Ninth Circuit "must have been" doing an analysis different from the one it plainly said it was doing is nonsense. Should be an interesting oral argument.
  CJLF also filed a brief in Brown, available here.  Our brief had to be filed before the defendant's, unfortunately, so we were not able to discuss the defendant's change of theory, but the state does so in its reply brief.

Guilty Plea Ends "One of the Largest" Identity Theft Prosecution:
  At Blog of Legal Times, Mike Scarcella reports that Albert Gonzalez, 28, a one-time Secret Service informant, has agreed to plead guilty in U.S. District Court for the District of Massachusetts next month. (USDoJ information on United States v. Gonzalez is available here.)  Gonzalez allegedly participated in a conspiracy that netted more than 40 million credit and debit card accounts from at least nine big time corporations, including Barnes & Noble, Sports Authority and, TJX Companies.  TJX, which owns discount clothing stores T.J. Maxx and Marshalls, has claimed more than $130 million in losses stemming from the intrusion.  In the agreement, Gonzalez also agreed to plead guilty to charges brought in the U.S. District Court for the Eastern District of New York.  Gonzalez was indicted in New York in May 2008 for allegedly breaking into the computer system of Dave & Buster's restaurant chain. He agreed to serve 15 to 25 years for offenses.  Scarcella reports the sentence will run concurrent to any sentence that is imposed in a case pending in New Jersey.  Scarcella also fills readers in on some interesting facts of the case.  For example, Prosecutors have fought for restrictions on what evidence Gonzalez and his legal team could see, because the USDoJ and Secret Service created new technology--spending $150,000 at Carnegie Mellon University in Pittsburgh for a secure database--to hold the billions of files containing names, passwords, account numbers, and corporate network data that make up the bulk of electronic evidence being gathered in the case. Lawyers for the defrauded companies have encouraged these restrictions. Lawyers for TJX told a judge that allowing Gonzalez access to its trade secrets could expose the company to further computer attacks.

Conference on the Philosophical Foundations of Criminal Law:  For those who will be in or around Rutgers School of Law-Newark on September 25-26th, CrimProf Blog has posted the schedule for a conference entitled "Philosophical Foundations of Criminal Law."  The post informs that the papers presented at the conference will be published by Oxford University Press in a book by the same title.

Justice Kennedy's Jurisprudence

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In the WSJ, John McGinnis has this review of a book by Frank Colucci with the above title. Near the end is this tidbit:

It is implicit in Mr. Colucci's analysis that Justice Sotomayor will probably not have much influence on Justice Kennedy's decisions, despite their shared Catholic background. Justice Sotomayor's famous ­declaration--that a "wise Latina" will often come to a better judicial ruling than a white male--implies an ethnic-and-gender "essentialist" philosophy that is repugnant to Justice Kennedy's core individualism. If President Obama was hoping that Justice Sotomayor would sway the one vote that makes most ­constitutional law today, he may be disappointed.

The Jaycee Dugard Case

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What charges are possible in the bizarre case of the 18-year-old kidnapping of Jaycee Dugard? What sentences are available in the event of a conviction? A recent story is here in the San Jose Mercury-News.

Let's assume that Phillip Garrido does not get off with an insanity plea. California follows the strict M'Naughton rule. P.C. 25(b). On the question of whether he did it, he had little enough chance of beating the rap to start with and blew what little he had with a call to a television station. (No Miranda required, thank you.)

With old cases, we have to consider the statute of limitations. The general rule for felonies is 3 years. P.C. 801. It is 6 years for crimes punishable by terms of 8 years or more. P.C. 800. There is no limit for crimes punishable by death or life imprisonment with or without possibility of parole. P.C. 799. Relatively recent enactments extending the limits for sex crimes against children cannot constitutionally be applied to cases where the time had run prior to the enactment.  Stogner v. California, 539 U.S. 607 (2003).

Simple kidnapping, P.C. 207, is punishable by up to 11 years where the victim is child. P.C. 208(b). That charge would be barred unless it can be shown that the crime continued the whole time, which could be a tough sell. Also expired, regrettably, are the sex crimes against Jaycee as a child. We need the Little Lindbergh Law, P.C. 209:

No Guts at USDoJ

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I hear from a reliable source that USDoJ has decided not to file an amicus brief in support of Florida in the juvenile LWOP cases, Graham and Sullivan. A decision going the wrong way in these cases would preclude the application of federal law to sentence a future juvenile terrorist to LWOP if he did not succeed in actually killing anyone. The SG has a duty to defend the constitutionality of acts of Congress as long as a reasonable defense can be made, and the current SG promised in her confirmation hearing to honor that commitment.

Perhaps DoJ is just too busy. They have more important things to do, such as prosecuting the people who gathered the intelligence that prevented a second terrorist attack in the (almost) 8 years after 9/11/01.

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Problems With Delayed Sentence - Second Circuit Weighs In:  At Sentencing Law and Policy, Doug Berman posts on the Second Circuit's decision in U.S. v. Ray.  In Ray, a district judge sentenced Sheena Deloache Ray, after a fifteen year delay, to a one-day term of imprisonment and three years of supervised release with a special condition that she serve six months in a halfway house.  Ray challenged her conviction and sentence and Sixth Amendment speedy trial and Fifth Amendment due process grounds.  The three judge panel rejected her speedy trial argument, but found merit in her due process claim.  The panel reasoned Ray might have a constitutional right to "speedy" sentence under the Fifth Amendment because, as the Supreme Court's acknowledged in United States v. Lovasco, "the Due Process Clause of the Fifth Amendment 'has a limited role to play in protecting against oppressive delay.'"  The court could not find sufficient justification for the fifteen year delay in sentencing and found Ray had been prejudiced by the delay.  It vacated the portion of her sentence requiring a six-month residence in a halfway house in order to remedy the prejudice caused by the violation.

Follow-up On Federal Prosecution for Local Vermont Crime:
  Yesterday, Doug Berman and CJLF posted information on the federal government's plan to seek the death penalty against Michael Jacques for raping and murdering of his young niece, Brooke Bennett.  Today, Berman follows up with a second post on Sentencing Law and Policy wondering whether Jacques will challenge his federal prosecution.  According to Daniel Barlow's article in Vermont's Times Argus, Jacques is being federally charged because he used the Internet to both plan for and cover up the crime.  Jacques' Internet is allowing the feds to treat the crime as one that crossed state borders.  This opens it up for federal prosecution.  And while Jacques has a long history of past sexual abuses with other minors, his federal prosecution still seems strange (after all, it still is a state crime).  Barlow reports Jacques' would be the third death penalty case in Vermont since the late 1990s.  The other noteworthy Vermont death penalty (and Second Circuit) case, United States v. Fell, was finally resolved with by a denial of rehearing en banc back in June, during Justice Sotomayor's confirmation hearings.  Fell physically crossed state borders during his crime.

Ninth Circuit Rejects Sex Offender Registration and Notification Act (SORNA) Challenge:  At Sex Crimes, Corey Rayburn Yung informs us that in U.S. v. George, the Ninth Circuit rejected George's claims that (1) his conviction was invalid because the state where he was required to register, Washington, had not implemented SORNA; (2) SORNA was a violation of the Ex Post Facto Clause.  Yung is particularly troubled by the court's discussion of the Commerce Clause.  In its brief discussion of the Clause the Ninth Circuit states SORNA is "reasonably aimed at 'regulating persons or things in interstate commerce and the use of the channels of interstate commerce,'" therefore, Congress had the power under its broad commerce clause authority to enact the SORNA.  Yung pastes the court's brief discussion of the Clause, and then comments that the Ninth Circuit's discussion "relies entirely on the 8th Circuit reasoning with no discussion of the counterarguments."  He believes the Ninth Circuit "did a disservice to the defense in not even addressing the finer distinctions in the Commerce Clause analysis."  Doug Berman also had a quick post on George at Sentencing Law and Policy.   

Cold Case

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The 1991 abduction of Jaycee Lee Dugard was every parent's worst nightmare come true. An 11-year-old girl was snatched off the street and not seen again.

Bill Lindelof and Kim Minugh have this story in the Sacramento Bee. "The El Dorado County Sheriff's Office this morning confirmed the identity of the 29-year-old woman who walked into a Bay Area police station claiming to be Dugard." Details of where she was and who took her are not yet confirmed, although the police have a suspect.

Cal. State Prison Mess

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Debra Saunders, the resident person of sense at the San Francisco Chronicle, has this column today.

Earlier this month, three federal judges - Stephen Reinhardt, Lawrence Karlton and Thelton Henderson - ordered the release of more than 40,000 of California's 160,000 inmates. No lie: They claimed that releasing one-quarter of state inmates would not have "a meaningful adverse impact on public safety."

They also wrote, "Evidence shows that mentally ill inmates who are released do not, by virtue of their mental illness, present any higher risk than other released inmates."

These three must live in an alternate universe - one where a quarter of California inmates, many of them mentally ill, can be freed and no one gets hurt in a meaningful way.

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No Delay For the Detainees:  At SCOTUSblog, Lyle Denniston reports that the D.C. Circuit Court has denied a stay to five Chinese Muslim Uighur prisoners detained at Guantanamo Bay.  Lawyers for the Uighur's requested the stay until after the Supreme Court acted on an appeal they are planning to file.  The D.C. Circuit Court divided 2-1, with Judges Douglas H. Ginsburg and Brett M. Kavanaugh voting to deny the stay, and Judge Thomas B. Griffith voting to grant the stay.  Denniston reports that the Uighur's Supreme Court case, Kiyemba v. Obama (08-1234), involves the issue of whether federal judges have authority to order the transfer of a Guantanamo detainee into the U.S. mainland.  A Petition for Certiorari has been distributed to the Court, and the Court is expected to act on the case when it returns October 5th.

California Prisons and Punting to Activist Judges:
  After reading a Los Angeles Daily News opinion piece (posted on Sentencing Law and Policy), Doug Berman writes that the piece is "noteworthy because it recognizes the connection between dysfunctional state politics and so-called activist federal judges."  What does the piece say exactly?  It criticizes "[o]ur dysfunctional state legislators" for postponing action prison costs.  The article states "In the end, Sacramento lawmakers lacked the nerve to do their jobs. Why should they?... Maybe they hope if they stall long enough, the problem will be solved by the federal judges..."  Berman opines that he has little doubt that the federal court would rather have the state law makers decide how to reduce the prison population, "[b]ut, because state lawmakers are unable or unwilling to make hard political choices in the form of reducing prison populations or raising taxes to fund current expenses, these issue necessarily get punted back to federal courts." The problem with both the post and the article is the assumption that large-scale release of prisoners is the right decision and the one that needs to be made. Where the legislature failed to do its job was in implementing the additional capacity it approved two years ago.

U.S. Department of Justice Seeks Death Penalty for Local Murder:
  Doug Berman comments on a story by Daniel Barlow, of the Vermont Press Bureau, reporting that the federal government will seek the death penalty for Michael Jacques, for the "especially heinous, cruel [and] depraved"  rape and murder of his young niece, Brooke Bennett.  Berman recognizes that he does not know much about case, but wonders why the federal government is involved "other than the fact that the feds can seek the death penalty while state prosecutors cannot."  He also restates his belief that "that states should rarely (if ever) bother to pursue capital cases and should instead simply request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases." Our position is quite the opposite, that murder is rarely a federal issue.

Arguing For An End to "Death-Qualification" of Jurors:
  CrimProf Blog posts the abstract and a link to G. Ben Cohen and Robert J. Smith's SSRN article The Death of Death Qualification.  Cohen, of The Capital Appeals Project, and Smith of The Charles Hamilton Houston Institute for Race and Justice, argue that as the Framers understood it, 'jury review' power provided the people with a 'check' against the government's judicial function.  They argue that this idea has diminished over time and the Framer's understanding is no longer consistent with a modern jury, particularly in cases involving the "death-qualification" of jurors.  They believe that "a proper historical understanding of the Sixth Amendment right to a jury trial requires that [death-qualification] be put to rest."  Given the affiliations of both authors, their argument hardly comes as a surprise...
PACER Under Review:  Jordan Weissmann reports on Blog of Legal Times that the Administrative Office of the United States Courts is beginning a year long review Public Access to Court Electronic Records system (PACER).  The office is asking users for input and wants to know if it should continue charging for its services.  Its spokesman Richard Carelli would not comment directly on whether the review was related to the emergence of a free PACER alternative, RECAP.  

Seizing and Searching Hard Drives

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The Ninth Circuit has issued its pseudo en banc* opinion in a case arising out of the Balco baseball drug scandal, United States v. Comprehensive Drug Testing, Inc., No. 05-10067. It's a long opinion and will take some time to digest. The opinion is by CJ Kozinski, and Judges Callahan, Bea, and Ikuta dissent in various parts. The summary from the main opinion is quoted after the jump.

Cal. Supreme Briefs

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The California Supreme Court website has a new feature, providing the briefs in cases on the upcoming argument calendar. The petition for review is provided along with the merits-stage briefing.

Research, Kids, and Skepticism

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In the WSJ, Kay Hymowitz reviews the book Nurture Shock by Po Bronson and Ashley Merryman. She notes how Bronson and Merryman deconstruct past myths once thought to have been scientifically proven. No, boosting self-esteem is not a panacea and may be harmful.

And what do [the research articles] show? That high self-esteem doesn't improve grades, reduce ­anti-social behavior, deter alcohol drinking or do much of anything good for kids. In fact, telling kids how smart they are can be ­counterproductive. Many children who are convinced that they are little geniuses tend not to put much effort into their work.

However, Hymowitz criticizes Bronson and Merryman for being insufficiently skeptical of current research. Given how wrong past conclusions were, it would be good to take current findings with more than a grain of salt.

And, I might add, we certainly should not take tentative findings from budding areas of research (such as neuroscience) and use them to make nearly permanent constitutional doctrine.

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Eliminating Counties' Roles in Death Penalty:  At Sentencing Law and Policy, Doug Berman posts a link to a SSRN article, Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty, by Professor Adam Gershowitz.  In his article, Gershowitz argues that the power of local county prosecutors to decide when to seek the death penalty "has proven to be arbitrary and inefficient."  He argues that the discrepancy between large counties with large budgets and trained prosecutors, and small counties with limited budgets and resources, has led to "geographic arbitrariness" in implementing the death penalty.  Gershowitz advocates that all aspects of capital cases (charging, trial, appeal) be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases.  He believes this will minimize the geographic arbitrariness of the death penalty and cut costs.  Berman likes Gershowitz proposal, but believes that the local nature of capital cases will prevent counties from relinquishing control of the death penalty.  This is an accurate statement.  Counties, and those dealing with the lasting effects of a murder, are often the best ones to determine who should receive the ultimate punishment.

Ohio Supreme Court on Apprendi's Prior Conviction Exception:  Doug Berman posts on today's unanimous Ohio ruling that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender's prior convictions that is part of the judicial record.  In Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009), Hunter was charged with felonious assault for attacking a church employee when he was asked to leave the building. In its indictment, the state included an Repeat Violent Offender (RVO) specification based on Hunter's earlier conviction for striking and injuring a corrections officer while he was incarcerated at the Cuyahoga County jail. Hunter moved for separate proceedings on the assault count and RVO specification, and waived a jury trial on the RVO charge.  He was convicted by a jury on the assault count. In a separate hearing before the judge, he was also found guilty on the RVO specification. Hunter was sentenced to eight years in prison for the assault, and two years were added to that term based on the RVO specification.  Ohio held its ruling was consistent with Shepard v. United States, because Shepard allows a trial court to consider "these documents, which are 'judicial record evidence' created in connection with his prior conviction." 

Summer Issue of The Green Bag Released (With 2008 Supreme Court Revue):
  At Volokh Conspiracy, John Elwood posts a link to his latest publication,  What Were They Thinking, The Supreme Court in Revue, October 2008.  The article appears in Summer 2009 issue of The Green Bag, and discusses what Elwood believes are "top eight areas of legal development in the Term's decisions."  These include "underperformers" like Northwest Austin Municipal Utility District No. 1 v. Holder, "procedural niceties" such as Aschroft v. Iqbal, as well as criminal law cases, the Fourth Amendment case Safford Unified School District v. Redding, due process issues, the APA, the "big preemption opinion" of Wyeth v. Levine, and the First Amendment case Pleasant Grove City, Utah v. Summum.  Ed Whalen posts excerpts from Elwood's "informative yet irreverent" piece over at NRO's Bench Memos.

Crime, Culpability and Moral Luck: CrimProf Blog provides the abstract and a link to Alec D. Walen's SSRN piece commenting on Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse).  Walen's article discusses his belief that Alexander, Ferzan, and Morse's argument is fundamentally morally misguided.  He argues that by focusing on "outcome luck" the authors fail to hold actors liable for the harms they cause when they have taken less care they should.  Walen argues that "outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b)."
Supreme Court Preview of McDaniel v. Brown CrimProf's graduate fellow, Peter Stockburger previews another one of our Supreme Court cases, McDaniel v. Brown, over at CrimProf Blog.  Stockburger's preview states the question presented, and then provides paraphrases of the briefs of the parties in order to provide an overview of the cases and the advocates' arguments.  At issue in this case is whether analysis of a sufficiency-of-the-evidence claim pursuant to Jackson v. Virginia permits a federal habeas court to expand the record or consider nonrecord evidence to determine the reliability of testimony and evidence given at trial.  Our brief in Brown is available here.  Kent's most recent post on Brown can be found here

We are not ready to cue the Munchkin chorus yet, but it's looking good for the demise of the proposed sentencing commission in California. As noted here, the proposed commission would have had power far beyond that given to, e.g., the federal sentencing commission. It would not have been limited to promulgating guidelines for judges to exercise their discretion within statutory limits, but instead it would have had a blank check to rewrite the limits. Jim Sanders reports for the SacBee:

Creation of an appointed commission to overhaul sentencing guidelines became a flashpoint Monday in negotiations to pass a crucial budget-cutting package for state prisons.

Assembly Speaker Karen Bass said she may sever the proposed sentencing commission from a wide-ranging package designed to complement gubernatorial actions in cutting $1.2 billion from prison spending.

Once the commission is in a stand-alone bill, it should go down in flames.

At SL&P, Doug Berman has this post, linking to this post at the LA Times.  The Times post misleadingly refers to the proposal as one to "reevaluate California's sentencing laws." If the commission were only a study group, there would have been minimal opposition. It is the use of the commission to politically insulate the legislature from decisions to repeal hard-won gains in tough sentencing that raises the opposition.

Supporting Terrorism

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Humanitarian Law Project v. U.S. Treasury Dept., USCA 9, No. 07-55893, today:

We are asked to invalidate the President's authority to designate terrorist organizations when there is an extraordinary threat to national security, as well as the Secretary of the Treasury's authorization to designate further organizations; and to declare that a ban on providing "services" to, or for the benefit of, such organizations, is unconstitutionally vague and overbroad.

*                        *                       *

Blog Scan

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Illegal CIA Interrogations:  Jonathan Adler has a post at Volokh Conspiracy quickly comparing two pieces that discuss the Justice Department's Office of Professional Responsibility recommendation that the federal government reopen potential cases against CIA employees for using illegal interrogation techniques on terror-related detainees.  At the New York Times, David Johnston writes that the recommendation comes as the DOJ stands ready to disclose "voluminous details on prisoner abuse that were gathered in 2004 by the C.I.A.'s inspector general but have never been released."  The report makes it "all but certain that the appointment of a prosecutor or other concrete steps will follow, posing significant new problems for the C.I.A."  But at the Washington Post today, Jeffrey H. Smith gives six reasons not to prosecute the CIA's interrogators.  Smith concludes, "prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight."

Constitutional Justification for Juvenile LWOP:  Kent reported back in early August that The Heritage Foundation would hold an event, Adult Times for Adult Crimes, on August 17th.  Today, Doug Berman has a post at Sentencing Law and Policy discussing the paper that was released by Charles Stimson and Andrew M. Grossman at that event.  Doug Berman posts a link to the report, Adult Times for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens, as well as the executive summary.  Berman comments that the "lengthy report reads like an amicus brief in support of states seeking to defend the use of LWOP for juve offenders in the upcoming SCOTUS cases Graham and Sullivan."

Interesting Story on Medical Furloughs - California Should Take Note:  Yesterday, Doug Berman posted this Montgomery Advertiser article on Sentencing Law and Policy.  The article, by Markeshia Ricks, reports on results observed in Alabama since it passed a law that would allow terminally ill inmates a chance to die at home. The state hoped that it would save the state money.  The Department of Corrections has yet to realize any significant savings.  The state has exempted sex offenders and those convicted of capital murder from potential release, and within one year, has only released three prisoners.   But even those who are eligible for release must be placed, by the state, in some sort of care facility.  Ricks quotes Larry Spencer, an assistant professor at Alabama State University.  He says, "This is one of those things that (the) state has put in place to alleviate the severe overcrowding, but the other factor is the cost for medical care.  The cost of medical care can just tear up your budget."  And apparently, that's what's happening in Alabama. (Page 2 of the article details the higher costs of outpatient medical care.)
Detention Dilemma:  Late on Friday night, SCOTUSblog reporter Lyle Denniston posted on a detainee case that illustrates how "Pentagon and U.S. intelligence agencies are having [trouble] in trying to justify in court the continued holding of some of the prisoners at Guantanamo Bay, Cuba."  According to Denniston, last Monday a Senior District Judge, Gladys Kessler, ordered the release of Yemeni national Mohammed Al-Adahi.  On Friday, her 42-page, redacted opinion explaining that ruling was made public.  Judge Kessler noted that the evidence against Al-Adahi appeared "sensational and compelling," but ultimately ruled it was not enough to keep him detained at Guantanamo. Denniston writes, "Between the lines of the Kessler opinion, it was clear that government officials believed they had a very strong case for keeping Al-Adahi imprisoned," but Judge Kessler's demanding definition of who may be detained allows for Al-Adahi's release.  Al-Adahi is related to bodyguards for Bin Laden (including his brother-in-law), he stayed at an al-Qaida guesthouse for one night and attended the Al Farouq [Al-Qaeda] training camp for seven to ten days (he was later expelled), but without "reliable evidence" that Al-Adahi served as a trainer at Al Farouq or fought for al-Qaida, the government could not continue to detain him.  Kessler ordered government officials to use diplomatic measures to find a way to release him to another country.

SCOTUS Preview - Maryland v. Shatzer At CrimProf Blog, Peter Stockburger previews the Supreme Court case Maryland v. Shatzer.  The case will address whether Edwards v. Arizona, which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to interrogation that takes place nearly three years after the initial interrogation and invocation of right to counsel.  He nicely sums up the facts and presents the arguments of each brief.  Our brief in Shatzer can be found here.

A Hopeful Request:
  On a tangential, SCOTUSwatcher note, Lyle Denniston reports that the Wyoming Liberty Group and Goldwater Institute Scharf-Norton Center for Constitutional Litigation has requested one minute of oral argument time in Citizens United v. Federal Election Commission (08-205).  The author of the motion, Benjamin Barr, wants a role in Citizens to attack the FEC for ways in which it has "misinterpreted" campaign finance law, and has "beffuddled or contradicted itself on key free speech principles." 

Nonviolent Offender

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Al CaponeEveryone involved in the incarceration debate knows that we can safely release all the nonviolent offenders -- defined as inmates whose present commitment offense has no adjudicated element of violence -- without the slightest harm to the public. Pictured here is one such offender from the past, whom our society cruelly sentenced to 11 years in prison even though he was only convicted of tax evasion.

"It's not what we don't know that gets us in trouble. It's what we know for a fact that just ain't so." -- Variously attributed

Blog Scan

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Supremes, the Seventh Circuit, and the Second Amendment:  At SCOTUSblog, Lyle Denniston reports that the Supreme Court will again take up the Second Amendment early in the October 2009 term.  Denniston writes that on September 29th, in one of their private conferences, the Justices will consider whether to hear the issues presented in National Rifle Association v. Chicago and McDonald v. Chicago.  Both petitions challenge the Seventh Circuit's decision that the Second Amendment applies only to federal laws and does not restrict gun control laws adopted by state, county, or city government.  "Incorporation" of the Second Amendment became a hot issue after the Supreme Court decided Heller v. District of Columbia in 2008.  Denniston writes that the Court could announce its decision to grant or deny certiorari on the cases as soon as September 30th.  Another Second Amendment case, that could come up for review, Maloney v. Rice, has not made its way to the conference calendar yet (Reply Brief due August 28th).  The Second Circuit's decision in Maloney also held that the Second Amendment applied only to federal laws.  Judge Sotomayor sat on the panel deciding Maloney, and it is expected she will not participate in the case.

California's Early Release Plan:  On Sentencing Law and Policy, Doug Berman posts an article by Mike Zapler from the San Jose Mercury News detailing the California Senate and Assembly's actions in the controversial prison release bill (ABX3 14).  As reported here yesterday, the Senate passed the bill by a narrow margin and if the bill is adopted the prison population will be reduced by 27,300 inmates this year.  According to the San Jose Mercury News, Assembly Speaker Karen Bass plans to strip the most controversial provisions of the bill and keep an 10,000 more inmates behind bars.  Her new plan does way with proposals by Gov. Schwarzenegger to allow home detention with electronic monitoring for inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated.  The Assembly bill also rejects the Governor's plan to lower sentences for certain property crimes to misdemeanors, making those offenders ineligible for prison.   For video highlights from yesterday's Senate floor sessions click here

Speaking of early release... Ashby Jones writes on Wall Street Journal's Law Blog that Governor Schwarzenegger had until today to approve or deny Deborah Peagler's release following the recommendation of a state parole board who last month ruled that Peagler, who is dying from cancer, be released.  The Governor did not review the recommendation, meaning the recommendation will stand and Peagler will be released.  Russell Goldman at ABC News reports that Peagler's release may not be just because she is terminally ill, she has become a "cause celebre" among domestic abuse advocates who say she was not allowed to present evidence in 1983 that she was tortured, raped and forced into prostitution by her boyfriend Oliver Wilson, then 23.  Her advocates claim she was forced to take a plea deal in an era when domestic abuse was not commonly understood as a reason for self-defense.

Could You Search A Computer Under the "Automobile Exception?":  Wonders Orin Kerr over at Volokh Conspiracy.  The "automobile exception" to the warrant requirement allows police can search a car, and any containers in it, for evidence without a warrant if they have probable cause to believe that evidence is in the car and that evidence could be located in the place they search.  Kerr notes that he is not aware of any case that has decided the issue, but reports that United States v. Burgess came very close.  In Burgess, the Tenth Circuit devoted about 7 pages to the question before deciding it was not an issue in the case.  In Burgess' case police officers obtained a warrant to search his motor home for drugs.  While they were searching the motor home they came across hard drives and a laptop.  When they searched both hard drives they found child pornography.  Burgess was indicted for knowing transportation of child pornography across state lines, and knowing possession of child pornography transported in interstate commerce.  Burgess appealed the denial of his motion to suppress evidence, the admission of images from the  hard drive and the length of his sentence.  The Tenth Circuit affirmed.

Supreme Court Clerk List:  David Lat writes on Above the Law that the Supreme Court has officially released the names of its clerks for the Oct. 2009 term.  Lat promises more information on the clerks former clerkships and law school in a later posting, but in the meantime, the official list is available here.  

Juvenile LWOP: Sherry Colb has this column at Findlaw on the Graham and Sullivan cases. "As a policy matter, I am sympathetic with the ultimate objective of reducing the severity of punishments in the U.S. However, as a legal matter, I will argue in this column that the Eighth Amendment case against juvenile life without parole is quite weak - given the Court's precedents as well as the nature of the flaws inherent in harsh sentencing more generally." We are always glad to see someone recognize the distinction between "I am against X" and "X is unconstitutional."
Kansas Supreme Court Blog has this post asking "Has the Kansas Supreme Court quietly hobbled Jessica's Law?" In three cases, that court overturned judgments and remanded for a lower "grid" sentence because the jury was not instructed to find that the defendant was over 18, an element of the greater degree of offense. The first of the cases is State v. Bello, No. 99225, July 2, 2009.

What strikes me as odd about Bello is the absence of any harmless error discussion. Cf. Neder v. United States, 527 U.S. 1 (1999); Washington v. Recuenco, 548 U.S. 140 (2006). KSC Blog indicates that one of the defendants was 25. That would seem to be the quintessentially harmless Apprendi error, where the truth of the element was indisputable, and nothing but naked jury nullification could have prevent the finding if the jury had been properly instructed.

Does Kansas have a stricter rule on harmless error? Anyone knowledgeable on this point is cordially invited to comment.
The California Senate voted 21-19, the bare minimum, for the prison plan noted this morning, reports AP. No word yet on the Assembly. Update: "The Assembly adjourned at midnight Thursday without approving a Senate-passed plan to reduce the prison population by 27,300 inmates this year and to create a commission to overhaul California's sentencing laws," reports Jim Sanders in the SacBee.

Speaker "Bass' amendments would modify the proposal for a sentencing commission to give law enforcement members more clout; and would increase the amount of potential sentencing credits for prison inmates -- from six weeks to four months."

More law enforcement clout on the commission is okay, but the amendment really needed is to take away the commission's authority to change statutorily prescribed punishments.  As noted in this post, when a U.S. Sentencing Commission guideline collides with a statute, the statute wins.

As noted in my post yesterday, insulating the legislators from the voters on this issue by delegation of legislative authority to a commission is unacceptable. A commission to study the problem and recommend legislation or to issue guidelines for sentencing within the bounds of judicial discretion allowed by current statutes would be okay, but that is not what is being proposed here.

Blog Scan

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Justice Sotomayor Hires Her Clerks:  Tony Mauro reports on Blog of Legal Times that Justice Sotomayor has hired four clerks for the upcoming term, and two of them are Supreme Court clerk veterans.  Justice Sotomayor has hired Jeremy Marwell, Eloise Pasachoff, Lindsey Powell and Robert Yablon help her through the October 2009 term.  Robert Yablon and Lindsey Powell, former clerks of Justice Ginsburg and Justice Stevens, respectively, will be returning to the Court to serve Justice Sotomayor.  Mauro reports that it is common for new Justices to bring on compatriots former clerks "who already know the Court's intricate and sometimes baffling procedures and quirks."  Jeremy Marwell clerked for D.C. Circuit Judge Stephen Williams and is an alum of the Department of Justice Office of Legal Counsel, and Eloise Pasachoff clerked most recently for Second Circuit Judge Robert Katzmann.  Above the Law Blog broke the news Tuesday. 

SCOTUS Preview of Johnson v. U.S.:
  On SCOTUSblog, Natasha Fedder, an Akin Gump Summer Associate, provides a SCOTUS preview of Johnson v. U.S. (08-6925), a case which could decide whether, for purposes of the Armed Career Criminal Act (ACCA), a prior state conviction for battery is in all cases a "violent felony," even when the state's highest court has held that the offense does not include the element the use or threatened use of physical force.  In 2007, Charles Darnell Johnson pleaded guilty to possession of ammunition by a convicted felon.  He had three other violent felony convictions and was sentenced to to 185 months in prison.  He appealed on grounds that federal courts applying the ACCA were bound by the Florida Supreme Court decision State v. HearnsHearns held physical force or violence is not a necessary element of simple battery, and therefore, Johnson argued the crime of battery does not fit the ACCA's definition of "violent" crime as one that "has as an element the use, attempted use, or threatened use of physical force against the person of another."  The Eleventh Circuit rejected the argument. In his brief on the merits, Mr. Johnson frames the issue as whether battery by touching is a violent felony under the ACCA.  He argues the Eleventh Circuit fails to take into account the history of the ACCA, which is rife with testimony indicating that Congress's intent in passing the ACCA was to target the very worst offenders, and not those who commit garden-variety battery by touching.  The government counters with arguments that Florida's definition of battery tracks the common law approach, and finds battery where a person applies force to another person which results in physical injury or offensive touching.  It also argues that the Hearns Court interpreted a state battery statute not at issue in Mr. Johnson's case and materially different from the relevant ACCA provision.  The Court will hear arguments on October 6th.

California's Changes in Felony Murder Doctrine:  At CrimProf Blog, University of San Diego law professor Jean Ramirez discusses two recent California Supreme Court decisions that have limited the reach of the felony murder rule in California.  She writes that in People v. Farley, 46 Cal.4th 1053 (2009), the Court overruled People v. Wilson, 1 Cal.3d 431 (1969), and held that the merger doctrine does not apply to first degree felony murder. The merger doctrine, as this term is used in criminal law, states that lesser included offenses generally merge into the greater offense. Therefore, a person who commits a robbery can not be convicted of both the robbery and the larceny that was part of it.  Wilson had applied the merger doctrine to first degree felony murder based upon a burglary committed with the intent to assault the murder victim. Farley finds Wilson to be in error.  The court reasoned there no ambiguity in Section 189 of the California Penal Code, which defines murder in the course of a burglary as first degree murder.  The court found the language of Section 189 did not support application of the merger doctrine to its terms, and emphasized the legislative prerogative in defining crime and fixing penalties.  Moving on, Professor Ramirez discusses People v. Chun, 45 Cal.4th 1172 (2009), where the court considered the merger doctrine in the context of second degree felony murder and held that a felony merges with the homicide and cannot be the basis of a felony murder instruction when that felony is assaultive in nature.  Chun did not define the felonies that are assaultive in nature, but explained they involve "a threat of immediate violent injury."    

More Rehnquist Papers Released:  Last November, we blogged on the release of a few of Justice Rehnquist papers at the Hoover Institution Archives at Stanford University.  Today, Tony Mauro reports that a second batch - including an extensive compilation of Rehnquist's correspondence with justices and with others as recently as 2005 - has been released.  He has several posts on the papers today, including one on Justice Thomas' oath-taking ceremony, and the former-Chief Justice's correspondence with D.C. Circuit Judge Malcolm Wilkey.   
One of the many cynical strategies against the death penalty is for opponents to first claim that medically qualified people must participate in lethal injections to avoid the possibility of the inmate being insufficiently anesthetized and then turn around and claim they must not participate due to medical ethics requirements.

This strategy has succeeded in keeping doctors and nurses out of the procedure in most states, but emergency medical technicians and not subject to the boards that regulate doctors and nurses. In Ohio, there is an EMS board, and the Catch-22 effort there suffered a setback yesterday.

The Midnight Express

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We have known for some time that the leadership of the California Legislature was planning some significant changes to sentencing law. Now, however, early on the morning of the vote we find out that the plan includes an appointed sentencing commission with the power to make massive rewrites in sentencing law, subject only to an affirmative veto by the Legislature and the Governor. As everyone who has done any legislative work knows, it is far easier to kill a bill than pass one.

The purpose of this commission is to effectively disenfranchise the people of California on the subject of criminal sentencing by insulating most of the legislators from the wrath of the voters when our laws are softened and criminals are let loose to prey on us again. The veto bills will be killed in committees by members from "safe" districts, and the legislators from competitive districts will be able to tell angry constituents they would have voted for the veto, but it never got to the floor.

Jack Chang has this story in the SacBee. The state's two largest newspapers are pretending the story doesn't exist.

I'd like to give you a link to the text of the bill, but it seems to be a well-kept secret as of this writing. "Don't read it, just vote on it," seems to be the message.

Fortunately, two provisions of the California Constitution come to the rescue. The referendum provision of Article II, § 9 gives the people 90 days to gather signatures to put the bill on the ballot and suspend it pending the vote. Article IV, § 8 provides the necessary delay in the effective date. Both provisions can be overridden by making the bill an "urgency" bill, but that takes a 2/3 vote of both houses, of which there is not a snowball's chance in hell.

Doug Berman has this post at SL&P. He writes, "there tends to be consensus in the academic community that the creation of a sentencing commission can help a jurisdiction reform (or at least monitor) criminal justice law and practices effectively." Yes, we must not let the Great Unwashed get their filthy little fingers on sentencing policy. Sentencing commissions allow philosopher kings to decide what is best for the people, whether they like it or not.

Blog Scan

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Harriet Goes Back to Washington:  At Blog of Legal Times, Mike Scarcella reports that Harriet Miers is taking another shot at the Supreme Court.  Only this time, she wants to argue before the Supremes.  On May 22, 2009, former White House Counsel Miers filed a certiorari petition in a dispute about whether state and local governments have authority to tax natural gas held temporarily in storage in an interstate pipeline system.  Miers, now in private practice at Locke Lord Bissell & Liddell, filed the petition on behalf of Missouri Gas Energy to challenge taxes that officials in Wood County, Oklahoma levied on natural gas in an underground storage facility.  The company does not sell gas in Oklahoma, but the Oklahoma Supreme Court upheld the tax in an opinion last year.  The Supreme Court has called for a response from Woods County by September 3rd.  Ashby Jones also writes about Miers petition on Wall Street Journal's Law Blog.   

Oklahoma Considers Death Penalty for Repeat Sex Offenders:
  Doug Berman posts at Sentencing Law and Policy on an "Oklahoma legislator pushing the death penalty for a repeat sex offender."  According to a story from ABC's Tulsa affiliate, KTUL, Oklahoma State Representative Rex Duncan wants to create legislation would set the penalty for a first-time sex offender at life without parole. Prosecutors would be able to seek the death penalty for a second conviction.  A similar bill was passed in 2006, but was shot down by the Supreme Court.  Duncan believes the new bill is more specific and will be upheld.  Duncan's move comes after repeat a twice-convicted sex offender Marcus Berry was arrested for allegedly abducting a two-year-old girl from her front yard.  Police found Berry in his truck, with his pants down, with the partially dressed two-year-old girl.  He has previously been convicted for two acts of sex abuse, but had served less than 13 years of a 30-year sentence before being released.  Doug Berman's post wonders whether the Supreme Court's decision in Kennedy v. Louisiana would prevent Rex Duncan's proposed law.  As he reads it, Kennedy suggests the death penalty is always disproportionate for non-murder personal crimes, but, "other Eighth Amendment rulings clearly support the concept that a punishment which would be unconstitutional for a first offender might be permissible for a repeat offender."

Helpful Guide to Last Terms Criminal Supreme Court Opinions:  At CrimProf Blog, graduate fellow Peter Stockburger has compiled the reporter's syllabi from last term's U.S. Supreme Court criminal law and procedure opinions.  The syllabi give the facts and procedural history of each case and then discuss the Supreme Court's holdings.

What's Going On With Briscoe v. Virginia:  CrimProf Guest Blogger James J. Duane blogged about the "Extraordinary Mystery of Briscoe v. Virginia" yesterday.  Duane's post gives his thoughts behind why the Supreme Court voted to hear Briscoe so quickly after it had decided Melendez-Diaz v. Massachusetts. Duane believes that the four dissenters, Roberts, Alito, Kennedy and Breyer, voted to grant certiorari at a time when they all knew that Justice Souter was leaving. He speculates that their hope was that Briscoe would give them a chance to persuade Justice Sotomayor to reverse Melendez-Diaz.  When asked why the Melendez-Diaz majority did not put together a majority in favor of a summary disposition in Briscoe that would vacate and remand the decision of the lower court for reconsideration in light of Melendez-Diaz, Duane responds with less certainty.  His best guess is that Justice Souter "found himself in the middle of a surprisingly tense four-day standoff and perhaps even a four-four split between his colleagues, and decided that he would rather not supply the fifth vote to decide a matter that had become so contentious... [he] opted instead for the alternative of passing the buck to his replacement."  

A Tale of Two Rex Harrisons

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Here is another readable opinion from Chief Judge Kozinski in an otherwise mundane criminal appeal. Liza, where the devil are my slippers?

Blog Scan

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Obama Administration Takes On Transfers from Guantanamo:  Yesterday, Lyle Denniston reported on SCOTUSblog that the Obama Administration has filed a brief to address an issue in the D.C. Circuit case Kiyemba v. Obama (Circuit docket 05-5487).  Denniston writes the government's brief argues that under Munaf v. Green federal courts cannot interfere with Executive orders to transfer detainees out of Guantanamo based on claims that the detainees might suffer torture or other abuse in the countries where they were resettled.  The government argues that Munaf v. Green carries more weight in this case than the Supreme Court's other detainee case, Boumediene v. Bush.  This is consistent with what the District Court decided in April.  Lawyers for the detainees have apparently asked the district court to delay action until the Supreme Court acts on their petition. Lawyers for the detainees argue that Boumediene gives detainees the right to challenge their detentions if they can be put beyond a court's reach without any advance notice. They argue the federal court's decision interferes with the prisoners' habeas rights.  The Administration's new filing said that Munaf has already made it clear that Boumediene gives detainees no right to challenge transfers to other countries.  In its brief the government argues Munaf "did not include a right to an injunction to prevent transfer to a foreign country."

More Support To Cut Prison Population:  Doug Berman posts a link to an LA Times Op-Ed on Sentencing Law and Policy.  The Op-Ed, by Jaime Fellner of Human Rights Watch, supports the August 4th decision by a three judge panel to cut the state's prison population by 40,000 over two years, stating the decision comes at a "propitious moment" due to California's current budget crisis.  She believes "the fiscal imperative of cutting corrections expenditures thus dovetails with the constitutional imperative of reducing overcrowding[,]" and will free up resources to improve medical and mental healthcare.  Fellner comments that Atty. Gen. Jerry Brown should not appeal the federal court's decision.  Instead, "of pandering to the public's fears, Brown and other state officials should explain that the court order does not mean that dangerous murderers and rapists will be released. Instead, a smaller prison population will enhance community safety, as well as meet the dictates of the U.S. Constitution, common sense and fiscal responsibility." The tone of Fellner's article is all too typical of what we hear from the "let 'em out" crowd these days. Concerns about increased crime from released inmates is real and is based on solid data and years of experience. To call it "pandering" is condescending, implying that everyone who disagrees is ignorant. The tone of the debate would be enhanced if Fellner et al. recognize the very valid concerns of those who disagree with them.

"Erroneous Analysis of Computer Searches" from the Ninth:
  At Volokh Conspiracy, Orin Kerr posts his thoughts on the Ninth Circuit's decision in United States v. Payton.  The decision, authored by Judge Canby, held that in executing a warrant to search for drugs, officers had unconstitutionally searched a computer and discovered child pornography.  In Payton, officers had reason to believe that Payton was selling drugs from his home, and they obtained a warrant to search his home for drugs, sales ledgers relating to drugs, and financial records for the person who lived in the home. The affidavit of probable cause specifically requested permission to search any computer located in the house.  While the officers were executing the warrant, an officer saw a computer in the bedroom with its screensaver up. The officer moved the mouse, removed the screen saver, and then clicked to open a file. He saw that it contained child pornography. Further investigation confirmed that Payton had other images of child pornography on his computer, leading to child pornography charges.  The Ninth Circuit suppressed the child pornography discovered in the computer reasoning that the warrant itself did not authorize the search of the computers.  Kerr believes this conclusion is wrong as "the Fourth Amendment makes clear, warrants must 'particularly describ[e] the place to be searched and the persons or things to be seized.'"  He writes, "[t]he Fourth Amendment requires a description of the things to be seized, not a description of containers that are searched during the hunt for the things to be seized."  Furthermore, Kerr argues that Payton is inconsistent with the case upon which the panel relies, United States v. Giberson.  He argues that Giberson involved a different legal issue - whether the police could seize computers onsite and take them away for later search pursuant to a second warrant when the initial warrant did not authorize search of computers - and the general language of the Fourth Amendment is more applicable here. In Payton, the panel relied Giberson to conclude there must be facts according to which the search and seizure of a computer with a warrant was unreasonable, and Payton was such a case.  Kerr disagrees because "whether the Fourth Amendment allows a seizure of an item not named in the warrant is very different from whether the warrant allows a search for evidence described in the warrant that happens to be on a computer."

No Filings, It's Wednesday

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From the California Supreme Court's website:

Due to California's current fiscal crisis the Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009 (see below for a complete lists of court closure dates).

Not A Good Sign

During the debate over the nomination of Sonia Sotomayor to the Supreme Court, we reviewed her AEPDA opinions and noted them to be generally thoughtful and balanced. However, we cautioned that she had nearly zero record on the death penalty as a judge, and that her signature on a repugnant PRLDEF memo was a concern.

Right out of the gate, Justice Sotomayor joined the dissent when the Supreme Court denied a stay to Jason Getsy. This is not good. Unlike the Troy Davis case, which got the headlines recently, there is no doubt that Getsy is guilty as sin of murder for hire. There is no good reason to stay his execution. The claim that there is something unconstitutional about the fact that the man who hired him got off for less -- as a result of Confrontation Clause limits on evidence in the latter's trial -- should not make any person of sense even pause. Ohio's lethal injection procedure is as good as the one upheld in Baze v. Rees. (Maybe better -- the Ohio team has had more practice.)

Curiously, while four justices dissent from the denial of a stay, no dissent is noted from the denial of certiorari. Under the "rule of four," the four stay-dissenters could have granted certiorari, and one of the others probably would then have provided the fifth vote for a stay. Kind of odd, but no explanation is given.

David Savage has this article in the LA Times. Jesse Holland reports for AP.

Update: Long-overdue justice in this case was finally carried out at 10:29 EDT. AP story is here

Update 2: This follow-up AP story by Andrew Welsh-Huggins describes the execution, noting that a check for consciousness and rechecking the shunts after the first drug is part of the protocol.  The absence of those checks from the Kentucky protocol was the primary basis of Justice Ginsburg's dissent in Baze v. Rees: "Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs."

Fabricating DNA Evidence

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DNA has been one of the most important, possibly the most important, advances in forensic science. When DNA is available, the issue of identity simply drops from the case. A few years back, the anti-DP crowd's poster boy for the executed "innocent," Roger Coleman, was conclusively proven guilty by DNA. It was a great moment.

Now the conclusiveness of DNA is in jeopardy.  An article in Forensic Science International: Genetics says, "It turns out that standard molecular biology techniques such as PCR, molecular cloning, and recently developed whole genome amplification (WGA), enable anyone with basic equipment and know-how to produce practically unlimited amounts of in vitro synthesized (artificial) DNA with any desired genetic profile." The authors propose a method for distinguishing real crime-scene DNA from fake.

We have already seen in the Kevin Cooper case how someone who appears to have been conclusively proven guilty with DNA can drag out litigation for years with tampering claims. No doubt fabrication claims based on this article are coming soon to a courtroom near you.  Andrew Pollack has this article in the NYT.

Abstract of the journal article is after the jump.

Blog Scan

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An "Emerging Criminal War on Sex Offenders:"  Corey Rayburn Yung maintains a blog called SexCrimes and has posted on his new SSRN article titled, The Emerging Criminal War on Sex Offenders.  Yung's article reviews America's history of criminal wars, focusing primarily on the War on Drugs, and establishes three characteristics of a criminal war: marshaling of resources, myth creation, and exception making.  He believes that federalizing sex offender policy through the Adam Walsh Act has "elevated law enforcement to a nascent criminal war on sex crimes."  Doug Berman also has a link to the article at Sentencing Law and Policy.

Serving Life in Iowa:
  Yesterday, Doug Berman posted an article from the Des Moines Register on Sentencing Law and Policy.  The article, by William Petroski, details how in Iowa "life means life."  According to Petroski, and a Sentencing Project study, "Iowa is one of the most difficult states in the nation for an inmate serving a life sentence to gain release."  Petroski contributes this to the "uneasy truce over capital punishment: Iowa lawmakers have repeatedly rejected the death penalty, but only because 'life means life' for the most serious crimes...."  So, while many seek to decrease Iowa's population of lifers, Iowa continues to impose life sentences for its most heinous crimes.  Iowa's growing number of lifers are apparently part of a national trend. Throughout the United States, more than 140,000 individuals are incarcerated with life sentences.  In addition, state legislators have stepped up their fight against crime by expanding which crimes result in life sentences, restricting parole and increasing the use of life sentences without parole.  Iowa is one of six states where all life sentences are imposed without automatic provisions for parole.  Petroski writes that Iowa is considering changing the law to allow for parole.  One state representative, Clel Baudler, a Republican and retired state trooper, has said he is willing to consider the possibility of having the Legislature expand parole provisions for lifers, but only if capital punishment is included in the debate.

CrimProf is Back With a Post on Peoria's New Crime Fighting Tactic:
  Thanks to Orin Kerr, Volokh Conspiracy, and Doug Berman, Sentencing Law and Policy, for alerting us to the return of CrimProf Blog, hosted by the criminal law faculty at the University of San Diego.  In one of today's posts, CrimProf links to a Wall Street Journal article by Carrie Porter, reporting on Peoria, Illinois' "new, low-budget way to fight crime."  Peoria's officers are parking the "Armadillo," an old Brinks truck covered with video cameras, in neighborhoods where drug dealing has made the area unlivable.  Officers will drive the truck to the offending house, knock on the occupants' door, and inform them that a nuisance report had been filed.  He will then leave the truck out front.  Sometimes the occupants will move out within 24 hours of Armadillo's arrival.  The Armadillo works simply because it is such an eyesore.  Jim Pasco, executive director of the National Fraternal Order of Police, states, "A police car is not a particular stigma, but if people see that thing in front of your house, they know something bad is going on in there."  More proof that public shaming can deter bad behavior....

"Don't Appoint a Special Prosecutor for CIA Interrogators:"
  That's the advice of Robert Alt on NRO's Bench Memos, and the conclusion of a WebMemo by Todd F. Gaziano and Robert Alt at the Heritage Foundation.  Last Monday, the LA Times and our Blog Scan reported that Attorney General Eric Holder was expected to appoint a prosecutor to look into the alleged abuse of detainees during CIA interrogations.  Alt and Gaziano argue that the President and the Attorney General should not "pass the buck" of the criminal investigation to a special prosecutor.  Arguing for oversight and political accountability, Alt and Gaziano conclude: "[t]he Attorney General must be the one who personally authorizes any criminal investigation and subsequent trial. He, with the President, must also bear the responsibility for any direct or collateral results of such an investigation.  Additionally, the Attorney General should be directly responsible for any negative impact such an investigation and trial will have on the intelligence community and the willingness of that community to carry out all lawful acts in support of America's defense."

More Discussion on Troy Davis:
  Orin Kerr discusses the Troy Davis case over at  Volokh Conspiracy.
The amendment to the Federal Sentencing Guidelines lowering the penalty for crack cocaine doesn't help a defendant who remains subject to the statutory mandatory minimum. In United States v. Jackson, USCA9 08-30231, Aug. 14, the defendant hit the trifecta for his appellate panel, B. Fletcher, Tashima, and Thomas, but still did not get a sentence reduction.

The Davis Original Habeas Petition

And now, for something completely different...

The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus -- "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial.

It was settled early, in a case related to the Aaron Burr plot, that the Supreme Court can issue such writs despite the Marbury limitation if the writ is appellate in practice even though original in form. That is, if the petitioner seeks a de facto review of a decision of a court, as opposed to the unilateral decision of the executive to lock him up, then he doesn't have to fit within the very limited category of cases where the Constitution gives the Court original jurisdiction.

The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first. Term after term, every Monday orders list has had one-liner denials of original habeas petitions.

Only once in the time I have been doing Supreme Court work (since 1987) has the Court seriously considered an original habeas petition and written an opinion. That was in Felker v. Turpin, 518 U.S. 651 (1996), the first case on the constitutionality of the then-brand-new Antiterrorism and Effective Death Penalty Act of 1996. The Court did not resolve whether original writs in the Supreme Court would be subject to the same restrictions Congress placed on the usual district-court application, but it said it would be guided by them nonetheless. It denied Felker's petition, and he was executed shortly thereafter.

Another issue the Court has never resolved is whether a free-standing claim of actual innocence, unconnected to any constitutional violation at the trial, states a claim for relief in federal habeas corpus. The Court considered the question in Herrera v. Collins, 506 U.S. 390 (1993), but once it took a good, hard look at the facts, it realized that Herrera's innocence claim was such complete garbage that it would have been denied under any conceivable standard.

And now comes Troy Davis.

DP Defense Fund Abuse

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Illinois "Gov. Pat Quinn has signed a measure to overhaul the state's death penalty defense fund after a [St. Louis] Post-Dispatch report last year revealed widespread waste and abuse," reports Kevin McDermott for the P-D.

Blog Scan

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Time to Focus on Appellate Court Nominations:  Yesterday, The Legal Intelligencer featured a piece urging the Obama Administration to start filling the vacancies in the appellate courts. The piece, by How Appealing blogger Howard Bashman, reports that during Obama's first seven-plus months in office he has only nominated 16 people to fill 88 vacancies in the district and appellate courts, and has left 72 seats without nominees. Bashman asserts that if President Obama wants to take advantage of the "unusually easy path toward achieving the confirmation of individuals nominated to serve on the courts of appeals and the district courts[,]" he should act now.  The Senate's Democratic majority could change in November 2010, "since history shows that the political party that does not hold the presidency usually gains seats in a midterm election."  If Bashman's correct, we're content with the President' current rate of nominations.  There's no need to rush "to shape the direction... of the federal judiciary..."

Dissents in Death Penalty Cases:
  Doug Berman has a post on Sentencing Law and Policy briefly discussing today's New York Time's article, "More Judges Dissent in Death Penalty Cases."  The article, written by John Schwartz, discusses the increasing occurrence of judicial dissent from decisions upholding the death penalty.  One case, the Ninth Circuit's denial of Kevin Cooper's appeal, contained a 101-page dissent by Judge William Fletcher. The article contributes many of the dissents to the "ire" that many judges feel toward the Antiterrorism and Effective Death Penalty Act of 1996.  One commenter, Eric M. Freedman, a critic of the death penalty, belives judges dissent because they have little patience "for being hogtied by legalistic mumbo-jumbo."  He believes this "mumbo jumbo" prevents fair results.  In the long, drawn out case of Kevin Cooper, however, Kent correctly states that the defendant has been given ample opportunity to exonerate himself.  AEDPA's legalistic "mumbo jumbo" has led to a result that is fair for all parties involved.

Tenth Circuit Splits on Gun Ban for Misdemeanants:  At Volokh Conspiracy, David Kopel blogs on a split 10th Circuit ruling on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor.  In the case of In re United States, federal prosecutors petitioned for a Writ of Mandamus to stop a Utah district judge from employing a jury instruction which the prosecutors did not want.  Back in June, the district judge had ruled in U.S. v. Engstrum that the Second Amendment allowed someonebeing prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor to present an affirmative defense "that he posed no prospective risk of violence."  Federal prosecutors didn't like the decision, and apparently neither did a majority of the panel. Late yesterday, federal Judges Hartz and Kelly voted to issue the Writ of Mandamus.   Judge Murphy dissented.  Both Kopel, and Doug Berman at Sentencing Law and Policy, believe that Judge Murphy presents a strong argument for setting the issue for briefing.  Berman's post remarks that in light of District of Columbia v. Heller, mandamus relief seems "inappropriate" when Heller could be of consequence "for an array of broad and severe federal gun possession crimes."  


Sense Prevails in Ohio

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Ohio Governor Ted Strickland today announced he will deny clemency to hit man Jason Getsy. The Parole Board had recommended clemency based on an intracase proportionality theory, which the governor rejected today. Hiror John Santine was tried separately before a different jury hearing different evidence. Most significantly, Getsy's statement was admissible against him but not against Santine due to the Confrontation Clause. Santine's jury did not find the murder-for-hire specification, and Santine therefore could not be sentenced to death.

Should the fact that one conspirator has been shielded from the death penalty by a procedural constitutional right extend to shield everyone in the conspiracy? It seems like a bizarre theory, but a Sixth Circuit panel bought it. CJLF filed an amicus brief in support of the rehearing en banc petition, and the full court granted rehearing and reversed.

The protections built into our system are based on the premise that, as Blackstone said, it is better to let ten guilty men go free than convict one innocent. So, too, the extensive rights we provide defendants sometimes let guilty people partially off with convictions of lower degrees than they committed or lesser sentences than they deserve. That is a price we have chosen to pay, but there is no reason to pay a surcharge of letting the co-conspirator off easy as well. Governor Strickland got it, even though the Parole Board did not. His statement is quoted after the jump.

Amici Supporting Rehearing

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A few years back, the Federal Rules of Appellate Procedure gave amici in the Courts of Appeals 7 days after the party supported to file their briefs, instead of the prior rule of contemporaneous filing. Two years ago, the Supreme Court adopted the 7-day lag at the suggestion of yours truly.

Does the 7-day lag apply to amici supporting rehearing en banc in the Court of Appeals? No, says Judge Easterbrook in this in-chambers opinion (h/t, How Appealing), shooting down AARP's attempt to file in a pension case. For rehearing petitions in the CA, amici are still subject to the contemporaneous filing requirement.

So when can you file an amicus in support of rehearing in the Supreme Court? Never. See Sup. Ct. Rule 37.3(a).

News Scan

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Death Row Smuggling: "A former chief of staff for Bill Clinton when he was governor of Arkansas faces felony charges accusing her of trying to smuggle a knife and 48 tattoo needles onto the state's death row," Jon Gambrell reports for AP from Little Rock.

Fighting Back. "A 72-year-old Harlem business owner used a shotgun to blast four men who tried to rob his restaurant-supply business Thursday afternoon, killing two and sending two others to the hospital with gunshot wounds, the New York City police said." Christine Hauser and Sewell Chan have the story for the NYT.

The End Is Near

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Regular readers of this blog are all too familiar with the vicious gang rape and murder of Jennifer Ertman and Elizabeth Pena in 1993. Jose Medellin was executed for his role in that crime after a long legal battle that made a trip to the World Court and two trips to the U.S. Supreme Court, ending in Medellin v. Texas, decided last year. CJLF's three briefs in Medellin's case are available on our briefs page.

On Tuesday, the Fifth Circuit denied a certificate of appealability in the case of the gang leader, Peter Cantu. The petition was filed in federal district court on Sept. 19, 2007, meaning the case took less than two years from district court filing to appellate panel disposition. Particularly for cases with no genuine question of identity of the perpetrator, there is no need to take any longer than that.

The main reason that federal habeas was not commenced until 14 years after the crime is that the state trial judge sat on the state habeas for 9 years.

From the Court of Appeals' opinion, it appears that the state courts were well within the scope of deference that AEDPA requires they be given, so I doubt there will be any stays for en banc or certiorari. Cantu will likely not ring in the new year of 2010, and this awful story will finally come to a close.

Blog Scan

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Pay-If-You-Go Prisons:  On Monday, Freakonomics Blog featured a quick post discussing the possibility of "Pay-If-You-Go" prisons.  According to an article in The Economist, New York State Assemblyman Jim Tedisco has proposed a bill to establish a "pay-if-you-go" model for prisons, whereby wealthy inmates pay their own incarceration costs.  Tedisco's intent is to ease taxpayer burden.  As Freakonomics points out, Daniel Freedman proposed a similar idea on back in March.  According to Freedman's estimates, a bill asking criminals to pay for their incarceration could save New York $2.6 billion.  He also pointed out that in 2007 California spent $8.795 billion locking up prisoners.  And, according to an article in today's Economist (h/tp Sentencing Law and Policy), "California spends $49,000 a year on each prisoner, almost twice the national average."  So how much could a bill like Tedisco's save us here?

Texan Named President of National Association of Criminal Defense Lawyers:
  David Ingram reports on Blog of Legal Times that Cynthia Orr, an associate at Goldstein, Goldstein & Hilley in San Antonio, Texas has taken over as the new NACDL president.  She is a co-founder of the Texas Innocence Network and a longtime member of the Texas Criminal Defense Lawyers Association.  We've been up against the NACDL before. It has filed briefs in several of our cases, including Bell v. Kelly, Maryland v. Shatzer and Kansas v. Ventris.

Virginia Gubernatorial Candidate Makes Crime Proposals:
  At Sentencing Law and Policy, Doug Berman opines that Virginia's Gubernatorial race could mean "serious political discussion of certain alternatives to prison for dealing with crime and punishment."  Berman's thought stems from Anita Kumar's article in today's Washington Post.  In the article, Kumar reports that Republican candidate Robert F. McDonnell has released a proposal "designed to curb crime in Virginia, including lifetime monitoring for sexual predators through the Global Positioning System and other technology."  He also proposed opening more drug courts in Virginia, something he had opposed before, after recent studies showed that the courts had been successful.  Yesterday's proposal is part of a three part series outlining McDonnell's stance on public safety. His Democratic opponent, state Senator R. Creigh Deeds is expected to release a public safety plan in the coming weeks.

Chutzpah Award of the Day

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... goes to counsel for Ohio hit man Jason Getsy, who claimed that the rout of lethal injection claims in Baze v. Rees, 128 S.Ct. 1520 (2008) created a new constitutional right, thereby resetting the statute of limitations clock for challenges under 42 U.S.C. §1983. Counsel should follow this argument with a lecture on Napoleon's great victory at the Battle of Waterloo.

Yesterday's opinion is here. Judge Merritt dissents and will tell us why when he gets around to it.  Doug Berman has this post at SL&P.

Neuroscience in America

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As Kent mentions, the legacy of Freudian thinking is regrettable.  The problem of that legacy has little to do with how Freud conceptualized the mind, but that those who proffered the Freudian explanation had convinced themselves and so many others that they had a method which could fully explain all behavior.  They considered their approach to the mind infallible, which meant that they could reveal all of its aspects in time. 

Most people these days scoff at the ideas of Freud. Yet, many folks accept the serious contention that neuroscience has the ability to fully explain how the brain becomes the mind by way of brain maps.  The real stain of Freud's legacy is nothing unique to his theory but the fact that it made people comfortable with the notion that science has the ability to reduce the human experience to mere descriptions of elemental processes. 

Blog Scan

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FOIA During Wartime:  At SCOTUSblog, Lyle Denniston has a post on an Obama Administration petition asking the Supreme Court "to put a strict new limit on public disclosure of evidence -- including photos -- of torture or abuse of wartime captives by U.S. military personnel."  The petition, U.S. Defense Department, et al. v. American Civil Liberties Union, et al.  (09-160), asks the Court to examine the Second Circuit's conclusion that the Freedom of Information Act (FOIA) requires disclosure of the photos.  Section 7 of FOIA exempts certain government records, including any law enforcement files, from general disclosure requirements, if their release "could reasonably be expected to endanger the life or physical safety of any individual."  The Second Circuit held that the government could use that exemption only if it offered evidence of a threat to an identified individual, and general U.S. forces were not included in the exemption.  While the Supreme Court is asked to interpret only two words in FOIA ("any individual"), Denniston believes the issue is whether the government can prevent the public disclosure of unclassified evidence of military misconduct during wartime, based on a generalized claim that release will threaten harm to U.S. military forces in the field.

Celebration at the White House:  Tony Mauro reports on Blog of Legal Times that, today, President Obama hosted a "festive and emotional reception" for new Supreme Court Justice Sotomayor.  Obama said Sotomayor's presence on the Court represents "yet another step closer to the more perfect union we all seek."  Mauro reports that the President did not speak on "empathy" today, but did quote the late Justice William Brennan Jr. who said government officials need to understand the "pulse of life" behind the events they deal with.  Justice Sotomayor gave brief remarks of gratitude and said she was "deeply humbled by the sacred responsibility of upholding our laws and safeguarding the rights and freedoms set forth in our Constitution. I ask not just my family and friends, but I ask all Americans, to wish me divine guidance and wisdom in administering my new office."

Don't Go After Judges, Their Contemporaries Set Your Bail:  Ashby Jones reports on Wall Street Journal's Law Blog that, yesterday, federal judge Martin Ashman denied Hal Turner bail, ruling that Turner was still a danger to the community.  Turner made headlines back in June when he made threats against three Seventh Circuit Judges - Richard Posner, Frank Easterbrook and William Bauer - on a blog.  The three had just upheld handgun bans in Chicago, and an angry Turner wrote, "Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions."  The ruling surprised some, since Turner was once an FBI informant, but Judge Ashman gave greater sway to the fact that, from his prison cell, Turner managed to record and post on the Internet a telephone conversation that included the names of his arresting FBI agents.

Sentencing Post-Booker Doug Berman posts a link to an SSRN paper on Sentencing Law and Policy.  "In Search of the Booker Revolution," by Ryan Scott, presents new data, suggesting a modest increase, in the District of Massachusetts, in inter-judge disparity since Booker.  The paper reports "[t]he strength of the relationship between the identity of the sentencing judge and sentence length has increased, by some measures 60-80% above pre-Booker levels.  The identity of the judge also has become a stronger predictor of sentencing relative to the Guidelines...."

Freud in America

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Daniel Akst has this commentary in the WSJ on the 100th anniversary of Sigmund Freud's famous trip to America, a country he despised. Regrettably, the feeling was not mutual. Reading old California criminal law opinions from the 50s and 60s, I get the impression that the justices were infatuated with psychiatry. The infinitely wise gurus had the human mind all figured out. That was why we could safely adopt the "modern" view that violent criminals were sick people needing treatment rather than evil people deserving punishment. Years later, real science exposed the treatments as worthless. A lot of people died or suffered other victimizations from that folly. Let us be sure not to repeat those mistakes.

News Scan

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Integrating Inmates:  As noted here Monday, a contributing factor in the recent riot at California's Chino Correctional Facility may have been the Supreme Court's naive 2005 decision in Johnson v. California that required that inmates be integrated.  AP writer Don Thompson's report on the riot seems to bear this out.  Prison gangs are primarily racial and do not tolerate integration.  As one inmate puts it, "To me this is like using us as lab rats, to see if it works.  It ain't ever going to work.  All it's going to do is get somebody hurt, get somebody killed." 

A Boston Judge Denied an Inmate's Right to further taxpayer-funded electrolysis treatments to help with the convicted murderer's "gender identity disorder." According to this AP story by Mark Pratt, Robert Kosilek, who is serving a life sentence for murdering his wife, now calls himself Michelle, and since 1993 has been living as a woman in an all-male prison.  While the judge had initially allowed the treatments in 2002, he denied Kosilek request for a sex-change operation.  In an later suit, Kosilek claimed that denial of the surgery has made her suicidal.  When corrections officials suggested shaving as an alternative to electrolysis, Kosilek's lawyer retorted that shaving is a "quintessential male" activity.  There is always Nair.   

Blog Scan

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Retroactive Ameliorative Sentencing:  Doug Berman posts a link on Sentencing Law and Policy to an SSRN article that addresses "the retroactive application of new sentencing rules that reduce sentences..."  The article, "In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration," written by S.David Mitchell, discusses how a majority of jurisdictions do not apply ameliorative sentencing changes retroactively unless there is clear legislative intent, but courts in a minority of jurisdictions, "[d]issatisfied with this approach," apply ameliorative sentencing changes "despite the existence of a general saving statute in contravention of the rules of statutory construction..."  Mitchell points out that some may label this judicial activism.  He advocates "for ameliorative sentencing changes to be applied to pre-final judgment defendants adopting the current minority legislative practice and to those with finalized convictions through an administrative sentence readjustment process."  

Always a Judge:
  Thanks to Tony Mauro, at Blog of Legal Times, for including a link, in the Morning Wrap, to Jess Bravin's Wall Street Journal article on former-Justice O'Connor's post-retirement career.  According to Bravin, since she retired, Justice O'Connor "has been visiting federal appellate courts across the country, filling in as a substitute judge when vacations or vacancies leave their three-member panels understaffed."  To date, she has heard nearly 80 cases and written more than a dozen opinions.  Occasionally the former-Justice gets to apply rules established by cases she heard in the Supreme Court.  O'Connor told Bravin, "I now have occasion to have to apply some of those [Supreme Court] holdings with which I didn't agree when they were made, but of course now they're binding...It hasn't caused me to change my mind on a previous dissent. But that's water over the dam."  In 1937, Congress authorized retired justices to serve as substitutes on lower courts.  Justice O'Connor is one of the few to take advantage of the opportunity.  Ashby Jones at Wall Street Journal's Law Blog also posts this link to Bravin's "enlightening read."

"Cool Forthcoming Article" Discussing Ambiguity and Legal Interpretation:  Orin Kerr posts on Volokh Conspiracy that Ward Farnsworth, Dustin F. Guzior, and Anup Malani will soon have an article in The Journal of Legal Analysis "investigat[ing] the crucial and analytically prior question of what ambiguity in law is."  The abstract notes that while "[m]ost scholarship on statutory interpretation discusses what courts should do with ambiguous statutes[,]" people can have different interpretations of what makes a law ambiguous - is it that it is unclear to a judge, or is it unclear to ordinary readers of English, as a group?  Apparently, from a survey given to 1,000 law students, the authors found "that asking respondents whether a statute is 'ambiguous' in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way."  Farnsworth, Guzior and Malani write, "This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant."

Au Revoir to The Ninth Justice:  The Editor of The Ninth Justice informs readers that with Justice Sonia Sotomayor sworn in as the 111th justice of the Supreme Court, the website "is going dark."  It's resources, news and updates will be available in its archives.  Thanks for four months of great commentary and coverage.  Similar political blogs can be found at National Journal Online

Blog Scan

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Juvenile Incarceration:  Thanks to Doug Berman at Sentencing Law and Policy for posting links to two articles discussing the incarceration of juveniles.  Today's post links to a New York Times article by Solomon Moore that reports cash-strapped states are placing juveniles with mental illness in correctional facilities.  Apparently, as cash-strapped states are cutting mental health programs, they are turning to prisons to treat these young offenders.  Yesterday, Berman posted a link to a Sarasota Herald-Tribune article by Lloyd Dunkelberger, discussing the life sentences of juvenile offenders Terrance Graham and Joe Sullivan.  The constitutionality of Graham's and Sullivan's sentences will be argued before the Supreme Court this fall (previous posts can be found here and here), and Dunkelberger's article discusses the tough sentences Florida imposes on juvenile offenders.  According to Dunkelberger, Florida's tough sentences are the result of a violent crime wave that swept through Florida in the 1990s, which included the killings of nine tourists in 1992 and 1993.  He reports that Florida's tough on crime stance is not unique to the Sunshine State, although no other state has "embraced the use of life without parole for non-homicide juvenile offenses as aggressively as Florida."

Investigating Allegations of Detainee Abuse:  At Volokh Conspiracy over the weekend, Jonathan Adler posted on an LA Times article discussing expectations that Attorney General Eric Holder will appoint a prosecutor to look into the alleged abuse of detainees during interrogations.  LA Times reporters Greg Miller and Josh Meyer report that Holder's inquiry would be narrow in scope and would focus on "whether people went beyond the techniques that were authorized" in Bush administration memos that liberally interpreted anti-torture laws.  Adler opines that A.G. Holder's move is likely to draw criticism from both the Right and the Left.  "The former will argue that any prosecution is an effort to criminalize political differences and undermine CIA morale. The latter will be upset about the inquiry's narrow focus, and its failure to cover those who authorized coercive interrogation techniques."  The LA Times article follows reports from Jurist's Ximena Marinero that the Obama Administration has petitioned the U.S. Supreme Court to overturn a district court order mandating the disclosure of detainee abuse photos.  The petition alleges that disclosure could lead to further violence in Iraq and Afghanistan.  The Justice Department's contrasting positions are noteworthy.  If the Administration is concerned the photos will lead to violence, why does it appear less concerned that an investigation could cause similar effects?  As one former Justice Department official, familiar with the details of the program, told the LA Times, "... if they appoint a special prosecutor, it would ultimately be unsuccessful, and it would go on forever and cause enormous collateral damage on the way to getting that unsuccessful result."

Get Out of Prison Free: Burn It Down

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Now that the most pro-criminal judicial panel in American history has ordered the state to reduce its prison population due to overcrowding, some prisoners have apparently decided to require further reductions by further reducing capacity. A 1,300-man unit of the prison in Chino, California has been shut down following a prison riot. (Chino is in Riverside County, east of Los Angeles.) Joe Mozingo and Margot Roosevelt have this story in the LA Times.

The riot had a racial aspect to it, "touched off by fighting among Latino and African American prisoners," leading to speculation that the Supreme Court decision in Johnson v. California, 543 U.S. 499 (2005) was a contributing cause. Doug Berman has this post at SL&P.

Blog Scan

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The Republican Vote Against Sotomayor:  At The Ninth Justice, Steven Shepard reports that a majority of Republican up for re-election voted against Judge Sotomayor's confirmation. Shepard reports that four of the nine Republicans who voted to confirm Judge Sotomayor are likely to retire in 2010.  This could be because a majority of Republicans opposed Judge Sotomayor's nomination.  Research polls showed that 27% said she should be confirmed, and 58% said she should not.  And, of the states represented by Republicans whose 2008 electorate was more than 9 percent Hispanic - Arizona (16 percent), Florida (14 percent), Nevada (15 percent) and Texas (20 percent) - only Senator Mel Martinez (R- FL) voted for her confirmation.  Senator John Ensign of Nevada, Senator Jon Kyl of Arizona, Senator John Cornyn of Texas, Senator Kay Bailey Hutchinson  of Texas and Senator John McCain of Arizona, all voted against.  Chris Cillizza at Washington Post's The Fix similarly reports that of the Republicans running for the Senate in 2010, only House Representative Pat Toomey (PA) came out in support of Sotomayor's confirmation.

Federal Judge Asks President Obama to Reduce Cocaine Dealer's Sentence: 
Doug Berman posts on Sentencing Law and Policy that U.S. District Court Judge for the District of Columbia is asking President Obama to reduce the 27-year sentence of Byron Lamont McDade.  McDade was convicted of conspiring to distribute five kilograms or more of a mixture containing cocaine.  Judge Friedman sentenced McDade in 2002, at a time when federal sentencing guidelines required the 324-month term. Those guidelines became advisory as the result of a Supreme Court decision in 2005, and Judge Friedman believes he has no authority to re-open the sentence.  Both Berman and Josh Gerstein at Politico write that this could reveal the President's stance on executive clemency.  Berman believes that "President Obama's failure to grant even a single clemency through now his second 100 days in office should keep McDade from expecting too much in response to Judge Friedman's call for presidential action."  Berman also provides a link to U.S. v. McDade.  

Cameras in the Supreme Court: 
Tony Mauro reports on Blog of Legal Times that for the first time, cameras will be allowed in the Supreme Court to televise Judge Sotomayor's oath-taking on Saturday, August 8th.  C-SPAN will air the proceedings beginning at 11a.m.  Only Justice Thomas' oath-taking ceremony has been televised, and that proceeding took place at the White House, and not the Supreme Court.  Mauro writes this will give viewers a "rare live glimpse of the East Conference Room, where Chief Justice John Roberts Jr. will administer the judicial oath to Sotomayor."

More on Hate-Crime Laws:  As a follow-up to Wednesday's News Scan, Jonathan Adler at Volokh Conspiracy, has a post briefly discussing The Cato Institute's David Rittgers article on the new federal hate-crime statute.  Rittgers' reports that the statute "greatly expands the federal government's jurisdiction to prosecute cases that properly belong in a state court."  It does this by allowing "federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim."  Adler opines "the bill simultaneously expands federal jurisdiction to cover yet more criminal offenses traditionally handled at the state and local level and encourages reprosecution if a state verdict is insufficiently harsh to satisfy federal prosecutors."

Clearing California's Prisons:  Ashby Jones wonders on Wall Street Journal's Law Blog how California is going to clear its prisons of 40,000 prisoners now that a three judge panel has ordered the state had to reduce its prison rolls by about 40,000 inmates.  According to Jones, a Wall Street Journal article by Bobby White and Ryan Knutson reports state officials have announced they will appeal the decision, but "[a]t the same time, cash-strapped local governments in places such as Los Angeles and Fresno are grappling with how to monitor and support thousands of released inmates at a time of scaled-down police forces and underfunded social-services programs."  The current plan will not release all 40,000 prisoners at once, and is proposing deportation of illegal-immigrant inmates and allowing some low-level offenders to serve the final year of their sentences under house arrest.  "The state may also change sentencing guidelines so offenders charged with crimes such as drug possession would be prosecuted for misdemeanors instead of felonies. If convicted, inmates would be sentenced to county jails rather than state prisons." 

News Scan

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Justice Department Under Holder is the subject of this article in the Weekly Standard by Jennifer Rubin.  Citing then-nominee Holder's remarks during his confirmation hearings, Rubin notes numerous contradictions in Attorney General Holder's actions over the past seven months.  She makes the case that he has already politicized the Justice Department far more that the oft-criticized Bush administration.

Cop Killer Gets Life:  A San Jose Judge today sentenced DeShawn Campbell to LWOP for the 2001 murder of a police officer during a traffic stop.  SF Chronicle writer Henry K. Lee reports that most of the seven-year delay, in what appeared to be a straightforward capital murder case, is due to fallout from the 2002 U.S. Supreme Court ruling in Atkins v. Virginia.  Atkins announced that it was unconstitutional to sentence a mentally retarded murderer to death.  Justice's Stevens' opinion left it to the states to decide how to define mental retardation.  In April of 2007, the California Supreme Court determined the standard in People v. Superior Court (Vidal) 40 Cal. 4th 999, 155 P. 3d 259, 56 Cal. Rptr. 3d 851 (2007).  Later that year, Judge Diane Northway ruled that Campbell did not meet it.  Last December, after California's Sixth District Court of Appeal reopened the case, she changer her mind - announcing that he was retarded.  In May, the jury responded by convicting him of second degree murder of a police officer.

Juvenile LWOP Event

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The Heritage Foundation has an event on Monday, August 17, to announce the release of its report Adult Time for Adult Crimes. Former Attorney General Edwin Meese is the moderator.

Panelists include Charles Stimson of Heritage, Paul Wallace of Delaware DoJ, and Daniel Horowitz, a California defense attorney whose wife was murdered by a juvenile. The announcement is here. The event can also be viewed live through the Heritage home page.

California Poll

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The Field Poll released its California Opinion Index on Wednesday. The main theme was dramatic changes in the state, but there were some exceptions:

Maintaining the death penalty as a form of punishment for certain crimes continues to be supported by two in three voters (67%). This represents only a slight decline from 1975 when 74% of California voters favored this form of punishment.

The actual poll question was:

As you know, California has capital punishment - that is, execution - as a form of punishment for certain crimes. How do you personally feel about capital punishment? Would you be in favor of doing away with the death sentence or do you feel the death sentence should be kept as a punishment for serious crimes?
Even in a very liberal state, supporters remain a huge majority.

The Coming Term

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Adam Liptak has this story in the NYT headlined, "Sotomayor Faces Heavy Workload of Complex Cases," but of course the Supreme Court as a whole is facing these cases.

A former prosecutor, district and appellate court judge, she has a more fully developed record on criminal issues. Her views are in some ways more conservative than those of Justice Souter, meaning that this is an area where her vote may make a difference.

"I would have expected her to have voted against subjecting scientific experts to cross-examination," said Craig M. Bradley, a law professor at Indiana University, referring to a 5-to-4 decision from the court in June. The decision, with Justice Souter in the majority, ruled that crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination.

The court has agreed to hear a follow-up case, and the new justice will have to consider whether to narrow the scope of the decision from June, Melendez-Diaz v. Massachusetts. [Briscoe v. Virginia, No. 07-11191.]

A pair of cases concerning whether the Constitution allows juvenile offenders to be sentenced to life without parole for crimes in which no one was killed will also illuminate Justice Sotomayor's views on harsh punishments. They may also answer a question not fully resolved at her confirmation hearings, that of whether she will look to the decision of foreign courts in considering the issue, as the court did in barring the execution of juvenile offenders in 2005. [Graham v. Florida, No. 08-7412 and Sullivan v. Florida, No. 08-7621.]
I am not so sanguine that she will be "more conservative" than Justice Souter, meaning presumably more attuned to public safety and less to the defense side. Justice Souter himself was considered "conservative" in this regard at the time of his appointment and for a few years thereafter, and then he drifted. Still, Justice Sotomayor has enough of a record to be confident she will not be another Justice Brennan, for which the nation can breathe a collective sigh of relief.

A Radioactive Decision

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Off-topic but interesting: The New Mexico Court of Appeals voted 2-1 to expel minor league baseball from the state. AP story here; opinion here (h/t How Appealing). They didn't say that expressly, of course. They said they decline to adopt the "baseball rule" that shields the team and the owner of the stadium (the City of Albuquerque) from liability to spectators hit by errant balls, but in practice that amounts to the same thing.

As a former employee of Los Alamos National Laboratory, in the mountains to the north of the city, I particularly like the name of the team: the Albuquerque Isotopes.

Blog Scan

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New Justice on August 8:  Our News Scan reported earlier today that Judge Sotomayor has been confirmed 68 to 31.  As a follow-up, SCOTUSblog's Kristina Moore has posted that Judge Sotomayor will be sworn in by Chief Justice Roberts this Saturday, August 8.  The formal investiture ceremony will take place one month later, on Tuesday, September 8 at a special sitting of the Court in the courtroom.  Tony Mauro, at Blog of Legal Times, also reports on Sotomayor's swear-in ceremony on Saturday.  He writes that the ceremony at the Court "represents something of a concession to the wishes of justices who have complained that the oath-taking has become an inappropriately political event." 

Judge Sotomayor's "Use" of Foreign Law:  At The Ninth Justice, Stuart Taylor Jr. discusses soon-to-be Justice Sotomayor's position on how much weight foreign law should be given when interpreting the United States Constitution.  During Committee testimony, Judge Sotomayor said "I will not use foreign law to interpret the Constitution."  When asked to clarify what she meant by "use" in post-testimony, off-camera answers, she responded, "My answer was based on my own understanding of what it means for a court to 'use' foreign law to decide a case. In my view, American courts should not rely on decisions of foreign courts as binding or controlling precedent...."  Taylor compares her response to a pitcher who promises not to "use" knuckleballs to win a game, "when all he means is that he won't rely exclusively on knuckleballs, but rather will throw some fastballs and curveballs too."  In her own words, Sotomayor has said she has no objection to using foreign law "as a source of ideas" to "inform[] our understanding of our own constitutional rights."  Taylor writes that she has "cited with approval" Roper v. Simmons, a case that relied on foreign law when it forbid imposition of a death sentence on those under 18.  She has also endorsed Justice Ginsburg's view, "that, unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world." He worries that "the Ginsburg-Sotomayor advocacy of citing foreign precedents to avoid losing influence in the world ... comes perilously close to suggesting the Court should act to alleviate the embarrassment of some justices and judges -- especially when they attend glittering international conferences...."

Speaking of Foreign Law... 
Doug Berman has a post on Japan's new jury sentencing system on Sentencing Law and Policy.  The new system, reported on by the BBC News, allows six men and women working with three judges to convict and sentence criminal defendants.  The system, tested in the country's first jury trial in more than 60 years, resulted with a man in his 70s being sentenced to 15 years in prison.  This was one year less than the prosecution asked for because the stabbing was premeditated.  Under the new policy, the jurors "must have the agreement of at least one of three professional judges for their decision to stand."  Berman appears to like Japan's reliance on juror involvement during sentencing. He writes, "the Apprendi-Blakely line of cases justify greater jury involvement in both capital and noncapital sentencing proceedings." Heavy juror involvement in sentencing might be easier to implement in Japan than in the United States, since Japan has a 99% conviction rate. 

News Scan

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Cal. Prisoner Litigation: "Atty. Gen. Jerry Brown has denounced a court order to release more than one out of every four state prisoners in California as counterproductive interference by judicial activists, and said state officials were still deliberating Wednesday whether to appeal to the U.S. Supreme Court," reports Carol Williams in the LA Times. Doesn't seem like a hard call to us.

Once a Thief: Gregory Luhn was disbarred after embezzling $300K from his law firm. He got another job preparing tax returns for a new employer, and, well, you know. Martha Neil has this story for ABA Journal. Luhn's former partner calls it "sad, but predictable." Poor employment prospects for released felons are one of the big reentry problems, but there are no easy answers when employers need to protect themselves and past behavior is the best indicator of future behavior. (The story doesn't say Luhn was convicted of a crime in the prior theft, but the incident illustrates the repeater problem nonetheless.)

Cold Cash: "Former congressman William J. Jefferson was convicted of corruption charges Wednesday in a case made famous by the $90,000 in bribe money stuffed into his freezer...," report Jerry Markon and Brigid Schulte in the WaPo.  Update: On top of the conviction, he doesn't even get to keep the money.  "A federal jury has ruled that [Jefferson] must forfeit roughly $470,000 in bribery receipts," reports Matthew Barakat for AP.

The Death Penalty Racial Quota Act, mislabeled the Racial Justice Act even though its purpose is to block justice, has passed the North Carolina General Assembly and gone to the governor. James Romoser has this story in the Winston-Salem Journal. No doubt the expense of litigation under this act will now be counted as a cost of the death penalty and used as an argument for abolition.

Virginia Pardons: "Virginia Gov. Tim Kaine on Thursday ordered freedom for three of four former sailors convicted of raping and killing another sailor's wife in 1997," report Dena Potter and Larry O'Dell for AP. Novelist John Grisham was among those pushing for clemency. Victim Michelle "Moore-Bosko's dismayed parents said Kaine bowed to political pressure.... 'Obviously, Mr. Grisham's wealth and influence are far more important to Governor Kaine's political aspirations and public image than truth or justice,' Moore and her husband John said in an e-mailed statement."

Sotomayor confirmation final vote was 68-31. Julie Hirshfield Davis has this story for AP. Complaints of partisanship from the Democratic side of the aisle have some truth to them, but let us not forget who poisoned the soup in the first place. The WSJ has this editorial.

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Hate-Crime Laws, which have for years been promoted by politicians as an important way to protect selected classes of people from criminals, are again in the news.  Interestingly, many who noisily support severe punishment for hate crimes also oppose tough sentencing for the same offense when it is not committed against a member of some politically significant group.  Richard Cohen's piece in yesterday's Washington Post, titled The Folly of Hate-Crime Laws and a San Francisco Chronicle article, Another hate-crimes bill, by Debra Saunders discuss the political grandstanding and dubious value to public safety that is associated with hate-crime laws.

Let 'Em Go:  A three-member panel of federal judges, appointed in 2007 to consider if the Constitution required inmate release from California's overcrowded prisons, has spoken.  New York Times writer Solomon Moore reports that "in a scathing 184-page order" the judges gave state officials 45 days to come up with a plan to release 40,000 inmates over the next two years. This remarkably-timed announcement comes just two weeks before the California Legislature is set to vote on a cost-cutting proposal by Democrats and Governor Schwarzenegger which hinges on the release of 27,000 inmates from state prisons.  The panel's announcement is no surprise to anyone familiar with the Ninth Circuit.  Judges Lawrence Karlton, Thelton Henderson and Stephen Reinhardt are arguably the most inmate-friendly federal jurists in the U.S.  Fortunately, the Prison Litigation Reform Act of 1996, requires that the appeal of an inmate-release order go directly to the United States Supreme Court.  CJLF will be submitting argument in that appeal.

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UPenn's Symposium on Cruel and Unusual Punishment:  Doug Berman posts a link to the University of Pennsylvania's Journal of Constitutional Law and its current issue on "Litigating the Eighth Amendment."  Berman reports that the pieces in the issue cover "the death penalty, ... prison reform litigation, [and] how excessive prison punishments should be assessed under the Eighth Amendment."  With recent press coverage focused on states' efforts to curb prison costs and court orders to release prisoners, UPenn's issue is extremely timely.  CJLF's position on the Eastern and Northern district court's order can be found here.

John McCain Blasts Politicization of Nomination Process:  Amy Harder, at The Ninth Justice, got a chance to sit down with Senator John McCain (R - AZ) yesterday to ask him about his decision to not vote for Judge Sotomayor.  In the Q&A, Senator McCain said he was not concerned that his vote would alienate Hispanic voters and "denounced the politicization of the Supreme Court confirmation process."  He credits President Obama with "being 'one of the major contributors to that.' " Senator McCain believes the politicization of the nomination process began when then-Senator Obama vowed to filibuster Justice Alito.

Partisan-Neutral Editorials?:  At NRO's Bench Memos, Ed Whelan compares the different points of view taken by newspaper editorials commenting on the lack of Republican support for Judge Sotomayor's confirmation.  Whelan notes that while The Hartford Courant shamed Senate Republicans for not supporting Judge Sotomayor when it wrote that lack of Republican support was "one more blow to the idea that people of differing views and ideologies can, when it counts, work together for the common good[,]" it used less powerful language when only four Democrats voted to confirm Justice Alito.  Whelan notes that The Los Angeles Times took a similar position when it "went only so far as to oppose a filibuster of the Alito nomination, proclaimed it 'understandable' that Alito 'may not win many Democratic votes[,]' " and then turned around to "laud[]" Senator Graham for his committee vote for Sotomayor, and "shames his colleagues" by "provid[ing] a model for Republicans in the Senate as a whole." 

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State Secrets:  New York Times writer Adam Liptak reports that some of President Obama's supporters on the left are concerned about his administration's defense of the state secrets privilege, characterized as a favorite tool of the Bush administration.  In the Supreme Court case of Mohawk Industries, Inc. v. Norman Carpenter, where the primary focus is on attorney-client privilege, the Solicitor General has introduced an amicus brief  which includes a final section with the heading:Certain privileges implicate interests of constitutional significance under the separation of powers and qualify under the collateral order doctrine.  The section is a five page defense of the Presidential communications privilege and the state secrets privilege, which the administration acknowledges are grounded in the Constitution.  Liptak's article notes that "On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege.  In courtrooms, however, there has been little evidence of a new approach." 

Workplace Surveillance Upheld, Sort of.  A unanimous California Supreme Court has rejected the claim of two employees of a children's residential care center, that a surveillance camera violated their privacy rights.  An LA Times story, by writer Maura Dolan, quotes the plaintiff's attorney who called the decision in Hernandez v. Hillsides "a virtual green light to spy on employees via hidden camera for almost any reason..."  Well not really.  The case involves an effort by the care center management to identify who was using an office computer at night to download pornography.  Search data showed that the computer in an office shared by the plaintiffs had been used for this purpose. After learning this, management hid a surveillance camera in the office and activated it after working hours.  The plaintiffs were never recorded. While the court noted that the plaintiffs had some expectation of privacy, it also pointed out that they had to prove that the violation was unwarranted, highly offensive and a serious breach of social norms.  Considering the circumstances, the court determined that, "[i]n this case, they weigh heavily against a finding that the intrusion upon plaintiffs' privacy interests was highly offensive or sufficiently serious to warrant liability. In context, defendants took a measured approach in choosing the location to videotape the person who was misusing the computer system."

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More on Massachusetts' Felon Disenfranchisement Law:  At Election Law Blog, Rick Hasen wonders whether Simmons v. Galvin (briefly discussed here yesterday) could be headed to the Supreme Court.  In his post, Hasen correctly notes that dissenting Judge Torruella's position on the meaning of section 2 of the Voting Rights Act is very much like that expressed by Judge Sotomayor in Hayden v. Pataki.  Hasen predicts that Simmons could make its way before the U.S. Supreme Court.  With Judge Sotomayor's confirmation almost assured, Simmons would give Judge Sotomayor a chance to reexamine her belief that the Voting Rights Act "applies to all 'voting qualifications,' " and the state law discriminates because it "disqualifies a group of people from voting."

AG Holder Discusses Incarceration:
  At Sentencing Law and Policy, Doug Berman reports on yesterday's speech by Attorney General Eric Holder before the ABA House of Delegates.  Berman reports that the speech outlined the Department of Justice's latest vision and priorities for reform of the nation's criminal justice systems.  A portion of Holder's speech (text available here) focused on sentencing and prison policy.  Holder pointed out that the nation's violent crime rate had dropped 40% since 1991.  He contributed the drop, in part, to "incarceration of offenders[,]" but stated that the DOJ would not rely on imprisonment alone to enforce criminal laws.  In light of the states' efforts to trim budgets, and the increasing cost of incarceration, Holder proposed that states adopt alternative policies to address their criminal problems.  He advocated for states "to consider what happens to those people after they leave prison and reenter society...."  Holder's proposal will not solve every budget crisis.  States must still pay for prisoner reentry programs, in addition to the trial costs of those who re-offend.

Most Liberal Nominee Since Justice Marshall?:  This was a question asked on The Ninth Justice yesterday.  Jonathan Adler wonders over at Volokh Conspiracy whether it is true.  According to Segal-Cover rankings, which evaluate the perceived ideology of judicial nominees by examining how newspaper editorials evaluate their qualifications and ideology, Judge Sotomayor has earned a score of 0.79 on ideology, with 0 being conservative, and 1 being liberal.  Adler points out that while this may be true, there have only been two Democratic nominees to the Supreme Court since Thurgood Marshall - Justices Ginsburg and Breyer - so "it's possible that Sotomayor could be the 'most liberal' nominee without concluding that she's that much more liberal than current justices, at least at the time of nomination."  Jeffrey Segal, who helped develop the ranking system, contributes part of her score to the media's focus on the Ricci case.  He also says the scores reflect what is "current, not necessarily what the court would see."
On July 31st, a three judge panel upheld Massachusetts' felon disenfranchisement law against challenges that Massachusetts disenfranchisement law, violated the Voting Rights Act § 2, 42 U.S.C. § 1973, "because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state."  The First Circuit's decision closely mirrors the argument made by an amicus brief for the Criminal Justice Legal Foundation and others, in Muntaqim v. CoombeThe brief is available here. The Second Circuit's decision deciding the issue in a companion case, Hayden v. Pataki, is available here.   

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Texas Murderer Loses Appeal:  In a per curium opinion released Friday, the 5th Circuit has rejected an appeal for habeas relief brought by Anthony Bartee, a San Antonio man sentenced to death for the 1996 robbery and murder of a neighbor. AP writer Michael Graczyk reports that Bartee was on parole from two aggravated rape convictions at the time of the murder.  Evidence introduced at trial indicates that prior to the murder of his neighbor David Cook, Bartee asked a friend to help him kill Cook and steal Cook's motorcycle. On August 17, Cook's body was found by family members in his home.  He had suffered two gunshot wounds and his throat was slashed. Cook's motorcycle was also missing. On the day Cook died, Bartee showed up at a friend's house on a motorcycle matching a description of the one owned by Cook.   

Souter Worries About Dumbed-Down Citizenry:  In a speech before the American Bar Association Saturday, retired Supreme Court Justice David Souter decried the lack of civic knowledge by Americans.  A Chicago Tribune story by Rex W. Huppke quotes Souter telling the legal group, "We know from survey results that two-thirds of people in the United States cannot even name all three branches of the national government."   He warned that this poses a threat to judicial independence.  Unfortunately public education's deliberate dumbing down of our teachers and youth, noted in the early seventies by Senator Patrick Moynihan D-NY, has left many high-school and college graduates ignorant of far more than just the names of the three branches of government.     

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Oregon v. Ice Trumps Defendant's Habeas Claim:  Doug Berman posts over on Sentencing Law and Policy that the Sixth Circuit ruled in the habeas case, Evans v. Hudson, No. 08-3717 (6th Cir. Aug. 3, 2009), that the Supreme Court's decision in Oregon v. Ice "undercuts" a Blakely claim that was valid at the time of direct appeal.  Glen Evans was convicted on one count aggravated murder, two counts kidnapping, with fire arm specifications on all counts.  The judge sentenced Evans to serve consecutive sentences.  On appeal to the Ohio Supreme Court, Evans argued the trial judge had erred by imposing consecutive sentences without making statutorily required findings of proportionality.  The Ohio court dismissed the appeal.  The district court then granted habeas relief, because the "statute that the sentencing judge relied upon in imposing Evans's sentence... violated Blakely because...'an Ohio defendant could not be sentenced to consecutive sentences without additional judicial fact-findings.'"  The state appealed, and the Sixth Circuit determined that after Oregon v. Ice, Evans' claim resembled a question addressed by the Supreme Court in Lockhart v. Fretwell.  Fretwell directed a court not to "consider the effect of an objection it knows to be wholly meritless under current governing law, even if the objection might have been considered meritorious at the time of its omission."  Since Ice had determined "that the Sixth Amendment does not exclude" the practice of requiring a judge to find certain facts before she can sentence a defendant to consecutive terms, Evans' Blakely argument was meritless. CJLF's brief in Ice is available here

Aggravation of Victim Suffering:  Over the weekend, Doug Berman posted some snippets from an article by John Christofferson that reported that death penalty cases were harder on survivors than life sentences.  Berman's Sentencing Law and Policy post wondered whether this meant that the death penalty "aggravate[d]" victim suffering.  While it may be true that "[c]ommissions in New Jersey and Maryland in recent years found that death-penalty cases are more harmful to the families of victims than cases that end with life sentences[,]" Berman's question prompted one blogger to comment that victim suffering "is the the new anti death penalty mantra."  As several pointed out, "[t]he death penalty is a just punishment for the taking of an innocent life" and many victims, including one quoted in Christofferson's article, are willing to suffer to obtain justice.

Retired Justice Moves Out of Farmhouse to Accommodate His Library:  At SCOTUSblog, Tony Mauro reports that retired Justice Souter will be moving out of his family homestead in Weare, New Hampshire to a newer home in nearby Hopkinton.  The former Justice apparently purchased the home because it would better hold his book collection.  This article, in the Union Leader, reports that Souter told a neighbor that he decided to move when he learned the farmhouse was not structurally sound enough to hold Souter's thousands of books.  Mauro reports that the farmhouse became famous when Souter was first nominated, because it "seemed to symbolize Souter's almost hermit-like private persona for the media hordes that descended on Weare."  Now that the media is focused on Judge Sotomayor, the retired Justice appears to be embracing a more modern home.

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