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.
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.
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