January 2010 Archives

Kent notes an article in Parade Magazine titled, "Debating the Cost of Capital Punishment."  I say it's an "article" mostly out of charity, because it's actually a short anti-death penalty essay, with a paragraph representing the opposing side thrown in at the end.

 

One way to attack X is to write a piece called, "Is X Worth the Price We're Paying?"  The price of policy X is surely worth debating, but to focus solely on its price, without examining its benefits, or the alternatives, or the price of those alternatives, is cheap and dishonest.

 

The cost of the death penalty is all the rage with abolitionists these days, but it's a make-weight, nothing more.  It's designed to sell the abolitionist agenda without having to defend it on its merits  --  something abolitionists shrewdly decline to do, since they know that the public supports capital punishment by 2-1, as it has for years.

 

I tested this proposition on Sentencing Law and Policy by making the following offer:  I said to those pushing the cost argument that I would support reducing the use of capital punishment during the recession if they would support increasing its use when prosperity returned.  You will not be surprised to learn that the number of people who took me up on this was zero.

 

It's not about cost.  That is a diversion.  The more telling question about the supposed virtues of "cheaper" life imprisonment is the one Kent asked:  "Would you have Timothy McVeigh grinning at you from his jail cell his entire life the way Charles Manson has?" 

 

 

 

 

Joe Bargmann has this brief story in Parade Magazine, in many Sunday papers this morning. The usual suspects are quoted for the opposing sides.

I was surprised that the editor called me back to double-check the quotes. Few publications do that.

There is also a poll attached to the story, if you wish to weigh in. Internet polls use a self-selected sample, one of the very worst ways to select a sample, so they don't mean much. But they tend to get cited anyway.

John Hinderacker of Power Line, http://www.powerlineblog.com/, has more to say on the Justice Department's decision to clear John Yoo and Jay Bybee of professional misconduct, while finding them guilty of "poor judgment."  Recall that Yoo and Bybee authored memos that argued or implied that waterboarding and other enhanced interrogation methods for high value al Qaeda prisoners were legal.  John writes of DOJ's decision:

 

That's good, I guess. But it is still an outrage that a lawyer who writes a memorandum arguing a legal position with which a subsequent administration disagrees can be threatened with disbarment [as a finding of professional misconduct would have done]. In my opinion, the Bybee-Yoo memoranda were mostly or entirely correct. You can access the principal memorandum here. It undertook the difficult and unpleasant task of defining what constitutes "torture;" it also adopted an expansive, but historically well-supported, view of the President's war-fighting powers. As I've said before, I think that waterboarding, the most aggressive of the enhanced interrogation techniques that have been used in the current conflict, is a humane alternative to torture. It lasts for only a few minutes, is nearly always effective, and does no--zero--physical harm.

 

Lawyers and others can argue about the statutory definition of "torture" and about the constitutional powers of the executive and legislative branches. But what is going on now is not a legal argument. Rather, those currently in power are committed to an ideology that makes the conclusions of the Bybee-Yoo memos inconvenient. The persecution of those individuals is a political witch-hunt of the worst sort. Worse, it is emblematic of our establishment's reversion to a pre-September 11 mentality.

 

John makes a good point, and yet there is more.  The current administration has abjured not only waterboarding, but, apparently, any aggressive interrogation practices.  Indeed it has gone so far as virtually to invite al Qaeda prisoners to clam up, by telling them that they have the storied "right to remain silent" and will be given a lawyer to help make it stick.

 

If a terrorist's silence so induced turns out to deprive the government of actionable intelligence  --  information that we could have used to prevent an attack, but that in our hypnotic obsession with Miranda, we deliberately failed to obtain  --  and we wind up again with thousands of corpses underneath the rubble  --  will, or should, those who fecklessly counseled giving Miranda warnings face disbarment?  Or indeed, given the public outrage that is certain to follow such a preventable catastrophe, charges of treason? 

 

Eric Holder and others in the administration afflicted with High Minded Platitudinitis should think long and hard before tut-tutting the report soon to be released.

If the trials of terrorists KSM et al. are not held in Manhattan (see Bill's post), then where? See stories by Peter Finn, Carrie Johnson and Anne E. Kornblut in the WaPo and Scott Shane in the NYT. This story by Jess Bravin and Gary Fields in the WSJ mentions West Point, which is also in the Southern District of New York, as a possibility.

You heard it first on C&C:

White House abandons plans to try alleged mastermind in Manhattan

WASHINGTON - Pressured by a growing clamor from New York, the Obama administration has decided to move the trial of Sept. 11 terror suspects away from Manhattan, where it had been scheduled to take place just blocks from the site of the twin towers attack.

Multiple media outlets, including NBC News, The Washington Post and The New York Times, reported on Friday night that the administration has abandoned its plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed in the city.

"New York is out," one administration official told the Post, speaking on the condition of anonymity because the decision had not yet been officially announced. "We're considering other options."

The whole story from MSNBC is here, http://www.msnbc.msn.com/id/35132816/ns/us_news-security.

About a week ago, I noted that John Edwards, the former senator and Vice-Presidential candidate who was under serious consideration to be Attorney General, had been revealed as a serial liar who was leading a double life with a campaign aide at the same time his wife was battling incurable cancer, http://today.msnbc.msn.com/id/34963767/ns/today-today_people/?GT1=43001.  I said then that we should be grateful for the merely clueless Eric Holder.

 

Today comes word that Edwards is in a sex tape, no less, with his mistress, http://today.msnbc.msn.com/id/35145215/ns/today-today_people/?GT1=43001.  I mean, this guy is fifty-six years old.  And doing a sex tape?  Those who believe that Barack Obama is the most self-involved man in public life need seriously to reconsider their position.

 

On the other hand, as Mr. Holder gets more and more dug in on his decision to give jihadist warriors Miranda warnings and all the other rights of standard criminal defendants,  it's harder and harder to be grateful on any account for his tenure at the Justice Department.

 

Question:  When is LWOP not really LWOP?

Answer:  Whenever their lips are moving.

 

Now that might be a bit harsh, but not by much.  As Kent's post shows, the promise that killers will permanently be taken off the street by LWOP, just as much as they would be by the death penalty, cannot be relied upon.  And this is not merely because some future legislature might act to restore parole across the board.  It's because many of those those pushing LWOP right now as a death penalty alternative don't really mean it.  It is, like the movement for a death penalty "moratorium"  --  you know, the "moratorium" with no ending date  --   a bait-and-switch.

 

A few years ago, Judge Ken Starr and I debated two distinguished abolitionists, Sam Millsap and Byron Stevenson, at the National Press Club, http://pewforum.org/events/?EventID=122.  Toward the end of the debate, I asked my opponents whether they would pledge, if LWOP were to replace the death penalty, that they would not seek to have LWOP sentences modified.  Sam took the pledge.  Byron, however, had a distinctly different approach:

 

My view is that punishment should be appropriate. I think the death penalty is always inappropriate. There are lots of clients whom I've represented who I know will never be prepared to reenter society. I don't hide that fact... But there are some other clients who I think can, and I think that question should be based on information in a particular case. If we think the death penalty is illegitimate we should get rid of it. And if there are people who are concerned about what happens after, we should deal with that. It's just the promise of what more fairness might people be seeking, and we're going to seek all the fairness that can be sought.

 

Translation:  It's not just the future legislature we need to worry about.  It's the lawsuit to be filed two seconds after the death penalty abolition bill is signed  --  the lawsuit claiming that LWOP is merely a slow motion death penalty; that it turns its back on "all the fairness that can be sought;" and that therefore is just as unacceptable as capital punishment and should share its fate.

 

 

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In Arizona, supporters of a bill to grant parole eligibility to killers sentenced to life without parole have abandoned their effort. A press release from POMC and NOVJL follows the jump.

Opponents of the death penalty always claim that it is unnecessary for incapacitation because "life with absolutely no possibility of parole" does the same thing. But the legislature can always add parole back in later, as this effort shows.

My previous post had incorrectly characterized the bill.

Pete Williams of NBC News reports this morning that the plan to try Khalid Sheikh Mohammed in federal district court in New York City "is all but dead."

One might hope that this welcome course correction has come about because the Justice Department belatedly understands that trying jihadists as ordinary defendants in any civilian court  --  and granting them the rights to which ordinary defendants are entitled  --  is foolhardy.  The reasons for this are clear enough to those who understand the difference between crime and war. Recently, I attempted to spell it out here, http://www.crimeandconsequences.com/crimblog/2010/01/a-presidential-pledge-broken-t.html. 

Alas, this is not the reason.  The administration seems determined to continue to apply the standard requirements of criminal procedure, starting with Miranda's invitation to defendants to clam up, wherever the trial will be held. 

No, the reason for the move is not an embryonic understanding of the nature of the conflict in which we are engaged.  It's more traditional:  politics.  It turns out that erstwhile Democrat Michael Bloomberg, and New York's Governor, David Paterson, and its two senators, Charles E. Schumer and Kirsten Gillibrand  --  all memebers of the President's party  --  have let it be known that a trial in New York City would be, well, unpopular. http://www.nytimes.com/2010/01/29/us/29terror.html?partner=rss&emc=rss.

It would therefore seem that KSM and his jihadist cohorts will still get the propaganda platform they want, just in a different location.  On the other hand, it might not be as much of a boon to them as they think, since Osama bin Laden recently announced al Qaeda's agreement with President Obama on at least one important international issue, http://www.msnbc.msn.com/id/35141796/ns/world_news-south_and_central_asia.

 

 

 

 

As the great majority of states have moved toward lethal injection as the designated method of capital punishment, a dispute has arisen  --  or, perhaps more correctly, has been manufactured  --  about the proper role of doctors in administering lethal drugs, or in any other way helping to carry out executions.

 

Since the death penalty is supported by a consensus of public, legislative and judicial opinion, the idea that it could be effectively abolished by state medical boards is quaint  --  or, in less polite language, a gimmick.  This was recently illustrated by the Supreme Court of North Carolina, which held,  http://www.aoc.state.nc.us/www/public/sc/opinions/2009/051-08-1.htm, that the state's medical board had overstepped its authority in declaring its right to impose professional discipline on any doctor who assisted an execution.

 

Today, the always interesting Sentencing Law and Policy, http://sentencing.typepad.com/, by Professor Doug Berman, notes an article in the Journal of Medical Licensure and Discipline, Vol. 95, No. 3 (2009).  The article concludes that doctors in most states need not fear professional discipline for participating in executions.  Its abstract states, in part:     

The current state of the law suggests... that the role of state medical boards is quite circumscribed, at least in the majority of states with death penalty statutes that appear to contemplate some level of physician participation in executions. In order to further determine the legality of medical board action, a comprehensive study was conducted of the statutes and regulations governing state medical boards in all 50 states.  The study reveals that only a handful of states - and only seven death-penalty states - explicitly incorporate the AMA's ethical guidelines into their own state ethical codes. The study concludes by suggesting that, where doctors who participate in executions are doing so in order to relieve pain and suffering, it is not clear that a state medical board should intervene even in the rare instance when it would be legally possible to do so.

 

 

Today, I am in the People's Republic of Berkeley for a gathering of California prosecutors. Really. Cruising through downtown, I saw a street sign that said, "Drug Free Zone." From my observation of the milling populace, I had reason to doubt the veracity of this sign. Is the City of Berkeley in trouble for violating the "honest services" law? 

State of the Union Draws Reaction from a Justice:  As Kent noted earlier today, President Obama's State of the Union address offered up some harsh criticism for the Court's recent decision in Citizens United v. F.E.C.  Linda Greenhouse writes for New York Times' Opinionator, that the President stated the decision would "open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections," before adding, "I don't think American elections should be bankrolled by America's most powerful interests."  Orin Kerr writes at Volokh Conspiracy that while five of the six Justices in attendance sat in silence, "Justice Alito ha[d] the very human reaction of mouthing disagreement..."  For Kerr, the caught on video episode reflects the wisdom of Justice Harlan's view that the Justices shouldn't attend the State of the Union address at all.  Ed Whelan appears to agree on NRO's Bench Memos.  Tony Mauro follows up with news that Senator Leahy (D-Vt.) lashed out at the Court's Citizens United ruling by calling it a "threat to the rule of law."  Mauro reports that Leahy asserted that the Citizens United decision was made possible only by the changed composition of the Court, and not legal reasoning.  Mauro's earlier posts on the President's comments are available here, here and here.

Citizens May Mean "Change" for the Court:  Jan Crawford saw last night's State of the Union address, and started wondering whether President Obama's willingness to "dramatically take on the Court as part of his new-found populist persona" indicates that he "...may go an entirely different direction with his [next Supreme Court] nomination..."  Crawford believes that this could mean that President Obama is more likely to nominate someone like Judge Diane Wood, and not her long predicted favorite, Solicitor General Elana Kagan.   

Second Circuit Upholds Felon Disenfranchisement:  At Sentencing Law and Policy, Doug Berman posts a link to a Second Circuit panel decision rejecting claims that New York Election Law § 5-106(2) violates felons' constitutional rights under Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Fifteenth Amendment of the United States Constitution.  The case, Hayden v. Paterson, addresses claims challenging the validity of New York's constitutional provision that requires the legislature to enact felon disenfranchisement laws, and also challenges New York Election Law § 5-106(2) which disenfranchises convicted felons who are incarcerated or on parole.  The panel found that the plaintiffs failed to state plausible claims of intentional discrimination or violations of the Equal Protection Clause.  The panel then remanded the case to allow the plaintiffs to amend their complaint to better address their intentional discrimination claim.  It will be interesting to see if Hayden will play a role in the possible Supreme Court review of Farrakhan v. Gregoire.

UCLA Sypmosium on Forensic Science:  Kevin Cole posts on CrimProf Blog that on February 18th, UCLA will be hosting a symposium on the future role of forensic science in the area of criminal justice.  The program promises to examine the effect of last year's National Academy of Sciences (NAS) report criticizing current uses of forensic sciences.  Information on the conference is available here.   

My former Justice Department colleague Ed Whelan reflects my view of President Obama's grandstanding attack on the Supreme Court and Justice Alito's mildly demonstrative response to it.  The only thing I would add is that it's unfortunate, and in my view disrespectful, for the President to dress down the Justices to their face, as they remain seated, like misbehaving children, directly in front of him: 

 

Over the years, no matter who has been president, I have come to detest the State of the Union address, in part for its absurd everything-and-the-kitchen-sink policy prescriptions, in part for the endless episodes of staged applause.  I don't know when or why the tradition developed of Supreme Court justices attending the speech, but it strikes me as a tradition worth abandoning. 

 

A few thoughts in connection with last night:

 

1.  In our system of separated powers, I think that it's entirely proper and healthy for a president to engage in responsible criticism of a Supreme Court decision.  (And so did, among others, Abraham Lincoln.)  If there's something seemingly impolite about offering that criticism in a State of the Union address when justices are present, I think that's a good reason that justices should not attend.

 

2.  President Obama's criticism of the Court's recent Citizens United decision was demagogic mendacity.  (As Linda Greenhouse points out, Obama was also wrong in asserting that the decision "reversed a century of law.")  That--not the mere fact of criticism--is what made it improper.

 

3.  Perhaps it would have been more politic if Justice Alito had managed to remain stone-faced during Obama's demagoguery, but I find it encouraging and refreshing that, notwithstanding his years in D.C., he retains the capacity to be jarred by lies.  (It's also impressive that Alito was still paying attention; Justice Ginsburg evidently fell asleep during the drone-a-thon.)

House Bill Attempts to Ban 9/11 Trial in Civilian Court:  The Associated Press reports on a bill presented to Congress, by Rep. Peter King (R-NY) that would prevent the 9/11 terrorist trial from being held in New York City.  King said Thursday that his bill would prohibit the use of Justice Department funds to try Guantanamo detainees in federal civilian courts.  The New York Congressman says that terrorists should be tried by military commissions.  Mayor Michael Bloomberg first supported the Manhattan trial decision, but on Wednesday, stated that he would be happy if the trial could be moved elsewhere.

Project Freeze Arrests Hundreds:  New York Times writer Julia Preston reports on last weeks' highly successful Immigration and Customs Enforcements (ICE) drug-trafficking raids.  A total of 476 people were arrested last week by immigration agents, who detained members of international drug-trafficking gangs.  The arrests took place across 83 cities, and among those detained were 151 American citizens.  Officials called this the largest anti-narcotics operation ever undertaken by the immigration agency.  Nearly 50 percent of those arrested during this operation were members or associates of gangs with ties to drug trafficking organizations in Mexico, South America and Asia.  Among those arrested during Project Freeze was Jose Hernandez-Morales, a Mexican national and prominent member of the Latin Kings.  Morales was arrested in Chicago for re-entry of a previously removed alien, and his criminal history includes murder, aggravated assault, battery, intimidation and criminal trespass.   ICE has a press release on the successful raids that can be found here.

There is lots of talk this morning about President Obama's criticism of the Citizens United decision. They come in mostly two flavors: (1) claims that it is improper for the President to criticize a Supreme Court decision; and (2) claims that the President was simply wrong in his characterization of the decision.

The first is nonsense. Fox News Channel had a "legal analyst" this morning who was particularly obnoxious. Want to see some other presidents who have criticized Supreme Court decisions? Look at Mt. Rushmore. Look at the change in your pocket. With the exception of George Washington, who didn't live to see judicial activism, every great president has criticized it. In his first inaugural address, President Lincoln took a well deserved swipe at an opinion of the man who had just sworn him in.

The merits of the criticism are another matter. Justice Alito shook his head and apparently mouthed "not true."  See also this story by Robert Barnes in the WaPo and David Kirkpatrick's comment in this NYT story.  Tony Mauro has multiple posts at the BLT. Even Linda Greenhouse says the President's description was "imprecise." I won't express an opinion on the merits, as it is off-topic for the blog and I profess no expertise in the area. As a general matter, though, if the President is going to criticize the Supreme Court, he needs to get it right.

AP reports:

Missouri's attorney general on Tuesday asked for execution dates for a white supremacist who killed people in several states and for a stalled motorist who killed the man who helped him.

Attorney General Chris Koster asked the state Supreme Court to set execution dates for Joseph Franklin and Allen Nicklasson after a federal appeals court last month cleared the way for Missouri to resume scheduling executions by rejecting a lawsuit from eight inmates over the training and competence of the state's execution team.

State by state, we are putting the Baze moratorium behind us and resuming justice.

Senator Specter Files in Supreme Court Torture Case:  On Blog of Legal Times, Tony Mauro reports that Senator Arlen Specter (D-Pa.) has filed an amicus curiae brief in the case Samantar v. Yousuf.  Yousuf is a human rights case addressing whether torture victims can seek damages in U.S. courts for torture conducted in a foreign state by a foreign official.  Mauro writes that Senator Specter's brief argues that when Congress passed the Torture Victim Protection Act of 1991 it intended "to provide redress for egregious acts that infringe human rights and are an affront to human dignity."

Background on Noriega v. Pastrana:  At Volokh Conspiracy, Kenneth Anderson gives an insiders perspective on the Court's denial of certiorari in Noriega v. Pastrana.  Anderson writes that he "was involved in the Noriega saga on the front end," during his time with Human Rights Watch.  He even drafted an amicus brief for Human Rights Watch submitted in the original dispute over POW status and convicted felon sentencing.  Anderson's experience with the case allows him to elaborate on why Justice Thomas may have been correct to argue "that the questions presented by the United States' only POW would indeed have bearing on the status of the Geneva Conventions in US courts in its detainee litigation."  To support his conclusion, Anderson turns to the 1992 district court opinion declaring Noriega to be both a convicted felon and a POW.  He writes that Judge Hoeveler's decision reflects "contemporary" concerns over Article 5 status hearing tribunals and when a court or an executive should decide a prisoner's status.

Recent Supreme Court Action "In Plain English":  Today, Lisa McElroy posts another installment of her "Plain English" series on SCOTUSblog. Today's post focuses on the Court's opinions in Briscoe v. Virginia and Hemi Group, LLC v. City of New York.  McElroy writes that the "G...VR" of Briscoe on Monday was "unexpected...to some of us, the timing of it at least." She then comments on two aspects of the Supreme Court's decision in Hemi.  McElroy believes that Chief Justice Roberts' opinion in Hemi is unique because it is a plurality that did not explain what parts of the opinion commanded a majority and which parts were only joined by a plurality.  She also finds it noteworthy that Justice Sotomayor did not participate in the decision.  

Ohio District Court Advises Judges to Review Images Before Sentencing:  On Sentencing Law and Policy, Doug Berman posts excerpts of a "[t]horough and thoughtful district court defense of child porn guidelines." 

President Obama is a shrewd man, and he has chosen well in naming the head of the Drug Enforcement Administation, Michele Leonhart, http://www.whitehouse.gov/the-press-office/president-obama-announces-more-key-administration-posts.

 

I worked with Michele from 2003-2007 when she was Deputy Administrator and I was Counselor to the Administrator.  She is one of the most diligent people I have ever run across.  She is serious about ridding this country of dangerous and illegal drugs and reducing as much as possible the misery they cause.  She is entirely non-political; to this day I don't know if she's a Republican or a Democrat.

 

Michele has devoted her entire professional life to law enforcement.  She started out as a street cop in Baltimore and rose through the ranks at DEA, eventually becoming Special Agent in Charge of the Los Angeles office, which is, as you might imagine, an action-packed assignment.  She is known and trusted throughout the agency.

 

Congratulations to President Obama for a non-political choice, and to Michele for her promotion to the post her untiring service has earned.

All depending on what geckos and skinks like to eat, and how sharp their little teeth are, I think it could be considerably more stupid.

Hans Kurt Kubus, 58, of Germany was arrested in the airport in Christchurch, New Zealand, AP reports. He was "about to board an overseas flight with 44 geckos and skinks in a hand-sewn package concealed in his underwear." They sell for $2800 each in Europe. Well, that's not quite as stupid as packing explosives down there.

Kent notes that public opinion in England and Canada supports the death penalty, even while it is no longer permitted in those countries.  This fact undermines one of the principal arguments of the abolitionist movement, namely, that among civilized people, the "death penalty is dying."

 

What Kent's entry shows is that, even among those nations presently without capital punishment, this is less a marker of public belief than of the power of the governing elite.  But there's a good deal more to it than that.

 

The argument that "the death penalty is dying"  is typically put forward by noting that such countries as France, Spain and Germany no longer allow it, while such unpleasant places as Iran, North Korea and Yemen do.  What this argument neglects to mention is that, according to Amnesty International, no less, http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries, the death penalty exists in both law and in practice in countries with well over half the world's population. This includes what are by far the world's four largest countries (China, India, the United States and Indonesia). It also exists in both law and practice in such disparate countries as Japan, Nigeria, Jamaica and Taiwan.

Abolitionists often say  --  to use the term they employ to disparage the United States  --  that these retentionist countries are "narrow minded."  Let me submit, to the contrary, that the narrow mindedness exists in the gaggle of faux high-minded continental European countries, still with their noses in the air, who look down on the culture and practices of other racial groups like those found in the Middle East, Africa and the Orient.  Indeed, in other contexts, those prone to abolitionism would be lauding the death penalty for its "diversity."  But, oddly, the swooning for "diversity" turns out to be a sometime thing.

Changing the Definition of "Life Sentence":  At Homicide Survivors, Dudley Sharp has a post highlighting an article that discusses Wisconsin's early release program.  The article, Life Sentence and Out of Prison, by Jessica McBride, reports on a provision "tucked into" Wisconsin's budget last year that will allow offenders serving life sentences to petition for early release based on their age, as opposed to terminal sickness.  Petitions for early release will be vested in an unelected board, consisting of the governor's handpicked chairperson and Corrections employees.  McBride also writes that a new release possibility based on health will allow early release to inmates who demonstrate "extraordinary health circumstances" - defined in the state law changes as advanced age, infirmity, disability, or need for medical treatment that can't be properly met in prison.  This is different from Wisconsin's previous policy of allowing early release for inmates with less than six months to live. 

NRA Gets Oral Argument Time:  Blog of Legal Times reporter, Tony Mauro, reports that yesterday, the Supreme Court granted the NRA's motion for time during oral arguments in McDonald v. City of Chicago.  According to Mauro, the NRA will take "unspecified number of minutes" from the plaintiffs challenging Chicago's gun restrictions, and their attorney Alan Gura of Gura & Possessky of D.C. and Virginia.  Gura, the same attorney who argued before the Supreme Court in D.C. v. Heller, apparently opposed the NRA's request for argument time.  He argued that the NRA's argument would "be redundant."  The NRA's attorney, former solicitor general Paul Clement, disagreed.  He said that the NRA would argue a more traditional "due process clause" argument for incorporating the Second Amendment, whereas Gura will argue that the "privileges or immunities clause" favors incorporation. 

Prosecutor Immunity Issue Heads to Supreme Court:  At Blog of Legal Times, Mike Scarcella reports that federal prosecutor, Daniel Zachem, has filed a certiorari petition asking the Supreme Court to examine his case and resolve circuit splits regarding whether to afford a federal prosecutor working with grand juries absolute immunity.  Zachem, an assistant U. S. attorney in the District of Columbia, seeks the appeal of a June 2009 ruling from the U. S. Court of Appeals for the D.C. Circuit that stripped Zachem of absolute immunity and remanded the grand juror's case to the U. S. District Court for further proceedings on whether the prosecutor is entitled to qualified immunity.  Zachem's attorney, Michael Martinez, believes the D.C. Circuit ruling "erodes vital protections that have long been afforded to prosecutors engaged in conduct that is intimately associated with the judicial phase of the criminal process." 

A New Solution to California's Prison Problem:  Ashby Jones writes on Wall Street Journal's Law Blog that on Monday, Governor Schwarzenegger offered an "out-of-the-box potential solution" for California's overcrowded prisons.  His suggestion?  Pay Mexico to build new prisons and send incarcerated illegal immigrants south of the border.  The Governor's spokesman Aaron McLear said that this was not a "proposal."  The Governor was simply "mentioning a creative solution we should talk about."

Jackie Calmes reports for the NYT, "President Obama will call for a three-year freeze in spending on many domestic programs...." The freeze "would exempt security-related budgets for the Pentagon, foreign aid, the Veterans Administration and homeland security, as well as the entitlement programs that make up the biggest and fastest-growing part of the federal budget: Medicare, Medicaid and Social Security." Undocumented anchorman Mark Steyn, sitting in for El Rushbo, draws an analogy between a budget being a little bit frozen and a woman being a little bit pregnant. Doug Berman asks how this will affect federal law enforcement. Good question.

Certainly a big chunk of the law enforcement budget is "security related" and therefore exempt from the freeze by its terms. Figuring out exactly what part is going to be complex.

What about the rest of it? Well here are two classes of criminal cases that can easily be cut out of the federal law enforcement budget: (1) crimes that shouldn't be federal; and (2) acts that shouldn't be criminal at all.

Making a federal crime out of a garden variety bank robbery, merely because the bank is FDIC insured, may be constitutional, but it is still bad policy.  The law that made nearly all arsons federal offenses was trimmed back by the Supreme Court in Jones v. United States, 529 U.S. 848 (2000) to save it from unconstitutionality, but it can be cut back further as a matter of policy.

Then there is the problem of using criminal law for matters that should be the domain of administrative or tort law, as explained in this Heritage Foundation memo by Paul Rosenzweig.

When money is tight (or even when it isn't), each government agency should focus on its core mission and stop doing things that should be done by a lower level of government or shouldn't be done by government at all. If the agency's core mission fits the latter description, the entire agency should be eliminated. The core functions of each level of government should not be sacrificed.

Death penalty opponents never tire of squawking that America's continued use of the death penalty lowers us in the eyes of other countries. Well, that depends very much on who you ask within those countries. It is no doubt true if you ask university professors, limousine liberals, and the same sorts of people who oppose the death penalty in the United States. If you ask regular folks, the people in greatest danger of crime, you get a different picture.

Angus-Reid, an international polling firm in Canada, has this release dated Jan. 22. Two thirds of Britons and nearly that many Canadians support the death penalty for murder.

Thanks to Paul Cassell for the tip.

John Doe DNA Warrants OK'd by State Supreme Court: Los Angeles Times writer Maura Dolan reports on a California Supreme Court ruling allowing for prosecutors to file arrest warrants based on DNA left at the scene of the crime.  The warrant would allow prosecutors to get around legal deadlines.  The 5-2 ruling, written by Justice Ming W. Chin, upheld the conviction of Paul Eugene Robertson for sexual offenses even though prosecutors obtained a DNA "match" after Robertson's DNA had been illegally placed in the state's DNA database.  Sacramento prosecutors filed an arrest warrant for "John Doe, unknown male," on Aug. 21, 2000, four days before the legal deadline, or statute of limitations, for filing charges would run.  Prosecutors attached a DNA profile to the warrant from evidence left at the crime.  "We conclude that, when there is no more particular, accurate or reliable means of identification available to law enforcement, an arrest warrant or a complaint that describes the person to be arrested by a fictitious name and his unique DNA profile...satisfies the particularity requirements" of law, Chin wrote.  Kent's post can be found here.

"Supreme Court Refuses Noriega Case and Disposes of Another": New York Times writer Adam Liptak reports on Monday's Supreme Court decision to block the extradition to France of Manuel Antonio Noriega, the deposed Panamanian dictator.  The Court provided no reasoning for its decision not to hear Noriega's appeal, while Justice Thomas, joined by Justice Scalia, dissented from the decision not to hear the case.  They stated that the Court had missed an important opportunity to clarify how federal courts should treat claims from prisoners of war.  Justice Thomas said the case would have provided "much needed guidance" to the other two branches "without the unnecessary delay and other complications that could burden a decision on these questions in Guantanamo or other detainee litigation arising out of the conflct with Al Qaeda."

The Court's decision to send the crime lab case, Briscoe v. Virginia, back to the lower courts meant that it would not cut back on or clarify a major ruling from last June requiring lab technicians, and other forensic specialists, to be available to testify at trials.  That ruling barred prosecutors from presenting crime lab reports without testimony from the analysts who prepared them.  State prosecutors told the court that the decision from June, Melendez-Diaz v. Massachusetts, was imposing a major and unwarranted burden and "is already proving unworkable."  Lauren's post can be found here regarding the issue.

The scandal concerning the botched interrogation of the Christmas day bomber continues to grow.  Senators Lieberman and Collins today wrote to Attorney General Eric Holder and White House counterterrorism adviser John Brennan urging them to designate the bomber, Umar Farouk Abdulmutallab, as an "unprivileged enemy belligerent" so he can be "questioned and charged accordingly."

Whether the Attorney General has replied to this letter, or plans to, is not yet known. 

The Weekly Standard's Richard Starr suggests a possible explanation for the administration's inertia: If it were to rectify its error in the case of Abdulmutallab, it would raise the question why it refuses to rectify the same or similar error in the case of Khalid Sheikh Mohammed, et al. in New York. Indeed, it would in a sense be conceding the error.

As Scott Johnson notes, http://www.powerlineblog.com/archives/2010/01/025461.php:

"I am afraid there is an underlying source of the error in the erroneous principles that are guiding the Obama administration. As to acts of terorrorism committed in the United States, the Obama administration seems to have established a presumption that criminal treatment is appropriate."

If Scott is correct, then I too must concede error.  The administration's policy is not incoherent.  Instead, it is unified around an intelligible theme.  Unfortunately, that theme is dubious as a matter of law and absurd as a matter of national self-defense. 

Scott notes that, under the Attorney General's indecipherable protocol, http://www.justice.gov/opa/documents/taba-prel-rpt-dptf-072009.pdf,  Khalid Sheikh Mohammed was assigned for trial in federal court rather than before a military commission in Guantanamo. "But," Scott notes, "if the protocol is wrong in principle, decisions that comport with it will frequently err as well. Michael Isikoff provides some evidence of the Obama administration operating in a deliberative process under an erroneous principle in Abdulmutallab's case.

"The question remains: where does Obama stand on the case of Abdulmutallab? Does the buck stop with him, with Eric Holder or with the local FBI agents on the ground in New York. Stephen Hayes elaborates on the manifold absurdities at play in the administration's pronouncements on the Abdulmutallab case. As Hayes rightly notes, these pronouncements call into question the administration's [asserted] understanding that we are engaged in a war."

Still, it's only fair to note that the President has not been entirely inert in the face of this national security fiasco.  http://www.msnbc.msn.com/id/35030898/ns/politics-the_new_york_times/.

From the California Supreme Court's decision in People v. Robinson, S158528, today:

As SCOTUSblog's Lyle Denniston reports, with its denial of certiorari in Noriega v.Pastrana (09-35) the U.S. Supreme Court "refused... to clarify whether individuals in custody by the U.S. government may rely on protections of the Geneva Conventions for prisoners of war..." on the same day that the Court summarily decided Briscoe v. Virginia.  The importance of the criminal law questions posed in both petitions raises questions about why the U.S. Supreme Court schedules some cases for oral argument and briefing, and declines to address others.  The Court may have declined to hear Noriega's case because, as Denniston reports, denial of cert. could clear the way for Noriega's deportation to France for trial on illegal drug charges, but denial leaves unanswered whether Congress had taken away the right of anyone to pursue a habeas or other civil claim under the Geneva Convention.

The Court's refusal to address important questions raised by Noriega's petition - like the extent to which provisions of the Military Commissions Act of 2006 affect the power to grant a writ of habeas corpus under 28 U.S.C. §2241 - raise a question as to what would have made the case cert-worthy. 

The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking: That's the title of Kenneth Anderson's Volokh Conspiracy post, and a new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim, on how lower courts are addressing substantive and procedural issues raised by the detainee's habeas corpus petitions.  Anderson writes that "[n]o matter what your particular legal viewpoint about detention and Guantanamo, this report will be required reading because of the breadth and depth of its analysis -- running to all the extant cases."  Anderson's post features a guest post from the study's authors.  There, Wittes, Chesney and Benhalim write that "some decisions the judges are making--particularly their views regarding just who comes within the scope of the AUMF--have direct implications for activities other than GTMO detention, such as targeting decisions."

Mirandizing the Christmas Day Bomber:  Volokh Conspiracy blogger, Paul Cassell, comments on Bill Otis' C&C analysis of the Christmas Day bomber, Umar Farouk Abdulmutallab.  Cassell agrees with Otis that giving Abdulmutallab Miranda warnings "as not a one-time, bureaucratic screw-up, but rather a larger strategic failure."  He adds, "[w]hatever one thinks about the ultimate place of trial for Abdulmutallab (civilian vs. military court, for example), the best place for obtaining information is clearly not to the civil justice system."

Westlaw and Lexis Upgrades:  Adam J. Kolber, a Professor at University of San Diego School of Law, reports on CrimProf Blog that Westlaw and Lexis are about to modernize their web interfaces.  He links to Ashlee Vance's New York Times piece reporting on the details, and comments that he is "not very optimistic that the updates will" help.  Wall Street Journal's Law Blog also posts on the Lexis and Westlaw upgrades.  According to Ashby Jones, the programs upgrades will make the search function "feel a lot more like, well, Google."  
 
Post-Argument SCOTUScast:  Last week, the Federalist Society posted its post-argument SCOTUScast for the cases Black v. United States and Weyhrauch v. United States featuring Crime and Consequences contributing blogger Bill Otis.  Both Black and Weyhrauch addressed questions about the scope of the "honest services" provision of 18 U.S.C. § 1346.  Otis' C&C post discussing the cases and the "honest services" clause is available here.

Supporting the Death Penalty:  Sacramento Bee published an opinion piece by David E. Brown supporting California's continued use of the death penalty.  California voters have always overwhelmingly supported death penalty initiatives, and Brown agrees.  He writes that the real problem "with California's death penalty is its inability to carry out executions following convictions and sentences."  Since California reinstated the death penalty in 1978, only 14 inmates on death row have been executed.  Brown believes that because of the judicial system's failure to approve executions, the death penalty in California has become a de facto life-without-possibility-of-parole sentence. 

Pennsylvania's Death Penalty System:  Pittsburgh Post-Gazette writer Torsten Ove reports on Pennsylvania's failure to execute anyone since Gary Heidnik in 1999.  Pennsylvania has more than 220 prisoners on death row and although Governor Ed Rendell has signed 101 death warrants, executions are not occurring.  Last week Governor Rendell signed a death warrant for Richard Baumhammers, but says most likely there will not be an execution.  Baumhammers is a racially motivated mass murder who targeted minorities, and because he has taken full advantage of the appeals process he is unlikely to be executed on March 18.  Ove writes that since the reinstatement of the death penalty in 1978, Pennsylvania has not executed anyone who has not waived their right to an appeal.  Buamhammers'  appeal to the U.S. Supreme Court was denied in October, and he may still file a stay of execution with the Allegheny County trial judge and file a habeas corpus petition in U.S. District Court.  Ove reports there on 20 other inmates from Western Pennsylvania for whom governors have signed death warrants that remain on death row. 

DNA Nabs a Rapist:  The Massachusetts' Patriot Ledger published an article from GateHouse New Service writer Greg Smith about how police caught a 1988 kidnapping and sexual assault suspect with DNA evidence.  James Thomas Ward was convicted lat year of first-degree sexual assault and first-degree kidnapping of a 20-year-old newlywed.  Police had followed many leads, but came up empty handed and the investigation was suspended in 1990.  The case was reopened in 2005 when Ward's DNA profile was found to match  evidence collected from the victim's sweater.

North Carolina's Desire to Expand DNA Database:  Citizen Times writer Dale Neal reports that North Carolina's Attorney General, Roy Cooper, wants to expand the state's DNA database to require samples from anyone arrested for a felony.  According to Neal, 21 states require a DNA sample taken from anyone arrested on a felony charge.  It is believed that the expansion of the DNA database will help solve cold cases where there are no suspects.  Cooper says, "When you ask people how they want their tax money spent, public safety is high on the list."  With more data, police officers could get leads in cold cases where they do not have suspects.

If You Name It Like an Airline, Don't Be Surprised When It Crashes: John Fund at the WSJ has some schadenfreude with the demise of "über liberal talk radio network" Air America. Okay, that's enough Deutsch.

The Supreme Court issued its one sentence decision in the Confrontation Clause case, Briscoe v. Virginia (07-11191) today. 

"We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009)."

The per curiam decision is just one of several recent cases that the Court has scheduled for full briefing and oral argument and then dumped.  We'll post a more detailed analysis later today.

The Neuroskeptic begins this great post on the spat of recent studies claiming antidepressants are of little value in treating depressive disorders:

Imagine there was a nasty disease that affected 1 in 100 people. And imagine that someone invented a drug which treated it reasonably well. Good work, surely.

Now imagine that, for some reason, people decided that 10% of the population need to be taking this drug, instead of 1%. So sales of the drug sky-rocket. Eventually some clever person comes along and asks "This is one of the biggest selling drugs in the world - but does it work?" They look into it, and find that it doesn't work very well at all. For about 9 out of 10 people, it's completely useless! What a crap drug.

Neuroskeptic points out two important points behind these findings.  First, the growth of diagnostic labeling and its effects on efficacy studies; second, the limitations of commonly used psychiatric assessment tools such as the Hamilton Rating Scale for Depression. 

But one other point is worth mentioning.  All of these studies utilize a statistical method known as meta-analysis.  In layman's terms, this technique uses mathematical formulas to quantify the overall effect of numerous studies conducted over time.  The key is that the author's of these studies posses enormous discretion in deciding which studies are included and which are excluded.  True, they must provide a rationale for their decision-trees, but even with explicit and rational reasons, the result can be a study which examines six studies while excluding over 2,000-  while nevertheless claiming to pass judgment on them all.

Even the Washington Post  --  ever the cheerleader for a Hope for the Best national security policy  --  gets it, sort of, as respects the botched interrogation of the Christmas day bomber.  In today's editorial, the Post states:

UMAR FAROUK Abdulmutallab was nabbed in Detroit on board Northwest Flight 253 after trying unsuccessfully to ignite explosives sewn into his underwear. The Obama administration had three options: It could charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.

It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous.

 

John O'Connor reports for AP:

Nearly six weeks after Illinois Gov. Pat Quinn halted an early prisoner release program that set free hundreds of potentially violent inmates, his administration is still struggling to identify which criminals -- or even how many -- got out.

*                                *                              *

MGT Push, which got its name from accelerating inmate awards of good-conduct credit, or "meritorious good time," continues to cause problems for Quinn, who is up against state Comptroller Dan Hynes in the Feb. 2 Democratic primary for governor.

Hynes has made the botched program the center of his attacks on the incumbent. Quinn has been seemingly inconsistent in his explanations of the program and what he knew about it.

*                                *                              *

MGT Push involved awarding up to six months of good-conduct credit to prisoners as soon as they entered the gates and before they had time to show they deserved any good-behavior time off.

Corrections also dropped a 61-day minimum stay for all inmates, meaning scores of prisoners spent a total of less than three weeks behind bars, including county jail time. They served, on average, 26 days in the state pen, from as few as seven to 60, just below the old minimum.

On the updated list, at least 230 released early were convicted of violent crimes or those that involved weapons.

Earlier today, I discussed the incoherence  --  never mind the foolhardiness  --  of the administration's policy of treating alien jihadists as ordinary criminal defendants.  As if on cue, it now comes out that the confusion embedded in that policy resulted in a botched and truncated interrogation of the Christmas day bomber.  See "Christmas Day Mistake,"  News Scan, below.  Of course we don't know what information was lost by the government's fumbling.  We are left to hope it won't change potentially life-saving forewarning into fatal blindness.  But this is, after all, the administration of Hope and Change. 

The whole sorry episode is explained by Scott Johnson on Powerline, "A Mistake that Can Be Rectified":  http://www.powerlineblog.com/archives/2010/01/025438.php.  Scott follows up here, http://www.powerlineblog.com/archives/2010/01/025444.php, and here, http://www.powerlineblog.com/archives/2010/01/025452.php.  The short of it is that the bomber was turned over to the FBI to be questioned as an ordinary criminal suspect, without so much as consultation with a group the administration says it has established to assess whether captured terrorists should be questioned by a newly-created "elite interrogation unit."

This came out in the (literally) head-slapping Congressional testimony of Director of National Intelligence Dennis Blair.  Among numerous other things left unexplained by Director Blair was how the "elite interrogation unit" squares with President Obama's pledge to insure that our interrogation practices "reflect our deepest values."  Still less does Mr. Blair explain how it would square with the Federal Rules of Criminal Procedure to which the administration remains hypnotically committed.  And least of all is there any suggestion of how this Rube Goldberg contraption of interrogation practices promotes, rather than endangers, the country's safety.

 

 

 

 

Question:  "Cal. Supreme's 'Notices of Forthcoming Filings' sure are handy. Why can't SCOTUS do this?"

Answer:  Because SCOTUS is part of the federal government.

Opinions, Opinions, Opinions:  SCOTUSblog's Lyle Denniston announces today that the U.S. Supreme Court is expected to issue one or more decisions on Monday, January 25th.  The Court will then recess until its private conference on February 19th.  Also on SCOTUSblog today is Stanford Law student, Tiffany Cartwright's summary of the Court's opinion in Wood v. Allen.  Cartwright writes that instead of ruling on the issue the Court granted certiorari to resolve, "the Court held that Wood's claim failed under any interpretation of the [habeas] statute."  And, in a post unrelated to criminal law, Tony Mauro reports on the "outpouring of words" from advocacy groups over the Court's decision in Citizens United. 

Broad Internet Restriction Approved for Sex Offender:  On Sentencing Law and Policy, Doug Berman reports on the D.C. Circuit Court's "pretty broad internet restriction on a pretty bad sex offender" in U. S. v. Love.  Apparently, after reviewing the record of the district court, the D.C. Circuit concluded that a probation condition banning Love's use of the Internet "only [for] electronic communication involving prohibited sexual material, or, alternatively, [requiring] that his Internet use be monitored remotely by the Probation Office[,]" was appropriate for a sex offender who had distributed child pornography and attempted to solicit sex with a minor through the Internet.  The court made this ruling even though it found "Love's potential recidivism is substantial, and his inclination towards reoffending is great."  The ruling in Love was issued on the same day as a report that starting Monday, California will not be monitoring low-level offenders.  Hopefully, an offender like Love would not fall into the "low-level" group.

An Examination of the NAS Forensic Report:  CrimProf Blog's editor, Kevin Cole, posts a link to D. Michale Risinger's forthcoming law review article,  The NAS Report on Forensic Science: A Path Forward Frought with Pitfalls.  The article, which can be downloaded on SSRN, takes a look at the National Academy of Sciences (NAS) Forensic Report and concludes that "[a]s a well-documented catalogue of the problems of forensic science by a highly credentialed body, this report is hugely important. But as a blueprint for change, it is subject to some serious reservations."

"The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking": That's the title of Howard Bashman's link on How Appealing to a study by the same name by Benjamin Wittes of the Brookings Institution and Robert Chesney of the University of Texas Law School.  According to the study's Executive Summary, the study examines lower court treatment of the detainees habeas corpus lawsuits and the "rules the courts--in their capacity as default legislators--are writing for the military and for the nation as a whole."  Through the report, the authors hope "to describe in detail and analyze the courts' work to date--and thus map the contours of the nascent law of military detention that is emerging from it."

We all know you can indict a ham sandwich, but can you issue an arrest warrant for a DNA profile? The following questions will be answered (for California) on Monday in People v. Robinson:

The court limited the issues to be briefed and argued to the following: (1) Does the issuance of a "John Doe" complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (2) Does an unknown suspect's DNA profile satisfy the "particularity" requirement for an arrest warrant? (3) What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Database and Data Bank Act of 1998 (Pen. Code, § 295 et seq.)?

Cal. Supreme's "Notices of Forthcoming Filings" sure are handy. Why can't SCOTUS do this?

Christmas Day Mistake:  An opinion piece posted on the Wall Street Journal states that the federal government made a mistake by handing over Umar Farouk Abdulmutallab (Christmas day bomber) to civilian authorities because failed to use a unit called the High-Value Interrogation Group (HIG).  This Unit decides whether a person should go through the federal justice system or some other route.  Currently, the government's only hope to extract information is through a plea deal.  Dennis Blair, the Director of National Intelligence, told the Senate that "[f]rankly, we were thinking more of overseas people and, duh, you know, we didn't put it [in action] here."  Blair's statements were immediately disputed by an anonymous Administration official, but the Wall Street Journal thinks Blair's statements reveal "the dangerous folly of the Administration's policy of treating terrorists like common criminals." 

The Cost of a Terror Trial:  In another Wall Street Journal opinion piece, James Q. Wilson asks, why is New York City forced to bear the burden of Khalid Sheikh Mohammed's trial?  The trial will take place in lower Manhattan.  There will be intense and costly security spanning several city blocks around a federal court house, the city's police headquarters, a New York Supreme Court building, a church, and other government buildings.  The high price tag of KSM's trial is an estimated $216 million per year.  This is more than New York can afford and the City has asked the federal government to pay for the expenses.  It has not received a reply.  Wilson has an alternative that he believes will solve all the problems - try the five terror suspect before a military commission located on a secure army base.  This won't happen for KSM's trial, so Wilson advises that once the trial starts "don't plan on visiting lower Manhattan." 

Decision not to try Detainees:  New York Times writer Charles Savage reports that the Obama Administration has decided continue to imprison 50 detainees without trial because a high-level task force has found that their cases are too difficult to prosecute, and concluded the detainees are too dangerous to be released.  For the past year, a task force has been sorting through files for each detainee to evaluate the evidence against each man, their potential threat if released, and the possibility of a successful prosecution.  There are just under 200 detainees left at Guantanamo.  Out of the remaining detainees, 40 will be prosecuted and about 110 will be repatriated of transferred to other countries for possible release. 

California State Law To Reduce Prison Population: Associated Press writer Don Thompson reports on a California state law that will reduce its prison population by about 6,500 over the next year.  The law is part a last year's budget package.  The law will expand early release credits for those who complete educational and vocational programs.  Also, low-level offenders will not be monitored after their release, although they can be searched without a warrant.  Los Angeles Police Protective League President Paul M. Weber stated, "California has decided to begin jeopardizing public safety with no perceivable financial benefit."  The law takes effect on Monday.

On January 22, 2009, President Obama pledged to close the detention camp at Guantanamo Bay within a year.  Today that promise will go by the boards.  We can all be thankful.

The obsession with closing Gitmo was always more about high-minded posturing than protecting the country from terror.  It was also a sop to the President's left flank, the same element that declines to call terrorism by its name, instead labelling it a mysterious "man-caused disaster."  (This is the same element, namely Secretary Janet Napolitano, who assured us that the Christmas day near-successful attempt to bomb an airplane showed that "the system worked.").

The President's failure to make good on his promise is a welcome sign that at least a sliver of reality has elbowed its way into the administration's thinking.  But a sliver isn't enough.  It's not merely that released Gitmo detainees have returned to the battlefield to kill Americans, as the administration acknowledged last May in a Defense Intelligence Agency report leaked to the New York Times.  It's that the entire strategy of treating captured terrorists as ordinary criminal defendants is as incoherent as it is dangerous. 

With last week's "smackdown" of the Ninth Circuit in McDaniel v. Brown, and this week's ruling in Wellons v. Hall, CJLF is starting to wonder, will the Supreme Court's 2009 Term be a term of summary AEDPA reversals?  If this trend continues, it just may well be. 

A summary reversal occurs when the Supreme Court reverses the lower court decision on the certiorari petition alone, without merits briefs or oral argument. (Brown is an unusual variation where the Court took briefing on the merits and scheduled an argument but then cancelled the argument and reversed without it.) Such a reversal usually indicates that the Court believes there is something wrong with the lower court decision, and does not feel the need to create any new law in striking it down.  These don't happen often.  A quick search of the Court decisions from the 2006, 2007 and 2008 terms, found there were only seven summary reversals over a three year period, and only two of them were habeas cases.  A quick search of to-date 2009 opinions finds that seven summary reversals were issued by the Supreme Court, and six of them were habeas cases. 

The startling number of summary reversals in habeas cases in 2009 raises some interesting questions.  How is it that lower courts are reaching conclusions that the Supreme Court finds so fundamentally wrong?  Is AEDPA really that confusing?  Or is something else at work here?

The Quick Reaction to Citizens United:  Today on SCOTUSblog, Lyle Denniston reports that President Obama has ordered his aides "to get to work immediately with Congress" to develop "a forceful response" to the Court's ruling in Citizens United v. Federal Election Commission.  President Obama issued a statement against the decision today, stating that the opinion "has given a green light to a new stampede of special interest money in our politics."  Denniston comments that there may be little that the President can do to narrow or overturn the decision. He writes that Justice Kennedy's opinion in Citizens United established "a sweeping free-speech right in politics for 'special interest' bodies of all types with the concept of 'speech' clearly embracing spending money to influence election outcomes."  In short, today's decision made Congressional attempts to curb political speech through spending much more difficult.  Our Guest-Blogger, Bill Otis, also comments on the President's statement.  In related posts, Doug Berman wonders if Citizens United will impact crime and justice campaign advertising, and Tony Mauro reports that Justice Stevens struggled as he read his dissent from the bench. 

Will A New Republican Senator Shift Focus to Criminal Justice Reform?  That's what Doug Berman wonders over at Sentencing Law and Policy as he reports that the Senate Committee has passed the National Criminal Justice Act of 2009.  According to its official report, the Act establishes a commission review of the criminal justice system. The Commission is charged with reviewing all areas of federal and state criminal justice costs, practices, and policies; making findings relating to incarceration, prison administration, the impact of gang activity, drug policy, mental illness among prisoners, and the role of the military in crime prevention; and recommending changes in policies and laws.  The Act was sponsored by a democrat, Senator Jim Webb, who has been actively pursuing criminal justice legislation.  It remains unclear from newly-elected Senator Brown's Issues page that he will be just as active in the area.

A Report on How Federal Courts Prosecute Terror Suspects:  CrimProf Blog posts a link to a Jurist article by Matt Glen on findings from a New York University Center on Law and Security report on the effectiveness of federal courts prosecuting terror suspects.  According to the report, the Department of Justice has secured convictions in 89% of its cases since 2001, probably because it is indicting those it is more likely to convict.  

One of the favorite tactics of the dishonest, unethical anti-death-penalty movement is abusing processes. A prime example is the notice-and-comment process for regulations in California. A state appellate court decided that the lethal injection protocol had to go through this process. So Corrections duly published the protocol and asked for comment. A very few people submitted legitimate comments on the protocol, which is all that is at issue, but an organized campaign spammed the department with a flood of irrelevant comments, mostly ranting about the death penalty generally.

It took months to pick through the heap to find the legitimate comments among the garbage.  Corrections then followed up with another notice on some very minor changes. Another spamming campaign flooded the department with about 12,000 comments.

These are the same people who claim that the death penalty is diverting resources from important government functions, yet the hypocrites intentionally impose added costs on government every chance they get.

The Legislature should react by exempting execution protocols from the Administrative Procedures Act.

We occasionally hear that those inclined to criminal activity might more often refrain if they had greater respect for the law.  Building that respect, we are told, depends on the criminal wannabee's view of its fairness and equity. 

If that is true, then the tone of President Obama's reaction to today's decision in Citizens United is unfortunate to say the least.  In a statement that was disrespectful if not snarling, the President said:

"With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans. This ruling gives the special interests and their lobbyists even more power in Washington--while undermining the influence of average Americans who make small contributions to support their preferred candidates."

One might wonder whether a more fitting reaction by the President of the United States  --  one better designed to build respect for law  --  would have been:  "While I disagree with today's opinion, I of course do not doubt the Court's authority to decide First Amendment issues, and I understand that reasonable minds can differ on questions about campaign finance.  I shall work with Congress to craft new legislation to rein in excessive spending by private interests in a way consistent with free speech rights and the Court's ruling."

One might also wonder what the volcanic reaction would have been if President Bush had given anything approaching Obama's angry slap when the Court handed down its opinion in Boumediene.

 

Sotomayor Writes First Capital Punishment Opinion: Washington Post Staff Writer Robert Barnes reports on Wednesday's Supreme Court decision to uphold the death penalty for an Alabama inmate.  The 7 to 2 ruling was notable because it was written by Justice Sonia Sotomayor, and is her first full opinion on capital punishment since she joined the court.  Sotomayor's extensive record as a judge is scant on capital punishment, but after this opinion hopefully we can look forward to Sotomayor taking a larger role in capital cases before the high court.

Deadline Passes for Closing Gitmo: Associated Press writer Devlin Barrett reports on the closing of Guantanamo Bay as the deadline to close the detention facility arrives tomorrow.  There is still more than a year left of work to do.  Unless Obama decides to change course, Gitmo's closing still depends on support in Congress to pay for a super-secure prison in Illinois for some of the detainees.  Obama must also requisition millions in order to put some suspects, including Ghailani, on trial in federal courts.  The high-security military prison, the administration argues, actually weakens national security because it serves as a recruiting tool for terrorists and undermines the United States' moral authority in combatting such killers.  Critics of the closure plan say bringing detainees to the U.S. to face trial or shipping them overseas only increases the risk of attacks.  Others are urging the president to try new tactics, such as creating a new type of court proceeding combining civillian trials and military commissions.

There were reports at the beginning of the present administration that former senator and Vice-Presidential candidate John Edwards was under serious consideration to be Attorney General.  It now turns out that Edwards was a serial liar who was leading a double life at the same time his wife was battling cancer.

http://today.msnbc.msn.com/id/34963767/ns/today-today_people/?GT1=43001

We should all be grateful for the merely clueless Eric Holder.

 

As widely anticipated, the Supreme Court took a big chunk out of campaign finance "reform" today in the Citizens United case. No other opinions were announced. So, the political and free speech blogs will be ablaze, and there is no action to discuss in criminal law, except to the extent the campaign finance law made it a crime to support a candidate.

Kent's note raises the question whether public opinion should be relevant to constitutional adjudication.  In the Fourth Amendment context, plainly the answer is "yes."  As Kent observes, when the constitutional provision by its terms requires courts to determine what is "reasonable," the public's view is very much in point, if not dispositive.

Even more noteworthy is the Eighth Amendment's prohibition on cruel and unusual punishment.  As the Supreme Court has recognized, a public consensus about what is "cruel" punishment for a given crime or criminal is one of the most important elements to be considered.  It was therefore disappointing, but not surprising, that in Kennedy v. Louisiana,  554 U.S. ___ (2008) , a 5-4 majority concluded that the death penalty for child rape, even when particularly violent and grotesque, is unconstitutional.  The Court justified its conclusion by pointing out that only a small minority of states had the death penalty for any non-homicide offense.  What the Court failed to do was make a convincing argument that this  was a result of anything besides its own opaque and ambiguous decision in Coker v. Georgia, 433 U.S. 584 (1977), which had barred capital punishment for the rape of an adult woman.

If one wants to know whether there is a public consensus against the death penalty for child rape, there's an easy way to go about it: ask.  The Quinipac Poll did.  It found that by a margin of 55-38, respondents favored making the death penalty an option for the jury in such cases. 

Any lingering doubt about whether there is a national consensus against the death penalty for child rape was ended in short order.  On the afternoon of the Court's decision in October 2008, both presidential candidates condemned it.  For whatever flaws our politics may have, one thing is certain, and that is when the presidential candidates openly agree on X, X is the national consensus.

As ever convinced of its rectitude, if not its factual accuracy, the Court denied re-hearing in a brief order that mentioned nothing of the polling evidence.

 

 

 

Gallup tells us that air travelers would rather have body scans than pat-downs at airport security, 70-22. When asked about scans alone, travelers approve 78-20.

Should polls such as this be relevant in courts' Fourth Amendment determinations? Yes, I think so. The 4A prohibits "unreasonable searches," and how else do we determine what is "reasonable" in matters that have no historical record?  The judges' personal opinions?  The consensus of the law reviews?  The editorial page of the New York Times?  I'll take the consensus of the people.

The Judge Should Not Be Punished:  R.J. MacReady posts on Texas Court of Criminal Appeals Blog, that Judge Sharon Keller, the Texas Court of Criminal Appeals Judge maligned for failing to keep the CCA clerk's office open past 5pm on the night of Michael Richard's execution, will not be punished for her actions.  In February 2009, the judicial conduct commission initiated formal proceedings against Keller, stemming from allegations that she made a decision to close the clerk's office, thereby effectively closing the court to Richard's defense attorneys' last minute petition for writ of prohibition and for stay of execution.  Today San Antonio Judge David Berchelmann found Judge Keller's conduct "did not cause the TDS to be late in its filings, to forget the other available avenues, or to fail to have any of its experienced lawyers contact the TCCA."  He wrote that "[h]er conduct... does not warrant removal from office, or even further reprimand beyond the public humiliation she has surely suffered."  Ashby Jones also covers the Judge's findings at Wall Street Journal's Law Blog. 

Sex Offender Laws Make the News:  Both Sex Crimes and Sentencing Law and Policy have posts today discussing the Wall Street Journal's coverage of laws (punishing federal child pornography) and cases (U. S. v. Comstock) affecting child sex offenders.  At Sentencing Law and Policy, Berman posts a link to Amir Efrati's article reporting on U. S. Sentencing Commission data that shows federal judges are showing leniency toward individuals who view child pornography but who aren't themselves molesters.  Efrati writes that even though the Justice Department has made child pornography and other child-exploitation prosecutions a top priority, for the months between October 2008 and September 2009, federal judges gave below guideline sentences in 44% of the cases in which individuals obtained child pornography or shared it with others.  At SexCrimes, Corey Rayburn Yung posts a link to a Wall Street Journal editorial discussing the implications of the Court's eventual decision in Comstock.  The editorial staff worries that if the Court embraces the Obama Administration's argument it "would be to grant the federal government broad power in the criminal context."  It worries the Court could "sanction the notion that nearly any appealing idea may be justified as necessary and proper."

Three Decisions in One Day:  At Blog of Legal Times, Tony Mauro reports on the three "noteworthy" opinions issued by the Supreme Court today. He writes that "[i]n Kucana v. Holder, the Court strongly affirmed the role of federal courts in reviewing  removal or deportation orders in immigration cases"; "Wood v. Allen...upheld a death sentence in Alabama for defendant Holly Wood against a challenge based on ineffective assistance of counsel"; and with the water dispute case "South Carolina v. North Carolina...the Court said entities that are not states can, in some circumstances, intervene as parties."  According to Mauro, Chief Justice Roberts dissented in South Carolina, raising concerns that original jurisdiction jurisprudence could be altered in a "fundamental way" by allowing private entities to join the litigation as parties rather than as friends of the court.  Jonathan H. Adler has this quick post on the decisions at Volokh Conspiracy, and Doug Berman gives his initial impression of Wood v. Allen at Sentencing Law and Policy.

Press Coverage of Judicial Vacancies:  At How Appealing, Howard Bashman compiles recent coverage of the growing need to fill federal judicial vacancies. 

The transcript of oral argument in Michigan v. Smith is now available. Most interesting to me are the questions of Justice Ginsburg, who repeatedly contrasts the practices being challenged in this case with those in the original jury cross-section cases of Taylor v. Louisiana and Duren v. Missouri. In those cases, the law expressly treated women differently from men. In the present case, benign practices such as generous excuses for child care hardship are said to have a disparate impact producing a shift in the numbers, quite a different thing. She seems to be concerned that placing a greater burden on the affected jurors just to get the numbers proportionate amounts to misplaced priorities. I think so, too.

Trivia question for the day: When Duren was argued in the Supreme Court back in '78, who argued the case for petitioner?

BTW, no one today expressed interest in my longshot argument that the Sixth Amendment actually has no cross-section requirement. It's true, though, if the Court is faithful to the original understanding that it deems controlling in the Apprendi and Crawford lines. We will wait and see what the opinion says.

AP reports, "The Supreme Court will meet in an unusual session on Thursday to issue opinions, raising the possibility that a closely watched campaign finance case could be handed down.  The high court normally schedules its sessions months in advance, and does not say in advance which opinions will be issued."

Supreme Court Upholds Holly Wood's Death Sentence: The Associated Press reports on today's Supreme Court's decision to uphold the death sentence of an Alabama man who killed his former lover.  A UPI report is available here.  In Wood v. Allen, the court, in a 7-2 vote, refused to overturn the death sentence of Holly Wood, who was convicted in the shooting death of his former girlfriend, Ruby Lois Gosha, in 1993.  She was killed by a shotgun blast to her head as she slept.  A federal judge had tossed out the death sentence on the basis of the poor performance of one of Wood's lawyer in the sentencing phase of his trial.  The lawyer, the youngest of the three attorneys representing Wood, did not introduce a mental evaluation that showed Wood had an IQ of less than 70 and stated Wood was "functioning in the borderline range of intellect." The 11th Circuit Court reinstated the death sentence, ruling that Wood had failed to how that the lawyer was constitutionally ineffective.  The Supreme Court agreed.  "Even if it is debatable, it is not unreasonable to conclude that ... counsel made a strategic decision not inquire further into the information contained in the report about Wood's mental deficiencies and not present to the jury such information," Justice Sonia Sotomayor said in her first written opinion in a capital case.  CJLF has issued a press release that can be found here.

Mumia Denied New Hearing: Philidelphia Daily News writer Michael Hinkelman reports on yesterday's Supreme Court ruling that tossed out the 3rd Circuit's 2008 ruling that death-row inmate Mumia Abu-Jamal deserved a new sentencing hearing.  Abu-Jamal has been on Pennsylvania's death row since his 1982 conviction in the killing of Philadelphia Police Officer Daniel Faulkner.  The Supreme Court decided to send the case back to the appeals court "for further consideration" in light of a ruling last week in Smith v. Spisak regarding similar sentencing issues that were cited by the 3rd Circuit in Abu-Jamal's case.  If the 3rd Circuit were to find that Abu-Jamal's circumstances are the same as Spisak's, it could reinstate the death penalty for Abu-Jamal.  Kent's blog on Abu-Jamal's case being vacated and remanded can be found here.

So said Senator-elect Scott Brown in his victory speech last night.  As Kent has noted, Brown's win means that efforts to dilute or repeal the AEDPA are probably doomed.  Moreover, the addition of "the 41st vote" now renders problematic any attempt to codify the administration's foolhardy and unpopular decision to give alien terrorists American constitutional rights, and to try them in civilian court rather than before military tribunals.

The elevation of high-minded platitudes over national security has been a hallmark of the present Justice Department, and I plan to give it more examination in the coming weeks.  For now, it's enough to start off with this short and pungent piece from Scott Johnson on Powerline (http://www.powerlineblog.com/):

"In his remarks at last night's victory celebration, Scott Brown reiterated one of the winning themes of his campaign in a memorable fashion: "And let me say this, with respect to those who wish to harm us, I believe that our Constitution and laws exist to protect this nation - they do not grant rights and privileges to enemies in wartime. In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them."

The national security policy of the Obama administration in its treatment of enemy combatants as American citizens is indefensible. The case of Umar Abdulmutallab is a powerful example. The Obama administration has in fact put forth no principled defense of its endowment of enemy combatants such as Abdulmutallab with the rights of American citizens. The irrationality of the Obama administration on this point is obvious and devastating. Andrew McCarthy elaborates in "It's the enemy, stupid."

Today, the Supreme Court will hear oral arguments in Berghuis v. Smith (08-1402), a case involving issues of jury discrimination disparity analysis and AEDPA deference. 

In 1993, Diapolis Smith was convicted for the second-degree murder of Christopher Rumbly at a bar in Grand Rapids, Michigan.  He was sentenced to life in prison without the possibility of parole.  On appeal, Smith claimed that his Sixth Amendment right to a venire (jury pool) representing a fair-cross-section of the community was violated because the percentage of African Americans who appeared for jury service was lower than the percentage of African Americans living in Kent County, Michigan.  The Michigan Supreme Court rejected Smith's argument.  It found that Smith had "failed to establish a legally significant disparity under either the absolute or comparative disparity tests" and that he failed to demonstrate systematic exclusion of minorities.

Smith's habeas petition was denied by the federal district court, but the Sixth Circuit reversed.  It concluded that the Michigan state courts acted unreasonably when they found the minority underrepresentation in Smith's case was constitutionally insignificant.

Today's arguments are likely to focus on whether the state supreme court reasonably applied Sixth Amendment precedent to reach a correct decision on the merits, and whether the Michigan Supreme Court reasonably applied the three-part test established in Duren v. Missouri.  Michigan Solicitor General, B.Eric Restuccia will be arguing for the state of Michigan, and James Sterling Lawrence will be arguing for Smith.

Today's oral arguments are previewed here and here on SCOTUSblog.  The second post features five minute podcasts from participants in the case.  CJLF's Kent Scheidegger summarizes the issues before the court and argues that the Sixth Amendment does not contain a "fair cross-section" requirement.  The podcast provided by Lawrence, Smith's attorney, could well be a preview of what he will argue before the court today.

Justice Sotomayor's first full opinion in a capital case is a win for the state, upholding the sentence. Wood v. Allen involves a well-deserved death sentence for a man who had a habit of trying to murder his ex-girlfriends, succeeding on the third attempt. His attorneys decided not to use a mental defense in mitigation. The state court found that was a strategic decision, of the kind that is close to unreviewable under Strickland v. Washington. That factual determination was reasonable under 28 U.S.C. §2254(d)(2). The vote was 7-2 with Justices Stevens and Kennedy dissenting.

The opinion is quite short, with 8 pages of windup and 4 of pitch. The question of the interrelation of AEDPA's two provisions on state court findings of fact, §§2254(d)(2) and (e)(1), remains unresolved. If the state court decision is based on findings that are reasonable, given the evidence before the state court, and that court reasonably applies those facts to established Supreme Court precedent under (d)(1), nothing further needs to be decided. But we already knew that. See Rice v. Collins, 546 U.S. 333 (2006). For further information on this, see CJLF's brief in the case at pages 5 and 10-14 (mentioned in footnote 2 of the opinion).

The danger that the 111th Congress would enact a major step backward in criminal law, undoing a large part of the progress of the last 20 years, took a big drop yesterday with the stunning upset in Massachusetts. In particular, the murderers' lobby's dream of a major rollback of the Antiterrorism and Effective Death Penalty Act of 1996 took a serious and possibly fatal blow.

If Massachusetts is not a "safe" seat for the Democratic Party, what is? None in the Senate and few in the House. Of course, this was an open seat and not a challenge to an incumbent, but even so there are more incumbents shifting uncomfortably in their seats than a few weeks ago.

How do incumbents who sense even the slight possibility of defeat behave? Well, for one thing, they are less likely to vote for measures that allow them to be labeled as soft on crime. Contrary to what you may read elsewhere in the blogosphere, "soft on crime" is not just a political label. It is that, of course, but it is much more. It is a capsule description of a disastrous policy error of the 1960s and 1970s. Some would have us believe that it is "smart" to drastically lower sentences and rely on "experts" who claim to be able to fix criminals, who are after all just sick and not evil. Well, we've been there, done that, and got the bloody T-shirt. It was part of the Great Society, and many tens of thousands of innocent people were needlessly robbed, raped, and murdered as a result.

I do not expect crime to be the major issue of the coming election. The success of our tough on crime policies of recent decades paradoxically pushes the issue down the ladder in the public mind. Even so, the issue is still there and might make the difference in a close race. After yesterday, how many politicians in America can be comfortable that their race will not be close? Some, but not nearly as many as before.

In the case of accused embassy bomber Ahmed Khalfan Ghailani, Judge Kaplan just entered this order:

By letter dated January 6, 2010, defendant has sought a modification of paragraph 5(a) of the Modified Protective Order Pertaining to Classified Information. He contends that his counsel are unduly hampered by their inability, consistent with that order, to discuss with him matters relating to defendant's detention by the Central Intelligence Agency....[see Order]... It perhaps is conceivable that there is an appropriate reason for concern on the part of defendant's counsel. Nevertheless, I am frank to say that I cannot understand from the defendant's submission why the government is not entirely right on this issue. Accordingly, the application is denied. SO ORDERED.

In a truly remarkable article published in the Sacramento Bee on January 17th, Michelle Alexander, author of "The New Jim Crow" and former director of the ACLU Racial Justice Project, explained how criminal justice policy in California over the past three decades has been  all about race.  While the focus of the piece is to question the sincerity of Governor Schwarzenegger's recent interest in releasing prison inmates, which Ms. Alexander supports, it's her insights on why the prisons are full that make it noteworthy.  She explains that the skyrocketing incarceration rates of the past three decades were caused by "the war on drugs - a war that has targeted people of color for drug crimes even though studies show they are no more likely to use or sell illegal drugs than whites."  She cites the recent 9th Circuit decision in Farrakhan v. Washington in which the court "acknowledged the rampant racial bias in the criminal justice system, particularly in the prosecution of the drug war."  Then there were the "racial profiling studies that were conducted several years ago documenting biased stop and search practices in dozens of police departments, including the California Highway Patrol."   There's more: "The uncomfortable reality we must face is that California, like the nation as a whole, has treated a generation of African Americans and Latinos as largely disposable.  They have been rounded up by the thousands, locked in cages, and upon release ushered into a parallel social universe in which they can be denied the right to vote, automatically excluded from juries and legally discriminated against in employment, housing, access to education and public benefits..."    Finally we learn that the get tough on crime movement that increased sentences, was driven "not by crime rates, but by politics - a politics that scapegoated the most vulnerable as a means of scoring political points."   

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A Citizens United Decision Tomorrow?:  At SCOTUSblog, Tom Goldstein predicts that tomorrow could be the day that the Court hands down its highly anticipated decision in Citizens United v. FEC.  He writes that tomorrow, and Monday, January 25th, are the last two scheduled opinion days the Court has until Tuesday, February 23rd.  He believes that Citizens United is a likely candidate for a decision because "[t]he Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar."

Court Opens Up Jury Selection:  Lyle Denniston writes on SCOTUSblog that today's decision in Presley v. Georgia (09-5270) opened up the process of selecting a jury in a criminal case to the general public.  According to Denniston, the 7-2 unsigned opinion found that the Sixth Amendment's guarantee of a public trial gives the public the right to attend jury selection.  The dissenters, Justices Thomas and Scalia, argued that Presley summarily disposed of two important questions that it had left unanswered 25 years ago in Waller v. Georgia and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. In the dissent, Justice Thomas wrote that he was unwilling to decide these questions "without the benefit of full briefing and argument."  On Blog of Legal Times, Tony Mauro comments on Presley and the rest of today's Court action.  Mauro's post quickly recaps the Court's decisions in Beard v. Abu-Jamal (08-652) and Wisconsin, Michigan and New York v. Illinois, and reports that the Supreme Court cited "its own First and Sixth Amendment precedents, [to support its ruling that] the trial judge is required to consider alternatives to closure."  How Appealing's Howard Bashman also collects media coverage of the Court's other ruling in Wellons v. Hall, here and here.

U. S. Sentencing Guidelines May Allow Probation for Federal Drug Offenders:  Marcia Coyle reports on Blog of Legal Times that the U. S. Sentencing Commission has opened its proposed sentencing guidelines to public comment, and that one guideline would allow federal judges to sentence federal drug offenders to probation if they participate in a substance abuse treatment program. Coyle writes, "To receive the probation alternative, the commission said the offender must be a willing participant in the treatment program and must have committed the offense while addicted to a controlled substance. The offender also must have committed a lower-level offense."  The Commission's Notice of Proposed Amendments is available here.      

"Reliving Horror in a Test for the Death Penalty": New York Times writer William Glaberson reports on the case that is shaping Connecticut's public and political sentiment on capital punishment.  Two years ago, in the Connecticut town of Cheshire, two parolees broke into the house of Dr. William A. Petit Jr.  They clubbed Petit, and tied him up.  One of them rapes and strangles the mother while the other molests one of the daughters.  The father breaks free and shouts for help, but the parolees have set the house on fire.  Both daughters die of smoke inhalation.  The suspects are arrested one block from the house, and many question why these two habitual criminals were placed on parole.  Then, last spring, Connecticut's General Assembly voted to end capital punishment in future cases.  During the process, legislators heard a plea to appeal the bill by sole survivor, Dr. William A. Petit Jr.  "My family got the death penalty," he testified in March, "and you want to give murderers life. That is not justice."  While death penalty opponents believe capital cases by their nature delay justice and subject victims to painful trials, proponents argue it is unthinkable to treat these acts like other crimes.  "The Petit case is the quintessential case of why people like me believe there should be a death penalty," said Rep. Lawrence F. Cafero Jr.

At the top of today's orders list is this order in the appeal of Schwarzenegger v. Plata and a companion case:

The appeals are dismissed for want of jurisdiction. The Court takes note that a further order has been entered in this case, but that order is not the subject of these appeals. It is also noted that the district court has stayed its further order pending review by this Court.

Understanding what the Court did and did not decide (mostly the latter) takes a bit of background.

The Supreme Court orders list is here. The controversial Abu-Jamal case is vacated and remanded to the Third Circuit to reconsider in light of Smith v. Spisak. On the WaPo site is this AP story. The headline writer refers to Abu-Jamal as a "suspect."

The Court also sent a California case, Patrick v. Smith, back to the Ninth Circuit to reconsider in light of the high court's spanking of the Ninth in McDaniel v. Brown.  Anyone care to bet that the Ninth will say Brown has no bearing on Smith only to be reversed by the Supreme Court? We've seen that scenario a time or two.

Attached to the order list are opinions in summary dispositions of Presley v. Georgia, on exclusion of the public from voir dire, and Wellons v. Hall, previously noted here, on a federal habeas claim where the facts had been insufficiently developed in state court. Wellons is remanded for reconsideration in light of Cone v. Bell.

The court turned down the California prisoner case, Schwarzenegger v. Plata, "for want of jurisdiction." I'll have more on that in a separate post.

C&C recently reported an AP story that conservatives have become increasingly drawn to the anti-death penalty movement, partly for cost considerations, partly for religious reasons. 

The story contains a grain of truth.  Here, however, is the cornfield:  According to a Gallup survey,  http://www.deathpenaltyinfo.org/gallup-poll-who-supports-death-penalty, conservatives support the death penalty by 74% to 21%.  Moderates support it 68% to 27%, and liberals by 54% to 42%.  Republicans support it 80% to 17%, and Democrats 58% to 36%.  Men support it 74% to 23%, and women 62% to 32%.

The death penalty was not merely supported but used by George Washington, Abraham Lincoln, Franklin Roosevelt, Dwight Eisenhower and Bill Clinton.  Not all of these are thought to have been "conservatives," of course.  And it was recently endorsed by a prominent not-very-conservative politician, even for non-homicide offenses such as child rape (emphasis added):  "I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes. I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Those were the words of Barack Obama, criticizing the Supreme Court's decision In Kennedy v. Louisiana, 554 U.S. ___ (2008).

 

 

HOPE - A Probation Model at Work:  Over the weekend at Sentencing Law and Policy, Doug Berman posted a link to a National Institute of Justice and Pew Center study on the impact Hawaii's Opportunity with Probation Enforcement Program (HOPE).  The study, conducted by Angela Hawken of Pepperdine University and UCLA's Mark Kleiman, takes a look at HOPE, which "relies on mandate to abstain from illicit drugs, backed by swift and certain sanctions and preceded by a clear and direct warning[,]" and its probationers.  According to the Pew Center, the research shows that HOPE probationers were significantly less likely to be arrested for a new crime, to use drugs and to have their probation revoked.  The results of the study sound promising, and other states may want to take a look at Hawaii's model - though Delaware may want to use a different acronym.

Ninth Circuit Panel Rules on Use of False Confessions:  On Saturday, CrimProf Blog posted on a three-judge panel's ruling in the civil case, Crowe v. City of San Diego, that a coerced statement may be used as the basis for a civil rights claim if it is used in pretrial proceedings.  The panel then defined pretrial proceedings to include juvenile hearings and grand jury indictments.  Crowe arose from the investigation and prosecution of three innocent teenagers for the murder of Michael Crowe's 12-year-old sister Stephanie Crowe.  According to Jose Luis Jiménez and Greg Moran's article in the San Diego Union Tribune, "[t]he criminal case against the youths disintegrated just before trial, when DNA tests showed the 12-year-old girl's blood on the T-shirt of a transient, Richard Tuite."   

First One in Line:  At Volokh Conspiracy, Randy Barnett posts on an enterprising Georgetown Law student's attempts to be the "First One @ One First."  According to Barnett, and Georgetown Law student Mike Sacks, "First One @ One First" will follow Mike Sacks' attempts to be the first one in general admission line "[f]or every politically salient case" being argued before the U. S. Supreme Court.  This won't be an easy feat.  Sacks writes that he was the first one in line for oral arguments in Citizens United v. FEC only because he camped outside the U. S. Supreme Court the night before oral arguments. 

The Anti-death Penalty Movement and Conservatives:  Associated Press writer Brett Barrouquere reports on the efforts of the anti-death-penalty movement to attract conservative support. The story highlights Montana State Senator Roy Brown. Brown was the 2008 Republican nominee for Governor of Montana, receiving only 33% of the vote in a state carried by John McCain at the top of the ticket.  At the National Coalition to Abolish Death Penalty's annual conference, Brown and others showed activists how to argue their case against the death penalty.  One way is to point to economics and argue abolishing the death penalty will help solve state budget problems. The Criminal Justice Legal Foundation's Kent Scheidegger disagrees.  He says, "The death penalty does not need to cost more than life imprisonment."

 A Federal Law That Can Indefinitely Imprison Sexual Predators:  United Press International writer Michael Kirkland reports that the Supreme Court will decide whether portions of the Adam Walsh Child Protection and Safety Act are constitutional.  A provision of the Act allows the U.S. government to commit indefinitely any federal prisoner who shows signs of being a "sexually dangerous person."  The Obama Administration asked for Supreme Court review after an appeal panel found that the provision "exceeds the limits of congressional power and intrudes on the powers reserved for the states."  31 state attorneys general told the Supreme Court that they support the Act.  The commitment provision has rarely been used.  Out of 15,000 federal sexual offenders imprisoned, only about 100 have faced commitment procedures. 

Supreme Court to Decide the Fate of Mumia Abu-Jamal:  Reuters writer Jon Hurdle reports that on Tuesday, the Supreme Court should rule on an appeal by the Philadelphia District Attorney who is seeking to have Mumia Abu-Jamal executed.  In 1982, Abu-Jamal was convicted of killing officer Daniel Faulkner.  His conviction has been upheld by numerous courts.  If the Supreme Court rules in Abu-Jamal's favor, he will get a new jury trial on his sentencing, and not his conviction. 

Suspect Identified by DNA:  Michigan Macomb Daily writer Michael P. McConnell reports that crime lab results identified, Antonio Liggins, 19, as the man suspected of robbing and sexually assaulting a woman.  Liggins had been identified within several days of the crime as the suspect, but police had to wait eight months for results from the crime lab before prosecutors would press charges.  It's reported that Michigan State Police Crime labs have a backlog of more than 17,000 case and 10,000 rape kits.  They're unable to test as many cases as last year because of inadequate funding.  Hazel Park Police Chief David Niedermeier stated, "we are concerned about the time lag.  It's disconcerting that such a violent crime has to be set aside waiting for these DNA test results.  But we're happy to get this case behind us and get this individual off the street."

On December 8, 2009 -- slightly more than a year after epidemic deceit brought disaster to the banking system and staggering losses to employees, retirees and stockholders -- the Supreme Court heard argument in two cases that, broadly speaking, ask whether we have any legal obligation to be honest with one another. That timely question involves seemingly technical language in a federal statute, but its answer will reverberate beyond the law books.

The case is a conundrum for conservatives. On the one hand, it features a criminal statute whose breadth seems rife with opportunities for prosecutorial overreach -- and Big Government is nowhere more menacing than in its power to imprison those not in step. On the other hand, the slide toward a culture of dishonesty, in which deceptiveness and outright lying increasingly threaten the trust essential for commercial and civic life, is scarcely something conservatives can welcome.

We at C&C are pleased to welcome Bill Otis as a contributing blogger.

Bill Otis is a 1974 graduate of Stanford Law School and has held a number of positions in the federal government.  He started his career in the Criminal Division of the Justice Department, and in 1981 was asked to become head of the Appellate Division of the United States Attorney's Office for the Eastern District of Virginia.  While in that position he argued more than 100 criminal appeals before the Fourth Circuit.  He was a charter member of the Attorney General's Advisory Subcommitte on the Sentencing Guidelines, where he served for ten years.  In 1992, he was detailed to the White House to act as Special Counsel for President George H. W. Bush.  He left the U.S. Attorneys Office in 1999, but returned to federal service three years later as Special Assistant to the Secretary of Energy.  In 2003, he was appointed Counselor to the head of the Drug Enforcement Administration, where he remained until 2007.
 
He has appeared before both Houses of Congress to testify on diverse subjects in criminal law including the death penalty, illegal drugs and the operation of the Sentencing Guidelines.  A number of media outlets have interviewed him on these and other subjects, including CBS's "Sixty Minutes," "The O'Reilly Factor," ABC News and MSNBC.  He has written several op-ed pieces for the Washington Post, covering everything from legal ethics to Scooter Libby's sentence commutation, and is an occasional contributor to the blog Powerline. 
 
He and his wife split their time between their homes in suburban Washington, D.C and Hawaii.

Our standard disclaimer applies: "The opinions expressed by outside authors reflect their individual opinion and are not necessarily those of CJLF." 

The Supreme Court's orders list from today's conference is available on SCOTUSblog but not, as of 2:00 pm PST, on the Court's own web site.

All five cases granted are civil. Conspicuously absent is Schwarzenegger v. Plata, the big California let-em-all-out case. Usually when the Court releases a list of cases accepted on Friday, the list at the beginning of the following week* is all denials. We'll have to wait and see whether the Governator's case is denied or relisted. There have been further developments in the lower court, and the appellant just filed a second supplemental brief yesterday, so possibly they took it off the calendar to give the opposing party a chance to respond.

*Tuesday next week because Monday is a holiday.

Orders and Opinions:  SCOTUSblog's Erin Miller posts that today, the Supreme Court granted certiorari in five cases.  The orders list is available here.  All five of the cases involve civil claims, but one case, John Doe #1 v. Reed (09-559), involves a first amendment privacy claim similar to one that could be raised by the supporters of California's Prop. 8.  Lyle Denniston has a post discussing the case on SCOTUSblog, and Tony Mauro has this post on Blog of Legal Times.  Denniston also reports that the Court is expected to issue one or more decisions next Wednesday.  More orders from today's private conference are expected on Tuesday.

"Sexting" Case Arrives in Third Circuit:  At Sentencing Law and Policy, Doug Berman posts that today, the case Miller v. Skumanick, became the first federal circuit court case to take up the issue of "sexting."  According to an article by Shannon P. Duffy in The Legal Intelligencer, Skumanick addresses several teenagers claims that former District Attorney George Skumanick Jr., violated their First Amendment rights when he threatened a child pornography prosecution if they did not take a class he had designed to educate youths about the dangers of sexting.  Based on Duffy's article, and Berman's comments, Skumanick may center around freedom of speech, but it also raises some interesting issues regarding prosecutorial discretion.  The attorney for former-District Attorney Skumanick argues it was not incorrect for Skumanick "[i]n his prosecutorial discretion ... to address the situation with an informal adjustment under which the girls and boys who had participated in the creation and dissemination of the photographs could attend a rehabilitative class where they could be educated to understand that such actions were illegal, inappropriate and extremely dangerous."

UK Parliament Justice Committee Urges Reduction in Prison Population:  Yesterday, CrimProf Blog posted a link to Sarah Miley's Jurist report that the UK Parliament Justice Committee's reinvenstment report urged that prison populations in England and Wales be reduced by a third.  The Committee apparently found that incarceration is a relatively ineffective way to reduce crime - except for serious offenders - and rehabilitation programs would be more effective for repeat offenders.  According to Miley, the Committee admitted that its proposal would not be easy to implement, but believed reduction was necessary to address problems of overcrowding. 

Dorothy Rabinowitz has this column in the WSJ, ripping Mass. AG and Senate candidate Martha Coakley for her role in the late stages of the notorious Amirault child abuse prosecution. The Amirault case has been a crusade of Ms. Rabinowitz for many years.

From Gallup today:

"Some people have suggested that airline passengers who fit the profile of terrorists based on their age, ethnicity, or gender should be subjected to special, more intensive security checks before boarding U.S. flights. Do you favor or oppose this practice?"

Favor:71%; Oppose: 27%.

Speaking of profiling, Tony Mauro reports this in the NLJ:

Asked about the musical tastes of his newest colleagues, [Justice Antonin] Scalia confessed ignorance but guessed, "Alito is Italian; he must love music. How could he not?"

George Will today muddies the linguistic waters by using the term "judicial activism" to mean something entirely different from what that term has been understood to mean for many years. "Judicial activism" is the practice of substituting the judge's personal opinions for what a provision of the Constitution was understood to mean at the time it was adopted. Will's column has to do with whether a federal mandate on health insurance is constitutional (a controversy CJLF takes no position on, BTW).

More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual -- basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.

That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers. This obligatory engagement with the Constitution's text and logic supersedes any obligation to be deferential toward the actions of government merely because they reflect popular sovereignty.

That sounds like Humpty Dumpty in Lewis Carroll's Through the Looking Glass. Limitation of federal authority to the enumerated powers was universally understood at the time the Constitution was adopted, and just to eliminate any doubt, the Tenth Amendment was adopted to state it explicitly. "Unflinching performance" of the court's proper role of enforcing the Constitution as originally understood, even when it is contrary to a later statute, is not judicial activism. Matthew Franck has more on this at Bench Memos.

Congress's ungainly drug statute 21 U.S.C. §841, provides in paragraph (b)(1)(C) for a life sentence if death or serious bodily injury results from using the drugs. In U.S. v. Hatfield, Judge Posner of the Seventh Circuit has this to say about causation:

Causation is an important issue in many cases in a variety of fields of law and has been so for centuries. Yet it continues to confuse lawyers, in part because of a proliferation of unhelpful terminology (for which we judges must accept a good deal of the blame). In the space of three-and-a-half pages in the government's brief, we find the following causal terms: proximate cause, actual cause, direct cause, but-for causation, contributing causation, contributory causation, significant causal connection, sole cause, factor in the victims' injuries, concurrent cause, meaningful role, possible cause, remote cause, and cause in fact. Black's Law  Dictionary (8th ed. 2004) lists 26 terms in the entry for "cause." The prosecutor was unable at oral argument satisfactorily to differentiate or explain the causal terms listed in his brief, or the three causal terms added to the instruction--"a factor that resulted in," "primary cause," and "played a part."

In the end, it was a mistake for the government to try to explain too much by pulling language out of appellate opinions and putting it in a jury instruction. "All that would have been needed to satisfy [the defendant's objection to the instruction] was to eliminate the addition to the statutory language, which was a good deal clearer than the addition and probably clear enough. Elaborating on a term often makes it less rather than more clear (try defining the word 'time' in a noncircular way)...."

The SCOTUSblog post on Schwarzenegger v. Plata noted in today's Blog Scan has a version of the Questions Presented that may be a bit confusing. The full text of the QP from the Jurisdictional Statement is after the jump.

Totally off-topic.

Supreme Court Schedules:  The U. S. Supreme Court will hold a private conference tomorrow to discuss pending petitions for ceritorari.  Today, SCOTUSblog's Erin Miller posted its "Petitions to Watch" for the conference, in addition to a rare "Appeals to Watch."  The "Appeals to Watch" tomorrow involve the early release of thousands of California prisoners in the cases Schwarzenegger v. Plata and California State Republican Legislator Intervenors v. Plata.  Kent blogged back in December that the Court was likely to hear the case, so don't be surprised if the appeals are at the top of the Court's orders list.  The Court also released its oral arguments calendar for March 2010.  The D. C. Circuit's detainee case, Kiyemba v. Obama, will be argued March 23rd, and a "second successive" petition question will be addressed on March 24th in Magwood v. Culliver.  

Hollingsworth v. Perry - Lower Courts Can't Fudge Procedural Rules:   At Volokh Conspiracy, Orrin Kerr comments on a theme he finds running throughout the Supreme Court's opinions in Hollingsworth v. Perry and Bush v. Gore.  Kerr believes that yesterday's opinion in California's Prop. 8 case reflects the Court's objection "lower court or state court judges intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process."  He writes that the Court invoked this principle once before in Bush v. Gore, a case also involving lawyers Ted Olson and David Boies.  In that case, the Florida Supreme Court was repeatedly fudging state election law to try to help out Al Gore in the 2000 election; and in Hollingsworth, the trial judge "was fudging the rules on broadcasting trials to try to give the plaintiffs a national forum to make the case for gay marriage."  Kerr writes this must have been an "odd deja vu moment" for Olson and Boies.

Surveillance Drones in Houston:  CrimProf Blog's editor, Kevin Cole, has posted a YouTube video describing the Houston Police Department's use of a small, unmanned aircraft that can be used for surveillance.  The Department is testing use of the drones, but some people are already questioning whether use constitutes a search for purposes of the Fourth Amendment.

The Supreme Court issued this opinion and order in Hollingsworth v. Perry today.

The question whether courtroom proceedings should be broadcast has prompted considerable national debate. Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally.

Instead, our review is confined to a narrow legal issue: whether the District Court's amendment of its local rules to broadcast this trial complied with federal law. We conclude that it likely did not and that applicants have demonstrated that irreparable harm would likely result from the District Court's actions. We therefore stay the court's January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.

The gay marriage suit is, of course, not a criminal or crime-related case, and CJLF takes no position on the merits of that controversy. Similar issues do come up in criminal cases, though, so we need to keep tabs on it. In its discussion of the chilling effect of broadcasting on witnesses, the Court noted the trial of LBJ crony Billy Sol Estes, which was a criminal case. "See Estes v. Texas, 381 U. S. 532, 547 (1965); id., at 591 (Harlan, J., concurring)." The Oklahoma City bombing case, and Congress's very narrowly limited authorization for closed-circuit television in that case, is also discussed.

Open courts are generally a good thing, and broadcasting a trial can have an educational benefit, letting more of the public see real trials than the limited few who can actually go to the courtroom. Even so, the impacts on victims, witnesses, and the defendant need to be considered with care. The loss of privacy and danger of intimidation that come with being a witness are magnified if the proceeding is broadcast. We need to proceed with caution.

A California Vote to "Revictimize Victims":  Conn Carroll reports for The Heritage Foundation's blog, The Foundry, that the California Assembly Public Safety Committee has approved a bill allowing any prisoner to petition the sentencing court for "recall" if they have served at least ten years of a life-without-parole sentence for any crime committed before turning 18.  The juvenile offenders will then be allowed a rehearing where victims families would have to testify to fight a new and reduced sentence.  Carroll reports that the bill was defeated last June, through the coordinated efforts of prosecutors, police and victims.  The California Assembly responded by changing the composition of the Committee, which allowed the vote to pass 4-2 today.

Reports of Early Prisoner Release and High Crime in Michigan:  At Sentencing Law and Policy, Doug Berman links to an article in Indiana's South Bend Tribune reporting that victims in Michigan do not want to see the early release of prisoners.  In the article, Lou Mumford reports that victims and prosecutors across Michigan are speaking out against the early release of prisoners and pending legislation that would do away with 1998s truth-in-sentencing guidelines.  Apparently, Michigan has reduced its prison population by 11.8% in the last 11 months, and prosecutors in Kalamazoo County, Michigan have felt its effects. Two of the last three homicides in the were allegedly committed by parolees released within the last two years.

Predicting the Outcome of the Sex Offender Commitment Case:  Yesterday, after addressing key points made during oral arguments for the case United States v. Comstock, Corey Rayburn Yung made a prediction on the outcome of the case.  Yung believes that Comstock has the better argument, but believes that the Court will rule in favor of the United States by 6-3.  Volokh Conspiracy blogger Ilya Somin links to Yung's and then makes his own prediction.  He believes that the Court is unlikely to find in favor of Comstock, but notes "stranger things have happened in the highest Court in the land."

Supreme Court Blocks Televised Prop.8 Trial:  At SCOTUSblog, Lyle Denniston reports that today, the Court ruled 5-4 to block any television broadcast to the general public of the San Francisco federal court challenge to California's ban on same-sex marriage.  The opinion was released nearly 40 minutes after the Court's earlier order blocking televised proceedings had expired.  The Court granted a stay pending a timely filing of a petition for a writ of certiorari or the filing and disposition of a petition for a writ of mandamus by supporters of the Prop.8 ban.  Kent's post on Hollingsworth v. Perry can be found here. 

Justice City, USA, a blog of the website Careers in Criminal Justice, has this useful list of criminal justice and criminology blogs.

The November (ahem) issue of the Journal of Law and Economics just hit my emailbox. Among the articles is Randi Hjalmarsson, Juvenile Jails: A Path to the Straight and Narrow or to Hardened Criminality? Here is the abstract (emphasis added):

Juvenile justice systems throughout the United States have become increasingly punitive since the 1970s. Most states have passed legislation making it easier to transfer juveniles to the criminal courts. Supporters of this "get tough" movement argue, in part, that juvenile courts are ineffective in deterring young offenders. This claim, however, is based primarily on poorly designed evaluations that do not account for the nonrandom nature of sentencing. This paper demonstrates how the institutional features of the justice system can be exploited to identify causality when true random assignment is not feasible. In particular, I capitalize on discontinuities in punishment that arise in Washington State's juvenile sentencing guidelines to identify the effect of incarceration on the postrelease criminal behavior of juveniles. The results indicate that incarcerated individuals have lower propensities to be reconvicted of a crime. This deterrent effect is also observed for older, criminally experienced, and/or violent youths.

Note that "deterrent effect" here is specific deterrence -- the individual punished is less likely to do it again. This is different from a "general deterrent" effect, where punishing one person makes others less likely to do it.

California Ordered to Cut Inmate Numbers: SF Gate writer Bob Egelko reports on the state of the California prison system.  Yesterday, a federal court panel ordered the Schwarzenegger administration to lower California's prison population by more than 40,000 within two years to lessen overcrowding and improve health care.  The three-judge panel said its order, the first to require the administration to meet a deadline, was compelled by the state's "long-standing failure to provide constitutionally adequate medical and mental health care." The panel noted that the administration had already proposed to meet the goal by sending fewer minor offenders to prison.  Schwarzenegger's spokesman, Aaron McLear, however, had this to say: "We will fight any decision that orders early release and endangers public safety." McLear said the state expects the Supreme Court to hear its appeal and decide whether judges can issue orders that compel prisoner release.  The Supreme Court will consider on Friday, January 15th, whether to accept the appeal and set the case for full briefing and argument.

Ohio Executions Challenged Again: New York Times writer Ian Urbina reports on several court filings against the state contending that Ohio prison officials have shown a consistent disregard for their own rules in carrying out executions.  These include failing to ensure that execution staff members attend required rehearsals and training.  Lawyers for other death row inmates said they hoped to stop all executions in Ohio until the state's execution protocols were brought up to constitutional standards and there were better guarantees that those protocols would be followed.  In a 2008 ruling upholding the three-drug cocktail Kentucky used in executions, the Supreme Court rejected the claim that it posed an unconstitutional risk of a condemned inmate's suffering acute yet undetectable pain.  Allen L. Bohnert, a death row lawyer in Ohio, said the decision by the Supreme Court on the method's constitutionality was based on the faulty assumption that states followed protocol, when in Ohio, he said, that was proving not to be true.

Oral Arguments in United States v. Comstock:  Today, the U. S. Supreme Court heard oral arguments in the sex offender civil commitment case, U. S. v. Comstock (08-1224).  Doug Berman and Corey Rayburn Yung both have posts discussing the case.  On Sentencing Law and Policy, Berman reports that early press coverage of the case provides "distinct takes on what the Justices are thinking."  He points to a Bloomberg report indicating that the Justices will uphold the national civil commitment law, and then links to a Reuters report that the Justices "expressed skepticism" of the Obama administration's argument.  SexCrimes blog editor, Corey Rayburn Yung, posts on the key points of the government's and Comstock's oral argument.  He believes that the government is "asking for way too much" and praises Comstock's attorney for conceding that federal jurisdiction to commit sex offenders could exist if the civil commitment was made as part of the original sentence.  Tony Mauro also has this report on Blog of Legal Times.

Cameras In the Courtroom:  Televising California's Proposition 8 trial has stirred up some legal controversy according to Lyle Denniston's post on SCOTUSblog.  The controversy began when federal district judge Vaughn R. Walker announced his plans to allow delayed television, and later a YouTube webcast, of the trial.  The trial opened on Monday morning, but the U. S. Supreme Court quickly stepped in and blocked any broadcast outside the San Francisco courthouse until 4p.m. on Wednesday afternoon. In the meantime, the policy-making arm of the U. S. federal courts, the U. S. Judicial Conference, wrote a letter to Ninth Circuit Chief Judge Kozinski reminding him of its policy against television broadcasts of federal trials.  Judge Kozinski fired back, arguing that broadcasting from trial courts "rests exclusively with the Judicial Council of each circuit, consistent with the statutory governance structure of the courts."  Judge Kozinski is now considering public viewing of the trial only through a link in the District Court's own website.  Ashby Jones reports on Judge Kozinski's "unrelenting" belief that cameras should be allowed in the courtroom on the Wall Street Journal's Law Blog.

More Ghailani Coverage:  Wall Street Journal's Law Blog also covered yesterday's oral arguments in the suspected terrorism trial of Ahmed Ghailani.  As we've written before, Ghailani is accused of participating in the 1998 bombings of a U. S. embassy in Tanzania and Kenya, and claims his right to a speedy trial has been violated.  Wall Street Journal writer Suzanne Sataline provides further coverage.

Deterrence Theory:  Freakonomics blog editor reports that some European countries are raising ticket fines in proportion to the incomes of their wealthiest speeders.  Getting slapped with a $290,000 fine for speeding might cause some drivers to think twice about accelerating, but will it really stop people from speeding?

Melendez-Diaz v. Massachusetts Revisited at Supreme Court: New York Times writer Adam Liptak reports on arguments heard Monday regarding a new narrowly divided decision stating that crime lab reports may not be used against criminal defendants at trial unless the analyst responsible for them testify.  The Court's membership has changed since the 5-4 June decision in Melendez-Diaz v. Massachusetts, which said that the Sixth Amendment's Confrontation Clause, which gives a criminal defendant the right to be confronted with the witnesses against him, does not allow the mere presentation of a lab report to prove, that white powder found on the defendant was cocaine.  The four dissenters in Melendez-Diaz warned that the decision would subject the nation's criminal justice system to a terrible burden, with analysts pointlessly forced to attend trials rather than tend to their forensic responsibilities.  Yesterday's case, Briscoe v. Virginia, involved two prosecutions.  In one, prosecutors offered proof that the "white, rock-like substance" that the police found in Mark A. Briscoe's kitchen and shorts was cocaine by submitting "certificates of analysis" from a forensic scientist who did not testify.  In Sheldon A. Cypress' trial, prosecutors submitted a certificate without testimony as well.  The immediate issue in the consolidated cases is whether the prosecutors were permitted to do something short of calling the analysts as witnesses during the trial.  Other posts on Briscoe are available here and here.

Sixth Circuit Reversal Reversed:  Sentencing Law and Policy writer Douglas A. Berman reports on the Supreme Court's reversal of the reversal of a death sentence for a notorious murderer.  In Smith v. Spisak, the Court considered whether the Sixth Circuit exceeded the limitations of AEDPA when it concluded that the Ohio Supreme Court had incorrectly rejected Spisak's jury instruction and ineffective assistance of counsel claims.The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal court may grant a state prisoner's habeas petition if the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law."  Justice Breyer's opinion for the Court states,"Thus, we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result, and that the Ohio Supreme Court's rejection of Spisak's claim was not 'contrary to, or . . . an unreasonable application of'" Strickland v. Washington.  The Court was unanimous in the result and the conclusion that the deficiencies Spisak complained of were very unlikely to have changed the outcome. Justice Stevens disagreed with part of the analysis and wrote a separate opinion.  Kent's post on the decision is available here.

The Supreme Court today reversed the decision of the Sixth Circuit, which had overturned the death sentence of unrepentant triple murderer and neo-Nazi Frank Spisak. As with yesterday's Brown case, we have a federal court of appeals declaring a state court decision to be not merely wrong but unreasonable, yet when the Supreme Court takes the case not a single Justice thinks the federal court of appeals was right.

Update: Thomas Sheeran has this story on the case for AP.

Yesterday, our Blog Scan linked to Mark Hansen's report on Briscoe v. Virginia.  That article mentioned that Justice Sotomayor may be the one to watch to determine whether the Court will uphold a Virginia Supreme Court's holding that a statute governing the admission of certificates of analysis did not violate the Confrontation Clause.  Right off the bat, Justice Sotomayor made it clear that she would influence the outcome of the case, and indicated that her vote may differ from Justice Souter's in last year's case Melendez-Diaz v. Massachusetts. 

The link below comes from a chain of referrals, Instapundit->Right Coast->Cassell@VC->here.

Anyhow, I hope this clarifies everyone's eligibility for forgiveness.

Larry Neumeister of AP has this report on the speedy trial motion of alleged embassy bombing conspirator Ahmed Ghailani. CJLF's amicus brief, invited by the court, is here.

Apparently at one point defense counsel was spilling classified information before the AUSA could shut him up. One more reason this case should not have been moved to civilian court.

Update: Benjamin Weiser has this story in the NYT.

Among the cases turned down by the U.S. Supreme Court is Bowling v. Kentucky, No. 09-6673. The defendant in this case is Ronnie Bowling, not to be confused with Thomas Bowling, co-petitioner in Baze v. Rees, or James Bowling, the trial judge who denied his new trial motion. (There seem to be a lot of Bowlings in Kentucky.)

The Kentucky Supreme Court opinion is here, case 2006-SC-000034-MR. Evidence at Bowling's trial included comparative bullet lead analysis, a technique since discredited. Fortunately, there was lots of other evidence. Bowling robbed three gas stations, killing people at the first two. Fortunately, the third victim was able to take cover and call police. A 30-mile car chase followed, during which Bowling threw his gloves out the window. The gun, matched by ballistics to all three crimes, was also found on the chase route. The surviving victim identified Bowling. Given the unlikelihood the verdict would have been different without the bullet analysis, the trial court was within its discretion to deny a new trial. Three justices dissented.

In another argument that can charitably be described as "creative," defendant claimed a Brady violation on the ground that the prosecutor might have asked the expert if there was a possible innocent explanation for the bullet match. The court patiently explains that nothing in Brady requires the prosecution to cross-examine its own witnesses, and defense counsel could just have easily asked the same question. No dissent on this point.

The Court also turned down Alameida v. Phelps, No. 09-519, a habeas case where the opinion below is unusually whiny, even for Judge Reinhardt.

Parole as a Deterrent:  Over the weekend, Doug Berman posted a link to "Prisoners of Parole" on his website, Sentencing Law and Policy.  According to Berman the New York Magazine piece, by Jeffrey Rosen, provides an "[e]ffective discussion of new (version of old) thinking about deterrence."  Rosen's piece examines how classic deterrence theory - imposing certain, swift and mild punishment immediately after an offense - is being championed by scholars studying deterrence today.  Instead of imposing harsh penalties, and then suffering through the uncertainty of appeal, scholars like David M. Kennedy advocate imposition of certain punishments that the public views as fair and legitimate.  Rosen writes that theories like Kennedy's can be used "to persuade the nation's policymakers that the most urgent case for prison reform is not only economic but also moral and practical."  He believes swifter, more moderate punishments, can deter crime better than long sentences that many view as unfair. 

Supreme Court Back From Break:  On Law.com, Tony Mauro reports on the Court's return to the bench with oral arguments in Briscoe v. Virginia and Alabama v. North Carolina.  Mauro writes that starting today the Court will begin to hear highly anticipated cases involving the Second Amendment, the Confrontation Clause, and the legal status of sex offenders.  Mauro follows his Law.com article with a Blog of Legal Times report that oral arguments in Briscoe taught the Justices a new word.  According to Mauro, Briscoe's attorney, Richard Friedman perplexed Justices with his use of the word "orthogonal" to describe why one of Justice Kennedy's hypotheticals was not pertinent to the case.  The transcript of Briscoe's oral argument is available here.  Mark Hansen reports in January's ABA Journal, that Briscoe's outcome could hinge on Justice Sotomayor.

Coverage of Proposition 8:  Howard Bashman rounds up coverage on the start of the Proposition 8 case in a San Francisco district court today.  He follows up with reports that the Supreme Court has blocked the YouTube webcast of the trial.  

Blog Comments on Brown:  After today's decision in McDaniel v. Brown, Orin Kerr invents a new blog software category for Supreme Court treatment of Ninth Circuit opinions, "Ninth Circuit Smackdown (Again)."  More information on Brown can be found in CJLF's Press Release. 

 

No big surprises in today's Supreme Court opinion in McDaniel v. Brown. In this post last May, I wrote, "How is Judge Wardlaw's opinion wrong? Let me count the ways." Today the Supreme Court pretty much ticked off the same ways, although it skipped the exhaustion/default point I noted. In September, when they took the case off the argument calendar, I speculated on the disposition. "Will they just vacate the decision to allow the Ninth to consider the alternative ground of ineffective assistance decided by the District Court but not by the Court of Appeals? That's my guess." Bingo.

But why did this case ever get to the Supreme Court of the United States? Here we have an opinion that is so obviously wrong that not a single Justice thinks it was correct, and even the party who won in the Court of Appeals abandoned the theory of that decision. The case was significant enough for a grant of certiorari in the high court. The crime involved here was a truly atrocious one. It was a crime that a good many people, including President Obama, think should be a capital offense.

So why did the Ninth Circuit deny rehearing en banc? The state petitioned, but no judge called for a vote. Given the strength of Judge O'Scannlain's dissent, I can only surmise that he did not call for a rehearing vote because he knew it would lose.

The criteria for a Court of Appeals to grant rehearing en banc are similar to those for the Supreme Court to grant certiorari. Compare Supreme Court Rule 10(a) with Federal Rule of Appellate Procedure 35(a).  The Courts of Appeals should be more liberal with their en banc grants than the Supreme Court is with its certiorari grants simply because they have a much smaller pool of cases to consider.  So how is it possible that this case made it on to the Supreme Court's radar screen for certiorari but was so obviously a loser for en banc that not a single judge even called for a vote?

The Ninth Circuit, as an institution, has not shown the will to rein in its rogue panels when they err in favor of the prisoner. There have been a few exceptions, and we have noted them on this blog when they occur. These remain exceptions, unfortunately, to a pattern of winking at error and injustice whenever they favor the perpetrators of crime.

Today's decision by the Supreme Court is not only a rebuke to the panel majority, it is an indication of systemic failure of the Ninth Circuit as an institution. Get your act together, folks.

Guantanamo Detainee Argues Violation of Rights: Associated Press writer Larry Neumeister reports that today Ahmed Khalfan Ghailani's lawyers will argue that his rights were violated because he was held and questioned at a secret CIA-run camp and Guantanamo Bay, when he should have promptly been prosecuted in a U.S. court.  Ghailani is accused of deadly bombings at two U.S. embassies in Africa.  After his capture, he was held for two years in CIA detention camps, and three years at Guantanamo Bay.  Ghailani was brought to New York from Guantanamo last spring to be prosecuted in a U.S. court.  In a petition seeking freedom Ghailani wrote, "I have been a victim of 'cruel enhancement interrogation' techniques, never afforded the right to remain silent nor the right to have an attorney."  Prosecutors say that there was a delay in bringing him to trial because he was captured during a war, and Ghailani was a high ranking al-Qaida leader.  This makes Ghailani a rare find, and potentially a rich source of information, whose statements were both urgent and crucial to the war efforts.  Ghailani's ruling could set precedents that could affect the prosecution of accused 9/11 mastermind Khalid Sheik Mohammed.  We were asked to join the Ghailani case, our brief is available here.

Budget Cuts Affect Courthouse Safety:  Associated Press writer Denise Lavoie reports that with the recession causing large cuts from budgets, courts around the country are faced with the decision of whether to reduce court services or cut back on security.  The thought of cutting back on courthouse security is unnerving, particularly after the fatal shooting last week in a Las Vegas courthouse and a report released the same day stating that threats to federal judges and prosecutors have doubled in recent years.  Some courts have already cut courthouse security.  In Birmingham, Alabama, Judge Suzanne Childers started bringing her gun to work after budget cuts forced county officials to let go both of her courtroom deputies.  Childers says, "I feel like I need some kind of protection, both for me, my staff and the general public."   If budget problems don't improve soon more courthouses may be forced to cut their security. 

Capital Murder Defendant will Defend Himself:  Associated Press writer Gillian Flaccus reports that accused serial killer Rodney Alcala, 66, is representing himself Monday in his third trial on charges of killing 12 year old Robin Samsoe, and four murders of Los Angeles County women.  Alcala was convicted twice of killing Samsoe, but both convictions were overturned on procedural matters.  This time, Alcala has plead not guilty on all five counts of murder.  Alcala's former defense attorney, Richard Schwartzberg believes that Alcala is having fun and enjoying the challenge of representing himself, because at his age he will unlikely face execution.  Teressa Samsoe, who married Robin Samsoe's oldest brother stated, "I think it's just a head game for him, to keep prolonging it.  He knows what he did, he's been convicted twice and he's just trying to hurt the family with it."

The Supreme Court summarily decided McDaniel v. Brown (08-559) today.  Justice Thomas wrote a concurring opinion, which Justice Scalia joined. 

The Court granted certiorari on the case last January, and then canceled oral arguments it had scheduled for October 13, 2009.  The opinion is available here.  Our brief is available here.    

Following up on the theme of yesterday's post, guess who wrote this about the failed Christmas plane bomber:

Did the administration's quick pivot to criminal charges -- they were filed the next day -- interfere with investigators' ability to obtain maximum information from Abdulmutallab? What if other operatives had been deployed with similar devices? Wouldn't it have been better to thoroughly interrogate Abdulmutallab -- without offering Miranda warnings against self-incrimination, and without providing a lawyer whose first instruction was, no doubt, to stop talking?

Such questioning would not preempt criminal charges from being filed later. It would simply prevent prosecutors from using such statements, and information derived from them, in the criminal proceedings. If prosecutors can safely pursue a criminal case against alleged Sept. 11 mastermind Khalid Sheik Mohammed after 183 waterboardings, there's not much risk in questioning Abdulmutallab. Given the available proof -- the explosives he was carrying and the planeload of eyewitnesses -- any first-year law student could win this case.

Is that Rivkin and Casey? Nope. Charles Krauthammer? Guess again.

From yesterday's opinion pages, we have a couple of pieces that are as noteworthy for who wrote them as for what they say. USA Today has this editorial titled "As crime keeps dropping, it's no time for backsliding." They note the headscratching by experts whose pet theories about causes of crime are undercut by the numbers, the point made by Heather MacDonald earlier this week. Then they continue:

One convincing reason for the crime drop is that incarceration works. In 1990, according to the Justice Department, the U.S. prison population was 773,119. Today the total is about 1.6 million.

Getting repeat violent offenders off the streets and keeping them behind bars longer is sure to have had some significant impact. The most recent long-term study of recidivism by the Justice Department found that 67.5% of the prisoners released in 1994 committed another crime within three years. (The department is studying the class of 2005.) More jail cells and longer sentences reduce the population of released prisoners and push them into an older age group, when they are less likely to be involved in the most violent crimes.

Another credible explanation is that law enforcement officials at all levels of government have been effectively employing community policing, rapid response teams and new technologies.

Despite these positive trends, however, there are reasons for concern. States and localities are under extreme financial duress as the result of a sour economy combined with mandated spending tied to health care and overly generous retiree benefits.

Some are responding by cutting law enforcement and releasing prisoners early. That's shortsighted. There is no more important function of government than public safety. If officials do not take that responsibility seriously, crime will no doubt go back up, reversing one of the truly good news stories of the past two decades.

We at CJLF have not often agreed with USA Today's editorials on crime. In fact, we've written the counterpoint a few times. This time, they hit the bull's eye, and we are happy to give credit where it is due.

But wait, there's more. An op-ed in the Washington Post by a prominent black leader decries the bad example set by gunslinging black athletes and also takes the black leadership to task for not speaking out enough on lawbreaking:

I also feel a keen sense of guilt that black leaders have not raised our voices more dramatically. If the assailants in these incidents had been white, we would have been marching, but because this is same-race behavior, we shake our heads, say a few words and allow it to continue.

So who wrote that? Bill Cosby? Nope. Juan Williams? No, although it is quite consistent with his book Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America--and What We Can Do About It.

Briscoe Preview: Lyle Denniston at SCOTUSblog has this extensive preview of Briscoe v. Virginia, a Confrontation Clause case to be argued Monday.

Three Successful Executions Yesterday:  Doug Berman writes on Sentencing Law and Policy that yesterday may have "mark[ed] a record for the modern administration of the death penalty in the US" with three successful executions in three different states.  Yesterday, Louisiana executed its first inmate since 2002, Ohio successfully implemented its one-drug lethal injection protocol, and Texas executed cop killer Kenneth Mosely.  Well, not quite a record. According to Berman, and commenter federalist, the Death Penalty Information Center's execution database contains only one day with more executions.  On December 9, 1999 Indiana, Oklahoma, Virginia and Texas carried out four executions. 

Nominations Sent Back to Senate: At Blog of Legal Times, David Ingram posts that President Obama is expected to renominate six people whose names the Senate returned to the White House last month.  According to a White House Official President Obama intends to renominate Dawn Johnsen for the Justice Department's Office of Legal Counsel.  Ingram reports that most Senate Republicans had opposed Johnsen's nomination because her views were too extreme to lead the Office of Legal Counsel.  Two other Justice Department nominees, and two nominees for district court seats are also expected to be renominated.  New York Times writer Charlie Savage also reported on the renominations, and American Constitution Society Blog collected renomination coverage from other sources on Wednesday.
     
The Supreme Court Returns with Orders and Opinions:  Today, Lyle Denniston has two posts on SCOTUSblog discussing action in the Supreme Court.  The Court has returned from its holiday recess and held a private Conference today.  After the Conference, the Court issued orders and granted certiorari in Dolan v. United States (09-367).  Denniston reports that the Court may issue more orders on Monday and is expected to hand down opinions on Tuesday and Wednesday of next week.

An Interesting SSRN Article on Juvenile Justice:  CrimProf Blog posts a link to Christopher Slobogin and Mark R. Fondacaro's law review article, Juvenile Justice: The Fourth Option.  The abstract argues that the "punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it[,]" but acknowledges that "claim[ing] that developmental differences between adolescents and adults make the former less blameworthy" is misguided.  They argue these claims are misguided because they "de-emphasize crime-reducing interventions, overstate the degree to which adolescent responsibility is diminished, and play into the hands of those who would abolish the juvenile justice system..."  As to overstating the diminished responsibility, CJLF made a similar point in its brief for the juvenile LWOP cases, Graham v. Florida and Sullivan v. Florida. 

Does Guinness World Records have an entry for the greatest number of false or misleading factual assertions in a single newspaper editorial? Apparently not, but if they wish to start one, this death penalty editorial in the San Jose Mercury News is a credible candidate.

Some of the statements in the editorial are opinion, and of course the paper is perfectly entitled to its opinion, as is everyone else. As the saying goes, though, while they are entitled to their own opinion, they are not entitled to their own facts. Some of the statements supporting the opinion are misleading and some are outright false.

Many Early Released Inmates are Back in Custody:  Associated Press writer John O'Connor reports that 56 inmates released by Illinois Governor Pat Quinn's secret early release program are back in behind bars.  At least 17 of those inmates are alleged to have committed violent crimes, including attempted murder, armed robbery, and domestic battery.  The program that gave the inmates early release was called "MGT Push".  This program, now halted, secretly changed a Corrections policy that required inmates to stay a minimum of 61 days.  Some inmates were given six months good time credit when they first arrived.  This made inmates eligible for release in as little as three weeks.  A document released Thursday shows 13 offenders went back to prison after going AWOL from parole or failing to comply with parole requirements, and 14 offenders spent little time of any on the street because they had no place to live.

Gunman Kills 3 and Himself at St. Louis Power Plant: New York Times writer Liz Robbins reports that Timothy Hendron, armed with a rifle, shotgun and handgun went on a shooting rampage at the ABB Power plant in North St. Louis.  Before taking his own life, Hendron killed three co-workers and injured five others.  Hendron use to work at the plant.  Recently, Hendron was named lead plaintiff in a class action lawsuit filed against ABB because of a dispute over the management of the company's pension fund.  The reason for the shooting remains unknown.

A Review of Courthouse Security:  Las Vegas Review Journal writer Ed Vogel reports that judges throughout Nevada will conduct studies to determine if local and state courthouse security is adequate, and if additional security is necessary.  The security concerns come after Johnny Lee Wicks, 66, opened fire in a U.S. Courthouse in Las Vegas, killing Stan Cooper, 72, and wounding U.S. marshal Richard Gardner, 48.  Supreme Court Chief Justice Ron Parraguirre said, "We have seen what can occur, and we need to be sure we can protect our judges, court staff and citizens."  Federal authorities have already started a nationwide review of federal courthouse security. 

UPDATE - Judges Consider Habeas Beyond Guantanamo:  SCOTUSblog's Lyle Denniston follows up on yesterday's post on al-Maqaleh, et al., v. Gates, et al. (Circuit docket 09-5265), and whether a D.C. Circuit Court panel will rule that Boumediene v. Bush applies to a military prison in Afghanistan.  Denniston reports that two judges "went searching" for a way for terrorism suspects to challenge detention when they are held overseas by the U. S. military, while Deputy U. S. Solicitor General Neal K. Katyal resisted at every turn.  Based on Denniston's report, Katyal's resistance could carry the day.  During argument, the detainees' counsel, Tina M. Foster, argued Boumediene was not limited to Guantanamo because the core issue is whether the government can hold any detainee for years, without any criminal charges, and never have to justify the captivity to a court.  Judges Tatel and Edwards did not appear to agree with this sweeping argument, and Foster's arguments did not appear to sway any judges.  Chief Judge Sentelle plainly told her that if habeas does not apply at Bagram, "you lose."  Mike Scarcella also reports on oral arguments at Blog of Legal Times, reporter Pete Yost covers the arguments for the Associated Press.   

Death Penalty Deters Texas Homicides:  At Sentencing Law and Policy, Doug Berman posts a link to an AP story reporting on a study that says the Texas death penalty deters homicides.  The article, by Michael Gracyzk, reports on a study of death penalty deterrence by researchers from Sam Houston State University and Duke University.  The study concluded that a monthly decline (between 0.5 to 2.5) of homicides in Texas follows each execution.  Criminologist Raymond Teske at Sam Houston in Huntsville and Duke sociologists, Kenneth Land and Hui Zheng, focused on Texas because the number of executions -- 447 since capital punishment resumed in 1982 -- is statistically significant enough "to make possible relatively stable estimates of the homicide response to executions."  Kent blogged on the study back in November, commenting that whatever monthly or "short-term deterrence this study finds is in addition to whatever long-term effect may exist."

Former Bush Lawyer Charged With Attempted Murder:  At Blog of Legal Times, David Ingram reports that John Michael Farren, "a onetime top official in both Bush presidencies," has been accused of attempting to kill his wife, Mary Margaret Farren.  According to the report by Ashby Jones on Wall Street Journal's Law Blog, Farren was arraigned today for last night's attack on his wife in their New Canaan, Connecticut home.  Both report that Mary Margaret Farren is in stable condition. 

Proposition 8 Hearings to be Broadcast on YouTube:  Today, on NRO's Bench Memos, Ed Whalen has a series of posts reporting on San Francisco federal judge Vaughn Walker's approval of a limited form of broadcasting for the Proposition 8 trial.  Whalen's three posts (here, here, and here) explain Whalen's belief that Judge Walker's order "should be overturned forthwith."  

Unrelated, But Fun, Baseball Story:  On Wall Street Journal's Law Blog, Ashby Jones reports that "Philly and NY Lawyers Tie For First in Oddest Bet Competition." 

"Nigerian Indicted in Terrorist Plot": New York Times writer Charlie Savage reports that the indictment of the Nigerian man who attempted to blow up a plane on Christmas day has rekindled the debate over whether terrorism suspects should be treated as criminals or enemy detainees.  In a six-count indictment, a federal grand jury in Michigan charged the man, Umar Farouk Abdulmutallab, with attempted murder on a plane, attempted use of a weapon of mass destruction and related offenses.  In a statement, Attorney General Eric H. Holder Jr. said that Mr. Abdulmutallab could face life in prison.  Christopher S. Bond (R.- Missouri), said on Wednesday that the indictment was a mistake. "We have learned the hard way that trying terrorists in federal court comes at a high price, from losing out on potentially lifesaving intelligence to compromising our sources and methods.  We must treat these terrorists as what they are, not common criminals, but enemy combatants in a war."

Focus for Governor Schwarzenegger Shifts From Prison to Schools: New York Times writer Jennifer Steinhauer reports on Governor Schwarzenegger's proposal to greatly reduce the amount of money California spends on its prisons and funnel that sum to the state's higher education system.  Yesterday, the governor also stated that he would push for a constitutional amendment prohibiting the percentage of the state budget earmarked for prisons from exceeding what is set aside for its public university system.  While the governor provided few details of his plan, much of the prison cost savings he envisions would come through privatizing services or prisons themselves.  Steinhauer writes this will be difficult to pass because the union for corrections officers holds political sway with lawmakers.

Ohio Uses Single Drug Execution for Second Time:  Columbus Dispatch writer James Nash reports on today's execution of a Toledo man.  This is the second man in the U.S. to be put to death using a single drug.  Vernon Smith was pronounced dead after prison staff administered a fatal dose of thiopental sodium, a powerful anesthetic.  Ohio's second use of the one-drug execution method met with much less critical acclaim than their first successful one-drug execution.

Militant Activity Begins Again for Former Gitmo Detainees:  LA Times writers Julian E. Barnes and Christi Parsons report that a report from the Pentagon states that one-fifth of the detainees who have been released from the U.S. military prison at Guantanamo Bay, Cuba, have resumed extremist activity.  The report follows the announcement by the Obama administration that it would halt Guantanamo transfers to Yemen.  Republicans are pushing for a more expanisive moratorium, in particular, demanding that the U.S. stop sending detainees to Saudi Arabia.  Charles Stimson, a scholar at the Heritage Foundation, criticized the Pentagon's report saying, "I have every reason to believe it is a very conservative [estimate] and the actual number is substantially higher than 20%."

Handling of Abdulmutallab:  Today's Wall Street Journal features an opinion piece by former US Attorney General Michael B. Mukasey criticizing the administration's reaction to the bombing attempt on Northwest Airlines flight 253.  Mukasey believes that the President fell short when he acknowledged that the plot had been hatched in Yemen, but then added "the misleading statement that Yemen faces 'crushing poverty and deadly insurgencies.'" For Mukasey "crushing poverty" is irrelevant because, as millionaire Osama bin Laden has shown, poverty does not beget terrorists.  The former Attorney General also writes that "[h]olding Abdulmutallab for a time in military custody...would have been entirely lawful" because the current administration will hold dangerous detainees for even a lengthy period in the U.S.  Mukasey closes his argument, stating there is much to worry about if the administration thinks that the principle challenge of the day is detecting bombs at the airport.  He believes the administration should be actively searching out, finding and neutralizing terrorists before they get there.

Following up on yesterday's post about the Ninth Circuit's decision to let murderers vote, even while still in prison, here is more coverage: Bob Egelko in the SF Chron; Jonathan Martin in the Seattle Times; Doug Berman at SL&P; Rick Hasen at Election Law blog, twice.

Egelko and Martin quote state officials (SecState and AG, respectively) saying they will appeal further. Berman agrees with me that the case is certworthy for SCOTUS if the Ninth doesn't reverse it en banc. Hasen is "not so sure. The Court turned down the earlier cert. petition in this case, as well as cases raising the same issue from other circuits." Yes, but this is now a final judgment, and there is now a much sharper circuit split. See pp. 125-126 of the slip opinion. Those are big differences for certiorari.

I think the chances of correction en banc are very good, though. Dissenting Judge McKeown, a relatively moderate Clinton appointee, is much closer to the Ninth's ideological center of gravity than the two in the panel majority. If the case is taken up in the Ninth's unique "limited en banc" procedure, now-Chief Judge Kozinski, who dissented from denial of en banc last time, is now guaranteed a seat on the 11-judge panel, with the other 10 chosen at random.

If the Ninth en banc does overturn the panel and affirm the district court, that would leave the prisoners with a certiorari petition to SCOTUS with no circuit split -- a longshot, to put it mildly.

Update (Wednesday 9:20 PDT): Apparently Wash. AG McKenna has decided to skip the rehearing en banc petition and go straight to SCOTUS. Jonathan Martin has this updated story in the Seattle Times:

Washington state will appeal to the U.S. Supreme Court in an attempt to overturn a surprising federal court ruling that tossed out the state's 120-year-old prohibition against voting by incarcerated felons, Attorney General Rob McKenna said today.

Not the way I would have done it.

It amazes me how people in high places so often crash and burn doing such petty things. Ben Nuckols reports for AP from Baltimore:

Mayor Sheila Dixon agreed to resign Wednesday as part of a deal with prosecutors, ending a three-year tenure that began with promise but unraveled amid embarrassing allegations that she stole from the poor.

Dixon, 56, was convicted last month of misappropriating about $500 in gift cards donated to the city for distribution to needy families during her time as City Council president. Had she not agreed to step down, she could have been thrown out of office.

Aside from the dishonesty and meanness of stealing from the poor, why would anyone who worked long and hard to reach a high position in a major city risk it for a mere $500?

Does Boumediene v. Bush Apply in Afghanistan?  According to SCOTUSblog writer Lyle Denniston, it could,if three judges on a D.C. Circuit Court panel agree with the petitioners in Al-Maqaleh v. Gates (Circuit docket 09-5265).  In his post, Denniston writes that tomorrow morning the D.C. Circuit Court panel will hear oral arguments on whether the ruling in Boumediene v. Bush can apply to detentions at a U. S. military prison in Afghanistan, to test ongoing detention there.  The petitioners, Fadi Al-Maqaleh, Amin Al-Bakri, and Redha Al-Najar, all contend that they are not enemy combatants and seek to challenge their continued detention through habeas cases in a U. S. District Court in Washington.  A federal judge has ruled that those cases may go ahead.  Denniston writes that appeal in U. S. District Court has been blocked while the Circuit Court hears a government appeal from a ruling in their favor last April.  The Obama Administration argues in its opening brief that this case is different from Boumediene because the case deals with claimed rights of detainees who are being held in the midst of an "active war zone" far from U. S. shores.  At Politico, Josh Gernstein also comments on the case and the "curious" fact that Principal Deputy Solicitor General Neal Katyal will be arguing for the Administration.  Neal Katyal is the same man that successfully argued in Hamdan v. Rumsfeld that the military commissions set up by the Bush Administration violated federal law and the Geneva Conventions.

Three Executions Scheduled for Early 2010:  Doug Berman reports on his blog -- Sentencing Law and Policy that three defendants are scheduled to be executed in three different states on Thursday, January 7.  According to the Death Penalty Information Center's website, Abdullah Sharif Kaazim Mahdi is scheduled for execution in Ohio, Gerald Bordelon has volunteered for execution in Louisiana, and Kenneth Mosley will be executed in Texas.  Berman writes that there is "a good chance that none of the executions will be stayed."

Manuel Noriega's Supreme Court Appeal Raises MCA Issues:  At Volokh Conspiracy, John Elwood writes that among the cases that the Supreme Court has re-listed for consideration at private conference, none has been re-listed more often than Manuel Noriega v. Pastrana (09-35).  In his post, Elwood speculates that the former Panamanian general's appeal may have been re-listed "a whopping eight times" because it raises the issue of whether §5(a) of the Military Commissions Act prohibits Noriega from invoking the Third Geneva Convention in any habeas petition.  Noriega is appealing the Eleventh Circuit's decision that "[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action," and Elwood believes that the Supreme Court's delay could be because a Justice is writing a dissent from denial of certiorari.  It could also be because someone is writing a concurrence in a denial of certiorari, "and the concurrence and dissent are busy trading barbs."  If this is true, it will be interesting to see what each Justice has to say about the applicability of §5(a) to "enemy combatants" and P.O.W's like Noriega.  
 

New California Lethal Injection Procedure:  LA Times writer Carol J. Williams reports on California's proposed new lethal injection procedure.  This would allow California to resume executions after a four-year moratorium.  The proposals involve only minor changes to the three-drug method, but the revisions appear to address the concerns of a federal judge who deemed the previous lethal injection practices unconstitutional for their risk of inflicting cruel and unusual punishment.  Experts predict that the legal reviews will take months, but that executions could resume as soon as this year if the changes put to rest the judges' concerns.

Supreme Court Petitions to Watch:  Today, SCOTUSblog's Erin Miller posted an "extra-long edition" of its "Petitions to Watch," featuring cases up for consideration at the Justices' private conference on January 8.  As the opening of Erin's post indicates, there are quite a few cases up for consideration this Friday.  Some interesting criminal cases include Alameida v. Phelps (09-519), addressing whether Federal Rule 60(b) can be used to circumvent the successive petition rule when a habeas corpus petition was denied on a procedural basis.  The Ninth Circuit's opinion, written by Judge Reinhardt, overturned a 1998 district court ruling that Phelps had filed his federal habeas petition 15 days late under 28 U.S.C. §2244.  He reasoned that a 2001 ruling had changed the way the Ninth Circuit interpreted California's habeas law, and could be considered an "extraordinary circumstance" under Federal Rule 60(b) that would justify reopening Phelps' petition.  Also up for review is the Eighth Circuit's decision to affirm a grant of habeas to a man convicted of sexually assaulting his three-year-old nephew.  In Carlson v. Bobadilla (09-560) the Eighth Circuit found that Carlson's Sixth Amendment Confrontation Clause rights were violated by a statement made by an abused child to a child-protection worker was allowed at trial.  The Minnesota Attorney General is arguing that the Eighth Circuit exceeded its authority under AEDPA.

Restitution for Child Pornography Victims:  At Sentencing Law and Policy and Volokh Conspiracy, Doug Berman and Paul Cassell discuss a district court's order chastising prosecutors for failing to pursue restitution for victims in his district.  Berman's post links to a Minneapolis-St.Paul's Star Tribune article by James Walsh discussing the order.  Walsh reports that U. S. District Judge Patrick Schiltz "demand[ed] to know why restitution was not even requested by the U. S. attorney's office in the case of a Minnesota man who pleaded guilty to possession of child pornography."  Cassell's post links to Judge Schiltz's order and comments that restitution in child pornography cases "is an interesting and important [issue] that seems destined to ultimately go to the U.S. Supreme Court."

State Legislatures Tackle Sexting:  Corey Rayburn Yung writes on his blog Sex Crimes that "[w]ith the popularity of shows like Gossip Girl and 90210 among teens, the practice of sexting will spread," and state legislatures will have to "create laws that will balance out the desire to protect children from being sexually exploited and the desire to protect children from life changing consequences from the mistakes of youth."  Yung reports that states like Florida, Ohio, Pennsylvania and Vermont have been addressing sexting in various ways.  For example, Vermont has decriminalized sexting for teenagers, while Florida charges teens with child pornography when they send or post pictures of themselves.

No More Detainee Transfers to Yemen:  At Blog of Legal Times, David Ingram reports that after a request by Senator Jeff Sessions (R-Ala.), Attorney General Eric Holder and President Obama have decided to indefinitely suspend transfer of Guantanamo Bay detainees to Yemen. Senator Sessions had requested that the administration stop the transfer of Guantanamo Bay detainees to an anti-terrorism program in Saudi Arabia.  The program reportedly tries to turn former detainees away from terrorism.  Ingram reports that today, President Obama said he would no longer allow transfer to Yemen, but otherwise the Department of Justice is standing by current policy.  On Bloomberg.com John McCormick also covers the President's decision.     

The Ninth Circus has lived up to its reputation yet again, holding "that the discriminatory impact of Washington's felon disenfranchisement is attributable to racial discrimination in Washington's criminal justice system; thus, that Washington's felon disenfranchisement law violates § 2 of the" Voting Rights Act. The dissent notes that the other circuits to address this issue have held unanimously to the contrary. The 2-1 opinion in Farrakhan v. Gregoire is here. The panel majority consists of two of the most notorious judges in the entire federal judiciary, Stephen Reinhardt and A. Wallace Tashima. Judge Margaret McKeown dissented.

If this misstep is not corrected by the Ninth en banc (which is notoriously parsimonious about correcting boneheaded panel decisions), it is a slam-dunk for Supreme Court review.

Iowa County Settles in Case:  LA Times writer David G. Savage reports that on Monday, the Supreme Court case, Pottawattamie v. McGhee, testing whether a prosecutor can be sued for framing suspects in a murder trial, settled with the Iowa county agreeing to pay $12 million to two men who were freed after spending 26 years in prison.  In the past, the high court has said prosecutors could not be sued for doing their jobs, even if they sometimes convicted the wrong defendant.  And in November, an Obama administration lawyer argued on behalf of Pottawattamie County, asserting that there is no constitutional "right not to be framed." However, several justices found this claim upsetting, signaling they were not prepared to shield prosecutors who knowingly fabricated a case against a suspect.  Yesterday's Blog Scan links to Lyle Denniston's coverage of the case.

DNA Matches Inmate to Utah Child's Murder:  The Associated Press reports on the capital murder charge filed by Salt Lake Country prosecutors against Idaho prison inmate, Matthew John Breck, saying that DNA evidence has linked him to the 1998 stabbing death of a 10-year-old Utah girl.  Breck has been charged with one count each of aggravated murder, aggravated sexual abuse of a child and intentionally inflicting serious physical harm on a child.  If convicted, Breck could face the death penalty.  Breck is currently serving five to twelve and a half years in Idaho for his 2001 conviction on charges of sodomy/lewdness of a minor under 16.

Heather MacDonald of the Manhattan Institute has this op-ed, with the above headline, in the WSJ.

The recession of 2008-09 has undercut one of the most destructive social theories that came out of the 1960s: the idea that the root cause of crime lies in income inequality and social injustice. As the economy started shedding jobs in 2008, criminologists and pundits predicted that crime would shoot up, since poverty, as the "root causes" theory holds, begets criminals. Instead, the opposite happened. Over seven million lost jobs later, crime has plummeted to its lowest level since the early 1960s. The consequences of this drop for how we think about social order are significant.

*                                *                              *

The recession crime free fall continues a trend of declining national crime rates that began in the 1990s, during a very different economy. The causes of that long-term drop are hotly disputed, but an increase in the number of people incarcerated had a large effect on crime in the last decade and continues to affect crime rates today, however much anti-incarceration activists deny it. The number of state and federal prisoners grew fivefold between 1977 and 2008, from 300,000 to 1.6 million.

*                                *                              *

The spread of data-driven policing has also contributed to the 2000s' crime drop. At the start of the recession, the two police chiefs who confidently announced that their cities' crime rates would remain recession-proof were Los Angeles Police Chief William Bratton and New York Police Commissioner Ray Kelly. As New York Police Commissioner in the mid-1990s, Mr. Bratton pioneered the intensive use of crime data to determine policing strategies and to hold precinct commanders accountable--a process known as Compstat. Commissioner Kelly has continued Mr. Bratton's revolutionary policies, leading to New York's stunning 16-year 77% crime drop. The two police leaders were true to their word. In 2009, the city of L.A. saw a 17% drop in homicides, an 8% drop in property crimes, and a 10% drop in violent crimes. In New York, homicides fell 19%, to their lowest level since reliable records were first kept in 1963.

From the Daily Mail comes word that France will criminalize psychological violence that occurs within adult domestic relations:

The law is particularly aimed at protecting women who currently suffer the worst attacks of this kind, ranging from off-hand comments about their appearance to threats of physical violence.

Mr Fillon said: 'It's an important step forward as the creation of this offence will allow us to deal with the most insidious situations - situations that leave no visible scars, but which leave victims torn up inside.'

He added that his government would also be experimenting with electronic surveillance measures to 'monitor the effectiveness of restraining orders against a violent spouse'.

Psychologist Anne Giraud said: 'Squabbling couples will allege all kinds of things about each other, but they won't necessarily be true.

'The police are likely to be called out more and more when this law comes into force this year, but often it will be a case of one person's word against the other.

Low Violent Crime Rate Does Not Allow Us to Become Complacent:  Over the weekend Doug Berman posted a link to a Washington Post editorial, "Why are violent crime rates falling?", on his website Sentencing Law and Policy.  Berman quotes the piece "at great length" and compliments the editorial board for providing "the proper context and critical questions for considering crime and punishment policies as we head into a new decade."  Berman and the Washington Post both believe that the time has come to devote some energy to researching why violent crime decreased during the first 10 years of the 21st century. Neither the Post, nor Berman, can point to a specific reason for the decrease, but both believe tougher sentencing took some of the criminals off of the streets.  Berman also warns that now is not the time to become complacent in light of our modern success.

More Attacks on Federal Judges and Prosecutors...  At Blog of Legal Times, Mike Scarcella reports on a Justice Department report that found that threats and inappropriate communications to federal judges, U. S. Attorneys and Assistant U. S. Attorneys have increased from 592 in fiscal year 2003 to 1,278 in fiscal 2008.  The report also found that although threats continue, judges and prosecutors do not consistently and promptly report threats.  This hinders the ability of the U. S. Marshals Service to investigate and protect them.  The report comes amid news that a court security officer was killed and a deputy U. S. marshal was wounded today in a shooting at the federal courthouse in downtown Las Vegas. The shooter reportedly died shortly after being taken into custody.

Yet Federal Courts "Operating Soundly:"  Ashby Jones writes on Wall Street Journal's Law Blog that on New Years Eve, Chief Justice Roberts issued a traditional end of the year report, proclaiming, "[t]he courts are operating soundly, and the nation's dedicated federal judges are conscientiously discharging their duties."  Jones reports that instead of calling for judicial pay raises, like he did last year, the Chief Justice noted 2009's economic downturn, reporting that "filings of cases involving consumer credit, such as those filed under the Fair Credit Reporting Act, increased 53% (up 2,143 cases)..."  On Blog of the Legal Times, Tony Mauro wonders if Chief Justice Roberts' decision to focus on statistics was "A Missed Opportunity".  Mauro writes that today there was "some grumbling" that Roberts' report missed the opportunity to educate the public about the number of federal vacancies in the judicial branch, and should have highlighted improvements that could be made in courtroom security.   

Supreme Court Announces March Schedule:  At SCOTUSblog, Lyle Denniston posts that the Supreme Court has announced its schedule for oral arguments beginning March 22, 2010.  The Court will hear oral argument in the detainee case, Kiyemba v. Obama (08-1234) on Tuesday, March 23, and will review a state prisoner's right to challenge new sentence in federal habeas after winning a new sentencing in Magwood v. Culliver (09-158) on Wednesday, March 24.  The Court has scheduled several criminal cases for the following week.  It will hear Renico v. Lett (09-338) on Monday, March 29, Dillon v. U. S. (09-6338) and Barber v. Thomas (09-5201) on Tuesday, March 30, and Robertson v. U. S. ex rel. Watson (08-6261) on Wednesday, March 31.  Tom Goldstein wrote a helpful "Criminal Law Docket in Plain English" post over the holiday weekend to provide some background on the cases being argued in the Court this term. 

Prosecutor Immunity Case Settled: Lyle Denniston at SCOTUSblog reports that the parties to the prosecutor immunity case before the Supreme Court, Pottawattamie County v. McGhee, have requested dismissal under Rule 4.

Is Kyllo Still Good Law? Orin Kerr at VC has this post asking whether technology has already overtaken the Supreme Court's decision in the thermal imaging case decided just nine years ago, Kyllo v. United States, 533 U.S. 27 (2001).

As noted here last October, the American Law Institute adopted a compromise on the death penalty, rejecting the calls for it to take a stance in opposition but also withdrawing the obsolete Model Penal Code section on the subject. The usual suspects are predictably spinning the ALI action as a defeat for the death penalty. Adam Liptak has this story today in the NYT featuring Franklin Zimring saying what you would expect him to say and quoting the post linked above for the contrary view.

Doug Berman has this post at SL&P.

9/11 Judgment Affirmed: The Fourth Circuit today upheld the conviction and sentence of the "20th hijacker," Zacarias Moussaoui. AP story here. Opinion here.

Fighting Crime With Technology and Strategy: Baltimore Sun writer Justin Fenton reports that London may influence the use of the closed-circuit television cameras (CCTV) in Baltimore.  Baltimore put up a CCTV system five years ago, and the city claims success, but some believe that the way the city implements the system is ineffective.  London officials have advised the city that it could improve the CCTV.  Rob McAlister, the Westminster city coordination manager, says that "It's not the CCTV that makes the crime go.  Without an overall plan, what you end up with is very expensive recording equipment."  In Baltimore the cameras were put in areas with high crime rates.  This pushed crime to different areas where cameras are not located.  City officials admit that they are not using the cameras to their full potential and are looking to places like London, Jerusalem, and Chicago to see how that full potential can be reached.   

Virginia Likely to Change Death Penalty:  Associated Press writer Dena Potter reports that there could be changes in Virginia's death penalty laws with the change of administration.  A similar article was on our News Scan Dec 11.   

Improving the Handling of Runaway Cases:  New York Times writer Ian Urbina reports that state and federal lawmakers are examining the way runaway cases are handled and how improvements can be made.  In recent months, at least 10 states have proposed or passed bills that focus on runaways and the way their cases are treated.  Federal law requires police to enter a missing persons report into the National Crime Information Center with in two hours of receiving them.  But this is not always done.  NY Representative Carolyn Maloney and NJ Representative Christopher H. Smith are proposing a law that will require law enforcement comply with the law and enter a runaways into the system during the allotted time frame.  Maloney is outraged by the failures of the reporting system and says, "It's absolutely inappropriate that many runaway children are missing not only from their homes, but also from the very database meant to help law enforcement officers find them."

Justice Scalia's Dislike of the Word Choate:  New York Times writer Ben Zimmer reports on Justice Anthony Scalia's dislike of the word choate.  Scalia has twice scolded lawyers for using the word.  The first time was in December 1992 during oral arguments for I.R.S. v. McDermott, saying "You know that there is no such word as choate."  The second time occurred last November when Randolph Barnhouse used the word during his oral argument.  Again, Justice Scalia reminded the Court of his dislike of the word by stating "there is no such adjective.  I know we have used it, but there is no such adjective as choate."  The misuse of the word choate came about because people mistakenly believed that the "in-" of inchoate was a negative prefix.  The word is still a fixture in property law and found in many dictionaries.

Fighting Gangs with Injunctions:  San Francisco Chronicle writer Demian Bulwa reports that Oakland plans to tame street gangs with civil gang injunctions.  With 116 killings in 2008, Oakland has the state's highest per capita homicide rates.  Deputy City Attorney Rocio Fierro says that gang injunctions are a way for cities to hold criminals accountable.  California has been using gang injunctions since the 1980s.  In 1997, the Supreme Court upheld their use.  Opponents of gang injunctions say that they are unfair and ineffective.  Proponents believe that injunctions will help gang plagued areas.  Community leader Bob Jackson, says, "They're not so notorious and bad when they're by themselves.  I would rather try something like that rather than continue the way we're going right now."