Before I leave though, I wanted to thank all of our readers for your faithful readership and your comments. I have truly enjoyed blogging with (and for) each of you.
It is our responsibility under the Constitution to ensure that no criminal defendant--whether a citizen or not--is left to the "mercies of incompetent counsel." Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.Criminal law practitioners, both prosecution and defense, are going to have to learn some immigration law, if they haven't already.
Must a prosecutor request that an out-of-state sexual assault victim, who does not wish to return to California and testify, be taken into custody under the Uniform Act to Secure Attendance of Witnesses from without the State in Criminal Cases (Pen. Code, § 1334 et seq.) in order to demonstrate the due diligence required to satisfy the finding of unavailability under Evidence Code section 240 that would permit the victim's preliminary hearing testimony to be admitted into evidence at trial?
Professor Liu's paper demonstrates beyond serious question that his views on criminal law, capital punishment, and the role of the federal courts in second-guessing state decisions are fully aligned with the judges who have made the Ninth Circuit the extreme outlier that it presently is. We urge the Judiciary Committee and the full Senate to reject this nomination.Prior posts on this topic are:
On federal habeas review of a claim pursuant to Batson v. Kentucky..., did the Ninth Circuit fail to comply with the deferential standard of review required by 28 U.S.C. § 2254 when it disregarded the trial court's factual finding that the prosecutor's reasons for exercising peremptory challenges were genuine, in favor of its own de novo comparative juror analysis?
"Every time a killer is sentenced to die, a school closes."
That is the title of a new piece on Doug Berman's Sentencing Law and Policy. As Doug notes, it's also the first sentence in what he calls this effective FoxNews article, which is headlined, "Just or Not, Cost of Death Penalty Is a Killer for State Budgets."
Having massively lost the battle for public opinion about whether the death penalty is just, and seeking to exploit well-grounded anxiety about excessive government debt, abolitionists are now focusing on capital punishment's expense. Omitting to mention that their own efforts are largely responsible for said expense, they claim that paying for death penalty litigation is driving state budgets to ruin. State budgets are in deep trouble, for sure, but it has almost nothing to do with the death penalty. The major cause by far is the uncontrolled growth of social spending.
But that is a question for another forum. More to the point for the present assault on the death penalty, I did a few minutes' research on the proposition the abolitionists are pushing. Is it true that every time a killer is sentenced to die, a school closes?
As you will not be surprised to learn if you followed abolitionist mendacity about the (not) innocent Roger Keith Coleman, their current claim is -- well, how should I put it? -- an outright lie.
Six weeks ago, I wrote a post titled, "Why We Have the Death Penalty." The underlying story, passed on to me by commenter federalist, concerned an unimaginably cruel and sadistic murder of a mentally impaired, and therefore overly trusting, young woman named Jenny Daugherty.
Today I was browsing the news sites, as I sometimes do, and found the following story, which could be titled, "Why Britain Should Bring Back the Death Penalty and Will Soon Enough."
The story is about the murder of a young person. I would say that it is horrible beyond belief, but unfortunately the capacity to believe that such things can and do happen is the price of growing up.
The story is not for the faint of heart. I ask you to think twice before reading it. For those with the stomach, it follows the break.
Doug Berman at Sentencing Law and Policy posts about an interview the Dallas Morning News had with abolitionist law professor Mark Osler of Baylor University. Professor Osler last year published a book, Jesus on Death Row, summarizing his reflections on a mock trial he organized to see how Jesus would fare in the Lone Star state.
Against my better judgment, I read the interview.
1. The title of the interview is, "What if Jesus had been tried under Texas law?" Of course the answer is easy: He would have not have been given the death penalty, since Texas law provides capital punishment only for murder, and Jesus was not charged with murder.
Thus one need read no further than the title to understand just how deceptive and biased Osler's presentation is. The premise is that, under Texas law, Jesus could wind up on death row. The suggestion beneath the premise is: "How could we be so awful as to even think about executing the Son of God??!!" But the whole thing is a fraud, from the first word on.
2. One of the commenters on the Morning News blog raised that obvious point. The response was that this was a thought experiment, and the reader should just imagine that Jesus was on death row. I found this a wonderfully concrete illustration of how abolitionists insist on disconnecting an inmate's being on death row from the behavior -- namely some grisly murder or murders -- that put him there.
This is an almost comic reflection of the fantasy that we routinely execute the innocent. The theory behind this fantasy -- if it can be called a "theory" -- is that people show up on death row by magic.
3. Professor Osler repeats the false and insulting bromide that retentionists are moved by anger, while abolitionists are moved by humanity and a higher wisdom.
I wonder what it feels like to regard one's self as so superior.
It's natural, I suppose, to feel anger toward cruelty and and sadism, but that is not what lies behind retentionism. What lies behind it is principally the view that a prison sentence, no matter its length, is not justice for such crimes as drawn out child rape and murder, or calculated mass murder such as McVeigh's. For many, the deterrent value of the death penalty, and its consequent saving of many innocent lives, is also a strong reason.
To belittle retentionists as foot-stomping children is arrogant and mendacious, and abolitionists know it. Will they ever stop?
CBS News carries this potentially ominous story:
Rep. Darrell Issa, the top Republican on the House Oversight committee, told CBS News Wednesday that he will call for a special prosecutor to investigate the White House if it does not address Rep. Joe Sestak's claim that he was offered a federal job in exchange for dropping out of the Pennsylvania Senate primary....
The California Republican has been pushing for the White House to provide details of conversations between Sestak and administration officials in the wake of Sestak's comment during a radio interview last month that he was offered a high-ranking administration job in exchange for dropping his primary challenge against Sen. Arlen Specter.
Asked if that job was secretary of the Navy, Sestak declined to comment. His press secretary told CBS News that the lawmaker stands by his original statement that he was offered the job in exchange for an administration post. Sestak did not drop out of the race....
The White House did not respond to Issa's letter by its March 18 deadline. Reporters have asked White House press secretary Robert Gibbs about the inquiry on six occasions.
On February 23rd, Gibbs said he had not looked into the matter. On March 1st, he said he had not made any progress on it. On March 9th, he said he did not have an update with him. On March 11th, he said he did not have anything additional on the matter. On March 12th, he said he did not have any more information on it.
On March 16th, Gibbs finally addressed the situation.
The truth is that we should not fear the appointment of brilliant and conscientious lawyers like Goodwin Liu, whether those nominees tare on the ideological left or right. Instead, we should encourage them to take these critical appointments. There is a vibrant disagreement in the courts over how to interpret the Constitution, with no consensus on the correct answer. The jurists participating in that debate are not outside of the "mainstream." Nor is Goodwin Liu.However, there is an elephant in the living room that Tom does not address. Exactly the opposite position was taken before the Senate Judiciary Committee four years ago by none other than Goodwin Liu.
The attorney general's office and [local prosecutor] Joyce are seeking to have the material tested, although the defense is reported to be objecting. Clemons' lawyer has not responded to request for comment, and has not yet filed his position with the court.
Stephen Hawke, an assistant attorney general, wrote in the motion: "Looking around the country, claims of untested DNA material are commonly used by capital offenders in an attempt to obtain a stay of execution." He continued, "Ordering testing to proceed should preempt petitioner's ability to claim an entitlement to a stay of execution."
The kiddie porn defense bar tells us that obscenity law threatens the First Amendment. Thus, it would seem, we're all in danger of being muzzled unless we give a pass to people who want to sell pictures of children being forced into sexual encounters with animals.
I have yet, however, to hear any member of the civil liberties industry rise up against the actual attack on free speech that happened yesterday at the University of Ottawa. Here's how the MSNBC story starts:
Coulter speech canceled after protesters' threats
Ottawa University talk off amid fears for safety of right-wing pundit
Ann Coulter supports resolute law enforcement and the death penalty. She has other strident and controversial views on social issues, and I am neither endorsing nor denouncing them here. That's not what this post is about. It's about the censorship-by-intimidation practices that some on the Left undertake when they shed the civil liberties tutu and don the Political Correctness police mufti that fits them so much better.
A question: When will others of us who support the death penalty in academic debates be accused of racist "hate speech" and threatened with getting beaten up? Or, as happend to Ms. Coulter, also threatened -- by university officials, no less -- with criminal prosecution?
What happens when Gitmo detainees are released? Those enraptured with process over consequences will tell you that "the finest traditions of American law have been honored."
Here's what they don't tell you (courtesy of Fox News):
A former Guantanamo detainee transferred from the detention facility to Afghanistan on Dec. 19, 2009, has already returned to the Taliban's ranks, according to multiple intelligence officials contacted by the Long War Journal. The former detainee was identified in documents produced at Guantanamo as Abdul Hafiz (as well as an alternative name, Abdul Qawi) and given an internment serial number of 1030.
During the more than six years he was held at Guantanamo, Hafiz was repeatedly identified as "a suspect in the murder of an International Red Cross worker in Afghanistan." Memos produced at Guantanamo also alleged that Hafiz participated in the jihad against the Soviets, ran madrassas and recruited young men to fight for the Taliban, was "responsible for maintaining contacts with Mullah Mohammed Omar," and fought in a 40-man militia comprised of fighters from the Taliban and Gulbuddin Hekmatyar's insurgency group. [For a profile of Hafiz, see LWJ report: "Gitmo detainee implicated in Red Cross murder transferred to Afghanistan."]
Despite the fact that Hafiz was implicated in the murder of an ICRC worker, and alleged to have substantial ties to senior Taliban officials, he was transferred to Afghanistan. Shortly thereafter, Hafiz rejoined the Taliban.
More than 25,000 people are confined in solitary confinement in the United States. An additional 50,000 to 80,000 are kept in restrictive segregation units, many of them in isolation.But where do those numbers come from? And how accurately do they portray the issue? A cursory search reveals many sources cite to an article by Atul Gawande in the New Yorker. But that article really doesn't offer much in terms of hard numbers. As a former prison psychologist, I've thought quite a bit about the use of solitary confinement, the prevalence of its use, and the various policy arguments for and against its practice. What has always struck me about the debate is how little empirical data we truly have about this issue.
The purpose of the work, Kiehl says, is to eliminate the stigma against psychopaths and find them treatments so they can stop committing crimes. But Dugan's lawyers saw another purpose. During sentencing for capital crimes, the defence may present just about anything as a mitigating factor, from accounts of the defendant being abused as a child to evidence of extreme emotional disturbance.
In 1996, California passed the Compassionate Use Act, which legalized the use, in that state, of what is called "medical marijuana." This was notwithstanding the fact that the active ingredient in marijuana, THC, was (and is) available through prescription in the drug Marinol. You don't need to be growing pot in your backyard if, in truth, you are one of the few people who needs THC for pain relief. You can go to a normal doctor and get Marinol.
Given this fact, and the recreational pot culture in which the campaign for "medical" marijuana actually takes root, the cynical among us are tempted to think that the real agenda of the "medical" marijuana movement has less to do with "compassionate use" than with get-high use. To their credit, some in the legalizer camp will acknowldge this fairly straightforwardly.
One of the problems with "medical" marijuana, apart from the fact that it's used as a front, is that it is not going to change the fact that drugs and crime are inevitably mixed up with one another. This is true even with the less dangerous drugs. (That it is true with the more dangerous ones, like methamphetamine, hardly needs argument).
Hence today's AP story, titled, "Medical marijuana a target for criminals: Washington state shootout brings attention to risk to growers." It begins:
Patients, growers and clinics in some of the 14 states that allow medical marijuana are falling victim to robberies, home invasions, shootings and even murders at the hands of pot thieves.
There have been dozens of cases in recent months alone. The issue received more attention this week after a prominent medical marijuana activist in Washington state nearly killed a robber in a shootout -- the eighth time thieves had targeted his pot-growing operation.
I ended my career at the Justice Department as a political appointee under the Bush administration. Before then, I had been an Assistant US Attorney under administrations of both parties.
In my roles both as career prosecutor and political appointee, I took it for granted, and my colleagues took it for granted, that we were part of the government, not part of a campaign. If I had made partisan points to the press, I would have expected to get the axe, and I would have given the axe to any subordinate who similarly failed to understand the difference between governance and politics. This understanding is crucial throughout the executive branch, but nowhere is it more imperative than in the Justice Department. The idea, much less the reality, that partisanship guides the agency responsible for law enforcement is appalling. It stains a legacy generations worked to build. And its implications for freedom are frightening.
My how times have changed. From the Attorney General on down, the message now is that it's OK to bash the opposing party, and to do so in terms that implicity question the opposition's patriotism.
Fifty years ago, this had a name. The name was "McCarthyism."
In his address to Congress on September 20, 2001, President Bush promised the American people, "Whether we bring our enemies to justice or bring justice to our enemies, justice will be done."
Some important justice was brought to our enemies last week, as we found out moments ago. It didn't involve an indictment, Miranda warnings, the appointment of counsel, haggling over venue, and that sort of thing. It may outrage those who put an Alice-in-Wonderland version of due process ahead of winning the war that has been thrust upon us. If so, so much the better.
The Wall Street Journal reports this afternoon:
An unmanned drone strike last week in Pakistan apparently killed a top al Qaeda trainer who helped supervise December's suicide bombing at a Central Intelligence Agency post in Afghanistan, U.S. officials say. The strike on a suspected bomb-making facility in Miram Shah killed as many as 15 people, including Sadam Hussein Al Hussami, also known as Ghazwan Al-Yemeni, according to people familiar with the strike. The Obama administration doesn't comment on such attacks.
Congratulations and thanks to our military and intelligence forces. In one day, they brought about more real justice than the civil libertarian furrowed brow has brought about in ten years.
The official engrossed copies are prepared by staff in the Office of the Clerk of the House (under the supervision of the House Oversight Committee) and the Office of the Secretary of the Senate. The signature of the clerk or the secretary attests to the passage of the measure and certifies the accuracy of the engrossed text.... An enrolled bill is the final version of a measure agreed to by both chambers. Enrolled bills are printed on parchment and then signed first by the Speaker of the House and secondly by the President of the Senate, or the formally designated Senate presiding officer.
Whoever, being a public officer or other person authorized by any law of the United States to make or give a certificate or other writing, knowingly makes and delivers as true such a certificate or writing, containing any statement which he knows to be false, in a case where the punishment thereof is not elsewhere expressly provided by law, shall be fined under this title or imprisoned not more than one year, or both.
The fraudulent and vile release of the Lockerbie bomber on grounds of "compassion" has reminded me of the need to update the Dictionary. So here are a few more entries, starting off with today's star.
Compassion - the view that every criminal deserves a break, whether he does or not.
Urban Survival Syndrome - the violence-happy mindset formerly known as "thuggishness."
Business Misjudgment - a gargantuan swindle, a la' Bernie Madoff or Enron, but it wasn't about greed or lying or anything like that, it was just a bad guess about the business climate. Defense lawyers actually say this. Honest.
Sub-prime Mortgage - a homeloan to a person who can't afford a home but who, in order to get one, is willing to lie, often flagrantly, about his income, assets and debt. Such people are now regarded as "victims" of "predatory lenders," meaning that they dealt with banks even more dishonest and greedy than they were.
Advocates of sober sentencing are often scolded for their lack of "compassion." Those of us who hear this again and again have come to understand what "compassion" actually means: A Get-Out-Of-Jail (or Never-Go-To-Jail) card for strong-arms, thugs and swindlers.
The plea -- or, more frequently, the surly demand -- for compassion is typically accompanied by a claim that the criminal is himself a victim. The usual sources of victim status have become legion -- the abusive father (from 30 years ago), poor education, previously undiscovered brain lesions, or, famously, excess consumption of twinkies. The supply is limited only by defense counsel's imagination, which is to say it has no limit.
One of the most genuinely appealing entreaties for compassion is that the criminal is terminally ill. Something like that is hard to fake.
On the other hand, "hard" doesn't mean "impossible." Hence today's tidbit from far-away Libya, via Lockerbie, Scotland.
In all, Addiction should be required reading for anyone who treats patients, researches addiction, or devises policy surrounding drug-related crime. All should benefit deeply from Heyman's key idea: "that the idea [of] addiction [as] a disease has been based on a limited view of voluntary behavior." Moreover, the fact that the biological basis does not prevent drug use from coming under the influence of costs and benefits has implications for society. "[A]ccording to Western legal traditions," he writes, "individuals are usually held responsible for those activities that are susceptible to the influence of their consequences and, conversely, individuals are not responsible for those activities that vary little or not at all as a function of consequences." Willie Sutton, Heyman reminds us, had alternatives to bank robbery; Patty Hearst not so much. The law did not treat them the same way. Accordingly, society should make distinctions between those suffering conventional brain diseases like Alzheimer's and multiple sclerosis and the disorder of addiction.
Recently I discussed the revelation that DOJ has brought on board seven lawyers who previously represented accused members of al Qaeda.
I was in error. It wasn't seven. It was eight. The eighth has a really nice office, in that he is the Attorney General.
It has now come out that Eric Holder worked on an amicus brief in the Padilla case. As Powerline reports,
The Justice Department has admitted that Eric Holder failed to tell Congress during his confirmation process that he had contributed to a legal brief which argued that the President lacks authority to hold Jose Padilla, a U.S citizen declared an "enemy combatant," indefinitely without charge. The Justice Department has also acknowledged what is obvious -- that "the brief should have been disclosed as part of the confirmation process."
DOJ contends that the failure to disclose was not intentional. It says that "In preparing thousands of pages for submission, it was unfortunately and inadvertently missed."
Kent's piece, "Shoddy and Dangerous," introduces us to a controversy swirling around two enormously important questions: Who should serve in the Department of Justice, and to what extent can lawyers properly be held to account for positions they took in a representative capacity in their prior, private practice.
These questions were first raised by the organizaion Keep America Safe, which asked the Justice Department to identify lawyers it has employed who previously represented persons accused of supporting al Qaeda terrorism. Initially, it is my understanding, the Department refused, but since has provided seven names. Keep America Safe now designates these as "the al Qaeda Seven." For the reasons that follow, I think that designation is unfair on the present record -- but that doesn't mean raising the issue was unfair.
The Senate Judiciary Committee has postponed the hearing for a controversial Court of Appeals nominee after the panel received a letter from a home-state prosecutor blasting the candidate as a judicial loose cannon and after Republicans raised concerns about bias in favor of sex offenders.
U.S. District Court Judge Robert Chatigny gained notoriety in 2005 for his role in trying to fight the execution of convicted serial killer and rapist Michael Ross, also known as The Roadside Strangler, whom Chatigny had described as a victim of his own "sexual sadism."
When it comes to the goals of representation, the rules are quite clear: the client is in charge. See, e.g., ABA Model Rule of Professional Conduct 1.2. Michael Ross was a "volunteer" who decided to waive his appeals and receive his punishment. His lawyer's duty was to achieve the client's goal. Whenever someone "volunteers," the anti side generally runs in and claims he must be crazy, using a variation of the original Catch-22. But in fact waiving appeals can be a rational choice. It was in Ross's case, and the lawyer did the right thing. Judge Chatigny nonetheless threatened the lawyer with loss of his license in an appalling display of judicial intemperance. From the story:
"I've never seen conduct like this," said a Republican source. "I'm shocked that the White House vetted this guy ... and still put him up for a judgeship."
Also appalling is Judge Chatigny's assertion that sadism is "clearly mitigating" in a capital case. Not everything that has a code in the DSM is mitigating. Antisocial personality disorder is a code for behavior that is aggravating. Describing a sadistic rapist and murderer as a "victim" indicates a seriously skewed view of criminality. Sadism is defined by urges, not by an inability to resist them. A person who has an urge to do things the rest of us would not want to do is nonetheless fully responsible for his voluntary choice to act on them.
U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama's State of the Union address was "very troubling" and the annual speech has "degenerated to a political pep rally."
A Texas judge who came under criticism for his ruling declaring the death penalty unconstitutional took back his controversial decision on Tuesday.
However, Judge Kevin Fine said he still wants more information on whether the state's death penalty statute is unconstitutional because it allows for the possible execution of an innocent person.* * *Fine said there was no precedent to guide him in resolving the issues raised by defense attorneys in a case involving a man accused of fatally shooting a Houston woman and wounding her sister during a robbery in front of their home in June 2008.
Jury pools in Clayton County, like many other jurisdictions, are drawn from voter registration lists, driver's license data and utility records. The list is then balanced by gender and race using the Census.Now, every citizen has a duty to serve if summoned, but one ought not be burdened with this duty more often than others by reason of one's race. That would be the effect if people who belong to groups with a higher percentage of ineligibles or no-shows are oversampled to make up the difference. If the cross-section rule really required that, it would collide head-on with the Equal Protection Clause. In the event of such a collision, equal protection should win. For one thing, it really is in the Constitution, unlike Taylor's complete fabrication.
California has started releasing criminals early because, so it is said, the state is out of money to fund the prison system. Only now it turns out that the same force that has driven the state to near-bankruptcy -- the free spending legislature -- is considering a bill that would allocate taxpayer dollars to track animal abusers.
I swear I'm not making this up. Here are the first few paragraphs of the story, as reported by Fox News:
The California state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse.
Animal abusers would be tracked like sex offenders if California lawmakers have their way.
The state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse.
The registry, which under the law would be posted on the Internet, wouldn't just include names. The bill calls for photographs, home addresses, physical descriptions, criminal histories, known aliases and other details to be made public.
Animal abuse is a sick, heart-wrenching and disgusting crime, as anyone will agree who has a dog at home (I have the world's most pig-headed Basset hound). But to propose new and significant spending on an animal abuse registry while releasing criminals on grounds of insolvency sounds like something that could only happen in.............California.
It dares not speak its name, that is, because its name is murder.
That is the demonstrated cost of prison sentences that are too short to persuade, or force, offenders to refrain from returning to crime. The case in point, and in the news, is that of Chelsea King, a high school student who was raped and murdered this week. A fellow named John Gardner has been arrested for the crime. At present, there appears to be little realistic doubt of his guilt.
The twist in the case is that Gardner pleaded guilty in 2000 to molesting a 13 year-old girl. Instead of being required to serve the eleven years to which he could have been sentenced, he was given a six year sentence, of which he served five.
The case illuminates two long-running and active themes the defense bar has been pushing. One is that we should substantially reduce prison sentences to save money. The other is that sex offenders are treated too harshly (forced to sleep under a bridge in Miami, etc.), apparently because the country consists of high-handed and puritanical morons.
The lead paragraphs from a Washington Post story reveal a possible major development in the coming terror trial of 9-11 planner Khalid Sheik Mohammed:
President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.
The president's advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.
The notion that "the rule of law" cannot prevail in military tribunals is at best ahistorical and at worst absurd and insulting to the armed forces. Such tribunals (with significantly fewer defendant protections than exist today) were good enough for Franklin Roosevelt when he ordered captured Nazi saboteurs put before them in 1942. And the Nuremberg trials were themselves military tribunals.
It's unfortunate and worrisome that it has taken the administration this long to figure out that KSM is an enemy combatant, not the next fellow on the police blotter -- if indeed they've figured it out. Still, as they say, better late...