March 2010 Archives

Signing Off

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This is just a quick note to let our regular Crime and Consequences readers know that I will no longer be regularly contributing to the Criminal Justice Legal Foundation's blog.  I have taken a position with the Sacramento Public Policy Foundation, and will be working on local policy initiatives down at City Hall. 

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.

Thank you.
As today's Blog Scan reports, the U.S. Supreme Court heard oral arguments in Robertson v. U.S. ex rel Watson (08-6261) today to determine whether the victim of domestic violence had the power to bring a criminal contempt proceeding against the person who had violated her restraining order.  The case contests the constitutionality of a D.C. law that authorizes victims to seek protective orders on their own initiative, and conduct criminal contempt proceedings, when D.C. Corporation Counsel's office cannot meet the demand.  Jordan Weissman reported on Blog of Legal Times that "at least four justices wondered aloud about the protections afforded to criminal defendants facing such charges[,]" but others wondered about the rights afforded to the victims. 

Justice Scalia made it clear that he was as uncomfortable with allowing the appointment of private prosecutors as he was when the Court decided Young v. United States ex rel Vuitton Et Fils, S.A in 1987, and compared private prosecutions brought "on behalf of the executive" to allowing a private organization to take over for the Department of Education, just because there were insufficient resources to handle all of the problems.  Justice Breyer similarly worried about level of control a court could exercise over these private prosecutors.

Justice Stevens, on the other hand, appeared concerned that if the Court accepted Robertson's argument, private individuals would lose their authority to prosecute violations of "consent decree[s] that would enjoin certain conduct."  He did not appear to like the idea that not even the attorney for "the party who entered into the settlement could [not] bring a contempt proceeding against the adversary who had violated the settlement." 

Justice Ginsburg also appeared concerned over how far the Court's ruling could reach.  At one point, she asked Frankfurt whether other states had implemented procedures similar to D.C.'s law that allowed domestic violence victims to initiate criminal contempt.  Frankfurt responded, "the same procedure is a question of how that is defined[,]" prompted Justice Ginsburg to state, "I mean, however you describe it in practical terms, are there other places that say, abused person, you can initiate this and you can have your lawyer present it, whether it's on behalf of the State or -- but just the practical of how you go through the motions[.]"

Based on today's arguments, the Court's decision remains up in the air.  It may come down to whether the Court agrees with Robertson, that criminal actions must be brought on behalf of the sovereign, or whether it agrees with Solicitor Kagan who argued "that when a single U.S. Attorney's Office says that the government will decide to drop a certain set of charges, that U.S. Attorney's Office we believe is -- is speaking for itself," and not necessarily other parts of the government. 

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Crime Related Cases in the Supreme Court:  Today, the Supreme Court heard oral arguments in two crime related cases, Carachuri-Rosendo v. Holder (09-60), and Robertson v. U.S. ex rel Watson (08-6261).  SCOTUSblog has posted transcripts of the arguments. Carachuri-Rosendo asks the Court whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been convicted of an "aggravated felony" under the Immigration and Naturalization Act, and is therefore unable to seek cancellation of removal from the Attorney General.  Roberston asks whether an action for criminal contempt may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.  At Blog of Legal Times, Jordan Weissman reports that the "Justices Appear Skeptical of Private Contempt Prosecutions."

Reactions to Oral Arguments in Dillon v. United States At Sentencing Law and Policy, Doug Berman comments that after reviewing Dillon's transcripts his gut "reaction is that, at many stages, certain Justices seemed to be distracted by concerns that suggest that they may not be especially sypathetic to Percy Dillon's fate."  Dillon was convicted as part of a crack-dealing conspiracy.  The strict guidelines for crack cases were rolled back and Dillon challenged his prison sentence.  A federal district judge took four years off of Dillon's sentence in accordance with the new rules. Dillon appealed, arguing that the judge was not bound by the guidelines, and could go as low as he saw fit.  During oral arguments yesterday, Justice Ginsburg suggested that it would not be "fair" for Dillon to get a chance to have his severe crack sentence impacted by Booker when "others whose sentence has become final cannot get into the court's door because they don't have the entering wedge" provided by the revision of the crack guidelines.  Berman worries that because of the way Justice Ginsburg frames her concerns she might believe "Dillon should not get a 'special' chance to get a true post-Booker assessment of sentencing justice."  Meanwhile, at Blog of Legal Times, Tony Mauro wonders whether questions raised by Justice Kennedy during yesterday's argument were criticizing the Obama administration's policy on commutations and pardons.

Omissions from Liu's Senate Questionnaire Response:
  Today, on NRO's Bench Memos, Ed Whalen reports on several omissions in Ninth Circuit nominee Goodwin Liu's Senate questionnaire response.  In one post, Whalen comments that Liu's omissions "flesh[] out a remarkable pattern in which Liu's most incendiary remarks just happen to come in presentations that he's either entirely failed to inform the Senate ever took place or for which he's failed to provide readily available records."  As an example Whalen points to remarks Liu made during a showcase panel on "The Legacy of Brown v. Board of Education."  According to Whalen, Liu "expressly rejected the 'precept that judges are just supposed to figure out what the law is and not what it should be,' and he made crystal-clear that he would use his judicial office to advance his agenda."    

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LA Crime Rates are Down, Even After a Recent Increase of Violence:  Joel Rubin, a blogger on the L.A. Times blog LAnow, recently commented on the increased killings in the city of Los Angeles.  There have been 19 people killed in the last 11 days.  According to LAPD Chief Charlie Beck, recent killings in Los Angeles have erased impressive gains that the city had been making this year on its homicide rate.  Most of the homicides can be attributed to gang violence.  Beck has ordered the temporary redeployment of officers from quieter parts of the city to those experiencing the killings.  With the fiscal crisis, policing has proven to be rather difficult.  Instead of increasing manpower, Chief Beck is requiring officers to take days off.  This has made it difficult to deploy officers to violent areas. 

Death Sentence Increase in California:  San Francisco Chronicle writer Bob Egelko reports that in 2009 the number of death sentences declined across the nation, except in California.  In 2009, California sentenced more people to death than it has in a decade.  At least according to the ACLU.  Yesterday, the ACLU released a report stating that California sent more people to death row last year than in the seven preceding years.  Scott Thorpe, executive director of California District Attorney Association, disputes the ACLU's findings.  He says, "you have to look at a number of years to determine what is a trend or an aberration."  He observed that last year's total was well below the 41 death sentences issued in 1999.

Texas Murderer Executed
: Associated Press writer Michael Graczyk reports on the execution of Franklin Dewayne Alix in Texas.  Alix was executed for the murder of 23-year-old Eric Bridgeford.  According to trial testimony, after Alix abducted and raped Bridgeford's sister, he took her back to her apartment.  While Alix was ransacking the apartment, Bridgeford walked in.  Once he saw Alix and the gun, Bridgeford tried to run away, but was shot and killed.  Harris County prosecutors say that Alix is responsible for multiple rapes and robberies from August 1997 through January 1998.  Alix's execution was the fifth this year in Texas.
The Supreme Court decided Padilla v. Kentucky today.

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.
One of the long-standing complaints about law schools is that they do not really teach the skills needed to practice law. One answer to this problem has been the development of clinical programs in which students actually do legal work under the supervision of lawyers.

However, there is a darker side to law school clinics. To an increasing degree, we are seeing clinical programs that have the effect of promoting one side of controversial policy issues. This article by Karen Sloan in National Law Journal describes the controversy over an amendment to the Maryland budget that would simply require disclosures from a state-funded environmental law clinic. Even that modest requirement -- tell us what you are doing with our money -- is being resisted.

Actually, a much broader requirement is needed. A school's clinical programs should be required to be policy neutral.  If there are clinical programs in criminal law -- and especially in controversial areas such as the death penalty -- they should spend equal time representing each side. If that cannot be done, then the clinical programs should be redirected to less controversial areas. With taxpayer-funded law schools in particular, education funds should not be used to advocate one side over another on public policy questions.

The Reluctant Witness

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On April 1, the California Supreme Court will decide People v. Cogswell, S158898, presenting the following question:

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?
Since Taylor v. Louisiana in 1975, the U.S. Supreme Court has said that the Sixth Amendment requires that juries be drawn from a cross-section of the community.  Given that the Equal Protection Clause prohibits discrimination in jury selection on the basis of race, ethnicity, or sex, does this separate Sixth Amendment requirement serve any real function today?

Posing the question in more concrete terms, does any process for selecting jury panels violate the Taylor rule that does not also violate the Equal Protection Clause or its congressional implementation for jury selection, 18 U.S.C. §243? These provisions prohibit intentional discrimination in jury selection, so if the cross-section requirement has any marginal effect, it must be in areas other than intentional discrimination.

Today in Berghuis v. Smith, the Supreme Court declined to reexamine the Taylor rule but simultaneously strengthened the argument that it serves no significant function.

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Notable Supreme Court Petition:  On SCOTUSblog, Erin Miller posts details on "two noteworthy" Petitions for Certiorari to the U.S. Supreme Court.  The first case, Wong v. Smith (09-1031) asks whether habeas relief is available under 28 U.S.C. § 2254(d) when petitioner claims that a state judge unconstitutionally "coerced" jurors to return a guilty verdict by identifying specific evidence in the case as important and instructing them to consider it.  The case involves the conviction of Anthony Smith for burglarizing the home of an aging couple in Sacramento, CA, robbing them, and forcing oral copulation on the wife.  Smith had a co-defendant, James Hinex, and at the conclusion of their joint trial, the jury was deadlocked over the identity of who committed the sex offense.  The judge brought to the jurors' attention the previously-admitted tape-recordings of defendants' post-arrest statements, and advised them to "consider and discuss how this comparison affects your finding" on the question of identity."  Smith was convicted of the sex offense, and the California Court of Appeal concluded the judge had not coerced the jury.  The Ninth Circuit disagreed, and granted Smith habeas relief. 

Sentencing Cases in the Court:  At Sentencing Law and Policy, Doug Berman reports that today, the Court heard oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).  SCOTUSblog has posted transcripts here. Dillon addresses whether, when considering a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), the district court is bound by Sentencing Guidelines policy statements purporting to limit the availability of relief under Section 3582(c)(2).  Barber, on the other hand, addresses what a single phrase within 18 U.S.C. § 3624(b)(1) means when used by the Bureau of Prisons to calculate "good time" sentence reductions for federal inmates.

Three Sixth Circuit Habeas Reversals This Term:  Jonathan Adler notes on Volokh Conspiracy that the "Sixth Circuit is 0-3 in Habeas Cases This Term."  With today's unanimous decision in Berghuis v. Smith, the Court held that
the Sixth Circuit had again erroneously concluded that the lower court's decision involved an unreasonable application of clearly established federal law.  This is the third reversal of a Sixth Circuit decision granting a criminal defendant's habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  With the exception of Justice Stevens' opinion concurring with part of Spisak's judgment, Van Hook and Spisak were also unanimous.  In his post, Adler adds that the Court has yet to rule on two cases where the Sixth Circuit granted habeas relief, Renico v. Lett and Berghuis v. Thompkins.  CJLF's Thompkins' brief can be found here.   

Victim Fights for Right to Prosecute:
Jordan Weissman reports on National Law Journal that tomorrow, the U.S. Supreme Court will hear oral arguments in Robertson v. U.S. ex rel Watson, "a little-noticed U.S. Supreme Court case that they say could make it much harder for battered women and men to enforce restraining orders against their abusers."  In Washington D.C., victims may bring criminal contempt charges when abusers infringe on a court order.   Petitioner John Robertson seeks to change the rule, and overturn his conviction for violating a restraining order taken out by his ex-girlfriend, Watson.  Robertson's lawyers argue that defendants have a "right to be prosecuted by the government," grounded in the Fifth Amendment's due process clause. Watson's lawyers disagree, they contend there's never been "an established common law requirement -- let alone a constitutional requirement -- that [this type of proceeding] be brought in name of the sovereign."

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California Early Release Law Opposed By Victims' Group: The Associated Press reports that a victims' rights group has sued to block a state law that could allow thousands of inmates out of prison early.  The lawsuit, filed Monday in San Diego, claims the measure violates early-release restrictions in Proposition 9, which voters approved in 2008 to protect victims rights.  The inmate release law that took effect in January grants reduced prison terms to low-risk felons if they take job classes or earn high school equivalency diplomas. It is designed to save $500 million and ease prison overcrowding.  The lawsuit was filed by Crime Victims United of California.  SignOnSanDiego released on article today that can be found here.

Medical Parole Proposed to Cut Prison Costs:
Sacramento Bee writer Susan Ferriss reports on an idea proposed by J. Clark Kelso, the federal court-appointed prison health receiver for Plata v. Schwarzenegger, suggesting that California could save millions of dollars a year if officials could grant parole to a handful of inmates who are comatose or severely incapacitated.  An aide in Kelso's office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated.  "These people are not even capable of realizing they're being punished," said Kelso aide Luis Patino.  "Society becomes the victim, because it's paying the cost." Last year, Governor Schwarzenegger and Attorney General Brown petitioned U.S. District Judge Henderson to replace Kelso.  The judge denied California's request.

"Militia Charged With Plotting to Murder Officers": New York Times writers Nick Bunkley and Charlie Savage report on a militant group compromised of nine individuals, calling themselves the Hutaree, indicted Monday for plotting to kill law enforcement officers in hopes of inciting an antigovernment uprising.  The court filings said the group planned to kill an unidentified law enforcement officer and then bomb the funeral caravan using improvised explosive devices based on designs used against American troops by insurgents in Iraq. The members of the group could face a maximum penalty of life in prison if convicted of the most serious charge, attempted use of a weapon of mass destruction.
In a unanimous opinion by Justice Ginsburg, the Supreme Court has reversed a decision of the Sixth Circuit that came close to imposing racial quotas on local procedures for summoning juries. The case of Berghuis v. Smith was decided under the "fair cross-section requirement" of the Sixth Amendment, invented by the Court in 1975.

The local courts had a race-neutral selection system. However, practices such as generous excusals for people with child care or transportation problems had a "disparate impact" reducing the number of black jurors below their proportion in the general population. How would you "fix" that, if you considered it a problem? Must we force people to serve despite their difficulties? Should we "oversample" (i.e., summon more often than random) black persons, thus discriminating against them and imposing a heavier burden on them solely on the basis of their race?

Justice Thomas added a brief concurrence noting that there simply is no such requirement in the Sixth Amendment. The prohibition on racial discrimination in jury selection comes mainly from the Equal Protection Clause, perhaps with some Due Process Clause in the mix. But since no party asked the Court to overrule Taylor v. Louisiana, he would not address that point further. That is one of the downsides to being a nonparty.

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Does Knowing the Costs of the Death Penalty Change Anyone's Mind About Supporting Capital Punishment?:  Last Friday, Doug Berman wondered on Sentencing Law and Policy whether it was "true that nobody's view on the death penalty can be influenced by its costs?"  Berman's post was reacting to a piece in the Lincoln Journal Star by JoAnneYoung's reporting that the Nebraska legislature had failed to authorize a $50,000 study of what it costs to have a death penalty in Nebraska. Apparently, the Nebraska legislature failed to authorize a bill that would have approved the study, even though the cost of capital punishment in Nebraska has never been studied.  Omaha Senator Brenda Council, an opponent of capital punishment, introduced the LB 1105, but it was rejected 22 - 22, last Thursday.  One Senator, and capital punishment supporter, Scott Lautenbaugh, stated that no matter what a study showed, it would not change minds about the death penalty in the Nebraska Legislature, which is solidly in favor of capital punishment.  While Berman disagrees with Lautenbaugh, and sees value in conducting the study, Lautenbaugh's belief that a study won't change anyone's mind has some merit. Our experience with these studies is that they are usually captured by people with an agenda who produce an inflated estimate and do not look critically at what costs are actually necessary.

President Obama Uses Recess Appointment Power: 
At Blog of Legal Times, David Ingram reports on the President's decision to use his recess appointment power to appoint 15 stalled nominees.  Ingram's post provides a list of recess appointments, including Alan D. Bersin, Governor Schwarzenegger's former-Secretary of Education, for the Department of Homeland Security.  Ingram also reports that "[n]ot included in the list are several nominees for the U. S. Department of Justice, including Dawn Johnsen, a law professor at Indiana University at Bloomington, for the Office of Legal Counsel."  Jonathan Adler follows up today with a post on Volokh Conspiracy, discussing whether the President's appointments were prompted by Chief Justice John Roberts.  Apparently, during last Tuesday's arguments in New Process Steel v. NLRB, the Chief Justice asked why the recess appointment power could not be used if the National Labor Board were reduced to a single number.  Adler doubts that the exchange had much to do with the Obama administration's decision.  

Legal Team Divided Over Anti-Terror Tactics:  On Volokh Conspiracy, Kenneth Anderson points to a piece in today's New York Times reporting that the "lawyers in the Obama administration are deeply divided over some of the counterterrorism powers they inherited from former President George W. Bush, according to interviews and a review of legal briefs."  The article, by Charlie Savage, reports that lawyers cannot agree on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners.  On March 13, 2009, the Justice Department modestly proposed that the president be able to "detain without trial only people who were part of Al Qaeda or its affiliates, or their 'substantial' supporters."  "But behind closed doors," some members "criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters."  The debate has been furthered by a ruling from appeals court judges Janice Rogers Brown and Brett M. Kavanaugh that declared that the laws of armed conflict did not limit the president's war powers.

Geography of Criminal Behavior
At CrimProf Blog, Kevin Cole posts a link to Adam Benforado's SSRN article discussing the "unappreciated but vital parallels, connections, and patterns concerning the ways in which physical space - and the meanings that we attach to spatial elements - affect (1) the proximate decision to commit a crime, (2) the likelihood a given person will become a criminal, (3) the experience of victimization, (4) the way in which policing is conducted, (5) what a crime is and how it is prosecuted, and (6) the consequences of being convicted."

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SoCal Gangs Target Police:  Police in the small Riverside County, CA town of Hemet are the apparent target of local motorcycle gangs, according to a New York Times story by Rebecca Cathcart.  Cathcart reports that since the police department's gang unit began routinely checking members of the Vagos motorcycle gang for parole violations, police have been threatened, city vehicles have been set on fire, and police buildings and vehicles have been booby trapped.  A spokesman for the DA's office noted that the Vagos is the largest biker gang in the state, and its members have a history of parole violations, drug dealing, identity theft and bar fights.  "Clearly, we irritated somebody along the line," said Hemet Police Chief Richard Dana.  

Life of Congressman Threatened:  A Philadelphia man has been arrested for threatening to kill Virginia Congressman Eric Cantor, the number two ranked House Republican.  Philadelphia Inquirer writer Joseph A. Slobodzian reports that Norman Leboon was arrested Saturday after his YouTube video threatening to kill Cantor and his family was reported to the FBI.  The Congressman was unaware of the threat until he was notified by law enforcement over the weekend according to USA Today.  U.S. Attorney  Robert K. Reed said that there was no evidence connecting  Leboon to the shot fired at Cantor's Richmond office after he voted against the President's health care reform last week.  Leboon was previously arrested last June after he threatened to kill his partner and roommate, John Hopkins III, and slammed Hopkins face into the wall.  Reed said that Leboon had a history of mental illness and will undergo a psychiatric evaluation.    

42 Cal. DAs Oppose Liu Nomination

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In a letter mailed today, 42 California District Attorneys ask the U.S. Senate and the Judiciary Committee to reject the nomination of Goodwin Liu to the Court of Appeals for the Ninth Circuit. The primary focus of the DAs' concern is the attitudes toward criminal law generally and the death penalty in particular reflected in Liu's 2005 paper opposing the confirmation of Justice Alito on the death penalty issue.

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:

Moving USCA9 in the Wrong Direction, February 26, 2010
Making USCA9 Even Worse, March 24, 2010

No Cert. Grants Today

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The U.S. Supreme Court released its Monday orders list with no grants of certiorari for briefing and argument. There was one summary "grant, vacate and remand" order in a federal case. Among the cases turned down was Cate v. Ali, No. 09-894, presenting the question,

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?

Is the Death Penalty Killing Education?


"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.

See below.

Why We Have the Death Penalty, Part II


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.


Fear of Simple Truths

Occam's razor, or the priniciple of parsimony, tells us that the simplest explanation fitting the known facts tends to be the correct one. When it comes to any conclusion that might smack of being (horrors!) judgmental, though, academics will go a long way around the barn to avoid it.

The study noted in Lauren's Blog Scan today finds a correlation between criminality and reckless driving, and the authors attribute it to "a general disregard for the long term adverse consequences of [one's] actions [which] could be labeled risk-taking, impulsiveness, or lack of self-control."

Apply the razor, folks. The simple and likely correct answer is just plain bad character. Some people simply don't give a damn about obeying the law or about the impact their actions have on others.

But we musn't say that. That would be judgmental.

Fear of classifying people as just plain bad, BTW, is behind the fallacious claim that we can neatly catagorize "offenders" as violent or nonviolent and assume that the "nonviolent" ones are no more likely to commit a crime of violence than law-abiding people are. You have to be willfully blind to human nature to believe that, but a lot of people are.

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D.C.'s Firearm Restriction Upheld:  Tony Mauro reports on Blog of Legal Times, that Judge Ricardo Urbina has upheld the D.C. firearm ordinances enacted after the U.S. Supreme Court announced its decision in D.C. v. Heller.  In this case, Dick Heller challenged the District's firearms registration process, its ban on assault weapons, and its prohibition of "large capacity ammunition feeding devices," claiming they violated the Second Amendment.  Judge Urbina's decision stated that the right to bear arms is "not unlimited," and cited Justice Antonin Scalia's acknowledgment that Heller did not "cast doubt" on a range of firearms regulations.  An attorney representing Heller said he would be surprised if they did not appeal.

Correlating Criminal Records with Car Accidents:  On New York Times Freakonomics Blog yesterday, Eric A. Morris posted on "a hidden force" that may interconnect criminal aggression and bad driving.  According to a study by Marianne Junger, Robert West, and Reinier Timman that examined police data of 1531 persons involved in car accidents to determine if the reckless driver in each crash had a criminal record. The study revealed that persons who displayed risky traffic behavior leading to the accident had an odds ratio of 2.6 for having a police record for violent crime; of 2.5 for vandalism, 1.5 for property crime, and 5.3 for having been involved in traffic crime.  The authors attribute the apparent link between lawlessness and risky driving to "a general disregard for the long term adverse consequences of [one's] actions [which] could be labeled risk-taking, impulsiveness, or lack of self-control."

South Carolina Moves to Reduce Inmates:
  Doug Berman writes on Sentencing Law and Policy that "significant proposed changes to South Carolina's sentencing laws seem to be close to becoming a reality."  According to an article by Seanna Adcox in the Sun News, the South Carolina Senate approved a bill designed to reduce the number of people in prison.  The bill deletes mandatory minimum sentences for a first conviction on simple drug possession, allows the possibility of probation or parole for certain second and third drug possession convictions, and removes sentencing disparities between crack and cocaine possession.  The bill also allows for home detention for third-offense driving under suspension, and changes the status of two dozen crimes from nonviolent to violent - including sex crimes involving children. 

Upcoming Court Actions:  Ed Whalen reports on NRO's Bench Memos, that he has been "reliably informed" that Goodwin Liu's Senate Judiciary Committee hearing will be rescheduled for mid-April.  (Update: It's April 16 at 10:00 a.m. ET.) Howard Bashman also links to a report that Arizona Federal Judge Mary H. Murguia has also been nominated to the Ninth Circuit Court of Appeals.  On SCOTUSblog, Lyle Denniston reports that court watchers can expect opinions from the U.S. Supreme Court next Tuesday and Wednesday.  Orders will be released on Monday.

Govt-Paid Viagra for Pedophiles?

How many Senators would vote against an amendment "to bar the government from subsidizing erectile dysfunction drugs for convicted pedophiles and rapists"? A majority, it turns out, when the legislative stars are uniquely aligned.

We haven't discussed the political circus over the health care bill here at C&C, because it has been almost entirely off-topic for the blog. However, Kimberly Strassel raises the odd rejection of the above amendment in this piece in the WSJ.

This legislative oddity arises when a hotly contested bill passes one house, and the sponsors concluded they must pass it as-is in the other house without a single amendment. An amendment means a conference committee and further proceedings in both houses, and bills that have narrowly passed once sometimes die in that process.

Strassel's piece gives me a feeling of deja vu.  The process she describes is very much like what happened with habeas reform.

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Parole Reforms Upheld:  A story in today's Los Angeles Times reports on yesterday's unanimous Ninth Circuit decision, in Valdivia v. Schwarzenegger, upholding the tougher parole revocation procedures adopted by California voters in 2008 as part of Proposition 9, the Crime Victim's Bill of Rights Act.  The decision vacated and remanded Federal District Judge Lawrence Karlton's earlier ruling striking down the procedures.  A story on the same decision in the Sacramento Bee mistakenly reports that the appeal of Judge Karlton's ruling had been filed by Attorney General Jerry Brown, with support from Proposition 9's backers.  Jerry Brown was not involved.  Governor Schwarzenegger engaged private counsel to file the appeal.    

Effort to Delay Murder Trial Rejected:  In a divided ruling announced Wednesday, the Georgia Supreme Court rejected a capital defendant's claim that he should be acquitted because his trial was delayed over a dispute regarding who would represent him.  New York Times writer John Schwartz reports that the trial of Jamie Ryan Weis, for the 2006 robbery and murder of a 73-year-old woman, was delayed for two years over the dispute. The first two attorneys assigned to represent Weis withdrew because the agency that provides funds for defense lawyers in death penalty cases could not pay them.  When two new public defenders were appointed, Weis argued that he should be represented by his first legal team. The court's decision notes that the second pair of defense attorneys were experienced, had tried death penalty cases in the past, and had agreed to make his case a priority.  They finally asked to withdraw because Weis would not work with them.  In rejecting Weis' claim the court noted that "Weis' own behavior, and the behavior of his attorneys, also contributed to the delay."   

Maybe he thought it was a groundhog. Near Punxsutawney, Pennsylvania, state troopers arrested Donald Wolfe for public intoxication after he was seen attempting mouth-to-mouth resuscitation on a very dead possum. Sam Wood has this story in the Philadelphia Inquirer.

The Nebraska Legislature killed a bill to do a cost study on the death penalty, JoAnne Young reports in the Lincoln Journal Star.

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. 

Some observations.

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?

There is more news from California today on the unending battle of Krishnas in the airport.

The Hare Krishnas have long supported their organization by in-person solicitation of funds. The federal district court in International Society for Krishna Consciousness v. Barber, 506 F.Supp. 147 (NDNY 1980) described fraud, subtle and not-so-subtle forms of duress, and even outright theft as among the methods they employed.

One of the Krishnas' preferred venues for their activities is airports. When Los Angeles imposed restrictions on soliciting in LAX, the Krishnas sued in federal district court. They had one small problem, however. A U.S. Supreme Court precedent in their own case, International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), held that airports are not a public forum for First Amendment purposes, so "restrictions ... need only satisfy a requirement of reasonableness."

Blog Scan

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Justice Department Requests Public Release of Detainee Decision:  At Blog of Legal Times, Marcia Coyle reports that the Justice Department has asked the U.S. Court of Appeals for the D.C. Circuit to unseal its January decision in Djamel Ameziane v. Barack Obama, et al.  Yesterday, a three judge panel rejected the government's motion.  Two of the judges, Judges Thomas Griffith and Janice Rogers Brown, voted to deny the government's motion, and Judge Douglas Ginsburg voted to publish a redacted version.  Since the D.C. Court of Appeals' decision is under seal, the facts of Ameziane are few and far between.  Coyle was able to piece together some information from a press release prepared by The Center for Constitutional Rights, which has filed briefs on Ameziane's behalf.  That release states  Mr. Ameziane has never been alleged by the U.S. government to have engaged in any acts of terrorism or hostilities," even though he has been at Guantánamo since 2002.

Due Process for Victims:  At CrimProf Blog, Kevin Cole reports that on June 10 and 11th, the National Crime Victim Law Institute will hold its Ninth Annual conference on due process for victims in Portland, Oregon.  The conference program indicates that the conference will include several sessions addressing a victim's right to be heard.  These include: a roundtable discussion on a victim's rights during plea bargaining; A Victim's Right to Be Heard: A Legal and Psychological Analysis of this Critical Right; and How Victim Voice Can Impact the System.  One example of how a victim (or potential victims') voice can impact the system can be found in Kathryn Casey's Women in Crime Ink post, which asks readers to help stop a convicted rapist from receiving parole. 
Yesterday, the U.S. Supreme Court heard oral argument in Magwood v. Patterson (09-158), to address whether a 1997 habeas claim brought by a convicted murderer was a "second or successive petition" under 28 U.S.C. §2244(b), when he could have raised the claim in his first habeas petition in 1985. 

In 1979, Magwood lay in wait to shoot and kill Sheriff Grantham in the parking lot of the Coffee County, Alabama, Jail.  He shot Sheriff Grantham three times, once each in the head, face, and chest. He then fled.  As Magwood sped away, he exchanged gunfire with Deputy Thomas Weeks, who witnessed the murder.  Magwood is not challenging his conviction for the murder.  Since 1997, Magwood has been challenging whether he was correctly resentenced to death under Alabama law.  Today's News Scan provides some more details on the procedural history of Magwood's case. 

Federal Injunctions and State Laws

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Between private parties, a consent decree is simply a settlement of litigation that is entered as a judgment. When one party is a government, however, a consent decree can become something far more sinister. The present occupants of government office can bind the people of their jurisdiction to a court order that embodies policy decisions not required by federal law, possibly depriving the people of their sovereign right to change those policies in the future.

But possibly not. A decision of the Ninth Circuit today makes an important statement regarding the people's right of self-government and tersely reverses a particularly arrogant federal judge.

News Scan

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Request For DNA Testing Halts Texas Execution: Los Angeles Times writer David G. Savage reports on the Supreme Court's block of the scheduled execution of convicted murderer Hank Skinner.  Skinner was convicted and sentenced for killing his girlfriend, Twila Busby, and her two sons, in 1993.  Police and prosecutors said the blood on Skiner's clothes came from the victims, and that he left bloody palm prints in the house.  His trial lawyer did not seek DNA testing of the crime-scene evidence at the time of the trial.  Skinner has maintained his innocence, and has sought DNA testing of key evidence for a decade.  The justices issued a stay of execution and said they wanted more time to consider Skinner's appeal.  It will probably be several weeks before the Court decides whether to hear the case.  Last year, the Court ruled 5 to 4 that the Constitution does not give convicts the right to demand DNA testing of crime-scene evidence.  The case, however, did not involve a prisoner facing execution.  Kent's post on "Eleventh Hour DNA Testing" briefly discusses the Court's stay.

"F.B.I.'s Crime-Fighting Web Site Focuses on Bank Robbers": New York Times writer C.J. Hughes reports on a new website being used by the F.B.I. to track down suspects of robberies.  The site is called BanditTracker NorthEast and features images of robbers in New Jersey and New York culled from security cameras over the past few years.  In a modern take on the "wanted" notices on post office walls, the site also includes information about the suspect in question, including height, sex, race and build.  Telephone numbers are also provided so people can call if they think they know the whereabouts of the suspect.  Now, through the use of this site, images and information can be posted within hours of the crime, diminishing the lag that law enforcement has experienced when information can take days to post. 

"Court Weighs Timing of Death Row Appeal": New York Times writer Adam Liptak reports on inmate Billy Joe Magwood's attempts at successive federal habeas corpus petitions, and his argument before the U. S. Supreme Court.  Mr. Magwood shot and killed an Alabama sheriff in 1979.  At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed "aggravating circumstances." Though Magwood's crime did not fit any of those circumstances, he was sentenced to death in 1981.  In 1985, a federal judge ordered Mr. Magwood resentenced for unrelated reasons, and he was sentenced to death the next year.  Over the years, Mr. Magwood's lawyers have challenged his sentence on various grounds, but it was not until 1997 that they raised the question of whether he had technically committed a capital crime under Alabama law in the first place.  In 1996, AEDPA imposed strict limits on successive federal habeas corpus petitions.  Under the law, a second petition challenging Mr. Magwood's original 1981 death sentence would almost certainly be barred.  Jeffrey L. Fisher, a lawyer for Mr. Magwood, said his client was challenging his 1986 resentencing for the first time.  Mr. Fisher suggested that the new sentencing of Mr. Magwood restarted the litigation clock allowing for a new habeas petition.  Justice Scalia disagreed, stating that the same underlying crime as well as surrounding circumstances were present in both sentencings.  Justice Alito appeared to side with Justice Scalia when he reminded Fisher, "the only thing that is relevant [in habeas] is the judgment pursuant to which the Petitioner is held in custody."  The case is Magwood v. Patterson.

A Special Prosecutor for the White House?

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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.

Liu, Alito, and the Mainstream

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Tom Goldstein has this piece at the Huffington Post arguing that Goodwin Liu is not so far out of the mainstream that he should not be confirmed.

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.

Liu's testimony was precisely that Samuel Alito was too far from the mainstream to be confirmed despite his acknowledged intellectual ability. If we measure in-or-out of the mainstream as absolute value of variance from the American political median, it is beyond reasonable disagreement that Alito is closer to the median than Liu.

The only way to make the contrary argument is to measure from someplace other than the overall American center. If you measure from the median of American academia, then of course Liu would be closer to that center. But that would be a very wrong benchmark to use, and the Senators know it.

Eleventh Hour DNA Testing

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There have been a couple of developments in cases where issues of DNA testing have come up after the usual reviews of a case are over.

The U.S. Supreme Court granted a stay of execution pending its consideration of a certiorari petition in the Texas case of Henry Skinner. No dissents are noted. Allan Turner has this story in the Houston Chronicle.

In the Missouri case of Reginald Clemons, there is a different twist. There is a question whether a rape kit was not revealed to the defense until recently. However, Heather Ratcliffe reports in the St. Louis Post-Dispatch that "St. Louis Circuit Attorney Jennifer Joyce said Friday that she can prove the defense had it as early as 1994 and that she has no reason to doubt that it was available prior to the trial in 1993."

And now, for something completely different:

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."

Blog Scan

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Court Hears Successive Petitions Case: Today, the U.S. Supreme Court heard oral argument in Magwood v. Patterson (09-158), a case addressing whether a federal habeas petition challenging a new sentence is a "second or successive" claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his first sentence on the same constitutional grounds.  On SCOTUSblog, Erin Miller posts podcasts from counsel for the National Association of Criminal Defense Lawyers, Professor John Blume, and the Solicitor General of Alabama, Corey Maze.  Blume argues that the courts should consider Magwood's due process claim, because this is the first petition challenging his 1986 death sentence.  He says the argument is supported by the language of 28 U.S.C. §2244(b).  Solicitor General Corey Maze disagrees.  He begins by asserting that we "are listening to a podcast that never should have been recorded."  According to Maze, Magwood was ordered to raise the claim at issue today in a habeas petition in 1983, "which would have resolved this issue conclusively in 1986."  Maze argues that petitioners get one, but only one, full and fair opportunity to litigate a habeas claim-- they cannot wait 14 years (as Magwood did) to raise a claim.

A Bill To Ban Sex Offenders from Social Networking Websites:  On Sex Crimes, Corey Rayburn Yung reports on California Assembly Bill 2208, which would make it a misdemeanor for any person required to register as a sex offender to use any Internet social network, such as Facebook.  According to a San Francisco Gate article written by Marissa Lagos, the California bill is similar to legislation recently passed in Illinois, and less severe than a New York law that also requires sex offenders to register their e-mail addresses and online aliases with state authorities, who can then turn over the names to the companies that run the social networking sites.  Facebook attorney Chris Kelly notes that it is often difficult for social networking sites to identify sex offenders without knowing how they identify themselves online.  He says the bill is "a good start.  But it needs to be strengthened."

"Active Liberty" vs. Originalism:
  At Blog of Legal Times, Tony Mauro reports that last night, Justices Scalia and Breyer "reprised their debate" over how to interpret the Constitution.  According to Mauro, in a debate hosted by the Supreme Court Historical Society, Justices Scalia and Breyer challenged each other over statutory construction, "with Scalia insisting that looking to the words of the law and nothing else is the best way to discern its meaning."  Justice Breyer disagreed, and according to Ashby Jones on Wall Street Journal's Law Blog, asserted that the Constitution allows the Court "to better carry out that initial intent that this document will in fact govern a changing society as society changes over the course of centuries."  Josh Blackmun posts "a (near) transcript" from the debate on his blog.

More On Goodwin Liu: 
At NRO's Bench Memos, Ed Whelan posts a link to his NRO essay, Unsound and Unfit: Goodwin Liu is President Obama's worst judicial nominee . . . so far.  Howard Bashman also rounds up media coverage on Liu's postponed hearings on his website, How Appealing. Senator Patrick J. Leahy (D-VT), Chairman of the Senate Judiciary Committee, commented on the delayed hearings in this Press Release.     

Free Speech for All -- Except Ann Coulter


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?  

They Don't Return to Work for Mother Teresa

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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):

Obama Administration Gets Its First Gitmo Recidivist

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.

Making USCA9 Even Worse

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Today at 2:30 ET, the U.S. Senate Judiciary Committee will consider a nomination for the purpose of moving the Court of Appeals for the Ninth Circuit even further out of the judicial mainstream than it already is. As noted in my prior post, in 2005 nominee Goodwin Liu wrote a paper attacking then Justice-nominee Samuel Alito's record in death penalty cases. The paper reveals that Liu's views on the death penalty and on habeas corpus are fully aligned with the current hard left wing of the Ninth Circuit.

CJLF's letter in opposition to the nomination is here.

The hearing announcement and link to the webcast is here.

Update: David Ingram at BLT reports that the hearing has been postponed. "Rule 26 of the Senate prohibits committees from meeting after 2 p.m. without the consent of the leaders of both major parties. The rule is routinely waived to allow afternoon hearings, but Republicans objected Tuesday and today, as the Senate debates revisions to the just-enacted health-care overhaul."

Update 2: Ed Whelan at Bench Memos has this comment on the postponement.

News Scan

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California's Budget Crisis Opens Prison Doors:  Randal C. Archibold of The New York Times reports on California's solution to reduce prison overcrowding in response to the state's budget crisis.  California has the highest recidivism rate in the country, an astonishing 70%, and the state has recently begun to make the most significant changes since the 1970s to reduce overcrowding.  There are 167,000 prisoners in California, but the state plans to reduce the number of inmates by next year by 6,500.  Those considered to be low level offenders will be granted early release from prison.  They will not be closely supervised by parole officers.  Many are concerned about the dangers of not more aggressively tracking the low-level offenders.  "We are concerned about victims these felons will leave in their wake before being rearrested for committing new crimes," said Paul M. Weber, the president of the Los Angeles police union.  Some prisoners may be released early for completing drug and education programs, or receive reduced sentences under new formulas for calculating time served in county jails before and after sentencing.  The Schwarzenegger administration has announced other ideas to reduce costs and avoid early release, including building prisons in Mexico for illegal immigrant offenders, having the University of California handle inmate health care, and turning over prisons to private contractors.

White House Will Be Ready to Choose Nominee for U.S. Supreme Court:  Tony Mauro wrote in The National Law Journal on Monday, that if Justice John Paul Stevens decides to retire before the end of the term, the White House appears ready to choose a nominee for the U.S. Supreme Court.  The short list of candidates includes Solicitor General Elena Kagan, appeals court Judges Diane Wood and Merrick Garland, and Homeland Security Secretary Janet Napolitano.  So far there's been a minimum of lobbying and gossiping in Washington for possible nominees with Obama.  However, meetings will take place, well-connected people will make comments, and advice will be given.  "With this president, it is a profoundly personal decision," said Obama's former-White House counsel Gregory Craig.  

"Death Penalty Lawyer Admits Stealing $200,000 From Capital Appeals Project": 
Gwen Filosa of The Times-Picayune reports that the former director of a nonprofit death penalty appeals agency, Jelpi Picou, admitted to stealing more than $200,000 from the office he was hired to run in 2004.  On February 26, Picou pleaded guilty as charged to five counts of theft and is hoping that Judge Robin Pittman will consider ordering restitution and probation.  Picou resigned last November before state officials were able to inspect the financial records he kept.  At least $100,000 in state money and other public funds were missing.  The Capital Appeals Project was formed in 2001 to handle direct appeals in cases for those who have been sentenced to death row.  Picou was one of the attorneys who helped successfully reverse a death penalty conviction for a child rapist in Kennedy v. Louisianna, last year.

Blog Scan

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Battle Over Liu Begins to Brew:  On How Appealing, Howard Bashman posts a link to Ariane de Vogue's ABC News article discussing the confirmation hearings of Berkeley law professor Goodwin Liu to the Ninth Circuit Court of Appeals.  Tomorrow, the Senate Judiciary Committee will consider Liu's nomination, and de Vogue writes that "[t]he hearing is expected to be contentious."  American University Professor Stephen I. Vladeck believes Liu's confirmation "is a test case[,]" because "[m]ost of the early Obama nominees were tried-and-true moderate judges with extensive experience on district courts. While Liu is not the first non-judge to be nominated by the president, he is probably the most prominent liberal academic."  Liu's opinions on several "hot button" issues support Vladeck's claim.  Liu sits on the board of the liberal American Constitution Society, and opposed the nominations of both Chief Justice John G. Roberts and Justice Samuel Alito. In an op-ed, Liu wrote that the nomination of Roberts "is a seismic event that threatens to deepen the nation's red-blue divide."  A post from Deborah O'Malley on The Foundry explains why Liu as "Obama's Most Radical Judicial Nominee."

SCOTUScast on Johnson v. United States:  Today, the Federalist Society posted its post-decision SCOTUScast for Johnson v. United States, a decision holding that a a prior Florida conviction for battery did not qualify as a "violent felony" for enhanced sentencing purpose under the Armed Career Criminal Act.  In the SCOTUScast, Kevin H. Govern, an Assistant Professor at Ave Maria Law School, recaps the 7-2 decision delivered by Justice Scalia.  Govern comments that after Johnson in order to qualify for sentence enhancement under the "violent felony" section of the Armed Career Criminal Act a person must engage in "force capable of causing physical pain or injury to another person."  To reach this conclusion, the Court rejected the government's argument that force under the Act was a legal term of art that described the common law form of battery - which included even the slightest offensive touching.  Govern states that after Johnson, the Armed Career Criminal Act, physical force is used to define the statutory category of violent felony - of causing pain or injury to another person.

Convicted Murderer Challenges Conviction Forty Years Later:
  Wall Street Journal's Law Blog writer, Ashby Jones, reports that yesterday, the Fourth Circuit heard arguments on Jeffrey MacDonald's motion for a new trial.  MacDonald was convicted for the slaying of his wife Colette and daughters Kimberley, 5, and Kristen, 2, in 1970.  The 4th Circuit tossed the convictions on speedy trial grounds, and he returned to work at the California hospital. But within two years, the U.S. Supreme Court reinstated the convictions, and MacDonald returned to prison.  Now, according to an AP article by Larry O'Dell, MacDonald claims he has new evidence, including DNA tests and sworn statements by people maintaining his innocence.  Throughout his trial, MacDonald had claimed that a bunch of drug-crazed hippies broke into his Ft. Bragg, N.C., home and killed his family.  The case was the subject of the book Fatal Vision, by Joe McGinniss, and was turned into a 1984 movie starring Karl Malden, Eva Marie Saint, and Andy Griffith.  

Packing the Court:  At SCOTUSblog, Erin Miller posts Part II of her interview with Jeff Shesol, the author of Supreme Power: Franklin Roosevelt vs. the Supreme Court. In his interview, Shesol comments that if President Franklin had honestly relayed his motivation for packing the Court to the public, his effort to increase the Court's membership would have succeeded.  

News Scan

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ACORN to Close Doors: New York Times writer Ian Urbina reports that Acorn will close all its remaining state affiliate and field offices by April 1st.  The organization is "developing a plan to resolve all outstanding debts, obligations and other issues," said a statement released by the group.  Acorn has been battered by criticism, and has lost federal money and private donations since a video sting was publicized last fall.  Acorn employees were shown in the the videos advising two young conservative activists, posing as a pimp and a prostitute, how to conceal their criminal activities. The Census Bureau reacted by ending its partnership with the organization for this year's census, the Internal Revenue Service dropped the group from its Voluntary Income Tax Assistance program, and Congress voted to cut off all grants to the organization.

"Chief Lawyers Named for Guantanamo Bay Defense, Prosecution Teams": Washington Post writer Peter Finn reports that the Office of Military Commissions, the Defense Department entity that administers military tribunals, has chosen the head prosecutor and lead defense counsel for the Guantanamo Bay detainees.  Navy Capt. John F. Murphy, an assistant U.S. attorney seconded from New Orleans, will oversee the prosecution, and Marine Col. Jeffrey Colwell, a career officer, will command the military defense lawyers.  Both men have previously worked as military lawyers at the detention facility in Cuba, where Murphy prosecuted Salim Ahmed Hamdan, Osama bin Laden's driver, and Colwell represented Ahmed Ghailani, a Tanzanian accused of helping to organize the 1998 U.S. Embassy bombings in East Africa.  (CJLF's brief in Ghailani's case can be found here.)  Murphy declined to discuss the possiblity of Khalid Sheik Mohammed and four co-defendants returning to a military tribunal.  Colwell said he will take no position on the merits of military commissions as the forum to try Guantanamo detainees.

"Graham Proposes Framework for Handling Terrorism Suspects": Washington Post writer Anne E. Kornblut reports on Senator Lindsey O. Graham's (R-S.C.) draft legislation to the White House proposing a broad framework for handling terrorism suspects.  President Obama opposes some items that Graham has promoted publicly, such as the creation of a national security court to handle detainees, but the White House is urging Democrats to treat the proposal seriously as a way to break the logjam over the closure of Guantanamo Bay, and other detainee-related issues.  Certain ideas under discussion appear likely to yield a compromise, administration officials said.  One promising area involves creating standard procedures for addressing detainees' petitions for habeas corpus, which force the government to make its case for continued detention, rather than leaving those decisions up to individual judges.  White House officials have expressed concern that if they fail to reach a comprehensive agreement, Democratic and Republican members of Congress will block funding for closing Guantanamo and civilian terrorism trials.  At the same time, a senior Obama aide said the president is seeking a "coherent and durable" framework for handling terrorism suspects, a polarizing issue that has confounded his top advisors as they have struggled to relocate detainees and shut the prison.

The Supermax Numbers

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As Doug Berman notes at Sentencing Law and Policy, NYU Wagner School of Criminal Justice is planning a panel discussion titled "Segregation and Solitary Confinement: Cruel and Unusual Punishment?"  The conference description includes this statement:

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.  

No SCOTUS Crim. Opinions Today

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The U.S. Supreme Court issued only one opinion today, in a civil case. We are still waiting for the controversial Florida juvenile lifers cases, Graham and Sullivan. Today's case involves Federal Rule of Civil Procedure 60(b), which comes up occasionally in habeas cases, especially capital, but it involves a paragraph of that rule unlikely to come up in habeas.

SCOTUSblog reports that there will be no opinions tomorrow, so the next possible opinion day is next Monday. However, the Court will hear argument and issue an orders list that day, and it generally does not issues opinions on days with both orders and arguments. That makes next Tuesday the next likely opinion day.

Blog Scan

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Kiyemba II Denied Review:  At SCOTUSblog, Lyle Denniston reports that this morning the Supreme Court denied review of the D. C. Circuit Court's ruling in April in Kiyemba v. Obama (09-581).  The Court's order will leave intact a D. C. Circuit Court ruling that denied federal judges any authority to order the transfer detainees out of Guantanamo Bay.  Those following the Kiyemba case are probably not surprised by the Court's order.  Earlier this month, the Court removed the case from its oral arguments calendar, and in February, the Court asked for additional briefing to address whether the case should be dismissed.  Now that the Supreme Court has denied review, Denniston reports that the Obama administration has petitioned the D. C. Circuit Court to re-instate its order that the Chinese Muslim Uighurs have no right to be transferred to live in the United States.  In a new filing in Kiyemba v. Obama (08-5424, 08-1234) the administration opposed the Uighurs' plea that the case be sent back to a District Court judge to assemble new facts on the current prospects of the prisoners to leave Guantanamo for resettlement in another country.  More information on today's orders from the Court can be found here.  The orders list is available here

Supreme Court to Hear Prosecutor Immunity Case:
  Tony Mauro reports on Blog of Legal Times that the U. S. Supreme Court will hear arguments in Connick v. Thompson (09-571), to address whether imposing liability for failing to train a prosecutor on a district attorney's office for a single Brady violation contravenes culpability and causation standards.  In May 1985, John Thompson was tried, convicted, and sentenced to death for murder.  The Fifth Circuit upheld a lower court's verdict that awarded accused murderer Thompson $14 million for the district attorney's failure to train its lawyers about so-called Brady violations, a failure that led to his wrongful conviction and death sentence in 1985.

Death Penalty Saves Costs Over LWOP:  At Homicide Survivors, Dudley Sharp posts links to several studies comparing the cost of the death penalty with the cost of life without the possibility of parole.  Sharp comments, "[t]here is no reason that the death penalty, in general, should be more expensive than LWOP and, in many, if not most cases, the death penalty should be less expensive."

An Op-Ed on Judge Fine:  Yesterday, Doug Berman posted a link to Professor Adam Gershowitz's op-ed discussing Texas District Court Judge Fine's ruling that a portion of the Texas death penalty statute was unconstitutional.  In Saturday's Houston Chronicle, Gershowitz wrote that "[b]y overstepping his powers, Fine gave death penalty advocates exactly what they were looking for: another example of a 'judicial activist' working to block the public's desire to enforce capital punishment."  Gershowitz argues that "the death penalty is that it is terrible public policy that the voters of Texas should reject[,]" because it is racially and economically discriminatory, and is imposed on innocent people.  (Information refuting each of these claims is available here and here.)  He then argues that "in these economic times, death penalty critics should instead focus on how the death penalty is harmful to taxpaying, law-abiding citizens."

President Roosevelt and the Supreme Court:  Also on SCOTUSblog, Erin Miller posts Part I of her two part interview with author Jeff Shesol, discussing Shesol's new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court.  The book discusses President Roosevelt's plan to pack the Supreme Court in 1937.  Part II will be posted tomorrow.

Terrorist De-Radicalization

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This Friday at noon ET, Heritage Foundation has a program on "Terrorist De-Radicalization Programs: How Do They Work, and Are They a Good Idea?" Somehow, I have a suspicion the answers are "badly" and "no." The program will be available online at the above link.

News Scan

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"In Wake of Garrido Arrest, California Tightens Monitoring of Sex Offenders":  Sam Stanton, reported in Sacramento Bee on Saturday that California corrections officials are being scrutinized after the state failed to monitor Phillip Garrido, a paroled sex offender now accused of kidnapping Jaycee Lee Dugard.  A policy took effect this past Thursday requiring parole agents to regularly check records of GPS tracking for offenders who are on "passive" monitoring.  Under the new policy, "passive" offenders will have two consecutive days of movements randomly checked twice a month to ensure that offenders know they're being monitored.  Paroled sex offenders who pose a greater-risk are tracked through active monitoring, meaning their movements for each previous day are checked daily.  As of March 1, there were 2,219 offenders on passive monitoring in California and 4,779 on active monitoring.

"Cold Hit" Spurs Rape Suspect's Arrest:  Larry Hertz of New York's Poughkeepsie Journal reports on the first crime in Dutchess County to be solved by cold-hit DNA evidence.  Back in 2003, two women were raped at gunpoint in the city of Poughkeepsie, NY.  More than six years later, DNA evidence allowed police to charge Jason Freeman with the rapes.  Last fall, Freeman was arrested on robbery charges in another county, and under New York law was required to give a DNA sample to police.  His sample was sent to the state police forensic lab in Albany, and test results revealed that Freeman's sample matched DNA evidence taken from the rape victims and a gun that was recovered after the second rape.  Senior Assistant District Attorney Marjorie Smith stated, "A few years ago, we didn't have the technology to give us a cold hit.  This guy probably would have gotten away."

A 36-Year-Old Mystery, Solved by DNA:
  Alisha Wyman, a Napa Valley Register staff writer, reports that a 36-year-old mystery in Napa, CA, has been solved with DNA evidence.  Anita Andrews was killed in 1974 in Fagiani's Cocktail Lounge.  DNA that was found at the crime scene was preserved, and was recently matched to Roy Melanson, 73, who is currently in prison for murder in Colorado.  Melanson still has not been charged in the Napa case.  This year officials began collecting DNA samples from people arrested for any felony, as well as misdemeanor offenses.  Jill Spriggs, the bureau chief for the California Bureau of Forensic Services in Sacramento -- which tested the evidence in Andrews case -- says the bureau makes about 300 matches a month - either connecting an offender to a case or two cases to each other.

Ninth Circuit Nominee is "Test Case for Obama Judicial Picks":  Washington Post staff writer, Robert Barnes, reports that the battle over the nomination of Goodwin Liu "could tell much about the Obama administration's willingness to appoint controversial nominees to the bench, including the Supreme Court."  Liu has already been recognized by Senator Sessions as "an individual" whose constitutional views are "far outside the mainstream of American jurisprudence," and many conservative legal groups are opposing the nomination.  Back in February, Kent wrote on our blog, "[t]his calls for pull-out-the-stops opposition."   

Philippines May Move to Reimpose Capital Punishment: 
The Manila Bulletin reported yesterday that President Arroyo has approved the Free Legal Assistance Act of 2010, which will give anti-crime advocates a new and strong argument to seek revival of capital punishment.

USCA9 Corrects Itself, Unanimously

Now here is something refreshingly different. First, a Ninth Circuit panel issues a very wrong decision, taking a U.S. Supreme Court precedent vastly further in the defendant's favor than its language warrants. Nothing unusual to this point.

Next, the Ninth Circuit grants rehearing en banc. At one point, the Ninth so rarely granted en banc to correct pro-defendant errors that some AG offices had largely given up asking and went straight to a certiorari petition to U.S. Supreme. More recently, though, the Ninth has taken up a few rogue pro-defendant decisions.

Now here is the unique part. The 11-judge pseudo en banc panel decides contrary to the original 3-judge panel unanimously. Wow.

News Scan

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CA Murder Suspect Frequent Parole Violator:  An Associated Press story reports  that sex offender John Albert Gardner, currently facing charges for murdering a 17-year-old San Diego girl, had been cited at least eight times for drug and traffic offenses since his 2005 release from prison.  Gardner was on parole during four of the incidents, including a drug offense. The Associated Press could not confirm whether Gardner, convicted in 2000 of beating and molesting a 13-year-old girl, could have had his parole revoked for repeatedly breaking the law.

Unfortunately, institutional pressure not to revoke parole has been part of California's culture for almost a decade.  That, and a relaxing of supervision, of even violent criminals on parole, has kept the newspapers busy reporting numerous murderers, rapes and other violent crimes by people who either should have still been serving time or been carefully supervised on parole.  The Governor, legislative leaders, and even a panel of federal judges, have told us that the state can not afford to send parole violators back to prison and besides, putting them in community rehab programs will help them straighten out their lives.  This happy talk did not keep habitual felon Charles Samuel, who avoided jail because he was a "low risk" offender, from kidnapping 17-year-old Lily Burk on Wilshire Boulevard in broad daylight last July.  Samuel has been charged with the girl's murder.  Supervised parole did not keep violent felon Lovelle Mixon from acquiring several illegal weapons and killing four Oakland police officers last March as reported here.  Mixon was also linked to a rape.     

Bragging Murderer Executed:  Richmond Times-Dispatch reporter Frank Green reports that condemned Virginia murderer Paul Warner Powell was electrocuted last night.  In 1999, Powell stabbed 16 year-old Stacie Reed to death with a survival knife during an attempted rape, and then waited for her 14 year-old sister to come home from school.  Powell raped Reed's sister, cut her throat, and left her for dead.  She survived and testified against him.  After Powell's first capital-murder conviction was thrown out on appeal for lack of a special circumstance, Powell wrote Prince William County Commonwealth's Attorney Paul B. Ebert an abusive letter boasting about the crimes and admitting his attempt to rape Stacie before killing her. The letter provided the special circumstance prosecutors needed to try Powell again for capital murder.  Following his conviction and sentence, Powell chose to die in Virginia's electric chair.  Commenting about Powell's execution to Washington Post reporter Josh White, the murder victim's sister Kristie said, "I was totally against the death penalty before this happened, and I didn't know why people would want to do it. But those people haven't been through what we've been through. Now I'm totally for it. He definitely deserves to die. He needs to die for what he did to Stacie."

Holder Endangered? WaPo columnist Michael Gerson thinks "Holder is the most endangered member of the Obama Cabinet.... Just about everything he has touched has backfired."

Blog Scan

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Ninth Circuit Denies Rehearing in al-Kidd v. Ashcroft:  Yesterday, the New York Times reported that the Ninth Circuit will not reconsider its ruling that former Attorney General John Ashcroft can be held personally responsible for misuse of the material witness statute after the 9/11 attacks. Orin Kerr followed up with this post on Volokh Conspiracy.  Last September, a panel for the Ninth Circuit held that the post-9/11 practice of using the material witness statute to detain suspected terrorists is not only unconstitutional, but clearly unconstitutional, and that former AG Ashcroft can be personally sued for his role in it.  Yesterday, the same judges denied rehearing.  Judges O'Scannlain, Kozinski, Kleinfeld, Gould, Tallman, Callahan, Bea (the panel dissenter), and Ikuta dissented from denial of rehearing en banc.  Kerr "think[s] there's a good chance the Supreme Court would agree to hear this case."

Anticipate Supreme Court Decisions on Tuesday:  On SCOTUSblog, Lyle Denniston reports that the Court is expected to announce opinions next Tuesday, "but probably not Wednesday."  On Monday, the Court will issue orders, and hear oral arguments in two cases.  The times of the two cases, Hamilton v. Lanning and Levin v. Commerce Energy, Inc., have been changed.  The Court had originally scheduled to hear Levin at 10a.m., but, according to the Court's new calendar, Hamilton will now be argued first. 

Federal Prison Population Debated by House: 
At Sentencing Law and Policy, Doug Berman writes that "the size and nature of the national (and federal) prison population was a topic of discussion during a House hearing yesterday."  According to a piece by Nick Wilson in the Courthouse News Service, members of the House are concerned about the growing numbers of inmates in federal prison.  Yesterday, Federal Bureau of Prisons Director Harley Lappin testified that the prison population is expected to grow by an additional 7,000 members next year, and attributed growth to a variety of factors, including the exponential growth in women prisoners.  Lappin also noted that the United States has seen a 45% increase in the last two years of people booked for immigration crimes, and countries like Vietnam and Cuba refuse to take back their convicted citizens.  Right now, 55,000 prisoners are non-citizens.  That is more than one quarter of the federal inmate population.  Lappin's testimony was a part of the Commerce, Justice, Science and Related Agencies Subcommittee's review of the the Federal Prison Bureau's request to increase its fiscal year 2011 budget to $6.1 billion dollars.  This is roughly $6 million more than this year's budget.

Political Leanings of the Court:  At Volokh Conspiracy, Orin Kerr posts the results of a new Rasmussen poll surveying the voting public's opinion of the Supreme Court.  The poll asked 1,000 voters whether "...the Supreme Court too liberal, too conservative, or about right?" 32% said too liberal, 33% said about right, 23% said too conservative, and 11% weren't sure.  Kerr comments that if the numbers are "accurate, it's fascinating to see such a gap between public opinion and portrayals of the Court in the media."  Jim Lindgren discusses results of another Rasmussen poll here.

Psychopathy and Mitigation Redux

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As Kent mentioned before, the factor a defendant claims in mitigation doesn't need to be a legal excuse.  And that is mentioned bluntly in this article from the journal Nature which discusses the nascent use of psychopathy as a mitigating factor based on brain scans:

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.

Some Reports Aren't Meant to Be Read

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Compassion Strikes Again...and Again


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.

Blog Scan

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Reset Your Internet Bookmark to  Lyle Denniston posts on SCOTUSblog that today, the U. S. Supreme Court assumed management of its website, and changed its URL.  The Supreme Court's website may now be found at, instead of  According to the Court's official press release, both addresses will provide access to the website through July 1, 2010. New features include: access to recent decisions from the Court's homepage; docket files dating back to 2000; an interactive Court calendar; and a new case citation finder.  Blog of Legal Times writer, Tony Mauro, has reviewed the features on the new website, and reports "it does not appear that the Supreme Court's new site has much new or different content, but what is there is more accessible and reader-friendly."

Fourth Circuit Upholds Death Penalty for Prison Murderer:  Yesterday, on Sentencing Law and Policy, Doug Berman posted on the Fourth Circuit's decision to uphold the federal death sentence of David Caro, a member of the Texas Syndicate convicted of killing his cellmate, Roberto Sandoval.  Berman's post highlight's Judge Gregory's dissent, and the controversial Eighth Amendment aspect of the ruling.  Judge Gregory believes that the majority applied the wrong test for deciding whether eligibility factors sufficiently narrow the class of defendants who can be executed.  While the Eighth Amendment aspect may be controversial, Caro's conviction for murder is not.  Caro was sentenced to 30 years in prison for transporting illegal drugs into the United States.  Once in prison, he became the leader of the Texas Syndicate, and was involved in two violent attacks on other prisoners.  In 2003, Caro murdered his cellmate, Sandoval, because Sandoval had cursed at Caro for eating his breakfast.  Caro admitted the murder in a letter, writing "I killed a guy two weeks ago . . . [f]or being a fool."

Confrontation at the Court:  On Bench Memos, Matthew Franck comments on a recent New Republic article by Jeffrey Rosen, titled POTUS v. SCOTUS.  The article opens with "Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight[,]" and Franck comments that '[t]his is not a promising beginning for Rosen's piece..."  Franck finds fault with Rosen's presumption that the Chief Justice and the President are "gunning for a confrontation[,]" and disagrees with Rosen's assertion that when presidents confront the Supreme Court, "it's almost always the president who prevails." Franck examines the history of "POTUS v. SCOTUS" confrontations and reaches a different conclusion. He believes presidents that "confront the Supreme Court, more often than not, wind up involving themselves in ineffectual flailing against a sphinx-like institution that gives little response and less ground."

News Scan

"Honest Services" Confusion Won't Delay Blagojevich's Trial: Chicago Tribune writer Jeff Coen reports that U.S. District Judge James Zagel denied Rod Blagojevich's request to delay the trial until November.  Blagojevich is charged with unlawfully leveraging the powers of his office for money and attempting to sell President Barack Obama's vacate Senate seat.  His attorneys requested a delay because of a pending U.S. Supreme Court decision on the "honest services" fraud law in U.S. v. Black and an avalanche of evidence handed over by prosecutors over the past few weeks.  Although there is concern that some, or all, of the "honest services" fraud law will be thrown out because it is too vague, Judge Zagel said the jury will be looking at the facts of the case and not the possibly changing law.  At his trial, Blagojevich plans to prove his innocence by playing recordings, that were secretly made by investigators in 2008, as he testifies. 

No Delayed Execution for the Killer of Three:  Associated Press writer Micheal Graczyk reports that Texas death row inmate Hank Skinner's request to delay his execution has been denied by Texas Court of Criminal Appeals.  Skinner was convicted of fatally bludgeoning 40-year-old Twila Busby and fatally stabbing her two adult sons, Elwin Caler, 22, and Randy Busby, 22.  Skinner has claimed that he is innocent, and that it could have been Twila Busby's uncle, Robert Donnell, that killed the three.  His lawyers believe that his innocence could be proved by testing DNA found at the scene.  For now, Skinner's execution will go on as planned, although he is hopeful that the Supreme Court or Gov. Rick Perry will help him halt his execution. 

Yale Plans to be the Archive of Bobbleheads:  New York Times writer Adam Liptak reports on Yale's new exhibit of Supreme Court Justice bobblehead dolls.  The Green Bag has created about one bobblehead a year since 2003.  They started with Chief Justice Rehnquist and add more in the reverse order of seniority.  Ross E. Davies, editor in chief of The Green Bag, says "The bobbleheads are, not to overstate it, a little bit more than toys.  They're portrayals of the work and character of these judges."  The bobbleheads are not for sale and hard to get a hold of.  The Journal has stated, "We make no promises about when we will make them or who will get them."

Oklahoma Considering Bill That Could Execute Child Rapist: Associated Press writer Sean Murphy reports on an Oklahoma measure that could allow for punishment of life in prison without parole, or death, for anyone convicted of a second offense of raping a child 6 or younger.  The bill has already passed the House and is scheduled for a hearing in the Senate Appropriations and Budget Committee.  Louisiana had a similar law that was declared unconstitutional in 2008 by the U.S. Supreme Court.  In the Court's majority opinion, found here, Justice Kennedy wrote, "(t)he death penalty is not a proportional punishment for the rape of a child."  If Oklahoma's bill becomes a law and is used, it will most likely be challenged.  The senator sponsoring the bill in Oklahoma's senate is hoping that the recent changes in the Supreme Court will yield a different result.  

DOJ, Partisan Campaigner


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."

Idaho Limits Retroactivity

One of the main sources of reversal of judgments in capital cases has been the inability of the U.S. Supreme Court to agree with itself from one year to the next what the Constitution requires and what it forbids. Cases tried correctly under the law in effect at the time of the trial can be reversed years or even decades later after the rules have changed.

Since 1989, the case of Teague v. Lane has been important in limiting the damage from what Justice Scalia called this "annually improvised" body of jurisprudence, at least in federal court. However, in the 2008 case of Danforth v. Minnesota, the high court clarified that states could give new rules broader retroactive effect if they wished. (As an all-weather federalist, I think Danforth is correct, even though it may lead to unwarranted results.) The Idaho Supreme Court today decided to stick with Teague.

Blog Scan

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Raising Old Claims in New Habeas Petition:  At SCOTUSblog, Harvard Law School student Jay Rapaport previews Magwood v. Patterson (09-158), a case that will be argued before the U.S. Supreme Court next Wednesday.  The case will address whether a prisoner who had been re-sentenced after having obtained federal habeas relief from an earlier sentence, may challenge his re-sentencing on grounds that were available but not raised in the petition that vacated his original sentence.  Billy Joe Magwood has twice been sentenced to death for his premeditated murder of Sheriff Grantham in 1979.  Over the years, Magwood's lawyers challenged his sentence on several grounds, but it was not until 1997 that they raised the question of whether his was actually a capital crime under Alabama law. In the meantime, a federal judge, acting on other grounds, ordered Magwood resentenced in 1985. He was again sentenced to death the next year.  Now Magwood would like to challenge his 1986 re-sentencing on a ground he could have raised the first time. The state opposes Magwood's challenge, arguing that AEDPA is a "claim-focused" statute, and allowing Magwood to proceed would open the door to wasteful, repetitive litigation that AEDPA sought to prevent.

Attorney General Weighs in on Osama and KSM: 
At Wall Street Journal's Law Blog, Ashby Jones writes that yesterday, during exchanges with Republicans on the a House budget subcommittee, Attorney General Holder stated that if ever captured, "we will be reading Miranda rights to the corpse of Osama bin Laden."  A Washington Post story by Devlin Barrett reports that Holder's remarks drew some criticism from members of the committee.  Representative John Culberson (R-TX), was upset that Holder compared the rights of terrorists to those of convicted murderer Charles Manson.  He said it showed the Obama administration doesn't understand the American public's desire to treat terrorists as wartime enemies, not criminal defendants.  David Ingram at Blog of Legal Times also reports on Holder's remarks. 

Discretion in Sentencing:  Yesterday, at Sentencing Law and Policy, Doug Berman had two posts highlighting the debate over mandatory and discretionary sentencing practices.  In his first post, Berman directs readers to Sixth Circuit Judge McKeague's partial dissent in U. S. v. Wallace, a case addressing the procedural reasonableness of the sentence imposed for conspiracy to possess with intent to distribute OxyContin. The Sixth Circuit found Gall error, and vacated Wallace's sentence.  Judge McKeague agreed that the conviction must be affirmed, but remained "unpersuaded that the sentencing court's procedural error, in failing to adequately explain its sentencing decision, either affected defendant's substantial rights or affected the fairness, integrity, or public reputation of the judicial proceedings."  Berman's second post links to Craig D. Rust's SSRN article, When 'Reasonableness' is Not so Reasonable:  The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough.

"Justice Will Be Done"


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. 

Enrolled bills and false statements

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Is it a crime for the Clerk and Speaker of the House of Representatives to sign an enrolled bill that has not, in fact, been approved by a vote of the House?

According to this CRS Report,

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.

What if the bill has not, in fact, been passed by a vote of the House but is merely "deemed" to have passed by a rule?  18 U.S.C. §1018 provides,

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.

No habeas for Hennis

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Timothy Hennis is, as of this morning, still on the DPIC's notorious "innocence list." He was convicted of rape and three counts of premeditated murder in North Carolina in 1986. Following reversal on appeal, he was acquitted on retrial in 1989. That means only that the jury did not find the evidence available at the time of retrial was sufficient to meet the high burden of proof beyond a reasonable doubt. It does not mean Hennis has been shown to be actually innocent, as the DPIC list is so often wrongly cited.

At the time of the crime, Hennis was in the Army. The victims were the wife and children of an Air Force officer who was away on temporary duty.  A service member's worst nightmare is that something terrible will happen to your family while you are "TDY." After the retrial, Hennis resumed his military career and retired as a master sergeant.

Time and forensic technology move forward. In 2006, a cold case review matched Hennis's DNA to the semen from the rape. The Army recalled him to active duty to face court-martial charges.  Under the dual sovereignty doctrine, the North Carolina acquittal does not preclude charges by the United States, a different sovereign.

However, Hennis claimed a "break in service" precluded a court-martial for conduct occurring during an earlier term of service. The military court system rejected his attempt to stop the trial on that ground. Hennis then petitioned the federal district court for a writ of habeas corpus.

While the civilian courts have jurisdiction to hear such challenges, that jurisdiction is sparingly exercised. Schelsinger v. Councilman, 420 U.S. 738 (1975) sets out a principle of restraint analogous to the exhaustion rule governing federal habeas petitions by state-court defendants. Yesterday, Judge Terrence Boyle denied the petition under Councilman. AP has this story.

News Scan

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"Violence Prompts Debate Over Medical Marijuana":  William Yardley of The New York Times reports on a recent shooting and deadly beating linked to medical marijuana in Washington.  The incidents have prompted law enforcement officials and marijuana advocates to call for changes to its regulations of the drug.  In the past week, a man in Orting, Washington, died after being beaten while confronting people stealing marijuana plants from his property.  This past Monday, a marijuana plant grower shot an armed man who is accused of breaking into his home.  Washington legalized medical marijuana in 1998, and increased violent crimes underscore the conflicts in state policy.  Washington's laws do not require the state to play a formal role in regulating and distributing the drug.  The majority of medical marijuana is distributed through private homes or small offices.  As a result, robberies have become more common in Washington, and tend to be under-reported.  State Senator Jeanne Kohl-Welles, a Democrat from Seattle, said she and another lawmaker would introduce legislation next year to protect access to medical marijuana and protect those who grow it.  It should only protect those who obey the law.  The medical marijuana grower that was involved in the recent shooting, was not in compliance.  He and his girlfriend were entitled to have 50 plants each in the house they shared, but investigators found baked, frozen, and chocolate goods laced with marijuana along with a total of 385 plants in his home.

Off-Topic, But in Honor of St. Patty's Day:  In The New York Times, Thomas Cahill has an op-ed celebrating the Irish, in "Turning Green With Literacy."

Hell has officially frozen over

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Off-topic but interesting: Howard Kurtz reports the above in the WaPo. Probably has something to do with global warming.

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.


News Scan

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"More States Rethinking Life Sentences for Teens": National Law Journal writer Tresa Baldas reports on legislation in two states, and up for consideration in 11 states, that would end life sentences for those under 18 years old.  This would restrict the state's ability to try juveniles as adults.  According to Baldas, while efforts to abolish juvenile-lifer laws are nothing new, the legislators' willingness to side with criminal defense lawyers is a change.  Juvenile justice reform advocates are lobbying state lawmakers stating that juveniles do not have the intellectual capacity or maturity to consider consequences before acting.  Prosecutors are not buying the argument.  "The juvenile crusaders are painting a false picture of those adolescents who receive life sentences," said James Reams, president-elect of the National District Attorneys Association.  It's not the "kids selling pot" and other petty criminals, but those committing heinous crimes such as thrill-kill murders or "pretty horrific" rapes that are being sentenced to life without parole.  In two Florida cases, Graham v. Florida and Sullivan v. Florida, argued in November (CJLF brief on both cases found here), the Court is considering whether LWOP for juveniles who have committed crimes other than murder violates the U.S. Constitution's prohibition on cruel and unusual punishment.

Ohio Executes Inmate After Week-Long Reprieve: Associated Press writer Matt Leingang reports on the execution of Ohio death row inmate Lawrence Reynolds Jr., on Tuesday.  Reynolds was convicted of killing Loretta Foster, a 67-year-old widow who babysat children in her neighborhood and lived three doors down from him in Cuyahoga Falls.  Reynolds had sued the state, saying it still hasn't corrected problems with accessing inmates' veins before the single drug in injected.  He lost his final court battle Monday when the U.S. Supreme Court declined to intervene.  His death came nine days after prison guards found Reynolds unconscious in his cell from a suicide attempt.  Leingang's report on his attempt can be found in our March 8 News Scan.  Reynolds is the fourth inmate to be put to death under Ohio's new lethal injection procedure, which uses one drug instead of three.

Returning Veterans Find Sympathy in Courts: New York Times writer John Schwartz reports on a growing trend towards creating special courts to ensure that veterans in court receive the treatment their service entitles them to.  "More and more courts are noticing and asserting, in a variety of ways, that there seems to be some relevance to military service, or history of wartime service, to our country," said Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing.  There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, and statistics suggest that 27 percent of active-duty veterans returning to civilian life were at risk for mental health problems including post-traumatic stress syndrome.  Lighter sentences are part of a broader fight over once-rigid federal guildelines that tend to punish the crime while giving little weight to circumstances of the defendant.  The guidelines explicitly state that "good works" like military service "are not ordinarily relevant" in determining whether to give sentences below the recommended range. The Supreme Court, however, in a series of cases, has declared that the federal sentencing guidlelines are advisory, not mandatory.  The United States Sentencing Commission is considering proposals that would allow military service or other evidence of "prior good works" to be considered as mitigating factors in sentencing decisions.  A veteran's court in Orange County was reported on in this L.A. Times article last year.

Compassion Strikes Again

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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.  

The Holder Briefs

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Regarding the Eric Holder brief kerfuffle, I have obtained and uploaded the briefs and other documents for your perusal. They are listed after the jump.

Last Friday, David Savage had this article in the LA Times saying, among other things, "The six briefs to the Supreme Court were not Holder's work alone. In every instance, he was one of a group of prominent lawyers or ex-judges who signed a friend-of-the-court brief."

I expect that is an understatement. It would not surprise me if Holder did not write a single word of any of the briefs. He has been part of an irksome trend toward filing group amicus briefs filed for the purpose of assembling a bunch of names that some people might find impressive, often on a brief that contributes little of substance beyond the arguments submitted by the parties. I doubt such name-dropping has much impact on the Court.

Along with the Padilla briefs that have gotten most of the press, Holder also signed on to a brief arguing that taking the vote away from people who have committed felonies is a violation of the Voting Rights Act of 1965, because it is supposedly racial discrimination. This view turns the notion of racial prejudice completely on its head. "Prejudice" means pre-judging people. It means forming a judgment about someone's character before you have individualized information, based on a group characteristic such as race. A judgment made and consequence imposed after the person's individual behavior has been proved (in criminal cases, beyond a reasonable doubt) is the antithesis of prejudice. To say that we should refrain from letting people bear the consequences of their individual, voluntary acts because of how racial numbers break down is the opposite of the color-blind ideal of judging according to the content of one's character rather than the color of his skin.

Blog Scan

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Turning 90, and Considering Retirement:  At SCOTUSblog Lyle Denniston reports that on April 20th, Justice Stevens will celebrate his 90th birthday, and become the second oldest Justice ever to have served on the Court.  According to Denniston, April may also be the month that Justice Stevens announces his retirement.  Whether he will or not remains up in the air.  Denniston reports that in a March 8th interview with Jeffery Toobin, Justice Stevens stated that he would make up his mind in about a month.  Denniston believes that if Justice Stevens does desire to retire, he will announce his decision after the Court has completed hearing oral arguments on April 28th.  Justice Stevens may still decided to stay another year.  He reportedly told Toobin, "...I still have my options open...When I decided to just hire one clerk, three of my four clerks last year said they'd work for me next year if I wanted them to.  So I have my options still.  And then I'll have to decide soon."  Denniston also has this post on SCOTUSblog, with more details on Justice Stevens' interview with Toobin.

A History of Presidential Pardon Power:  Sentencing Law and Policy's Doug Berman links to an article by former-U. S. Pardon Attorney Margaret Colgate Love, describing the decline of the pardon power and its hopeful revival.  In her piece, The Twilight of the Pardon Power, Colgate Love examines the pardoning practices in the 19th and early 20th centuries, and discusses how it changed in 1930 to become a tool for restoring the rights of citizenship.  She then examines the reasons for its decline and eventual collapse during the Clinton Administration.  She closes by arguing that President Obama should revive the power, and offers suggestions for how he might do so.

The Department of Justice Defaults to "Openness" :   At Blog of Legal Times, Mike Scarcella reports that today, Attorney General Eric Holder Jr. stated that the Department of Justice has increased the rate of disclosure, and reversed what he called a "disturbing" trend.  The Attorney General stated the department remains committed to the principle that "we make openness the default, not the exception" when it comes to public interest in government records.  At each of the Federal departments, Chief FOIA officers are supposed to submit a finalized report today to the DOJ Office of Information Policy.  DOJ officials said the public will have access to the reports via a DOJ website.  Tony Mauro reports on other D.C. events that will commemorate Sunshine Week, a week aimed at spotlighting and promoting government openness.

The Political Ambitions of a Judge's Wife: 
Yesterday, on Volokh Conspiracy, Eugene Volokh commented on the "prominent political role[s]" of Virginia Thomas and Ramona Ripston, the wives of Supreme Court Justice Thomas and Ninth Circuit Judge Reinhardt, respectively.  According to Volokh, Virginia Thomas just founded Liberty Central Inc., a conservative activist group, and Ramona Ripston just stepped down from being head of the Southern California ACLU.  Volokh's comments are a response to "particularly pernicious or dangerous:  Judges have plenty of political and ideological predispositions that they bring to the job from their earlier lives, and of course they have judicial philosophies that often make them in sync with particular political groups."

News Scan

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A National DNA Database:  New York Times Op-ed contributor, Michael Seringhaus writes that President Obama has made clear that we need a stronger DNA database that is readily available to law enforcement in every state, in order to "continue to tighten the grip around folks who have perpetrated these crimes."  But critics claim there is a racial bias while sampling of arrestees.  Seringhaus believes there is a better solution: keep every American's DNA profile on file.  According to Seringhuas, a national DNA database with profiles of every person is more likely discover the source of a crime-scene sample, and would eliminate any racial bias.  It would also be a much stronger tool for law enforcement.  It would deter first-time offenders, and would enable police to quickly apprehend repeat criminals.  Seringhaus claims a universal DNA collection is quite easy: "it could be done alongside blood tests on newborns, or through painless cheek swabs as a prerequisite to obtaining a driver's license or Social Security card."  He believes that as long as "our privacy remains secure, there is no excuse not to use every bit of science we can in the fight against crime."

Obama's Ninth Circuit Judicial Nominee:  Mark Sherman of the Associated Press reports on Obama's choice of judicial nominee, Goodwin Liu, for the 9th U.S. Circuit Court of Appeals in San Francisco.  Obama's nominee has drawn strong criticism from conservatives.  Liu is a 39-year old liberal legal scholar who is currently the assistant dean and law professor at the University of California, Berkeley.  If confirmed, he could become a force on the federal appeals court for decades.  Senator Jeff Sessions, the senior Republican on the Senate Judiciary Committee, described Liu as "far outside of the mainstream of American jurisprudence."  Only six of Obama's 15 appeals court nominees have been confirmed.  But Liu's place on the Ninth Circuit may not be the only  issue.  According to Curt Levey of the Committee for Justice, "[t]he bigger concern is that he'll wind up on the Supreme Court." 

"Holder Did Not Disclose Briefs On 'Enemy Combatant'":  Charlie Savage and Bernie Becker of the New York Times, reported last Thursday, that during his confirmation hearings Attorney General, Eric H. Holder Jr. did not notify the Senate that he signed several briefs urging courts to reject President George W. Bush's claim that he had the power to imprison Jose Padilla as an "enemy combatant."  "The briefs should have been disclosed as part of the confirmation process," said Mathew Miller, a Justice Department spokesman.  Republicans have made it clear that they are likely to attack Holder for joining the briefs, and failing to list them, along with other public documents, when he testifies before them later this month.  Republican Senator of Alabama, Jeff Sessions, said the opinions in the briefs "go to the heart of his responsibilities in matters of national security."  "This is an extremely serious matter," he said, "and the attorney general will have to address it."  Bill Otis posted his thoughts on the Attorney General's omission last Friday. 

Addiction and Freedom

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Sally Satel has a terrific review at the New Republic online of one of the best books around these days on addiction: Addiction: A Disorder of Choice by Gene M. Heyman.   From the review:

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.

Anyone who has an interest in addictions should read Heyman's book.  It challenges the prevailing disease-model rhetoric with persuasive arguments backed by solid empirical findings.    

Blog Scan

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Chelsea King Killer Violated Parole but Avoided Prison:  At Sentencing Law and Policy, Doug Berman posts a link to a Los Angeles Times article describing how the man accused of killing Chelsea King violated his parole, but avoided being sent back to jail.  In his article, Richard Marosi explains that John Albert Gardner III violated parole in 2007 by living close to a school, but was not sent back to prison because he complied with relocation orders.  The California Department of Corrections and Rehabilitation released a statement yesterday explaining that while Gardner had several minor potential parole violations, the violation of the residency rule could have led to a hearing process with parole officials.  Todd Spitzer, a prosecutor, said the department has eased up on parole violators because of prison constraints. "They were ignoring public safety with one goal in mind: They were trying to solve the prison overcrowding."

Notable Criminal Petitions to Watch:  On SCOTUSblog, Erin Miller has posted its Petitions to Watch for the Supreme Court's March 19 Conference.  Miller provides links to seven cases that Tom Goldstein has deemed to have a reasonable chance of being granted, and three of them address areas of criminal law.  Moran v. United States (09-392) asks the Court to decide whether a Federal Rule of Criminal Procedure, which permits a defendant to comment on "matters relating to an appropriate sentence," entitles a defendant to be notified prior to the pronouncement of sentence that sex offender special conditions of supervised release are contemplated; Kentucky v. Cardine and Curry (09-419) addresses whether the Double Jeopardy Clause bars the retrial of a defendant after the trial court sua sponte declares a mistrial absent manifest necessity and the defendant does not object prior to the actual discharge of the jury; and Beard v. Thomas (09-527), an AEDPA capital case, asks whether Thomas was prejudiced by the absence of supposedly mitigating evidence, when the mitigating nature of that evidence is disputed and he refused to allow any mitigation evidence.

Some Comments on Justice Thomas's Silence: 
February 22, 2006, marked the last time Thomas asked a question during oral argument, and on February 22, 2010, Tony Mauro wrote an article on those criticizing Justice Thomas's silence.  Yesterday, Linda Greenhouse joined their ranks with her opinion piece on New York Times' Opinionator blog.  Mauro's post discusses a recent Florida Law Review article, Why Justice Thomas Should Speak at Oral Argument, by David Karp, that argues "[b]y removing himself from oral argument, Justice Thomas' opinions do not benefit from the full adjudicative process designed to test theories in open court."  Mauro goes on to explain that Justice Thomas may remain silent out of respect for the advocates, and to give them a chance to talk.  Steffen Johnson of Winston & Strawn in Washington, an advocate who appeared before the Court in Holmes v. South Carolina, said Justice Thomas' style "reflects humility on his part."

The DOJ Eight

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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."



Blog Scan

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Revised Supreme Court Rules:  Yesterday, SCOTUSblog writer Adam Schlossman reported that on February 16, 2010, the Supreme Court enacted its revised Rules of the Supreme Court.  The updated rules reduce the number of words allowed in a merits reply brief from 7,500 to 6,000, and change Rules 26 and 34.1 to clarify what must be included on the cover of the Joint Appendix.  The new rules also require the counsel of record to include an e-mail address on the cover of every document filed.  The Court also made changes to Rule 37, clarifying that only an attorney admitted to practice before the Court is permitted to file an amicus curiae brief and that extensions of time for amicus curiae briefs at the merits stage will not be entertained. Other minor changes can be found in the Court's official memorandum.

A Study on "Last Words":  In June 2009, Justice Quarterly published Of Guilt, Defiance, and Repentance: Evidence from the Texas Death Chamber, an empirical article statistically examining what an inmate says right before he is executed.  The study, conducted by Stephen K. Rice, Danielle Dirks and Julie J. Exline, examined inmates' final statements for the period between December 1982 and early June 2005.  The authors found that before January 12, 1996, 14% of the last statements admitted responsibility and 6% expressed sorrow or sought forgiveness from the victim's family.  Only 10% of the last statements were coded as criticizing the legitimacy of the death penalty.  On January 12, 1996, Texas began allowing family and friends of homicide victims to attend executions.  After that date, 43% of inmates admitted guilt during their last statements 41% expressed repentance and a desire for forgiveness. (h/t Ian Ayers' post on New York Times' Freakonomics Blog)

House Impeaches Federal Judge Porteous: 
At Wall Street Journal's Law Blog, Ashby Jones reports that the House of Representatives has unanimously voted to impeach New Orleans federal judge Thomas Porteous.  Porteous had been accused of of soliciting money from lawyers who appeared before him.  According to a Times-Picayune article by Bruce Alpert, Porteous is the 15th judge found to have committed "high crimes and misdemeanors," the Constitution's criteria for impeachment.  Representative Adam Schiff (D-Calif.) stated, "Our investigation found that Judge Porteous participated in a pattern of corrupt conduct for years."  On Volokh Conspiracy, Eugene Volokh posted the articles of impeachment.

Data From the Sentencing Commissions Quarterly Update:
  At Sentencing Law and Policy, Doug Berman sees a "slow migration away from guidelines" in the U.S. Sentencing Commissions 2009 Final FY09 Quarterly Update.  Berman reports that in FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases.  In 2% of all the cases, judges ordered an above-guideline sentence and initiated a below-guideline sentence in nearly 16% of all cases.  The Sentencing Commissions data from FY 2008 wasn't too different.  In 2008, prosecutors sponsored a below-range sentence in approximately 25% of its cases and judges initiated a below-range sentence 13.4% of the time.

News Scan

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Body-Armor For Felons?: San Francisco Gate writer Bob Egelko reports on the California Attorney General's appeal to at the California Supreme Court to examine a ruling throwing out a state law that bans anyone who has been convicted of a violent felony from owning body-armor.  The law, passed in 1998, was intended to protect police against flak-jacketed criminals.  The law makes it a crime, punishable by up to three years in prison, for felons with violent offenses on their record to possess or wear body armor.  State regulations define body armor as apparel that provides "ballistic resistance to the penetration of the test ammunition" for certain types of guns, a standard also used to certify armor for police.  In December 2009, a state appeals court in Los Angeles ruled that the law was unconstitutional because its terms were so vague that the average person wouldn't know when he or she was violating it.  "Allowing criminals and gang members to arm themselves with body armor makes no sense, and I'm confident the [California] Supreme Court will reverse this wrong-headed decision," Attorney General Jerry Brown said Wednesday.  No hearing date has been set for the case.

White Supremacist Blogger Receives Second Mistrial: New York Law Journal writer Mark Fass reports on the second mistrial of blogger Harold "Hal" Turner, the New Jersey white supremacist charged with threatening to kill three Chicago federal judges.  Turner was arrested last June after posting blog entries stating that the three federal judges "deserve to be killed" for their decision upholding handgun bans in Chicago and Oak Park, Illinois.  At the end of their deliberations Wednesday, the jurors sent a note to the judge stating that another day of deliberations would be useless.  This was the third time they had stated that they believed a unanimous verdict was impossible.  The mistrial constitutes a serious defeat for the U.S. Attorney's Office for the Northern District of Illinois, which prosecuted the case.  Following the first mistrial in January, in which the threatened judges, Judges Richard Posner, William Bauer and Frank Easterbrook, did not appear as witnesses, a juror told the reporters the jury deadlocked due to a lack of testimony.  This time, all three judges flew to New York and took the witness stand.  Out Blog Scan reported on Judge Easterbrook's testimony and can be found here.  After this second mistrial, an attorney for Turner called the case a "victory." Another article on the story by the Associated Press can be found here.

Death Penalty Legislation

What a difference a year makes. There are three news stories about death penalty legislation in my Google Alerts email this morning, and all three are about state legislatures considering expanding their death penalty laws. They are noted after the jump.

So what's going on here? Has public opinion on the death penalty shifted dramatically from last year, when repeals and contractions were on the table, to this year, when expansion is on the table in multiple states? No. Polls consistently report that support has been steady. The difference is that political tides have changed for unrelated reasons, producing a shift in which legislators feel confident of reelection and which feel uneasy.

Blog Scan

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An Umpire Strikes Back:  Yesterday's Above the Law "Quote of the Day," featured Chief Justice Roberts, and his remarks revisiting the exchange between President Obama and Justice Alito during the State of the Union address.   According to an Los Angeles Times article by David Savage, Chief Justice Roberts told University of Alabama law students that he found it "very troubling" to be surrounded by loudly cheering critics at President Obama's State of the Union address.  During the program's Q&A, the Chief Justice was asked about the incident, he stated that the criticism didn't bother him, "[a]nybody can criticize the Supreme Court. . . . I have no problem with that."  He objected to the criticism in such a public setting.  The Chief Justice also commented on the politics surrounding the State of the Union, saying "[t]o the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we are there."  At Volokh Conspiracy, Eugene Volokh comments that if the Justices don't want to attend, "the Congress Provision of the State of the Union Clause should serve as an adequate excuse."  At Crossroads, Jan Crawford comments on White House Press Secretary Robert Gibbs' response to the Chief Justices remarks.  She writes, "[f]or the life of me, I just don't get why the White House continues to try to pick a fight with the Supreme Court."

Another Hearing on Texas's Death Penalty:  Doug Berman posts on Sentencing Law and Policy that Texas District Court Judge Fine is "reconsidering [his] declaration that state's death penalty is unconstitutional."  An AP piece by Juan A. Lozano reported that Judge Fine took back his controversial ruling yesterday, and has scheduled a hearing for next month to hear evidence on the issue.  Judge Fine has stated that he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person.  He has asked Harris County defense attorneys and prosecutors to submit motions on the due process issue by April 12.  An evidentiary hearing is scheduled for April 27, when testimony on whether innocent people have been executed in Texas is set to be presented.  At Homicide Survivors, Dudley Sharp provides his thoughts on Judge Fine's decision.

More on Criticizing Lawyers Who Represent Detainees: 
At Volokh Conspiracy, Orin Kerr responds to Andrew McCarthy's comments on pro bono lawyers for Guantanamo detainees.  Kerr does not agree with McCarthy's assertion that lawyers "assist[ed] the enemy . . . against the American people during wartime."  His post explains why.  Kerr's post addresses McCarthy's claims that "only criminal defendants" have a right to counsel, and discusses McCarthy's comments on the Boston Massacre.  At Wall Street Journal's Law Blog, Ashby Jones rounds up coverage on the fallout from criticisms like McCarthy's.  He focuses on editorials and articles written about the Keep America Safe video released last week.

"Mistaken Defenses to Goodwin Liu":  On NRO's Bench Memos, Ed Whalen is "pleased to report" criticisms of his blog posts on the nomination of Goodwin Liu are "ill-founded."  

The DOJ Seven


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.

Locking Guns in Massachusetts

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The Supreme Judicial Court of Massachusetts upheld the state's gun locking requirement today in Commonwealth v. Runyan, SJC-10480, distinguishing D.C. v. Heller on two grounds.

First, the Massachusetts court holds that the Second Amendment does not apply to the states. That issue is presently before the Supreme Court in McDonald v. Chicago.

Second, the court distinguishes the Massachusetts law from the more restrictive D.C. law.

The latter holding would make a simple "vacate and remand" inappropriate in the event the Supreme Court decides in favor of incorporation in McDonald.

Denise LaVoie has this story for AP.

Judicial Intemperance

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Judson Berger reports on,

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.

News Scan

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"The American Tradition of Zealous Representation of Unpopular Clients":  John Schwartz of The New Times reports on the criticism certain Justice Department lawyers have faced over their loyalty.  The lawyers once represented detained terrorist suspects, and an  advocacy organization in Washington has used this to question the lawyers' patriotism.  Attacks on these lawyers have drawn commentary from conservative legal scholars who believe that questioning the lawyers' loyalty violates the American legal principle that even unpopular defendants deserve a lawyer.  Benjamin Wittes, a senior fellow at the Brookings Institution, issued a joint letter signed by former Republican administration officials and other conservative figures, criticizing attacks, claiming they were "unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."  Richard A Epstein, a law professor, finds it "appalling" that people equate working on detainee cases with a lack of patriotism.  David M. McIntosh, a former member of Congress and a founder of the Federalist Society, thinks sometimes it might be legitimate to examine the agenda of a lawyer.  "Was the person acting merely as an attorney doing their best to represent a client's case," he asked, "or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?"  If the commitment to the case is ideological, he said, it is reasonable to ask, "Is that the best attorney for the Justice Department?"  Kent also linked to Michael Mukasey's Wall Street Journal article on DoJ criticism today.

Shoddy and Dangerous

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Former AG Mukasey is getting pretty close to being a regular columnist at the WSJ. Maybe he should be. In today's piece, he notes parallels between the attacks on John Yoo and Jay Bybee and the attacks on current DoJ lawyers who represented Guantanamo detainees. "This is all of a piece, and what it is a piece of is something both shoddy and dangerous."

Third Time the Charm?

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A third jury has decided that serial killer Rodney Alcala should be sentenced to death for five murders, including that of a 12-year-old girl. Gillian Flaccus has this story for AP. The previous judgment was overturned by the Ninth Circuit. The story says the jury "recommended" death, but in California the jury returns a verdict, not a recommendation.

The State of the State of the Union

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Jay Reeves reports for AP:

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."
While looking for something else, I came across a transcript of Professor John McAdams' testimony to the Senate Judiciary Committee, Senate Hearing 109-540, Feb. 1, 2006. I've copied it in full after the jump. Some of the numbers are a bit out of date, but the main points remain valid.

Blog Scan

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Constitutional Right to Informational Privacy: Today's News Scan linked to Bob Egelko's report on the Supreme Court's grant of certiorari in NASA v. Nelson. Yesterday, Eugene Volokh posted his thoughts on the case, comparing the background checks conducted by NASA to criminal investigations by police. Volokh explains that in NASA the Ninth Circuit concluded it was unconstitutional for the government to ask people who knew NASA employees broad questions. Questioning "references, employers, and landlords" presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe. Volokh believes the ruling's implications are "stunningly broad." He writes that the Ninth Circuit's suggestion, that the right to privacy is violated when an officer asks broad questions, will limit an officer's ability to ask people broad questions about what they know of a potential suspect.

Debunking The Belief That "We Execute Innocent People": At Homicide Survivors Dudley Sharp posts on Texas District Court Judge Fine's decision to clarify his ruling regarding the death penalty in Texas. Sharp finds Judge Fine's clarification that his ruling was " . . . limited only to the due process claim that 37071 has resulted in the execution of innocent people . . . ," curious when "(1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process." Last Friday's Blog Scan reported on the ruling, and Kent's comments are available here.

Abandoning the Exclusionary Rule: At CrimProf Blog, Kevin Cole links to Todd E. Pettys' SSRN article, Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule. Pettys' argument is that allowing the exclusionary rule in cases involving juries infringes upon jurors' deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court's deterrence objectives. He believes it might be time to abandon the exclusionary rule, and suggests that the Supreme Court might already be willing to abandon the rule, depending on whether Congress enacts laws that will strengthen the threat of financial liability for Fourth Amendment violations. Two Volokh Conspiracy bloggers also have posts on the exclusionary rule. Orin Kerr continues his discussion of whether Herring v. United States establishes a good faith exception to the exclusionary rule, this time distinguishing Illinois v. Krull, a case where the police relied on a statute which had not been held unconstitutional at the time of the search. Eugene Volokh discusses Texas's statutory exclusionary rule, applied in Wilson v. State. He is surprised Texas has a statutory exclusionary rule.

Texas Judge Rescinds DP Ruling

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Juan Lozano reports for AP,

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.

Has this guy been asleep since 1972 and come out yawning like Rip Van Winkle? These issues have been debated ad nauseam.

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Practical to Keep Two Options for Terror Trials: New York Times writers Charlie Savage and Scott Shane report on the idea to retain two separate systems for trying foreign terrorism suspects: military commission and civilian courts.  While politicians argue for one over another, former counter-terrorism officials are warning that the political debate has lost touch with the pragmatic advantages of keeping both the civilian and military systems available.  There are problems with a commissions-only policy: some nations will not extradite terrorism suspects or provide evidence to the United States except for civilian trials; federal courts offer a greater variety of charges for use in pressuring a defendant to cooperate; military commission rules do not authorize a judge to accept a guilty plea from a defendant in a capital case; and the military system is legally untested, so any guilty verdict is vulnerable to being overturned on appeal.  Those in favor of military commissions argue that critics are exaggerating any problems with commissions and overlooking their advantages.  Congress overhauled military commissions last year to increase defendant's rights, and the United States may be able to persuade foreign countries to extradite suspects to military tribunals.  There might be value to keeping both systems.  Juan C. Zuarte, former deputy national security adviser for combating terrorism stated, "We shouldn't inadvertently handcuff ourselves by taking [civilian terrorism trials] completely out of our tool kit."

Getting the Last Word: New York Times writer Adam Liptak reports on the growing frequency of oral dissents being delivered from the Supreme Court bench.  "Dissenting from the bench," a new study to be published in Justice System Journal, contends that dissenting is a sort of nuclear option that "may indicate that bargaining and accommodation have broken down irreparably." There is, of course, an element of stagecraft to oral dissents.  If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.  Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.  "In 15 years on the bench," he said, "I have never read a dissent from the bench, but today's decision requires that I do so." Justice Thomas had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

Federal Background Probes Come Into Question: San Francisco Gate writer Bob Egelko reports on the Supreme Court's decision to hear NASA v. Nelson, and decide how far the government can go in looking into the background of NASA scientists and engineers.  The court granted the Obama administration's request to hear an appeal of a lower-court ruling that barred NASA from conducting far-reaching inquiries into the lives of 28 workers at the Jet Propulsion Laboratory in Pasadena.  They passed routine background checks when they were hired, but were ordered to undergo further reviews under a 2004 homeland security directive by President George W. Bush.  28 employees refused to submit to checks and were fired.  The Ninth Circuit Court intervened in October 2007, blocked the firing and ruled that the inquiries were too intrusive and unrelated to national security.  "The decision prevents the routine background checks of many government contract employees and it casts a constitutional cloud over the background-check process the government has used for federal civil service employees for over 50 years," Justice Department lawyers said in seeking Supreme Court review.  The Justices will hear the case in the term that starts in October, with a ruling due by June 2011.

Crime Stats Flap in UK

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Looks like crime is a major issue in the election campaign under way in Britain. Crime is notoriously difficult to measure, and some variation among different measures is par for the course, but the variations being thrown around over there are wild. Roland Watson has this story in Times Online (London).

Chris Grayling, the Shadow Home Secretary,* said violent crime had risen 70% since 1998-99. He was taken to task by the head of the UK Statistics Authority, Sir Michael Scholar (great name for a stats chief), who said a change in reporting methods produced a false bump. The British Crime Survey says violent crime dropped 41% in the last 12 years. Mr. Grayling then asked the House of Commons library to look into it, and they estimated a 44% increase.

Racial Quotas in Jury Selection

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In Taylor v. Louisiana (1975), the Supreme Court constitutionalized what had been up to that point a policy decision made by some courts and legislatures, including Congress, that juries should be drawn from a cross-section of the community. Taken to its logical extreme, this would require racial quotas for jury venires, with the jury commissioner taking affirmative action to meet the quota of minority jurors if neutral selection policies did not naturally produce the supposedly needed numbers. But we don't take it to that extreme, do we?

This AP story from Georgia reports that a murder defendant wants his trial postponed until after the next census to get the benefit of altered county demographics. The story says (emphasis added),

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.

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Business Leaders Take On Prison Reform:  On Sentencing Law and Policy, Doug Berman posts an editorial from the Detroit Free Press describing the Detroit Regional Chamber's plan to reduce corrections costs as part of an overall effort to restructure state government.  The Chamber wants to reduce Michigan's prison spending by $500 million and has made seven recommendations for cutting costs.  First, the Chamber would like to make the parole board a body of professional civil servants replacing the current board of political appointees, charged with enacting and enforcing parole guidelines which are score all inmates for parole and respect the proper role of the sentencing judge.  The Chamber also proposes re-creating a "good time" system that replaces disciplinary credits with credits for accomplishments that increase the likelihood of success upon release, and opening up food service to competition by allowing competitive bidding from the private sector.

No Hearing Day Set for Ninth Circuit Nominee:  At Blog of Legal Times, David Ingram reports that the debate is heating up over Ninth Circuit nominee Goodwin Liu, and that a hearing date for Liu has not been announced, even though a hearing date has been set for Judge Robert Chatigny, nominated on the same day as Liu.  Ingram's post describes the efforts of Liu's critics and supporters, including the efforts of one of Liu's law students to gather material in support of Liu's nomination.  Ingram writes that the debate could heat up further now that Liu's answers to a Senate questionnaire have been published. 

Should President Obama Consider a Protestant?  Today, Washington Post staff writer Robert Barnes wonders whether President Obama's next Supreme Court nominee needs to be a Protestant.  Barnes reports that if Justice Stevens does retire at the end of this term, the Supreme Court would for the first time in its history be without a justice belonging to America's largest religious affiliations.  Catholics have held a majority on the nine-member court since 2006 and the confirmation of Justice Samuel A. Alito Jr. Justice Sonia Sotomayor made it six last summer.  Justices Breyer and Ginsburg are Jewish.  While religion may not play a role in the President's decision, one former Justice has express her views on the issue.  Last fall, when Justice O'Connor was asked about the need for geographic diversity on the court she stated, "I don't think they should all be of one faith, and I don't think they should all be from one state."

Neuroimaging and Competency to be Executed: 
CrimProf Blog editor Kevin Cole posts a link and the abstract to New York Law Professor, Michael L. Perlin's new SSRN article Neuroimaging and Competency to Be Executed after Panetti.  In the abstract, Perlin writes that scholars are questioning the impact of neuroimaging evidence on capital punishment trials, wondering whether reliance on such testimony can actually make "sentencing more rational and humane."  He writes that after Panetti v. Quarterman recognized a constitutional right to make a showing that a defendant's mental illness "obstruct[ed] a rational understanding of the State's reason for his execution," competency-to-be-executed hearings may have to become more sophisticated.  Perlin then explores what impact neuroimaging testimony will have on future Panetti hearings.   

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Chelsea King Murder Suspect May Be a Serial Killer:  Richard Marosi and Julie Cart of the Los Angeles Times report on the recent discovery of the human skeletal remains of  Amber Dubois, a 14-year-old girl who disappeared one year ago.  When a registered sex offender was arrested for the murder of Chelsea King near San Diego, CA, police refocused their attention on the Dubois case.  Amber's remains were found over the weekend near Pala, CA, and were identified through dental records.  The suspect, John Albert Gardner III, is charged in the slaying of King, and police are looking for possible links that could connect Gardner to Amber.  Gardner lived only a couple of miles from where Amber vanished near Escondido High School, and spent weekends at his mother's house near the lake where Chelsea King was found.  Police are not disclosing any information that led investigators to the remains, however, the tip they received did not come from Gardner.

"Court Won't Disturb Ban on Death Row Interviews":  The Associated Press reports on today's Supreme Court decision to deny an appeal from death row inmate, David Paul Hammer, regarding a federal prison policy that prohibits death row inmates from giving face-to-face interviews to reporters.  Hammer argues that the policy is an unconstitutional violation of his free speech rights.  The policy was adopted after Timothy McVeigh, the Oklahoma City bomber, appeared on "60 Minutes" in 2000.  SCOTUSblog's March 5th Petitions to Watch post provides links to Hammer's petition and the Seventh Circuit's opinion. 

Sex Offender Not Breaking Laws by Living Near School:  Linda Davis of The Oakland Tribune reports that a registered sex offender and parolee living less than 2,000 feet from an elementary school in Piedmont, CA has stirred up concern among the community.  James Donnelly, 71, was recently released from federal prison for possession of child pornography, and registered at the police department in Piedmont.  In addition to his federal conviction, Donnelly was also the subject of a federal investigation into child sex tourism.  Residents are concerned with Donnelly's presence in their community and are asking why he is being allowed to live so close to an elementary school.  According to Piedmont's acting Chief John Hunt, local police cannot arrest Donnelly based on his place of residence.  Donnelly is not listed on the Megan's Law sex offender web site because he was convicted of a federal crime, not a state crime.  In addition, although Jessica's Law prohibits any convicted sex offender from living within 2,000 feet of a school or park, California does not have a penalty associated with violating the provision.  Gary Shih also blogs on the story for the New York Times.

Maryland v. Shatzer May Ease Prosecution of Chandra Levy's Killer: Last Friday, Michael Doyle reported for McClatchy Newspapers that the Supreme Court's decision in Maryland v. Shatzer has eased one of the burdens confronting prosecutors in the high-profile case.  Ingmar Guandique is accused of killing Chandra Levy, and his attorneys have sought to block prosecutors from using information gained during a September 2008 meeting between Guandique and three Washington detectives.  According to Doyle, Shatzer "gives prosecutors potentially more opportunity to use Guandique's unmediated words and behavior against him." 

Attempted Suicide on Death Row? Can a condemned murderer get a stay of execution by attempting suicide? As strange as that sounds, it may have happened in Ohio, according to this AP story by Matt Leingang. Lawrence Reynolds was found unconscious of an overdose of pills just hours before he was scheduled to be executed.  Gov. Strickland issued a 7-day reprieve.

The U.S. Supreme Court today decided a case under the federal Speedy Trial Act, Bloate v. United States, No. 08-728. This is a statutory interpretation case applicable only to federal prosecutions. The Sixth Amendment's Speedy Trial Clause is not mentioned.

The lineup is unusual, with Justices Alito and Breyer in the dissent and the other seven in the majority. Justice Ginsburg wrote a separate concurrence to emphasize that the defendant does not necessarily get the windfall of dismissal for delays that are mostly of his own doing. More needs to be decided on remand.

Most interesting to me is that the Court reads that statute in a straightforward manner and is not willing to bend it to achieve the result that I suspect most of the Justices think is right. In this case, there are other paths to that result as noted by both the majority and the concurrence, but that doesn't seem to be the decisive point for them. The statute says what it says, and the time automatically excluded for pretrial motions is only from motion to decision under the paragraph specifically addressing that issue, 18 U.S.C. §3161(h)(1)(D), not the more general language of other paragraphs. "Had Congress wished courts to exclude pretrial motions preparation time automatically, it could have said so." (n. 13)

This is a hint, though no more than that, of a favorable disposition toward the prosecution's argument in the AEDPA statute of limitations case, Holland v. Florida. That argument is also based on a straightforward reading of the statute, with a premise that Congress prescribed in detail the exceptions to the general rule and implicitly decided not to allow courts to make up additional exceptions. CJLF's brief is here.

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.

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Selecting a Federal Judge:  At SCOTUSblog, Erin Miller posts an account of former White House counsel Gregory Craig's lecture at Georgetown University.  Last year, Craig led the search for Justice Souter's replacement, and according to Miller, Craig's lecture offered insider insights on President Obama's selection of federal judges.  Miller reports that Craig refuted  stories that ethnic and gender diversity factors were an issue late in the Supreme Court selection process by stating that "simply wasn't part of the discussion."  Craig stated that the President had already taken diversity into account in his earliest suggestions, and Craig believes that the President will take diversity into account in the event of any new vacancy.

McDonald Post-Argument Reactions:
  The Federalist Society has posted a post-argument SCOTUScast for McDonald v. Chicago.  The discussion is moderated by Northwestern University School of Law George C. Dix Professor Steven Calabresi, and features comments from two authors of amicus briefs in the case.  Clark Nielly, a Senior Attorney at the Institute for Justice, was the Counsel of Record in the Institute for Justice's brief in support of McDonald.  Marquette University Law School Professor J. Gordon Hylton also signed onto an amicus brief.  He joined the Brief of Thirty-Four Professional Historians and Legal Historians in support of Chicago.  Tony Mauro also reports on Blog of Legal Times that Douglas Kmiec, the U.S. Ambassador to Malta, and former Dean of Catholic University of America's law school, has weighed in on Tuesday's oral arguments from the European republic in the Mediterranean Sea.  

Texas State Judge Declares State's Death Penalty Unconstitutional (or Maybe Not):
  At Sentencing Law and Policy, Doug Berman posts a link to a Houston Chronicle article by Brian Rogers reporting that state District Judge Kevin Fine granted a pretrial motion to declare the death penalty unconstitutional.  The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty was unconstitutional for their client, John Edward Green Jr.  But, according to Mark Bennett, the author of Defending People, "Brian Rogers's report is not quite accurate. In fact, it's far enough from accurate to be totally false."  Judge Fine actually denied defendant's motion to hold the death penalty unconstitutional (denial available here), and granted the defendant's Motion to Hold that Texas Code of Criminal Procedure Article 37.071 is Unconstitutional.  Criminal Procedure Article 37.071 addresses procedure in capital cases, and is a far cry from declaring the death penalty unconstitutional.  Ashby Jones of Wall Street Journal's Law Blog reports that by granting the motion Judge Fine agreed with defendant's argument that the law providing for the procedures surrounding instructions to a jury in the Texas Code of Criminal Procedure violated the Eighth and 14th Amendments.  According to Rogers' article, not even University of Houston Law Center Professor Sandra Guerra Thompson believes Fine's decision would survive appellate review. 

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Will Obama Opt for Military Tribunals for 9/11 Mastermind?:  Jennifer Loven of the Associated Press reports that the Obama administration may opt for a military tribunal for Khalid Sheik Mohammed and other known terrorists.  Attorney General Eric Holder has pushed for Mohammed to be tried in a civilian court, but because of costs, security, and logistical concerns, he has faced strong opposition and, after the attempted Christmas airline bombing, the Obama administration's terrorism policies were widely scrutinized.  CNN reporter Suzanne Malveaux adds that congressional leaders are arguing that Mohammed should not be entitled to all of the protections and privileges that a defendant receives in a civilian court.  Senator Joe Lieberman said to try Mohammed and other terrorists "as common criminals, giving them the constitutional rights of American citizens in our courts, is justice according to 'Alice in Wonderland.'"  No recommendation has been given to the President, but there's hope for a decision to be made before March 18.  Bill Otis also reports on the proposal. Fox News has this story by Catherine Herridge and Major Garrett.

Pentagon Shooter Harbored Resentment for American Government:  Associated Press writers Matt Apuzzo and Eileen Sullivan report on yesterday's shooting at the Pentagon, and provide new information about the shooter.  Last night, John Patrick Bedell, a 36-year-old American citizen, opened fire on two Pentagon police officers at the subway station across the street from the Pentagon building.  Officers quickly responded and fired back, fatally shooting the gunman.  Newly discovered information suggests that Bedell had a long-held frustration and distrust for the Federal government.  Internet postings and blogs suggest that het may have resented the military and had significant doubts about the truth behind the 9/11 attacks.  An investigation continues, and information on the shooting can be found here. SF Chron writers Jaxon Van Derbeken and Victoria Colliver have this profile of  Bedell and his history of mental illness.

Nevada Supreme Court Denies "Schizophrenic's" Appeal:  Martha Bellisle reports on the Nevada Supreme Court's decision to reject Tamir Hamilton's appeal.  Hamilton was convicted and sentenced to death for the rape and murder of Holly Quick.  He was sentenced to death for the murder, and two consecutive terms of 10 years to life in prison for the rape.  Weeks before the Quick killing, Hamilton had also raped another female.  Hamilton appealed his conviction, claiming there was a racial bias in selecting the jury because the judge allowed the prosecutor to exclude the only two black prospective jurors.  Yesterday, the Nevada Supreme Court said the reasons for excusing the jurors were not "pretexts for racial discrimination."  Hamilton also claimed that executing him would violate the Eighth Amendment because he is an "incurable schizophrenic."  The court responded, "Hamilton fails to demonstrate that he is incompetent to be executed and provides no authority indicating that schizophrenics as a class cannot be executed."  The decision, Hamltion v. State of Nevada, can be found here.

The Cost that Dares Not Speak Its Name


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.


Military Tribunals After All?

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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...


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Equitable Tolling in Holland v. Florida:  At SCOTUSblog, Harvard Law School student Kate Wever recaps Monday's oral argument in Holland v. Florida.  Wever reports that Holland's attorney, Todd Scher, used the facts of Holland's case to support his argument that Holland was entitled to equitable tolling.  When Justice Sotomayor questioned him on where to draw the line for future cases, and to distinguish between the negligence and "intentional malfeasance," Scher returned to the facts of Holland's case to demonstrate that his client was entitled to equitable tolling.  Florida's Solicitor General, Scott Makar, endured questioning by Justice Breyer on whether equitable tolling should be denied even when the missed deadline resulted from an earthquake, fire, flood, or counsel being kidnapped.  Although Makar initially maintained (consistent with Florida's brief) that it should be, by the end of his argument he appeared to concede that equitable tolling might be available in situations external to the attorney-client relationship.  CJLF's brief is available here

Washington Changes to One-Drug Execution Method:  Yesterday, Associated Press writer Rachel La Corte reported that Washington has become the second state to switch to a one-drug system for executing prisoners.  According to La Corte, Washington's Attorney General filed a motion with the state Supreme Court on Tuesday arguing that now that Washington has changed its protocol portions of the appeal of death-row inmate Darold Stenson, challenging of the drug protocol's constitutionality are now moot.  The state Department of Corrections is in the process of rewriting the execution policy that will make Washington the second state in the nation to use the one-drug method.  

Backlash Against Freeing Prisoners:
  At Sentencing Law and Policy, Doug Berman links to a New York Times article by Monica Davey reporting on public backlash in the wake of state legislation trimming prison populations by expanding parole programs and early releases.  Davey reports that states like Colorado, Michigan and Oregon are reducing their prison populations to reduce prison spending.  She reports that Michigan, which reduced its state prison population by 3,200 inmates last year, is experiencing its highest parole rate in the past 16 years.  According to Davey, parole has become such a controversial issue in Michigan that Attorney General Mike Cox, who normally defends the State Department of Corrections and its Parole and Commutation Board in their parole decisions, has also filed separate amicus briefs in eight cases opposing some of the state's parole decisions.  Yesterday, Berman also posted a link to The Sentencing Project's reports demonstrating that states are reforming sentencing policies and scaling back on the use of imprisonment in an effort to control spending.

Putting Seventh Circuit Judges on the Stand:  Yesterday, Orin Kerr posted Cross Examining Frank Easterbrook on Volokh Conspiracy, and described Judge Easterbrook's testimony in the trial of Harold Turner, the New Jersey blogger charged with encouraging his readers to murder the three judges as retribution for their decision upholding a Chicago handgun ban.  Mark Fass has the story on, and Kerr posts on the attempted cross-examination of Judge Easterbook by defense counsel Michael Orozco.  Apparently after Judge Easterbrook told Orozco that he was "not grasping the case," he went on to give an extended history of the Fourteenth Amendment and its relationship to the Second Amendment, and U.S. Supreme Court precedent regarding both amendments dating back to 1873.  Kerr wonders what the jury was thinking.  Ashby Jones posts more on the Judge Easterbrook's testimony, including his response to Orozco's question about what might happen if the Supreme Court overturns McDonald v. Chicago.  "If it's overturned," Orozco asked, "doesn't that make Hal Turner correct?"  Responded Easterbrook: "This blog post says any judge who decides a case incorrectly is supposed to be assassinated. That is not the way the system works."   

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Opinions Differ On Supreme Court Ruling on Miranda Rights: Washington Post Staff Writer Ruben Castaneda reports on the Supreme Court's decision in Maryland v. Shatzer, and the different ways prosecutors and defense attorneys are interpreting its holding.  The Court's opinion allows police to interview a suspect who has invoked his Miranda rights, provided that law enforcement officers release the suspect from custody and wait 14 days.  The decision "doesn't erode or cut back on Miranda rights at all," according to Maryland Attorney General Douglas F. Gansler, who argued the case on behalf of the state in October.  He adds, "[t]he interviewing officer still has to read the suspect his or her Miranda rights."  Peter D. Greenspun, a defense attorney based in Northern Virginia, disagreed.  "This is going to lead to disastrous consequences for those who have not committed any crime and those who have a context for their actions," Greenspun said. "The Supreme Court has now gone into legislative mode.  Apparently, at 14 days and one minute, Miranda no longer applies."  One prosecutor believes the ruling could be useful in cases where new evidence, such as DNA, comes to light after a suspect has invoked Miranda and been released.  CJLF's brief on the case can be found here.

"Justices Weight Claims Over Torture in Somalia": New York Times writer Adam Liptak reports on Wednesday's Supreme Court oral arguments in Samantar v. Yousuf, about whether foreign officials may be sued in the United States over torture claims.  The Petitioner in this case, Bashe Abdi Yousuf, is asking the Court to allow him to sue Mohamed Ali Samantar, the minister of defense and prime minister of a regime that allegedly tortured Yousuf in Somalia in the 1980s.  The Torture Victim Protection Act of 1991 allows lawsuits against individuals said to have committed torture under the authority of a foreign nation, but the Foreign Sovereign Immunities Act of 1976 bars suits against foreign states and their "agencies or instrumentalities." Most of yesterday's arguments concerned whether that last phrase included current or former officials.  Justice Stephen G. Breyer suggested that it would be an odd legal system that would require a lawsuit against a foreign government to be dismissed but allow the same suit to proceed once the plaintiff listed the names of the officials involved.  Deputy Solicitor General Edwin S. Kneedler sided with the plaintiffs in urging the Court to reject Mr. Samantar's statutory immunity argument.  But he said Mr. Samantar may still be immune from suit under common law principles, depending on the position taken on that by the State Department.

"Liu Nomination Pushes 9th Circuit Farther Left":  Yesterday, Ross Kaminsky of had this opinion piece discussing UC Berkeley Law Professor Goodwin Liu's nomination to the 9th Circuit.  In the article, Kaminsky states that by nominating Liu, President Obama is working to push the nation's most liberal, and most overturned, court even further outside the mainstream of American jurisprudence.  The article mentions Liu's views on the death penalty.  Kent has suggested that, "[t]o anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point.  If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case." Kaminsky believes that Liu's left-leaning positions on specific issues emanate from a view of the Constitution which is anything but "originalist" and is concerned about what this could mean for our courts.

Photos from the Mock Trial

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Here are photos from the death penalty "mock trial" event in London on Tuesday. The link starts at index page 3, where most of the pictures of the home team are.

We hope to have a full online video of the event soon.

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Registered Sex Offender Linked to Body:  Associated Press Writer Elliot Spagat reports today on the scheduled arraignment set for this afternoon on charges against John Albert Gardner.  Gardner was arrested for the rape and murder of the San Diego high school student, Chelsea King.  In 2000, Gardner, a 30-year-old ex-con, was facing 11 years in prison for molesting a 13-year-old female, but after a plea agreement he served only five. He was then released on parole for three years until September 2008.  Gardner had been previously linked to an assault on a 22-year-old woman.  Five days after King's disappearance, a body was found buried in a grave on the south shore of Lake Hodges.  San Diego County Sheriff William Gore said there is a "strong likelihood" the body found is Chelsea's.  Dr. Matthew Carroll, a psychiatrist who interviewed Gardner years ago, believed Gardner ought to have served a longer sentence: he was a "continued danger to underage girls in the community."

Convict Found Guilty of Attempted Murder and Mayhem:  Jaxon Van Derbeken of the San Francisco Chronicle reports on yesterday's conviction of 29-year-old Scott Thomas for the attempted murder and mayhem charges in a stabbing attack at a bakery that nearly killed a 15-year-old San Francisco girl in 2007.  A second phase of the trial is set to begin tomorrow to determine if Thomas was sane at the time of the attack.  If Thomas is found sane, he will face life in prison.  Prosecutor Scot Clark argues that the attack was premeditated and Thomas intended to decapitate the 15-year-old.  The case stirred up public outrage after it was revealed Thomas was let out of prison by mistake without supervision the day before the crime. Linda Schaller, the mother of the victim, said Thomas has portrayed himself as a "poor boy": "He's not a poor boy; he's a monster."

Death Sentence Long Overdue for Self-Avowed Racist:  Darci Marchese of the Associated Press reports  that attorneys for rapist/murderer Paul Powell are asking Virginia Governor Bob McDonnell to commute his death sentence.  Powell, a self-avowed racist, is scheduled to be executed on March 18.  In 2000 Powell was sentenced to death for killing an acquaintance, 16-year-old Stacie Reed and raping her 14-year-old sister.  The Virgina Supreme Court overturned his death penalty because no special circumstances to the murder was proven at trial.  No longer facing the death penalty, Powell wrote a note to his attorney detailing Stacie's slaying.  In the letter, Powell described confronting Stacie at her home about dating a black man and threatened to rape her.  When she fought back Powell stabbed her in the heart.  He then took a break to have a smoke and iced tea, while he waited for Stacie's sister to come home.  He eventually raped the sister, who managed to escape before he could kill her.  Armed with Powell's letter, Prince William County Commonwealth's Attorney, Paul Ebert, dropped the first indictment and prosecuted Powell for the attempted rape and murder of Stacie.  In 2003,  Powell was convicted again and sentence to death.  Last July, Powell's execution was stayed by the U.S. Supreme Court, but the Court denied cert last month. 

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Will the Supreme Court Extend the Second Amendment to States?  Lyle Denniston thinks so.  At SCOTUSblog, Denniston reports that after today's oral arguments in McDonald, et al., v. Chicago, et al. (08-1521), the Court seems likely to extend the Second Amendment beyond the federal level, based on the Due Process Clause of the 14th Amendment.  This was the position argued by the N.R.A's attorney, former Solicitor General Paul D. Clement, who argued the Court should allow a "carryover" into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment's scope.  This argument was different than the one advanced by the Petitioner's attorney, Alan Gura.  During his time at the podium, Gura argued that the 14th Amendment's Privileges or Immunities Clause was intended to incorporate the Second Amendment to apply to the states.  According to Denniston, Gura had barely finished his opening comments before Chief Justice Roberts noted that the Court had laid that argument to rest in the SlaughterHouse Cases in 1873.  Gura's argument left Justice Scalia, the author of District of Columbia v. Heller, wondering why Gura was "asking us to overrule 140 years of prior law....unless you are bucking for a place on some law school faculty."  Clark Neily, one of the attorneys in Heller, explains why Gura's theory is correct at NRO'S Bench Memos.  Tony Mauro's Blog of Legal Times post on the McDonald argument is available here, while Mike Sacks of First One @ One First reports on the long line for McDonald's oral arguments.   

Lester Jackson, PhD Comments on Death Penalty Abolitionists:
  At Homicide Survivors, Dudley Sharp posts a copy of Jackson's article, "The Sinister Secrets of Abolitionists."  In his newest piece, Jackson, a frequent commenter on the Death Penalty, writes "[t]he sinister secret of so-called 'abolitionists' is that they actually support capital punishment. The only way to deny this is to disclaim any responsibility for a premeditated government policy of extensively sacrificing the safety and lives of myriad law-abiding individuals on behalf of convicted felons, including murderers. Clearly, state policy fostering repeat crime, including murder, should be seen as capital punishment of the innocent."

States'  Law Enforcement Allocation Can Guide the Feds:
  On Sentencing Law and Policy, Doug Berman posts a link and the abstract for NYU Professor Rachel E. Barkow's new article, Federalism and Criminal Law: What the Feds Can Learn from the States.  The abstract states that an enduring question of criminal law is how authority should be allocated between local, state, and federal prosecutors.  Barkow believes that the answer to solving this question may be found in examining how the states allocate law enforcement power.  Her study found that "states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation." 

Edwards Isn't Forever

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An editorial in today's Los Angeles Times comments, "[w]e'd prefer a longer break" than the 14-day "break in custody" rule established by last week's Supreme Court decision in Maryland v. Shatzer.  While the editorial commends the Court for drawing a bright line rule that police may reinterrogate a suspect 14 days after the suspect's first interrogation, it also finds it disturbing that between Shatzer's first interrogation in 2003, and his second in 2006, Shatzer remained in prison.  The editorial comments that "[i]mprisonment is not 'normal life,'" and takes issue with the Court's conclusion that Shatzer, who had remained in prison, had returned to "normal life" for some time before the second interrogation.  The editorial writes, "[t]he court would have been truer to Miranda if it had recognized that, in this case, there was no gap in custody."

The problem with this argument is that Shatzer didn't really address Miranda, it addressed Edwards v. Arizona, and whether there could be an exception to Edwards' rule that once a suspect invokes his right to counsel police cannot reinterrogate the suspect unless he initiates further communication.  Edwards was intended to prevent police from holding suspects in jail and using coercive measures to badger them into giving confessions. 

Last week's decision in Shatzer acknowledged that badgering and police coercion are far less likely when a suspect has been released from the interrogation room "and returned to his normal life for some time before the later reinterrogation."  The decision acknowledged that when a suspect has been released and returns to his daily routines "there is little reason to think that [a suspect's] change of heart regarding interrogation without counsel has been coerced."  The suspect in Edwards had not been released, and had been held overnight and questioned until he confessed.  Edwards sought to reinforce Miranda by ending this type of practice, and the exception to Edwards recognized in Shatzer does not undermine the Fifth Amendment's protection from compelled self-incrimination.  Miranda warnings must be read to suspects and interrogation cannot continue until a suspect waives his rights.  Shatzer simply recognized that a suspect could have a "change of heart" and might voluntarily answer police questions 14 days after his first interrogation.  

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Can Lawyer Negligence Extend Habeas Filing Deadline?: Marcia Coyle of the National Law Review reports on Monday's Supreme Court argument discussing how bad a lawyer must be to warrant stopping the clock on the one-year time limit for filing a prisoner's federal habeas petition.  In Holland v. Florida, the Justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock.  The issue stems from the death penalty conviction of Albert Holland in 1991.  After his conviction became final in 2001, Holland had 365 to file a federal habeas petition.  The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations.  That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction movement was denied, leaving him only 14 days in which to file the federal petition.  Collins ultimately missed that deadline.  Florida Solicitor General Scott Makar argued that federal rules may permit exceptions when there are problems with access to the courts, but he argued that Congress imposed the one-year limit in order to avoid the use of habeas petitions to delay finality of convictions and sentences.  The Supreme Court has never explicitly ruled on whether equitable tolling is available under AEDPA, but, eleven circuits have held it is available.  CJLF's brief is available here.

Dating Game Killer Enters Penalty Phase: The Associated Press reports the penalty phase of Rodney Alcala's trial will begin today.  Jurors last week convicted the 66-year-old of killing 12-year-old Robin Samsoe and four women in the late 1970s.  It is the third time he has been found guilty of killing Samsoe.  The previous convictions and death sentences were all overturned.  Alcala could be sentenced to death or life without parole.

"Nevada Supreme Court hears Mack plea for new trial": Reno Gazette-Journal writer Martha Bellisle reports the Nevada Supreme Court's hearings to grant a new trial to convicted killer Darren Mack.  Mack, convicted of killing his wife and shooting their divorce judge, may get a new trial because his lawyers allowed him to plead guilty without discussing defenses that would have meant a lighter sentence.  Mack's new lawyer, Marcus Topel, told the Nevada Supreme Court Monday, that "it is undisputed that his counsel had not discussed with him the question of voluntary manslaughter." He added that Mack did not have information he needed to waive his rights and accept a plea deal that stopped his trial in 2007.  But Christopher Lalli, a Washoe County special prosecutor, said that nothing in the law supports the idea that a defendant must be told about the possibliity of being convicted of a lesser crime before pleading guilty.  "The defendant entered a knowing and intelligent and voluntary plea to murder," Lalli said. "He cannot now avoid the consequences of his actions by attempting to invent a new area of Nevada jurisprudence." Under the plea deal that Mack accepted in 2007, Mack was sentenced to life with the possibility of parole after 20 years for the murder of his wife and a consecutive term of 40 years with possible parole for shooting his divorce judge.
Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined. 
Can conduct suggest a waiver?  That is what the Supreme Court struggled to decide in today's oral arguments in Berghuis v. Thompkins.  In Thompkins, the Court is asked to address whether a suspect has impliedly waived his right to counsel when he engages in a very limited conversation with officers and "[does] not invoke [his Miranda rights] but [does] not waive them," but confesses to the crime.  Jesse J. Holland writes for the Associated Press that during today's arguments several "Justices indicated they would let [Thompkins'] confession stand, saying suspects should tell police that they want to be silent to take advantage of that Miranda right." 

The decision may come down to how the Court addresses the question of whether officers must imply waiver from a suspect's silence, or whether a suspect must affirmatively invoke his right to remain silent during a two hour and fifteen minute interrogation.  The Court's precedents have left the answer unclear.  As Chief Justice Roberts points out early during the state's oral arguments, "The question of course is not whether we think 2 and a quarter hours under all the circumstances is -- is too long under our precedent. The question is instead whether it would be unreasonable for the State court to determine otherwise." 

CJLF's brief in Thompkins is available here.

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LWOP and the Death Penalty:  Yesterday, Doug Berman posted two articles addressing the relationship between the death penalty and LWOP on his website Sentencing Law and Policy.  The first post, Second chance for killer kids?, discusses Michigan's attempts to prohibit life without the possibility of parole sentences for juveniles.  The story, by L.L. Brasier, is featured in today's News Scan.  In his post, Berman acknowledges that the two states with largest number of mandatory life sentences for juvenile offenders are Michigan and Pennsylvania, and notes that neither has a functioning death penalty.  He compares the two states to Texas, which has eliminated mandatory life for juveniles, but will readily sentence individuals to death.  Berman believes the policies demonstrate an "inverse relationship between use of the death penalty for the worst murderers and use of other extreme punishments for less culpable offenders."  In his second post, Berman links to Mike Farrell's piece in the Huffington Post.  On Saturday, Farrell, a death penalty abolitionist, argued that "The Death Penalty is Dying."  Berman posts an excerpt from the piece, and comments on some of the inconsistencies in Farrell's argument.

No Kiyemba This Term:  Tony Mauro writes on Blog of Legal Times that today, the Supreme Court removed a a key Guantanamo detainee case from March's oral arguments calendar and sent it back  to the U.S. Court of Appeals for the D.C. Circuit.  About a month ago, the Supreme Court asked for new briefing when the Department of Justice's merit's brief demonstrated that the Obama administration had found homes outside the United States for the Uighur detainees, eliminating "the factual premise" that "petitioners have no possibility of leaving Guantanamo Bay except by being released in the United States."  Today, the Supreme Court vacated the D.C. Circuit ruling and asked that court to determine what further proceedings are needed for the "full and prompt disposition" of the case.  Lyle Denniston's post on SCOTUSblog provides more information on Kiyemba, et. al. v. Obama, et al. Howard Bashman posts media coverage of the Court's decision on his blog, How Appealing.

A Senator Reacts to Liu's Nomination:  At Wall Street Journal's Law Blog, Ashby Jones posts on Senator Jeff Sessions (R-AL) reaction to President Obama's nomination of Berkeley law professor Goodwin Liu.  In a press release Senator Sessions stated that he is "very disappointed by President Obama's nomination of Professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit..."  Senator Sessions stated that the Ninth Circuit is "already an activist court," and he "fear[s] that Professor Liu will be an activist judge in this same mold."  Sessions will withhold his vote until he examines Professor Liu's record, but his initial reaction is that Liu's  "judicial philosophy does not respect the American ideal of judges as neutral arbiters of the law."
In today's orders list, the U.S. Supreme Court declined to grant certiorari to Edward Jerome Harbison, a Tennessee inmate challenging state implementation of its lethal injection protocol.  In his petition in Harbison v. Little (09-7777), Harbison asked the Court to rule that lower courts should not uphold the state's lethal injection procedures by declaring that the state's lethal injection protocol was "substantially similar" to the protocol approved by the Supreme Court in Baze v. Rees.  If the Court had granted certiorari and ruled for Harbison, lower courts would be forced to conduct detailed examination of a state's injection protocol in order to determine whether the procedure causes unnecessary pain before death occurs.

In 1983, Harbison broke into the home of Edith Russell, and when she came home unexpectedly he beat her to death with a heavy, marble vase.  He stole various items of value belonging to her. A jury convicted him of first-degree murder, second-degree burglary, and grand larceny, and sentenced him to death for the murder.  Last April, the Supreme Court ruled on his claim for appointment of federal counsel during clemency proceedings, and last July, the Sixth Circuit ruled on Harbison's lethal injection claims. 

The three-judge panel for the Sixth Circuit vacated the district court's judgment that Tennessee's lethal injection protocol violated the Eighth Amendment.  The district court had found Tennessee's lethal injection protocol inadequate for four reasons.  First, it found the protocol deficient because it did not provide a proper procedure for ensuring that the inmate was unconscious before administering the second drug.  Second, it believed the protocol did not provide for the adequate training of officer.  Third, it did not believe the protocol adequately monitored the administration of drugs.  The district court also faulted Tennessee for failing to adopt a "one-drug" protocol or alternative procedures. 

The Sixth Circuit relied on Baze -- which upheld Kentucky's protocol and held that a substantially similar protocol would not violate the Eighth Amendment -- and concluded that Tennessee's "substantially similar" three-drug protocol also did not violate the Eighth Amendment.  The same four complaints raised by the district court had been addressed by the Supreme Court in Baze, and each time, the Court concluded that the alleged risks rise to the level of a constitutional violation.  Baze's discussion and ultimate rejection of these concerns allowed the Sixth Circuit to uphold Tennessee's protocol. 

A dissent, written by Judge Clay, would have remanded the case for an evidentiary hearing to allow the district court to rule on whether Harbison can meet the Baze standard, but the majority declined to fashion such a remedy when neither party had requested it at oral argument. 

Lyle Denniston also has a post on SCOTUSblog discussing the Supreme Court's denial.

News Scan

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An Attempt to Clarify Prisoners:  Marisa Lagos of the San Francisco Chronicle reports today on California Assemblyman, Alberto Torrico's proposed legislation to limit the early release of nonviolent offenders to state prisons.  Prompted by confusion at the local level and several lawsuits, Torrico wants to clarify that a recently enacted law granting early release of nonviolent offenders is meant only to alleviate overcrowding in prisons and not in county jails.  "It's not meant to apply to local inmates, period," Torrico said.  "We are dealing with a state crisis."  The law took effect January 25 of this year, but it has confused many counties because sheriffs interpreted the law differently.  Under the new law, Sacramento county has released hundreds on jail inmates, while San Francisco released "only a handful."  Assembly member Torrico's Bill 1395 is available here.

Trouble Finding an Unbiased Jury:  Adam Liptak of The New York Times reports on today's Supreme Court oral argument regarding, former Enron CEO, Jeffrey K. Skilling's  request that the Court overturn his verdict because he did not receive a change of venue. The Supreme Court has not considered a change of venue in two decades.  Modern media has made it difficult to determine whether one can receive a fair trial even if there is a change of venue.  Little can be done to control the intensity of news coverage, so a change of venue is less likely to solve the problem.  In its merits brief Solicitor General Elena Kagan told the Court, "media coverage carried on national networks, cable stations and the Internet is not confined to the venue in which the crime is committed."  Many judges and experts in jury behavior and selection agree but say it is not too difficult to find unbiased and uninformed jurors.

National Debate: Mandatory Life Sentences for Juveniles: 
Free Press staff writer L.L. Braiser reported Sunday on  juveniles serving mandatory life sentences.  Dontez Tillman and Thomas McCloud, two 14-year olds, were tried as adults and sentenced to life in prison in Michigan for the first-degree murders in the beating deaths of two homeless men over a period of three days.  Michigan currently has 352 prisoners serving life sentences for crimes committed while they were juveniles.  It is one of 12  states which have introduced legislation that would ban mandatory life sentences to juveniles, or at least give judges some discretion.  Michigan Senator, Liz Brater introduced a package of bills to accomplish this last year.  The measures are currently under review.  Some experts believe that certain kids are too dangerous and should never be released.  Our own Kent Scheidegger was quoted on the issue: "It is our position that for some juveniles, a life sentence is appropriate."  The Supreme Court is currently considering the issue in the cases of Graham/Sullivan v. Florida.  Our brief in these cases us here.  

Marijuana and Mental Illness

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As noted in this Reuters news story, a new study finds that heavy use of potent forms of marijuana doubles the risk of psychosis.  There have been a number of studies in the past several years that have made similar findings, but the conclusions are hotly debated.  For instance, it is not clear whether people who are more prone to mental illness to begin with use marijuana at higher rates than others or whether the drug causes psychotic illness.  The truth is probably somewhere in the middle:  those who are troubled are drawn to the euphoric effects of marijuana which is noted for its anxiolytic properties while research into the body's endocannabinoid system suggests that extrinsic sources can lead to symptoms of mental illness

Whether marijuana is a dangerous or harmless drug largely depends on what it is compared to and what one deems as acceptable risk.  Quite clearly compared to alcohol and cocaine the risks are small:  marijuana isn't strongly linked to crime or illness compared to those drugs.  But when the assertion is made that marijuana is harmless, that too is clearly wrong:  marijuana use is linked not only to mental illness but also pulmonary damage, cognitive impairment, and possibly liver disease.  And these points are worth consideration in discussions about marijuana and legal proscriptions irrespective which side of the fence one sits on in terms of prohibition.  

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