April 2010 Archives


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ABC has this poll on the Supreme Court.

President Obama doesn't seem to have too much support for his idea of selecting someone outside the "judicial monastery." 70% think experience as a judge is a positive factor, with 52% saying it is a strong positive factor. Experience in business or politics only drew 35% positive.

Also getting no traction is all the ranting you hear from the left about how the court is presently sharply conservative. Regular folks split pretty much down the middle: 21% too conservative, 26% too liberal, 46% generally balanced, 7% duh.

Affirmative action for the grossly underrepresented Protestant population is also a nonstarter, with 83% saying its not a factor.

Mike Mokrizycki has this analysis for ABC.
David Bernstein has this post at VC regarding what is and is not taboo in the halls of academe. Among the "not taboo": "Being a convicted cop-killer on death row, with strong evidence of guilt." I doubt many of C&Cs readers need to follow the link to know who that refers to.

"In short, what's taboo on elite American campuses is ideas and actions that many people find offensive, but only if those ideas and actions happen to conflict with the felt commitments of left-wing ideology."

News Scan

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Military to Seek DP for Fort Hood Murderer:  Sandra Jontz of Stars and Stripes reports that Military prosecutors plan to ask for the death penalty if Major Nidal Malik Hasan is convicted of murdering 13, during the November 5, 2009 shooting spree at Fort Hood, Texas.  As the story notes military death sentences are rarely carried out.  There are currently six condemned murderers on death row in Fort Leavenworth but the military has not executed a death sentenced murderer since 1961.  One of the oldest cases, Dwight Loving, is presently before the Supreme Court, No. 09-989, after denial of "extraordinary relief in the nature of a writ of habeas corpus" by the CAAF.

Arkansas Execution Stayed:  The Arkansas Supreme Court has stayed the execution of condemned murderer Stacy Eugene Johnson, according to this story from the Associated Press.  Johnson was sentenced to die for the 1993 murder of Carol Jean Heath.  The 2000 Supreme Court decision affirming the conviction and sentence describes how Johnson stripped, beat, strangled and slit his victim's throat, while her 6-year-old daughter and 2-year-old son hid in a closet.  Johnson is one of four Arkansas murderers who filed a lawsuit claiming that the state's lethal injection protocol was improperly established by the Department of Corrections rather than the state legislature. 

Dissing Judicial Activism

Here is an entry for the "more important for who said it than what was said" file. The following observation is not at all new, and it normally would not be news that someone

has spoken disparagingly about liberal victories before the Supreme Court in the 1960s and 1970s -- suggesting that justices made the "error" of overstepping their bounds and trampling on the role of elected officials.

What is newsworthy is that this was said by ...

Arizona Immigration Law Amended

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This story from the ABC affiliate in Phoenix reports on some amendments to the controversial Arizona immigration law:

One change to the bill strengthens restrictions against using race or ethnicity as the basis for questioning and inserts those same restrictions in other parts of the law.

Changes to the bill language will actually remove the word "solely" from the sentence, "The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin."

Another change replaces the phrase "lawful contact" with "lawful stop, detention or arrest" to apparently clarify that officers don't need to question a victim or witness about their legal status.

Regardless of where one stands on the law itself (and CJLF hasn't taken a position), these appear to be salutary changes. The "lawful contact" language particularly bugged me. Simply talking to a person on the sidewalk with no basis for suspicion whatever is a "lawful contact," but I suspected that was not what they meant. They meant Terry stops, traffic stops, and arrests. I haven't been able to find the actual amendment yet, but it appears from the story that they did fix this particular problem.

More on Sidney Thomas

Ben Feller reports for AP:

President Barack Obama on Thursday interviewed federal appeals court Judge Sidney Thomas of Montana for an opening on the Supreme Court, a person familiar with the conversation told The Associated Press.

The roughly hour-long session at the White House was the first known formal interview that Obama has conducted for the upcoming vacancy on the high court. It is not clear whether Obama has interviewed other candidates in person.

Now that's depressing. The White House should be aware by now that Thomas's opinion in the Summerlin case is both ludicrously wrong and pro-murderer, making an easy target for Republicans to attack and a virtually impossible one for Democrats to defend. (See prior post.)

Do they not know, or do they not care?

Feller refers to Thomas as "well respected within legal circles." I  do not know a single prosecutor or victims' advocate within the Ninth Circuit who would agree with that. I guess he must be talking with other "circles."
The California Department of Corrections and Rehabilitation has finally sent its lethal injection protocol to the Office of Administrative Law. The press release is here. Executions have been held up in the state by an appellate court decision (erroneous, in my opinion), that revisions to the protocol had to go through the Administrative Procedures Act process. Upon the publication of the required notice, the anti-death-penalty movement organized a spamming campaign to flood CDCR with many thousands of irrelevant comments. A day short of the one-year deadline, the department has apparently completed the process of combing through them. AOL now has 30 days to act.

There are six murderers whose cases have completed the normal reviews and can be set for execution: Brown, Cooper, Fields, Morales, Raley, and Sims. Belmontes should be added to the list shortly, but I don't know when the Ninth will stop dithering with it.

CDCR has put together this timeline.

Update: Carol Williams has this post on the LA Times' blog L.A. Now.

Distracted Driving

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The headline of this story in the Detroit News says, "Granholm to sign ban on texting while driving."

That sounds very dangerous to me, governor. You really should pull over and park while you sign the bill. (Hat tip: James Taranto at WSJ.)
The Golden Gate Bridge is not for sale, but nearby you can make a bid on the California Supreme Court. Well, not actually the Court as an institution, but its building. You then have to lease it back to a tenant of dubious credit, the State of California. Marisa Lagos has this story in the SF Chron.

Selling off paid-for assets and then incurring lease expenses in perpetuity sure sounds like kicking the financial can down the road, which is what got us in this mess in the first place.

There is, however, a good reason for a different change regarding the California Supreme Court. It does not belong in San Francisco, which is not the capital of California. Having it there is like having SCOTUS in New York. The Supreme Court belongs in Sacramento. Along with symbolic reasons, SF is a much more expensive place to live and work. Moving Cal. Supreme and all its staff to the capital city would save money in the long run. Doesn't look like anybody's talking about that.

Voting in the Slammer

The Ninth Circuit today agreed to reconsider en banc its astonishing decision that federal law requires a state to let convicted felons vote while still in prison. Last January's panel decision in Farrakhan v. Gregoire is here. The three-judge panel had split 2-1, with fringe Judges Tashima and Reinhardt forming the majority and the more rational Judge McKeown (author of the cross decision reversed today by SCOTUS) in the dissent.  Prior posts are here and here.

It had been reported in the press that Wash. AG was going to skip rehearing en banc and go straight to the Supreme Court. However, on February 12 the court called for briefing on whether to hear the case en banc, apparently without being asked.

Meanwhile, back at SCOTUS, the First Circuit's rejection of the same claim in Simmons v. Galvin is on conference for Friday. The docket has an entry for today, saying, "Letter received from counsel for the respondent. (Distributed)." I can pretty much guess what the letter says.

Update: Lyle Denniston has this post at SCOTUSblog with a link to the letter. I guessed correctly.
When a judge on a multi-judge court believes the court has no jurisdiction but the majority decides otherwise, what should that judge say about the merits? One school of thought is that he should say nothing, having concluded that the court has no authority to render a decision on the merits. That is the path taken by Justices Scalia and Thomas in today's memorial cross case, Salazar v. Buono.

I appreciate the virtues of consistency, but in this instance I think consistency needs to yield to the institutional function of the court. The primary reason why the Constitution provides for "one supreme court" is have definitive answers to legal questions. Splintered opinions that fail to provide such answers constitute a failure of the institution. Many times judges must accept decisions they believe to be incorrect. Lower court judges must accept the decisions of higher courts. Federal courts must accept the interpretation of state law by the state high court.

The correct course, in my view, is to dissent from the jurisdictional holding but then acknowledge that the decision of the majority is now the law on the jurisdictional point and proceed to the merits. In this case, in my view, Justices Scalia and Thomas should have dissented from part II but then gone on to say whether they concur in part III. If they concurred, part III would be the "opinion of the Court," and there is some good stuff in it.

"Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality." I plan to quote that in future briefs. Alas, I will have to follow the cite with "(plurality opinion)."

Overall, the case is a smackdown of a District Court judge who (1) failed to understand the difference between his injunction and the actual requirements of the Constitution, and (2) failed to modify the injunction when a subsequent enactment (arguably) conflicted with the injunction but not with the Constitution. The case is reminiscent of the recent Ninth Circuit Valdivia case on California parole revocation procedures, except that the Ninth got that one right. (See prior post.) It did strike me as odd, though, that today's opinion lashed the district judge and said almost nothing about the Court of Appeals opinion affirming his order.

Chatigny Confirmation Hearing

To follow up on Bill's post, David Ingram has this post at BLT on the Chatigny confirmation hearing and the Michael Ross case.

Worse than Liu?

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President Obama would have to go some to nominate an appellate candidate worse on criminal law issues than Goodwin Liu.

On the other hand, President Obama is a man of accomplishment.

Take a look at this remarkable piece today by Paul Mirengoff on Powerline:


The Senate Judiciary Committee will hold hearings this afternoon on the nomination of Judge Robert Chatigny to the Second Circuit Court of Appeals. Judge Chatigny can expect plenty of skepticism about his suitability, given his handling of a case involving Michael Ross, a Connecticut serial killer who raped and murdered at least eight women and girls.

The facts are summarized in this article in the American Spectator. Chatigny found that the sexual sadism of Ross -- known as the Roadside Strangler -- was a mitigating factor in his case. He went so far as to state that, given his sadism, Ross "never should have been convicted, or if convicted, he never should have been sentenced to death."



News Scan

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Garland and McVeigh: Charlie Savage has this story in the New York Times on SCOTUS short-lister Merrick Garland, emphasizing his participation in the Oklahoma City bombing case.

DNA Links Sex Offender to S.F. Murder:  Staff writer Jaxon Van Derbeken of the San Francisco Chronicle reports on San Francisco prosecutors' decision yesterday to file murder charges against Donzell Francis, 41, for the 2007 sexual assault slaying of a transgendered prostitute, 27-year-old Ruby Ordenana.  This case gained attention when the DNA evidence was recovered from Ordenana's body remained untested for two years at the police crime lab.  Francis, who is currently serving a 17-year prison sentence for another sexual assault, pleaded not guilty yesterday in San Francisco Superior Court.  He also pleaded not guilty to kidnapping and sexual assault charges in a February 2008 attack of another transgender prostitute.  In 2001, Francis slashed a woman's face with a razor.  His DNA was taken in prison, and he was paroled in 2007.  While Francis may be eligible for the death penalty, DA Kamala Harris, a DP opponent, has never sought it. During the two years that the recovered DNA evidence from Ordenana's body was sitting untested, Francis allegedly committed a series of rapes and other attacks on as many as four other victims.  The department's crime lab previously had a policy of not giving priority to testing of evidence when there was not a known suspect.  This policy has since changed.  Fortunately, DNA evidence contributed to a separate conviction of Francis for another assault back in 2007, in which he choked and sexually assaulted a transgender woman before she managed to escape.

Another DNA Hit Leads to Murder Charges:  According to a local television station report, Edward Byrns, 48, was arraigned in Contra Costa County Superior Court (in the East Bay region of California) yesterday in connection with the murder of Louis Fernandez, 55, who was shot to death inside a bar in Oakley 17 years ago.  Investigators allegedly tied Byrns to the murder after his DNA was found on a beer bottle at the bar.  Byrns is charged with murder, robbery, and the use of a firearm.  The district attorney's office could file a special circumstances charge because the murder was allegedly committed during a robbery, making Byrns eligible for the death penalty. The district attorney's office has not made a decision yet.  Detectives began to investigate the 1993 murder after receiving a $455,000 grant from the National Institute of Justice specifically to work on cold cases using DNA evidence.

Still No Graham and Sullivan

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The Supreme Court's lone opinion for today is the memorial cross case, Salazar v. Buono. Check back here on Monday.

Goldman Sachs and the Uses of Jail

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Yesterday I had a chance to watch some of the Senate's hearing on Goldman Sachs, the housing/mortgage meltdown, and the ensuing banking crisis.  The overall topic is whether Congress should increase regulation of the financial industry.  Goldman Sachs is being used as the poster boy.

I know only a limited amount about banking and even less about investment banking.  But I know something about the criminal justice system.  It seems to me that we are overlooking an obvious answer here:  Rather than increasing regulation, how about enforcing existing law?  There are plenty of laws against fraud right now.  If fraud or some variant thereof was going on with Goldman  --  a subject as to which I express no opinion, being without sufficient evidence  --  the answer is not more alphabet agency regulation.  The answer is prosecution. 

Not everything is clear about all the contours of the banking and finance meltdown, but this much is known:  Bankers walking close to or over the line were not deterred by civil penalties.  A stiff note and a fine imposed by the SEC didn't ring many bells (even if there had been much SEC oversight, which apparently there was not).  But my experience as a prosecutor tells me that that there is one thing guaranteed to ring the bell, particularly with white collar types.


Stay Denied for Serial Killer

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"For Samuel Bustamante and his buddies, shopping did not mean a trip to the mall. It meant hunting illegal immigrants, then beating and robbing them," AP writer Michael Graczyk reported yesterday. Today the U.S. Supreme Court denied a stay.

Update: Justice was carried out as scheduled. AP story here.

More from yesterday's AP story after the jump.
Stephanie Simon has this story in the WSJ on fast food in the joint.

Selling the inmates burgers and fries has various pros and cons, as described in the article.

So who pays the bill? Some spend earnings from in-prison jobs, and we are all in favor of prisoners working. Some, though, have their happy meals paid for by family from the outside. One woman is apparently spending $250 a month for her brother's burgers and fries. I suspect there are more worthwhile things she could be spending her money on.
Associated Press has this brief story:

The American Bar Association is launching a review of the way the death penalty is administered in Missouri.

A special Bar Association committee plans to analyze a dozen aspects of Missouri's death penalty process including the handling of DNA evidence, police interrogation procedures, prosecutor and defense services and court appeals.

The eight-member panel is co-chaired by law professors Stephen Thaman of Saint Louis University and Paul Litton of MU.

Litton said similar death penalty studies have been conducted in eight states. He said committees in five of those states recommended a temporary moratorium on the death penalty.

Curiously, there doesn't seem to be an announcement on the ABA's own web site, so I wasn't even able to find out who the other six members are. Knowing how the ABA works, though, the committee is probably stacked with death penalty opponents with perhaps one present or former prosecutor who is the most favorable to the defense side they could find. If anyone can find the actual membership of this committee, please let me know.

Previous ABA studies have been entirely predictable.

The ABA, if anyone does not know, maintains a facade of neutrality while working assiduously for the defense side in all matters criminal. Its amicus briefs in the Supreme Court almost always favor the defendant and never oppose the defense bar position. For at least the past 20 years, the only brief they have filed in support of the prosecution was in a case on a defendant going pro per, where the defense bar did not agree with the defendant.

Avoiding a SCOTUS Fight?

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James Rowley and Laura Litvan report for Bloomberg:

Senator Dianne Feinstein has some advice for President Barack Obama about his next Supreme Court nominee: Don't pick a fight.
"There are people that one can appoint that are respected by both sides," said Feinstein, a California Democrat and member of the Judiciary Committee, which will hold confirmation hearings. "That's what I think he ought to look for."
President Obama was in California recently, warning California Democrats that the other senator might lose her reelection bid. Having to defend a murderer-friendly nominee wouldn't help Senator Boxer in a state where voters regularly vote tough on crime, however left-of-center they may be on other issues.

One short-lister widely regarded as an "avoid a fight" pick is Judge Merrick Garland of the D.C. Circuit.  Tom Goldstein has this post at SCOTUSblog reviewing his record. He contends that "Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions." But "rarely" needs to be understood in the context of the D.C. Circuit's workload. That court hears no state-prisoner habeas cases, not even from the quasi-state courts of D.C. (See Swain v. Pressley.) The criminal cases are all federal prosecution appeals. A high affirmance rate in such cases is common. Even so, Tom makes the case that Garland is more favorable to the prosecution than "his more-liberal colleagues...."

No Crim. Opinions Today

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The U.S. Supreme Court announced two opinions today, both civil cases.

The Empty Promise

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Our news scan today reports about the difficulties of actually carrying out the death penalty in California.  It refers to capital punishment in the Golden State as an "empty promise," and quotes the ACLU's Natasha Minsker as saying, "There's broad consensus in California that the death penalty is broken."

Somehow, Ms. Minsker forgot to note that the ACLU has been busy as a bee breaking it.

Instead of ending its obstructionist ways, the ACLU recommends the demonstrably unsafe alternative of LWOP, see Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005)(previously convicted killer serving life orchestrated three additional murders from prison).

This is an odd stance for an organization whose opposition to the death penalty stems in large measure from its claimed concern that we might kill the innocent.  It simply refuses to discuss the historical fact that the only legally established killing of the innocent resulted not from the state's imposition of the death penalty, but from its non-imposition.

Still, that isn't the most remarkable thing about the ACLU's stance.  The most remarkable thing is that it bemoans the "empty promise" of the death penalty while, as we speak, doing everything it can to make it even emptier.



Healthcare Officals and Torture

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The New York State Assembly and Senate both have pending bills to outlaw the participation in torture and improper treatment by health care providers.  The pending bills include as part of their definition of improper treatment:

"Improper Treatment" means (I) cruel and unusual, cruel, inhuman or degrading, treatment of punishment as defined by applicable international treaties and their corresponding interpreting bodies, or cruel and unusual punishment as defined in the United States Constitution or the New York State Constitution.

One wonders whether that would extend to health care providers working in administrative (aka: solitary confinement, supermax) facilities.    
The Supreme Court granted certiorari in an odd qualified immunity case this morning, Ortiz v. Jordan, 09-737.

Qualified immunity is an element of the Supreme Court's efforts to strike a balance between providing redress for people injured by police misconduct and the need for vigorous law enforcement. Because the line between legal and illegal is often fuzzy and may be determined only long after the fact, exposing police and correctional officers to personal liability for crossing a fuzzy line would result in timid enforcement, staying far away from the line, with resulting harm to innocent victims. The doctrine of qualified immunity gives the officer a shield from liability if his actions did not violate a right that was clearly established at the time of the action.

But a lawsuit is damaging even if the officer prevails. For this reason, the Court has been generous in providing officers with the right to seek summary judgment and to appeal from denial of summary judgment. Summary judgment is a procedure for avoiding trial, allowing a court to decide that even if we assume all genuinely disputed facts in the plaintiff's favor, the defendant still wins as a matter of law, so no trial is needed.

Is there any reason to allow an appeal of denial of a summary judgment motion when the defendant did not immediately appeal but instead went to trial, received an adverse jury verdict, and then appealed?

News Scan

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"Inmate 'Who Liked to Kill' Set For Execution Tuesday":  Allan Turner of the Houston Chronicle, reports today on a Texas murderer scheduled for execution tomorrow. In 1998 Samuel Bustamante picked up a hitch hiker, Rafael Alvarado, stabbed him 10 times and left him in a ditch to die along the side of the road.  The Texas Court of Criminal Appeals rejected Bustamante's plea this morning based on the assertion that he is mildly mentally retarded.  Bustamante's attorneys are now asking the U.S. Supreme Court to intervene.  All three of Bustamante's accomplices have been released after each having served eight years for aggravated robbery.  Bustamante had priors including theft, burglary, and possession of a prohibited weapon.  Shortly after his conviction in the Alvarado case, Bustamante pled guilty to killing a 60-year-old  homeless man.  "He liked to kill," said Fort Bend County Assistant District Attorney Fred Felcman, who prosecuted Bustamante.  "People said a dog walked into a bar one time and he took his knife-and just gutted it...He liked to kill.  He bragged about it."

Flaws Found in National Child Abuse Registry:  This AP story yesterday discusses flaws in the national child abuse registry Congress authorized in 2006.  Congress passed the registry in response to the abduction and murder of a Florida boy in 1981.  More than 40 states have the abuse registries.  The lists of names are accessible to the public, and are often used by employers at day-care centers, schools, adoption agencies, etc.  The national database, however has been progressing slowly.  In 2008, a federal appeals court found the registry system unconstitutional because there is no way for the innocent to clear their names.  Suspected abusers are given no opportunity to defend themselves prior to being listed.  A person's name is placed on the registry based on the assertions of a child protection investigator that the person committed an act of abuse of neglect.  According to a Health and Human Services report, "Strong due process protections could necessitate significant changes to CPS investigation processes in some states that could be costly to implement and may discourage participation in a national registry.

"State's Death Penalty: A Hollow Promise?":
  San Diego Union-Tribune staff writer, John Wilkens, reported yesterday on California's dysfunctional capital punishment process.  Since the state reinstated the death penalty 32 years ago, 86 condemned inmates have died in California, but only 13 were by execution. There's no doubt that capital punishment in California is "dysfunctional."  Opponents of the death penalty claim that California spends an average of $137 million per year on the death penalty, which includes trials, legal appeals, and inmate housing.  However, when RAND was asked to study the costs, they found it couldn't be done reliably with the budget available. As of now, California has the largest death row of any state, 700 condemned inmates, and the majority of them have been there for more than a decade.  DP opponents want California will shift to a sentence of LWOP as the maximum punishment, based on estimates that this will save funds.  Natasha Minsker, death penalty policy director for the Northen California chapter of the ACLU says, "There's broad consensus in California that the death penalty is broken.  The best way to fix it is permanent imprisonment."  The story notes that the last murderer executed in California was Clarence Ray Allen, who while being permanently imprisoned for an earlier murder, arranged to have three people killed.  Our own Kent Scheidegger disagrees with Minsker.  "We shouldn't be sacrificing justice for cost issues," he said.  "We should be bringing down the costs so we can afford justice----so we can give the worst murderers the penalty they deserve.  That should be the discussion.  The death penalty in California is a hollow promise at present, but it doesn't need to be.  We need to change the way the courts do their reviews."  

Watch the Neighbors

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Crime and Consequences operates out of Sacramento, California.  Evidently, so do crime and consequences:

It has been reported [on April 22] that seven Sacramento-area inhabitants, alleged in two covered marijuana-growing acts, have been arrested by authorities.

According to the Drug Enforcement Administration, agents confiscated about over 4,300 plants, hard cash and one vehicle at the time of cleaning, which took about two days.

On Thursday, it was stated by Gordon Taylor, a special agent with the U.S. Drug Enforcement Administration, that agents had also confiscated about $82,000 in cash, at the time of raid.

Congratulations to my former colleagues at the DEA, and Kent, that stuff you're smelling is not pollen.

Firing Squad in Utah

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Another condemned murderer has rejected lethal injection and chosen to be executed "old school." Last month, Virginia used the electric chair to execute Paul Warner Powell. (See WaPo story by Josh White.) Now in Utah Ronnie Lee Gardner has chosen the firing squad, reports Pamela Manson for the Salt Lake Tribune.

The story does not indicate that Gardner stated a reason for his choice.

Texas Execution

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Ten years ago in El Paso, Texas, 18-year-old Sophia Martinez was kidnapped as she made a withdrawal at an ATM, then robbed, raped, and murdered. Yesterday, according to a story by Adriana Chavez in the El Paso Times,

In a small viewing room, Martinez's sisters, MaryAnn Martinez and Dulce Enriquez, and their mother, Lourdes Licerio, stood silently as they watched Berkley die. They wept silently while Licerio hugged one of her daughters.

It was over in minutes.

"Today is not about revenge. Today is not about closure. Today is not about anyone else other than my sister," MaryAnn Martinez read from a statement after the execution.

Opinions Next Week

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The U.S. Supreme Court is expected to issue opinions Tuesday and Wednesday of next week. Of state criminal cases, the most ripe for decision are the Florida juvenile LWOP cases, Graham and Sullivan, argued in November. Among federal criminal cases, the "honest services" cases of Black and Weyhrauch, argued in December, are possibilities.

Slim Chance

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From our list of new SCOTUS filings comes Association of Community Organizations for Reform Now, et al., Applicants v. United States, et al, No. 09A1000. AP has this brief story.

AG as Aspiring Governor

UVa political scientist Larry Sabato has this commentary at Rasmussen Reports.

News Scan

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One Drug Lethal Injection Bill Clears Committee:  Southern California Public Radio reports on a Senate Bill that was unanimously passed by the Senate Public Safety Committee on Tuesday that would alter California's lethal injection procedure.  Under Senate Bill 1018, CDCR would be required to develop and implement a one-drug lethal injection of a suitable anesthetic.  The new bill should eliminate concerns that lethal injection causes inmates to suffer.  A federal judge in Morales v. Tilton, in 2006, found California's lethal injection method created an unconstitutional risk of cruel and unusual punishment. (That decision was before Baze v. Rees, though, and the current method would almost certainly pass muster under Baze. Indeed, Justice Ginsburg cited the California procedure in her dissent as being better than the Kentucky procedure before the court.) The judge suggested California to execute solely using an anesthetic to eliminate any constitutional concerns.  Ohio recently changed its lethal injection procedures by implementing a single dosage of thiopental in response to litigation.  SB 1018 will now go to the Senate Appropriations committee.

DNA solves 20-Year-Old Tennessee Murder Case:  An AP article reports  that a Tennessee man pled guilty on Monday to the second-degree murder of 74-year-old Bessie Shores after DNA evidence linked him to the crime.  Daniel McFarland, a former South Carolina inmate, admitted to beating Shores to death back in 1990.  Unfortunately, DNA technology at the time of the murder DNA technology was unable to identify a suspect.   McFarland was implicated after a match was made in 2008.  At the time, McFarland was already in prison for committing a lewd act against a child.  The date of McFarland's sentencing hearing for the murder has not been set.
When Sonia Sotomayor was nominated for the Supreme Court, I did an analysis of her habeas corpus cases. I focused on those because (1) it is the area I know the most about; and (2) it is an area where federal judges very often chafe at the governing act of Congress, so a propensity to evade a law one dislikes is likely to show up there. (It was a positive review, BTW.)

With the mention of Judge Ann Claire Williams as a possibility, I decided to take a preliminary look at her habeas cases. I will do a more thorough analysis if she is, in fact, the nominee.

There are a large number of noncapital habeas petitions denied on the merits with no oral argument and only a memorandum opinion. This is to be expected. Justice Jackson noted over half a century ago that the Supreme Court "has sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own.  Judged by our own disposition of habeas corpus matters, they have, as a class, become peculiarly undeserving." The situation has only gotten worse since then. I haven't been through this pile of Judge Williams' cases, and I expect it would tell us little if I did.

Capital cases, most of which are habeas cases, are also a good place to look, as no other area of criminal law generates so much judicial activism. I haven't been all the way through the stack yet, but about halfway through I haven't found any howlers. Nothing like, e.g., Judge Sidney Thomas's opinion in the Summerlin case, noted here.

There seems to be a fairly high number of reversals, but some of these cases involve truly ugly facts. See, e.g., Bracy v. Schomig, 286 F.3d 406 (CA7 2002) (en banc) (judge taking bribes in other cases). Judge Williams does not resolve every issue the way I would, but I have not yet found anything that causes real concern. Stay tuned.

Justice(?) Ann Williams

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Kent reports that Judge Ann Williams of the Seventh Circuit is now on the famous short list.  I know nothing of Judge Williams' work.  But there is reason to believe she would get serious consideration.

As I noted about two weeks ago, the President's strategy will revolve around politics.  He faces a mid-term election that could significantly curb his agenda, and right now he's in trouble.  Having lost the independents according to numerous polls, his best strategy is to energize and unify the Democratic base without further antagonizing moderate voters.

In my view, Secretary Clinton is the shrewdest choice to fill these criteria, but Judge Williams, to look at her biography, isn't bad.  She is black  --  the first black appointed to the Seventh Circuit  --  and would therefore be looked upon by the White House as likely to energize a core Obama constituency that otherwise might be relatively apathetic in a mid-term.  At the same time, she could be portrayed as a moderate, certainly on the issues that concern us here at Crime & Consequences.  She spent nine years as an Assistant US Attorney and was appointed to the district bench by President Reagan. 

The Chicago Tribune had this report about her today:


Totally off-topic.

Another SCOTUS Short Lister?

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David Ingram at BLT reports that USCA7 Judge Ann Williams is under consideration for the Stevens seat. I don't have much information on her yet. Any feedback from those who practice in the Seventh or otherwise know something about her approach to criminal cases is welcome. Post a comment here or, if you'd rather, send me an email.

News Scan

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Gun-Toting 89-Year-Old Scares Off Intruder:  Tom Alex of the Des Moines Register reports on yesterday's incident involving an 89-year-old woman opening fire at a burglar who was attempting to break into her home at 5:30 a.m.  Beatrice Turner warned the man that if he did not leave, she would fire her .22-caliber at the "big, burly guy."  Turner said the man talked crazy and kept repeating "It's not daylight, it's not daylight."  A neighbor who heard the gunshot called police. Officers arrived at Turner's house and found the suspect, Nelson McAlpine, standing in the front yard.  McAlpine, who has an extensive police record, told police he had been using drugs and didn't know where he was.  McAlpine was being held in the Polk County Jail yesterday on a charge of second-degree burglary.

To Avoid DP, North Carolina Killer Pleads :  AP writer, Mike Baker, reported yesterday that Demario Atwater, one of the accused killers of the student body president of University of North Carolina has plead guilty to several federal charges, including carjacking resulting in death and kidnapping, to avoid a death sentence. Atwater shot 22-year-old Eve Carson five times, including once in the head.  In return for Atwater's guilty plea, prosecutors agreed to drop their plan to pursue the death penalty.  Carson's killings have also caused controversy over North Carolina's probation and parole system.  According to two court orders, Carson was supposed to be placed under intense probation, which included mandatory curfews, weekly contact, and warrantless searches.  He was also living in Durham, but Wake County probation officers didn't transfer his case there for more than two years.  Atwater's accomplice, Laurence Lovette, pleaded guilty just two months prior to the murder of misdemeanor larceny and breaking and entering.  Lovette was placed on probation and, within a six week period, he managed to get arrested several times and charged with nine crimes.  He was released after each arrest.  Atwater is scheduled to be sentenced on September 23 and is still facing charges in state court, along with Lovette.  Another example of a murderer pleading guilty to avoid a death sentence can be found at this recent post.

No SCOTUS Crim. Opinions Today

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The Supreme Court issued three opinions this morning, none in criminal cases. Perdue v. Kenny A. deals with attorneys' fee awards in civil rights cases, an issue that comes up in criminal justice related civil cases, such as prison litigation.

Wellons Aftermath

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This AP story by Greg Bluestein is a follow-up to the Supreme Court's famous chocolate genitalia case Wellons v. Hall.

According to the sources in the story, the curiously shaped confection was not a gift from the jury to the judge.  Instead, the package was a gift to a juror, Mary Jo Hooper, by an outside friend, with a note, "Just to remind you of what you're missing."
I received an email from Curt Levey of the Committee for Justice who wishes to clarify a comment he made about the Goodwin Liu nomination. Here is the full quote:

Everybody expected Obama to nominate liberals to the federal courts, and that's what he's done, but Goodwin Liu is not your typical liberal. He's very far out on the left wing, even in academia. He is an unabashed defender, really advocate, of judicial activism, and add on top of that, the fact that I think everyone knows that Obama would love to groom him for a spot on the Supreme Court. Obama would love to, you know, be able to say that he nominated the first Asian to the Supreme Court. As you know, it's been almost forty years since somebody who was not a judge was appointed to the Supreme Court. So I think you could think of Liu as the Democratic Clarence Thomas. I think everyone knows that he's being groomed to be on the Supreme Court, and you know, that scares people because he's to the left of even Justice Ginsburg.

And here is the NPR version:

"Goodwin Liu is not your typical liberal," says Curt Levey, director of the conservative Committee for Justice. "He's very far out on the left wing, even in academia. So I think you could think of Liu as the Democratic Clarence Thomas."

In the original, Levey compares Liu with Thomas in the sense of being groomed for a Supreme Court appointment down the line. In the NPR version, it appears that he is comparing the two in the sense of being off on one ideological fringe.

Update: If you are going to quote two sentences together that were not together in the original, as an absolute minimum you must indicate that material was deleted with "...".  As of 2:40 p.m. PDT April 20, well over a day after Levey pointed out the misleading nature of the quote, the NPR site has not corrected it.

Do-over on Crush Videos

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As noted in Bill's post, the Supreme Court in United States v. Stevens struck down 18 U.S.C. ยง48. Like everyone else with sense, I have nothing but contempt for both the producers and the consumers of "crush videos." Unfortunately, this is a seriously incompetent bit of legislative drafting. Congress needs to reenact this statute and do it right this time.

Here is what Congress intended to ban, from House Report 106-397:

At a hearing on the bill before the committee's Subcommittee on Crime, a California State prosecutor and a police officer described how they came to learn about a growing market in videotapes and still photographs depicting insects and small animals being slowly crushed to death. While most of this material featured torture to mice, hamsters, and other small animals, their investigation did find depictions of cats, dogs, and even monkeys being tortured. Much of the material featured women inflicting the torture with their bare feet or while wearing high heeled shoes. In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.

No dispute there. Unfortunately, Congress defined "animal cruelty" in a way far broader than any sensible definition of that term. Any wounding or killing of an animal that is illegal in the place where the depiction is possessed, even if perfectly legal where it takes place, is included in the definition of animal cruelty. So possessing Field and Stream becomes a crime in D.C., where all hunting is illegal? How about if you take a trip to Spain, go to a bullfight with your video camera, and bring your home video back into the U.S.?

The statute does have an exception for "serious religious, political, scientific, educational, journalistic, historical, or artistic value." Such exceptions make the legality of conduct dependent on a prosecutor's or judge's post hoc determination of what is "serious."  That is passing the buck, and it makes the law vague.

Be careful when you write criminal laws, legislators.  And be particularly careful with those definitions. The legislative definition of a word needs to be reasonably congruent with the general understanding of that word. Sometimes it needs to be somewhat broader to avoid vagueness problems, but it shouldn't be so broad as to include vast swaths of conduct far beyond the normal meaning. And passing the buck to prosecutors and judges is not an adequate solution.

Juvie Priors as Strikes

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Among the cases denied certiorari yesterday was the California case of Nguyen v. California, 09-604. The California Supreme Court rejected an Apprendi-based attack on the use of a juvenile court adjudication as a "strike" for the purpose of the Three Strikes sentencing law when the defendant is subsequently convicted in adult court for another felony.

Bob Egelko has this story in the SF Chron, saying, "The U.S. Supreme Court on Monday upheld California judges' authority to count adult felons' convictions in juvenile court in determining whether to sentence them to life in prison under the state's 'three strikes' law."

Not quite. "Upheld" implies there is now a U.S. Supreme Court precedent to that effect. Denial of certiorari does not set a precedent binding on other courts. The denial does end the case for Nguyen, and it leaves the Cal. Supreme case as precedent binding on California courts, but it has no effect in the other 49 states.

Indoor Tanning as Addiction

Another story about the supposed addictive effects of indoor suntanning.  The question is, under these criteria, what isn't addictive?  From the story:

Among those who scored positive for addiction, 78% said they had tried to cut down on the time spent tanning but couldn't, and 78% said they felt guilty about using tanning beds or booths too much.

Further, 26% said that, when they wake up in the morning, they want to use a tanning bed or booth, and nearly 1 in 4 admitted that they had missed scheduled activities -- social, occupational or recreational -- because they decided to go to a tanning facility.

In the summertime, I really like to indulge in ice-cream.  In fact, I've tried to cut down my consumption of ice-cream during the warmer months, but often fail.  Sometimes, I eat ice-cream when I should be grading exams or spending time at the gym.  What does this say about my relationship with ice-cream? 

"A lot of times, these people don't really want to hear that tanning may be a problem," he said. "I hear this a lot from my skin-cancer patients. They are sort of in denial."

I really don't like to admit to myself that ice-cream adds to my waistline.  And I don't like to acknowledge that it's bad for cholesterol levels.  In fact, I put it out of my mind as best as I can even though I know I shouldn't.

It's unclear how or why tanning can become compulsive, although exposure to UV light triggers production of brain chemicals called endorphins that boost mood. One study, published in 2006 in the Journal of the American Academy of Dermatology, found that frequent tanners experience some withdrawal symptoms when given naltrexone, a drug that blocks endorphins

When I eat ice-cream, my mood improves.  In fact, when I eat foods like ice-cream, endorphins are released.  And if I was given naltrexone, my desire for foods like ice-cream would be diminished.  What do suntanning and ice-cream have in common? 

"Tanning makes them feel relaxed and calm," said Dr. Steven R. Feldman, a professor of dermatology, pathology and public health sciences at Wake Forest University in Winston-Salem, N.C., and the senior author of the 2006 study. "People think it's just the warmth that feels good. But there is something that UV light does to people that gives them a sense of relaxation. It's like a small narcotic hit."

Both activities make people feel calm because both likely involve the release of endorphins (aka the "narcotic hit").   But it is pure foolishness to suggest that means such activities - consumption of food or indoor tanning - are addictive.  After all, the "narcotic" produced is endogenous and  part of the natural regulatory state of the body.   And as a matter of common sense, no one is knocking over banks or liquor stores to get money to feed their sun-tanning or ice-cream "habit." 

Animal Cruelty and the First Amendment


The Supreme Court today announced its decision in United States v. Stevens, http://www.supremecourt.gov/opinions/09pdf/08-769.pdf.  I have not yet read the opinion.  The Wall Street Journal gives a quick summary:

The Supreme Court struck down a federal law banning depictions of animal cruelty, voting 8-1 that the measure violated the First Amendment.

 The law was inspired by sadistic "crush" videos, where women kill chicks or mice, but was written far more broadly to outlaw depictions of any animal cruelty that is unlawful.

 Although the law included exceptions for serious journalistic or artistic works, Chief Justice John Roberts, writing for the court, said the measure stretched too far....

 Justice Samuel Alito was the lone dissenter. "The harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess," he wrote of the dog-fighting videos.

My quick reaction is (1) I agree with Alito, and (2) it would appear a more narrowly worded statute would survive.  The notion that depictions of this sort could have any redeeming value is theoretically viable but actually far-fetched.  Although it might be heretical for a conservative to say so, we can worry too much about keeping the law stainless while the culture descends into filth.  A culture that cannot say NO to this behavior, and mean it with criminal penalties, is a culture in big trouble. 


News Scan

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Ohio Murderer Executed:  Darryl Durr, convicted of the 1988 kidnap and murder of 16-year-old Angel Vincent, was put to death this morning in Ohio.  A story by Columbus Dispatch newsman  Alan Johnson reports that Durr was pronounced dead at 10:36 a.m., eleven minutes after receiving a single dose of anesthesia as prescribed under the state's new lethal injection process.  In last minute appeals,  Durr's legal team claimed that the single drug process was not FDA approved and that their client might have an allergic reaction.  The ACLU also argued for a stay claiming that Durr was unconstitutionally denied a DNA test of the victim's necklace which could have implicated someone else in the killing.  Durr was charged with Vincent's murder after his arrest for raping two other young women.  His ex-girlfriend, and the mother of his child, testified to seeing Vincent bound and gagged in Durr's car shortly before her January 1988 disappearance, and that he later told her that he had "wasted" the girl, choking her to death with her necklace.  The girl's badly decomposed body was found in a park three months later.   

Gang Sweep Nets 282 in San Diego:  Union Tribune news writer Debbie Baker reports that a multi-agency operation in San Diego last weekend resulted in nearly 300 suspected gang members being arrested.  The sweep, which included officers from the Highway Patrol, several local police agencies, the Border Patrol, ATF, INS and the U.S. Marshall Service was initiated to disrupt San Diego area gangs that are affiliated with Mexican gangs in cross-border drug and human smuggling.  In addition to parole, drug, and weapons violations, several of those arrested were being referred to immigration authorities.   

More Data on Sex Offenders

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The current issue of Justice Quarterly has this great article on recidivism and sex offender registries.  The article's byline, so to speak, is captured in the abstract:

The purpose of this study is to investigate the relationship between failure to register (FTR) as a sex offender and subsequent recidivism (N = 2,970). No significant differences were found between the sexual recidivism rates of those who failed to register and compliant registrants (11% vs. 9%, respectively). There was no significant difference in the proportion of sexual recidivists and nonrecidivists with registration violations (12% vs. 10%, respectively). FTR did not predict sexual recidivism, and survival analyses revealed no significant difference in time to recidivism when comparing those who failed to register (2.9 years) with compliant registrants (2.8 years). Results fail to support the supposition that sexual offenders who fail to register are more sexually dangerous than those who comply with registration requirements. The punitive emphasis on registration enforcement may not be justified and might divert limited resources away from strategies that would better facilitate public protection from sexual violence.

But there's more to the story.

Pot Poll

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"Do you favor, oppose or neither favor nor oppose the complete legalization of the use of marijuana for any purpose?" 33% favor, 11% neutral, 55% oppose, according to a new AP-CNBC poll.

Assuming it were legalized, who should sell it? The government, 36%, private business, 54%. Of course, the question did not inform the respondents that private business sellers would have a First Amendment right to advertise and otherwise promote weed.

Eliot Spitzer Comeback?

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No, this story isn't from the Onion. It's from Reuters, by Daniel Trotta. "The financial crisis and its aftermath may yet revive the political career of disgraced former New York Governor Eliot Spitzer, [Peter Elkind], the author of a new book about Spitzer says."

Call for Papers

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The editor of William Mitchell Law Review has asked us to post their call for papers on "(1) sentencing; (2) the plain view doctrine; and (3) public defense." The text is after the jump.

Summing Up the Hennis Case

Myron Pitts, who covered the Hennis trial for the Fayetteville Observer, has this article summing up the evidence. The whole story is worth a read, but my favorite line is this:

Hennis' lawyer, Frank Spinner, said at the bottom of the courthouse steps that the jury never got to know his client, who did not testify. The jurors instead were treated to gruesome photos of the murder scene, he said.
Um, excuse me, Mr. Spinner, but whose choice was it not to testify?  At common law, the defendant wasn't allowed to testify, but we got rid of that rule a long, long time ago.

News Scan

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San Diego Sex Killer Pleads:  Ellot Spagat and Julie Watson of the Associated Press report that habitual sex offender John Albert Gardner, arrested last February for the murderer of 17-year old Chelsea King, has pleaded guilty to her murder and the attempted rape and murder of 14-year-old Amber Dubois a year earlier.  In the same story, District Attorney Bonnie Dumanis said that, so far, efforts to link Gardener to the Debois murder had been unsuccessful.  What induced Gardner to admit guilt?  Could it be that he knew that District Attorney Dumanis, one of the state's toughest, would seek his execution for King's killing?  Apparently so.  In the reported plea agreement, Gardner admitted guilt in exchange for a sentence of life without parole.  So, because California has a death penalty and Gardner did not want to die, state taxpayers were spared the expense of a lengthy trial and inordinately long appeals process and can now close the Dubois case as well.  Our February 25, 2009 post on this subject is here.  Our white paper, The Death Penalty and Plea Bargaining to Life Sentences, is here.

Justice drift
is less likely in the future, concludes Adam Liptak in this story in the NYT. See also Kent's post on that issue here.

No New SCOTUS Criminal Cases

The Supreme Court today accepted four new cases for the next term, all civil. The orders list is here. Summaries and links to the cert. stage documents are at SCOTUSblog.

Among the cases denied today were two Texas capital cases, Peter Cantu and Delma Banks.

The Banks case was the subject of a prior Supreme Court opinion, Banks v. Dretke, 540 U.S. 668 (2004). On remand, the Fifth Circuit decided, case 08-70019, that the evidence not disclosed was not material. Contrary to a common misconception, a finding that the evidence in a Brady claim is not material is not a finding of "harmless error"; it is a finding that no constitutional violation occurred. There is no obligation under Brady to disclose immaterial evidence.

Peter Cantu is the gang leader in the notorious case that gave rise to Medellin v. Texas (opinion here, CJLF brief here). Cantu's case has taken much longer than it should have because the state trial judge sat on it for years on state habeas. Despite its reputation, Texas really does not have a mechanism for expediting its state collateral review.

Long overdue justice in the Cantu case will probably come this year. That will be the end of the case. The others of this murderous gang who were over 18 at the time of the crime have been executed, and the sentences of those who were below that age have been commuted under Roper v. Simmons.

Earned Distrust


According to a Pew poll released Sunday night, trust in the federal government to do the "right thing" most of the time has fallen to a near all-time low of 22%.  According to the LA Times report, "The current level of public skepticism was matched previously only...from 1992 to 1995 (reaching a low of 17% trusting in government in the summer of 1994) and from 1978 to 1980 (bottoming out at 25% in 1980)."

Interestingly, trust in the federal government now  --  in the era of "hope and change"  --  is lower than at any point in the presidency of George W. Bush (or Richard Nixon for that matter).  Also notable is that, according to the LAT, "When the National Election Study first asked the question in 1958 [when Eisenhower was President], 73% of Americans said they trusted the government to do what was right most of the time."

From 73% to 22%.  Yikes.

The implications for criminal law are dire.  The prosecution of criminals is exclusively a government function, and its overall success depends in part  --  perhaps in large part  --  on public confidence in the judgment, honesty and good faith of prosecutors.  It also depends on confidence that prosecutorial decisions will not be political.  When public confidence is this low, sooner or later that is going to be reflected in skepticism and raised eyebrows in the jury pool and on the bench.

I would like to say this dim view of the federal government is unjustified, but I can't.  I'm not going to get into the reckless spending, the debt and weakness abroad, since they are not the subjects of this blog.  But distrust is what we have to expect when the Administration (1) supports giving Constitutional rights, civilian trials and Miranda warnings to alien terrorists; (2) nominates a radical to the already far-left Ninth Circuit; (3) endorses passage of the Crack Dealers Relief Act (i.e., lowering sentences for crack cocaine, as envisioned in legislation currently before the House); (4) nominates yet another radical to head the pivotal OLC; and (5) dismisses a voting rights case against Black Panthers in mufti, and carrying billy clubs, "patrolling" a polling station in Philadelphia.

Is that a government you would trust?

UPDATE:  This entry has been picked up by the blog Powerline, http://www.powerlineblog.com/archives/2010/04/026111.php

FURTHER UPDATE:  The Powerline blog that picked up this entry has itself been picked up in the "Best of the Blogs" section of the widely read "RealClearPolitics,"  http://www.realclearpolitics.com/best_of_the_blogs/.

April 19


Fifteen years ago at about this hour, Timothy McVeigh  detonated a bomb at the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people, 19 of them under the age of six.

Asked later about his reasons, McVeigh said,  "I didn't define the rules of engagement in this conflict. The rules, if not written down, are defined by the aggressor. It was brutal, no holds barred. Women and kids were killed at Waco and Ruby Ridge. You put back in [the government's] faces exactly what they're giving out."  McVeigh did express regret about the death of the 19 young children, but only because it was "a PR nightmare," as he said in a later interview.  Otherwise, they were "collateral damage."

McVeigh was executed for his crime slightly more than six years after he committed it, on June 11, 2001.  According to Gallup, 81% of the public approved of the execution.  A consensus to that extent is essentially unheard of on any significant issue in public life.

My only question is:  What was the other 19% thinking?


WSJ on Liu Nomination

The Wall Street Journal has this editorial, subtitled "A liberal nominee of illiberal temperament."

Yesterday, we awarded Senator Leahy the howler of the day award. The nominee himself comes in a close second:

Such statements [as his attack on Alito] included "unnecessarily flowery" and "colorful language," Mr. Liu said at yesterday's hearing, but they shouldn't trouble voters because they are irrelevant to being a judge. While professors are paid to be "provocative" and to probe and invent, he said, judges are supposed to be neutral arbiters. "Whatever I've written in books and articles would have no bearing on my role as a judge," he told the Senate Judiciary Committee. So those polemics were merely for political show and tell?

No bearing? Yeah, right.

The Meaningless Statement

In confirmation choreography, one of the most important steps is the well-rehearsed statement that appears to address a concern but is actually meaningless.

Bill Mears has this story on the Goodwin Liu confirmation hearing for CNN. Liu told the committee, "I would have no difficulty or objection of any sort to enforcing the law as written in enforcing the death penalty." What does that mean? Nothing.

Capital cases are sufficiently complex that a judge who wants to can always stretch some rule of law to justify a vote to reverse and claim he is merely enforcing the law. Having read all of the capital case opinions of Judge Reinhardt of the Ninth Circuit, for example, there is no doubt in my mind that he approaches the capital cases in exactly that way. The key question is whether Goodwin Liu would do the same. That statement does nothing to assure us he will not.

I did not see the whole hearing, but apparently Liu has not backed off from the substance of his attacks on Samuel Alito. This story by Ben Pershing in the WaPo says he only admitted to using "overly flowery language." As Senator Kyl correctly pointed out, the attack was not "flowery," it was vicious.

It does not appear from press reports that Liu has any understanding of just how far out in left field his death penalty paper was. I'll have more to say when I can get a transcript.

Howler of the day award goes to Senator Leahy:

"I hope they will keep the same open mind kept by Democratic senators," said Sen. Patrick Leahy of Vermont, chairman of the committee. "I hope they will not apply a double standard to this extraordinary nominee."
Open mind? What they did with the Miguel Estrada nomination is an "open mind"? If Senator Leahy gets his wish, and the Republicans treat Liu the same way the Democrats treated comparable Republican nominees, then a filibuster is certain.

News Scan

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Double Murderer Gets Second Death Sentence:  The Associated Press reports that a Superior Court judge in Long Beach, CA followed the jury's verdict and sentenced double murderer Earl Lloyd Jackson to death Thursday. This Los Angeles Times story by Victoria Kim reports on Jackson's conviction on overwhelming evidence for the brutal murders of Vernita Curtis, 81, and Gladys Ott, 90, in 1977.  Ott had been raped with a wine bottle before she was beaten and stangled to death.  In a 2008 ruling, the Ninth Circuit sent Jackson's case back for re-sentencing.

Triple Murderer Gets Death Sentence After Third Trial: Meanwhile, in North Carolina, formerly "exonerated" triple murderer Timothy Hennis was sentenced to death Thursday by a military court. Paul Woolverton has this story in the Fayetteville Observer.       

Too Good to Be True?

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Did California really have zero rape-murders in the entire state in 2008? That sounds too good to be true, but that is what the official Homicide in California publication, recently released, says.

I asked the folks in charge of the numbers, the Criminal Justice Statistics Center, if that was really accurate. Linda Nance responded:

The data is accurate as reported by law enforcement to the Criminal Justice Statistics Center.
The attached excel table displays the reporting of rape as a contributing factor or precipitating event in homicides over time.  Also included are counts on the number of unknown circumstances.  As you will see, the number of precipitating events reported as rape have been fairly low for the past few years.  The number of cases where the precipitating event is unknown has increased.
The table is after the jump.

A Nominee in Early May?

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Bill Mears at CNN reports that "government sources close to the selection process ... expect President Obama to make a decision by early May."

Mears' short-listers include the usual three (Kagan, Garland, Wood), plus USCA9 Judge Sidney Thomas, noted previously here and here, Cal. Justice Carlos Moreno, noted last time around here and here, and former Ga. CJ Leah Ward Sears.

Mears notes that Sears has aroused "some unease among liberals." She has been involved with the Institute of American Values, and (horrors!) she is a friend of Clarence Thomas.


The WSJ has this editorial on AG Holder's statement yesterday "that his plan to send Khalid Sheikh Mohammed and other terrorists to New York City for a civilian criminal trial 'is not off the table.' "

Mr. Holder had barely piled into his car to drive back to the Justice Department yesterday before New York Senator Chuck Schumer issued a press release declaring that there is an "overwhelming consensus" in New York that the trial "should not be held there." He added, "We know the administration is not going to hold the trial in New York. They should just say it already."

Mr. Schumer knows that Democrats running for re-election this year don't want to defend the spectacle of a mass murderer using such a trial as a propaganda exercise, or claiming the evidence against him is inadmissible because it was produced by "torture."

Yet such a spectacle is precisely the goal of many on the anti-antiterror left. They want to put Bush Administration policies on trial more than they want to convict and hang KSM. Mr. Holder's mistake has been populating his department with those kinds of lawyers, and the longer he indulges them the more he's embarrassing himself and his President.

The last point is particularly disturbing. It appears that Bush Derangement Syndrome remains a significant part of the collective thought process at USDoJ, well over a year after Mr. Bush rode off into the sunset. While the left was out of power, it became radical chic to defend terrorist sheikhs. Even though they now have their hands on the levers of power, they just can't bring themselves to admit that many of the policies they so fiercely attacked were indeed necessary and proper.

Time to let it go, folks. You won the election. You run the executive branch of government. You need to do what is right, even if it requires admitting you were previously wrong.

Update: The NYT has this editorial longing for the good old days of 2009 when Obama crew cleanup of Bush mess was more clear-cut. Really. Cully Stimson has this comment at Heritage's Foundry blog.

Egelko on Sidney Thomas

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The White House's trial balloon of USCA9 Judge Sidney Thomas as a possible successor to Justice Stevens lost a little more helium yesterday with this blog post by SF Chronicle reporter Bob Egelko on the Chron's Politics Blog. He discusses Thomas's "juicy record."

The Fourth Amendment Docket

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Orin Kerr has this post at SCOTUSblog on the sparse Fourth Amendment docket at the Supreme Court. He references that post at Volokh Conspiracy. His theory is that the justices inclined to vote for criminal defendants are denying certiorari because they fear their side will lose and make more restrictive precedent.

As I note in the comments at VC (because SCOTUSblog no longer allows comments), I think Orin is overlooking an important aspect of the problem. Some of the justices are receptive to a relatively expansive view of substantive Fourth Amendment rights but hostile to the exclusionary rule. I think it is significant that the only Fourth Amendment case on the docket for full briefing and argument this term is a civil case with no Mapp v. Ohio implications.

Deterrence Studies

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It has been brought to our attention that our list of death penalty deterrence articles omits Cloninger and Marchesini's 2008 reply, in Applied Economics Letters, to the 2005 Donohue and Wolfers article in the Stanford Law Review. The list will be corrected shortly. Here is the abstract:

Critiques of scholarly research contain their own flaws; sometimes even more so than the work they are critiquing. Such is the case of the critique of our research authored by John Donohue and Jason Wolfers. Published in the Stanford Law Review their paper avoided the blind peer review process and consequently contains elements that undoubtedly would not have survived peer review. That possibility aside, we show that their alternative measures of criminal activity have no theoretical basis nor any empirical precedent within the modified portfolio approach employed in our research. Putting even that aside, we show that their empirical results are not inconsistent with ours. Thus, upon reflection, we see no justification to amend, modify or otherwise alter our methods or results.

More on Postmortem Miranda

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Evan Perez reports in the WSJ:

Attorney General Eric Holder backed off a bit from his comment last month that "we'll be reading Miranda rights to the corpse" of al Qaeda leader Osama bin Laden.
Holder, testifying today before the Senate Judiciary Committee, said U.S. authorities hope to capture and interrogate bin Laden. "Our hope would be to capture him, interrogate him and get useful intelligence." He explained his earlier remark as simply his "assessment of the likelihood" of that outcome.
Also from the same story, as well as Ashby Jones' post at WSJ Law Blog, it appears that we still don't have a decision on where to try KSM.
The Constitution Project, an anti-death-penalty organization, has organized a letter with 27 signers to supposedly refute the charge of Ninth Circuit nominee Goodwin Liu's anti-death-penalty leanings. The press release with a link to the letter is here.

If anyone doubts that the Constitution Project is anti-death-penalty, see this debate between their president, Virginia Sloan, and yours truly on the PBS NewsHour site.

The very fact that the Constitution Project is so keen on seeing Liu confirmed says much more than their letter or the signatures on it.

As with other attempts to refute the letters of CJLF and of 42 district attorneys, this letter demonstrates either an inability to read between the lines or, more likely, a willful blindness to what so clearly lies between the lines.

The letter states, as if it were significant, that in the Alito confirmation controversy Professor Liu did not "state that he is opposed to the use of capital punishment or that he would not uphold death sentences as required by law." Of course not. No one who has ambitions for appointment would state that explicitly in public. For anyone who has been involved in this debate, though, the anti-death-penalty position comes through loud and clear in the paper as a whole. On every point on which an argument in favor of the defendant could plausibly be made, Liu makes it. Out of a total of ten cases, he is only willing to concede one was correctly decided in favor of the state.  And this is from a sample of cases already affirmed by the Pennsylvania or Delaware Supreme Court, so the clearly erroneous judgments had already been culled.

We infer attitudes from what people say and do, not simply what they admit. The inference that Liu would continue and even extend the Ninth Circuit's practice of stretching every rule of law to its conceivable limit or even beyond to overturn death sentences is unmistakably clear from his paper to anyone who has been actively involved in this fight over the years.

In their usual faux-neutral style, the Constitution Project claims that "the signatories to the letter includ[e] both supporters and opponents of capital punishment," but I do not see on the letter a single person I recognize as having been active on our side of this fight.  (If anybody sees an actual death penalty supporter, please let me know in the comments or by email.)

I do see on the letter Joseph Grodin, formerly of the California Supreme Court, falsely listed as "retired." He didn't retire; he was booted off by the people, precisely because of his participation in that court's blockade of the enforcement of a law its members disagreed with.

News Scan

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Arizona Passes Nation's Toughest Law on Illegal Immigrants:  Nicholas Riccardi of the Los Angeles Times reports on Arizona lawmakers' approval of the nation's toughest measure against illegal immigrants.  The measure, which passed in the state House of Representatives yesterday, makes it a crime to be an illegal immigrant in Arizona and allows police to exercise their own discretion to determine whether someone is in the United States legally.  The state Senate passed a similar bill earlier this year.  The bill's author, state Sen. Russell Pearce, said the law simply "takes the handcuffs off of law enforcement and lets them do their job."  The bill prevents any government agency from creating any policy that would prevent enforcement of immigration laws and allows citizens to sue if they believe a law enforcement agency is failing to enforce the law.  If officers have a "reasonable suspicion" that someone is an illegal immigrant, the new law requires law enforcement to determine that person's immigration status "when practicable."

Arkansas Man Issued Another Stay of Execution:  Katherina-Marie Yancy and Max Siegle of  www.todaysthv.com reported on Arkansas murderer on Don Davis' stay of execution.  The stay was granted by the state Supreme Court just hours before Davis' scheduled execution on Monday night, making it his second stay of execution in three years, this time to allow the courts to evaluate his claim against the Arkansas Method of Execution Act. Davis' attorneys argue that the act gives excessive power to the Department of Corrections for lethal injection procedures and the authority to change them at any time.  Arkansas Attorney General Dustin McDaniel said "it's ludicrous to believe that the Department of Corrections may at the last minute change their execution protocols."  Although the act has yet to be tested in court, McDaniel contends there are clear guidelines for lethal injections: "What kind of drugs can be used, what kind of equipment can be utilized, the very procedures of when and how."  There's no date for when another execution date will be set for Davis.  For now, the case returns to Pulaski County Circuit Court.

"Meth Psychosis Cited in Killings; Defendant's Words Cast Doubt":  According to a Sacramento Bee article by Andy Furillo, defense attorneys for Aaron Dunn face a major obstacle in their effort to avert the death penalty for their 33-year-old client......his own words.  Four years ago, Dunn went on a methamphetamine-laced shooting rampage killing two men in Elk Grove.  Prosecutors are seeking the death penalty in the case; however, defense lawyers say the onset of a meth-psychosis makes it only a second-degree murder case, not eligible for the death penalty.  On Monday, sheriff investigators at the jail intercepted a letter in which Dunn wrote to his brother, saying that he hopes the judge who is presiding over the case "drowns."  Dunn's lawyers also have to contend with testimony that their client admitted two days after the shootings that "I knew what I was doing that night."  The defendant's words cast doubt in the defense's key witness, a psychiatrist, who testified that Dunn was "paranoid," "delusional," and even "nuts" the night of his shooting rampage.  The defendant himself suggested that he was clear-headed during the spree.  Defense lawyers were unsuccessful in excluding the defendant's incriminating statements from trial.

Sound Familiar?

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From the manifesto (platform) of the Conservative Party for the upcoming British election:

In the last three years, 80,000 criminals have been released early from prison because the Government failed to build enough places. We are determined that early release will not be introduced again, so we will redevelop the prison estate and increase capacity as necessary to stop it. Under Labour, the number of foreign criminals in our prisons has more than doubled. We will extend early deportation of foreign national prisoners to reduce further the pressure on  our prison population.

On the Lamb


Recently I noted that prison security  --  or, more precisely, the inevitable fallibility thereof  --  puts the lie to abolitionist claims that LWOP will keep us as safe as the death penalty.  In-prison murder, erroneous release, and escape are among the lethal problems we can expect (and already have, for that matter).

While thinking about the numerous lapses in prison security, I came across this story from a British newspaper, The Sun:

Two escaped convicts have dodged a huge manhunt - by disguising themselves as sheep.

The pair dressed in full sheepskin fleeces, complete with heads, to lie low among farm flocks.

Robbers Maximiliano Pereyra, 25, and Ariel Diaz, 28, stole the sheep hides from a ranch after breaking out of an Argentinian maximum security prison a week ago.

And they have managed to evade the 300 cops on their trail - despite locals seeing them running through fields at night.

A farmworker at La Almeda said: "They were wearing grey clothes but had full sheepskins, including the sheeps' heads, over their heads and backs."

Police say spotting the pair among thousands of sheep is "almost impossible". But one warned: "They can't pull the wool over our eyes forever."

This story is so bizarre that perhaps I'm being fleeced, but, Kent, I hope ewe won't shear me from this blog.



Celestial Navigation and Ideology

To expand a bit on this post, I will make an analogy to celestial navigation.

The operating principle of celestial navigation is that where the stars appear to be from your location tells you where your location is, provided you have good data on where the stars are and know how to work the problem. The simplest case is the North Star. If it appears to be 38 degrees above the horizon, you are at 38 degrees latitude. So, too, other people's statements about where they perceive third persons to be tells us where the perceiver is, if we know where the object of the statement really is.

When Samuel Alito was nominated to the Supreme Court, Goodwin Liu told us that Alito was out of the mainstream on the right side, based in substantial part on his analysis of Alito's decisions in capital cases. I did my own analysis of those cases and found Alito to be quite moderate. Of the ten cases, he ruled for the habeas petitioner in four. Of course I am self-aware enough to know that my own position on the death penalty and habeas corpus affects my perception as well, but 40% is an objective fact that conclusively negates the claim that Alito was a rubber stamp for the prosecution. One of the four cases, Bronshtein v. Horn, 404 F.3d 700 (CA3 2005), is regarded by many on the prosecution side to be a significant error in the habeas petitioner's favor.

Despite this record, Liu testified that Alito "is at the margin of the judicial spectrum, not the mainstream." That tells us where Liu is -- out of the mainstream in the other direction.

Justice Drift

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Stuart Taylor at National Journal takes on Justice Stevens' claim that he has held steady while the Court moved rightward. Lee Epstein has an interesting graph on the Speaking of Stevens blog.

These left-right quantifications need to be taken with a grain of salt, as I have mentioned before, but they are useful if their limitations are kept in mind. When Gallup* asks the American people if the Supreme Court is too liberal, too conservative, or about right, "about right" generally gets the plurality vote with "too liberal" usually (but not always) second and "too conservative" usually last. This indicates the Court is just a tad to the left of the American median. How is that possible, when Republican Presidents have gotten most of the appointments over the years? Justice drift.

*Update: This recent Rasmussen Poll shows 39% "too liberal," 25% "too conservative," and 27% "about right."

Abolished, and None Too Soon

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New Jersey abolished the death penalty in December 2007.  Multimillionaire Governor Jon Corzine announced the day he signed the abolition bill that he had taken a step forward for humanity: 

This is a day of progress for us and for the millions of people across our nation and around the globe who reject the death penalty as a moral or practical response to the grievous, even heinous, crime of murder.

Corzine, a Democrat who was defeated in the next election in that heavily Democratic state by a former US Attorney, would undoubtedly be heartened to know that his Superior Enlightenment has rescued from a jury's judgment the following character, whose arrest is reported today by MSNBC

NJ man accused of killing 5 people in 2 months

JERSEY CITY, N.J. - A man accused of killing a Jersey City, N.J., couple on the day of their engagement party has been charged with 3 other killings in the city.

Shiquan Bellamy and two women had been charged in the Easter killings of the engaged couple, 27-year-old Michael Muchiaki and 25-year-old Nia Haqq.

On Monday, the 19-year-old Bellamy was charged in the Feb. 2 felony murders of cousins Mileak Richardson and Lester "Bleek" Thompson. He also was charged with killing Lamonte Wright on March 27.

Hennis Follow Up

The comments thread in the Dallas Morning News Texas Death Penalty Blog has a lively discussion on the Hennis debacle with comments by, inter alia, Dudley Sharp, Richard Dieter, and yours truly.

Jan Crawford's Take

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Jan Crawford has this post at CBS on the SCOTUS watch. She thinks the actual short list is still Kagan, Garland, and Wood, and that "some of the people are on the list as a courtesy or as a nod to one group or another and are not likely to be selected."

As to Sidney Thomas, Crawford writes, "fairly or not, he would be a disappointment to those inside the White House who want a 'sure bet' --- a justice who has a track record as a sparkling intellectual who could go toe to toe with Roberts and Antonin Scalia."
The latest buzz from Washington is that no, Hillary Clinton is not on the short list for SCOTUS. (See Bill's post here.) But wait, there's more. Sheryl Gay Stolberg reports on the NYT's political blog, "an administration official said that Judge Sidney Thomas of the federal appeals court in Montana is under consideration."

What are they smoking in the White House?

Sidney Thomas is the author of what is quite possibly the worst opinion ever to issue from the Ninth Circuit, and that is saying quite a lot.  The opinion is Summerlin v. Stewart, 341 F.3d 1082 (CA9 2003) (en banc), reversed sub nom. Schriro v. Summerlin, 542 U.S. 348 (2004). It is a case study in twisting the law to achieve a desired result.

News Scan

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"UK Judge OKs Extradition in Colorado Murder Case":  The San Francisco Chronicle posted an article today on a British judge's approval of the extradition of a man wanted in Colorado on suspicion of the murder of his wife.  Marcus Bebb-Jones, 46 and a professional gambler, faces charges of murdering his wife Sabrina in 1997 and dumping her body in a national park.  Her skull was found and positively identified in 2004, but the full remains are still missing.  Bebb-Jones was arrested last year in England.  District Judge Howard Riddle rejected Bebb-Jones' claim that a life sentence in the U.S. would be a breach of his human rights.  Colorado is not seeking the death penalty.  The case will go to the Home Secretary for a final decision.  Judge Riddle said LWOP would be a harsher sentence than Bebb-Jones would get for the same crime in Britain but that the more severe sentence would not be unreasonable under the circumstances.

No Body? Not 'the perfect crime' Anymore:  According to an AP article by Samantha Henry, police in New Jersey believe they have solved one of the coldest cases in the state's history: the disappearance of five Newark teenagers in 1978.  After 32 years of investigation, two men were arrested March 22 and charged with tying the teens up in an abandoned rowhouse, at gunpoint, and torching the building.  Police say the blaze was so fierce that the bodies were incinerated, destroying any evidence.  Prosecutors now must prove the teens were murdered although their bodies were never found, one of the biggest challenges in the legal profession, but advances in technology have made it a more common prospect.  Former Manhattan District Attorney Robert Morgenthau, who prosecuted and won two high profile murder cases where the bodies were not found, said it is a "very bad precedent to not prosecute people because there is no body--it encourages people to do away with with the body."  Prosecutions for murders without bodies were once extremely rare, but advances in DNA technology, computer records and cell phone logs, and improvements in forensics, have increased the chances for winning convictions.  Over 300  such cases have gone to trial since 1819 with more than 90 percent resulting in a conviction.

"ACLU Opposing Injunction Against Oakland Gang":
  A KTVU article published on Friday reports on the ACLU's opposition to Oakland's bid for an injunction against a local street gang that is notorious for drug sales and violence.  Oakland City Attorney John Russo filed a suit on February 18 seeking an injunction that would declare the gang a public nuisance and prohibit its members from conducting certain activities in a 100-block "safety zone."  The ACLU of Northern California and the Lawyers' Committee for Civil Rights of the San Francisco Bay Area filed an amicus brief last Thursday opposing the proposed injunction.  Russo and the city is targeting the North Side Oakland gang because it was involved in 18 serious incidents in 2009, including seven murders.  In 1997, the California Supreme Court upheld gang injunctions as constitutional.  If an injunction is granted against the North Side Oakland gang, restrictions against gang members would include a prohibition against associating with one another within the "safety zone," confronting or intimidating witnesses, possessing firearms or other weapons, or participating in drug activity.  Violating the injunction would be considered a misdemeanor offense punishable by up to six months in jail and a fine of up to $1,000. The Cal. Supreme case is People ex rel. Gallo v. Acuna, 14 Cal.4th 1090. CJLF filed an amicus brief supporting the legality of the injunction.
The title of this post, minus the question mark, is the headline of this column by Ruth Marcus in the WaPo. She predicts, "The court that convenes on the first Monday in October is apt to be more conservative than the one we have now." She finds that prospect "unsettling." I disagree on both counts, of course. I would be delighted if that happened, but I consider it unlikely.

In the NYT Saturday, Linda Greenhouse had this opinion piece, appropriately designated as such. Her thesis is that Justice Stevens "learned on the job." She cites his participation in the 1976 Gregg cases as showing a "conservative bent," ignoring the fact that he provided the fifth vote that struck down the mandatory laws enacted in North Carolina, Louisiana, and, by implication, by Congress, California, New York, and several other states. This is followed by the "learning," in her view, that leads to Stevens' opinion in Baze v. Rees.

Greenhouse's designation of Stevens' 1976 opinions as having a "conservative bent" demonstrates once again the problem of perspective. Persons who are waaay off to one side themselves cannot correctly see where the middle is, and they don't know a middle-of-the-roader when they see one. To one who is 2 sigma to the left of the median, the median looks conservative, and a moderate conservative (i.e., 1 sigma right of the median) looks "extreme right."

Of course, the paragraph above assumes a simple, one-dimensional left-right model of political viewpoint, and the world is more complicated than that. The model is useful to illustrate the point, but we should always be aware of its limitations.

What Does Empathy Mean for Judges?

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Dahlia Lithwick and Sonja West have a post over at Slate about Justice Stevens and the role empathy may have played in his decision-making:

Stevens used empathy not to skew or manipulate his jurisprudence, but to consider the effects of his decisions on real people and to accept that the law can look quite different depending on where you're standing.

The authors then give several examples of where this judicial empathy impacted decisions made by Justice Stevens including Illinois v. Wardlow and Safford v. Redding.  But if the argument is that empathy plays an important role of a judge's decision making apart from his or her general interpretative framework, these cases hardly seem compelling.   Wardlow held that flight from a police officer alone is sufficient to support a finding of reasonable suspicion under the Fourth Amendment; Redding held the search of student's underwear by school officials exceeded its scope based on the facts and was unreasonable under the Fourth Amendment. 

The holdings in these cases largely track Justice Stevens' ideological and interpretive framework which generally sought to limit police authority under the Fourth Amendment.  It's hard to see how empathy played any special role in these cases.  That is, absent Justice Stevens' empathy would he had cast his vote differently?   Arguably, empathy tells us something about a judge when it is a factor that accounts for votes inapposite to a judge's ideological or interpretive framework:  a vote which favors crime victims when one is generally sympathetic to the defense bar or vice versa.  Otherwise, it's hard to see just what role empathy has as a quality deserving special merit in consideration of the next Justice.

Saunders on the Liu Nomination

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SF Chrontrarian* Debra Saunders has this column in the Goodwin Liu nomination. The column includes this passage:

Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president - and benefits our democracy - to find moderate nominees who can garner some measure of bipartisan support.

And the Next Justice Will Be.......

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Hillary Clinton.

This is what you have to figure if you look at Obama's real criteria for making his first selection, Sonia Sotomayor.  The criteria were fairly obvious:  First, find someone politically beneficial; second, find a liberal who could be cast as a moderate, more-or-less, and who therefore would sell, in the Senate and the country, without too much fuss.

Secretary Clinton meets these criteria. She is politically beneficial because she appeals to a part of the Democratic Party that has never been enthusiastic about the President (and thought she rightly deserved the nomination).  This is particularly important now, as the President faces a mid-term election that could significantly curb his agenda.  Having lost the independents according to numerous polls, his best strategy is to energize and unify the Democratic base without further antagonizing moderate voters.  Ms. Clinton would do this far more effectively than any other choice.  In addition, by putting Ms. Clinton on the Court, Obama almost certainly neutralizes her as a possible challenger in the 2012 Democratic primaries.  A primary challenge is an unlikely but not a trivial possibility given the way things are going.  At this point, Obama's presidency most closely resembles that of Jimmy Carter.  The country is in the economic doldrums, and there is a perception that Obama is weak and irresolute abroad.  Carter, of course, faced a stiff primary challenge from a popular and charismatic Democrat, Teddy Kennedy. The chances that Obama has forgotten this are zero.

Clinton would also be easy to portray as a "moderate."  She ran somewhat to Obama's right in 2008, and has been reported to be slightly more aggressive in foreign policy than he.  She is associated with the more-or-less moderate administration of her husband (albeit that the moderation was forced by having an opposition-controlled Congress for three-quarters of his term).  She is a seasoned politician.  She has baggage, but it's increasingly yesterday's news, and White House Counsel's Office can be pretty sure there are no skeletons, or at least no new skeletons, in the closet.


Crime and No Consequences

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Kent and I do not agree on everything, but on this there is no daylight between us:  Crime must have consequences.  This is so first because it is just, and second because, without consequences, the criminal will have no incentive to change his behavior.  Justice for the future victim is no less imperative simply because he cannot be identified by name today.

The defense bar thinks differently.  Decency toward the victim  --  present and future  --  is out.  "Compassion" for the criminal is in.  We've all heard it.  Jails are crowded and expensive.  The USA is "incarceration nation."  Racism is rampant.  Today's defendant, whoever he is, is a victim of circumstance and of an uncaring society.

Too often judges buy this line.  Underneath it all, one reason they do is that they believe the next victim will be somebody else.  That is a harsh thing to say, but it's true.  If the judge thought that tomorrow, he would be the street victim of the criminal he put on probation today, there would be no probation.  There would be jail.  Kneejerk "compassion" stops where ordinary prudence starts.

This is all by way of prologue to a story in today's Washington Post.  In a case a few years ago, a Maryland judge gave probation to a drunk driver, even though the man had been arrested on DUI or DWI charges twice in the preceding three months.  Last August, that same driver, drunk as ever, rammed the judge's car, causing serious injuries to the judge and life-threatening injuries to his 82 year-old wife.  The crime without consequences had turned out to have consequences after all.


With the retirement of Justice Stevens, it appears the Court is losing its only member with substantial military service. On the Court's bio page, it says Justice Kennedy was in the National Guard "in 1961." No military service in noted in Justice Alito's bio, but his confirmation questionnaire says he was on active duty for four months. I'd like to see someone who has a few years in uniform on the Court, although I doubt that factor will receive any consideration in the White House.
Thumbnail image for Frankenstein.jpgAmong the many news stories on Justice Stevens' retirement is this one by Adam Liptak in the NYT. Liptak writes, "He [Stevens] grew disillusioned with the death penalty over the years, announcing in 2008 his conclusion that the death penalty violates the Eighth Amendment."

There is more than a little irony in that. If there is one person in this country who bears greater responsibility than any other for the present state of capital punishment law, it is John Paul Stevens. But Dr. Frankenstein is disillusioned with his monster.

Prison Labor

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From the Ninth Circuit today in Serra v. Lappin:

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law. Plaintiffs sued officials of the Bureau of Prisons for damages and injunctive and declaratory relief. We conclude that prisoners have no enforceable right to be paid for their work under the Constitution or international law, and we affirm the district court's dismissal of the action.

Perpetual pain in the rear J. Tony Serra et al. had the misfortune to draw a USCA9 panel with an unusually high sense quotient for that court: Kozinski, Wallace, and Clifton. So look for a petition for rehearing en banc.

Stevens' Successor

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The big news this morning is that Justice Stevens has made official what everyone pretty much knew since he only hired one clerk for the coming term: he is going to retire. One detail we didn't know until today is that his retirement is effective at the end of the term, not upon confirmation of a successor. The creation of a vacancy makes completion of the process more urgent.

Will the successor be better for enforcement of the criminal law than Stevens has been in recent years? Possibly, but not too likely. Will the successor be much worse? I very much doubt that the Administration wants to take on the battle of nominating someone with a clear pro-criminal record. The possibility of major GOP gains in the Senate this fall, a remote chance of change of control, and the fact that this Administration considers politics more important than judicial activism all weigh against such a move. A nominee who is a solid lefty but has little or no criminal law paper trail is the greatest danger.

Inspired by, but not a report of, the Hennis case and the commentary thereupon, and in appreciation of so many other indignant DPIC stories of "the innocent."


Innocent (archaic)  --  Didn't do it.


Innocent (modern)  --  Not as "innocent as a newborn babe," as the DPIC now puts it, but kind of innocent  --  not in the wooden, old fashioned sense, but in the sense that the "alleged" killer was, you know, abused 30 years ago by his long-dead step-father, leading to his inability to form criminal intent notwithstanding that he stabbed the victims 20 or 40 times or something; and which step-father his lawyer would have found out about but for his sleeping through pre-trial preparation, not to mention the trial, leading to reversal for ineffective assistance.  So, you see, he was, to the more sophisticated among us, innocent.  See also "exonerated."


Innocence list  --  A compilation of people who either (a) did it, or (b) didn't do it, not that it matters that much, since the whole point is to conflate the two, so long as much of the media can be relied upon to portray the list as consisting only of (b).  See also Roger Keith Coleman, who never made the innocence list but served the same purpose despite his now quietly conceded abject guilt.

NYT on the Hennis Case

John Schwartz has this story on the Hennis case in the NYT.

In an interview, Mr. Scheidegger said that the Hennis case showed the stark difference between a jury's not finding guilt beyond a reasonable doubt and actual proof of innocence. In the Hennis case, he said, "we have proof that he was a guilty murderer who got away with it, and yet he was on the innocence list."

Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview that Mr. Hennis's name would be removed from the innocence list. But Mr. Dieter defended the list and its name.

Being found "not guilty" is not innocence in the sense of "innocent as a newborn babe," he said, and "we've never said that's what the innocence list is about."

But Dieter knows very well that simply by calling it the "innocence list" he leads people to believe it is a list of people who actually did not commit the crime and that it is cited for that proposition by the anti side in nearly every debate on the death penalty. Even though DPIC itself hedges on what it means by "innocence," the list is used to mislead people and distort the debate, and that is its very purpose.

Inferences from Failure to Testify

According to Kevin Maurer's AP story on the Hennis case, "The defense had argued that the DNA [in semen inside the murder victim] did not indicate murder, but could have meant Hennis and Eastburn had a romantic liaison some time before the slayings."

If that were true, why didn't Hennis just take the stand and say so?

Until 1965, prosecutors in some states could comment on the fact that the defendant has not testified to a particular point and that a fair inference can be drawn from that failure. The Supreme Court decided in Griffin v. California that such comment violates the Self-Incrimination Clause. It does not, as Justice Stewart explained in his dissent, joined by Justice White.

Fortunately, juries are generally capable of connecting the dots themselves.
Former death row inmate Timothy Hennis, listed as "exonerated" on the "innocence list" maintained by the Death Penalty Information Center, was found guilty of three counts of premeditated murder by a military jury today. The Fayetteville Observer has this story.

This is the smoking gun that proves what we have been saying all along.  The so-called innocence list is nothing of the sort.

Taking Pomposity to the Next Level

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The Los Angeles Times features an editorial condemning the city's prosecutors for seeking, and getting, the death penalty 13 times last year.  The editorial's concluding paragraph states:

The [death penalty's] cost, of course, isn't the best reason to end  [it] -- it's that an imperfect justice system cannot provide 100% certainty of guilt, making us all guilty of state-sanctioned murder when the courts get it wrong.  That's why most developed nations have done away with capital punishment.  In that context, L.A. prosecutors aren't just being overzealous, they're being inhumane.

It would take more than the length of a readable entry on this blog to spell out everything that's wrong with the editorial, so forgive me for going after the low-hanging fruit.

First, the paper discusses the "inhumanity" of the death penalty without describing a single fact in a single case in which the jury imposed it.  One might suspect that the omission is a deliberate attempt to hide the horrifying details that convinced 12 normal citizens to choose capital punishment.

Second, the editorial doesn't even make a pretense of acknowledging, much less addressing, the arguments that have convinced California (and national) voters to support the death penalty by 2-1.  Has it struck the editorial writers as odd that such a large swath of humanity is "inhumane"?

Third and relatedly, the only advocacy groups cited are, guess what,  the ACLU and the DPIC.  Indeed, the editorial is little more than a cheering section for the ACLU report it cites.  It's perfectly proper, though mistaken in my view, for a paper to oppose the death penalty.  But it's cheap journalism just to echo someone else's press release.

Fourth, the paper repeats what I'm sure it does not intend to be the racist canard that most "developed countries" have ended capital punishment  --  never mentioning that culturally well developed but non-caucasian countries like Japan, India and South Korea retain it, not to mention most of the world's population.

Last for now, the editorial astonishingly labels as "inhumane" the city's prosecutors for applying state law and  making good on their professional obligation to represent their client.  That's not what we heard from liberals when the question was the propriety of the lawyers comprising the "DOJ Seven" when, in private practice, they represented their clients, notwithstanding that the clients were jihadists.

Consent Decrees

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Where you stand depends on where you sit, and this post by Jordan Weissmann at BLT describes an epiphany of one lawyer who has looked at consent decrees from both sides now.

Peter Nickles is the Attorney General of D.C. He wants to get the government out from under a consent decree regarding "a 34-year-old class action dealing with the quality of support services that the District of Columbia provides to the mentally disabled." The consent decree problem is also common in prison litigation, and was the subject of a CJLF Brief in the case of Valdivia v. Schwarzenegger. The Evans case

is one of several cases in which the city is attempting to escape settlements known as consent decrees, which require historically troubled agencies to meet ambitious performance targets. Nickles, who spearheaded one of the first such cases while in private practice, has publicly criticized the settlements as unrealistic and burdensome to the city.

*                               *                           *

Eventually Nickles launched into something of a monologue (he objected when Huvelle called it a "speech") on the evils of consent decrees, recalling his own "30 years suing the District," and the problems the cases had created for the city.

"You have too many lawyers trying to run the city," he said. Along the way, he brought up one of his favorite books, "Democracy By Decree," a critical take on, yes, consent decrees.

*                               *                           *

"I take the position, your Honor, that elected officials should be able to run the city's agencies," Nickles said.

Right. And also the state's prisons.

The Goals of Representation

In the NYT, William Glaberson has this article on the on-and-off guilty plea of Steven Hayes, defendant in the notorious Cheshire, Connecticut triple murder. During the time he wanted to plead guilty,

Mr. Hayes's lawyers filed a legal motion on Monday that was something of a brief against their client's wishes. They argued that even if he changed his mind yet again he should not be permitted to plead guilty.

They noted that a bedrock principle of law provides that clients, not their lawyers, decide whether to plead guilty or not guilty. But they argued that that was not necessarily true in death-penalty cases. In Connecticut, as in many states, a guilty plea leads to a separate hearing -- the penalty phase -- to determine if the guilty person is put to death. As a result, the lawyers said, a guilty plea "falls within the exclusive authority of the defendant's attorneys" after consultation with the defendant.

Some legal experts and other death penalty lawyers said this was a creative claim.
"Creative" is charitable. The claim is nonsense. A mentally competent client has the absolute right to decide the goals of representation, and the lawyer's decision authority is limited to deciding on the best means to that end. In this respect, death is not different.

A lawyer can certainly try to talk the client out of a position the lawyer deems unwise, and they apparently succeeded in that effort in the end. But to actually file a brief in opposition to your client's goal is definitely beyond the pale.

News Scan

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"New Hampshire Bill Would Expand DNA Database":  Dan Goldstein of New Hampshire Public Radio reports that state law enforcement is supporting legislation that would require the state to collect DNA samples from anyone convicted of a felony.  New Hampshire currently ranks last among the states in terms of collecting DNA samples from felons.  Supporters say more cases will be solved and future crimes will be prevented if the list of eligible felonies is expanded.  Janet Gloddy Young strongly supports the measure.  In 1971, her sister was repeatedly raped, beaten, and strangled, and her body was run over by a car four times.  The crime remains unsolved.  Last year, Young and family members helped push through legislation to create the state's Cold Case Unit to help solve these crimes.  Young argues that "without collection of DNA, the true potential of the unit will not be achieved."  Head of the state's DNA laboratory, Melissa Staples, says "There's a lot of data from other states which have shown that non-violent crime offenders are being linked to solving crime.  In fact the state of Virginia has found that 80% of their hits are due to matches with non-violent offenders."  A similar bill was killed in the last legislative session.  Issues of safety and privacy may not be the deciding factor in the Senate on this bill.  Instead, money may stall this proposal.  The Senate Judiciary Committee is likely to vote on the bill soon.

"Health Care Law Will Permit Sex Offenders to Get Viagra":  FOXNews published an article yesterday on confirmation of Senator Tom Coburn's allegation that under the Democrat's government run health care plan, taxpayers would pay for sex offenders to get Viagra and other ED drugs. The Congressional Research Service reports that there are no limitations in the new health care law "which would require health plans to limit the type of benefits that can be offered based on the plan beneficiary's prior criminal convictions.  Additionally, there do not appear to be any provisions that would specifically restrict qualified health plans' coverage of drugs prescribed to treat ED.  Therefore, a convicted rapist, child molester, or other sex offender who is not incarcerated would not appear to be excluded from enrolling in a qualified health plan through an American Health Benefit Exchange in their state solely because of that conviction."  There have been cases in which sex offenders did receive drugs to treat erectile dysfunction through state Medicaid programs.  Senator Coburn was ridiculed last month for proposing an amendment to the massive health plan that would block sex offenders from getting any prescriptions to treat ED, but the amendment failed 57-42.

"DRUG OFFENDER" Noted on Driver's Licenses:
  Mike Hasten wrote an article on  www.shreveporttimes.com reporting that Bill 139, which would increase the costs from $10 to $25 to issue a special license with "DRUG OFFENDER" in bright orange on the bottom of Louisiana driver licenses for those felony drug dealers that have been twice convicted, passed unanimously in the House Transportation Committee.  Representative Rickey Hardy proposed this legislation to "give the officer who would stop that person a heads-up who he's dealing with, to let him know that person has been involved in criminal activity and might be armed."  A "caution light" will come on for that officer.  Similar licenses with "SEX OFFENDER" have already been issued to people convicted in the state of certain sex crimes.  The house bill will now go to the floor for debate.

Why the Promise Gets Broken

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Kent notes that California's promise to release only "nonviolent" convicts has been broken, and not a few times.  The AP story to which he refers recounts a corrections spokesman as saying the problem is not with the procedures for deciding who gets released, but with the statute.

Perhaps there's something to that.  But it's not the whole story, or even the most important part of the story.

The reason the promise gets broken is that it was not serious to begin with.

In order to understand this, one must understand that the true engine behind the move to release prisoners is not cost saving.  That is, in current budgetary times, a plausible pretext, but still just a pretext.

The real reason is a long pre-existing belief on the left  that we imprison too many people for too long, and generally that the system is too punitive.  This sort of thinking would prefer a return to the 1960's-1970's medical or rehabilitative model for dealing with crime.  That the evidence shows those models to have been disastrously unproductive, if not counterproductive, simply does not matter.  That's because it's not about evidence.  It's about ideology  --  specifically, the ideology that sees the criminal as the victim and society as the uncaring if not abusive nanny, and thus the villian.

With that sort of thinking as the animating force, it's unsurprising that there is no very exacting effort to distinguish between so-called nonviolent offenders and plainly violent ones; indeed, any other outcome would be surprising.  The more hard-edged and radical of the "release-'em-now" crowd thinks that recidivism is merely society's reaping what it has sown by its callous and inequitable institutions.  The more moderate voices are less bitter, but also sufficiently conflicted about our moral authority to punish criminals that laxness and blunders in a release program become inevitable.  And since they are inevitable, we are only at the beginning of the cost they will exact on future victims.

The real question here is not whether dangerous convicts will be released.  It's how vigilant the media will be in covering the suffering to the innocent they're about to cause. 

Don Thompson of AP has more on the broken promise that only "nonviolent" prisoners would be released and unsupervised in the California downsizing:

SACRAMENTO, Calif. -- More than 250 state prison inmates freed without supervised parole under a new California law were convicted of crimes considered violent or threatening, according to prison records obtained as part of an inquiry by state lawmakers. A handful are sex offenders.

Gov. Arnold Schwarzenegger and state corrections officials said the law, passed last year, was designed to improve public safety by concentrating parole supervision on the most dangerous felons. Allowing those convicted of lesser offenses to go unsupervised after their release would mean fewer people being sent back to prison for parole violations, reducing the inmate population and saving the state money.

Crime and the British Election

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In the U.K., they are going to have a one-month election campaign, in contrast to the long, drawn-out affair we are having here. Will crime be a major issue? The conservative challengers want to make it one. Andrew Porter reports for the Telegraph,

David Cameron believes Labour's record on crime and anti-social behaviour will feature heavily in the general election campaign....

The Tory leader will demand that police "harass" troublemakers, as he distances himself from the party's recent "hug-a-hoodie" reputation.

News Scan

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Leahy Pressured to Delay Liu Hearing:  Judson Berger from Fox News reports that Republican members of the Senate Judiciary Committee have asked Chairman Patrick Leahy (D-Vt) to postpone an April 16 hearing to consider President Obama's nominee to the Ninth Circuit, Berkeley law professor Goodwin Liu.  The committee members cited Liu's submission on Monday of over 117 additional speeches, publications and other background materials he failed to disclose when his nomination was announced in February.  Among these were speeches on affirmative action and participation in an event co-sponsored by Berkeley's ultra liberal Center For Social Justice.  In their letter to Leahy, the members noted that Liu only provided the additional background material after staff discovered omissions in the information he initially submitted.  Also, Larry Margasak has this AP story on the controversy.

Execution Delay Rejected:  The Ohio Supreme Court has denied a convicted murderer's request for additional delay of his April 20 execution.  The Associated Press reports that Darryl Durr sought the delay while he sought more DNA testing and challenged the state's lethal injection process.  Durr, a habitual sex offender, was convicted on strong evidence of the kidnap, rape and murder of sixteen year old Angel Vincent. A unanimous 2006 Sixth Circuit decision  denying Durr's multiple error claims presents the facts supporting his conviction and death sentence.

Holder: No DP for Gang Murderers:  Examiner.com writer Dave Gibson reports that, in a February 3, 2010 letter, U.S. Attorney General Eric Holder ordered the U.S. Attorney for the Eastern District of Virginia not to seek the death penalty for three gang members charged with the robbery and murder of Alexandria man last summer.  U.S. Attorney Neal McBride had previously indicated that he would seek death sentences for the three illegal alien members of the notoriously violent MS-13 gang who were indicted last November on federal racketeering and murder charges.  The gang, which was formed in the 1980s by mostly illegal Salvadorian immigrants in Los Angeles and has since gone nationwide, recruits high school aged males.  The initiation requires new recruits to kill a rival gang member or an unsuspecting civilian.  Attorney General Holder has refused public comment on the matter.   

The two most recent posts have shown the need for me to update our on-going Dictionary for the Politically Incorrect.:

Fear-mongering  --  An expression of concern (1) that  when a terrorist organization says it's going to commit yet more mass murder, as it has before, it might actually mean it; or (2) that when we prematurely release criminals from prison, the recidivism rate will not be zero, since there was a reason they were in prison to begin with.

Highest traditions of the profession  --  What a lawyer is credited with serving when (a) putatively in a representative capacity, he argues the case in behalf of his clients, even if they are admitted terrorists (see "DOJ Seven"), or (b) argues the case against his client, when the client wants to plead guilty to a capital crime but the lawyer is personally opposed to the death penalty.  (N.B.  This has led some cynical people to think that "highest traditions of the profession" functionally means "whatever outcome the left prefers").

A Warning on Prisoner Releases

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In the Bakersfield Californian, state prison psychologist Brik McDill has this op-ed.

After spending 20 years in corrections as a psychologist, I am astonished that anyone -- much less the governor -- could define any class of felons as nonviolent. The current plan to release thousands of California inmates with no or shortened parole is fatuous, if not disingenuous. It is a complete fiction to believe that any convicted felon upon release is safe for community re-entry without serious strengthened parole supervision and community-based rehabilitation.
He goes on to note that nearly everyone in prison is there after both the prosecutor and the judge made a discretionary call that they needed to go to prison. The image of the poor unfortunate inmate sent to state prison under a harsh, mandatory law just for possessing one joint is myth. On top of that, many prisoners have committed worse offenses than their offense of commitment. They either didn't get caught for the greater offense, or a greater offense was plea-bargained to a lesser one.

The only credible solution if these felons are to be released is to redirect a serious portion of money saved through the release program to parole programs throughout the state to greatly reduce the number of parolees on an agent's caseload -- as has now wisely been done -- to 40 or fewer, so that supervision is close, frequent and regular. And these parolees need to be in rehab programs and forced to wear GPS devises so that at any time they can be located for random checks. Anything short of that, we're courting disaster.
Anyone speaking such heretical truths can expect to be trashed, and, sure enough, SL&P has this post on the article, predictably calling it "fear-mongering."
In the National Journal, dated Saturday:

The president's nominee had "a brilliant legal mind" and a charming manner, the critic wrote in an op-ed. But his record was "resolutely conservative." This made the Supreme Court nomination "a seismic event that threatens to deepen the nation's red-blue divide." It should be rejected, the critic implied.

The nominee was John Roberts, now the chief justice. The critic was the comparably brilliant and charming Goodwin Liu, a University of California (Berkeley) law professor. He is now the most resolutely liberal of President Obama's judicial nominees.

Taylor captures well what is so very peculiar about the supporters of Liu's nomination. Calling for confirmation on his qualifications and intellect despite his way-out-of-the-mainstream ideological bent, they flatly contradict the position taken by Liu himself on both the Roberts and Alito nominations.

Regarding the filibuster question, Taylor has a proposal:

Third, many Republican senators forcefully denounced as unconstitutional the Democratic filibusters of Bush's nominees. Could they unblushingly turn around and filibuster Obama's nominees?

Yes, they could. Republican senators cannot be expected to disarm unilaterally. Not unless Democratic leaders first make a meaningful pledge not to filibuster future Republican presidents' nominees absent truly extraordinary circumstances.

Good luck with that.

BTW, isn't a "resolutely liberal" nominee to a court that is already out of the mainstream, out of the river, and over the left embankment a "truly extraordinary circumstance"? If not, what is?

News Scan

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Opposing The Client's Wishes:  Hartford Courant writer Alane Griffin reports on the dilemma facing veteran defense attorneys Patrick J. Culligan and Thomas J. Ullmann, both "vehement" death penalty opponents.  At a competency hearing last Thursday, their client, Steven Hayes, announced his intention to plead guilty to the brutal Cheshire home invasion murders of Jennifer Hawke-Petit and her daughters, 17-year-old Hayley and 11-year-old Michaela. This story by CBS News reporter Sammy Rose Saltzman provides details of the 2007 crime.   At a hearing on Tuesday, Culligan and Ullmann will argue against the court accepting Hayes' guilty plea, although they have already conceded that he was mentally competent to do so.     

Update:   According to this Associated Press report, Steven Hayes' moment of contrition has passed.  After further consultation with his legal team, Hayes has changed his mind and will continue with his plea of not guilty to participation in the Cheshire home invasion murders. 

California AG Race Heats Up:  With just two months to go until the state's June 8th primary, the Democrat front runner, San Francisco DA Kamala Harris, is beginning to face some tough questions about her policies, according to this story by SF Chronicle reporter Marisa Lagos.  Harris' recent decision to drop hundreds of drug cases due to the discovery last month that a crime lab technician may have been stealing and using drug evidence has sparked criticism from one of  the six other Democrats vying for the party's nomination.  Harris' opposition to the death penalty, a plus in San Francisco, "will be a major handicap in the general election against a strong Republican," according to one Democratic consultant. 

Nevada Death Row Delays: "Why is he still alive after 30 years? He still is on death row. Time to go." So asks the son of murder victim George Monahan, in this story by Ed Vogel for the Las Vegas Review-Journal. Unfortunately, the story does not explain that the primary hold-up has been in the federal courts.

It's Dying -- Except When It's Not


If you want to find out when "the death penalty is dying," just look on the DPIC website.  You won't need to look more than once, though, since according to the DPIC, the death penalty is always dying.  It's dying when death sentences are down (but executions are up, as they were last year).  It's dying if public support drops by a sliver within the poll's margin of error (but consistently remains at better than 2-1).  It's dying  if abolitionist bills were "introduced" in X number of states, even if every one of them flopped.  It's dying when a quarter of the public thinks capital punishment is imposed too often, another quarter think it's imposed about right, and half think it's not imposed often enough (which is the current state of public opinion according to Gallup).

.In other words, in DPIC's ideologically driven world, it's dying whenever the DPIC wants to think so, whatever the facts may be.

All this by way of prologue to a story up today on Sentencing Law and Policy.  The story has several interesting features.  Its principal focus is on public outrage in South Korea over the rape and murder of a 13 year-old girl by a fellow twice previously convicted of rape.  No one has been executed in South Korea for 13 years.  It seems to me this fellow stands a pretty good chance of ending the drought.

The main reason I think so is simple to explain:  South Koreans favor the death penatly 8-to-1.

New Sentence in Old Case

Victoria Kim reports in the LA Times,

Lloyd Earl Jackson once appeared to be first in line for the gas chamber after California reinstituted capital punishment in 1977.

The 19-year-old had beaten two elderly Long Beach women to death and raped one with a wine bottle. The brutality of his crime and his lack of remorse made Jackson the "model candidate for death in the gas house," one columnist wrote after his death sentence was upheld by the state's highest court.

But Jackson's short walk from San Quentin's death row to the execution room has taken a long detour through numerous courts and appeals over the last three decades. On Thursday, a Long Beach jury once again found that Jackson, now 52, should be put to death.

More Bad News for USCA9

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How Appealing tips us to this news release from the Ninth Circuit, announcing that Judge Andrew Kleinfeld is taking senior status. This creates a vacancy to be filled by the present adminstration, which already has already demonstrated a desire to move the worst federal court in the nation on criminal justice issues in the direction of being even worse. As a person of sense, Judge Kleinfeld is in the minority on that court. Replacing him with someone who is not would be a severe blow to the cause of justice.

That said, Judge Kleinfeld has serve long and honorably and deserves to ease into semiretirement if that is what he wants to do. We wish him well.

We Don't Need No Stinking Balance

On Texas Death Penalty Blog is this announcement of a death penalty symposium at the University of Texas Law School. Of the names I recognize, every one is a hard-core opponent of the death penalty.

Balance would only be required if the mission of the UT were to educate. If the mission is to indoctrinate, as it apparently is, choosing speakers entirely from one side is more conducive to the goal.

Earlier today, I participated in an event at UC Davis Law School. It was jointly sponsored by the student chapters of the Federalist Society and the ACLU. The other speaker was Natasha Minsker of the ACLU.

Some people do like balance.

Thanks to Dudley Sharp for the tip.

Briefing on Felon Voting

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The Federalist Society has a briefing call next Wednesday at noon ET with Roger Clegg. The subject is felon voting. Call 888-752-3232. The FedSoc site also has this paper by Roger on the subject.

Congress is now considering H.R. 3335, of which section 3 provides,

The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.
No, your eyes aren't deceiving you. Some people in Congress actually want to require that a paroled murderer be able to vote the day he walks out the gate.

This bill raises several questions: (1) Is this good policy? (2) Can Congress override the States' decision on whether this is good policy? (3) What are these people smoking? I would be surprised if Roger gets to question (3), though.

Oh, yeah. The bill is titled
"The Democracy Restoration Act." Really. The United States is not a democracy because paroled murderers can't vote, and these folks are going to "restore" a rule of law that never existed to make us a democracy again. Hence question (3).

News Scan

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Exposing The Low Risk Offender Lie:  San Diego Union Tribune writer Matthew T. Hall reports that California lawmakers are questioning state corrections officials over the handling of John Albert Gardner III 2000 molestation case and the effectiveness of the Static-99 scoring system.  The Static-99 is used by the California Department of Corrections and Rehabilitation to evaluate the risk of certain male inmates and parolees in California.  Garner was paroled in 2007 and is now being accused of raping and killing Poway teenager Chelsea King. The system evaluated Gardner as a 2, and unless a parolee rates as a 4 or higher they are not considered a high-risk sex offender.  When being questioned about the Static-99 system, correction officials at the hearing said that the system is the most widely used government way of predicting sexual recidivism. But some believe that important factors are not being evaluated, like whether they plead to a lesser offense.  Scott Kern, undersecretary of operations for the department, said that the state's budget to oversee sexual offenders on parole is $60 million, and it would cost $1 billion for the state to supervise all 70,000 sex offenders.  The money issue is not limited to the problem of effectively monitoring sex offenders.  As mentioned in an earlier post by Kent Scheidegger, inmates convicted of violent crimes are among those being released for California to save money.  Following California's lead, Arizona is considering releasing prisoners to save money.  Arizona Daily Star writer Kim Smith reports on a study done that found 94% of the more than 40,000 state prisoners are either repeat offenders, violent or both.  Lawmakers hired Daryl Fischer, a retired Arizona Department of Corrections research manager, to analyze whom the move would effect.  Fischer stated that "[t]he plain truth, ladies and gentlemen, is that Arizona's prison beds are filled by those who pose the most risk to the public.  The state is getting its money's worth for every dollar spent on the state prison system."

Serial Killer Sentenced to Death: Cincinnati.com published writer Kimball Perry's report that Hamilton County Common Plea Court Judge Charles Kubicki Jr. didn't hesitate to follow the jury's recommendation to sentence Ohio murderer Anthony Kirkland to death.  Kirkland, a habitual criminal, was given two death sentences for killing 14-year-old Sharee Crawford and 13-year-old Esme Kenney.  Kirkland also received two separate sentences of 70 years to life for the murders of 25-year-old Kimya Rolison and 45-year-old Mary Jo Newton.  His murder spree lasted from 2006 until 2009.  On March 7, 2009, Kirkland was arrested for killing Kenney as she was jogging.  Previously, he had been serving a 16-year sentence for the 1987 murder of Leola Douglas. 

Teen's Jailhouse Calls Can be Used in Murder Trial: Boston Globe writer Maria Cramer reports on a Middleton Superior Court judge's decision to allow prosecutors to use jailhouse tape recorded conversations between a teen, John Odgren, and his parents.  The teen is accused of fatally stabbing a freshman in a school bathroom.  Judge S. Jane Haggerty said that Odgren is a smart teenager who knew the jailhouse calls to his parents were being monitored.  Odgren's lawyer, Jonathan Shapiro, who argued that his client suffers from Asperger's disorder, was saddened by the decision. The court had initially barred prosecutors from using the tape.  But last October, the Massachusetts Supreme Court reversed the ruling and ordered the Superior Court to go back and decide if Odgren's constitutional rights had been violated.

Justice Stephen Breyer: Associated Press writer Jesse J. Holland reports on Supreme Court Justice Stephen Breyer's view on looking to foreign courts to interpret the U.S. Constitution and his creative hypothetical in the court room.  On Wednesday, Justice Breyer said he doesn't see any reason why justices can not look to foreign courts when they are ruling on U.S. law.  The issue was brought up last year while considering Sonia Sotomayor as a Justice.  Breyer says that "from a legal point of view, I don't think it's overwhelmingly important.  If some people don't want to read foreign opinions, fine, don't read them.  If you want to, fine. If you want to refer to them fine."  Also on Wednesday, Justice Breyer had the court in laughter after creating the tale of the Pussycat Burglar.  He stated that the Pussycat Burglar was a kindhearted man whose only sin is his propensity to break into houses.  The tale was told during oral arguments about giving longer sentences to people who commit  serious crimes such as residential burglary. 
Don Thompson reports for AP:

Inmates convicted of violent crimes are among those being freed early from California jails to save money, despite lawmakers' promises that they would exclude most dangerous prisoners and sex offenders.

An Associated Press review of inmate data shows that some of the freed criminals were convicted of assault with a deadly weapon, battery, domestic violence, and attacks on children and the elderly.

Even if we accept, for now, the dubious premise that convicts can be neatly classified as violent or nonviolent based on offense of commitment, the promise that only "nonviolent" criminals would be released was a lie.

Executive Clemency

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Daniel Friedman reports in Forbes:

Also, in a move to fix America's finances, President Obama will pardon crooked financier Bernie Madoff and appoint him head of the Treasury. His first mission will be to China, in the president's words, "to offer the Chinese a new scheme to buy back their Treasury bills."
Check the date. Hat tip, Eugene Volokh.

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