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A Misquote on BBC News

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Reporters often wrongly paraphrase what I say and sometimes quote out of context, but it's rare that the words inside the quote marks are wrong.  One of those rare misquotes appears on BBC News today, with essential words left out:

"Anyone who says the death penalty has no deterrent effect either doesn't know what they are talking about or are lying," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which has supported death penalty cases throughout the country.

"The debate over studies supporting its deterrent effect is whether they have sufficiently shown it."

What I actually said was "Anyone who says it has been definitively proved that the death penalty has no deterrent effect either doesn't know what they are talking about or are lying."

Big difference.  Many people believe the death penalty does not deter.  On the present state of the evidence, they are entitled to their opinion.  What they are not entitled to say on the present state of the evidence is that their opinion is a conclusively proved fact, but misinformed or dishonest people often say that.  I would never say that the evidence definitively proves that the death penalty does deter, but the Beeb quotes me as saying just that.

I have sent in a request for a correction.

Update:  The quote has been corrected.

Update 2:  The paragraph immediately before the quote says:

Both sides in the debate cite studies supporting respective claims about the death penalty achieving or not achieving deterrence - currently studies supporting the latter appear to have the upper hand.

The story provides no basis for the "upper hand" statement.

The Sanctuary City Case

Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
This section has been challenged in court as illegal and unconstitutional.

If it occurs to you that a direction from the chief executive to his subordinates that is expressly limited by its terms to actions "consistent with law" cannot possibly be illegal, congratulations, you understand law better than a federal district judge.

Toning It Down

The Las Vegas Review-Journal has this editorial regarding presidents' attacks on the judiciary -- both the current and preceding presidents.

Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.

Photo Finish Senate

In the race for control of the Senate, the elephant and the donkey are neck and neck in the home stretch.  As of 7:45 am PST, Nate Silver has the probability at 50.1 to 49.9.

There is something to be said for having the Senate and the White House in control of opposing parties.  We will get more moderate judges that way.  Yet due to a quirk in the U.S. Constitution, there is a decent chance that His Superfluous Majesty will be anything but superfluous for the next two years and will actually determine control the other way.

Justice Kagan on Justice Scalia

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Yesterday I had the honor of attending the re-naming ceremony for the law school at George Mason University in Arlington, Virginia (about 20 minutes from my home)  --  now known as Antonin Scalia Law School.  Among the speakers was Justice Elena Kagan.  I thought she did a brilliant and heartfelt job of summarizing the enormous impact Justice Scalia had on law and judging in the United States.

I told my students at Georgetown Law at the beginning of our class this semester that, fifty years ago, the question I thought most judges would have asked themselves was, "What is the just outcome in this case?"  The question far more frequently has become one that respects democratic self-government:  "What outcome in this case is most faithful to law?"

The change is due principally to the work of Justice Scalia, probably the most intelligent man I have ever known, His acumen is widely recognized; his courage in taking on the existing order isn't so much, but should be.

Justice Kagan's remarks are here.
I have previously argued that Judge Aaron Persky, who imposed a six-month jail sentence on the man who grossly violated an inebriated woman, should be recalled.

I advanced this position notwithstanding the opinion of the defendant's father that all his son did was "20 minutes of action"  --  a phrase that will live in infamy if I have anything to say about it, not because it's appalling, but because it's revealing.  In 40 years of practicing law, I have never seen the defense attitude toward victims put more honestly or more succinctly. 

The court's lenient sentence, and what should become of Judge Persky, is the talk of the legal blogosphere, see, e.g., Doug Berman's entry here, and is today's lead topic in the New York Times "Room for Debate."  The NYT asked three legal scholars to chime in, and me too.  The debate presents as diverse and thoughtful a discussion as I have seen.

I have criticized the NYT more than once, and will do so again, but I thank it for seeking a conservative viewpoint and allowing me to speak my piece.

Judges, Conscience, and Dictatorship

Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit recently took senior status.  That means he may still sit on three-judge panels but will no longer participate in the court's decisions to rehear a particularly important case before an 11-judge panel or sit on such larger panels.  Maura Dolan has this article in the L.A. Times.  It is mostly favorable, as articles on such occasions tend to be, but there is one dissenting view expressed.

The headline is, "Judge Harry Pregerson, leaving the bench at 92, always followed his conscience."  Sounds nice, doesn't it?  I mean, who could criticize a person for following his conscience?  Well, there is a big difference between "conscience" in personal conduct and "conscience" as used in this context.  Here, "conscience" is little more than a high falutin word for "opinion."  On matters of great public controversy, both sides believe they are right, and a judge who decides on the basis of which opinion he agrees with rather than on the basis of the law is acting as a dictator, not a judge.

Summary Reversal on Excusing Jurors

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The U.S. Supreme Court has once again summarily reversed a federal court of appeals for failure to obey Congress's landmark reform of habeas corpus law in 1996.  Once again, it is a capital case in a circuit divisible by 3.

Because juries in the penalty phase of capital cases must be unanimous, it is particularly important to remove from the jury those members of the venire who will not actually weigh the aggravating and mitigating circumstance but instead will automatically vote against the death penalty no matter what.  This is particularly important in states which stupidly do not require the jury to deliberate to unanimity one way or the other but instead allow a single holdout juror to veto the decision of the other eleven.

People often do not state their views straightforwardly.  Sometimes they are dishonest, but more often they just haven't thought them all the way through themselves.  Determining which jurors are "Witherspoon/Witt" excludable therefore involves some judgment.  The trial judge, who sees the venire members live and in full context, is entitled to considerable deference in making this judgment.  However, anti-death-penalty judges who are just itching to overturn a death sentence regardless of how richly deserved it may be find jury selection to be a fertile source of excuses to nullify a law they disagree with.  To forbid such misuse of the law and limit the lower federal courts' power to overturn state decisions to cases of clear error, Congress enacted the "deference" provision of the Antiterrorism and Effective Death Penalty Act of 1996.  Federal district and circuit judges who regard themselves as infinitely superior to state supreme court justices hate this law and regularly ignore its mandate.  This is particularly common in the Third, Sixth, and Ninth Circuits.  Reversing them has become a significant part of the Supreme Court's workload.

In today's decision in White v. Wheeler, the Court includes the following admonition without dissent:

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty.
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary.  Judges who cannot or will not decide capital cases fairly should not sit on them.  They should be excludable just like the jurors.  If they will not recuse themselves, perhaps it is time to establish a challenge for cause.  How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

Jonathan Adler has this post at the Volokh Conspiracy.

Andrew Wolfson has this article in the Courier-Journal centered on Facebook posts made by Jefferson Circuit Judge Olu Stevens regarding the racial makeup of juries, and the subsequent debate that erupted between him and Commonwealth's Attorney Tom Wine.  The debate begs the question of whether or not it is proper for a judge, who has taken an oath to be impartial, to publicly blast attorneys or opine on legal issues on social media.  Some background to the story:

The fiery dispute between Stephens and Wine arose when the judge dismissed a jury panel in November 2014 because it had no black members - even though the prosecution had nothing to do with that result.
Wine then asked the Kentucky Supreme Court to clarify whether judges have that power when there is no evidence minorities have been removed for discriminatory reasons. Stephens in turn took to his Facebook page to blast Wine as trying to "protect the right to impanel all-white juries" in a series of posts that suggested the prosecutor is racist.

Stevens said that while the panel was drawn at random - and the black juror was struck at random - the defendant was denied a right to a jury representative of a county in which about 21 percent of residents are black.
Here is some of what Judge Stevens had to say on Facebook:

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