Takings Clause and Foreigners: Thanks to Eugene Volokh at Volokh Conspiracy for his post on the Federal Circuit opinion dismissing a claim that the Fifth Amendment's Takings Clause applied to foreign nationals with no relationship to the United States. While the Takings Clause does not normally arouse our interest, the Federal Circuit's discussion of the Bill of Rights as it applies to foreigners is of interest - especially in light of pending U.S. Supreme Court decisions pending in Boumediene and Al Odah.

Continue reading "Blog Scan" »

Posted by Lauren Altdoerffer at 09:45 AM | Permalink | Comments (0)

Hat-tip to Paul Cassell at the Volokh Conspiracy for the link to the text of Senator McCain's speech on his judicial appointment philosophy. The speech was given today at Wake Forest University and outlines McCain's conservative philosophy of appointing qualified judges to positions in the federal courts. For McCain, qualified judges are those who will apply the Constitution, and the laws of democratically elected representatives, to each case at hand. This would include "people in the cast of John Roberts, Samuel Alito, and the late William Rehnquist" because these were jurists "who knew their own minds, and know the law, and know the difference." McCain was particularly careful to point out that his appointments would understand the "clear limits to the scope of judicial power" as well as "the clear limits of the federal power."

Continue reading "Senator McCain Explains His Judical Philosophy" »

Posted by Lauren Altdoerffer at 10:53 AM | Permalink | Comments (0)

Medellin Execution Date Set: The Blog of Legal Times has this post on the decision to set Jose Medellin's execution for August 5, 2008. In March 2008, the Supreme Court ruled that an International Court of Justice judgment was not binding domestic law, and Medellin was not entitled to further review of his conviction and death sentence. CJLF submitted an Amicus Brief in the case. The brief can be found here. See also press coverage in today's News Scan.

Predicting Lethal Injection Review Post-Baze: Lyle Denniston at SCOTUSblog has this post on proceedings in the Fourth Circuit on the question of whether Virginia's lethal injection protocol satisfies the constitutional standards articulated in Baze v. Rees. Virginia filed its petition with the Fourth Circuit last Friday, its brief can be found here. Denniston reports that Virginia's brief focuses heavily on the argument that the district court anticipated the U.S. Supreme Court's decision in Baze, and applied the same constitutional standards to uphold Virginia's method. This brief is in response to Christopher Scott Emmett's April 16th petition to the Fourth Circuit urging the Fourth Circuit to send the case back to the district court to determine if Virginia's protocol adequately resembles the lethal injection upheld in Baze v. Rees. Emmett's petition can be found here. Denniston's post notes that the Fourth Circuit's decision could lead the way by setting an example for other courts to follow when reviewing state lethal injection protocols.

Media Coverage on Execution's Post-Baze: Over at Sentencing Law and Policy Douglas Berman also has this comment on the news stories that have reported on scheduled executions in the wake of Baze v. Rees. Based on the media coverage, and politician silence after the Baze decision, Berman predicts we will not see a "serious change in capital" punishment "even if we see a few executions every week for the rest of 2008."

Posted by Lauren Altdoerffer at 03:08 PM | Permalink | Comments (0)

Thomas Sowell has this column on Barack Obama, noting that eagerness to have a black President is not a good reason to elect this particular person as President:

Just the power to nominate federal judges to trial courts and appellate courts across the country, including the Supreme Court, can have an enormous impact for decades to come. There is no point feeling outraged by things done by federal judges, if you vote on the basis of emotion for those who appoint them.

Continue reading "Sowell on Obama" »

Posted by Kent Scheidegger at 05:44 PM | Permalink | Comments (0)

The Constitution and Judicial Supremacy: At Bench Memos Ed Whelan and Matthew J. Franck have two posts on the Senate resolution that declared John McCain a "natural born" citizen under Article II, Section 1, of the Constitution of the United States. Matthew Franck's post reacts to today's Washington Post article by Matthew Dobbs. The post disputes Dobbs' claim that a Constitutional amendment might be necessary to clarify what is meant by "natural born" in Article II. Whelan's post adds to Franck's post by taking up Franck's statement, " 'Congress cannot legislatively change the meaning of the Constitution.' That's true. Somehow it never seems to occur to most law professors that neither can the Supreme Court judicially change the meaning of the Constitution." Whelan adds his own thoughts as they relate to Lawrence Solum’s “Semantic Originalism”.

The Takings Clause and the Fourth Amendment: Orin Kerr at Volokh Conspiracy posted his reaction to Ilya Somin's textualist reading of the Fifth and Fourth Amendments and their possible interplay. Kerr disagrees with Somin's argument that there is significance in the fact that the text of the Fifth Amendment does not distinguish between the taking of private property for the "public use" of investigating crime and other kinds of takings. He also specifically addresses Somin's point that the Framers didn't experience seizures of property owned by innocent third parties.

Posted by Lauren Altdoerffer at 04:21 PM | Permalink | Comments (0)

Thoughts on the oral arguments in Kennedy v. Louisiana: Sherry Colb at FindLaw posted an article today reporting the the U.S. Supreme Court's oral arguments in Kennedy v. Louisiana. The article takes specific notice of Justice Ginsburg and Chief Justice Roberts' interpretations of Coker v. Georgia, the 1977 case that found the death penalty to be a grossly disproportional penalty for the rape of an adult woman. In her article, Colb suggests the Chief Justice may be in favor of allowing the death penalty where "the line between capital-worthy and non-capital-worthy offenses is so hard to draw" and suggests that Justice Ginsburg would be willing to draw the line at allowing the death penalty for the rape of children, but not for the rape of adult women. For more reading on posts regarding Kennedy v. Louisiana check out Douglas Berman's link to the article at Sentencing Law and Policy.

Posted by Lauren Altdoerffer at 04:07 PM | Permalink | Comments (0)

Comparison of Crawford and McConnell v. FEC: Orin Kerr at the Volokh Conspiracy had an interesting post today. Kerr compares the U.S. Supreme's decision in yesterday's Crawford v. Marion County Election Board with its 2003 decision in McConnell v. FEC, 540 U.S. 93 (2003). According to Kerr the U.S. Supreme Court's decisions in McConnell and Crawford both addressed the basic issues of: (1) The degree of scrutiny for a facial challenge to a statute that is claimed to infringe on constitutional rights central to the voting process, and (2) The amount of evidence of a problem, and how hard should the courts look for it. Kerr also notes the political parties' reactions to the two pieces of legislation - Democrats favored campaign finance reform and opposed voter ID legislation, while Republicans had the opposite reaction.

More Crawford: Richard Samp of Washington Legal Foundation has this guest post at SCOTUSblog

Posted by Lauren Altdoerffer at 03:53 PM | Permalink | Comments (0)

Scalia on 60 Minutes: The Corner at National Review Online has a link to transcripts of Justice Scalia's interview with Lesley Stahl from 60 minutes. The interview aired last night on CBS. Gerard Bradley at Bench Memos also has this post on his thoughts from Justice Scalia's interview. The ABA Journal also has this link to excerpts from Justice Scalia's new book "Making Your Case: The Art of Persuad­ing Judges."

Book Review of "Conservative Legal Movement": Todd Zywicki posted a review of Steven Teles' new book "The Rise of the Conservative Legal Movement" on Volokh Conspiracy today. Zywicki praises the book and recommends it as easy summer reading. He also has some interesting points on Teles' discussion of the success of the Federalist Society in the book.

Posted by Lauren Altdoerffer at 03:08 PM | Permalink | Comments (0)

"Robert Loblaw" over at Decision of the Day points to the Seventh Circuit case of Koger v. Bryan, 05-1904 (7th Cir., April 24, 2008) reversing a district court's summary judgment dismissal of inmate Gregory Koger's claim under Religious Land Use and Institutionalized Persons Act. Koger, a member of Thelema, a religion founded by famed devil worshipper Aleister Crowley, sued when the state denied his dietary requests. The post notes Judge Evans concurrence:

RLUIPA, I submit, fosters the potential for mischief and game-playing. Koger’s case is, potentially at least, a pretty good example of that. . . . [W]as his request for a nonmeat diet a mere preference (he practiced yoga) or the result of a sincerely held religious belief? On this record, we have no reason to doubt that it was the latter. But one would not be terribly surprised if Mr. Koger has had a beef tenderloin or a Big Mac since he left the prison a little over two years ago.. . .

So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L. Oldham, who by the way has done an outstanding job, will get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean towards saying “yes.”

Posted by Steven K. Erickson at 11:15 AM | Permalink | Comments (0)

U.S. Sentencing Commission On Retroactivity of Crack Amendment: Thanks to Douglas Berman at Sentencing Law and Policy for his post on the U.S. Sentencing Commission's release of data on the retroactive application of the crack amendment. The Commission's data, found here, compiles the preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). The data compiles cases that were received by the Commission before April 14, 2008. Berman notes that he hopes the data is frequently updated.
Lara Jakes Jordan at the Associated Press also had this story on the Commission's findings.

Vienna Convention Post-Medellin: Howard Bashman at How Appealing provided this post, and a link, to the Second Circuit's decision that failure to inform detained aliens of the prospect of consular notification, as required by Article 36 of the Vienna Convention, cannot be vindicated by a private action for damages. While Article 36 has been addressed by courts in a variety of contexts, the U.S. Supreme Court's decision in Medellin v. Texas did not directly address this issue. Instead, the Medellin decision assumed, without deciding, that Article 36 creates the judicially enforceable right to request that consular officers be notified of their detention.

Posted by Lauren Altdoerffer at 04:00 PM | Permalink | Comments (0)

From Fox News:

HONOLULU (AP) — A 65-year-old first-time drug offender on the Big Island is facing a maximum 20-year sentence.

The case against farmer David Finley of Volcano involves possession of more than 75 pounds of marijuana. Police say they also found nearly 200 marijuana plants in greenhouses on Finley's 29-acre ranch, along with other drugs.

Circuit Judge Glen Hara has sentenced Finley to two maximum 20-year sentences to be served simultaneously. He said any other sentence would undermine respect for the law and hurt society.

But the judge said he is convinced Finley is not an evil person. He was arrested Jan. 29, 2007 and already has served 14 months in jail.

The judge said marijuana is fully entrenched in the Big Island way of life with many people starting to use it before they are teenagers.

Make of it what you will.

Posted by Steven K. Erickson at 06:04 AM | Permalink | Comments (0)

Giles Commentary: Yesterday, Richard Friedman's Confrontation Blog had this post by Joan Meier, of George Washington Law School and DV LEAP. Meier's post argues that the conflict between the confrontation clause and the forfeiture principle addressed in Giles v. California cannot be resolved by looking to the Framer's intent or early United States common law. Meier's also argues that Framing-era courts decisions in dying declaration cases and child rape cases indicate the forfeiture principle would have been applied in a case like where the defendant's wrongdoing caused the witness's absence at trial.

Scalia's Use of Di Re in Moore: Orin Kerr at the Volokh Conspiracy comments on the Justice Scalia's use of United States v. Di Re in today's majority opinion of Virginia v. Moore. Kerr's post states that Scalia misapplied Di Re by "saying it was just a case of federal supervisory power" and agreeing Justice Ginsburg that Di Re was "pinned on the Fourth Amendment and not our 'supervisory power.'"

Posted by Lauren Altdoerffer at 03:20 PM | Permalink | Comments (0)

Mumia Abu-Jamal: Steven D. Levitt, at Freakonomics Blog authored this post, cautioning against the uninformed support of convicted murderer Mumia Abu-Jamal. Mumia Abu-Jamal was convicted and sentenced to death for the murder of police officer Daniel Faulkner in 1981. The federal district court granted habeas relief as to the death sentence but denied relief on the guilt verdict. The Third Circuit affirmed last month in this decision. Levitt's post encourages those who support Mumia to read Murdered by Mumia written by Maureen Faulkner and Michael Smerconish. Maureen Faulkner is Daniel Faulkner's widow, and offers a victim's perspective of the Mumia legal battle. Levitt writes: "If you are a college student, or a Hollywood celebrity, thinking about publicly proclaiming Abu-Jamal’s innocence, I strongly recommend that you read this book first."

Giles Argument: Lyle Denniston reports at SCOTUSblog on today's argument regarding the Confrontation Clause and the murdered witness.

Baze Comments: Volokh Conspirator Paul Cassell has this clarification to his earlier comment on Justice Stevens' opinion in Baze, with links to his prior posts and Orin Kerr's in the same blog.

Posted by Lauren Altdoerffer at 01:37 PM | Permalink | Comments (0)

SCOTUS Podcasts: The Federalist Society has podcasts on the Kennedy v. Louisiana argument by Bill Otis and on the Baze v. Rees decision by Kent Scheidegger.

Reaction to Baze Commentary: SCOTUSblog has posted a commentary by Eric Berger, an assistant professor at University of Nebraska College of Law. Berger's commentary responds to Kent Scheidegger's April 18th commentary that the Court's opinions in Baze v. Rees will allow states with protocol's similar to Kentucky's to move forward with their executions. Berger argues that because there are often discrepancies between States' written protocols and actual implementation of the protocol, cases challenging whether actual lethal injection implementation causes severe pain may still be necessary.

Kennedy and Eighth Amendment jurisprudence: Doug Berman at Sentencing Law and Policy has posted his thoughts on the oral arguments in Kennedy v. Louisiana here. Berman's post expresses his hope that the Court's Kennedy decision will "revive" the Eighth Amendment to give the current vague standard of "evolving standards of decency that mark the progress of a maturing society" clearly defined parameters.

Does the Commerce Clause Allow Congress to Regulate Interstate Moves By Sex Offenders?: Ilya Somin posted this comment at the Volokh Conspiracy on a federal court decision to strike down part of the Adam Walsh Act because the Act violated the Commerce Clause. Somin states the Adam Walsh Act does not violate the Commerce Clause as interpreted by the U.S. Supreme Court's decision in Gonzales v. Raich. Somin argues that any interstate movement by a sex offender qualifies as "economic activity" as defined by Raich because the offender is engaged in the consumption of commodities - such as gas and food - as the offender moves from one state to another. Somin believes that while this definition of "economic activity" is too broad, the Adam Walsh Act is valid under current precedent.

Ninth Circuit Allows Border Search of Laptop: Howard Bashman at How Appealing discussed the Ninth Circuit's decision that will allow the prosecution of a child pornography case to go forward. The defendant in United States v. Arnold had successfully argued to the district court that reasonable suspicion was required to search his laptop at the border. Today's Ninth Circuit opinion rejected Arnold's argument that "laptop computers are fundamentally different from traditional closed containers," and, therefore, a higher standard of "particularized suspicion" is not required to search a laptop at the border.

Posted by Lauren Altdoerffer at 02:18 PM | Permalink | Comments (0)

Commentary on Baze: SCOTUSblog has posted a commentary by our own Kent Scheidegger on what the Court's opinions in Baze will mean for the states as they look to implementing death sentences. The commentary states that in the wake of Wednesday's opinions, the delay in executions "should be nearly over."

Crackdown on Sex Offenders: Sentencing Law and Policy posted a link to Stateline.org's article titled "Lawsuits test crackdown on sex offenders." The article gives summaries of some cases challenging state punishments for sex criminals pending in state and federal courts.

More on Kennedy v. Louisiana: Dan Slater at Wall Street Journal Law Blog posted yesterday on highlights from the oral arguments.

Posted by Lauren Altdoerffer at 03:54 PM | Permalink | Comments (0)

Judicial Thought Process: Ed Whelan at Bench Memos (NRO) posted a link to his review on Judge Posner's new book How Judges Think. The review strings together a series of seven comments on Posner's book, and ultimately argues that Posner has failed to make a case for legal pragmatism over legalism. Whelan's commentary on Chapter 10 of Posner's book, "The Supreme Court Is a Political Court", is particularly interesting. There, Whelan discusses whether a Justice's personal politics do actually interfere with his judicial findings.
More Baze: Orin Kerr at the Volokh Conspiracy posted these thoughts on yesterday's decision in Baze v. Rees.
Professor Denno on Baze: Capital Defense Weekly had this post on a quote from Fordham University's Professor Deborah Denno, one of the experts who testified in the Franklin Circuit court hearings on Kentucky's death penalty protocol. Fordham University School of Law also authored an Amicus brief on behalf of Petitioners.
Washington finds Blakely error not harmless: Sentencing Law and Policy has a post on today's Washington Supreme Court decision in State v.Recuenco, on remand from Washington v. Recuenco, 548 U.S. 212 (2006). The opinion holds that while the United States Supreme Court held in Washington v. Recuenco, that a Blakely-type error could be subject to harmless error analysis, Washington law did not permit harmless error analysis under the circumstances of this case. The Washington opinion can be found here.

Posted by Lauren Altdoerffer at 11:53 AM | Permalink | Comments (0)

Social Science Journal: Psychology and Crime News posted comments on three Social Science Journal articles that addressed: homicide in the southern United States, individual perceptions and how they affect hate crime legislation, and a study on whether capital murderers (murderers who are executed) were “more likely to murder or commit other violent crimes again” if they had not been executed, compared to "other murderers or the average citizen."

Arguing for a Windfall: Orin Kerr at Volokh Conspiracy had this amusing post on the Ninth Circuit's decision to deny a criminal defendant's request for all of the money listed in his presentencing report. The defendant had been convicted for his role in an ecstasy ring, and the presentencing report stated $485,000 had been found on his dresser. The government claimed the $485,000 was a typo, and only $485 had been found on the dresser. The defendant argued the government was estopped from making this argument since he had been sentenced using the larger number.

Justice Department and Wesley Snipes: In a sentencing report released today the Justice Department argued that Wesley Snipes should be sentenced to three years in prison for failing to file income tax returns. The Blog of the LegalTimes post has more details. It's April 15th... think this request for a three year prison penalty might have been strategically planned by the Justice Department...

Posted by Lauren Altdoerffer at 03:22 PM | Permalink | Comments (0)

Judicial Confirmations: The LA Times has this editorial on confirmation of judicial nominees. Following the most recent confirmation, there are "10 pending nominations to appeals courts and 18 to district courts that should not be put on hold in hopes that a Democrat will be elected president in November."

Parent's Lawsuit: The Washington Post has this editorial on a suit against the city by the father of a 16-year-old girl allegedly killed by her mother. It seems the father wasn't too concerned about the girl while she was alive. "Paternity wasn't established until Brittany was 10; child support was spotty, and eventually all contact was lost. Mr. Penn is said not to have known how to find his daughter; apparently the idea of hiring a lawyer occurred to him only after her body was found."

Posted by CJLF Staff at 09:37 AM | Permalink | Comments (0)

Hillary Clinton has announced a crime plan. AP story here. Campaign blog post here.

I'm pleased to see that the crime issue is getting attention in the presidential race, and some of the elements in the plan are encouraging. Making prisoners work 40 hour weeks has long been needed. Unfortunately, it appears that Senator Clinton has bought into the myth that our prisons are chock full of drug "offenders" who are there merely for personal use as opposed to sale.

Conspicuously absent is any mention of the federal government's role in blocking the enforcement of Pennsylvania's death penalty and thereby denying its people the benefits of deterrence. What kinds of judges will you appoint to the Third Circuit and Pennsylvania District Courts, Sen. Clinton? Will your AG certify Pennsylvania under Chapter 154 of 28 U.S.C.? Of course, Pennsylvania's Supreme Court bears a large share of the blame, and there is nothing the feds can do about that, but the federal role is also significant. If you are going to talk about cutting the murder rate in half, you should address this issue.

Posted by Kent Scheidegger at 05:37 PM | Permalink | Comments (0)

Urban Institute Report: Thanks to Doug Berman at Sentencing Law and Policy a post on the Urban Institute's Report on treating drug offenders. The report is titled "To Treat or Not to Treat: Evidence on the Prospects of Expanding Treatment to Drug-Involved Offenders." The link to full the report can be found here.

Of course, given the Urban Institute's track record, see, e.g., here, everything they say must be taken with a heaping tablespoon of salt.

Possible Supreme Court Judge Appointments: Orin Kerr at Volokh Conspiracy also has this comment on Senator Barack Obama's recent comments on qualities he would look for in a Supreme Court Justice nominee.

Posted by Lauren Altdoerffer at 03:56 PM | Permalink | Comments (0)

Sixth Amendment Cases Podcast: The Federalist Society has this podcast of comments by Tom Gede on two Sixth Amendment cases argued last month: Rothgery v. Gillespie County and Indiana v. Edwards. CJLF's brief in Edwards is here.

Federal Sentencing at SCOTUSblog: On Tuesday, the U.S. Supreme Court will hear Irizarry v. United States, No. 06-7517, to decide whether the district court must provide notice to the parties if it is contemplating a departure from the Sentencing Guidelines when the basis for departure was not in the presentence report or the party's prehearing submission. The U.S. admits error, but argues such error is harmless.

Statistics on Federal Crime Convictions: Orin Kerr at Volokh Conspiracy has a post on the 72,000 people convicted for federal crimes in 2007. The post gives the breakdown of the defendants by race in the 95% or so cases where race was recorded.

Incarcerations Impact on Crime: Thanks to Douglas Berman at Sentencing Law and Policy for this post on a new publication from the Pew Public Safety Performance Project. The publication titled, “The Impact of Incarceration on Crime: Two National Experts Weigh In”, gives Dr. Alfred Blumstein's and Dr. James Q. Wilson's views on the degree to which increased incarceration deserves credit for the drop in crime across the nation.

Kennedy v. Louisiana: Corey Rayburg Yung at Sex Crimes reports that Sex Crimes will provide extensive coverage of next weeks arguments in Kennedy. The case that will weigh the constitutionality of the death penalty for child rape. More information can be found at Sex Crimes' Kennedy v. Louisiana Resource Page.

Posted by Lauren Altdoerffer at 03:16 PM | Permalink | Comments (0)

Ninth Circuit News: Howard Bashman at How Appealing, reports on today's Ninth Circuit decision to reject rehearing an en banc decision that immunized from a criminal defendant from prosecution for false statements made to a probation officer preparing the defendant's presentence report.

Interesting Reads: Some interesting criminal procedure and criminal law articles are being published. Legal Theory Blog has this post on a new article by Carlton Larson entitled, The Revolutionary American Jury: A Case Study of the 1778-1779 Philadelphia Treason Trials. The article can be found here.

Jack Balkin has also blogged on some books he recently received at Balkinization. Balkin's thoughts on Steve Teles's, The Rise of the Conservative Legal Movement can be found here, and Balkin's comments on Statutory Default Rules: How To Interpret Unclear Legislation, Predictocracy: Market Mechanisms for Public and Private Decision Making, and Electronic Elections: The Perils and Promises of Digital Democracy can be found here .

And finally, Douglas A. Berman at Sentencing Law and Policy has this post on a seasonal read entitled "The Little Green Book of Golf Law."

Posted by Lauren Altdoerffer at 03:15 PM | Permalink | Comments (0)

St. John Fisher college in Rochester, NY announced plans for the city's first law school.

Posted by Steven K. Erickson at 09:20 AM | Permalink | Comments (0) | TrackBacks (0)

Regular readers of this blog know of my interests about science, law, and policy. The Last Psychiatrist has two great posts (here and here) discussing the recent flap about the cholesterol drug Vytorin and the Enhance study (basics here).

Also off topic, but noteworthy: Ed Silverman at Pharmalot notes that two years after Health Canada warned about prescribing antidepressants to children, a new study reports that the number of children and teens who died by suicide increased 25 per cent after years of steady decline.

As mentioned before, there's been a lot of discussion -and spin- about the dangers associated with antidepressants use in children.

Posted by Steven K. Erickson at 06:41 AM | Permalink | Comments (0) | TrackBacks (0)

Charlton Heston died Saturday night. This story from the Associated Press describes his achievements as an actor, most notably in historical epics, and then says this:

The actor assumed the role of leader offscreen as well. He served as president of the Screen Actors Guild and chairman of the American Film Institute and marched in the civil rights movement of the 1960s.

With age, he grew more conservative and campaigned for conservative candidates. In June 1998, Heston was elected president of the NRA, for which he had posed for ads holding a rifle.

Note how the change to being considered "more conservative" is reflexively attributed to a change in the man rather than a change in the times.

Continue reading "Charlton Heston and the Meaning of "Conservative"" »

Posted by Kent Scheidegger at 11:52 AM | Permalink | Comments (0)

On the 40th anniversary of the assassination of Martin Luther King, Jr., Juan Williams has this op-ed in the Wall Street Journal on the state of Black leadership and Barack Obama. "While speaking to black people, King never condescended to offer Rev. Wright-style diatribes or conspiracy theories. He did not paint black people as victims." Can Obama do the same? "Last March in Selma, Ala., Mr. Obama appeared on the verge of breaking away from the merchants of black grievance and victimization. At a commemoration of the 1965 Selma-to-Montgomery march for voting rights, he spoke in a King-like voice."

But it wouldn't last.

Continue reading "Juan Williams on Black Leadership" »

Posted by Kent Scheidegger at 01:55 PM | Permalink | Comments (1)

Connecticut residents were horrified last summer when two lifelong criminals reportedly raped, murdered, and killed a mother and her two daughters before setting their house on fire in an effort to cover their crimes. Stories here and here. Suspect Joshua Komisarjevsky lengthy arrest and parole history is detailed here.

Now comes information that another home invasion and murder this past weekend in Connecticut likely involved a sex offender with several previous convictions whose PSI's were waived several times:

When Williams was sentenced in 1996 and 2000 for burglary and sexual assault, the judges in both cases did not seek a report examining his personal history.

Pre-sentencing investigative reports, known commonly as PSIs, are an exhaustive look into an offender's life.

Written by about 25 to 30 probation officers across the state, they can delve into an offender's drug abuse problems, school records, family history, past offenses, any mental health issues, social history and past success or failure with probation. Interviews with victims and family members are often conducted, giving a judge a fuller picture of an offender about to be sentenced.

According to a news story, the suspect said he had "no choice" but to kill the two women.

Posted by Steven K. Erickson at 07:42 AM | Permalink | Comments (1)

California Attorney General, and former Governor, Jerry Brown is hinting he may run for governor again, according to this article in the SF Chron by John Wildermuth. His speech to the Democratic convention includes this statement:

When he was governor, there were 20,000 people in state prison, Brown said. Now there are more than 170,000, and "we've got more crime than ever before."

Um, excuse me. According the Bureau of Justice Statistics, the violent crime rate in 1982, the last full year Mr. Brown was governor, was 814.7 per 100,000 population. In 2006, the last year with final numbers, it was 532.5/100k. That is not more, Mr. Brown, that is 34.6% less. The property crime figures per capita are 6,470.7 and 3,170.9, respectively. That's less than half.

Even the absolute crime numbers are down from 1982 to 2006, despite a 47% increase in population.

Of course, there are multiple factors involved in the crime drop, but saying we have more crime now than then is just factually wrong.

Here is the BJS Data Online, if you'd like to check for yourself.

Posted by Kent Scheidegger at 07:17 PM | Permalink | Comments (0)

The Los Angeles City Council debated a resolution declaring a 40-hour moratorium on murder, David Zahniser reports for the LA Times. Commenters at the Volokh Conspiracy discuss whether this was an April Fool's joke. Ultimately, the council "decided instead to use the upcoming anniversary of Dr. Martin Luther King Jr.'s assassination as an occasion for promoting peace."

Of course, if they actually wanted to lower the homicide rate, they should call on the Legislature to enact reforms to actually enforce California's death penalty. As Paul Rubin of Emory University testified to Congress a couple of years ago, "The literature [on deterrence] is easy to summarize: almost all modern studies and all the refereed studies find a significant deterrent effect of capital punishment." But then again, if you only interested in making a statement and not in actually accomplishing anything, the research is irrelevant.

Posted by Kent Scheidegger at 04:07 PM | Permalink | Comments (1)

More on Medellin: An editorial in today's Washington Post reports its agreement with the Court's decision last week in Medellin v. Texas.

In addition, the Supreme Court denied certiorari in seven Texas capital cases it had been sitting on while it decided Medellin. Michael Graczyk has this story for AP.

Posted by CJLF Staff at 01:20 PM | Permalink | Comments (0)

In conjunction with James Q. Wilson's op-ed about the recent Pew report on incarceration and crime rates, Bill Stuntz states about a week ago:

One of the key lessons of the Iraq surge is that putting more boots on violent ground tends to reduce the violence. The same lesson applies in American cities, but for the most part, the lesson hasn’t been learned. For reasons that mystify me, the same state and federal governments that shower money on urban school systems give nearly nothing to urban police forces. That gets it backward: the correlation between more money and better schools is weak at best; the correlation between more cops and less crime is very strong.

Continue reading "More Cops, Less Crime? " »

Posted by Steven K. Erickson at 05:14 AM | Permalink | Comments (1) | TrackBacks (0)

The MacArthur Law and Neuroscience Project is seeking postdocs in the area of neurolaw:

POSTDOCTORAL RESEARCH POSITION
MACARTHUR LAW AND NEUROSCIENCE PROJECT
Area of Research: Law and Neuroscience

Continue reading "Neurolaw Postdoc Opportunity " »

Posted by Steven K. Erickson at 08:01 PM | Permalink | Comments (0)

Activities which are legal when freely given but criminal when purchased have been much in the news in last couple of days. Another of these is voting. In 2000, there was a scheme set up where people who really wanted to vote for Ralph Nader but lived in a state where it might matter could swap their votes with Gore voters in essentially uncontested states. Bill Jones, who was then California Secretary of State, threatened criminal prosecution. In August, a Ninth Circuit panel held that Jones had violated the First Amendment rights of the swappers and their broker. Today, the court denied rehearing en banc, Judges Kleinfeld, O'Scannlain, and Bea dissenting.

Posted by Kent Scheidegger at 10:54 AM | Permalink | Comments (0)

It has been quite a while since crime and law enforcement were considered issues important enough to merit the attention of Presidential candidates. Even illegal drug use, which remains a serious national problem, has not been the subject of a question to candidates in the almost weekly debates during this political season. Terrorism, national security, the economy, immigration, health care, and education are the issues the candidates believe they must take positions on, but crime, other than how it relates to illegal immigration or terrorism, does not seem to be on anyone’s mind, other than the public’s.

Continue reading "Law Enforcement and the Next President " »

Posted by Michael Rushford at 12:43 PM | Permalink | Comments (0)

Bill Stuntz over at Less Than the Least has an intriguing post about the relationship between culture, law, and punishment. He makes a number of good and interesting points about how culture shapes the law. He judiciously states:

A good deal of social science research suggests that people obey the law, when they do so, because the legal system seems fair and legitimate.

This is indeed true, but the implications are quite far-reaching and often at odds with the orthodoxy of what is considered the proper aim of crime, punishment, and responsibility.

The law in many respects is an emotional process. For all of the stoic statutes and dry regulations, how people relate to the law is governed mostly by their perceptions of justice and fairness. For the criminal code, legitimacy is strongest when the law is proportional to the behavior regulated. If we think about it, the common perception is that the criminal law is about regulating and punishing serious matters of the morally accepted code that we all share in common. Thus, the malice in se crimes such as murder and forcible rape are universally viewed as morally repugnant and deserving of the strongest punishments the law can dish out while crimes without malice suggest less punishment.

Continue reading "The Humanity and Culture of Crime and Punishment " »

Posted by Steven K. Erickson at 05:40 AM | Permalink | Comments (0) | TrackBacks (0)

An article in today's San Francisco Chronicle addresses San Francisco's inability to collect fines, victim's restitution and court-imposed fees from convicted criminals. The article can be found here.

In his article, Jaxon Van Derbeken points out that only recently has California forced San Francisco to attempt to collect the fees that convicts owe. California recently forced San Francisco courts to act, because the Probation Department (which had its hands full monitoring 7,500 felony and misdemeanor offenders) had failed to establish a system of collecting the $9.6 million in unpaid victim's restitution fees and fines from criminals who had been ordered by courts to pay.

The article notes that "court culture" largely determines the importance placed on collecting victims' restitution. In the counties where judges place value in not forcing victims to pay more for the crimes committed against them (by shouldering the burden of hospital expenses, lost salaries, and other crime related costs), there has not been a problem implementing a system that retrieves court ordered fees. However, in San Francisco, where those who do not pay their fines are offered an opportunity to work off the fee through community service, and then never monitored to see if those criminals have completed their court ordered community service, have amassed $3.3 million in victim's expenses, and collected "just $2,278 in court-ordered restitution and $111,635 in restitution-related fines."

Here's hoping San Francisco's system starts placing higher priority on the restitution rights of the victims.

Posted by Lauren Altdoerffer at 09:58 AM | Permalink | Comments (0)

The Southern Appeal blog has been granted rehearing, though not en banc. Welcome back. (Hat tip: Orin Kerr at VC.)

Posted by Kent Scheidegger at 09:05 AM | Permalink | Comments (0)

The Supreme Court will hear argument on Tuesday, March 18, in Heller v. District of Columbia to review a lower court holding announcing that the DC law banning firearms was unconstitutional. In this article from the Wall Street Journal, Harvard Law Professor Laurence Tribe urges judicial restraint.

Posted by CJLF Staff at 01:16 PM | Permalink | Comments (0)

Criminal law and procedure buffs may want to check out the new blog, Less Than The Least, authored by the Profs. Bill Stuntz (Harvard) and David Skeel (Penn).

What makes Less Than The Least so intriguing comes from it's description:

We are both law professors and evangelical Protestants – a weird combination in our time. We hope it’s also an interesting combination. We plan to write about the things that interest us, professionally and personally: crime and criminal justice (Stuntz), corporate governance, credit, and bankruptcy (Skeel), the culture wars, politics, literature and the arts, and other topics.

Bill Stuntz was my major paper adviser during my graduate work at Harvard Law School. He is also one of the most refreshing and thoughtful scholars in the Legal Academy. I'm less familiar with Skeel, but I'm sure his work is excellent as well.

As mentioned previously, I think religion has much to offer our criminal justice system. I look forward to reading Stuntz & Skeel.

Posted by Steven K. Erickson at 12:20 AM | Permalink | Comments (0) | TrackBacks (0)

In this Washington Post column last Sunday, David Broder suggested that crime and law enforcement may emerge as a political issue this year. He cites a recent poll conducted for liberal think tank Third Way, showing that 69% of the sample thought that violent crime was a more serious threat than a terrorist attack, chosen by only 19%. The sample, with a respectable 1,139 respondents, offered a fairly broad cross section. Among those willing to declare their political preference, 44% of the respondents were Democrats and 35% were Republicans.

Posted by CJLF Staff at 02:20 PM | Permalink | Comments (0)

From AP in Cincinnati:

A federal court jury on Friday found the owner of a company that sells "male enhancement" tablets and other herbal supplements guilty of conspiracy to commit mail fraud, bank fraud and money laundering.

Steve Warshak, whose conviction was reported Friday by The Cincinnati Enquirer, is founder and president of Berkeley Premium Nutraceuticals, which distributes Enzyte....

I wonder if he will get a sentence enhancement?

Posted by Kent Scheidegger at 08:19 PM | Permalink | Comments (0)

Looks like an interesting event at Columbia Law School:

The Health, Law and Society Program of the Columbia Law School is pleased to announce a one day conference on Violence on Campus: Prediction, Prevention and Response to be held on Friday, April 4, 2008 at the Law School. The conference, which will feature academic experts from law and the social sciences, policy makers and practitioners, is intended to bring together professionals and academics to share knowledge and information, and to stimulate research and innovative policy development in this area. We expect that attendees will include university attorneys and administrators; counseling center directors and staff; off-campus clinicians who work with students; academics in mental health, law, and policy; students; and the media.

Some interesting speakers as well.

Posted by Steven K. Erickson at 09:32 AM | Permalink | Comments (0)

Ed Silverman at Pharmalot has this post on the emerging (albeit very preliminary) evidence that gunman Stephen Kazmierczak had stopped taking his psychiatric medication before the killings at Northern Illinois University. As ABC news reports, there's evidence that Kazmierczak had a history of mental illness, which seems to have included depression, violence, and self mutilating behaviors.

The comment thread of the Pharmalot post is particularly revealing in its predictability of responses from those who blame antidepressants for violent behavior among those with mental illness. Those critics, however, want it both ways: to blame antidepressants for violent behavior if someone takes them and to blame them as well if someone stops taking them and becomes violent due to the amorphous discontinuation syndrome purportedly associated with some of these medicines. But as mentioned previously, antidepressants have become a popular target by those who wish imbue the pharmaceutical industry with evil for their supposed malfeasance and deception rather than focusing on the simple fact that sometimes people engage in very violent conduct which itself imbues evil- and this seems to occur more often among those with mental illnesses.

This should hardly be surprising. For all rhetoric we've been told that those with mental illnesses are no more likely to become violent than anyone else, intuition dictates that when an illness robes people of their rationality - as it often does with mental illness - bad outcomes are to follow. It is true that most people with mental illnesses are not violent; but we're not taking about most people when we're discussing incidents like Kazmierczak or Kendra Webdale. Rather, what comes into focus when we examine cases like these is the inconvenient truth that untreated mental illnesses can be harbingers for tragedies from the personal to the infamously public.

Posted by Steven K. Erickson at 09:34 AM | Permalink | Comments (1) | TrackBacks (0)

Chip Johnson has this commentary in the SF Chronicle on city government priorities in Oakland, California:

On the heels of the city's eighth homicide in four days, [City Administrator Deborah] Edgerly's office announced that the city, in response to complaints from local florists, would enforce a zero-tolerance policy on illegal street vendors on Valentine's Day.

Police officers and city employees would be assigned to foot patrols and issue citations to any street vendor without a permit, she said. Some police officers shook their heads, while others just laughed. Leaders in the business community were speechless.

As for me, I'm surprised that the city would approve such a bold plan to take back the streets.

Posted by CJLF Staff at 06:58 PM | Permalink | Comments (0)

The "top side" amicus briefs have been filed in Indiana v. Edwards, No. 07-208. The briefs to date and other pertinent documents are available here. Along with the expected amici of CJLF, other states, and the federal government, we have some unusual players.

The case involves a defendant of marginal mental competence who moved under Faretta v. California, 422 U.S. 806 (1975), to reject counsel and represent himself. When the Court first granted certiorari, it occurred to me that this was one of those unusual cases where many defense lawyers might disagree with the position of the defendant in this case.

Continue reading "Strange Bedfellows Call for Limiting Faretta" »

Posted by Kent Scheidegger at 12:14 PM | Permalink | Comments (0)

Bob Egelko has this story in the SF Chron. "Crime is seldom a prominent issue in presidential primaries, largely because the front-runners in each party typically take similar positions. But the subject can explode on Democrats in a November election."

Egelko notes that the positions of Clinton and Obama on the death penalty were once sharply different but have since converged. I'm inclined to think this is the result of changing political calculations rather than actual change in personal beliefs. As Obama moved from one state senate district to a statewide race for U.S. Senate, his previous forthright opposition wasn't going to fly. Clinton may not see the need to maintain emphatic support as the issue moves down on people's priority lists and as she moves to a race where other issues have relatively higher prominence.

The biggest impact a president has on state criminal cases is in who he or she appoints to the federal courts, and there "the difference between the parties is huge," the story quotes yours truly at the end.

Posted by Kent Scheidegger at 07:39 PM | Permalink | Comments (0)

As mentioned previously, the recent National Institute of Mental Health's CATIE study suggested a link between schizophrenia and violence. That conclusion generated a lot of controversy from folks who assert that there is no link between mental illness and violence, touting the frequent mantra that those with mental illness are no more likely to become violent than the general population. Indeed, we should be careful not to needlessly contribute to the enduring stigma that burdens those with mental illness. Nonetheless, we shouldn't ignore the link between mental illness and crime simply because it makes some people uncomfortable or is at odds with the vested rhetoric of political correctness. Several recent studies in the journal Psychiatric Services shed some new light on the subject and are worth a few comments.

Continue reading "The Ubiquity of Substance Abuse in the Calculus of Crime and Mental Illness" »

Posted by Steven K. Erickson at 05:07 PM | Permalink | Comments (0) | TrackBacks (0)

First the good news. When California's Legislature convenes for its next session after the November election, the criminal-friendly persons presently running both houses won't be running them. The voters of California have once again shown that they have much better judgment when they vote directly on issues than they do in electing legislators. With 88% of precincts reporting (as of 5:09 am), Proposition 93 is losing 53.3-46.7.  That measure would have watered down the term limits and allowed present Senate President Pro Tem Don Perata and Assembly Speaker Fabian Nunez to stay on for years.

Now the bad news.

Continue reading "Ding Dong, the Witch Has a Short Life Expectancy" »

Posted by Kent Scheidegger at 05:41 AM | Permalink | Comments (2)

Here is an interesting blog dedicated to news about pardons. The blogger is P. S. Ruckman, Jr., Associate Professor of Political Science at Rock Valley College, Illinois.

Posted by CJLF Staff at 10:38 AM | Permalink | Comments (0)

The History channel has been running an excellent series on the development of gangs in the United States. Gangland is an intriguing and revealing look at the realities of gangs. Highly recommended.

Posted by Steven K. Erickson at 08:48 AM | Permalink | Comments (0)

In New York, James O'Hare wanted to cash the Social Security check of his roommate, Virgilio Cintron. He had a small problem, though, as Mr. Cintron had died sometime within the preceding 24 hours. Undeterred, Mr. O'Hare and his buddy David Dalaia proceeded to the Pay-O-Matic check-cashing joint with Mr. Cintron in tow, seated in an office chair. Off-duty detective Travis Rapp, eating lunch at a nearby restaurant, thought this looked a tad suspicious and called in the uniforms, report Bruce Lambert and Christine Hauser in the NYT.

In related news, the Supreme Court heard oral argument today in the Indiana voter ID cases, Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25, transcript here. These cases concern an Indiana law that voters show a photo ID at the polling place. This requirement has a disparate impact on deceased voters. Unlike Mr. O'Hare, persons voting on behalf of the deceased rarely bring the dear departed to the polls with them. Even if they did, after a week or two persons of decomp. do not look much like the pictures on their IDs. Norman Bates would have had a hard time with his mother and her driver's license.

Continue reading "Deceased Check-Cashing and Voting" »

Posted by Kent Scheidegger at 11:06 AM | Permalink | Comments (0)

The blog will be offline briefly Thursday morning for hardware upgrades.

Posted by CJLF Staff at 09:42 AM | Permalink | Comments (0)