June 2008 Archives

Supreme Court Criminal Law Docket in 2007-2008: Kristina Moore at SCOTUSblog posted a summary of the criminal cases decided by the U.S. Supreme Court this term. Moore reports that of the 24 cases involving criminal law, 12 involved sentencing guidelines or felony definitions, and seven cases addressed strictly procedural issues. Some interesting facts from Moore's post: (1) Of the 24 criminal cases, Justice Kennedy cast 12 votes in favor of the defendant, and 12 votes in favor of the prosecution; (2) Justice Stevens actually voted more for the prosecution this term - he only voted for the defendant in 54% of the decisions, whereas last term he voted for the defendant 76.5% of the time; and (3) Chief Justice Roberts' support for the defendant actually increased in OT07. The Chief Justice voted for the defendant in 38% of the cases, an increase from his 18% support of the defendant in OT06.

The Definition of "Judicial Activism": Over at Bench Memos (NRO) Gerard Bradley has a post pondering the exact meaning of judicial activism. While Bradley struggles with how to give the term "an intelligible and independent meaning", Bradley does believe that the definition of judicial activism is related to the sources of judicial reasoning. He submits that an activist is "at work" if the grounds for a decision are not "fairly inferable from the constitutional text, structure, or history of its authoritative interpretation." Bradley's post references Ed Whalen's earlier post defending the term judicial activism. Whalen believes the term "judicial activism" "identifies one category of judicial error in interpreting the Constitution: the wrongful overriding of democratic enactments (often through the invention of supposed constitutional rights)." "Judicial activism" is distinguishable from what Whalen calls "judicial passivism -- the wrongful failure to enforce constitutional rights."

Federalism and Danforth v. Minnesota: Ilya Somin has a post plugging the publication of his article in Northwestern University Law Review Colloquy. The article, now available at SSRN, discusses the tension between state courts that seek to provide greater protection than provided by the Supreme Court's interpretation of the federal Constitution. The Danforth decision held state courts could provide victims of constitutional rights violations broader remedies, and Somin's article discusses and provides "doctrinal justification" for the decision.

Cass Sunstein and Justin Wolfers have this op-ed in the Washington Post today, claiming that the Supreme Court has "misread" the evidence on deterrence. Professor Sunstein gives himself too much credit and gives Justice Scalia too little.

Death Penalty Opponents Vow More Lawsuits in Wake of Baze: While the Baze decision provides a fairly clear affirmation of the procedures used by Kentucky and 34 other states, Deborah Hastings of the Associated Press argues that death penalty opponents will initiate a string of lawsuits to differentiate their state's method of lethal injection from that approved by the Court.

Relationship Between Gun Laws and Crime Rates Unclear, At Best: Adam Liptak examines the debate over the efficacy of gun laws for the New York Times. While research findings have shown mixed results, an important point is that criminals are of course the least likely to obey gun laws.

FL Prepares to Test New Lethal Injection Protocol: Following an outcry after a botched execution in December 2006, Florida has instituted an additional step to its lethal injection procedure. According to Ron Ward's story for the Associated Press, the new procedure will require an official to verify that the inmate is unconscious prior to the injection of the second chemical. Mark Dean Schwab is scheduled to be executed on Tuesday, exactly 16 years after he was sentenced to death for the kidnapping, rape, and murder of an 11-year-old boy.

The California Commission on the Fair Administration of Justice plans to release its report on the death penalty today. The press release is here. The circumstances of this commission's creation and its actions to date do not bode well for anyone hoping for a fair, balanced report.

The commission was created by former California Senate leader John Burton, a dyed-in-the-wool opponent of the death penalty. Normally, commissions are set up by legislation through the standard process of bicameral approval plus governor's signature. Burton set up his commission by a unilateral resolution of the Senate alone, Senate Resolution 44 of 2004. This unique mode of creation enabled him to keep the appointments entirely in the hands of the Senate Rules Committee, which is firmly under the control of the left wing-tip of the Democratic Party.

The commission promptly retained as its executive director Dean Gerald Uelmen of Santa Clara U. Law, a well-known partisan for the anti-death-penalty side of the debate. If they had intentionally wanted to undermine their credibility as a fair review, they could scarcely have made a better choice.

The commission has funded various people to do research on the administration of the death penalty in California. All but one of the contracts went to anti-death-penalty academics. The one exception was a feasibility study on costs by Rand Corporation, and that study produced no firm conclusions.

Update: The report is now online here. I have extracted the dissent and posted it here. Here is the first paragraph:

We respectfully dissent from the Report and Recommendations on the Administration of the Death Penalty in California, which was issued today by the California Commission on the Fair Administration of Justice. Regrettably, we believe the majority report indirectly assaults California’s death penalty by seeking to undermine public confidence in our capital punishment law and procedure. While the majority refrains from making specific recommendations to weaken this voter approved law, the tone and unbalanced discussion of potential reform is anything but neutral. By doing so, the majority exceeds the scope of its original charge and unfortunately, diminishes the value of other worthwhile recommendations.

The Federalist Society has this online debate on the death penalty. "In light of the important death penalty questions considered [by the Supreme Court] this term, a panel of experts-- Former Chief of the Appellate Division in the U.S. Attorney's Office, Eastern District of Virginia Bill Otis, the Northern California ACLU's Director of Death Penalty Policy, Natasha Minsker, the Legal Director & General Counsel, Criminal Justice Legal Foundation, Kent Scheidegger, and University of Houston Law professor David Dow --discuss the legal and moral implications of capital punishment."

The Second Circuit doesn't decide a lot of death penalty cases. Vermont has decided not to have the death penalty through the democratic process. New York's was nullified by Their Imperial Highnesses at the NY Court of Appeals. Connecticut cases don't make it out of the state courts, except for one volunteer.

Today, however, USCA2 decided the case of Donald Fell. "Fell and an accomplice kidnapped Terry King, 53, from a [Vermont] supermarket, took her to New York state, and beat and kicked her to death in November 2000. Fell and his accomplice had earlier killed his mother and her companion." Sweet guy. Murder is generally a state-law matter, but kidnapping across state lines is a federal offense. See 18 USC §1201(a)(1). The conviction and sentence were affirmed, reports Larry Neumeister of AP. Decision here.

SF Widow Pleads for Death Penalty: A week ago, Danielle Bologna of San Francisco was living with her husband and four children. Then suddenly half her family was gone, reports Jaxon Van Derbeken in the SF Chron. They were killed in a particularly brutal and senseless crime by a member of one of the most notoriously violent gangs in America, MS-13. And what did Tony Bologna do to get himself and his two sons killed? It was nothing but a brief problem of two cars trying to get through one of San Francisco's narrow streets, something that happens all the time. Tony backed up to let the other car through, but the thug opened fire anyway. Danielle Bologna's plea to seek the death penalty in this case will probably go unheeded. District Attorney Kamala Harris has not sought the death penalty once since taking office. And the murder rate in San Francisco relative to the rest of the state has risen steadily.

High Gas Prices Inspire Creative Thievery: As gas prices are on the rise, dishonest people will find a way to profit from it. In a new trend of bizarre thefts, criminals are stealing thousands of dollars worth of fuel from stores, farms, and individuals alike. According to the Skip and Campo-Flores article for Newsweek, we don't just have to lock our front doors any more; now, we have to lock our gas tanks.

You know something unusual is up when the three-judge panel of a U.S. Court of Appeals decides that a case is so mundane that it is not worth a published opinion, but the U.S. Supreme Court considers the case "certworthy," i.e., one of the very few cases that it takes for full review. That's what happened today in Knowles v. Mirzayance, No. 07-1315. In terms of the precedential value of a case, the hurdle for publication should be a fraction of the hurdle for certiorari.

The Ninth decided, 2-1, that Mirzayance's lawyer was ineffective in dropping the insanity gambit. After the Supreme Court sent it back for another look in light of Ninth's spanking in Carey v. Musladin, 549 U.S. 70 (2006) (unanimous in the judgment), a divided panel decided that Musladin didn't matter. That's waving a red flag. District Judge Suko, the third member of the panel sitting by designation, thought the other two showed insufficient deference to both the district judge's factual findings and the state court's decision under AEDPA.

The fact that this case was relisted twice is a little curious. (That is, the Supreme Court scheduled it for consideration at a conference, took no action, and scheduled it again for a later conference. Twice.) I suspect they were pondering whether to summarily reverse or whether to take the case for full briefing and argument.

Is it possible a majority of the current Court recognizes that ineffective assistance claims have gotten out of hand since Wiggins v. Smith, 539 U. S. 510 (2003) and Rompilla v. Beard, 545 U. S. 374 (2005)? I hope so.

Questions presented are after the jump.

The purported rise of brain scanning technologies in criminal cases has paralleled the growth of neurolaw within legal scholarship. But as with many new interfaces with law, the tendency to overplay the implications such technologies have regarding entrenched legal norms often ignores the mutable nature of our scientific understandings.

Vaughan Bell over at Mind Hacks has a great new post up titled The fMRI Smackdown Cometh which highlights the growing skepticism regarding many of the brain scanning claims made of late:

Over the last few months, the soul searching over the shortcomings of fMRI brain scanning has escaped the backrooms of imaging labs and has hit the mainstream.

Numerous articles in hard hitting publications have questioned some common assumptions behind the technology, suggesting a backlash against the bright lights of brain scanning is in full swing...

It starts with this simple question: what is fMRI measuring?

When we talk about imaging experiments, we usually say it measures 'brain activity', but you may be surprised to know that no-one's really sure what this actually means.

Bell provides a compelling litany of scholarly articles which highlight how much we do not know when it comes to the operations of the mind and the very real limitations of brain scans.

When reading Supreme Court opinions, I like to keep track of "nuggets," particularly nice statements of basic principles that may be useful in other contexts. The Heller opinion has a number of nuggets on the interpretation of enactments, applicable both to statutes and the Constitution.