Clone of Crime and Consequences Blog

Call For Philip Morris

2008-12-03T17:13:41Z

The U. S. Supreme Court heard oral argument today in Philip Morris v. Williams. This is the third time this case has been to the high court. Lyle Denniston has this argument preview at SCOTUSblog. Debra Cassens Weiss has this story at ABA Journal Law News Now. CJLF's brief supporting neither party is here. Our interest in the case is in asking the Court to clean up its jurisprudence on the question of what is an "adequate" state ground for refusing to consider a federal question. The confusion in this area allows state prisoners to smuggle questions into federal habeas that they failed to raise in their state court appeals.

Mark Sherman of AP has this brief postargument story, and Lyle has this post suggesting that the Court might reconsider its earlier decision not to take up the underlying question of the merits of the case. Of course, before they could get to the merits, they would have to resolve the state-grounds procedural question. On direct review of a state-court decision in the Supreme Court, unlike habeas, an adequate and independent state ground of decision is a jurisdictional bar. They can't just make an exception.

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Maintenance

2008-12-03T02:15:13Z

CJLF's main web site is back up and we are receiving email. Thanks for your patience.

The blog commenting system is still buggy.

The Senate

2008-12-03T02:08:39Z

Jim Galloway, live-blogging the Georgia Senate runoff for the Atlanta Journal-Constitution, reports, "The Associated Press has just declared Republican incumbent Saxby Chambliss the victor in the U.S. Senate race in Georgia. The Democrats have fallen short of their 60-seat majority."

We can breathe a little easier. The Republicans may be able to block drastic pro-criminal legislation, such as repeal of AEDPA.

Emotions and Capital Punishment

2008-12-02T21:27:42Z

Back in June, Doug Berman and Stephanos Bibas published their final version of "Engaging Capital Emotions" in Northwestern University Law Review Colloquy. I found the article while I was cleaning out my desk today, and a re-read (and Kent's post yesterday) inspired me to blog about it.

The article expresses Berman and Bibas' views on the role emotions play in death penalty litigation while focusing particularly on cases of child rape. Their theory is that human emotion drives many of our criminal law practices, and is particularly relevant in the area of capital punishment.

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What appears to be missing from Berman and Bibas' article is any strong argument that capital punishment is, at its core, meant to be a punishment. And, punishment, the idea of amending a wrong, is precisely why emotion plays such a large part in our criminal justice system. If the emotions of victim suffering and unjust harm did not play into our process, then there would be little justification of sentencing the condemned to death.

For example, if the death penalty were meant to teach the condemned that his action was socially unacceptable, then there are better methods to teach than through the finality of death. As Berman and Bibas point out, death "cannot communicate to the uncomprehending criminal the emotional outrage and wrongness of his deed." If instruction on society's values were the ultimate goal, punishment would offer the convicted a chance to show he had learned from his punishment - the punishment would not take his life without an opportunity to show his reform.

But this is precisely what we have chosen to do. Through punishment we reinforce society's values and instruct others on what will and will not be tolerated, and, at the same time we fulfill our own need to avenge crimes we find morally reprehensible. It is not that society believes that we cannot find redeeming qualities in the condemned, it is that we fear that if his actions are not punished we will become his victim later on. While this is purely selfish justification for imposing capital punishment, it is a justification that cannot be easily ignored. While we would all like to believe we are not violent individuals, we also know that given the worst of circumstances, passivity may not be an option. As Berman and Bibas write: "Punishment channels retributive anger, limiting it to proportional payback and tempering it with neutral adjudicators and punishers. If one squelches the impulse rather than channeling it, people may take the law into their own hands." Remember John Grisham's book A Time to Kill.

This is why Berman and Bibas were correct to recognize a strong emotional case for capital punishment in child rape cases. In cases of child rape, not only is the victim robbed of innocence and a concept of safety, but, the harm must be endured by the child and those responsible for the child for the rest of the victim's life. The death penalty could fill the emotional void by letting the victim know he "need never fear that [his] accuser[] will repeat or keep exploiting [his] trauma."

It is human nature to fear and it is human nature to seek to alleviate the fear by eliminating the threat. We do not execute to teach, we execute to punish. It is through punishment that we hope to eliminate threats to our safety. It is not wrong to let emotions guide our choices in punishment - especially when our criminal justice system makes many allowances for the defendant during trial and allows the defense to play on the sympathies of the jury during sentencing.

Pulido: Do It Over

2008-12-02T16:54:32Z

As predicted here and here, Hedgpeth v. Pulido was decided quickly and per curiam by the U. S. Supreme Court. The Court was unanimous that the Ninth Circuit's determination that the jury instruction in this case was "structural error" was erroneous. The majority decided that the case needed to go back to the Ninth for application of the correct harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The dissent (Stevens, Souter, Ginsburg) would affirm on the ground that the lower courts had effectively determined that Pulido should get habeas relief under the Brecht standard, and there is no need to drag this particular case out for one more round of review.

The AP story on the case is here: "The Supreme Court took aim at one of its favorite targets Tuesday, criticizing a California-based federal appeals court for its ruling in favor of a criminal defendant."

Crime and Psychosis

2008-12-02T14:04:27Z

While today's news focuses on the current Archives of General Psychiatry article reporting 1 in 5 college aged students has a personality disorder, another article just released in the American Journal of Psychiatry deserves as much attention - probably more.

The article by Jacques Baillargeon and colleagues titled Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door examines the link between mental illness and risk of multiple incarcerations. Of note, the authors narrowly construe their definition of mental illness to include only four categories: major depression, bipolar disorder, schizophrenia, and non-schizophrenic psychotic disorder. Thus, they wisely excluded substance abuse disorders in their calculations which have greatly inflated the results of similar previous studies. The study included 79,211 inmates who began servinga sentence between September 1, 2006, and August 31, 2007.

The tables and graphs tell the story. Contrary to the prevailing wisdom of many advocacy groups, the study adds the emerging yet growing body of literature which suggests severe mental illnesses do indeed seem to be associated with crime and violence.

Emotionality and Penalty

2008-12-02T00:17:59Z

Lauren's Blog Scan today notes the discussion over victim impact videos and all the whining on the defense side that these are somehow "unfair." The rejoinder in the WaPo story is:

Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.
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"I can see why these videos drive defense lawyers crazy because they actually balance things out," [Orange Co. DDA Matt] Murphy said.

That balance is the key point.
]]> Lockett v.Ohio, 438 U.S. 586. In one of the most high-handed decisions in modern history, the Court stripped the people of the states of the authority to decide what will be considered mitigating. Then in Booth v. Maryland, 482 U.S. 496 (1987), the Court further stripped the people of the ability to balance the scales. For four years, we had the intolerable situation of the defense being able to humanize the defendant and heap emotional appeals on his side of the scale, while the family of the victim had to just sit in the audience and say nothing.

In Payne v. Tennessee, 510 U.S. 808 (1991), the Court saw the error of its ways, with a little help from CJLF, et al. Victim impact evidence was once again admissible, and some semblance of balance was restored.

For those who think the videos are unfair and call for their elimination, I say fine. Let's get rid of the emotional presentations on both sides. Overrule Lockett and make the penalty determination depend on the circumstances of the crime, the defendant's criminal record or lack of one, and nothing else.

Justice Speculation

2008-12-02T00:06:08Z

With the party committed to identity politics headed back the White House, there is naturally much discussion of the ethnicity of the next Supreme Court nominee. Tony Mauro has this article in the Legal Times on the pressure on the President-Elect to name a Hispanic Justice. Among the possibilities listed is California Supreme Court Justice Carlos Moreno. I'll hoist a cerveza to that.

Blog Scan

2008-12-01T22:50:11Z

Over At The Supreme Court: At SCOTUSblog today, Lyle Denniston has posted his thoughts on the "State of the Docket" as of December 1, 2008. He predicts that the Court will grant review to approximately 11 new cases this term, and five new cases will be announced after Court conferences on December 5th and 12th. Most of his post discusses the scheduling of oral arguments, but, at the end, Denniston does note that the Court is unlikely to issue grants in cases that will produce "blockbuster rulings." He states that this term "there are not many cases of significant broader public interest." He believes that could change if the Court agrees to hear NAMUDNO v. Mukasey or Al-Marri v. United States. Tom Goldstein also provides a link to his merits reply breif in Cone v. Bell in his SCOTUSblog post today. Our Amicus breif in support of Respondent, Bell, can be found here.

Amendments to Federal Rules of Criminal Procedure: Thanks to Orin Kerr at Volokh Conspiracy for this little reminder that the latest round of amendments to the Federal Rules of Criminal Procedure go into effect today. The amendments can be found here, and an excerpt explaining the amendments is here.

A Response to a Claim That This is the "Most Conservative Court Since the Mid-1930s": Also at Volokh Conspiracy, Jonathan Adler has posted his thoughts on Dean Erwin Chemerinsky's essay "The Roberts Court at Age Three." Apparently, Chemerinsky believes the Roberts Court to be the most conservative court since the mid-1930s. Adler disagrees with this position, and offers up his response: "Getting the Roberts Court Right: A Response to Chemerinsky," as well as the argument that the "Roberts Court is moderately more conservative than some of its recent predecessors on some issues, but it remains quite 'liberal' on others. Particularly because Justice Kennedy is the swing vote on so-many ideologically charged cases..."

Blogging on Victim-Impact Videos: At Sentencing Law and Policy, Doug Berman, a self-proclaimed "strong believer in victims' rights at sentencing," has a post discussing Saturday's Washington Post article by Jerry Markon. The article discusses the use of victim videos during sentencing, and reports that the Supreme Court has recently declined to hear challenges to the use of two such videos. This could mean that we will see an increase in the use of such "technology-aided victim impact statements" during trial and sentencing. To counter his own bias, Berman offers a link to a defense view of victim videos from ChrisT at Talk Left.

SCOTUS This Week

2008-12-01T18:30:11Z

Monday: Very little of interest to criminal law practitioners is happening today. The orders list contained no new grants of certiorari. That is normal when the grants are announced on conference day, as they were last week. Several crim. pro. cases involving cars were denied, as described by Lyle Denniston at SCOTUSblog. Oral arguments are a couple of real snoozers. Kansas and Colorado sally forth into the second century of their battle over the Arkansas River. Shades of Bleak House. The other case involves arbitration and labor contracts.

Tuesday: Opinions are possible. I'm expecting Hedgpeth v. Pulido to be among the early opinions this term. Arguments are two civil cases of no particular interest.

Wednesday: The arguments are two civil cases. However, they involve federalism issues that touch on criminal law.

Philip Morris USA v. Williams involves the question of when an independent state procedural ground of decision is "adequate" to block consideration of a federal question. This issue comes up very often in habeas cases. The Supreme Court's jurisprudence on this topic is a mess. The unwritten rule in the Ninth Circuit is that all California grounds are per se inadequate. CJLF filed this brief supporting neither party, asking the Court to clean up this "untidy area of our law."

Haywood v. Drown is a prison litigation case asking whether the state legislature can kick 42 USC § 1983 actions out of state courts.

News Scan

2008-12-01T18:24:21Z

Governor Calls for Mexican Death Penalty: Coahuila state Governor Humberto Moreira is asking the legislature to adopt a recommendation that Mexico's Congress restore the death penalty for kidnappers who murder their victims. An Associated Press story reports that a 2/3 majority of the Congress would be required to undo the 2005 Constitutional amendment that abolished capital punishment.

Fired Public Defender Sues: A former Santa Clara County Deputy Public Defender, fired five years ago for refusing to answer questions during a disciplinary hearing, will have his claim that his rights were violated heard by the California Supreme Court tomorrow. A story in the San Jose Mercury News by Howard Mintz reports that Thomas Spielbauer "invoked his Fifth Amendment rights" when his bosses began to investigate allegations that he lied to a judge while representing a criminal defendant.

DNA Links Accused Rapist to Anchorwoman's Murder: An affidavit filed today indicates that police identified the man charged with with October 20 beating death of Little Rock news anchor Anne Pressly with a DNA match. The Associated Press reports that while the police believe that Pressly was killed when she intrupted a robbery, her parents believe that she may have been sexually assaulted. Murder suspect Curtis Lavelle Vance is also accused of raping a school teacher last April and of committing several burglaries in eastern Arkansas. Early reports suggest that the victim died from a massive stroke caused by blunt force trauma. Every bone in her face had been broken and her hand was broken in the attack.

More Police, Less Crime

2008-12-01T16:18:29Z

At a time when many municipalities are cutting services, comes this notable story by Gabriel Kahn from the Wall Street Journal:

"Shrinking budgets are forcing such cities as Phoenix, Portland, Ore., and San Diego to make deep cuts, including to police. But Los Angeles Police Chief William Bratton has grown his department with a persuasive argument about the financial costs of crime.

The city is adding 1,000 police officers, pushing its force levels in the Los Angeles Police Department to above 10,000 for the first time. Even as the city faces a more than $400 million shortfall for this fiscal year and next, the police budget -- the city's most costly department -- is emerging largely unscathed."

The article also notes the significant decline in crime in L.A. during the past six years which coincides with a sizable increase in the number of police officers. While crime is surely a multifaceted problem, perhaps one of the answers is straightforward: more police results in less crime. As Harvard law professor Bill Stuntz discusses, putting more "boots on the ground" likely is part of the answer to reducing crime in neighborhoods which are often seriously underpoliced. The LA statistics seem to support this assertion.

Interesting, Police Chief Bratton also argues that more police results in a fiscal savings for the city:

"Mr. Bratton said he thinks of Los Angeles's crime reduction as money in the bank. "The cost of a homicide to the city is $1 million," he said, citing an estimate based on a study by the National Institute of Justice that takes into account such costs as criminal trials and police salaries. 'We've reduced the homicide rate by nearly 300 in six years," he said. "That's a $300 million annual benefit to the city.'"

The Spreading of Disorder

2008-11-26T23:03:20Z

A Netherlands study to be published in Science provides further empirical support for the "Broken Windows" hypothesis that policing seemingly petty offenses makes a big difference. The authors are Kees Keizer, Siegwart Lindenberg, & Linda Steg of the U. of Groningen. Abstract here. Ronald Bailey, science editor of Reason magazine, comments here.

It's Aliiiiiiiiiive

2008-11-26T01:50:56Z

You've made it to the new blog, and it's alive!

Comments are turned off temporarily for technical reasons.

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Under Construction

2008-11-25T23:31:33Z

We plan to move the Crime and Consequences blog to a new host over the Thanksgiving holiday period. During the transition, there may be times when some users are seeing the old blog and some are seeing the new one. In addition, we are upgrading to a new version of the blog software, so there may be a few glitches in that transition process.

Comments will be turned off on the new blog initially. We will turn them on when we iron out a few lingering technical issues.

CJLF's main web site will be down for maintenance for a few hours on Monday. The expected down time is from 10:30 a.m. to 1:00 p.m., Pacific Time.