Criminal Justice Blogs

Murder off Italian coast charged in Orange County

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"N.S.A. Chief Says Surveillance Has Stopped Dozens of Plots"

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Dobbin on Sharman on Regulating Criminal Finance

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Green on Lafler and Frye

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"John Martorano killed 20 people. Why is he a free man?"

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Commentary on the NSA Surveillance Program at The Volokh Conspiracy

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"First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris"

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Jimeno-Bulnes on American Criminal Procedure in a European Context

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Opinion requiring jury trial on facts that increase mandatory minimum sentence

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Opinion allowing comment on silence during noncustodial questioning

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Carodine on Police-Community Relations and the Admissibility of Evidence

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Frakes & Harding on Deterrence Through Criminal Law

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Top-Ten Recent SSRN Downloads

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Bibas on Bulk Misdemeanor Justice

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Shen on Neuroscience and Bodily Injury

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Seeking comments on what to say in comments to the US Sentencing Commission about its priorities

Doug B.

A wise colleague wisely suggested to me that this year might be an especially wise time to convert all my ideas and concerns about the work of the US Sentencing Commission into formal comments for formal submission to the USSC as a formal response to this formal statement of the USSC's proposed priority policy issues for the amendment cycle ending May 1, 2014. The USSC's six-page Federal Register statement of tentative priorities lists just about every topic that has consumed the recent work of the Commission, ranging from mandatory minimums to post-Booker sentencing patterns to the child porn guidelines to the drug guidelines to economic crimes and lots of stuff in between (including even some back-end sentencing stuff like the compassionate release guidelines). Nevertheless, there are still plenty of topics not mentioned that I think should be high on the Commission's agenda, ranging from the impact of sequester on the operation of the federal criminal justice system to the enduring need for serious guideline simplification to the overwhelming problem of undue sentencing severity. Here is the official statement of the official rules for submitting official public comments to the USSC: The Commission hereby gives notice that it is seeking comment on [its] tentative priorities and on any other issues that interest ed persons believe the Commission should address during the amendment cycle ending May 1, 2014. To the extent practicable, public comment should include the following: (1) a statement of the issue, including, where appropriate, the scope and manner of study, particular problem areas and possible solutions, and any other matters relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law, and constitutional provisions; and (3) a direct and concise statement of why the Commission should make the issue a priority. Appropriately, the final line in the USSC's notice includes this fitting kicker: "Pursuant to 28 U.S.C. § 994( g), the Commission also invites public comment that addresses the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to a proposed priority." So, to the extent practicable, I would love to hear from readers about what they think I should make sure to put into my formal comments to the USSC. I have until July 15 to get this done, but I would very much like to have a document ready to send out not long after I enjoy the rocket's red blare this coming Independence Day.

With overcrowded prisons and under court order, Italy is the California of Europe when it comes to punishment practices

Doug B.

This lengthy new article from the International Business Times prompts my post title because it details how Italy is struggling through prison problems that sound a lot like what California continues to deal with. The piece is headlined "Italy’s Overcrowded Prisons: A Growing Tragedy Of Epic Proportions," and here are excerpts: Prisons across Europe are facing an overcrowding crisis -- a manifestation of at least three trends: tougher sentencing by judges (particularly for drug-related offenses), a painfully slow justice system and lack of money to build new facilities to accommodate the excess number of inmates. This crisis is particularly acute in Italy, where correctional facilities are bursting at the seams with an avalanche of convicted men and women. According to the Prison Observatory of Antigone, a Rome-based prisoners' rights organization, almost 67,000 inmates are housed in Italian facilities that were designed to hold only 45,000 -- meaning they are at a capacity of more than 140 percent, among the highest rates in the European Union, where the average capacity is just under 100 percent. The situation in Italian prisons has become so grave that in January of this year, the European Court of Human Rights declared that Italy had just one year to improve conditions in the country's prisons, while ordering Rome to fork over 100,000 euros ($132,000) to seven inmates who raised a test case with the court. “Their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and violated the European Convention on Human Rights’ prohibition against torture and cruel, inhuman or degrading treatment or punishment,” the court stated. Italy's president Giorgio Napolitano (who has no real power to influence public policy) agreed with the court's ruling, saying it amounted to "a mortifying confirmation of the persistent failure of our state to guarantee the basic rights of detainees awaiting judgment and serving sentences.” He added that "decisions can no longer be postponed to overcome a degrading reality for the inmates and for the prison guards.”... Three years ago, having declared a state of emergency in the nation's prisons, the government unveiled a plan to spend 675 million euros ($900 million in 2013 currency) to build 11 new prisons and as well as extensions to existing jails. But the financial collapse has largely scuttled that program. As in France, many Italians are being jailed for minor crimes -- about 60 percent of convicted prisoners are serving terms of less than three years. Moreover, about 38 percent of all inmates in Italy are drug offenders (versus figures of 14 percent in Germany and France and 15 percent in England and Wales). In addition, 42 percent of Italy’s prisoners are pre-trial detainees (versus a European average of 28.5 percent); while more than one-third of inmates are immigrants. "There are so many people awaiting trial for six, seven, eight months," said Cesare Cececotto, an inmate at Regina Coeli, a famous prison in Rome. Another inmate named Giuseppe Rampello complained to Reuters about the large number of foreigners in prison. "We are talking about a prison where you can be in a cell with people with six different languages, six different habits, where there is one who prays as an observant Muslim five times a day and another who swears five times a minute," the 63-year-old inmate said.... In northern prisons, foreigners far outnumber Italians – Antigone said that in jails in Milan and Vicenza, more than 60 percent of inmates are foreign, while in the mountain territories of Trentino Alto Adige and Valle d’Aosta, the proportion reaches nearly 70 percent. Cececotto quipped that as the only Italian in his cell, “Thank God, I speak a bit of English and a bit of Spanish.” In its 2012 report, Antigone declared that "the heart of the prison problem is the penal code.” Napolitano's wish to reform prison sentencing guidelines was compromised by political infighting and the change in government earlier this year. "Something must be done because the prisons are close to collapse," a senior prison official, Margherita Marras, told Reuters.... An inmate named Claudio told Inter Press Service about conditions in his Vicenza facility in March 2013 -- where he had to share a 7.6 square-meter (80 square foot) cell with two other people and stay there 21 hours per day. “Once you excluded the space taken up by beds and drawers, each inmate was left with 90 centimeters (35 inches) to himself. We had to take it in turns to stand up,” he said. “There was no possibility for (inmates) to engage in any activity.” The crisis in Italy’s prisons is nothing new. As long ago as 1995, the New York Times published an article warning: “Bursting Population Overwhelms Italy’s Prisons.” That piece, written by Celestine Bohlen, noted for example that so many prisoners were housed in Milan’s San Vittorio facility that police were forced to relocate some 400 inmates elsewhere, some to as far away as the isle of Sardinia. At that time, Italy had 54,000 prisoners in a system designed to hold only 29,000. After almost two decades the problem has only worsened. “The continuous increase in the jails overcrowding and the significant presence of foreign prisoners makes pursuing the rehabilitative aim of punishment extremely complex and often in vain,” Napolitano told the head of the Italian prison administration department.... Ornella Favero, director of Ristretti Orizzonti, said overcrowding could be relieved by providing a significant number of inmates, especially pre-trial detainees and non-violent drug offenders, access to noncustodial sanctions, including alternatives like fines, community service, house arrest and treatment for drug addiction. In Spain, Germany and France, more than 100,000 convicts are outside of prison walls – the corresponding figure in Italy is less than 20,000.

"Lafler and Frye: Two Small Band-Aids for a Festering Wound"

Doug B.

The title of this post is the title this notable new paper by Albert Alschuler now available via SSRN. Here is the abstract: This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance. Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial? The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].” Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.” The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve. Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires. This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials. It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population. By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it. The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties. If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman. Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be. Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.

After an apology and less than a week in jail, ex-NFL star Chad Johnson gets out

Doug B.

As reported in this new local news and AP report (which includes a video), "Chad Johnson apologized Monday for disrespecting a judge when the former NFL star slapped his attorney on the backside in court last week, and his immediate release from jail was ordered." Here is more: Broward County Circuit Judge Kathleen McHugh accepted Johnson's apology and cut his 30-day jail term for a probation violation to the seven days he had already served since the rear-swatting incident. Johnson, a flamboyant wide receiver formerly known as Chad Ochocinco, said in court that he'd had time to think about why his flippant attitude was wrong — especially in a domestic violence case. "I just wanted to apologize for disrespecting the court last time," said Johnson, wearing a tan jail jumpsuit with his hands shackled at the waist. "I apologize. I did have time to reflect on the mistakes I made in this courtroom." McHugh noted that in a previous hearing Johnson had put his arm around a female prosecutor's shoulders, prompting the prosecutor to tell him twice not to touch her. The judge also pointed out that when Johnson head-butted his then-wife, Evelyn Lozada of the reality TV show "Basketball Wives," she suffered a three-inch gash on her head that required eight stitches. The judge called those injuries horrific. McHugh also said Johnson failed to appreciate "the gift of probation" after pleading no contest to battery in the altercation last August with Lozada, which prompted her to quickly file for divorce. Johnson, 35, was in court because he had failed to meet with his probation officer for three straight months. "I find that's an arrogant disregard for a court order," the judge said. McHugh ordered Johnson to perform 25 hours of community service and attend domestic violence counseling sessions twice a week during probation, and she extended his probation an extra three months through mid-October. The attorney who had his backside slapped, Adam Swickle, said Johnson will fully comply with all probation conditions and hopes to resurrect his NFL career.... "He understands that this is the kind of situation that can derail a person's career," Swickle said. "We're very confident he will do what he should do." Recent related post: Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt pat

"The Impact of Neuroimages in the Sentencing Phase of Capital Trials"

Doug B.

The title of this post is the title of this notable new research paper now available on SSRN and co-authored by Michael Saks, N. J. Schweitzer, Eyal Aharoni and Kent Kiehl. Here is the abstract: Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials. Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified. Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation). For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.

If you are wondering if marijuana is the next growth industry...

Doug B.

here are three notable recent articles from major news sources that should be on your initial reading list: From the AP here, "Is legal pot ready for a “Starbucks” brand? Activists say no, but a businessman tries his luck" From Forbes here, "No Profit In Pot Start-Ups, Says Expert" From the New York Times here, "Trying to Sell Wall Street on the Value of Marijuana"

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

Doug B.

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge. The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner. The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless. The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.) Prior related post on Alleyne ruling: Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Doug B.

Big news from SCOTUS today for sentencing fans, with this (abridged) initial report coming from the fine folks live-blogging at SCOTUSblog: Alleyene: Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. 5-4 opinion per Justice Thomas. Majority is Thomas, Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Roberts, joined by Scalia and Kennedy. Alito dissents separately.... Justice Sotomayor also filed a concurring opinion.... This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling.... Here is the opinion in Alleyne. And here is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." Alleyne, slip op at 15. Based on a much-too-quick first read, this Alleyne ruling seems to be everything (and not much more) than what should have been expected and predicted when the Court granted cert to reconsider Harris. With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling. And, as he continues to play Hamlet with Sixth Amendment doctrine, Justice Breyer also continues to dump on the whole Apprendi line of case. As I predicted in this post last November (and especially with speculations precedents inother areas perhaps being in jeopardy), the most interesting and enduring significance of Alleyne is the sparring between Justices Sotomayor and Alito over stare decisis. I suspect after the con law folks get over their disappointment that we did not get any huge SCOTUS rulings today, there will be some enduring buzz over what all the Justices had to say (and not say) about stare decisis in Alleyne.

"Closing the Widening Net: The Rights of Juveniles at Intake"

Doug B.

The title of this post is the title of this notable new piece by Tamar Birckhead now available via SSRN. Here is the abstract: Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults? This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system. My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign. Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system. This Article, the second in a series on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the intake process, which operates as one of the primary gateways to juvenile court. The Introduction describes a typical case, highlighting the shortcomings of the current process and the risks — short- and long-term — that they pose to juveniles. Part II presents the nuts and bolts of the intake stage, including details regarding who conducts the screening, its purpose, and the assessment criteria applied. Part III discusses the procedural rights of juveniles at intake according to the U.S. Supreme Court, state courts and legislatures. Part IV analyzes what can — and often does — go wrong with the intake process, resulting in a wider net being cast around minorities and low-income children and families. Part V offers proposals for reform, including providing counsel to children prior to intake; mandatory advising of children and their parents by the juvenile probation officer conducting the intake interview; and introducing an objective rubric for the evaluation of delinquency complaints by juvenile probation officers.

Notable comments and recommendations emerging from Ohio Death Penalty Task Force

Doug B.

As I have mentioned before, I have generally been disinclined to blog about my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here). But there was some notable developments at this past week's public meeting of the Task Force which I thought would be of broad interest to readers of this blog. This report from the Cleveland Plain Dealer, headlined "Task force urges state panel be created to evaluate death penalty prosecutions," provides the highlights: A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial. Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors. But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges. The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation. “The two biggest disparities my group has dealt with are race issues and geographic issues,” Young said. In the case of race issues, they revolve around the race of the victim. “I think it’s vitally important that we do something about disparity and the death penalty,” Young said. “The numbers are overwhelming.” Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision. It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force. “It would be a significant change in how things operate now,” Cline said. The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law. Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said. Chief Justice Maureen O’Connor, with the Ohio State Bar Association, established the joint task force in 2011. It is charged with determining if capital punishment in Ohio is administered fairly and judiciously and to examine if adjustments are needed.... Far and away the majority of Ohio’s capital cases come from urban areas, Young said. And while they should naturally see more, simply because of population, their numbers are also greater per capita. “We have more than 40 counties that have never brought a death penalty case,” Young said. There are a myriad of possibilities for why that is the case. The goal of the recommendation is to find more of a common standard, Young said. “Right now you have 88 prosecutors, all well intentioned,” Young said. “Our thought process was that if it went through a central committee that would even out those 88 applications.” Young said there was was significant debate on the recommendation, which was approved by a vote of 8 to 6. Much of the debate dealt with the impact it would have on what now is a matter of prosecutorial discretion. And Young said he would not be surprised if those opposed to the recommendation write a dissenting opinion for the final report. Cline agreed. “They’re concerned that the prosecutors were elected by the folks in their jurisdictions to make these decisions,” she said. Other developments in this week's meeting also made news as revealed by this Columbus Dispatch article headlined "Former Justice Stratton says she’s now opposed to death penalty." It starts this way: In nearly three terms on the Ohio Supreme Court, former Justice Evelyn Lundberg Stratton sided with the majority most of the time when convicted murderers were put to death. From 1996 through the end of last year, spanning the time Stratton was a justice on the court, Ohio executed 49 men by lethal injection. But nearly six months after leaving the court, the Republican, now an attorney in private practice in Columbus, has changed her views. Stratton yesterday told members of an Ohio Supreme Court task force reviewing administration of the death penalty that she didn’t have a strong feeling about capital punishment while serving on the court. “I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition ... Overall, it’s just not the best way to deal with it on a number of different levels.” Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victims’ families don’t gain the finality they seek when the murderer is put to death.

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

Doug B.

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect. In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA." In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago. I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett: RE: Case Nos. 12-5226/5582 USA v. Cornelius D. Blewett and Jarreous J. Blewitt Dear Counsel: In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause. See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”). The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above. Download Blewett Letter I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers? Related posts on Blewett: On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences "Crackheaded Ruling by Sixth Circuit" How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"? Two weeks later, has there been any significant and noteworthy Blewett blowback? As expected, feds ask full Sixth Circuit to review and reverse Blewett crack retroactivity ruling

"Records Show Nearly 500 Years In Prison Time For Medical Marijuana Offenses"

Doug B.

The title of this post is the heading of this notable new entry on The Weed Blog, which gets started this way: In spite of growing public support for medical marijuana, concern about overreach by the U.S. Department of Justice and other federal agencies, and cutbacks in federal spending, the U.S. government’s war on medical marijuana is raging unabated according to a survey of court records by Cal NORML. On Tuesday, Michigan medical marijuana grower Jerry Duval, a kidney and pancreas transplant patient with severe medical problems, began serving a ten-year sentence in the same prison as the Boston bomber. Duval joins a growing list of defendants in states that allow medical marijuana who have been charged by the Department of Justice for violating federal laws prohibiting medical marijuana. According to a survey of US court records, news stories, and case reports compiled by Cal NORML (with help from Americans for Safe Access): • Over 335 defendants have been charged with federal crimes related to medical marijuana in states with medical marijuana laws. • 158 defendants have received prison sentences totaling over 480 years for medical marijuana offenses. Some 50 are currently in federal prison, while more are waiting to be sentenced or surrender. • Over 90% of the criminal cases settled to date have resulted in convictions. 10% have been dismissed. A single defendant has been acquitted. Federal law typically prohibits defendants from invoking medical marijuana in their defense. • 153 medical marijuana cases have been brought in the 4 ¼ years of the Obama administration, nearly as many as under the 8 years of the Bush administration (163). • Not a single pardon or clemency petition has been granted to a medical marijuana defendant by President Obama or his predecessors. • One seriously ill defendant, Richard Flor, has died while in federal prison, and two others, Peter McWilliams and Steve McWilliams (no relation) died while being denied access to medical marijuana on bail. Other seriously ill patients who have who have been sentenced to lengthy terms include Dale Schafer, a hemophiliac currently serving 5 years along with his wife Mollie Fry, a cancer patient (pictured above); Vernon Rylee, who served nearly 5 years in a wheelchair (pictured right), and Jerry Duval. • At least 259 defendants have been charged in California; over 31 in Montana; 6 in Oregon; 15 in Nevada; 12 in Michigan; 2 in Colorado; and 10 in Washington. A few other recent notable posts on the same blog include the following: Obama Has Already Outspent Bush By $100 Million On Medical Marijuana Enforcement Prohibition Hurts Science According To Researchers Does Marijuana Make You Stupid?

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

Doug B.

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here). The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up. As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

"Woman arrested 396 times sentenced to mental health and substance abuse program"

Doug B.

The title of this post is the headline of this notable little local story out of Chicago which provides some more proof concerning the inefficiencies and inefficacies of modern criminal justice systems. Here are the basics: An Uptown woman who has been arrested 396 times meekly offered her gratitude and apologies to a Cook County judge Monday as she took a plea deal that will send her to a mental health and substance abuse treatment program. “All of us are reaching out to you and offering you, maybe for the first time in your life, a hand, OK?” Judge Peggy Chiampas told Shermain Miles. “But you’ve got to reach out and grab all of our hands as well.” Miles, who was dressed in a bright yellow prison jumpsuit, kept her hands behind her back and politely answered Chiampas’ questions. She told the judge, “I just want to thank you.” “I’m not that person,” said Miles, 51, who has previously been known to shriek in courthouse lockups. Miles has been at Logan Correctional Center in Lincoln since December. She’d been released in April 2011 after serving thee years for an armed robbery conviction but was arrested several more times while on parole, triggering her return to prison. Among the reasons for her later arrests was an alleged attack on Ald. James Cappleman (46th) last summer. Miles pleaded guilty in that case Monday and in two separate cases of trespassing and drinking alcohol on a public way. Chiampas sentenced Miles to time served for all three, but she said she only did so because Miles said she’d submit to a mental health evaluation and follow-up treatment, as well as treatment for alcohol abuse, at the Lincoln prison. A representative from Cappleman’s office attended the hearing, and a prosecutor said the alderman is satisfied with the deal. Adam Monreal, chairman of the Illinois Prisoner Review Board, also attended the morning hearing but couldn’t immediately say how the deal will affect Miles’ release from prison. Annoyingly, this story does not explain why or how this woman has managed to get arrested 396 times (and I am actually a little suspect concerning this accounting because it would mean she was getting arrested, on average, at least once a month, every month, of her entire adult life without having faced any serious criminal justice consequences). Nevertheless, anyone who gets arrested even dozens of times obviously has major difficulty living as a law-abiding person and likely has mental health and substance abuse problems. It should not take decades and hundreds of arrests for the criminal justice system to develop some programming that would effectively rehabilitate or more effectively incapacitate a person who is obviously a menace to local law enforcement and perhaps many others.

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Doug B.

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans: In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission. This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so. The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns. Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences. Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

How to Increase the Crime Rate Nationwide

Kent Scheidegger — Wed, 12 Jun 2013 20:51:31 +0000

Heather MacDonald has this article with the above title in the WSJ. We already know the California method for increasing crime -- ram a flaky, untested idea through the Legislature in a single day and then test it on 38 million people to see if it works. MacDonald, though, is worried about a New York development that she anticipates might spread nationwide. Instead of trying a new program that probably will not work, tear down an existing one that has proven effective in reducing crime.

A racial-profiling lawsuit over the New York Police Department's "stop, question and frisk" policies is now in the hands of a judge whose decision is expected within weeks. Many New Yorkers watched the two-and-a-half-month trial nervously, concerned that a ruling against the NYPD by U.S. District Court Judge Shira Scheindlin could spell an end to a police practice that helped the city achieve an astonishing drop in violent crime.

But non-New Yorkers would do well to worry about the case too. A decision against the NYPD would almost certainly inspire similar suits by social-justice organizations against police departments elsewhere. The national trend of declining crime could hang in the balance. And the primary victims of such a reversal would be the inner-city minorities whose safety seems not to figure into attempts to undermine successful police tactics.

See also prior posts of March 28, Feb. 13, Jan. 24, and another Jan. 24.

Judicial Participation in Plea Bargains

Kent Scheidegger — Thu, 13 Jun 2013 14:17:31 +0000

The US Supreme Court has reversed the decision of the Eleventh Circuit in United States v. Davila, No. 12-167. The lower court held that the judge's participation in plea bargaining voided the plea. The Supreme Court found no prejudice.

Other cases decided today are civil, including the much-awaited gene patenting case. Isolated, naturally occurring genes are not patentable.

Ms. Rehab Strikes Again

Bill Otis — Thu, 13 Jun 2013 19:44:19 +0000

It didn't take even three months.

I wrote here about the latest stern talking-to by the judge directed to Ms. Rehab herself, Lindsay Lohan. I also bet any reader who cared to take me up that Ms. Rehab, who has been given approximately 74 "last chances," would be back in trouble in less than a year.

I gave her too much credit.

Today comes the report:

Just when Lindsay Lohan seemed to be making progress in her court-ordered rehab, FOX411's Pop Tarts column has learned that the actress endured "several problems" while in lock down at California's Betty Ford clinic, and will now be getting help elsewhere.

Sources close to the situation tell us the District Attorney approved the change earlier this week, and on Thursday Lohan was being relocated to Cliffside Malibu.
In March, Lohan pleaded no contest to misdemeanor charges stemming from the June 2012 car accident; reckless driving and providing false information to a police officer. She was sentenced to 90 days in a lock down rehabilitation center, 30 days of community service, and 18 months of mandated psychotherapy.

Well gosh, at least she'll be getting that "mandated psychotherapy" -- and at a tough-as-nails place like "Cliffside Malibu."

Eric Holder, at It Again

Bill Otis — Thu, 13 Jun 2013 20:32:10 +0000

Contrary to some other conservative/libertarian bloggers, I believe Eric Holder did not tell the truth about his supposedly not being "involved" in the "potential prosecution" of a Fox News reporter. My view rested on the fact that Holder had previously told a court, inter alia, that the reporter was probably an aider, abettor or co-conspirator in a federal felony; might be a risk to flee; and (later, and with amazing candor) characterized his application to the court as having "branded" the reporter "a criminal." That's not a "potential prosecution?"

But our Attorney General is irrepressible. Although, as Kent noted yesterday, New York City has had tremendous success with its "stop-question-and frisk" policing -- having reduced major felonies by an astonishing 75% over the last generation -- Mr. Holder is having none of it. His DOJ has filed papers in a suit challenging the program -- not on the side of the city, but on the side of the city's opponents. Readers will not be surprised to hear that one of the main arguments DOJ is making is Old Reliable itself, racial profiling.

That's it! Michael Bloomberg's police department is a bunch of Klansman.

Give it a rest, Mr. Holder. The notion that the very liberal mayor of one of the country's most liberal cities is, in 2013, running a racist police department is so much Al Sharptonesque nonsense.

No serious person thinks that Mayor Bloomberg discriminates based on the color of your skin. Now the color of your 20-ounce soft drink............

News Scan

CJLF Staff — Thu, 13 Jun 2013 22:03:19 +0000

Texas Executes Confessed Murderer of Five: Elroy Chester, a confessed murderer of five, was executed yesterday after spending 14 years on Texas' Death Row. The Associated Press reports that Chester was put to death by lethal injection after failed attempts for appeal to the Supreme Court based on his claim of mental retardation. Willie Ryman, a decorated Port Arthur firefighter, was killed in February 1998 when he interrupted Chester as he sexually assaulted Ryman's two teenage nieces during a break-in at their home. Chester was the 499th murderer Texas has put to death since the United States reinstated the death penalty in 1976.

Florida Suspect Admits to Over 30 Murders: The Marion County Sheriff's Office has solved a double homicide case from 2006, and the suspect in custody is now claiming to be responsible for 30 more murders throughout the country. Anne Claire Stapleton of CNN reports that DNA evidence from the victims' truck linked 50 year-old Jose Manuel Martinez to the double-homicide. Martinez claims to have killed over 30 people from around the country in an effort to collect debts for the Mexican drug cartel.

Protesting at SCOTUS

Kent Scheidegger — Thu, 13 Jun 2013 23:11:07 +0000

Well, that was quick.

Congress has long forbidden demonstrations at the Court. In 1983 the Court held that statute unconstitutional as to the sidewalks in United States v. Grace. The law has continued to be enforced as to the grounds. Earlier this week, a federal district judge found it unconstitutional as to the grounds as well. The Court swiftly reacted with this revised regulation:

Regulation Seven

This regulation is issued under the authority of 40 U.S.C. § 6102 to protect the Supreme Court building and grounds, and persons and property thereon, and to maintain suitable order and decorum within the Supreme Court building and grounds. Any person who fails to comply with this regulation may be subject to a fine and/or imprisonment pursuant to 40 U.S.C. § 6137. This regulation does not apply on the perimeter sidewalks on the Supreme Court grounds. The Supreme Court may also make exceptions to this regulation for activities related to its official functions.

No person shall engage in a demonstration within the Supreme Court building and grounds. The term "demonstration" includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. The term does not include casual use by visitors or tourists that is not reasonably likely to attract a crowd or onlookers.

Approved and Effective June 13, 2013

The casual use unlikely to draw a crowd exception is to deal with a perceived overbreadth problem. Adam Liptak has this story in the NYT.

John W. Whitehead, the president of the Rutherford Institute, which represents Mr. Hodge, said the new regulation was disturbing.
"Facing a fine or imprisonment because one man demonstrates in front of the Supreme Court," he said, "is repugnant to the First Amendment."

Nonsense. The Grace case says he can demonstrate in front of the Supreme Court. He just has to stay on the sidewalk. Seems like a reasonable "place" limitation to me.

What next? A First Amendment right to hold the protest in the courtroom itself while oral arguments are going on?

Gratitude for What We Have

Bill Otis — Thu, 13 Jun 2013 23:52:32 +0000

Much of the criticism of the criminal justice system takes root in the belief that America is a fundamentally flawed country -- racist, classist, beset with the inequities of capitalism and callous (or, worse, cruel) to those who suffer from them. This belief suffuses criminal defense, which scarcely ever anymore contests whether the accused did it, and concentrates instead on the poisonous social forces that led him to do it.

A different view of our country was presented last night by Yuval Levin, as he accepted the Bradley Prize at a ceremony at the Kennedy Center. His talk was not directly about criminal law, but bears repeating as an antidote to the dim view of America I described above. Mr. Levin said, among other things:

To my mind, conservatism is gratitude. Conservatives tend to begin from gratitude for what is good and what works in our society and then strive to build on it, while liberals tend to begin from outrage at what is bad and broken and seek to uproot it.
You need both, because some of what is good about our world is irreplaceable and has to be guarded, while some of what is bad is unacceptable and has to be changed. We should never forget that the people who oppose our various endeavors and argue for another way are well intentioned too, even when they're wrong, and that they're not always wrong.
But we can also never forget what moves us to gratitude, and so what we stand for and defend: the extraordinary cultural inheritance we have; the amazing country built for us by others and defended by our best and bravest; America's unmatched potential for lifting the poor and the weak; the legacy of freedom--of ordered liberty--built up over centuries of hard work.
We value these things not because they are triumphant and invincible but because they are precious and vulnerable, because they weren't fated to happen, and they're not certain to survive. They need us--and our gratitude for them should move us to defend them and to build on them.

A Bald-Faced Lie at the Huffington Post

Kent Scheidegger — Fri, 14 Jun 2013 17:58:24 +0000

Most of the time, opponents of the death penalty employ the intentionally misleading half-truth as their weapon of choice. However, they are not above outright lies when they think they can get away with it.

Has the Supreme Court said that the death penalty is unconstitutional? Not just in particular cases or through particular procedures, but generally? Everyone knowledgeable in the area knows the answer is no. But the Huffington Post Blog yesterday said the answer is yes.

It doesn't matter if the murder in question -- the death penalty -- is legal. It is still wrong. More importantly, it is unconstitutional.

The Supreme Court itself said so back in 1972. That's right, writing in 1972 the Court argued that "the imposition and carrying out of the death penalty ... constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."

Note the "..." in the quote. What the Supreme Court actually said in Furman v. Georgia is, "The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." (Emphasis added.)

In the five separate opinions concurring in that judgment that follow, only two of the Justices said that the death penalty is unconstitutional in general. Three say only that it is unconstitutional under the standardless discretion statutes used in the cases before the Court. Those statutes were swiftly repealed and replaced, and none of the death sentences carried out since 1977 or still pending have been imposed under such statutes.

Citing this quote, with essential words omitted, to say that the Supreme Court has held that the death penalty itself is unconstitutional is a shameless lie.

News Scan

CJLF Staff — Fri, 14 Jun 2013 20:58:37 +0000

No Clemency for Oklahoma Death-Row Inmate: Oklahoma's Governor Mary Fallin denied a clemency request made by convicted murder Brian D. Davis despite recommendations for clemency made by the Pardon and Parole Board. Cary Aspinwall of Tulsa World reports that the Davis is now set to be executed on June 25th at Oklahoma State Penitentiary in McAlester. The Pardon and Parole Board recommended that the death sentence be commuted to a life sentence without the possibility of parole, however, Governor Fallin denied the clemency request.

Newtown Photos Won't Fuel Gun Control Debate: Governor Dannel Malloy of Connecticut quickly shot down attempts made to have gruesome photos of the Newtown school shooting available to the public. Shanta N. Covington of MSNBC reports that the photos won't be used as tools in the gun control debate in an effort to maintain privacy for the victim's families. Newtown victim's family members have been very active on Capitol Hill in their quest to refine gun legislation in order to hopefully prevent future tragedies like the one they have experienced.

Mile High Justice

Kent Scheidegger — Fri, 14 Jun 2013 21:44:39 +0000

The WaPo's political blog, The Fix, has this post on the governorships deemed in play this year and next. Most pertinent for us:

Colorado comes onto the line for the first time this cycle following a Quinnipiac University poll showing former congressman Tom Tancredo (R) running neck-and-neck with the once highly popular governor. Hickenlooper's decision to grant a temporary reprieve to a convicted murderer was received very poorly by Colorado voters in the survey. It's just one poll, and time will tell whether it is an outlier. But for now, this race is worth keeping an eye on.

The poll is here. Quinnipiac says,

Colorado voters say 69 - 24 percent that the death penalty should stay on the books and not be replaced by life in prison with no chance of parole, according to a Quinnipiac University poll released today. At the same time, Gov. John Hickenlooper finds himself running neck and neck with possible challengers in the 2014 governor's race.

Voters disapprove 67 - 27 percent of Gov. Hickenlooper's decision to grant convicted murderer Nathan Dunlap a reprieve, and 74 percent say the death penalty will be "very important" or "somewhat important" in their vote for governor next year, the independent Quinnipiac (KWIN-uh-pe-ack) University poll finds.

I would dearly love to see Hickenlooper get the boot and for it to be clear that this is the reason. It would be just deserts for Hickenlooper himself. It would allow a reboot of justice for Colorado, one of the states stabbed in the back by the Supreme Court's Walton/Ring flip-flop. It would send a strong signal to governors elsewhere considering similar shenanigans.

The clemency power is a necessary and important safeguard to correct miscarriages of justice in individual cases that have somehow slipped through the cracks, uncorrected by the judicial process. Using it to block the enforcement of a law altogether is a misuse of authority.

New Defense Tactic: YouTube the Crime

Bill Otis — Sat, 15 Jun 2013 20:52:19 +0000

I scarcely know what to make of this, but the ABA Journal reports that a criminal defense lawyer has been suspended from practice for five months for posting a video of his client committing the crime (buying drugs).

The lawyer "admitted hiring a company to post the video because, at the time, he believed it showed drugs being planted on his client."

Oh, OK. There are those of us who think there's a pretty clear difference between drugs being "planted" on your client, and your client buying them, but whatever. Only Puritanical prosecutors would insist on distinctions like that.

Still, as I say, I don't know what to make of the suspension. On the one hand, I suppose it's "poor customer service," as the IRS would say, to make it obvious to the entire world that your client is guilty. On the other, it's refreshing to see a defense lawyer publicize the truth, even if only by mistake.

IL: Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage

Mon, 17 Jun 2013 05:00:11 +0000

Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage. Cash was suppressed and forfeiture denied, and it was affirmed on appeal. People v. $280,020 in United States Currency, 2013 IL App (1st) 111820, 2013 Ill. App. LEXIS 383 (June 12, 2013). [Yes, there still are drug courier profile cases. Just not as many as before.]

Defendant who sold drugs out of an apartment lacked standing to challenge its search where he was not the renter and not on the utility bills. It was a “stash house.” “While Jones may have spent some nights in the apartment, his primary activity was selling drugs, an illicit commercial function that society doesn't value. Therefore, the court finds that Jones has not met his burden of proving he has standing to challenge the results of the Melville Street search.” Even if he had standing, he loses on the merits of probable cause for the warrant based on the sale from inside. United States v. Jones, 2013 U.S. Dist. LEXIS 83128 (D. Mass. June 11, 2013).*

“[T]he [implied] agreement between the PVPD and the LPD [for a drug buy operation in one city] constituted a ‘request for assistance’ under K.S.A. 2012 Supp. 22-2401a(2)(b) and, therefore, the PVPD's drug buy was a lawful exercise of its law enforcement authority.” State v. Vrabel, 2013 Kan. App. LEXIS 54 (June 14, 2013).*

Warscapes: Cryptogams & the NSA: Emailing oneself "Finnegans Wake" brings the FBI

Mon, 17 Jun 2013 11:44:13 +0000

Warscapes: Cryptogams & the NSA by John Sifton of Human Rights Watch:

The first thing I did after I heard about the highly classified NSA PRISM program two years ago was set up a proxy server in Peshawar to email me passages from Joyce’s Finnegans Wake. A literary flight of fancy. I started sending back excerpts from Gerard Manley Hopkins poems.

The cantankerous Seymour Hersh was my inspiration. He had told me about the program in a clipped expletive-filled summary in the summer of 2011: “They’re scooping fucking everything, man! Phones, Internet, the whole works.”

CA3: The search of defendant's car ditched on the highway after flight from a bank robbery didn't require a search warrant

Mon, 17 Jun 2013 12:32:57 +0000

Defendant fled from a bank robbery and ditched his vehicle on the side of the road. His argument that the police needed a search warrant to search it was found “to be without merit,” to put it mildly. He also abandoned it on the side of the road. United States v. Bentley, 2013 U.S. App. LEXIS 12010 (3d Cir. June 14, 2013).* [Sounds like defense counsel ordered to appeal, and this isn't even close.]

Defendant’s post-conviction petition stated a colorable claim for IAC for defense counsel’s failure to preserve a search issue for appeal. Carter v. State, 2013 Tenn. Crim. App. LEXIS 502 (June 14, 2013).*

A claim there is a Fourth Amendment right in a prison cell is manifestly frivolous. Laurensau v. Romarowics, 2013 U.S. App. LEXIS 11924 (3d Cir. June 13, 2013).*

Politico: DNI: Analysts can’t eavesdrop on domestic calls without ‘proper legal authorization’

Mon, 17 Jun 2013 14:37:15 +0000

Politico: DNI: Analysts can’t eavesdrop on domestic calls without ‘proper legal authorization’ by Alex Byers.

New law review article: Constitutional Culpability: Questioning the New Exclusionary Rules

Mon, 17 Jun 2013 14:52:07 +0000

Andrew Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules (Florida Law Review forthcoming), Abstract:

=> Read more!

OK to Comment on Suspect's Nonanswer During Voluntary Interview

Kent Scheidegger — Mon, 17 Jun 2013 15:19:52 +0000

The US Supreme Court today upheld, 3-2-4, a prosecutor's comment on the fact that a murder suspect failed to answer a single question during a voluntary interview. He was not under arrest at the time, and the case had been litigated on the assumption he had not received Miranda warnings. (He actually had, according to the state's brief, but apparently no one brought that to the attention of the trial court.) The case is Salinas v. Texas, No. 12-246. CJLF's brief is here.

The plurality opinion by Justice Alito (joined by Chief Justice Roberts and Justice Kennedy) is based on the fact that the suspect did not expressly invoke his Fifth Amendment right. In Berghuis v. Thompkins, decided three years ago, the Court held that a prolonged silence during most of an hours-long custodial interview did not invoke Miranda rights so as to require a cut-off of questioning, and thus the suspect's response to a single question was admissible. This case is a mirror-image. Salinas freely answered most questions but made no verbal response to the one most incriminating question. The plurality extends, slightly, the express invocation requirement to cover this situation.

Justice Thomas, joined by Justice Scalia, concurs in the judgment on the broader ground that commenting on silence is not compulsion within the meaning of the Fifth Amendment, and Griffin v. California, 380 U.S. 609 (1965), forbidding comment on the defendant's failure to testify at trial, was wrongly decided. There is zero chance of overruling Griffin with the current Court, but there is much to be said for not extending it.
Justice Breyer dissents, joined by Justices Ginsburg, Sotomayor, and Kagan. He goes through Fifth Amendment precedents in analytical fashion and decides they should apply to exclude this evidence. I was particularly struck by his next-to-last paragraph:

Far better, in my view, to pose the relevant question directly: Can one fairly infer from an individual's silence and surrounding circumstances an exercise of the Fifth Amendment's privilege? The need for simplicity, the constitutional importance of applying the Fifth Amendment to those who seek its protection, and this Court's case law all suggest that this is the right question to ask here. And the answer to that question in the circumstances of today's case is clearly: yes.

What's wrong with this picture? The needs he considers are entirely on one side. There is a reason that the goddess of justice is portrayed holding a double pan balance scale. What about the need to punish Salinas for a double shotgun murder? What about the need to get a violent thug off the street? Don't those needs count at all?

The plurality understands that "[t]he privilege against self-incrimination 'is an exception to the general principle that the Government has the right to everyone's testimony.' " The privilege must be respected within its proper scope, but it should not be expanded. The Warren Court bloated the Fifth Amendment beyond recognition. The changes we should be considering at this point are those reducing the bloat, not further expanding it. This passage from the plurality opinion is encouraging:

But popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself "; it does not establish an unqualified "right to remain silent." A witness' constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.

For almost half a century, the Miranda rule has required police to tell arrestees they have a right to remain silent, and that phrasing has become more widely known to the public than what the Fifth Amendment actually says. It is good to see the Supreme Court moving back in the direction of the actual Constitution.

The plurality notes the due process rule of Doyle v. Ohio that if a suspect receives the promise of the Miranda warnings that he "has the right to remain silent," even though the Fifth Amendment doesn't actually say that, he can rely on "the warnings' implicit promise that any silence will not be used against him." If this case had been litigated on the basis that Salinas actually did get the warnings, would it have come out differently? Should police stop giving warnings to unarrested suspects "just to be safe" now? We don't know yet.

News Scan

CJLF Staff — Mon, 17 Jun 2013 16:24:44 +0000

Supreme Court strikes down Arizona's new Voting Law: An Arizona voter-approved proposition requiring proof of U.S. citizenship prior to voting registration was overturned today in a 7-2 ruling in the Supreme Court. Bill Mears of CNN reports that Proposition 200 interfered with the National Voter Registration Act of 1993 which forbids states from demanding additional information beyond what is required on the federal voting registration form. Arizona voters passed Proposition 200 in an attempt to prevent voter fraud.

Indiana Woman Sentenced to die at 16 to be Released: Indiana's Supreme Court has decided to release 43 year-old Paula Cooper after she was sentenced to death in 1986 at the age of 16. The Associated Press reports that Cooper's death sentence sparked global protests after she was put on death row for the murder of a Bible school teacher at the age of 15. Cooper, who confessed to the murder, was sentenced to die in the electric chair at the age of 16 making her the youngest inmate in the U.S. on death row.

Defendant's Challenge Bite Mark Evidence: USA Today reports that a New York judge's ruling later this month could help to end the admissibility of bite mark evidence-a practice not recognized by both the FBI and the American Dental Association. Supporters of this method cite notorious criminals like Ted Bundy as being convicted through the use of bite mark evidence. A forensic dentist interviewed for the story noted that "if the analyst is ... not properly trained or introduces bias into their exam, sure, it's going to be polluted, just like any other scientific investigation. It doesn't mean bite mark evidence is bad."

Florida Gov. Signs DP Reform Bill

Kent Scheidegger — Tue, 18 Jun 2013 14:16:05 +0000

On Friday, Gov. Scott of Florida signed the relatively modest reform bill that passed the Legislature. The primary fix in the bill is to provide an alternative to the governor personally signing a warrant for each execution. The postconviction review processes are not significantly changed, although the bill contains a reporting requirement for the courts.

Mary Ellen Klas has this story for the Tampa Bay Times. Among others, she quotes the ACLU reaction:

"Gov. Scott came to Tallahassee to restructure our economy and drag us out of the recession, but if this happens history will note him as the governor who signed more warrants than anyone else,'' said Howard Simon, executive director of the American Civil Liberties Union of Florida.

This is nonsense of course. Scott will be known primarily by the outcome of his economic efforts. But there is certainly nothing wrong in being known, additionally, as a governor who delivered effective justice in the very worst murder cases.

CA3: 911 call about argument in motel lobby didn't support entering plaintiff's room

Tue, 18 Jun 2013 16:35:16 +0000

Officers responded to a 911 call about an argument in the lobby of a motel. They entered a room. There was no justification shown for entry into the room under the Fourth Amendment, and the district court’s entry of summary judgment on qualified immunity is reversed. Smart v. Borough of Bellmawr, 2013 U.S. App. LEXIS 12154 (3d Cir. June 17, 2013).*

The officers had reasonable suspicion to approach a group of men across the street from a hang up 911 call and there was nothing going on there. On the totality, there was reasonable suspicion as to defendant for a police encounter. United States v. Hightower, 2013 U.S. App. LEXIS 12141 (8th Cir. June 17, 2013).*

Defendant’s written consent to search his apartment included seizure of papers that supported that he was here illegally. United States v. Nyaga, 2013 U.S. Dist. LEXIS 84372 (E.D. Mo. June 17, 2013).*

GA: No reasonable expectation of privacy in jail mental health records

Tue, 18 Jun 2013 16:54:58 +0000

Defendant was behaving bizarrely in jail, so he was examined in the mental health section of the jail. He had a much diminished expectation of privacy in those records. When he filed a NGBRI defense, he waived it all. There was no Fourth Amendment violation by getting the records. Armstead v. State, 2013 Ga. LEXIS 544 (June 17, 2013).

The officers had reasonable suspicion the defendant was patronizing a prostitute when they approached his car and talked to him. He was still free to leave when he was talking to them. Holmes v. State, 2013 Ga. LEXIS 557 (June 17, 2013).*

Defendant’s stop was based on a concededly valid window tint violation, so his subjective intent to find drugs was irrelevant. The trial court’s findings the stop was not stalled were supported by the record. Walker v. State, 2013 Ga. App. LEXIS 478 (June 12, 2013).*

The traffic stop here was valid, and consent was obtained during the normal time of the stop. Defense counsel was not ineffective because any other ground of a motion to suppress would have been futile. Betancourt v. State, 2013 Ga. App. LEXIS 479 (June 12, 2013).*

News Scan

CJLF Staff — Tue, 18 Jun 2013 22:20:29 +0000

Oaklahoma Murderer to be Executed: Convicted murderer, James Lewis DeRosa, is set to be executed at the Oklahoma State Penitentiary tonight at 6:00pm. Rachel Peterson of McAlester News reports that DeRosa was convicted in 2001 on two counts of first-degree murder. The Oklahoma Pardon and Parole Board denied DeRosa's request for clemency earlier this month by a vote of 3-2.

Sentencing in Obama-Clinton Primary Fraud Scandal: Four Indiana Democrats who pleaded guilty in their state's presidential petition fraud scandal were sentenced on Monday. Eric Shawn of Fox News reports that a student at Yale University noticed multiple signatures, over 200 of them, written in the same handwriting for the presidential petitions used to place candidates on the ballot. Had Hilary Clinton challenged the petitions during the Indiana primary race, election fraud would have been detected, which could have resulted in Obama's removal from the Indiana primary ballot.

Federal Appeals Court Releases Admitted Murderer: A federal appeals court has freed a convicted murderer based on the location of his crimes. KOCO Oklahoma City News reports that David Magnan, who was sentenced to death for a triple homicide, was freed because the crimes were committed on Indian land. The state lacks authority to prosecute crimes committed on Indian land, however, it is likely that Magnan will be rearrested by federal authorities since he admitted to the murders.

Inmate Release Judge to Rule on Valley Fever Case: A lawyer from the Prison Law Office is demanding that 3,250 inmates be moved from to San Joaquin Valley prisons to prevent deaths from the fungus-born Valley Fever. Over the past seven years an estimated three dozen inmates have died from the disease. Mihir Zaveri and Don Thompson of the Associated Press report that Judge Thelton Henderson will decide if the move is necessary. Judge Henderson was a member of the three judge panel which in 2010, ordered California to release roughly 36,000 inmates after it found that overcrowding had resulted in inadequate prison healthcare. The state has asked for more time until a CDC study of the issue is completed.