January 12, 2010
Different perspective on the Justices' take on federal sex offender civil commitmentThe early reporting on today's SCOTUS oral argument in Comstock (basics here) provide quite distinct takes on what the Justices are thinking. Consider the lead of this Bloomberg report, which is headlined "Sex-Offender Commitment Law Gets Support at U.S. Supreme Court":
U.S. Supreme Court justices signaled they are likely to uphold a national law that permits the civil commitment of “sexually dangerous” people after they complete their federal prison terms. Hearing arguments today in Washington, most of the nine justices suggested they viewed Congress as having the constitutional power to enact the law. A federal appeals court said the 2006 measure, under which more than 100 people have been held, exceeded Congress’s authority.
But now consider the lead of this Reuters report, which is headlined "U.S. justices question sex offender confinement law":
Supreme Court justices on Tuesday expressed skepticism about the Obama administration's argument that the U.S. Congress can keep sex offenders in custody for an indefinite time beyond their prison sentences.
I suppose we will all just have to read the transcripts of the Comstock oral argument, which is now available here.
UPDATE: Corey Yung at Sex Crimes provides lots of effective coverage of the Comstock oral argument in these posts:
- Key Points from the Government's Oral Argument
- Key Points from Comstock's Oral Argument and Government's Rebuttal
- My Prediction of the Outcome in Comstock
Also, Orin Kerr provides another bloggers take with this Volokh post, Oral Argument in United States v. Comstock.
"Lawyers Challenge Ohio on Executions"The title of this post is the headline of this article in the New York Times, which provides a useful reminder that litigation over lethal injection has not gone away in Ohio even though the state has transitioned to a one-drug execution protocol. Here are some details:
Proper training of prison officials could have prevented a botched execution in Ohio last year that led the state to overhaul its method of execution, lawyers for several death row inmates have argued in court filings.
The filings contend that Ohio prison officials have shown a consistent disregard for their own rules in carrying out executions, including failing to ensure that execution staff members attend required rehearsals and training. And they contend that one of the people who helped conduct the botched execution on Sept. 15, involving an inmate named Romell Broom, was inadequately trained and had failed to attend all the required rehearsals....
“Were prison staff appropriately trained and if prison officials followed protocol, they might have avoided the sort of cruel and unconstitutional treatment that Mr. Broom faced,” said Adele Shank, one of Mr. Broom’s lawyers, adding that she intended to try to prevent the state from going forward with her client’s execution. “The state got their chance with Mr. Broom,” Ms. Shank said. “They failed to execute him, and, in the process, they violated his constitutional right to avoid cruel and unusual punishment. So we are arguing it would be further cruelty for them to try again.”
State prison officials declined to comment because of the pending litigation. But they have said they believe the state’s new protocols are effective and not painful.
Lawyers for other death row inmates said they hoped to stop all executions in Ohio until the state’s execution protocols were brought up to constitutional standards and there were better guarantees that those protocols would be followed.
In a 2008 ruling that upheld the three-drug cocktail Kentucky used in executions, the Supreme Court rejected the claim that it posed an unconstitutional risk of a condemned inmate’s suffering acute yet undetectable pain. But Allen L. Bohnert, a death row lawyer in Ohio, said the decision by the Supreme Court that the three-drug cocktail was constitutional was based on the faulty assumption that states followed protocol, when in Ohio, he said, that was proving not to be true.
Supreme Court reverses Sixth Circuit reversal of death sentence in SpisakThe Supreme Court has released this morning an opinion Smith v. Spisak, No. 08-724 (Jan. 12, 2010) (available here), which reverses the Sixth Circuit reversal of a death sentence for a notorious murderer. Here is a snippet from Justice Breyer's opinion from a section of the opinion in which the Court was unanimous:
[I]n light of counsel’s several appeals to the jurors’ sense of humanity — he used the words “humane people” and “humane society” 10 times at various points in the argument — we cannot find that a more explicit or more elaborate appeal for mercy could have changed the result, either alone or together with the other circum-stances just discussed. Thus, we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result, and that the Ohio Supreme Court’s rejection of Spisak’s claim was not “contrary to, or . . . an unreasonable application of” Strickland. 28 U. S. C. §2254(d)(1).
Justice Stevens files a separate concurrence that concludes by spotlighting why anyone other than the most ardent death penalty abolitionist should be pleased with this ruling:
Notwithstanding these two serious constitutional errors,I agree with the Court that these errors do not entitle Spisak to relief. As JUSTICE BREYER’s discussion in Part III makes vividly clear, see ante, at 11–14, Spisak’s own conduct alienated and ostracized the jury, and his crimes were monstrous. In my judgment even the most skillful of closing arguments — even one befitting Clarence Darrow — would not have created a reasonable probability of a different outcome in this case. Similarly, in light of Spisak’s conduct before the jury and the gravity of the aggravating circumstances of the offense, the instructional error was also harmless because it did not have a substantial and injurious effect on this record, Brecht v. Abrahamson, 507 U. S. 619, 623 (1993).
SCOTUS hearing challenge to federal sex offender civil commitment statute today
This morning, the Supreme Court will hear oral argument in US v. Comstock (08-1224), a case in which the Fourth Circuit had found constitutionally problematic the federal sex offender civil commitment statute. There are effective previews of the case worth checking out at SCOTUSblog and Sex Crimes and in links from How Appealing.
I look forward to reading the Comstock transcript later today to see if most of the Justices frame this case as one about sex offenders or one about federalism. I generally think federalism concerns ought to be playing a bigger role in lots of criminal justice contexts, and I am eager to see if any of the current Justices may share that instinct.
January 11, 2010
"Goodbye to Willie Horton"The title of this post is the headline of this effective new op-ed from Margaret Colgate Love appearing in today's National Law Journal. The piece's subheading provides a sense of its themes: "Mike Huckabee effectively defended his Maurice Clemmons commutation — a good sign for overdue criminal justice reforms." Here is an excerpt from the close of the piece:
Of greater concern than Huckabee's political career are the implications of the Clemmons case for long-overdue criminal justice reforms and for the nascent revival of pardoning by a few courageous governors. The Seattle tragedy would be compounded if it were allowed to derail pragmatic proposals to reduce prison terms for nonviolent offenders, to increase the availability of drug and mental health treatment in and out of prison and to facilitate prisoner re-entry. It would be equally unfortunate if fear of forgiving sidelined pardon as a tool of law reform for another generation.
If the pardon power has not always been used responsibly, nothing good can come from refusing to use it at all. Lest predictions of a new freeze on pardoning become a self-fulfilling prophesy, we should be thinking about how to encourage our elected officials to approach their constitutional duties with a renewed sense of purpose. The governors of Illinois, Michigan and Ohio (all Democrats) are setting an example in their responsible pardoning that other chief executives would do well to emulate.
There are hopeful early signs that Maurice Clemmons will not become another Willie Horton, either for Mike Huckabee or for the rest of us. I t will indeed be cause for celebration if that spell is at last broken.
Some effective follow-up commentary comes from Pardon Power here, in a post titled "No More Horton, Please. Thank You," and from Grits for Breakfast here, in a post titled "Public tired of Willie Horton? Whither 21st century clemency?"
Medicial marijuana on the verge of becoming (barely) legal in New Jersey
This local story, which is headlined "N.J. Assembly approves bill legalizing medical marijuana," report that New Jersey is soon to become the first state in its region to authorize marijuana use for medical reasons. Looks like I picked a good time to be visiting the tri-state area and to start getting tension headaches. In all seriousness, as the local story details, the bill making its way through the New Jersey legislature puts some significant restrictions on medical marijuana usage:
The New Jersey Assembly today approved a bill legalizing medical marijuana by a vote of 48-14.
Before the vote, Assemblyman Reed Gusciora (D-Mercer), a bill sponsor, said he believes the legislation will satisfy Gov.-elect Chris Christie, who expressed concerns about the drug's availability under the proposal, and serve as a model for other states. "This will be the strictest medical marijuana law in the nation," he said. "We have a good bill that will be very strict and will not decriminalize marijuana, but will allow doctors to prescribe the best treatment for their patients."
Roseanne Scotti, director of Drug Policy Alliance New Jersey, said the measure would make the state medical marijuana law the only one in the nation to ban home growing of the plant. The original bill allowed up to six plants grown at home. Despite the compromise, she added that the more restrictive legislation is at least a step toward getting medical relief for patients.
"There will be some patients who will be able to get some relief," she said. "We think once the program's up and running and people see that there aren't problems, we'll be able to go back and get in some more of our patients."
I suppose only time will tell if New Jersey starts to really live up to its nickname as the Garden State.
Some recent related posts:
- "Medical Marijuana Muddle"
- AMA changes its position to be more open to medical marijuana
- "Attorney General Announces Formal Medical Marijuana Guidelines"
- "U.S. Support for Legalizing Marijuana Reaches New High"
- A potent pitch for decriminalizing marijuana
- Republican governor signals openness to legalizing marijuana
- "Marijuana Nation: The New War Over Weed"
- More calls for an end to the drug war and legalization of marijuana
- New poll has majority saying alcohol is more dangerous than marijuana
Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
The Eleventh Circuit today in US v. White, No. 08-16010 (11th Cir. Jan. 11, 2010) (available here), rejects a defendant's claim that Heller creates constitutional problems for the federal crime of gun possession by a domestic violence misdemeanant. Here is part of the legal fancy footwork used by the Eleventh Circuit to get to its desired outcome:
We are called upon to decide whether the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence, § 922(g)(9), warrants inclusion on Heller’s list of presumptively lawful longstanding prohibitions. As the Supreme Court recently noted, § 922(g)(9) was passed in 1996 in response to Congress’s concern that “existing felon-in-possession laws were not keeping firearms out of the hands of domestic abusers, because ‘many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.’” Hayes, 129 S. Ct. at 1087 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)). Section 922(g)(9) was designed to “‘close this dangerous loophole.’” Id. By way of example, the federal ban on felons-in-possession in § 922(g)(1) — a statute characterized in the Heller dictum as a presumptively lawful longstanding prohibition — does not distinguish between the violent and non-violent offender. Thus, both an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1). In contrast, a person convicted under § 922(g)(9) must have first acted violently toward a family member or domestic partner, a predicate demonstrated by his conviction for a misdemeanor crime of violence. Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by “longstanding” felon-in-possession laws. We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt....
We now explicitly hold that § 922(g)(9) is a presumptively lawful “longstanding prohibition on the possession of firearms.” Heller, 128 S. Ct. at 2816-17. Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White’s conviction.
Law students and the revisers of legal dictionaries should be sure to take note that, at least in the Eleventh Circuit, even a gun possession ban that was "passed relatively recently" apparently can and does come within the definition of a "longstanding prohibition."
A few related Second Amendment posts:
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
UPDATE: Eugene Volokh questions the Eleventh Circuit's efforts in White in this new post at The Volokh Conspiracy.
Third Circuit rejects internet ban as condition of supervised release for "lifelong sexual predator"
The Third Circuit has today issued an interesting opinion concerning supervised release conditions for a repeat sex offender. The ruling in US v. Heckman, No. 08-3844 (3d Cir. Jan. 11, 2010) (available here), gets started this way:
Arthur William Heckman was indicted and pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1). He was sentenced to 180 months’ imprisonment, followed by a lifetime term of supervised release. On appeal, Heckman challenges three “Special Conditions of Supervision” imposed by the District Court for the remainder of Heckman’s life: 1) an unconditional ban on Internet access; 2) a requirement that he participate in a mental health program; and 3) a restriction on any interaction with minors. While we affirm the mental health condition, we vacate the other challenged conditions and remand for resentencing consistent with this opinion.
At the close of the opinion, the Third Circuit panel describes the defendant as "lifelong sexual predator," but then summarizes the reason for its ruling this way:
When imposing special conditions of supervised release, it is limited to those conditions that “involve no greater deprivation of liberty than is reasonably necessary.” 18 U.S.C. § 3583(d)(2). Furthermore, the Court may not delegate to a probation officer the authority to “decide the nature or extent of the punishment imposed upon a probationer.” Pruden, 398 F.3d at 250. In vacating certain of the District Court’s special conditions in this case, we do not mean to question the need for release supervision responsive to Heckman’s specific offense and his lifetime of misdeeds. To do so, however, requires a balancing of considerations that affect not only this case, but those that follow.
SCOTUS summary reversal of Ninth Circuit sufficiency rulingThe Supreme Court this morning kicked off its new year with a rather lengthy per curiam summary reversal in McDaniel v. Brown, No. 08-559 (Jan. 11, 2010) (available here). The ruling starts this way:
In Jackson v. Virginia, 443 U. S. 307 (1979), we heldthat a state prisoner is entitled to habeas corpus relief if afederal judge finds that “upon the record evidence adducedat the trial no rational trier of fact could have found proofof guilt beyond a reasonable doubt.” Id., at 324. A Nevada jury convicted respondent of rape; the evidence presented included DNA evidence matching respondent’s DNA pro-file. Nevertheless, relying upon a report prepared by aDNA expert over 11 years after the trial, the Federal District Court applied the Jackson standard and grantedthe writ. A divided Court of Appeals affirmed. Brown v. Farwell, 525 F. 3d 787 (CA9 2008). We granted certiorarito consider whether those courts misapplied Jackson. Because the trial record includes both the DNA evidence and other convincing evidence of guilt, we conclude thatthey clearly did.
Off to the Big AppleAs the Supreme Court gets back in action today, so too do most law school semesters. And this Spring, I am a visiting professor at Fordham Law School in NYC. I hope to find time to blog about a few sentencing issues specific to the Big Apple, though I doubt my work in this cyber space will be nearly as different as my work in real space over the next few month.
January 10, 2010
SCOTUS starts 2010 with lots of sentencing stories pendingThe Supreme Court is back to in action Monday, and Tony Mauro has a preview of some of the biggest 2010 story lines in this piece headlined "High Court Returns to a Busy Schedule: As the new year begins, blockbuster opinions and maybe a retirement greet Supreme Court." Here are a few of the highlights, with an emphasis on criminal justice stories:
It wasn't exactly a lost fall for the U.S. Supreme Court, but, as the justices don their robes for the first oral arguments of 2010 starting today, there is a sense that the term is just now beginning to take shape. Blockbuster opinions, riveting oral arguments and a possible retirement loom in the next six months, all promising to make the Court's first three months in session fade quickly from view....
Also being argued this cycle will be a test of the legal status of sex offenders in U.S. v. Comstock, and a follow-up to last year's sleeper decision in Melendez-Diaz v. Massachusetts, which required in-person forensic testimony to satisfy the Sixth Amendment right of defendants to confront witnesses. In the confrontation case Briscoe v. Virginia, "all eyes will be on Justice [Sonia] Sotomayor," said Roy Englert Jr. of Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber. Sotomayor, a former prosecutor, has not ruled on the issue before.
Later this term the Court will hear cases applying the Second Amendment right to bear arms to state gun laws, testing the Alien Tort Statute and the law on "material support" for terrorists, and examining the rights of employee privacy for text messaging.
On March 1, the Court will hear Skilling v. U.S., the last in a closely watched trilogy of cases on the constitutionality of the "honest services" fraud law. "We've seen a spectacular failure of government prosecutions over the last year," Blatt said. "It will be quite a crushing blow to the government if the Court scales back or strikes altogether a tool that the government turns to time and time again for its prosecutions of high-profile public and private officials."...
And then there is the biggest imponderable of all -- the possible retirement of Justice John Paul Stevens by term's end in late June . He has acknowledged hiring only one clerk for next term, and he still seems the most likely to go, though sporadic speculation has justices ranging from Ruth Bader Ginsburg to Antonin Scalia eyeing the exit door.
Notably, we are still awaiting rulings (and even argument) in 9 of the top 10 sentencing cases to watch that I listed here back in October . The Alvarez forfeiture case went away as moot. Also, the case concerning prosecutorial immunity, Pottawattamie County v. McGhee, has gone away because of the parties' settlement. But recent cert grants in cases involving crack retroactivity proceedings and calculating good time credits and other big and small sentencing issues has only increased the SCOTUS sentencing stories to watch over the next six months.
Some local (and international) coverage of sexting issues
This morning I noticed via the news feed a number of notable stories on "sexting" and the ways in which criminal laws try to deal with this issues:
- From Kentucky here: "Bill targets youth who send 'sexts': Richards’ proposal would lessen penalty for sending sexually explicit messages"
- From Pennsylvania here: "York County DA backs sexting reform: With two proposals in Harrisburg, legislators are hopeful the law could be changed this year"
- From Canada here, "'Sexting' nude photos a concern among teens: Is it criminal behaviour or just today’s version of spin the bottle?"
The story from Kentucky nicely summarizes the diversity of legal and policy responses to this new "sexting" phenomenon:
Legislation regarding sexting was introduced in at least 11 states in 2009, with six passing the bills, according to the National Conference of State Legislatures. The bills were a mix of increased penalties, decreased penalties and the creation of educational programs about the dangers of sexting....
The juvenile court system in Warren County has had an increasingly difficult time in deciding how to deal with sexting cases. “(They) are struggling how to handle it because it’s such a sensitive issue,” Warren County Attorney Amy Milliken said.
Effective discussion of new (version of old) thinking about deterrenceThis morning's New York Times magazine has this effective piece by Jeff Rosen titled "Prisoners of Parole." The full piece is a must read, and here is a snippet from the start and end of the piece:
Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain. Recent work in behavioral economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is. In the course of implementing HOPE, [Hawaii state Judge Steven] Alm discovered another reason why the strategy works: people are most likely to obey the law when they’re subject to punishments they perceive as legitimate, fair and consistent, rather than arbitrary and capricious. “When the system isn’t consistent and predictable, when people are punished randomly, they think, My probation officer doesn’t like me, or, Someone’s prejudiced against me,” Alm told me, “rather than seeing that everyone who breaks a rule is treated equally, in precisely the same way.”...
[T]he judges and scholars developing new deterrence strategies are changing the way we think about parole, probation, gang violence and drug markets. But the strategies also present a rare opportunity to persuade the nation’s policymakers that the most urgent case for prison reform is not only economic but also moral and practical. Yes, it’s an outrage that the United States locks up citizens for so long with such uncertain effect; but it’s also self-defeating, because long sentences give rise to a crisis of legitimacy that can lead to more crime, not less.
A crisis of legitimacy may sound like a huge, perhaps intractable problem, but the tantalizing promise of the new deterrence thinking is that the crisis can actually be solved, practical step by practical step. The relative simplicity of the solutions, it turns out, is at the core of their radical potential.