Sentencing Law and Policy

First Circuit affirms Douglas, holding lower FSA crack minimums apply in pipeline cases

I am quite pleased (and a bit surprised) to be able to report this afternoon that a panel of the First Circuit today has unanimously affirmed US District Judge D. Brock Hornby important ruling in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (opinion here; blogged here), which had concluded that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well."  Here are a few notable passages from today's big circuit ruling in US v. Douglas, No. 10-234 (1st Cir. May 31, 2011) (available here): 

None of the Supreme Court cases squarely governs this case.  Two of those cases (invoked by Douglas), United States v. Chambers, 291 U.S. 217 (1934), and Hamm v. City of Rock Hill, 379 U.S. 306 (1964), overrode section 109 in problematic situations.  While the analytical explanation given in each case has little bearing on this one, the cases do suggest that some sense of the "fair" result, arguably helpful to Douglas in light of the reformist purpose of the FSA, sometimes plays a role in applying section 109. See Goncalves, 2011 WL 1631649, at *6-7.

Perhaps closer to this case from a factual standpoint is Marrero (relied on by the government); it held that Congress' creation of parole eligibility for serious drug offenders, overturning a prior statutory bar, would not apply retroactively to those serving sentences for crimes committed prior to the new statute.  Marrero, 417 U.S. at 663-64. Still, the conflict between an 18:1 guidelines sentence and a 100:1 mandatory minimum may seem to some more pronounced than making the availability of parole depend on whether the prisoner committed the crime before or after an amendment allowed parole.

Further, the imposition now of a minimum sentence that Congress has already condemned as too harsh makes this an unusual case.  It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.

Finally, while the rule of lenity does not apply where the statute is "clear," e.g., Boyle v. United States, 129 S. Ct. 2237, 2246 (2009), section 109 is less than clear in many of its interactions with other statutes, and that is arguably true in the present case as well.  Our principal concern here is with the "fair" or "necessary" implication, Marrero, 417 U.S. at 659 n.10; Great N. Ny. Co., 208 U.S. at 465, derived from the mismatch between the old mandatory minimums and the new guidelines and to be drawn from the congressional purpose to ameliorate the cocaine base sentences.  But the rule of lenity, applicable to penalties as well as the definition of crimes, adds a measure of further support to Douglas.

In addition to being very big news for many crack defendants in the First Circuit, this new Douglas ruling creates a crisp circuit split because the Seventh Circuit has come to a different view on this issue and has already rejected en banc review of its ruling that the new lower FSA minimums do not apply to not-yet-sentenced defendants.  Consequently, the oft-needed circuit split to foster SCOTUS review is now in place (and I would not be too surprised if the SG's office seeks cert from this Douglas ruling in light of the Seventh Circuit's contrary opinion).

Some posts on this FSA issue:

• Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
• Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
• Notable new letter to AG Eric Holder concerning application of the FSA
• Adding my two cents concerning application of the FSA to pending cases
• A few more thoughts on applying the FSA to not-yet-sentenced defendants
• Federal sentencing litigation at its absolute finest
• New USDC opinion applying new FSA law to not-yet-sentenced defendants
• WSJ notes dispute over application of FSA to pending cases
• A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases
• Second Circuit demands application of old 100-1 crack mandatories ... with laments
• Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes
• Dissenting from denial of en banc review, Judge Williams makes strongest case for applying FSA to pipeline cases

"The Right Way to Shrink Prisons"

The title of this post is the headline of this notable new New York Times op-ed authored by Shima Baradaran, who is a BYU law prof and chairwoman of the ABA's Pretrial Release Task Force.  Here are excerpts:

Last week the Supreme Court ordered California to reduce its prison population after finding that the state’s penal system was so overcrowded that it constituted cruel and unusual punishment.  What the court didn’t do, however, was provide any guidance about how to do it, giving rise to fears of violent convicts being set free and increasing crime rates.

Rather than seek major criminal justice reforms to reduce the prisoner numbers, including scrapping California’s harsh “three strikes” sentencing laws, Gov. Jerry Brown has proposed simply moving the surplus state prisoners to county jails. This does nothing to reduce California’s disproportionately high incarceration rates and could just transfer the overcrowding to local jails.

Fortunately, there is a more lasting solution to overcrowding, one that gets to the heart of exploding inmate populations nationwide: reform the rules governing pretrial detention, in part by using formulas to help judges better determine which defendants are unlikely to commit crimes while on bail.  Doing so not only would make the system more fair, but also would significantly reduce the number of people who are unnecessarily jailed and even reduce crime rates.

Every year America spends close to $66 billion to keep people behind bars. But almost 500,000 of the 2.3 million prisoners aren’t convicts; rather, they are accused individuals awaiting trial.  While some defendants are able to pay their bail and go free, most cannot, because many judges, lacking firm insight into what types of prisoners are too dangerous to release, set high bail amounts knowing the accused can’t afford them.  Though some of these defendants will eventually be found not guilty and go free, keeping them incarcerated before their trials creates a burden on the prison system.

What’s more, detention begets more detention.  Defendants detained before trial are more likely to be convicted if they go to trial, more likely to receive prison sentences rather than probation when sentenced, and, given their weak bargaining power with prosecutors while locked up, are more likely to have longer sentences....

The risk of release can be largely reduced by arming judges with more data to inform their decisions. Frank McIntyre, an economist, and I recently examined data from over 100,000 felony defendants over a 15-year period, and we found very clear trends regarding which defendants are more likely to commit crimes while free on bail.

For example, judges often detain too many older defendants (people over 30), defendants with clean records and defendants charged with fraud or public order offenses — in other words, people who are less likely to commit crimes while out on bail.  On the other hand, judges release too many young defendants with extensive records, people who are more likely to break the law while awaiting trial.... [O]ur models indicate that such guidelines could safely lead to the release of up to 25 percent more defendants — and a significant reduction in prison costs and crime rates.

Given eye-popping local, state and federal deficits, it’s unlikely that California will be the only state to face the tough choices involved in reducing its prison population.  With the right data on pretrial defendants, though, judges can help make that task a lot easier.

A SCOTUS day for criminal procedure, lots of federal sentencing opinions to come in June

Thanks to the live-blogging by the folks at SCOTUSblog, I can provide this brief summary of the Supreme Court's criminal justice work this morning:

[Cert is granted in] Perry v. New Hampshire [which] presents a question involving identification of criminal suspects.  Do the Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as some courts have held, or only when teh suggestive circumstances were orchestrated by the police?

Ashcroft v. al-Kidd is [decided; the] opinion is by Justice Scalia. The decision of the Ninth Circuit is reversed; the vote is eight to zero with Justice Kagan recused.  The Court holds that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstititional on the basis of allegations that the arresting authority had an improper motive.  In al-Kidd [available here] there are three concurring opinions. 

I am a bit surprised and a bit disappointed that we did not get any sentencing opinions this morning from the Justices.  This reality in turn means that June is to now sure to be a busy SCOTUS sentencing month.  Here is my list of sentencing cases still pending (with links to SCOTUSblog page):

• Sykes v. United States (argued in January, application of ACCA)
• Freeman v. United States (argued in February, sentencing modification authority)
• DePierre v. United States (argued in February, definition of cocaine base)
• Tapia v. United States (argued in April, rehabilitation concerns as basis for imprisonment term)
• McNeill v. United States (argued in April, application of ACCA)

I suspect Sykes and McNeill will come down together, which itself perhaps helps explain why Sykes has not yet been decided nearly five months after it was argued.  Similarly, Freeman and DePierre may come as a pair even though they involve distinct statutory issues.  And I suspect we will not see Tapia, which likely could be the most consequential of this pending bunch because it concerns application of 3553(a)(2) factors at sentencing, until the tail end of the Term in late June.

An additional note about the SCOTUS docket:  Add all the pending sentencing cases to the already decided Abbott and Pepper and Plata cases and we discover that roughly one-tenth of the decisions in argued cases in the October 2010 Term deal with sentencing issues and that this sizeable portion of the SCOTUS OT2010 docket involves mostly "technical" statutory federal sentencing issues and does not involve the death penalty in any way.  In my view, these interesting new docket realities probably reflect the impact and input of Justices Alito and Sotomayor, both of whom have a notable professional history with, and an obvious continued interest in, statutory federal sentencing issues.

James Q. Wilson's interesting take on what is behind falling crime rates: culture

The Wall Street Journal over the weekend published this great essay by renown social scientist James Q. Wilson under the headline "Hard Times, Fewer Crimes." The piece provides an extended and very interesting set of explanations for the wonderful modern declines in crime rates in the United States. The piece demands a full read, and here are just a few parts of Wilson's assessments:

[W]e have little reason to ascribe the recent crime decline to jobs, the labor market or consumer sentiment.  The question remains: Why is the crime rate falling?

One obvious answer is that many more people are in prison than in the past.  Experts differ on the size of the effect, but I think that William Spelman and Steven Levitt have it about right in believing that greater incarceration can explain about one-quarter or more of the crime decline.  Yes, many thoughtful observers think that we put too many offenders in prison for too long. For some criminals, such as low-level drug dealers and former inmates returned to prison for parole violations, that may be so. But it's true nevertheless that when prisoners are kept off the street, they can attack only one another, not you or your family.

Imprisonment's crime-reduction effect helps to explain why the burglary, car-theft and robbery rates are lower in the U.S. than in England.  The difference results not from the willingness to send convicted offenders to prison, which is about the same in both countries, but in how long America keeps them behind bars.  For the same offense, you will spend more time in prison here than in England. Still, prison can't be the sole reason for the recent crime drop in this country: Canada has seen roughly the same decline in crime, but its imprisonment rate has been relatively flat for at least two decades.

Another possible reason for reduced crime is that potential victims may have become better at protecting themselves by equipping their homes with burglar alarms, putting extra locks on their cars and moving into safer buildings or even safer neighborhoods.  We have only the faintest idea, however, about how common these trends are or what effects on crime they may have.

Policing has become more disciplined over the last two decades; these days, it tends to be driven by the desire to reduce crime, rather than simply to maximize arrests, and that shift has reduced crime rates.  One of the most important innovations is what has been called hot-spot policing. The great majority of crimes tend to occur in the same places. Put active police resources in those areas instead of telling officers to drive around waiting for 911 calls, and you can bring down crime....

There may also be a medical reason for the decline in crime.  For decades, doctors have known that children with lots of lead in their blood are much more likely to be aggressive, violent and delinquent.... Tests have shown that the amount of lead in Americans' blood fell by four-fifths between 1975 and 1991.  A 2007 study by the economist Jessica Wolpaw Reyes contended that the reduction in gasoline lead produced more than half of the decline in violent crime during the 1990s in the U.S. and might bring about greater declines in the future.  Another economist, Rick Nevin, has made the same argument for other nations.

Another shift that has probably helped to bring down crime is the decrease in heavy cocaine use in many states....

Blacks still constitute the core of America's crime problem.  But the African-American crime rate, too, has been falling, probably because of the same non-economic factors behind falling crime in general: imprisonment, policing, environmental changes and less cocaine abuse....

John Donohue and Steven Levitt have advanced an additional explanation for the reduction in black crime: the legalization of abortion, which resulted in black children's never being born into circumstances that would have made them likelier to become criminals.  I have ignored that explanation because it remains a strongly contested finding, challenged by two economists at the Federal Reserve Bank of Boston and by various academics.

At the deepest level, many of these shifts, taken together, suggest that crime in the United States is falling — even through the greatest economic downturn since the Great Depression — because of a big improvement in the culture.  The cultural argument may strike some as vague, but writers have relied on it in the past to explain both the Great Depression's fall in crime and the explosion of crime during the sixties. In the first period, on this view, people took self-control seriously; in the second, self-expression — at society's cost — became more prevalent.  It is a plausible case.

Culture creates a problem for social scientists like me, however.  We do not know how to study it in a way that produces hard numbers and testable theories.  Culture is the realm of novelists and biographers, not of data-driven social scientists.  But we can take some comfort, perhaps, in reflecting that identifying the likely causes of the crime decline is even more important than precisely measuring it.

A few recent related posts on how to account for still-dropping crime rates in the US:

• Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
• Making the full-throated case for the notion that more Internet = less crime
• Another account of the crime rate's changing realities: blame the baby boomers

Rubashkin appeal raising more questions about high-profile federal fraud case

Regul;ar readers likely recall some aspects of the high-profile federal case, detailed in this prior post, in which last summer a federal district court in Iowa decided to give Sholom Rubashkin a 27-year federal prison sentence for his leadership in a financial fraud involving his kosher meat-packing plant.  As explained in this post, I helped put together an amicus brief on sentencing issues as the case comes before the Eighth Circuit, and thus I am not a truly non-partisan observer of these proceedings.  Nevertheless, anyone interested in this case or more generally in the administration of the federal criminal justice system will want to check out this new article from the Des Moines Register headlined "New questions surface about impartiality of federal judge." Here are excerpts:

The court schedule of a federal judge who faces allegations of bias in the financial fraud trial of Sholom Rubashkin has raised fresh questions about judicial impartiality.  Defense attorneys argue that Rubashkin, who is serving a 27-year sentence, deserves a new trial because U.S. District Chief Judge Linda Reade failed to disclose all of the meetings she held with prosecutors before a 2008 immigration raid on Agriprocessors, a kosher meatpacking plant in northeast Iowa where Rubashkin served as an executive.

Oral arguments are scheduled for the afternoon of June 15 at the 8th U.S. Circuit Court of Appeals in St. Louis.  That morning, Reade -- a judge in the Northern District of Iowa temporarily filling in on the appeals court -- will hear cases with two of the three judges who will later listen to arguments in Rubashkin's appeal.  Reade is also scheduled to sit with the same judges a day earlier.

The scheduling is unfortunate because the subject of the appeal is judicial impartiality, said Steven Lubet, a law professor at Northwestern University.  However, he said he doesn't expect it to disqualify any of the judges from hearing the case. "I would call it awkward, but I don't think there's anything more to say about it," he said....

Many also questioned the 27-year sentence she handed down, two years more than the prosecution requested.  Before sentencing, six former U.S. attorneys general signed a letter expressing their concern about the sentence sought by prosecutors.  The American Civil Liberties Union of Iowa, the Washington Legal Foundation in Washington, D.C., and the National Association of Criminal Defense Lawyers filed legal briefs in support of Rubashkin's appeal.

Forty-five members of Congress have written to U.S. Attorney General Eric Holder to ask questions about the handling of the case.  Last month, three members of the House of Representatives asked Holder about the case when he testified before the judiciary committee.

Reade had previously acknowledged that she worked with the prosecution on logistics before the raid to ensure attorneys and interpreters would be available for the 389 workers arrested on immigration charges, but offered no further details.  The defense argued Reade failed to disclose that she began meeting with law enforcement officials more than six months before the raid, and that she discussed topics far beyond "logistical cooperation."...

Lubet, the law professor, said he can't imagine why Reade decided to sit on the trial.  By doing so, she became a judge who made a point of assisting the prosecution in at least the initial stages of the case, he said.  "Why not have a judge who had nothing to do with the prosecution, instead of one who had devoted significant time and energy into facilitating it?" he said.

Related prior posts on the Rubashkin case:

• "More Former AGs Question Sentence Sought in Bank Fraud Case"
• Can and should religious considerations influence bail decisions?
• Federal sentencing hearing starting in high-profile Rubashkin white-collar case
• Federal prosecutors now seeking 25-year prison term for Rubashkin
• Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
• An appellate amicus brief in the Rubashkin case on sentencing issues 

"Chinese Court Orders Death Penalty for Food Safety Crimes"

The title of this post is the headline of this international news piece, which gets started this way:

China's top court issued a notice on Friday calling for the death penalty for food safety crimes that lead to fatalities.  It comes amid widespread public anger over safety scandals in recent months.

Contaminated pork, toxic milk powder, dumplings containing aluminum, watermelons sprayed with dangerous chemicals, and other tainted foods have been reported recently — highlighting the Chinese regime's difficulty managing the country's poorly regulated food industry.

Could SCOTUS Plata ruling grease path to reform of California's tough 3-strikes law?

The question in the title of this post is inspired by this new local piece headlined "Opponents of three-strikes law see hope in prison ruling." Here are excerpts:

The U.S. Supreme Court’s ruling last week requiring California to cut its prison population by more than 33,000 inmates within two years could boost efforts to modify or repeal the state’s three-strikes law, which some say keeps nonviolent offenders in prison for far too long. The law, approved by voters and the Legislature in 1994, significantly increased prison terms for repeat offenders with previous convictions for violent or serious felonies as defined by state law, putting some behind bars for life.

Opponents of the three-strikes law have argued for years that it is overly harsh and keeps people in prison decades after they stop being dangerous — because of age, medical problems or both — exacerbating the state’s prison overcrowding problem.

A main argument against the law has been that a person with two strikes can be sentenced to 25 years to life for a nonviolent offense, such as petty theft. “We over incarcerate in California, and this U.S. Supreme Court decision is an impetus to change that,” said Erwin Chemerinsky, founding dean at the University of California Irvine Law School....

Supporters of the three-strikes law, including San Diego County District Attorney Bonnie Dumanis, insist it’s a good law, if applied correctly. They note that judges and prosecutors now have the discretion to decide when it should be applied, which wasn’t the case immediately after the law was approved. “Most district attorneys aren’t sending people to prison for 25 years to life on a nonviolent offense,” Dumanis said.

She acknowledges that the three-strikes law has affected prison overcrowding but it wasn’t a major factor. A bigger contributor, she said, is California’s 70 percent recidivism rate. The people convicted under the three-strikes law “weren’t the large numbers that everybody was anticipating,” Dumanis said.

According to a report by the state Legislative Analyst’s Office, roughly 41,000 inmates — about 25 percent of the total prison population — were serving time in prison under the three-strikes law as of Dec. 31. Of those, more than 32,000 were second-strikers and about 8,700 were third-strikers.

The report says that although the population of inmates incarcerated under the three-strikes law grew quickly in the first years it existed, the rate of growth has slowed significantly over the past decade as second-strikers finished their prison terms and were released on parole....

“The reality is that California has to release some inmates,” [Chemerinsky] said, noting that it would be wise to look at nonviolent second- and third-strikers as candidates. “We are paying ($40,000) to $50,000 a year on average to incarcerate people,” he said. “When they get older, the cost increases dramatically.”

Members of Families to Amend California’s Three-Strikes have talked about getting a measure on the 2012 ballot that would modify the law. But such an effort requires money and it’s not clear where that might come from.

Alan Mobley, an assistant professor of public affairs and criminal justice at San Diego State University, said the U.S. Supreme Court’s ruling, and the attention it has generated, could help. “It provides a good argument for activists to approach funders and say the tide is on our side,” Mobley said.

Still, any measure to repeal or revise the three-strikes law is likely to be met with resistance. “No elected official wants to touch it,” said Paul Pfingst, who was the county’s district attorney from 1994 to 2002 and is now a criminal defense lawyer....

In 2004, California voters rejected an initiative that would have required an offenders’ third strike to be a violent or serious felony and eliminate second-strike sentences for most offenders. Only 47 percent of the state’s voters supported the measure.

"Conservatives and criminal justice: With a record of being tough on crime, the political right can afford to start being clever about it"

The title of this post comes from the headline of this interesting recent piece from The Economist.  Here are excerpts:

The word commonly used to describe a politician who publicly announces he wants to send fewer criminals to prison is “loser”.  But back in February there was David Williams, president of Kentucky’s Senate, speaking in favour of a bill that would do just that. The bill in question would steer non-violent offenders towards drug treatment rather than jail. It is projected to save $422m over the next decade, and will invest about half those savings in improving the state’s treatment, parole and probation programmes.  Mr Williams, who believes Kentucky “incarcerates too many people at too great a cost,” praised the bill for recognising “the possibility for forgiveness and redemption and change in someone’s life”.  It passed the Republican-controlled Senate 38-0, and on May 17th Mr Williams went on to win the Republican nomination for governor.

Mr Williams and his Republican colleagues join the swelling ranks of conservatives who have taken up the cause of sentencing and prison reform.  In February Nathan Deal, Georgia’s Republican governor, announced a bill to create a council to recommend changes in how his state sentences criminals.  On May 11th Oklahoma’s Republican governor, Mary Fallin, signed a law expanding alternatives to jail for non-violent offenders.  This follows similar measures in South Carolina and Texas, both of them conservative states with Republican governors.

Driving these reforms is a simple factor: cost. Over the past two decades, crime rates have fallen but prison populations have risen. More people have been jailed for more crimes — particularly non-violent drug-related crimes — and kept there longer....

Texas began tackling these problems in the last decade.  In 2003 it started mandating probation rather than prison for first-time offenders caught with less than a gram of hard drugs.  Two years later it gave the probation board more money to improve supervision and treatment programmes.  In 2007, faced with predictions that it would need over 17,000 new prison beds by 2012, requiring $1.13 billion to build and $1.5 billion to operate, Texas allocated $241m to fund treatment programmes.  Since 2003 crime of many kinds has declined in Texas.  Between 2007 and 2008, Texas’s incarceration rate fell by 4.5%, while nationally the rate rose slightly.  Both juvenile crime and the number of juveniles in state institutions have declined.

These reforms saved money.  In slowing recidivism, they turned prisoners from tax burdens into taxpaying citizens.  And they acknowledged something that tough-on-crime rhetoric has too long ignored: almost everyone in prison will eventually return to society. Better they return as good neighbours and productive citizens.

The fact that the reforms that produced these encouraging figures came from hang-em-high Texas, and not, say, hippie Vermont, has given them political as well as policy credibility.....  Just as Richard Nixon could open relations with China without being thought soft on communism, so conservatives can push for sentencing reform without being considered soft on crime.

Some recent and older related posts on the modern politics of sentencing issues:

• Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
• Will Newt Gingrich's statements about a "broken" criminal justice system get attention as he launches a run for President?
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Right on Crime: The Conservative Case for Reform" officially launches
• When and how will state GOP leaders start cutting expensive criminal justice programming?
• Examining the politics of crime and punishment in modern gubernatorial settings
• Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
• What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
• Will we invest in classrooms or cells in these tough times?

Lots more talk about Plata and its consequences a week later

It has now been about week since the Supreme Court's major California prison ruling in Plata (basics here), and there justifiably continues to be a lot of important and interesting post-Plata commentary in the MSM and in new media.  This op-ed piece in the Los Angeles Times, headlined "Don't fear the prison decision: California won't have to free dangerous criminals to meet the Supreme Court's mandate," highlights why the ruling is not cataclysmic for California. Here is how the op-ed begins:

In his dissent from the majority in the recent Supreme Court decision requiring California to reduce its prison population by 33,000 inmates, Justice Antonin Scalia warned that "terrible things are sure to happen as a consequence of this outrageous order." But Californians shouldn't panic. The state won't have to throw open the prison doors to meet the court's order if it embraces very modest sentencing reforms.

Prudent ideas for reducing the prison population have been advocated by various task forces, including ones led by former Gov. George Deukmejian, by former Atty. Gen. John Van de Kamp and by a national panel of corrections experts convened by the Legislature. The California Department of Corrections has already submitted a plan to the federal courts detailing how it expects to make the necessary prison population reductions.

Even without the Supreme Court decision, about 250,000 inmates who have served their time will be released from California prisons over the next two years. In addition, since the late 1990s, jails in 22 counties have been releasing nearly 100,000 inmates a year to meet court-ordered caps on the number of people their facilities can accommodate.

Despite all those releases, crime rates are at the lowest levels since Dwight D. Eisenhower was president. Serious crime and arrests have been dropping in California and across the nation for years. While criminologists do not have an easy explanation for the huge crime decline, the evidence points to more effective policing, improved prevention programs for at-risk families and an influx of immigrants, who traditionally have very low crime rates.

Not surprisingly, not every agrees with this sober assessment.  The folks at Crime & Consequences, for example, have a more pessimistic assessment of Plata as demonstrated in a pair of recent posts titled "Lies, Damned Lies, and Lazy Falsehoods" and "The Leftist Arsenal: Lying and Smearing."  And, for a still different set of perspectives, there are a bunch of Plata posts at  California Corrections Crisis and Prison Law Blog worth checking out.

Prior posts on the Plata ruling:

• In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order
• Some big-time rhetoric in big-time SCOTUS Plata prison ruling
• Has Justice Scalia started drinking Justice Breyer's "Active Liberty" Kool-Aid? Really?!?!
• Early press coverage and reactions to SCOTUS California prison ruling in Plata
• Lots and lots of interesting commentary on SCOTUS Plata prison ruling
• A simple take on Plata: Congress asked for this in the PLRA
• Is California so dysfunctional that doom and gloom is the right reaction to Plata?

"Eventually, science will kill capital punishment"

The title of this post is the headline of this new notable commentary in the Arizona Republic, which discusses the impact advances in neuroscience and genetics could have on modern criminal justice systems.  Here are excerpts:

We don't know if the recently executed child rapist and killer Donald Beaty had the genetic defect that scientists call the "murder gene." I'm pretty sure we didn't want to know. We wanted him dead.

Just as we wanted the murderer Jeffrey Landrigan executed last October, although Landrigan's attorneys claimed he might have possessed the gene, which is believed to create a predisposition to violence when linked with other factors. But the U.S. Supreme Court decided that Landrigan had waived his right to raise that issue, and there was no reprieve coming from the governor.

"In this area the science appears to be going one way and the politics another," said Gary E. Marchant, executive director of the Center for Law, Science & Innovations at Arizona State University's Sandra Day O'Connor College of Law. Marchant has a law degree from Harvard and a Ph.D. in genetics from the University of British Columbia.

He recently hosted a conference at ASU that dealt with advances in neuroscience and genetics and how they help to explain criminal behavior. "Right now, politics is winning out in this discussion," Marchant said. "But at some point it will become impossible to deny the science. There will be so much evidence."

For generations, capital punishment has been a moral, economic and political issue. In the not-to-distant future, science will kill the death penalty. "There is a ton of new science coming forward in both genetics and neuroscience that describe the brain in a way that leads to a predisposition to violent behavior," Marchant said.

The goal in studying this is to find treatments for those affected, particularly if the conditions can be diagnosed when the person is young. "At our conference there were about 350 people," Marchant said. "There were discussions about what position the criminal-justice system should take. It raises some profound questions that people have differing opinions about, ranging from ignore the science altogether to wanting the information used as a mitigating factor, if not for culpability, then in sentencing."

The science already is beginning to make its way into criminal trials. Marchant pointed to a case in Tennessee in which genetic evidence led to a manslaughter rather than murder conviction. The science won't prevent us from punishing killers, only from executing them. We'd like to believe that criminal behavior has nothing to do with genetics. But in some cases it does. And right now we don't know which ones.

"Defense attorneys are using it right now," Marchant said. "But imagine if a kid gets into trouble and you did testing and found some of these conditions existed within his brain. What then?"...

The value of advances in neuroscience and genetics isn't in preventing people like Harding from facing the death penalty, but in identifying his problem early, treating him and saving the men, women and children who might otherwise become his victims.

I am not sure I concur with the notion that advances in neuroscience and genetics will prove always to be mitigating factors rather than aggravating factors.  But I am sure that science will always be changing, if not necessarily killing, how we look at serious crimes and serious punishments.

Oregon Supreme Court clarifies importance of victim rights at sentencing

As reported in this article from The Oregonian, headlined "Oregon Supreme Court: Victims have right to see sentencing; Beaverton man must be resentenced," the top court in the Beaver state yesterday handed down a very interesting sentencing procedure decision.  Here is the start of the press report:

The Oregon Supreme Court said today that a crime victim’s right to be present at court hearings is so crucial that the sentence of a Beaverton defendant must be thrown out and a judge must resentence him so his victim can be present.

The ruling offers a stern reminder to judges, prosecutors and defense attorneys that they can’t resolve criminal cases while victims are left in the dark — if victims have told prosecutors they want to be kept up to date on the process.  The ruling affects victims of all types of crime — including rapes, assaults, burglaries, car prowls and identity thefts.

“It is a significant victory for victims of crime here in Oregon to make sure their voices are heard,” said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland and a clinical professor at Lewis & Clark Law School.  Garvin said the decision also is gaining national attention because the justices clearly stated what should happen once the victim’s right has been violated.

The right to be told of crucial criminal proceedings — and to speak, if victims wish — was guaranteed by a 1999 voter-approved amendment to the Oregon Constitution. Voters clarified a remedy if those rights are violated in 2008, and lawmakers wrote that into state statute in 2009.  The high court’s ruling is its first on this issue.

This notable ruling is available at this link, and here is key passage from the Court's discussion of the victim's right to the remedy of resentencing after her rights were not respected in the first sentencing of the defendant:

The principles outlined in [US Supreme Court case] DiFrancesco resolve this case.  The victim sought the remedy of resentencing, so the issue is whether double jeopardy barred the trial court from granting that remedy.  The only double jeopardy protection possibly implicated by requiring that defendant be resentenced is the protection "against multiple punishments for the same offense."  Id. at 129 (internal quotation marks and citation omitted).  However, the reasoning of DiFrancesco demonstrates that the prohibition against multiple punishments would not be violated by resentencing in this case.  The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause.  "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137.

The victim was entitled to a remedy by due course of law under [the Oregon Constitution's] Article I, section 42(3)(a).  Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause.  Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533.  The trial court erred in not granting the victim the relief that she sought.

Pennsylvania Supreme Court declares local sex offender residency restrictions preempted by state law

As reported in this Philadelphia Inquirer article, which is headlined "Pa. high court strikes down a county's Megan's Law residency restrictions," the top court in the Keystone State has ruled that local sex offender residency restrictions are preempted by state law.  Here is the start of the press report:

In a ruling with statewide ramifications, the Pennsylvania Supreme Court on Thursday invalidated an Allegheny County law that restricted where convicted sex offenders could live, saying the ordinance would banish offenders to "localized penal colonies" with little access to jobs, support, or even their families.

The seven justices concluded that the Western Pennsylvania county law was at odds with the state's "Megan's Law," which requires convicted sex offenders across the state to report their residency so that nearby residents can be notified, but does not restrict where offenders can live.

Allegheny County's ordinance, enacted in 2007, went further, prohibiting such offenders from living within 2,500 feet of any child-care facility, community center, public park or recreation center, or school.

While the precedent-setting decision applied specifically to Allegheny County, an estimated 150 municipalities, mostly near Pittsburgh, but also in Bucks and Delaware Counties, have enacted similar laws as public-safety measures in the last few years.  As of last year, there were more than 10,000 registered sex offenders in Pennsylvania.

I cannot yet seem to find a link to this notable ruling, but will provide one when it becomes available.

UPDATE:  A helpful reader forwarded this link to the opinion from the PA Supreme Court.

"China used prisoners in lucrative internet gaming work"

The title of this post is the headline of this recent report from the Guardian, which starts this way:

As a prisoner at the Jixi labour camp, Liu Dali would slog through tough days breaking rocks and digging trenches in the open cast coalmines of north-east China. By night, he would slay demons, battle goblins and cast spells.

Liu says he was one of scores of prisoners forced to play online games to build up credits that prison guards would then trade for real money. The 54-year-old, a former prison guard who was jailed for three years in 2004 for "illegally petitioning" the central government about corruption in his hometown, reckons the operation was even more lucrative than the physical labour that prisoners were also forced to do.

"Prison bosses made more money forcing inmates to play games than they do forcing people to do manual labour," Liu told the Guardian. "There were 300 prisoners forced to play games. We worked 12-hour shifts in the camp. I heard them say they could earn 5,000-6,000rmb [£470-570] a day. We didn't see any of the money. The computers were never turned off."

Memories from his detention at Jixi re-education-through-labour camp in Heilongjiang province from 2004 still haunt Liu. As well as backbreaking mining toil, he carved chopsticks and toothpicks out of planks of wood until his hands were raw and assembled car seat covers that the prison exported to South Korea and Japan. He was also made to memorise communist literature to pay off his debt to society.

But it was the forced online gaming that was the most surreal part of his imprisonment. The hard slog may have been virtual, but the punishment for falling behind was real. "If I couldn't complete my work quota, they would punish me physically. They would make me stand with my hands raised in the air and after I returned to my dormitory they would beat me with plastic pipes. We kept playing until we could barely see things," he said.

It is known as "gold farming", the practice of building up credits and online value through the monotonous repetition of basic tasks in online games such as World of Warcraft. The trade in virtual assets is very real, and outside the control of the games' makers. Millions of gamers around the world are prepared to pay real money for such online credits, which they can use to progress in the online games.

Especially because it is late Friday before a holiday weekend, readers are welcome (and even encouraged) to respond to this post with jokes about sentencing prisoners to play Angry Birds or about what kinds of required on-line activities might be deemed cruel and unusual punishment.

Might the Framers have viewed LWOP more like torture than like a death sentence?

The question in the title of this post is prompted by a passage in the majority opinion from the Wisconsin Supreme Court in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) (available here; blogged here), which rejected a constitutional challenge to the imposition of an LWOP sentence for defendant who committed a horrendous murder as a 14-year-old.  Here is the passage:

At common law, children ages seven and older were subjected to the same arrest, trial, and punishment as adult offenders, In re Gault, 387 U.S. 1, 16 (1967), which means that, theoretically, even the death penalty could have been imposed for a crime committed by a child as young as seven years old, see Stanford v. Kentucky, 492 U.S. 361, 368 (1989), overruled by Roper, 543 U.S. at 574; see also Thompson, 487 U.S. at 828 n.27 (reporting that a 10-yearold child was hanged in Louisiana in 1855 and another in Arkansas in 1885). Notably, once a child turned 14 years old, he or she no longer benefitted from the presumption of incapacity to commit a capital, or any other, felony. Stanford, 492 U.S. at 368 (citing 4 William Blackstone, Commentaries *23- 24); Thompson, 487 U.S. at 864 (Scalia, J., dissenting)

Given the common law understanding that 14-year-olds were not immune from capital punishment, it is clear that Ninham cannot establish that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted.

I highlight this passage because I commonly hear this claim that because the Framing Era accepted the death penalty for young criminals, then the Framers must not have viewed an LWOP term as violating the Eighth Amendment's prohibition on cruel and unusual punishment.  But, I am not sure this logic is air-tight, because (1) it seems likely the Framers expected and wanted the Eighth Amendment to prohibit torture as a form of punishment, and (2) is seems plausible that the Framers could have viewed an LWOP sentence to be more like torture than death as a punishment.

I understand that in modern times it is common (and perhaps even logical) to view an LWOP sentence as a categorically less severe punishment than the death penalty.  But in the Framing era, when lots of folks died young and when nobody was subject to imprisonment for extremely long periods, I am not sure everyone would have embraced this modern view of relative punishment severity.  After all, Patrick Henry famously said "Give me liberty or give me death!" and the discouraging prospect of lives subject to a sovereign's dominion fueled the American Revolution.  Against this backdrop, I do not think it far-fetched to wonder if some (many?) Framing era thinkers would have viewed an LWOP sentence eliminating all personal liberty and any future chance of personal liberty for half a century or longer to be more akin to torture than to a death sentence.

Perhaps someone knows of historical sources for exploring with rigor whether and how the Framers viewed punishments involving extreme liberty deprivations.  But unless and until I see evidence that the Framers embraced the modern perspective that an LWOP sentence is categorically less severe than the death penalty, I will continue to be troubled when courts and advocates assert that LWOP sentences are obviously constitutional for certain persons because the Framers authorized the death penlaty for these persons.

Another account of the crime rate's changing realities: blame the baby boomers

A great topic of debate this week on the blog has been over how to best account for modern decline in crime rates (see posts and comments here and here).  Now, this news article out of California, headlined "People age 40 and up buck tradition, commit more crime while felony juvenile arrests drop," prompts me now to think we can and should blame crime spikes in the 1980s and 1990s and crime declines thereafter to the baby boom generation entering and then leaving the peak crime ages. It also suggests that some baby boomers are bucking the usually tendency for old folks to age out of crime. Here is how this news piece starts and ends:

Researchers studying the effects of California's three-strikes law have found a puzzling trend: older adults are being arrested for felonies in droves, while felony arrests of juveniles are dropping.

The trend can be attributed to an "enormous increase in drug abuse" by an aging population, according to Mike Males of the San Francisco-based Center on Juvenile and Criminal Justice, during a three-strikes symposium at the University of Southern California earlier this month.  "We now see a dramatic reversal in the aging of the crime population," Males said. "It baffles me."

Males' finding was part of a report he released in April titled "Striking Out: California's 'Three Strikes and You're Out' Law Has Not Reduced Violent Crime."  The report fuels the debate over California's three-strikes law, which passed in 1994 and requires life sentences for third-strike felony convictions....

Males' report [which can be accessed here] recommends that the law be amended to require that the final strike be a violent crime and found that while it was projected to cost taxpayers billions of dollars, had negligible effects on violent crime levels.

At the same time, the age of offenders arrested for felonies has been steadily rising.  The number of people over age 40 going to prison has more than quadrupled over the last three decades, according to the study. In 1980, about 24,200 felony arrests were made of the 40-plus age group, with that number growing to 110,700 in 2009.

Meanwhile, the number of arrests of juveniles -- a demographic that experiences the least strike sentencing -- has been on the decline, from 97,000 to 58,600 in the same period.

The average age of a third-striker is 43 and an older population is increasingly being incarcerated, Males said. The development is a peculiar one, according to researchers. "In criminology, we assume that people slow down and commit fewer crimes," said Barry Krisberg, Research and Policy Director at UC Berkeley's Earl Warren Institute on Law. "We may need to revisit that and look at that again."

Juveniles tend to commit violent crimes at a higher rate than the older population, noted Harvey Sherman, deputy public defender of the L.A. County Public Defender's Office. With the nation's overall rate of violent crime at a 50-year low, fewer juveniles are going to jail, Sherman said.  At the same time, he expects to see the aging felons trend continue.

"They came back from Vietnam after being shot and they used morphine and heroin," Sherman said.  "Part of the addiction and the length of the addiction that some of these people have on these really nasty drugs means we're going to have some older people who just can't get off the dope."  The aging inmate population combined with the three-strikes law is foreboding for a cash-strapped state.

Of course, the age of those subject to California's three-strikes law will be older because it takes some time to get the first two strikes and get released to commit yet another strike.  In addition, there is reason to suspect and hope that the decline in juve crime is itself a product of the tough three-strikes law because perhaps more folks are fearful of even getting a first strike.  And the notion that these trends are all a product of a generation's time in Vietnam is really a bit silly (as is my basic suggestion that we can and should just blame the baby boomers for crime).

There is, however, a broader point that merits emphasis in this context: the nature, age and behaviors of criminals and would-be criminals is always evolving.  As I have said before and will say again, because human experience and behavior is always so dynamic, any single or simple assessment of the realities of crime and punishment is likely to be incomplete and may perhaps distort our ability to continue to more sentencing law and policy forward efficiently and effectively.

Recent related posts:

• Wonderfully puzzling violent crime rate continue to decline (despite NFL lockout)
• Making the full-throated case for the notion that more Internet = less crime

Does the ages of federal judges impact sentencing jurisprudence and decision-making?

The question in the title of this post is prompted by this new Slate commentaryheadlined "Not Getting Any Younger: President Obama's penchant for older judges scuttled Goodwin Liu." Here is how the interesting piece starts:

Goodwin Liu is out. Nominated to the 9th Circuit Court of Appeals more than a year ago, Liu was filibustered by Senate Republicans.  This week, he asked President Obama to withdraw his judicial nomination.  Critics in progressive circles have charged Republicans with hypocrisy over use of the filibuster.  But Liu's nomination was always vulnerable to obstruction, and not only because of his political or judicial outlook. His age was a crucial factor. Had Liu been 59 years old, instead of 39, he would not have been filibustered.

Consider that Liu was the President's youngest judicial nominee — younger than the next oldest nominee by nearly four years. And given his relative youth, he would have been an obvious candidate for elevation to the Supreme Court. Even if he weren't elevated, he might well have spent the next 30 to 40 years serving on the 9th Circuit.

Aside from Liu, none of President Obama's nominees to the federal appellate courts are under 40. Only two are under 45.  On average, Obama's nominees are more than 54 years old, which is four years older than the nominees under Presidents Ronald Reagan, George H.W. Bush, and George W. Bush.  But the averages tell only part of the story. Consider these statistics: Of the 50 youngest appellate judges nominated since the Reagan administration, 41 were tapped by Republicans.  Of the 30 youngest judges, 28 are Republican nominees; and the 18 youngest are all Republican nominees.  By contrast, if you take the 50 oldest judges nominated since Reagan, nearly half of them were nominated by Democrats.  For decades now, and as a matter of strategy, Republicans have been nominating younger judges.  The real question is why Democrats have been doing just the opposite.

What Democrats seem to have missed is that judicial age matters.  The list of the 50 youngest appellate judges appointed since the Reagan presidency — all nominated under the age of 45 — reads like a Who's Who of most accomplished federal judges of our time: Alex Kozinski (nominated at age 34), Frank Easterbrook (36), J. Harvie Wilkinson (39), Samuel Alito (39), Douglas Ginsburg (40), Clarence Thomas (41), and Richard Posner (42), to name just a few.  That list also includes rising conservative stars appointed by George W. Bush, including Neil Gorsuch (nominated at age 38), Steven Colloton (40), Jennifer Elrod (40), Brett Kavanaugh (41), Raymond Kethledge (41), and Jeffrey Sutton (42).  By this point in his first term, President Bush had nominated at least a half dozen judges who were 42 years old or younger. But President Obama has nominated just one: Goodwin Liu.

Especially while I am still relatively young (I have a few more months until I will age out of the group of persons "42 years old or younger"), I can see the virtue of this call for younger nominees.  And yet, especially when I take off my relatively-young-guy hat and put on my sentencing-observer hat, I am not sure youth is always a virtue when it comes to the development of sound sentencing jurisprudence and decision-making.  I thus am interested to hear if commentors have a view as to whether the wisdom of age or the freshness of youth seems to be an important attribute in judicial sentencing decision-making.

Interesting Brookings report on US crime rates in various regions

As detailed in this press release, the Brookings Institution has released an interesting report about declining crime rates in the US.  Here are the particulars:

The new report, City and Suburban Crime Trends in Metropolitan America, finds that factors like immigration, ethnicity, and poverty, when combined, do not play the roles in encouraging crime many might believe they do.

“Many people know the rates of violent and property crimes have declined significantly in recent years,” said Steven Raphael, Professor of Public Policy at the University of California, Berkeley and one of the report authors.  “What may come as a surprise is that some of the social characteristics we have associated with crime in the past are not associated with criminal behavior as they were once upon a time.  Crime rates have dropped everywhere, but they have declined the most in the nation’s inner cities that are often poorer, more urbanized, and more minority than their suburban counterparts.” ...

Among the report’s key findings:

• Rates of violent crime and property crime declined significantly between 1990 and 2008 in the country’s 100 largest metropolitan areas, with the largest decreases occurring in cities.   Violent crime rates dropped by almost 30 percent in cities, while property crime fell by 46 percent.  Though city crime rates remain considerably above those in suburbs, smaller decreases in suburban violent and property crime rates over this time period (7 percent and 37 percent, respectively) narrowed the gap.
• The gap between city and suburban violent crime rates declined in nearly two-thirds of metro areas.  In 90 of the 100 largest metro areas, the gap between city and suburban property crime rates narrowed from 1990 to 2008.  In most metro areas, city and suburban crime rates rose or fell together.
• Among suburban communities, older high-density suburbs registered the largest declines in crime rates.  All types of suburban communities saw property crime rates fall over this time period.  Cities and high-density suburbs also saw violent crime rates decline, but low-density exurban communities experienced slight increases that are not explained by their changing demographics.
• As crime rates fell and communities diversified, relationships between crime and community demographic characteristics weakened significantly.  The association between crime and community characteristics — like the proportion of the population that is black, Hispanic, poor, or foreign-born — diminished considerably.

The full report from the Brookings folks is available at this link.

William Bennett says "'Lock 'em up' not always best solution"

Adding to the chorus of Republicans making a prominent pitch for sensible sentencing reforms, former drug czar William J. Bennett has this new commentary at CNN.  Here are excerpts:

As budget battles in Washington and the states unfold, politicians are striving to achieve the most for their money, pinpointing where they can cut spending without sacrificing service.  Although lowering spending can mean major overhauls to a lot of services, some states have realized that with a little outside-the-box thinking, corrections reform can simultaneously decrease the taxpayer burden and increase the efficacy of criminal justice systems.

In 2007, Texas launched this legislative trend of cutting corrections costs without sacrificing its tough-on-crime principles.  It has achieved this by making an effort to divert low-risk, nonviolent offenders from prison and rehabilitate them through community treatment programs and tighter supervision of probationers and parolees.  This effort has saved Texans more than $1 billion on corrections costs, decreased probation revocations by 4%, shrunk parole revocations by 25% and lowered incarceration by 9.2%. These reforms coincided with Texas achieving its lowest crime rate since 1973.

A famously tough-on-crime state, Texas is proving "lock them up and throw away the key" is not always the best solution, and leaders around the country are beginning to agree.  In December 2010, I joined Right on Crime, a coalition of conservatives, including former U.S. Attorney General Ed Meese and prison reform advocate Chuck Colson, that promotes the truly conservative case for criminal justice reform.  It is a platform that promotes traditional conservative values such as accountability, limited government and fiscal responsibility.

Including Texas, a dozen states have adopted policies consistent with Right on Crime's ideals, and reform is pending in several other states, including Florida, Georgia and Louisiana. The details of the legislation vary state to state, but the overarching goals of lower cost and higher effectiveness are the same....

Many states, such as Ohio, Illinois, Nevada and Vermont, are shifting away from incarceration to alternate sentencing for low-risk, nonviolent offenders. By capitalizing on probation and parole programs that use evidence-based practices such as drug courts, electronic shackling and increased community sentencing measures, states have been successful at turning offenders into rehabilitated, taxpaying community members....

Tough-on-crime conservatives can lead the cause of criminal justice reform in a way that should garner bipartisan support, demonstrating that "tough on crime" can also be smart on crime and tough on spending. Conservative-thinking leaders are fighting to cut spending across the country, working to improve efficiency and save taxpayer dollars.  As the budget battle wears on, corrections policy offers legislators a way to cut spending without sacrificing results, producing as close to a win-win solution as possible in politics.

Does a state capital defendant have a "right to competency" for federal habeas proceedings?

The intereseting and intricate question in the title of this post is at the heart of a dispute within a Sixth Circuit panel in a ruling today in Carter v. Bradshaw, No. 08-4377 (6th Cir. May 26, 2011) (available here).  Though the Carter case is not easily summarized, the conclusion of the majority opinion for the panel explains the essential issues:

The district court did not abuse its discretion in holding a pre-petition competency hearing or by concluding that Carter was incompetent.  However, dismissing Carter’s petition and equitably tolling the AEDPA statute of limitations prospectively was an inappropriate disposition.  Rather, with respect to Carter’s ineffective assistance claims, the habeas proceedings should be stayed until Carter is competent according to section 4241. The district court must examine the remainder of Carter’s claims to determine whether Carter’s assistance is essential to their full and fair adjudication. If not, the court should appoint a next friend to litigate those claims.  Accordingly, we AMEND the district court’s judgment and REMAND the case to the district court for proceedings in accordance with this opinion.

Judge Rodgers, writing in dissent, thinks this panel ruling is all washed up, as highlighted by this first paragraph of his dissent in Carter:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings.  The asserted right has no basis in the Constitution or federal statutes.  Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different.  Nor are capital cases different in this respect.

I would expect an en banc and/or cert petition may follow, and it will be interesting to see if the question posed by the title of this post and by the capital defendant in Carter gets significant further consideration in the months and years ahead.

Big criminal justice day from SCOTUS, though no blockbusters or left/right splits

Thanks to the live-blogging of the folks at SCOTUSblog, it appears that the Supreme Court is continuing its focus on criminal justice opinions this week.  This morning the Court handed down four opinions, three of which involve criminal justice matters and all of which appear to have produced intricate rulings without any of the kind of ideological 5-4 splitting seen earlier this week in Plata. 

None of today's SCOTUS criminal rulings appear at first glance to be major or even really all that consequential.  (And they are sure to be overshadowed by a 5-3 split ruling in Chamber of Commerce v. Whiting, wherein the Chief explains for the Court why Arizona laws imposing obligations on employers with respect to alien employees are not preempted by federal immigration laws.)  Here are links to the SCOTUS opinions in the three criminal justice cases handed down this morning, with a super-brief summary of the issues in play:

Camreta v. Greene: reviewing qualified immunity win for state officials on Fourth Amendment claim

Fowler v. United States: elements of federal witness tampering statute

United States v. Tinklenberg: calculating Speedy Trial Act timelines

As always, I will be grateful to commentors and readers for alerting me to anything that seems especially noteworthy or important in these SCOTUS opinions for sentencing law and policy fans.