July 9, 2011
Why the Second Amendment is not (and should never be?) "part of normal constitutional law"
Earlier this week, the Seventh Circuit issued a lengthy and detailed ruling in Ezell v. Chicago (available here), which issued a preliminary injunction against Chicago gun range ban based on the Second Amendment. The Ezell ruling is both interesting and intricate; in this extended new post over at The Volokh Conspiracy, Second Amendment scholar and fan David Kopel astutely explains how and why "Ezell v. Chicago is a tremendously important case for Second Amendment doctrine."
I share Kopel's view about the importance of the Ezell opinion, and I recommend highly his summary and assessment of Ezell in his astute post. However, as evidenced by the title of my post here, I want to take issue with a key assertion Kopel makes at the start of the (otherwise astute) concluding paragraph of his post. Kopel finishes with these summary observation about what Ezell tells us:
In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”
The problem I have is with the claim that Ezell demostratrates that the Second Amendment is "part of normal constitutional law," principally because Ezell distinguishes the Seventh Circuit's approval in Skoein of the federal crime prohibiting certain misdemeanants from possessing guns (basics here) by emphasizing that only "law-abiding, responsible citizens" get full Second Amendment protection. If Second Amendment rights and jurisprudence truly depends and pivots on who is deemed a "law-abiding, responsible citizen," then the Second Amendment is not part of normal constitutional law because I know of no other constitutional right that only protects "law-abiding, responsible citizens."
Of course, a citizen's constitutional rights can and often are diminished or extinguished as a result of conviction and sentencing for a crime. Incarcerated prisoners, in addition to obviously losing many liberty rights, also generally have no Fourth Amendment rights and have very limited First Amendment rights. Similarly, duly imposed conditions of probation and/or parole that are part of a formal criminal sentence can lawfully result in restrictions on otherwise constitutional activities and liberties.
However, as I have explained in some prior posts, I am not aware of any other fundamental rights expressly protected by the Bill of Rights which are forever lost or forfeited whenever a person has ever once previously broken the law or been less than "responsible" in their behavior. Indeed, I think we would be deeply troubled by a constitutional jurisprudence that held that once a citizen was ever convicted of any crime, even just a misdemeanor (e.g., speeding, littering), then that person never again has any First Amendment right to free speech or to attend church or any Fifth Amendment right to prevent the taking of their property or any Sixth Amendment to confront witnesses or to counsel in a criminal trial.
In posts in the wake of Heller, I had predicted and feared that Second Amendment doctrine would start distinguishing between good "law-abiding, responsible citizens" people who get protected by this fundamental constitutional right and bad "other citizens" who get little or no constitutional protection. The important Ezell opinion suggests the doctrine is developing in just this way, and that reality leads me to balk when Kopel asserts that "the Second Amendment is part of normal constitutional law."
Or, to cast my concerns in a different light, I suggest we all should be very concerned if and when "normal constitutional law" starts to embrace and enforce significant distinctions between good "law-abiding, responsible citizens" people who get protected by constitutional rights and bad "other citizens" who get little or no constitutional protection. I genuinely fear that this kind of "normal" constitutional doctrine, which is now emerging in the Second Amendment setting, very well could start a path toward the significant formal and/or functional reduction of many fundamental constitutional rights and liberties.
A few related Second Amendment posts:
- Can dismissed domestic violence complaint justify revoking gun permit?
- Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
- Skoien and the many challenges of Second Amendment jurisprudence
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- Assailing the unjustified Second Amendment limits in Heller
- "The Standardless Second Amendment"
- Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)
"Death Penalty, Still Racist and Arbitrary"
The title of this post is the headline of this New York Times op-ed authored by law professor David Dow. Here are excerpts:
Last week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.
Nationwide, blacks and whites are victims of homicide in roughly equal numbers, yet 80 percent of those executed had murdered white people. Over the past three decades, the Baldus study has been replicated in about a dozen other jurisdictions, and they all reflect the same basic racial bias. By insisting on direct evidence of racial discrimination, the court in McCleskey essentially made the fact of pervasive racism legally irrelevant, because prosecutors rarely write e-mails announcing they are seeking death in a given case because the murderer was black (or because the victim was white).
In Texas, though, they do come close. In 2008, the district attorney of Harris County, Chuck Rosenthal, resigned after news emerged that he had sent and received racist e-mails. His office had sought the death penalty in 25 cases; his successor has sought it in 7. Of the total 32 cases, 29 involve a nonwhite defendant.
Since 1976, Texas has carried out 470 executions (well more than a third of the national total of 1,257). You can count on one hand the number of those executions that involved a white murderer and a black victim and you do not need to use your thumb, ring finger, index finger or pinkie.
Well, you might need the pinkie. On June 16, Texas executed Lee Taylor, who at age 16 beat an elderly couple while robbing their home. The 79-year-old husband died of his injuries. Mr. Taylor was sentenced to life in prison; there he joined the Aryan Brotherhood, a white gang, and, four years into his sentence, murdered a black inmate and was sentenced to death. When Mr. Taylor was executed, it was reported that he was the second white person in Texas executed for killing a black person. Actually, he should be counted as the first. The other inmate, Larry Hayes, executed in 2003, killed two people, one of whom was white.
The facts surrounding Lee Taylor’s execution are cause for further shame. John Balentine, a black inmate, was scheduled to die in Texas the day before Lee Taylor’s execution. Mr. Balentine’s lawyers argued that his court-appointed appellate lawyer had botched his case, and that he should have an opportunity to raise issues the lawyer had neglected. Less than an hour before Mr. Balentine was to die, the Supreme Court issued a stay.
Lee Taylor’s lawyers watched the Balentine case closely; their client too had received scandalously bad representation, and, they filed a petition virtually identical to the one in the Balentine case. But by a vote of 5-to-4, the justices permitted the Taylor execution to proceed. If there were differences between the Balentine and Taylor cases, they were far too minor to form the boundary between life and death. But trivial distinctions are commonplace in death penalty cases. Justice Lewis F. Powell Jr., one of the five justices in the McCleskey majority, retired from the court in 1991. Following his retirement he said he had voted the wrong way. If Justice Powell had changed his mind a year sooner, Warren McCleskey, who was executed in Georgia in 1991, would still be alive.
And because of a vote from a single Supreme Court justice, John Balentine lives while Lee Taylor died. When capital punishment was briefly struck down, in 1972, Justice Potter Stewart said the death penalty was arbitrary, like being struck by lightning.
It still is, and it’s the justices themselves who keep throwing the bolts.
Split Iowa Supreme Court endorses denial of good behavior credit for sex offender who refuses to admit guilt in treatment program
As detailed in this news report, headlined "Justices: It's OK to push inmates to admit guilt," the Iowa Supreme Court yesterday held that "Iowa sex offenders can be compelled to admit their crimes as part of prison treatment programs without triggering a violation of the inmates' right against self-incrimination." Here is more:
Four of the seven Iowa justices found that the Mount Pleasant Correctional facility didn't violate Robert Harkins' Fifth Amendment rights by denying him time off for good behavior if he refused to participate in a treatment program. The remaining justices said they would have allowed the requirement only if the state offered immunity to prevent any admissions from being used against Harkins in court.
Iowa law says state prison inmates can earn 1.2 days off their sentences "for each day the inmate demonstrates good conduct and satisfactorily participates" in any program he or she is determined by prison officials to need.
Harkins, convicted of third-degree sexual abuse in 2006, argued in court pleadings he filed himself that linking those "earned-time credits" to completion of sex-offender treatment violated his constitutional rights because the treatment required signing a contract that would have forced Harkins to "assume full responsibility" for his past offenses and behavior....
[T]he majority of justices - Thomas Waterman, Edward Mansfield, Bruce Zager and Chief Justice Mark Cady - ruled Friday that state prison officials have "important rehabilitative goals" in using the possibility of a longer prison term to compel sex-offender treatment.
"The state is not using a threatened loss of credits to try to extract testimony; instead it is attempting to administer a bona fide rehabilitation program for sex offenders who have already been found guilty under a statutory scheme that afforded them all required due process," Mansfield wrote in a 27-page opinion for the majority.
"Harkins had every right not to be a witness against himself. ... Now that he has been convicted as a sex offender, though, the State of Iowa may constitutionally establish an incentive for him to obtain treatment in prison by withholding earned-time credits if he declines to participate."
Justice Brent Appel, author of a 30-page dissenting opinion on behalf of a minority that included Justices David Wiggins and Daryl Hecht, said the case boils down to a tough choice for Harkins: "Simply put, if he chooses to remain silent by not participating in the program, he likely will be incarcerated for a substantially longer period of time."
Appel's opinion concludes that Iowa has imposed "an impermissible penalty for the exercise of (Harkins') Fifth Amendment rights" and argues that "the state may force Harkins to choose" between self-incrimination and a longer sentence "only if it provides Harkins with use and derivative-use immunity from prosecution."
I cannot yet find a copy of this ruling available on line, but I will post a link to the ful opinion once available.
July 8, 2011
Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
As noted in prior posts here and here, U.S. District Court Judge Gregory Frost this morning issued a ground-breaking ruling which stays an execution based on a death row defendant's Equal Protection claim concerning how Ohio runs its machinery of death. Though only formally dealing with only one planned execution in one state, the fundamental constitutional claims and basic litigation approach driving the Smith ruling makes the case huge for Ohio and possibly for every other state that regularly executes condemned murderers. Let me explain.
First, the Smith ruling (60 pages long, available here) is based on Equal Protection constitutional claims that seem applicable to any and every person subject to execution in Ohio. As noted in this recent post, Ohio has scheduled execution dates for 11 inmates over the next year, and every one of these planned executions would appear to be in jeopardy in light of the Smith ruling. (Importantly, the Smith case is only at a preliminary posture, and a full trial of the issue is scheduled for later this year. Still, the imposition of an execution stay for one defendant pending this trial on the merits has implications for all those in Ohio's execution queue.)
Second, the Smith ruling is premised in the developed evidence that Ohio's written protocol for lethal injection executions is never followed exactly and is often modified "on the fly." As regular readers surely know, this problem is hardly unique to Ohio: because of the historic challenges of getting qualified and experienced medical persons to help conduct executions, as well as recent challenges in getting supplies of needed execution drugs, I suspect that many (if not all) states that conduct executions rarely follow written execution protocols exactly and often must modify these protocols "on the fly." Thus, the Smith ruling not only likely blocks all future executions in Ohio, it possibly raises new constitutional questions about what is going on in many other states with active death chambers.
I quite doubt that many judges (either in state or federal courts) will be very eager or swiftly able to follow the lead of the Smith opinion and readily declare Equal Protection problems with other state execution practices. But I am quite certain that many defense attorneys with capital clients facing upcoming executions will be very eager and swiftly able to take cues from the Smith opinion and readily argue (both in state and federal courts) that potential Equal Protection problems with state execution practices demand a stay and additional litigation before any more executions proceed.
Some recent related posts:
- Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
- New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
- Ohio's queue for executions now 11 deep and more than a year long
- Georgia execution raising new questions (and more litigation) about new drug protocols
- DOJ gets in way of Arizona execution based on illegal acquisition of lethal injection drug
- Mississippi joins growing number of states with success using new execution drug
Path started to place pot legalization on Colorado ballot in 2012
I expect backers of legalized marijuana will try to get the issue on the California ballot again in 2012 after the relatively narrow loss of an initiative in 2010. However, as this local article highlights, Colorado is another state to watch closely in the debates over pot prohibition and possible legalization:
In a little more than a year, Colorado may become the first state to legalize marijuana. Between now and then, prepare to meet petition waving enthusiasts. In fact, prepare to meet competing petition wavers as it is quite likely that at least two different pro-marijuana groups will propose at least two different legalization schemes.
First out of the box is the Campaign to Regulate Marijuana like Alcohol, sponsored and/or supported by groups such as SAFER Colorado, Sensible Colorado, the Marijuana Policy Project and the Drug Policy Alliance.
This initiative would amend the Colorado Constitution to allow people 21 and older to buy and possess up to one ounce of marijuana. They would also be able to grow up to six plants and to possess all of the marijuana produced by those plants.
Mason Tvert, the leader of the group, says that the black market currently makes marijuana more easily accessible to children and teenagers than alcohol is. “Parents should support this,” he said. “This will shift it from a prohibition paradigm to a regulation paradigm.”
He said they were planning on the 2012 election because they think the higher voter turnout of a presidential election should favor legalization of marijuana. He said this initiative has been in the works for more than five years. He said it took that long to “bring forward the best initiative possible.”...
He said the time seems right to legalize and regulate marijuana, noting that Congressman Jared Polis had recently co-sponsored a bill to legalize marijuana at the federal level, leaving it to states to decide how to deal with it. He said this was an issue that both liberals and conservatives agree on. In fact, during last year’s Colorado governor’s race, the only candidate who favored legalization was the most conservative: Tom Tancredo....
The initiative would enable the state to collect sales taxes on marijuana and also to levy an excise tax of up to 15 percent. Vicente said the first $40 million raised annually from the excise tax will be earmarked for public school construction. “We estimate overall it will bring in about $70 million a year including savings to law enforcement,” he said....
Supporters emphasized that if this initiative becomes law it will not allow people under 21 to buy or possess marijuana. It will not allow use in public. It will not allow people to drive vehicles when under the influence of marijuana. It would not require businesses to allow use at work or to make any accommodation for marijuana users....
Even as they were holding their press conference at Civic Center Park in downtown Denver, someone from one of the competing marijuana groups was handing out information sheets detailing what they think is wrong with this proposal, namely that it doesn’t really legalize marijuana. The flyer referred to this SAFER initiative as a “sentencing reform initiative,” because possession of more than an ounce would remain illegal and subject people to arrest.
The opposing group, calling itself Legalize2012, hopes to begin a petition drive for “true legalization” soon. One of the leaders of that group, Laura Kriho, actually referred to Tvert as “my opponent” in a recent public appearance.
She said she wants to abolish all marijuana crimes from the books in Colorado and that if voters reject such language, she will try again in 2014, 2016 etc. Kathleen Chippi, at the same forum last month, noted that truly legalizing marijuana would make it more like potatoes. “I can have as many potatoes as I want. The entire drug war is based on lies,” she said. “Let’s get the cops out of our lives.”
Some older and newer related posts on pot policy and politics:
- Ron Paul and Barney Frank introduce bill to let states set pot policy:
- Why pot legalization fans are likely to try again in 2012
- Effective commentary concerning political discussion of pot policy and the drug war
- Big international report calling global drug war a failure
- "Why Parents Should Support Legalizing Pot"
- "Would Legalizing Marijuana Cut Law Enforcement Costs?"
- "Tea Party = Pot Party?"
- American democracy getting a contact high from pot prohibition debate
- Making the conservative case for ending pot prohibition in California
- New "Just Say Now" campaign suggests growing marijuana legalization coalition
- Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
- Thoughtful academic thoughts on ending marijuana prohibitions
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- "Will Pot Be Legal By The End Of This Decade?"
Split Ninth Circuit panel reverses Arizona death sentence based on claim of judicial bias
The split Ninth Circuit panel has reversed an Arizona death sentence today in Hurles v. Ryan, No. 08-99032 (9th Cir. July 7, 2011) (available here), in an opinion that starts this way:
Richard D. Hurles appeals the district court’s denial of his petition for a writ of habeas corpus from his murder conviction and death sentence. He argues the district court erred on four issues: judicial bias, ineffective assistance of sentencing counsel, ineffective assistance of appellate counsel, and procedural default (related to portions of his ineffective assistance of counsel claims).
For the reasons set forth below, we reverse the district court’s denial of Hurles’s judicial bias claim. The highly unusual facts of this case — in which the trial judge became involved as a party in an interlocutory appeal, was denied standing to appear as an adversary, and then proceeded to preside over a murder trial and single-handedly determine Hurles’s death sentence — compel us to conclude that Hurles was denied his right to due process. These exceptional facts raise the probability of actual bias to an unconstitutional level.
A lengthy dissenting opinion by Judge Ikuta gets started this way:
Today the majority overturns a convicted murderer’s capital sentence, ignoring AEDPA’s command to defer to a state court’s decision unless it is objectively unreasonable. See Williams v. Taylor, 529 U.S. 362, 407 (2000). The AEDPA analysis here is straightforward. During the preliminary phases of Hurles’s capital trial, the state trial judge denied Hurles’s motion for appointment of a second attorney. Hurles appealed that denial in a special action proceeding, and the state Attorney General submitted a brief in the trial judge’s name defending the ruling. Over seven years later, after an unsuccessful direct appeal and post-conviction proceeding, Hurles claimed that the trial judge’s participation in the special action proceeding violated his due process rights and moved for her recusal from further participation in his case. The trial judge denied Hurles’s motion and rejected his claim that her participation in the special action proceeding created an unconstitutional “appearance of bias.” Hurles now claims that this conclusion is contrary to Supreme Court precedent. Because there is no clearly established Supreme Court authority that even hints the trial court’s decision was wrong, we must defer to its determination and deny the petition. Murdoch v. Castro, 609 F.3d 983, 991 (9th Cir. 2010) (en banc).
This ruling seems to have all the classic elements (e.g., win for state capital defendant, strong dissent) needed to prompt further review by an en banc panel of the Ninth Circuit and/or the Justices of the Supreme Court. It will be interesting to see how Arizona opts to continue this battle.
Interesting substantive reasonableness ruling from Eighth Circuit
In an interesting sentencing ruling today in US v. Shakal, No. 10-3019 (8th Cir. July 8, 2011) (available here), reveals yet again how hard it is to get a within-guideline sentence reversed as substantively unreasonable if and when a district judge provides a thoughtful explanation for his sentencing decision. Here are a few key paragraphs from the ruling:
Yahya Muhumed Shakal pleaded guilty to four counts of aiding and abetting the preparation of false federal income-tax returns. At sentencing, Shakal argued that his experiences in Somalia during the violent Somali civil war entitled him to a sentence well below the advisory Guidelines range. The district court denied Shakal's request, and sentenced him to a Guidelines sentence of 72 months' imprisonment. Shakal now appeals, urging that the district court's sentence is substantively unreasonable. We affirm....
The record clearly shows that the district court considered Shakal's violent experiences during the Somali Civil War, including witnessing the murder of his father and the rapes of his sisters. Indeed, the district court agreed with Shakal's counsel that Shakal and his family had "been through hell," and conceded that "[t]he real issue is going to be . . . how should that affect his sentence this morning."
Also, the district court considered but rejected Shakal's sentencing-disparity argument. Specifically, Shakal maintained, as he does now, that a "Mr. Mohamed" initially taught Shakal how to fraudulently request the fuel tax credit on tax returns, and that Mohamed received only 18 to 24 months at sentencing (from a different judge). The district court responded to this argument by first acknowledging that it had read through Mohamed's entire file the night before Shakal's sentencing, but ultimately concluded that Mohamed's case differed greatly from Shakal's in that Mohammed's tax scheme cost the United States Government only $44,000, far less than Shakal's $2 million haul....
[In addition, as the sentencing transcript shows,] the district court not only considered Shakal's personal history and circumstances in fashioning a sentence but reduced the sentence it would have otherwise assessed Shakal in light thereof. Therefore, the district court did not abuse its discretion in sentencing Shakal to 72 months' imprisonment.
New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
As noted in this prior post, U.S. District Court Judge Gregory Frost this morning issues a ground-breaking (and perhaps extremely important) ruling which stays an execution based on a death row defendant's Equal Protection claim concerning how Ohio runs its machinery of death. Though I am still reading through Judge Frost's thorough and thoughtful Smith opinion, these passages jumped out at me (and prompted the title of this post due to part I have put in bold):
Throughout the course of this litigation, Ohio time and again has used its written protocol as both a sword and a shield. Defendants have attacked various inmates’ claims of dangerous state practices by pointing to the written protocol as evidence of official policy and procedure that provide salvaging order and predictability. At the same time, Defendants have cloaked themselves in the various permutations of the written protocol, which they have periodically updated to formalize the customs and practices that propped up an often teetering protocol, all in an effort to shield Ohio’s lethal injection practices from invalidation under the Constitution. But after literally over half a decade of litigating the issues that way, it now appears that the state officials involved have decided either to change their minds or to come clean on what the actual beliefs and practices are and not what they have previously told this Court to be true....
The man who once testified that the written protocol carries the force of law now offers that the written protocol does not set out mandated regulations. The controlling set of mandates constituting the written protocol that often shielded Ohio’s practices from constitutional infirmity and provided the state with a sword to puncture inmates’ claims is thus revealed to be an advisory compilation of guidelines subject to being ignored....
The latest evidence presents at least these four deviations from the core components of the written protocol. Such core deviations as a matter of policy were once considered improbable.... [But what] was once a theoretical concern relegated to the unlikely or impossible has become (or has finally been revealed to be) reality.
Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures. No inference is required to reach this conclusion, much less the stacking of inference upon inference. Rather, as set forth below, simply paying attention to the hearing testimony mandates this conclusion. These core deviations are not mere cosmetic variations from an optional or even aspirational set of guidelines. Rather, the deviations are substantive departures from some of the most fundamental tenets of Ohio’s execution policy. These tenets or core components embody concerns that cannot be disregarded and are described below.
The passages I have highlighted showcase, I believe, that Judge Frost had been hearing Ohio defend its execution practices for years based on the lethal injection protocol rules the state created, but then learned at a recent evidentiary hearing that Ohio never actually follows its own rules with real care or much concern. Thus, this important ruling emerges from the death row lawyers making clear at an evidenitary hearing that Ohio does not really do what it says it is doing during an execution, and Judge Frost making clear that the Constitution here demand that Ohio keep its word when it says its lethal injection process follows the protocols it has created.
Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
As detailed in this breaking AP report, a federal district judge in Ohio has issued a ground-breaking ruling this morning in the course of ordering a stay to an Ohio execution planned for later this month:
Kenneth Smith was scheduled to be put to death July 19 for killing a husband and wife in their Hamilton home during a 1995 robbery. U.S. District Court Judge Gregory Frost on Friday criticized what he called Ohio's haphazard application of its death penalty protocols.
If upheld on appeal, Frost's decision would allow Smith to argue in an upcoming trial that the state violates the constitution with its uneven application of its rules for executing inmates.
In this controversial and often-politicized context, it think bears noting that Judge Frost (bio here) is a former local prosecutor who was appointed to the federal bench by President Bush in 2003. With that background, here is how Judge Frost's 60-page stay opinion in Smith (which can be downloaded below) gets started:
It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.
This matter is before the Court for consideration of Plaintiff Kenneth Smith’s motion for a temporary restraining order and a preliminary injunction (ECF No. 908), Defendants’ memorandum in opposition (ECF No. 920), Plaintiff’s reply memorandum (ECF No. 923), Defendants’ incorporated motion for summary judgment (ECF No. 919), Plaintiff’s incorporated summary judgment memorandum in opposition (ECF No. 925), and Plaintiff’s supplemental memorandum related to the June 29, 2011 hearing (ECF No. 944). The issue presented by this briefing is relatively simple: has Plaintiff demonstrated that he is likely to succeed in establishing that the Ohio has an unconstitutional execution policy so that he deserves a stay of execution that will afford him the chance to prove his case? Because Plaintiff has demonstrated a substantial likelihood of succeeding on his Equal Protection claim, this Court finds the motion for injunctive relief well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Smith issued by any court of the State of Ohio until further Order from this Court.
This Smith ruling seems certain to be appealed to the Sixth Circuit, though how and how quickly the Sixth Circuit (and perhaps also the Supreme Court) will consider this matter is harder to predict (and will be fun to watch over the next few weeks).
Ninth Circuit puzzling over whether Tucson shooter Jared Loughner can be forcibly medicated
The new piece posted at the WSJ Law Blog, headlined "Government Still Not Cleared to Forcibly Medicate Jared Loughner," provides a good account of the on-going legal debate over the treatment of the Tucson shooter. Here are excerpts:
We thought it was settled that prison officials could forcibly medicate Tucson gunman Jared Loughner, who is accused of shooting Congresswoman Gabrielle Giffords and 18 others earlier this year. A federal judge last month upheld an earlier decision by prison officials to force Loughner to take anti-psychotic drugs in an effort to try to render him mentally fit to stand trial for the shootings.
But the 9th Circuit late last week halted the forced medication, and yesterday a three-judge panel of the court expressed skepticism that prison officials were legally entitled to administer drugs involuntarily without first getting court clearance, WSJ reports.
The battle over medicating Loughner, who has been diagnosed as a schizophrenic, will be a key factor in determining whether he ever stands trial. At yesterday’s 9th Circuit hearing, government lawyer Christina Cabanillis said that under a Supreme Court decision, federal prison officials can make a medication decision on their own when they determine that someone in their custody is a danger to himself or others, WSJ reports.
But 9th Circuit judges drew a distinction between a convicted inmate, who was the subject of the Supreme Court decision, and a pretrial detainee, such as Loughner, who has the presumption of innocence.
“Why should someone presumptively innocent not be treated with greater personal deference” than an inmate, asked Judge Alex Kozinski, chief judge of the 9th Circuit....
Whether a person is an inmate or a pre-trial detainee, Cabanillis countered, “when you are dangerous in a prison setting, you are dangerous.”
The 9th Circuit is expected to rule soon.
"Burress says he met two-year prison sentence with disbelief"
The title of this post is the headline of this piece from NFL News, which reports on a recent revealing interview with recently released Plaxico Burress. Here are excerpts:
Plaxico Burress has seen the view from the top of life, so when he suddenly found himself behind bars, he couldn't believe how low he had sunk so quickly.
Little over a year after his touchdown catch in Super Bowl XLII capped the Giants' 17-14 upset of the previously undefeated New England Patriots in February 2008, Burress was imprisoned on a felony weapons charge, the result of him accidentally discharging an unlicensed handgun in a Manhattan nightclub.
"To go on the other side of that wall, to be on the inside of that fence, knowing what your world and life is supposed to be on the other side, when they close that door behind you, you say to yourself, 'Is this really serious?' " Burress told Fran Charles in an exclusive interview on NFL Network's "NFL Total Access" on Thursday. "I actually said to myself a couple times when I first went in, 'You know what? Somebody's going to come and get me tomorrow.' "...
The wide receiver said he originally expected to serve at most a four- to six-month sentence for reckless endangerment and that it took some time for him to accept the reality of his situation -- a two-year prison sentence. Burress was released in June, three months early for good behavior....
Burress described his prison time as "an out-of-body experience" that changed him for the better. He said his approach to life now is about patience, something he'll have to show plenty of as he attempts to return to the NFL.
This interview confirms and continues my concern that Plaxico's legal team failed to fight against his criminal charges as effectively as it might have give the plausible Second Amendment defense that I still think he could and should have mounted.
Some related posts on the Burress cases:
- "Main Threat to Burress Is a Sentencing Law"
- Starting to make the Second Amendment case for Plaxico Buress
- Interesting data on the application of NY gun law for Plaxico's consideration
- Talk of a plea deal to resolve gun charges against Plaxico Burress
- Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Plaxico Burress cuts a plea deal requiring two-year prison term for his gun possession
July 7, 2011
Split 5-4, SCOTUS refuses to block Texas execution of Mexican national
As noted in prior posts, Texas has plans this evening to execute a Mexican national whose consular right were violated in his prosecution for murder. And, as now reported at How Appealing and at SCOTUSblog, the Justices this afternoon refused to issue a stay even upon the request of the US Solicitor General.
The Court's per curiam ruling, along with Justice Breyer's dissent, are available here.
UPDATE: As reported in this local article, Texas carried out the execution without a hitch:
Strapped to the gurney in Huntsville's death chamber Thursday evening, Humberto Leal Jr. used his last words to apologize to both his family and the family of his victim, a San Antonio teen. “I have hurt a lot of people,” he said. “Let this be final and be done. I take the full blame for this. I am sorry and forgive me, I am truly sorry.”
Witnessing his execution was his attorney Sandra Babcock, his sister and three friends. The family of his 16-year-old victim, Adria Sauceda, was not present. Robert McClure, the man who prosecuted Leal in 1995, attended with another Sauceda family friend.... Leal began his last statement at 6:10 p.m. and the lethal dose of drugs was administered a minute later. “I am sorry for the victim's family and what I had did,” he continued. “May they forgive me. I don't know if you believe me.”
Leal ended by saying, “One more thing, Viva Mexico, Viva Mexico.” “Ready warden, let's get this show on the road.” He was pronounced dead at 6:21 p.m.
The execution came 17 years after the gruesome sexual assault and bludgeoning death of Adria, who was last seen alive with Leal after a neighborhood party in the early hours May 21, 1994.
The teen's nude body was found on a dirt road that ended in a wooded, secluded area not far from the South Side party. A 35- to 40-pound rock was used to bludgeon her in the face and head. A stick was left protruding from her body.
"Would porn incite prison violence?"
The question in the title of this post is the main heading given to this new piece at Salon, which carries this subheading: "An inmate sues over a ban on explicit material, but officials say smut causes aggression. We look at the evidence." Here are excerpts:
A 21-year-old inmate is suing the governor and state of Michigan for depriving him of porn while locked up. This case follows on the heels of a suit last month by the ACLU to force a South Carolina prison to loosen its broad restrictions on reading materials, which was sensationalized in the press as a push for porn in prison, causing officials to explain that smut was a danger to inmates because it would cause aggression and violence.
Is there really evidence that it would, though?
The short answer is: No, there isn't solid proof that it would. The longer answer is, as Joseph Slade, the author of "Pornography and Sexual Representation: A Reference Guide," tells me: "No responsible academic researcher claims that evidence supports pornography's causing hostility or violence, principally because of the number of variables involved in constructing studies, the divergent definitions of pornography, and the sometimes unconscious biases of those who look for effects," he said. These studies also focus on the immediate, short-term impact. "That does not mean that there are no effects, just that they cannot be ascertained." That's exactly why in 2007, Sweden's Supreme Court ruled in favor of allowing porn in prison: Officials couldn't prove that it would "jeopardize the safety of the institution."
In a piece for the International Journal of Law and Psychiatry, researchers Milton Diamond and Ayako Uchiyama pointed out that there is a fundamental problem with assuming that people in the real world function just like the college students in these laboratory experiments: "In real life, individuals can elect to experience some pornography for minutes or hours, at a single session, or over years. In real life, individuals are free to satisfy different sexual urges in ways unavailable to students in classroom situations." (Just to further complicate things, none of these studies specifically look at the effect in prison, which is, clearly, a very unique environment with yet more variables.)
Setting all those serious caveats aside for a minute, a meta-analysis attempted to settle the debate once and for all by surveying the sizable amount of research on the effects of pornography and concluded that viewing "pictorial nudity reduces" -- yes, reduces -- subsequent aggressive behavior. At the same time, though, "consumption of material depicting nonviolent sexual activity increases aggressive behavior," but "media depictions of violent sexual activity generates more aggression than those of nonviolent sexual activity."...
So, as I said, the short answer is that there isn't evidence that porn causes aggression -- and yet prisons continue to ban explicit material on those very grounds. Considering our general disregard for science -- not to mention the fact that prisoners' sexual fantasy lives are not at the top of most people's lists of important world problems -- it's no real surprise.
California legislative panel advances proposal to put state DP repeal on 2012 ballot
As detailed in this Los Angeles Times piece, headlined "Bill to abolish death penalty in California advances," a new "proposal to ask California voters to repeal the death penalty was advanced Thursday by a state legislative panel after opponents of the current law argued it was an expensive and ineffective approach to violent crime." Here is more:
The Assembly's Public Safety Committee approved legislation by Sen. Loni Hancock (D-Berkeley) that would put a measure on the ballot replacing the death penalty with life in prison without the possibility of parole as the state's most extreme punishment.
Hancock cited estimates that it costs the state $184 millon a year to keep more than 700 people on Death Row, and she noted that only 13 criminals have been executed in the last 33 years.
"The death penalty is not the swift and certain punishment that experts tell us most effectively deters crime,’’ Hancock told the committee before it voted 5-2 along party lines to approve SB 490. Those supporting the bill included Jeanne Woodford, executive director of the nonprofit group Death Penalty Focus and former warden of San Quentin State Prison,
Assemblyman Curt Hagman (R-Chino Hills) opposed the measure, saying the state should instead reform the system to "speed up the process." He said other states, such as Arizona, spend much less to enforce the death penalty. He also said there was a large cost in keeping inmates in prison for life.
The bill next goes to the Assembly Appropriations Committee.
"Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates -- And Why it Should"
The title of this post is the title of this new piece by Professor W. David Ball, which now is available via SSRN. Here is the abstract:
California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will send a portion of the state prison population to county facilities. The plan faces opposition from county officials, who see it as pushing the state’s problem on to the counties.
But what if state prison overcrowding is really a county problem? I argue that state prison overcrowding is due in large part to county decisions about how to deal with crime. Using data from 2000-2009, I will show that California’s counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates.
The contribution the Article makes, then, is twofold. First, it reinforces that incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime. Counties can and do make different choices about how to respond to violent crime, including the extent to which they use prison. Second, the Article demonstrates why localities are crucial -- and critically underexamined -- contributors to state prison populations. Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (such as DA’s, judges, and sheriffs) or appointed locally (police and probation officers). Local policies and policymakers affect the state’s corrections budget, even though the state has no say in designing or implementing these policies. State officials must take these local differences into account, and create incentives for counties to behave differently.
The problem is that it is difficult to distinguish between justifiable, crime-driven incarceration and optional, policy-driven incarceration. I propose a new metric for distinguishing between these two types of incarceration, one which defines justified incarceration in terms of violent crime. This would allow the state to manage local usage of state prison resources without either penalizing crime-ridden areas or rewarding prison-happy ones.
This Article is the first of two articles dealing with the state/county prison relationship. While this Article quantifies the ways in which the extent of local prison admissions is not necessarily a function of the violent crime rate, a second Article will examine whether, given these differences, it makes sense for the state to subsidize county commitments to prison.
Only six DAYS left in Casey Anthony's four-year sentence
After calculating all of Casey Anthony's myriad sentencing credits, it appears she has only six more days to serve on her four-year term. Remarkable!
UPDATE: I am still looking for information about just how Florida laws concerning good time and gain time and other factors mean Anthony is to end up being in jail only for about 33 months on a sentence of 48 months. I keep hearing that Florida offenders usually serve 85% of their prison sentences after good time credits, but it appears that Anthony is only to end up serving about 70% of her imposed jail time.
Interview with Anthony Juror #3 confirms that pursuit of death penalty played role in acquittals
In this post right after the surprising Casey Anthony verdict, I speculated that prosecutors' pursuit of a death sentence may have primed the jurors to expect a forensic smoking gun, and that the jurors in turn may have ultimately been that much more willing to find reasonable doubt on all serious charges when no such evidence was presented. This speculation seems to be confirmed by the first Casey Anthony juror to be speaking out about the verdict, as detailed in this report on the interview:
ABC News's much-flapped-about interview with Casey Anthony juror Jennifer Ford aired last night on "Primetime" -- and it's only going to fuel verdict fury. That's because Ford -- who appeared even-keeled and intelligent -- answered Terry Moran's questions in a way that supports the overprosecution theory on the verdict.
The number-one complaint from those analyzing the outcome has been that the prosecution overreached, throwing out claims they couldn't support....
What it came down to, Ford reiterated again and again, was that all signs pointed to Casey being involved in Caylee's death -- but that no one managed to string the signs together. "How can you punish someone if you don't know what they did?" Ford said. "Do I think she's completely innocent? I have no idea... not guilty doesn't mean innocent."
And having the death penalty on the table infinitely upped the ante. "If I'm wrong, and I kill someone else, I can't live with that," Ford said. "If they [the prosecution] want me to kill someone else, they have to prove it."
Recent related posts on Casey Anthony verdict:
- Casey Anthony found NOT guilty on all felony charges, misdemeanor sentencing later this week
- Should Casey Anthony's lawyer be grateful for, not critical of, Florida's use of the death penalty?
- Several sentencing reasons Casey Anthony should be thankful she is not in federal court
- Imagining a (sound and satisfying?) sentencing script in the Casey Anthony case
- Casey Anthony gets maxed out sentence of 4 years imprisonment for four misdemeanor convictions
New York Times editorial urges SCOTUS to delay Texas execution of Mexican national
In this new editorial, headlined "The World Is Watching," the New York Times weighs in on the international kerfuffle over a planned Texas execution today. Here are excerpts:
On Thursday, Humberto Leal Garcia Jr. is scheduled to be executed in Texas at 6 p.m. Mr. Leal, a Mexican citizen, has petitioned the Supreme Court for a stay of execution, while a bill is pending in Congress that would give him the right to a hearing about the violation of his rights under the Vienna Convention on Consular Relations. The justices should grant the stay to allow Congress to pass the law. It would ensure that states are in compliance with the treaty, which requires that foreign nationals be told of their right to have their embassy notified of their arrest....
The Supreme Court is Mr. Leal’s last hope. The court ruled in 2008 that Texas did not have to comply with the treaty because there was no federal law requiring states to do so. But Chief Justice John Roberts Jr. indicated that once Congress took up the treaty issue, it would be unjust not to allow a foreign citizen to have his case reviewed.
The solicitor general filed a brief supporting a stay because that would “serve compelling national interests.” The Mexican government told the court a stay was “absolutely critical.” Congress is in the process of fixing the gap in the federal law. It would be a miscarriage of justice if the Supreme Court allowed Mr. Leal’s execution before Congress could complete that remedy.
Recent related post:
Casey Anthony gets maxed out sentence of 4 years imprisonment for four misdemeanor convictions
In a sentencing ruling that seemed quite like what I had imagined in this post yesterday, Judge Belvin Perry at sentencing for Casey Anthony this morning imposed the maximum sentencing term of one year for each of the four counts of providing false information to authorities and ordered these counts to run consecutively. In other words, Anthony officially received a four-year sentencing term from Judge Perry this morning.
When Anthony actually gets released, however, is now to turn on complicated Florida state rules on good time and gained time credits. I will be grateful for comments from any Florida practitioners who know exactly what the state credits mean for how long Anthony will actually have to serve in prison.
Recent related posts on Casey Anthony verdict:
- Casey Anthony found NOT guilty on all felony charges, misdemeanor sentencing later this week
- Should Casey Anthony's lawyer be grateful for, not critical of, Florida's use of the death penalty?
- Several sentencing reasons Casey Anthony should be thankful she is not in federal court
- Imagining a (sound and satisfying?) sentencing script in the Casey Anthony case
"Oklahoma lawmaker plans to introduce 'Caylee's law'"
The title of this post is the headline of this new Reuters article, which reports on a bill being discussed that is a classic example of a high-profile case leading to new crime legislation. Here are the details:
An Oklahoma lawmaker said on Wednesday he planned to introduce a "Caylee's law" in his state requiring parents to swiftly report the death or disappearance of a child in the first legislation stemming from the death of the Florida toddler....
"It is unconscionable for a parent to delay notifying the authorities of the death of their child. Most parents would immediately notify authorities if their child had gone missing," state Rep. Paul Wesselhoft said, adding he planned to introduce the law in Oklahoma's 2012 legislative session.
"Any delay could endanger the life of the child and, in the case of a child's death, make it that much harder to collect evidence. I think the actions of Caylee's mother were reprehensible," he added, saying most people he met felt that Casey Anthony "escaped true justice"....
Wesselhoft said it was a problem that there were no laws regulating the timely reporting of a child's death or disappearance, and that the law should give a parent 24 hours to report the death of a child and 48 hours to report a child under age 12 as missing. "Violation of this law would be a maximum misdemeanor or a felony conviction. Oklahomans do not want to experience a situation such as what occurred in the Caylee Anthony case," said Wesselhoft, a Republican.
UPDATE: This WSJ Law Blog piece, headlined "Proposed 'Caylee’s Law' Generates Virtual Frenzy," provides interesting info about the social media buzz pushing the idea of this new law:
More than 98,000 – and counting -- people across the country have signed onto a virtual campaign calling for a new federal law that would make it a felony for parents not to alert police of a child’s disappearance.
The online petition, started by an Oklahoman woman less than 24 hours ago on a social change website, comes on the heels of the Casey Anthony trial in which the jury reached a “not guilty” verdict on first-degree murder charges Tuesday....
The petition is the fastest-growing campaign that has ever been hosted on the site and is causing website traffic problems, a spokesman for Change.org told the Law Blog.
It calls for the creation of a new federal statute called “Caylee’s Law” – named after Anthony’s deceased daughter -- that would make it a felony for parents not to report the death of a child to law enforcement within an hour of discovering the incident, or within 24 hours in the case of child disappearance.
But some question the constitutionality of such a proposed law. Laurence Tribe, a constitutional law scholar at Harvard, points out that criminal laws usually fall within the realm of state jurisdictions.
When Congress does enact them, however, it does so under the Constitution’s commerce clause, which applies to cases that significantly impact interstate commerce. Tribe posits that the proposed “Caylee’s Law” would fail to meet that test and would not hold up at the federal level. “This is an understandable reaction to…a verdict that people feel unsatisfied with, but violating the constitution would hardly solve the problem,” Tribe told the Law Blog. “There is no basis I can see for any congressional power to deal in this broad way with all cases of injury -- and perhaps fatal injury -- to children.”