CrimProf Blog

Some Thoughts on Baze v. Rees

I know it's been a few weeks since Baze v. Rees, but I thought I would post some overdue comments regarding my impressions of the case -- overdue because of a horrendously busy April, some emergency home repairs, a dying (now dead) home computer, and the persistent responsibility of caring for a two-year old.  But enough about me . . . .

I must admit to the guilty pleasure of typically turning to the separate opinion by Justices Scalia or Thomas (or, in this case, both) when a case like Baze comes out.  In Baze, I was most intrigued by Justice Thomas' concurrence in the judgment, joined by Justice Scalia, arguing that "a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain."  I think this conclusion is deeply flawed.

Justice Thomas supports this view by noting that some methods of execution extant in 1791 had as "[t]heir defining characteristic . . . that they were purposely designed to inflict pain and suffering beyond that necessary to cause death."  He concludes from this that "there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause."

Indeed.  But it is one thing to say that methods of execution deliberately designed to inflict pain "fall[] within the prohibition of the Cruel and Unusual Punishments Clause."  It is quite another to say that only those methods of execution deliberately designed to inflict pain are included within that prohibition.  Justice Thomas never takes that final step and offers any proof that the Cruel and Unusual Punishments Clause is concerned exclusively with methods of execution deliberately designed to inflict pain.  It is as if one observed that the framers and ratifiers of the Fourteenth Amendment viewed the old Slave Codes "as falling within the prohibition of the [Equal Protection] Clause," and concluding that that is all with which the Equal Protection Clause is concerned, a position Justice Thomas has steadfastly rejected.

Justice Thomas also cites Wilkerson v. Utah, In re Kemmler, and Louisiana ex rel. Francis v. Resweber as support for the conclusion that only those methods of execution deliberately designed to inflict pain violate the Eighth Amendment.  Yet the very language he quotes from the latter two cases suggests he is wrong.  He quotes the Kemmler Court as writing:  "Punishments are cruel when they involve torture or a lingering death . . . . It implies something inhuman and barbarous . . . ."  Even if one interprets "inhuman" or "barbarous" as implying some requirement that the punishment be designed to cause pain -– a questionable interpretation for reasons that I will elaborate upon in a subsequent post –- Kemmler quite clearly opined that a method of execution can be cruel when it "involve[s] torture or a lingering death."  These words imply no scienter requirement at all on the part of the executioner or the State.  When one condemned to hang slowly asphyxiates because the executioner has negligently used a rope that is too short, one could hardly say that the execution does not "involve . . . a lingering death."  And one might imagine many deaths occurring without any human cause –- say, being eaten alive by wild animals or falling into a volcano –- that we might describe as "involv[ing] torture."

The snippet from Resweber provides even less support for Justice Thomas’ position.  In that case, the condemned claimed that a second attempt at electrocution would violate the Eighth Amendment after a failed first attempt.  The Court rejected that argument, commenting: "There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution."  Again, far from requiring that pain be purposeful for a violation of the Eighth Amendment to occur, the Court is suggesting that it is enough that "unnecessary pain [be] involved," without any intent requirement.  Moreover, Justice Thomas also quoted the Resweber Court as observing:  "The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot . . . add an element of cruelty to a subsequent execution."  Now this passage might mean what Justice Thomas supposes it means:  that unless the botched execution is within the deliberate design of the State, the Eighth Amendment is not violated.  However, it might also support the notion that a foreseeable accident during a first attempt might render a second attempt unconstitutional.  Yet Justice Thomas blithely ignores this possibility and abruptly ends his discussion of the precedents.

His very next sentence, opening up a new section, begins:  "In light of this consistent understanding of the Cruel and Unusual Punishments Clause as forbidding purposely torturous punishments . . . ."  Come again?  Justice Thomas has failed to show that this has been the "consistent understanding" at all.  Instead, he has simply ignored the language in the opinions that he himself has quoted that does not support his thesis.  He has, in short, swept his opponent's chess pieces off the table.  [Mike Mannheimer]

Huge gains reported at crime lab's DNA unit

MAYNARD - The M-48 sits on a countertop inside a clean room where masks and gloves are required wear. It is a large, rectangular machine that resembles a doughnut box with a see-through pane, and it is one of the Commonwealth's most important crime-fighting tools.The M-48 delicately extracts DNA. "It's as if DNA were in an egg yolk," said Kristen Sullivan, supervisor of the DNA Unit at the Massachusetts State Police crime lab. "And this machine breaks open the yolk to release it."The M-48 does in an hour what it would take dozens of technicians to do in weeks.

Soon, another M-48 will be operational at the lab, along with other automated stations that will relieve humans of the tedious and time-consuming jobs of DNA extraction, separation, and amplification.

Roundly criticized in recent years for inefficiency and mishandling of DNA and other evidence, some of it crucial to apprehending or prosecuting dangerous felons, the crime lab has managed to dramatically slash its backlog and turnaround time, Governor Deval Patrick said yesterday, addressing about 600 people at the Seaport Hotel in South Boston attending the 14th annual Massachusetts Prosecutors Conference.

John Grossman, the undersecretary of forensic science and technology, said the turnaround is the result of better management, more automation, and increased funding that has allowed the lab to hire 10 chemists since last year. There are currently 23, and as many as 10 more could be added by next year, Grossman said. The lab has a budget of $17 million, and Patrick is asking for an additional $2.2 million for fiscal 2009.

The lab has recently analyzed DNA evidence that law enforcement officials said was important to several cases, including that of Alex F. Scesny, 38, who is being held without bail after pleading not guilty to a charge stemming from the alleged rape of a girlfriend in a West Boylston motel last year. The Berlin resident has been declared a person of interest in the slayings of six women in Worcester and Middlesex counties.

"We have made significant progress in a short time, and I thank all levels of law enforcement and our prosecutors for their partnership in that effort," Patrick said. "We know that the work that takes place at those labs is a force multiplier."

According to statistics provided by State Police, processing a DNA case required an average of 91 days in late 2006. By the beginning of this year, the average time was 60 days.

In the last three months of 2006, 112 cases were completed. That figure soared to 330 in the first three months of 2008.

At the crime lab's drug unit, similar results were noted, with the average number of backlogged cases plummeting from 1,889 to 556, and the average processing time dropping from 93 days to 31 days. [Mark Godsey]

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Criminal Law Scholar Bowers to Join Virginia Law School Faculty

Josh Bowers, a legal scholar and former defense attorney who specializes in innovative examination of the real-world application of criminal law, will join the Law School this fall.

Bowers is currently a Bigelow Teaching Fellow and lecturer of law at the University of Chicago Law School. Prior to that, he spent three years as a staff attorney with The Bronx Defenders, and also was an associate at Morvillo, Abramowitz, Grand, Iason & Silberberg, a white-collar criminal defense firm in New York City.

He’s published articles on the effectiveness of drug courts, the intersection of plea bargaining and innocence, and the use of low-ball plea offers as a prosecutorial tool to mute communal resistance to unpopular police policies.

“Josh is already off to an impressive start as a criminal procedure scholar,” said Professor Darryl Brown. “I think our students will really benefit from Josh's years as a criminal defense attorney, and he helps us achieve a nice balance on the criminal law faculty between those with government experience versus defense experience, and state practice versus federal practice experience.”

An undercurrent in all of his research so far is the idea that enforcement of high-stakes cases — such as high-profile felonies — is “something of a different animal” than enforcement of low-stakes  cases, which are typically misdemeanors, Bowers said.

As an example, he pointed to the ways in which prosecutors negotiate plea bargains. The conventional perspective is that the prosecutor takes on the role of a “wealth maximizer” who seeks the longest sentence on the highest charge when negotiating a plea agreement, he said.

“But that’s only half right,” Bowers said. “Prosecutors are always conviction maximizers — that’s the easiest measure of their job success — but when it comes to low-stakes cases, it’s not clear at all that they are sentence maximizers.”

Brown said Bowers’ research on the subject has already affected the way he teaches criminal adjudication at the Law School. [Mark Godsey]

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Government Pushes Criminal Prosecution of Unauthorized Immigrant Workers

N.Y. Times: Waterloo, Iowa —  In temporary courtrooms at a fairgrounds here, 270 illegal immigrants were sentenced this week to five months in prison for working at a meatpacking plant with false documents.

The prosecutions, which ended Friday, signal a sharp escalation in the Bush administration’s crackdown on illegal workers, with prosecutors bringing tough federal criminal charges against most of the immigrants arrested in a May 12 raid. Until now, unauthorized workers have generally been detained by immigration officials for civil violations and rapidly deported.

The convicted immigrants were among 389 workers detained at the Agriprocessors Inc. plant in nearby Postville in a raid that federal officials called the largest criminal enforcement operation ever carried out by immigration authorities at a workplace.

Matt M. Dummermuth, the United States attorney for northern Iowa, who oversaw the prosecutions, called the operation an “astonishing success.”

Claude Arnold, a special agent in charge of investigations for Immigration and Customs Enforcement, said it showed that federal officials were “committed to enforcing the nation’s immigration laws in the workplace to maintain the integrity of the immigration system.”

The unusually swift proceedings, in which 297 immigrants pleaded guilty and were sentenced in four days, were criticized by criminal defense lawyers, who warned of violations of due process. Twenty-seven immigrants received probation. The American Immigration Lawyers Association protested that the workers had been denied meetings with immigration lawyers and that their claims under immigration law had been swept aside in unusual and speedy plea agreements.

Continue reading article. [Brooks Holland]

Adam Liptak Examines Elected Judges in the United States

N.Y. Times: Last month, Wisconsin voters did something that is routine in the United States but virtually unknown in the rest of the world: They elected a judge.

The vote came after a bitter $5 million campaign in which a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist. The challenger unseated the justice with 51 percent of the vote, and will join the court in August.

The election was unusually hard-fought, with caustic advertisements on both sides, many from independent groups.

Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.

“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. “You come out of this completely shattered,” Judge Baissus said.

The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.

“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.

Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.

In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.

Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.

“To the rest of the world,” Hans A. Linde, a justice of the Oregon Supreme Court, since retired, said at a 1988 symposium on judicial selection, “American adherence to judicial elections is as incomprehensible as our rejection of the metric system.”

Sandra Day O’Connor, the former Supreme Court justice, has condemned the practice of electing judges.

“No other nation in the world does that,” she said at a conference on judicial independence at Fordham Law School in April, “because they realize you’re not going to get fair and impartial judges that way.”

Continue reading article. [Brooks Holland]

Pa. lawmakers: No parole for violent criminals

Standing next to pictures of the three men accused in the killing of Police Sgt. Stephen Liczbinski, State Rep. John M. Perzel today issued this message: Violent offender - no parole.

"We've had enough of repeat violent criminals murdering and terrorizing our loved ones and our neighborhoods," said Perzel, announcing legislation aimed at making violent offenders serve their maximum sentences.

Liczbinski's murder, Perzel said, was "the last straw."

He was joined by Reps. John Taylor and George T. Kenney Jr. All are Philadelphia Republicans.

Taylor noted that the men accused in Liczbinski's shooting death - Eric Floyd, Levon Warner and Howard Cain - all had long criminal records and were on parole. Cain was killed by police minutes after Liczbinski was shot. Floyd and Warner are charged with murder.

"In the event that the Board of Probation and Parole did what the system provided," Taylor said in reference to their cases, "the very system of parole no longer works, and we have to make drastic changes to the system."

In an interview, Malik Aziz, executive director of the Mayor's Office for the Reentry of Ex-Offenders, said that a law eliminating parole was not the solution.

"It's legislation that's about punishment, and not rehabilitation or even prevention," Aziz, himself an ex-offender, said. "That's not going to deter crime."

The proposed legislation would eliminate parole and early-release programs for any offender convicted of rape, robbery, murder, aggravated assault, or any crime with a gun.

It also would require that mandatory sentences for gun offenses be served consecutively and not concurrently with other sentences.

And parole for other inmates would have to be granted by a majority of the nine-member parole board. Currently, parole can be granted by a two-member panel. [Mark Godsey]

Continue Reading "Pa. lawmakers: No parole for violent criminals"

Georgia Man's Death Sentence Commuted Hours Before Scheduled Execution

From The Atlanta Journal-Constitution online:  "In just the third time out of 24 requests since 1995, the Georgia Pardons and Parole Board on Thursday commuted a death sentence, just hours before the convicted killer was to be executed by lethal injection.

"The five-member board commuted admitted murderer Samuel David Crowe's death sentence to life without parole less than 2 1/2 hours before he was scheduled to die Thursday evening for a crime 20 years ago."  Read the rest of the article here.  [Mike Mannheimer]

UN Faults US on Racism

The UN’s Committee on the Elimination of Racial Discrimination harshly criticized the US record on race after considering oral and written testimony submitted by the US government. In its conclusions issued today, the committee urged the US to rectify the “stark racial disparities” in criminal justice systems throughout the country. 

“The UN is telling the US that it needs to deal with an ugly aspect of its criminal justice system,” said Alison Parker, deputy director of the US Program at Human Rights Watch. “The committee outright rejected the government’s claim that more black kids get life without parole sentences because they commit more crimes.” 

The UN committee condemned what it found to be racial disparities in the death penalty and in the sentencing of youth to life without parole for crimes committed when they were under 18, a practice the committee wants stopped. Further, the committee called on authorities to take steps, including a moratorium on the death penalty, to root out racial bias. 

The committee also dismissed claims by the US government that it did not have the power to examine the detention of non-citizens at Guantanamo. It urged the US to guarantee “enemy combatants” judicial review of the lawfulness and conditions of their detention. 

“Once again, the Bush administration has been told by a major human rights body that it is not above the law when it comes to the war on terrorism,” Parker said. “The US should reverse its decision to deny judicial review to non-citizen enemy combatant detainees.”  [Mark Godsey]

Continue Reading UN Faults US on Racism

Over Three in Five Americans Believe in Death Penalty

Over the past few years there have been many high profile cases where those on death row have been found to be innocent and some states have halted executions. In the minds of Americans, this may have had an impact as the number of those who believe in the death penalty has declined since 2003.

Currently, 63 percent of Americans believe in the death penalty while three in ten (30%) are opposed to it. Five years ago, almost seven in ten (69%) believed in it while 22 percent were opposed to it. In 1965, when The Harris Poll^® first started asking this question, just under half of Americans (47%) were opposed to the death penalty while 38 percent believed in it.

These are some of the results of a Harris Poll of 1,010 adults surveyed by telephone between February 5 and 11, 2008 by Harris Interactive^®.

Death Penalty as a Deterrent

One question with regard to the death penalty is whether or not it serves as a deterrent to others. Just over half (52%) of Americans believe that executing people who commit murder does not have much effect on deterring others from committing murder. Two in five (42%) say that executing people does deter others from committing murder. These numbers are almost identical to 2003 as well as 2001, so attitudes on this issue appear to be holding steady. However, this is a difference from 1976. Then, almost six in ten (59%) believed executing people deterred others while one-third (34%) believed that it did not have much effect.

Change in Number of Executions

When it comes to whether people would like to see an increase or decrease in the number of convicted criminals who are executed, there is a bit of a divide among Americans. Just over one-third (36%) believe there should be an increase while one-quarter (26%) say there should be a decrease and three in ten (31%) believe there should be no change. While the number of Americans who believe there should be an increase has not changed since 2003, the number of those saying a decrease has increased from 21 percent. Looking back a decade, in 1997 over half (53%) of Americans believed there should be an increase and just 14 percent said a decrease in the number of executions.

Convictions of Innocent People for Murder

There is one issue almost all Americans agree on – 95 percent of U.S. adults say that sometimes innocent people are convicted of murder while only 5 percent believe that this never occurs. This is a number that has held steady since 1999. Among those who believe innocent people are sometimes convicted of murder, when asked how many they believe are innocent, the average is 12 out of 100 or 12 percent. In looking at this by race and ethnicity, African Americans believe more innocent people are convicted than both Whites and Hispanics (25% versus 9% and 12% respectively). Democrats also believe more innocent people are convicted than Republicans (15% versus 6%).

Now, among this large group who believe innocent people are sometimes convicted of murder, the question becomes does this change the minds of people on the death penalty. When asked to suppose they believed that quite a substantial number of innocent people are convicted of murder, over half (58%) say they would then oppose the death penalty while just over one-third (35%) would believe in it. One impact of the recent cases in the news may be the change over time on this question. In 2000, over half (53%) of those who believe innocent people are convicted of murder said they would believe in the death penalty while 36 percent said they would oppose it. [Mark Godsey]

Continue Reading Over Three in Five Americans Believe in Death Penalty 

Executions Resume, as Do Questions of Fairness

The release of the third death row inmate in six months in North Carolina last week is raising fresh questions about whether states are supplying capital-murder defendants with adequate counsel, even as an execution on Tuesday night in Georgia ended a seven-month national suspension.

In all three cases, North Carolina appeals courts found that evidence that would have favored the defendants was withheld from defense lawyers by prosecutors or investigators. In two of the cases, including that of Levon Jones, who was released on Friday after 14 years on death row, the courts said the defendants’ lawyers had failed to mount an adequate defense. Nationwide, Mr. Jones’s release was the sixth in a year.

John Holdridge, director of the A.C.L.U. Capital Punishment Project, which provided representation for Mr. Jones, said the successful appeals showed that the problem with the death penalty was not the method of execution — the issue ruled on by the Supreme Court last month — but instead “poor people getting lousy lawyers.”[Mark Godsey]

Continue Reading Executions Resume, as Do Questions of Fairness

Cleared by DNA, man tries to reclaim his life

James Woodard is slowly returning to life. He is starting over after spending 27 years behind bars. He was wrongly imprisoned and cleared by DNA.

Routine chores are a test of endurance when the only identification card in his wallet is issued by the Texas prison system.

With his new friend, Clay Graham of the Innocence Project of Texas, serving as his guide and driver, Woodard is on the hunt for the basics of everyday life.

When he went off to prison, Ronald Reagan was president, gas was cheap, AIDS was barely on the radar and no one had a cell phone or a personal computer.

"It's sort of like waking up from a dream," Woodard said, walking through the corridors of Dallas City Hall, trying to track down his birth certificate. "When you first wake up you are first kind of groggy and then as time passes you get more coherent."

He may be free, but he doesn't have his life back yet -- or even proof of his life. He crisscrosses the city looking for the birth certificate. Watch Woodard make the rounds

He can't open a bank account with a prison-issued I.D. He can't get a state I.D. card without a birth certificate or Social Security card. It's not easy starting over. Woodard calls it an "adventure."

Woodard was convicted of raping and murdering his girlfriend in 1981 and sentenced to life in prison. He was released on April 29, the 17th Dallas County inmate to be exonerated by DNA testing.

In one aspect at least, Woodard and the 16 others are lucky; the evidence that freed them was preserved even after their appeals were exhausted and the courts finalized their convictions. If they had been tried in a county or city that has no preservation laws, the DNA to clear them would have been destroyed long ago.

But more and more counties and states are passing laws for evidence preservation, according to the Innocence Project, practicing what Dallas County has long been doing. [Mark Godsey]

Continue Reading Cleared by DNA, man tries to reclaim his life

Eye Wtiness Identification Reform: Flaws in the ABA’s Jury Instruction on Cross-Race

At a groundbreaking two-day eye-ID litigation conference in NYC in March co-sponsored by the Eyewitness ID Reform Litigation Network, we addressed the issue of cross-race instructions, including the ABA version referred to this week at the Kansas Defenders blog. In short, while it is certainly good news that the ABA is paying attention to this issue, since the average instructions on eye-ID are woefully inadequate, the ABA instruction is far from ideal for the following reasons.

First, the initial language is conditional. “You ‘may’ consider, if you think it is appropriate …,” instead of you “should” consider.

Second, there is no mention of the numerous scientific studies that have shown, empirically, that cross-racial bias exists. In cases where experts have not testified at trial on the subject (i.e., most cases), jurors are left ignorant of the copious social science research on the topic. Instead of stating that “scientific studies have shown,” the court cites the amorphous “ordinary human experience.”

Third, the instruction suggests erroneously that sufficient contacts with another race may well overcome cross-race bias. Again, no science is cited. Moreover, it appears that contacts alone do not offset cross-race bias; rather, it is exposure combined with differentiating tasks (i.e., merely living in a neighborhood versus teaching a class of 30 in which one must distinguish among members) that might mitigate the effect, but even then the mitigation appears to be minimal.

Fourth, there is no discussion of prejudice (i.e., that cross-race bias exists in people seemingly without prejudice).

A better instruction (though not a perfect one), and one which I would encourage lawyers to propose instead of the ABA version, can be found in Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984) [Mark Godsey]

Continue Reading Flaws in the ABA’s Jury Instruction on Cross-Race

DNA cleared them, but they'll never feel free

Wiley Fountain is homeless just five years after he walked out of prison an innocent man. He is one of the 17 men wrongfully convicted in Dallas County, Texas, then cleared by DNA evidence. He was one of the lucky few to receive financial compensation from the state, but the $190,000 or so that made it into his pocket is long gone.

For awhile, Fountain wandered the streets of Dallas, looking for aluminum cans to trade in for cash. He earned the occasional meal by cleaning the parking lot of a restaurant. At night he had nowhere to go.

Now he's nowhere to be found. Just as the headlines of his release vanished from the front pages of the newspaper, Fountain, 51, has disappeared. And so have his hopes for a fresh start after spending 15 years in prison for an aggravated sexual assault he did not commit.

Clay Graham, a policy director with the Innocence Project of Texas, spends many days worrying about Fountain. In March, he received a phone call with the news that Fountain had been arrested on a theft charge and was sitting in the Dallas County jail. Graham rushed over to talk with him.

"He said being homeless ain't so bad," Graham recalled. "That's when I thought something horrible must have happened to him in prison."

A few weeks later, Fountain was released from jail and disappeared.

Fountain's story doesn't come as a shock to Jeff Blackburn, one of the lead attorneys with the Innocence Project of Texas, who represents many of the exonerated former convicts. [Mark Godsey]

Continue Reading: DNA cleared them, but they'll never feel free

New Article Spotlight: Initiating a New Constitutional Dialogue: The Increased Importance under AEDPA of Seeking Certiorari from Judgments of State Courts

Western New England CrimProf Giovanna Shay has published Initiating a New Constitutional Dialogue: The Increased Importance under AEDPA of Seeking Certiorari from Judgments of State Courts on SSRN; it will be published in the William and Mary Law Review.  The abstract:  The Anti-Terrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine.

Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a dialogue (as described by Robert M. Cover and T. Alexander Aleinikoff in a 1977 article). This dialogue served to articulate the broad constitutional principles set forth in Supreme Court precedent. AEDPA has effectively ended the conversation, because under AEDPA federal courts lack the power to resolve emerging constitutional issues in the context of state prisoners' federal habeas petitions. Now that only Supreme Court precedent can provide the basis for federal habeas relief under AEDPA, it is more important for open questions to be presented to the Supreme Court. Unless cert is sought and granted in cases arising out of state criminal proceedings, constitutional criminal doctrine may be frozen. Current certiorari practice is out of step with this reality. Our analysis of the procedural posture of criminal cases in which certiorari was granted by the Supreme Court over the past twelve years demonstrates that, since 1995, the Supreme Court's certiorari grants in criminal cases have been tilting away from federal prisoners' direct appeals and towards state prisoners' federal habeas and (to a lesser degree) state court direct appeals. Because the Court is not, as a general matter, using certiorari grants in state prisoners' federal habeas cases to develop doctrine, it appears that certiorari from state court direct appeals is poised to become the primary vehicle for such development. Yet an empirical analysis of certiorari petitions filed in the October 2006 Supreme Court term reveals a gap between this opportunity for doctrinal development and practitioners' current certiorari-seeking behavior. We coded 348 paid certiorari petitions and a sample of 300 in forma pauperis petitions, categorizing cases by procedural posture. Although federal prisoners' direct appeals are declining as a percentage of annual certiorari grants in criminal cases, this group of cases remains the leading category of criminal cert filings. Given that there are far more state criminal proceedings each year than federal prosecutions, we argue these trends demonstrate an opportunity to file more and better certiorari petitions from state criminal proceedings. We urge the criminal defense community to close this cert gap, both to ensure a better standard of review for individual clients and to promote continued development of the law."  Full article here.

The Rest of Their Lives: Life without Parole for Youth Offenders

Youth (persons below the age of 18) can and do commit terrible crimes, causing enormous suffering to victims and their families. When youth commit such crimes,they should be held accountable, but in a manner that reflects their age and immaturity and their special capacity for rehabilitation.

Instead, in 39 US states and under federal law, teens who are too young to vote, buy cigarettes, or serve on the juries they appear before, are tried as adults and, if convicted, are sentenced to juvenile life without parole (JLWOP). Life without parole means that a young person is sentenced to die in prison.

A sentence of juvenile life without parole is cruel, unfair, and unnecessary. It sends an unequivocal message to youth that they are beyond redemption. It erroneously presumes that allowing youth offenders a parole hearing (which is not a guarantee ofrelease) would fail to protect public safety and be unfair to victims. It also ignoresthe differences between adults and children—differences we accept as a matter of common sense, and which science fully recognizes. [Mark Godsey]

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Funding the Second Chance Act

A NY Times editorial urges Congress to appropriate full funding to the Second Chance Act. Especially noteworthy is the reminder that some state governments are already making a serious effort to reduce recidivism with programs that help offenders build a new life after their release from prison.

In Illinois — where the inmate population has doubled since the late 1980s — Gov. Rod Blagojevich has begun a promising re-entry program that could become a national model. The comprehensive plan includes drug treatment, job training and placement and a variety of community-based initiatives designed to help newly released inmates forge successful postprison lives.

Illinois is also revamping its parole system by hiring more parole officers and changing regulations so that parolees who commit lesser violations are dealt with in their community — with counseling, drug treatment or more vigilant monitoring — rather than being reflexively sent back to prison. [Mark Godsey]

Continue Readung "Funding the Second Chance Act"

Consensus grows for Texas innocence commission

Top judges, lawmakers and newspapers in Texas are calling for the creation of a state innocence commission to study the causes of wrongful conviction and recommend policy reforms to prevent future injustice.

The Austin American-Statesmen editorial board wrote this weekend that they hoped the May 8 Summit on Wrongful Convictions in the Texas Senate would spark renewed momentum for an innocence commissions.

“It is unacceptable that innocent people are convicted while the real culprits get away with rape, murder and other violent crimes. That approach is not tough on crime - it’s dumb on crime. …Anyone interested in justice - regardless of political philosophy or party affiliation - has a stake in finding a solution.”

An editorial in Saturday’s Houston Chronicle calls on lawmakers to avoid partisan bickering over the creation of a panel to study the issue. [Mark Godsey]

Continue Reading "Consensus grows for Texas innocence commission"

A Closer Look: Racial Tensions Behind Bars

Do racial tensions in prison simply reflect what goes on in communities across the country?

For more, NPR's Tony Cox speaks with Skipp Townsend — a community intervention specialist at the Los Angeles-based organization Second Chance at Loving Life — and Robert Richardson, program director for Emmanuel Community General Services in Portland, Oregon. [Mark Godsey]

Listen to "Do racial tensions in prison simply reflect what goes on in communities across the country?"

Reports Find Racial Gap in Drug Arrests

More than two decades after President Ronald Reagan escalated the war on drugs, arrests for drug sales or, more often, drug possession are still rising. And despite public debate and limited efforts to reduce them, large disparities persist in the rate at which blacks and whites are arrested and imprisoned for drug offenses, even though the two races use illegal drugs at roughly equal rates.

Two new reports, issued Monday by the Sentencing Project in Washington and by Human Rights Watch in New York, both say the racial disparities reflect, in large part, an overwhelming focus of law enforcement on drug use in low-income urban areas, with arrests and incarceration the main weapon.

But they note that the murderous crack-related urban violence of the 1980s, which spawned the war on drugs, has largely subsided, reducing the rationale for a strategy that has sowed mistrust in the justice system among many blacks.

In 2006, according to federal data, drug-related arrests climbed to 1.89 million, up from 1.85 million in 2005 and 581,000 in 1980.

More than four in five of the arrests were for possession of banned substances, rather than for their sale or manufacture. Four in 10 of all drug arrests were for marijuana possession, according to the latest F.B.I. data. [Mark Godsey]

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Prostitution: Never A Victimless Crime?

Eliot Spitzer’s downfall spotlights a recurring question of crime policy: whether prostitution, the simple agreement to exchange compensation for sex, is a victimless crime that does not merit prosecution.

In two columns this week, Nicholas Kristof assures us that Spitzer’s date, Kristen, is “dangerously unrepresentative” of American prostitutes. Surely at $1,000 per hour, Kristen is in the elite company of high end sex providers, but she is not alone in that league, as an article in today’s local section of Kristof’s newspaper demonstrates. Perhaps it would be dangerous to think of Kristen as “representing” any other prostitute, but it equally dangerous to logic to dismiss Kristen and other sex workers who freely choose their work, simply because they belie the belief that an act of prostitution always has a victim. [Mark Godsey]

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