CrimProf Blog

Featured Download: Gershowitz on Eliminating Counties' Role in the Death Penalty

Adam M. Gershowitz (University of Houston Law Center) has posted Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty (Vanderbilt Law Review, Vol. 62, 2010) on SSRN. Doug Berman gives the piece a thumbs-up over at Sentencing Law and Policy. Here is the abstract:

In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense. Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system. All aspects of capital cases - charging, trial, appeal, and everything in between - can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.

Previewing the Coming Term (Part Nine): Graham v. Florida

[This is the ninth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-7412
Case: Graham v. Florida
Oral Argument: November 9, 2009

Issue:  Whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide crime.
[Another case raising similar issues and to be argued on the same day, Sullivan v. Florida, was previewed yesterday.]

Factual and Procedural History:  At age sixteen, petitioner was charged with (1) armed burglary with assault or battery, and (2) attempted armed robbery.  Petitioner pled guilty to the offenses in return for three years' probation and a twelve-month sentence in a pre-trial detention facility.

In 2004, after petitioner was released from jail, an affidavit of violation of probation was filed alleging petitioner committed an armed home invasion robbery.  At his probation revocation hearing, the State presented evidence establishing that petitioner committed the armed home invasion robbery, as well as similar robberies in an adjacent neighborhood.  Following this hearing, the trial court found petitioner guilty of the alleged violations and sentenced him to life imprisonment without the possibility of parole.  Petitioner was nineteen years old at the time of his sentencing. 

Petitioner appealed in the Florida District Court of Appeal, asserting both facial and as applied constitutional violations arising from his sentence.  The District Court of Appeal rejected both claims, affirming the lower court, finding there is no “per se ban on the sentencing of juveniles to life imprisonment,” and that petitioner’s sentence was not grossly disproportionate to his crime.  The Supreme Court of Florida denied discretionary review.  The U.S. Supreme Court granted a writ of certiorari on May 4, 2009.  Oral argument is scheduled for November 9, 2009.

Summary of Petitioner’s Argument:  Petitioner argues that, pursuant to Roper v. Simmons (2005), petitioner’s sentence is “grossly disproportionate when viewed through the prism of his status as a juvenile offender.”  According to petitioner, juveniles possess less maturity and an underdeveloped sense of responsibility.  Thus, they are more vulnerable and susceptible to negative and outside influences.  Consequently, according to petitioner, imprisoning juvenile offenders for life without parole for non-homicide offenses is unjustifiable.

According to petitioner, Roper supports his claim.  The rationales of rehabilitation and deterrence are not applicable to juveniles, and petitioner’s sentence is significantly greater than the average sentences for all offenders convicted in Florida of violent crimes or armed burglaries.  Consequently, petitioner requests the lower court’s decision be reversed and remanded.

Summary of Respondent’s Argument:  Respondent has not yet filed a merits brief.

Brief for Petitioner Terrance Jamar Graham

Cheliotis on Human Agency in the Implementation of Criminal Justice Policy

Leonidas K. Cheliotis  (Queen Mary University of London) has posted How Iron is the Iron Cage of New Penology? The Role of Human Agency in the Implementation of Criminal Justice Policy on SSRN. Here is the abstract:

This article addresses the extent to which the concept of ‘new penology’ is helpful in understanding penal currents, particularly as they relate to the older paradigms of retribution and rehabilitation. In the light of theoretical, historical and empirical evidence, support is lent to the arguments: that the new penology thesis downplays the role of human agency at the level of implementing criminal justice policies; that it ignores the potentially positive aspects of managerialism; and that it misses the continuity between past and contemporary penal features. It is concluded that, despite its merits, new penology remains a hypothesis, rather than a realized penal rationale.

"Did the Supreme Court Recognize an Innocent Person's Right Not to Be Executed?"

The title of an interesting column on FindLaw by Michael Dorf (Cornell Law School). Over at Sentencing Law and Policy, Doug Berman links to an article in the Atlanta Journal-Constitution discussing the reaction of the district court judge to whom the Supreme Court sent the original habeas petition filed in the Troy Davis case.

Conference: Philosophical Foundations of Criminal Law at Rutgers-Newark

[If you'd like CrimProf to list a conference that might be of interest to criminal law and/or criminal procedure professors, please send the details to crimprofblog@gmail.com.]

On Friday and Saturday, September 25-26, 2009, Rutgers School of Law-Newark will present a conference entitled "Philosophical Foundations of Criminal Law.

The program will consist of the following: 

FRIDAY, SEPTEMBER 25
9:00-9:15 am   
Welcome and Introduction by Dean John J. Farmer, Jr. 

9:15-10:45 am   
The Resurgence of "Character"?: Individuals, Types and Criminalisation - Nicola Lacey (LSE)
Criminal Responsibility and Criminal Liability - Antony Duff (Stirling)
Commentator: Kyron Huigens (Cardozo)

10:45-11:15 am   Break 

11:15 am-12:45 pm   
Are We All Consequentialists Now? - Mitchell Berman (Texas)

Towards a Jurisprudence of Criminal Procedure - Paul Roberts (Nottingham)

Commentator: Michael Cahill (Brooklyn)

12:45-1:45 pm   Lunch

1:45-3:15 pm
Crime, Law, and Political Philosophy - Richard Dagger (Rhodes)

Criminal Law and Political Theory - Matt Matravers (York)

Commentator: Alice Ristroph (Seton Hall)

3:15-3:45 pm   Break

3:45-5:15 pm  
Just Prevention: Preventive Justice and the Limits of the Criminal Law - Andrew Ashworth (Oxford) & Lucia Zedner (Oxford)

The Ontological Problem of "Risk" in Criminal Law - Peter Westen (Michigan)

Commentator: Adil Haque (Rutgers-Newark)

SATURDAY, SEPTEMBER 26
9:30-11:00 am
Beyond the Special Part - Lawrence Alexander (San Diego) & Kimberly Ferzan (Rutgers-Camden) Wrongdoing and Motivation - Victor Tadros (Warwick)
Commentator: Michelle Dempsey (Villanova)

11:00-11:30 am  Break 

11:30 am-1:00 pm
The De Minimis "Defense" to Criminal Liability - Douglas Husak (Rutgers-New Brunswick)
Just Deserts in Unjust Societies: An Offense-Specific Approach - Stuart Green (Rutgers-Newark)
Commentator: Youngjae Lee (Fordham)

1:00-2:00 pm  Lunch 

2:00-3:30 pm
Self-Defence and Punishment - John Gardner (Oxford) & Francois Tanguay-Renaud (Osgoode Hall) Criminal Law as Public Law: Police Powers and Justification - Malcolm Thorburn (Queen's)
Commentator: Vera Bergelson (Rutgers-Newark)

3:30-4:00 pm  Break 

4:00-5:30 pm
Criminal Liability in "Smart Environments" - Mireille Hildebrandt (Vrije Universiteit Brussels)
Title TBA - Christopher Wellman (Washington U.)
Commentator: Ekow Yankah (Cardozo)

5:30-5:45 pm  Closing thoughts

These papers, along with several others, will appear in a book entitled Philosophical Foundations of Criminal Law, edited by Antony Duff and Stuart Green, and published by Oxford University Press in 2010.
Additional information, including information about registration, can be obtained on the conference website:
http://law.newark.rutgers.edu/news-events/conference-philosophical-foundations-criminal-law

"ACLU lawsuit demands information on US border laptop search policy"

the story is at Jurist.

Previewing the Coming Term (Part Eight): Sullivan v. Florida

[This is the eighth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-7621
Case: Sullivan v. Florida
Oral Argument Date: November 9, 2009

Issue:  Whether the imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violates the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments. 

Factual and Procedural History:  Petitioner, Joe Sullivan, was arrested in 1989 at the age of thirteen and was indicted as an adult for sexual battery in violation of Florida law.  After a one-day trial, petitioner was convicted and sentenced to life imprisonment with no possibility for parole. 

On appeal, the First District Court of Appeal affirmed the conviction without opinion.  The Florida Supreme Court dismissed review without opinion.  After the U.S. Supreme Court decided Roper v. Simmons (2005), petitioner filed a motion for post-conviction relief, contending Roper rendered his life-without-parole sentence unconstitutional.  In 2007, the trial court dismissed the motion with prejudice, concluding petitioner’s invocation of Roper is “meritless,” citing Florida jurisprudence declining to extend Roper.

The Florida First District Court of Appeal summarily affirmed without opinion, denying rehearing and certification to the Florida Supreme Court.  On May 4, 2009, a petition for certiorari was granted by the U.S. Supreme Court.  Oral argument is scheduled for November 9, 2009.

Summary of Petitioner’s Argument:  According to petitioner, the constitutional logic of Roper controls this case and “requires the invalidation of a sentence of life imprisonment without parole imposed on a 13-year-old child.”  According to petitioner, only nine individuals in the entire country are serving life-without-parole sentences for crimes committed at age thirteen.  Consequently, these sentences are not the result of “legislative decisions that life in prison without parole is appropriate for children in this age range but rather results from the adventitious overlay of two legislative developments – legislation changing the boundaries of exclusive juvenile-court jurisdiction so as to make more children subject to adult-court prosecution; and legislation increasing the number of adult crimes punishable by life imprisonment without parole.”

According to petitioner, because the total national accumulation of life-without-parole sentences for 13-year-olds has been only nine, and in light of Roper, there has been a “radical repudiation of life without parole for children of this age [13].”  Consequently, petitioner requests the lower courts sentencing be reversed and remanded.

Summary of Respondent’s Argument:  No merits brief has yet been filed.

Brief for Petitioner Joe Harris Sullivan 

Hasnas on Corporate Criminal Liability

John Hasnas (Georgetown University) has posted The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability  (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

This article argues that there is no justification for corporate criminal liability. First of all, corporations are not moral agents capable of morally praise- or blameworthy action, and hence are not properly subject to punishment. Secondly, criminal punishment of corporations is inappropriate because 1) it advances none of the legitimate purposes of punishment, 2) it creates an unacceptable risk of prosecutorial error or abuse, and 3) it is not necessary to address a public harm. The only purpose served by threatening corporations with criminal punishment is to shift the balance in power between the prosecution and defense in white collar criminal cases radically in favor of the prosecution. However, this is inconsistent with the inherent liberal bias of the criminal law that embodies the normative assessment that an unrestrained government is a greater danger to citizens’ well-being than any number of individual criminals. Corporate criminal liability cannot be theoretically justified because it is directly violative of the theoretical structure of Anglo-American criminal law.

More on the Ninth Circuit's Steroids/Computer Search En Banc Opinion

The New York Times covered it in the sports section. CrimProf mentioned yesterday that Orin Kerr was blogging about this at The Volokh conspiracy, and he has more today, asking about retroactivity questions and stating, "I've been working in this area for over a decade, and I have never heard of a case that satisfies the Ninth Circuit's new procedural standards."

Previewing the Coming Term (Part Seven): Wood v. Allen

[This is the seventh in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-9156
Case: Wood v. Allen
Oral Argument Date: November 4, 2009

Issue:  (1) Whether the state court erred in concluding that, during the sentencing phase of a capital case, the defense attorney’s failure to present the defendant’s impaired mental functions constituted ineffective counsel; and (2) whether the 11th Circuit erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) in reviewing the state court decision.

Factual and Procedural History:  In 1994, petitioner, Holly Wood, was convicted of capital murder during a first-degree burglary.  The jury recommended a death sentence, and after a pre-sentencing report and a separate sentencing hearing, the trial judge sentenced petitioner to death.  On direct appeal, the Alabama Court of Appeals rejected petitioner’s appeal, and the Alabama Supreme Court affirmed.

After the U.S. Supreme Court denied petitioner’s original writ of certiorari, petitioner filed an Alabama Rule of Criminal Procedure Rule 32 petition for post-conviction relief, claiming (1) he is mentally retarded and not eligible for a death sentence, and (2) his trial counsel were ineffective by failing to investigate and present evidence of his mental deficiencies during the penalty phase.  After two evidentiary hearings, the Rule 32 court denied both of petitioner’s requests in two separate orders.

Following the issuance of these orders, and following subsequent U.S. Supreme Court jurisprudence, the Alabama Appeals Court remanded petitioner’s Rule 32 case.  On remand, the Rule 32 court denied petitioner’s claims, finding petitioner was not mentally retarded and his counsel were not ineffective.  The Alabama Appeals Court adopted and affirmed the Rule 32 court finding.  Subsequently, the Alabama Supreme Court denied certiorari.

Petitioner then filed a 28 U.S.C. § 2254 petition for relief.  The district court denied some claims, but granted relief on petitioner’s claim that his counsel were ineffective in the penalty phase by failing to investigate and present evidence of his deficient “intellectual functioning.”  On appeal, a divided panel of the Eleventh Circuit reversed, holding that petitioner had “failed to show the state courts made an unreasonable determination of the facts” because at a minimum, petitioner has not presented evidence, “much less clear and convincing evidence, that counsel” acted ineffectively.  The majority also held that petitioner had failed to establish prejudice.

The U.S. Supreme Court granted petitioner’s petition for a writ of certiorari on May 18, 2009.  Oral argument is scheduled for November 4, 2009.

Summary of Petitioner’s Arguments:  Petitioner argues that the Eleventh Circuit’s judgment, reversing the district court’s grant of habeas relief on petitioner’s ineffective assistance claim, should be reversed for three reasons. 

First, petitioner argues that trial counsel were ineffective because they terminated their investigation into petitioner’s mental deficiencies in the face of facts that any reasonable defense lawyer would have understood required follow-up, not abandonment.  Second, according to petitioners, the state court decision was based on an unreasonable determination of the facts in light of the totality of the evidence presented in the state court proceeding.  And third, petitioner contends the individual findings of fact in the state court record are rebutted by clear and convincing evidence, entitling petitioner to relief.

According to petitioner, the deficient performance of his counsel prejudiced his case as the jury was deprived of the opportunity to give “full consideration of evidence that [would] mitigate[] against the death penalty.”  Petitioner argues that if this evidence was presented, it is very likely that his conviction would have “resulted in at least one more vote for a sentence of life without parole.”  

Summary of Respondent’s Argument:  Respondent has not yet filed a merit brief.

Brief for Petitioner Holly Wood
 

Featured Download: Leon on Work Release as Economic Stimulus

At the very least, this manuscript has timeliness on its side. Chrysanthi S. Leon (University of Delaware - Sociology and Criminal Justice) has posted Working Paper: Work Release as Economic Stimulus: Overview of Current and Potential Usage in the 50 States on SSRN. Here is the abstract:

Work release programs are authorized by the statutes of all fifty states. Some states have clearly articulated work release programs while others are partial, with little statutory governance for their establishment or operation. Yet most correctional authorities agree that work release provides crucial transitioning into functional re-entry. As the recent crises in the California correctional system dramatized, overflowing systems can no longer be tolerated. The contemporary penal climate, which prioritizes economic efficiency and evidence-based corrections, is ripe for a re-invigoration of a tried and true technique. Therefore, in order to document the current state of work release in the U.S., we combined a review of statutory authorization with an examination of implementation. We begin by describing the reasons why work release makes sense, focusing on the example of Washington state, followed by a review of the current parameters of work release in state law. By examining how work release now works, we can suggest how best to take advantage of the interest in bringing economic efficiency to the correctional system.

The article cites statistics from the state of Washington indicating that the work-release program there in fiscal year 2007 saved taxpayers $3.82 for every dollar spent. Much of the piece addresses how various states address the many questions that arise in work release programs, such as "selection of participants, participant eligibility, specific eligibility restrictions, type of work, the control and use of their wages, the logistics of the operation of work release, and whether or not local law enforcement or the participant’s victim must be notified."  The piece also draws extensively from the Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community. Council of State Governments. Reentry Policy Council. New York: Council of State Governments. January 2005, which is available online

KC.

Yung on the Emerging Criminal War on Sex Offenders

Corey Rayburn Yung  (The John Marshall Law School) has posted The Emerging Criminal War on Sex Offenders on SSRN. Here is the abstract:

This article addresses four central questions. First, what is the difference between normal law enforcement policy and a 'war' on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act ('AWA') in combination with other sex offender laws triggered a transition to a criminal war on sex offenders? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, can it be stopped? By reviewing America’s history of criminal wars, primarily in the War on Drugs, the article identifies three essential characteristics of a criminal war: marshaling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice and society.

Previewing the Coming Term (Part 6): Pottawattamie County v. McGhee

[This is the sixth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-1065
Case: Pottawattamie County et al. v. McGhee et al.
Oral Argument Date: November 4, 2009

Issue:  Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation and introducing that same testimony against the criminal defendant at trial.

Factual and Procedural History:  In 1978, Curtis W. McGhee, Jr., and Terry Harrington, respondents, were convicted of murdering a retired police officer.  McGhee and Harrington were each sentenced to life in prison.  In 2002, the Iowa Supreme Court reversed Harrington’s conviction and remanded for a new trial, finding the prosecutor failed to disclose evidence of an alternative suspect.  The prosecutor concluded it would be impossible to retry Harrington and also agreed to move to vacate McGhee’s conviction.  McGhee agreed to enter a plea to second degree murder in exchange for a sentence of time served.  With these agreements, McGhee was released.

Both McGhee and Harrington brought civil rights actions against Pottawattamie County, Iowa, and the former prosecutors and officers involved in the initial investigation and prosecution.  They argued that these individuals used perjured and fabricated testimony and withheld evidence in violation of the Constitution.  The district court found the defendants were entitled to qualified immunity on certain claims, and denied qualified immunity and absolute immunity on the remaining claims.

Two of the original defendants filed a consolidated interlocutory appeal from the denial of qualified, absolute and sovereign immunity, arguing the district court (1) used an improper standard for determining probable cause in the absolute immunity analysis; (2) erred in waiving sovereign immunity for the prosecutors, and (3) erred in concluding McGhee and Harrington alleged a constitutional violation when the district court denied qualified immunity to the two defendant petitioners. 

The Eighth Circuit held the prosecutors’ procurement of false testimony violated respondents’ right to substantive due process; moreover, prosecutors were not entitled to immunity for that violation “where the prosecutor was accused of both fabricating evidence and then using the fabricated evidence at trial.”  The prosecutors filed a writ of certiorari, which was granted.  Oral argument is scheduled for November 4, 2009.

Summary of Petitioner’s Argument:  Petitioners argue they are absolutely immune from claims that they introduced perjured testimony at respondent’s trials.  According to petitioners, the courts below should not have “abrogated petitioners’ absolute immunity where the alleged constitutional injury was a conviction in violation of due process.”

Petitioners argue that instead of analyzing the relevant fair trial claims, the courts below erroneously focused on pre-trial conduct.  According to petitioners, liability against a prosecutor for the outcome of a trial, in this case a conviction in violation of due process, may not be predicated on conduct before trial.

Summary of Respondent’s Argument: No brief on the merits has yet been filed.

Brief for Petitioner Pottawattamie County, Iowa, Joseph Hrvol, and David Richter

Ninth Circuit Issues En Banc Opinion in Steroid/Computer Search Case

The opinion in US v. Comprehensive Drug Testing, Inc., is here. Orin Kerr is blogging about it at The Volokh Conspiracy.

Previewing the Coming Term (Part 5): Smith v. Spisak

[This is the fifth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-724
Case: Smith v. Spisak
Oral Argument Date: October 13, 2009

Issue:  Whether the Sixth Circuit contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) by improperly extending Mills v. Maryland.

Facts and Procedural History:  In March 1983, Frank G. Spisak, Jr., respondent, was indicted by an Ohio grand jury on four counts of aggravated murder, three counts of aggravated robbery, one count of attempted murder, and one count of receiving stolen property.  Respondent pled not guilty by reason of insanity, and was subsequently determined to be competent to stand trial.

 In July 1983, respondent was convicted on all counts and specifications, minus one of the aggravated robbery counts.  Following the mitigation phase of the trial, the jury recommended a sentence of death, which was accepted by the trial court.  Respondent was sentenced to death in August, 1983, as well as terms of seven to twenty-five years in prison for each attempted murder and aggravated robbery conviction.

Respondent timely appealed to the Ohio Court of Appeals, which found respondent was improperly convicted of two counts of aggravated murder, and vacated one of the two convictions.  The court affirmed the conviction and death sentence on the other aggravated murder charges. 

Respondent subsequently filed several unsuccessful intervening appeals requesting remand to the Ohio Supreme Court.  In November 1986, respondent filed a merits brief with the Ohio Supreme Court, raising sixty-four proposed errors of law.  The Ohio Supreme Court affirmed respondent’s convictions and sentence.

Respondent then petitioned the U.S. Supreme Court for a writ of certiorari, which was denied.  (Spisak v. Ohio, 489 U.S. 1071 (1989)).  In December 1995, respondent filed a Petition for Writ of Habeas Corpus with the Sixth Circuit.  Subsequent to that filing, respondent filed a motion with the Sixth Circuit in June 1997 to stay his execution, which was granted.  On appeal, the Sixth Circuit reversed and vacated respondent’s death sentence on the grounds that (1) respondent’s trial counsel rendered ineffective assistance, and (2) the jury instructions violated Mills v. Maryland by requiring unanimity in the finding that the aggravating circumstances outweighed the mitigating factors present in respondent’s case.

The state filed a petition for certiorari, arguing the Sixth Circuit’s decision contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  The U.S. Supreme Court granted cert., vacated the decision below, and remanded the case to the Sixth Circuit for reconsideration in light of two recent Supreme Court cases interpreting the scope of AEDPA, Carey v. Musladin and Schriro v. Landrigan.  On remand, the Sixth Circuit held that neither case required reversal and reinstated its original opinion.  The state filed a second petition for certiorari, which the Supreme Court granted on February 23, 2009.  Oral argument is scheduled for October 13, 2009.

Summary of Petitioner’s Argument:  Petitioner argues that respondent, Spisak, is not entitled to habeas relief because (1) the penalty-phase jury instructions did not violate Mills v. Maryland, and (2) trial counsel’s closing argument was not constitutionally ineffective. 

First, according to petitioner, the jury instructions in this case were “fully consistent with the Eighth Amendment.”  Petitioner contends that the jury was not directed to enter any findings as to particular mitigating factors.  Consequently, according to petitioner, the Sixth Circuit “identified no sound basis for invalidating the instructions under Mills.”

Second, petitioner argues that trial counsel’s penalty-phase closing argument was neither deficient nor prejudicial under the two-pronged analysis of Strickland v. Washington.  According to petitioner, it was not deficient because counsel reasonably emphasized respondent’s mental defects as a mitigating factor and bolstered his own credibility with the jurors by acknowledging his client’s offensive views.  Further, it was not prejudicial because nothing defense counsel said could have affected the minds of jurors who had sat through a lengthy trial and heard respondent’s own “chilling, hate-filled testimony.”  Consequently, petitioner requests the Court to reverse the Sixth Circuit’s grant of respondent’s writ.

Summary of Respondent’s Argument:  Respondent argues that the Sixth Circuit properly reviewed the merits and underlying state court decision in determining that respondent was entitled to habeas relief on two independent grounds. 

First, respondent argues the Sixth Court properly determined that Ohio’s mitigation phase jury instructions violated the Supreme Court’s directives in Mills v. Maryland.  The Sixth Circuit properly reviewed the totality of the instructions and verdict forms and concluded there was a reasonable probability that a juror would have been foreclosed from considering and giving effect to the mitigation evidence presented.  Consequently, it was proper for the Sixth Circuit to find that permitting one juror to force a death sentence on the remaining jurors is the essence of a Mills error.

Second, respondent argues the Sixth Circuit also properly determined that respondent’s trial counsel was constitutionally ineffective in the closing argument he delivered during the mitigation phase of the case.  According to respondent, the Sixth Circuit properly determined that counsel’s improper emphasis of non-statutory aggravating circumstances, his overt attacks on respondent, “his incoherent ramblings on the justice system,” and his failure to argue the mitigating factors present in the case amounted to ineffective assistance of counsel.  Consequently, respondent argues the Court should affirm the Sixth Circuit’s granting of the writ.

Brief for Petitioner Keith Smith, Warden

Brief for Respondent Frank Spisak, Jr.

Miller on Arizona v. Gant and Buie Searches

Colin Miller (John Marshall Law School) has posted Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional on SSRN. Here is the abstract:

In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can 'as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.' While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways.

Buie was one of three Supreme Court opinions expansively reading the scope of searches incident to lawful arrests after it circumscribed their scope in 1969 in Chimel v. California. The other two opinions were Belton v. New York and Thornton v. United States, and, in its 2009 opinion in Arizona v. Gant, the Court expressly overruled Belton and rebuked Thornton as an application of Chimel, which it reaffirmed as continuing to define the boundaries of searches incident to lawful arrests. This article argues that, even without Gant, courts should have realized that they had grossly misconstrued the scope of suspicionless Buie searches, and that now, defendants and appellants should be able to raise Arizona v. Gant to argue that the reaffirmation of Chimel and the destruction of the Belton fiction together invalidate the suspcionless Buie search.

The CIA's Secret Interrogation Program

and documents recently released about it are discussed in the New York Times. The Times' bottom line:

But the strong impression that emerges from the documents, many with long passages blacked out for secrecy, is by no means one of gung-ho operatives running wild. It is a portrait of overwhelming control exercised from C.I.A. headquarters and the Department of Justice — control Bush administration officials say was intended to ensure that the program was safe and legal.

 The CIA inspector general's report, which (inter alia) describes the interrogation techniques, is here.

Cohen and Smith on Death Qualification

Ben Cohen and Robert J. Smith  (The Charles Hamilton Houston Institute for Race and Justice) have posted The Death of Death-Qualification on SSRN: Here is the abstract:

The Framers understood criminal petit juries to be responsible for making determinations of both fact and law. This 'jury review' power provided the people with a 'check' against the government's judicial function. Today, juries are limited solely to findings of fact. As Blackstone predicted, this erosion of the jury function did not pro-ceed with grand assault, but with minor deployments. The result is a less powerful citizenry, and an unchecked government. The modern jury's diminished power is of particular consequence in cases involving the "death-qualification" of jurors. At issue is whether the State may-at the outset of a capital prosecution-remove from a jury all those who appear to be opposed to imposing the maximum punishment allowed by law. Or, placed into a series of questions: What were the qualifications for jury service at the time of the Constitution's adoption? Will the United States Supreme Court support the slow accumulation of additional qualifications without addressing the residual erosion of the Sixth Amendment's guarantee? This Article considers the 'death-qualification' of jurors, including how the process arose, why the Court continues to justify its existence today, and how a proper historical understanding of the Sixth Amendment right to a jury trial requires that this practice be put to rest.

This Article will also highlight a second and more-global theme: the Court's Sixth Amendment jurisprudence is in the midst of an originalist revolution. Starting with Jones v. United States and continuing through Apprendi v. New Jersey, Ring v. Arizona, Blakely v. Washington, and Crawford v. Washington, the Court stands poised to refasten Sixth Amendment jurisprudence to its historical underpinnings. This "refastening" is no small undertaking. Courts have long undervalued, if not ignored, the original understanding of the Framers as to the nature and scope of the criminal jury. Focusing instead on questions of function and con-venience, the pre-Apprendi Court systematically eliminated requirements of jury unanimity, jury size, and the role of the jury as final arbiter as to whether a convicted felon will be sentenced to death. The modern Court's willingness to overturn precedent rooted in functional and ahistorical reasoning suggests that the jury may eventually re-ceive the full scope of its authority as envisioned by the Founders. Eliminating the death-qualification process is an important step in this transformation. At the time of the founding, citizen-jurors who believed the death penalty to be unconstitutional in any particular case or context would not have been subject to a 'for cause' challenge on the basis of partiality, for the ac-cused's right to an 'impartial jury' was simply a tool to eliminate relational bias and personal interest from the criminal adjudication process. A citizen's view on the constitutionality of a particular law did not constitute personal interest, but instead marked an important component of society's deliberative process. Modern 'death-qualification' jurisprudence frustrates the Framers' understanding as to the role of the criminal jury. Whereas the jury envisioned by the Framers had the power to rule on the constitutionality of the death penal-ty-though the force of any ruling applied only to the particular case on which they sat-a prospective juror today cannot even sit on a capital jury unless she promises that she would be able and willing to impose a sentence of death. The practical effect of 'death-qualification' is to expose the capitally accused to increased odds of receiving the death penalty, and to eliminate the voices of citizens who would opt to 'check' the government's decision to inflict this penalty. Worse, perhaps, is that as judges and justices attempt to determine how much opposition to the death penalty warrants a challenge for cause during voir dire, the discretion left to individual judges results in wildly different determinations. Though the exclusion of prospective jurors based upon their views on the death penalty was not permitted at common law or at the adoption of the Sixth Amendment to the United States Constitution, it is now a de facto component of capital proceedings. The Supreme Court has authorized the lower courts to wander from the historical basis of the Sixth Amendment. The overarching problem-beginning in Witherspoon v. Illinois and continuing throughout the Court's death-qualification jurisprudence-is that the development of an ahistorical standard for determining when views on the death penalty are too much has resulted in the creation of a juror exclusion process that substantially weakens the people's check. Allowing the exclusion of conscientious objectors from criminal juries began with state efforts to punish bigamy and slavery-abolitionists in the nineteenth century, but appellate courts' review of death-qualification procedures became firmly unhinged from the textual basis of the Constitution in Witherspoon. There, the United States Supreme Court, though recognizing that the State's removal of jurors opposed to capital punishment violated the Sixth Amendment, held that mere reversal of the subsequent death sentence was all that was necessary-as if a little violation of the Sixth Amendment was acceptable, or only providing half a remedy for a Sixth Amendment violation was required. The error continued in Wainwright v. Witt, where the Court endorsed and attempted to modify the 'balancing' test between the defendant's Sixth Amendment right to a jury trial and 'the State's legitimate interest in administering con-stitutional capital sentencing schemes.' The Court's death-qualification analysis descended to a constitutional nadir-from an originalist's perspective in Lockhart v. McCree, where the debate turned on whether social science studies established that the removal from the jury of Witherspoon-excludables led to a death-prone jury. Ultimately, the Lockhart Court subscribed to an ahistoric and textually absurd suggestion that the Sixth Amendment simply prohibited the exclusion of "distinct groups" such as blacks, women, and Hispanics. In the same way that Crawford overturned significant case law to hold that the Sixth Amendment right to confront witnesses required the exclusion of testimonial hearsay evidence regardless of the reliability of that evidence, and Apprendi and Blakely reversed long-standing precedent to maintain that the Sixth Amendment right to a jury determination of guilt required the jury to make factual findings even if a judge might be more accurate, this Article suggests that the Court should reevaluate-in its historical context-the Sixth Amendment right to a jury trial. Specifically, the Court should reconsider the framework laid out in Witherspoon v. Illinois, Wainwright v. Witt, and Lockhart v. McCree to hold that the Sixth Amendment prohibits the state from excluding prospective jurors based upon their political or moral views. This Article begins by tracing the roots of death-qualification. In so doing, it will illustrate how historical inaccuracy as to the meaning of the term 'impartial' led to the first for-cause exclusion of death penalty objectors. The Article will then illustrate how the Court arrived at the same anti-objector result by altogether shifting away from the original understanding of the proper role of the criminal jury. After reviewing the Court's current death-qualification jurisprudence, the Article will explore the modern Court's willingness to confront and reverse Sixth Amendment precedent where ahistorical or functional considerations subvert the Framers' original understanding of the right to a jury trial. Next, the Article will detail the basis for concluding that the Framers would have found death-qualification abhorrent to their understanding of the jury function in a democracy. It will conclude by showing what is at stake for the capitally accused individual, as well as for society. The time for the death of death-qualification is now.

Previewing the Coming Term (Part 4): Padilla v. Kentucky

[This is the fourth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-651
Case: Padilla v. Commonwealth of Kentucky
Oral Argument Date: October 13, 2009

Issue:  Whether the Sixth Amendment’s guarantee of effective assistance of counsel (1) requires a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and (2) if there is no such advice, and that misadvice about deportation induces a guilty plea, whether the misadvice amounts to ineffective assistance of counsel and warrants setting aside the guilty plea.

Factual and Procedural History:  Petitioner, Jose Padilla, who is a native of Honduras, was indicted by a state grand jury for trafficking more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number.  Represented by counsel, petitioner entered a guilty plea to the three drug-related charges in exchange for a dismissal of the remaining charge and a total sentence of ten years.

Two years later, petitioner filed a motion for post-conviction relief, alleging his attorney was ineffective by misadvising him about the potential for deportation as a consequence of his guilty plea.  The state circuit court denied the motion on the basis that a valid guilty plea does not require the defendant be informed of every possible consequence of a guilty plea.

On appeal, the state Court of Appeals reversed, remanding the case for an evidentiary hearing.  The Court of Appeals concluded that counsel’s wrong advice in the trial court regarding deportation could constitute ineffective assistance of counsel.

The Kentucky Supreme Court rejected petitioner’s request for relief and held that, even when mandatory, deportation is only a “collateral consequence” of a conviction “outside the scope of the guarantee of the Sixth Amendment right to counsel.”  The Kentucky Supreme Court reasoned that a situation of “gross misadvice,” rather than mere silence or an omission, similarly failed to trigger Strickland and the Sixth Amendment. 

Petitioner filed a writ of certiorari, which was granted.  Oral argument is scheduled for October 13, 2009.

Summary of Petitioner’s Argument:  Petitioner argues that the Kentucky Supreme Court’s collateral consequences rule has no foundation in the Sixth Amendment and contradicts Supreme Court precedent.  According to petitioner, the collateral consequences doctrine arose and was created to define the duties of a court with regard to accepting guilty pleas under Federal Rule of Criminal Procedure 11, not with regard to the much broader issue of defense counsel’s effectiveness.  Thus, the Kentucky Supreme Court’s use of the collateral consequences doctrine was in error. 

Moreover, according to petitioner, the collateral consequences doctrine is contrary to Strickland, the “most basic ethical rules of the profession,” and specific professional standards of the American Bar Association and public defenders’ organizations requiring criminal defense counsel to investigate and advise clients about the collateral consequences of conviction (especially deportation).  According to petitioner, on any of these grounds, “Kentucky’s aberrant collateral-consequences rules should fall, and this case should be remanded for a determination of Padilla’s entitlement to an evidentiary hearing under state law.”

Summary of Respondent’s Argument:  Respondent argues that neither the Supreme Court nor the federal circuits have ever held that the “trial court or defense counsel must inform defendants of all possible consequences flowing from a guilty plea.”  Consequently, a defendant’s misunderstanding of a collateral matter “does not affect that defendant’s understanding of the right to trial by jury, right of confrontation, the protection against self-incrimination, or any other right waived when pleading guilty.”

According to respondent, the near impossibility of cataloguing all potential collateral consequences of a criminal conviction illustrates that an ineffective assistance of counsel inquiry should be limited to whether the defendant voluntarily entered a guilty plea.  Advice about potential consequences collateral to a criminal prosecution, according to respondent, “is not a cognizable basis for claiming counsel ineffectiveness.”

Even if the Court decides to expand the protections of the Sixth Amendment to petitioner, according to respondent, the claim still fails as petitioner has “not demonstrated and cannot demonstrate how the criminal proceeding was fundamentally unfair or that he suffered prejudice necessitating reversal under the second prong” of Strickland.

Brief for Petitioner Jose Padilla

Brief for Respondent Commonwealth of Kentucky

Alexander on Walen on Alexander (et al.) on Crime, Culpability, and Moral Luck (Alexander)

Last week, with tongue in cheek, I titled a blog post about my new book (with Kimberly Ferzan) as “The Last Word on Criminal Law.” As if to demonstrate to the whole world that I was only kidding, Alec Walen has posted a review of the book on SSRN. The review was summarized on CrimProf yesterday.

We thank Alec for his kind comments about our book and for the effort he has put in in criticizing it. His criticisms boil down to these four, to which we append our responses:

1. We don't justify treating mistakes of how much concern is "sufficient concern" as nonexculpatory when we treat mistakes of fact as exculpatory. Reply: But someone who treats subjecting people to huge risks for trivial reasons just is displaying insufficient concern even if he doesn't so regard it. On the other hand, as we argue in the book, one who doesn't know the riskiness of his behavior cannot be accused of insufficient concern on that ground alone.

2. We don't justify regarding negligence as nonculpable. Reply: Unfortunately, Walen doesn't engage the arguments we make in chapter 3 on this very point. His remarks suggest he holds the "culpability comes from the character defects that led the person to be unaware of the risk" position. But we deal with that position at some length, and Walen doesn't respond to our arguments.

3. Our repudiation of "result luck affects retributive desert" overlooks the many ways luck affects how we fare in life. Reply: Luck surely does this. But one doesn't have to be a luck egalitarian to deny that luck affects the blame or punishment we deserve. All Walen does is give some consequentialist reasons for singling out harm-causers among the persons deserving of punishment. He does nothing to show that those who imposed what they believed were the same risks but whose acts did not result in harm are less deserving of punishment.

4. In a footnote, Walen quarrels with our position on incomplete attempts and other inchoate crimes. Reply: Our position is surely controversial, and it does lead to the position Walen finds ludicrous (assuming the practical joker is, like the would-be murderer, brandishing a loaded gun that might accidentally discharge). That's a bullet we bite. But if one rejects our position, we demonstrate that one is led to the position that the act of intending harm is itself a culpable act, which then leads to the many puzzles and difficulties we describe in ch. 6. So there's a different bullet one needs to bite if one thinks ours is too hard on the teeth. We lay out that challenge in ch. 6, but Walen doesn't take it up.

LAA