Interest and Perspective
Our views depend on our priorities and the information we receiveTuesday, June 27, 2006
SCOTUS news & notes
I really don't have time to write about the decisions coming out, most of which are bad, which makes me even less inclined to write. So, some off-hand links and comments. Bottom line, Roberts' promise to issue narrow decisions without splits has not been met, esp re the touchier issues, crimlaw/procedure and environmental protection/regulation. I only relate crimlaw/proced cases interesting to me. For news on Randall v. Sorrell, holding that that the Vermont $1K campaign contribs limit was unconstitutional, see here.
Forbes, surprisingly, has reliably straight-shooting coverage of the SCt; these blurbs are no exception. Walter Dellinger gives us a meatier description of what's to come:
Scalia's a jerk (sorry, that's not Sicilian, but you get the idea): he wrote an angry dissent wherein he misrepresented a scholar's work, got the facts wrong, and extended his wrong-headed view that because the death penalty jurisprudence makes no sense (he's right there), but because people still want it (not so sure), then the Court can't really do much except issue opinions that let states do whatever they want. In reality, the correct conclusion is that the application of the penalty is arbitrary and capricious - wanton and freakish - in its application and must be abandoned. SCt opinions upholding a mandatory death penalty when the jury can't decide, or, in the Court's terms, when the jury's told that a decision that the two are in balance is a decision for death, show just how freakish our setup is. And it makes no sense to say that such a rule doesn't impose a presumption of death - it's mere word games to say that such a finding (of equipoise) is a decision for death.
When Thomas writes the 5-4 majority opinion in a pivotal death case, things ain't good. Bottom line, states decide how to sentence people, and all they have to do is tell the jury to "consider any mitigating evidence" and then they can make death mandatory when aggravating and mitigating factors are in "equipoise." We've got Roberts, C.J., Thomas, Scalia, Alito, and Kennedy, JJ., in the majority with Souter, Stevens, Ginsburg, and Breyer, JJ., dissenting. Kennedy keeps silent because he's still tinkering with the machinery of death (what some judges in the 80s refused to do after doing so for so long). If he switches, from the tone of the dissent, the penalty may fall by the wayside, or receive greater restrictions; apparently he's not ready to go there. The splits are deep, though, and I don't think the remaining criminal cases will be amicably written (four out of the five opinions to come), given that "[t]he depth and passion of the court's division on capital punishment is extraordinary." Dellinger, supra. "Four dissenting justices call the Kansas 'tie goes to Death' law 'morally absurd.' The five in the majority, by contrast, find no basis in the Constitution for imposing a tie-breaking rule on Kansas. They believe that the dissenters are simply voting their own raw policy preferences. That is a very wide gap." Id. Yes it is.
In Gonzales-Lopez, the court holds that a defendant who was denied his choice of counsel need not be harmed by the appointment of substitute counsel to receive a new trial.
In Recuenco, the Court holds that a Blakely violation (judge sentencing relying on facts/elements/sentencing factors not submitted to the jury, here that the offense was committed with a specific type of deadly weapon, namely a firearm) can be harmless. *1. "If the D had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors are subject to harmless error review." *5.
In Woodford v. Ngo, Alito writes for the Court and holds that when prisoners file prison grievances in order to "exhaust" their claims administratively, they must comply with all time deadlines if there's an effective remedy administratively. I'm thinking (and writing) that some mentally retarded inmates can't comply w/ the admin grievance procedures and thus that there's no "effective" admin remedy. In the alternative there's "cause" for default (MR) and/or enforcing the procedural default rule would result in a miscarriage of justice. For habeas/admin dorks, the Court further equates exhaustion with procedural default. *10. Laughably, the Court decides that "it is speculative that" "prison adminsitrators [will] devise procedural requirements that are designed to trap unwary prisoners and thus defeat their claims." *20. J. Breyer concurs to restate exceptions to the rule declared. *1 (Breyer, J. concurring in judgment only). Stevens, Souter, and Ginsberg, JJ., disagree that it's speculative to think jailers will make filing harder, and ask,"Does a 48-hour limitations period furnish a meaningful opportunity for a prisoner to raise meritorious grievances in the context of a juvenile who has been raped and repeatedly assaulted, with the knowledge and assistance of guards, while in detention?". *19, citing Minix v. Pazera, 2005 WL 1799538, *2 (ND Ind., July 27, 2005), No. 04-447. Also, the dissenters separate exhaustion and procedural default by correctly noting that waiver should not happen where there was no adversarial process at the admin level. Dissenters also accuse the majority of judicial activism / legislating from the bench, *14, and point out that denying access to courts implicates the Equal Protection Clause.
Federico Cheever has a blunt assessment of the opinions in Rapanos, which addressed the definition of "wetlands" under the Clean Water Act: Muddled ruling on wetlands leaves nation with big mess - baltimoresun.com (June 26, 2006).
In slightly older opinions, the Court held in Samson v. CA that parolees have no fourth amendment rights against a police officer's conducting a suspicionless search, in Davis v. WA that 911 calls made for the purpose of helping police save lives, as opposed to investigate and prosecute for past events, are admissable without cross-examination of the available declarant, in Youngblood v. WV, bizarrely, that it needed more evidence from the state courts on petitioner's claim of police misconduct. I do agree with Scalia in Youngblood: "The Court purports to conscript the Judges of the Supreme Court of Appeals of WV to write what is essentially an amicus brief on the merits of an issue they have already decided, iin order to facilitate our possible review at some later time....the GVR order rests on nothing more than our statement that it would be 'better' for the lower court to reconsider its decision (much as a mob enforcer might suggest that it would be 'better' to make protection payments)." *3-4, Scalia, J. dissenting. Scalia also introduced me to some new vocabulary: Verb. sap. = verbum sapienti, which means "a word to the wise [is enough]." He dropped it in order to tell the WV SCt to "on remand, simply reaffirm its judgment without further elaboration," in order to avoid "encourag[in] and stimulat[ing] the new 'GVR-in-light-of-nothing' jurisprudence." *5, Scalia, J. dissenting.
Second only Marsh in importance as of yet this term is House v. Bell, which held that "House has made the stringent showing required by the actual-innocence exception" and that he could pursue federal habeas. House has discovered "troubling" new genetic evidence and has obtained a "putative confession" from the real killer. Kennedy, Stevens, Souter, Ginsburg, and Breyer, JJ., join the majority (there's that swing voter Kennedy, compare his vote in KA v. Marsh, supra). Thank G_d the SCOTUS hasn't completely lost its mind yet. House's evidence doesn't meet the "freestanding innocence" exception (no case has yet to my knowledge), but he does show that had the jury heard all the conflicting testimony is more likely than than not that no reasonable juror viewing the record as a whole would lack reasonable doubt, such that he has shown cause for his procedural default of the claim in state courts (by the time he got decent counsel and investigators to find these new facts, which may have been hidden by the State, the state deadlines for filing a habeas claim had run). *34.
As for grants of certiorari, I'm not up on it. I do know that the SCt "will determine if EPA has authority to regulate greenhouse gases." Interesting.
Forbes, surprisingly, has reliably straight-shooting coverage of the SCt; these blurbs are no exception. Walter Dellinger gives us a meatier description of what's to come:
Yet to come are decisions involving the constitutional right to mount an insanity defense, regulation of prisoners' access to magazines and newspapers, whether there will be any meaningful judicial limits on partisan redistricting, the potentially explosive issue of whether the Vienna Convention creates individual rights that can be asserted in state courts and whether those state courts must respect rulings of the International Court of Justice—and, of course, the deeply important case of Hamdan v. Rumsfeld on the use of military trials in "war on terror" cases.So....the biggie for today (yesterday, actually): KA v. Marsh:
Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines thataggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.Marsh at *1. A sentencing instruction requiring death if mitigation is "not outweighed" by aggravation is not facially unconstitutional, because the jury could consider all relevant mitigating evidence, including evidence tending to favor mercy in addition to evidence going to the defendant's character or the circumstances of the crime, where the State has the burden of disproving that aggravators do not outweigh mits. This suffices to satisfy the Court's requirements under Gregg v. GA that juries exercise "guided discretion." Scalia's Walton opinion is no longer laughable.
Scalia's a jerk (sorry, that's not Sicilian, but you get the idea): he wrote an angry dissent wherein he misrepresented a scholar's work, got the facts wrong, and extended his wrong-headed view that because the death penalty jurisprudence makes no sense (he's right there), but because people still want it (not so sure), then the Court can't really do much except issue opinions that let states do whatever they want. In reality, the correct conclusion is that the application of the penalty is arbitrary and capricious - wanton and freakish - in its application and must be abandoned. SCt opinions upholding a mandatory death penalty when the jury can't decide, or, in the Court's terms, when the jury's told that a decision that the two are in balance is a decision for death, show just how freakish our setup is. And it makes no sense to say that such a rule doesn't impose a presumption of death - it's mere word games to say that such a finding (of equipoise) is a decision for death.
When Thomas writes the 5-4 majority opinion in a pivotal death case, things ain't good. Bottom line, states decide how to sentence people, and all they have to do is tell the jury to "consider any mitigating evidence" and then they can make death mandatory when aggravating and mitigating factors are in "equipoise." We've got Roberts, C.J., Thomas, Scalia, Alito, and Kennedy, JJ., in the majority with Souter, Stevens, Ginsburg, and Breyer, JJ., dissenting. Kennedy keeps silent because he's still tinkering with the machinery of death (what some judges in the 80s refused to do after doing so for so long). If he switches, from the tone of the dissent, the penalty may fall by the wayside, or receive greater restrictions; apparently he's not ready to go there. The splits are deep, though, and I don't think the remaining criminal cases will be amicably written (four out of the five opinions to come), given that "[t]he depth and passion of the court's division on capital punishment is extraordinary." Dellinger, supra. "Four dissenting justices call the Kansas 'tie goes to Death' law 'morally absurd.' The five in the majority, by contrast, find no basis in the Constitution for imposing a tie-breaking rule on Kansas. They believe that the dissenters are simply voting their own raw policy preferences. That is a very wide gap." Id. Yes it is.
In Gonzales-Lopez, the court holds that a defendant who was denied his choice of counsel need not be harmed by the appointment of substitute counsel to receive a new trial.
In Recuenco, the Court holds that a Blakely violation (judge sentencing relying on facts/elements/sentencing factors not submitted to the jury, here that the offense was committed with a specific type of deadly weapon, namely a firearm) can be harmless. *1. "If the D had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors are subject to harmless error review." *5.
In Woodford v. Ngo, Alito writes for the Court and holds that when prisoners file prison grievances in order to "exhaust" their claims administratively, they must comply with all time deadlines if there's an effective remedy administratively. I'm thinking (and writing) that some mentally retarded inmates can't comply w/ the admin grievance procedures and thus that there's no "effective" admin remedy. In the alternative there's "cause" for default (MR) and/or enforcing the procedural default rule would result in a miscarriage of justice. For habeas/admin dorks, the Court further equates exhaustion with procedural default. *10. Laughably, the Court decides that "it is speculative that" "prison adminsitrators [will] devise procedural requirements that are designed to trap unwary prisoners and thus defeat their claims." *20. J. Breyer concurs to restate exceptions to the rule declared. *1 (Breyer, J. concurring in judgment only). Stevens, Souter, and Ginsberg, JJ., disagree that it's speculative to think jailers will make filing harder, and ask,"Does a 48-hour limitations period furnish a meaningful opportunity for a prisoner to raise meritorious grievances in the context of a juvenile who has been raped and repeatedly assaulted, with the knowledge and assistance of guards, while in detention?". *19, citing Minix v. Pazera, 2005 WL 1799538, *2 (ND Ind., July 27, 2005), No. 04-447. Also, the dissenters separate exhaustion and procedural default by correctly noting that waiver should not happen where there was no adversarial process at the admin level. Dissenters also accuse the majority of judicial activism / legislating from the bench, *14, and point out that denying access to courts implicates the Equal Protection Clause.
Federico Cheever has a blunt assessment of the opinions in Rapanos, which addressed the definition of "wetlands" under the Clean Water Act: Muddled ruling on wetlands leaves nation with big mess - baltimoresun.com (June 26, 2006).
In slightly older opinions, the Court held in Samson v. CA that parolees have no fourth amendment rights against a police officer's conducting a suspicionless search, in Davis v. WA that 911 calls made for the purpose of helping police save lives, as opposed to investigate and prosecute for past events, are admissable without cross-examination of the available declarant, in Youngblood v. WV, bizarrely, that it needed more evidence from the state courts on petitioner's claim of police misconduct. I do agree with Scalia in Youngblood: "The Court purports to conscript the Judges of the Supreme Court of Appeals of WV to write what is essentially an amicus brief on the merits of an issue they have already decided, iin order to facilitate our possible review at some later time....the GVR order rests on nothing more than our statement that it would be 'better' for the lower court to reconsider its decision (much as a mob enforcer might suggest that it would be 'better' to make protection payments)." *3-4, Scalia, J. dissenting. Scalia also introduced me to some new vocabulary: Verb. sap. = verbum sapienti, which means "a word to the wise [is enough]." He dropped it in order to tell the WV SCt to "on remand, simply reaffirm its judgment without further elaboration," in order to avoid "encourag[in] and stimulat[ing] the new 'GVR-in-light-of-nothing' jurisprudence." *5, Scalia, J. dissenting.
Second only Marsh in importance as of yet this term is House v. Bell, which held that "House has made the stringent showing required by the actual-innocence exception" and that he could pursue federal habeas. House has discovered "troubling" new genetic evidence and has obtained a "putative confession" from the real killer. Kennedy, Stevens, Souter, Ginsburg, and Breyer, JJ., join the majority (there's that swing voter Kennedy, compare his vote in KA v. Marsh, supra). Thank G_d the SCOTUS hasn't completely lost its mind yet. House's evidence doesn't meet the "freestanding innocence" exception (no case has yet to my knowledge), but he does show that had the jury heard all the conflicting testimony is more likely than than not that no reasonable juror viewing the record as a whole would lack reasonable doubt, such that he has shown cause for his procedural default of the claim in state courts (by the time he got decent counsel and investigators to find these new facts, which may have been hidden by the State, the state deadlines for filing a habeas claim had run). *34.
As for grants of certiorari, I'm not up on it. I do know that the SCt "will determine if EPA has authority to regulate greenhouse gases." Interesting.
Friday, June 23, 2006
The Moral Relevance of Execution Suffering
PrawfsBlawg questions (in a Socratic, leading manner) why we care if execution witnesses see what appears to be (but might not be) suffering. I haven't been served a softball in a while so i though i'd share my brilliant rejoinder:
The comfort of witnesses has moral relevance. If the penalty is not cruel and unusual because deterrence is a valid penological goal, then it is moral for government to make the condemned man suffer as much as possible before death. Suffering or torture may in fact be morally required (for the sake of effectiveness at preventing more murders) but in any case suffering, indeed even torture, should certainly be allowed.
However, executions should not be by torture (all agreed on this axiom?). See USConstit 8am. So deterrence is either not a valid goal or can only inform the process so far. Is a little pain good? How much? Is society's idea of how much is too much diminishing to the point where the answer is 'any'? At that point deterrence is no longer a legitimate goal under contemporary standards of human decency (in fact it's never a legit goal if you value people as such but we'll stick w/ the unjust precedent here).
Let's see about retribution as a goal. Again, the more suffering the better, right? If the DP is allowed b/c retribution is ok, then there may be a moral requirement to get the most bang for the buck, thus a requirement to torture or at least disregard suffering at death (see articles quoting families of victims re the lethal injection debate).
Reminder, kids: Republicans appoint Justices who are around 50 yrs old, Dems go for the senior citizen crowd. Let's hope those lefties hold on through their 80s--which they are now in.
The comfort of witnesses has moral relevance. If the penalty is not cruel and unusual because deterrence is a valid penological goal, then it is moral for government to make the condemned man suffer as much as possible before death. Suffering or torture may in fact be morally required (for the sake of effectiveness at preventing more murders) but in any case suffering, indeed even torture, should certainly be allowed.
However, executions should not be by torture (all agreed on this axiom?). See USConstit 8am. So deterrence is either not a valid goal or can only inform the process so far. Is a little pain good? How much? Is society's idea of how much is too much diminishing to the point where the answer is 'any'? At that point deterrence is no longer a legitimate goal under contemporary standards of human decency (in fact it's never a legit goal if you value people as such but we'll stick w/ the unjust precedent here).
Let's see about retribution as a goal. Again, the more suffering the better, right? If the DP is allowed b/c retribution is ok, then there may be a moral requirement to get the most bang for the buck, thus a requirement to torture or at least disregard suffering at death (see articles quoting families of victims re the lethal injection debate).
My point is that if people are bothered by a little twitching, we should stop tinkering with the machinery of death. Maybe we’re not brutes that enjoy killing, and maybe we should stop doing it. Unfortunately the Supreme Court has kept this issue out of the civil rights area (for example, they wouldn’t even hardly mention the issue of race in the rape cases) and leaves it up to the vagaries of public opinion (with the added vagaries and corruption caused by looking to the “objective” evidence of trends among elected officials). But we may (at least on either side of the not-very-smartland) be reaching a point where even under this structure executions are cruel and unusual.
Killing killers is killing us.
Reminder, kids: Republicans appoint Justices who are around 50 yrs old, Dems go for the senior citizen crowd. Let's hope those lefties hold on through their 80s--which they are now in.
Tuesday, June 13, 2006
Forest Guardians v. U.S. Forest Service
Forest Guardians wins right to input of the Fish and Wildlife Service re: moving cows off of Arizona federal national forest grazing land in favor of spotted owls and minnows. Good case. And a great name.
0416179.pdf (application/pdf Object)
0416179.pdf (application/pdf Object)
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