Author: Kent Scheidegger

Florida’s Single-Juror-Veto Law Defeats Justice in Parkland Case

by · Oct 13, 2022 2:45 pm

For the sentencing phase of capital cases, some states have true unanimous verdict laws. The jury must deliberate until it is unanimous one way or the other, just as they do in the guilt phase. If they are truly hung, the penalty trial is done over before another jury. California and Arizona have true unanimity laws.

Unfortunately, when Florida rewrote its sentencing law in the wake of a Supreme Court decision throwing out the old one, the Legislature unwisely chose a single-juror-veto law. In this system, if the jury votes 11-1 for the death penalty, the view of the one prevails over the view of the eleven, and the defendant gets a life sentence. That system introduces needless arbitrariness into sentencing, as the luck of getting one juror who has hard-core anti-death-penalty views (and possibly lied on voir dire) or who is willing to accept claimed mitigation that most people reject will result in a life sentence for one defendant under circumstances where others will be sentenced to death. Continue reading . . .

No New SCOTUS Cases

by · Oct 11, 2022 9:04 am

Today is a virtual Monday at the U.S. Supreme Court, after the Columbus Day federal holiday. The Court released an orders list from last week’s conference, but it did not take up any new cases for full briefing and argument. Justices Sotomayor, Kagan, and Jackson dissented from denial of certiorari in Thomas v. Lumpkin, No. 21-444, a capital case with a claim of ineffective assistance of counsel in jury selection.

There are no criminal cases on this month’s docket, but today the Court hears argument in the crime-related civil case of Reed v. Goertz, No. 21-442, regarding DNA testing. Continue reading . . .

The Consequences of No Consequences

by · Oct 10, 2022 2:00 pm

It is a basic principle of human behavior that incentives matter. If people have an incentive to do X and we reduce the adverse consequences of doing X, then more people will do X. People who think that crime is somehow exempt from this principle, and that we can therefore reduce or eliminate consequences with no increase in crime, are living in fantasy land.

The latest example comes to us from the nation’s capital, noted in this editorial in the WSJ. People have an obvious incentive to ride buses without paying. If you shrink the consequences of doing that to almost nothing, will more people do it, draining revenue from an already under-funded system? Continue reading . . .

Crime Near Top of Public Concerns

by · Oct 6, 2022 2:57 pm

In a representative democracy, the way a representative votes on an issue is determined not only by what position the voters favor but also by how important they think the issue is. The issues foremost in the public mind are those where a representative is least likely to go against the majority view of the voters. Further down the list, voters’ disagreement with a representative’s vote is less likely to change how they vote in the election. Representatives may feel more free to vote differently based on other factors, including the views of major contributors, impact on favorability of media coverage, or their own (possibly misguided) views of good policy.

Monmouth University has this poll, finding that crime has risen to number two on the voters’ priority list. Continue reading . . .

SCOTUS Begins Term, Takes Attorney-Client Privilege Case

by · Oct 3, 2022 7:45 am

The U.S. Supreme Court began its October 2022 Term today. The court released an orders list taking up nine cases for full briefing and argument. Among them is 21-1397, In re Grand Jury. The Question Presented is: “Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.”

The Court also took up a case involving the Foreign Sovereign Immunities Act and the criminal prosecution of a corporation majority-owned by a foreign government, Turkiye Halk Bankasi A.S. v. United States, No. 21-1450. Continue reading . . .

Culture, Root Causes, and Discussion Taboos

by · Sep 30, 2022 9:53 am

In a basketball tournament for teenage girls last November, one player punched an opponent, knocking her to the floor and giving her a concussion. What did the offending girl’s mother think of this blatant assault and battery? She was the one who instructed her daughter to do it. Latria Shonty Hunt was charged with contributing to the delinquency of a minor but let off with an apology and restitution. See this story by Vikki Vargas and Heather Navarro for NBC LA.

People have long debated the “root causes” of crime, and the discussion usually focuses on income. Poverty is the root cause of crime. Government programs are the solution to poverty. So let’s just spend more on government anti-poverty programs and crime will go down. That was how the Great Society was sold to America in the 1960s, and it was a cataclysmic failure. But that does not stop people from urging us to repeat the history.

Victor Hugo notwithstanding, we have enough of a social safety net in place that no one is going to jail for stealing loaves of bread to feed starving children. We need to look elsewhere for root causes. A powerful but under-discussed root cause of crime is culture. Too many young people are subject to influences from those around them that cause them to choose the path of crime rather than the path of law-abidingness. In the case of Ms. Hunt’s daughter, the very person who should have been teaching her to obey the law, respect the rights of others, and generally be a good person was teaching her just the opposite. Even kids with good parents are subject to bad influences from peers and popular culture.

So why don’t we hear more about culture as a root cause of crime? Continue reading . . .

A Report and a Critique on Nitrogen Hypoxia Executions

by · Sep 28, 2022 10:19 am

Scientific American has this report by Dana Smith on execution via nitrogen hypoxia. Dudley Sharp has this critique of the article. As Mr. Sharp notes, all of the people interviewed by Ms. Smith for the article are opponents of the death penalty. As is standard practice in journalism now, opponents of the death penalty are not identified as such. The Death Penalty Information Center’s misleading self-identification is repeated uncritically in the article: “a national nonprofit that provides information and analysis on death penalty issues.” This Soros-funded organization filters and colors the information it provides to support only anti-death-penalty arguments, but you would never know that from the way it is routinely identified in the press.

Some of the comments are misleading and some border on silly. Among the latter, an anesthesiologist criticizes the coining of a new term, “nitrogen hypoxia,” as “a made-up two-word expression meant to sound like you’re on the bridge of the starship Enterprise.” For the record, I am a Star Trek fan of long standing, and the term never once made me think of the Enterprise. There is absolutely nothing wrong with coining a new term for a new procedure or invention. “Television” is a made-up word unknown in the nineteenth century. “Smart phone” is a more recent coined term for a more recent invention. Anything wrong with either of those? Continue reading . . .

USCA9 Strikes Down Cal. Ban of Federal Private Prisons

by · Sep 27, 2022 10:59 am

State laws interfering with federal government operations within the state present a constitutional problem that goes back to the early days of the republic. In the early nineteenth century, the Bank of the United States was very controversial, and the State of Maryland tried to kill it with a discriminatory tax. The Supreme Court declared the tax unconstitutional in a landmark decision by Chief Justice Marshall, M’Culloch v. Maryland, 17 U.S. 316 (1819).

Within California, immigration enforcement efforts are highly controversial, particularly in the prior Administration. Privately operated prisons are also very controversial. The state can, of course, choose not to use such prisons itself. However, the California Legislature in 2019 enacted AB 32, barring any person from operating a private prison. In essence, they barred federal contractors from continuing to provide services they had long provided to the federal government. Continue reading . . .

USDOJ Seeks Comments on Pentobarbital

by · Sep 26, 2022 11:27 am

The U.S. Department of Justice has published this notice in the Federal Register, asking for comments about the use of pentobarbital in executions.

This may be another step in the game of execution whack-a-mole. When the gas chamber and electrocution were the common methods of execution, they were attacked with an argument that the pain inherent in those methods was unnecessary because the three-drug lethal injection method was painless. When that method was widely adopted, it was attacked with an argument that the single-drug barbiturate method presented far less risk of pain. When that method was widely adopted, some experts crawled out of the woodwork to claim that it presents an unacceptable risk of painful pulmonary edema. Continue reading . . .

You billed the union health plan for what?

by · Sep 19, 2022 11:44 am

The U.S. Attorney for the Central District of California (LA and adjoining counties) issued this press release last Wednesday:

Federal prosecutors today filed criminal charges against nine defendants – seven of them dockworkers at the Port of Long Beach – who allowed more than $2.1 million in fraudulent claims to be submitted to their labor union’s health insurance plan for sexual services or for physical therapy that never was provided. Continue reading . . .