by Kent Scheidegger · Dec 11, 2020 10:29 am
Yesterday, the U.S. Supreme Court decided that the Religious Freedom Restoration Act of 1993 (RFRA) permits suits for money damages against government officers, including law enforcement. The Court also indicated in a footnote that qualified immunity applies to these suits, as it does to civil rights suits under 42 U.S.C. § 1983. Continue reading . . .
by Kent Scheidegger · Dec 10, 2020 10:34 am
The U.S. Supreme Court today upheld three court-martial convictions for rape, interpreting the Uniform Code of Military Justice (UCMJ) statute of limitations in effect at the time as imposing no limit on rape prosecutions in the military. In the process, the Court found it unnecessary to decide whether the Eighth Amendment limitation of Coker v. Georgia (1977), forbidding the death penalty for rape, applies to the military. Continue reading . . .
by Kent Scheidegger · Dec 8, 2020 10:09 am
The new District Attorney for Los Angeles County yesterday issued a series of criminal-friendly policies. There is so much wrong with them, it will take multiple posts to describe it all. Among other things, the office will not seek any sentence enhancements under any circumstances, and the office will take the criminal’s side in seeking to remove already imposed enhancements in prior cases. That includes the ultimate sentence enhancement, capital punishment.
One of the things that strikes me about all the sentencing policy memos is how they almost completely ignore the victims of the crimes. Continue reading . . .
by Kent Scheidegger · Dec 7, 2020 8:05 am
The U.S. Supreme Court issued an orders list from last week’s conference this morning, but it took up no new cases. On Friday, the Court took up one civil case.
The Court is hearing oral arguments this week, but no criminal cases are on the docket. Perhaps that comes under the “no news is good news” rubric.
by Kent Scheidegger · Dec 4, 2020 4:46 pm
Before getting to the oral argument of December 2 in Edwards v. Vannoy, a basic explanation of the rule of Teague v. Lane is in order. To understand the rule, and to understand why it has an exception that is never met, one needs to know the background.
Before Teague, the Warren Court had established a three-prong test for when a rule would be applied retroactively to earlier cases. The Court was making up new rules at a brisk pace, so this question was important. The majority that created this approach to retroactivity, initially, was a coalition of the more pragmatic members of the liberal wing of the Court, including Chief Justice Warren and Justice Brennan, who saw non-retroactivity as a way to reduce resistance to changes they thought were needed, and the relatively conservative justices who saw it “as a way of limiting the reach of decisions that seemed to them fundamentally unsound,” as Justice Harlan put it in his separate opinion in Mackey v. United States, 401 U.S. 667, 676 (1971). Continue reading . . .
by Kent Scheidegger · Dec 4, 2020 1:29 pm
Last April 20, the U.S. Supreme Court decided in Ramos v. Louisiana that juries must be unanimous in state criminal trials, contrary to the result reached by a splintered Court in 1972 in a pair of cases, Apodaca v. Oregon, 406 U.S. 404 and Johnson v. Louisiana, 406 U.S. 356. Those two states continued to allow convictions by juries split 10-2 or 11-1 in reliance on those decisions for many years, although the voters of Louisiana changed to a unanimity requirement for future trials in the 2018 election.
What about cases tried before Ramos ? On the day of the decision, this seemed like an easy question. Under well-established Supreme Court precedent, those cases of nonunanimous verdicts still pending their initial appeal would be reversed, but that would not be a ground for a collateral attack (i.e., habeas corpus or an equivalent procedure) for old cases that were tried and became final in accordance with what had been the law at the time. Indeed, the several opinions in Ramos itself either said or clearly implied as much. Continue reading . . .
by Kent Scheidegger · Dec 3, 2020 3:13 pm
Yesterday, the U.S. Supreme Court heard oral argument in Edwards v. Vannoy, No. 19-5807, on the retroactivity of the unanimous jury requirement of Ramos v. Louisiana. See this post from the day the Court took up the case. I will have much more to say on the law of retroactivity in a later post, but for now I want to call attention to an alarming practice that the Supreme Court should squash — introducing new factual claims at the Supreme Court level with no realistic opportunity for the other side to challenge them. Continue reading . . .
by Kent Scheidegger · Dec 2, 2020 2:56 pm
Walter Williams, Professor of Economics at George Mason University, died today at the age of 84. Donald Boudreaux, also as GMU economics professor, has this article in the WSJ:
For 40 years Walter was the heart and soul of George Mason’s unique Department of Economics. Our department unapologetically resists the trend of teaching economics as if it’s a guide for social engineers. This resistance reflects Walter’s commitment to liberal individualism and his belief that ordinary men and women deserve, as his friend Thomas Sowell puts it, “elbow room for themselves and a refuge from the rampaging presumptions of their ‘betters.’ ”
Professor Williams’s insights were not limited to economics. Although not a lawyer, he gave us the best, most concise description of the “living Constitution” view of constitutional law that I have ever heard.
by Kent Scheidegger · Dec 1, 2020 4:45 pm
Common sense tells us that more cops on the beat should reduce crime. That was why, at the peak of America’s crime rates, Bill Clinton’s promise to put 100,000 cops on the beat struck a resonant chord with a great many Americans. But while common sense is usually right it is not always, so empirical research is needed.
Charles Lehman reports in the City Journal on research by Sarit Weisburd of Tel Aviv University using GPS data from Dallas police cars. “Weisburd demonstrates that cutting police presence leads to a dramatic increase in crime and offers compelling evidence that this effect is driven by a drop in routine patrols. Cops on the beat drive down crime.” Continue reading . . .
by Kent Scheidegger · Dec 1, 2020 11:40 am
Yesterday, Charles Stimson of the Heritage Foundation presented the following testimony to the Ohio House Criminal Justice Committee. The committee is presently considering Senate Bill 256, which would abolish sentences of life without parole for criminals who commit major crimes as little as one day before their 18th birthdays.
Mr. Stimson was motivated to give this testimony because advocates of the bill had “misstated the law in the area” and “provided misleading information.” Continue reading . . .
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