SCOTUS January Oral Arguments
The U.S. Supreme Court has released its calendar for oral arguments in January.
There are no criminal cases on the docket or even civil cases with strong connections to law enforcement. Continue reading . . .
Author: Kent Scheidegger
USDOJ Finalizes Execution Procedure Regulation
The U.S. Department of Justice has finalized its proposed regulation regarding execution methods in federal capital case. The regulations provides the needed flexibility to deal with the quirk in federal law that says that federal executions must be carried out in the manner prescribed by the law of the state where the crime occurred, or if that state has no death penalty then the law of a state designated by the court.
Update (11/27): The final rule is now published at 18 Fed. Reg. 75846. Continue reading . . .
Feinstein Booted for Excessive Civility
Under pressure, Senator Dianne Feinstein (D-Cal.) announced today that she will not seek to retain her position as the top Democrat on the Senate Judiciary Committee. That position will be either committee chair or “ranking minority member,” depending on how the Georgia runoffs come out.
Kristina Peterson reports for the WSJ that Sen. Feinstein’s action follows “criticism from the party’s progressive wing over her handling of the Supreme Court confirmation hearings for Justice Amy Coney Barrett.” Continue reading . . .
Judicial Sentencing in Capital Cases
Should sentencing in capital cases be decided by the judge or the jury? Since 1976, the Supreme Court has decided that a two-step process is required: (1) narrow the group of murderers eligible for capital punishment by finding some reasonably objective fact, and (2) decide on what the punishment is just after considering whatever aggravating factors state law specifies and practically everything the defendant wants to submit in mitigation.
Since 2002, the Court has held that the defendant has a right to a jury for step (1). However, since 1976, the Supreme Court has consistently held that step (2) may be decided by the trial judge, a panel of judges, the jury, or the judge after an advisory verdict by the jury, whichever the state chooses. It reaffirmed that rule earlier this year in McKinney v. Arizona. See this post.
Today the Court turned down yet another attempt to toss out 44 years of solidly established precedent in McMillan v. Alabama, No. 20-193. Continue reading . . .
US DOJ Schedules 3 More Well Deserved Executions
Jerry Dunleavy reports for the Washington Examiner that the Department of Justice has scheduled three more federal executions at the federal prison in Terre Haute, Indiana.
Alfred Bourgeois, who was convicted in 2004 of abusing, torturing, and beating to death his two-and-a-half-year-old daughter in 2002 by punching her in the face, whipping her with a cord, burning her foot with a lighter, and smashing the back of her head against his truck until she died, is scheduled to be executed on Dec. 11.
SCOTUS Takes Two Crime-Related Cases
The U.S. Supreme Court today took up two cases for full briefing and argument. United States v. Cooley, No. 19-1414, is an exclusionary rule case involving the authority of tribal officers to stop non-Indians on tribal land. Caniglia v. Strom, No. 20-157, is a civil suit regarding whether the “community caretaking” exception to the search warrant requirement extends to entry into a home. Continue reading . . .
Arrests Down, Shootings Up in NYC
In mid-July, this article in the WSJ noted an increase in shootings in New York City as the lockdowns started to ease. Not to worry, though, Mayor de Blasio was ready with “new tactics to curb violence, including deploying additional officers to areas where shootings have taken place, and increasing efforts to foster coordination between police and communities.” Additional cops can’t hurt, but if you have a fixed number in a city deploying more one place means fewer someplace else. “Foster coordination between police and communities” sounds like the kind of vague generality that typically means nothing worthwhile will get done.
So how is it looking four months later? Continue reading . . .
Did “defund the police” deflate the “blue wave”?
The past few years have been difficult for the advocates of justice. For most of the time I have been doing this work (since late 1986), the one thing we could always count on was that the people were with us. The courts might misconstrue the Constitution. The legislature might pass some harmful bills and kill all the good ones, but a solid majority of the people always had their heads on straight when it came to law and order.
That started to change when a well-funded and clever disinformation campaign convinced a large portion of the population that our prisons were chock full of harmless minor offenders who could be released without harm to anyone. That was false, but people bought it. Libertarians and many small-government Republicans climbed on board the “reform” movement, giving it a bipartisan cast.
I always knew that the tide would turn back, but how long would it take? How much innocent blood would be spilled before people realized they had been conned? We may have seen the inflection point this year. The pro-criminal crowd may have gotten so overconfident that they showed their true selves with “defund the police,” and the scales have fallen from the people’s eyes. Or at least started to. Continue reading . . .
Severability
Severability is a question that comes up regularly in criminal cases. If one provision of a law is unconstitutional, should the whole law be declared void? In my view, the correct answer is nearly always no. Some years back, the New York Court of Appeals effectively abolished the death penalty in that state with a non-severability holding that, in my view, was clearly wrong.
Today’s Supreme Court arguments in the Obamacare cases, Texas v. California, No. 19-1019 and California v. Texas, No. 19-840, have nothing to do with criminal law, but they may produce an important precedent on severability. Continue reading . . .
An Aggressive Interpretation of Precedent
Today, the U.S. Supreme Court heard oral argument in Jones v. Mississippi, No. 18-1259, its third case in eight years on the subject of life in prison without parole for murderers who kill before their 18th birthdays. (Transcript here; audio here; docket here.)
Most of the discussion involved two precedents: Miller v. Alabama (2012), which held that LWOP for juvenile murderers must be discretionary, not mandatory, and Montgomery v. Louisiana (2016), which held that Miller was fully retroactive and, in the process, announced that Miller categorically exempted from LWOP all juvenile murderers except those “whose crime reflects irreparable corruption,” whatever that means.
The most interesting development in the argument, to my mind, was when Justice Elena Kagan, the author of Miller and a member of the Montgomery majority, characterized Montgomery as “an aggressive reading” of Miller. I would use stronger language, but considering the source “aggressive” is pretty strong. Might the high court backpedal on Montgomery and return to what Miller actually holds? Continue reading . . .
SUBSCRIBE TO OUR FEED