Author: Kent Scheidegger

“Rescue us from the morass of the categorical approach.”

by · Jan 28, 2020 11:25 am

For purposes of sentencing and immigration, federal courts must often categorize prior convictions from state courts to see if they qualify as “aggravated felonies” or “violent felonies.” The “categorical approach” is the method established by the Supreme Court that looks only at the elements of the crime under state law, not what the perpetrator actually did. It asks if it is possible to commit that crime in a way not included in the “generic” definition of the crime.

Concurring in an immigration case, USCA9 Judge Susan Graber “write[s] separately to add my voice to the substantial chorus of federal judges pleading for the Supreme Court or Congress to rescue us from the morass of the categorical approach. [Citations.] The categorical approach requires us to perform absurd legal gymnastics, and it produces absurd results.”
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“Ban the Box” Backfire

by · Jan 27, 2020 11:55 am

Ryan Sherrard of UC Santa Barbara has a draft study on SSRN titled “Ban the Box” Policies and Criminal Recidivism. Here is the abstract:

Employment has long been seen as a mechanism for reducing criminal recidivism. As such, many states and municipalities have tried to increase the employment prospects of ex-offenders through “Ban the Box” (BTB) policies, making it illegal to ask about an individual’s criminal history on a job application. There are, however, questions as to how effective these policies are at helping ex-offenders successfully stay out of prison. In addition, recent research has shown that BTB policies may lead employers to racially discriminate in hiring. Using administrative prison data, this paper examines the direct effect of BTB policies on rates of criminal recidivism. I find that while BTB policies don’t appear to reduce criminal recidivism overall, these policies may be exacerbating racial disparities. In particular, I show that being released into a labor market with a BTB policy is associated with higher rates of recidivism for black ex-offenders, with little to no eff ect for white ex-offenders. This result is robust to a number of specifications and sub-samples.

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Florida Supreme Court Corrects Major Error in Capital Sentencing Law

by · Jan 23, 2020 10:06 pm

In 2016, in a case on remand from the U.S. Supreme Court, the Florida Supreme Court made a major error in the law of jury trial and capital sentencing, running roughshod over decades of precedent. That case was Hurst v. State, 202 So.2d 40 (Fla. 2016), on remand from Hurst v. Florida, 136 S.Ct. 616 (2016). Today, in State v. Poole, No. SC18-245, the state high court backs off from its Hurst opinion to the extent that it goes beyond what the U.S. Supreme Court required.

The framework for capital sentencing established by the Supreme Court in its 1976 and later decisions requires two additional steps before a convicted murderer can be sentenced to death. First, a fact-based “eligibility” finding must be made that at least one fact has been proved from a statutory list of factors beyond the basic elements of murder. Second, in the “selection” step, there must be a discretionary judgment that this is a case suitable for the death penalty, after considering mitigating as well as aggravating circumstances. The U.S. Supreme Court’s decisions in Hurst and the 2002 case of Ring v. Arizona require a jury trial and proof beyond a reasonable doubt for the eligibility step and only for the eligibility step. Continue reading . . .

Will the Supreme Court Shed New Light on “Standing”?

by · Jan 17, 2020 5:27 pm

The U.S. Supreme Court took up three sets of cases after its Friday conference. None of them are criminal or related cases. Amy Howe has a report on them. One of them may shed new light on the recurring and difficult problem of “standing,” i.e., who can appear in court to challenge or defend a law. This is a long-standing (no pun intended) problem in victims’ rights. When can victims of crime step up when government officials should but do not?

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Wiping Out Convictions Via Litigation Collusion

by · Jan 17, 2020 4:56 pm

What does it take to wipe out a conviction? Normally, it takes reversal on appeal, a pardon from the governor (in most states) or president (for federal offenses), or a successful collateral attack on the conviction. In the latter, another court finds that the judgment was illegal.

Yesterday, the U.S. Court of Appeals for the Ninth Circuit summarily reversed a decision of the federal district court and directed it to nullify a conviction upheld by the California Supreme Court. This action was not because the conviction is unjust, not because it is illegal under current law, not because the case has been made for creating a new rule, but purely because the California Attorney General, as lawyer for the prison warden, switched sides and stopped defending the conviction, over the vehement objection of the San Bernardino District Attorney, who represented the People in the criminal case. What is going on here?

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New York’s Bad Bail Reform Law

by · Jan 8, 2020 3:22 pm

Barry Latzer has this article with the above title in the National Review, regarding the law noted in today’s News Scan.

2020 is going to be a very good year in New York State — for criminals. As of January 1, the state’s new criminal-justice reforms took effect, including a law that compels judges to free thousands of arrested defendants, many of whom have committed violent crimes or are serious flight risks. The goal is to reduce incarceration in jails, but the methods are arbitrary and put the public at risk.

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Stop Apologizing, Mr. Bloomberg

by · Jan 7, 2020 1:49 pm

William McGurn has this column in the WSJ.

Just before Michael Bloomberg threw his billions into the ring … he apologized for the New York City Police Department’s use of a tactic popularly known as stop-and-frisk…. If he stays on this path, he’ll find himself spending more time apologizing for his record than running on it.

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