Monthly Archive: November 2020
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.
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 . . .
There is understandably a good deal of speculation about whether Joe Biden intends to govern from the center-left or the far left. Biden won the nomination largely as a centrist-sounding counterpoint to the left wing in his Party, represented by Sen. Elizabeth Warren and particularly by Sen. Bernie Sanders. But his platform on criminal justice is anything but centrist, calling, for example, for elimination of the death penalty (a punishment a clear majority of Americans support) and an end to — rather than merely a reduction in — mandatory minimum sentences, freeing judges to impose little to no punishment regardless of the savagery of the crime.
Which way will Mr. Biden go?
Gallup does a yearly poll on support for the death penalty. This year’s edition finds that support at 55%, essentially unchanged from the level going back three years to 2017. So this would seem not to be much news. But if you look a little more closely, there is some news in the poll — news not favorable to abolitionist forces.
Four shooting deaths In Los Angeles over the past weekend marked a milestone in La La land. As Kevin Rector & Nicole Santa Cruz report in the Los Angeles Times, for the first time in eleven years there have been 300 murders in the city, and the year is not over yet. The victims last weekend included a 17-year-old boy, two men aged 50 and 20, and a 41-year-old woman. A crime analyst from New Orleans told the Times that homicides are spiking in several big cities, which he suggests discounts a local cause for the increase in LA. He does note that a “loss of police legitimacy” might have had an impact. Meanwhile in New York City Mayor de Blasio is “real concerned” about the rising crime in the subway, including a surge of commuters being pushed onto the tracks.
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.
For years, the defense bar and legal academia have been pounding their chests about how grossly unconstitutional it is for a defendant to be sentenced in part based on conduct for which he was acquitted. And as is often the mantra with these people, they are always on the cusp of victory (see, e.g., the constant chipper refrain that “the death penalty is dying” notwithstanding that the country has pretty steadily had an execution every 16 days for the last five years).
Today, the Supreme Court (without a single dissent so far as I can tell) rejected the latest effort to get it to ban district courts from basing sentencing on acquitted conduct, LUDWIKOWSKI V. UNITED STATES, No. 19-1293.
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.
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 . . .