Back-from-the-Dead Attack on Habeas Corpus Reform

by · Sep 3, 2025 5:03 pm

Like a bad horror movie, a monster we thought we had killed in a past episode is back. The monster is the notion that the most important element of Congress’s 1996 reform of federal habeas corpus violates Article III of the Constitution because it binds federal courts to state courts’ interpretation of the Constitution, precluding the federal court from exercising independent judgment. In a nutshell, the law requires that when a defendant’s constitutional claim has been decided on the merits in state court, a federal court is precluded from nullifying that judgment on habeas corpus unless the state court was clearly wrong based on U.S. Supreme Court precedent.

In 1998, Columbia Law Review published an issue devoted to habeas corpus. James Liebman and William Ryan advanced the thesis described above in “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of the Federal Courts, 98 Colum. L. Rev. 696. I wrote the response article, Habeas Corpus, Relitigation, and The Legislative Power, 98 Colum. L. Rev. 888.

The Supreme Court resolved the issue in Williams v. Taylor, 529 U.S. 362, 411 (2000). The resolution left a lot to be desired, but the result was that 28 U.S.C. § 2254(d) was enforced as the major reform it was intended to be, not watered down to a minor change based on the supposed constitutional limitation. Continue reading . . .

Compulsory Drug Treatment

by · Aug 21, 2025 1:15 pm

As I have noted before on this blog (see, e.g., this post) a major part of the homelessness problem is addiction. Charles Lehman has an article at City Journal titled Compulsory Drug Treatment Works: Activists who say otherwise hide their views behind a cloak of scientific objectivity.

The actual state of the research is not as definitive as that title implies. A big part of the difficulty in evaluating efficacy is the lack of a good comparison group, and there is disagreement as to what comparison is appropriate. Do people compelled to accept treatment do as well as those who seek it out? A “no” answer to that question would prove nothing, as the seekers had a better attitude out of the gate. The actual evidence is mixed.

Is compulsory treatment better than no treatment at all? Lehman cites a couple of studies that find an improvement while conceding that there is a selection bias problem in these studies as well. Random and quasi-random assignment studies are better, and they provide some evidence of a benefit. Continue reading . . .

Studies Confirm Leftward Bias in Higher Education

by · Aug 17, 2025 9:15 am

Anyone who is both honest and paying attention has known for a long time that higher education in the United States is tilted sharply leftward, and the bias has only gotten worse over the years. Two recent studies confirm how bad it has gotten.

Jon Shields and Yuval Avnur have an op-ed in the WSJ with the unfortunate title, Evidence Backs Trump on Higher Ed’s Bias: A massive database shows college courses dealing with race and the Middle East lean sharply left. I say unfortunate because any mention of President Trump triggers vehement reactions among people with TDS, and the issue is not about him. It existed long before he was President, and any solution will take time well beyond his departure.

The study uses a database that scrapes college syllabi from the web, including the assigned reading. The authors look particularly at the issue of race in the criminal justice system, and the result confirms what I have observed over years of hiring recent graduates. Continue reading . . .

San Francisco’s Summer of Tough Love

by · Aug 16, 2025 10:36 am

Maggie Grether reports in the WSJ:

Last year, the U.S. Supreme Court granted cities more power to penalize people for sleeping outside, handing city leaders a new tool with which to clear homeless people from the streets.

Since then, San Francisco has been among the most aggressive in wielding it.

Wow. For over 30 years, it has been an article of faith on the political left that taking any action against people who live on the streets and refuse to take any of the steps needed to be functional and self-supporting members of society was mean, cruel, heartless, and possibly Nazi. I wish I had a dollar for every time I’ve been called one of those names in this regard.

And now the epicenter of the American left is “among the most aggressive” in cracking down. There is nothing like the convert zeal. When decades of so-called “progressive” mismanagement has given a city a problem that is among America’s worst, it becomes the strongest in the opposite direction. Continue reading . . .

Combining IQ Scores in Atkins Cases

by · Aug 8, 2025 3:24 pm

When the U.S. Supreme Court decided in Atkins v. Virginia in 2002 that people who are mentally retarded (now called intellectually disabled) can’t be executed no matter how heinous the crime, it opened a can or worms regarding deciding who actually qualifies for that category. The line between that condition and the next level up (borderline intellectual functioning) is a matter of convention, not really science, so there is a range of disagreement.

A case now being briefed before the court, Hamm v. Smith, deals with the question of how to assess the IQ of someone who has been tested multiple times. The court briefly touched on that issue in 2014 in Hall v. Florida. The year before, Joel Schneider of Temple University proposed a method in a chapter of an edited book. The opinion of the court cited that chapter but brushed it off with the comment that his method is “a complicated endeavor.” Really? It’s not all that complicated. I ran the numbers myself on the data in the Smith case. It wasn’t simple, but it was simpler than computing my 2024 income tax return.

As a preliminary matter, the makers of IQ tests regularly publish a “standard error of measurement” (SEM). That number represents, in a statistical way, the scatter one could expect in giving a test multiple times to the same person or to multiple people with identical true IQs. It doesn’t account for a host of other possible errors such as incorrect administration of the test, poor testing conditions, transient mental or physical problems of an examinee having a bad day, or–the big one in criminal cases–malingering.

So, putting those aside, here is how we do the math on the Smith case with the Schneider method. Continue reading . . .

Exceptionally Bad Reporting on the Glossip Case

by · Jul 24, 2025 9:29 am

Reporting on court cases is often bad, but NBC has an exceptionally atrocious report on the Glossip case here. The article says:

The witness, Justin Sneed, admitted killing Van Treese but told prosecutors that the killing was at Glossip’s direction in exchange for $10,000. Sneed, a motel handyman, was sentenced to life for the crime, while Glossip was given the death penalty.

In the Supreme Court’s majority ruling, Justice Sonia Sotomayor wrote that prosecutors “knew Sneed’s statements were false” and that “because Sneed’s testimony was the only direct evidence of Glossip’s guilt of capital murder, the jury’s assessment of Sneed’s credibility was necessarily determinative here.”

Anyone reading that who did not already know the facts of the case would take it to mean that the Supreme Court held that the prosecutors knew Sneed’s statements about the crime were false. That is, a reader would naturally read it to say that the statements referred to in the second paragraph are those described in the first.

But that implication is false. No court has ever held that Sneed’s statements about the crime are false. The statements in the Supreme Court case involved collateral matters about Sneed’s treatment with lithium while in jail. Continue reading . . .

Michigan Law Protects Repeat Felons

by · Jul 23, 2025 1:24 pm

The arrest of a Flint Michigan City Councilman for beating his live-in girlfriend highlights how the state’s soft-on-crime policies protect its criminal population. As reported by Hudson Crozier of the Daily Caller News Foundation (published by Liberty Unyielding), Councilman Leon El-Alamin spent seven years in prison for gang-related drug and gun crimes before gaining early release and forming a non-profit dedicated to ending the “mass incarceration” of people of color and rehabilitating former criminals.  In the aftermath of the 2020 George Floyd riots, Michigan Governor Gretchen Whitmer implemented the Clean Slate program, which allows convicts with up to three felony and an unlimited number of misdemeanor convictions to have their criminal records expunged.  After El-Alamin’s criminal record was erased under that program, he was able to receive a concealed-carry permit, which are not available to those with previous felony convictions.

Continue reading . . .

Parole for LWOP-Sentenced Murderers

by · Jul 21, 2025 9:47 am

In the many, many debates that I have had on capital punishment over the years, almost all of the opponents have promised the audience that we don’t need the death penalty to prevent release of murderers back in the community because we have this wonderful alternative of life without parole. The badly worded poll questions that opponents love to cite (see this post) involve offering life without parole as the alternative.

One of the problems with that argument is that there is no such thing as life in prison with no possibility of parole. Future governors, legislatures, or courts may create a possibility of parole even for the very worst murderers.

Tim Cruz has this article in the City Journal, titled Why Is Massachusetts Releasing First-Degree Murderers? Continue reading . . .

Progressive DA Declines to Prosecute Sex Offender

by · Jul 17, 2025 1:31 pm

The newly-elected District Attorney of Arapahoe County Colorado is facing a recall after announcing that her office will not be prosecuting sex offender Solomon Galligan for attempting to kidnap a little boy from a school playground last year. Jennifer Taer of the New York Post reports that District Attorney Amy Padden announced last Friday that it has been determined that Galligan, 33, is not competent to stand trial and will be released to a mental health facility.  Galligan, who is currently receiving gender transition treatment, was caught on video approaching a group of students at an Aurora elementary school playground and grabbing an 11-year-old boy.  When the child broke free, Galligan ran off.  His older sister told reporters that her brother has been in an out of jail for twelve years and that it’s not safe for the community or Galligan to be out on the streets.  She said he was diagnosed with schizophrenia and bipolar disorder when he was 16, he was deemed unfit to stand trial in previous instances and wasn’t institutionalized because of a shortage of beds in mental-health centers.  Another relative said “This has been like the fourth time that we’re sitting here thinking, ‘How the hell did he get released? Who’s letting him out?’ “

Continue reading . . .