The StandDown Texas Project

Additional News Coverage of the FDA Lawsuit

The civil law suit, Beaty v. FDA, is available in Adobe .pdf format.

Today's New York Times carries, "F.D.A. Sued Over Drug Used in Executions," by John Schwartz.

Lawyers in Washington sued the Food and Drug Administration on Wednesday on behalf of death-row prisoners, demanding that a Federal District Court prohibit importation and use of sodium thiopental, a drug used in many executions. When the sole supplier of the drug in the United States stopped producing it, executions were delayed in several states, and states obtained the drug from overseas suppliers. The agency has long said it has no authority over executions. The lead lawyer in the suit, Bradford A. Berenson, said it was “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.”

"Lawsuit seeks to block imports of key execution drug," is the USA Today post by Kevin Johnson,

The lawsuit alleges that large amounts of unapproved sodium thiopental have been imported by at least six states: Arkansas, Arizona, California, Georgia, Nebraska and Tennessee.

"Death Row Inmates Sue U.S. Over Importation of Execution Drug," by Tom Schoenberg for Bloomberg.

The suit said the FDA allowed states to import “bulk amounts” of thiopental, which hasn’t been sold in the U.S. since 2009 when the sole U.S. manufacturer, Hospira Inc., stopped producing it.

The inmates are seeking an injunction barring future imports of thiopental and the removal of supplies already in the possession of state governments.

The shipments of thiopental entering the U.S. originated from an Austrian facility owned by Sandoz International GmbH, a German company, according to the complaint. The drug was shipped to the U.S. from a London wholesaler, Dream Pharma Ltd., the complaint claimed. Dream Pharma bought the drug from a unit of Archimedes Pharma Ltd., a privately held company based in Reading, U.K., the inmates said in the complaint.

"US inmates challenge importation of execution drug," by Lucile Malandain for AFP.

Arizona used imported thiopental for the execution of Jeffrey Landrigan in October, with the approval of the Supreme Court, but under a flood of public criticism.

The last doses of thiopental made in the United States will reach expiration this spring, which will put American states that practice the death penalty at a crossroads.

"FDA's own regulations preclude the importation of any unapproved new drug and any drug that is not listed with FDA and produced at a registered foreign source," the lawsuit states.

They accuse the agency of being "arbitrary and capricious" and that its agents have "never inspected the processes used to manufacture the thiopental."

"Whatever one's views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions," Bradford Berenson, a lawyer for the plaintiffs, said in a statement.

"Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one's interests," he said.

Michael Kiefer files an updated report for today's Arizona Republic, "Execution drugs: Arizona inmate lawsuit seeks FDA policing."

In mid-October, Donna Benjamin of the American Society of Health-System Pharmacists, which tracks drug shortages, said there were no approved manufacturers of thiopental outside the U.S., and the FDA wasn't aware of any sites making thiopental that would import it.

"Any import to alleviate a drug shortage would have to come from an FDA-approved source," she said.

And Shelly Burgess, a spokeswoman for the FDA, told The Republic in October, "For any product that is planned to be made available in the U.S., FDA would have to first evaluate any potential risks associated with that product including where it is manufactured and whether it meets FDA quality standards."

In November, Dr. Murray Lumpkin, a deputy FDA commissioner, told British government officials, "There are no approved or permitted foreign sources of sodium thiopental."

Nevertheless, the drug was getting through customs, signed off by FDA.

Five shipments from Dream Pharma were seized in Memphis by the FDA between June and November. But all were eventually released.

The Arizona shipment sailed through Customs in Phoenix with approval of the Los Angeles office of the FDA on Sept, 29. According to Cattani, the state has since obtained another shipment.

But then, the FDA changed its tune.

On Dec. 30, Burgess told The Republic that the agency would exercise "enforcement discretion" on the matter.

"Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public health role," she said. The agency would "continue to defer to law enforcement on all matters involving lethal injection . . . "

"Suit could halt executions in states, including Tennessee," is the report in today's Tennessean.

Wednesday's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

It points out the diligence with which FDA prevents states and individuals from obtaining cheap prescription drugs from Canada, while allowing states to import sodium thiopental.

"The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law," said Bradford A. Berenson, a partner in the law firm Sidley Austin LLP, which filed the suit in Washington, D.C.

The firm has expertise in FDA licensing and is working with the Federal Public Defender's Office in Phoenix on the suit.

The suit asks the FDA to not only ban further imports of the drug but to recall the shipments that have already been delivered.

Earlier coverage of the FDA lawsuit begins at the link.

More on the FDA Suit

Nathan Koppel posts, "FDA Dragged Into Execution-Drug Controversy," at the Wall Street Journal Law Blog.

Last month, the FDA announced that it would permit prison officials to import thiopental to their hearts’ content. But the agency said it also would not vouch for the safety and purity of imported thiopental.

Today, six death-row inmates from Arizona, California and Tennessee sued the FDA in federal court, claiming the agency has violated federal law by allowing states to import thiopental that has not been reviewed for safety and purity.

The death-row inmates are represented by powerhouse law firm Sidley Austin and partner Bradford Berenson, a former associated counsel to president George W. Bush. “The FDA is improperly allowing drugs into the United States even though it won’t stand behind their safety and efficacy,” he said.

Berenson notes that he’s “never had a moral problem with the death penalty.” But, he said, thiopental serves a critical role in executions of rendering condemned inmates unconscious, so that they do not suffer severe pain during the process. “What we are trying to prevent with the suit are inhumane executions,” he said.

“This is the first serious attempt since at least 1985 to look at the FDA’s role in drug shipments to prisons,” said Fordham Law professor Deborah Denno.

“Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA’s explicit public health role,” the FDA said in a statement. “FDA does not verify the identity, potency, safety, or effectiveness of substances imported for this purpose.”

Coverage of the the civil suit begins at the post; Beaty v. FDA, here.

Lawsuit Filed Against FDA Over Imported Sodium Thiopental

"Lawsuit Filed Against FDA To Prohibit The Importation And Use Of Unapproved Sodium Thiopental In Lethal Injections," is the news release issued by attorneys for the inmate plaintiffs.  The civil lawsuit, Beaty, et al. v. FDA, is available in Adobe .pdf format 

Here's the entire text:

Washington, D.C. – Today, on behalf of six death-row prisoners from California, Arizona, and Tennessee, Sidley Austin LLP filed suit against the Food and Drug Administration (FDA) seeking to prohibit FDA from allowing the importation or use of unapproved sodium thiopental. During the past year, FDA has knowingly permitted unapproved sodium thiopental to be imported by state corrections agencies for use in executions by lethal injection. According to Bradford A. Berenson, a partner in the firm’s Washington, D.C. office, “The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law.”

The Complaint alleges that FDA is required to deny admission to any drug that is unapproved, misbranded, or adulterated. Sodium thiopental recently imported by various states for use in lethal injections is all three. Because sodium thiopental has not been approved by FDA—meaning that FDA has made no determination of its safety, effectiveness, purity, potency, or any other characteristic—it cannot legally be imported into the United States. Plaintiffs allege that FDA has violated U.S. federal law and acted in a manner inconsistent with its own prior policies and practices by allowing importation of the unapproved drug.

Berenson noted that the lawsuit is “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.” Because unapproved sodium thiopental has not been shown to work as intended, using it in executions creates unacceptable risks that prisoners will not be properly anesthetized before the other drugs used in lethal injection protocols stop the prisoners’ breathing and induce cardiac arrest. “Whatever one’s views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions,” Berenson said.

“Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one’s interests, least of all the states’.”

FDA’s decision to allow the importation of unapproved sodium thiopental is unprecedented. The clear command of the federal Food, Drug, and Cosmetic Act (FDCA) is that no unapproved drug may be imported. For that reason, FDA has consistently maintained that no one—including state governments—may lawfully import unapproved drugs for commercial use. In fact, in other contexts, FDA has repeatedly sent letters to state and local governments, denied permission requests, and taken law enforcement measures against states and firms seeking to import unapproved drugs.

Today’s lawsuit asks the federal district court in Washington, D.C. to declare that FDA has violated the law, enjoin it from allowing any further shipments of unapproved sodium thiopental into the United States, and take reasonable steps to recover and destroy the unlawful, unapproved product previously admitted for use by the states. According to Coleen Klasmeier, a partner in Sidley’s Washington D.C. office and head of the firm’s Food, Drug and Medical Device Regulatory practice, “Assuring drug safety and efficacy is the bedrock of FDA's public health mission. We are asking FDA only to fulfill its duty to secure the border against the unlawful importation of potentially substandard and dangerous unapproved drugs.”

Records obtained through requests under various open records laws show that large amounts of unapproved sodium thiopental have been imported into the U.S. by at least five states with the knowledge and acquiescence of FDA. The records suggest that the imported drug was manufactured in Austria and sold by a broker sharing space with a driving school in London to state officials in Arizona, Arkansas, California, Georgia, and Tennessee. Nebraska recently announced that it obtained the drug from India.

Sodium thiopental for injection has never been approved for use by FDA, and there are currently no domestic producers of the drug. There are, however, adequate FDA-approved alternatives available for use in lethal injections.

The Arizona Republic posts, "Arizona inmate lawsuit seeks FDA policing."  It's written by Michael Keifer.

Lawyers for three Arizona Death Row prisoners filed suit in federal court in Washington, D.C., this morning to force the U.S. Food and Drug Administration to police foreign imports of a drug used in execution by lethal injection.

Arizona inmates Donald Beaty, Daniel Cook and Eric King are joined in the suit by Death Row prisoners from Tennessee and California, states which have also recently imported the anesthetic sodium thiopental from Great Britain.

Thiopental has been in short supply since last May because the only U.S. manufacturer of the drug ceased production in 2009.

Though the FDA as recently as last November stated publicly that there was no authorized way to import thiopental, at least five states including Arizona imported the drug secretly from a pharmaceutical supply house in London last summer and fall.

Some of the shipments were detained by the FDA in Memphis for weeks or months, but all eventually were allowed through.

At the end of December, the FDA announced that it would exercise "enforcement discretion" regarding thiopental imports for execution and allow them to enter the country with little more than a caveat that they have not examined the quality of the drug.

Today's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

And:

Furthermore, the suit claims, "FDA is without authority to allow shipments of unapproved new drugs, misbranded drugs or adulterated drugs into this country."

The suit asks the FDA to not only ban further imports of the drug, but to recall the shipments that have already been delivered.

The inital AP report is, "Inmates Challenge Use Of Ark. Execution Drug," via KHBS-TV.

Eight inmates on Arkansas' death row have filed a court challenge over the state's purchase of a drug used as an anesthetic during executions, claiming there may be a problem with its production.The Arkansas Democrat-Gazette reported Wednesday that the suit seeks an order barring use of sodium thiopental unless it is approved by the Food and Drug Administration.The drug is no longer manufactured in the United States, and the suit claims an imported version can't be guaranteed to work without oversight from the federal government.

Earlier lethal injection coverage begins at the link; also, more on the FDA role.  Related posts are in the lethal injection index.

The Tyrone Williams Case Ends With Resentencing

It started as a high visibility 2006 federal death penalty prosecution, following a horrific 2003 episode in which 19 illegal aliens died after being smuggled into Texas in the back of a tractor trailer.  

"Texas: New Sentence in Smuggling," is the AP brief from Tuesday's New York Times.

A truck driver was resentenced to nearly 34 years in prison on Monday after a federal appeals court last year overturned the life sentences he received in America’s deadliest human smuggling attempt, in which 19 illegal immigrants died. The new sentence for the driver, Tyrone Williams, is equal to the longest prison term he had received in the case, for another count that was upheld on appeal. Prosecutors said that Mr. Williams heard the immigrants screaming as they were succumbing to heat inside his tractor trailer, but that he refused to free them.

"Driver in 2003 smuggling deaths resentenced," is the Victorial Advocate report by Gabe Semenza.

A federal judge on Monday resentenced Tyrone Williams to 34 years in prison for his role in the 2003 deaths of 19 illegal immigrants.

Because Williams, 40, likely will appeal the sentencing, the case is far from closed. Monday's hearing only added another twist to a landmark trial.

In May 2003, Williams abandoned his sealed tractor-trailer in Victoria. Inside: dead or dying illegal immigrants, the byproduct of a botched smuggling attempt.

The 40-year-old became the first person federal prosecutors targeted for the death penalty under a 1994 immigration law.

That law states if anyone transports, smuggles or harbors illegal immigrants in this country, and the act results in death, the convicted can face execution.

Of the 64 human smuggling tragedies that ended in death between 1994 and 2002, however, no smuggler ever faced the death penalty until Williams.

And:

Craig Washington, a 68-year-old former Texas state senator and Houston congressman, represents Williams.

Washington, who was in Victoria the morning law enforcement found the bodies, later stepped away from the case because of health reasons and rejoined it in November. He is widely credited for steering the second jury away from the death penalty.

"The government has spent $7.2 million prosecuting and attempting to get the death penalty for one man," Washington said after the hearing on on Monday. "It turns out that money was all wasted. Today's sentencing was the best that we could have hoped for."

Susan Carroll writes, "Trucker gets 34 years in immigrant deaths," for the Houston Chronicle.

U.S. District Judge Lee Rosenthal sentenced 40-year-old Tyrone Williams to a 405-month term in connection with the deaths of 19 illegal immigrants in Williams' insulated tractor-trailer truck in May 2003.

Williams broke down before Rosenthal pronounced the sentence, crying and calling the deaths an "accident."

"I live with regret every day of my life," Williams said.

Earlier coverage begins the post, "Fifth Circuit Overturns Tyrone Williams' Sentence."  Related posts are in the federal death penalty index.

Reforms Needed to End Injustices

That's the title of an editorial in today's San Antonio Express-News. 

A strand of hair was the single piece of evidence linking Claude Jones with a 1989 murder that took place in Point Blank, north of Houston. By the forensic standards of the day, the hair was a match — enough to put Jones on death row. And it was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to keep him there.

The strand of hair had, however, never been tested for a DNA match with Jones — until last month, when a lab in Pennsylvania found conclusive evidence that the DNA in the hair matched the murder victim, not Jones.

That would be good news for Jones, if he were still alive. The state of Texas executed him on Dec. 7, 2000, with Jones maintaining his innocence.

And:

A statute that allows post-conviction DNA testing took effect in Texas in 2001. More reforms are needed.

At the state level, the Tim Cole Advisory Panel on Wrongful Convictions — named after another man who died while serving time for a crime he did not commit — has made 11 recommendations to the Legislature. They include the establishment of uniform policies for eyewitness identification, recording interrogations, legal discovery proceedings and post-conviction proceedings, as well as the creation of a Texas Innocence Commission.

At the national level, a bipartisan bill in the Senate would create a National Criminal Justice Reform Commission. The commission would identify best practices in the states that protect the innocent and enhance public safety.

There are now enough cases to demonstrate that injustices occur even in the most serious cases that supposedly have the most safeguards. Correcting those injustices should be a state and national priority.

More on the Claude Jones case at the link.  Earlier coverage of the Timothy Cole Advisory Panel on Wrongful Convictions begins with this post.  The panel's the Report and a volume of Research Details are available in Adobe .pdf format.  More on Tim Cole's wrongful conviction and posthumous exoneration  begins here.

Claude Jones - Looking Backwards, Looking Forward

"The DNA non-redemption," is the title of a Los Angeles Times editorial.  It appeared in the Saturday edition.

In 1990, a Texas jury convicted Claude Jones, a career criminal, of murdering Allen Hilzendager.

Jones and another ex-convict, Danny Dixon, had stopped their truck at Hilzendager's liquor store in Point Blank, Texas. One of the men got out, entered the store and shot Hilzendager. Jones blamed Dixon and Dixon blamed Jones, but Jones was eventually convicted of pulling the trigger on the basis of one person's testimony (subsequently recanted) and on one piece of physical evidence: a strand of hair found inside the store and identified as Jones' by a crime lab expert. That hair tipped the balance between life and death, because Texas law requires corroborating physical evidence in a capital case. Dixon is serving a life sentence; Jones was put to death in 2000.

This month, however, a DNA test determined that the hair did not belong to Jones after all; it belonged to the victim. With no physical evidence, there is now no legal basis for Jones' death sentence.

Some may argue that this miscarriage of justice was an aberration. But Texas' rapid pace of executions, coupled with its abysmal standards for effective representation for defendants, have long made the likelihood of wrongful executions exceedingly high. The state offers a prime example of why the death penalty, which requires 100% accuracy, is so difficult to mete out fairly.

Innocence Project Co-Founder Barry Scheck wrote the OpEd, "Capital Punishment and Human Fallibility," for the weekend edition of the Wall Street Journal.

On Friday, Dec. 7, 2000, as the world waited for a decision from the Florida Supreme Court on whether the recount of that state's presidential ballot should continue, Texas Governor and soon-to-be President George W. Bush was provided with a final memo from his Counsel's Office on the fate of death-row inmate Claude Jones.

He was advised to reject Jones's application for a 30-day reprieve because there was "no doubt about guilt." Jones had received "full and fair process" in the courts, and "Jones' hair matched a hair found at the crime scene."

Incredibly, Mr. Bush was not told that lawyers for Jones had requested the 30-day reprieve so that a mitochondrial DNA test could be performed on this hair, the key piece of evidence in the case and the only piece of physical evidence tying him to the crime scene. Jones was executed by lethal injection that day.

Earlier this month, after six years of litigation, that hair was finally tested. On Nov. 11, Mitotyping Technologies, a private lab in State College, Pa., found that it did not come from Claude Jones, but from the victim of the crime. If this DNA test had been done in December 2000, Claude Jones would not have been executed, and his conviction would likely have been reversed.

The case might have been dismissed altogether because the hair "match" was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to meet a requirement of Texas law that the accomplice testimony used to convict Jones be corroborated.

And:

There is growing bipartisan recognition that there are a set of reforms that can make the criminal-justice bureaucracy more accurate, accountable and cost-effective. We can learn from our mistakes, including those made in the hours before Claude Jones's execution. Sen. Jim Webb (D., Va.), along with 39 co-sponsors including Sens. Lindsey Graham (R., S.C.) and Orrin Hatch (R., Utah), is sponsoring a bill already approved by the House to establish a National Criminal Justice Reform Commission.

The Webb bill would lay out a blueprint of best practices that have proven effective, including ways to reduce prison populations without endangering public safety and investigative procedures that protect the innocent while enhancing the capability of law enforcement to apprehend the guilty. And it would also help prevent wrongful convictions, including in death-penalty cases, by evaluating past procedures and recommending improvements and guidelines. But if the bill is not passed in this brief lame-duck session, it will almost certainly perish, another casualty of partisan gridlock.

Earlier coverage of the Claude Jones case begins with the post, "Why the Claude Jones Case Matters."

Federal Roundup

"Democrats Plan Votes on Controversial Nominees," Senator Says," is David Ingram's post at Legal Times' BLT.

President Barack Obama's nominees for the federal judiciary have stalled for months in part because of heated disagreement over a handful of nominees. Now, Senate Democrats are looking at forcing votes on four of them.

Sen. Sheldon Whitehouse (D-R.I.) said today that Democrats could move soon to end debate on the nominees. He said that Majority Leader Harry Reid (D-Nev.) was lining up support this morning for what’s known as a cloture petition — the necessary paperwork before holding a vote to end debate.

“He’s lining up the signatures,” Whitehouse said after a meeting of the Senate Judiciary Committee. Such a petition requires 16 signatures.

Whitehouse is a vocal supporter of one of the nominees who have drawn fire: John McConnell Jr., a Motley Rice partner who’s been nominated for federal district court in Rhode Island. The U.S. Chamber of Commerce is opposing McConnell’s nomination, citing his work as a plaintiffs’ lawyer on lead paint litigation and other cases.

The other three nominees whom Reid is trying to force votes on, Whitehouse said, are Goodwin Liu for the U.S. Court of Appeals for the 9th Circuit, Edward Chen for the Northern District of California and Louis Butler for the Western District of Wisconsin. Republicans have targeted all three because of what they call the nominees’ extreme views, while the nominees’ home-state senators and other supporters argue they’re being treated unfairly.

A fifth nominee whom Republicans oppose, Judge Robert Chatigny for the 2nd Circuit, is pending before the Senate Judiciary Committee. A committee vote is planned for Thursday.

And:

A group of circuit and district court judges from the 9th Circuit sent a letter this week to Senate leaders asking for quicker action on nominees. The signatories include 9th Circuit Chief Judge Alex Kozinski.

"In order to do our work, and serve the public as Congress expects us to serve it, we need the resources to carry out our mission," the letter (PDF) says. "While there are many areas of serious need, we write today to emphasize our desperate need for judges."

Also, the New York Times' Caucus blog notes, "Laurence Tribe Is Leaving Justice Job."

After nine months as the Justice Department’s “senior counselor for access to justice,” Laurence H. Tribe, a prominent Harvard law professor and mentor to President Obama, will leave his position and return to Massachusetts early next month.

The department has begun sending out invitations to a farewell reception for Mr. Tribe on Dec. 3, his last day in the position. In a phone interview, Mr. Tribe, 69, confirmed that he is leaving and cited medical reasons: he has been having a recurrence of facial seizures and other symptoms associated with a benign brain tumor, which was diagnosed in 2008.

He said he decided several months ago to leave at the end of the year because he wants to be closer to Massachusetts General Hospital, where he is receiving treatment. He says he still intends to resume teaching at Harvard Law School in the fall term of 2011, when his two-year leave of absence will be complete.

And:

During Mr. Tribe’s brief tenure, he traveled around the country meeting with judges, prosecutors, public defenders, and legal aid workers, in an effort to find places where access to the justice system could be improved for ordinary people. He said he was pleased with the ways his office had found “to create a much more energized network, even though the problems are pervasive and cannot be transformed overnight.”

In partnership with other agencies, Mr. Tribe’s office pushed programs to increase training and collect more data about indigent defense, use the Internet to expand legal services to poor people in rural areas, strengthen legal services for victims of domestic violence, and expand mediation as an alternative to lawsuits for people involved in foreclosures.

Still, Mr. Tribe said he was frustrated by the inability to do much that required legislation, given the difficulty in moving anything through Congress, but learned to live with that limitation and to focus on pragmatic things that could be done with existing budgets and legal authorities.
As an example of what he portrayed as a “trivial” yet memorable improvement, he said that at his suggestion, a courthouse in Los Angeles changed a sign that said “unrepresented pro se litigants” to the plain-English “people without lawyers.”

Earlier coverage of the federal judiciary and Professor Tribe at the links.

En Banc 3rd Circuit Set to Hear DNA Samples Case

That's the title of Shannon Duffy's report for Law.com / Legal Intelligencer.  LINK  Here's an excerpt from the beginning of the article:

When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.

At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.

The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.

One possible explanation for the court's latest action is that one of the three judges may have written a persuasive dissent that caught the attention of the other judges during the period when the decision was being internally circulated.

An audio recording of the April argument yields a slew of clues but nothing conclusive about how the three judges were viewing the case because they asked tough questions of both sides.

To understand the appellate argument, it's necessary to understand the lower court ruling that set the stage for the appeal.

In November 2009, U.S. District Judge David S. Cercone of the Western District of Pennsylvania ruled against the government and held that DNA sampling of arrestees violates the Fourth Amendment.

Prosecutors argued that Congress authorized such DNA sampling of arrestees and that it serves the compelling government interest of identifying a suspect even better than fingerprints or photographs.

But Cercone reasoned that DNA testing goes too far because a genetic sample can reveal much more than a suspect's identity.

Although arrestees have a "diminished expectation of privacy," Cercone concluded that the practice of routinely obtaining genetic samples from all arrestees must be struck down as unconstitutional.

Crack/Cocaine Sentencing Disparity Addressed

The New York Times report from yesterday's paper was, "Congress Moves to Narrow Cocaine Sentencing Disparity," written by Erik Ekholm.

The House of Representatives passed a bill on Wednesday that would reduce the disparities between mandatory federal sentences for crack and powder cocaine violations, a step toward ending what legal experts say have been unfairly harsh punishments imposed mainly on blacks.

The bill, which passed the Senate in March, was adopted by the House in a voice vote and now goes to President Obama for his signature.

Administration officials have described the sentencing disparity as “fundamentally unfair,” and Mr. Obama said during the 2008 presidential campaign that it “disproportionately filled our prisons with young black and Latino drug users.”

I'm noting this to point out a rich OpEd in today's Dallas Morning News by Baylor Law prof Mark Osler, "The slow fade of Len Bias' ghost."

Twenty-four years ago, a talented young player from the University of Maryland was drafted No. 2 overall by the Boston Celtics. Two days later, he was dead of a drug overdose.

This simple tragedy led to one of the most frivolous detours in American history – the onerous federal sentencing statute for crack, which was finally amended by Congress on Wednesday. The story of Len Bias is a wonderful example of the potential dangers of legislation based on anecdote rather than study and analysis.

And:

The result of the new law was startling: Thousands of black men received extraordinarily long sentences, yet at the same time, crack prices fell, indicating that supply was growing. In other words, we achieved mass incarceration while failing to address the underlying problem. We were imprisoning the wrong people. Crack is made out of powder cocaine and usually not "rocked up" until the street dealer handles it. Thus, the least culpable and most easily replaceable parts of the supply chain were the ones locked up.

An equivalent plan would be to try to close down America's Walmarts by arresting the greeters or stock boys.

Osler is the author of Jesus on Death Row .  An earlier OpEd he wrote is noted here.

Contraband Cell Phones

"Congress moves to crack down on prison cell phones," is the title of an AP report via the Washington Post.  It's written by Jim Abrams.

Congress moved Tuesday to make it tougher for federal prison inmates to use cell phones and wireless devices to direct criminal activities within or outside prison walls.

The House voted by voice to close a loophole in federal law by banning the use or possession of cell phones or wireless devices in federal prisons and classifying those devices as contraband.

Currently, cell phones and wireless devices are not specifically defined as contraband, and inmates and guards caught smuggling the devices into prisons are rarely punished.

The Senate has passed a similar bill.

Sen. Dianne Feinstein, D-Calif., sponsor of the Senate measure, cited a recent report from her state that found that inmates pay from $500 to $1,000 for a phone and that one corrupt correctional officer made some $150,000 in one year by smuggling cell phones to inmates.

And:

The legislation would subject anyone trying to provide a cell phone to an inmate to up to a year in prison.

Rep. Bobby Scott, D-Va., said one reason that prisoners try to obtain cell phones is that they are required to call collect, at considerably more cost, when they make legitimate calls to their families. The bill requires the compiling of a study looking at the costs of providing prisoners with telephone service.

The bill is S. 1749.  Earlier coverage of the issue in Texas begins here.

Federal Review of State Death Sentences

"Congress must rewrite the law governing lawyers for poor death-row inmates," is the title of an editorial in today's Washington Post.

THERE IS something disturbing and distasteful about allowing states to take shortcuts in their quests to put convicts to death. But that is the essence of a deal Congress struck with the states in the mid-1990s. States that guaranteed and paid for a robust system of legal representation for poor death-row inmates could fast-track federal appeals of state capital-punishment convictions. To qualify, a legal defense program had to be certified as acceptable by the federal courts.

After nearly a decade, not a single state qualified. Some in Congress blamed the courts, arguing that judges were either imposing standards that were impossible to meet or were blocking certification because they objected to shortened court deadlines. In truth, the few states that applied for the program often had the biggest death-row dockets and the worst indigent defense systems. The courts, in other words, were right to reject these applications.

This did not sit well with some in Congress, which changed the law in 2006 to give the U.S. attorney general -- and not the courts -- the authority to certify the programs. The attorney general now is obligated to approve an application if the state has "established a mechanism for the appointment of counsel for indigent prisoners under sentence of death" and has set up a "mechanism for compensation" for appointed attorneys.

These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test. In its waning days, the Bush administration only made matters worse by issuing rules for implementing the law that failed to provide clear and robust guidance or standards.

Earlier coverage begins with this post; related posts are in the federal legislation index.

A Summit on the Constitutional Right to Counsel

The Constitutional Right to Counsel Summit will be held Tuesday, June 15th, from 2:00 pm to 5:00 p.m., in Room 2141 of the Rayburn House Office Building, in Washington, DC.  The event is open to the public.

The Summit will bring together members of Congress, congressional staff, judges, prosecutors, scholars, public defenders, and other legal practitioners to discuss the impact the current public defense crisis is having on the effective operation of states' criminal justice systems and examine the federal government's role in ensuring that every state meets its Sixth Amendment responsibility to provide competent counsel.

Rep. John Conyers (D-MI), chair of the House Judiciary Committee, and Rep. Bobby Scott (D-VA), chair of the House Crime Subcommittee, are co-sponsoring the Summit.

Panel 1: The Right to Counsel Crisis in the States

John Chisholm, District Attorney, Milwaukee County, Wisconsin
Alan Crotzer, Exoneree and Probation & Community Intervention Officer, Florida Department of Juvenile Justice
Carlos Martinez, Public Defender, Miami-Dade County, Florida
Hon. Carolyn Temin, Senior Judge, Court of Common Pleas, First Judicial District of Pennsylvania
Hon. Michael Wolff, Judge, Suprme Court of Missouri
Moderator - Melanca Clark, Counsel, Brennan Center for Justice at NYU School of Law

Panel 2: The Federal Response to the Right to Counsel Crisis

Nancy Diehl, Former Prosecutor, Wayne County Michigan; President, State Bar of Michigan (2004-2005)
George Kendall, Of Counsel and Director of Public Service Initiative, Squire, Sanders & Dempsey LLP, New York
Norman Lefstein, Professor of Law & Dean Emeritus, Indiana University School of Law - Indianapolis; Chair, Indigent Defense Advisory Group, American Bar Association Standing Committee on Legal Aid and Indigent Defense
Laurence Tribe, Senior Cousel for Access to Justice Initiative, U.S. Department of Justice
Moderator - Virginia Sloan, President, The Constitution Project

Related posts are in the indigent defense index.

Oral Argument in Magwood v. Patterson

Yesterday, the Supreme Court heard Magwood v. Patterson, an Alabama death penalty case.  The transcript is in Adobe .pdf format.

Today's New York Times reports, "Court Weighs Timing of Death Row Appeal."  It's written by Adam Liptak.

As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Justice Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case.

“Let me just ask,” Justice Stevens said, “is this the case in which the claim is he’s ineligible for the death penalty?”

Corey L. Maze, Alabama’s solicitor general, said that was so.

“The merits of the claim have never been decided?” Justice Stevens went on.

Mr. Maze said no, adding that the question should be left unresolved and that the inmate should be executed because his lawyers had raised the issue too late.

The other justices had been focused solely on that procedural question, and it was not clear whether Justice Stevens’s attempt to reorient their thinking had had any effect.

The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in 1979. At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed “aggravating circumstances.”

Though Mr. Magwood’s crime did not fit any of those circumstances, he was sentenced to death in 1981. In 1985, a federal judge ordered Mr. Magwood resentenced for unrelated reasons, and he was again sentenced to death the next year.

Over the years, Mr. Magwood’s lawyers have challenged his sentence on various grounds, but it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law in the first place.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a second petition challenging Mr. Magwood’s original 1981 death sentence would almost certainly be barred.

But Jeffrey L. Fisher, a lawyer for Mr. Magwood, said his client was challenging his 1986 resentencing for the first time.

“You can’t waive something by failing to raise it in a different case,” he said. “This is an entirely different case.”

"Court to decide if man can fight death sentence," is the AP report by Jesse Holland, via Google News.

The Supreme Court on Wednesday questioned whether an Alabama death row inmate can challenge his second death sentence with an argument state officials said he didn't use when he was first sentenced to die for shooting a county sheriff.

Lawyers for Billy Joe Magwood want to argue that Alabama law was changed to make Magwood's crime a capital offense after it had already been committed.

Defendants aren't allowed to appeal using arguments that could have been brought in the original case, but Magwood's lawyers say that since he was sentenced to die a second time, he should be able to use a new argument in his second round of appeals.

"If it's the second time around, then it's just barred," Justice Anthony Kennedy said.

"Well, it shouldn't be barred. Because it's a new judgment, the defendant should be able to get relief the second time around," said Jeffrey L. Fisher, Magwood's lawyer.

Magwood, 58, has been on Death Row since 1981 for the shooting death of Coffee County Sheriff Neil Grantham in 1979. He got that death sentence thrown out, but then was resentenced to death.

A federal judge overturned the new death sentence after Magwood complained that state law was changed to make his crime a capital offense after it had already been committed. But the 11th U.S. Circuit Court of Appeals in Atlanta reinstated the death penalty, saying Magwood should have complained about the change in Alabama state law in his first round of appeals.

The Birmingham News has, "Some U.S. Supreme Court justices express reservations as Alabama Death Row inmate seeks new appeals opportunity," by Mary Orndorff.

Earlier coverage begins here.

News Coverage of Holland v. Florida"

Marcia Coyle writes, "Justices Debate Whether Lawyer Negligence Can Extend Habeas Deadline," for National Law Journal.  ScotusWiki has full briefing in Holland v. Florida.

The U.S. Supreme Court on Monday struggled with just how bad a lawyer must be to warrant stopping the clock on the time for filing a prisoner's federal habeas petition.

In Holland v. Florida, the justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock.

The issues stem from the death penalty conviction of Albert Holland in 1991. After his conviction became final in 2001, Holland had 365 days to file a federal habeas petition. The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations. That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction motion was denied -- leaving him only 14 days in which to file the federal petition. Collins ultimately missed that deadline.

On Monday, Todd Scher of the Law Office of Todd G. Scher in Miami Beach, Fla., told the justices that the 11th U.S. Circuit Court of Appeals was wrong when it held that attorney negligence, even gross negligence, does not entitle a habeas petitioner to a tolling of the limitations period absent additional allegations of "bad faith, dishonesty, divided loyalty, mental impairment or so forth."

What happened in Holland's case, Scher said, "goes beyond garden-variety negligence." He recounted how Holland repeatedly told Collins that he wanted to preserve his right to file a federal petition if his state petition was denied. Collins did not keep in close communication with Holland. The death row inmate made several pro se motions in attempts to remove Collins from his case. Holland, with an eye on the federal filing deadline, also contacted the clerk of the Florida Supreme Court several times to check on the status of his post-conviction appeal when Collins was nonresponsive. His pro se motions were dismissed because, the state argued successfully, he was represented by counsel. More than a month after the Florida Supreme Court issued its decision, Holland learned of the decision after getting access to the prison's library.

When pressed by Justice Samuel Alito Jr. on what the test should be for tolling the limitations period in situations involving attorney negligence, Scher replied, "Extraordinary circumstances coupled with the petitioner's diligence. It's a case-by-case determination. Here we had lack of notice to the petitioner that the state court decision had issued and a failure to communicate."

And:

Eleven circuits agree that equitable tolling is available under the federal statute. The Supreme Court has never explicitly ruled on the issue.

IRS Should Stay Away From Exoneree Payments

That's the title of a Dallas Morning News editorial from the Wednesday edition.  LINK

The motive behind the Timothy Cole Act, passed overwhelmingly by the Legislature last year, could not have been clearer: to create a fair system of compensation for those wrongfully sent to prison. Named after a Texas Tech student who died in prison an innocent man, the law's goal was to make exonerees as financially whole as possible for the injustice committed against them.

The idea was never to turn injustice into a taxation opportunity for the IRS.

Exoneree John Michael Harvey is due $600,000 in compensation for the 12 years he spent in prison for a crime he didn't commit. Now the Internal Revenue Service is demanding its share, as if the compensation for Harvey's lost years were the payout for a winning lottery ticket.

According to the IRS, such compensation is taxable unless it is for pain and suffering caused "in connection with a physical injury or sickness." Without physical evidence of his pain and suffering, the IRS sees no reason to exempt Harvey's compensation.

A co-sponsor of the Timothy Cole Act, State Rep. Rafael Anchía of Dallas, says a relatively simple fix by Congress would stop the IRS from adding insult to injury. The best way, he says, is to revise federal tax code to state unequivocally that compensation for wrongful imprisonment is exempt from taxation. Another way is for federal tax law to define mental pain and suffering from wrongful imprisonment equal to the physical pain.

Related posts are in the exoneration and innocence indexes.

The State of Indigent Defense

The U.S. Department of Justice hosted a two day symposium on indigent defense on Thursday and Friday in Washington, DC.

The BLT reports, "Justice Dept. Pledges Support to Indigent Defense Reform."  It was posted by Mike Scarcella on Friday afternoon.

Top leaders at the U.S. Justice Department have rotated in and out of the Mayflower Hotel in Northwest Washington over the past few days, each declaring the department's commitment to indigent defense reform.

This afternoon it was Assistant Attorney General Lanny Breuer's turn to deliver remarks in front of several hundred people, many of them public defenders from around the country.

“A strong criminal defense bar is absolutely crucial to the efficacy of any adversarial judicial system,” said Breuer, head of the Criminal Division.

Breuer, a former Covington & Burling partner who focused on white collar criminal defense and served as vice chairman of the pro bono practice, spoke generally about the Justice Department’s examination of the sentencing disparities in crack and powder cocaine cases. And he said the department is looking closely at ways to reduce recidivism.

Breuer in his remarks spent several minutes on a history lesson tied to the public defense bar--recounting the Boston Massacre trials and a defense lawyer named John Adams (who later became the country's second president). Adams, Breuer said, agreed to represent soldiers at trial on murder charges despite the unpopularity of the defendants at the time. Representing the men, Breuer said, may have been "career suicide."

On Thursday, Attorney General Eric Holder addressed the symposium.  His speech, "Looking Back, Looking Forward, 2000-2010," is at the DoJ website.

For well over two centuries now, we, as a people, have been striving to build a more perfect union – an America that lives up to the vision of our Founders. A country where the words of our Constitution can, finally, reach the full measure of their intent.

It is no less than this ongoing work – the fulfillment of our Constitution – that brings us together today. I’m here to discuss a responsibility that we, as stewards of our nation’s criminal justice system, all share – a responsibility to ensure the fairness and integrity of that system.

I would argue that our criminal justice system is one of the most distinctive aspects of our national character. And I also would argue that it is one of the most praiseworthy. That said, we must face facts. And the facts prove that we have a serious problem on our hands.

Nearly half a century has passed since the Supreme Court’s decision in Gideon v. Wainwright. The Court followed with other decisions recognizing the right to counsel in juvenile and misdemeanor cases. Today, despite the decades that have gone by, these cases have yet to be fully translated into reality.

And:

In particular, I think our common work must have three areas of focus. I’ve touched on each of these goals over the last year. But all of them are worth mentioning here again today.

First, we must commit to an ongoing dialogue about these issues. We need partners at the federal, state, and local levels, both within and outside of government, to be involved. By sharing information and working together, I believe we can build on the good work that has gone into developing model standards for our public defense systems.

Second, we must raise awareness about what we’re up against. As Americans understand how some of their fellow citizens experience the criminal justice system, they will be shocked and angered – feelings I hope would compel them to become advocates for change and allies in our work.

Third, we must expand the role of the public defender. We must encourage defenders to seek solutions beyond our courtrooms and ensure that they’re involved in shaping policies that will empower the communities they serve. I’m committed to making sure that public defenders are at the table when we meet with other stakeholders in the criminal justice system. I have charged the Department’s leadership with calling on our components to include members of the public defense system in a range of meetings. We will also involve defenders in conferences, application review panels, and other venues where a public defense perspective can be valuable. And it should not go without saying – every state should have a public defender system. Every state.

Related articles are in the indigent defense category index.  Earlier coverage of Attorney General includes:

• Attorney General Eric Holder Address the ABA Annual Meeting
• AG Eric Holder Speaks at Vera Institute
• DoJ Announces Commitment to Public Defenders, Legal Aid

More Supreme Court News

This post contains news of a ruling today, a ruling on jury selection procedures in Georgia, and an argument preview in a case involving AEDPA.

The Court this morning ruled against an Alabama death row inmate in Wood v. Allen.  The opinion is here, in Adobe .pdf format.  AP reports, "Supreme Court upholds death penalty for mentally impaired Ala. man with inexperienced lawyer," via Newser.com

The court, in a 7-2 vote, refused to overturn the death sentence of Holly Wood, who was convicted in the shooting death of his former girlfriend, Ruby Lois Gosha, in 1993. She was killed by a shotgun blast to her head as she slept in her home in Troy, Ala.

A federal judge had tossed out the death sentence on the basis of the poor performance of Wood's lawyer in the sentencing phase of his trial. The lawyer, described in court papers as lacking criminal law experience, failed to tell jurors that Wood had an IQ of less than 70 and had been classified as mentally retarded.

The Atlanta-based 11th U.S. Circuit Court of Appeals reinstated the death sentence, ruling that Wood had failed to show that the lawyers was unconstitutionally ineffective.

The Supreme Court agreed. "Even if it is debatable, it is not unreasonable to conclude that ... counsel made a strategic decision not inquire further into the information contained in the report about Wood's mental deficiencies and not present to the jury such information," Justice Sonia Sotomayor said.

She was joined in the opinion by Chief Justice John Roberts and Justices Antonin Scalia, Ruth Bader Ginsburg, Clarence Thomas, Stephen Breyer and Samuel Alito.

Justice John Paul Stevens and Anthony Kennedy dissented, with Stevens saying he cannot see why Wood's lawyer did not investigate or present "powerful mitigating evidence of Wood's mental deficits for the penalty phase" of the trial.

Earlier coverage of the case is here.

There is news coverage of the Court's ruling in Presley v. Georgia, concerning the openness of jury selection.

"High Court Justices Underscore Importance of Open Criminal Trials," is the title of Tony Mauro's NLJ report. 

The U.S. Supreme Court on Tuesday strengthened the right to public criminal trials, ruling in a Georgia case that jury voir dire proceedings should be open to defendants and to the public.

In an unsigned 7-2 ruling in Presley v. Georgia (pdf), the high court also said that a trial judge has a duty to seek alternatives that will preserve openness even when, for example, it appears that there are so many prospective jurors in the courtroom that there are not enough seats for the public.

"Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," the Court majority stated. "The public has the right to be present whether or not any party has asserted the right."

Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, asserting that the case should have been decided only after full briefing and oral argument. Thomas also wrote that the ruling "belittles the efforts of our judicial colleagues" who have to interpret conflicting precedents on the issue. Per curiam decisions like the one in Presley usually occur without any oral argument or briefing beyond the initial petition and response, and deal with relatively uncontroversial issues.

And:

Defendant Eric Presley was convicted by a Georgia jury on cocaine trafficking charges, but he challenged the trial judge's exclusion of the public -- Presley's uncle, specifically -- during voir dire of prospective jurors.

The judge, DeKalb County Superior Court Judge Linda Hunter, justified the exclusion by telling the man, who was the only person in the audience, that prospective jurors would be filling the seats, and "you can't sit on the same row with the jurors." Presley's lawyer objected, but the judge still excluded the man, stating, "We have very small courtrooms and the witnesses and relatives cannot sit in the audience beside the potential jurors. That will be grounds for a mistrial."

A divided Georgia Supreme Court in March 2009 upheld the conviction, ruling that the judge had "an overriding interest" in protecting potential jurors from taint. It also ruled that the judge was not obliged to consider alternatives when none of the parties offered any.

Leah Ward Sears, then chief justice of Georgia, dissented, stating, "A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminal trial." Carol Hunstein, the current chief justice, joined her dissent.

Adam Liptak writes, "Supreme Court Rules on Trial Conduct in Georgia," for the New York Times.

Joan Biskupik writes, "Supreme Court: Jury selection should be open," for USA Today.

Finally for today, SCOTUS Blog previews the case Berghuis v. Smith in "AEDPA and the Sixth Amendment’s 'Fair Cross-Section' Requirement."  It's written by James Bickford.

Today the Court will hear oral argument in Berghuis v. Smith, the latest in the line of cases tracing the limits of habeas corpus review under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.  AEDPA precludes federal habeas relief when a state court has adjudicated a federal claim on its merits, unless the state court ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”  In Terry Williams v. Taylor (2000), the Court held that under AEDPA, federal habeas relief is available only when a state court’s application of federal law is objectively unreasonable, rather than merely incorrect.

At issue in this case is the intersection of AEDPA and the Court’s precedents governing jury selection.  In Taylor v. Louisiana (1975), the Court held that the Sixth Amendment guaranteed a jury drawn “from a representative cross section of the community.”  Four years later, in Duren v. Missouri (1979), the Court outlined a three-part test to determine whether a group has been unconstitutionally excluded from the jury pool:  the group must be (1) distinctive and (2) lacking “fair and reasonable representation” for reasons that are (3) caused by the system of jury selection.

Related posts are in the Supreme Court index.

Editorial Roundup

Today's Oklahoman carries the editorial, "Reform rollback: Capital crime law facing challenge."

One of the most tangible outcomes of the Oklahoma City bombing was reform of the capital punishment appeals system. Survivors of murder victims had been forced to wait 10, 12 or more years from sentencing to execution as the process played out.

Oklahoma Attorney General Drew Edmondson, in his first year in office when the bombing took place in 1995, was a leader in the fight to streamline the appeals process. The goal was to facilitate justice for survivors — not to rush a convicted murderer to the death chamber.

An effort is growing to roll back the reforms. Edmondson, who’s running for governor, is understandably concerned, calling it a "giant step backward.”

In Kansas, the Winfield Courier has the editorial, "Abolish the death penalty."

Kansas should abolish the death penalty.

The death penalty is wrong because it is not always just.

It is wrong because the criminal justice system is flawed and needs fixing.

It is wrong because the courts are poorly qualified to draw the line between mental illness and mental health.

And:

Justice should be found in the cool of the head, not the heat of the heart.

"Executions dying a slow death," is the title of a December 26 editorial in Utah's Deseret News.

Executions, death sentences and death rows are down in the United States. And that's a plus for everyone.

In 2009, there were 106 death sentences imposed in the nation, the fewest since the death penalty was reinstated in 1976. Some 52 people were put to death this year, almost half as many as a decade ago.

The Death Penalty Information Center cites as reasons the fear of DNA evidence proving an innocent soul was put to death and the high cost of death sentences. In 2009, nine men who had been sentenced to death were exonerated. Also, the crime rate is down, and judges are ruling people "incompetent" to stand trial more than in the past.

But more than all that, history shows that Americans have been losing their taste for executions for some time. 

And:

Executions — whether performed by governments and the military for high crimes, or carried out by individuals acting on their own — will likely always be a part of humanity.

That's the dour side.

The upside is humanity itself is learning to isolate and minimize those executions and finding other ways of satisfying justice.

Related posts are in the editorial index; More on AEDPA, in the federal legislation index.

Juvenile Justice Roundup

First, there is word that the U.S. Senate Judiciary Committee completed markup of S. 678 yesterday, legislation to renew of the Juvenile Justice Delinquency and Prevention Act of 1974.  Main Justice posts, "Senate Panel Approves Juvenile Justice Bill Renewal.

The Senate Judiciary Committee endorsed legislation today that would reauthorize certain juvenile delinquency program funds.

The Juvenile Justice and Delinquency Prevention Reauthorization Act of 2009 would renew the program funding provisions in the Juvenile Justice and Delinquency Prevention Act of 1974 until fiscal year 2014. The 1974 legislation was due for reauthorization three years ago. The program authorizes funding to states with special practices for handling youth in their justice systems.

The panel voted 12-7 on the 2009 bill this morning at its markup. Sen. Dianne Feinstein (Calif.) was the only Democrat to vote against the bill, agreeing with Republican concerns over the projected $4 billion price tag for the legislation.

Feinstein, who also sits on the Senate Appropriations Committee, said the bill calls for a “huge authorization” that would be hard to justify with the $1.7 trillion federal deficit.

“I would be very hard pressed to appropriate these sums of money for this purpose at this particular point in time,” Feinstein said at the panel markup.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), who is a sponsor of the bill, cited a New York Times editorial from yesterday that called on the Senate to move on the bill. He first introduced the reauthorization legislation in 2008.

“The Senate Judiciary Committee reported this important bipartisan legislation last year,” Leahy said in a statement. “We should ensure that it passes into law in this Congress.”

More information on the bill is here, via THOMAS; the text, here.  Earlier coverage of the legislation is here.  A hat tip to the Crime Report.  The ACLU issued a news release, "Senate Judiciary Committee Passes Landmark Juvenile Justice Legislation," following the Judiciary Committee's action.

Also, the Florida Times-Union reports, "Florida Supreme Court justices unshackle juvenile defendants."  It's written by Dana Treen.

The Florida Supreme Court has approved a dramatic change in the use of shackles, handcuffs and other restraints on juveniles in the state’s courtrooms.

The justices Thursday approved a new court rule that prohibits restraints unless a judge determines they are necessary for one of three reasons: preventing physical harm to the child or other people, a defendant’s history of disruptive courtroom behavior or a strong belief there’s a substantial risk of flight.

Since the early 1980s the shackling of juveniles has evolved as a security measure in Florida courtrooms, said Rob Mason  of the Public Defender’s Office in Jacksonville. Mason said juveniles brought from detention centers to appear before a judge are shackled and remain so in the courtroom.

“It’s really a pathetic sight when they bring them in,” said Mason, former chairman of The Florida Bar’s Juvenile Court Rules Committee that recommended the change.

Mason said the restraints make it difficult for the young prisoners to raise their hands when they swear to tell the truth. He also said the state’s juvenile justice system is supposed to be set up differently than adult court. He advocated for the change before the justices in June.

“It’s a monumental victory for Florida’s children,” Mason said. “A juvenile is supposed to be different.”

The aim of juvenile courts is to provide a safe environment and focus on rehabilitation, he said.
He said experts on juvenile development suggest shackling can cause emotional harm, may cause the juvenile to feel as if they are somehow dangerous and increase resentment of authority.

For the past couple of years, courts in Miami-Dade County have taken the shackles off juveniles with little negative effect, Mason said.

The new rule takes effect statewide in January.

Related posts are in the juvenile index.

Juvenile Justice

Today's New York Times carries the editorial, "De-Criminalizing Children."  It addresses renewal of the Juvenile Justice Delinquency and Prevention Act of 1974, which the U.S. Senate Judiciary Committee is expected to take up today.

As many as 150,000 children are sent to adult jails in this country every year — often in connection with nonviolent offenses or arrests that do not lead to conviction. That places them at risk of being raped or battered and increases the chance they will end up as career criminals.

To fix this problem, Congress needs to properly reauthorize the Juvenile Justice Delinquency and Prevention Act of 1974, under which states agreed to humanize juvenile justice policies in exchange for more federal aid. This act was largely bypassed in the 1990s when unfounded fears of an adolescent crime wave reached hysterical levels.

When it reauthorizes the law — it is already three years late — Congress should make it illegal for states to place children in adult prisons, perhaps with the exception of truly heinous criminals.

The House has yet to introduce a new bill; in the Senate, an updated version has yet to be voted out of the Judiciary Committee. The Senate bill is less than ideal, but it does encourage the states to de-emphasize the practice of detaining children in adult jails before trial and requires them to better protect young people who end up there. Several states have begun to reform their systems: housing young people in juvenile facilities — where they are better protected and can get mental health treatment — even if they have been convicted in adult courts. The current version of the law threatens states with loss of federal aid if they make that decision. The Senate bill would do away with that language.

Our friends at Change.org are urging those concerned with juvenile justice to reach out to their home state senators via this link.

Related posts are in the juvenile and federal legislation category indexes.

America's Prison Population

The Department of Justice Bureau of Justice Statistics has released two annual reports detailing America's prison population and those on probation and parole.

A summary page has links to both Prisoners in 2008 by William J. Sabol, Heather C. West, and Matthew Cooper, and; Probation and Parole in the United States, 2008 by Lauren E. Glaze and Thomas P. Bonczar.

"Prison Population Up, Despite Drop in 20 States," is the AP report, via the New York Times.

The prison population in the United States edged up slightly last year, but the total number of inmates dropped in 20 states, including New York, Georgia and Michigan.

Justice Department figures released Tuesday showed the overall state and federal prison population is at an all-time high of 1.6 million and is still rising, but the rate of growth is slowing as states look for ways to cut the cost of justice.

Including people in jails, where some are held to await trial, the total number of people behind bars comes to 2.3 million. The government figures showed one out of every 133 residents in the United States was in prison or jail at the end of last year.

The prison population grew less than 1 percent last year. In the previous decade, the inmate population grew by an annual average of more than 6 percent. Ram Cnaan, a professor at the School of Social Policy and Practice at the University of Pennsylvania, said the slowing trend showed politicians were confronting a painful truth about prisons.

“They simply cost too much,” Professor Cnaan said. Both liberals and conservatives are increasingly searching for alternative sentencing programs, like treatment or monitoring, he said.

“It’s not ideological, it’s pragmatic,” Professor Cnaan said. “This is the first time that we have alliances on the right and left on this issue, and it’s the money that has forced the issue.”

The states with the largest increases in prison population were Pennsylvania, Florida and Arizona, whose one-year increases were all greater than the federal prison system, which grew by 1,662 inmates.

Today's Washington Post has, "Many states sending fewer people to prison, federal report shows," by Krissah Thompson.

The Bureau of Justice Statistics data also found that the incarceration rate for African Americans -- who are imprisoned at rates higher than other racial groups -- fell sharply, with 9 percent fewer black people behind bars. Studies this year by the Sentencing Project, a research group that advocates for lower rates of imprisonment, have attributed the decline to the lower number of blacks imprisoned for drug offenses.

A report released earlier this year by the project found a 21.6 percent decline in the number of African Americans incarcerated in state prisons for a drug offense from 1999 to 2005, along with a rise of 42.6 percent in the number of white drug offenders. Still, black males are incarcerated at more than six times the rate of white males, and black females at three times the rate of white females, Marc Mauer, the project's executive director, said in a statement.

"While the declining number of African Americans in prison is encouraging, the scale of racial disparity in imprisonment is still dramatic," Mauer said.

Human Rights Watch has issued a news release, "Cause for Hope as Prison Growth Slows," via Reuters.

"These numbers suggest that the United States may be turning away from the policies that have given it the world's highest incarceration rate," said David Fathi, director of the US Program at Human Rights Watch. "But as the world's leading jailer, the US still has a long way to go."

The BJS statistics show that the United States has more than 2.4 million people behind bars on any given day, and an incarceration rate of 754 per 100,000 residents. This is the highest incarceration rate in the world, and is several times higher than rates in other democracies like England and Wales (154 per 100,000), Canada (116), and Japan (63).

The report also reveals significant racial disparities in US criminal justice policy, with black men incarcerated at a rate six and a half times as high as that of white men.

As the financial crisis has created record budget deficits, many states have amended their sentencing laws to reduce the use of incarceration; others have granted early release to prisoners convicted of minor, nonviolent offenses.

"The United States may finally be learning what other democracies have long known - that incarceration is expensive and socially destructive, and should only be used as a last resort," Fathi said.

The Council of State Governments issued, "U.S. Justice Department's Bureau of Justice Statistics Releases New Numbers about Nation's Correctional Population."

The Bureau of Justice Statistics (BJS) released two bulletins today that examine the numbers of prisoners and individuals under probation or parole supervision in the nation for 2008 and report on related trends—including an overall increase in the number of individuals being released from federal and state prisons.

Although these bulletins contain rich information for policymakers and practitioners, the CSG Justice Center's National Reentry Resource Center, supported by the Bureau of Justice Assistance, is highlighting just a few of the findings related to reentry and providing information on how to access the full reports as soon as they became available.

The new statistics reveal that the total prison population growth rate (.8 percent) was the slowest in eight years; however, "the numbers of state and federal prisoners reached all-time yearend highs in 2008." BJS estimates that about 1 in every 198 U.S. residents was incarcerated in federal or state prison at the end of 2008.

Prisoners in 2008 reveals that the number of individuals released from federal and state prisons rose to 735,454 (an increase of 2 percent). The bulletin also reports that there was an 8 percent increase in the number of individuals released to the community without any conditions. These numbers underscore the need for reentry resources and technical assistance to state and local service providers.

Probation and Parole in the United States, 2008 provides useful information about the nearly 5.1 million adults under community supervision—about 1 in every 45 adults in the country. (The bulletin on prisoners indicates that although the number of parole violators admitted to state prison increased again in 2008, the rate of that increase was slower than in the previous two years.)

Both bulletins provide detailed appendixes with information about particular states, methodologies, and notes that describe how jurisdictions collect and report data.

Last week's BJS report on capital punishment is noted in this post.

U.S. House Judiciary Subcommittee Examines Habeas Restrictions in Capital Cases

Right now the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties is holding a hearing to, "Consider the Impact of Federal Habeas Corpus Limitations on Death Penalty Appeals."  Unfortunately, it's not being webcast.  The Subcommittee is chaired by Jerrold Nadler of New York.

The Witnesses are:

Stephen F. Hanlon
Partner, Holland and Knight, LLP
Washington, DC

Hon. Gerald Kogan
Chief Justice (Retired), Florida Supreme Court
Co-Chair, Constitution Project Death Penalty Committee
Miami, FL

Michael E. O'Hare
Supervisory Assistant State’s Attorney, Civil Litigation Bureau
Office of the Chief State’s Attorney
Hartford, CT

John H. Blume
Professor of Law, Director, Cornell Death Penalty Project
Cornell University Law School
Ithaca, NY

The Constitution Project has issued a news release, "Constitution Project Representatives Urge Congress to Restore Habeas Corpus for Death Penalty Cases."

Two representatives of the Constitution Project will testify before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties this afternoon at a hearing to consider the impact of limits on federal habeas corpus in death penalty cases. Stephen F. Hanlon, Chair of the Constitution Project’s Board of Directors, Chair of the American Bar Association’s Death Penalty Moratorium Project Steering Committee, and partner at Holland and Knight, will testify on behalf of the ABA. The Honorable Gerald Kogan, Co-Chair of the Constitution Project’s Death Penalty Committee and former Chief Justice of the Florida Supreme Court, will testimony on behalf of the Constitution Project. Both will provide testimony on the urgent need to restore habeas corpus for death penalty cases.

 In his testimony submitted to the Subcommittee, Chief Justice Kogan states in part:

 

“Federal habeas corpus is an enormously important element of our justice system with deep roots in our constitutional tradition. In particular, the federal courts’ authority to adjudicate constitutional claims advanced by state prisoners is a valuable means by which the Bill of Rights is enforced in criminal cases. Scarcely anyone contends that the federal courts should not have this authority. The policy debate is over the proper arrangements for habeas corpus litigation in the federal forum.”

 

Mr. Hanlon adds in part:

 

“[S]tate governments have failed for many years to implement the necessary reforms to address long-standing and systemic problems in our death penalty counsel systems. Mistakes that occur at trial as a result of these failures are aggravated by ever-tightening restrictions on federal court review, making it difficult, if not impossible, for federal courts to correct even the most serious deprivation of constitutional rights. A system that wrongly sentences people to death and then erects considerable obstacles to bar judicial review of their cases is not a system that comports with our principles of justice. It should not surprise us that one consequence is a loss of public confidence in the integrity and accuracy of our legal system.”

Justice Kogan's complete testimony is here; Hanlon's here; both in Adobe .pdf format.

The Constitution Project’s Death Penalty Committee’s consensus report, Mandatory Justice: The Death Penalty Revisited, will be submitted for the Subcommittee's record.

Related posts are in the federal legislation and habeas index.

Selective Empathy

That's the title of Linda Greenhouse's latest post at the New York Times Opinionator blog.  LINK It's a must-read. Several excerpts:

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question: Is selective empathy better than no empathy at all?

And:

“Ineffective assistance of counsel” is an exceptionally difficult claim on which to succeed. The Supreme Court has found ineffective assistance only a handful of times since it raised the bar in a 1984 case, Strickland v. Washington. That decision requires defendants to prove two elements: that the lawyer’s performance “fell below an objective standard of reasonableness” and that there was a “reasonable probability” that the outcome would have been different if not for the bad lawyering.

The second prong is a special challenge for death-sentenced defendants, who must demonstrate that an adequate lawyer would have provided the sentencing jury with enough mitigating evidence to overcome the weight of the prosecution’s “aggravating evidence.” An abundance of aggravating evidence is often the reason the prosecution is seeking the death penalty in the first place.

When the ineffective-assistance claim is made in a habeas corpus petition in federal court, the bar is even higher. Under a 1996 federal law, the defendant must show that the state court’s decision was not simply mistaken on its own terms, but that it “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” — in other words, that the state court had all but defied controlling Supreme Court precedent. The federal appeals court in Atlanta ruled that Mr. Porter was not entitled to habeas corpus because even if the Florida courts were wrong to regard his lawyer as adequate, they were not so wrong as to be unreasonably wrong.

That was the decision the Supreme Court overturned. It was “objectively unreasonable,” the justices said, to discount the possibility that a decent lawyer, presenting a convincing narrative of Mr. Porter’s military service and lingering trauma, could have persuaded the jury to spare his life. The court then provided such a narrative itself, with a vivid recitation of the battles Mr. Porter’s unit had fought “under extreme hardship and gruesome conditions.” The opinion observed that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.”

There were several notable features to this decision, Porter v. McCollum. The most obvious was that the 15-page opinion was unanimous and unsigned, labeled simply “per curiam,” meaning “by the court.” The court had not heard argument in the case and never formally accepted it for decision. Evidently the justices concluded that the right decision was so obvious that they could dispense with the formality of further briefing and argument.

And:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

An earlier Opinionator post by Greenhouse, the retired Times Supreme Court correspondent, is here. More on Porter v. McCollum is here.

The Keeper and the Kept

That's the title of a new report from the W. Haywood Burns Institute that will be issued Tuesday.  Shadi Rahimi writes, "National Leader in Juvenile Justice Poised to Release New Report."

For the families of the more than 90,000 youth in custody of the juvenile justice system any given day, Thanksgiving delivers heartbreak. A majority of incarcerated children in the U.S. are youth of color held for mostly nonviolent offenses. For this, our society pays a high moral and financial price, says James Bell, Executive Director of the W. Haywood Burns Institute (BI) and lead author of its new report on juvenile justice, The Keeper and the Kept.

“As a society we do not demand nor expect excellence, fairness, rationality or accountability from our child-serving justice systems. But there is too much at stake for our democratic principles and our ability to compete in a global knowledge-based world,” Bell says. “As a country, we are not well-served when we have so many uneducated youth of color undeservedly lost in the American juvenile justice apparatus. We can do better. But in order to, we must demand accountability from our juvenile justice systems.”

Systemic problems in juvenile justice are at the forefront of conversation today, particularly regarding juvenile imprisonment for life without parole. On a national level, Black youths are serving life without parole at a rate of about 10 times that of White youths, according to Human Rights Watch. At the same time, the federal Juvenile Justice And Delinquency Prevention Act (JJDPA) is overdue for reauthorization and is expected to go before the Senate Judiciary Committee this week. The BI, along with the coalition Act4JJ, is pushing for JJDPA reauthorization for reasons including: 1) reducing racial and ethnic disparities in juvenile justice; 2) preventing youth awaiting trial in criminal court from adult lock-up; 3) limiting the time that children who are truant, runaway or violate curfew may be held in juvenile lock-up.

Right and Left Join Forces on Criminal Justice

That's the title of Adam Liptak's report in today's New York Times.  LINK

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

And:

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“Libertarians and the civil liberties left have always had some common ground on these issues,” said Radley Balko, a senior editor at Reason, a libertarian magazine. “The more vocal presence of conservatives on overcriminalization issues is really what’s new.”

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.

In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October.

“A joint on a yacht, and the whole thing is forfeited,” said Paul Cassell, a law professor at the University of Utah and a former federal judge appointed by President George W. Bush.

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population.

“Conservatives now recognize the economic consequences of a criminal justice leviathan,” said Erik Luna, a law professor at Washington and Lee University.

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas. The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses.

“Scalia and Thomas are vanguards of an understanding by the modern right that its distrust of government extends all the way to the criminal justice system,” said Douglas A. Berman, a law professor at Ohio State University.

The court will hear another confrontation clause case, Briscoe v. Virginia, in January. It is a sequel to a decision in June that prosecutors may not use crime lab reports without live testimony from the analysts who prepared them.

The conservative re-evaluation of crime policy is not universal, of course. Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

Magwood v. Culliver From Alabama

"30 Years After Murder, Is His Appeal Too Late?" is the title of Adam Liptak's report in today's New York Times.

The Supreme Court agreed Monday to decide whether it is too late for an Alabama man to argue that the murder that sent him to death row was not a capital crime when he committed it.

The inmate, Billy Joe Magwood, shot and killed Sheriff Neil Grantham in 1979 in front of the Coffee County jail. At the time, Alabama law imposed two requirements before the state’s judges could sentence defendants to death: the commission of one of 14 listed offenses and the existence of certain “aggravating circumstances.”

The murder of a peace officer like a sheriff was a listed offense. But Mr. Magwood’s crime did not satisfy the second requirement. The question before the Supreme Court is whether he took too long to raise the argument that he could not have lawfully been sentenced to death.

Although Mr. Magwood’s lawyers challenged his sentence on other grounds over the years, it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law. In the meantime, a federal judge, acting on other grounds, ordered Mr. Magwood resentenced in 1985. He was again sentenced to death the next year.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a petition challenging Mr. Magwood’s original death sentence might well be barred, given his earlier challenges. But Mr. Magwood argues that he is challenging his 1986 resentencing for the first time.

A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled in January that since Mr. Magwood could have challenged his original sentence on the grounds he now asserts, he cannot raise them now.

In urging the Supreme Court not to hear the case, Magwood v. Culliver, No. 09-158, Attorney General Troy King of Alabama said Mr. Magwood’s argument “unquestionably could have been, but was not, raised during his first round of litigation 20-plus years earlier.”

There appears to be little dispute that a literal reading of the law in effect at the time of the murder did not allow Mr. Magwood to be sentenced to death.

In a 1981 decision in another case, the Alabama Supreme Court acknowledged that “a literal and technical reading of the statute” would forbid the death penalty in circumstances like Mr. Magwood’s. But the court called that result “completely illogical” and “an anomaly in Alabama’s death penalty statute” that could not have been intended by the State Legislature.

Lyle Denniston posted, "Court adds one new case," yesterday at SCOTUS Blog.

The new habeas case that the Court will hear involves an Alabama death-row inmate, Billy Joe Magwood of New Brockton.  He was sentenced to die for murdering a county sheriff in front of the county jail.  He has long suffered from paranoid schizophrenia, and believed that the Army had sent him orders through a surgically implanted device that the sheriff and other authorities were interfering with completion of his “mission.”

After an original death sentence for Magwood was overturned in 1986, he was again given a death sentence following a new proceeding in state court.  After state courts rejected his challenge to the new sentence, Magwood’s lawyers filed for federal habeas, contending that he had had no notice that a state court ruling adverse to his case would be applied retroactively, and thus to his case.  A federal judge ruled in his favor, but the Eleventh Circuit Court overturned that result.  The Circuit Court ruled that the claim of a lack of fair warning was a second or successive habeas claim, and thus was barred.  The claim could have been raised at Magwood’s initial sentencing, that court decided.

In taking the case on to the Supreme Court, Magwood’s counsel argued that habeas petitions brought against new sentences should be treated as initial, first challenges when an inmate has succeeded in winning a chance for a new sentence.  Oral argument of the case is likely to be in March.

All briefing in Magwood v. Culliver is via ScotusWiki.

Massachusetts AG Criticized for Wood v. Allen Position

"Death penalty foes rip Coakley for signing brief," is the title of Matt Viser's report in today's Boston Globe. The amicus brief is here, in Adobe .pdf format.

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts. Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed,’’ said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty. “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief.’’

Many of the other attorneys general who signed the brief were from more conservative states in the South and Midwest. All but three states that signed it - Iowa, Massachusetts, and New Mexico - allow the death penalty.

“At the end of the day, if the state of Alabama wins, this kid with an IQ in the 60s will be executed,’’ said Bright, who teaches at Yale and Georgetown law schools.

Coakley and her aides argue that her signing the brief had nothing to do with the death penalty and that they were purely concerned with the legal implications of allowing federal courts more discretion in reviewing decisions that state courts have already made, which Coakley asserts would take additional time, money, and resources.

Coakley said that the brief she signed, though it is attached to a death penalty case, is limited in scope and is designed to address only the question of what role federal courts should have in reviewing state court decisions. The brief makes no mention of capital punishment.

“This, from our point of view, is unrelated to a death penalty or any of the issues around that,’’ Coakley said. “A real concern was that we get a clear determination from the Supreme Court on what is the standard of review of a federal court looking at a state court decision.’’

The case illustrates the tension between Coakley’s role as the state’s top law enforcement official and her political ambition. Her involvement in the case could have political implications in a highly charged Senate race in which her past support for the death penalty has already come under fire.

And:

At issue is the interpretation of the Antiterrorism and Effective Death Penalty Act of 1996, which in most instances bars federal reconsideration of legal and factual issues on which state courts have already ruled. A Supreme Court ruling in Alabama’s favor could result in federal courts having to defer to state judgments in many instances. Death penalty cases from the states are among those frequently challenged in federal court.

“If you’re concerned about the death penalty, then you have to be concerned about people being able to have their case reviewed in federal court,’’ said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, which opposes capital punishment. “The error rate, in my judgment, is shockingly high, so high that you want federal courts to be able to review these cases without a lot of restrictions.’’

In this case, Stevenson added, “Mr. Wood will be executed in a matter of weeks . . . It is not theoretical in Alabama.’’

In their brief, Coakley, and other states that signed onto it argued that the decisions already made by state courts should not be overridden.

“States have an obligation to protect the finality of the judgments entered by their courts - an obligation that is even more compelling when it involves criminal judgments,’’ their brief reads. “Undoing finality in habeas corpus litigation in the federal courts can undermine the states’ interests in ensuring safety, deterring crime, and rehabilitating criminal offenders.’’

Otherwise, Massachusetts and every other state would have to go to federal court and defend what it did in state courts, the attorneys general argue.

Over the past year, there were about 100 new federal cases challenging state criminal convictions in Massachusetts, according to the attorney general’s office.

Coakley said those numbers would probably rise if the Supreme Court rules against the states.

Tracey Maclin, a law professor at Boston University, said it “makes perfect sense’’ for Coakley to weigh in on this case.

“I’m against the death penalty, but it would be bordering on incompetence for an attorney general not to sign this case,’’ he said. “If the Supreme Court makes it harder, that’s more work that they would have to do. Unless she wants to make more work for her office, she has a vested interest.’’

Earlier coverage of Wood v. Allen begins here.

U.S. Lawmaker Pushes Death Penalty Appeals Overhaul

That's the title of a news report from AFP, via Google News.  LINK

A US lawmaker has introduced legislation to end "inhumane and unconstitutional" rules that prevent death row inmates from presenting newly discovered evidence to dispute their guilt.

"We've got folks on death row with no opportunity to show compelling new evidence of innocence," Democratic Representative Hank Johnson of Georgia said upon unveiling his proposal this week.

Johnson's measure, hailed by human rights group Amnesty International, would allow federal courts to give death row prisoners more opportunities to present newly discovered evidence that demonstrates probable innocence.

It would also let inmates file more habeas corpus appeals challenging their detention if and only if they offer new evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant a habeas corpus petition, the case would likely return to the court where it was first tried for a retrial, supporters of the legislation say.

Underlining that current restrictions on appeals may lead to innocent people being executed, Johnson warned: "The status quo is inhumane and unconstitutional."

The bill is H.R. 3968, the Effective Death Penalty Appeals Act.  You can view the text via the Library of Congress.  The bill is co-sponsored by: Constitution Subcommittee Chairman Jerrold Nadler (D-NY), Judiciary Committee Chairman John Conyers [D-MI], Crime Subcommittee Chairman Bobby Scott [D-VA], Rep. Anthony Weiner [D-NY] , Rep. Sheila Jackson Lee [D-TX], and Ways and Means Subcommittee Chairman John Lewis [D-GA]

Congressman Johnson's office has issued a news release, "Hank: Bill to protect innocent Americans from execution."

Under current law, an inmate on death row can be stranded with no procedural options to appeal a conviction, even if there is compelling new evidence that he or she is innocent.

The Effective Death Penalty Appeals Act would:

(1) empower federal courts to grant habeas corpus relief for a prisoner on death row who presents newly discovered evidence that demonstrates probable innocence; and

(2) allow prisoners on death row to file successive federal habeas petitions if, and only if, they present newly discovered evidence that a panel of federal judges rules may be reasonably expected to demonstrate innocence.

If a federal court were to grant such a habeas corpus petition, the case would likely return to its original jurisdiction for retrial.

“We’ve got folks on death row with no opportunity to show compelling new evidence of innocence,” said Johnson, Chairman of the Court and Competition Policy Subcommittee. “The status quo is inhumane and unconstitutional.”

“The Effective Death Penalty Appeals Act would prevent the execution of possibly innocent people where there is new evidence of innocence,” said Constitution Subcommittee Chairman Nadler. “If the death penalty remains the law of the land, then, at the very least, our legal system must never ignore evidence that could exonerate the accused. Death is different from all other penalties; it is irreversible. Those on death row must have the opportunity to bring forward all of the available evidence.”

“Unfortunately, errors in death penalty cases are not discovered until after the defendant is already incarcerated,” said Judiciary Committee Chairman Conyers. “In some terrible cases, the system may well be allowing some innocent defendants to be executed.”

“We have learned in Georgia,” said Rep. Lewis, “from the injustice of cases like that of Troy Anthony Davis, where legal technicalities prohibit new, important evidence from being heard. The value of a human life overrides any inconvenience of law. We have a duty and an obligation to ensure that those who may be innocent have every opportunity to be heard.”

“When it comes to a human life, the courts must always be able to take a closer look at evidence that supports claims of innocence,” said Johnson. “We should never put someone to death if there are innumerable doubts or omissions.”

And:

Two cases – one present, one past – demonstrate the necessity of this legislation.

Today, Troy Anthony Davis sits on death row in Georgia. He was convicted of murder in 1991, but nine of eleven eyewitnesses have subsequently recanted their testimony. Because Davis has exhausted his appeals at the state level and federal law offers him no path to relief, he is unable to present the new evidence that might exonerate him. 

The Supreme Court has relied upon its original jurisdiction to order the U.S. District Court for the Southern District of Georgia to grant Mr. Davis an evidentiary hearing.  However, the law in its current form does not necessarily give the District Court authority to grant Mr. Davis’ habeas petition, even if they find that the new evidence supports his innocence claim.

And:

In 2004, Cameron Willingham was executed by the State of Texas for the murder of his children by arson. After Willingham’s conviction, a widely-respected forensics expert reviewed the case and concluded in a report that there was “no evidence of arson.”  The report was sent to Governor Rick Perry and the Texas Board of Pardons and Paroles with Willingham's appeal for clemency. Willingham was executed anyway. Subsequent investigations have cast even more doubt upon the conviction. Newly discovered evidence never got the full hearing it deserved.

Related articles are in the federal legislation index.  Earlier coverage of Troy Davis is here; Todd Willingham, here.

News Coverage of Wood v. Allen & Prosecutorial Immunity Case

You can read the transcripts in Pottawattamie County v. McGhee and Wood v. Allen, via the Court's website.

Adam Liptak writes, "Justices, in Aftermath of 2 Murder Cases, Hear Claims of a Process Gone Wrong," for today's New York Times.

The Supreme Court heard arguments Wednesday in two cases involving claims that the criminal justice system had gone badly awry.

In one, Iowa prosecutors are accused of fabricating evidence that sent two innocent men to life imprisonment for murder. In the other, an Alabama prisoner attributed his death sentence to an appointed defense lawyer’s failure to present evidence at the sentencing phase of his trial.

In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court’s determination in 2003 that the main witness against them was “a liar and a perjurer.”

The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued.

It is well established that prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. The question in the Iowa case, Pottawattamie County v. McGhee, No. 08-1065, is whether that immunity extends to prosecutors’ pretrial conduct.

Stephen S. Sanders, a lawyer for the Iowa prosecutors, acknowledged that police officers can be sued for fabricating evidence later used to obtain a conviction. So too, Mr. Sanders said, can prosecutors who had nothing to do with presenting the fabricated evidence at trial. But trial prosecutors, he said, should enjoy complete immunity for anything they do before or during trial.

Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.

“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”

And:

The Alabama case, Wood v. Allen, No. 08-9156, arose from the appointment of a lawyer who was less than a year out of law school to help defend Holly Wood, convicted in 1994 of murdering his former girlfriend. The lawyer, Kenneth B. Trotter, failed to pursue or present evidence that Mr. Wood was mentally retarded, though he had a competency report in hand that said as much.

Wednesday’s argument in the case was almost entirely concerned with a 1996 law that limits the claims federal courts can hear from death row inmates.

“It is just repetitive, and it gets people mixed up,” Justice Stephen G. Breyer said of two seemingly duplicative provisions of the law, the Antiterrorism and Effective Death Penalty Act.

Justice Kennedy was also frustrated. “So I have a choice of something that is counterintuitive or superfluous,” he said, “and I don’t know which one to take.”

Various solutions were proposed about how to harmonize the two provisions, but they seemed only to complicate matters further.

Adopting one of those solutions, Justice Breyer said, would lead to confusion and litigation in equal measures. “There will only be four professors in the country who understand which is which,” he said, “and they will each say different things.”

It was not clear, though, that any answer to the question of how to read the dueling provisions would be of help to Mr. Wood.

Some justices said his best argument, under yet a third provision of the law, was not properly before the court. Others said Mr. Wood would have been no better off had his defense worked harder.

"High Court Justices Weigh Tradition of Prosecutorial Immunity Against Potential Civil Rights Violations," is the title of Tony Mauro's report for National Law Journal.

Police who manipulate evidence have only qualified immunity, but prosecutors have long enjoyed absolute immunity, at least for their actions at trial. At issue in the Iowa case is the scope of immunity for prosecutors who are performing police-like duties before trial and then either participate or don't participate in the trial where they would acquire full immunity. County Attorney David Richter and an assistant county attorney, Joseph Hrvol, were targeted in the lawsuit, which alleges prosecutorial wrongdoing through the investigation that carried into the trial.

Several justices appeared disturbed by the facts of the case and unwilling to let prosecutors completely off the hook. But the long tradition of strong prosecutorial immunity also seemed to tug at the Court. "We're worried about the chilling effect on the prosecutors," said Chief Justice John Roberts Jr. at one point.

The former Iowa inmates had an unusual advocate making their case Wednesday: former Bush administration Solicitor General Paul Clement, who represented the Bush Justice Department in 49 previous arguments before the Court.

Now with King & Spalding, Clement agreed to represent the two pro bono to make the point that even prosecutorial immunity has its limits, and that the Iowa prosecutors' misdeeds were beyond the pale.

"The police officer that engages in this misconduct has committed a grave, grave constitutional violation and ought to be liable," Clement told the Court. "I think the prosecutor who engages in the pretrial misconduct and then doesn't participate in the trial is just as liable as that police officer, and I can't think of a single reason why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial."

Clement added that it would be "really perverse" to have a system where police acting alone could be sued for fabricating evidence, but the misdeeds would be immunized from suit if a prosecutor joins in the wrongdoing.

But Clement, along with the justices, struggled to define the point at which prosecutors doing police-like investigative work at early stages of a case are transformed into prosecutors whose actions should not be challenged.

For their part, the lawyers arguing in favor of immunity said the Court needed to hold the line on lawsuits against prosecutors, to prevent litigation by every disgruntled defendant who can poke holes in the government's case.

Jurist posts, "Supreme Court hears arguments in prosecutorial immunity, capital cases," by Jaclyn Belczyk.

In Wood v. Allen, the Court heard arguments on whether the state court erred in concluding that during the sentencing phase of a capital case the defense attorney's failure to present the defendant's impaired mental functioning did not constitute ineffective counsel and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision. The US Court of Appeals for the Eleventh Circuit reversed a district court decision that had granted the defendant Holly Wood's habeas petition. Counsel for the petitioner Wood argued, "that there was no strategic decision here, that in fact it was a failure to investigate in violation of this Court." Counsel for the respondents argued that the AEDPA was applied correctly.

Earlier coverage begins with this post.  All briefing is at the ScotusWiki pages for Pottawattamie County v. McGhee and Wood v. Allen.

Wood v. Allen at Supreme Court

The Supreme Court hears the Alabama death penalty today.  All briefing is at the ScotusWiki page for Wood v. Allen.

"Application of AEDPA to Review of State Determinations of Fact (Wood v. Allen Argument Preview)," is at SCOTUS Blog.  The preview is written by Tiffany Cartwright.

On November 4^th, the Court will hear arguments in Wood v. Allen, a capital habeas case that questions how a federal court should review the facts determined in a state criminal proceeding under the Antiterrorism and Effective Death Penalty Act (AEDPA).

Petitioner Holly Wood was convicted in Alabama of murdering his former girlfriend.  Two of Wood’s appointed attorneys were experienced criminal trial lawyers; the third was a novice with no criminal experience. The less experienced lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. By a vote of ten to two, the jury recommended a death sentence, which the trial judge imposed.

Wood’s conviction and sentence were affirmed on direct appeal.  The state courts rejected his petition for post-conviction relief, in which he alleged that his trial counsel’s failure to investigate and present evidence of his mental impairments at the penalty phase constituted ineffective assistance.  Instead, the state court held, the failure to present evidence of Wood’s mental impairments was a strategic decision made by Wood’s more experienced counsel.

Wood then filed a federal habeas petition under 28 U.S.C. § 2254, the section of AEDPA that governs petitions by state prisoners.  Section 2254 contains two subsections that relate to state court factual findings:  subsection (d)(2), which precludes relief unless the state court proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”; and subsection (e)(1), which creates a presumption that “a determination of a factual issue made by a state court” is correct unless rebutted by clear and convincing evidence.

The district court granted relief, concluding that a “finding by the state courts that a strategic decision was made not to investigate or introduce . . . evidence of mental retardation is an unreasonable determination of the facts in light of the clear and convincing evidence presented in the record.”  The court found that Wood’s less experienced lawyer was left unsupervised to investigate mitigating evidence; moreover, the failure to introduce evidence of Wood’s mental impairments stemmed from his counsel’s inexperience rather than a strategic decision.

On appeal, a divided panel of the Eleventh Circuit reversed. 

At the ACS Blog Emily Garcia Uhrig of the McGeorge School of Law posts, "SCOTUS Preview: Wood v. Allen."

Mr. Wood's challenge stems from defense counsel's failure to investigate and develop mitigation evidence for the penalty phase of his trial based on his substantial mental deficiencies. (To begin with, Mr. Wood has an IQ estimated in the 60s.) Mr. Wood was represented by three attorneys - two, experienced and one, just out of law school. Experienced counsel assumed responsibility for the guilt phase of Mr. Wood's trial and put new counsel, who had no prior criminal trial or capital case experience, in charge of the penalty phase.

Defense counsel learned from a pretrial competency evaluation that Mr. Wood functioned "in the borderline range of intellect." But despite the fact that issues pertaining to mental capacity often provide fertile ground for mitigation during the penalty phase of capital cases, counsel did not investigate further Mr. Wood's limited intellectual functioning nor introduce any evidence on the subject during the penalty phase. The jury recommended death by a 10-2 margin, the statutory minimum for such recommendation in Alabama. The judge abided by the jury's recommendation and sentenced Mr. Wood to death by electrocution.

Mr. Wood challenged his sentence in state post-conviction proceedings on the ground that he had received ineffective assistance of counsel under Strickland v. Washington during the penalty phase of his trial, in violation of the Sixth and Fourteenth Amendments. He argued that (1) defense counsel was deficient in failing to develop and introduce the mitigation evidence; and (2) there was a reasonable probability that but-for that deficiency, he would not have received a death sentence. The evidence adduced at two state evidentiary hearings on the claim strongly suggested that counsel's omission was due more to professional inexperience and poor communication among defense counsel, than a calculated, tactical decision by the defense team. (Experienced defense counsel's testimony was largely unhelpful in this regard in that, due to the passage of time, they recalled little, if any, of the actual tactical decisions made during the penalty phase.)

And:

In granting certiorari, the Supreme Court agreed to evaluate the merits of the Eleventh Circuit's ruling. But in order to do so, the Court also agreed to consider a threshold issue regarding the level of deference federal courts must give to state factual findings in resolving federal habeas petitions. This issue of statutory interpretation has vexed and divided lower federal courts since the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") rewrote the standards that govern federal habeas review. Remarkably, until now, the Court has not provided guidance on the matter.

The debate on the level of deference centers on the interaction of two sections of AEDPA, 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1). Section 2254(d)(2) provides that a federal court may grant a writ of habeas corpus where the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Section 2254(e)(1), by contrast, provides that "a determination of a factual issue made by a State court shall be presumed to be correct" by a federal court and "the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." The parties, as well as circuit courts, disagree as to how to reconcile these two provisions.

And:

The issue is a tricky one, with both parties finding support from the canons of statutory interpretation. Guidance from the Court on the issue is long overdue and, though seemingly academic, may have a significant impact on litigants such as Mr. Wood: While the state courts' factual finding that defense counsel's decision not to investigate evidence of his mental deficiencies was tactical may qualify as "unreasonable" under § 2254(d)(2), it may be a more difficult task to rebut that finding by clear and convincing evidence under § 2254(e)(1), particularly where defense counsel, themselves no longer recall their own decision-making. Thus, for Mr. Wood and others like him, the availability of habeas relief - a literal matter of life or death - may ultimately turn on the level of deference given to state court factual findings, as articulated by the relationship between these two statutory provisions.

The Wisonsin Law Journal takes up the case, with others, at, "U.S. Supreme Court scrutinizing lawyers," written by Kimberly Atkins.

The Court is not done examining how lawyers do their jobs. On Nov. 4, the justices will hear oral arguments in a case dealing with the alleged bad deeds of prosecutors. Pottawattamie County v. McGhee asks whether a prosecutor may be held civilly liable for wrongful conviction and incarceration for allegedly procuring false testimony during a criminal investigation, and then introducing that same testimony against a criminal defendant at trial.

The same day, in Wood v. Allen, the Court will consider whether a defense attorney’s failure to present evidence of the defendant’s impaired mental functioning in a capital case constituted ineffective assistance of counsel.

Decisions in all of these cases are expected this term.

Earlier coverage of the case begins with this post.

Justice Dept. to Review Bush Policy on DNA Test Waivers

That's the title of Jerry Markon's report from the Sunday Washington Post.  LINK  Here are extended excerpts:

Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.

The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes. Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty.

"It's a mean-spirited policy. Truth, ascertained by science, should trump the finality of a conviction," said Peter Neufeld, co-director of the New York-based Innocence Project. He said the waivers are effectively "gutting the impact" of the 2004 law because 97 percent of federal convictions result from guilty pleas.

Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision. Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.

Holder, a former U.S. attorney in the District, has called for expanded DNA testing in federal courts. After inquiries by The Washington Post, his spokesman, Matthew Miller, said Holder "has ordered that the department review its DNA waiver policy."

"The attorney general believes that DNA testing is a crucial law enforcement tool both in solving crimes and exonerating the innocent," Miller said, adding that if new evidence arises after conviction, "prosecutors have an obligation to act."

The waivers run counter to the national movement toward post-conviction DNA testingas the forensic tool has revolutionized criminal justice. Nearly all 50 states have passed laws giving inmates the right to seek testing in state courts, and most allow for petitions after guilty pleas.

Oregon prosecutor Joshua Marquis, who sits on the executive committee of the National District Attorneys Association, said he's never heard of DNA waivers in state court and that the organization opposes the concept. "I think it's important to always leave the door open for actual proof of innocence," he said.

In federal court, the waivers are part of the standard plea agreement filed by prosecutors in the District, Alexandria and Manhattan, which are among the nation's highest-profile U.S. attorney's offices. Waivers are used in some or all pleas by at least 16 other offices, including such large ones as Chicago and Los Angeles and such smaller ones as Arkansas and West Virginia. Prosecutors in Maryland rarely use the waivers.

And:

At least 24 U.S. attorneys don't use the waivers. It could not be determined how many inmates have been affected by the policy, because the remaining 50 U.S. attorney's offices did not respond to inquiries or declined to comment. It is also unclear how many federal prisoners have filed petitions seeking post-conviction DNA testing since 2004. Justice Department officials said the number is small but have also said they expect more petitions over time.

At the heart of the debate is the question of how often the innocent plead guilty. Michael Volkov, a former federal prosecutor who as counsel to Sen. Orrin G. Hatch (R-Utah) pushed to insert waiver language into the 2004 law, said he thinks it is "extremely rare."

But experts who have studied DNA exonerations say it is more common. "The idea that people who plead guilty are always guilty is false," said Brandon Garrett, a University of Virginia law professor. He said the waivers "send a terrible message: that federal prosecutors take a dim view of truth telling."

Arthur Lee Whitfield, for example, was convicted in 1982 of raping a woman in Norfolk and was about to go on trial in a second rape. Facing a possible life term, he pleaded guilty for a lighter sentence. He was exonerated of both crimes by DNA in 2004 after more than 22 years in prison.

"I figured I can put my life on the line and take a chance, or I can take the plea and have a shot at coming home to my family," Whitfield said in a recent interview. "You never know what you'd do until you're put in that situation."

Preview of Smith v. Spisak

Oral argument in the Ohio case is scheduled for tomorrow.  SCOTUS wiki has the file on Smith v. Spisak, containing all briefing.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal court may grant a state prisoner’s habeas petition if the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” In Smith v. Spisak, the Court will consider whether the Sixth Circuit exceeded the limitations of AEDPA when it concluded that the Ohio Supreme Court had incorrectly rejected Spisak’s jury instruction and ineffective assistance of counsel claims.

In Law.com's Legal Intelligencer, Shannon Duffy writes, "Ohio Death Penalty Case Might Determine Abu-Jamal's Fate ."

Lawyers for convicted cop-killer Mumia Abu-Jamal will be watching closely on Tuesday when the U.S. Supreme Court takes up an Ohio death penalty case because its outcome may very well decide whether Abu-Jamal's death sentence will be reinstated.

In April, Abu-Jamal lost his final appeal seeking a new trial for the December 1981 murder of Philadelphia Police Officer Daniel Faulkner when the justices refused to take up the issue of whether blacks were unfairly excluded from the jury.

But, at the time, the justices took no action on a companion petition filed by the Philadelphia district attorney's office demanding reinstatement of Abu-Jamal's death sentence despite having discussed it weeks before.

Now it appears certain that the high court has decided to hold the Philadelphia prosecutors' petition in abeyance pending the outcome of Smith v. Spisak -- an Ohio case that raises strikingly similar issues to those in Abu-Jamal's case.

If the prosecutors in that case are successful and win reinstatement of the death sentence imposed on Frank G. Spisak, the justices may then see no need to take up Abu-Jamal's case.

Instead, at that point, it's likely that the justices would simply issue a one-page order in Abu-Jamal's case that would summarily reverse the decision by the 3rd U.S. Circuit Court of Appeals and order the appellate court to reconsider whether Abu-Jamal's death sentence should be reinstated.

Why is Abu-Jamal's case so similar to Spisak's? Both were on death row for notorious murders, but both won rulings in federal court that granted them partial new trials limited to the penalty phase.

In both cases, the federal courts' decisions to overturn the death sentences hinged on Mills v. Maryland -- a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.

The Mills ruling struck down a Maryland statute that said juries in capital cases must be unanimous on any aggravating or mitigating factor. Voting 5-4, the justices declared that unanimity was properly required for any aggravating factor, but that mitigating factors -- those that weigh against imposing a death sentence -- must be handled more liberally, with each juror free to find on his or her own.

Since then, Mills has proven to be a powerful tool for defense lawyers aiming to overturn death sentences in numerous other states.

The question now before the courts is whether Mills truly requires that death sentences in other states be overturned if the juries in those states might have been confused by faulty instructions or verdict forms and led to believe that mitigating factors require unanimity.

Perhaps even more important to the justices is a corollary question of federalism: Is it fair for the federal courts to overturn a state court's decision on how to interpret Mills by imposing its own interpretation that extends Mills beyond its original scope?

It's possible that the justices will provide the answers to those questions in Spisak's case that will be immediately applied to Abu-Jamal's case -- with Abu-Jamal and his lawyers forced to simply watch and wait until that happens.

And:

In 2006, the 6th Circuit overturned Spisak's death sentence based on a Mills violation as well as findings that his lawyers were ineffective and had "demonized" Spisak during the trial.

The Supreme Court overturned the ruling and ordered the 6th Circuit to study the case again in light of two other decisions by the high court.

But the 6th Circuit in 2008 reinstated its prior decisions, finding they were correct.

Now the Supreme Court has taken the Spisak case up a second time to tackle the question of whether the 6th Circuit failed to give proper deference to the Ohio state courts "when it applied Mills v. Maryland to resolve ... questions that were not decided or addressed in Mills."

Glenn Smith on the Perry Ax

Political consultant Glenn Smith, proprietor of the Dog Canyon blog, posts, "Perry's Crime."

When Gov. Rick Perry obstructed an investigation into the execution of a man experts say was innocent, he committed a crime against all Texans. State executions are carried out in our names, collectively and individually. Subverting the truth in such a matter is a betrayal of the public trust that is difficult to describe or comprehend.

But Perry may have also committed a crime against the U.S., and I’m not talking about his secession threats. He may have violated federal law,  U.S.C. 18.1001. This is no trivial matter. An innocent man was executed. Federal laws and guidelines are in place to keep that from happening. Perry may well have violated those laws and guidelines, for which there are criminal penalties.

Last night, CNN commentator, Texas hero and political strategist Paul Begala wrote us at DogCanyon with the following observation about our post earlier yesterday:

Glenn, thanks for this important post. The eyes of the world are upon Texas, which has almost certainly executed an innocent man. Bully for you for tying this outrage to Perry’s anti-government rants with the teabaggers.

Let’s see if I get this straight: Perry and the teabaggers don’t trust the government to write an insurance policy, but they do trust the government to lock a man in a cage for years, to strap that man down on a gurney, and fill his veins with poison – in the case of poor Mr. Willingham, for a crime he did not commit. I know a lot of principled conservatives who oppose the death penalty, based on their distrust of government. Perry, of course, is neither truly principled nor truly conservative. He is a small man, a moral coward, and a political opportunist of the worst sort. Thank you for calling this to my attention.

There oughta be a law against hypocrisy such as Perry’s. It turns out there might be. Follow us on the jump for details on the statutes and guidelines Perry may have violated.

By all means, follow the link to read all of Glenn's post.  In addition to being an astute and highly experienced political consultant, Glenn is a former journalist with lots of Texas Capitol credentials.

Earlier coverage begins here.

Texas Put in Uncomfortable Spotlight

That's the title of Ted Oberg's report on a U.S. Senate hearing for KTRK-TV, the ABC affiliate in Houston.  LINK

On Wednesday in Washington, senators took a tough look at Texas justice. They are concerned bad science is getting into America's courtrooms. And they used two Texas examples to make their point.

More than a third of all U.S. capital punishments are handed down in Texas. So the possibility that an innocent man was killed here is getting nationwide attention. Some here in Texas say we can't solve the problem on our own.

"An innocent man may've been executed for a crime he did not commit," pointed out Senators Patrick Leahy (D) of Vermont.

An 18-year-old north Texas arson case and the Houston Police Department's crime lab issues put the Lone Star State in an uncomfortably lonely spotlight. Senators are asking if they need to get more involved to guarantee junk science doesn't come into the courtroom.

And:

"We need to make sure that we make it plain that we understand that mistakes and errors were made and we are taking the appropriate steps," said Houston Police Department Chief Harold Hurtt.

In Houston, lawyers are still reviewing convictions based on potentially flawed science from Houston's crime lab. It's too late to change the case of Cameron Willingham, a Corsicana father executed in 2004 for reportedly setting a fire that killed his three children in 1991.

Today, five years later, a scientist hired by the state of Texas says an arson claim could not be supported.

"This may the one. This may be the case where it can clearly be documented that an innocent person had been executed," said Senator Rodney Ellis (D) of Houston.

And:

"It is very difficult for Texas to police itself on the death penalty," said Senator Ellis.

That leads us to Washington for Wednesday's hearing.

"I found the article extremely disturbing and the findings of the National Academy's report terrifying," said Senator Al Franken (D) of Minnesota.

Peter Neufeld told Senator Franken a death penalty moratorium is in order nationwide. Chief Hurtt told senators national science standards may be enough to guarantee past mistakes won't be made again.

"We need the ability to increase capacity to train all the scientists in the state as well as develop a facility so that we can have the capacity to do more as far as DNA," said Chief Hurtt.

More on the hearing, "Strengthening Forensic Science in the United States," is at the U.S. Senate Judiciary Committee website.  You can watch the webcast of the hearing and read testimony submitted by the witnesses.

Dr. Eric Buel
Laboratory Director - Vermont Forensic Laboratory
State of Vermont Department of Public Safety; Waterbury, VT

Peter Neufeld
Co-Director - The Innocence Project
New York, NY

Harold Hurtt
Chief of Police - Houston Police Department
Houston, TX

Paul Giannelli
Professor - Case Western Reserve University
Cleveland, OH

Barry Matson
Deputy Director - Alabama District Attorneys Association
Chief Prosecutor - Alabama Computer Forensics Laboratories
Montgomery, AL

Matthew F. Redle
County and Prosecuting Attorney - Sheridan County
Sheridan, WY

Senators Patrick Leahy, the Committee Chairman, Russ Feingold, and Al Franken made statements at the hearing.  Here's an excerpt from Senator Leahy's statement:

In March, this Committee began our examination of the serious problems in forensic science that can go to the heart of our criminal justice system. Today, we hear from representatives of the professional communities that must work together to help solve these problems.

Much important work is done through forensics, and those with us today should be proud of their good work. Scientific advancements can help prove guilt and can also exonerate the innocent. We need to do all we can to ensure that forensic science rises to the highest scientific standards and has the maximum possible reliability.

Unfortunately, since the report and testimony from the National Academy of Sciences earlier this year, we have heard even more about the severity of the problems before us. The current issue of The New Yorker includes an article that presents strong evidence that in 2004 the unthinkable may have happened: An innocent man may have been executed for a crime he did not commit, based in large part on forensic testimony and evidence.

Soon this Committee will turn to reauthorizing and strengthening the Innocence Protection Act, which provides important tools to prevent that kind of tragedy. The key point for today's hearing is that the prosecution of Todd Willingham discussed in that New Yorker article rested largely on forensic evidence, in that case burn analysis, that may not have had any scientific basis. Our criminal justice system, particularly in the most serious cases, must rest on facts.

Also this summer, the Supreme Court held in the case of Melendez-Diaz vs. Massachusetts that forensic examiners must present evidence in court and be subject to cross examination, rather than simply submitting reports of their findings. This Supreme Court holding stems from a recognition that forensic findings may not always be as reliable as we would hope, or they might appear.

An excerpt from Senator Feingold's remarks:

Just recently, there have been extremely disturbing reports that faulty forensic evidence may have led to a conviction in a Texas capital case – one in which the defendant has already been executed. Cameron Todd Willingham was executed in Texas in 2004 after he was convicted of arson murder in 1992. In the years since his execution, multiple reports have concluded that the forensic science used to convict Willingham was erroneous. Indeed, there are serious questions about whether the fire was caused by arson in the first place. In a recent report to the Texas Forensic Science Commission critiquing the Willingham investigation, arson expert Craig Beyler concluded that "a finding of arson could not be sustained" using current professional standards or the professional standards in place at the time of the investigation. Willingham proclaimed his innocence until the day he was executed.

Mr. Chairman, one wrongful conviction is tragic. Hundreds of wrongful convictions are unacceptable. If a wrongful conviction leads to an innocent person being executed, it is a disgrace to our system of justice.

Earlier coverage of Todd Willingham begins here.  All posts are in the Todd Willingham category index.  Coverage of congressional hearings can be found in the federal legislation index.

Constitutional Question

That's the title of an OpEd in today's Washington Times by Bob Barr, the former Georgia congressman.  LINK

Strange as it might seem, the Supreme Court of the United States has never directly and explicitly held that it is unconstitutional for a state to execute a person about whom substantial evidence of innocence has been presented.

However, in a rare exercise of the high court's power to directly order a lower federal court to consider evidence of actual innocence concerning a man already found sentenced to death, at least three justices have declared a willingness to hold that "actual innocence" is constitutionally based.

The historic ruling came in the case of Anthony Troy Davis, who was convicted 20 years ago of the late-night shooting death of Savannah, Ga., police officer Mark MacPhail. Davis' conviction was based not on direct physical evidence or DNA test results, but entirely on so-called eye-witness accounts.

The conviction was subsequently upheld on appeals. However, the fact that seven of nine of those eyewitnesses have recanted their testimony, coupled with the fact that none of the state or federal courts have yet heard directly from any of those witnesses, presented to the Supreme Court a strong argument that Davis should at least be allowed to make such a case.

And:

The Aug. 17 ruling cemented Justice Antonin Scalia's reputation as the high court curmudgeon. In his scathing dissent, Justice Scalia said that a close reading of a federal law -- the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) -- precluded a federal court from even considering a petition from a state death sentence including evidence of "actual innocence."

Sarcastically labeling the action ordered by the majority justices a "fool's errand," Justice Scalia concluded there is simply no way the evidence of innocence Davis would present would sway a court, and that even if it did, the federal district court would be powerless to do anything about it based on his reading of AEDPA.

Specifically, Justice Scalia said that AEDPA barred a habeas corpus writ regarding any state court claim unless based on "... a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." Justice Scalia surmised that, since the Supreme Court "has never held that the Constitution forbids the execution of a convicted defendant who ... is later able to convince a habeas court that he is 'actually' innocent ... ," Davis is simply out of luck.

And:

If the lower court conducts the hearing as directed by our nation's top court and still concludes Davis was the shooter, so be it. Not having been there, I am not in a position to judge.

However, I was a member of the U.S. House of Representatives Judiciary Committee in 1996 when we debated and voted on AEDPA. I can state unequivocally that this legislation was not intended to preclude a claim of actual innocence based on post-sentence evidence from being considered in a habeas petition. Employing such a pinched and erroneous reading of the law to deny a condemned man the opportunity to present substantial evidence of innocence would constitute a major travesty of justice in America.

Earlier coverage of the Troy Davis case begins with this post.  An earlier OpEd by Barr on the Davis case is noted here.

Judges’ Dissents for Death Row Inmates Are Rising

That's the title of John Schwartz' front page report in today's New York Times.  LINK  Here's an extended excerpt:

It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.

“The State of California may be about to execute an innocent man,” it began.

The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

The dissents rarely have any practical effect in changing the outcome of the cases they address. But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics.

“You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.

Judge Barkett, whom President Bill Clinton appointed, declined to discuss individual cases but agreed that a dissent tried to persuade many audiences — the first, in her case, being the other judges of her court, who circulate dissents among themselves as they are coming to a decision.

A Deadly Amendment to the Hate-Crimes Bill

That's the title of an editorial in today's Los Angeles Times.  The subtitle is, "The GOP added a death penalty clause to the Matthew Shepard Act in hopes that a debate over capital punishment would derail the legislation."

The Senate has joined the House in expanding the definition of "hate crimes" to include attacks on gays and lesbians. In doing so, however, it attached an amendment that would make some hate crimes punishable by death. Democratic congressional leaders should insist that the provision be removed.

Also known as the Matthew Shepard Act, the legislation empowers the Justice Department to assist states and localities with the investigation and prosecution of crimes motivated by the victim's sexual orientation or gender identity, just as it currently does with crimes motivated by racial bias. In April, the House approved the bill as a stand-alone measure. The Senate version is part of a defense authorization bill.

The bill also establishes federal penalties for some hate crimes, which provided an opening for an amendment by Sen. Jeff Sessions (R-Ala.) to allow death sentences for certain hate crimes that end in the death of the victim, whether the death is intentional or not. Republican strategists apparently see this as a kind of poison pill -- they're hoping that when a conference committee meets to reconcile the House and Senate defense bills, it will discard the Shepard Act rather than be sidetracked by a debate over capital punishment; if that happened, the measure would have to be approved all over again by the Senate as a separate bill. A better outcome would be for the committee to simply strip Sessions' amendment from the act.

Conservatives oppose the Shepard Act on two grounds: that it's unnecessary and a violation of the rights to freedom of speech and religion. They're wrong on both counts. FBI statistics demonstrate that violent acts based on sexual orientation are a significant problem, accounting for 16.6% of single-bias hate-crime incidents in 2007.

Earlier coverage of the amendment is here.

Attorney General Eric Holder Addresses ABA Annual Meeting

The transcript of Holder's prepared speech is here.

"Holder: Jail is not only crime solution," is the Chicago Tribune report written by Kristen Schorsch.

U.S. Attorney General Eric Holder, addressing the American Bar Association on Monday, called for getting not only tough but also "smart" on crime, saying that jail is not the entire answer when it comes to law enforcement.

Noting that one of every 100 adults across the country is behind bars -- "the highest incarceration rate in the world" -- Holder said that putting people in prison costs too much economically and socially in a nation where car dealerships are closing, teachers are getting laid off and after-school programs are being cut.

"But in almost all cases, spending on prisons continues to rise," Holder said during a roughly 20-minute speech at the association's annual meeting in Chicago. "This is unsustainable economically."

Holder called for new strategies and tools to fight crime, such as studying what happens to inmates once they leave prison and developing programs based more on their failure or success.

And:

Holder also wants to identify and tailor programs for children who are most at risk for committing crimes later in life. Also on the table, Holder said, are addressing a lack of resources for public defenders -- a line that drew applause from the assembled lawyers -- and reviewing federal sentencing and corrections policy.

The ABA Journal has posted, "AG Holder Calls for Getting ‘Smart on Crime’," written by Edward A. Adams.

“We must be tough on crime, but we must also commit ourselves to being smart on crime,” he said.

Since 2003, spending on incarceration has continued to grow, while crime rates have stopped declining, he said. Now, one of every 100 adult Americans is incarcerated— the highest incarceration rate in the world, he said.

As evidence of how DOJ will implement a data-driven approach, he noted that federal prisoners who go through a drug treatment program are 16 percent less likely to be arrested and returned to prison. Those who work in prison industries are 24 percent less likely to commit a crime again. Those who go through prison education programs are 16 percent less likely to be arrested again, he said.

Most crimes are committed by people who have already committed crime, he noted. More than 65 percent of former state prisoners and 40 percent of former federal prisoners are rearrested within three years of their release, he said.

“Even a modest reduction in recidivism would prevent thousands of crimes,” Holder said.

"Holder draws applause calling for indigent defense, DNA testing," is at the National Law Journal's coverage of the ABA Annual Meeting.

With respect to the lack of resources for public defender programs, Holder said that those programs receive only 3 percent of criminal budget spending in the nation’s biggest counties. “This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel,” he said. “When defendants fail to receive competent legal representation, their cases are vulnerable to costly and time-consuming mistakes.”

Holder described the Justice Department as committed to using the best available technology, including forensic science, whenever possible. Defendants should have access to DNA evidence in a variety of situations, he said.

In a reference to the U.S. Supreme Court's June 18 decision in District Attorney's Office v. Osborne, which found no constitutional right to post-conviction access to DNA evidence, Holder said, “Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue regardless of what the Supreme Court has said.”

Here's a brief excerpt from Holder's speech:

I have also called upon the Department to focus on another part of the criminal justice system: the very difficult issue of indigent defense. Putting politics aside, we must address the fact that there is a crisis within our nation’s system of indigent defense. Resources for public defender programs lag far behind other justice system programs, constituting only about 3% of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers receive compensation that does not even cover their overhead. Defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. And we often hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.

This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel. When defendants fail to receive competent legal representation, their cases are vulnerable to costly, and time-consuming, mistakes. Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors. When that happens, no one wins. Addressing the American Council of Chief Defenders in June, I committed to several steps to help improve the indigent defense system, including hosting a national conference with the goal of developing a set of best practices and practical solutions.

I have also made it clear that this Department of Justice will use the available data to improve our handling of the forensics sciences – such as fingerprints, trace evidence, and firearms matching. We are studying a recent report from the National Academies of Science that diagnosed problems in the use of forensics sciences and suggested ways forward, and we are working with our partners in the Executive Branch and Congress to act on the report’s insights and recommendations. Our goal is to ensure that forensic science is practiced at the highest level possible, and always in the pursuit of truth. Because we put a premium on truth-seeking and because this Administration is committed to using the best science possible whenever possible, including in criminal justice, I also believe that defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue regardless of what the Supreme Court has said.

An earlier speech by Holder is noted in this post.

From Michele Deitch

Michele is the lead author of From Time Out to Hard Time: Young Children in the Adult Criminal Justice System.  

The report provides the first-ever comprehensive look at how the nation treats pre-adolescent children (primarily those age 12 and under) who commit serious crimes. The report analyzes the available data with regard to the transfer of young children to adult criminal court, documents the extremely harsh and tragic consequences that follow when young children go into the adult criminal justice system, profiles practices in states with particularly severe outcomes for these young children, looks at international practices, and offers policy recommendations.

The report, which I co-authored with three of my students, finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes.  In 22 states, plus the District of Columbia, children as young as 7 can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences, and placement in adult prisons.

This issue, of course, has gained national attention recently with the cases of the 8-year old in Arizona and the 11-year old in Pennsylvania, both charged with murder, and in the case of Christopher Pittman, who was unsuccessful in his efforts last year to get the United States Supreme Court to hear his challenge to his mandatory sentence of 30-years without possibility of parole for the killing of his grandparents when he was 12 years old.

The report shows that the practice of trying young children in adult court contradicts the consensus of the most up-to-date scientific research, and details the many ways in which the adult criminal justice system is a poor and dangerous fit for these young children.

Other key findings include:

·      Every year, nearly 80 children age 13 and younger are judicially transferred to adult court. Between 1985 and 2004, 703 children age 12 and under, and 961 children age 13 were judicially transferred to adult court. The total number of young children in adult criminal court actually is much higher than this, as the data does not include the number of children sent to the adult system through automatic transfer laws or laws allowing prosecutors to file cases directly in adult court. 

·      Many of these young children are being treated as adults for relatively minor offenses. There are almost as many youth treated as adults for property crimes as for crimes against persons. Determinations about when and whether a young child will be treated as an adult are marked by extreme arbitrariness, unpredictability and racial disparities.

·      Four states—Florida, Michigan, Pennsylvania, and South Carolina—stand out as providing the worst possible outcomes for pre-adolescent offenders, given the combination of transfer policies and adult sentencing laws and practices in those states.

·      On a single day in 2008, 7,703 children under age 18 were held in adult local jails and 3,650 in adult state prisons. In these adult facilities, the youth face vastly higher risks of physical and sexual assault and suicide than they would face in juvenile facilities. The youngest children are at particular risk.

·      The United States is severely out of step with international law and practice. Most countries—including those Western nations most similar to the United States, countries in the developing world, Islamic nations, and even countries often considered to be human rights violators—repudiate the practice of trying young children as adults and giving them long sentences.

The report calls on national and state policymakers to keep young children in the juvenile justice system, to disallow mandatory sentencing of young children in adult court, and to always provide parole opportunities for young children transferred to adult court.  We also urge that young children in the adult criminal justice system be housed in juvenile facilities, both while awaiting trial and after conviction.

Today's New York Times editorial, praising the report, is noted here.

12 and in Prison

That's the title of today's New York Times lead editorial.  LINK

The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty. Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.

The states have followed this logic in death penalty cases. But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.

Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year. To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system. These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.

The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.

This is terrible public policy. Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system.

And:

The study’s authors rightly call on lawmakers to enact laws that discourage harsh sentencing for preadolescent children and that enable them to be transferred back into the juvenile system. Beyond that, Congress should amend the juvenile justice act to require the states to simply end these inhumane practices to be eligible for federal juvenile justice funds.

Congratulations to UT's Michele Deitch for this recognition of her outstanding work.  Related articles are in the juvenile index.

Senate Adds Death Penalty Amendment to Kill Hate Crimes Legislation

That's the title of a Monday afternoon post at CivilRights.org, the home of the Leadership Conference on Civil Rights, written by Tyler Lewis.  LINK

On Friday, the Senate passed the Matthew Shepard Hate Crimes Prevention Act as an amendment to the fiscal year 2010 Department of Defense authorization bill.  But today, the Senate passed an amendment to the Act, offered by Sen. Jeff Sessions, R. Ala., that would allow the death penalty to be applied in hate crimes cases under some circumstances. 

LCCR and other civil and human rights groups that are supporting the Act do not support the Sessions amendment.  In a letter to the Senate, the groups said: "We strongly oppose this amendment...The death penalty is irreversible and highly controversial – with significant doubts about its deterrent effect and clear evidence of disproportionate application against poor people. Moreover, there are serious, well-documented concerns about unequal and racially biased application of the death penalty."

The Sessions amendment can still be removed from the bill by a House-Senate conference committee that will meet in September to reconcile the two versions of the legislation. The full House and Senate will vote on the final version of the bill before it is sent to President Obama.

The Matthew Shepard Hate Crimes Prevention Act will authorize the Department of Justice to investigate and prosecute certain bias-motivated crimes based on the victim's actual or perceived sexual orientation, gender, gender identity, or disability.  Currently, the federal government can only investigate hate crimes motivated by the victim's race, color, religion, and national origin in limited cases.

You can read the letter, which was signed by 46 national organizations.  Here's an excerpt from the beginning:

On behalf of the civil rights, religious, professional, civic, and educational groups below, we write to urge you to oppose two unnecessary and harmful amendments offered by Senator Sessions to S. 1390, the FY 2010 Department of Defense Authorization bill.

As strong supporters of S. 909, the Matthew Shepard Hate Crimes Prevention Act (HCPA), we supported the addition of this legislation as an amendment to S. 1390 last week. At a time when Congress is poised to advance civil rights protection by promoting new Federal-state partnerships and providing new tools to address bias-motivated violence, the proposed amendments by Senator Sessions (a staunch opponent of the HCPA) would be a disturbing step backward – and raise the prospects of unequal, politically-motivated, shifting standards of justice in applying the new hate crime law in the future.

One amendment offered by Senator Sessions, S.Amdt. 1615, would add the death penalty to the provisions of the HCPA. We strongly oppose this amendment.

The Hill reports, "Hate crimes amendments pass easily."  It's written by J. Taylor Rushing.

The Senate on Monday passed four amendments to the Defense Department authorization bill that limit the extension of federal hate crimes laws.

One amendment requires that hate crimes be identified and prosecuted based on “neutral and objective criteria.”

Another boosts penalties for attacks on U.S. military service members and their families, while a third authorizes the death penalty for certain crimes that result in death.

All three amendments were backed by Republicans, most of whom voted against the extension of hate crime protections last week.

The chamber also passed one Democratic amendment, a compromise proposal by Judiciary Committee Chairman Patrick Leahy (D-Vt.), that would limit hate crime prosecutions until a state’s attorney general has established standards for applying the death penalty.

Three of the four amendments were unanimously passed; the measure regarding attacks against U.S. military service members passed by a vote of 92-0.

None of the changes significantly affect the chamber’s action last week in passing by voice vote an amendment by Leahy that expands the federal definition of hate crimes to include crimes targeting victims because of their sexual orientation, gender or disabilities.

Republicans continued to grumble about that vote on Monday, with Judiciary Committee ranking member Jeff Sessions of Alabama, a former federal prosecutor, giving a lengthy, 50-minute floor speech denouncing the idea of enhancing hate crimes prosecutions.

"Senate takes up concealed weapons measure," is Jim Abram's AP report, via  Google News.

The Senate on Monday also approved remaining amendments to the hate crimes bill, including one describing when perpetrators of hate crimes will be subject to the death penalty and another creating a new federal crime for targeted attacks on members of the military or their families.

On Thursday the Senate adopted the body of the hate crimes measure by voice after voting 63-28 to overcome a GOP-led filibuster. The bill, promoted for more than a decade by ailing Sen. Edward Kennedy, D-Mass., expands those categories covered by hate crimes and makes it easier for federal authorities to aid state and local prosecutions or take over cases when the local authorities can't or are unwilling to pursue them.

Current law, dating back to 1968, covers crimes motivated by race, color, national origin or religion.

Editorials on Prison Cell Phone Blocking

Today's Longivew News-Journal carries the editorial, "Cell phone, cell mates: Bill would allow prisons to jam illegal use."

State officials are pushing Congress for the right to use jamming equipment in prisons to stop prisoners from using smuggled cell phones. While we appreciate the concerns of the cell phone industry that such jamming equipment could adversely affect legitimate customers, certainly there's a solution here.

In a number of well-publicized incidents, prisoners have been caught directing criminal activity outside the prison by using cell phones. Ideally, prison officials could stop phones from being smuggled inside. The reality is that no system is perfect. Family members and crooked guards are the most common ways phones end up in inmates' hands.

In the fall, state Sen. John Whitmire, D-Houston, was the target of a two-week harassment campaign by a death-row inmate using a contraband cell phone.

In 2008, California confiscated more than 2,800 cell phones. Other states recorded similar numbers, such as 2,000 snatched from Mississippi cells and 1,600 from federal prisons, according to a Dallas Morning News story. The phones aren't simply being used to call Mom or a girlfriend. They are being used to run gangs from inside prison, to operate drug rings and to direct all manner of criminal activities.

Right now, it's against federal law to electronically disrupt phone calls. Sen. Kay Bailey Hutchison, R-Texas, and Sen. Barbara Mikulski, D-Md., are trying to change the law so prisons could set up jamming equipment.

We believe this legislation is needed.

Florida's Lakeland Ledger carried the editorial, "Cell Phones in Prison: Jamming the Jails," in Thursday's paper.

For years, inmates have been getting banned cell phones into prison, either smuggled or thrown over the wall. Some inmates then use the phones to organize and execute more crimes.

The simplest answer is to jam cell phone reception and transmission in jails. Plenty of states would like to do just that in some or all of their correctional facilities, but they face a problem: The Federal Communications Commission won't let them.

The FCC says only federal agencies can block cell phone signals, not state or local authorities. This week, correctional officials from 29 states petitioned the FCC to revise a 1934 law that bans interference with radio signals, including cell phones.

Twenty-six states were on the original petition; Ohio, Oregon and Texas joined in after the petition was filed. Sadly, the name of Walter McNeil, head of the Florida Department of Corrections, isn't among the petitioners.

Yet Florida has the problem as well. Just more than two weeks ago, a correctional officer at the Everglades Correctional Institution was arrested for drug trafficking, conspiracy to introduce drugs into a correctional facility and bribery after allegedly agreeing to smuggle two cell phones, one pound of marijuana and 4 ounces of cocaine into the facility.

During the past fiscal year, the Florida DOC confiscated 336 cell phones from Florida's prison population. Penalties for smuggling cell phone into Florida prisons were increased last year to a third-degree felony and up to five years in jail. Last year, Florida prison officials put the state's first cell-phone sniffing dog to work.

California, with the nation's largest prison system, confiscated more than 2,800 cell phones last year, reported Time magazine - double the number from 2007.

And:

State prisons, whether by interpretation of current laws or passage of new ones, should be able to jam cell phone transmissions - and Florida's correctional officials should join the other 29 states in petitioning the FCC for the authority.

News coverage begins with this earlier post.

State Officials Urge Federal Legislation to Block Cell Phone Signals From Prison

Last year, contraband cell phones turned up on Texas death row, with one inmate repeatedly calling a state senator and a journalist.  The problem is not limited to Texas, however, and earlier this week, officials from a number of states called for federal legislation.

Let's begin with "Texas seeks OK to jam cell phones," written by Amy D'Onofrio for the Thursday Houston Chronicle.

Texas officials urged Congress on Wednesday to permit states to electronically jam cell phone calls made by prisoners.

State Sen. John Whitmire, D-Houston, and Inspector General John Moriarty of the Texas Department of Criminal Justice, told lawmakers about a death row inmate who used a cell phone he bought for $2,100 from a prison guard to make threats against Whitmire last October.

Whitmire said electronic jamming was one of the most valuable tools in preventing attacks cell phone attacks by inmates.

Sen. Kay Bailey Hutchison, R-Dallas, is sponsoring legislation to allow correctional facilities to individually petition the Federal Communications Commission for permission to use wireless jamming devices.

“When a single call can result in someone's death, we have an obligation to exhaust every technology at our disposal,” Hutchison said at the Senate Commerce Committee's hearing.

While 28 states want the ability to jam cell phone signals, representatives of the communications industry testified that jamming would not be the best solution to prevent cell phone use by criminals.

Steve Largent, president and CEO of CTIA-The Wireless Association, said jamming is not as effective as other methods in preventing inmate cell phone use.

“The problem with jamming as a technique, in my opinion: It's crude, it's unreliable, and there are better ways to do it so that it doesn't interfere with public safety,” Largent said.

He said other solutions to the problem included cell detection to monitor and track cell phones in facilities, as well as “managed access,” a way to restrict wireless communication to only certain cell users.

And:

Whitmire said Texas has tried every alternative.

“We're still experiencing phones being intercepted and used in our prisons ... short of jamming and a complete shutting down of those phone signals, I don't think you can remedy the problem,” Whitmire said.

Moriarty said Texas was the first state to make it a felony to provide a cell phone to a prison inmate.

At the Dallas Morning News Crime blog, Diane Jennings has, "TDCJ official says foreign death penalty opponents funding cell phone smuggling."

When John Moriarty, inspector general for the Texas Department of Criminal Justice testified before Congress yesterday in support of legislation to permit cell phone signal jamming around prisons, he offered some insights into the problem of phone smuggling to prison inmates.

Moriarty told legislators phones are usually carried into the facility by corrupt employees or contractors; dropped in a location to be smuggled in by inmates or concealed in packages shipped into the facility.

And:

The cost to have a cell phone smuggled inside a prison ranges between $400 and $2,000, he said. Perhaps most startling was his comment that his office has "developed evidence that money from foreign nationals involved in the anti-death penalty movement was utilized to facilitate some of these organized smuggling operations."

"Officials ask help controlling prison cell phones," is Brian Witte's report for AP, via Google News.

State officials appealed to members of Congress on Wednesday to give states a new tool to control illegal cell phone use by prison inmates and quickly ran into protests from the phone industry.

Industry representatives say jamming signals could interfere with legitimate service and 911 calls.

Prisons around the nation are grappling with rising problems from prison inmates using cell phones to coordinate criminal activity. Officials are backing legislation to change the law to allow states to use cell phone jamming technology to render cell phones useless in prison.

And:

The dangerous and far-reaching aspects of prisoner cell phone use were illustrated in Maryland two years ago, when a Baltimore drug dealer used a cell phone to plan the killing of a witness from the city jail. In May, Patrick A. Byers Jr. was convicted of murdering Carl S. Lackl Jr., who had identified Byers as the gunman in a previous killing.

Gary Maynard, secretary of the Maryland Department of Public Safety and Correctional Services, emphasized that the problem is a national issue, noting that California prison officials collected more than 2,800 cell phones last year — two times the amount found the previous year.

"We need to fight technology with technology," Maynard said.

Maryland has made a request to the National Telecommunications and Information Administration for a 30-minute demonstration at a Maryland prison that houses federal inmates to inform Congress about available technology to combat illicit cell phone use.

The agency shares responsibility for managing the nation's communications network with the Federal Communications Commission.

Last week, South Carolina's prison chief said corrections directors in 26 states signed on to a petition he sent to the FCC asking federal regulators' permission to jam cell phone signals inside state penitentiaries.

Lawrence E. Strickling, assistant secretary for communications and information at the Commerce Department, cited the South Carolina filing in a response to Maryland Gov. Martin O'Malley's request to the NTIA. Strickling wrote that he has reached out to the FCC "so that the two agencies can develop a coordinated approach with respect to the jamming issue generally and your specific proposal in the state of Maryland."

The FCC has authority over non-governmental radio communications, while the NTIA has authority over federal uses of the radio spectrum.

Under current law, the FCC can only allow federal agencies — not state or local authorities — permission to jam cell phone signals. The FCC has denied two recent requests from the District of Columbia and Louisiana for test jamming sessions.

Information Week reports, "Senate Seeks FCC Approval To Jam Prison Cell Phones," W. David Gardner

With strong bipartisan support to permit the jamming of cell phone signals in prisons, the issue will head to the Federal Communications Commission, which has had longtime jurisdiction over wireless jamming and interference measures.

The debate has received widespread attention this week in hearings conducted by the U.S. Senate Commerce Committee. The Safe Prisons Communications Act, co-sponsored by Senator Kay Bailey Hutchison (R-Texas) and Senator Barbara A. Mikulski (D-Md.), calls for the FCC to give correctional facilities a waiver to operate cell phone signal jamming devices at their prisons.

From Ohio, the Columbus Dispatch has, "Prison cells take on a new meaning," by Alan Johnson. "Md. Officials Push for Prison Cell Phone Jamming," is from the Washington Post.  In Nevada, the Reno Gazette-Journal carries, "Nevada joins in bid to control prison cell phones."

Senators Kay Bailey Hutchison, Amy Klobuchar of Minnesota, and Barbara Mikulski of Maryland have all issued news releases.

Related coverage begins here; Texas coverage, here.

AG Eric Holder Speaks at Vera Institute

The Department of Justice has released the Attorney General's prepared comments.  LINK  Here's an excerpt from this must-read:

The Vera Institute of Justice has been an extraordinary partner to government in the administration of justice. I thank you in particular for your work with the federal government across a range of issues – from your contributions to the national commission to eliminate prison rape to the administration of Legal Orientation Programs for non-citizens in immigration proceedings. Your practical, rational, data-driven, results-oriented approach can best be described as post-partisan. In the five months that I have served as Attorney General, I have tried to take that same approach, and that is what I would like to talk about this evening: how we can move past politics and ideology in order to get smart on crime.

Getting smart on crime requires talking honestly about which policies have worked and which have not, without fear of being labeled as too hard or, more likely, as too soft on crime. Getting smart on crime means moving beyond useless labels and instead embracing science and data, and relying on them to shape policy. And it means thinking about crime in context – not just reacting to the criminal act, but developing the government’s ability to enhance public safety before the crime is committed and after the former offender is returned to society.

It is imperative that we get smart on crime now, for much has changed since some of our basic, governing assumptions about criminal law enforcement were developed. In the middle years of the twentieth century, America went through an historic increase in crime and illegal drug use. In the 1960s and 70s, the overall crime rate increased more than five-fold. Violent crime nearly quadrupled. The murder rate doubled. And heroin, cocaine and other illegal drug use surged.

Many lawmakers in the 1980s responded by declaring, in rhetoric and in legislation, that we needed to get tough on crime. States passed truth-in-sentencing and three strikes and you’re out laws. Some state parole boards became more cautious, while other states eliminated discretionary parole altogether. The federal government adopted severe mandatory minimum sentencing laws, eliminated parole, and developed the federal sentencing guidelines.

The federal government and states spent billions of dollars in new prison construction. The result was dramatic: the number of inmates in American prisons has increased seven-fold since 1970. Today, one out of every 100 adults in America is incarcerated – the highest incarceration rate in the world.

Few would dispute that public safety requires incarceration, and that imprisonment is at least partially responsible for the dramatic drop in crime rates nationwide in recent decades. By 2007, the nation’s violent crime rate had dropped by almost 40% from its peak in 1991. But just as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.

To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.

So what can we do to lower the crime rate further, to make American communities safer, to get smarter on crime? We need new tools – and one way to develop new tools is to look several steps past getting people into prison, and to consider what happens to people after they leave prison and reenter society.

And:

I have also called upon the Department to focus on another part of the criminal justice system: the very difficult issue of indigent defense. Putting politics aside, we must address the fact that, simply put, there is a crisis in indigent defense in this country. Resources for public defender programs lag far behind other justice system programs, constituting only about 3 percent of all criminal justice expenditures in our nation’s largest counties. In many cases, contract attorneys and assigned lawyers receive compensation that does not even cover their overhead. We know that defenders in many jurisdictions carry huge caseloads that make it difficult for them to fulfill their legal and ethical responsibilities to their clients. We hear of lawyers who cannot interview their clients properly, file appropriate motions, conduct fact investigations, or do many of the other things an attorney should be able to do as a matter of course.

This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel. When defendants fail to receive competent legal representation, their cases are vulnerable to costly mistakes that can take a long time to correct. Lawyers on both sides can spend years dealing with appeals arising from technical infractions and procedural errors. When that happens, no one wins. Addressing the American Council of Chief Defenders last month, I committed to several steps to help improve the indigent defense system, including hosting a national conference with the goal of developing a set of best practices and practical solutions.

I have also made it clear that this Department of Justice will use the available data to improve our handling of the forensics sciences – such as fingerprints, trace evidence, firearms matching. We are studying a recent report from the National Academies of Science that diagnosed problems in the use of forensics sciences and suggested ways forward, and we are working with our partners in the Executive Branch and Congress to act on the report’s insights and recommendations. Our goal is to ensure that forensic science is practiced at the highest level possible, and always in the pursuit of truth. Because we put a premium on truth-seeking – because, indeed, this Administration is committed to using the best science possible whenever possible, including in criminal justice – I also believe that defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue.

An earlier speech by Holder is noted here.

Kent Impeached

"U.S. House impeaches Kent," is Stewart Powell's report for the Houston Chronicle.

The House today impeached imprisoned U.S. District Court Judge Samuel B. Kent and sent his case to the Senate for trial.

The Senate is expected to quickly convene a trial – possibly within a matter of weeks – to cut off the judge’s $174,000 annual federal salary.

The House overwhelmingly adopted four articles of impeachment against the 59-year-old jurist on rapid-fire roll call votes over the course of 30 minutes.

The vote on the first article of impeachment was 389-0. Not a single member of the House spoke on Kent’s behalf.

The charges accused Kent of abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department.

Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee that urged impeachment, called Kent’s conduct “shocking and shameful.”

Rep. Sheila Jackson Lee, D-Houston, a member of the task force that investigated the case, said women across America deserve a “safe and secure workplace.”

Jackson Lee added: “We must act. We have no ability to ignore it.”

Rep. Louis Gohmert, R-Tyler, decried “the games that were played” by Kent as he tried to retain his post and the salary that goes with it even though he is in prison.

The House acted barely two weeks after a House Judiciary Committee task force heard graphic testimony about sexual attacks from case manager Cathy McBroom, 50, and legal secretary Donna Wilkerson, 45.

Kent’s refusal to immediately resign his post and relinquish his salary forced the House to take action.

The House has last impeached a federal judge in 1989. A total of 13 judges have faced impeachment proceedings in the House since 1803, seven of whom were subsequently convicted by the Senate and removed from the bench.

Kent entered a federal prison medical facility in Ayer, Mass., on Monday to begin a 33-month felony sentence on one count of obstruction of justice following a plea bargain that dropped five other charges.

Earlier coverage begins with this post.

Senate Hearing Today - Judiciary Subcommittee on Crime and Drugs

The Subcommittee on Crime and Drugs of the U.S. Senate Judiciary Committee will hold a hearing today, “Exploring the National Criminal Justice Commission Act of 2009”  You can view the hearing webcast at the link.  It's scheduled to begin at 3:00 pm, EDT; 2:00 pm, CDT.

The legislation would create a Presidential level blue-ribbon commission charged with conducting an 18-month, top-to-bottom review of the nation's criminal justice system.

Senator Jim Webb of Virginia has posted, "Why We Must Reform Our Criminal Justice System," at Huffington Post to discuss the proposal.  Here's an extended excerpt:

America's criminal justice system is broken.

How broken? The numbers are stark:

• The United States has 5% of the world's population, yet possesses 25% of the world's prison population;

• More than 2.38 million Americans are now in prison, and another 5 million remain on probation or parole. That amounts to 1 in every 31 adults in the United States is in prison, in jail, or on supervised release;

• Incarcerated drug offenders have soared 1200% since 1980, up from 41,000 to 500,000 in 2008; and

• 60% of offenders are arrested for non-violent offensives--many driven by mental illness or drug addiction.

Numbers only tell part of the story.

While heavily focused on non-violent offenders, law enforcement has been distracted from pursuing the approximately one million gang members and drug cartels besieging our cities, often engaging in unprecedented levels of violence. Gangs in some areas commit 80% of the crimes and are heavily involved in drug distribution and other violent activities. This disturbing trend affects every community in the United States.

Ex-offenders are also confronted with a lack of meaningful re-entry programs. With the high volume of people who are coming out of prisons, it is in the self-interest of every American that national leadership design programs that provide former offenders a true pathway towards a productive future.

An examination is required as to what happens inside our prisons. Our correctional officers deserve better support in dealing with violent criminals under their supervision. It is also imperative that we facilitate a safe environment for all inmates, and examine ways to better prepare them for their release back into civil society. The de-humanizing environment of jails and prisons compounds these challenges.

Without question, it is in the national interest that we bring violent offenders and career criminals to justice. The purpose of this legislation is not to let dangerous or incorrigible people go free. Rather, it is to determine how best to structure our criminal justice system so that it is fair, appropriate and--above all--effective.

And:

The National Criminal Justice Commission Act has already garnered wide support from across the political and philosophical spectrum, including 29 sponsors in the Senate, among them many senior members of the Senate Judiciary Committee. My staff and I have engaged with more than 100 organizations and associations, representing the entire gamut of prosecutors, judges, defense lawyers, former offenders, advocacy groups, think tanks, victims rights organizations, academics, prisoners, and law enforcement on the street. This engagement is ongoing, and support continues to grow.

My goal, shared by Senate Judiciary Committee Chairman Patrick Leahy, is to pass this legislation soon and to enact it into law this year. Obviously we appreciate any measure of support and assistance in this difficult undertaking. For more information, please visit my website, www.webb.senate.gov.

House Judiciary Committee Votes to Impeach Kent

John Council has this report for Texas Lawyer on the U.S. House of Representative's quick action on the convicted federal judge.

The House Judiciary Committee voted to impeach retired U.S. District Judge Samuel B. Kent by a 29-0 vote Wednesday, marking the first time in 20 years the body has taken that action against a federal jurist.

The four articles of impeachment the committee voted on alleged that Kent was guilty of "high crimes and misdemeanors" that warranted his removal from office. The first two articles of impeachment related to the "sexual assault" of two of his staff members at the federal courthouse in Galveston, Texas; the third involved his obstruction of justice; and the fourth was linked to his false statements to the FBI and the U.S. Department of Justice.

Kent pleaded guilty to obstruction of justice earlier this year and, in a factual statement he signed as part of the plea, he admitted to nonconsensual contact with his former court administrator Cathy McBroom and his former secretary Donna Wilkerson.

He was sentenced to 33 months in prison and is expected to report to the U.S. Bureau of Prisons on Monday.

Kent has sent a letter to the White House indicating that he will resign from the bench on June 1, 2010. He will continue to be paid while sitting in prison because only a voluntary resignation or impeachment by Congress will stop his salary -- a situation that offended many of the House Judiciary Committee members.

Earlier coverage is here.

More on Sam Kent

"Pace Quickens for Impeaching Convicted Judge," is the AP report by Suzanne Gamboa, via Law.com.

Members of Congress are moving quickly to force a convicted federal judge from Texas out of office so they can avoid paying his annual salary while he serves time in prison.

A task force formed by the House Judiciary Committee scheduled a meeting for Tuesday morning to begin considering what articles of impeachment -- essentially charges -- they want to recommend against U.S. District Judge Samuel Kent.

Kent, the first sitting judge to face sex crime charges, is headed to federal prison in a week to serve a 33-month sentence for lying to prosecutors about sexually abusing two female employees. Both women told their stories to the task force last week, saying they were cornered and forced to engage in sexual acts against their will.

And:

Kent had hoped to retire on disability to continue collecting his $174,000 annual salary and benefits. But that request was rejected by the 5th U.S. Circuit Court of Appeals. He told President Barack Obama in a letter that he would resign in June 2010.

Members of the House have balked at that offer, rejecting the notion that Kent would be paid his federal salary for a year while he is behind bars.

Federal judges are appointed for life. Impeachment is the only way to remove them. In a letter to the task force, led by Rep. Adam Schiff, D-Calif., Kent said if he is forced out, he would be penniless.

Earlier coverage begins here.

Death Penalty Case Reveals Failings in Alabama

That's the title of Adam Liptak's latest Sidebar column for the New York Times.  LINK

Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending Holly Wood, who was facing the death penalty.

After Mr. Wood was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life. The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much. In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error.

Judge Rosemary Barkett, the dissenting judge, saw it differently.

“An inexperienced and overwhelmed attorney,” Judge Barkett wrote of Mr. Trotter, “realized too late what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.”

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case. It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation. The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners. The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial.

“It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

Earlier coverage of the case is here; more at the ScotusWiki page for Wood v. Allen.

This Morning's Washington Hearing

Earlier this morning the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee held a hearing on "Indigent Representation: A Growing National Crisis."  I will update when the archived webcast becomes available.

Here's the witness list:

Robert M.A. Johnson, Co-Chair
National Right to Counsel Committee and District Attorney
Anoka County, Minnesota

Alan Crotzer, Probation and Community Intervention Officer
Florida Department of Juvenile Justice;
wrongfully convicted and sentenced to 130 years in prison
Tallahassee, FL

Erik Luna, Professor
Washington and Lee University School of Law
Lexington, VA

Malcolm R. “Tye” Hunter, Former Executive Director
North Carolina Office of Indigent Defense Services
Durham, NC

John Wesley Hall, President
National Association of Criminal Defense Lawyers
Little Rock, AR

Rhoda Billings, Co-Chair
National Right to Counsel Committee
Former Justice and Chief Justice of the North Carolina Supreme Court
Lewisville, NC

You'll note that several of the witnesses are members of the National Right to Committee.  The Constitution Project issued a news release, "National Right to Counsel Committee Members Testify on Indigent Defense Crisis and Issue Urgent Call for Reforms."  Here's an excerpt:

"Our nation has failed to live up to the promise of the landmark Supreme Court case Gideon v. Wainwright," said Rhoda Billings, co-chair of the National Right to Counsel Committee. "When the defense is strapped for funds and lacks resources to challenge the government's case, while the prosecution is well funded and provided with access to investigative resources, expert witnesses, and technology, justice is not being achieved. Until our nation commits resources to the defense equal to that provided to the prosecution, the tenet of 'liberty and justice for all' won't be realized."

"During my 24 years in prison, I often asked myself, 'How many individuals are - like myself - innocent of the charges that have put them here?' The answer is simple-far too many," added Alan J. Crotzer, National Right to Counsel Committee member. "As a defendant, I was in the position of having to file subpoena requests for documents and witnesses while my appointed attorney was literally on vacation. We have a saying for public defenders in Florida: 'public pretenders.' I am living proof of the need for a significant overhaul of the indigent defense services provided in our nation."

"This is not an issue that affects only defendants in our criminal justice system," said Robert M.A. Johnson, co-chair of the National Right to Counsel Committee. "As a prosecutor, it helps me to do my job when opposing counsel is both provided and adequately up-to-speed on the case before the judge. The validity of any verdict relies on high-quality legal representation for both parties to the case."

The Constitution Project's National Right to Counsel Committee recently released "Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel," the most comprehensive report on indigent defense in 30 years. The report makes 22 recommendations for much-needed reform to indigent defense systems nationwide. The National Right to Counsel Committee is a bipartisan committee of independent experts representing all segments of America's justice system.  

The report, released in April, is noted here.