This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases. Here is the start of Lyle Denniston's analysis:
Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence. With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).
Interesting.....! And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.
A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:
In a case of first impression, the Pennsylvania Superior Court ruled last week that state troopers committed "outrageous government conduct" when investigating alleged prostitution at a massage parlor in the Lehigh Valley by giving money to an undercover informant to have sex four times with two different women at the parlor.
On Thursday, the unanimous panel of Judges John T. Bender and Jack A. Panella and Senior Judge John T.J. Kelly Jr. upheld Lehigh County Common Pleas Judge Robert L. Steinberg's 2008 order dismissing charges of prostitution and promoting prostitution against defendant Sun Cha Chon. Steinberg found the state police investigating alleged prostitution at Shiatsu Spa committed outrageous government conduct and violated Chon's constitutional rights to due process.
Though this ruling clearly hinges in part on the nature of the criminal activity which the government instigated, the notion that a criminal prosecution should be thwarted because of "outrageous government conduct" involving a confidential informant could have broad implications. The press report indicates that the Lehigh County District Attorney's office plans to appeal the decision, and this case is worth watching if and when it gets to the Pennsylvania Supreme Court.
Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor objected to the court's haste, saying it "highlights once again the perversity of executing inmates before their appeals process have been fully concluded." Stevens, writing for the three, said Virginia had short-circuited the process by scheduling Muhammad's execution for Tuesday night, earlier than the court would normally have reviewed his petition for the court to take his case.
I am not sure what I find most remarkable about this case: the fact that Virginia has been successful in getting Muhammad to the door of the death chamber "only" six years after he was sentenced to death for his horrific crimes is almost as remarkable as the fact that the capital review process is usually so cumbersome that we call a six-year appeal process hasty in a seemingly open-and-shut capital case.
The Court of Appeals for the Sixth Circuit granted habeas relief to Robert Van Hook on the ground that he did not receive effective assistance of counsel during the sentencing phase of his capital trial. Because we think it clear that Van Hook’s attorneys met the constitutional minimum of competence under the correct standard, we grant the petition and reverse.
Justice Alito has an interesting one-paragraph concurrence to the ruling in Van Hook. Here it is:
I join the Court’s per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s performance meets the standard required by the Sixth Amendment. The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership. The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole. It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.
As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split. I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.
I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year. And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.
But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito. In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito). But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority. Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings. Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.
Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan. The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues. And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts. Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.
I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy. (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue). But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.
A few different older and newer posts on issues related to the Graham and Sullivan cases:
The title of this post is the headline of this little piece today in the Chicago Tribune. These basics about President Obama's poor clemency track record to date should be familiar to regular readers of this blog:
A lot of things have moved pretty quickly in the Obama administration. Presidential pardons are not among them. In two and a quarter centuries, only four presidents have been slower than President Barack Obama in exercising their authority of executive clemency -- granting either pardons or commutations of sentences to the convicted -- with thousands of applications pending at the Justice Department.
Some related posts on federal clemency:
The recent arrest of a Hilliard middle-school teacher and coach on child-pornography charges shocked a community, but it was no surprise to members of law enforcement.
"There is no profile for these individuals," said Westerville Police Chief Joe Morbitzer. "There are so many different types, from all walks of life." Among those prosecuted by federal authorities in the southern district of Ohio in the past year were a 42-year-old minister from Chillicothe, a 50-year-old information-technology worker for Ohio State University and a 56-year-old pediatrician from Troy.
Prosecutions have surged as investigators grapple with the increasing availability of child pornography on the Internet. The U.S. attorney's office in Columbus prosecuted 44 people on child-pornography charges in the past 12 months, more than double the caseload during the previous year. Similar efforts are taking place nationwide. Agents from federal, state and local agencies are forming more than 60 regional task forces, including one in Franklin County, to combat Internet crimes against children....
Two decades ago, law enforcement had all but eliminated child pornography, which then consisted of printed material and videos offered in adult book stores or through the mail. But the advent of the Internet caused an explosion in the availability and graphic nature of the material.... The number of images sent to the National Center for Missing & Exploited Children after being intercepted by Internet-service providers and law-enforcement agencies has grown from 551,528 in 2004 to 8.6 million in 2008.
Interestingly, my paper also has this important new AP piece this morning, which is headlined "Framed for child porn _ by a PC virus." Here are its main points:
Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography.... Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they'll get caught. Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites....
An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus. It can cost victims hundreds of thousands of dollars to prove their innocence. Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.
A few related recent federal child porn prosecution and sentencing posts:
Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed. Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed.
In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.
In addition, 30 other inmates whom Kentucky circuit judges sent to death row over the past 33 years ultimately have seen their sentences reduced as the result of appeals, suggesting widespread flaws at the trial level.
The state Department of Public Advocacy estimates that Kentucky spends as much as $8million a year prosecuting, defending and incarcerating death-row inmates, even as state-ordered budget cuts impair other aspects of the judicial branch of government.
Critics of the capital-punishment system question whether Kentucky can afford to litigate death-penalty cases that drag on interminably and rarely end with an execution, especially when convicted murderers can be sentenced to life in prison without the possibility of parole.
How Appealing has collected here lots of links to pieces discussing in the big Graham and Sullivan cases to be argued Monday, November 9 in the Supreme Court. For all the essential case basics in a well presented form, I recommend Lyle Denniston's preview in this SCOTUSblog post titled "Inquiring into the juvenile mind," and Adam Liptak's preview in this New York Times article headlined "Justices Weigh Life in Prison for Youths Who Never Killed." And, as detailed below, I have done a series of posts on these very important Eighth Amendment cases since cert was first granted earlier this year.
I have a lot of new thoughts about these cases and tomorrow's arguments, some of which I hope to share in future posts. For now though, let me make one early prediction (which I reserve the right to change after argument): neither Graham or Sullivan will be resolved through 5-4 rulings.
Some recent posts on juve LWOP and the Graham and Sullivan cases:
UPDATE: Howard Bashman here has another collections of press stories about the Graham and Sullivan cases. Readers get bonus points and my gratitude for spotlighting any special or noteworthy details in all this media coverage of these important SCOTUS cases.
The Army psychiatrist suspected in Thursday's deadly Fort Hood rampage in Texas could get the death penalty if he is convicted of multiple counts of first-degree murder — and military law experts say the evidence against him will be substantial.
American-born Maj. Nidal Malik Hasan has yet to be charged but is expected to face at least 13 counts of murder, one for each of the victims who died, as well as numerous assault and weapons charges in a court-martial.
"Obviously, we're all guessing, but it's reasonable to believe that he will be convicted and sentenced to death," said retired Navy lawyer Philip Cave, now a military crimes defense attorney.
Cave estimated that Hasan, 39, would spend between five and 15 years in the military's court martial system. "It will be a long charge sheet," military law scholar Richard Rosen told KCBD.com, "one longer than I've ever seen in my life time in the Army."
As noted in this post, there were not any obviously significant crime and justice story lines during this year's local elections. But, given that New Jersey and Virginia are both interesting sentencing states and both now have new governors with criminal justice backgrounds, I cannot help but wonder and hope that one or both of these states could become effective laboratories for new "smart-on-crime" developments.
An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court. But researchers contacted by Nature have questioned whether the decision was based on sound science.
Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March. Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing. Bayout, a Muslim, claims he wore the make-up for religious reasons.
During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder. After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.
But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.
For the new report, Pietro Pietrini, a molecular neuroscientist at Italy's University of Pisa, and Giuseppe Sartori, a cognitive neuroscientist at the University of Padova, conducted a series of tests and found abnormalities in brain-imaging scans and in five genes that have been linked to violent behaviour — including the gene encoding the neurotransmitter-metabolizing enzyme monoamine oxidase A (MAOA). A 2002 study led by Terrie Moffitt, a geneticist at the Institute of Psychiatry, King's College, London, had found low levels of MAOA expression to be associated with aggressiveness and criminal conduct of young boys raised in abusive environments.
In the report, Pietrini and Sartori concluded that Bayout's genes would make him more prone to behaving violently if provoked. "There's increasing evidence that some genes together with a particular environmental insult may predispose people to certain behaviour," says Pietrini.
On the basis of the genetic tests, Judge Reinotti docked a further year off the defendant's sentence, arguing that the defendant's genes "would make him particularly aggressive in stressful situations". Giving his verdict, Reinotti said he had found the MAOA evidence particularly compelling....
But forensic scientists and geneticists contacted by Nature question whether the scientific evidence supports the conclusions reached in the psychiatric report presented to Judge Reinotti. "We don't know how the whole genome functions and the [possible] protective effects of other genes," says Giuseppe Novelli, a forensic scientist and geneticist at the University Tor Vergata in Rome. Tests for single genes such as MAOA are "useless and expensive", he adds.
I got a new toy today: the new Droid phone. And this post is a test of Droid-blogging.
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."