Posted on December 22, 2015
The LA Times has an editorial today addressing the decline in the use of capital punishment in the United States, exploring the problems with the death penalty, and calling for an end to its use. The authors write:
The death penalty is a stain on the nation. In executing our own citizens, we align ourselves with such human rights violators as Iran, China and our close Mideast ally Saudi Arabia. Conversely, more than 100 countries have banned the death penalty either by law or practice. Abolition is the direction of the future, and the U.S. should join.
The LAT also adds its voice to those noting the oddity of Riverside’s enthusiasm for capital punishment at a time when the death penalty is generally fizzling out. The paper asks:
Are murders really so much more heinous in Riverside County than elsewhere? That’s hard to imagine, and it points up a core problem with the capital punishment system: The decision on who receives a death sentence often has less to do with whether the defendant is “the worst of the worst” than it does with the proclivities of the prosecutors.
Posted on December 21, 2015
In the wake of last week’s report finding that Riverside County leads the nation in imposition of new death sentences even as the overall use of the death penalty has declined to historic lows, the Riverside Press-Enterprise has an editorial expressing concern about what the county is doing. The authors write:
[W]e find it troubling that Riverside County is establishing itself as this dramatic an outlier compared with the rest of the nation. . . . [G]iven the state of the current death penalty system in California, we wonder if the pursuit of the death penalty makes sense at all. It does a disservice to the pursuit of justice to seek a sentence that will, in all probability, never actually be imposed. And that’s setting aside the contentious question of whether such a sentence is morally acceptable in the 21st century.
The University of California has divested from $25 million in holdings in private prisons under pressure from black student unions, according to the Daily Nexus.
The California Office of the Inspector General released a report (pdf) this week on the High Desert State Prison in Susanville, describing a culture of indifference and cruelty toward inmates and “a labor organization that opposes oversight to the point of actively discouraging members from coming forward with information that could in any way adversely affect another officer.”
In the Los Angeles Times, Boalt Law Professor Karen Tani and Washington University Law Professor John Inazu have an op-ed discussing the 1944 Korematsu decision in the context of the recent upwelling of anti-Muslim rhetoric. The authors note that “Korematsu suggests how far our government leaders may take us in ‘exceptional’ times.”
In the Washington Post, California Department of Corrections Library Technical Assistant Valerie Schultz responds to Chief Justice John Roberts, who recently implied that prison libraries probably are not very good. Schultz writes:
I sometimes encounter men who never visited a library before going to prison, who never checked out a book and had to be responsible for returning it, who perhaps never before had a chance to learn to read. I meet budding poets and memoirists. I see men trying to atone for their mistakes, using the tools of education and rehabilitation. I work hard and I am rewarded daily when I see the good that can be done in a “very good library.”
Posted on December 17, 2015
Rita Katz of the SITE Intelligence Group has a piece in the Washington Post today noting that law enforcement’s drumbeat to undermine encryption ignores the reality that most “terrorist” organizing is going on in plain sight on public, unencrypted social media platforms. She writes:
regulation of encryption is unlikely to provide the government with the counterterrorism benefit it says it will. Jihadists’ main tool for planning and executing attacks in recent years has been social media — to which the government has full access — not encrypted messaging. In addition, regulation of one messaging technology will lead to immediate adaptation and the creation of ways to circumvent it.
Rather than try to create backdoors to encrypted communication services, or use the lack thereof as an excuse to intelligence failures, the U.S. government must first know how to utilize the mass amount of data it has been collecting and to improve its monitoring of jihadist activity online.
The use of the death penalty (in terms of executions carried out) nationwide is at its lowest level since 1991.
Simultaneously, Riverside County is leading the nation in the imposition of new death penalty sentences.
The San Jose Mercury News disagrees with the federal argument that weakening encryption is necessary to fight terrorism.
Fresno Police may have been using social media to spy on #BlackLivesMatter followers, according to the ACLU.
Records of cases connected with the Orange County jail informant scandal have mysteriously vanished from an online court database, according to Voice of OC.
Posted on December 16, 2015
LA Times has the story. The allegations of bias were made between 2012 and 2014. For obvious reasons, there is some skepticism about the validity of these results.
Posted on December 15, 2015
Plowing through the US Supreme Court’s latest AEDPA-based reversal of a habeas grant, White v. Wheeler, which was published Monday, one can’t help but notice the repeated invocation of the “no fairminded jurist standard” — i.e., the idea that 28 U.S.C. 2254 is a bar to relief unless “no fairminded jurist” could possibly agree with the state court’s analysis.
This jumps out at me because I recently read Noam Biale’s law review article Beyond a Reasonable Disagreement: Judging Habeas Corpus, which wrestles with what exactly the AEDPA standard means. Biale details the considerable ambiguity of this standard and argues that it has led, in some cases, to an obviously incorrect reading of 2254 in which the mere fact that the state court rejected the appeal, or that a district court judge rejected a habeas petition, means that it is per se impossible for the rejection of the claim to be one that “no fairminded jurist” could disagree with. (I noted this tendency in my discussion of the Ninth Circuit’s analysis of Amado v. Gonzalez last year.) As Biale puts it, “the mere existence of disagreement — among presumably fairminded judges — [is treated as] dispositive” in this style of analysis — in spite of the fact that such a standard would eliminate the possibility for habeas relief in every case where the state court had previously rejected the argument.
On the other hand, Biale suggests that it is “overly optimistic” to suppose that the “no fairminded jurist” standard is merely another way of referring to whether a state court opinion was “objectively reasonable.” Harrington v. Richter, the case that really ushered in the “no fairminded jurist” standard for good, was “plainly meant to raise the threshold for obtaining habeas relief,” Biale says.
So what does the standard mean, then? Interestingly, Biale suggests that the key ingredient is the “process of adjudication” provided by the state court, meaning
everything including the funding and appointment of defense counsel, the structure of state appellate review, the decision whether to hold an evidentiary hearing, the explanation of a decision in a reasoned opinion, and more.
In other words, if I understand Biale correctly, the degree of deference that would be shown at the federal level would be calibrated to some extent to the degree of effort exerted by the state court to substantively address the merits of the argument in the first instance.
Unfortunately, the analysis of White v. Wheeler bears no resemblance to this approach and instead repeatedly suggests that the question is whether the error of the state court decision is clear “beyond any possibility for fairminded disagreement.” This, of course, is a considerably more demanding standard than what 2254 actually states, but that is the (dismal and arguably incoherent) state of federal habeas law at the moment.
Posted on December 9, 2015
Here is a very thought-provoking law review article from USF Law Professor Richard Leo and American University School of Public Affairs Professor Jon B. Gould on the little studied question of how, as a practical matter, wrongful convictions (in other words, convictions of an innocent person, not simply convictions of a guilty person via a trial that involved legal error) get recognized and overturned. This is something I wonder about virtually every time I read a case about some remarkable exoneration: how does that case, which seems so striking, differ from the run-of-the-mill appointed California post-conviction case, where viable issues are sometimes scarce and the resources for pursuing serious investigation are always difficult to obtain?
The Path to Exoneration, which is forthcoming in the Albany Law Review, highlights some useful trends in the data. In particular, the table shown below points to the overwhelming significance of DNA analysis. Perhaps as a corollary to that point, Leo and Gould note that the vast majority of exonerations occur in rape (55%) and murder (38%) cases, with virtually all of the overturned rape convictions involving DNA analysis and a small majority of the murder convictions involving DNA.
Leo and Gould also note that police and prosecutors overwhelmingly work to oppose exonerations of the innocent. As prosecutors’ offices are increasingly developing conviction integrity units, perhaps that may change.
Posted on December 9, 2015
The California Court of Appeal unreasonably applied federal law in concluding that police did not violate a 17-year-old defendant’s Miranda rights during an interrogation, but the state court was not unreasonable in finding the admission of the statements harmless. That’s the gist of Mays v. Clark (12-17189) published Tuesday by a panel of the Ninth Circuit Court of Appeals. The panel writes that the facts of the case are “troubling,” in the sense that the interrogating officer plainly ignored the defendant’s request for counsel. But the case for prejudice was a closer question.
Posted on December 7, 2015
Here’s the sharply worded editorial. The “racist” component of the picture comes from a piece published last week detailing the exchange of overtly racist texts by Santa Clara County jail guards. That report revealed that
At least a dozen guards in Santa Clara County’s troubled jails repeatedly exchanged racist text messages over the past year — mixing vile slurs with casual brutality, and even sharing images of a Nazi swastika and a lynching
The Santa Clara County jail is also under scrutiny because of the beating death of mentally ill inmate Michael Tyree in August. Three guards have been charged with murder in connection with that incident.