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Scalia, Lawyers, and Heroin Pushers

It's my twenty-fifth wedding anniversary -- sure, I had to go through four wives to get there, but it's still a big deal -- so it's going to be a light day here.  We'll check around for some stuff...

Scalia in the News... Again.  We'll start with a report about a speech Justice Scalia gave to a panel on the judiciary at the National Italian-American Foundation this past weekend:

Deeply controversial issues such as abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, according to Supreme Court Justice Antonin Scalia.

Scalia, during a panel Saturday on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

The Demise of Mason & Matlock, LPA.  The Boston Bar Association issues a report bemoaning the decline in lawyers' jury trial skills caused by, well... a decline in the number of jury trials.  The report cites data to show that in the past several decades, although the number of both criminal and civil case dispositions has increased, the number of dispositions by way of jury trials has decreased, not only as a percentage but in absolute numbers -- in other words, there are fewer trials now even though there are more cases.  In the Federal courts, for example, while the number of civil cases disposed of had increased five-fold between 1962 and 2002, the number of cases disposed of by trial in 2002 was one-sixth of what it had been forty years earlier.

Interestingly, there was one type of case which has escaped this phenomenon:  the study found that medical malpractice cases were being tried just as frequently as before.

The Ohio Supreme Court has data on case resolution here in Ohio, but the stuff on its web site only goes back to 1999.  I'll see if I can find more historical data.  In the meantime, here's a question:  are fewer trials a bad thing?

A matter of life and death.  A while back, I ventured my opinion -- hardly a novel one -- that the death penalty has a distorting effect in the criminal justice system.  For example, because of pressure to shorten the period of delay in capital cases between imposition of sentence and execution, there have been substantial modifications in the habeas corpus statutes, yet those changes affect equally, and adversely, people who've been convicted of non-capital crimes.  Similarly, rulings are made in capital cases which might not have been made if death wasn't on the table, but those rulings also apply to all other criminal cases. 

Another way of looking at it is that the struggle over the death penalty consumes resources that might be better spent elsewhere.  For example, if there is a question that someone might have been unfairly sentenced to death, there are teams of investigative reporters willing to look into every nook and cranny of the case.  Seventeen people have been freed from Illinois' death row because they were determined to have been innocent; a law professor's class at Northwestern University was primarily responsible for discovering the evidence that freed half of those.

But who's spending the time looking into cases where death isn't the penalty handed out?  For example, as this article points out, back in the 1970's Louisiana passed a law mandating life without parole for selling heroin.  Despite a change in the law in 2001 which lowered the penalty (to 5 to 50 years) and allowed a review procedure for those sentenced under the old law, there are still 90-some "heroin lifers," many of them elderly, doing time in Louisiana prisons.  The prosecution is now arguing on appeal to the state supreme court that trial judges don't have jurisdiction to modify the sentences, but that the lifers must instead go through the time-consuming process of review provided by the prisons board.  One of the cases being argued is that of Melvin Smith, who was sentenced in 1977 and is currently wheelchair-bound.

I wonder if the energy spent on the recent debate about whether capital defendants endure some momentary pain during lethal injections might have been better spent in considering the pain and suffering endured by elderly heroin lifers in Louisiana.

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