June 2012 Archives
Okay, I stick to mostly criminal law here, but yesterday's decision in the Affordable Care Act cases is probably one of the most significant in the Court's history. And not just for the political implications. Had the Court struck down the health care reform act, it would have dealt Obama a staggering blow -- nothing like having the major legislative initiative of your entire first term tossed out -- but it would have also relegated the issue to the sidelines in the election. Instead, the Court's decision has left in the electorate's hands what to do about a law which remains largely unpopular. We'll see how all that plays out over the next four months.
But aside from that, there are some other interesting aspects to the decision, some of which even implicate criminal law. As we say in the law biz, to-wit:
Sometimes, getting what you wanted has unintended consequences.
In 1999, 98 people were executed in the United States. That was the most since capital punishment was reinstated by the Supreme Court's 1976 decision in Furman v. Georgia, and that was the high water mark of the death penalty. It's fallen steadily since then, all the way down to 37 in 2008. It's rebounded slightly, but has averaged less than half the 1999 total over the past six years. And basically, we're just working our way through inventory. The number of death sentences handed down has fallen from 294 in 1998 to 78 in 2011, a decline of almost 75%.
One reason for that decline is the addition, or substitution, of the penalty of life in prison without possibility of parole. When Texas introduced that option in 2005, the number of death sentences plummeted from 30 to 40 a year to single digits. The result is that in the quarter century after 1984, the number of individuals serving that sentence has quadrupled, from about 34,000 to over 140,000. And many of those sentences weren't imposed for homicides; the penalty is now available for child rape, some drug offenses, and for certain career offenders.
In the last few years the Supreme Court has focused on one aspect of LWOP: when it's imposed on juveniles. First came the 2010 decision in Graham v. Florida, holding that the sentence couldn't be imposed on juvenile non-homicide offenders. On Monday, in a combined decision in Miller v. Alabama and Jackson v. Hobbs, the court struck down the LWOP sentences that Miller and Jackson had received for murder.
And after reading the opinion, I started thinking: why stop with juveniles?
It's somewhat odd that Antonin Scalia, one of the most conservative justices in Supreme Court history, would have as the primary legacy of his 28 years on the Court two of the best decisions for criminal defendants ever to be handed down. One of them, Crawford v. Washington, expanding the scope of the Confrontation Clause, has taken a beating in recent years, as the decision last week in Williams v. Illinois (discussed here and here) showed. But as indicated by Southern Union v. US, another of the Court's decisions last week, Scalia's work in Apprendi and Blakely, expanding the scope of a defendant's right to trial by jury, is alive and well.
Another Black Thursday down out the Lakeside Courthouse, where the best news was that the court probably shaved forty years off a defendant's sentence, leaving him with "only" twenty to do. I thought I had a bad week because I lost two appeals, but then I saw that so did Verko Vargas. Problem was, he was the defendant.
In addition to Williams v. Illinois, the Crawford case I discussed on Thursday and Friday, the Supreme Court handed down two other decisions in criminal law last week. In the companion cases of Dorsey v. US and Hill v. US, the Court held that the provisions of the Fair Sentencing Act, which substantially reduced penalties for crack cocaine dealers and users, could be applied to those who committed their crimes before the Act's effective date in 2010. This was a matter of statutory, rather than constitutional interpretation; an 1871 law prohibited the retroactive effect of a change in sentencing laws unless Congress clearly intended the new law to be applied to past cases, and the FSA contained no such specific provision. As I wrote when I discussed the oral argument in the case, the outcome hinged on whether a majority could be cobbled together to give more significance to fairness than to legislative history, and it was, by the slimmest of margins; Kennedy went with the liberals, and the conservatives dissented.
The other decision, Southern Union v. US, involved the question of whether the Court's Apprendi/Blakely line of decisions extending the application of jury fact-finding in sentencing could be applied to fines. Southern Union had been convicted of a single count of violating an environmental regulation, which carried a penalty of $50,000 for each day of violation. The judge concluded that Southern Union had been in violation for 762 days, and imposed a fine of $38.1 million. Apprendirequires that any fact which increases the maximum punishment authorized for a particular crime must be proved to the jury beyond a reasonable doubt, and the Court, by a 6-3 vote, held that this meant Southern Union was entitled to a jury determination of how many days its violation had lasted. The case has got some broader implications for sentencing law, and I'll discuss those later this week.
One interesting tidbit about the public's perception of the Court. Despite a recent study showing the present Supreme Court to be the most conservative in modern history, a recent Rasmussen Report poll showed that only a quarter of the public shared the view that the Court was too conservative, while 32% believed it was too liberal. Rasmussen's got a conservative bias, but an NBC/Wall Street Journal poll two months ago found 33% believed the Court to be too liberal, while 35% felt it too conservative. Interestingly, the last time NBC/WSJ asked the question, back in May of 1992, the split was 28/54, with almost twice as many people saying the Court was too conservative as opposed to too liberal. Go figure.
One criminal decision of note from the Ohio Supreme Court. In State v. Niesen-Pennycuff, the defendant had successfully completed treatment in lieu of conviction for a drug offense, and then asked that the records be sealed. The ILC statute provides that a court "may order sealing. . . in the manner of provided" in the expungement statutes. The lower courts held that this required the three-year waiting period mandated by the statutes for expungement of a felony. There is a separate statute on sealing records of a dismissal (or not guilty verdict), and the court held that that statute applies, and so a judge may order immediate dismissal upon completion of the program.
Two things are particularly noteworthy about the opinion. First, it also applies to diversion programs. Secondly, the opinion contains some very good language about the beneficent intent of sealing records. I recently wrote a brief on the issue, and there's some nasty cases floating out there which talk about how sealing "is a privilege, not a right," and basically impose upon the defendant the burden of showing that his interest in having the records sealed outweighs the state's interest in maintaining them. (Some decisions even hold that the defendant must show specific adverse effects from the conviction or arrest before being entitled to have them sealed.) The court in Niesen-Pennycuff quotes with approval an appellate decision requiring courts to "liberally construe [the statutes] so as to promote the legislative purpose of allowing expungements," and the opinion elsewhere references the "remedial purposes" of the statutes.
In the courts of appeals...
Despite the sturm und drang with which the defense bar greeted the Supreme Court's decision on Monday in Williams v. Illinois, the opinion's reach might be much more limited. In fact, there is no reach, because technically speaking, there is no opinion: as we discussed yesterday, while a plurality of four justices held that Williams' confrontation rights weren't violated by a DNA analyst's testimony about testing performed at an out-of-state lab, the other five justices vigorously criticized the result and the reasoning -- such as it was -- used to arrive at it. The only reason Williams lost was because Thomas didn't believe that the report from the outside lab qualified as a testimonial statement because it wasn't certified, a distinction only he made.
Still, while the impact of the decision might be less significant than initially thought, it gives some clues as to where the Court's going on future Crawford issues. That's what we're going to take a look at today.
The Supreme Court's 2004 decision in Crawford v. Washington, in which the Court held that "testimonial statements" were barred, even if they fell within an exception to the hearsay rule, was hailed at the time as one of the most important decisions in history on the meaning of the Confrontation Clause. What exactly constituted a "testimonial statement" wasn't clear, and by the time the Court got done clarifying that in a couple of 2006 decisions, I wrote at the time that "it might not be unreasonable to suggest that Crawford isn't quite as sweeping as the defense bar initially thought" and that "if I had to guess, I'd say it's one of those decisions that five years down the road are going to be whittled into something less than they initially seemed."
Well, as the Chambers Brothers sang, "Time Has Come Today." Or on Monday, to be more exact, when the Supreme Court handed down its decision in Williams v. Illinois. The only thing you can say is that it could have been a lot worse.
It's never too late to take a second look. Three weeks ago in State v. Creed, the 8th District rejected a claim that Creed's plea to three counts of sexual battery was invalid because the judge failed to tell him that, as a sex offender, he couldn't live within 1,000 feet of a school, day care center, park, swimming pool, bus shelter, apartment building, or any other place nominally inhabitable by the human race. (Okay, that's a bit of an exaggeration, but not much.) The court rejected it on the basis of its 1999 decision holding that sex offender laws were remedial, not punitive. Thus, according to the court, the restrictions were collateral matters, and the trial judge had no duty to advise the defendant about them.
In my weekly review of the 8th District decisions, I wrote that this ignored the Supreme Court's decision last year in State v. Williams, which held that the restrictions in the Adam Walsh Act had crossed the line from remedial to punitive. The court apparently came to the same conclusion; after sua sponte reconsideration, this week it issued a new opinion in Creed.
Woody Allen famously observed that 90% of life is just showing up. When what you're supposed to show up for is your sentencing hearing, you can probably ratchet that percentage up to 100, as Larry Poole can tell you. After pleading guilty to three counts of aggravated robbery with an agreed seven-year sentence, Poole begged for time to "get my affairs in order," as opposed to proceeding immediately to sentencing, as the State wanted. The judge gave in, but cautioned Poole that if he didn't show up on the set date, the seven years would be off the table, and the judge would give whatever sentence he deemed appropriate.
Now, if you've practice criminal law for more than, say, six weeks, you're not sitting there thinking, "Gosh, I wonder if he showed up." Of course he didn't, and when The Man finally caught up to him, the "appropriate sentence" turned out to be 15 years. That was back in 2002, and Poole's delayed appeal in 2004 went nowhere. In his latest adventure in the criminal justice system, he appeals from the denial of a motion to withdraw his plea, but in State v. Poole our old friend Ray Judicata disposes of that.
The US Supreme Court took last week off, as politicians and the pundity, their loins fully girded, awaited the decision in the health care reform law. The Court's term doesn't officially end until next Monday, though, so the angst might continue for another week. There are three days -- today, Thursday, and next Monday -- in which the Court will be announcing its opinions, and there are still fourteen merits cases to be decided, including a Crawford issue on expert testimony, the two cases on life without parole for juvenile homicide offenders, the applicability of Blakely to fines, and the retroactivity of the reduction in crack penalties. That's just the criminal cases; also on the Court's plate are the FCC's indecency policy, the constitutionality of the "Stolen Valor Act, which prohibits someone from lying about receiving military medals, and the Arizona immigration law. Busy busy busy. Needless to say, I'll have my insightful analysis of each decision right here within hours of the opinion's release, once I work out the kinks in going to that 30-hour workday.
Down in Columbus, three death penalty cases take center stage. Back in 1987, in State v. Penix, the court held that if a death sentence was overturned on appeal, only a life sentence could be imposed; there was no provision in the law for empaneling a new jury for the punishment phase. The legislature took care of that in 1996, amending the law to permit a new jury to determine punishment, and amended that in 2005 to expressly make it retroactive. A few months before the 1996 law was enacted, Maxwell White murdered a state trooper and was sentenced to death. His sentence was overturned by the Federal courts in habeas in 2007, and the issue in last week's decision in State v. White is whether the statute allowing a new jury can be applied to him retroactively. By a 5-2 vote, the court rejects White's claim that application of the statute to him violates Ohio's prohibition against retroactive legislation and the Constitution's Ex Post Facto Clause. The two dissenters, Lanzinger and Pfeifer, don't even reach that issue. They point out that the amendment only applies where there was an error in the sentencing phase, and here the error was not removing a biased juror during voir dire.
In State v. Powell, the court affirms Powell's conviction and death sentence arising out of an arson which killed three children and Powell's girlfriend. Probably the most interesting issue among the 26 Powell raises is the fact that after the defense had filed various motions to preserve the house where the fire took place, and the judge granted them, everybody found out that the city had demolished the house several months earlier. Too bad; absent proof that the house contained definitely exculpatory evidence, that argument's going nowhere.
The last death penalty case actually wasn't decided by the Supreme Court, but it soon will be. Twenty years ago, Abdul Awkal walked into the domestic relations courthouse up here and killed his wife and brother-in-law. That earned him a date with the needle, which was supposed to take place on Wednesday. Last week, though, the common pleas judge who'd sentenced Awkal to death determined that he was presently too incompetent to understand why we want to kill him. (He believes the CIA is behind it.) Prosecutor Bill Mason vowed to appeal, although there's a possibility that medication can restore Awkal to a point of awareness where he can be executed. Read this paragraph again, and tell me that irony is dead.
In the courts of appeals...
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