ACSBlog: The Blog of the American Constitution Society

After being convicted of murder and confined in a Texas prison for more than 27 years, James Lee Woodard joined an expanding list of prisoners whose convictions have been overturned because of DNA evidence, the Associated Press reported.

Woodard was released from prison April 29 after DNA testing confirmed his innocence of the murder charge.Texas District Judge Mark Stoltz told Woodward at a hearing before his release that, “No words can express what a tragic story yours is.” Woodward was convicted of the 1980 murder of his girlfriend largely on the testimony of two eyewitnesses.

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

America tells the whole world that it has freedom and justice. I do not see that. . . .There are almost 100 detainees here. We do not see any rights. You do not give us the least bit of humanity . . . Give me a just court. . . Try me with a just law.

—Salim Hamdan to Judge Keith Allred, Guantánamo Bay, April 29, 2008.

Guantanamo Bay, April 30, 2008: Salim Hamdan rejected the military commission process for the second time yesterday afternoon, asking that he be tried instead under a system of “just law.”  Mr. Hamdan interrupted a pretrial hearing during which the parties were mired in technical legal arguments to plead with the judge to take a step back and evaluate the integrity of the process. His words were powerful and eloquent. He questioned why the government is trying him in a made-up system pursuant to made-up rules. And he observed that, even when he wins, he loses because the government repeatedly changes the rules midstream:

If you ask me the color of this table, I will tell you it’s white. You say, “it’s black.” I say, “no, it’s white.” You say, “no, it’s black.” I say fine, “it’s black.” You say “no, it’s white.” This is the American government.

After being convicted of murder and confined in a Texas prison for more than 27 years, James Lee Woodard joined an expanding list of prisoners whose convictions have been overturned because of DNA evidence.

Woodard was released from prison Tuesday, April 29 after DNA testing showed him not to be guilty of murder.

Texas District Judge Mark Stoltz told Woodward at a hearing before his release that, “No words can express what a tragic story yours is.”

The Associated Press reports that 31 people in Texas have been exonerated through DNA testing, a national high according to the news agency.

The Innocence Project, which works to overturn wrongful convictions, was instrumental in securing Woodward’s release.

Woodward was convicted of the 1980 murder of his girlfriend, according to the Innocence Project of Texas largely on the testimony of two eyewitnesses.

A new study concluded: “the race of the defendant and victim are both pivotal in the capital of capital punishment: death was more likely to be imposed against black defendants than white defendants; death was more likely to be imposed on behalf of white victims than black victims.”

According to Scott Phillips of the University of Denver, who examined death penalty cases in Harris County, Texas, if one takes into account the nature of the crime, “the odds of a death trial are 1.75 times higher against black defendants than white defendants,” with the odds of a death sentence for a black defendant at 1.49 times.

Adam Liptak of the New York Times commented that the statistics “have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, ‘five black defendants would be sentenced to the ultimate sanction because of race.’”

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

Guantánamo Bay, April 28, 2008: Prosecutors and criminal defendants rarely see eye to eye. But defendant Salim Ahmed Hamdan and former chief prosecutor Morris Davis agree on one thing: The military commission system is fundamentally flawed, and justice in Guantánamo is near impossible.

by Doug Kendall, founder and Executive Director of Community Rights Counsel (CRC), a public interest law firm in Washington DC. He is in the process of launching a new organization, Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T, and not run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment? Such a proposition may seem outlandish, but it is what opinions signed last week by Justices Antonin Scalia and Clarence Thomas in Baze v. Rees would seem to sanction.

These opinions haven’t gotten much attention, but they illustrate everything that is wrong about originalism as it is practiced by Justices Scalia and Thomas. Too often, these justices manipulate text, speculate wildly about the intentions of the Framers, and end up far from the letter and spirit of the Constitution. Recognizing the weakness of the conservative arguments about what the Constitution says and compels would help progressives immeasurably in responding to the rise of the conservative legal movement.

Today, the U.S. Supreme Court unanimously held, in Virginia v. Moore, that it is not unconstitutional for police to conduct a search following an arrest , even if the arrest violated state law, so long as the police had probable cause. In this case, instead of giving David Lee Moore a ticket for a misdemeanor traffic offense, police arrested him, took him to a hotel, and conducted a personal search, finding cocaine in his jacket pocket. SCOTUSBlog has more here and here.

Today, the U.S. Supreme Court released three decisions. It upheld the use of lethal injections in Baze v. Rees, although no opinion represented the views of five justices. SCOTUSBlog covers the decision, and we have this preview. In Burgess v. U.S., the Court unanimous held that, regardless of the state law classification, a drug crime punishable by more than one year in prison constitutes a felony drug offense. It also held, 6-3, that drunk driving does not constitute a violent felony warranting an enhanced prison sentence under federal law.

The U.S. Supreme Court today denied certiorari of a South Carolina Supreme Court decision involving a 12-year-old who was sentenced to 30 years in prison for murdering his grandparents.

Christopher Pittman, who in 2001 killed his grandparents with a shotgun and burnt their house down, was convicted of murder and arson and subsequently sentenced to 30 years behind bars. The case drew attention for, among other things, the defense raised at trial in Pittman’s behalf. His lawyers argued that the antidepressant Zoloft had caused his violent behavior. The maker of Zoloft, Pfizer, has denied that the antidepressant was the cause of Pittman’s actions. (The FDA separately mandated that the drug carry a warning that it could increase the risk of suicide in children.)

Pittman’s lawyers unsuccessfully appealed his conviction to the South Carolina Supreme Court arguing that the boy’s lengthy sentence violated the U.S. Constitution’s prohibition against cruel and unusual punishment. The state supreme court did not accept that argument, and today’s denial of certiorari means it’s the last word in the case.

Guantánamo Bay, April 8, 2008: My name is Frank Kendall, and I am an uncompensated consultant to Human Rights First. I have been working with HRF either as a volunteer or consultant on detainee treatment issues for about four years now. When HRF asked me if I could go to Guantánamo as an observer, I jumped at the chance. Since my eyes, thoughts, and feelings will be the lens through which you will read about events of the next few days, a little information about my background may be in order.

President Bush will sign the Second Chance Act today, described by the Congressional Research Service (in this report) as "expand[ing] the current offender reentry grant program at the Department of Justice and creat[ing] a wide array of targeted grant-funded pilot programs."

With 700,000 state and federal prisoners released annually, The New York Times reports that states and private groups are developing programs to assist prisoners with returning to their communities and avoiding committing new crimes. It notes that financial concerns – the inability of states to build more prisons – is driving the shift towards rehabilitation, along with concern for the victims of repeat offenders. The Times reports:

The act authorizes $165 million in spending per year, including matching grants to state and local governments and nongovernmental groups to experiment with efforts like more schooling and drug treatment inside prison and aid with housing, employment and the building of family and community ties after release.

It also directs the Justice Department to step up research on re-entry issues and establishes a national Reentry Resource Center to promote successful approaches and provide training.

(H/T Sentencing Law and Policy Blog)

Reason magazine interviews Dallas County District Attorney Craig Watkins, asking "Is This America's Best Prosecutor?" Upon taking office, Watkins established a "Conviction Integrity Unit" to ensure that prosecutors follow appropriate procedures (in the wake of revelations of a series of wrongful convictions that took place before Watkins took office) and started working with the Texas Innocence Project to find other cases of wrongful conviction.

In October 2007, ACS co-hosted a symposium on prosecutorial power. Watkins participated in a panel discussion on prosecutorial misconduct.

(H/T Volokh Conspiracy)

When the U.S. Supreme Court denied certiorari in Hurn v. U.S. on Monday, March 31, it refused to review judicially imposed punishments of defendants acquitted for certain crimes, David Savage reported in the Los Angeles Times.

In an elaboration of Batson v. Kentucky, the Supreme Court held 7-2 Wednesday that the prosecutor's use of five peremptory challenges to strike 5 black jurors (the defendant is black) and proffer of unconvincing "race neutral" explanations was so "unconvincing" and "suspicious" that the trial judge had committed clear error in not inquiring further. The case gained notoriety when the prosecutor referred to it as his "O.J. Simpson case." The two dissenters in Snyder v. Louisiana, Justices Thomas and Scalia, would have deferred to the trial judge. Snyder will get a new trial after having spent twelve years on death row.

Two State Department contractors were fired and a third was suspended for improperly accessing Senator Barack Obama's passport file, the Washington Post reported. Senator John McCain and Senator Hillary Clinton's files were also improperly accessed, the New York Times reported. Although the earliest of the three incidents occurred on January 9, 2008, the State Department did not notify Senator Obama regarding the alleged breaches and possible violation of the Privacy Act until March 21, 2008. Congressman Henry Waxman, who chairs the committee of jurisdiction over the matter, is calling for the State Department to identify the contractors involved in the data breach.

by Carl T. Bogus, Professor of Law, Roger Williams University School of Law

[Editor's Note: Watch Professor Bogus speak on the Second Amendment at this ACS Press Briefing)

For those of us who believe that the collective rights model is the correct one for the Second Amendment – that is, that the Amendment, properly read, only grants a right to keep and bear arms within the government militia – oral argument in District of Columbia v Heller was ominous.  Based on comments at oral argument or previously, I count six likely votes for the individual rights interpretation: Scalia, Thomas, Kennedy, Breyer, Roberts, and Alito.

The Second Amendment provides a quintessential example of the adage “a little knowledge is dangerous.”  Those who know a little history tend to come out on the individual rights side.  Typically, it is only after one is really steeped in the history of the Founding era that one is converted to the collective rights view.  Several historians have written about this phenomenon.  They are particularly disdainful of lawyers doing “law office history” – failing to adequately understand the period under examination – and making a variety of errors as a result.  One error is not appreciating that people in the eighteenth century held many different views and distinguishing between statements that represented the zeitgeist of the time and those that represented minority views.  See, e.g., Don Higginbotham, The Second Amendment in Historical Context; Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism.

by Kevin Lanigan, Director of Law and Security Program, Human Rights First

[Editor's Note: this blog entry was written at Guantanamo Bay]

Two weeks ago, Attorney General Michael Mukasey visited Guantánamo for about six hours. Among other things, he met with prosecution officials down here, but he did not see any proceedings because none were in session. He should have been here yesterday.

On Wednesday, March 12, Mohammed Jawad, a young Afghan man, was arraigned on military commission charges enacted into law in 2006, accusing him of throwing a hand grenade into a vehicle carrying two U.S. Army non-commissioned officers and their Afghan interpreter, wounding all three of them. Jawad was 16 years old at the time of the alleged offense in December 2002. He has been in U.S. military custody ever since then—now for more than 5 years—first at the detention facility at Bagram Air Base in Afghanistan, and then at Guantánamo.

ACS released an Issue Brief today entitled “A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals,” by Anthony F. Renzo, Professor of Law at Vermont Law School.

Professor Renzo calls the Bush Administration’s claim of authority to subject civilians detained in the United States to trial by military commission unprecedented in scope and lacking in historical support. He explains that “[t]he Constitution places the power to punish a civilian for wrongdoing, including criminal conduct in support of enemy organizations, in the hands of an independent civilian court and jury.” 

Professor Renzo notes “[t]he very purpose of the original English common law right to trial by a civilian jury was to protect against the oppression of the King’s use of military courts and judges who owed their loyalty to the King.” He concludes that constitutional text and tradition require that civilians be provided with a civilian jury trial unless a civilian court determines that the detainee is “either under the command of the enemy’s armed forces or engaged in battlefield hostilities against American forces.” 

The Open Society Institute released a new report entitled "Moving Toward a More Integrative Approach to Justice Reform," which urges researchers, advocates, and policymakers to consciously connect the dots between unaddressed social conditions and entry into the criminal justice system.

Nkechi Taifa, A Senior Policy Analyst with OSI, writes "We must address the underlying social context if we are to break the cycle of incarceration before it begins. And this can only occur through a strategic multi-disciplinary collaboration that cuts across the disciplinary silos to which we have become accustomed."

The report:

• Advocates for increased interdisciplinary collaboration in research, advocacy, and policymaking to break the cycle of incarceration before it begins.
• Provides an in-depth analysis of the race and poverty dynamics of America's criminal justice system, and the various risk and protective factors for delinquent and criminal conduct.
• Describes conceptual approaches for understanding the cycle of incarceration and its impact on communities.
• Urges a shift in the policymaking paradigm from building more prisons and jails, to investing in "pre-entry" human service interventions to decrease the risk of crime.
• Presents eight recommendations for moving toward a more integrative approach to justice reform.

Proposed legislation in California seeks to prohibit the imposition of life in prison without parole for juveniles. The State Senate approved the measure 3-2, which will now go before the Senate Appropriations Committee. The U.S. is the only country to sentence 13- and 14-year-olds to life without parole.

The Supreme Court of Nebraska has struck down the use of the electric chair as a means of execution in that state. According to SCOTUSBlog, the court's ruling was based on an interpretation of a section of the state's constitution that is identical to the U.S. Constitution's Eighth Amendment.

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

[Editor's note: Earlier posts from Guantanamo can be found here and here.]

Hamdan to Request Transfer from Solitary Confinement

Guantánamo Naval Base, February 6—When I visited the headquarters of the U.S. Southern Command (SOUTHCOM) in November 2007 – the Pentagon’s combatant command under which U.S. forces at Guantánamo fall – a U.S. military officer there asserted that conditions at Guantánamo had improved significantly over the past year and now compare with the “best-run prisons” in the United States. Perhaps conditions have improved. But the vast majority of Guantánamo’s detainees are still housed in solitary confinement in Camps 5 and 6, under heavily restrictive conditions that may be harming their mental and physical health.

At a military commission pretrial hearing tomorrow, detainee Salim Ahmed Hamdan is expected to request a transfer out of Camp 5, where he has been held most recently for approximately six weeks. Hamdan is alleged to have served as bodyguard and driver for Osama bin Laden. He has been kept in solitary confinement at various points throughout his more than four years of detention at Guantánamo. Before Camp 5, he was held in solitary confinement in Camp 6 for nearly a year. Camps 5 and 6 are both maximum-security facilities where detainees are kept in small, single-occupancy cells with meals served through a slot. The cells in Camp 6 are completely cut off from natural light and air, and detainees are confined to their cells for up to 22 hours per day.

by Deborah Colson, Senior Associate in the Law and Security Program at Human Rights First

Attorney General Mukasey’s refusal this week to declare waterboarding illegal is still ringing in my ears as I prepare to board a military flight on Saturday en route to Guántanamo Bay. Waterboarding, which dates back to the Spanish Inquisition, causes the physical agony of drowning or suffocation, and creates a fear of imminent death. Our nation’s top military lawyers call it torture. So does former Homeland Security Secretary Tom Ridge. So does the director of national intelligence, Mike McConnell. And so even does Mr. Mukasey, were it to be performed on him. However, when asked about waterboarding others, Mr. Mukasey continues to equivocate.

Next Week’s Line Up

I am traveling to Guántanamo on behalf of Human Rights First to observe two military tribunal hearings. On Monday, February 4, proceedings continue in the case of Omar Khadr, a twenty-one year old Canadian accused of throwing a grenade that killed a U.S. solider in Afghanistan in 2002. On Thursday, February 7, a hearing will be held in the case of Yemeni national Salim Ahmed Hamdan, the alleged bodyguard and driver for Osama bin Laden.

Both men have repeatedly captured headlines. Khadr was a child soldier -- just fifteen years old -- when he was apprehended by the U.S. military, and he has spent more than a quarter of his life at Guántanamo, now in his sixth year there. Hamdan’s challenge to the original military commission process made it all the way to the Supreme Court, where he won.

The military commissions next week will consider the men’s legal motions.  Khadr has moved to dismiss his case on several grounds, including that he’s accused of murdering a soldier -- not a civilian -- and killing a combatant during armed conflict isn’t a crime. Khadr also contends that the other charges filed against him (conspiracy, providing material support for terrorism, and spying) are not crimes under the law of war and were not crimes under applicable U.S. law when he was on the battlefield.

Hamdan has sought access to other Guántanamo detainees who were previously in CIA custody and are currently being held in seclusion at a site called Camp 7.  

Using the example of the infamous convicted Georgia murderer Brian Nichols, Jeffrey Toobin examines the “troubling paradox” of death penalty jurisprudence:  the more heinous a crime and the more incontrovertible the evidence of guilt, the greater the cost to the defendant and, in cases of indigent defendants, the state.

In an unrelated death penalty case in Atlanta, a judge replaced the defendant’s two experienced private defense attorneys with local, less costly public defenders in an effort to solve funding problems. 

U.S. District Court Judge Richard Kopf published "The Top Ten Things I Learned from Apprendi, Blakely, Booker, Rita, Kimbrough and Gall" [PDF] as part of the inaugural online companion to the Ohio State Journal of Criminal Law, reported Law.com.

Item #3 on his top ten list: "Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t."

Here's the entire list.

(H/T Sentencing Law and Policy Blog)

An article in the ABA Journal reports on Dallas, Texas District Attorney Craig Watkins, who has hired a defense attorney to help free those wrongly convicted. Thus far, five people have been exonerated by DNA evidence since Watkins took office a year ago.

ACS co-hosted an all-day event last October on "The American Prosecutor: Power, Discretion, and Accountability," at which Watkins participated in a panel discussion on prosecutorial misconduct.

In a letter, Montana governor Brian Schweitzer declared his opposition to the federal REAL ID Act, calling on governors of 17 other states to join him in confronting the federal government. The Department of Homeland Security says that it will not accept driver’s licenses from non-complying states starting on May 11th.

If no resolution is reached, residents of those states would not be able to use their driver’s license to enter a federal courthouse or board a plane without a pat-down search. Over 20 states have already passed resolutions opposing the Act.

An indictment of Texas Supreme Court Justice David Medina and his wife for arson – along with at least 30 other unrelated indictments stemming from an alleged mortgage scam – was thrown out after an assistant district attorney improperly worded a request to extend the grand jury's term, but not before igniting a firestorm.

After a grand jury returned an indictment against Judge Medina, the Harris County District Attorney's office dropped the charges, claiming insufficient evidence to go to trial. The District Attorney, Chuck Rosenthal, is also under investigation for allegedly sending campaign-related, pornographic, and racist emails through his work email account as well as allegedly deleting 2,500 emails ordered released as part of a civil rights lawsuit against the county's Sherriff's Department.

After a decade, and the reversal of an ethics ruling, a Virginia criminal defense attorney revealed information that commuted the sentence of a death row prisoner to life in prison based on prosecutorial misconduct. 

Although the Virginia Bar in 1998 ruled that Leslie Smith, who had represented the prisoner’s co-defendant, could not ethically reveal exculpatory information because it would jeopardize the interests of his own client, he raised the issue again last year.  This time, the Bar's Ethics Counsel ruled that Smith was free to testify. 

C-SPAN3 will carry live coverage of a panel discussion on the destruction of the CIA interrogation videotapes and oversight of the war on terror. Follow the link to watch the streaming video online between 12-2 p.m.

The panel discussion, hosted by ACS, will examine the following questions:

• What crimes (obstruction of justice, perjury, conspiracy, etc.) have potentially been committed in the destruction of the tapes?
  
• Aside from the destruction of the tapes, what concerns are raised by the alleged contents of the tapes and the interrogation techniques documented?
  
• When is the appointment of a special counsel merited?
  
• More broadly, what significance does this situation hold for the larger conversation about oversight (including congressional oversight) of the intelligence community and oversight recommendations of the 9/11 Commission that remain unimplemented? 

• Moderator, Marty Lederman, Visiting Professor of Law, Georgetown University Law Center
• Dan Marcus, Fellow in Law and Government, American University Washington College of Law; former General Counsel of the 9/11 Commission
• Elisa Massimino, Washington Director, Human Rights First
• David Rivkin, Partner, Baker Hostetler
• Frederick "Fritz" Schwarz, Senior Counsel, Brennan Center for Justice at NYU Law School; formerly lead counsel for the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activity
  

Yesterday, the U.S. Supreme Court resolved a circuit split and held 5-4 that an exception to the Federal Torts Claim Act that grants immunity to "any officer of customs or excise or any other law enforcement officer" applies to "all law enforcement officers." Thus, under the majority opinion in Ali v. Federal Bureau of Prisons, written by Justice Thomas, law enforcement officers who steal prisoners' personal property while engaged in their official duties are immune from lawsuits brought by prison inmates.

The New York Times reported on the decision, and noted the unusual line-up of Justices as well the Court's internal disagreement regarding how to engage in statutory interpretation. The article highlighted Justice Kennedy's dissenting opinion, in which he wrote "the Court’s analysis cannot be squared with the longstanding recognition that a single word must not be read in isolation but instead defined by reference to its statutory context."

Today, Jose Padilla was sentenced to seventeen years in prison, far short of the prosecution's request of life in prison. Padilla had been held in a military brig in South Carolina for three and a half years as an "enemy combatant" before he was transferred to civil custody.

The Georgia Supreme Court heard argument regarding whether a state judge violated Georgia's Constitution when he banished a criminal defendant from all but one of the state's 159 counties, the Atlanta Journal Constitution reported. Georgia's Constitution forbids banishment from the state, and a 2006 law allows judges to banish defendants from at most one judicial circuit (which encompasses several counties).

The prosecution's failure to turn over (and the government's subsequent destruction of) CIA interrogation videotapes is insufficient grounds to overturn Jose Padilla's conviction, ruled U.S. District Court Judge Marcia Cooke of the Southern District of Florida on Monday, according to an article in the South Florida Sun-Sentinel. Defense lawyers argued that the tapes' destruction raised questions as to whether the prosecution turned over all potentially exculpatory evidence. Judge Cook's ruling was based on classified statements not provided to the defense.

Padilla recently filed a lawsuit against John Yoo, a former Justice Department attorney who provided the administration with legal justification for what he alleged was "unconstitutional confinement and 'gross physical and psychological abuse,'" under the theory that "a lawyer who gives the green light to clearly illegal conduct is an accomplice to that conduct," reported the New York Times.

The AP reports "telephone companies have cut off FBI wiretaps used to eavesdrop on suspected criminals because of the bureau's repeated failures to pay phone bills on time."

More than half of 990 bills to pay for telecommunication surveillance in five unidentified FBI field offices were not paid on time, the report shows.

An editorial in the New York Times comments that although some studies estimate that up to 5% of the two million Americans in prisons and jails are innocent, there are few procedures by which the wrongly convicted can exonerate themselves.

A Texas judge was so delighted last week to free a wrongly convicted inmate — after 27 years in prison — that the judge bought him a steak dinner and taught him how to use a cellphone to spread the news. The fact that this happened in Texas, famous for its draconian criminal punishments, was heartening. Most heartening of all was that Dallas County, where it occurred, is turning into a model for the rest of the nation in preserving potentially exonerating evidence in capital cases.

Two factors play a major role in exonerations: DNA evidence and an understanding of the unreliability of eyewitness accounts.

The hiring of former Attorney General John Ashcroft's consulting firm by a New Jersey U.S. Attorney Christopher J. Christie to monitor a large corporation's compliance with an out-of-court settlement has prompted a DoJ inquiry, the Washington Post reports. Ashcroft's firm would be paid $750,000 each month, plus expenses expected to total between $150,000 to $250,000 per month.

United States Attorney Christopher J. Christie, directed similar monitoring contracts last year to two other former Justice Department colleagues from the Bush administration, as well as to a former . . .  state attorney general in New Jersey. . . .

[A]ides to Attorney General Michael B. Mukasey were concerned about the appearance of favoritism. . . .

In the Bush administration, federal prosecutors have increasingly relied on out-of-court settlements with large corporations in criminal investigations that in the past might have resulted in indictments and trials. The settlements often call for outside lawyers to be retained by the companies to monitor the agreements. The contracts call for the lawyers to monitor the company’s compliance with the settlements through financial audits and other types of internal investigations.

In an editorial entitled "Stinting on Mercy," the Washington Post offered faint praise to President Bush for having "a modicum of courage and compassion" for granting the fifth commutation of a sentence since taking office in 2001, noting that "[t]here are thousands of prisoners rotting behind bars for nonviolent drug offenses. Surely some of them deserve at least as much mercy." Regarding the President's pardon of 29 federal convicts, the Post opined that the pardons "required no political courage."

Mr. Bush continues his run as one of the stingiest presidents in American history when it comes to pardons. Since taking office, he has granted 142; the only president with fewer was George H.W. Bush, who granted 74 pardons in four years in office. Compare that with the 396 pardons approved by Bill Clinton and the almost identical 393 by Ronald Reagan -- not a president known to be soft on crime.

ACS released an issue brief on "Reinventing the President's Pardon Power" in October. Written by Margaret Colgate Love, a former United States Pardon Attorney, the brief explores the historical context surrounding the pardon power, how it has fallen into disuse in the last few decades, and her belief that there should be a return to the regular use of the pardon power as it may be used effectively by presidents to do justice, to communicate a vision of criminal justice, to advance law reform, and to avoid infamy for making rare grants that the public perceives as favoritism.

On Tuesday, New York's Court of Appeals issued a 5-2 decision that held that a defendant can waive his right to have a 12-member jury in a criminal case, the New York Law Journal reported. This decision overturned the 1858 precedent Cancemi v. People.

The defendant had executed a written waiver of his right to a jury trial in open court, according to the article.

Today, New Jersey Governor Jon Corzine signed legislation that repealed New Jersey's death penalty.

New Jersey will soon become the first state in forty years to eliminate the death penalty, the Washington Post reported.

The U.S. Supreme Court will hear argument in Baze v. Rees in January on the constitutionality of lethal injection protocols. In the meantime, there appears to be a moratorium in many states on imposing the death penalty, pending the high court's decision.

The U.S. Sentencing Commission voted unanimously today to make retroactive its new crack guidelines, which reduced penalties for crack cocaine offenses. Ultimately, a federal sentencing judge would determine whether an offender is eligible for a lower sentence.

The decision will not take effect until March 3, 2008, so that courts may have time to prepare for these cases.

The Commission has continued to call on Congress to address the issue of the 100-to-1 statutory ratio that drives Federal cocaine sentencing policy. Only Congress can provide a comprehensive solution to a fundamental unfairness in Federal sentencing policy. The Commission has consistently expressed its readiness and willingness to work with Congress and others in the criminal justice community to address this very important issue.

Here's more coverage on the Sentencing Law and Policy Blog.  FAMM reacts here. The ABA had urged the Sentencing Commission to make the guidelines retroactive.

Yesterday, the Supreme Court ruled in two cases regarding sentencing guidelines. Mary Price of FAMM examined what's left after the Supreme Court decision in Kimbrough.

John Jerome White was freed from prison after a DNA test proved he did not commit a 1979 rape, the AP reports.

White is the seventh Georgia convict to be cleared by DNA evidence, said Aimee Maxwell, director of the Atlanta-based Georgia Innocence Project. In every case, the men were wrongly convicted on the basis of eyewitness accounts.

by Sahr MuhammedAlly, Senior Counsel with the Law & Security Program at Human Rights First, who is blogging from Guantanamo Bay (written on December 6)

Guantanamo Naval Base, Thursday, Dec. 6:  The military commission hearing of Salim Hamdan highlights yet another issue about what’s wrong with Guantanamo: a hearing involving an individual’s liberty is beholden to the logistical difficulties of transporting witnesses, defense counsel, prosecutors and judges, to this remote location. The hearing also showcased that, despite being a judicial proceeding, Washington and not a judge will have the final say on issues such as access to detainee witnesses. 

At record-breaking speed, Salim Ahmed Hamdan’s enemy status determination hearing was conducted. During the two-day marathon session, Navy Judge Keith Allred heard the prosecution’s evidence in support of its contention that Hamdan is an “unlawful enemy combatant,” and defense counsel’s arguments why Hamdan should be considered a POW under the Geneva Conventions and therefore not subject to the jurisdiction under the Military Commissions Act.

Day two started at 9:00 a.m. and ended at 11:30 p.m. Using one interpreter (the second was dismissed due to competence issues), Judge Allred heard detailed testimony from five witnesses as well as closing arguments—all in one day.

by Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums

Editor's Note: Kimbrough was decided by the Supreme Court yesterday. Coverage of that decision may be found here.

The United States Supreme Court’s opinion in Kimbrough v. United States, No. 06-6330, is a major sentencing law breakthrough and should be applauded, but it is not a cure-all. The 7-2 opinion allows judges to consider the Sentencing Commission’s criticism of the 100:1 powder/crack cocaine sentencing ratio and use that criticism to justify reducing a sentence for a crack offense below the applicable guideline sentence. After Kimbrough, judges must still consider the guideline sentence but can reduce a sentence below that if they find the guideline sentence is too harsh. 

Kimbrough comes on the eve of the Commission’s public meeting to decide whether its recent amendment lowering crack guideline sentences will be applied retroactively to 19,500 people sentenced before November 1, 2007. Assuming the Commission votes in favor of retroactivity, it is tempting to assume the diseased 100:1 ratio is cured. Nothing could be farther from the truth, because Kimbrough does not mend the broken mandatory minimum scheme that set the case into motion in the first place.

by Sahr MuhammedAlly, Senior Counsel with the Law & Security Program at Human Rights First, who is blogging from Guantanamo Bay (written on December 5)

Guantánamo Naval Base, Wednesday, December 5, 2007: A hearing began today to determine whether Salim Ahmed Hamdan is an “unlawful enemy combatant.” By the time this hearing finishes this presumably will be the first time a Military Commission will actually determine whether any Guantánamo detainee is in fact an unlawful enemy combatant subject to the Military Commissions Act (MCA).

We heard oral arguments today on the defense’s motion for a Geneva Convention “Article 5” hearing. The defense also moved to compel production of several witnesses for the MCA jurisdictional hearing to determine whether Hamdan is an “unlawful enemy combatant.”

Today, the Supreme Court issued opinions in three cases involving sentencing.

In a highly anticipated case, Kimbrough v. U.S., the Court held that federal sentencing guidelines for cocaine violations are advisory, not mandatory as a lower court had ruled. The 7-2 decision, in an opinion by Justice Ginsburg, says that judges must consider the guidelines, but may deviate downward if they conclude that the sentence would be too harsh in light of the disparity between punishment for crack cocaine and cocaine in powder form.

In Gall v. U.S., the Court held that courts of appeal must review all sentences, "whether inside, just outside, or significantly outside" the sentencing guidelines range, under a deferential abuse-of-discretion standard. Under the 7-2 decision, written by Justice Stevens, judges may now impose below-guidelines sentences.

Carol Steiker, professor of law at Harvard, evaluated Kimbrough and Gall at ACS' Supreme Court preview. Nkechi Taifa, Senior Policy Analyst at the Open Society Institute, wrote this issue brief on the crack/powder disparity. Mary Price, General Counsel at Families Against Mandatory Minimums, wrote this article on Kimbrough and U.S. Sentencing Guidelines for ACSBlog.

In the final case decided today, Watson v. U.S., the Court held that a person does not "use" a firearm under 18 U.S.C. § 924 when he receive the gun in trade for drugs, and thus does not satisfy the requirement for imposing a mandatory five-year federal sentence.

More information can be found on Scotusblog.

Last week, Adam Liptak profiled the case of 20-year-old Ryan Holle, who was sentenced to life without the possibility of parole in Florida after lending a car to a friend who used it to drive to a local marijuana dealer's home, where a burglary turned violent and the dealer’s daughter was murdered.  Holle was convicted of murder under a theory combining the felony murder rule with accomplice liability, what Liptak characterizes as "a distinctively American legal doctrine that makes accomplices as liable as the actual killer for murders committed during felonies like burglaries, rapes and robberies."

Earlier today, the Supreme Court heard oral argument in one of the Term's most widely-watched cases, Boumediene v. Bush (consolidated with Al Odah v. United States), concerning whether Guantanamo Bay detainees have a right to bring habeas challenges to their detention.

In the past several weeks, ACS has made available a range of materials to inform and educate observers of the cases:

A new report released yesterday by the Justice Policy Institute found that although African Americans and whites use and sell drugs at similar rates, African Americans are ten times more likely than whites to be imprisoned for drug offenses. In nearly all of the nation's large-population counties, African Americans were imprisoned for drug offenses at a higher rate than whites regardless of whether there was a higher crime rate, according to “The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics of Punitive Counties.”

The report concludes that drug laws are selectively enforced primarily on minorities and the poor. Researchers attributed disparate policing practices, disparate treatment before the courts, mandatory minimum drug sentencing laws, and differences in the availability of drug treatment for African Americans compared with whites as reasons for the significant racial disparities seen in drug imprisonment rates.

In Britain, a panel of experts will create guidance for juries regarding "how rape victims typically respond in an attempt to dispel 'rape myths' which ministers believe are contributing to plummeting conviction rates for the crime," according to the Guardian. The changes also allow victims to submit a videotaped interview with police for the initial evidence in court and will remote restrictions on the admissibility of hearsay evidence to permit what the victim confided to friends or relatives.

(H/T Feministing)

Titan Barksdale writes in the Raleigh News & Observer about how an attorney who revealed that his deceased client committed a murder – so as to exonerate another man who has served 21 years in prison –may lose his law license for the effort.

North Carolina public defender Staples Hughes disclosed that his former client, now deceased, who was charged in two murders, confessed 20 years earlier that he was solely responsible for the deaths. A co-defendant, Lee Hunt, was also convicted and sentenced to two terms of life in prison based upon the testimony of his co-defendants, who received immunity or reduced prison time for their testimony, and upon a now discredited form of bullet lead analysis.

After his former client's death and a court ruling in 2003 that held a judge can force a lawyer to reveal confidential statements from a dead client, Attorney Hughes revealed his knowledge to a lawyer who is now representing Hunt, and Hughes subsequently testified as to his deceased former client's confession before Judge Thompson. The Judge rejected Hughes's testimony and warned him that he would file a complaint against Hughes with the state bar for testifying. Hughes, who believes that his confidentiality obligation died with his client, has received a letter from the state bar regarding an ethics violation.

A North Carolina appellate court has refused to hear the case regarding Hunt's imprisonment, leaving only an appeal to the North Carolina Supreme Court.

Yesterday, the Washington Post editorialized in favor of the U.S. Sentencing Commission retroactively applying a reduction in penalties for crack cocaine offenses as bringing "some measure of equity to thousands of offenders . . . already serving unjustifiably long prison terms."

The editorial also criticized the disparity in sentences for persons arrested in possession of crack versus powder cocaine.

The New York Times reported over the Thanksgiving holiday on the challenges faced by men and women convicted of crimes and later exonerated by DNA evidence.

At least 205 men and one woman nationwide have been exonerated through DNA evidence since 1989, including 53 who, like Mr. Deskovic, were convicted of murder. In gathering information on 137 of them over the past four months — one of the most extensive such efforts to date — The New York Times found that many faced the same challenges Mr. Deskovic has confronted, like making a living, reconnecting with relatives and seeking financial recompense for his lost years.

A column by Adam Liptak in the New York Times examines the debate over whether the death penalty deters murders.

Joanna M. Shepherd, a law professor at Emory University School of Law who has a doctorate in economics and wrote or contributed to several death penalty studies, says:

“I am definitely against the death penalty on lots of different grounds . . . but I do believe that people respond to incentives.” She argues that for deterrence to work, a state cannot employ "a half-hearted execution program,” as evidence of a deterrent effect only appears in states that have had at least nine executions between 1977 and 1996.

Legal scholars and others criticize recent death penalty studies on the grounds that they are "based on faulty premises, insufficient data and flawed methodologies."

Professors John Donohue III, a Yale law professor with a doctorate in economics, and Justin Wolfers, an economist at the University of Pennsylvania, wrote in a 2005 Stanford Law Review article that "the evidence for deterrence is surprisingly fragile."

 “It seems unlikely that any study based only on recent U.S. data can find a reliable link between homicide and execution rates.”

The professors point out that "Canada has executed no one since 1962. Yet the murder rates in the United States and Canada have moved in close parallel since then, including before, during and after the four-year death penalty moratorium in the United States in the 1970s."

Margo Schlanger, professor of law at Washington University in St. Louis School of Law, testified on November 8 before the House Committee on the Judiciary regarding the proposed Prison Abuse Remedies Act (PARA) of 2007. The bill would amend the Prison Litigation Reform Act (PLRA), which Schlanger characterized as "prevent[ing] inmates from raising legitimate claims" despite its success in "lightening . . . the burdens imposes on jails and prisons by frivolous litigation."

In March 2007, Professor Schlanger and Professor Giovanna Shay (now assistant professor of law at Western New England College of Law) wrote an issue brief released by ACS entitled “Preserving the Rule of Law in America’s Prisons: The Case for Amending the Prison Litigation Reform Act (PLRA).”  In the brief, they explained how "courts have struggled to implement the statute and [that the statute] has been the subject of six Supreme Court decisions," arguing "the PLRA is undermining the rule of law in America’s prisons, even as those prisons have grown in their importance."

Professor Shay describes the proposed legislation as "designed to reverse unintended consequences (and excesses) of the PLRA, while maintaining the PLRA's core purpose of combating frivolous inmate litigation."

She adds:

The U.S. Court of Appeals for the 11th Circuit upheld a grant of summary judgment that held a teacher who choked an eighth-grade boy did not violate the 14-year-old's civil rights because her action did not constitute unconstitutionally excessive corporal punishment, according to the Fulton County Daily Report.

The three judge panel noted that the record was unclear as to the extent to which the teacher choked the student, although police observed blue and red bruises as well as a scratch on his neck. The opinion noted that "given that the extent of the student's injury was no worse than that suffered under more traditional forms of corporal punishment like paddling, we conclude the amount of force used here was reasonably related to the need for punishment."

The plaintiff plans on appealing.

The New York Times reports that "crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect" on Thursday.

The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines.

The Times adds that "once the new guidelines were adopted it became the [sentencing] commission’s sole decision to apply the new rules retroactively or not."

The U.S. Supreme Court heard argument in Kimbrough v. U.S. on October 2, which Professor Carol Steiker previewed here. Mary Price of FAMM wrote an op-ed on ACSBlog regarding the disparity here.

Linda Greenhouse in the New York Times reports that a grant of stay of execution last night "gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring."

The Supreme Court’s action on Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be delayed.

State and lower federal courts are likely to interpret the Supreme Court’s action as a signal that they should postpone executions in their jurisdictions. As a result, the justices will probably not have to consider any more last-minute applications from inmates while the de facto moratorium is in effect.

Last Friday, ACS and the American University Washington College of Law held a conference entitled "The American Prosecutor: Power, Discretion and Accountability." The agenda is available here.

C-Span covered the event, and a two-hour video excerpt from the conference is available here.

The U.S. Supreme Court will hear argument in five cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library.

Monday, Oct. 29

• Klein v. Bd. Of Trade (commodities futures trading market)
• Ali v. Fed. Bureau of Prisons (scope of FTCA waiver of sovereign immunity)

 Tuesday, Oct. 30

• U.S. v. Williams (validity of anti-simulated child pornography pandering law)
• Logan v. U.S. (whether action counts towards sentence enhancement)

 Wednesday, Oct. 31

• Danforth v. Minnesota (whether state courts may apply broader retroactivity standards than the supreme court)

 Questions Presented are below the fold.

A new report published by the American Bar Association found "substantial shortcomings in [Pennsylvania's] death penalty system that make it fail to adequately protect against the wrongful conviction of innocent people or to adequately ensure the fairness of the system for people accused or convicted of capital crimes."

Today, ACS released an issue brief entitled "Reinventing the President's Pardon Power" by former United States Pardon Attorney Margaret Colgate Love. She asks:

How is it tolerable, in a democracy, for the president to be able to reach into the machinery of criminal justice to pluck out one of his close associates, particularly if ordinary people have no hope of similar favor? The answer is, it isn't. The president's constitutional pardon power was never supported to be used the way it was in the Libby case, and in our country's history it rarely has been.

by Mary Price, Vice President and General Counsel, Families Against Mandatory Minimums

Editor's Note: Kimbrough was argued before the Supreme Court yesterday. A transcript of the argument and video from ACS' Supreme Court Preview on the sentencing guidelines is available here.

There is heightened anticipation among those interested in criminal justice that the United States Supreme Court, in Kimbrough v United States, will allow judges to disregard the federal sentencing guidelines that can punish low-level crack cocaine offenders far more seriously than their high-level powder cocaine suppliers, so long as the judge determines the resulting sentence is greater than necessary to achieve the goals of sentencing. Judges may so conclude because the guidelines equate 1 gram of crack cocaine with 100 grams of powder cocaine even though the two drugs are virtually indistinguishable. While the Court decision holds critical implications for judicial independence and may even shorten prison time for some offenders, the outcome will not substantively address the incredibly inequitable crack cocaine mandatory minimum set by Congress. Only Congress can fix the mandatory minimum crack cocaine penalty structure.

In 2005, Derrick Kimbrough pled guilty to distributing 50 or more grams of crack cocaine, distributing cocaine, conspiring to distribute 50 grams of crack cocaine, and possession of a firearm in connection with a drug-trafficking crime. If sentenced according to federal sentencing guidelines, Kimbrough would have received between 228 and 270 months for his crimes. Judge Raymond Jackson of the United State District Court for the Eastern District of Virginia found that the sentence mandated by the guideline was too harsh after weighing other factors, including Kimbrough’s honorable discharge from the armed forces and his limited criminal record only marked by misdemeanors. (Petitioner’s Brief) Instead, Judge Jackson sentenced Kimbrough to 180 months in prison, the mandatory minimum sentence he was required to impose. The prosecution successfully appealed the ruling because the sentence fell below the minimum prescribed by the Federal Sentencing Guidelines.

Yesterday, the U.S. Supreme Court heard arguments to determine to what extent district courts can take into account disagreement with the 100:1 ratio when sentencing defendants under the guidelines for crack cocaine offenses. What the Court cannot and did not consider is if a judge must abide by mandatory minimums. They must, until Congress reforms the law.

This morning the Supreme Court heard arguments in Gall v. U.S. and Kimbrough v. U.S., two cases regarding federal sentencing guidelines. (Transcripts of arguments here and here.)

Carol Steiker, professor of law at Harvard University, evaluated these cases at ACS' Supreme Court Preview on Wednesday.

Professor Steiker discusses how judges from across the ideological spectrum reject the sentencing guidelines' harshness.

Tomorrow, the U.S. Supreme Court will consider Gall and Kimbrough, two cases regarding federal sentencing. Denver University Law Review just released a survey on federal sentencing in time for the arguments before the Court.

Articles after the jump.

Yesterday, The Wall Street Journal reported on a dispute between the chief military prosecutor at Guantanamo Bay and the Pentagon official serving as legal adviser to the trial's administrator, former military judge Susan Crawford. The prosecutor, Air Force Colonel Morris Davis, has reportedly filed a formal complaint against Brigadier General Thomas Hartmann, alleging that Hartmann has exceeded his authority in attempting to influence prosecutorial decisions despite his role of providing impartial legal advice to Crawford. 

While Col. Davis recovered from recent surgery, Gen. Hartmann reportedly commandeered the prosecution office, directing increased focus on high-profile cases calculated to build public support for the tribunal system despite involving closed proceedings. In contrast, Davis has focused on cases relying on unclassified evidence in order to address criticism of secret proceedings by opening tribunals to the press. According to Morris, who has led the prosecutor's office since 2005, "If someone above me tries to intimidate me in determining who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution then I will resign."

Today, The Hill reports that Defense Secretary Robert Gates has been frustrated in his attempts to gain a consensus within the Administration about how to close the detention facilities at Guantanamo Bay, but reiterated his aim to do so to Senator Tom Harkin (D-IA) at a recent Senate hearing.

by Martin Magnusson, Editor-At -Large for Criminal Justice

This summer, a gruesome crime shocked the small town of Cheshire, Connecticut. In the early morning hours of July 18, two men invaded the Petit family home. The two men held the Petit family hostage for several hours, robbed them, and killed three of them. The sole surviver was the family father. In the small state of Connecticut, it was one of the most heinous crimes in recent memory.

The Cheshire home invasion left many Connecticut residents concerned for their safety as well as that of their family members. Gun sales increased and the interest in installing security systems skyrocketed. Many Connecticut residents also sought to protect themselves and their loved ones through an online petition asking the state legislature to pass a “three strikes” law. More than 42,000 people have signed this petition thus far. The proposed law would eliminate judicial discretion and require life imprisonment for a third serious felony conviction.

The New York Times editorial page recently contended that such habitual offender laws comprise a misguided attempt at replacing discretion with hard-line rules:

The appeal of a “three strikes and you're out” law is understandable, but these laws have proven to be blunt instruments that cause more injustice than they prevent. In California, which has a particularly draconian law, a man who shoplifted $153.54 worth of videotapes was sent to jail for 50 years. These laws are not only overly harsh. They are enormously expensive, because of all of the prison cells that are needed to warehouse minor criminals who pose little threat to society, many of whom are elderly by the end of their sentence.

The American Bar Association is urging the U.S. Sentencing Commission to "modestly reduce offense levels across the board for crack cocaine " as an "interim measure to alleviate the 'urgent and compelling' problems associated with the 100-to-1 crack-to-powder ratio," reports the Sentencing Law and Policy blog.

Since 1995, the Sentencing Commission has consistently taken the position that the 100:1 ratio was unwarranted from its inception, and has a racially disparate impact.  The Reason for the May 11, 2007 Amendment notes that the Commission set drug quantity thresholds to produce base offense levels corresponding to guideline ranges above the statutory mandatory minimum penalties.

The amendments to the drug guidelines related to LSD, marijuana, and oxycodone and made retroactive have generally benefited caucasian defendants. Given the racially disparate impact of the 100:1 ratio and the public perception that our drug laws are racially discriminatory, making this amendment retroactive is the only fair and principled course.

The recommendations are available here (.doc file to download).

Scott Lemieux at Lawyers, Guns and Money takes issue with the "idea that Congress should be bound by the "original intent" of past laws."

ABC News reported "Plans by a Christian group to send an evangelical video game to U.S. troops in Iraq were abruptly halted yesterday by the Department of Defense after ABC News inquired about the program." (H/T Religion Clause) From RC:

The Department of Defense has stopped plans by a Christian evangelical group to send soldiers in Iraq a video game in which Christian believers fight the Antichrist in the Battle of Armageddon.

Joby Warrick of the Washington Post reports the "domestic use of spy satellites to widen."

The Bush administration has approved a plan to expand domestic access to some of the most powerful tools of 21st-century spycraft, giving law enforcement officials and others the ability to view data obtained from satellite and aircraft sensors that can see through cloud cover and even penetrate buildings and underground bunkers.

A program approved by the Office of the Director of National Intelligence and the will allow broader domestic use of secret overhead imagery beginning as early as this fall, with the expectation that state and local law enforcement officials will eventually be able to tap into technology once largely restricted to foreign surveillance. . . .

A statement issued yesterday by the Department of Homeland Security said that officials envision "more robust access" not only to imagery but also to "the collection, analysis and production skills and capabilities of the intelligence community. . . ."

Erwin Chemerinsky wrote an op-ed in the Los Angeles Times calling on "California [to] reject the U.S. attorney general's effort to bend death penalty rules." (H/T How Appealing)

Gonzales, it has been widely reported, is about to certify California and other states as being in compliance with the 1996 law, in essence just giving them the six-month statute of limitations. But these states have done nothing that this law requires. Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise). Any "certification" is a lie.