A Criminal Enterprise

Sentencing Law & Policy Blog Features Rob’s Piece on “The Racial Geography of the Federal Death Penalty”

Posted in Uncategorized by Bidish J. Sarma on February 9, 2010

The piece, co-authored by blog contributor Rob Smith and attorney G. Ben Cohen, is available on SSRN.  Professor Berman at Sentencing Law & Policy recently spotlighted the piece here.

The abstract states:

Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims.  This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities.  Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences.  By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury.  This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers – a discussion begun well before the founding of our Constitution — continues to have relevance today.

After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization.  We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole.  Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.

The piece poses a lot of interesting questions about race, federalism, jury selection, and the geographic arbitrariness of the death penalty.  As always, we invite commentary and discussion here.

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This Week at the Supreme Court

Posted in Cases, News by Bidish J. Sarma on October 13, 2009

This Tuesday and Wednesday, I’ll be watching four oral arguments at the Supreme Court (assuming I can get in line earlier enough both mornings).

Professor Berman the Sentencing Law and Policy blog notes in this post that it will be a big week for sentencing followers:

As detailed in this SCOTUSblog post and in this CrimProf post, the Supreme Court is hearing oral argument on three notable sentencing-related cases during this abbreviated week.  Specifically, these three (of my list of top 10) sentencing cases to watch this term are to be argued in the next two days (with links and descriptions from SCOTUSwiki):

To be argued Tuesday, October 13:

To be argued Wednesday, October 14:

  • Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime

I suspect that Spisak and Alvarez might get the most press attention, but I think Padillais the case that could prove to be the most consequential.  All three cases are likely to be quite significant if the Justices ultimately resolve them in “big” ways; all three may well be forgotten before long if the Justices embrace a minimalist approach to their decision-making.   As always, I heartily welcome and encourage pre-argument predictions and punditry on any or all of these SCOTUS cases in the comments.

Court-Watching: Maryland v. Shatzer

Posted in Cases, News by Bidish J. Sarma on October 6, 2009

Today was the first day of the Supreme Court’s October Term.  According to SCOTUSblog, the Court postponed the first scheduled argument of the Term – South Carolina v. North Carolina – because the two lawyers slated to argue the case both had family emergencies.  Unfortunately, I wasn’t able to get inside the Supreme Court for the case I really wanted to watch today – Maryland v. Shatzer. (I learned my lesson… don’t use the Court’s restroom before getting a card with a number to save your spot in the line).  However, I did see almost all of the second argument in Mohawk Industries, Inc. v. Carpenter.  I will write a brief post on my initial impressions of the Carpenter argument later.  I’ve reviewed the transcript from Maryland v. Shatzer, so I will share some of my observations from that here.

In Shatzer, the Supreme Court must decide whether Edwards v. Arizona – which bars police from initiating questioning with criminal suspects who have invoked their (Miranda) right to counsel at interrogation – applies to an interrogation that takes place nearly three years after the invocation.  The case presents unique facts that test will test the Court’s willingness to enforce the bright-line rules announced in Miranda and Edwards.  In 2003, the police suspected Michael Shatzer, Sr. of sexually abusing his then three year-old son.  When approached by a detective, Shatzer, who was incarcerated on another unrelated offense at the time of the interrogation, said that he would not talk to the police without a lawyer.  The detective terminated the interview.  The police shortly thereafter closed the sexual abuse investigation.  In 2006 — three years later — the police re-opened the investigation because the alleged victim was able to make more specific allegations.  At this time, the defendant waived his Miranda rights and gave a statement.  The court below ruled that the statement could not be introduced at trial.

At oral argument, the State of Maryland took the position that a “break in custody” should allow police to re-initiate questioning without providing a lawyer to the defendant who requested one:

CHIEF JUSTICE ROBERTS: Without regard to the time? A break in custody of one day, do you think that should be enough?

MR. GANSLER: Your Honor, we do think one day should be enough, as long as it is not in the pretrial detention category.

Notably, the State defined “custody” narrowly to mean custodial interrogation: “But the break in custody for Edwards purposes ought to end at the end of the interrogation.”  On this theory, it did not matter that Shatzer was incarcerated the entire time between interrogations because correctional custody is different from interrogatorial custody.  Justice Sotomayor seemed troubled by this thin distinction.

It seemed to me that the State took a stronger position than the case’s facts demanded, perhaps because it sensed that this conservative Court will strike at Miranda and other cases that protect criminal defendants’ Fifth Amendment rights:

“In other words, the police don’t have to get somebody a lawyer. Whether or not somebody has the opportunity to consult a lawyer or not, as long as they are provided with their Miranda rights, the Miranda rights themselves are the protection that the defendant has.”

[**THIS PARAGRAPH HAS BEEN EDITED**] This position strikes me as fairly remarkable.  The State actually claimed that the defendant has the burden to get a lawyer in the Fifth Amendment context, even if he is locked down in prison.  Although it is true that the State does not need to get the defendant a lawyer in the Fifth Amendment context (before indictment), the State must ensure the defendant has met with a lawyer before it initiates another interrogation.

The United States also argued on behalf of the State of Maryland.  The U.S. argued that suppression of the statement here would not fulfill the anti-badgering premise that underlies Edwards.  As the advocate said,

“And I think the fact that the Maryland Court of Appeals in this case concluded that two years and seven months is covered by an anti-badgering rule just shows at some point how far this has departed from the original purposes of Edwards in the first place.”

Sotomayor indicated that she had a broader view of the Edwards rule than the Government:

“there were two aspects to Edwards. One was the coercion, but the other was the respect for the advisement of counsel. And so the test that you are proposing only addresses the coercion prong of it, not the respect for the invocation of counsel.”

The Respondent argued for a strict and robust reading of the Edwards rule.  In response to an extreme hypothetical posed by Alito, Shatzer’s lawyer said that a Fifth Amendment request for counsel would preclude the police from questioning the defendant 10 years later on another charge altogether.  Though this seems like a ridiculous result on its face, Shatzer’s lawyer later pointed out that the problem would be alleviated altogether if the State actually provided counsel to the defendant as promised.  Quite easily done.  Justice Scalia proposed another elegant solution to Alito’s damning hypothetical: “What if — what if we limited Edwards to the same crime? That would — that would really make it much easier . . . .”  The Respondent agreed that this suggestion would clear up many problems in the current doctrine (this agreement can’t prejudice the defendant because such a solution would also protect the defendant’s right in this case).

It will be interesting to see how the Court resolves the issues presented here.  It seems like there are three main questions that linger after the argument: (1) does a break in custody suffice to negate an Edwards invocation?; (2) will the Court set a specific period of time (for example, seven days) after which an Edwards invocation presumptively expires?; and, (3) will the Court limit the scope of an Edwards invocation to the specific case the police are investigating?

What To Look For in the Coming Term – a Brief Preview of the Supreme Court’s Criminal Caseload

Posted in Cases, News by Bidish J. Sarma on September 2, 2009

Rob and I will provide detailed analyses of many of the criminal cases that the Court is set to hear this term.  But, first, here is an overview of what’s on the schedule.  To this point, the Court has granted certiorari in 19 cases that impact the rights of criminal defendants.  Though new themes may emerge as the Court grants more Petitions early in the term, the Court is set to make key decisions in the follow areas of constitutional criminal law and procedure:

Prophylactic Rules to Protect the Suspect’s Fifth Amendment Rights: Whittling Away

As last term’s decision in Montejo v. Louisiana demonstrates, some members of the Court are openly hostile to “prophylactic” Fifth and Sixth Amendment protections.  This term, the Roberts Court may be setting itself up for a future raid on the Warren Court’s treasure chest. If so, the death by a thousand cuts starts with two important Fifth Amendment cases that could fundamentally alter the scope of constitutional protection afforded to individuals whom the State decides to interrogate.

  • Florida v. Powell – the question presented here is whether, under Miranda, a suspect must be expressly advised of his right to counsel during custodial interrogation.  When the police interrogated Powell at the police department, they informed him that he had the right to an attorney “before answering” any questions.  The Florida Supreme Court affirmed the district court’s ruling that Miranda requires the police to advise a suspect specifically that he can have an attorney present during the interrogation.  The Court granted the State’s petition for certiorari.

  • Maryland v. Shatzer – this case requires the Court to decide whether its decision in Edwards v. Arizona, which prohibits the police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to an interrogation that takes place nearly three years after the invocation.  Before Edwards, the police could re-approach suspects who had previously invoked their Miranda rights and asked for an attorney.  Noting the immense coercive pressure the State can bring to bear upon suspects, the Supreme Court decided that the police could not re-initiate the interrogation of someone who has asked for a lawyer.  In Shatzer, the Court confronts a unique fact pattern, detailed here.  The extreme facts give the Court a vehicle to criticize Edwards’s wisdom and to limit Miranda’s reach.

Eighth Amendment Sentencing: Are Juveniles – Who Cannot Be Executed Under Roper v. Simmons — Also Different in the non-Capital Context?

Two cases present the Court with the question of whether life without parole sentences for juveniles who commit non-homicide crimes are unconstitutional under the Eighth Amendment.  I wrote about these cases – Graham v. Florida and Sullivan v. Floridahere.

Prosecutorial (Mis)Conduct: What Happens if the Prosecutor Crosses the Line?

The Court has agreed to decide two different cases that touch on what happens when the prosecutor intentionally engages in questionable behavior.  These cases emerge from very different postures, but both raise interesting questions:

  • Pottawattamie County v. McGhee – this case asks whether a prosecutor can be subjected to a lawsuit for civil damages for wrongful conviction and incarceration where the prosecutor knowingly elicits false testimony during a criminal investigation, and introduces that testimony against the criminal defendant at trial.  The outcome will depend on whether the Court views the procurement of false testimony to be a constitutional violation, and whether it finds that the prosecutors enjoy absolute prosecutorial immunity.
  • McDaniel v. Brown – the legal question presented is whether the evidence presented at the defendant’s trial was insufficient to support the conviction.  As SCOTUSblog states here, “[a]t the heart of McDaniel v. Brown is the ‘prosecutor’s fallacy,’ a trial error in which the prosecution equates the probability of the defendant’s DNA randomly matching the DNA found at the crime scene with the probability of the defendant’s innocence.”  The Ninth Circuit ruled in the defendant’s favor, and the Court granted the State of Nevada’s petition for cert.  As this Crime & Consequences post explains, the decision may turn on rules about what kind of evidence federal courts can rely upon when reviewing claims in federal postconviction.

The Sixth Amendment Confrontation Clause: Managing the Fallout from Crawford

Last term, in Melendez Diaz v. Massachusetts, an opinion which created a stir among prosecutors, Justice Scalia built upon his landmark Crawford opinion to explain that defendants cannot be denied the right to confront those individuals who create the lab reports in State crime labs.  This term, the Court has taken a case that may significantly limit Melendez-Diaz’s scope.  Briscoe v. Virginia asks the Court whether – if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis without presenting the testimony of the analyst who prepared the certificate – the state avoids violating a Sixth Amendment Confrontation Clause violation by providing that the accused has a right to call the analyst as his own witness?  SCOTUSblog posted a thoughtful analysis of the issue here.