The Supreme Court's Kimbrough decision should have put an end to the argument that federal judges must impose sentences that treat crack cocaine as 100 times worse than powder cocaine by regarding a gram of crack as the equivalent of 100 grams of powder. Kimbrough held that judges are entitled to disagree with that Congressional policy -- a policy that most reasonable people regard as unwise and that even the Sentencing Commission rejects.

Some federal courts have nonetheless stubbornly clung to their own precedent, refusing to give effect to Kimbrough's holding. In a particularly egregious example, the Eighth Circuit vacated a sentence because it believed the judge had no power to substitute a 20:1 crack-to-powder ratio for the 100:1 ratio. After the Supreme Court ordered the Eighth Circuit to reconsider its decision in light of Kimbrough, it reached the same decision.

Today the Supreme Court delivered a smack down to the Eighth Circuit. [more ...]

Another decision causing one to rue the day Justice Sam Alito made it to the Supreme Court: Pearson et. al. v. Callahan (pdf).

Although the opinion was unanimous, it is authored by Justice Alito, who in his fervor to protect police officers from liability when they violate someone's fourth amendment rights, throws precedent out the window, saying it's okay to ignore it. At least, that's my take.

Even worse, the case was from my own circuit which has held that "consent once removed" doesn't apply to snitches, only to undercover officers. Alito says because at the time of the search, two states and three other federal districts had ruled differently, the cops were entitled to rely on those rulings since their own circuit hadn't yet ruled at the time. And, he writes, the legal test established by the Supreme Court for determining whether immunity applies isn't mandatory for courts to follow. [More..]

Judge Colleen Kollar-Kotelly issued a decision today rejecting the Justice Department's "constantly shifting arguments" in defense of Dick Cheney's narrow interpretation of the vice president's obligation to comply with the Presidential Records Act. The Justice Department argued that the vice president has complete and unreviewable authority to decide how to comply with the Act, that the Act did not apply to the vice president in any event since the vice president is not part of the executive branch but is an "appendage" of Congress (sort of a cancerous growth, in Cheney's case), and that the historians who sued to seek the law's enforcement lacked standing. Wrong on all counts.

What sounds like a victory may turn out to be hollow when historians finally gain access to Cheney's records. Judge Kollar-Kotelly decided that the promise of Claire O'Donnell, "a Cheney aide who handles record-keeping and other administrative tasks," to transfer Cheney's records to the National Archives in good faith, made court-imposed relief unnecessary.

[more ...]

Law Prof Glenn Reynolds, aka Instapundit, has an excellent op-ed today in the New York Post criticizing the Supreme Court's decision yesterday in Herring (background here), restricting the exclusionary rule.

How many times have we all heard "ignorance of the law is not a defense?" With this opinion, the Supreme Court is saying this rule applies only to citizens, not to police.

You can see their reasoning. Herring's a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?

Except that the rest of us enjoy no such immunity.
....Likewise, police are given a pass, under the doctrine of "good faith immunity," from having to understand the intricacies of suspects' constitutional rights: A right must be clearly established before an officer is liable for violating it, apparently on the theory that constitutional law is just too confusing for police.

[More...

In a 5-4 decision today, the Supreme Court further eroded our Fourth Amendment protections by holding that the exclusionary rule does not apply to searches that follow an unlawful arrest pursuant to a warrant that, although withdrawn, still appears to be active in police databases. On its surface the result seems reasonable -- the police do not deliberately violate rights when they make arrests in the good faith belief that their databases are accurate -- but in practice the decision will lead to pernicious results.

The problem that the decision addresses is not uncommon. Warrants are issued for all sorts of reasons (including missed court appearances and failures to pay fines) and are routinely withdrawn when the reason for their issuance is rectified (the defendant appears in court or pays the fine). But since databases are not centralized, a police database of outstanding warrants is frequently populated with warrants that are no longer active. Individuals are routinely arrested in the belief that a warrant is outstanding, only to be released when the court verifies that the warrant has been withdrawn.

The Supreme Court's decision gives the police little incentive to keep their databases up to date and thus encourages wrongful arrests. [more ...]

In a unanimous panel decision, the Fourth Circuit Court of Appeals struck down 18 U.S.C. 4248, which authorized the indefinite civil commitment of individuals whom the Bureau of Prisons deemed "sexually dangerous." The appeals court relied heavily on United States v. Morrison and United States v. Lopez, and upheld the district court ruling which stated that Congress lacked the enumerated power to encroach on the general mental health and police powers reserved to the states.

After carefully considering the Government’s arguments, we conclude, for the reasons set forth below, that § 4248 does indeed lie beyond the scope of Congress’s authority. The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law. We therefore affirm the judgment of the district court.

The opinion (available here (pdf)) represents the first circuit court opinion to rule on the constitutionality of 18 U.S.C. 4248. District courts addressing it have been divided.

Congrats to the Federal Defenders in Raleigh, NC who presented the successful challenge.

A troubling trend that vexes those of us who believe the police should prevent or solve crimes, not manufacture them, is the detective sitting in a chat room posing as a 15 year old waiting to engage in salacious conversation with an adult. Courts have typically held that an adult who travels to meet the "15 year old" for a sexual encounter can be charged with attempted sexual assault of a minor, even though the defendant never chatted with a minor and no actual minor was ever at risk.

The Indiana Court of Appeals recently bucked that trend.

The court has ruled that two types of felony charges police had been using against sexual predators accused of luring underage victims via Internet "chat rooms" can't be leveled when the person at the other end of a "chat" is an undercover police officer, and not an actual child, The Indianapolis Star reported Sunday.

[more ...]

While conceding that she had no reason to believe the City of Boston had acted improperly, Judge Nancy Gertner (among the best and brightest of the federal district court judges) wondered aloud whether plans to deport Ulysses Rodriguez Charles to Trinidad in the near future were "somehow related" to his lawsuit against the Boston Police Department for his wrongful conviction. The lawsuit is scheduled to go to trial in April but immigration authorities seem determined to spirit Charles out of the country before he has a chance to see a jury.

The City's lawyer worked up a show of indignation "that Gertner disparaged his client by voicing 'wholly unfounded suspicions' that federal immigration authorities might have colluded with the city to try to deport Charles before his trial." The lawyer, John Roache, asked Gertner to recuse herself. Gertner declined after reminding the lawyer of her repeated statements that she had no reason to suspect collusion. Her comments instead raised a legitimate question about the timing of the federal government's deportation decision in light of her request to delay deportation so that Charles could have his day in court.

[more ...]

The United States Supreme Court is usually inclined to let states police their own courts, but West Virginia is plainly out of control.

Don Blankenship, the chief executive of Massey Energy Co., spent more than $3 million to help elect Justice Brent Benjamin to the West Virginia high court. Benjamin twice was part of 3-2 majorities that threw out a verdict in favor of Harman Mining Co. in its coal contract dispute with Massey.

The case on which Benjamin's vote provided Massey the margin of victory saved Massey $50 million. Not bad for a $3 million investment. [more ...]

U.S. Rep. Danny Davis had his day in court. Traffic court. In Cook County.

Cook County Circuit Court Judge Martin Coghlan said he dismissed the case because the alleged violation didn't make sense. Police have said they pulled Davis over on Nov. 19 of last year because he swerved over the center line. But Coghlan said crossing the center line was necessary to make the left turn described by a police officer in court.

Davis was ticketed while driving home from his Sunday night radio talk show with three black passengers. Before the trial, Davis accused the police of racial profiling. After Judge Coghlan acquitted him, Davis was more conciliatory, as befits a politician.

Very little is more prejudicial in the penalty phase of a death case than a video of the victim's life set to music. Juries are instructed to base their decisions on reason rather than emotion, and then view a video, on a larger than life screen, depicting images of the victim and events in his or her life, as prepared by their family, set to music.

Today, the Supreme Court refused to reject the practice in two cases.

The order Monday comes in two California cases in which jurors were shown video montages of the victims' lives, in one instance set to music by Enya.

Three justices disagreed with the ruling: Stephen Breyer, David Souter and John Paul Stevens. Justice Stevens' statement is here (pdf.)

"The videos added nothing relevant to the jury's deliberations and invited a verdict based on sentiment, rather than reasoned judgment," Stevens said.

You can watch one of the videos here.

A judge in Missouri has blocked rules requiring sex offenders to stay home on Halloween and refrain from Halloween-related activity with children

The judge, Carol E. Jackson, of United States District Court in St. Louis, said the law was unclear, questioning language that prohibits “all Halloween-related contact with children” and allows sexual offenders to leave their homes from 5 p.m. to 10:30 p.m. only if they have “just cause.”

Two issues raised by the case were whether sexual offenders could celebrate the holiday with their own children or grandchildren, for example by hanging decorations or carving pumpkins, and on what grounds they could leave home during the curfew.

The judge upheld two other provisions. One requires sex offenders to post a sign that says "no candy or treats at this residence." The other requires them to keep the porch lights turned off.

[More...]