According due process of the law to death row inmates in Missouri is apparently a difficult constitutional mandate to embrace, at least for some state attorneys charged with carrying out death penalty sentences.
In a piece for The Atlantic, Andrew Cohen detailed the execution of Herbert Smulls earlier this year, where state officials ignored repeated requests by defense attorneys to wait for the appeals process to expire before executing Smulls. The defense attorneys’ efforts were futile. As Cohen reports the state initiated the “lethal injection protocols” before the U.S. Supreme Court took action on Smulls’ final appeal for a stay of execution. “Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him,” Cohen reported.
Rust-Tierney’s concern is well grounded. As Cohen notes, U.S. Court of Appeals for the Eighth Circuit Judge Kermit Bye, as well as other federal court judges, have previously raised concerns about Missouri’s history of carrying out the death penalty.
In late December, Judge Bye lodged a stinging dissent to an amended order in a case involving Missouri’s execution of Allen L. Nicklasson. A petition for the entire Eight Circuit to consider a stay of Nicklasson’s execution was declared moot, since the litigant, Nicklasson, had already been executed.
Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, released a statement praising the Senate Judiciary Committee for its favorable report of Debo Adegbile to be the Assistant Attorney General in the Department of Justice's Civil Rights Division. In the statement, Ifill says Adegbile “has precisely the type of broad civil rights experience that is required at this pivotal moment in our country.”
Last summer, the U.S. Supreme Court struck down a key provision of the Voting Rights Act that required federal review of voting laws in states with a history of voter discrimination. Adam Ragusea of NPR reports from Macon, Georgia on the repercussions felt by the city’s minority voters.
Human Rights Watch explores the legal and ethical implications of a growing trend among probation companies to “act more like abusive debt collectors than probation officers.”
by Robert L. Weinberg, Adjunct Faculty, George Washington University Law School and University of Virginia School of Law; former President, District of Columbia Bar; former Partner, Williams and Connolly LLP
In Vaughn, the Seventh Circuit upheld the sufficiency of a bare-bones drug conspiracy indictment charged under 21 U.S.C. Section 846, which would plainly have been invalidated if the court had followed the Twombly holding that the allegation of a “conspiracy” is merely a “legal conclusion” and not a “factual allegation.” Twombly’s holding on this point was reaffirmed in Iqbal. Twombly had dismissed a civil treble damages complaint for violation of a criminal conspiracy statute, the Sherman Antitrust Act. As Iqbal noted:
“The Court held the plaintiffs’ complaint deficient under Rule 8. In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a ‘legal conclusion’ and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce.”
The Seventh Circuit rejected the application of the Supreme Court’s Twombly and Iqbal rulings to criminal indictments, on the theory that the Circuit should not “adopt the civil pleading standards articulated by the Supreme Court…to assess sufficiency of a criminal indictment.”
In December, President Obama commuted the sentences of eight people serving harsh prison terms on crack-cocaine convictions. Why?
Until recently, those who possessed just five grams of crack cocaine received the same five-year sentence as those who distributed 500 grams of powder cocaine; those who used 50 grams of crack received the same sentence as traffickers of 5000 grams of powder cocaine. This 100-to-1 quantity ratio between two chemically identical substances disproportionately hurt African Americans and Latinos because of federal law enforcement’s top-heavy focus on inner-city communities.
The president’s commutations are a major step forward in the ongoing saga to end injustice in cocaine sentencing. This newest chapter comes in the wake of other adjustments that have successfully chipped away at these biased disparities. Three years ago, the Fair Sentencing Act reduced the discredited 100-to-1 ratio between crack and powder cocaine to the more reasonable, but still insufficient, 18-to-1 ratio. The U.S. Sentencing Commission amended its guideline ranges to assure consistency with the provisions of the new act and applied its guidelines retroactively.
The Supreme Court, consistent with revised Department of Justice policy, agreed that cases pending in the pipeline between passage of the new law and sentencing would receive the benefit of the new law. However, only Congress or the president can remedy the plight of the remaining people whose harsh sentences occurred prior to the Fair Sentencing Act.
While momentous, the eight commutations represent only the tip of the iceberg of cases left behind when the Fair Sentencing Act became law. Several thousand cases of men and women in similar situations still await relief. Obama acknowledged that his commutations were an important first step and that “it must not be the last.”
At the beginning of the recent fall semester, Professor Russell Christopher asked the students in his Criminal Procedure class at the University of Tulsa College of Law to raise their hand if they had heard of Gideon. Out of the 40 second and third year students present, only two hands went up.
Clarence Earl Gideon, the man to which Professor Christopher was referring, was the Plaintiff in the 1963 landmark Supreme Court case Gideon v. Wainwright, which held that the Sixth Amendment’s guarantee of counsel applies to the states.
This year, Gideon celebrates its 50th anniversary. Law schools across the country have commemorated the case for both legal instruction and historical edification. This milestone, however, has also been met with a critical eye. Indeed, the real topic of study is not what Gideon was meant to accomplish, but whether it has succeeded.
In her new book, “Chasing Gideon: The Elusive Quest for Poor People’s Justice,” author Karen Houppert describes a crisis in our nation’s courts. Discussing her work with the ACS Student Chapter at Harvard Law School, Ms. Houppert explained that the war on drugs, mandatory minimum sentencing, tough-on-crime policies and pre-trial incarceration have overtaxed our public defense system. She described one defendant in Spokane, Washington who was acquitted of vehicular manslaughter in 2004 only after the public defender was able to obtain a delay in the trail so that he could fully investigate the case, something that would have been impossible without the delay due to the defender’s caseload. That same year, a twelve-year-old boy pled guilty to a class B felony having never had an independent interview with his public defender, who was handling 440 other cases.