Crime & Federalism

The Supreme Court began this Term obsessed with death-penalty minutiae - much the the chagrin of criminal law wonks.  Yet a few weeks ago the Court agreed to hear two very important Crawford-related cases.  And today the Court agreed to hear whether, as a matter of constitutional law, a criminal defendant must be able to present a certain theory of the insanity defense, namely that he did not appreciate the nature of his conduct because of a mental disease or defect.  Clark v. Arizona, No. 05-5966.  I hope this is the beginning of a trend. 

Orin Kerr and Lyle Denniston are providing excellent case coverage.  (Orin has the lower court opinion here; Lyle broke the story here.)  At Cornell Law School's Wiki is this great summary of the issues involved in an insanity defense.  This excellent overview will help the reader better understand the issue before the Court.

Expect the Court's judicial conservatives to work over Clark's lawyer, asking why, as a matter of federal due process, a criminal defendant must be able to present a certain defense theory.  Isn't this an issue best left to the states?  I think Clark's lawyer is going to have a tough time winning his case.  As a matter of policy, I think that a criminal defendant should be able to present the mental-defect defense.  But as a matter of federal constitutional law?  That's a hard case to sell: I'm not sure I'd even buy it.  (Then again, I also haven't read the briefs; so perhaps I'm missing something important.)

Today the Supreme Court granted cert. in Woodford v. Ngo, No. 05-416 an important but technical case about the Prison Litigation Reform Act.  Earlier coverage of Woodford is here; a discussion of a case raising identical issues is here.

(Via SCOTUSblog.)

At its Nov. 23rd conference, the Supreme Court will decide whether to grant certiorari in Johnson v. Meadows, No. 05-6336.  [UPDATE: On November 14th, the Supreme Court granted cert. in a similar case - Woodford v. Ngo, No. 05-416; my collected Woodford-related posts are available here.]   At issue in Meadows is whether the Prison Litigation Reform Act, which requires prisoners to exhaust administrative remedies before bringing a Section 1983 action against prison officials, also contains a procedural default component.  There are three good reasons for the Court to review the case.

There is a circuit split.  The Supreme Court has becoming increasingly interested in resolving circuit splits.  There is a clear circuit split on this issue. Johnson v. Meadows, which held that the PLRA does contain a procedural default component, differs from the Sixth's and Ninth Circuit's approaches.  (It's worth noting that Judge Alex Kozinski joined the Ninth Circuit panel's decision in Ngo v. Woodford (here), which held the PLRA does not contain a procedural default component.)

The issue is of national importance.  Section 1983 actions arising out of prison conditions number in the tens of thousands.  According to this 1994 report from the Department of Justice's Office of Legal Policy: "[T]here is approximately one lawsuit for every thirty state prison inmates ...."  The importance of procedural issues touching Section 1983 litigation cannot be overstated.

The case will be well-argued.  Many Section 1983 cases reach the Court by accident, and they are argued by people lacking subject-matter fluency.  Steve Dillard is representing the petitioner in this case.  The prisoner will be ably represented, and all arguments supporting the prisoner will be presented.

Moreover (and this goes to the merits as much as to the cert.-worthiness), by reading into the PLRA a procedural default component, the circuits are creating different standards for every prison, and also frustrating Congress' goal that civil rights claims, though they must be exhausted, should also be heard.  In the Johnson case, e.g., the prisoner only had 5 days to give prison officials notice that his rights had been violated.  This has two unfortunate effects. 

First, it imposes a de facto 5-day statute of limitations on prisoner civil rights claims, even though under 42 U.S.C. Section 1988, the statute of limitations for civil rights actions is supposed to mirror the state's general personal injury statute of limitations.  In Georgia, the relevant statute of limitations should have been two years.  Under the Eleventh Circuit's reading of the PLRA, the statute of limitations for prison civil rights suit is 5 days. This disparate treatment of regular civil rights suits vs. prisoner civil rights suit is intolerable, and it is not required or even suggested by the PLRA's text, history, or structure.

Second, the Eleventh Circuit's reading of the PLRA allows potentially different limitations periods in every prison.  Federal law, to the extent possible, should be uniform.  By allowing each prison to set a different exhaustion deadline, there could potentially be as much disconformity as there are prisons.

Johnson v. Meadows is of important practice significance.  The Supreme Court should grant cert. to resolve the circuit split, and then it should reverse the judgment of the Eleventh Circuit.

It looks like the government had its head handed to it in the hoasca tea case.  Lyle Denniston reports...

Today the Court agreed to hear two cases involving the application of Crawford v. Washington to 911 phone calls and excited utterances.  Leonard Post has this interesting article in the National Law Journal discussing the issues.  I'll blog about these cases ad nauseum, but quickly, I think that 911 statements should not be subject to Crawford, while excited utterances should be.  When someone makes a 911 call, he is asking for help.  ("Please hurry!  This is an emergency!") When someone makes an excited utterance, she is "telling" on someone.  ("That no-good-SOB did ...")  Asking for help generally doesn't make one an "accuser," where as telling on someone generally does.

Holy cow!  On the week I've been on a pseudo-vacation and haven't been following the news, I learn that a major enumerated powers case is accepted for review.  The questions under review are:

1.  Does the Clean Water Act reach wetlands that are neither navigable waters nor immediately adjacent to navigable waters.

2.  If so, does the Clean Water Act exceed Congress' authority under the Commerce Clause.

Tim Sandefur blogged extensively about the Rapanos case here.  C&F's coverage of a Rapanos-like case, United States v. Gerke Excavating, is available here.

UPDATE: The Pacific Legal Foundation, the public-interest law firm representing Mr. Rapanos, has issued a press release that is available here.  The Rapanos cert. petition is available here.

On November 1, the Supreme Court will hear argument in Gonzales v. O Centro Esperita Benficiente Uniao Do Vegetal, No. 04-1084.  Plaintiffs/appellees ("the UDV") are a Christian church and its members whose religious rituals involve the ingestion of "hoasca," (a.k.a. "ayahuasca"), a tea brewed from South American plants.  Hoasca is central to their religious experience, literally constituting communion with God.  However, the tea contains the controlled psychoactive substance DMT, making it illegal to possess, distribute or import under federal law. 

In 1999, the government seized thirty gallons (about 3,000 doses) of hoasca tea from the UDV and threatened to prosecute UDV members for any future possession or importation of the tea.  The UDV sought and won a preliminary injunction from U.S. District Judge James A. Parker in New Mexico.  After an extensive hearing, Judge Parker, finding the UDV was likely to prevail in showing a violation of their rights under the Religious Freedom Restoration Act ("RFRA"), enjoined the government from prosecuting the UDV.  A divided en banc panel of the Tenth Circuit affirmed.

The RFRA, passed in response to Employment Division of Oregon v. Smith, requires the government to pass strict scrutiny when it substantially burdens the exercise of religion.  (The Supreme Court struck down the RFRA as applied to the states in City of Boerne v. Flores as an impermissible exercise of Congress's Section 5 power, but several circuit courts of appeal have since upheld the RFRA as applied to the federal government.)

If the Court considers the case objectively, the UDV should win hands down.  The government's argument concerning the dangerousness of hoasca is an overblown, hyperbolic artifact of the war on drugs. Hoasca is comparatively harmless, and presents little risk to the populace at large.  There is no threat of addiction, physical or otherwise.  Most people who drink the foul-tasting tea grow nauseous to the point of vomiting, and the heavily psychedelic nature of the experience can be terrifying to the uninitiated.  There will be no teenagers imbibing hoasca in droves at dance clubs.  If the Court is concerned about the use of other, more dangerous drugs, it can write a narrow opinion leaning heavily on the facts.

Unfortunately, when the war on drugs comes into play, objectivity and rationality go out the window.  In this context, some members of the Court are unlikely to take seriously the UDV's religious beliefs.  Also, should Justice O'Connor remain on the Court, it will not bode well for the UDV (see her concurrence in Smith, finding the government passed strict scrutiny in banning Native Americans' use of peyote).

A reversal would be a tremendous shame and a serious injustice.  As demonstrated by the First Amendment, America was founded in large part by people who placed their relationship with God above the state.  Hopefully, the Court will carve out some small harbor for that relationship amidst the madness of the war on drugs.

Absent extreme circumstances, the Fourth Amendment prevents police officers from kicking down a citizen's door when executing a search warrant.  The police are required to knock on the door, announced their presence, and wait from 20-30 seconds before kicking down a citizen's door.  This is the so-called "knock and announce" rule. 

The Fourth Amendment mandates that evidence obtained through unconstitutional searches be suppressed.  If the police would have found the evidence anyway, i.e., they would have found the evidence even if they hadn't violated the citizen's Fourth Amendment rights, then courts will not suppress evidence obtained unconstitutionally. This is the inevitable discovery doctrine. 

This Term, the Supreme Court will answer this question: How do we reconcile the inevitable discovery doctrine with the knock and announce rule.  More formally, the Court will answer: "Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment 'knock and announce' violation ... or is evidence subject to suppression after such violations...?"

The Cato Institute has filed, as they usually do in important civil rights cases, an extremely interesting amicus brief. For the first time I can remember, I disagree with Cato's position in a criminal case, and I support the government's position.

I'll note initially that I don't care for the exclusionary rule.  If anything, the exclusionary rule has made police officers more lawless. Before the exclusionary rule, police officers unconstitutionally searched and seized evidence, and they truthfully told the judge how they obtained the evidence.  After the exclusionary rule, police began perjuring themselves, since they viewed the exclusionary rule as a mere technicality.  In other words, same result (evidence is admitted), different process (the police lie).  See Morgan Cloud, The Dirty Little Secret ("Police perjury is the dirty little secret of our criminal justice system. It is 'dirty' in the way that any lie under oath is dishonest, unfair, and unethical. But it is a uniquely corrupt lie, because it is offered by government officials who are sworn to enforce and uphold the law.")

Lying degenerates a person's soul.  It throws off one's moral compass.  The more a person lies, the easier it becomes to lie, until the person no longer knows deceit from truth, moral from immoral.  Many (not most, but many) police officers, because of the exclusionary rule and the way it encourages police perjury, are utterly debased.  In a perfect, or even good world, prosecutors would prosecute police for perjury.  But we don't live in a good world.  Indeed, when one assistant district attorney suggested to a supervisor that he thought a police officer had perjured himself, he was demoted.  Garcetti et al. punish A.D.A for seeking justice. Because I think the exclusionary rule has caused more harm than good, it's not hard to persuade me that it should not apply in Hudson. 

Cato's position is that the police would have no incentive to follow the knock-and-announce rule if they know any evidence obtained through a breach would not be excluded.  Yet if the police have a warrant to search someone's home, they're going to discover whatever illegal evidence is in the home, unless the suspect first hears them coming and destroys the evidence.  Moreover, a person can file a section 1983 action against the police for violating their rights by not knocking and announcing.  Fear of civil liability should provide enough of a deterrent to police misconduct.  Failure to knock and announce is actionable under section 1983.

I don't know how this case will be decided.  But it will be well argued.  David Moran of Wayne State is representing the individual rights side of the case.  Mr. Moran is, by all reports, knowledgeable, talented, and gracious.  Good luck.

By the way, feel free to persuade me that my views on the exclusionary rule are wrong.  I'm open-minded, so do leave a comment.

Inspired by the comments to this post, I'm going to define some terms.  I'll be working on this during breaks.

Circuit split: A disagreement between one or more federal circuit court of appeals on an issue concerning federal statutory or constitutional law.  The Court has lately become obsessed with resolving circuit splits, and will frequently grant cert. to resolve the split, so long as the split is direct and involves an important federal issue.

CVSG: "Calls for the Views of the Solicitor General."  When someone is litigating the meaning of a federal statute, the Court will "invite" the Solicitor General to provide the federal government's view of what the law means.  The Court likes to do this in patent cases.   Milbarge discusses CVSG here.

DIG (or "digged): "Dismissed as improvidently granted."  That is, the Court granted a petition for writ of certiorari and later realized that it should not have granted the cert. petition, usually because of a jurisdictional defect.In other words: "Hey, we screwed up.  We don't have jurisdiction to hear the case.  Go away."  See    Nike, Inc. v. Kasky.

GVR: "Grant, Vacate, and Remand."  Let's say the Court decides a case that might affect other cases where parties have petitioned for certiorari.  The Court will GVR the case, that is, grant   the petitioner's petition for a writ of certiorari, vacate the lower court's opinion, and remand the case for consideration in light of the Supreme Court's new case. Sometimes lower courts apply the Supreme Court’s precedent.  Other times they ignore it and hope that since the Court just heard a similar case, it won't grant cert. and bench slap them.

Stern & Gressman: The original co-authors of Supreme Court Practice, which is now in its eighth edition.  Supreme Court Practice is, according to Kenneth Star, an "indispensable treatise for the Supreme Court practitioner. Both scholarly and practical, brimming with insights for the academic and the practicing lawyer, the treatise richly deserves a highly prominent place on the practitioner’s desktop."  Supreme Court Practice, referred to as Stern & Gressman, is also known as "the Bible."

Term: Orin Kerr nicely defines "Term" in this post:

It occurs to me that some readers probably find it pretty confusing when they come across references to Supreme Court "Terms," "October Terms," and the like. To clarify, the Supreme Court works on a yearly calendar schedule. The first day of the Supreme Court's annual schedule is the first Monday in October, as set by a federal statute. To simplify a bit, everything the Court does starting on that day in October until the same day the next year is part of the "October Term" of that year. The Court generally starts hearing oral argument for the cases on its docket on that day, and generally hears cases on and off until the early spring. The Court then tries to get (and under Rehnquist, succeed[ed] in getting) all of those cases decided and published by the end of June.

Other terms that require a definition:

• brief in opposition
• conference
• cert. worthy
• long conference
• merits brief
• petition for certiorari/cert. petition
• petitioner's brief
• reply brief
• respondent's brief

If you know of a place already defining these terms, please let me know.

This week's Legal Affairs Debate Club discusses the physician-assisted suicide case, Gonzales v. Oregon.  Gonzales v. Oregon can be viewed through two lenses - technical or philosophical.  First, did the Attorney General properly interpreted the Controlled Substances Act, which allows doctors to prescribe medication for "legitimate medical use," as prohibiting doctors from prescribing a lethal dose of drugs?  In other words, is prescribing a lethal does of drugs a "legitimate medical use."  Second, and more broadly, may a single administrative actor, unaccountable to the electorate, preempt a state's duly-enacted law?

Jon Adler and Wesley Smith are debating the issue, with Adler taking the pro-federalism side.  You can read the debate here.  Meanwhile, Wesley Smith made one point I'd like to refute:

The federal government has not attempted to invalidate Oregon's law that permits physicians to issue a lethal prescription to a dying patient who requests it. What Attorney General John Ashcroft did do was interpret the federal Controlled Substances Act (CSA) as barring narcotics, which are regulated by the federal government, from being prescribed by physicians to intentionally cause the deaths of patients. The federal claim is that prescribing controlled substances to cause death is not a "legitimate medical use" of controlled substance under the CSA, which is a federal law.

This is a classic Lottery Case hypothetical, which might bode poorly for the citizens of Oregon.  In The Lottery Case (a pre-Wickard v. Filburn opinion) Congress wanted to prohibit lotteries.  Since Congress lacked the power to directly ban gambling, it banned the interstate shipment of lottery tickets.  Unfortunately, the Supreme Court held that although Congress had merely disguised the exercise of a police power as an exercise of the commerce power, the law would remain valid.  The Lottery Case, by the way, gave birth to the current constitutional abomination of our federal criminal code.

In any event, it's easy to see the difference between direct and indirect invalidation.  If you can't directly overrule the law, you threaten to take the license of any doctor who complies with the law.  Indeed, were this a preemption case, no one would seriously argue that the state regulation would remain valid.  (A state law is preempted where it's impossible for a person to comply with state and federal law.  Here, the doctor can comply with state law only by violating federal law.)  Why then, does Mr. Smith make that argument?  Surely he doesn't think he'll fool Prof. Adler - or anyone else - with this weak argument.  Perhaps he is isn't used to debating with critical thinkers. 

In any event, what's most perverse about the assisted suicide case is that one man, John Ashcroft (and now Al Gonzales) is imposing his will upon the entire state of Oregon - and indeed, the entire United States.  Indeed, the authors of the Cato Institute's amicus brief make the point beautifully:

Here, an unelected regulatory agent of the executive branch of the federal government has attempted to void, through administrative action, not one but two ballot referenda duly conducted by the citizens of a sovereign state who sought to secure for themselves the right to obtain medical advice and assistance at the end of life.

Read Cato's brief.  Although I look forward to reading the rest of the debate, there are two particularly tough issues that will hopefully be addressed:
    1.  Is Chevron's deference to administrative agency interpretation warranted where it enables one person to overrule the expressed policy determination of millions of voters.
    2.  After Raich, does Oregon's law stand a chance?

I have my own views on these matters, but I'll see whether Adler exhausts these points before offering my (much less informed) views.

UPDATE:  Oops, it seems that Wesley Smith made the bad argument noted above because he's intellectually dishonest.  In an earlier column, he wrote:

But the majority opinion [in Raich], written (surprisingly) [Ed. - not to anyone who understands Commerce Clause jurisprudence] by Justice John Paul Stevens, also invoked the Constitution’s Supremacy Clause as “unambiguously” providing “that if there is any conflict between federal and state law, federal law shall prevail.”

As applied in Raich, this means that the federal government is entitled to enforce federal law against medical marijuana users even in the face of contrary state laws, a ruling clearly applicable to the assisted-suicide controversy. And if the Court found this to be true for medical marijuana — which, after all, involves mere symptom relief — it hardly seems likely that it would reach a drastically different conclusion regarding the prescription of more potent controlled substances with the intent to kill.

In other words, in Mr. Smith's own words, the Attorney General in Gonzales v. Oregon is seeking to "to enforce federal law against [doctors] even in the face of contrary state laws."  So much for his original argument that "The federal government has not attempted to invalidate Oregon's law that permits physicians to issue a lethal prescription to a dying patient who requests it."