I completely agree that law schools–or at least the one I went to, GW Law–don’t give much attention to the post-conviction aspect of habeas review. I really have no idea why that is. Perhaps it’s because so many of the post-conviction cases are (at least in practice) entirely lacking in merit, or maybe it’s because the kind of student who attends a so-called “national” law student typically does not aspire to do post-conviction work. (An exception might be those who want to be prosecutors, but in my experience even prosecutors view post-conviction work as bitter medicine that must be tolerated to get to the “good” work.)

Still, I disagree with Professor Kovarsky’s suggestion that this “bifurcation” explains the inattention federal courts seem to give to post-conviction habeas cases. To some extent, I think the fact that the executive detention cases get a more thorough treatment stems from their novelty; the legal issues are really unsettled and judges can get excited about tackling some difficult questions. But more importantly, I think the difference comes from what’s actually being “reviewed” in each of the two types of cases.

In an executive detention case, a court essentially reviews the executive’s assurance that an individual is dangerous or has otherwise merited detention under the laws of war. Judges routinely question the choices made by the legislative and executive branches, and some judges particularly approach executive assurances with a heavy degree of skepticism. These cases are the bread-and-butter “constitutionality review” cases that federal courts have loved for hundreds of years.  See Marbury v. Madison, 515 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”)

In the post-conviction context, on the other hand, federal judges are reviewing the decision of a state court judge (and usually a state court jury). In contrast to the executive and legislative branches, these state courts are supposed to be on equal footing with the federal courts when it comes to resolving legal questions. Moreover, federal judges are often intimately connected to the state courts they’re reviewing–many federal judges start their careers in state courts and maintain close connections there. Consequently, federal judges are likely less troubled by the decisions of their state court colleagues, a fact that’s reflected in the sometimes almost flippant treatment given to state post-conviction review.

In any event, I do think Professor Kovarsky is right in hinting that law schools should consider putting more emphasis on the post-conviction stuff, whether as part of a “unified theory” of habeas or otherwise. Post-conviction law has some really interesting stuff buried inside of it, so professors shouldn’t let the “hot” research trend take too much away from the time spent on tried-and-true post-conviction review.

-Michael

1. Sale or use of a traffic signal preemption transmitter (18 U.S.C. § 39):  It would be great to be able to have a magic device to get you all green lights on the way to work.  Unfortunately, it would not be great to go to federal prison for that magic device.

2. Transportation of water hyacinths (18 U.S.C. § 39):  Water hyacinths can produce pretty flowers, but they can also grow shockingly fast and clog up waterways.  Apparently, they’re so much of a problem that they can earn a six month prison sentence.  If only Congress had passed a statute like this for kudzu.

3. Use of aircraft or motor vehicles to hunt certain wild horses or burros (18 U.S.C. § 47(a)):  Who knew wild burros were a federally-protected class?

4. Variola virus (18 U.S.C. § 175c):  Federal law requires you to keep your smallpox to yourself.  Of course, this makes me wonder why there is not a similar statute for the even more frightening monkeypox.  (Monkeypox scares me more because of its primate-related name.)

5. Convict labor contracts (18 U.S.C. § 436):  If you’ve seen The Shawshank Redemption, you know that nothing good comes from prisoner labor schemes.

6. Troops at polls (18 U.S.C. § 592): I suppose this is a great idea given that nobody likes a military junta, but I wasn’t aware there was actually a law on the books keeping soldiers away from our polling places.

7. Theft of livestock (18 U.S.C. § 667): As far as I know, you can steal $10,000 from a jewelry store and not face a federal prison sentence.  If, however, you steal $10,000 of cattle (or, as I like to call them, soon-to-be-steaks), you could get locked up for five years in a federal slammer.  I guess our nation really loves our livestock.

8. Improper use of the “Woodsy the Owl” character, Swiss Confederation coat of arms, or “Golden Eagle” insignia (18 U.S.C. §§ 711a, 708, 715): I don’t even know who Woodsy the Owl is, or what the Golden Eagle is.  But apparently, if you misuse them, you’re going to jail.  Same thing for the Swiss symbol.  These kinds of laws raise a lot of questions in my mind.  What are the implications of this law for Victorinox, makers of the Swiss army knife?  Can Swiss Miss get in trouble if she wrongfully displays her country’s flag?  Dear god, not Swiss Miss!!

9. Impersonation of 4-H Club members or agents (18 U.S.C. § 916): You can be fined $5,000 and get six months in jail for impersonating a 4-H member.  This only confirms my theory that all of the nation’s gold and alien bodies are actually stored at 4-H headquarters here in DC.

10. Misrepresentation of Indian produced goods and products (18 U.S.C. § 1159): Not only is it obnoxious to wrongfully call your junk “Native American made,” it’s also illegal.

11. Prostitution near military and naval establishments (18 U.S.C. § 1384): Prostitution is illegal everywhere in the U.S.  But it’s extra illegal if you’re trying to get lucky with some military men.

12. Corruption of seamen and confederating with pirates (18 U.S.C. § 1657): I’m not really sure I understand what this statute means, but it still makes me laugh.  I like to imagine somebody getting arrested for taking a seaman to his first strip club, or giving a seaman his first drink of alcohol — but I assume they’re referring to a different type of corruption.

13. Theft of newspapers (18 U.S.C. § 1710): This statute only applies to postal carriers.  That’s unfortunate, because somebody in my building kept stealing my Economist and Washington Post.  It would have been sweet justice to make an anonymous tip and get a federal indictment lodged against them.

14. Improper wearing of a postal uniform (18 U.S.C. § 1730): I don’t know why anyone would want to wear a postal uniform, but apparently you can’t live your dream if that’s the case for you.  This law makes me think that everyone on Project Runway committed a federal crime a few years ago.

15. Transportation or importation of prison-made goods (18 U.S.C. § 1761): Nothing says love like a prison-made plastic toothbrush shiv.  But you can’t mail one to mom this Mother’s Day — that’s illegal.

16. Transportation of dentures (18 U.S.C. § 1821): Gross.  Just gross.  I think they should expand this law to include any tooth and mouth related products.

17. False weather reports (18 U.S.C. § 2074): The statute requires one to knowingly produce a false weather report in order to break the law.  Otherwise, there would be hundreds of arrests of local weathermen each year.

18. Shanghaiing sailors (18 U.S.C. § 2194): I guess this statute was passed to address  a real problem in the Pacific Northwest in the early 1900s.   It seems funny to me that we still have this law on the books, given that the problem of “shanghaiing” largely ended with the advent of the steam engine.

-Michael

As The Seattle Times explained, ”[t]he concept of clemency dates to Babylonian times, acting as a safety valve for criminal sentences that kings believed were unjust, or a means to show their power to be merciful.  Without clemency, Alexander Hamilton wrote, ‘justice would wear a countenance too sanguinary and cruel.’”  The Framers embraced the right of clemency in Article II, Section 2 of the Constitution, which provides that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  Thus, the President may grant clemency in any situation involving a federal crime (which would, interestingly, include any crime here in DC).  The pardon (like other forms of clemency, such as commutation) is meant to address the grey areas of the law while providing a degree of relief to those who have paid their debt and want their rights back.

The president’s clemency power, however, does not give the criminal complete absolution; it carries an imputation of guilt, and the acceptance of a pardon is tantamount to a confession.  See Burdick v. United States, 236 U.S. 76 (1915).  Moreover, pardons do not often allow convicts to escape from prison time, as they’re only given to those [(update: under the Guidelines, at least)] who have served their prison terms and proven they can live a productive life.  It’s also unlikely to go to anyone who committed a violent crime.  (See, for example, Bush’s pardons.)

To be honest, even though the system is relatively rigid and doesn’t leave murderers wandering the streets or anything, I don’t really see the de facto disappearance of the pardon as a bad thing.  Given their scarcity (even before the recent drought), pardons strike me as an arbitrary act of executive grace that is too de minimis to have any effect on the system as a whole.  It also seems to be an archaic holdover from a time when the king had absolute power — but that absolute power concept is contrary to the American concept of a more limited chief executive.  The pardon abrogates the finding of the jury who convicted the pardoned by stripping the verdict of its punitive weight.  And it appears prone to substantial abuse.

So, here’s hoping the drought continues.

-Michael

The answer: nope.  Apparently, a D.C. fellow had a bit too much fun one night, caused a commotion on the street, and then tried to run away from police on his bike.  He succeeded only in almost running over a small child and then falling over.  The court found Mr. Life-of-the-Party could be convicted of a DUI, while engaging in a somewhat disingenuous discussion about the public safety dangers of drunken biking along the way.

The court found that the definition of “vehicle” in the DUI statute should be broadly read, and that a bike is a vehicle because it is an “appliance” mounted on two wheels that can “move over a ‘highway.’”  My big take-away question:  will folks in wheelchairs be able to get their drink on anymore?

-Michael

As much as we might prefer otherwise, American standards of justice do not apply around the world.  Indeed, it is difficult to establish any principles of due process and justice that apply with equal weight throughout the world.  (Although Article 14 of the International Covenant on Civil and Political Rights is an attempt to define such rights, even that list is controversial and sometimes ambiguous.)  Thus, Americans cannot expect to enjoy the protections of “American” due process everywhere they go; travel should be accompanied by a recognition that one leaves the protective sphere of America and enters places where the protections might be minimal at best. 

Therefore, the government of the United States should probably only get involved in foreign trials in two instances: (1) where a trial violates well-established principles of international law or (2) where a trial violates the laws of the country where the trial is held.  Even in the second instance, however, involvement should be limited, as a nation should be permitted to interpret its own laws and administer its own system in the manner of its choosing.  Most of the critiques of the Knox trial I have seen don’t implicate either situation, however.  Instead, they are simple attacks on the “weight of the evidence” or the “bias of the prosecutor.”  I don’t think that merits American intervention.

These principles may seem disquieting in a situation like the Amanda Knox trial.  How can we really allow such an “injustice” to proceed?  Nevertheless, as Susan noted, our American system of justice is not that receptive to outside influences.  See, e.g., the Medellin situation involving Texas’ rejection of an ICJ order and international condemnation of our death penalty in general.  If we wish to construct our system of justice in a sphere free from outside influence, we should treat other systems in the same manner.

Lastly, I would question the notion of “American” justice.  It almost goes without saying that American prosecutors are often imperfect instruments of justice, and American juries are often motivated by impure considerations (e.g., racism, a hatred of the poor, etc.)  Outrages upon justice happen over here too, perhaps more often than we care to think about.  I think there’s even some possibility that Amanda Knox would have been found guilty in a stateside trial, given her conflicting accounts and strange behavior following her roommate’s death.  True, the prosecutor’s case theory probably would not have involved any satanic orgies, but in the end that doesn’t matter that much.  And had Amanda been tried in her home state of Washington, she would have been subject to the death penalty (unlike in Italy, where the death penalty is not an option).

As I said, this is not a happy case at all.  But I think it’s important to look past our anger and ask if we actually have a principled leg to stand on before we start taking diplomatic measures against Italy.

-Michael

[There are] two underlying evils of intolerable delay. First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.  Second, “delaying an execution does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death.”  Thus, I find constitutionally significant both the conditions of confinement and the nature of the penalty itself.

[snip]

One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification.

(citations omitted)

Justice Thomas responded with a concurrence in the denial [PDF] that directly rejects any notion of death row phenomenon and mocks the philosophy’s implicit reliance on international law:

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument.  I was unaware of any constitutional support for the argument then.  And I am unaware of any support for it now.  There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

[snip]

[Justice Stevens's view] deviates from the Constitution and . . . proponents of his view are forced to find their support in precedent from the “European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”

[snip]

At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature.  There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in a statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.”  I have no doubt that such a system would avoid the diminishing justification problem JUSTICE STEVENS identifies, but I am equally confident that such a system would find little support from this Court.

(citations omitted)

This is a great articulation of both sides of the argument.  Frankly, I don’t know which way to come out on this one, but it should be interesting to see what role international law plays in a debate over the proper interpretation of the Eighth Amendment.

-Michael

As noted over at Opinio Juris, Colonel Sanders recently breached security at the United Nations and gained access to a number of restricted areas.  Sanders (ok, technically an actor playing Sanders) was even able to pose for a picture with new UN General Assembly president Ali Treki.  There’s no suggestion that the Colonel was engaged in any malicious activity like espionage (although he is very good at keeping secrets).  Even so, one might argue that he violated international law when he started sneaking around the UN complex.

The United Nations complex and the area surrounding it is called the “headquarters district.”  Under Article III, Section 7(a) of the Headquarters Agreement governing the district, that area is “under the control and authority of the United Nations as provided in the agreement.”   Admittedly, the same agreement also provides (in Article III, Section 7(c)):

Except as otherwise provided in this agreement or in the General Convention, the federal, state, and local courts of the United States shall have jurisdiction over acts done and transactions taking place in the headquarters district as provided in applicable federal, state, and local laws.

This provision suggests that Sanders might only have to worry about anything more than a common trespass conviction.  But note that the provision does not vest exclusive jurisdiction in U.S. courts.  Thus, the United Nations may argue that, given the international character of the headquarters district, Colonel Sanders might also be subject to international liability for sneaking into the “inviolable” district.  See Art. III, Sec. 9. 

Still, there are other obstacles that would have to be overcome before we could see the Colonel in the dock at any international court.  First, what international crime did he commit?  Strangely, there would not seem to be any well-established notion of “international trespass” on internationally-held lands.  (I say strangely only because it would seem to be a crime of international concern if other extraterritorial outposts were trespassed upon, like CERN or NATO headquarters.)  It would also be extreme to resort to any prosecution of the basis of international “aggression.”  Lacking a crime, there can be no trial.  Second, where could the Colonel be tried?  The International Criminal Court certainly would not have jurisdiction.  An ad hoc tribunal would be out of the question.  Third, it is unclear whether the United Nations could independently impose any penalty for any violation of “international law” under Section 10 of the Headquarters Agreement:

Persons who violate such regulations [of the United Nations] shall be subject to other penalties or to detention under arrest only in accordance with the provision of such laws or regulations as may be adopted by the appropriate American authorities.

In sum, it looks like the Colonel will escape international prosecution.  Still, I think there’s some chance that KFC’s new “grilled chicken” is an international human rights violation in the making.

-Michael

He is accused of operating a Ponzi scheme involving investments in legal settlements. Investors were asked to make an upfront payment, supposedly to a lawsuit plaintiff expected a series of payments over a period of months or years. Later, the investors were told, they would get back the full settlement amount. “But it was all a scam,” according to the Miami Herald. “Federal prosecutors said there were no plaintiffs, no defendants, no lawsuits.”

To get a sense of what a weirdo this guy is, check out this video tour of his office.

-Michael

P.S. What’s with all the Ponzi schemes lately?

“Sex offenders are the most reviled people in society. . . . They’re one step above terrorists; there’s no political downside to cracking down on these folks.”

Unfortunately, as the Economist explains, mounting evidence suggests that such laws aren’t even effective. 

Despite those concerns, Congress stepped up federal sex offender laws in the 2006 Adam Walsh Child Protection and Safety Act.  Among other things, the Act authorizes civil committment of any individual currently incarcerated in the federal system, even after the expiration of their prison term.  The Act only requires that such individuals be found “sexually dangerous” in a commitment hearing, even if the inmate has not previously been convicted of any sex-related crime.  Once it is established by “clear and convincing evidence” that an individual is “sexually dangerous,” they may be confined indefinitely. See 18 U.S.C. 4247.

The Supreme Court is about to consider the constitutionality of these civil committment procedures in United States v. Comstock.  The interesting thing about the case is the way in which it has reframed the debate: the debate over such laws is not “pro-sex-offender” vs. “anti-sex-offender” (a ludicrous debate).  Instead, the libertarians have gotten involved, arguing that the Act overstepped congressional powers [PDF]. 

I note this case principally to observe that it is one of the few situations where I’m happy to see a little judicial activism.  If ever there was a situation where an immensely unpopular minority was suffering from the “violence of the majority,” this is it.  These individuals certainly deserve punishment of the highest degree, but my hope is that the judiciary will approach this problem a bit more objectively than legislators have.

-Michael

What kind of parent gives their kids candy daily?

-Michael

*As Kottke notes, some news agencies are reporting that 69 percent of daily candy eaters became criminals.  That, of course, is an entirely different thing.