November 2009 Archives

November 25, 2009

Can Juveniles Be Imprisoned for Life?

In the 2005 case of Roper v. Simmons, the U.S. Supreme Court decided that the death penalty cannot be imposed on offnders who were under age 18 when they committed a crime potentially punishable by death.  Four years later, the Court is considering whether juveniles can be sentenced to "life without possibility of parole" (LWOP) or whether such a sentence constitutes cruel and unusual punishment. The cases are Graham v. Florida and Sullivan v. Florida.  In both cases, under-age 18 offenders were sentenced to LWOP for non-homicide crimes.

The issue raises serious line-drawing problems.  For example, might an LWOP sentence be appropriate for a 17 year old murderer but not for a 10 year old murderer?  And if the Court were to decide that an LWOP sentence for a 17 year old is unconstitutional, why would it be constitutional to sentence an 18 year old or a 19 year old to LWOP?    

During oral argument, Chief Justice Roberts tried to arouse his colleagues' interest in a middle ground rule.  Roberts suggested that the 8th Amendment should not be interpreted as an absolute bar to an LWOP sentence for minors, but rather should be read to require courts to take an offender's youth into account when deciding upon punishment, and to make the sentence proportional to the seriousness of the crime.  I don't think that criminal defense lawyers will consider that an appealing compromise.

The outcome is hard to predict.  But with the death penalty already off limits and a widepsread belief that violent juvenile crime is out of control, the odds seem against a ruling that LWOP sentences for juvniles are unconstitutional in all situaitons. 

November 19, 2009

Robert Lee Thompson- Life or Death?

Robert Lee Thompson was convicted and sentenced to death for participating in a convenience store robbery that culminated in a store clerk's death. As Thompson's execution date nears, Texas Governor Rick Perry has to decide whether to follow the recommendation of the Texas Board of Pardons and Paroles that Thompson's sentence be reduced to life imprisonment.  

Gov. Perry, the right thing to do is to follow the parole board's recommendation.  Thompson's co-participant in the crime, Sammy Butler, was the clerk's killer and yet he was given a life sentence.  Thompson actively participated in the robbery and unsuccessfully tried to kill a second clerk.  Society needs to be protected from him.  But it's not fair to punish an accomplice more harshly than a killer.  Society does not need Thompson put to death.    

POSTSCRIPT: Gov. Perry refused to follow the parole board's recommendation.  Thompson was executed on Nov. 19, 2009.

November 18, 2009

Lynne Stewart Heads for Prison

Lynne Stewart is an ex-NY civil rights lawyer.  She was disbarred in 2005 after she was convicted of passing messages from imprisoned terrorist Sheikh Omar Abdel-Rahman to his followers.  Stewart was sentenced to serve 20 months in prison, but she remained free on bail while her case sat before a Court of Appeal.  On November 17, 2009, the Court of Appeals not only affirmed the conviction but added injury to injury by ordering the trial judge to re-consider the "lenient" sentence.  Stewart might have angered the judges by bragging to her followers in 2005 that she could "serve 20 months standing on my head."


Civil rights lawyers especially were infuriated by Stewart's conviction.  They condemned it as a violation of free speech and an interference with attorneys' obligation to defend clients zealously.  But to me, Stewart has only herself to blame.  As a condition of meeting with her client Abdel-Rahman in prison, Stewart agreed not to pass messages from him to followers who were waiting for a signal from him as to whether to ignore a cease-fire agreement.  Nevertheless, Stewart talked to the press about statements that Abdel-Rahman had made to her during their prison meeting.  

It's hard to see how keeping her mouth shut about what Abdel-Rahman told her would have interfered with Stewart's ability to represent her client.  Nothing she told the world would have produced helpful evidence for her client.  The condition she agreed to aside, Stewart might also have acted unethically by talking about a confidential client communication.  Stewart knew what she was doing and sought to embarrass the U.S. government.  She has a long and honorable history of helping the powerless and disenfranchised, and it's sad to see her in prison so late in her life.    

November 18, 2009

The Ying and Yang of D.U.I. Laws

Legislators in all states talk tough about punishing drunk drivers.  But to really evaluate lawmakers' attitudes towards drunk driving you have to look at what they do, not at what they say.
New York is poised to become the second state (along with Arizona) to punish drunk driving as a felony if a child is a passenger in the car.  Why the well-being of child passengers is so much more important than that of adults sort of escapes me, but I suppose it's easier to garner votes when you can say you're protecting kids.
At the other end of the country and spectrum, CA resdient WIlliam Simon was charged a few months ago with drunk driving for the NINTH time.  OK, Simon's an alcoholic, we get it.  But why, despite his 8 earlier convictions, did SImon still have a valid CA Driver's License?  The answer is that a drunk driver has to kill or seriously injure someone in order to lose his driver's license for good, and Simon hasn't done that-- yet.  
A lawyer who heads the CA DUI Lawyers Association argues that taking away licenses would be meaningless because alcoholics will just drive without them.  What a great argument.  I guess we should repeal the laws punishing murder, because people continue to commit murder anyway. 
November 4, 2009

A New Meaning for "Prison Labor"

I never realized how hard it could be for prisoners to give birth until I read the decision in the case of Nelson v. Correctional Medical Services, (8th Cir., October 2009).  A very pregnant Nelson was in an Arkansas prison, doing time for a non-violent crime.  When Nelson went into labor she was taken to a nearby hospital to give birth. A correctional officer who accompanied Nelson to the hospital repeatedly shackled Nelson's legs to the sides of her bed during labor.  The officer removed the shackles only when the nurses needed to check on Nelson's readiness to deliver, and then immediately replaced them.  The officer removed the shackles for good only after Nelson went into the delivery room.

Nelson is suing the correctional officer for a variety of injuries that she claims resulted from the constant shackling.  The injuries allegedly include a permanent hip injury, torn muscles and a hernia, and lots of unnecessary pain.  The correctional officer claimed "immunity from suit," arguing that Nelson had no right to sue her because she was carrying out her official duties.  The Court decided that the officer was not immune from suit, because she should have known that her actions constituted cruel and unusual punishment under the Eighth Amendment.

This was an "en banc" decision, meaning that numerous 8th Circuit federal court judges participated in the decision.  Amazingly to me, 5 judges dissented from the result and argued that the correctional officer was immune from suit.  Their reasoning was that shackling women during labor was such a widespread and routine practice that the correctional officer couldn't have realized that she was doing anything wrong.

Can it possibly be true that non-violent women in labor are routinely shackled to hospital beds?  Are pregnant women in labor really flight risks?  Strnagely enough, I can't recall ever seeing a woman who is just about to give birth racing down the street with a prison guard giving chase.  Surely the correctional officer could have thought of a better way to keep watch on Nelson duirng labor.  The correctional officer's actions caused needless suffering, and she should have to compensate Nelson for the harms she caused.

November 4, 2009

Police dog lineups- round up the usual scents

Police officers commonly bring trained sniffer dogs to crime scenes to pick up scents and track suspecta to nearby hiding spots.  Dog scent lineups take this approach a large step further.  Dog scent lineups occur when police officers give a dog crime-scene related objects to smell.  The officers then present the dog with containers swabbed with sample objects taken from different people.  If the dog reacts to the scent in one of the containers, does that mean that the person from whom an object was taken was at the crime scene?

Curvis Bickham's sad story suggests that the answer might be "No."  Poor Bickham sat in jail for 8 months after the results of a dog scent lineup conducted by Texas Deputy Sheriff Keith Picket led the police to arrest Bickham for killing 3 people.  When someone else finally confessed to the murders, the police realized that the dog had barked up the wrong tree and released Bickham from jail.

Curvis is not the only victim of Picket's charge.  Another of Picket's dog scent lineups led the police to arrest Ronald Curtis for committing a string of burglaries.  Curtis sat in jail for 9 months, until the police realized that store videos of the burglaries proved that Curtis looked nothing like the burglar.

Injustices like these probably won't stop Picket and others from conducting dog scent lineups.  We continue to search for reliable forensic methods of proof, and at least police dogs don't have motives to lie.  But until we can be more confident that dogs are properly trained and standards for conducting dog scent lineups properly emerge, dog scent lineups emit a foul odor.

November 2, 2009

Text Your Way to Prison

As a California bicycle commuter, I'm angry and scared because I see so many people continuing to use cell phones while driving long after doing so was made a crime.

In England, Phillippa Curtis (age 22) was recently convicted of driving while distracted by using a cell phone and sentenced to 21 months in prison.  Curtis smashed into a stopped car and killed its occupant, Victoria McBride.  An analysis of Curtis' cell phone showed that while she was driving, Curtis had sent and received about 20 text messages in the minutes leading up to the crash.  She'd just received another message seconds before the crash, and may have been about to open it when she killed Ms. McBride. 

Curtis was convicted even though she was not actively texting at the moment of the crash.  The evidence convinced the jury that Curtis was distracted by texting while driving, and that supports the guilty verdict.

What a sad story.  I hope drivers here get the text message.