News 2001


November 29 | November 19 | November 2 | October 10 | September 7 | August 24 | | July 23 | July 17 | June 8 | June 4 | May 30 | May 22 | May 16 | May 2 | April 4 | March 28 | March 15 | March 7 | February 20 | January 26 | January 10 | January 4

November 29, 2001

  • For an update on victims' rights cases, click HERE.
  • Click HERE for a link to the Federal Register notice of Attorney General Ashcroft's order on the monitoring of inmate-attorney communications in the cases of a few suspected terrorists.

November 19, 2001

November 2, 2001

  • Read the testimony of Catholic University Dean Douglas Kmiec before the U.S. Senate Judiciary Committee, Subcommittee on the Constitution, on October 3, 2001, in support of the Attorney General's proposed antiterrorism legislation. He argued that the civil liberties and other concerns about the legislation were based "on constitutional policy, not constitutional law, grounds." (p.2)
  • Here is the testimony of Cardozo Law School Professor John McGinnis before the U.S. Senate Judiciary Committee, Subcommittee on the Constitution, on October 3, 2001, defending the constitutionality of the Attorney General's proposed antiterrorism legislation. He argued that "the bill as a whole adheres to a constitutional line between the procedures appropriate to protect national security and those appropriate for law enforcement." (p.1)
  • The 2000 study by Columbia University Professor James Liebman, et al. entitled "A Broken System: Error Rates in Capital Cases, 1973-1995" received extensive media coverage when it concluded that the implementation of the death penalty in the United States is a "broken system" because two-thirds of death penalty cases in the state and federal system were reversed. John Jay College of Criminal Justice Professors Barry Latzer and James Cauthen found that the study contained innaccurate and misleading conclusions.
    Note: The following contains a list of additional articles in this regard and the professors' responses to each other.

October 10, 2001

September 7, 2001

  • Male prisoners have a constitutional right to procreate by means of artificial insemination, the U.S. 9th Circuit Court of Appeals ruled September 5. Gerber has a "fundamental right to procreate" that "survives incarceration," wrote Judge Myron H. Bright in a 2-1 decision. Prison officials can restrict that right only if they can show that prison safety issues would make it impossible for Gerber to proceed, the judges ruled. For the opinion Gerber v. Hickman, click HERE. Practice Group member Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, particpated in a discussion of this case on CNN's Burden of Proof; read that HERE.

August 24, 2001

  • New Jersey Court Report Finds No Bias in Death Penalty

    Last year, the New Jersey Supreme Court adopted a system to monitor whether the death penalty is being administered in a discriminatory manner. See In re Proportionality Review Project (II), 165 N.J. 206, 757 A.2d 168 (2000). The special master has submitted and the court has accepted the first annual report under that system. Among the master's findings are that, based on the data, "we are extremely confident in our finding that the administration of capital punishment in New Jersey in terms of the race or ethnicity of the defendant is color-blind and free from taint or prejudice."

    Court Press Release
    Special Master's Report


July 23, 2001

  • The Polygraph as Evidence
    Congressman Gary Condit's recent, well publicized, polygraph examination has sparked renewed public interest in the polygraph.  In United States v. Scheffer, 523 U.S. 303, 140 L.Ed.2d 413, 118 S.Ct. 1261 (1998), the Supreme Court considered a claim that due process required admission of polygraph evidence, i.e., that a rule of evidence categorically excluding polygraphs is unconstitutional.  This is, of course, a different issue from the policy question of whether to promulgate such a rule.  Here are links to the opinion and two of the briefs, discussing the value and limitations of polygraphs:

    Opinion (from Cornell's site)
    Brief of the Criminal Justice Legal Foundation  (supporting the government)
    Brief of the Committee of Concerned Social Scientists (supporting the defendant)

July 17, 2001

June 8, 2001

June 4, 2001

  • The Report of Governor Bill Owens' Columbine Review Commission has just been published and is on-line at The Federalist Society held a program, "Did the Law Cause Columbine?" in 1999. Transcripts for this program can be found here.

May 30, 2001

Also of interest is a thoughtful article on the implications of this study by Stuart Taylor in the National Journal:

May 22, 2001

  • On May 22, the Federalist Society Criminal Law and Procedure Practice Group co-sponsored, along with the Cato Institute, a forum on the "drug war." You can see the event in "Real Video" or listen to it in "Real Audio" on Cato's Web site:
  • In the Spring 2001 issue of "City Journal," Heather Mac Donald writes on "The Myth of Racial Profiling." She writes, "There's no credible evidence that racial profiling exists, yet the crusade to abolish it threatens a decade's worth of crime-fighting success." See

May 16, 2001

May 2, 2001

April 4, 2001

March 28, 2001

  • ABA's Special Judicial Selection Role Terminated

    On March 22, the Bush Administration announced it was ending the American Bar Association's role of screening potential judicial nominees before the announcement of their nomination.  Here are some links regarding this issue:
    Letter from White House Counsel Al Gonzales to the ABA, from White House Web site.
    Letter from Mr. Gonzales to Senators Leahy and Schumer.
    Statement by ABA President Martha Barnett, from ABA Web site.
    Wall Street Journal editorial
    New York Times editorial

March 15, 2001

  • "Sleeper" Cases on Habitual Criminal Sentencing

    In the Supreme Court's previous term, Apprendi v. New Jersey was the "sleeper" case of criminal law. It was widely reported as being the "hate crimes case," but it actually had a greater impact on sentencing law, particularly in cases involving guns and drugs.
    The "sleeper" cases of the present term may be Daniels v. United States, 99-9136, and Lackawanna County DA v. Coss, 99-1884. These cases may make a dramatic change in sentencing practice in habitual criminal cases.
    Seven years ago, in Custis v. United States, 511 U. S. 485 (1994), the Supreme Court held that prior convictions could not be attacked in most federal sentencing proceedings, although it allowed an exception for claims based on complete denial of counsel. The question now is whether the Custis rule is about the mere timing of challenges to priors or whether it disallows such challenges altogether.
    In Daniels and Coss, the prosecution side maintains that once the sentence for the conviction has been fully served, the judgment is truly final. A prisoner can attack his present conviction, but fully expired priors cannot be attacked. The defense maintains that Custis was only about timing. A prior can still be attacked on habeas corpus or a motion to vacate the new enhanced sentence.

    Documents in Daniels v. United States:

    Ninth Circuit opinion
    Solicitor General's Brief
    CJLF Amicus Brief
    Transcript of oral argument

    Documents in Lackawann Co. DA v. Coss:

    Third Circuit opinion

March 7, 2001

  • University of Alabama at Birmingham Board of Trustees, et al. v. Patricia Garrett, et. al.,

On February 21, 2001 the United States Supreme Court decided the consolidated Americans with Disabilities Act (ADA) cases filed by two state employees against the State of Alabama. A registered nurse, Patricia Garrett, and a security officer, Milton Ash, alleged violations of the ADA because the state employer would not accommodate their disabilities. Alabama argued that it should be immune from such suits, and while the District Court agreed, the Court of Appeals for the Eleventh Circuit reversed this decision.

Following a familiar five-to-four split decision pattern, the United States Supreme Court reversed and held that the Eleventh Amendment barred state employees from suing a state employer for damages under Title I of the ADA. The Chief Justice’s majority opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Kennedy, joined by Justice O’Connor, also filed a concurring opinion. Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg joined Justice Breyer's dissenting opinion. The Court declined to consider the Title II claims (relating to access to programs).

The Court found that the Eleventh Amendment barred these claims for monetary damages because Congress lacked the power to create substantive rights pursuant to the Fourteenth Amendment. Rather, Congress could enact remedial legislation that prohibited otherwise lawful state conduct only where there was pattern of constitutional violations by the states. The ADA’s legislative record failed to establish such a pattern. In effect, the Court ruled that the instances of discrimination were not sufficiently numerous to constitute a "pattern" of conduct by the states. Thus the Court did not reach the issue of whether the particular discriminatory acts in the legislative record arose to the level of "irrational" discrimination precluded by the Cleburne decision. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (holding that legislation that discriminates against the disabled must meet "rational basis" review).

The Court’s ruling was limited to the portion of the ADA requiring employers to make "reasonable accommodations" for disabled employees, but may foreshadow future decisions regarding accessibility of government services and programs. Title II claimants will find it difficult, in light of Garrett, to show that Congress had an adequate record of a pattern of constitutional violations by the states against the disabled. This ruling continues a trend in recent Supreme Court Eleventh Amendment decisions limiting the power to Congress to create substantive rights pursuant to its powers under Section 5 of the Fourteenth Amendment.

February 20, 2001

January 26, 2001

  • Comments Due February 15 on Proposed Rule Amendments

    Last August the Judicial Conference's Advisory Committees on Appellate Rules, Bankruptcy Rules, Civil Rules, and Criminal Rules each proposed a set of amendments.  The most important to criminal law practitioners are, of course, the appellate and criminal.  The deadline for comment on these proposals is February 15.    
    The criminal rule proposals are divided into two sets:  a comprehensive style revision not intended to make substantive change and a separate set of substantive changes.
    Several of the criminal rule changes deal with the use of live video in criminal cases.  Rules 5, 10, and 43 deal with appearances by the defendant.  Rule 26 deals with video testimony by witnesses.  Another potential source of controversy is Rule 41, which would authorize warrants for covert observation.
    Appellate Rule 26 would be modified to go to a business day, rather than calendar day, basis for computing short deadlines.
    Review and comment on the proposals at the U.S. Courts Website.

January 10, 2001

  • State "Retroactivity" Case Fizzles
    Almost two years ago, the Supreme Court granted certiorari in Fiore v. White, 98-942 to review a decision of the Third Circuit that "state courts are under no constitutional obligation to apply their decisions retroactively" for the benefit of a prisoner whose appeal is already final.  On January 9, 2001, that case ended with a whimper rather than a bang, as a routine application of Jackson v. Virginia, 443 U.S. 307 (1979).
    Fiore and Scarpone were convicted together of violating a Pennsylvania environmental statute.  Their appeals took different paths.  After Fiore's case had been affirmed by an intermediate appellate court and become final, the Pennsylvania Supreme Court decided in Commonwealth v. Scarpone, 634 A.2d 1109 (Pa. 1993) that they had been prosecuted under the wrong statute.  However, the state courts denied collateral relief to Fiore, and the Third Circuit decided that nonretroactivity of the Scarpone interpretation of the statute was not unconstitutional.
    The United States Supreme Court certified to the Pennsylvania Supreme Court the question of whether the Scarpone interpretation was a change or the correct interpretation all along. Fiore v. White, 528 U.S. 23, 145 L.Ed.2d 353, 120 S.Ct. 469 (1999).  The state court answered, "Scarpone did not announce a new rule of law.  Our ruling merely clarified the plain language of the statute...."  That answer eliminated the retroactivity question from the case.  The evidence at Fiore's trial plainly failed to establish an element of the offense, and hence he was entitled to relief under the well-established rule of Jackson.
    Opinion, per curiam, unanimous (PDF format) from Supreme Court Web site.
  • Extra Jail Time Need Not Be "Significant" for Ineffective Assistance
    The Supreme Court on January 9 further clarified the standard for evaluating "prejudice" in connection with claims of ineffective assistance of counsel.  For claims that counsel were ineffective in sentencing proceedings, there is no requirement that the amount of extra jail time be "significant" in relation to the rest of the sentence to meet the "prejudice" requirement of Strickland v. Washington, 466 U.S. 668 (1984).  The high court reversed a holding that a federal prisoner moving to correct his sentence could not show "prejudice" because the amount of time at issue was only 6 to 21 months out of an 84 month sentence.
    "Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance."
    Opinion by Justice Kennedy, unanimous, in PDF format from Supreme Court Website.

January 4, 2001


2003 The Federalist Society