Archive for December, 2009

Shameless Self-Promotion

Tuesday, December 22nd, 2009

smug tie

We’re on vacation starting tomorrow, and that means we’ve been extra-busy trying to get as much work done as possible beforehand. So we’re not taking the time to post anything particularly thoughtful today. Maybe while we’re on vacation, but not today.

Still, we were pleased to see we were quoted in Crain’s this morning. Essentially, we were asked to comment on a recent USA Today article claiming that white-collar prosecutions plummeted even as the economic crisis worsened. First of all, USA Today’s stats exaggerate things. As the actual statistics (shown below) show, the drop wasn’t that big. And it’s easily explained by the shift in the FBI’s focus after 9/11. And once the political pendulum started to swing back to financial crimes in 2007, more investigations got started, and we’re now beginning to see plenty more white-collar cases.

white collar stats 2009

We weren’t quoted as accurately as we’d have liked, and they said we used to be a federal prosecutor when we were really a state prosecutor, but they did spell our name and firm correctly, so we’re not complaining.

Anyway, it occurred to us that we’ve been getting some good press lately. And that gave us a great idea for a post. Instead of writing anything of substance, we’d just post some links to the various articles, and call it a day. So here’s some shameless self-promotion:

How Dirty Are Hedge Funds? (Forbes, Oct. 20)

Galleon SEC, FBI Informant Roomy Khan Worked at Intel (Bloomberg, Oct. 22)

Galleon Wiretap Defense Not ‘Hopeless,’ Experts Say (Bloomberg, Oct. 28)

Bear Stearns Defense Holds Lessons For Execs (Forbes, Nov. 17)

After Lull, Financial-Crime Prosecutions Seen Set to Rise (Crain’s, Dec. 22)

And for those who need some useful CLE credits, here are the lectures we gave this year (CLE credit good for most states):
Hope for Hopeless Cases I: Defending an Internet Pornography Case

Hope for Hopeless Cases II: Defending Wiretaps and Tape Recordings

Hope for Hopeless Cases III: Better Loss Calculations for Lower Sentences in Financial Crimes

Hope for Hopeless Cases IV: Your Client Confessed! Now What?


Writing Tips from the Judge

Tuesday, December 15th, 2009

Judge Kressel

We’ve never liked how most lawyers write. They overload their motions with a dozen words where two would do the trick. They use words incorrectly all the time (New York lawyers take note: “wherefore” means “why” — it is not a synonym for “therefore”). They employ all kinds of pointless stylistic tics, for no better reason than “that’s how it’s always been done.” We’re of the opinion that legal writing should be clear, period.

At least one judge is of a like mind. Minnesota federal bankruptcy judge Robert Kressel (shown above) is equally passionate about writing properly. It’s particularly annoying when lawyers submit proposed orders for him to sign, asking him to put his name to their stylistic messes.

So last week Judge Kressel issued some pointed style and grammar rules for proposed orders. You can check them out here. His tone is a little cheeky, perhaps, but his rules are golden.

We encourage all our readers to check them out, and pass them along.

(H/T: WSJ Law Blog)

Conviction Rates Matter

Tuesday, December 15th, 2009


On Sunday, the Philadelphia Inquirer published a lengthy article on that city’s abysmal conviction rate for violent crimes. For every three violent-crime arrests in Philadelphia, only one results in a conviction. There are a lot of worse-sounding statistics in that article, but they’re completely meaningless, as they refer only to convictions of the top count, ignoring the reality of plea bargaining. Still, this meaningful stat, the one-in-three conviction rate, is appalling.

Worse than that, about ten thousand violent arrestees walked, no conviction at all, in 2006 and 2007. Only 8% of that number were found “not guilty” after trial. The remaining 92% walked after their cases were dropped or dismissed.

At the same time, FBI stats show that Philadelphia has the highest violent-crime rate of all the big cities.

Coincidence? Of course not.

Violent-crime defendants aren’t getting convicted, and violent crimes are through the roof. There is causation there.

Conviction rates matter. A low conviction rate means the system is broken. If it was working, the rate would be 70% or higher. 33% = broken. Broken means people are being prosecuted for crimes when they shouldn’t have been charged in the first place. Broken means people aren’t getting punished for their violent crimes. And society suffers both ways.

We blame the prosecutors. More on that in a bit.


The Philadelphia courts have created a public perception that violent crime will not be punished. The odds of getting convicted are minor, and the odds of taking a felony are even lower. It doesn’t take too long for people to figure that out. And the bulk of crimes are committed by people who have frequent contacts with the criminal justice system. This critical demographic repeatedly experiences that the odds are in their favor. The system keeps reinforcing this perception that, if you commit a violent crime, you’ll probably get away with it.

Perception is everything in this system. In order to prevent crimes from happening, our system relies heavily on the deterrent effect of punishment. Deterrence is important. It doesn’t affect crimes of passion in the heat of the moment, but most crimes involve some planning or forethought, and those are the ones we want to make people think twice before committing. Whether they think twice or not depends on what they think might happen.

If people generally believe that a criminal act will probably result in punishment, then they will generally avoid that behavior. This would be true even if such acts were never actually punished (think of the budget savings, increased productivity, and human value society could preserve if we could devise such a system!). And the converse is true — if every criminal act got punished, but nobody realized it, then all that punishment would have zero deterrent effect.

In general, our system tends to fall somewhere between the two extremes. There is an amorphous sense that people can get caught, and that most of those who do get caught wind up getting punished. This perception results in a general background level of deterrence that’s meaningful.

Most law-abiding folks add a huge layer of deterrence on top of that, arising from the morals and ethics ingrained during their socialization and upbringing. But those folks aren’t the ones the criminal law really cares about. The law isn’t designed to deter them; it’s designed to deter those who would gladly commit such crimes if they didn’t they’d get punished.

Such people come from all walks of life. Sure, there are plenty of thugs from anarchic streets, who couldn’t care less about their victims or the rules. But there are also the spoiled suits who are just the same, caring nothing for their victims and thinking the rules don’t apply to them. For every crime, there are opportunists of every stripe.

And if the system fails to create the right perceptions, opportunists are going to take advantage of the perceived opportunities… obviously.

And that’s what’s happening in Philadelphia, it seems.


How did it happen? The Inquirer has 6 ideas. We think one or two might even be worth considering.

1) First, the Inquirer says that witness intimidation is working. Witnesses and their families are known to get killed in that city. That scares potential witnesses, who decline to come forward. So cases can’t be proven, and get dismissed or result in minimal plea bargains.

The way we see it, the number of such instances is vanishingly small, but the visceral significance of such instances is dramatic, and so the statistics have a lot more weight than they perhaps deserve.

Regardless, we still have a major problem with this explanation: What are the prosecutors thinking? If you don’t have your witnesses lined up, if you are not in a position to prove your case at trial, you have no business filing charges in the first place. You investigate before charging someone with a crime, not after. It is this blog’s position that any prosecutor who files charges before being able to prove them beyond a reasonable doubt is committing misconduct. The better prosecutors’ offices don’t allow such behavior.

But if the Philly prosecutors are having to get rid of cases because they couldn’t round up any witnesses, that means they were charging these cases prematurely and unethically.

So this “witness intimidation” excuse is really nothing more than a symptom of a deeper problem — that the Philly prosecutors are jumping the gun, and then having to deal with the consequences. And the result of their behavior is a public perception that violent criminals can get away with it. Well done, that DA.

2) The caseload is too high. The judges are too busy, says the Inquirer, so they “put a premium on disposing cases” rather than going to trial.

That’s just nonsense, of course. The vast majority of cases everywhere are disposed of before trial. It’s not the judges who make it happen, either. Defendants agree to plea bargains that cut their losses. Prosecutors agree to plea bargains that result in a fair sentence. And both sides avoid the enormous uncertainty, expense and risks of going to trial.

Plea bargaining does not begin to explain how two-thirds of violent arrestees don’t wind up getting convicted, nor does it explain a public perception that violent criminals are probably going to get away with it.

3) The Inquirer points to the statistic that nearly 10,000 violent-crime defendants had their cases dropped or dismissed in ’06 and ’07.

Again, this means to us that the finger must be pointed squarely at the DA’s office. What the heck are they doing, charging 10,000 people with crimes they couldn’t prove? Cases get dropped or dismissed because they shouldn’t have been charged in the first place. This statistic shows an appalling lack of judgment on the part of the Philly prosecutors.

What are they doing, just charging everyone who got arrested? Perhaps. It’s a sad fact that there are some DA’s offices out there who think it’s their job to zealously advocate for the conviction of everyone who got arrested. But of course that is not only not their job, it’s unethical for them to behave that way.

Prosecutors are given enormous power and discretion, and it is an abuse of that discretion not to exercise it in the first place. They’re supposed to first figure out whether the case should and could be prosecuted, before wasting time and treasure on a pointless case, and dragging people through a horrific process. And they’re certainly not supposed to delegate their discretion to the police, who have neither the authority nor the purpose to exercise it. But those DA’s offices that simply take on every arrest are doing precisely that.

Maybe instead they’re just charging people without proof, in the hopes of getting a plea bargain, and hope nobody calls their bluff. That’s nothing short of criminal extortion, if true.

It should be nigh impossible to dismiss a case, unless there is newly-discovered evidence, or the interests of justice demand mercy. Otherwise, there ought to have been enough evidence to take the case to trial before charges were ever filed. This staggering statistic demonstrates that the DA’s office is charging thousands of people with crimes, when they had no business doing so.

4) The Inquirer says the DA’s office doesn’t track how well or how poorly its cases fare, and as a result cannot prioritize the work of its 300 prosecutors.

That’s sort of irrelevant, really. 300 prosecutors is plenty. The Manhattan DA handles way more cases, and better, with not many more ADAs.

And prioritizing who’s working on what isn’t really something the stats ought to affect. A significant number of losses and dismissals are an indicator that a particular prosecutor might need to be reassigned, but wins and losses don’t affect where you focus your manpower. It’s really just a supply-and-demand thing — put the bodies where they’re needed, that’s all.

5) Philadelphia’s courts are uncoordinated. The basic logistics of getting the parties and witnesses together for trial becomes a disorganized fustercluck of delay. Eventually, cases just collapse because they can never be brought to trial. Defense attorneys know this, and take advantage of it.

We can’t speak to how things work in Philly, having never practiced there. But this doesn’t sound too much different from state court in New York. Unlike federal court, where your trial date is your trial date, NY state courts just set date after date until by lucky chance everyone is ready to go at the same time. It’s pointless and inefficient as hell, but it doesn’t seem to be a huge problem. Most cases get there sooner or later. (Our magic number is usually 5 — if we’ve answered ready four times, it’ll usually go on the fifth. YMMV.)

Getting the cops to show up is a hassle for state prosecutors everywhere. Cops think they’re job is done when they made the arrest, court keeps them from making more arrests, and they don’t like being cross-examined any more than the next fellow. But that’s a simple fact of life everywhere, and doesn’t explain why Philly’s any different. Ditto for herding cats and witnesses. And ditto for defense attorneys who take advantage of the government’s inability to get its act together. It happens everywhere. It’s really irrelevant here.

6) Finally, the Inquirer says the courts aren’t enforcing bail. “Defendants skip courts with impunity,” so that there are nearly 47,000 fugitives in that town. “Impunity” means they never forfeit their bail. The city courts estimate “a staggering $1 billion” in supposedly forfeited bail remains uncollected. Fugitives don’t get convicted, because they’re not in court.

That is appalling. The whole point of bail is to ensure a defendant comes back to court, by holding his money hostage. The defendant puts up his cash or gets a loan from a bondsman. If the defendant doesn’t show up when he’s supposed to, he loses his cash or the collateral for the bond.

But if the defendant never forfeits his bail, then bail serves no purpose.


Whatever the reason, the conviction rate in Philly is so low as to be counterproductive. The DA’s office is acting in ways that increase, rather than decrease, the incentives to commit crimes.

People are being chewed up by the criminal justice machine when they never should have been charged in the first place. Not all of them got dismissed or acquitted. Who knows how many more went through it and went to jail? And criminals are committing more crimes with impunity. Everyone suffers.

This low conviction rate is merely a symptom of a deeper illness. The DA’s office is charging people when it shouldn’t be. It’s either jumping the gun before enough evidence is in, or it’s abusing its discretion and taking on every single arrest, or it’s trying to extort pleas. From the evidence in this article, it looks like the DA’s office is the disease at the root of it all.

There’s going to be a new DA there in January. We’ll see if he does anything about it. In the meantime, on the whole, we’d rather not be in Philadelphia.

First Look: “10 Rules for Dealing with Police”

Wednesday, December 9th, 2009

Our friends at the Cato Institute forwarded this to us, and it looks like it even might be halfway decent. The folks at Flex Your Rights are about to release a new DVD, “10 Rules for Dealing with Police.” It looks like a primer on how the police can lie and trick people into giving up their constitutional rights. Not a shock to those of us who do this stuff for a living, but it might be worth a watch for others.

Supreme Court Noir

Tuesday, December 8th, 2009

Roberts Noir

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.


At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.

Fourth Amendment Screwup: Supremes Get the Law Right, but Flunk the Jurisprudence

Monday, December 7th, 2009


In a seemingly ho-hum decision today, the Supreme Court made the shocking pronouncement that the states cannot afford their citizens more rights than the bare minimum allowed federally. A complete reversal of 200 years of American jurisprudence. And though it’s buried at the end of the opinion, it’s at the core of this otherwise routine Fourth Amendment case.


Although the Fourth Amendment says the police need a warrant to search your house, most of the time they never get one. We have exceptions to the warrant requirement in circumstances where getting a warrant would be pointless, or where concerns for safety take priority. One such exception is when the police have reason to believe that someone is in immediate need of assistance, because they might be hurt or in danger.

The issue is very simple — did the police have an objectively reasonable basis for believing that someone in the house needed help right away?

The issue is not whether, using perfect hindsight, there really was such an emergency. We only care about whether the police acted reasonably under the circumstances. If it sure looked like someone needed police help, then the fact that nobody actually did need help is irrelevant. The police are allowed to check it out to make sure.

The Supreme Court issued an opinion today, in Michigan v. Fisher, repeating this fairly basic rule. They had to, the majority wrote in a 7-2 per curiam opinion, because the Michigan Court of Appeals mis-applied the law, replacing the rule’s “objective inquiry into appearances with its hindsight determination that there was in fact no emergency.”

What happened was fairly simple. Some concerned citizens directed the police to Fisher’s house, where he was supposedly “going crazy.” Once they got there, it looked like Fisher’s pickup truck had smashed into his fence, and there was blood on the crumpled hood. There was blood inside the truck, and on the door to the house. Three of the windows had been busted from the inside. Looking through a window, the police saw Fisher screaming and throwing things, but they couldn’t see what or whom at. Fisher had a little cut on his hand, and the front door was barricaded with a sofa. The cops asked if Fisher needed medical attention, and he told them to fuck off and get a warrant. One of the cops pushed the front door open a bit, then saw Fisher pointing a shotgun at him through the door’s window. The cop beat a hasty retreat. End of intrusion.

The trial court and the state’s highest court said the gun had to be suppressed, because the police never should have poked in through the front door in the first place.

The Supremes said this sure looked like a reasonable basis to believe someone needed immediate assistance. Fisher clearly acted as if he posed a threat to himself, if not to an unseen target of his violence inside the house. The police couldn’t see everything through the window, so pushing open the front door and peeking in was justifiable. The fact that nobody else ultimately was found to be inside, and that Fisher’s only injury was very minor in actuality, doesn’t change what the police knew at the time.

Stevens and Sotomayor dissented, saying that the Supreme Court essentially usurped the trial court’s role here. The Supremes weren’t there to assess the evidence during the hearing, so it was improper for them to say the trial court got the facts wrong. That’s not a bad argument. But that’s not really what the Supremes were doing here. They weren’t saying the court got the facts wrong — in fact, everyone pretty much agreed on the relevant facts — all they were saying is the Michigan Court of Appeals got the law wrong. And it certainly is the Supreme Court’s job to ensure that the law is being applied correctly.

What the Supreme Court did get wrong (though Stevens and Sotomayor missed it) is in saying that the Michigan court erred in holding the police to a higher standard than federal Fourth Amendment law requires. This is a hugely significant error of jurisprudence, and it should not go unremarked-upon.

The rights espoused in the federal Constitution are not the only rights that American citizens may have. They are nothing more than a minimum, a floor below which no government may go. But the states have their own constitutions, and are permitted to grant extra rights and freedoms to their citizens.

For example, on this same Fourth Amendment topic, the most important recent Supreme Court case is Brigham City v. Stuart, 547 U.S. 398 (2006), which said that the federal Constitution does not forbid the police to have had an ulterior motive. So long as the police had objectively reasonable grounds to believe that an emergency was at hand, the federal Fourth Amendment does not care whether the police wanted to see if there was any contraband there as well. It’s like the Whren case, saying that so long as the cops had probable cause in the first place, the federal Constitution doesn’t care whether the stop was really just a pretext so the cops could do something else. This is consistent federal law.

But the states are free to adopt the Brigham City rule or not, as they see fit. New York, for example, hasn’t gotten around to making that call yet. Its rule under People v. Mitchell, 39 N.Y.2d 173 (1976) imposes a requirement that the so-called emergency search not be a pretext for something else. Brigham City, if adopted, would do away with that requirement. But for the moment, it is still New York law, under the New York constitution.

The same goes here. Michigan’s highest court is the final arbiter of what the Michigan constitution requires. And if they say that the citizens of Michigan are entitled to greater protections from police intrusion than are afforded by the federal minimums, then the Supreme Court has no place saying otherwise.

And yet that is precisely what the Supremes have done here. The opinion is per curiam, but it reads as if Roberts wrote it. But whoever wrote it screwed up. They reversed because “the Michigan Court of Appeals required more than what the Fourth Amendment demands.” That is not grounds for reversal. Period. For the Supremes to even think that it is reflects a disturbing antifederalist, Hamiltonian, big-government, centralized-government arrogance that is totally contrary to basic principles of American jurisprudence.

Right result, wrong reason. Bad decision.

Is Delay in Capital Appeals an 8th Amendment Issue?

Thursday, December 3rd, 2009


Last week, we argued that capital punishment as practiced in America does not work, because it takes too long.

The appellate process can take decades, during which time the convict remains on death row, the victims get no closure, and any deterrent effect gets completely washed out. In fact, the huge gap between the crime and the punishment, and the uncertainty as to whether execution would even result, adds even more injustice into the system while imposing enormous unnecessary societal costs.

Our point was not that appeals should be limited — on the contrary, they are never more necessary. Our point was simply that the process takes so long that it nullifies the whole reason for capital punishment in the first place.

We did not explore, however, whether this delay ought to count as “cruel and unusual punishment” in violation of the Eighth Amendment. We figured we’d leave that one for another day.

Well, today’s the day. In dueling opinions yesterday, Justices Stevens and Thomas went head-to-head over just that issue. We think they’re both right, and they’re both wrong.


The case is Cecil C. Johnson v. Phil Bredesen, Governor of Tennessee, et al., No. 09-7839. Stevens’ opinion can be found here, and Thomas’ can be found here.

Cecil Johnson was executed yesterday, after the Supreme Court denied cert.

In July 1980, a man robbed a convenience store in Nashville. During the robbery, the thief brutally murdered the store owner’s 12-year-old son, and two other men who were sitting in a taxi.

A couple of days later, Cecil Johnson’s father turned him in. There was no physical evidence that tied him to the crime. He was convicted and sentenced to death in 1981.

For the next 29 years, Johnson plodded through the capital appeals process, persistently maintaining his innocence.

In 1992, Tennessee for the first time gave him access to evidence that might have undermined key testimony against him.


Justice Stevens argues that this 11-year delay, before Tennessee finally made that disclosure, is a state-caused delay that counts as “unacceptably cruel.”

Thomas replies that it is pure chutzpah for a convict to file appeal after endless appeal, and then claim that the resulting delay violated his rights. He caused the delay, not the government.

But they’re both wrong. The delay wasn’t caused by the government in the way Stevens says, and that only covered the first of three decades anyway. It doesn’t affect the other two decades that this case meandered through the courts. And the delay wasn’t caused by Johnson in the way Thomas says. It’s not Johnson’s fault that the courts took so damned long.

So if the government wasn’t to blame as Stevens argued, and Johnson wasn’t to blame as Thomas argued, then who is to blame?


It is the procedural setup itself that is to blame. We cannot blame a convict for seeking review, to ensure that he was properly convicted and sentenced, and to ensure that the government did not abuse its power and violate his rights. Far from it — we insist on it. Ensuring that the government did it right for this defendant helps protect all of us, and Americans want it that way.

But we can blame the delays that are built into the system’s procedural rules. There is no reason why it should take years to get from a challenged ruling to an appellate decision on that ruling. The only reason why it does take years is because the procedural rules allow it. And human nature being what it is, it is hardly surprising that lawyers and judges will take all the time they are permitted to argue and decide matters of life and death.

Some amount of delay is reasonable, of course — it would be equally unjust to impose time limits that are too short to permit thoughtful argument and careful analysis. But even with longer than usual time limits, there is no reason why state appeals couldn’t be exhausted within a year of sentencing, and federal challenges exhausted within another year. Two years, not twenty or thirty.

(Think this way: Give the defendant 30 days after sentence to file a notice of appeal, then another 60 to file his brief. 90 days is more than enough time to do the work. Give the prosecution a generous 60 days to reply. Take 30 days to prepare for oral argument, and then give the judges another 30 days to noodle it through and make a decision. That’s 210 days, and the first appeal is over. Subsequent appeals are going to go over the same ground, so time limits can be shorter now. Say another 30 days for the defendant to announce he’s taking it to the state’s supreme court. Then 30 days to brief it, 30 days for the prosecution to brief it, 30 days to prepare for oral argument, and 30 days to reach a decision. That’s 360 days. One year. Federal appeals and habeas shouldn’t take more than one more year. And we’re done.)


Okay, so the delay is preventable. It’s caused by government rule-making. And the rules can be changed to protect the defendant’s interest in speedy resolution while continuing to protect his interest in thorough vetting of his conviction.

But does that make this delay “cruel and unusual punishment” for Eighth Amendment purposes? Probably not.

Think about it. All that’s happening to the defendant during this delay is that he’s being incarcerated. In a world without capital punishment, he’d be in the same position. He’d still be incarcerated, while going through the same appellate process that every other inmate goes through. The same process, and the same incarceration, that clearly does not violate ordinary convicts’ Eighth Amendment rights.

So no, the appellate delay is not cruel and unusual. But it still totally defeats the purpose of capital punishment in the first place, and for that simple policy reason the death penalty should be banned until such time as the system works out a way to complete the appellate process soon enough and consistently enough to make it worthwhile.


There are other problems with Stevens’ and Thomas’ arguments. Stevens, for example, is about to retire after a long tenure on the bench, and recent years have seen him going all-out to make a legacy for himself. He is adamantly opposed to the death penalty, and will make any argument against it. As a result, he winds up trying to have it both ways, as Thomas unkindly points out — decrying both the length of the appellate process, as well as the perversity of carrying out executions before every appeal has been exhausted.

Thomas, meanwhile, flatly ignores the interests of justice, and gets hung up on whether the technical procedural requirements were satisfied. He forgets that the procedures are there to serve the interests of justice, and not the other way around. The rules are there to help ensure that defendants’ rights are protected, but the rules are not the only safeguard. The mere fact that the rules were satisfied does not necessarily mean that the system worked properly. Judges — particularly Supreme Court justices — need to be able to step back and determine whether this individual’s rights really were protected, and whether society’s policy interests were advanced.