Drop in the BOP. New stats from the Bureau of Prisons show a drop in the federal prison population for the first time since (at the latest) 1980. You'll also find stats on rates of incarceration and supervision, as well. (H/T Berman.)
Cui Bono? It's not personal. It's just business. NPR has the story on ... the prison business. And relatedly, the ACLU issued its own report late last week, giving the "business model" some added scrutiny.
Garcetti: Replace Death with LWOP. The former Los Angeles District Attorney advocates that move in an op-ed for the Daily News.
It Takes a Leak. A former U.S. Attorney "has admitted leaking a memo intended to cast aspersions on a whistle-blower who went to Congress about Operation Fast and Furious," reports Martha Neil at the ABA Journal. (H/T Legal Ethics Forum.)
Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Ceballos (district court's refusal to amend sentence after entry of J&C was not error) (the circuit has no jurisdiction to review a designation recommendation, or a refusal to make one). UPDATE (11.18.11): But see U.S. v. Baadhio (2d Cir.) (unpub'd) (court of appeals is free to send case back for district court to consider making written recommendation conforming to oral pronouncement). See also Ninth Circuit's post here.
· Schad v. Ryan (habeas) (on remand for reconsideration in light of Pinholster, affirming denial of § 2254 petition).
· Chism v. Washington State (civil rights) (order amending, denying reh'g in case involving plaintiff who made substantial showing that search warrant contained deliberate falsehoods).
· Ditullio v. Boehm (civil) (TVPA permits recovery of punitive damages, but cannot be applied retroactively).
· Green v. Fisher (habeas) ("clearly established federal law" within AEDPA is limited to Supreme Court decisions published by the time of the relevant state-court adjudication on the merits, before conviction becomes final).
Grants of Certiorari:
· Jackson v. Hobbs/Miller v. Alabama (Whether LWOP for defendant who committed capital murder at 14 violates Eighth Amendment).
· Buck v. Thaler (per curiam) (habeas) (denying cert in case involving statements by defense that "would provide a basis for reversal" of death sentence if prosecution had made them) (with Justice Sotomayor dissenting).
· Bobby v. Dixon (habeas) (GVR holding that state court did not clearly err in finding statements to be voluntary after ask-first-Mirandize-second interrogation; Seibert did not bar their use because there had been no compulsion).
· Kawashima v. Holder (whether filing false corporate statements etc. were aggravated felonies involving fraud and deceit).
· Perry v. Newhampshire (due process and identifications under suggestive circumstances not orchestrated by police).
· Gonzalez v. Thaler (timeliness in bringing habeas petition, jurisdiction to issue COA and hear appeal).
· Smith v. Cain (Brady/Giglio/Napue prejudice and petitioner's due process right vel non to have prosecutorial misconduct claims addressed).
U.S. v. Jones (vehicle GPS monitoring case).
Short Circuits, Solid States, and other persuasive authority.
· O'Neill v. Louisville/Jefferson Cnty. Metro Gov't (6th Cir.) (in case involving cute puppies and egregious local government behavior, "consent once removed" doctrine did not apply to undercover officers' attempted second entry).
· U.S. v. Cordova (N.D. Ga.) (illegal search and un-Mirandized statement followed by Mirandized statement were all suppressed).
· U.S. v. Chappell (N.D. Ga. May 24) (consent to search isn't consent to seize).
For the Bookworms - New books and scholarly articles of note.
· "Where Are We Now?: Location Tracking, Technological Change, and the Fourth Amendment," Ian Herbert, 16-2 Berk. J. Crim. L. ___ (2011) (SSRN) (takes a close look at the tracking technology behind different devices currently used, and argues that courts should do the same in assessing the Fourth Amendment implications).
· "Post-conviction Death Penalty Investigations: the Need for Independent Investigators," Laurie L. Levenson, 44 Loy. L.A. L. Rev. S225 (2011) (pdf) (argues that independent investigators should be assigned to all nonfrivolous claims of police or prosecutorial misconduct).
· "Looking at the BOP's Amended RDAP Rules," Alan Ellis & Todd Bussert, 26-3 Crim. Just. ___ (2011) (pdf) (addresses RDAP's limitations and litigation strategies to get around them).
· "The Wretched of the Earth," Richard Delgado, Ala. C.R. & C.L. L. Rev. (forthcoming) (SSRN) (reflects on the failure of the "rotten social background" defense to find a foothold in criminal law, and what that failure means about our basic social commitments).
· "The State of Pretrial Detention," Shima Baradaran, from The State of Criminal Justice, ABA (2011) (SSRN) (argues that current U.S. law has abandoned due process protections historically available in pretrial release context, and discusses solutions to dealing with the "new state of predictive justice").
· "Facing the Facts on the Death Penalty," Hon. James P. Gray, 44 L.A. L. Rev. S255 (2011) (pdf) (argues against the death penalty from its impracticability).
· Incognito: The Secret Lives of the Brain, David Eagleman, Pantheon (2011) (Amazon) (overview on the subconscious brain includes a chapter on "Why Blameworthiness Is the Wrong Question" if what we want is "rational sentencing and customized rehabilitation").
Suggestions or corrections? Email Michael_Drake@fd.org.