“We’re addicted to jail.”

That’s the title to my latest in The Hill.  Please take a look.  Here’s a snippet:

We issue jail sentences like candy, to address every known problem that we have. Drug problem — jail. Using your family member’s address to get your child into a better school — jail. Paying college athletes — jail. The United States jails more people than any other country in the world. We have higher incarceration rates than Russia, Iran, and Iraq — by a lot. We tolerate innocent people sitting in jail when we only suspect that they might have done something wrong, as one man did for 82 days when he brought honey into the United States. 82 days.

Even though oversleeping doesn’t seem to be a rampant problem, the judge in Deandre’s case admitted that he was trying to solve a broader jury “misconduct” issue with jail. This is not how it should be.

The jail solution has become much worse than the diseases it was trying to cure. So what do we do about it?

First Monday in October

The Term starts off with two exciting criminal law cases:

1. First up is Kahler v. Kansas: “Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.”  Amy Howe of SCOTUSblog has a nice write up here.  A snippet:

Under Kansas law, Kahler could not argue that he was insane as a defense to the charges. In 1995, Kansas had replaced the insanity defense with a new law that allows a defendant to argue that, because of mental illness, he could not have intended to commit the crime but makes clear that mental illness “is not otherwise a defense.” The law was a response to several high-profile criminal cases, including the attempted assassination of President Ronald Reagan by John Hinckley, who was found not guilty by reason of insanity. The trial court instructed the jurors in Kahler’s trial that they could only consider Kahler’s mental illness as part of determining whether he intended to kill his victims. The jury found him guilty and sentenced him to death.
The Kansas Supreme Court upheld Kahler’s death sentence, rejecting his argument that the failure to allow him to raise an insanity defense violated the Constitution. The U.S. Supreme Court agreed to hear the case in March.
In his brief on the merits, Kahler contends that it has long been established that a mentally ill person who commits a crime without understanding that his actions are wrong is not morally responsible for those actions and therefore should not be held criminally responsible. The importance of this rule, he suggests, can be seen in the fact that, until 1979, every jurisdiction in the United States allowed an insanity defense. Today, he continues, 45 states, the federal government, the U.S. military and the District of Columbia all allow a mentally ill defendant to assert an insanity defense.
But under Kansas law, Kahler argues, it doesn’t matter whether an insane defendant understands that what he is doing is wrong. The only question is whether he intended to commit the crime, which is a much lower bar. Therefore, Kahler posits, “so long as a defendant intentionally kills another human being—even if he delusionally believes the devil told him to do it, or that the victim was an enemy soldier trying to kill him,” he can be convicted of murder even if he is insane. Such an approach is not the equivalent of offering an insanity defense, Kahler maintains. Rather, he predicts, the state’s rule will “shrink the class of defendants who might be acquitted as a result of mental disease or defect almost to the vanishing point.”
Removing such a fundamental principle from the criminal justice system, Kahler maintains, violates the 14th Amendment’s due process clause, which was enacted to protect exactly these kinds of basic principles. Kansas’ rule also violates the Eighth Amendment’s ban on cruel and unusual punishment because, “by convicting and punishing people who are not blameworthy, cannot be deterred, and require incapacitation and rehabilitation that the criminal justice system cannot provide,” it doesn’t advance any of the justifications for punishment – such as deterrence or retribution. Indeed, Kahler notes, at the time the Eighth Amendment was adopted, it was widely regarded as cruel and unusual to impose criminal punishments on the insane.
Kahler acknowledges that the Supreme Court normally gives the states a fair amount of latitude in how they structure their criminal justice systems, and he concedes that states can “tweak” a baseline standard that hinges on whether the defendant knows that his actions were wrong. States can also require defendants to show that they are insane, perhaps even beyond a reasonable doubt, but they can’t get rid of the insanity defense altogether.
Kansas frames the issue very differently, telling the justices that the state has simply “redefined,” rather than “abolished” the insanity defense. Although a defendant cannot raise insanity as an affirmative defense to accusations of a crime, the jury can still consider evidence of mental illness in determining whether the defendant could have intended to commit the crime.

2.  Second up is Ramos v. Louisiana, which addresses “whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.”  Amy Howe again:

In Ramos’ case, the justices are not writing on a blank slate. Nearly 50 years ago, in Apodaca v. Oregon, the court ruled that the Sixth Amendment guarantees a right to a unanimous jury, but that such a right does not extend to defendants in state trials. The justices were deeply divided. Four justices would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four others would have ruled that the Sixth Amendment establishes a right to a unanimous jury that applies in both state and federal courts. That left Justice Lewis Powell, who believed that the Sixth Amendment requires a unanimous jury for federal criminal trials, but not for state trials, as the controlling vote.
In his brief on the merits, Ramos starts with the threshold question of whether the Sixth Amendment’s jury trial clause requires a unanimous verdict at all. He argues that the answer is yes: The Sixth Amendment, he contends, guarantees a defendant in a criminal case a “trial, by an impartial jury,” which the Supreme Court has consistently interpreted as requiring a unanimous jury verdict before a defendant can be convicted of a crime. This includes the court’s 1972 decision in Apodaca, he continues, in which “a majority of the Court agreed yet again that the Sixth Amendment requires jury unanimity to convict.”
The history and purposes of the jury trial clause also make clear that a unanimous verdict is required to convict a defendant, Ramos continues. Starting as far back as the 14th century, Ramos explains, laws in England required a unanimous verdict. The colonies embraced this requirement in their own legal systems, and the Framers of the Constitution and the Bill of Rights adopted this understanding of what the right to jury trial meant in the Sixth Amendment. The requirement of a unanimous verdict also serves important purposes at the heart of the jury trial right, such as countering possible bias or overreach by prosecutors. “Indeed,” Ramos writes, “the knowledge that a conviction cannot be obtained absent a unanimous verdict deters prosecutors from bringing questionable charges in the first place.” The requirement also “ensures the jury’s verdict represents the voice of the whole community” and “promotes public confidence in the reliability and fairness of the criminal justice system.”
Louisiana counters that the Sixth Amendment does not require a unanimous jury. Nothing in the text of the Constitution imposes such a requirement, even though the Constitution imposes other requirements on the jury system – for example, specifying where jury trials must take place. And, the state argues, the justices should not assume that, just because juries were required to be unanimous in the late 18th century, that requirement was tacitly included in the Constitution’s reference to a “jury.” To the contrary, the state suggests, the history of the Bill of Rights shows that the Framers intentionally omitted a unanimity requirement from the Sixth Amendment: The original draft of the amendment included a unanimity requirement, but the Senate rejected it, instead adopting a different version without one. At the same time, the state observes, some state constitutions explicitly imposed a unanimity requirement – which they would not have needed to do if the phrase “trial by jury” had been understood to include a requirement that the jury’s vote be unanimous. Indeed, the state adds, there were other historical jury practices that no one has argued should be read into the Sixth Amendment – for example, “the requirement that juries consist of twelve male property owners who would be held without food and drink until they returned a unanimous jury verdict.”
Louisiana also sees no conflict between the purpose of the Sixth Amendment and a rule that jury verdicts do not have to be unanimous. The purpose of the jury trial clause, the state stresses, is to ensure that a defendant is convicted by members of the community, who have looked at the evidence and independently concluded that he is guilty beyond a reasonable doubt. That purpose is served, the state insists, whether the vote is unanimous or is instead 11-1 or 10-2 – as demonstrated by the fact that most countries (including England) that use jury trials do not require unanimous verdicts. Eliminating the unanimity requirement also significantly reduces the likelihood of a deadlocked jury, the state notes, which in turn reduces burdens on court systems.

Breaking — Jared Strauss is your new Magistrate Judge

Strauss has been an AUSA in Broward. He graduated from Harvard Law School in 2005.

Congratulations to Jared Strauss!

Rudy G. hires Jon Sale

Yours truly is quoted in the Herald article praising Rudy for the hire.  It's a smart move.

A former Watergate prosecutor based in Miami may have a big say in whether Rudy Giuliani complies with a subpoena from lawmakers conducting impeachment hearings in the House of Representatives.

Giuliani has tapped Miami-based veteran attorney Jon A. Sale, of counsel with Nelson Mullins, to represent him before the congressional inquiry into whether President Donald Trump improperly pressured Ukraine’s president for a political favor.

“This subpoena is very complex because it raises a lot of issues — including privilege and constitutional issues — so it requires serious analysis,” Sale said in a brief telephone interview Tuesday afternoon. “There’s a lot of work involved here.”

A former New York University law school classmate of Giuliani, Sale was a junior prosecutor during the Watergate probe and is often described as the dean of the white-collar defense bar in South Florida.

Your new chair of the Committee on Audits and Administrative Office Accountability .... is .....

Drumroll please...
....

Chief Judge K. Michael Moore.

Congrats on the appointment by Chief Justice John Roberts.

Other appointments are listed here, including Judge Kethledge as the Chair on the Advisory Committee on Criminal Rules.

Rosh Hashanah

Rosh Hashanah is the Jewish new year, which is celebrated yesterday and today. Schools and state courts were closed yesterday. But the feds were open. And the 11th Circuit issued this opinion regarding Scott Rothstein, affirming his 50 year sentence. They couldn’t have waited a few days to issue the opinion?

In other news, there’s a new baseball smuggling case. The last one, a trial in front of Judge Kathleen Williams, is on appeal. The Sun-Sentinel has the details on the new matter:

A Cuban national in South Florida is accused of running a smuggling operation that moved Cuban baseball players through Mexico and into the major leagues in exchange for a large percentage of their contracts.
After being deported from Mexico in June, Tomas Valle Valdivia, 44, faces new smuggling charges in Miami. Prosecutors say he is part of a criminal enterprise that has profited for years off the black market for Cuban ballplayers.
***
Valdivia, also known as “Tomasito,” is accused of using go-fast boats to smuggle one player off the island in October 2013 and another at an undetermined time. Neither player is identified in court documents, but the first appears to be Cincinnati Reds pitcher Raisel Iglesias.
Court documents claim the agreed-upon price for the player’s smuggling was 20% of his $27 million contract. Iglesias was the Reds’ only Cuban defector in 2013, according to the website baseball-reference.com. He signed a $27 million contract in 2014.
RELATED: White Sox's Jose Abreu says he ate fake passport, washed it down with beer on plane to U.S. »
In addition, Tomasito’s Lawyer, Joaquin Perez, said the player is “not doing so well for Cincinnati.” Iglesias finished last season with a 3-12 won-lost record.
Perez made the comments Thursday in Miami federal court, where he argued unsuccessfully for Tomasito’s release from custody.

“We don’t go about our work in a political manner.”

That was Chief Justice Roberts at a speech earlier this week.  More from The NY Times:

But he added that the outside criticism did not affect the court’s independence. “A lot of the criticism is based on a misperception,” he said.

People often note that the court is made up of five Republican appointees and four Democratic ones, he said, and they expect predictable 5-to-4 decisions along those lines.

“Last year,” he said, “we had 19 5-to-4 decisions, and seven of them were divided with the five justices appointed by Republican presidents in the majority and the four justices appointed by Democratic presidents in dissent.”

“That shouldn’t come as a surprise because we don’t go about our work in a political manner,” he said.

The last term’s two biggest decisions, on partisan gerrymandering and adding a question on citizenship to the census, both featured controlling opinions written by the chief justice, who was appointed by President George W. Bush. Both were closely divided. In the gerrymandering case, Chief Justice Roberts voted with the other Republican appointees. In the key part of the census decision, he voted with the four Democratic appointees.

This was a funny exchange:

And, of course, Justice Ginsburg brings her experience as a rock star,” he said.

Asked if he could best Justice Ruth Bader Ginsburg at push-ups, he said that would not be a fair fight.

“She has so much less to push up,” he said. “I can comfortably say that I can bench press her weight and she can’t bench press mine.”

Asked for his favorite classic rock band, Chief Justice Roberts, 64, picked the Byrds, saying he had seen them not long ago. “I’ve never been in a room with more 65-year-old men with ponytails,” he said.

He also endorsed the decision to award the Nobel Prize in Literature to Bob Dylan, an observation that was greeted by applause.

How fast is Robert Luck's star rising?

So fast that he had his Florida Supreme Court investiture today, weeks after he was nominated to the Eleventh Circuit Court of Appeals (that nomination is still working its way through the system). Amazing! Good for Justice (soon to be Judge) Luck. Here are some pictures from Tallahassee.com. From a quick scroll of Facebook, it looks like it was an amazing turnout of Miami lawyers and judges (both state and federal). Pretty cool that so many people flew up.

Also in Tallahassee, Miami lawyers Tara Kawass and Chris DeCoste have started trial in State v. Katie Magbanua, one of the highest profile cases in the country right now. The co-defendant, Sigfredo Garcia, is represented by Sa'am Zangeneh. The State is seeking the death penalty against Garcia. More from Tallahassee.com. This might be the first time the blog has cited that newspaper twice in one post.  (Full disclosure, I represent someone who has not been charged in the case.)

And let me be a proud dad for a minute and also post about my daughter Nicole, who has this op-ed in today's Sun-Sentinel. It's on climate change. The intro:

Protesting at last Friday’s global climate strike isn’t enough. Yes, it is amazing that you went. It is incredible that so many people care about the climate that they would miss their jobs, or an important school test, or anything else they may have had.

But if we do not continue to make our voices heard once the strike is over, all of it will be for nothing. Every day, we need to talk about solutions, lobby the government, and change easy habits that can help reduce our collective carbon footprint. When events happen in your community, go to them. When you can, spread awareness to your peers.

Because if the number of people showing up for the environment Sept. 20 showed up every day, we would not face this issue. We would have governments scrambling to keep up with the demands from young people, and old people, and everyone in between.