SCOTUS vacates CA11 stay of execution

One of the most conservative judges on arguably the most conservative appellate court in the country granted a stay of execution this week because the Muslim inmate was denied his request to have an imam at his side in the execution chamber, even though the prison would allow a Christian chaplain to be present in the chamber. The very next day, an even more conservative Supreme Court lifted the stay and allowed the execution to go forward in a 5-4 decision.

Justice Kagan explains in her dissent:

To justify such religious discrimination, the State must show that its policy is narrowly tailored to a compelling interest. I have no doubt that prison security is an interest of that kind. But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say. The only evidence the State has offered is a conclusory affidavit stating that its policy “is the least restrictive means of furthering” its interest in safety and security. That is not enough to support a denominational preference.

SOTU addresses criminal justice reform

Despite all of the partisan clapping/sitting during the State of the Union, there was one nice moment of bipartisanship. It came during the discussion of criminal justice reform. The First Step Act got everyone standing as it was a joint effort. Who would have thought criminal justice reform would be the issue that brought the two sides together? But so much more needs to be done. The United States has more individuals in prison than any other country and more than Russia and China combined. It’s just insane.

Meantime, the President only gets 4 Supreme Court Justices at the SOTU: Roberts, Kagan, Gorsuch, and Kavanaugh.

I don’t think we’ve seen that lineup on a case yet. I wonder if we ever will.

No power or heat at New York federal prison for a week

The New York Times covered this awful story involving no heat during one of the coldest spells every in New York. The prisoners took up banging on the walls and windows.

From the depths of a federal jail on the Brooklyn waterfront, the sound reverberates: a polyrhythmic pounding like a hailstorm on the roof of a shed.

It is the sound of hundreds of men in freezing cells at the Metropolitan Detention Center in Sunset Park, a jail that was virtually without electricity and largely without heat for over a week. With the jail on partial lockdown, inmates have been unable to use phones to call their loved ones, but their percussive banging could be clearly heard to those outside, and to the world beyond.

The inmates bang anything they can — shoes, their fists — against any surface they meet: the walls and windows and bars of the jail that holds them.

Sunday morning, when protesters unfurled a long paper banner across the street from the jail that said “You are heard you are loved,” the inmates banged their approval.

When Catana Yehudah, whose brother Jason Smith is serving a gun possession sentence at the jail, led a chant through a megaphone — “No heat, that’s torture” — the inmates banged louder.

Ms. Yehudah, 50, called for quiet. “Stop banging for one second!” she yelled. The barrage subsided.

“If there is no heat,” she shouted, “bang on the windows!”

The inmates, nearly invisible behind the windows, pounded louder and louder, the fusillade filling the wide empty street.

Some power was finally restored last night, but the heat is still spotty and many cells don't have any heat at all. Let's hope the courts get involved:

Gov. Andrew M. Cuomo called on the federal Department of Justice to determine whether conditions at the jail violated the inmates’ civil rights.

“No one in New York should live in fear that they may freeze to death alone in the dark,” Mr. Cuomo said in a statement. “These allegations are a violation of human decency and dignity. They also raise questions of potential violations of law.”

Federal Bureau of Prisons officials are due in federal court in Manhattan on Tuesday for a hearing ordered by Judge Analisa Torres in response to what she called “disturbing living conditions.”

Lots of discussion re Stone's arrest versus surrender

Here's Sen. Graham raising concerns about not letting Stone self-surrender. (And this is my original piece on it.)

Many have responded that SWAT team arrests is a wide-spread practice and Stone shouldn't be treated differently. But that argument doesn't hold water -- the practice should NOT be widespread. It should not be acceptable to waste resources and risk a dangerous situation where a defendant will voluntarily surrender.

"You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better."

That was 11th Circuit Judge Newsom in United States v. Munksgard, affirming a criminal conviction "reluctantly" and over Judge Tojflat's dissent. Here's Judge Newsom's entertaining opening:

This criminal appeal presents both a surprisingly close question of evidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an interesting statutory-interpretation issue. As to the former, federal law criminalizes the act of knowingly making a false statement in order to obtain a loan from a bank that is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to knowingly making false statements in order to obtain bank loans—indeed, four times over. Even so, he contends, the government failed to show beyond a reasonable doubt, as it had to, that the institution he swindled was FDIC-insured. This case presents the (irritatingly familiar) question whether the government presented sufficient evidence to prove that pesky jurisdictional prerequisite. The proof of FDIC insurance here—as in other cases in which we have rapped the government’s knuckles—was hardly overwhelming. And given the ease with which insurance coverage could have been demonstrated—certificate, contract, cancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the standard, and when we view the evidence in the light most favorable to the government, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010), we conclude—albeit reluctantly—that the proof was adequate to demonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a warning to federal prosecutors: You are (as the author’s mother used to say) cruisin’ for a bruisin’. Don’t apologize—do better.

I appreciate the wonderful writing, but here's the thing -- prosecutors won't do better until there are consequences, like a reversal. There are so many appellate doctrines meant to make sure that convictions are affirmed (harmless error, abuse of discretion, and so on) that prosecutors and trial judges have learned to do whatever it takes to get the conviction. They know that there won't be any bruisin'. Judge Tjoflat has it right when he concludes:

The majority goes to great lengths to bail the government out. Nothing in our precedent compels this, and the Constitution doesn’t allow it. Because I would vacate the conviction, I respectfully dissent.

It's time to stop bailing the government out.