Category: Criminal Procedure


Intellectual Disability and Uncertainty in Hall v. Florida

I’ve been meaning to post about the Supreme Court’s decision last week in Hall v. Florida—the case in which the Court struck down as unconstitutional Florida’s law for determining whether an offender is intellectually disabled and thus cannot be executed. In its 2002 case of Atkins v. Virginia, the Court concluded that it is unconstitutional under the Eighth Amendment to execute a “mentally retarded” individual. (Thankfully, in Hall, the Court switched over to the term “intellectually disabled.” I’ll be using the terms interchangeably in this post.) In Atkins, the Court stated that it was leaving it up to individual legislatures to determine when a person is “mentally retarded”—in the Court’s words, it was “leav[ing] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Now, other states and the medical community generally agree with Florida that a defendant is intellectually disabled if he has (1) “significantly subaverage intellectual functioning,” (2) “deficits in adaptive functioning,” (3) and “onset of these deficits during the developmental period” (by age 18). The first prong—the one at issue in Hall—is ordinarily determined by a defendant’s IQ score. States have concluded that an IQ score that is 70 or lower meets the “significantly subaverage intellectual functioning” standard. The Hall case raises the issue as to whether uncertainty in obtained IQ scores (or confidence intervals) ought to be included in determining the defendant’s true IQ score for the purpose of this first prong of the intellectual disability test.

In a 6-3 decision, the Hall Court concluded that Florida’s approach—of finding that an obtained IQ score greater than 70 may be determinative of the fact that the defendant is not intellectually disabled—is unconstitutional. In reaching this conclusion, the Court took a detour from its ordinary Eighth Amendment analysis, focusing heavily on the opinions of professional organizations. As in prior opinions, the Court was loose with the numbers in the state-counting aspect of its Eighth Amendment analysis, concluding that a “significant majority of States” have adopted procedures contrary to Florida’s approach. The dissent explains that, of the death penalty states, nine have adopted an approach similar to Florida, nine have not addressed the issue, and twelve take the approach that the Court finds to be constitutionally required. It is difficult to find a national consensus in these numbers. In finding a consensus, though, the majority includes the eighteen states that have abolished capital punishment. Whether to include non-death-penalty states in this calculus is an issue that the Justices have debated before. But the Court’s approach to finding a consensus in this case is especially interesting because of the metric it uses in doing so. Instead of looking at the number of states that have categorically prohibited a punishment—such as tallying the number of states that have banned executing the “mentally retarded,” the “insane,” or juveniles—the Court is counting the number of states that take into account standard errors of measurement (SEMs) in determining whether a defendant is intellectually disabled. This metric accounts for the uncertainty inherent in obtained IQ scores and provides a range in which it’s likely the defendant’s true IQ score falls based upon his obtained score. In examining this metric, the Court frames the question as whether it is unconstitutional for a state to not take into account SEMs in determining whether a defendant is intellectually disabled. But is it really this procedural matter that’s at issue here? Or do we instead care about whether individuals who actually have true IQ scores of 70 or below are being executed? For example, if a state were to conclude that a defendant is intellectually disabled if he has an obtained IQ score of 90 or below, and if the test used in the state has a SEM of 2.5—suggesting that it is quite unlikely that a defendant scoring above 90 on an IQ test would have a true IQ score of 70 or below—would it be unconstitutional for that state’s courts not to take into account the SEM in determining whether a defendant is intellectually disabled? The dissent suggests that another way to probe the uncertainty is to admit multiple obtained IQ scores—a practice the Florida procedures in question allowed. While multiple obtained IQ scores are relevant to determining the reliability of the obtained scores, using this evidence, alone, means working with a fairly small sample size. In Hall, the defendant submitted nine obtained IQ scores, and two were excluded by the sentencing court.

The Court’s decision in this case continues to chip away at the death penalty, albeit quite slowly. The majority’s departure from its traditional Eighth Amendment framework for analysis—a step that is far from new for the Court—injects further uncertainty into the limits on punishments under the Constitution. The Court’s willingness to think more deeply about the methodologies, math, and science underlying some of its decisions, though, furthers the understanding that the meaning of the prohibition on cruel and unusual punishments is evolving. Unfortunately, uncertainty remains about how the Court gathers information about these complicated aspects of law and fact, and how adept the Court is at understanding and employing these concepts.

There is much more that could be said about the Hall case, the Eighth Amendment, and judges’ uses of science and technology, but it has come time for me to sign off of Concurring Opinions for now. Thanks again to the Co-Op gang for asking me to visit, and I look forward to the next time!


UCLA Law Review Vol. 61, Issue 4

Volume 61, Issue 4 (May 2014)

Expressive Enforcement Avlana Eisenberg 858
Insider Trading as Private Corruption Sung Hui Kim 928
Marriage Equality and Postracialism Russell K. Robinson 1010



Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico Jessica A. Eby 1082
Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review Charlie Sarosy 1134





The Long Arm of US Law Enforcement


The front page of today’s NY Times reports on yesterday’s arrest of the notorious drug lord Joaquín Guzmán Loera, aka “El Chapo.” Although the raid was carried out by Mexican forces, the Times reports that they were “aided by information from the United States Drug Enforcement Administration, immigration and customs officials and the United States Marshalls Service . . . .”  It is unclear whether Guzmán will be extradited to the United States.

The raid brings back memories of when the US took a more direct route to capturing fugitives in Mexico: the 1990 capture and transfer to the United States of Humberto Álvarez-Machaín by Mexican nationals at the behest of the US Government. Read More


What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.


David Gray on the Supreme Court’s Contemporary Fourth Amendment Exclusionary Rule

dgray2Tomorrow, if you are in the D.C. area in the afternoon, Georgetown Law’s American Criminal Law Review, American Civil Liberties Union, and Criminal Law Association are hosting my brilliant colleague David Gray to talk about his article, A Spectacular Non Sequitur: The Supreme Court’s Contemporary Fourth Amendment Exclusionary Rule Jurisprudence (forthcoming in ACLR). His lecture will focus on the Exclusionary Rule and the recent cases involving the 4th Amendment. Location: Hotung 1000. Starts at 3:30 p.m. Will be worth it, indeed. Professor Gray is an illuminating and dynamic speaker.


Predictive Policing and Reasonable Suspicion (Part II)

Last week, I blogged about law enforcement’s use of automated predictions. There, the “Super Cruncher” system mines data to highlight high-crime areas so that police departments can best allocate resources. What if those predictions provided the sole basis of an officer’s stop and frisk of a particular location? Suppose the computer suggested that a particular corner was a red-hot zone. When the officer saw someone standing at that particular corner at midnight, he took the computer as its prediction and stopped and frisked the person, revealing an illegal firearm. Would the computer’s prediction form the basis of reasonable suspicion supposing that the person standing on the corner did nothing else to raise any concerns about illegality? Last week, I suggested that the retail question would likely be straightforward. The computer’s prediction about a location could not be said to infer anything revealing about a particular person in that location, right?

Professor Orin Kerr brought a recent case to my attention that while not exactly on point is nonetheless illuminating about the value of automated judgments in evaluating a stop for Fourth Amendment purposes. In United States v. Antonio Esquivel-Rios, a trooper pulled over a defendant driving a car with temporary Colorado tags. When the trooper initially called in the tag, the dispatcher told him that the automated system found that the tags were not registered (as the dispatcher explained, the system did not “return the tag”). The dispatcher also cautioned the trooper that Colorado tags “usually do not return.” Said another way, the dispatcher qualified the system’s finding that the tags were not officially on file (and thus could be fraudulent) with the warning that Colorado tags usually did not show up in the system. Why that was the case for Colorado tags was not explained to the trooper. Nonetheless, the trooper pulled over the defendant and got consent to search the car. It turns out the defendant had a pound of meth in his secret glove compartment. In challenging the constitutionality of the stop, the defendant argued that the trooper relied on an unreliable automated finding that could not support a finding of reasonable suspicion. Said another way, the computer’s “no tags” determination did not amount to particularized suspicion because the system’s findings as to Colorado tags was not reliably revealing of criminality.

The opinion began by noting that a “maniacally all-knowing, all-seeing” HAL 9000 computer in government’s hands would raise Fourth Amendment concerns. The Tenth Circuit did not say more about that point, but I take the court to be saying that computers making “pre-crime” Minority Report-ish adjudications about individuals implicates constitutional concerns–procedural due process is certainly at issue. After making that threshold point, the court then got down to business to explore whether the trooper had reasonable suspicion to stop the defendant based on the computer’s “no return” finding and the dispatcher’s qualification of that finding. As the court explored, reasonable suspicion is far less than probable cause, there needs to be some particularized suspicion of criminality. Concerns about the quality of evidence can be offset with quantity, that is, something more suggesting criminality. If there are questions about the system’s reliability, worries about its reliability can diminish if there are other independent indicia of criminality. The trooper, however, only relied on the database report to justify his stop. The computer “no return” hit, the court suggested, could have been enough for reasonable suspicion if the system was reliable. There, such a computer finding would concern the specific individual, not a particular location as I suggested in my initial post. The court’s point is well-taken. In that case, it would have been permissible to rely on computer finding to support a stop because the computer’s finding would relate to evidence about the specific defendant (or his car). In this case, the court explains, the trooper had reason to doubt that the computer hit meant something suspicious about the car’s tags. That Colorado usually does not return hits could mean that Colorado is having bureaucratic problems inputting temporary tags into the system; it could mean that some, most, or vanishingly small number of “no return” findings say something about the tags’ verifiability. What goes into the database impacts the reasonableness of the seizure relying upon it, garbage in, garbage out. The court notes, relying on Professor Kerr’s work, that reasonable suspicion is not a statistical determination, much as probable cause isn’t. But in this case, the database had reliability problems and as the sole reason for the stop, it had to be assessed with a eye to its statistical value. With its concern about the computer finding’s reliability made clear, the court remanded the case to the district court to reconsider the constitutionality of the stop and the evidence found as a result of the stop. The Tenth Circuit’s finding makes a lot of sense, indeed. It also suggests that computer adjudications have to have an indicia of reliability and must relate to a specific individual (rather than location) to support reasonable suspicion.



Brandon Garrett on the Court’s Recent Criminal Procedure Decisions

Professor Brandon Garrett has an interesting post on three important criminal procedure cases from the past Term (including his take on Maryland v. King):

With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.

First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. InMcQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.

Moreover, the Court still has not recognized an outright constitutional claim of innocence. Innocence is merely a “gateway” to excuse complex procedural barriers, but innocence is not a stand-alone ground for relief in federal courts. More than two-decades into the DNA era, judges are now far more aware than in the past that prisoners can prove their outright innocence of serious crimes. But as I describe in Convicting the Innocent, judges have only slowly and reluctantly loosened their grip on technical rules that make it extremely difficult for even innocent convicts to secure their freedom.

Second, although DNA testing continues to reshape the criminal justice system, the Supreme Court’s decision this term in Maryland v. King may encourage some of the worst tendencies in the law enforcement use of DNA. The Court endorsed police taking DNA from people at the time of arrest for purposes of “identification,” but also to permanently enter that DNA in the national databank to search against any number of past and future unsolved crimes. Given my interest in using DNA to potentially free the innocent, one might expect that I would welcome any and all expansion of DNA databanks. However, I co-authored an amicus brief with Erin Murphy taking the other side and offering a detailed explanation of our thinking. We argued that the federal government and states should absolutely invest in collecting DNA from serious criminals, and in using DNA to potentially free the innocent. But taking DNA from vast numbers of mere arrestees, who have not been convicted of any crime, is counterproductive. It is a serious burden on the privacy of vast numbers of people, including innocent people who are cleared after arrest. By the same token, taking DNA from arrestees has not been shown to improve crime fighting; in fact, it can dilute the power of DNA databases. Read More