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Atkins and Double Jeopardy:

Last February, a three judge panel on the U.S. Court of Appeals for the Sixth Circuit granted death row inmate Michael Bies's habeas petition, holding that the Double Jeopardy clause bars the state from re-litigiating the issue of Bies' mental retardation. The Ohio Supreme Court has affirmed Bies' death sentence in 1996, despite his mental retardation. The Court agreed with lower courts that this mitigating factor was not outweighed by other aggravating factors. Since then, however, the U.S. Supreme Court has held, in Atkins v. Virginia, that state may not execute the mentally retarded. Bies filed a habeas petition on these grounds, seeking to get a life sentence, prompting prosecutors to re-open the question of Bies' mental retardation. No dice, the Sixth Circuit panel held last fall, as reopening this issue would violate the Double Jeopardy clause. As the opinion by Judge Clay concluded:

Under the Double Jeopardy Clause, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443. This rule establishes an absolute bar to a state seeking to relitigate such an issue of ultimate fact, regardless of the correctness of the original decision. . . . We therefore do not concern ourselveswith the merits of Petitioner’s Atkins claim; the only question before this Court is whether the government, having litigated and lost the issue of Petitioner’s mental retardation, is now attempting to reopen this question. . . . Having examined the record in this case, we determine that Petitioner was found to be mentally retarded, under the clinically accepted definition of mental retardation, by a final judgment of the Supreme Court of Ohio. We further determine that the government is now seeking to relitigate this identical issue, that the Supreme Court of Ohio’s finding was necessary to its judgment, and that the government had a full and fair opportunity to litigate this issue on direct appeal. . . . Accordingly, this case is controlled by the United States Supreme Court’s decision in Ashe, and this Court is obligated to follow that decision. As § 2254 does not require us to defer to the state court’s judgment in this case, we therefore AFFIRM the decision of the district court granting habeas relief to Petitioner, vacating his sentence of death, and ordering that he be resentenced to receive a sentence other than death.

As the time, Robert Loblaw found the decision to be "remarkable" and "creative." Yet as Orin noted at the time, Loblaw also predicted "reversal is inevitable." Not so fast. Last week, the U.S. Court of Appeals for the Sixth Circuit denied the state's petition for rehearing en banc. Judge Clay wrote an opinion concurring in the denial of en banc review. Judge Sutton dissented. His dissent concludes:

What is most trying about all of this is that it does not seem necessary. When the federal courts first acted in this case, they interrupted a state trial court proceeding designed to determine whether Bies had a successful Atkins claim. The whole point of the double-jeopardy argument was to stop the state court proceeding in its tracks and to prevent the same courts from opining about the validity of his Atkins claim. In obliging Bies, however, we have failed to give the state courts a chance to bring their judgment to bear on the point, and after this decision federal district courts within the circuit presumably will do the same thing with other similarly situated Atkins cases. See State v. Hill, No. 2006-T-0039, 2008 WL 2719570, at *6 (Ohio Ct. App. July 11, 2008) (disagreeing with Bies and holding “that the issue of Hill’s mental retardation was not ‘actually and directly litigated’ at his sentencing hearing”). AEDPA’s exhaustion requirement exists to prevent just this kind of premature intervention while a State addresses the petitioner’s challenge. . . . And unlike cases where we have permitted unexhausted double-jeopardy challenges before the defendant’s second prosecution commenced, . . . Bies faces no risk of a second prosecution.

By contrast, were we to allow the state court proceeding to go forward, Bies is hardly in a disadvantaged position. He has an IQ of 69, and two licensed clinical psychologists have concluded that he is mildly mentally retarded. Assuming that these opinions stem from balanced evaluations of Bies’ mental capacity, there is ample reason to think that the Ohio courts will take his claim seriously. Atkins, like Bies, was mildly mentally retarded . . ., and Bies’ IQ places him within the category of individuals the Court recognized might be affected by its decision . . . . Nor have the Ohio courts been reluctant to grant relief under Atkins. The Ohio Supreme Court already has granted relief in one such case, State v. White, 885 N.E.2d 905, 917 (Ohio 2008), and the state trial courts have done the same in six others . . . . And even if the worst should happen from Bies’ perspective, even if the Ohio courts should conclude that Bies was not mentally retarded under Atkins, he could seek certiorari on the question or seek habeas relief in the district court. Far from undermining Atkins, this path (through state court determinations) is exactly what the Supreme Court envisioned: For Atkins left “to the States the task of developing appropriate ways to enforce the constitutional restriction,” and principles of comity and federalism mandate that we give the Ohio courts the first opportunity to apply that restriction to Bies’ case.

Jim at FSU (mail):
I don't understand why we are rewarding murderers for being stupid.

I also don't understand how someone can be intelligent enough to premeditate a murder but not intelligent enough to fry for it and provide a deterrent effect to others. You would think the bar was lower for the second part.
8.14.2008 11:09am
OK (mail):
Mr. Bies murdered a ten year old boy while raping him forcibly. That boy's last minutes on earth were spent being raped and beaten to death by Michael Bies.

Thank God the Supreme Court is here to tell us that Mr. Bies deserves mercy.
8.14.2008 11:18am
Sarcastro (www):
Jim at FSU has a point - retarded individuals rarely plan anything!

14 year olds do plan all the time, though, so we should be killing a lot more of them since moral agency is identical to the ability to plan.

Also apes can be crafty planners as well. Why do we not try them for crimes?
8.14.2008 11:25am
Sarcastro (www):
OK I think the wheels of justice should totally take emotional appeals about how much being murdered sucks into account. Justice is about revenge, after all!
8.14.2008 11:27am
Bill W. (mail):
Hey Sarcastro, do fourteen year olds normally abduct ten year old boys and rape them to death?

Sorry for being so sarcastic, but you are definitely an idiot. Perhaps you ought to get back to your schoolwork, kid, and leave justice to the adults.
8.14.2008 11:42am
Ryan Waxx (mail):
Well, I'm glad to know that Sarcastro is in no danger of being executed in the united states.
8.14.2008 11:44am
Jim at FSU (mail):
If a 14 year old rapes a child and beats him to death, he deserves to be executed.

If a monkey rapes a child and beats him to death, he also deserves to be executed.

Your examples only highlight the stupidity of this approach to the death penalty debate. You guys are essentially treating this like some sort of progressive tax on misbehavior.

Punishment serves the interests of retribution because society demands retribution and will seek it independently if the courts do not provide it. Seeking retribution through the courts at least minimizes the chance that the wrong people will be executed.

Punishment serves the interests of incapacitation because the rights of future victims are more important than the rights of someone who has committed horrible crimes and likely will do so again. Some people are beyond rehabilitation- especially murdering rapists with room temperature IQs.
8.14.2008 11:53am
DangerMouse:
Punishment serves the interests of retribution because society demands retribution and will seek it independently if the courts do not provide it.

That is 100% true. There will be blood. It will either be under due justice, or not.
8.14.2008 11:59am
Sarcastro (www):
Jim at FSU I know England has no death penalty, and the roving justice gangs are something to see! If only they had some state outlet for their need for retribution!

And I always like to assume that criminals will commit the crime again. That's why theft should carry a lifetime prison term - cause of the rights of future criminals!

Finally, you really got to the heart of my point with the taxing murder idea. That's totally what I want!

Bill W., glad you pointed out that when a 14 year old rapes and kills someone its not normal. Not like adults, where rape-murder is a regular occurrence.

How did you know I was such a whippersnapper? Was it cause all real adults loves them some death penalty?
8.14.2008 12:01pm
DangerMouse:
I know England has no death penalty, and the roving justice gangs are something to see! If only they had some state outlet for their need for retribution!

I know this will only encourage you, but England has completely wimped out. They are completely under the heel of their oppressive state system that treats anyone defending himself as an oppressor, and anyone engaging in crime as a victim on society. If there were roving justice gangs, that would actually be an improvement.
8.14.2008 12:07pm
Two-Fisted Law Student (mail):
I think it's because only grown-ups have the sophisticated moral calculus required to tacitly admit that the best we can aspire to as a society is assuaging bloodlust.
8.14.2008 12:08pm
martinned (mail) (www):
General issues of death penalty morality aside, let me get this straight: The Double Jeopardy clause works here against the defendant? Huh? How did they get that from "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"?
8.14.2008 12:13pm
Soronel Haetir (mail):
Time for me to once more trot forward my alternative to current US sentencing practices and see if I can get some agreement.

I produced the following under the basic theory that any convict chosen for rehabilitation deserves enormous resources dedicated toward that end, while
those not so chosen deserve nothing more from society..

The basic plan goes as follows:

1) Upon felony conviction, of whatever level ranging from first degree murder to passing bad checks a new quasi-jury pool is chosen. These panel members,
unlike the guilt jury, come from localities where the crime did not occur. Also unlike the guilt jury they are not actually convened into a sitting panel.
The size of the pool is inversely proportional to the severity of the crimes of conviction, though never falling below a minimum threshold.

2) Each member of this new pool is approached in turn, one at a time. They are not told their order within the pool. The pool member is presented facts
about the convict, though some material is held back (race and name as race proxy being two that come immediately to my mind). A defense representative
will be part of this process to ensure that no improper information is conveyed. If any such information is conveyed then the results of that pool member
are disqualified if adverse to the convict.

3) The pool member is asked whether they wish to rehabilitate the convict. If the answer is "yes" then the convict is placed in the pool member's home
in some form of legal guardianship and is once more considered to be a juvinile for legal purposes. A stipend calculated to make the convict's presense
and rehabilitation financally neutral shall be paid in order to negate at least most cost-benefit analysis from the pool member's mind.

4) If all pool members say "no" the convict is placed in prison where they are given a chance for a normal set of appeals. When those appeals are exhausted
the convict is executed, not for the crime of conviction, but for being considered unfit for living within society.

5) Upon completion of the term of legal guardianship, the the convict is returned to full civil status with no restrictions whatsoever on their liberty.
The only time the prior conviction can be discovered through legal means is during a subsequent penalty determination.

This system is intended for use only in felony cases, misdemeanors should be reduced strictly to incarceration/fine with no other effects outliving whatever
term of probation is also given. Also no actual juvinile is to be placed in this system, though many juvinile cases make the natural parents appear as
a significant issue.

I realize the distance requirements of step 1 would be far easier to acheive in the federal system and large states like California and Texas than smaller
states. I believe this could be overcome by setting up some form of convict exchange. I include this step for the purpose of removing the convict from
an familiar environment, and hopefully make it at least somewhat more difficult to establish contact with whatever criminal element exists in the new location.

This system would also reduce the value of plea bargaining, the remaining options being immunity or a negotiated pool size larger than contemplated for
the criminal category.

I also realize that current precident would not allow the above system to be implemented and that amendment(s) would be required to effectuate that change.
8.14.2008 12:14pm
Sarcastro (www):
Two-Fisted Law Student Sweet! I LOVE Conan comic books! I'm glad to live in the only society that truly respects the principles rugged individualism and self-government. And kills people.
8.14.2008 12:15pm
PLR:
This is a good example of why we don't include the phrase "reversal is inevitable" in those letters we write to clients' auditors under FAS 5.
8.14.2008 12:16pm
Jim at FSU (mail):
Your sarcasm is needlessly insulting and the arguments you put forward are illogical and mostly miss the point (probably intentionally).

England is a different country to the US. They have different views on capital punishment and apparently different views on self defense. I'm personally of the opinion that everyone with a scrotum left the UK decades ago. In any case, fuck them and their opinions. If I wanted to live under UK law, I would move to the UK.

Thieves can often be rehabilitated and the crimes they commit are relatively speaking, not that damaging to society or shocking to the conscience. I knew someone whose husband got scared into completely reforming his behavior due to fear of getting a 2nd strike. That being said, career thieves should be locked up for progressively longer times as they show increased recalcitrance and reoffense. I think 3 strikes kicks ass, I just wish the third strike involved an axe to the neck.

And my point about treating punishment like some sort of progressive tax is that there is too much focus on the circumstances of the perpetrator and crafting a perfectly fair and proportional punishment to suit him. It pays too little attention to the retributive and incapacitory functions of punishment and sends a message to the rest of the criminal population that they don't have much to fear when apprehended.
8.14.2008 12:17pm
An Adult (mail):
Thank God this country isn't run by law students.

Ah, to be young again and always be the brightest, rightest, and most handsome in the room.

Perhaps in a few years when it's your kid that gets raped and murdered, you will engage in "sophisticated moral calculus"?

Or maybe you're just an idiot like Sarcastro.
8.14.2008 12:17pm
Huh? What? (mail):
Someone might want to let "Sarcastro" in on the fact that simply making dumb comments to be confrontational isn't "sarcasm."
8.14.2008 12:21pm
martinned (mail) (www):
Perhaps in a few years when it's your kid that gets raped and murdered, you will engage in "sophisticated moral calculus"?

Which past Presidential candidate was it again that got tripped by that question? There's no right answer to that one, is there? If you answer one way, you're an unfeeling a-hole, and if you answer the other way, you're a hypocrite (or at least contradicting your own stance).

One more time, then: the purpose of criminal law is not to give the victim their pound of flesh (quote not quite on point, I know), but rather to protect the interests of society in general in upholding the law, etc.
8.14.2008 12:26pm
Sarcastro (www):
Anyhow, now that we've established both that America is a lot more bloodthirsty than England AND that I am some kind of law-student idiot who insults people all the time, lets get back on the subject.

Double Jeopardy totally allows re-litigation of facts for o other reason than that they suddenly become determinative!
8.14.2008 12:26pm
David M. Nieporent (www):
Also apes can be crafty planners as well. Why do we not try them for crimes?
It's actually very bad sarcasm, because if an animal exhibited the sort of behavior that we're discussing, it would be destroyed. Without benefit of a trial.

The notion that lack of moral agency is a defense is an odd one; if someone truly has no moral agency, then killing him is no different than killing a vicious animal. What would be the reason to hold back? (A child presents a different scenario; there is a reason to hold back in such a situation: the child will eventually mature. But presumably a retarded person will not one day get better.)
8.14.2008 12:26pm
Sarcastro (www):
[David M. Nieporent Curses! You have a good point with the monkeys.]
8.14.2008 12:29pm
Redlands (mail):
When Atkins came down I could only think, as a criminal trial attorney, "Great, they rule and we suffer the consequences." This case is but one example. Trying to accurately litigate the issue of retardation at the trial level is a nightmare. Capital crime defendants seem to begin to regress into retardation almost from the instant of their arrest, and more often after meeting their appointed attorney. If there is a conviction, be certain the issue will be raised, if nothing else by way of an IOC claim. In a sense, Atkins can be viewed as yet another attorney full employment guarantee.
I'd rather be unemployed.
8.14.2008 12:31pm
Sarcastro (www):
Redlands makes the powerful argument that because some people fake being retarded, we should totally execute actually retarded people, in case they might be faking.

A great point to follow up David M. Nieporent equating retarded people with animals needing to be put down.
8.14.2008 12:35pm
Soronel Haetir (mail):
Another question I find interesting to consider. Say SCOTUS went ahead and ruled that execution always violates the 8th amendment, what are the odds of there being enough backlash to ratify a new and explicit allowance for it? And even assuming that, are the courts honest enough that they would obey?
8.14.2008 12:42pm
martinned (mail) (www):
@Soronel Haetir: Good question. Given the widespread support for the death penalty in the US, I would suppose that if such an amendement doesn't make it through, that would be sufficient support for the suggestion that no amendement will ever again be possible in this day and age. (Remember, the difficulty of article V amendements is one of the arguments, though not mine, for living constitutionalism.)
8.14.2008 12:47pm
nick99 (mail):
What is actually driving any argument against execution is a nuanced appreciation for the nature of mental retardation. If as some say, the death penalty is supposed to serve as a deterrent, it doesn't serve that purpose in the case of someone who cannot appreciate the likely outcomes of his or her actions. Apart from that, there is the question of moral reasoning, the basis for an understanding of the wrongness or depravity of one's behavior. There is also the issue of perspective-taking by someone who is committing a crime, i.e., the ability to put himself in his victim's place. In plain language, did he "know any better?" This does not even get into the question of whether a person who has, as Dr. Winter describes it, "limited ability to communicate," can effectively participate in his own trial. Moreover, as a deterrent, a death sentence for a retarded person should be seen as completely ineffective, as a normal-functioning potential offender will not identify with a retarded offender.
8.14.2008 12:57pm
Houston Lawyer:
One purpose of the law is to prevent people from taking justice into their own hands.

One of my nieces was recently abducted from her home at gunpoint and raped. The police have caught the man who did it and I pray that he doesn't get out of jail for many years because I am afraid that someone I know might kill him if he gets out earlier. I'd prefer that those that I know not become criminals themselves.
8.14.2008 12:58pm
Soronel Haetir (mail):
I do not argue from a deterrance position. I prefer almost total incapitation. Rehabilitation should be a matter of grace, not right. And I see little use putting that grace effort towards people who are unable to see that grace for what it is.
8.14.2008 1:02pm
martinned (mail) (www):
@Soronel Haetir: If the point is incapacitation, then what is wrong with preemptively jailing or executing people? If a convicted murderer has, say, a 50% of reoffending in any given year that he is free, why not lock up or execute any other person that is found to have a 50% chance of committing murder in a given year? From your reasoning, it shouldn't matter very much whether the defendant has actually done anything yet, as long as they have a demonstrable probability of doing something wrong in the future.
8.14.2008 1:06pm
Jim at FSU (mail):
The increasingly generous self defense laws around the country have largely displaced the incapacitive and retributive effect of the death penalty. The more the supreme court changes relative to society, the more everything stays the same beneath the surface. If people place a low value on the lives of criminals, this will find expression in a multitude of ways.

The upside of this is that we save millions of dollars on trials and incarceration every time a criminal is justifiably killed.
8.14.2008 1:09pm
Sarcastro (www):
Soronel Haetir Society, red in tooth and claw, eh?
8.14.2008 1:11pm
Jim at FSU (mail):

@Soronel Haetir: If the point is incapacitation, then what is wrong with preemptively jailing or executing people? If a convicted murderer has, say, a 50% of reoffending in any given year that he is free, why not lock up or execute any other person that is found to have a 50% chance of committing murder in a given year? From your reasoning, it shouldn't matter very much whether the defendant has actually done anything yet, as long as they have a demonstrable probability of doing something wrong in the future.


We have to give people the benefit of the doubt until they prove otherwise. It's the only way we can have a free society. That being said, when you rape a 10 year old boy and beat him to death, you've proven otherwise. Enjoy being executed returned to the general prison population.
8.14.2008 1:12pm
Adam J:
Jim at FSU - "One purpose of the law is to prevent people from taking justice into their own hands." And here I thought we as a society had moved past the place where trials were simply to avoid ignorant people from lynching the first suspect they could find.
8.14.2008 1:14pm
martinned (mail) (www):
@Jim at FSU: I agree that having some connection with an actually offence committed is "the only way we can have a free society", but you're not explaining why, if the purpose of criminal law is incapacitation, why one should give "the benefit of the doubt" to someone who has a 50% chance of offending, but not to someone who committed homicide due to a unique set of circumstances that are unlikely to repeated. (Some crime of passion, say.) The point of jailing offenders isn't (only) that we want to incapacitate them from reoffending, but mostly that we want to deter others from doing as they did.
8.14.2008 1:17pm
martinned (mail) (www):
@Adam J: Yes, some of the commenters here are painting a pretty dark picture of the US of A.
8.14.2008 1:19pm
Soronel Haetir (mail):
I don't think I've ever argued that society should be nice. A barely controlled instinct for instant violence is one of the best traits of humanity. I hope we never lose that.
8.14.2008 1:25pm
martinned (mail) (www):
Some things you need to hear (or read) twice to believe:

Soronel Haetir (mail):
I don't think I've ever argued that society should be nice. A barely controlled instinct for instant violence is one of the best traits of humanity. I hope we never lose that.
8.14.2008 1:28pm
Jim at FSU (mail):

And here I thought we as a society had moved past the place where trials were simply to avoid ignorant people from lynching the first suspect they could find.


Although I don't agree with your particular wording, I get the idea of what you're saying and I'm not going to nitpick.

That being said, I think you're deluding yourself. You say we've moved beyond this, but to where? Besides the due process consideration you disparage above, most of the other benefits from government involvement in criminal justice are political benefits that accrue to the government. Haven't we seen enough politically motivated prosecutions to know this isn't a good place to go?

What I propose is actually the least evil approach to criminal justice- a criminal justice system that gives the people what they believe is just, in a manner that preserves due process and ensures only the guilty are punished.
8.14.2008 1:28pm
Duffy Pratt (mail):
Pathetic. The signal/noise ratio hnre has basically hit zero.

Martinned (who is the only one who actually has brought up the issue under discussion in the post):

Double Jeopardy here is working in favor of the defendant, not against him. As I understand it, at the original trial, the defendant raised his retardation as a mitigating factor which should weigh against his execution. The jury found that the aggravating factors outweighed the mitigating factors.

According to the 6th Circuit, this means that the issue of retardation was litigated. I don't know if it was actually litigated or not. It's possible that the prosecution didn't bother to contest defendant's retardation because it was confident that the aggravating factors were so severe that the jury would convict anyway.

So, if the 6th circuit had ruled otherwise, the prosecutors would get a chance to show that Bies is not retarded within the meaning of Atkins. But the 6th circuit says that the prosecution already had that chance, and they blew it.

I don't know who has the better of this argument. I would tend to think that it would depend quite a bit on what was presented to the jury on retardation at the original sentencing phase, and what the jury actually found -- what precisely was on the verdict form about retardation.
8.14.2008 1:29pm
Two-Fisted Law Student (mail):
Naming oneself "An Adult" seems a bit like desperate self-assurance.
8.14.2008 1:33pm
martinned (mail) (www):
@Duffy Pratt: You're right, I allowed myself to go along with the off-topic bonanza. (It's fun, though.)

So if the issue of the defendant's mental retardation was already settled in the defendant's favour, does this not mean that he is automatically, as a matter of law, entitled not to be executed under Atkins?
8.14.2008 1:34pm
mad the swine (mail):
How precisely does a person with an IQ of 69 file a habeas petition? (Oh, right, the ACLU, who never met a child rapist they didn't like.)

I've got a suggestion. How about this: the Supreme Court's ruling stands, and retarded child-killers cannot be executed. But in order to receive a stay of execution, retarded child-killers have to file a habeas petition themselves. And if a retarded child-killer files a habeas petition on the grounds of retardation, he's obviously intelligent enough to understand legal proceedings and future consequences, and so is not retarded, and so can be executed. We could call it 'Article 22'. :)

As for the actual issue: sorry, Mr. Pratt, but I'm not a lawyer, and I'm not too concerned about legal niceties when dealing with criminals and terrorists. When we know someone's guilty, I think the government should have the right to retry people as many times as necessary to get it right, double jeopardy be darned.
8.14.2008 1:46pm
Sarcastro (www):
[Duffy Pratt, I do believe DJ generally works in the defendant's favor.

I do look with suspicion on the state when it suddenly wants to re-open an issue that only now is determinative. Seems a lot like a retrial after acquittal to me, even if the state didn't know it was an acquittal at the time.]
8.14.2008 1:46pm
Sarcastro (www):
[Damn, looking at Sattazahn v. Pennsylvania 537 U.S. 101 (2003), avoiding the Death Penalty in the sentencing phase is not necessarily the same as acquittal.]
8.14.2008 1:49pm
Adam J:
Jim at FSU- "What I propose is actually the least evil approach to criminal justice- criminal justice system that gives the people what they believe is just, in a manner that preserves due process and ensures only the guilty are punished."

Did I miss something? What did you propose? And the point not allowing personal justice is to ensure due process occurs and the right person is punished, and punished fairly. Deciding we need more severe punishments simply to prevent personal justice is simply acquiescing to the demands of people simply because they are willing to break the law.

Let me ask you if you admire Europe for acquiesing to Jihadists and censoring criticism of Islam? Because they acquiece for the same reasons you propose... fear that some are willing to break the law to achieve their end.
8.14.2008 1:57pm
Adam J:
Jim at FSU- It sounds like Mad the Swine would be willing to administer justice for us... I'm sure he'll get it right!
8.14.2008 1:59pm
Duffy Pratt (mail):
martinned:

Yes. And that is what the Sixth Circuit found. The order was for Bies to be sentenced to life without parole without further review of his mental retardation. I'm not sure what is confusing you. Or maybe I'm missing something?
8.14.2008 2:07pm
martinned (mail) (www):
@Duffy Pratt: No, it's just me being to lazy to actually look at the actual ruling. My bad.
8.14.2008 2:11pm
PLR:
Mad the swine:
How precisely does a person with an IQ of 69 file a habeas petition? (Oh, right, the ACLU, who never met a child rapist they didn't like.)

Actually it was the public defender, using your tax dollars. Thanks for your contribution (if you pay taxes, that is).
As for the actual issue: sorry, Mr. Pratt, but I'm not a lawyer ... I think the government should have the right to retry people as many times as necessary to get it right, double jeopardy be darned.
Is that how they do things in your country?
8.14.2008 2:22pm
Jim at FSU (mail):
Europe doesn't protect freedom of speech. All the muslims have done is make use of existing censorship institutions.

In the US all muslims (or christians for that matter) can do is BAWWW about how hurt their feelings are.
8.14.2008 2:24pm
Adam J:
Jim at FSU- "Europe doesn't protect freedom of speech. All the muslims have done is make use of existing censorship institutions." Are you seriously trying to debate the accuracy of my metaphor? Instead why don't you explain how we should acquiesce to the threat of vigiliante justice but we shouldn't acquiesce to the threat of jihadist violence for profaning Islam.

"In the US all muslims (or christians for that matter) can do is BAWWW about how hurt their feelings are." My point exactly, we don't acquiesce simply because there is the threat of violence.
8.14.2008 2:30pm
martinned (mail) (www):
@Jim at FSU: Actually, I've been reading Spinoza recently, who wrote things in 1670s Holland that would get you in serious trouble even in 2008 Kansas. So what were you saying about freedom of speech again? (Apart from that it is off-topic.)

Atkins seems generally right to me, since there is no purpose served by execting someone who is mentally retarded except vengeance, and this application of double jeopardy seems fairly obvious, too. The only reason why this is worth a full Volokh Conspiracy blog post in the first place is because of the AEDPA. Quoting the Decision of the Day post that Adler referred to in the original post:

"Since the panel's Double Jeopardy holding is not based on clearly established federal law, AEDPA would ordinarily prevent the Sixth from granting habeas relief. But the panel turns to the other safety valve of AEDPA: whether the state court's decision involves an unreasonable determination of fact. In a creative ruling, the majority concludes that the state court made some unreasonable findings about the expert who initially diagnosed Bies as mentally retarded."

So the question is, was there really no way to hold that the state court ruling violated clearly established federal law? Surely this application of DJ fits in 200+ years of case law on the issue?
8.14.2008 2:32pm
John P. Lawyer (mail):
This may be a stupid question, but the double jeopardy question aside, isn't there an issue of whether Atkins applies retroactively (under Teague) on collateral review? Was that addressed by either the Ohio state courts of the federal district court? Did Ohio make that argument?
8.14.2008 2:58pm
John P. Lawyer (mail):
Nevermind, I forgot that Atkins was explicitly made retroactive on collateral review.
8.14.2008 3:09pm
Litigator-London:
How nice to see all you advocates of the criminal sentencing standards applicable at the time of the Founding Fathers hard at work. As a litigator old enough to remember when we did have the death penalty in the UK, I am very pleased that it has now gone and there are no more irremediable miscarriages of justice - posthumous pardons not being worth very much. I look forward to the day when the USA will catch up - perhaps in 100 years or so - it took you that much longer to abolish slavery. Query, when abolition comes, will it provoke another civil war ?
8.14.2008 3:37pm
hattio1:
Mad the Swine says;

As for the actual issue: sorry, Mr. Pratt, but I'm not a lawyer, and I'm not too concerned about legal niceties when dealing with criminals and terrorists. When we know someone's guilty, I think the government should have the right to retry people as many times as necessary to get it right, double jeopardy be darned.

So, if you're charged with a crime, and the government can't prove it, they should be able to keep trying? How does the government "know" that you committed a crime if you keep getting found not guilty at trial? You place an awful lot of faith in the government.

Jim at FSU,
You talked in one of you previous comments about how there is way too much emphasis on the circumstances surrounding the criminal/crime in the current justice system. I'm curious as to whether you actually practice criminal law? My opinion (and yes, I do practice criminal law) is that there is way too little, and too much emphasis on the alleged victim.
8.14.2008 3:51pm
Random Law-Talking Guy (mail):
Litigator-London,

Mr. Biels' guilt was never in question, just his state of mind. One wonders how a principled man such as yourself woudl react to the sparing of the "man" who raped and murdered 10 year old Litigator-London, Jr.

Would you turn to your wife and sneeringly deride the criminal justice system for catching the guy WHO ACTUALLY RAPED AND MURDERED YOUR SON, and tell her you were glad he wasn't facing the death penalty?

It seems it doesn't take much intelligence to practice law in England, nowadays. Or maturity. Thankfully, the idiocy of the English people hasn't been our direct problem for more than 200 years.
8.14.2008 5:38pm
Adam J:
Random Law-Talking Guy- I don't know much about the facts of the case beyond what I read in the opinion, but how do you know his guilt is certain? Last time I checked a jury need only find proof beyond a reasonable doubt, which means there is a small possibility he is innocent.
8.14.2008 6:52pm
PhanTom:
One wonders how a principled man such as yourself woudl react to the sparing of the "man" who raped and murdered 10 year old Litigator-London, Jr.


You know, there's a reason most states prohibit family members of crime victims from sitting on juries.

--PtM
8.14.2008 8:42pm
NickM (mail) (www):
martinned - this application of double jeopardy shouldn't seem obvious. At the time Bies was tried and convicted, Atkins hadn't been decided, and there was little point to the prosecution trying to prove his IQ was not 69, but rather 71 or 72, for example (both of which are on the other side of the Atkins cutoff. Whether he was "retarded", as that term is understood to lay persons, may have been fully litigated, but whether his IQ was below 70 almost surely wasn't fully litigated, and the rules in place at the time did not call for fully litigating it - a jury could consider someone with an above-70 IQ to have the mitigating factor of retardation. Now, the Sixth Circuit is using later-created rules to overturn an existing sentence.

Nick
8.14.2008 9:29pm
martinned (mail) (www):
@NickM: What your talking about is whether Atkins was obvious or not. That is beside the point, since it was explicitly "made" retroactive on collateral review. The question for AEDPA purposes is whether such an application of the double jeopardy clause was "clearly established". And surely it is to be expected that any point of fact that the prosecution chooses not to dispute thereby stands for the remainder of the litigation?
8.15.2008 3:09am
Litigator-London:
Random Law-Talking Guy: The straight answer to your question is that I do not know how I would feel were a child of mine to be murdered - in any circumstances. I would hope:-

(1) that I have evolved sufficiently to abide by my conviction that the death penalty is wrong in all circumstances;

(2) that my personal conviction would be reinforced by my personal experience of miscarriages of justice in the criminal justice system;

(3) that from the facts as recited in the opinion of the Court, I would recognise that the perpetrator was also in one sense a victim in that his retardation and inadequacies had not been diagnosed and catered for much earlier in his life; and

(4) that the criminal justice system is not uniquely about retribution but also about rehabilitation.

In our system young offenders who murder are sentenced (like all murderers) to life imprisonment. A minimum term is fixed which the offender must serve (to serve the purpose of retribution) that minimum time can be reduced on subsequent review. After the minimum term, the offender can be released if the review authorities consider the offender has made sufficient progress towards rehabilitation. But the release will be on licence - the offender remains under supervision for life.

Minimum terms for adults can be as high as 40 years - indeed in some cases the Judge can fix a 'whole of life' minimum term - but in the case of young offenders 10-12 years would be more the norm.

I note your remarks about 'intelligence' and 'maturity'. Our legal system was, of course, the ancestor of yours and yours does often seem to us a little like a museum of how ours was in the mid 18th Century. A case of 'arrested development' perhaps?

Certainly, your prison population as a proportion of the total population is rather higher than ours and I suspect the continued existence of judicial murder, the excessive minimum terms and the inhuman conditions of detention are more the result of legislators finding easier to call for more retribution than to implement legislation designed to reduce the rates of offending in the first place. I say that because I would not wish to believe that the general population of the USA is innately more criminally inclined than ours.

In any event, no criminal justice system devised by humans will ever be perfect any more than judges are infallible. Perfection in these matters is an attribute of the Almighty and I would prefer to leave the taking of human life to Him.
8.15.2008 4:22am
David M. Nieporent (www):
A great point to follow up David M. Nieporent equating retarded people with animals needing to be put down.
Of course, I wasn't doing that; you were.

Or, perhaps you'll understand better if I speak your language:

"Sarcastro: 'If I'm really snarky, nobody will notice that I contradict myself all the time.'"
8.15.2008 6:51am
David M. Nieporent (www):
Atkins seems generally right to me, since there is no purpose served by execting someone who is mentally retarded except vengeance
I don't see how the exact same purposes for executing someone who is not mentally retarded don't apply to the mentally retarded: deterrence, incapacitation, retribution.

And to echo what someone said above, it's amazing how many criminal defendants somehow become retarded after they're caught. They have no problem premeditatedly planning crimes and generally living their lives without supervision -- but by the time their lawyers and hired-gun experts get done, suddenly they can't tie their own shoes. I think most people, if their lives depended on it, could arrange to fail an IQ test.
8.15.2008 7:00am
OK (mail):

(3) that from the facts as recited in the opinion of the Court, I would recognise that the perpetrator was also in one sense a victim in that his retardation and inadequacies had not been diagnosed and catered for much earlier in his life; and


That English feller sure is full of high-falutin' words! Heck, he makes me angry, and since my IQ low enough to be within his proposed "OK TO MURDER THE HELL OUT OF ANYONE I FEEL LIKE" range, I think I'm a gonna rape and murder his momma.

He oughta have some kind feelins for me afterwards. Maybe a pat on the head.

God I luv bein a dum Americun!
8.15.2008 11:07am
SeaDrive:

(4) that the criminal justice system is not uniquely about retribution but also about rehabilitation.


One thing I really don't understand at all is why a prosecutor in a case like this feels it's a productive use of his resources to try to get the death penalty. It's not like the guy is going to be released into the community, nor is there much risk of it being a precedent for a lot cases getting caught up in the same complications.

As far as I can see, it's either vengeance, or grand-standing. (I suppose there might be some technical legal reason, but I didn't see one cited above.)
8.15.2008 1:14pm