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Friday, December 02, 2005

Assorted Criminal Topics

Before I forget and get carried foreword by the tide of blogging, here are a few more follow-ups and thoughts to my previous post about creating a Court of Death.
1, Doug Berman, whose expertise on issues of criminal law outstrips mine by an order of magnitude, suggests creating a whole new federal appellate structure for capital appeals. Now, I continue to think that it might be a good idea to also take capital punishment jurisdiction away from the Supreme Court, but in general I think Professor Berman's suggestions look like a good idea. And we both agree on the bottom line:

Though . . . capital cases can and should alert us to system-wide injustices, I fear that they tend to distract many courts from doing more of the work that needs to be done in the non-capital arena.

The commenters to the post continue to raise the specter of the Texas Criminal Court of Appeals (whose failures I would still like to have more information on), and to raise generalized worries about courts that specialize by subject matter. I share these worries (see my posts here and here) but still think that this time the benefits might outweigh the costs.
2: Meanwhile, friend and classmate Angus Dwyer ponders the pardon power, wondering whether Congress could give the president a statutory power to pardon not just federal but state defendants, where he believed their trials to be afflicted by constitutional problems. (Angus calls this the "due process pardon".) Whether such a statute would be upheld (as an exercise of Congress's 14.5 power) under current doctrine would probably depend on the Court's reading of its "congruence and proportionality" test. If Congress documented a history of unconstitutional conduct in state courts, that might be sufficient to justify the new pardon system. (C.f. Hibbs). On the other hand, if the Court takes seriously its own pronouncements that 1, 14.5 power is "remedial" and not "substantive" and 2, that the Court is the ultimate (and only?) arbiter of whether a given act is a constitutional violation, then the Court might decide that each exercise of the Due Process Power is constitutional only if a federal or state court agrees that a constitutional violation was committed during the trial. (Even then, the court might decide that for some constitutional violations, acquittal wasn't "proportional," which could start to look a lot like harmless error doctrine). So for as long as Boerne et. al. remain on the books, the Due Process Pardon may not get very far.
3. I continue to wonder whether statutory authorization is even necessary here. Mightn't the President be able to point to the "take care" clause and argue that he has inherent power to make sure that the Constitution is faithfully adhered to, even if that involves ordering state defendants released from state trials? After Youngstown, the answer is clearly not "yes", but I am not positive that it is "no".

Posted by Will Baude on December 2, 2005 at 03:45 PM in Criminal Law | Permalink


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Will -- All of this is very interesting and thought-provoking, and this is only a very initial reaction: Where does the venerable chestnut U.S. v. Klein fit into #2? Part of the (admittedly messy) rationale behind Klein was that Congress, in passing a statute providing that presidential pardons could not be considered as conclusive evidence of loyalty to trigger the Abandoned and Captured Property Act of 1863, was that such a statute interfered with the pardon power and was therefore unconstitutional. Of course, your (and Angus's) proposal runs in the opposite direction, advocating for legislative broadening, rather than narrowing, of that power, but Section 5 was already around (if not our modern understanding of it) when Klein happened... why would it only authorize legislative modification of the pardon power in one direction?

Posted by: Steve Vladeck | Dec 2, 2005 4:40:05 PM

I confess that I still don't understand Klein, but do we need to engage it all? Although we name this thing a "pardon", it has nothing to do with the President's constitutional pardon power, which only applies to offenses against the united states. Here he is pardoning offenses against the states themselves.

So it's not "broadening" the pardon power so much as simply giving the president a second, different, statutory power over criminal appeals. And since there's generally no rule against Congress giving the president new statutory powers that he doesn't have in Article II, there shouldn't be any sort of Klein problem here. Right? The pardon power simply isn't involved, despite what I said above.

Posted by: Will Baude | Dec 2, 2005 5:03:56 PM

Also, a quick question about text. When did it become obvious that the president's power to "grant reprieves and pardons for offenses against the United States" meant "the United States" qua federal government, rather than also granting him the power to grant pardons "for offenses against (each of) the United States?"

Posted by: Will Baude | Dec 2, 2005 5:05:26 PM

These are some interesting musings, and I must say that your work here at PrawfsBlawg is your best blogging yet. I've enjoyed it and hope you stick around a bit longer.

Anyhow, given that this is (again, imho) your best work, I have this comment/question for you: Perhaps knowing that snarky commentators has caused you to think through some issues more so than you might otherwise. In other words, I think having comments enabled makes for a better blog, since it ensures that laziness in thought will be swifty punished.

When you're posting here rather than at Crescat, do you anticipate potential comments more before you post; and then work those potential comments into your post? I have a couple of regular commenters at my blog that seem to hang on every word, looking for a mistake. So I can't play as fast-and-loose as I might otherwise like, since I know I'll get (publicly) called on it.

Posted by: Mike | Dec 2, 2005 5:21:47 PM

Will, I'm a little skeptical of some of the moves you make with respect to the pardon power. Leave aside the 14.5 argument, which I find interesting, if questionable, though not necessarily for the reasons you suggest. I am not convinced that the Take Care Clause can be read entirely in isolation either from the rest of Article II, which would include the pardon power, or from background principles of federalism. I resist the notion therefore that the President can independently authorize pardons of state prisoners, particularly in light of the fact that the Constitution both provides the possibility of a remedy -- the habeas procedure -- and appears to delimit the President's power to pardon, namely to cases of offenses against the United States. And while there's no law against Congress giving the President broader authority than the narrow scope of Article II, Congress can only make those laws that are necessary and proper for carrying into execution those powers vested in Article I section 8, or in the Government of the United States; and I don't believe either Art. I s. 8 or, in light of the delimited pardon power, Article II provide some power to which the enhancing effect of the Necessary and Proper Clause would apply. (Again, that leaves 14.5, which interests but does not yet convince me.) Finally, as to your last comment, it seems to me the answer to your question lies in the fact that the Constitution regularly refers to the United States in a way that indicates the nation as a whole and is more than capable of specifying individual states when it wishes to.

Posted by: Paul Horwitz | Dec 3, 2005 1:00:07 AM

I agree that the inherent power argument is the most novel of the bunch. The idea has to be this-- that in cases where the President believes a law of the united states is not going to be faithfully executed, he has the power, as chief law enforcer of the notion, to go in and make sure it gets enforced. We know from Marbury that the constitution counts as a law too, so if the president believes a criminal prosecution in a state court will violate the constitution, he is required and empowered to go in and enforce the constitution. For this argument to work you have to have a pretty robust view of presidential power, and here we get to a fascinating literature, on which Michael Stokes Paulsen has written far more interestingly than I can.

The 14.5 argument seems more straightforward to me. You're right that Congress doesn't have article 1 power to create a system of pardons for state courts, but why couldn't it say under 14.5: To the degree that defendants are having their 14th amendment due process rights violated, 14.5 gives us the power to remedy those violations. The remedial procedure we will create is a system of presidential pardons, much narrower (because limited to constitutional cases) than the president's article 2 pardon power. ?

Posted by: Will Baude | Dec 3, 2005 5:27:32 PM

I think the Supremes have pretty much indicated that death penalty jx can't be taken from them. Didn't Souter threaten a showdown if Congress ever tried to do this in his Felker v. Turpin concurrence?

Posted by: Bart Motes | Dec 3, 2005 10:41:31 PM

Good point (the concurrence is here).

I note only that the opinion was of course a concurrence, signed only by himself, Breyer, and Stevens. I assume the court is sufficiently greedy about its own power that Souter may well get five votes to strike down an exception to its death penalty jurisprudence, but that depends a lot on what the court looks like when this happens.

Posted by: Will Baude | Dec 3, 2005 10:48:21 PM

But Felker wasn't only a death penalty case; Felker was a habeas case, and Souter and Stevens were both terrified at the (now very real, thanks to the Graham Amendment) prospect that Congress might do a better job stripping away all of the Court's habeas jurisdiction in a certain class of cases...

As I understand Will's proposal, that wouldn't be the problem here, right? Indeed, if the President was actually _using_ the pardon power that Will would have Congress create (assuming that it's constitutional), I think there are probably at least four members of the current Court, and perhaps five, once/if Alito is confirmed, who would say "thankyouverymuch," and move on...

Which begs a fascinating side question -- absent the late Chief Justice, who on the current Court is the most reliable defender of judicial power? Is it really Souter?

Posted by: Steve Vladeck | Dec 4, 2005 3:41:38 AM

For what it's worth I actually hadn't imagined that the Due Process Pardon statute and the Federal Court of Capital Sentencing statute were going to be connected.

But in any case, yes. Any of my regimes that involves stripping the S.C.'s jurisdiction over death cases presuppose that it will actually get used by whoever gets put in charge of it. We are indeed searching for the "thankyouverymuch".

Now, given Souter's citations to Hart in footnote 2 of his Felker concurrence, I do take it that he might oppose any exception to S.C. jurisdiction that made it impossible for it to perform what he believed to be one of its core functions, especially given his suggestion that this requirement might be included in the Constitution's Inferiority Clause. But I don't know who else would sign it.

I tend to think the Court's most reliable defender of judicial power is Stevens, who was (wasn't he?) the only Justice to join the majority opinion in Boerne and also Souter's Felker opinion.

Posted by: Will Baude | Dec 4, 2005 3:19:06 PM

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