Attorney-Client Communication During an Overnight Break

by · Feb 25, 2026 7:30 am

When a defendant in a criminal case chooses to testify, and there is an overnight break in the middle of the testimony, can the trial judge forbid the lawyer to talk to the client about the testimony, even while allowing discussion of other topics?

Yes, the U.S. Supreme Court held today in Villareal v. Texas.

The decision drew the line between two bookend cases, Geders v. United States (1976) and Perry v. Leeke (1989). Continue reading . . .

Developments in the Law of Standing

by · Feb 24, 2026 9:55 am

Prof. Richard Re has this post at SCOTUSblog on the U.S. Supreme Court’s January 14 decision on standing in Bost v. Illinois Board of Elections. He notes several ways that the high court seems to be loosening the restrictions on standing in federal courts.

Standing is an issue that often comes up in crime victims’ rights litigation.

U.S. Supreme Court decisions based on Article III of the U.S. Constitution are not necessarily binding on state courts, where standing issues turn on the judiciary article of the state constitution and other state laws. Even so, the high court’s decisions are often persuasive precedent in state courts. Continue reading . . .

“Monster” Child Sexual Predator Granted Early Parole

by · Feb 22, 2026 6:58 pm

The Los Angeles Times has this story by Clara Harter:

A Sacramento man once described by a judge as “the monster parents fear the most” seemed destined to spend the rest of his life in prison after he was convicted of 16 counts of kidnapping and child molestation in 1999.

Instead, he is now set to go free after being granted elderly parole — much to the anger and horror of some of his victims, as well as the prosecutor who oversaw his case.

“He shouldn’t be breathing the same air that we’re breathing at all,” one victim, who was kidnapped and assaulted when she was just 4 years old, told The Times in an interview. “I disagree with him getting paroled out because he’s a horrible person. That man is a monster.” Continue reading . . .

The Vagaries of New Constitutional Rights

by · Feb 18, 2026 1:17 pm

From The Lancet Psychiatry comes this new policy paper:

Despite the existence of effective public mental health interventions, global coverage remains low. Only a minority of people with mental disorders receive treatment, far fewer receive interventions to address or prevent the associated impacts of mental disorders, and there is negligible coverage of interventions to prevent mental disorders or promote mental wellbeing and resilience. This implementation failure breaches the right to health and statutory legislation in some countries and results in population-scale preventable suffering, broad societal and individual impacts, and associated economic costs. Various reasons account for public mental health implementation failure, including insufficient policy and implementation according to population needs, and insufficient knowledge, resource, political will, and legal protection regarding the right to mental health. This Health Policy highlights a further reason for implementation failure is that only 12% of constitutions covering 3·5% of the world’s population explicitly recognise a constitutional right to mental health, compared with 70% of constitutions recognising a constitutional right to health or physical health. A legal framework that includes explicit constitutional protection for mental health would mean the right to mental health would supersede all other laws. This would thereby provide a basis for legislation and support legal opportunities to challenge, advocate, and improve effective public mental health implementation by different sectors. This framework and associated opportunities would support the scale-up of implementation of cross-sector policy based on the public mental health needs of a population. Such a holistic, coordinated legal approach would support scaled-up coverage of public mental health interventions to treat and prevent mental disorders and promote mental wellbeing and resilience, as well as action to address inequities and protect the rights of those with mental disorders. Improved implementation would result in broad impacts across different sectors and associated economic benefits.

Breathtaking to say the least.

California’s “Elderly” Parole Law

by · Feb 9, 2026 10:16 am

CJLF CEO Anne Marie Schubert has this op-ed in the Sacramento Bee on California’ “elderly” parole law.

The law absurdly defines “elderly” as over 50, and it permits parole after 20 years regardless of the minimum term specified in the sentence or in the law under which the inmate was sentenced.

California’s elderly parole law is the most lenient in the nation. While 24 other states have similar programs, most automatically exclude murderers and sex offenders. California does not. Continue reading . . .

Evading Accountability for Injustice

by · Jan 27, 2026 2:55 am

In most states, the power to grant a pardon or commute a sentence is vested in the governor, sometimes with a check on the power by another body. Parole boards can also shorten sentences, but in most states the members are appointed by the governor. Although far from perfect, these conventional arrangements do provide some semblance of accountability for unjust, undeserved reductions of punishment for major crimes. Even when not running for reelection, governors often have their eyes on another office and tend to be reluctant to anger voters with excessive sentence reductions.

Now in Virginia there is a bill to take the heat off the governor by greatly expanding the parole board and vesting appointment authority for the new seats in two legislators: the Speaker of the House of Delegates and the chairman of the Senate Rules Committee. These office holders directly face the voters of only their own districts, often “safe” ones, and they can be much less concerned with angering the voters of the state as a whole.

This post at Liberty Unyielding denounces the proposal. It is reproduced below with permission. Continue reading . . .

Emergency Entry and the Fourth Amendment

by · Jan 14, 2026 2:24 pm

Here is a bit deeper dive on Case v. Montana, the U.S. Supreme Court emergency entry case that I noted briefly this morning. Although the high court affirmed the judgment of the Montana Supreme Court, it did so with a more limiting standard than the state court used. Three standards have been used by various courts, and the U.S. Supreme Court chose the middle one. The standard is unique to emergency cases, rejecting both looser and more restrictive standards derived from criminal investigation cases.

The emergency in this case was created when Case’s former girlfriend reported that Case had said during a phone call that he intended to kill himself. This was followed by a click that may have been a gun being cocked, a pop that may have been a discharge, and then dead air. This information, combined with Case’s history, make it hard to see how the state could have lost this case under any standard. The strong possibility that he had already shot himself but might be still alive and in need of emergency aid to save his life seems compelling.

The Montana Supreme Court thought that the “community caretaking” function of the police permits entry of a home in emergency situations “when ‘objective, specific and articulable facts’ would lead an ‘experienced officer [to] suspect’ that a person inside ‘is in need of help or is in peril.’ ” That is the minimal standard needed for the police to briefly detain someone on the street, known as a “Terry stop” for the 1968 case of Terry v. Ohio. The defendant wanted the much more restrictive standard needed for search warrants: probable cause. He cited cases from the D.C., Second, and Eleventh Circuits supporting that view.

In the 2006 case of Brigham City v. Stuart, the Supreme Court set out a rule for entry to a home in an emergency: “Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Is the Brigham City standard equivalent to either the Terry standard or the probable cause standard? Continue reading . . .

SCOTUS Decides Double Punishment and Emergency Entry Cases

by · Jan 14, 2026 8:54 am

The U.S. Supreme Court decided two criminal cases today. In Barrett v. United States, the court decided that if a single act violates two provisions of a notoriously complex federal firearms statute the defendant can only be punished for one of them. In Case v. Montana the court confirmed that entry into a home for the purpose of emergency assistance requires only “an “objectively reasonable basis for believing that someone inside needs emergency assistance.” Probable cause is not required. “The probable-cause requirement is rooted in, and derives its meaning from, the criminal context, and we decline to transplant it to this different one.”

Both decisions are unanimous, although Justice Gorsuch declines to join one subpart of the Barrett opinion.

SCOTUS Softens Limits on Repeat Petitions by Federal Prisoners (But Not Much)

by · Jan 9, 2026 9:03 am

In the landmark Antiterrorism and Effective Death Penalty Act of 1996, Congress cracked down hard on repeated attacks on criminal judgments by state prisoners. It also cracked down on such attacks by federal prisoners, but whether the rules for federal prisoners are quite as severe as those for state prisoners is not clear from the language of the statute. Today the U.S. Supreme Court decided two lingering questions on the state-federal distinction in Bowe v. United States. The defendant won on both points.

The outcome is not too surprising. The Government agreed with the defendant on one of the points, and the court had to appoint an amicus to argue in support of the lower court decision. It is an honor to receive this kind of appointment, but victory is rare.

The crackdown on state prisoners is found in subsection (b) of 28 U.S.C. 2244. Paragraph (1) flatly bars any do-over of a claim made in a previous habeas corpus petition. Paragraph (2) allows new claims, not previously made, only under very limited circumstances. Paragraph (3) requires a state prisoner seeking to file a second or successive petition to first get permission from the court of appeals, and subparagraph (3)(E) forbids petitions for rehearing (by either the panel or full court of appeals) or certiorari (in the Supreme Court) to review the decision on whether to grant it.

Federal prisoners file under a different statute, 28 U.S.C. 2255. Subsection (h) is the repeated attack crackdown. It requires a second or successive motion to be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either newly discovered evidence proving innocence or a new, retroactive rule of constitutional law. The distinction between do-overs and new claims in section 2244(b)(1) and (2) is absent. Does the language “as provided in section 2244” incorporate that section’s flat bar on all do-overs? Does it incorporate the bar on Supreme Court review of the certification decision? No and no. Continue reading . . .

Autism’s Crime

by · Jan 2, 2026 10:40 am

The news is full of stories of rampant fraud surrounding autism treatment programs. A former AUSA, has covered it on X, noting that prosecutions have been ongoing for some time.  But are there larger lessons to be learned?

Well, one question that ought to be asked is whether there is an autism epidemic.  It’s funny how the media operates these days.  With President Trump in the White House, Scientific American published an article back in April of last year that lays out many good reasons to question the numbers, given that Secretary Kennedy made autism a priority.  It notes, correctly, that the diagnostic criteria have broadened considerably over the years.  These changes also included allowing simultaneous diagnoses of ADHD with autism, which was previously disallowed.  It also reports on a study that observes a decline in the diagnosis of intellectual disability while the rates of autism soared.  But then there’s this:

Another piece of evidence for changes in diagnosis explaining a large difference in the prevalence of autism is that autism rates vary widely from state to state in the U.S. The state with the highest prevalence of autism is California, with a rate of 53.1 per 1,000 eight-year-olds, while the one with the lowest prevalence is Texas, with a rate of 9.7 per 1,000 eight-year-olds. That’s a huge difference. But according to the CDC’s own report, it’s likely linked to California’s intense push for early screening and assessment.

The upshot: When the government puts money on the table, we get more of it.