December 28, 2004
The Washington Post on Bush's pardons
The Washington Post this morning is all over the pardon story, and the criticism of Bush's stingy use of his pardon power, with this article and this effective editorial. The article, which is already been spotlighted this morning by the blogs TalkLeft and De Novo, effectively covers some of the history of presidential pardons and reiterates of the criticisms generated in the blogsphere last week (see list of posts below).
The editorial, titled "Model for Mr. Bush," does a great job spotlighting that, unlike the President, some republican governors have been willing to use their executive sentencing aggressively. Here's the opening paragraph:
For a self-styled compassionate conservative, President Bush has been stingy with mercy. Last week, he granted four pardons, all to people sentenced to probation many years ago. The latest round of pardons brings Mr. Bush's first-term total to only 29, along with two sentence commutations. This is dramatically fewer clemency actions than any recent president has taken, barely 5 percent of those granted by President Jimmy Carter, for example. It is also dramatically less mercy than displayed by two governors of the president's party, who have reinvigorated their offices' power to give second chances: Robert L. Ehrlich Jr. of Maryland and Arnold Schwarzenegger of California.
For prior posts on the pardon issue, see:
December 27, 2004
The politics of sentencing reform
Monday's New York Times had this powerful editorial by Brent Staples which, in addition to assailing the harms done by harsh mandatory sentencing laws, details some of the often overlooked political forces which impede reform. Here's an excerpt:
The business of building and running the jailhouse has become a mammoth industry with powerful constituencies that favor the status quo. Prison-based money and political power have distorted the legislative landscape in ways that will be difficult to undo.
More holiday season state Blakely rulings
As noted before, with all the major Blakely rulings early this month (some details here), I thought the holiday weeks might be quiet on the Blakely front. But, as detailed here and here, just the first few days last week brought more than a dozen state and federal appellate cases dealing with Blakely issues.
In addition to the previously noted rulings here, a few more state Blakely decisions from last week recently came on-line with Patrick v. State, 2004 WL 2965848 (Ind. App. Dec. 23, 2004) (which is discussed at length here by Michael Ausbrook at INCourts) and also State v. Whatley, 2004 WL 2964710 (Tenn. Crim. App. Dec. 22, 2004). And today from the west coast today came State v. Clarke, 2004 WL 2980283 (Wash. App. Div. 1, Dec. 27, 2004) and People v. Brooks, 2004 WL 2980298 (Cal. App. 2 Dist., Dec. 27, 2004)
Noteworthy (and unconstitutional?) sex offender collateral consequence
In conjunction with a recent Ohio conference on "Collateral Sanctions in Theory and Practice," I have blogged a bit here on the array of collateral legal sanctions which flow from criminal convictions and their impact on offender reentry. (For the full story on this important issue, the folks at the Sentencing Project have the goods here.) But, thanks to Jonathan Soglin at Criminal Appeal, I see that California has come up with a noteworthy (and possibly unconstitutional) new restriction on sex offenders.
As thoroughly detailed in Jonathan's thoughtful post here, a couple weeks ago, California's Attorney General Bill Lockyer announced the unveiling of the Megan's Law sex offender locator site. This site, which is quite user-friendly and provides access to information on more than 63,000 persons required to register in California as sex offenders, is itself noteworthy. But particularly catching my attention is Jonathan's report that the California law which led to the creation of this resource (AB 488) also includes a provision making it a crime for registered sex offenders to enter the site. Here's the text of Cal. Penal Code § 290.46(i), which I am inclined to call a web-surfing prohibition:
(i) Any person who is required to register [as a sex offender] who enters the Web site is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail for a period not to exceed six months, or by both that fine and imprisonment.
Jonathan's post details some of the illogic and unfairness of this web-surfing prohibition, and I share his instinct that there may be constitutional problems as well as policy concerns with barring sex offenders from accessing a website which provides information about them.
On this interesting constitutional issue, I would especially like to hear from legal mavens like Profs Orin Kerr or Eugene Volokh at The Volokh Consiparacy or Prof. Larry Lessig. My first question is whether this law breaks new ground simply by making it a crime for certain people to access a publically-available website. (I am way outside my field of expertise here, since all I know about computer crimes is that you can get a pretty serious sentence for hacking.) I can imagine a number of ways to challenge such a law, but I suspect there is already some relevant cyber-jurisprudence to inform this issue.
At a broader policy level, both the sex offender website and this questionable California law reflects the pariah status of sex offenders in society today. I have spotlighted this issue and related sentencing matters in a few prior posts:
December 26, 2004
Sentencing year in review
With Christmas in the books, we now get all the Year in Review and Top Ten lists reflecting on the year about to be completed. Never one to shy away from fads, I will here present my own Top Ten list of sentencing developments for 2004 (along with one "non-development").
I will count down from 10 to 1, though everyone who frequents this blog knows what #1 is going to be. I encourage readers to use the comments to spotlight important events I may have overlooked and to otherwise dicker with my list.
2004 Sentencing Non-Development
Lack of serious reforms to mandatory sentencing. Despite broad academic and judicial criticisms of mandatory sentencing provisions and recent state movements away from mandatories, the absence of reform was the bigger story in this arena this year. Though initially favored by the electorate, California voters rejected a proposition to limit the reach of the state's Three Strikes Law (background here and here); though federal District Judge Paul Cassell hinted about a major ruling in the Angelos case, he ultimately upheld the constitutionality of a severe mandatory federal sentence; though New York reformed its harsh Rockefeller drug laws, the limits of the changes was noted and lamented by those working for reform. And, of course, everyone is fearful, perhaps for good reason, that Congress will respond to Blakely/Booker by enacting a host of mandatory minimum sentencing provisions.
Top Ten 2004 Sentencing Developments
10. Remarkable rulings by federal district courts on unconstitutionality of the federal sentencing guidelines. From Judge Young's remarkable and foreshadowing pre-Blakely Green decision, to the immediate post-Blakely rulings of Judge Cassell in Croxford and Judge Goodwin in Shamblin, to Judge Panner's conclusion in Detwiler that the Feeney Amendment renders the federal system structurally unconstitutional, federal district judges impressively advanced and framed the legal debate over the federal guidelines' constitutionality.
9. Celebrity sentencings. Though the cases were not high-profile for legal reasons, the capital sentencing of Scott Peterson, the prison time given to and now being served by Martha Stewart, the plea deals entered by former Governor John Rowland and football star Jamal Lewis, and the Blakely-ized trial of Enron defendants provided remarkable and valuable windows into the law and policy of capital and non-capital sentencing.
8. Effective and powerful sentencing work by public policy groups. The ABA's release of its Kennedy Commission report and the VERA Institute's state Blakely analyses (here and here) are just the most tangible examples of all the great and important sentencing work being done by a range of public policy and public interest groups. And the work of the ABA and VERA and other groups — like the Death Penalty Information Center, The Sentencing Project, Families Against Mandatory Minimums, The Constitution Project, Watching Justice, American Law Institute — not only influenced sentencing law and policy in 2004, but also will have an impact (I hope) on 2005 developments.
7. Remarkable rulings by state courts on unconstitutionality of state death penalty procedures. Kansas and New York, which in the mid-1990s enacted new death penalty laws, both had their capital sentencing procedures declared unconstitutional by their states' highest courts (highlights here). In addition to perhaps reflecting broader capital trends in 2004 (see item #2), these developments should set up interesting 2005 policy debates over the need for the death penalty (you can see the start of the debate here and here).
6. Effective and powerful media coverage of sentencing stories. Though high-profile cases still received the most (excessive) attention, the Fourth Estate did important and influential work on a range of sentencing law and policy issues. On topics ranging from Blakely to the death penalty to truth in sentencng, I was consistently impressed (despite the ocassional error) by the reporting and analysis of sentencing stories from big outlets like the Wall Street Journal (examples here and here) and the New York Times (example here) and from little papers nationwide (examples from just this week are here and here).
5. The US Supreme Court's death penalty actions (and activism). Though every year the Supreme Court has a number of capital cases, the Court's rigorous review and involvement in death cases this year rightly garnered lots of attention. And with 2005 to include a decision in Roper on the constitutionality of executing juvenile offenders (background here and here) and arguments in Medellin concerning the rights of foreign nationals on death row (background here), this story line is likely to continue to grow in the months ahead.
4. The federal system's severe reaction to Blakely. Despite the Supreme Court's (weak) effort in a footnote to keep Blakely from being a federal sentencing story, no jurisdiction was more impacted by the Blakely earthquake. And watching the range of reactions to Blakely from all the actors and institutions in the federal system — from Congress, SCOTUS, the Justice Department, the USSC, district and circuit courts, practitioners and academics — has made for amazing drama for six months (and counting). Just thinking about all that has already transpired after a state ruling (Blakely) makes it hard to fully fathom what we will see after Booker and Fanfan finally get decided.
3. The state systems' sensible reaction to Blakely. Despite the profound impact Blakely could have on so many state sentencing laws, the states have typically taken a thoughtful and cautious approach to dealing with the fallout from the Blakely earthquake. And watching the reactions to Blakely from state actors and institutions — from legislatures, courts, attorneys generals, practitioners and academics — has made for an amazing contrast with the (perhaps overheated) drama in the federal system. But how the states will be able to efficiently and effectively sort out all the uncertainties Blakely has created (especially since Booker and Fanfan may not provide much help) is also hard to fully fathom.
2. The decline of death(?). Though the Peterson verdict might suggest otherwise, all other evidence in 2004 suggests the death penalty is dying a slow death. December marks the first execution-free month in more than a decade, and reductions in the number of death sentences and in the number of executions provide more statistical evidence to suggest the death penalty is on the decline in the United States. (This DPIC report covers this story from all the angles.)
1. Blakely v. Washington. See this blog (not to mention items 10, 8, 6, 4, 3 above). 'Nuff said.