January 4, 2005
The economic costs of capital punishment
One interesting trend I am noticing in the modern public and political conversation about the death penalty is an attentiveness to the extraordinary economic costs of administering a system of capital punishment.
For example, recent newspaper articles coming from California and Oklahoma have detailed the considerable state expenditures on the capital trials of Scott Peterson and Terry Nichols. Moreover, as Kansas and New York are contemplating fixing their death penalty procedures after their current capital systems were declared unconstitutional, we are seeing editorials (noted here; see also here) and other commentary (noted here) expressing serious concerns about the high costs of administering the death penalty.
As I have said before, I think the purely economic costs of the death penalty is an issue that has been under-examined even in the voluminous academic literature about capital punishment. (The Death Penalty Information Center, however, has collected terrific capital cost data here.) Perhaps some smart folks with economics training and interest might start giving these sorts of matters serious attention.
The machinery of death being turned back on
As I noted here, this past December was the first month without an execution in the United States since July 1994. And, since the final execution of 2004 was in mid-November, we have now had the longest execution-free period in the US since May-July 1992 when a full two months elapsed without an execution.
However, as detailed in this AP report, it appears the death penalty will be back in business on Tuesday as the state of Texas plans to execute James Porter, who was sentenced to death for fatally beating a child molester while in prison for another killing. As the article explains, "[a]t Porter's request, no appeals were pending in the courts and no clemency petition was filed with the Texas Board of Pardons and Paroles."
Meanwhile, as noted in this thoughtful New York Times article, in another section of Texas' death row are defendants who committed their crimes as juveniles and are now awaiting to see if a ruling from the Supreme Court in Roper (background here and here) might spare their lives. The NY Times article explores the crimes and backgrounds of a few of the 72 juvenile killers currently on death row in the United States, and it suggests that "a look at the cases of some of the juvenile offenders now on death row raises questions about how reliable and consistent juries have been in making those decisions."
Sentencing events at AALS meeting
Blogging may slow down later this week because I am off to San Francisco for the Annual Meeting of the Association of American Law School. I hope to have internet access, but much of my time may be consumed by conference events. Here is a quick run down of the sentencing events of note at AALS this week:
Thursday AM: The McGeorge School of Law's Capital Center for Government Law and Policy is hosting a breakfast meeting to discuss sentencing reforms issues and in particular this soon-to-be-published proposal for wholesale reform of California's sentencing practices.
Thursday lunch: At the lunch of the Criminal Justice Section, a number of criminal law professor bloggers (including the folks who bring us CrimProf Blog) will be talking about the blogging phenomenon. I plan to highlight why I think blogging is especially important (and fun) in the field of sentencing.
Friday PM: A panel sponsored by the Criminal Justice section entitled "The Rehabilitation of Rehabilitation" will focus on "the recent turn in policy at the state level away from mandatory and long-term incarceration and toward alternative dispositions that are expressly or implicitly rehabilitative." More details about this program can be found at this link.
Friday PM: Professor Joe Kennedy has put together a "Hot Topics" panel to discuss Blakely and the other major criminal justice decisions of the past term entitled "Supreme Court Surprises on Guideline Sentencing, Enemy Combatants and the Confrontation Clause: Happenstance or a new assertiveness?". More details about this program can be found by scrolling down at this link.
ADDITION: Prof. Stephanos Bibas has reminded me about another Blakely-related event Friday afternoon. At the Pan Pacific Hotel Friday from 5:15pm to 7pm, a Federalist Society panel of with Profs. Bibas, Akhil Amar, Ron Allen, and Rick Garnett (moderator) will discuss "Will Originalism and Formalism Save Criminal Law or Will They Destroy It?"
Saturday AM: With the help of fellow sentencing fanatics, I will be conducting a relatively informal discussion about Blakely and the future of sentencing reform. (The original hope was to do an official "Hot Topics" panel to talk about the decision in Booker and Fanfan; now I suspect we will spend time chatting about why we have not yet seen a decision in Booker and Fanfan.)
Saturday PM: A panel co-sponsored by the Criminal Justice section entitled "The Privatization of Criminal Justice" will focus on private prisons and other ways in which various traditional criminal justice functions have been privatized. More details about this program can be found at this link.
January 3, 2005
Sentencing Commission work in NJ
As previously discussed in this post, New Jersey has recently created a Commission to Review Criminal Sentencing, and that Commission has now finished its "First Interim Report to the Governor and Legislature." I am pleased to be able to provide that report for downloading below.
This brief report provides more background than substance, but even its quick discussion of the state of sentencing in New Jersey and the work of the Commission to date provides a fascinating window into challenges that most states are facing in the arenas of sentencing and corrections in 2005. (And this terrific editorial today from NorthJersey.com makes clear that the press is going to be watching as the NJ Commission tries to meet these challenges.)
I recommend the entire report, though I particularly like the optimism in this closing paragraph:
In summary, we commend the Legislature and Executive Branch for their prescience by establishing an entity well-suited to guide both with regard to the profoundly changing landscape of sentencing law, practice and policy. Moreover, the Commission has progressed much since its inception to provide the Legislature and other "stakeholders" with the guidance necessary to promote a sentencing system that simultaneously protects public safety, fosters a greater degree of fairness, and provides meaningful and cost-effective responses to crime. The Commission is wholly committed to these efforts and plans to provide the blue print that will reshape and improve the State's sentencing scheme and penal system.
Notable (non-Blakely) state sentencing stories
This afternoon brings a diverse and interesting set of articles on various state sentencing developments (none of which — gasp! — have anything to do with Blakely):
- From Pennsylvania, this article discusses quite optimistically the opening of a new drug court in Lancaster County. (More resources on drug courts are at this link.)
- From Georgia, this article reports that the Governor Sonny Perdue has announced he "won't ask lawmakers this year to modify any of the harsh criminal punishment laws enacted in Georgia a decade ago that critics say are jamming state prisons and forcing judges to impose sentences that don't always fit the crime."
- From Illinois, this article discusses the success of the state's Sheridan Correctional Center, a so-called "drug prison" which focuses exclusively on drug treatment.
- From California, this editorial, building on a recent report from the Little Hoover Commission about women in prison discussed here, laments that the state is "failing miserably in dealing with incarcerated females."
Calm before the storm?
It is a relatively quiet morning for sentencing news, though I am eagerly waiting to see which court will be the first to issue a noteworthy Blakely ruling in 2005. Moreover, as suggested here and here, there is little question that we just have some calm before a January sentencing storm.
In the meantime, the blogsphere provides a few sentencing items of interest:
- Grits for Breakfast has links and coverage of recent editorials from Texas about the state's prison system and a proposal to lower marijuana sentences.
- CrimLaw has this interesting post discussing a Virginia sentencing hearing.
- How Appealing notes here that the Houston Chronicle has not kept up with the latest developments in the alien smuggling conspiracy case in which US District Judge Vanessa Gilmore demanded the government to explain why it sought the death penalty only against on defendant (background here). Grits adds related commentary on media/blog dynamics here.
January 2, 2005
Gearing up for a exciting sentencing month
Though perhaps nothing can match the excitement of Texas' win in the Rose Bowl (at least for USSC Chair Judge Hinojosa) or Iowa's win in the Capital One Bowl, January should be quite the exciting sentencing month. Following what was perhaps the most remarkable sentencing year ever, there is no slowing down at the start of the new year.
I have previously detailed the many compelling capital sentencing stories developing in January, and thus here I will note just a few of the major forthcoming non-capital sentencing events:
January 6-8: The annual law professors' conference will have a number of significant sentencing panels and events (details to follow in a subsequent post).
January 11: The next date on which the Supreme Court may hand down opinions and thus a possible (likely?) date for a decision in Booker and Fanfan.
Mid-Late January(?): If Booker and Fanfan come down in the first few weeks of January and if Blakely is applied to the federal guidelines, there will likely be hearings scheduled to address the future of federal sentencing in both the US Congress and the US Sentencing Commission (not to mention, I would suspect, many lower court rulings of note).
January 21-22: Columbia Law School will conduct this terrific symposium addressing state sentencing.
Throughout January(?): State legislatures in many states will likely start considering statutory Blakely fixes (see reports on plans in North Carolina and Washington), while state courts continue to try to sort out all of the Blakely fallout (as detailed here and here, the recent pace of state Blakely rulings is remarkable).
I will be closely watching the legal happenings to see if my suggested New Year's sentencing resolutions get followed for at least a month, and also to see how CJ Rehnquist's themes play out in such a dynamic month.
Compelling capital work by federal district judges
1. From Houston, US District Judge Vanessa Gilmore is making news in an alien smuggling case in which defendant Tyrone Williams has alleged racial discrimination. As previously noted in this post, Judge Gilmore had demanded the government to explain in writing why it sought the death penalty only against Williams. Last week, as detailed in this article, when prosecutors ignored the order to provide this information, Judge Gilmore said she would allow attorneys defending Williams to use the government's refusal as evidence during the trial's penalty phase.
Now from Howard Bashman here, we hear the Fifth Circuit has granted prosecutors' motion for a stay of all proceedings while it considers a motion for a writ of mandamus. The expedited briefing schedule ensures that this case will be another of the many capital cases to watch in January (and the Grits Blog is already on the job with this commentary on the Williams case).
2. From Boston, US District Judge Nancy Gertner has now supplemented her amazing ruling in US v. Green, 2004 WL 2475483 (D. Mass. Nov. 03, 2004) (first discussed here), where she held in a federal capital case that she "will impanel two different juries, if necessary, for each death-eligible defendant, one jury to determine guilt or innocence and the other to reject or to impose the death penalty." Provided here at the PRACDL Blog are Judge Gertner's interesting supplemental findings in support of her bifurcation decision.
3. From New York, US District Judge Jed Rakoff is still making headlines here in the New York Times for his 2002 ruling in US v. Quinones that the federal death penalty is unconstitutional because of the risk of executing innocent persons. The NY Times article recounts Judge Rakoff's compelling professional and personal backstory, and Howard Bashman here provides links to both Judge Rakoff's Quinones decision and the Second Circuit's reversal of that decision. (Also TalkLeft adds some commentary here.)
Sunday's stimulating sentencing stories
After reading about all the bowl games in the sports pages — how 'bout that Rose Bowl — there are a number of thought-provoking articles in today's newspapers:
- Emily Bazelon has this interesting essay entitled "Sentencing by the Numbers" in the New York Times Magazine, which thoughtfully discusses Virginia's fascinating and controversial risk-assessment sentencing that encourage "judges to sentence nonviolent offenders the way insurance agents write policies, based on a short list of factors with a proven relationship to future risk." (As detailed here, the Federal Sentencing Reporter recently devoted a full issue to risk assessment, and Grits for Breakfast here has some thoughtful comments on the Times article.)
- This article thoughtfully reviews the state of the death penalty in Louisiana, as well as nationwide death penalty developments in 2004. I was surprised and intrigued to learn that Louisiana has not executed anyone since 2001 and that "Orleans Parish counted its seventh year without a single death sentence, despite ample opportunity [because the local DA seeks the death penalty in every first-degree murder case] and a high murder rate." UPDATE: And, thanks to TalkLeft here, I see that the Washington Post has this editorial applauding the recent declines in the use of the death penalty.
And, thanks to How Appealing, from South Carolina we get this article about the juvenile death penalty in that state, as well as a set of companion stories (linked here), which details the potential impact of the Supreme Court's coming constitutional ruling in Roper on the juvenile death penalty (background here and here).
January 2, 2005 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack