November 30, 2005
The real shame about shaming punishments
Because Dan Markel was involved in the Gementera shaming case (background here and here and here), I understand why he viewed the Supreme Court's denial of cert to be a shame. But, after reading this AP story and this CNN story about the cert denial, I think the real shame is that a little case like Gementera gets so much attention from the media and others, while issues of much broader sentencing significance — like the imposition of a mandatory life sentence on a small-time drug user or the Supreme Court's failure to address Booker's retroactivity or the continued reliance on uncharged (and unproven?) conduct to increase sentences or the prospect of new (irresponsible?) crime legislation — get so little attention.
What really got me worked up was a quote at the end of the AP story:
Gementera's attorney, Arthur K. Wachtel, said he was disappointed by the Supreme Court's decision to dismiss the case without comment. "It's pretty rare that the Supreme Court has an opportunity to review a case involving appropriate punishment," Wachtel said.
HUH?!?!? Even before Blakely and Booker, SCOTUS surely got hundreds (perhaps thousands) of cert petitions each year asking them to "review a case involving appropriate punishment." In the wake of Blakely and Booker, the Court now likely receives hundreds (perhaps thousands) of such petitions each month. But, because so little attention is paid to these cases, even some criminal defense lawyers are unaware of the many sad realities of our criminal justice system.
How about a whole new structure for federal capital appeals?
As I lamented in this post, debates over habeas corpus reform often get conflated with debates over capital punishment. That concern — along with the latest blogosphere buzz about the Supreme Court's docket and Will Baude's great posts here and here suggesting we "move death penalty cases out of the Supreme Court to a specialized criminal court" — has me thinking about a whole new structure for federal appeals of state capital cases.
Here's the (crazy ivory tower?) idea: for state capital defendants, why not eliminate general federal habeas rights and instead create a single federal tribunal ("the unified federal capital court" or UFCC) in which state capital defendants have an appeal of right following direct state appeals and also following collateral state appeals?
This proposal needs to be considered in light of the current reality that federal habeas corpus currently serves as a (flawed and imperfect) federal "appeal of right" for state capital defendants after they have completed all state appeals. Unfortunately, federal capital habeas actions are often ineffective and always inefficient. Not all issues are cognizable in federal habeas and these cases clog the dockets of both federal district and circuit courts in active death penalty states.
Instead of spreading this litigation around the country (where we often see very different results because of different judicial attitudes in, for example, the Fifth Circuit and the Ninth Circuit), we could consolidate all this federal appellate action in the UFCC. I imagine the UFCC to be an "inferior" court: defendants (or states) losing in the UFCC could appeal to the US Supreme Court. But SCOTUS would likely reject cert. except when the legal issues transcended the specialized universe of capital litigation or when the High Court was troubled by the direction in which the UFCC was moving the law. (I surmise these basic dynamics now shape when SCOTUS decides to grant cert. in patent cases coming from the Federal Circuit.)
I am not sure there would be any certain losers as a result of this proposed transformation of federal capital appeals (although the judicial philosophies of the UFCC judges would surely impact outcomes). I am sure that federal district and circuit courts, whose dockets would be freed from all the collateral capital litigation, would be certain winners under this new plan. And this proposal could free debates about habeas corpus from the distorting influence of debates over the death penalty.
November 29, 2005
Clemency in Virginia delays execution 1000
As detailed in this AP story, "Virginia's governor on Tuesday spared the life of a convicted killer who would have been the 1,000th person executed in the United States since the Supreme Court allowed capital punishment to resume in 1976. Robin Lovitt's death sentence was commuted to life in prison without parole a little more than 24 hours before he was to be executed."
I wonder if the magic of round numbers helped save Lovitt's life. Governor Mark Warner statement, which you can read at this link, of course does not mention the magic number 1000, but rather notes that evidence from the trial had been improperly destroyed, depriving the defense of the opportunity to subject the material to the latest in DNA testing.
As the 1000 executions website details, execution number 1000 is now likely to be in North Carolina this Friday.
More compelling capital commentary
Those inclined to think deeply about death penalty issues can thank the folks over at PrawfsBlawg for lots of new capital food-for-thought. First, PrawfsBlawg founder Dan Markel has this essay at Slate discussing the Ruben Cantu case (background here) and other death penalty developments to argue that it is "time for Texas and other states to call a moratorium on executions." Second, guestblogging at PrawfsBlawg, Will Baude has interesting posts here and here that ask "why we don't simply move death penalty cases out of the Supreme Court to a specialized criminal court."
Though I have many reactions to these new commentaries, I am finding that the current capital reflections draw me back to my work a few years ago putting together this symposium at Ohio State on "Addressing Capital Punishment Through Statutory Reform." All the articles from that symposium remain quite timely more than three years later, and my own current feelings about the latest wave of death penalty debate are largely reflected in the concluding section of my Foreword to that symposium:
[John Stuart] Mill's insight about capital punishment's "impression on the imagination" merits considerable attention when contemplating the potential for, and direction of, future reforms of the death penalty and the entire criminal justice system. Though the punishment of death may not significantly impact the behavior of potential killers, the awesomeness of this punishment indisputably does impact the behavior of our criminal justice institutions. In particular, we are seeing today the ways in which the drama of the death penalty — the fact that we are, in Mill's words, "so much shocked by death" — fuels a genuine and considerable interest in legislators, and in the public at large, to be particularly cautious and conscientious before fully embracing and comfortably imposing the punishment of death.
The new public awareness of errors in capital cases combined with the death penalty's "impression on the imagination" now allows legislators to speak and act more soberly and realistically about a range of criminal justice issues pertaining to capital punishment. Moreover, because all the major problems identified in the administration of the death penalty (for example, wrongful convictions, racial and other disparities, poor quality and funding of defense counsel) are not unique to capital punishment, but actually plague the entire criminal justice system, advocates who have traditionally opposed the death penalty because of due process and equal protection concerns should consider taking advantage of the unique opportunity presented by capital punishment's "impression on the imagination" to work toward developing legislative reforms which would be a step toward remedying problems that infest the entire criminal justice system.
In other words, I am suggesting that Mill's insight may actually point to a different sort of pragmatic, utilitarian argument for supporting (or at least tolerating) the death penalty. In modern America, capital punishment's "impression on the imagination" may be needed to ensure that our legal institutions do not get complacent about problems that pervade our criminal justice system, and may even provide a critical means to engineer remedies to system-wide problems through well-crafted legislative reforms.
Long (above-guideline) sentence for state senator
This AP story reports on a high-profile federal sentencing in a political corruption case from Georgia. (The White Collar Crime Prof Blog has background on the case in this post.) Here are highlights from the report:
Former state Sen. Charles Walker was sentenced to more than 10 years in federal prison on Tuesday. Judge Dudley Bowen Jr. sentenced the senator to serve 121 months in prison for tax evasion, mail fraud and conspiracy. The judge chose to lengthen Walker's sentence beyond federal guidelines as a "deterrent for others who might be similarly inclined."
I wonder if this long (above-guideline) sentence might set some sort of a record in political corruption cases. I also wonder if the many other politicians in trouble these days are taking note.
Important 11th Circuit ruling on Booker harmless error
While the plain error circuit split remains unresolved, a new Booker pipeline circuit split has now emerged in the application of harmless error as a result of the Eleventh Circuit's decision today in US v. Glover, No. 04-16745 (11th Cir. Nov. 29, 2005) (available here). In Glover, a "statutory Booker error" was preserved and the government argued that the error was harmless because the sentencing judge (post-Blakely, but pre-Booker) imposed a sentence in the middle of the applicable guideline range. Here's the Glover court's response:
Although we recognize that two of our sister circuits have ruled that a midrange sentence alone establishes that a statutory error was harmless, see United States v. Perez-Ramirez, 415 F.3d 876, 878 (8th Cir. 2005); United States v. Paxton, 422 F.3d 1203, 1207-08 (10th Cir. 2005), we disagree.... The government must do more than rely upon a mid-range sentence to satisfy its burden under the harmless error standard.
Glover is also interesting because of a special concurrence from Judge Tjoflat in which he emphasizes "the extent to which the pre-Booker sentencing model (under which Glover was sentenced) differs from the post-Booker model."
Seventh Circuit enforces mandatory life sentence in drug case
With so many interesting capital sentencing developments of late, my blogging has fallen prey recently to the "culture of death." But a decision today from the Seventh Circuit in US v. Cannon, No. 05-1841 (7th Cir. Nov. 29, 2005) (accessible here) provides a sad and sobering reminder that injustices in the application of severe mandatory sentencing terms should have a much larger place in our national conversation about crime and punishment.
Based on the limited facts recounted in the Seventh Circuit's opinion, the defendant in Cannon seems to be a small-time, unextraordinary drug user. Roughly a decade ago, he was twice arrested and twice pled guilty in state court to possession of a small quantity of cocaine. Because of that past, he then faced a mandatory life sentence(!) under federal law when he was more recently arrested with 60 grams of crack.
After his conviction at trial, the district court sought to impose a sentence of "only" 20 years because the judge believed his criminal history was not so serious as to justify life imprisonment. But, on the government's appeal, the Seventh Circuit explained that neither the terms of the federal drug statutes nor the ruling in Booker provided authority for avoiding the strict application of a life term. Here is Judge Easterbrook's closing paragraph for the Cannon court:
Whether this recidivist provision is wise, and whether life imprisonment is the best way to deal with repeat offenders who peddle retail rather than wholesale quantities, is open to doubt, but Booker does not permit courts to make independent decisions about the wisdom of legislation. Mandatory recidivist enhancements are compatible with the eighth amendment. See Lockyer v. Andrade, 538 U.S. 63 (2003). Accordingly, although the conviction is affirmed, Cannon's sentence is vacated, and the case is remanded with instructions to impose a sentence of life imprisonment.
If time permits, I hope to do a follow-up post on Cannon and some lessons that might be drawn from it.
November 29, 2005 in Booker and Fanfan Commentary, Drug Offense Sentencing, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
998, 999, ...
Last night, as detailed in this AP report, Arkansas executed Eric Nance; this morning, as detailed in this AP report, Ohio executed John Hicks. These executions mark the 998th and 999th executions in the modern death penalty era. This AP story and this Reuters story in turn highlight that all eyes now turn to Virginia, where Governor Mark Warner is still considering whether to grant clemency to Robin Lovitt, who will tomorrow become the 1000th person executed if Gov. Warner does not step in.
- Marking a "grand" capital punishment milestone
- Latest BJS death penalty stats as we approach 1000th execution
Problems with the SCOTUS docket
Inspired by this post by Jason Mazzone at Concurring Opinions encouraging the Justices to take more cases, the blogosphere is buzzing about the Supreme Court's docket. Orin Kerr is skeptical about whether SCOTUS should expand its docket; Dan Markel, disappointed by the denial of cert. in the Gementera shaming case (background here and here and here), seems to support the Justices deciding more cases
Mike at Crime & Federalism has the best insights on this topic with respect to the High Court's criminal docket: "the problem isn't with the number of cases; it's with case selection. The Court is obsessed with the minutiae of capital cases while ignoring other major sentencing issues (say Booker retroactivity, which affects tens of thousands of people). And the Court is obsessed with crim pro cases in general." As detailed in posts below, I have been singing this tune for quite some time:
- Roberts, the cert pool, and sentencing jurisprudence
- More on Alito and the criminal docket
- A capital waste of time?
- A capital term for SCOTUS
- Shackled to a jurisprudence
- More death and habeas from SCOTUS
- The waiting is the hardest part...
More thoughtful commentary on clemency and the Williams case
Professor Austin Sarat, who has been doing forceful work on capital clemency lately (see here and here), today has a this FindLaw column on the Tookie Williams case. Entitled "How Governor Schwarzenegger, and Those Who Seek Clemency for Stanley 'Tookie' Williams Both Get Our Legal and Constitutional Tradition Wrong," the piece emphasizes that clemency "is an exercise of mercy and grace." Here's a selection from the piece's conclusion:
In sum, Governor Schwarzenegger's idea of the clemency standard — as meant only to correct miscarriages of justice — is simply wrong; it profoundly misunderstands our legal and constitutional traditions. Schwarzenegger should not — and cannot — hide behind this mischaracterization of his clemency power. The decision in the Williams case really is a test of the man, and what kind of governor he wishes to be.
It is about whether he will focus on charity or compassion, or worry about paying the steep political price — at a time when his own popularity is at a new low — that granting clemency to Stanley Williams will necessarily entail. The courageous decision is to spare Williams, not condemn him to death. The question is whether Schwarzenegger has that courage — not whether Williams has "earned" or "deserved" clemency.
- Talking Tookie
- Talking more Tookie
- Still more buzz about executing Tookie
- Timely article about executive clemency
November 28, 2005
Argument in NJ over application of Atkins
As noted in this Newsday article, the New Jersey Supreme Court is scheduled on Tuesday to hear arguments in NJ v. Jimenez concerning the procedures for adjudicating mental retardation claims by capital defendants in the wake of Atkins v. Virginia. As detailed in this post and this follow-up, the lower court in Jimenez held, based in part on Apprendi and Blakely, that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a reasonable doubt. The arguments can be viewed starting at 10am at this link.
UPDATE: I caught a part of the Jimenez oral argument, which should eventually be archived here, and found it very engaging and thought-provoking. And yet, given the fact that, over the past 23 years, New Jersey has spent more than a quarter of a billion dollars on its capital punishment system without executing anyone, the actual outcome in Jimenez may not significantly impact the death penalty in the Garden State.
Timely article about executive clemency
Today I received a reprint of a new article on executive clemency that seems especially timely as the debate continues over whether the scheduled execution of California death row inmate Stanley "Tookie" Williams and his case for clemency. (On the Williams front, in addition to my recent Tookie coverage here and here and here, consider this interesting article from today's Christian Science Monitor and this interesting post from David Kopel at The Volokh Conspiracies.)
This new article, which is by Samuel T. Morison and appears as The Politics of Grace: On the Moral Justification of Executive Clemency, 9 Buff. Crim. L. Rev 1 (2005), is focused principally on federal clemency theory and practices, although its main points have broad application for all clemency debates. Folks into criminal justice philosophy and theoretical debates over the clemency power are likely to most enjoy the full article, although I suspect many readers might like these quotes from the introduction:
[I]f a president refuses to exercise the clemency power at all, perhaps to insulate himself from potential political criticism for being "soft on crime," he would be properly subject to moral condemnation for being merciless....
[T]he reluctance of recent presidents to exercise the clemency power more generously perhaps can be criticized for displaying a certain lack of moral imagination and political courage, particularly given the advent in the last twenty years of strict mandatory minimum statutes and rigid sentencing guidelines, together with a burgeoning federal prison population.
Adding to the intrigue of this article is the fact that its author, Sam Morison, currently serves as an Attorney-Advisor in the Office of the Pardon Attorney in the US Department of Justice.
Initial reflections on Richey reversal
The Supreme Court's per curiam summary disposition in Richey today (discussed here) is likely not a big surprise for legal beagles following the case closely. I believe the case had been relisted a number of times, and the Court's main ruling merely reversed a Sixth Circuit interpretation of Ohio law that seemed suspect. (I was surprised, however, to see that Part II of the Richey opinion has a noticeable typo (in the initial cite of Holland v. Jackson), and that this part of the opinion is not written very clearly as it kicks the case back to the Sixth Circuit for a further round of litigation.)
But the Richey disposition is still big news because Ohio's efforts to execute Ken Richey has garnered significant national and international attention because of Richey's claims of innocence and also his Scottish roots and his status as a British citizen. This AP story and this BBC story about the Richey ruling provide some background on why the case has previously garnered so much attention, and pro-Richey websites like this one and this one highlight why we are likely to continue to hear about this case as it is further litigated in the Sixth Circuit.
Eighth Circuit discusses reasonableness of crack/powder differential
The Eighth Circuit today at the end of a long opinion in US v. Cawthorn, No. 05-1982 (8th Cir. Nov. 28, 2005) (available here) rejected a defendant's claim that "it was error for the court not to sentence outside the Guidelines range because it is always unreasonable to treat crack cocaine 100 times worse than powder cocaine." Here is the heart of the Eighth Circuit's analysis:
The Seventh Circuit noted, in an unpublished opinion, "[defendant] has cited no case after Booker in which an appellate court has held that it is unreasonable not to give a defendant convicted of an offense involving crack a lower sentence than the one recommended by the guidelines." United States v. Herron, 2005 WL 1691370, at *2 (7th Cir. July 20, 2005). While we have not yet addressed the issue, the Seventh Circuit further reasoned "[g]iven the fact that this court has routinely upheld the differential against constitutional attack . . . , and, under the pre-Booker guideline system, rejected wholesale downward departures from the guideline on this basis . . . , it would be inconsistent to require the district court to give a non-guideline sentence based on the differential." Id. We adopt this reasoning and hold sentencing within the Guidelines based on the crack-powder disparity is not inherently unreasonable.
Beyond the substantive importance of this (published) ruling, I am intrigued by the Eighth Circuit's express adoption of the reasoning of an unpublished decision from a sister circuit given the endless debate over reliance on, and citation to, unpublished opinions. This is intriguing in part because, as detailed in this post, the Seventh Circuit put its crack-powder reasoning into a published disposition back in September.
For sentencing fans from SCOTUS today
The Supreme Court is back from a two-week break with a new order list and a per curiam summary reversal that will interest sentencing fans. Lyle Denniston at SCOTUSblog details here not only that cert. was granted in three civil cases, but why he views today's order list as sending "a strong signal that [The Supreme Court] is not ready to confront the question of retroactive application of its decision early this year in Booker v. U.S." Lyle explains:
The Court denied review in 11 cases on the issue, including a case, Clark v. U.S. (04-5491), in which it had sought the Solicitor General's views. As usual, there was no explanation for any of the denials. The Solicitor General had argued that Booker should not be applied retroactively, because it failed the "new rule" test of the 1989 decision in Teague v. Lane.
Also, of related note, the order list does not have any Booker GVRs. These developments lead me to various speculations about the state of the Booker pipeline and the High Court's interest in "looking back" on Blakely and Booker issues.
Meanwhile, from the capital desk, the summary reversal today is in a death penalty case from the Sixth Circuit, Bradshaw v. Richey, No. 05-101 (S. Ct. Nov. 29, 2005) (available here). Here is Lyle's account of that decision (which I may discuss more in a later post):
In a summary decision, without dissent, the Court ruled that the Sixth Circuit had erred in deciding an issue of state law in direct contradiction of an interpretation given that law by the Ohio Supreme Court in the same case. The issue arose in a murder case in which Kenneth T. Richey was convicted of killing a two-year-old girl by starting a fire that was intended to kill the girl's mother -- Richey's ex-girlfriend -- and her new boyfriend. Richey was convicted on a theory of transferred intent for the death of the child. Her mother and the boyfriend escaped unharmed.
The inevitability of Booker disparity anecdotes
This article in Monday's Newark Star-Ledger, which is entitled "Disparities are emerging in criminal sentencings," reveals yet again how easy it is to spotlight a few federal cases in order to suggest that sentencing disparities are "emerging" in the wake of Booker. The article, in addition to providing background on the impact of Booker, details seemingly disparate sentencing outcomes in seemingly similar child pornography cases from New Jersey.
The Star-Ledger article is interesting and generally well done, although it fails to note that in roughly 2/3 of all cases in which judges impose sentences below the guidelines, these sentence reductions are at the behest of prosecutors. That failure in turn highlights broader concerns I have about these sorts of post-Booker news stories: these articles generally fail to explore how prosecutors can be the source of sentencing disparities and how factors like divergent fast-track programs or cooperation policies (or even the basic crack-powder cocaine differential) might have produced pre-Booker disparities that were even more disconcerting than any post-Booker disparities resulting from divergent judicial decisions.
I fear it is inevitable that the post-Booker world will be flyspecked and that selected anecdotes will be the basis for (overly broad) claims that greater sentencing discretion is leading to greater disparity after Booker. (Recall, of course, that this is exactly what AG Alberto Gonzales did when calling for a legislative "Booker fix" in his speech this past summer (basics here, commentary here and here and here).)
Ultimately, the real story of Booker's impact on sentencing disparities is a lot more nuanced than the Star-Ledger article suggests. And I hope to explore these realities in much greater depth in forthcoming posts in my "Dead Booker walking?" series.
November 27, 2005
Terrific blogosphere follow-up
I see that some terrific blogs have terrific follow-up on some sentencing stories I have covered recently:
- Over at the White Collar Crime Prof Blog, Ellen Podgor has this extensive post thoughtfully discussing recent trends in white-collar crime sentencing. Her post follows up recent posts here noting a Chicago Tribune article on the topic and this post asking whether white-collar offender are getting the most post-Booker breaks.
- Over at Crime & Federalism, Mike has this thoughtful post commenting on the scheduled execution of California death row inmate Stanley "Tookie" Williams and his case for clemency. His post follows up my recent Tookie coverage here and here and here.
Critical commentary on Alito's death penalty work
Berkeley law prof Goodwin Liu today has this commentary in the Los Angeles Times, which is highly critical of the work of Judge Sam Alito in capital cases during his tenure as a Third Circuit judge. Here are the opening and closing paragraphs:
Although abortion rights have dominated the debate over the nomination of Judge Samuel A. Alito Jr. to the Supreme Court, there is another issue implicating the "culture of life" that has garnered fewer headlines: capital punishment. The impending executions of three men in California, including the lethal injection of reformed ex-gang leader Stanley Tookie Williams scheduled for Dec. 13, are a sober reminder of the irrevocable stakes in this area of law.
Capital cases make up a substantial portion of the Supreme Court's docket each year. From 2000 to 2005, the court decided only three cases involving abortion but more than three dozen cases involving the death penalty. In this area, the Supreme Court often serves not only in its typical role of deciding unsettled questions of broadly applicable law but also as a court of last resort to correct errors and prevent injustice in individual cases....
Although O'Connor's approach to capital punishment has been solidly conservative, she has at times supplied a crucial vote in contentious cases in favor of greater care and fairness in the application of the death penalty. Yet it is precisely in the most contentious cases that Alito has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness.
At a time when America's commitment to due process of law is being closely scrutinized at home and abroad, Alito's record on capital punishment raises serious concerns. It deserves careful attention from the Senate and the American people as a measure of his capacity to interpret the law in pursuit of impartial, humane and equal justice.
Along with extensive coverage of the death penalty at this archive, below are linked prior posts exploring Alito and the death penalty:
- Alito and the death penalty
- Alito and Feingold discuss the death penalty
- More on Alito the prosecutor and Alito on the death penalty
- Still more on Alito and the death penalty