December 13, 2005
Potent commentary on snitching
Thanks to this post at the always interesting Grits for Breakfast, I see that Prof. Alexandra Natapoff over at Slate has this strong piece about snitching entitled "Bait and Snitch: The high cost of snitching for law enforcement." Here's a small sample of a piece that merits a full read:
Snitching thus puts us right through the looking glass: Criminals direct police investigations while avoiding arrest and punishment. Nevertheless, snitching is ever more popular with law enforcement: It is easier to "flip" defendants and turn them into snitches than it is to fight over their cases. For a criminal system that has more cases than it can litigate, and more defendants than it can incarcerate, snitching has become a convenient case-management tool for an institution that has bitten off more than it can chew.
Tookie Williams executed
As detailed in this San Francisco Chronicle story, "Stanley Tookie Williams, a gangster who became an anti-gang crusader in prison and the focus of a furious clash between advocates of punishment and redemption, was executed by lethal injection early today." Howard Bashman, as he does so well, collects a lot of the news stories about the execution and Schwarzenegger denial of clemency here.
Notably, as you can see from this page at DPIC, Williams' execution marks the 59th in the US this year, which is the same number executed in the US in 2004. As noted here, Mississippi has an execution scheduled for Wednesday. TalkLeft has commentary on Tookie here and here; Crime and Federalism adds more thoughts here.
December 12, 2005
Beyond the usual death penalty arguments?
As you can now see from scrolling down here, I am scheduled to appear on Minnesota Public Radio tomorrow morning at 10am EST as a guest on the show Midmorning. As described to me, the topic for the show is "capital punishment, a conversation beyond the usual arguments for and against the death penalty." This comment over at Volokh may provide a flavor of the kinds of ideas that I hope might come up during the live call-in show.
I suspect there will be plenty of talk about the high-profile debate over Tookie Williams and the 1000th execution and the new evidence of innocents having been executed. But I hope to explore the possible impact of changing politics and culture around the death penalty, and I might even try to make the full case for a whole new structure for federal capital appeals.
The more things change, the more....
As obliquely referenced at the end of this post, the US Sentencing Commission has now updated its most recent post-Booker data report to include its (recently finalized) "new" data on federal sentencing (pre-Blakely) during fiscal year 2004. (Recall that very early post-Booker reports could only make comparisons to FY2002 data, and then later post-Booker reports were able to add comparisons to FY2003 data.) The addition of the FY2004 data to the USSC's post-Booker reporting provides important new data points when seeking to assess Booker's impact.
The new data points in the FY2004 data are fascinating. I suspect (and fear) that many observers will fixate on the fact that the FY2004 data reveal a national average of "within range" guideline sentences at 72.2%, while the post-Booker national average of "within range" guideline sentences now stands at 61.7%. But no one should obsess over these comparative numbers without also looking at the sentencing length numbers on the last page of the USSC's data report. That last page details that average and median sentences are virtually unchanged from FY2004 to FY2005. Such data suggest to me that, while the route to particular sentences might be somewhat different after Booker, the true bottom line seems to be largely unchanged.
Extended Second Circuit discussion of appeal waivers
The Second Circuit today in US v. Hamdi, No. 03-1307 (2d Cir. Dec. 12, 2005) (available here), has lots of interesting discussion of appeal waivers. Here's the panel's official summary of its ruling:
Defendant Ali Hamdi, a Tunisian citizen, appeals a judgment of sentence imposed after his plea of guilty. We hold that (1) Hamdi's completion of his sentence and his subsequent deportation do not render his appeal moot and (2) Hamdi did not waive his right to challenge his sentence under United States v. Booker, 125 S. Ct. 738 (2005), by signing a plea agreement reciting that "[t]he defendant's sentence is governed by the United States Sentencing Guidelines."
Schwarzenegger denies Tookie Williams clemency
As detailed in this AP report, "Gov. Arnold Schwarzenegger denied clemency to Stanley Tookie Williams, the former gang leader whose case stirred debate over capital punishment and the possibility of redemption on death row." This means, with other last-ditch appeals have been rejected, that Williams will likely be executed by the state of California in about 11 hours.
Thanks to this post from the ever-able Howard Bashman, I see that you can access Schwarzenegger's five-page "Statement of Decision" at this link. This (very lawyerly) document makes for very interesting reading, and here are just a few passages that catch my eye from a quick read:
The basis of Williams' clemency request is not innocence. Rather, the basis of the request is the "personal redemption Stanley Williams has experienced and the positive impact of the message he sends." But Williams' claim of innocence remains a key factor to evaluating his claim of personal redemption. It is impossible to separate Williams' claim of innocence from his claim of redemption....
Is Williams' redemption complete and sincere, or is it just a hollow promise? Stanley Williams insists he is innocent, and that he will not and should not apologize or otherwise atone for the murders of the four victims in this case. Without an apology and atonement for these senseless and brutal killings there can be no redemption. In this case, the one thing that would be the clearest indication of complete remorse and full redemption is the one thing Williams will not do.
Clemency decisions are always difficult, and this one is no exception. After reviewing and weighing the showing Williams has made in support of his clemency request, there is nothing that compels me to nullify the jury's decision of guilt and sentence and the many court decisions during the last 24 years upholding the jury's decision with a grant of clemency.
Not much from SCOTUS, but USSC action coming soon
The Supreme Court's final order list for 2005, which is available here, does not appear to have much to interest sentencing fanatics. Notably, the order list does not have any Booker GVRs, although it does have a lot of cert denieds that appear to be criminal cases. My sense is that, as we today mark the 11th-month anniversary of the Booker decision, the Booker pipeline is almost completely clear.
But, speaking of Booker pipelines and reasons to celebrate, I have on good authority that the US Sentencing Commission will be releasing a lot of new pre-Booker and post-Booker data very soon. Specifically, I am hopeful that we may soon see on the USSC's website sentencing data from Fiscal Year 2004, which should be quite interesting because sentencing courts in FY04 were still adjusting to the impact of the Feeney Amendment when the Blakely earthquake hit. In addition, I am also hopeful that we my also soon see on the USSC's Booker page new and updated post-Booker data, including perhaps some of the additional types of data that, as I suggested in this Booker data wish list and in this formal letter to the USSC, seem important in order to get a more complete view of post-Booker federal sentencing.
UPDATE!!: Astute observers of the work of the USSC and post-Booker data will see that on the USSC's Booker page, there is now this updated version of the USSC's monthly report on post-Booker data through November 1. If you play a law nerd's version of "Where's Waldo" — by asking where's Blakely — you can discover why this updated version of the post-Booker data is so notable and interesting.
The next issue in sentencing of juveniles?
When the Roper decision by the Supreme Court eliminated the death penalty for juvenile offenders, I pondered in this post whether and how age might become a significant consideration in some non-capital sentencing decisions. This interesting article from Michigan suggests that the public strongly believes juvenile offender's do not merit other extremely harsh sentences:
According to a new study from the Wayne State University School of Social Work, many Michigan residents disapprove of state policies on sentencing juveniles. The study, authored by Assistant Professors Sheryl Pimlott Kubiak and Terrence Allen, and Associate Professor Anthony King, all of the School of Social Work, found that 95 percent of Michigan citizens opposed juveniles being sentenced to life without parole (LWOP).
Allen presented the study at the Michigan Capitol Oct. 25, where state Sen. Liz Brater, D-Ann Arbor, introduced a bill that would prohibit sentencing an individual under age 18 to imprisonment for life without the possibility of parole....
According to a recent ACLU report, over 300 youth have been sentenced to LWOP in Michigan since 1988, making it the state with the third highest number of youth sentenced to adult correctional facilities. Additionally, Michigan is one of only 11 states that allow minors of any age to be tried and sentenced as adults.
Pondering the "New life in death penalty debate"
This commentary piece from a college newspaper, entitled "New life in death penalty debate," effectively highlights all the recent capital sentencing developments — from the high-profile debate over Tookie Williams to the 1000th execution to new evidence of innocents having been executed — that have the media and commentators buzzing about the death penalty. More examples of the capital buzz can be found in dueling commentaries here and here in USA Today and in the dozens of death penalty articles at Google News each day and in this archive.
But while I have been talking up signs of a changed politics and new culture around the death penalty(see recent posts here and here and here and here), I cannot help but doubt that this latest round of debate will itself dramatically impact capital sentencing law and policy. My sense is that movement toward and away from the death penalty tends now to be the product of slow shifts in the personal attitudes of, and the political atmosphere surrounding, key capital decision-makers. All the recent debate over death certainly makes for a lot of blog copy. But I view all the buzz more as a reflection of deeper (and often competing) trends rather than as the start of any new ones.
December 11, 2005
More on First Circuit crack/cocaine oral argument
As detailed in this post, the First Circuit heard argument last week in government appeals from sentencing decisions by District Judge Torres in which he decided not to follow the guidelines 100:1 crack/powder ratio. Thanks to helpful Yale Law student Eric Citron, who forwarded me the audio file of the full oral argument that I have provided for downloading below, we can all now listen to the important and interesting debate over the nature and process of post-Booker sentencing.