April 10, 2006
Trans-coastal lethal injection inspections
Returning to the lethal injection scrummages, this story from North Carolina suggests that state may be starting down the same rocky road that California has been traversing of late:
A federal judge has ordered North Carolina prison officials to tell him by noon Wednesday how they will comply with an order requiring medically trained personnel to ensure death row inmate Willie Brown Jr. is unconscious during his April 21 execution.
U.S. District Court Judge Malcolm Howard's April 7 order puts North Carolina in a similar predicament to what California prison officials experienced two months ago before their execution process was derailed by a similar legal challenge. In February, California prison officials were unable to find anesthesiologists willing to make sure Michael Morales, a rapist and killer, was unconscious when paralyzing and heart-stopping drugs were administered. Doctors refused to participate, citing ethical concerns, and Morales wasn't executed.
This morning, North Carolina prison officials were still reviewing Howard's order and were unable to comment about their response.
Some recent related posts:
- The latest (silly?) front in the lethal injection scrummages
- The lethal injection debate rages on
- Back to the lethal injection scrum in Morales
- And the lethal injection litigation played on...
- Back to the lethal injection litigation
- More lethal injection scrummages
An example of gender disparity in sentencing?
The Eighth Circuit's ruling in US vs. Bistrup, No. 05-2603 (8th Cir. Apr. 10, 2006) (available here), caught my attention principally because I am discussing offender characteristics in my sentencing class this afternoon. In Bistrup, a husband and wife were convicted at trial of a series of mail fraud and bank fraud offenses. Based on the facts recounted by the Eighth Circuit, the husband was clearly far more involved in the fraud scheme than the wife. Nevertheless, the disparity between the sentences imposed is startling: "The district court sentenced Nancy Bistrup to ... two years of probation for her role in the offenses [and] sentenced Alan Bistrup to 188 months after calculating a guideline range of 151 to 188 months based on a total offense level of 34 and category I criminal history."
Notably, the Eighth Circuit does not report the guideline sentencing calculations in Nancy's case, but I suspect that the district judge had to depart or vary downward in order to impose a sentence of only two years' probation. Meanwhile, Alan received the guideline max and will be spending over 15 years in the federal pen (perhaps a little less with good behavior). I cannot help but speculate that, had their roles been reversed, the sentences for Alan and Nancy Bistrup might have been more comparable.
UPDATE: The second comment here provides more details on the different levels of involvement of Alan and Nancy Bistrup to explain why factors other than gender may explain the disparity in their sentences. That comment spotlights a number of important points, although I still find telling the fact that Nancy's "guideline range of 37-46 months" and yet she ultimately received a sentence of only two years' probation, while Alan was sentenced at the very top of his applicable guideline guideline range.
Fifth Circuit affirms life-time supervised release for downloading child porn
To wrap up some of last week's circuit sentencing action — which brought important rulings from the First Circuit, the Second Circuit, the Fourth Circuit, the Seventh Circuit, the Tenth Circuit and others — the Fifth Circuit issued an interesting opinion in US vs. Gonzalez, No. 05-40950 (5th Cir. Apr. 7, 2006) (available here). The Fifth Circuit in Gonzalez reached a mixed result in reviewing a defendant's objections to a sentence in a case involving the downloading of child porn.
First, the defendant in Gonzalez prevails on his claim that his guideline offense level was improperly "increased twice on the basis of the number of child pornography images he possessed." In finding for the defendant on his double-counting claim, the Fifth Circuit in Gonzalez appears to create a circuit split due to a contrary ruling last year by the Eleventh Circuit. (So much for national sentencing uniformity.)
Second, the defendant in Gonzalez fails in his objection to the judge's upward departure in "Gonzalez's term of supervised release — from the Guidelines term of three years to the statutory maximum term of life." The Fifth Circuit declares this upward departure reasonable after concluding that downloading of child porn qualifies as a "sex offense."
The latest USSC basic Booker data
I was a bit concerned that, after the US Sentencing Commission released its major Booker report last month (examined in posts linked here), we would not see continued releases of new post-Booker data. But I am pleased to see that the USSC now has on its Booker webpage the latest, greatest batch of basic post-Booker sentencing statistics. This latest "Post-Booker Sentencing Update," which can be accessed here, provides an "extensive set of tables and charts presenting data on post-Booker cases received, coded, and edited ... [through] close-of-business on March 16, 2006."
More reasonableness wins for the government in the First Circuit
As detailed over at AL&P, the First Circuit wrapped up last week by issuing a big batch of criminal opinions, and more than a few had some notable sentencing aspects. Of particular note, in my view, is the circuit's continued discussion and application of reasonableness review.
Continuing a well-established nationwide pattern (documented here), the First Circuit found within-guidelines sentences in a few cases to be reasonable. See US v. Alli, No. 05-1698 (1st Cir. Apr. 7, 2006) (available here); US v. Saez, No. 05-2001 (1st Cir. Apr. 6, 2006) (available here). Both Saez and Alli have some interesting exposition that further fills out the First Circuit's approach to reasonableness review.
Even more informative is US v. Smith, No. 05-1725 (1st Cir. Apr. 7, 2006) (available here), which reverses and remands a below-guidelines sentence as unreasonable and talks through the factors of 3553(a) at some length. Here is how this opinion concludes:
In a nutshell, the offense is quite serious and the defendant's record unpromising, and there are no developed findings to indicate that rehabilitation is a better prospect than usual. A sentence less than half the minimum range appears to us plainly unreasonable. Although we are unhappy to disagree with the respected and experienced district judge in this case, we cannot sustain the sentence on the findings and explanation before us.
April 9, 2006
Undue leniency for drunk drivers?
In this recent post, I pondered why so much more attention is paid to sex offender sentencing than to sentencing for drunk drivers. Today, this Pioneer Press article, entitled "Going easy on DWI?", explores related issues by noting patterns of leniency in Minnesota sentencing of drunk driving offenses. Here's a snippet:
More than 40 percent of felony DWI offenders who go before judges facing three or more years in state prison get county jail terms of a year or less, data from Minnesota courts show. Some county prosecutors said judges are thwarting a 2002 law aimed at sending chronic drunken drivers to prison. "The judges unilaterally are engaged in a pattern of undermining the public's will as to how dangerous this crime is," said Ramsey County Attorney Susan Gaertner. "I don't understand why, approximately half the time, the judges are giving these felons yet another break."
But the law gives judges discretion, which they often use to give less time to offenders who promise to treat their alcoholism, said Anoka County District Judge Sharon Hall, a Minnesota District Judges Association past president. "It isn't simple. That's why judges have sentencing discretion. Many times the prosecution and the defendant will come to a plea agreement," Hall said. "They make arrangements for treatment, and sentencing is set out a couple of months to see how they'll deal with sobriety." ...
Gaertner and a victims' advocate suggest that judges are slapping wrists instead of imposing prison because the defendants are perceived as "people like us." "These people could be your neighbors, your friends, your family members," Gaertner said.... Even when guidelines call for prison, judges may struggle when they look at the individual facts surrounding a felony drunken-driving case, said Hall, the Anoka County judge. "Most people aren't intending to get drunk and drive," Hall said. "That's why we always wrestle with drug and alcohol cases. It's not the same as someone who picks up a gun or knife and shoots or stabs, or breaks into a home. It's a whole different mind-set."...
"These cases are being treated like there were gross misdemeanors in their sentencing," [Dakota County Attorney James] Backstrom said. "This impacts more people in the public than any other crime we deal with. It happens all the time— crashes involving drunken drivers."