May 2, 2006
Notable Seventh Circuit ruling on procedural rights in revocation proceedings
The Seventh Circuit today in US v. Kelley, No. 05-1884 (7th Cir. May 2, 2006) (available here), issued an interesting ruling concerning a defendant's procedural rights when a district court revokes a term of supervised release and sentences to a term of imprisonment. Here are the highlights from the opinion's introduction:
Kelley argues the district court could not have found him guilty of [certain] vioations without the hearsay-laden testimony and police report of the investigating officer. He argues that the court's consideration of that hearsay — over his timely objection — violated his Sixth Amendment right of confrontation as recently construed in Crawford v. Washington, 541 U.S. 36 (2004), and his more limited due process right of confrontation as applicable to revocation proceedings under Morrissey v. Brewer, 408 U.S. 471 (1972)....
Supervised release revocation hearings are not criminal prosecutions, so the Sixth Amendment right of confrontation and Crawford do not apply. Kelley's due process rights were not violated because the hearsay evidence at issue was substantially reliable and its admission did not undermine the fundamental fairness of the revocation hearing.
More lethal injection drama in Ohio
As if we needed more drama added to the debates over lethal injection, today in Ohio there was extended difficulty completing the execution of a defendant. (Notably, I believe this defendant did not even bother to challenge the method by which he was executed.) This AP story provides the basics:
Ohio executed a man Tuesday following a delay of more than an hour because of unprecedented difficulty administering the lethal injection. Joseph Lewis Clark, 57, died by injection at 11:26 a.m. at the Southern Ohio Correctional Facility for killing a gas station clerk during a spree of robberies in 1984 in which he also killed a convenience store worker.
The execution was set to begin at 10 a.m. It was the longest delay since the state resumed executions in 1999, state prisons spokeswoman Andrea Dean said. The execution was slowed as the execution team worked to find a vein in his right arm.
Clark said, "These don't work" and "They're not working" as the team tried to start the injection. After 25 minutes of trying to find a vein, a curtain separating the death house from witnesses was pulled shut. Clark could be heard moaning and groaning from behind the curtain. When the curtain reopened at 11:17 a.m., Clark had two shunts in his left arm. "This has never happened," Dean said of the delay.
UPDATE: At CNN.com you can read here the Reuters report on the Clark execution, which is running with the headline, "Killer executed the hard way: Condemned man sits up and tells executioners, 'It's not working'."
Eighth Circuit reverses extraordinary upward variance
Through a relatively cursory, to-the-point opinion in US v. Kendall, No. 05-2863 (8th Cir. May 2, 2006) (available here), the Eighth Circuit today reversed a large upward variance. Here is the heart of the analysis (with cites omitted):
Kendall ... argues his sentence was unreasonable under § 3553(a). He notes the advisory range was twenty-seven to thirty-three months given his total offense level of twelve with, assuming he is not a career offender, his eleven criminal history points and thus criminal history category V. Nonetheless, he was sentenced to eighty-four months, an increase of 155%, or more than eight offense levels, from the maximum guidelines range. This increase is "extraordinary."
An extraordinary departure must be supported by extraordinary circumstances. The district court focused on the seriousness of methamphetamine manufacture and Kendall's criminal record in varying upwards. To the extent the district court discussed the seriousness of methamphetamine manufacture, there is nothing which sets Kendall's case apart from any other methamphetamine case. Moreover, as the district court noted, he was "low on the chain" and not actually involved in methamphetamine manufacture.
Regarding Kendall's criminal record: at 17, he was convicted of second degree burglary and stealing; at 22, he was convicted of careless driving and driving while impaired; at 29, he was convicted of driving while intoxicated; at 30, he was convicted of driving while intoxicated; at 32 he was convicted of the felony driving while intoxicated (persistent offender) and misdemeanor possession of a controlled substance. This is not the type of extraordinary record to justify an extraordinary variance.
Press coverage of SCOTUS capital action
I canvassed here yesterday's work by the Supreme Court in deciding one capital case from South Carolina (Holmes) and deciding to decide another case from California (Ornaski v. Belmontes). As he does so well, Howard Bashman has collected today's press coverage of these developments: at this link are stories about Holmes; at this link are stories about Belmontes.
The stories providing background about Belmontes confirms my concern that the Supreme Court believes it should be in the business of error-correction whenever a death sentence was perhaps wrongfully overturned. As I have argued previously here and here, I am not confident that this is the best use of the Court's limited time and docket.
The funny logic of federal sentencing
This interesting story from the Knoxville News Sentinel describes an unusual federal sentencing in which a drug dealing defendant with old priors may qualify for a mandatory life term and yet also qualify for a lower sentence through the application of the so-called safety-valve. Here is a snippet from the article:
Minto has been running afoul of the law since the 1960s. In the early 1990s, he racked up two felony drug convictions. Under federal law, that means he should be facing a mandatory life term in the marijuana-hauling venture. "Guess what? A funny thing happened on the way to a life sentence," defense attorney Bruce Poston told [District Judge Roonie] Greer on Monday....
[T]he "safety valve," a provision of the law designed to cut first-time offenders a break, [has] five criteria a defendant must meet to qualify. Minto should not have met at least two, maybe three, of those criteria. But he did, Poston argued.
Because all of his prior crimes are more than 10 years old, they did not count against him in the presentencing calculation done to determine what Minto's sentence should be under advisory federal guidelines. Even more unusual is that Minto had "debriefed" with federal authorities about his crime — another key safety valve criteria — despite the fact that he later opted to stand trial....
Both sides agree that the core issue facing [Judge] Greer is what to do with a guy who, under one law, nets a life term while, under another, might draw as little as 97 months in prison.
May 1, 2006
Tough sentences in high profile cases
Anyone concerned about sentences being too lenient after Booker can look at the two high-profile sentences handed out today for evidence that federal judges can be tougher that the guidelines or prosecutors suggest. Here are links to the stories:
Still more notable capital coverage
In posts here and here and here, I linked to a number of interesting articles and commentaries about recent capital sentencing developments. I now have two more items to add to the death penalty reading list:
- The St. Petersburg Times has this editorial entitled "Of pain and punishment" discussing the lethal injection litigation.
- Legal Times has this piece entitled "Death Sentence Could Challenge Both Sides" discussing likely appellate issues in the (still on-going) Moussaoui trial.
Fourth Circuit discusses admissions and alternative sentence
The Fourth Circuit today in US v. Revels, No. 05-4142 (4th Cir. May 1, 2006) (available here), discusses at some length the concept of admissions and the impact of an alternative sentence during the Blakely-Booker interregnum. Here are the basics from the start of the opinion:
Joseph Revels brings this challenge under United States v. Booker, 125 S. Ct. 738 (2005), to the district court's application of a four-level sentencing enhancement and its imposition of a 120-month sentence under the then-mandatory Sentencing Guidelines. We hold that the district court committed Sixth Amendment error because the facts underlying the four-level enhancement were neither admitted by the defendant nor proved to a jury beyond a reasonable doubt. But we also hold that because the district court issued an alternative identical sentence treating the Guidelines as advisory only, any error was rendered harmless. We therefore affirm the judgment of the district court.
Today's notable SCOTUS action
As well reported at SCOTUSblog and How Appealing, the Supreme Court started off May with a little criminal justice action. Specifically, Justice Alito's delivered his first opinion, for a unanimous court, ruling in favor of a criminal defendant's right to introduce evidence alleging another person's guilt in Holmes v. South Carolina, No. 04-1327 (S. Ct. May 1, 2006) (available here). The AP's account of the ruling can be accessed here. [UPDATE: Orin Kerr discusses Holmes at some length here.]
More notable for sentencing folks is the additional news that the one cert grant today, Ornaski v. Belmontes (05-493), concerns California's death penalty jury instructions. As Lyle Denniston explains here, in this case SCOTUS will "try again to clarify the constitutionality of a California jury instruction, a 'catch-all' instruction on consideration of evidence favorable to an accused in a death penalty case.... The Court had ruled twice before on the so-called 'factor k' instruction."
As regular readers might predict, I find quite aggravating the Supreme Court's decision to take a third look at the 'factor k' instruction when, as outlined long ago in this post, there are so many post-Blakely and post-Booker questions that merit the Court's attention. Grants like this only further encourage my endless kvetching about excessive energy devoted to death penalty when there are so many other sentencing issues that ought to garner attention (consider, for example, posts here and here and here and here).
UPDATE: Here is Tony Mauro's account of the work of Justice Alito's work in Holmes.
The impact of former prosecutor Alito
Charles Lane has this piece in the Washington Post focused on Justice Alito's likely role as a swing vote in the three cases that the Supreme Court has ordered re-argued since his arrival. The piece notes a point I made recently in this post, namely that all the cases ordered to be re-argued involve criminal justice or related issues, and also spotlights Justice Alito's professional history as a federal prosecutor. Here's a taste:
In oral arguments so far, Alito has generally been in a listening mode, limiting himself to a few terse questions. But in the second argument of Garcetti v. Ceballos, he was more active, speaking up a dozen times. At least one of his remarks seemed to hearken back to his own experience as a prosecutor.
When Ceballos's lawyer, Bonnie I. Robin-Vergeer, suggested that U.S. attorneys and district attorneys might be "blind-sided by cover-ups" unless their employees felt safe coming forward with charges of wrongdoing, Alito noted that he was not so pessimistic about prosecutors' openness to bad news. "In most instances, they would not be hostile to receiving that kind of information if it was provided to them," he said.
So much death penalty coverage...
The start of a new work week brings a lot of articles and commentaries focused on the death penalty. Here is just an abridged list:
- This op-ed from the Baltimore Sun, "Deciding to kill."
- This piece from the Dallas Morning News, "Lethal injection challenges mount."
- This commentary from the Milwaukee Journal Sentinel, "Death penalty, science and sense."
- This commentary from the North Carolina News & Observer, "Death need not be kind."
- This article from U.S. News & World Report, "Pulling Back From The Brink: Why are death sentences and executions dropping?" (Companion piece: "A Long and Tortured History".)
- This story from the AP, "Top judge calls death penalty 'dysfunctional'"
In addition, Karl Keys at Capital Defense Weekly has great coverage of a lot of additional death penalty cases, stories and developments.
April 30, 2006
A thoughtful, but disappointing, attack on a faith-based prison program
Marty Lederman over at Balkinization has this thoughtful post about an initiative, entitled Life Connections, open to "adult volunteer inmates" in five federal prisons designed to provide a "residential multi-faith restorative justice program." In his post, Marty details at great length why he considers Life Connections to be a "blatantly unconstitutional federal religion-in-prisons program."
Because I am not expert in the Establishment Clause, others will have to analyze Marty's constitutional assertions. Instead, I want to rail against excessive concern about faith-based prison programs.
Considering all the other problems with our sentencing and corrections system — from reliance on acquitted conduct and civil burdens of proof to enhance sentences, to prison populations increasing 500% over the last 25 years, to racial disparities in so many areas, to nearly 150,000 persons now serving life sentences, to supermax prisons that inflict a kind of psychological torture — I hope reform advocates will not be excessively concerned with a program that seeks to "reduce recidivism and bring reconciliation to victim, community and inmate through personal transformation using the participant's faith commitment."
Put simply, even if Life Connections might bring a bit too much religion to federal prisons, I see so many much, much bigger sentencing and corrections problems that merit much, much more attention.
How could (and should) Congress clean up the lethal injection mess?
No matter what one's view on the death penalty, the lethal injection litigation over the last four months has to be seen as a national disgrace. And lately I have been pondering whether and how Congress could and should do something to try and clean up the lethal injection mess.
Proponents of capital punishment have to be troubled that lethal injection litigation has produced de facto moratoriums on executions in California, Florida, Missouri and in the federal system. Opponents of capital punishment have to be troubled that Texas and a few other states have not seriously examined their lethal injection protocols as they proceed with executions.
Moreover, anyone genuinely interested in federalism, or sentencing consistency, or orderly government has to find the patchwork and disparate litigation taking place in federal district courts nationwide unseemly and counter-productive. And don't get me started on the stressful and inefficient expenditure of the time and energies of lower federal courts and state lawyers in all this capital litigation.
Of course, the Supreme Court shifted this litigation mess into high gear with its cert grant in Hill, and it might clean up some of the mess whenever it decides Hill. But, because Hill is only formally concerned with a narrow procedural issue and because SCOTUS seems deeply divided on most death penalty matters, I fear the Court's decision in Hill might make the lethal injection litigation mess worse, not better.
So, with this background, how about another branch of the federal government stepping in? Congress could, at the very least, hold hearings to explore the medical matters at issue in all the litigation. Congress might also weigh in on the merits by encouraging states to adopt a particular lethal injection protocol. Or Congress might just clean up some procedural issues by authorizing a specialized tribunal — the federal circuit? — to consider these challenges in the first instance.
I can see pros and cons to all possible Congressional action in this context. But the basic question and concern is whether Congress should just sit on the sidelines while important matters of life and death unfold in such a haphazard (and unjust?) way.
UPDATE: After finishing this post, I recalled Congress's role in last year's hub-bub over Terry Schiavo where only one life was involved. In contrast, if you credit any claims about the deterrent impact of executions, a lot more innocent lives (of potential murder victim) — as well as guilty lives of murders and the emotional lives of family members of victims and defendants — are at stake in the on-going lethal injection litigation. Where are the vocal "culture of life" advocates when we need them?
More international sentencing reform developments
Continuing my sporadic coverage of international sentencing developments, this article from Scotland caught my eye with its discussion of proposed sentencing reforms. Here are some snippets from an interesting piece:
Murderers, rapists and drug dealers will face stiffer sentences under a crackdown on serious crime in Scotland. New guidance designed to ensure longer prison terms and consistent sentencing across the country will be issued to judges under plans being drawn up by Labour.
Jack McConnell intends to put law and order at the heart of the party’s manifesto for next year’s Scottish parliament election following accusations that violent criminals are getting off too lightly. Judges would still have discretion to take special circumstances into account and would not be legally bound to adhere to the guidance. However, they could face disciplinary action, including being sacked, if they repeatedly impose sentences that are considered too lenient. The move follows a series of cases in which courts have been criticised for being too soft....
Related posts on international concerns about sentencing disparity: