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May 20, 2006

Recapping a lethal week for lethal injection scrummages

Not surprisingly, because a number of executions were scheduled for last week, it became quite a week for litigation over lethal injection protocols.  The most stunning developments was the flip-flopping on a stay by the Texas Court of Criminal Appeals (details here and here), which had the effect of saving (for now) the life of a death row inmate who was to be executed on Tuesday, even though a lethal injection execution went forward the following night.  Helpfully, DPIC has updated this webpage covering the lethal injection litigation.

A few sentences from the dissent by the Sixth Circuit's Judge Martin in a case from Tennessee (details here) capture the current litigation realities perfectly:

[T]he dysfunctional patchwork of stays and executions going on in this country further undermines the various states' effectiveness and ability to properly carry out death sentences.  We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedure.  In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result.  This adds another arbitrary factor into the equation of death and thus far, there has been no logic behind the Supreme Court's decision as to who lives and who dies.

The big question going forward, of course, is when and how the Supreme Court will address these issues in Hill, and whether the disposition in Hill will add clarity or just further confusion to the lethal injection scrummages.

Some recent related posts:

May 20, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

More weekend reading from SSRN

Once again, SSRN is full of interesting-looking new papers that sentencing fans may want to check out:

May 20, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

May 19, 2006

Lots of intriguing reasonableness action in the circuits

My schedule this week has kept me from keeping up with all the Booker action in the circuits.  But, with a bit of time to catch up, I see three recent opinions discussing reasonableness review that seem worth noting:

Among this bunch, Morris is probably the most fun to read, in part because of a concurrence by Judge Clay that attacks the Sixth Circuit's adoption of a rebuttable presumption of reasonableness for within-guidelines sentences.

Some related posts on reasonableness review:

May 19, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

More friendly advice on crack sentencing for Third Circuit

As detailed in this press release from the ACLU, the amicus team lead by Professor Mark Osler has filed another brief on post-Booker crack sentencing.  The brief, which supports of the exercise of post-Booker discretion to vary from the notorious 100-to-1 crack/powder guideline sentencing ratio, has now been filed in the Third Circuit case of US v. Ricks.  The amicus brief can be accessed at this link, and below are just a few posts on the crack sentencing issues.

Some related posts:

May 19, 2006 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

May 18, 2006

A must-read for those following lethal injection scrummages

Some time away from the computer during some time away from the office has allowed me to catch-up on my "to read" pile. Because of all the litigation over lethal injection protocols, on the top of that pile is the seminal article by Professor Deborah Denno: When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us, 63 Ohio St. L.J. 63 (2002) (available here).

Though already a little bit dated because of all the recent litigation, this article is amazingly timely in its analysis of both constitutional and policy issues surrounding execution methods.  If you are interested in these issues, you have to read this article.

May 18, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Intriguing sex offender collateral consequence

With a hat tip to How Appealing, I can relay this interesting news story and this interesting state court ruling about a novel new aspect to a sex offender sentencing.  Here are highlights from the news story:

When a Sussex County teenager admitted endangering the welfare of his 6-year-old half sister, a judge sentenced him to three years probation and added an unprecedented condition: The boy must tell the parents of any girl he dates that he is a registered sex offender.  Yesterday, a state appeals court ruled that family court judges have the power to impose such conditions, even though they go beyond the warnings provided to the public under Megan's Law.

The Public Defender's Office plans to ask the state Supreme Court to review the ruling.  Spokesman Tom Rosenthal said, "We are concerned this may be adopted in other cases.  We really don't want to see that happen."

It is a case that involves conflicting state policies.  State law protects the confidentiality of juvenile delinquents in order to foster their rehabilitation.  But since the 1994 rape and murder of Megan Kanka, the state has developed an elaborate system for warning schools and neighbors about sex offenders in their midst.... Both Rosenthal and West Trenton lawyer Jack Furlong, co-author of a guidebook to Megan's Law, said it was the first time they had heard of a teenager being ordered to disclose his sex offense to a date's parents.

"As a practical proposition, this kid doesn't date for three years," said Furlong, a long-time critic of Megan's Law. "It's another example of judges being hyper-cautious whenever dealing with sex offenses for fear that something, hypothetically, could happen in the future and were it to happen the judge would be called to account," Furlong added. "That's not what judging is about."  Assistant Sussex County Prosecutor Jerome Neidhardt, who handled the appeal for the state, said, "We agree with the reasoning behind the judge's decision."

May 18, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

May 17, 2006

Seventh Circuit deepens splits over post-Booker sentencing

Through its opinion today in US v. Walker, No. 05-1812 (7th Cir. May 17, 2006) (available here), the Seventh Circuit has deepened developing circuit splits over post-Booker sentencing procedures.  In Walker, the Seventh Circuit finds reasonable an above-guideline sentence and and makes this notable ruling along the way:

Rule 32(h)'s notice requirement — which applies to "departures" from the Guidelines, a concept that our post-Booker cases have called "obsolete" — does not apply here, where the district court selected a sentence at variance from the advisory Guidelines range based on the sentencing factors specified in 18 U.S.C. § 3553(a).

I have previous questioned here the sense of calling departures obsolete after Booker, and I believe the Sixth, Eighth and Ninth Circuits (and maybe others) have endorsed the continued application of the departure concept after Booker.  In addition, I know the Tenth Circuit (and perhaps others) has expressly held that the notice requirement of Rule 32(h) survives Booker and requires notice before an above-guideline sentence is imposed.

If we get more holdings like Walker, it may be only a matter of time before the Supreme Court has to take up a post-Booker case to help lower courts figure out how to sort through this brave (not-so-)new world.

May 17, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Texas executions back on track

As detailed in this article, the halt to Texas executions due to lethal injection concerns appears to have been quite short lived:

In a stunning about-face, the Texas Court of Criminal Appeals today lifted the stay of execution it granted this week for Derrick Sean O'Brien, who was condemned for the 1993 murders of two Houston teenagers....

In a 5-4 ruling late today, the court vacated the reprieve it gave O'Brien.  O'Brien, 31, had been scheduled to die Tuesday.  The dissent raised the issue of execution protocol and pointed to the Florida case before the U.S. Supreme Court on drugs used in lethal injections.  That ruling is expected before July.

"We have now reviewed this subsequent application and find that it should be dismissed," the court said in a brief four-paragraph ruling.  Court of Criminal Appeals Judge Cathy Cochran wrote in an accompanying opinion concurring with the full court's decision that the panel gave the reprieve Monday to have sufficient time to assess the lethal injection procedures used by the Texas Department of Criminal Justice.

The opinions from Texas Court of Criminal Appeals in the O'Brien case can be accessed at this page.

UPDATE: As detailed in this news report, Texas executed Jermaine Herron this evening after all courts (including the Supreme Court) refused to grant a stay based on lethal injection issues.  But, O'Brien (whose execution had been scheduled for yesterday) is still alive because I believe Texas needs to have a new execution date scheduled.

May 17, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

FindLaw commentary on Hill case

Over at FindLaw at this link, Professor Sherry Colb has a commentary on the Hill case, entitled "Retribution Without Cruelty: The Supreme Court Considers an Eighth Amendment Challenge to Lethal Injections."  Here are some highlights:

However the Court rules on Hill's chosen approach to challenging his particular sentence, the issue of whether death by lethal injection violates the Eighth Amendment prohibition against cruel and unusual punishments is ripe for decision.  Arguments over the legitimacy of lethal injection, moreover, raise a still more fundamental question of what we mean to do when we "punish" a heinous murderer for his crimes....

Regardless of what the Court decides, however, we will continue to be guilty of unforgivable hypocrisy in the administration of our criminal justice system, as long as we pretend that we are engaged in something humane even as the toll of suffering and pain -- hidden in plain sight -- continues to rise, unabated.

Some related posts:

May 17, 2006 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

Uncertainty over status of Texas executions

This Houston Chronicle article, "Texas Fog over executions could clear today" highlights the continuing uncertainty in Texas over status of executions in light of the stay in one cases granted earlier this week by the Texas Court of Criminal Appeals (basics here).  Here's the start:

A decision today from the state's highest criminal court could provide an indication of how Texas will handle death penalty appeals that question the constitutionality of lethal injection.  Earlier this week, the Texas Court of Criminal Appeals postponed the execution of Houston killer Derrick Sean O'Brien, whose attorneys cited the method in their appeal as an unconstitutionally cruel and unusual manner of death.

If the same court grants a stay to death row inmate Jermaine Herron, who is scheduled to be executed tonight, the decision makes clear that the court is awaiting direction on the issue from the U.S. Supreme Court, legal experts said....  "It's highly unusual for the Court of Criminal Appeals to take the action it did in [the O'Brien] case," said Rob Owen, a University of Texas adjunct law professor and death penalty expert. "Certainly, Texas continues to execute people on a regular basis, although many of them try to file last-minute appeals, and this is one of the few that has had some success."

May 17, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

May 16, 2006

Ninth Circuit emphasizes importance of 3553(a)

Today in US v. Diaz-Argueta, No. 05-10224 (9th Cir. May 16, 2006) (available here), the Ninth Circuit discussed the importance of the 3553(a) factors in the post-Booker sentencing process.  Here are key excerpts from Diaz-Argueta:

In this case, the district court started out properly by calculating on the record the applicable Guideline range.  The district court then stated that it had "carefully considered the Presentence Report and the comments of counsel, and the memorandum filed on behalf of the defendant." The district court, however, did not explicitly address any of the factors listed in § 3553(a), other than the Guidelines.  In fact, other than using the Guidelines, the court did not give any reason for its sentence.

Section 3553(a) is mandatory.  Its terms are not met by reciting a number taken from a table of the Sentencing Guidelines that are now merely advisory.  There is no presumption that such a number has taken into account all of the relevant circumstances that the statute states that the court shall consider....

Sentencing is a difficult art. It is easy to make it mechanical. It is impossible to make it scientific in the sense of an hypothesis validated or invalidated by experiment.  It is, however, an act of reason as the judge looking at this particular person and the circumstances of the crime that this particular person has committed makes a judgment following the prescriptions of the statute. This act remains to be done.

May 16, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

A long time to survive federal prison for first Survivor

As detailed in articles here and here, "Richard Hatch, the first winner of the hit reality-television show 'Survivor,' was sentenced on Tuesday to four years and three months in federal prison for tax evasion."  Interestingly, U.S. District Court Judge Ernest Torres "said he had increased the sentence above a term suggested in a January trial because he determined Hatch had lied repeatedly about his earnings, taxes, use of charitable funds and extent of property."

May 16, 2006 in Booker in district courts | Permalink | Comments (0) | TrackBack

Tennessee lethal injection litigation splits Sixth Circuit

The capital drama in Tennessee (background here and here) took another turn this morning as the Sixth Circuit in Alley v. Little, No. 06-5650 (6th Cir. May 16, 2006) (available here) refused to reconsider its decision to lift a district court stay based on a lethal injection claim.  Five of the 12 voting judges dissented in a potent and brief opinion authored by Judge Martin.  Here are portions of Judge Martin's dissent:

The Supreme Court recently heard oral arguments in Hill v. McDonough, No. 05-8794, and is expected to issue a decision before the end of the current Term in June. The Court's decision will impact Alley's case either by allowing him or not allowing him to challenge the method of his execution pursuant to 42 U.S.C. § 1983.  If Alley is executed on Wednesday and the Supreme Court decides Hill in his favor next month, this Court will effectively have locked the barn door after the horse has already escaped.  If we uphold the stay entered by the district court, as I would, and the Supreme Court decides Hill against Alley's interests, Tennessee may proceed with the execution in June.

To me, this balancing of interests weighs heavily in favor of upholding the stay entered by the district court.  Moreover, the dysfunctional patchwork of stays and executions going on in this country further undermines the various states' effectiveness and ability to properly carry out death sentences.  We are currently operating under a system wherein condemned inmates are bringing nearly identical challenges to the lethal injection procedure.  In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result. [Cites]  This adds another arbitrary factor into the equation of death and thus far, there has been no logic behind the Supreme Court’s decision as to who lives and who dies. Until the Supreme Court sorts this out, I would uphold the stay issued in this case, and all cases that come before this Court, and therefore dissent from the Court's contrary holding....

No doubt the march toward death is powerful. Currently, however, the march is anything but orderly. The current administration of the death penalty in light of the pending decision of Hill is more like a march in dozens of different directions, which I believe is more costly, more inefficient, and more arbitrary, than entering the stay and waiting temporarily for some (hopefully) clear guidance. The arbitrariness of death penalty administration is not ameliorated by the fact that Hill involves what the panel terms "a procedural matter." Rather, administration of the death penalty can only be made more arbitrary by the possibility that after Hill, some current death row inmates may be able to show in court that the practice of lethal injection violates the Eighth Amendment's prohibition of cruel and unusual punishment, while other currently similarly situated inmates will have already been put to death through a method deemed to violate the Constitution. I would wait for the Supreme Court to resolve the issue and would affirm the district court's decision entering the stay.

Some recent related posts:

UPDATE:  As detailed in posts here and here at SCOTUSblog, the Supreme Court has for now dodged having to consider defendant Alley's stay request because a 15-day reprieve was granted by Tennessee's Governor.  More details are available here from Reuters.

May 16, 2006 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

The criminal justice test for Roberts' rules of order

With yesterday's release of more unanimous opinions from the Supreme Court, the theme of the early Roberts Court continues to be harmony.  This Bloomberg article notes that of "the 42 cases resolved so far by signed opinion, 29 came without dissent" and that some lawyers say Roberts' leadership could account for this "unusual string of unanimous rulings."  And, Orin Kerr here spotlights a comment by Marty Lederman about Roberts' early opinions, which includes this fascinating observation:

[W]hat's most striking, and most impressive, about the FAIR opinion, Ayotte, and today's Cuno opinion is that Roberts is able to bring some much needed coherence to very scattered, contradictory and contested areas of constitutional law.  He is making very deliberate choices that certain constitutional theories lurking in prior cases should prevail, and that others should be discarded, trying to bring coherence and logic to very difficult bodies of doctrine — and doing so while holding a unanimous Court, at that!

Of course, I filter all these interesting observations about the new Roberts Court through the lens of sentencing and criminal justice issues.  As I noted in this recent post about a split habeas ruling, the 5-4 votes this Term have come in criminal justice cases, and all three cases ordered to be re-argued involved criminal justice or related issues.  On the other hand, the court has been able to maintain unanimity in a few criminal rulings this term (such as in Guzek and Holmes).

Way back in September, I wondered in this post whether Roberts could bring consensus to SCOTUS sentencing jurisprudence.  Gosh knows that both capital and non-capital jurisprudence could benefit greatly from CJ Roberts bringing some more "coherence and logic" to these "very scattered, contradictory and contested areas of constitutional law."   

Though I fear split rulings are likely in hot-button capital cases like House v. Bell and Kansas v. Marsh, I am certainly rooting for CJ Roberts to bring a magic touch to death penalty jurisprudence.  And, as I have suggested in recent articles — Conceptualizing Booker and Conceptualizing Blakely — there are ways to bring greater conceptual order to the Court's recent non-capital sentencing work (although we will likely have to await next term's Cunningham case for developments on this front).  As the Term winds down, I will continue to watch if the new harmony continues or breaks down as the Court resolves the large number of criminal cases still on its docket.

May 16, 2006 in Who Sentences? | Permalink | Comments (4) | TrackBack

Capital drama in Tennessee and Texas

The death penalty drama has been thick in both Tennessee and Texas this week.  Here's the latest:

"We were all ready for this to happen," fumed Adolph Peña, who had planned to witness the execution tonight in Huntsville with his wife, Melissa. "You talk about cruel? ... We've been waiting 13 years for this son of a bitch to be executed.  It's time for him to be executed."

May 16, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Update on out-of-this-world federal sentencing

As previewed here last week, Monday was sentencing day for Max Ary, the former director of the Kansas Cosmosphere and Space Center who stole artifacts from the museum, including data tapes from the Apollo 15 mission, spacesuit components, and items carried into space by astronauts.  Articles here and here report on Ary's sentencing, and this piece provides lots of details on the sentencing particulars:

The judge placed Ary's convictions, combined with a non-criminal history, on Offense Level 22 of the federal sentencing guideline grid.  Imprisonment could range from 41 months to 51 months, according to the grid....  Assistant U.S. Attorney Debra Barnett urged 51 months in prison....  Defense attorney Thompson said [that] he preferred probation, not prison, for his client.  At worst, one year of incarceration, Thompson suggested.   

Those arguments apparently swayed [Judge] Marten's decision. "I think 41 months is harsh," Marten said. "I can't say that it's completely unfair." He departed — slightly — from the grid, subtracting five months and settling on three years.  Marten said sentencing is not a time for vengeance or retribution. "It's a time to account for what has been done," he said. 

May 16, 2006 in Booker in district courts | Permalink | Comments (2) | TrackBack

Spotlight on victim impact testimony at sentencing

This new piece on CNN.com discusses victim impact statements at sentencing, noting that in "the past few weeks, two high-profile cases — the Zacarias Moussaoui terrorism trial and the Rhode Island fire case — have spotlighted a relatively recent component of the American criminal justice system.  The victim impact statement is an outgrowth of the victims' rights movement that began roughly three decades ago."

Some related posts:

May 16, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

May 15, 2006

A revised draft of "Conceptualizing Booker"

Back in February, I posted here an early draft of my article entitled "Conceptualizing Booker," to appear in the Arizona State Law Journal as a follow-up to this great sentencing conference.  I now have a revised draft, which can be downloaded below.  In my prior post, I set out a portion of the article's introduction, so this time let me provide snippets from the final Part of the paper:

The Supreme Court's development of its modern Sixth Amendment jurisprudence over the last decade has been contentious and convoluted, and the Booker decision made a conceptually muddled jurisprudence concerning sentencing procedures even more opaque.  Unfortunately, a fractured Supreme Court has been unable (or at least unwilling) to work together to forge a modern sentencing jurisprudence that is conceptually clear, and lower courts and legislatures have had to try to make the best of a chaotic doctrine that has emerged in fits and starts and evolved with unexplained gaps and unexpected growths.  Tellingly, Professor Kevin Reitz has come to describe the Supreme Court's recent Sixth Amendment jurisprudence as "a kind of constitutional 'Swiss cheese.'"

The vision of Booker developed in this Article could perhaps provide a conceptual framework for reordering the Supreme Court's Sixth Amendment jurisprudence.  Because the Court's sentencing jurisprudence is necessarily still in development as it confronts new and challenging constitutional questions that emerge from modern sentencing systems (and because the Court has some new members who might bring new perspectives to this jurisprudence ), a conceptual view of Booker focused on sentencing as a distinctive judgment-centered enterprise could have important implications for the Court's continuing work in this area. In this concluding Part, I will briefly sketch the possible implications of conceptualizing Booker for the Supreme Court's recent Sixth Amendment jurisprudence, as well as for the proper approach to federal guideline sentencing in the wake of Booker.

Download final_conceptualizing_booker.doc

May 15, 2006 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

Lethal injection litigation leads to a stay in Texas(!)

Now we know all this lethal injection litigation is getting serious.  Texas has carried out seven executions by lethal injection since the US Supreme Court decided to take up a procedural issue in Hill about constitutional challenges to execution protocols, and some of the executed defendants had raised (and had rejected) claims about the state's lethal injection protocol.  Thus, despite all the swirling lethal injection litigation, I was pretty sure Texas was going to go forward with two additional planned executions this week.

But, in another amazing chapter in the lethal injection litigation saga, today there is now this report that the highest state criminal court in Texas has granted a stay of execution:

Two-time murderer Derrick Sean O'Brien received a stay of execution today, a day before he was set to enter Texas' death chamber, as the Texas Court of Criminal Appeals ponders his appeal that death by lethal injection poses cruel and unusual punishment.

Harris County Assistant District Attorney Roe Wilson said she was surprised by the court's move. "We have had some (death penalty cases) where that has been a claim and those executions have gone through," Wilson said.... Jerry Strickland, a spokesman for the Texas Attorney General's office, said the decision in no way signals a moratorium on executions in the state.

Some recent related posts:

UPDATE: This local article about the stay from the Austin-American Statesman concludes with this interesting passage and quote:

[O]ne national victim advocacy group, Houston-based Justice for All, was quick to criticize the decision — and the delay.  "This is a travesty," said Austin attorney William "Rusty" Hubbarth, the group's vice president for legislative affairs. "It's a bad decision. It effectively blocks executions in Texas . . . They're just following the line in the rest of the country right now."

May 15, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

New ACS issue brief on crack sentencing disparity

Providing a fitting follow-up to my last post on a conference about race and criminal justice, I just got word that the the American Constitution Society is about to release a new white paper by Nkechi Taifa, a Senior Policy Analyst for the Open Society Institute and adjunct professor at Howard University School of Law, entitled "The 'Crack/Powder' Disparity: Can the International Race Convention Provide a Basis for Relief?."  This paper can be accessed at this link at the ACS website, and here is the official description:

The federal criminal penalty structure for the possession and distribution of crack cocaine is one hundred times more severe than the penalty structure relating to powder cocaine.  Blacks comprise the vast majority of those convicted of crack cocaine offenses while the majority of those convicted of powder cocaine offenses are white.  This disparity has led to inordinately harsh sentences disproportionately meted out to African American defendants that are far more severe than sentences for comparable activity by white defendants. Indeed, the U.S. Sentencing Commission reported that revising this one sentencing rule would do more to reduce the sentencing gap between blacks and whites "than any other single policy change," and would "dramatically improve the fairness of the federal sentencing system."  Notwithstanding widespread recognition of the inequity of the current sentencing scheme, courts have found that domestic law affords no remedy.  In this white paper, Nkechi Taifa examines that failure of U.S. law to address this disparity and explores ways that principles from the International Convention on the Elimination of All Forms of Racial Discrimination could form a basis for relief.

Some recent related posts:

May 15, 2006 in Federal Sentencing Guidelines, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack