May 15, 2006
Notable conference on race and criminal justice
During this symposium, we will consider the contemporary criminal "justice" crisis as a racial phenomenon. Our goal is to reassert the importance of democracy, equality, and human rights in the organization and operation of the system. To that end, this symposium brings together scholars, students, activists, and grass-roots organizers, including formerly incarcerated persons, whose work helps us to better understand the macro-and micro-dimensions of the crisis and how best to challenge and change the contradictory nature of the American criminal "justice" system.
Some related posts:
Interesting piece on California capital politics
The Sacramento Bee today has this interesing piece on current state California's capital punishment system, entitled "Death penalty dilemma: For some legislators, medicine and politics create a quandary." Here is a snippet:
[State Senator Sam] Aanestad is among a handful of medically licensed professionals in the unique position of also serving in the California Legislature when the state's death penalty procedure is being challenged in the courts. Their views offer a window into a complex social debate about the death penalty — and suggest they may not have clear answers for themselves.
At issue is whether doctors should play a role in executions even though the medical community deems such participation a violation of their ethics code. In the case of Michael Angelo Morales, who was sentenced to death for the murder of a Lodi teenager, a federal judge ruled that a professional licensed to administer intravenous medications must inject the lethal dose. The procedure was halted, however, after two anesthesiologists backed out over the possibility of having to advise the executioner if Morales became conscious or suffered pain during the lethal injection.
In response, two bills with opposing intentions are winding through the Senate and Assembly — one from Aanestad to protect doctors if they participate in executions and the other from Assemblymen Alan Nakanishi, R-Lodi, and Ted Lieu, D-Torrance, to block doctors from taking part.
Latest issue of FSR off to press
I am happy to announce that another issue of the Federal Sentencing Reporter is about to go to press. This forthcoming issue (Volume 18, No. 3) is titled "Taking Stock a Year After Booker" and it follows up themes covered in these three recent FSR issues covering Booker and post-Booker developments:
- FSR Issue 17.4: The Booker Aftershock
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
(Regular readers may recall a Blakely interlude is all the Booker coverage through FSR Issue 18.1: State of Blakely in the States.)
My opening commentary to this latest FSR Booker issue, entitled "Now What? The Post-Booker Challenge for Congress and the Sentencing Commission," can be downloaded below. The full contents of this latest FSR issue are listed below, and the Federal Sentencing Reporter can be ordered here and accessed electronically here.
- Douglas A. Berman, Now What? The Post-Booker Challenge for Congress and the Sentencing Commission (Download fsr_18.3 Ed Obs.pdf)
- Lynn Adelman & Jon Deitrich, Disparity: Not a Reason to "Fix" Booker
- Mark Osler, Ball in a Cup: The Case for Stability and Patience
- Carissa Byrne Hessick, Prioritizing Policy Before Practice After Booker
- Stephen R. Sady, Guidelines Appeals: The Presumption of Reasonableness and Reasonable Doubt
- Adam Lamparello, The Unreasonableness of "Reasonableness" Review: Assessing Appellate Sentencing Jurisprudence After Booker
- Douglas A. Morris, FYI: Supervised Release and How the PROTECT Act Changed Supervised Release
- Evan Lee, Should the ALI Take a Position on Capital Punishment?
- U.S. Sentencing Commission, Executive Summary of Booker Report (March 2006)
- Judge Paul Cassell, Statement as Chairman of the Committee on Criminal Law on Behalf of the Judicial Conference of the United States (March 2006)
- U.S. Attorney William W. Mercer, Statement Before the House Judiciary Subcommittee on Behalf of the United States Department of Justice (March 2006)
- The Constitution Project Sentencing Initiative, Principles For The Design And Reform Of Sentencing Systems: A Background Report (March 2006)
Minimal mid-May SCOTUS action in the criminal justice arena
As detailed here at SCOTUSblog, the Supreme Court today granted cert on four cases and issued opinions in four argued cases. There seems to be only one notable criminal justice highlight in all this mid-May SCOTUS action: the Court granted cert to address whether its 2004 decision in Crawford on cross-examination rights applies retroactively. I believe this Crawford retroactivity cert grant is driven in part by a circuit split, though it still makes me grumpy that SCOTUS still has never addressed Apprendi or Blakely or Booker retroactivity, even though a lot more criminal judgments turn on the retroactive applicability of those decisions than on Crawford.
I think with the new group of cert grants, SCOTUS is starting to remedy its calender deficit for next Term and also starting to add more civil cases to a '06 Term docket that has so far been especially heavy with criminal justice cases (details discussed here). On the same theme, with the release of four civil case opinions today, I think now most of the opinions still in the works for this Term involve criminal justice issues. (Unsurprisingly, today's SCOTUS action reveals that the Court did not decide, as I suggested here, to prioritize in its late Term work the Hill case regarding the procedures for lethal injection challenges.)
What is the USSC doing on the Booker front now?
In prior posts, I bemoaned that the US Sentencing Commission has ignored Booker in its guideline amendment process. I also noted that the USSC's Booker report was long on data, but short on recommendations. And now, with nearly two months having passed since the USSC's last release of post-Booker data, I cannot help but harp again about the Commission's continuing passivity in dealing with post-Booker realities.
Interestingly, as detailed in this curt official notice, a public meeting of the Sentencing Commission is scheduled for Monday, May 15, so that the USSC can officially vote to approve a new Statement of Reasons form. I suppose this is a positive development, even though it took full 16 months after Booker to be finalized. More importantly and disconcertingly, it remains entirely unclear (at least to this outside observer) what else the USSC is now doing concerning post-Booker developments.
Two months ago at the House oversight hearing (background here and here and here and here), in his written testimony, USSC chair Ricardo Hinojosa stated that "the Commission believes that it is time for serious consideration of a legislative response to Booker" and that the "Commission is considering holding its own Booker hearings." And yet, as the post-Booker world marches on, no concrete proposals have emerged from the USSC and I've not heard any news of additional Booker hearings in the works.
Some related posts on USSC's post-Booker work:
- A loud deafening silence from the Sentencing Commission
- What is the Sentencing Commission fiddling while the crack guidelines burn?
- Friday afternoon ranting about the post-Booker world
- Sentencing Commission releases Booker report!
- Initial reflections on the USSC Booker report
May 14, 2006
Shouldn't Hill be the very first priority for SCOTUS?
The AP has this fine review (and this companion list) of all the big Supreme Court cases that need to be decided before the end of the Court's current Term. In addition to noting that a lot of the remaining cases involve criminal law issues, I want to suggest that the Court, if it was really concerned about the orderly administration of justice, ought to be prioritizing the Hill case regarding the procedures for lethal injection challenges.
As I noted in this post, in about 100 days since the SCOTUS cert grant in Hill, the Supreme Court's interest in lethal injection litigation has produced a de facto moratorium in nearly every state except those that are traditional capital punishment leaders. Moreover, as I noted in this post, proponents of capital punishment have to be troubled that lethal injection litigation has produced de facto moratoriums in many states, while 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. Moreover, stressful and inefficient expenditure of the time and energies of lower federal courts and state lawyers has marked all of the lethal injection litigation.
With lower courts scrambling to resolve lethal injection issues on tight timelines, shouldn't the SCOTUS Justices have the courtesy to put these matters of life and death ahead of other less urgent matters as they wind up this Term?
Some recent related posts:
- How could (and should) Congress clean up the lethal injection mess?
- The partial de facto moratorium created by Hill
- Another state halts an execution due to lethal injection litigation
- Tennessee lethal injection back on schedule
- Still more lethal injection litigation
- Lots of lethal injection talk
- More lethal injection drama in Ohio
UPDATE: Karl Keys has this long post which correctly highlights that a lot of cases still on the SCOTUS plate are "more important" than Hill. I do not disagree with Karl's points, but I think he does not fully understand the thrust of this post.
I do not mean to suggest that Hill is the most important case currently before the Supreme Court. Indeed, the narrow procedural issue formally before the Court in Hill arguably makes it an extraordinarily unimportant case (unless the Justices decide spread a lot of dicta in the case). My point is that Hill has proven to be an extraordinarily disruptive case to the orderly administration of justice in capital cases nationwide. And the irony, of course, is that SCOTUS took up Hill purportedly to ensure lethal injection challenges are handed in a procedurally proper manner.
There are 13 executions scheduled between now and the end of the current SCOTUS Term, and litigation over lethal injection protocols seems likely in most of these cases. I am sure lower courts would greatly appreciate SCOTUS guidance on these issues ASAP.
A set of death penalty headlines
The weekend newspapers bring another set of interesting reports and analyses on the state and fate of capital punishment in the United States:
- From the Robertson County Times (in Tennessee) here, "21 years after killing, execution days away."
- From the San Jose Mercury News here, "The debate over lethal injection in California is just the latest move in America's ongoing search for a painless method of execution."
- From the Terre Haute Tribune Star here, "Death-penalty abolitionists note stay of death sentences."
- From the Newark Star Ledger here, "Case shows cracks in death penalty system."
- From the Sacramento Bee here, "Death case appeals hit by forgery allegations."
- From the AP here, "Inmates waiting to die want more privileges."
Another amazing blog year
It has now been exactly two years since my first post. (For my own record keeping, I must note that this is post number 3211, which means I've barely slowed down since my last blogiversary). As I explained last year, when I started this blog, I never could have predicted that the Supreme Court and others would do so much to make sentencing law and policy so dynamic and interesting and blog-worthy. I also never expected to make so many friends and learn so much through this medium. I am sincerely grateful for all the help, encouragement and thanks that I have received from so many (cyber)sentencing compatriots.
To celebrate another blogiversary, I have created these new category indexes in order to better archive some of my "meta" posts:
I have not yet found time to re-file all my old posts into these new categories, but each index is complete for 2006 posts.
Informative articles on parole realities
The St. Louis Post-Dispatch has just published a series of informative articles about parole practices in Missouri and Illinois. The main article, "Parole cuts some life sentences short" documents the realities of indeterminate sentencing and the pressures to parole create by limited prison space. Companion pieces, "Most released inmates don't return to prison" and "State law alters way time served is credited", also make for interesting reads.