May 31, 2006
The evils of blog spam
Because of seemingly endless comment spam, I am trying to institute the TypeKey registration program for comments. Commenting may not be possible while I try to figure this all out. Sorry for the inconvenience, but the comment (and trackback) spam is really annoying. Readers are highly encouraged to suggest other fixes or remedies for blog spam.
Around the blogosphere
Lots of sentencing related stuff worth checking out around the blogosphere:
- Ellen Podgor at White Collar Crime Prof Blog ruminates a bit here on the upcoming Enron sentencings (which I've already covered at length). Also, the Conglomerate folks have assembled an all-star group for an on-line symposium about the Enron convictions, though I doubt sentencing issue will be discussed much.
- The folks at Concurring Opinions have thought-provoking posts on plea bargaining and on inmate rights.
- Speaking of thought-provoking, Blonde Justice has this interesting post exploring when someone might sensibly choose to go to jail rather than complete certain alternative sentencing programs.
- After a trial-required hiatus, the Second Circuit Sentencing Blog is blogging up a storm on a number of post-Booker sentencing topics.
Another serial killer pleads to avoid death penalty
It is often hoped that the death penalty will operate to ensure that the "worst of the worst" receive society's ultimate punishment. However, this AP story from Illinois provides a sober reminder that sometimes to very worst murderers are able to strike plea bargains to avoid the death penalty:
A serial killer who prosecutors say burned some of his victims to ash and bits of bone in his backyard pleaded guilty Tuesday to killing eight women. Under a deal with prosecutors, Larry Bright, 39, escaped a possible death sentence and instead will get life in prison without parole.
Of course, perhaps the most notorious example of this phenomenon involved Gary Ridgway, the so-called Green River Killer. Ridgway may have killed more than 50 persons in Washington, but he avoided the death penalty through a plea deal. (As detailed here, the Ridgway case has had some notable ripple effects on how the death penalty is viewed in Washington.)
May 30, 2006
A must-read for legal-process-sentencing junkies
I always enjoy NYU Professor Rachel Barkow scholarly work because, in addition to being a sentencing guru, she bring a fascinating legal process perspective to all the issues she explores. Consequently, even without having a chance to read her latest work, which is now available here from SSRN, I know I have to add it to my summer reading list. Co-authored with Kathleen O'Neill, Rachel's latest piece is entitled "Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation," and here is part of the abstract:
Borrowing from political science and administrative law scholarship and analyzing a data set of American jurisdictions with and without sentencing commissions from 1973 to 2000, this Article explores the political and economic factors that could prompt a legislature to delegate some of its responsibility for setting punishments to a sentencing commission even when the political climate rewards legislators for passing tougher sentencing laws themselves. We find that various political and economic factors — specifically those factors that are rooted in a concern with the costs of longer sentences and incarceration — play a significant role in predicting when states will adopt sentencing commissions and guidelines. The relationship between sentencing commissions and costs is most obvious in our findings that corrections as a large percentage of state expenditures and a high incarceration rate are positively correlated with the presence of sentencing commissions. But a concern with costs also explains some of the statistically significant political variables as well, including the positive relationship between commissions and a narrow partisan margin, elected judges and a Republican House. We also find that divided government at the state level decreased the possibility of adopting and maintaining sentencing commissions. We also find relationships with statistical significance between many of our variables and the adoption of sentencing guidelines. A narrow partisan margin, a Republican House, a Democratic governor, elected judges, a high incarceration rate, and corrections as a large percentage of expenditures are positively correlated with the presence of sentencing guidelines.
Major California Supreme Court decision on the "prior conviction" exception
Thanks to this post at Criminal Appeal, I see that last week I missed a major ruling from the California Supreme Court about the scope of the "prior conviction" exception. Last Monday, the California Supreme Court in People v. McGee, No. S123474 (Cal. May 22, 2006) (available here) issued a long opinion that essentially holds that there is no jury trial right on the nature of a prior conviction. Here is how Jonathan Soglin astutely summarizes the McGee ruling:
In this case, the particular question was whether two Nevada robberies qualified as robberies under California law and, thus, were strikes under the Three Strikes Law. The Court of Appeal had read the SCOTUS Almendarez-Torres exception to the right to a jury trial for prior conviction allegations to apply narrowly only to the mere fact of the prior conviction. In a 5-2 decision, Chief Justice George disagreed, declining to read Almendarez-Torres so narrowly. He recognized that the SCOTUS decision last year in Shepard v. U.S. read the prior-conviction exception narrowly, but he found that not controlling because Shepard was decide on statutory grounds, invoking the doctrine of avoiding constitutional doubt.
Though I have argued in my Conceptualizing Blakely article that the "prior conviction" exception ought to be broadly interpreted, extant Supreme Court jurisprudence does not fully support a broad reading of the exception. Thus, I think the dissent by Justice Kennard in McGee gets in some good shots, starting with this opening sentiment:
Because in Apprendi, the high court itself has cast doubt on the continuing vitality of the "fact of a prior conviction" exception to the jury trial requirement, this court should construe it narrowly. Instead, the majority reads it broadly, applying it to this case even though the Apprendi court's justifications for the exception are inapplicable here. According to the majority, it is proper for a trial court to deny a defendant a jury trial, with a beyond-a-reasonable-doubt standard of proof, not only on the fact of a prior conviction but also on the truth or falsity of factual allegations pertaining to the conduct that gave rise to a prior conviction, even though those allegations were not elements of the prior offense. I disagree.
May 30, 2006 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Interesting split Fifth Circuit ruling on "execution impact" testimony
Splitting on an intriguing issue about capital sentencing procedure, the Fifth Circuit today in Jackson vs. Dretke, No. 05-70031 (5th Cir. May 30, 2006) (available here) resolves a habeas case by refusing a certificate of appealability to a defendant on "his challenge to the exclusion of execution impact testimony." (At the sentencing phase of his state trial, the defendant sought "to question his friends and family on (1) whether they wanted him to die and (2) what the impact on them would be if he were executed.")
The majority opinion authored by Judge Smith concludes that "it was not objectively unreasonable for the state court to decide that extant Supreme Court holdings should not be extrapolated to include testimony as to the impact of a death sentence on family and friends." The dissenting opinion by Judge Dennis reasons that the habeas challenge merits further exploration, in part because "[e]xecution impact testimony easily satisfies [a] sentencing relevance test — it is testimony as to the value of the defendant's life and cost of his death to family and friends, and this value or cost could serve as a basis for the sentencer to determine that the death penalty should not be imposed."
Looks like a busy June for SCOTUS
As thoroughly reviewed at SCOTUSblog, the Supreme Court today decided only one argued case and granted cert in only one case. That means that the Court will have a whole lot of (mostly criminal) cases to resolve in its final month of this Term. It also needs to start getting its docket filled up for next Term, too.
I had heard that some Blakely retroactivity cases had been conferenced recently, and I am sure plenty of Booker-related issues keep getting brought to the Court. It will be interesting to see if the Court will take on any additional Blakely or Booker cases anytime soon.
Some related posts:
- SCOTUS anticipation...
- The criminal justice test for Roberts' rules of order
- Shouldn't Hill be the very first priority for SCOTUS?
- A criminal closing act for SCOTUS
- Justice Stevens asking all the right questions
UPDATE: An insightful and informed reader sent me this interesting follow-up on the Supreme Court's work today:
On the Supreme Court's orders list today it gave the petitioner in Schardt v. Payne additional time to pay his docketing fee and file a petition. That is the Ninth Circuit's Blakely retroactivity case, so it looks like maybe the Justices are at least thinking about granting certiorari on that issue.
Lethal injection litigation inspection
Professor Debby Denno, whose prior work on execution methods I praised here, today has this thoughtful essay in the National Law Journal, entitled "Lethal injection: Time to find alternatives." Here is a snippet that provides a sense of the issues explored in the short piece:
A look at both lethal injection's procedure and substance in historical context shows that the more intriguing question about the success of lethal-injection challenges is not "Why now?," but rather "Why not earlier?" Given that lethal injection was first enacted nearly 30 years ago, why is it only within the past year or so that constitutional challenges have made so much headway?
Among other virtues, Debby's piece reminded me to look for the oral argument transcript in Hill, which is now available at this link. A quick read of that transcript leads me to one conclusion and one prediction: my conclusion is that the lethal injection mess needs to be, as I suggested here, addressed by legislatures as well as courts; my prediction is that the Court in Hill will say lethal injection protocol claims can be brought as a 1983 action but can be subject to a laches bar if the claim is not brought expeditiously.
On a related front, the Los Angeles Times has this piece reviewing the big cases still facing the Court this Term. That piece speculates that the Court might issue a narrow ruling in Hill to avoid division among the Justices.
Some recent related posts:
- A bit of lethal injection history
- Shouldn't Hill be the very first priority for SCOTUS?
- How could (and should) Congress clean up the lethal injection mess?
- Reports on Hill lethal injection argument
- More coverage of the Hill lethal injection argument
Retirement of a federal prosecutor's nightmare
The Charlotte Observer has this interesting article discussing District Judge Graham Mullen of the Western District of North Carolina, who is taking senior status after 16 years on the bench. Appointed by the first President Bush, Judge Mullen sounds like a federal prosecutor's worst nightmare. Consider these snippets from the article:
Mullen has contempt for the federal sentencing guidelines, which he believes have given prosecutors more power than judges in deciding punishments. He once said the guidelines, designed by Congress in the 1980s to make prison terms tougher and more uniform, would "gag a maggot."...
Mullen doesn't shy from speaking out about what he perceives as injustices. He's told federal prosecutors they have a reputation of being arrogant bullies. And he's refused to accept plea bargains that force criminal suspects to give up their rights to appeal.... The judge's critics say he can sometimes seem hostile toward prosecutors. Mullen said his differences with prosecutors stem from his desire to even the playing field between them and criminal suspects....
In 2003, Mullen surprised many in the legal community by announcing he would no longer accept most plea agreements. He said the agreements, which forced criminal suspects to give up their rights to appeal, were unconscionable. A few months later, prosecutors and defense lawyers reached a compromise that gave defendants more rights to appeal.
As the keynote speaker at a 2002 U.S. Attorney's Office retreat in Boone, Mullen's bluntness shocked and angered prosecutors. He told prosecutors never to lie or shade the truth. "A lying law enforcement officer," he warned, "is as much a slime dweller as any criminal defendant." The judge said prosecutors have so much unchecked power that there's a temptation to use it to bulldoze. "Don't run over people just because you can," he said.
May 29, 2006
Great Booker work not to be overlooked
On Friday, the Sixth Circuit delivered an important Booker ruling that should not get overlooked amongst the holiday fun and Enron sentencing buzz and lethal injection developments. I first discussed the Buchanan ruling here, and now I want to spotlight again the concurrence by Judge Jeff Sutton. Judge Sutton's discussion of post-Booker sentencing and reasonableness review is so thorough and thoughtful, it demands a full reading. But especially worth emphasizing are these two key insights:
First, Judge Sutton, in explaining his support for a presumption of reasonableness for within guideline sentences, provides a detailed account of what a district court must do for a sentence to earn this presumption. Here is his notable list (with cites omitted):
(1) the judge must make all findings of fact necessary to apply the guidelines to the defendant; (2) the judge must calculate the guidelines sentencing range correctly; (3) the judge must determine whether to grant a downward departure or an upward departure from the guidelines; (4) the judge must recognize her discretion to issue a sentence that varies from the guidelines; (5) the judge must consider the § 3553(a) factors in exercising her independent judgment about what an appropriate sentence should be; (6) the judge must account for any relevant statutory minimum and maximum sentences; and (7) the judge must give a reasoned explanation for the sentence.
Second, Judge Sutton makes this particularly important point about the extent of post-Booker discretion and the guidelines' regulation of departures: "in exercising that 'broad discretion' under Booker, importantly, the guidelines' restrictions on granting departures do not circumscribe a trial court's decision to grant a variance."
The costs and consequences of Foster
Three months ago, the Ohio Supreme Court in Foster applied Blakely to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here). Today, the Toledo Blade has this interesting follow-up article headlined "Sentencing law prompts delays, praise: Ohio ruling means defendants being resentenced — usually to same term." Here are some snippets:
[A] recent state Supreme Court ruling that voided the sentences imposed on Foster, Cole, and hundreds of other convicted felons statewide is costing taxpayers unknown thousands of dollars in transportation and related costs. That's because defendants whose old sentences are affected by the ruling have to be brought back from prisons across Ohio for resentencing in the counties where they were convicted.
The time lost by court officials and judges statewide on rescheduling and resentencing the defendants, as well as the delays that result for other court matters, is virtually incalculable. And the end result appears to be an exercise in futility. Cole's trip from the Lebanon Correctional Institution in southwest Ohio, for example, resulted in the same 26-year sentence that he received seven months earlier in Lucas County Common Pleas Court.
So why go through all this trouble for what appears to be a waste of time and money? Though lower-court judges won't comment on the justices' rulings, prosecutors are offering high praise for the Ohio Supreme Court's decision.... The prosecutors say the ruling means that judges' sentences will remain intact, and they will no longer be burdened with giving detailed explanations for imposing maximum, consecutive, or more than minimum sentences.
Jeffrey Gamso, a Toledo defense attorney who is the legal director of the Ohio chapter of the American Civil Liberties Union, said the state Supreme Court, in throwing out sections of the sentencing law, has rewritten legislation that was designed to bring consistency and fairness. However, Mr. Gamso believes that overall, the defendants who appealed will receive close to or the same sentence. "The overall numbers will not change that much. Judges were pretty much giving the sentences they wanted to give, and just making the findings to justify them," he said. "The overwhelming number of inmates are getting exactly the same sentence that they got before."
Some related posts on Foster's aftermath:
- Fascinating Foster follow-up on Ohio sentencing reforms
- Further follow-up to Ohio Blakely decision
- Ohio Commission response to Foster
- Foster's impact on plea bargains and appeals
- A prosecutor's view on Foster
- A sentencing judge's view on Foster
May 28, 2006
Summer sentencing reading suggestions?
With Memorial Day marking the unofficial start of summer, I thought I might solicit reader suggestions for summer sentencing reading. Of course, a list of all the sentencing classics and new pieces worth reading could fill a library. So, let me frame the query this goofy way:
What recent book or article should a sentencing geek take to the beach this summer?
I think my answer to this question right now is the new collection entitled Criminal Procedure Stories: An In-Depth Look at Leading Criminal Procedure Cases, edited by Professor Carol Steiker (available here). Orin Kerr praised those who contributed to the book in this post, and I really like the idea of top scholars reflecting on classic cases with a modern perspective.
More good coverage of Enron sentencing dynamics
This morning's Chicago Tribune has this interesting article, entitled "'Ashamed' wrongdoer gets break: Deal limiting sentence of former finance chief key to prosecution, but some say it goes too far." As the title suggests, the article focuses on the steep sentencing discounts given to cooperators in corporate fraud cases. Here's the article's start:
They blamed him above all others for bringing down Enron Corp., forcing him to admit repeatedly under oath that, yes, he is a shameful excuse for a human being. Yet in the end, the contrite Andrew Fastow stands to come through the Enron scandal in far better shape than the unrepentant Kenneth Lay and Jeffrey Skilling, the ex-Enron bosses who attacked him so vigorously during the criminal trial that ended last week with their convictions.
By pleading guilty and testifying for the government, the former finance chief has limited his exposure to 10 years in prison, while Lay and Skilling face 20 years or more at their sentencing on Sept. 11. If Fastow gets off with a relatively light sentence, he will join the swelling ranks of white-collar offenders who have reaped significant rewards for their cooperation. The crackdown on corporate crime that culminated in Thursday's Enron verdict has led to vast disparities in punishment between those who strike plea bargains and those relative few who go to trial.
Recent related Enron posts:
Spotlight on good-time credit in Indiana
This interesting article from Indiana, entitled "Do the crime … do only half the time," suggests that there might be some controversy brewing over Indiana's generous good-time credit prison policies. As the article explains, "Indiana is one of only four states to have a 50 percent good time requirement," meaning that a well-behaved prisoner will only have to serve 50% of the prison sentence he was given. "At least 29 other states meet the federally recognized 85 percent rule, according to a Bureau of Justice Statistics report."
A bit of lethal injection history
This morning's Austin American-Statesman has this lengthy article, entitled "Death penalty's drug cocktail rooted in Texas," that provides some historical background on how lethal injection became the primary execution method in the United States. Here's a snippet:
[T]he procedure of death by needle was the creation of an Oklahoma medical examiner and was put into practice by Texas prison officials. Now, that chain of events, reminiscent of the stereotypical good ol' boy prison environment in the classic 1967 movie "Cool Hand Luke," could draw Texas into the cross hairs of a growing national legal battle over whether lethal injections are as painless as once thought. And whether they are unconstitutional....
State Rep. Bill Wiseman, a Republican from Tulsa, suggested that there had to be a better way to execute criminals than electrocution, a process that had fallen out of public favor because it was increasingly viewed as brutal and violent. Wiseman consulted doctors, who refused to help, citing their oath to save lives, not take them. He got the same response from scientists and other medical professionals. "I muttered to colleagues that it looked as if I would need to find a veterinarian to tell me how to 'put down' condemned prisoners," Wiseman recalled in a 2001 article in The Christian Century magazine.
Enter A. Jay Chapman, Oklahoma's state medical examiner, a doctor who had been responsible for pronouncing inmates dead after electrocutions in Colorado. Chapman had no pharmacological training, just an opinion and a willingness to help. During a meeting with Wiseman, he dictated what was to become the new national template: "An intravenous saline drip shall be started in the prisoner's arm, into which shall be introduced a lethal injection consisting of an ultra-short-acting barbiturate in combination with a chemical paralytic agent."...
Chapman was quoted as saying in [a recent] report. "I didn't do any research.... It's just common knowledge. Doctors know potassium chloride is lethal." Wiseman's lethal injection bill was soon passed into law. Texas lawmakers approved their version, with virtually identical wording, the next day. More than 30 other states soon followed suit, including California and Florida.
Some recent related posts:
- Lethal injection news and notes
- SCOTUS denies cert on direct challenge to lethal injection
- Recapping a lethal week for lethal injection scrummages
- Shouldn't Hill be the very first priority for SCOTUS?
- How could (and should) Congress clean up the lethal injection mess?
- The partial de facto moratorium created by Hill
Delaware considering repeal of drug mandatories
This recent editorial and this recent commentary from Delaware suggests that the state might soon "repeal mandatory minimum sentence laws regarding drug offenses" through a pending bill. The commentary indicates that "34 members of the Delaware House of Representatives and the Senate have agreed to bipartisan sponsorship of House Bill 181." Additional background on the bill (and advocacy for it) can be found at this webpage maintained by Stand Up for what is Right and Just, a grassroots organization dedicated to reforming Delaware’s criminal justice system.