July 1, 2006
Missouri Supreme Court addresses sex offender registry
As detailed in news articles here and here, the Missouri Supreme Court on Friday issued a major decision addressing the state's sex offender registry. The full ruling, which upheld the state's Megan's Law against a range of constitutional claims concerning, can be accessed here. This news account provides some highlights:
While the high court upheld the constitutionality of the state's sex offender registry law, it ruled that the statute should not apply to nearly all of those convicted of crimes prior to 1995, when the law took effect. One key exception is sexually violent predators, who will stay on the list regardless of when their crimes occurred.
Just how many of Missouri's more than 11,000 registered sex offenders would be affected by the ruling was unclear Friday.... But Arthur Benson II, the lawyer who brought the case, estimates that thousands would no longer have to be registered as sex offenders.
Currently, the registry includes offenses from 1979 to the present. Crimes committed during more than half of those years would not be included in the registry. Benson said the ruling addresses "the height of unfairness" in the current law, which requires people to register even for crimes they committed years before the registry law was conceived.
Eleven of Benson's clients claimed their inclusion on the sex offender registry was unconstitutional on numerous grounds. The high court rejected nearly all their claims, affirming the constitutionality of requiring offenders to register even after they had completed prison sentences. The court ruled — as it and others have in the past — that the registration requirement does not represent an additional criminal punishment.
Fourth Circuit finds fast-track variance unreasonable
While I was making a fast-track departure to the golf course Friday afternoon, the Fourth Circuit in US v. Perez-Pena, No. 05-5054 (4th Cir. June 30, 2006) (available here), ruled that a variance based on fast-track disparity is unreasonable. Here are some key passages from the opinion authored by Judge Wilkins, the first Chair of the US Sentencing Commission:
The Government first argues that the district court erred to the extent that it imposed a below-guidelines sentence to account for sentences received by defendants participating in fast-track programs. We agree....
There is no denying that Congress has decided that governmental law enforcement or administrative concerns warrant sentencing disparities between defendants with similar criminal conduct and records, under some circumstances.... Defendants who are fortunate enough to be able to offer the Government what it wants can obtain reduced sentences not because they deserve the reductions, but because the reductions are the leverage that allows the Government to get what it wants. Thus, the resulting reductions (and disparities with otherwise similarly situated defendants) serve an important purpose....
[C]omparing the sentences of defendants who helped the Government to those of defendants who did not—regardless of why some were in a position to help and others were not—is comparing apples and oranges. For this reason, Congress could not have intended that disparities resulting from the exercise of prosecutorial discretion could be determined to be "unwarranted."...
In short, there is no reason to believe that Congress intended that sentencing disparities between defendants who benefitted from prosecutorial discretion and those who did not could be "unwarranted" within the meaning of § 3553(a)(6). We therefore conclude that the need to avoid such disparities did not justify the imposition of a below-guidelines variance sentence.
June 30, 2006
If you can't get enough SCOTUS blogging...
at SCOTUSblog, then you will definitely want to check out the Georgetown University Law Center's new law faculty blog. It already has lots and lots of Hamdan commentary. Meanwhile, I will get a fast start on a long weekend by recapping my coverage of the final week of SCOTUS action:
- A criminal law heavy SCOTUS finale
- SCOTUS says Blakely errors can be harmless and tie can go to death
- A few quick thoughts on Recuenco
- A few quick thoughts on Marsh
- More evidence of Justice Scalia's move left
- Why Recuenco could be good news for Blakely fans
- A Blakely perspective on Clark
- Initial reflections on an error-correction SCOTUS term
Another notable reasonableness ruling from the Sixth Circuit
Though not as dramatic as yesterday's sentencing fireworks in the Sixth Circuit, the court's decision today in US v. Ossa-Gallegos, No. 05-5824 (6th Cir. June 30, 2006) (available here) has an interesting discussion of reasonableness in an illegal reentry case. Though the decision rejects a defendant's reasonableness complaints, the panel decision implicitly suggests that the district court was justified in adjusting a sentence downward based on fast-track disparity.
Also interesting is the assertion in Ossa-Gallegos that "avoiding nationwide disparities in sentencing is only one factor to be considered under § 3553(a)." Though this point is made to reject a reasonableness claim by a defendant here, in many other cases (such as variances from crack guidelines) this key point should undercut arguments by the government trying to reverse a district court's sentencing judgment on appeal.
Initial reflections on an error-correction SCOTUS term
The Supreme Court concluded its work for the 2005 Term less than 24 hours ago, and term-in-review materials are already plentiful: Joan Biskupic has this effective USA Today overview, and comprehensive assessments of the term can be found in interesting documents from Georgetown's Supreme Court Institute (available here) and from the ACLU (available here).
Against the backdrop of the previous two terms — which brought Blakely and Crawford and Booker and Roper and a number of big police practice decisions — the criminal law part of the Court's docket in the just-completed term feels quite uneventful. Even notable death penalty rulings were not especially significant as a matter of doctrine: Marsh and House are interesting because of the innocence debates, Hill is interesting because the Court keeps ducking Eighth Amendment question about lethal injection protocols.
As suggested in posts here and here, the most interesting aspect of the early Roberts Court in the criminal justice area is how it is deciding matters, rather than what it is deciding. Notably, some commentors here, and Orin Kerr here, and the folks at De Novo here and here are effectively exploring the reality that the Roberts Court assumed an "error-correction" role in its aproach to criminal justice matters. Notably, this term the Court had a large number of per curiam reversals in criminal cases, and even many decisions rendered after full argument were often focused principally on making sure lower courts understood what they did wrong.
Right now, I do not have many deep thoughts on the interesting question of whether the Supreme Court should embrace an error-correction role in the criminal justice arena. But I can suggest that personnel transitions might make this past Term unique and just the calm before the storm. Among other cases to watch, the Supreme Court has two big Blakely issues on the docket for the coming fall: Cunningham, which addresses Blakely's applicability to California's sentencing law, and Burton, which addresses Blakely retroactivity. Either case (or both) could easily result in an opinion of much greater consequence than any ruling from the Court this past term.
Judge Adelman on variances from career offender guideline
The latest great sentencing opinion Sentencing Hall of Famer Judge Lynn Adelman addresses the (mis)application of the guidelines career offender provisions. Judge Adelman's terrific post-Booker work appears in US v. Fernandez, No. 04-CR-254 (E.D. Wis. June 28, 2006), as is available for download below. Like all of Judge Adelman's post-Booker efforts (much of which I've linked at the end of this post), Fernandez covers a lot of ground in short order and merits a full read. Here are some snippets:
Because this case presented an example of how the career offender guideline can conflict with the purposes of sentencing under 18 U.S.C. § 3553(a), I instead imposed a non-guideline sentence that better served those purposes....
Applying the career offender guideline to defendant produced several stark results. First, it produced a guideline range twice what it otherwise would have been. Second, it produced a range about five times longer than any previous sentence that defendant received. Third, it placed defendant in category VI even though his priors were more than 10 years old and committed when he was a young man, and even though he led a lawabiding life in the interim. Under these circumstances, the advisory guideline range was greater than necessary to satisfy the purposes of sentencing.
Prior posts with some of Judge Adelman's extraordinary post-Booker work:
- Another (very different) view of Booker from a district court
- Judge Adelman strikes again
- More amazing post-Booker work by Judge Adelman
- Three more great Booker decisions from Judge Adelman
- Judge Adelman spotlights problems with mandatories
- Judge Adelman on extraordinary acceptance of responsibility
- Judge Adelman provides more post-Booker wisdom
- More fast-track work from Judge Adelman
June 29, 2006
The many faces of Justice Scalia
The always entertaining Judging Crimes has perhaps the SCOTUS line of the year in this post which asks, "Does Justice Scalia believe in anything?" The entire post is a must-read for its effective attack on Justice Scalia's jurisprudential shifts. But I thought this particular line is one for the ages:
Scalia is that much-admired thing, a swing vote, in criminal cases, except for death penalty cases, a field in which he has managed to work ahead of the rest of the Court, delivering his votes years in advance of actually hearing the cases.
Thickening the capital/non-capital debate
Over at Concurring Opinions, Dan Filler here takes note of my constant harping that "that capital cases receive too much scrutiny" relative to other criminal justice issues. And, in an effort to "thicken the discussion a bit," Dan provides an effective account of why the death penalty may deserve special attention (although I surmise even Dan might be willing to concede that now it gets too much special attention).
Because I like my blog discussions (and my milkshakes) extra thick, let me fill out why I resist (and keep complaining about) the tendency to give excessive attention to the death penalty:
1. The death penalty is a regional issue with little or no impact in most of the country. As these DPIC statistics highlight, early 85% of all executions in the modern era have taken place in the south, and only three states (Texas, Virginia, Oklahoma) account for more than half of all executions. Thus, extended focus on the death penalty largely ignores day-to-day criminal justice realities in most of the country. To suggest a goofy (and inexact) analogy, would it make sense for persons concerned about national road safety to excessively study driving when the temperature is over 100 degrees, but not examine driving when it is cold and snowy?
2. Death is so different that it often can skew the development of the law. Much of habeas law has been badly distorted by the reality that death row defendants are (understandably) eager to delay their execution through litigation. Similarly, I fear that courts have resisted granting non-capital sentencing defendants more sentencing rights and protections because capital sentencing jurisprudence has become so ugly and burdensome.
3. Innocence issues aside, the very worst defendants get (very limited) benefits from all the time and attention give to capital cases. Everyone on death row has been convicted and sentenced to death for murder, and the only alternative to execution is typically life in prison. Putting innocence issues aside, all the time and energy spent on capital punishment functionally impacts whether a bunch of murderers get to spend more or less time locked in a cage before they die.
4. Our massive criminal justice systems implicate many issues that get little attention. As partially detailed here, nationwide there are roughly 40 people serving life sentences for every defendant on death row (some for non-violent crimes). More than 10,000 state felony sentences are imposed for every single death sentence imposed. Also, for each execution, roughly 11,000 persons are released from prison. And yet, the imposition of life sentences, state felony sentencing, and reentry issues together probably receive less than half of the attention given to capital punishment.
Around the blogosphere (Hamdan free)
Nearly every law blog will give you a taste of Hamdan, so I'll fill a gap by noting some interesting coverage of other issues:
- Dan Markel here at PrawfsBlawg recaps the debate over wrongful conviction rates that Dan Filler and I have been conducting (see here and here).
- The Ohio Death Penalty Information Blog has lots of coverage of Ohio's recent tweaking of its execution protocol, as well as other items worth reading.
- Andy Leipold guest-blogging at Volokh has this post summarizing his blogging about his findings of more acquittals in federal bnch trials than in federal jury trials. Andy reasonably speculates that the harshness of the federal sentencing guidelines could be a big part of the story.
A Blakely perspective on Clark
The Supreme Court's discussion of due process, insanity and mens rea today in Clark is another example of the challenging intersection of criminal law and psychology. The majority opinion, which rejects various due process claims, is narrowly written so Clark will likely not be a due process watershed ruling. Indeed, what I find most interesting about Clark is how the votes and opinions shake out as compared to cases in the Apprendi-Blakely line.
Intriguingly, Justice Souter authored Clark and he brought along Justices Scalia and Thomas from the Blakely five (as well the newbie Justices) in an opinion that is functional, relatively narrow, and emphasizes the importance of the "State chosen standard[s]." Meanwhile, Justice Kennedy authors a strong dissent, joined by Justices Stevens and Ginsburg, which accuses the majority of "fail[ing] to appreciate the implications for Winship." Winship, of course, is the key due process ruling clarifying the import and reach of the requirement that prosecutors prove elements of an offense beyond a reasonable doubt.
I am not sure what all this might means for the big Blakely cases on the horizon (perhaps nothing), but it confirms my view that, outside the death penalty context, the traditional liberal/conservative labels and expectations are hard to square with the actual outcomes in a range of large and small criminal justice cases the Court decides.
Record length opinions?
I will always remembers that all the Booker opinions ran 124 pages on the SCOTUS official website (including the syllabus) and that the Blakely opinion were a merciful 57 pages. I now see that today's Hamdan opinions addressing war crime tribunals is a full 185 pages (and is now available here), while even Clark on the insanity defense gets 70 pages (and is now available here).
I have often told students that Furman (which had nine separate opinions) is the longest decision in Supreme Court history, though I've never done a word-count. I suspect that Hamdan might make the top 5 for length. Happy reading.
Sentencing fireworks in the Sixth Circuit
While everyone is focused on the last day before summer vacation for the Supreme Court, the Sixth Circuit today issued two remarkable split rulings on sentencing matters. Here are highlights to two must-read opinions:
In US v. Vonner, No. 05-5295 (6th Cir. June 29, 2006) (available here), Judge Martin continues his terrific post-Booker work in a thoughtful majority opinion that declares a within-guideline sentence unreasonable for "lack of adequate explanation." (The first part of the opinion seems to be building toward a ruling that the sentence was substantively unreasonable, but a footnote at the end of the majority opinion suggests that the same sentence might be reasonable if adequately explained.)
Writing in dissent, Judge Siler in Vonner explains why he thinks the district court provided an adequate explanation for imposing a within-guideline sentence (and essentially blames the defense attorney for not asking the sentencing judge for a fuller explanation). Judge Siler concludes with these sentiments: "The numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike. Sentencing hearings will soon exceed trials in length, if we do not simplify the process." Funny, I do not recall "simplify the process of depriving people of liberty" in the sentencing directive of 3553(a). I guess I should read that provision more closely.
In US v. Sanders, No. 04-4540 (6th Cir. June 29, 2006) (available here), the issue is technically due process surrounding resentencing timelines. The remarkable sentencing backdrop in Sanders concerns whether the defendant should have gotted a 37-month sentence or a 180-month sentence for two relatively minor firearm offenses. And Judge Martin, this time writing in dissent, starts his opinion with this attention-grabbing paragraph:
In the district court's own words, "[t]he history of this case is indelibly etched in the court's memory." This case too will forever be etched in my mind as one of the most fundamentally unfair results that I have ever witnessed in thirty-plus years as a judge.
UPDATE: How Appealing has also taken not of Judge Martin's notable dissent in Sanders and he also quotes the extraordinary closing paragraph from the dissent here.
Final SCOTUS decisions of the Term
Wrapping up what I have come to view as a relatively uneventful Supreme Court Term for criminal law issues, the Court this morning issued its final two opinions: Hamdan addressing war crime tribunals and Clark on the insanity defense. Here an early report on the decisions from SCOTUSblog:
The Supreme Court ruled on Thursday that Congress did not take away the Court's authority to rule on the military commissions' validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the "military commissions" illegal under both military justice law and the Geneva Convention. The vote was 5-3, with the Chief Justice not taking part.
The Court, in the only other decision, ruled that Arizona's law on the insanity defense does not violate constitutional due process. The ruling in Clark v. Arizona (05-5966) was written by Justice David H. Souter and divided the Court 6-3, although Justice Breyer also filed a partial dissent and partial concurrence. The ruling upheld what is called the "Mott rule" in Arizona, barring psychiatric evidence of a mental disorder short of insanity to offset prosecution evidence of criminal intent. The ruling also upheld Arizona's definition of the insanity defense.
Though Hamdan will surely get the most attention, I suspect Clark might have more points of interest for sentencing fans.
The biases in crack sentencing
Pardon the pun in the title of this post, but it sets up coverage of notable recent discussions of crack sentencing. First, through two strong commentaries, the Chicago Tribune here and the Washington Post here spotlight how the cocaine-induced death of basketball star Len Bias 20 years ago was a catalyst for the development of the 100:1 crack/powder ratio and also Congress's modern affinity for harmful mandatory minimum sentencing legislation.
Second, the Sacramento News and Review today has this terrific article providing a lot of background and insight on the Starks case in the Ninth Circuit, which may address the authority of district judges deviating from the crack guidelines after Booker. The on-line version of the article provides links to some of my coverage of this case and related issues.
A few recent related posts on crack sentencing:
- Crack sentencing and the anti-parsimony pandemic
- Crackin' good arguments, Gromit!
- Another crack at an amicus brief on crack sentencing
- Reflecting 20 years after the crack panic
- Noticing different legislative reactions to meth and crack
- New ACS issue brief on crack sentencing disparity
- Insightful report and analysis of Booker on crack
June 28, 2006
A batch of reasonableness rulings
Not long after I did this post about quiet Booker times, I saw noteworthy sentencing opinions in three circuits. AL&P has the (unpublished) action in the First Circuit well covered here and here and here, so I'll focus on rulings from the Fifth and Eleventh Circuits.
The Fifth Circuit gives the government two reasonableness wins in US vs. Candia, No. 05-30213 (8th Cir. June 28, 2006) (available here) (affirming as reasonable application of consecutive sentences); US vs. Medina-Argueta, No. 05-50474 (8th Cir. June 28, 2006) (available here) (affirming sentences as reasonable despite guideline calculation error harming defendant).
Meanwhile, the Eleventh Circuit gives the government a major reasonableness defeat in US vs. Gray, No. 05-30213 (11th Cir. June 28, 2006) (available here), by affirming a sentence imposed significantly below the guidelines range. Here's the key concluding paragraph:
[T]he district court gave specific, valid reasons for imposing a sentence that was lower than the guidelines range. The court's statements at sentencing reflect that it took into account Gray's age, his prior minimal criminal record, and his medical condition. These are all valid considerations because they relate to the "history and characteristics of the defendant." The court weighed these factors against "the nature and circumstances of the offense" and decided to impose a nonguidelines sentence. There is no indication that the court imposed the lower sentence solely because it disagreed with the guidelines. Rather, the court's statements show that it believed the 72-month sentence to be reasonable. Although Gray's sentence is less than half the 151 months that defines the bottom of the guidelines range, under the circumstances and given the district court's explanation we cannot say that is unreasonable in light of the § 3553(a) factors.
Carefully exploring the wrongful conviction problem
At the end of my first post on Marsh, I assailed Justice Souter's bald assertion that "false verdicts ... are probably disproportionately high in capital cases." Today over at Concurring Opinions, Dan Filler has this thoughtful response giving his account of six reasons why he thinks "there is a good chance that Souter is right and Doug is wrong."
As always, Dan raises a number of good points, and his comments prompted me to read this article, by Prof. Sam Gross et al. and entitled "Exonerations in the United States 1989 Through 2003," which is the most systematic examination of these issues that I could find. The authors rely on various numbers and hypothesis to conclude that criminal justice systems are "much more likely to convict innocent defendants of murder — and especially capital murder — than of other crimes, and a large number of false convictions in non-capital cases are never discovered because nobody ever seriously investigates the possibility of error."
My gut reaction to Justice Souter's initial assertion was based on my (unsubstantiated) belief that plea bargaining may contribute greatly to the wrongful conviction problem. No one plea bargains to a death sentence (though many do to avoid such a sentence); but there are roughly a million non-capital convictions from felony charges each year that are the result of plea deals.
Imagine if only .01% of all defendants who plead guilty when facing felony charges are actually innocent and plead guilty due to a (reasonable) fear of getting a much harsher sentence after possibly losing at trial. Even if 99.99% of all defendants who plead guilty are in fact guilty, we would still have roughly 1000 innocent people convicted of non-capital felonies each and every year. (If only 99.95% of all defendants who plead guilty are truly guilty, then we have 5,000 wrongful convictions nationwide resulting from pleas even before we start looking at trial error in non-capital cases.)
Of course, this scary number crunching does not directly address the rate of wrongful convictions across crimes, and I suppose I was a bit rash when expressing exacerbation about Justice Souter's assertion on that point. But I find the cumulative numbers far more disturbing than the rate, especially given the harshness of our non-capital sentences and the massive size of our criminal justice systems. It is, of course, a great tragedy if 1 of the roughly 100 death sentences handed down last year involved an innocent person. But I think we should be even more concerned that perhaps 1000, or 10,000, or even 50,000 other sentences were given to innocent persons even if the wrongful conviction rate in non-capital cases is lower than in capital cases.
All quiet on the Booker front?
With the Supreme Court issuing lots of criminal law opinions and with the death penalty doing its usual job of hogging up attention, I have not given much thought to the post-Booker world lately. Moreover, except for the regular wins by prosecutors in the Eighth Circuit (examples here and here and here), there have been surprisingly few notable Booker opinions in the circuit courts recently. And the Sentencing Commission, which was producing updates of post-Booker sentencing statistics on this page every few weeks not long ago, now has only produced one update in the last three month.
So I am now wondering, as we approach a full 18 months since the Booker ruling, has everyone started to settle in for the long haul with the Booker remedy?
Of course, the most critical institution to focus upon is Congress, which could use a debate over a legislative Booker to make crime and punishment issues the next political rhetoric topic du jour. As noted in this this recent post, a "topless guidelines" Booker fix bill has been in draft form for a number of weeks. But this bill has not yet even been introduced in the House, and there is no evidence that either body of Congress is ready to move quickly on a massive restructuring of the federal sentencing system.
Last September in this post, I had the temerity to ponder whether the Booker remedy might be here to stay. Nearly a year later, the prospects seem even brighter. Then again, maybe this is just the calm before the storm.
SCOTUS finishes half of its remaining criminal docket
As reported here at SCOTUSblog, the Supreme Court today did not hand down its opinions in Hamdan (on war crime tribunals) or Clark (on the insanity defense), but it did issue opinions in Sanchez-Llamas v. Oregon and Beard v. Banks. Here are the initial summaries provided by Lyle Denniston:
In a ruling written by Chief Justice John G. Roberts, Jr., the Court concluded that states may bar foreign nationals from raising the issue of their treaty rights to talk with a consular officer if they did not raise that issue at trial. The Court majority said that the outcome was dictated by the Court's 1998 summary decision in Breard v. Greene.
In a 5-3 ruling, the Court decided that prison officials may deny newspapers, magazines and photographs to their most dangerous inmates. The plurality opinion by Justice Stephen G. Breyer upheld such a ban. Justice Samuel A. Alito, Jr., took no part. He had dissented when the Third Circuit struck down the ban.
UPDATE: Unsurprisingly, both Sanchez-Llamas (available here) and Banks (available here) are long and full of stuff that likely will only interest sentencing fans with particular interests in international law or prison regulations. Based on a quick scan, I found Justice Thomas' separate opinion in Banks perhaps the most intriguing.
Notable execution in Tennessee and Texas
Though lethal injection litigation has halted executions in many states (details here and here), both Tennessee and Texas carried out executions in the last 24 hours. As detailed in this AP article, the Tennessee execution was one of two planned by the state for early this morning, but a stay has held up the second execution. This AP article about the Texas execution of a man thought responsible for 15 murder details the mental health and international law issues that surrounding the case.
"Hasta la vista, prison overcrowding!"
I cannot resist referencing one of my favorite action films to introduce the news that California Governor Schwarzenegger has called the state's legislature into special session to address prison overcrowding. Both TalkLeft and Crime and Consequences provide blog coverage of the news, and traditional media coverage can be found in the San Francisco Chronicle and the Los Angeles Times. Here are a few highlights from this official press release coming from the Governor's office:
Governor Schwarzenegger issued a proclamation today calling the Legislature into special session starting June 27 to address critical prison crowding and recidivism measures. The Governor has proposed several reforms to build new state prisons and local jail facilities, reduce crowding and move female inmates into community-based correctional facilities. Calling a special session enables the Governor to press for passage of these measures before the close of the Legislative session in August.
"Our prisons are at the crisis point because the State of California has not planned adequately for its future and has not faced up to the need to build new prisons as well as hire and train more officers. I am calling on my partners in the Legislature to join me in taking action to face these challenges head on," said Gov. Schwarzenegger. "By building more prisons, managing the inmate population more effectively and implementing common-sense measures that target the most dangerous criminals, we can greatly improve our prison and rehabilitation system.
"We can enact meaningful reform that ensures the safety of our correctional staff and makes sure more of our parolees stay out of prison after they're released. If we work together, I know we can do this and once again give California a model prison system." California's prison population is at an all time high of more than 171,000 inmates. The CDCR is double-bunking inmates and there are currently more than 16,000 inmates housed in prison gyms and day rooms throughout the various 33 correctional institutions.
Some related posts on California's prison woes:
June 27, 2006
New York makes reentry a sentencing priority
Thanks to the Center for Community Alternatives (CCA), I have learned that the Empire State has recently made an important change to its sentencing laws to deal with offender reentry and public safety concerns. This paper from CCA, entitled "A New Sentencing Model to Meet the Challenge of Reentry and Public Safety," provides some details in its introduction:
On June 7, 2006 Governor George Pataki signed into law an important change affecting sentencing in New York. Penal Law §1.05(6) has been amended to add a new goal, "the promotion of their (convicted person's) successful and productive reentry and reintegration into society..." (Chapter 98 of the Laws of 2006), to the four traditional sentencing goals of deterrence, rehabilitation, retribution and incapacitation.....
This legislative change is consistent with the reintegrative sentencing model that was developed by the Center for Community Alternatives (CCA) in 2004 and championed by the Interfaith Coalition of Advocates for Reentry and Employment (ICARE), an alliance of communities of faith, direct service providers, and policy organizations including the New York State Council of Churches, Legal Action Center, Center for Community Alternatives, Reentry Net/NY and many congregations throughout New York State. In CCA's sentencing model, reintegration is placed at the core, and the individual returns to the community in a way that promotes public safety....
This amendment to New York's Penal Law marks a significant shift in sentencing policy by the legislature. For 30 years legislatures and courts have neglected rehabilitation as a goal to be considered during the sentencing process (Garland 2001) in favor of the more punitive goals of punishment, deterrence, and incapacitation. Identifying reintegration as a sentencing goal promises not only to restore the person's well-being as a focus of decision-making but also to extend that consideration, by implication, to the well-being of the community as a whole. The new law will require every judge presiding at sentencing in a criminal case to consider carefully what kind of sentence will best help to promote the defendant's reintegration into society and recognizes that such reintegration is the best way to achieve public safety.
Should part of the machinery of death be dyslexic?
Kent Scheidegger in this post over at Crime and Consequences seems eager to read Kansas v. Marsh (commentary here and here) as a sign that the Supreme Court might finally be ready "to stop tinkering with capital sentencing procedure." His interesting post draws its start from Justice Blackmun's famous farewell statement on the death penalty when he said he would "no longer tinker with the machinery of death."
The tinkering talk is ironic at a time when, as detailed here and here, federal courts are literally tinkering with the machinery of death by reviewing, and sometimes demanding revisions to, states' lethal injection protocols. Today I received from a helpful reader a copy of the decision from a federal district judge in Missouri which, in addition to documenting how that state has been conducting lethal injections, makes it very clear that some more tinkering is in order.
The Missouri lethal injection order is provided for download below, and here is just one part of the remarkable document:
[The physician that mixes the drugs used during the executions] readily admitted that he is dyslexic and that he has difficulty with numbers and oftentimes transposes numbers. [He] testified "it's not unusual for me to make mistakes.... But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That's why there are inconsistencies in what I call drugs. I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon." (Depo. p. 25). The Court disagrees and is gravely concerned that a physician who is solely responsible for correctly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers. As the Court has learned, the process of mixing the three different drugs and knowing the correct amount of the drugs to dissolve in the correct amount of solution involves precise measurements and the ability to use, decipher, and not confuse numbers. Although [the physician] does not feel this is crucial in the type of work he does as a surgeon, it is critical when one is mixing and dissolving chemicals for a lethal injection.
Tennessee's planned execution splits Sixth Circuit again
As a commentor noted here in my latest post about the lethal injection litigation nationwide, the Sixth Circuit today denied rehearing en banc in the Alley case from Tennessee by a vote of 7-6. Two separate dissents can be accessed here. Here is a snippet from Judge Martin's dissent:
Alley raises troubling allegations about the suffering involved in death by lethal injection, and should be allowed his day in court, particularly given that he has presented his legal challenge as promptly as he reasonably could have. The panel's attempt to short-circuit his claim through the misapplication of a principle of equity does a disservice to the Constitution and its prohibition of cruel and unusual punishment, in addition to being incorrect.
Prosecution prevails in many Eighth Circuit rulings
As highlighted by this list, it is not surprising when the prosecution prevails on sentencing issues in the Eighth Circuit. And today this official circuit opinion page shows too many government wins for me to process them all.
Two sentencing rulings stand out: in US v. Medearis, No. 05-2991 (8th Cir. June 27, 2006) (available here), a divided panel reverses yet again another below-guideline sentences hardly news; in US v. Smith, No. 05-2124 (8th Cir. June 27, 2006) (available here), the circuit finds legal error in the district court's decision not to consider an obstruction of justice enhancement which was based on allegations of perjury at trial. Smith thus essentially holds that a district court, notwithstanding the rulings in Blakely and the merits opinion in Booker, cannot refuse to consider holding a defendant liable at sentencing for an uncharged claim of perjury.
In other interesting Eighth Circuit news, a panel also held in US v. Kraklio, No. 06-1639 (8th Cir. June 27, 2006)(available here) there were no Fourth Amendment problems with the collection a federal probationer's DNA under the provisions of the DNA Analysis Backlog Elimination Act of 2000.
"The government ... has let its zeal get in the way of its judgment. It has violated the Constitution it is sworn to defend."
As Peter Lattman notes here at the WSJ Law Blog, SDNY District Judge Lewis Kaplan (who, in this small world, once was my "partner buddy" when I was a summer associate) has this great quote at the end of his introduction to a remarkable 88-page opinion in the KPMG litigation. The Law Blog provides highlights here and here on the ruling, available here, in which Judge Kaplan ruled that federal prosecutors violated the constitutional rights of former KPMG partners by pressuring the firm not to pay their legal bills.
In addition, the White Collar Crime Prof Blog has a series of strong posts on Judge Kaplan's work.
UPDATE: Dave Hoffman has an extended post on the KPMG ruling here at Concurring Opinions.
June 26, 2006
Back to the lethal injection scrummages
A judge on Monday ordered all executions put on hold in Missouri after a condemned man challenged lethal injection as a violation of the U.S. Constitution's protection against undue pain and suffering. U.S. District Judge Fernando Gaitan Jr. said the execution process as carried out in Missouri was not consistent and "subject to change (in protocol) at a moment's notice."
Some recent related posts:
- The intriguing next chapter in the lethal injection saga
- Oklahoma ruling on lethal injection's constitutionality
- On the other side of the Hill
UPDATE: This article indicates that a similar stay because of concerns about lethal injection protocols has been entered by a federal district judge in Arkansas. Meanwhile, as detailed here, "Tennessee could become the fifth state in the death penalty's modern era to have multiple executions on the same day if it carries out the sentences of convicted killers Sedley Alley and Paul Dennis Reid after midnight tonight." And, as detailed here, a notorious killer is due to be executed by lethal injection in Texas today.
Some addition recent related posts:
- A Hill of beans
- Insights on Hill from THE expert
- Lethal injection litigation inspection
- A bit of lethal injection history
- How could (and should) Congress clean up the lethal injection mess?
Kansas v. Marsh around the blogosphere
Though I am far more intrigued by the opinions and votes in Recuenco (commentary here and here) and Gonzales-Lopez (commentary here), most of the folks in the legal blogosphere are more eager to discuss the capital punishment fireworks in Marsh. (I guess the blogosphere suffers from what I have called a legal culture of death, just like SCOTUS.) Here are links to some of the Marsh commentary I have seen:
Why Recuenco could be good news for Blakely fans
Some fans of Blakely might be bummed that the Supreme Court today in Recuenco (discussed here) declared that violations of Blakely rights could be subject to harmless error. But I see a very important silver lining in Recuenco: the opinions and the voting pattern in Recuenco suggest to me that the main consequence (and goal?) of the opinion will be to make it much easier for the Court to feel comfortable expanding Blakely rights in the future.
By voting to limit the potential consequences of future Blakely rulings through Recuenco, three of the Blakely five — Justices Scalia and Souter and Thomas — have ensured that the entire Court can feel more at ease when deciding whether to expand Blakely rights in later cases. Of course, the Court already has two big Blakely cases on its docket: (1) Cunningham, which addresses Blakely's applicability to California's sentencing system, and (2) Burton, which addresses whether Blakely is to be applied retroactively.
The opinion in Recuenco provides no reason to believe that Justice Scalia (the author of Blakely) and Justice Souter (the author of Jones) or Justice Thomas (the author of strong separate opinions calling for Blakely's extension in Harris and Shepard) are not still strong believers in Blakely principles. In fact, that these three Justices are all in the majority in Recuenco — and that Justice Thomas authored the opinion and included some loose pro-Blakely language — leads me to (naively?) view the defendant's loss in Recuenco as setting up some more important Blakely wins next term.
TRO issued concerning Georgia sex offender residency restriction
In this post, TalkLeft has lots of background on a TRO issued today by U.S. District Judge Clarence Cooper to prevent the application of new law due to go into effect in Georgia on July 1. The law, available here, prohibits anyone on the state's sex offender registry from living within 1,000 feet of any school bus stop. Here is an AP story with a bit more on the ruling.
More evidence of Justice Scalia's move left
After reading Gonzalez-Lopez, the interesting right-to-counsel decision by the Supreme Court (available here), I wonder if the folks who attacked Justice Kennedy for joining the "liberal wing" in Roper will now attack Justice Scalia for doing the same. Distilled to its essence, Justice Scalia in Gonzalez-Lopez affirms the reversal of a drug dealer's conviction based on a debatable interpretation of the Sixth Amendment. Like his opinion in Blakely, Justice Scalia's opinion in Gonzalez-Lopez reads like it might have come from the desk of Justices Brennan, Marshall or Warren, except perhaps for some sharp comments about the dissent in the footnotes.
Speaking of the dissent, I believe Gonzalez-Lopez has the first dissenting opinion written by Justice Alito. That fact alone is interesting, but is even more notable because he dissents (along with the new Chief and Justices Kennedy and Thomas) from an opinion authored by Justice Scalia. And, to continue a theme, it is fun to speculate whether Justice O'Connor (or Harriet Miers) might have dissented in the same manner in Gonzalez-Lopez. I doubt it.
Some related posts:
- Why some defendants hope Alito is like Scalia
- Pondering Judge Roberts' mold
- The current SCOTUS sentencing head-count
- Curious SCOTUS vote counting (and remembering that death and habeas are different)
A few quick thoughts on Marsh
A quick read of the Supreme Court's death penalty work in Marsh (opinion here) triggers a lot of capital punishment thoughts. Here are a few quick observations on Marsh:
1. The reargument and 5-4 vote makes clear that Justice Alito was a swing vote. It is fun to speculate which opinion Justice O'Connor might have joined (and perhaps even more fun to speculate which opinion Harriet Miers might have joined).
2. Justice Thomas' opinion for the Court seems to avoid any unduly broad language about the meaning or contours of the Court's capital jurisprudence (although perhaps I missed some sharp dicta needles in the Marsh haystack).
3. Justice Scalia and Justice Stevens have an interesting dialogue in their separate opinions about the Court's certiorari choices, which echoes some of the ideas previously developed in this post.
4. Justice Scalia and Justice Souter use this case as an opportunity to engage in an extended debate about wrongful convictions and the death penalty. Beyond the fact that Marsh is a very strange setting for innocence talk, shouldn't these Justices be devoting more time to addressing legal issues and less to engaging in off-topic factual debates?
5. Justice Souter baldly asserts at the end of his dissent that "false verdicts ... are probably disproportionately high in capital cases." Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four "liberal" Justices might actually believe it is true.
A few quick thoughts on Recuenco
A quick read of the Supreme Court's Blakely work in Recuenco (opinion here) provides a lot of interesting tea leaves to read. Here are just a few quick observations, with more commentary to follow later:
1. The court's decision was on a 7-2 vote, with only Justices Stevens and Ginsburg dissenting. Perhaps the most surprising (silent) member of the majority is Justice Scalia, who was the author of Blakely and a vocal dissenter in the key precedent that the majority relies upon to declare that Blakely errors can be harmless (this post details Justice Scalia's prior assertions that jury trial errors should be seen as structural).
2. Justice Thomas' opinion has some broad language about "sentencing factors" that might be read — and certainly could be misconstrued — to extend the reach of Blakely. See Recuenco, slip op. at 6 ("we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt"); id. at 7 (discussing the Court's "recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes"). Both of these assertions — which carry seven votes, including those of the two new Justices — raise the stakes on what exactly counts now as a "sentencing factor."
3. Justice Kennedy writes an opaque little separate concurrence which seems to signal that he still does not accept Apprendi and Blakely. Notably, Justice Breyer does not sign on to this tea leaf concurrence (nor does, for that matter, Justices Alito and CJ Roberts).
4. The author of the main dissent on the merits is Justice Ginsburg, who writes as if she was the strongest believer in the full panoply of Blakely rights. But, as the majority-jumping Justice in Booker who allowed for federal defendant to have their procedural rights at sentencing gutted, I am surprised she is a vocal dissenter here. Might this dissent signal that she is disappointed with how the post-Booker world is unfolding?
SCOTUS says Blakely errors can be harmless and tie can go to death
Deciding the only Blakely case and the most intriguing death penalty case it faced this Term, the Supreme Court today handed victories to prosecutors in Washington v. Recuenco (background here) and Kansas v. Marsh (some background here and here and here). Here is the early report from SCOTUSblog on these two decisions:
Dividing 5-4, the Court ruled that a state may constitutionally require the death penalty if mitigating and aggravating factors are in equal balance -- a decision that upheld Kansas' capital punishment scheme. Justice Clarence Thomas wrote the lead opinion.
In another ruling written by Justice Thomas, the Court ruled that failure to submit a sentencing factor to a jury is not a "structural" error and thus may be excused as "harmless error."
In addition, the Court also ruled on right to counsel. According to SCOTUSblog, "the Court ruled that a conviction must be reversed if the accused was deprived, even if in error, of the defense lawyer of choice."
I hope to read these decisions over lunch and then provide some detailed commentary this afternoon. In the meantime, here is an early AP report on Marsh.
Engaging review of "Tweaking Booker"
Over at PrawfBlawg, Dan Markel here provides a long and thoughtful "review" of my "Booker fix" article, Tweaking Booker: Advisory Guidelines in the Federal System (noted before here and available via SSRN from this web page). For now, I won't review this review, but instead will be content to point interested readers to Dan's interesting perspective and to thank him for his many kind words and for engaging so fully with my article.
June 25, 2006
A criminal law heavy SCOTUS finale
As detailed in this AP article, the Supreme Court has 10 more cases to decide before taking its summer vacation. Both SCOTUSblog and Crime and Consequences have the particulars on the cases that remain, and Kent Scheidegger has this astute observation: "The end of the term is heavily criminal, although the political nature of two of the civil cases will probably mean they get more press coverage than any of the criminal and related cases except Hamdan."
As I have noted in this post, I think Recuenco, Marsh and Clark are the decisions most likely to intrigue sentencing fans. However, for reasons highlighted by Rachel Barkow's latest article, I hope to find time to carefully read all the criminal case dispositions we are expected to get this week.
UPDATE: Thanks to How Appealing, I see that the Wichita Eagle has this article anticipating this week's expected ruling in Marsh, the death penalty case from Kansas.
Another must-read for SCOTUS watchers and Blakely fans
As I have said before, I always enjoy NYU Professor Rachel Barkow's scholarly work because, in addition to being a sentencing guru, she brings an important legal process perspective to the issues she explores. She is at it again in latest piece, now available here from SSRN, entitled "Originalists, Politics, and Criminal Law on the Rehnquist Court." Here are snippets from the abstract:
One of the most important legacies of the Rehnquist Court's criminal law jurisprudence is its reinvigoration of the Constitution's jury guarantee. The Court has made clear that legislators cannot pass laws mandating increases in punishment unless those laws are applied by juries, not judges. The Court has therefore rejected existing sentencing laws in numerous states and the federal system, and sentencing policy is under scrutiny as never before.
The Court's sentencing cases are not only significant for their impact on day-to-day plea bargaining and trial practice in the criminal justice system; they also provide a concrete and important example of the power of law and legal methodology - and not simply politics - in Supreme Court decisionmaking. The sentencing decisions are out of step with what attitudinalist political scientists would have predicted from the right-leaning Court.... This area of criminal law is therefore an important reminder of the significance of legal methodology to case outcomes.
In addition to documenting the importance of the jury cases, this Article uses those cases as a springboard for a larger analysis of the relationship between originalists, politics, and criminal law on the Rehnquist Court. By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model.... The jury cases are therefore part of a larger pattern that reveals the relationship between originalism, politics, and criminal law to be far more complicated than is commonly believed.
Chicago Tribute claims innocent man executed
As noted here, the Chicago Tribune has a three-part series in the works contending that Texas in 1989 executed Carlos De Luna for a crime he did not commit. The first article in the series in now available here, and it starts this way:
For many years, few questioned whether Carlos De Luna deserved to die. His execution closed the book on the fatal stabbing of Wanda Lopez, a single mother and gas station clerk whose final, desperate screams were captured on a 911 tape. Arrested just blocks from the bloody crime scene, De Luna was swiftly convicted and sentenced to death -- even though the parolee proclaimed his innocence and identified another man as the killer.
But 16 years after De Luna died by lethal injection, the Tribune has uncovered evidence strongly suggesting that the acquaintance he named, Carlos Hernandez, was the one who killed Lopez in 1983. Ending years of silence, Hernandez's relatives and friends recounted how the violent felon repeatedly bragged that De Luna went to Death Row for a murder Hernandez committed.