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.