September 16, 2006
California's inspiring execution team
It seems that whenever the curtain hiding lethal injection procedures is pulled back, what we discover is even less inspiring than the Wizard of Oz. In Missouri, as detailed here, we learned that the physician that mixing the drugs used during executions admitted he was dyslexic and often transposes numbers. Now from California, as detailed in newspaper articles here and here, we learn about the disturbing make-up of the California lethal injection team. Here are "highlights" from the San Francisco Chronicle:
The San Quentin prison employee leading the team scheduled to execute Michael Morales for the 1981 rape and murder of a teenage Lodi girl had been diagnosed with clinical depression and post-traumatic stress disorder and was on antidepressant medication when Morales' execution was scheduled to proceed, according to federal court filings released Friday. Another execution team leader at San Quentin was terminated as a guard for bringing illegal narcotics into the prison, but was reinstated after being suspended five months without pay, and later advanced to head the execution team....
Morales, who had been scheduled for execution Feb. 21, is challenging the constitutionality of California's lethal injection procedure. His attorneys maintain that prisoners may suffer severe pain because they are not properly anesthetized before being given lethal doses of drugs. Morales' attorneys, in court filings, argue that California executions are performed by "prison personnel with criminal records of misconduct and who lack skill, competence, professionalism," training and other skills to perform executions.
Some recent related posts:
- My lethal injection piece on SSRN
- Missouri still struggling with its execution protocol
- My take on the other side of Hill
SCOTUS preview season in high gear
Everywhere you surf, there are clear signs that the SCOTUS preview season is now in high gear. Marcia Coyle has this effective article up at law.com entitled "New Supreme Court Term Promises Early Drama." Also, as How Appealing notes here, the Cato Institute's annual SCOTUS event to place Thursday, and it can now be watched on-line through links here. Similarly, the annual Supreme Court preview conference at William and Mary School of Law is going on this weekend (details here).
Unsurprisingly, even though SCOTUS has a criminal-heavy docket this fall, as detailed here, most of the preview buzz is focused on issues like abortion, affirmative action and punitive damages. Still, with fall arguments in big Blakely cases like Cunningham addressing California's sentencing system (archive here) and Burton addressing retroactivity (archive here), I expect there will ultimately be plenty of SCOTUS buzz to feed my Blakely obsessions.
Some recent related posts:
- Joint advice for SCOTUS on Cunningham
- Ideas for starting a SCOTUS fantasy league?
- Time to take some more Blakely and Booker cases....
- A criminal start to OT '06 for SCOTUS
- Getting excited for Cunningham
- Could they, would they, should they ... declare Blakely retroactive?
UPDATE: In the comments, Kent Scheidegger reminds me of his great work in this post at Crime & Consequences, where Kent details the criminal law cases that Tom Goldstein predicts have a decent chance of a cert grant. Notably, few of these cases deal with sentencing issues, though I am predict some more sentencing related cert grants before this calender year is complete.
Some Enron-related sentencing news
As detailed in this Houston Chronicle article, yesterday a "former assistant treasurer at Enron was sentenced to four years probation and a $10,000 fine for his role in deceiving credit rating agencies while working at the collapsed energy giant."
Hat tip to Tom Kirkendall, who provides some background in this post at Houston's Clear Thinkers. (Folks following the Olis resentencing closely with also want to check out Tom's strong posts on this past week's resentencing hearing here and here.)
UPDATE: The Houston Chronicle now has this piece previewing other upcoming Enron sentencings.
September 15, 2006
Up and down the Hill again
Clarence Hill won a big battle a few month ago: in early June (as detailed here and here and here), the Supreme Court held that he could proceed with his § 1983 claim alleging that Florida's lethal injection protocol is unconstitutional. But now it appears he is about to lose the war to avoid his execution.
Today, the Eleventh Circuit in Hill v. McDonough, No. 06-14972 (11th Cir. Sept. 15, 2006) (available here), denied Clarence Hill's request for a stay of execution so he could effectively appeal the district court's decision last week to dismiss his § 1983 claim. As detailed in this newspaper article, it does not appear that Hill has even received an adjudication of his claim on the merits in the district court, and the Eleventh Circuit decision today never considers the substance of Hill's underlying Eighth Amendment claim. Here is what it says instead:
In light of Hill's actions in this case, which can only be described as dilatory, we join our sister circuits in declining to allow further litigation of a § 1983 case filed essentially on the eve of execution.
It will be interesting to see if the Supreme Court might intervene yet again, or if Florida will finally get to execute Mr. Hill for the crimes he committed two decades ago.
Some recent related posts:
- My lethal injection piece on SSRN
- Missouri still struggling with its execution protocol
- My take on the other side of Hill
- Hill lethal injection case finally kicked back to district court
- South Dakota Governor halts execution over lethal injection concerns
- Lethal injection litigation creates de facto moratorium in Ohio and...
Alaskan wisdom on Blakely and indictments
Alaska, to my great joy, continues to do great Blakely work (prior great work is linked below). Today, in Alaska v. Dague, No. A-9054 (Alaska Ct. App. Sept 15, 2006) (available for download below, and also now at this link), the Alaska Court of Appeals held that aggravating factors that enhance a presumptive term do not have to be presented to the grand jury.
Related posts discussing great Alaska Blakely opinions:
- Another strong Blakely opinion from Alaska
- All hail the Blakely Frontier
- Great Alaska opinion on Blakely and consecutive sentencing
- Alaska on Blakely's applicability to juvenile transfer
- Recent Alaska Blakely decisions
More habeas "reform" in the works?
I received today this interesting and perhaps alarming news from JoAnna Moskal at The Justice Project:
I wanted to let you know about some habeas repeal measures that some members of Congress are trying to sneak through in the last legislative days before the mid-term elections....
Behind closed doors, just this week, there are efforts to attach habeas repeal measures and 300 pages of other non-germane matters to the Department of Defense Authorization bill. The primary purpose of this bill, which is currently in conference and could be finalized in the coming days, is to provide resources for troops in Afghanistan and Iraq.
As you know, there has been broad bi-partisan opposition to habeas repeal legislation, but we are worried that members of both parties who have fought on principle to resist these regressive changes may be made to look anti-patriotic when they object to the unnecessary, unrelated additions to the DOD bill. In addition, much of this maneuvering has been taking place though back door channels and the regular order which assures that both Chambers of Congress have a fair opportunity to consider the legislation has been skirted. Alarmingly, the texts of some of the added measures have not been seen by many members and their staff nor by the public.
Our habeas web page has been updated with this new information and we are currently asking residents of Virginia to call on Senator John Warner, chairman of the Armed Services Committee, to not allow the non-germane and controversial additions to the DOD bill. We wanted to make sure you knew about the current efforts in Congress.
Eleventh Circuit reverses variance based on fast-track disparity
The Eleventh Circuit today in US v. Arevalo-Juarez, No. 05-16313 (11th Cir. Sept. 15, 2006) (available here), reverses a sentence which was set "below the Guidelines range to alleviate sentencing disparities associated with the unavailability of early disposition or 'fast-track' programs in the Southern District of Georgia." Here are snippets from an important ruling on an important issue:
[I]t was impermissible for the district court to consider disparities associated with early disposition programs in imposing Arevalo-Juarez's sentence, because such disparities are not "unwarranted sentencing disparities" for the purposes of § 3553(a)(6).... A fast-track guidelines reduction was specifically authorized by Congress because of the perceived unique and pressing immigration problems in certain districts.... Plainly, Congress contemplated that discrepancies would arise because it structured the law the way it did.
Concurring, Judge Wilson stresses the precise nature of the court's ruling:
I write separately to emphasize that we make no determination as to whether Arevalo-Juarez's thirty-month sentence is reasonable in this case. After Booker, the ultimate determination in reviewing a sentence on appeal is reasonableness. Sentencing courts are free to depart from the advisory guidelines range so long as the sentence is reasonable based on a "proper consideration" of the section 3553(a) factors. Here we make no determination as to the reasonableness of Arevalo-Juarez's sentence, rather we find that the trial court based the sentence on an improper consideration by downward departing solely on the basis of the fast-track disparity.
Death penalty coming and going and staying
There is never a shortage of discussion on whether the death penalty should be coming or going. In Wisconsin, as detailed here, this November brings a voter referendum asking whether the state should bring back the death penalty. In New Jersey, as detailed here, this week's hearing by the state's Death Penalty Study Commission has led some to urge the formal abolition of the ultimate punishment.
Meanwhile, as detailed in this AP report, Fourth Circuit Judge William Wilkins gave a speech yesterday in which he suggested the death penalty will always be a part of our legal system. Here is a snippet from the article:
"I think the death penalty will be around for a long time," Wilkins said. "But I think you're going to see escalating costs." Those opposing the death penalty argue the money can be better spent elsewhere, he said. "It costs a lot of money for the federal and the state governments to prosecute somebody for the death penalty," Wilkins said. In Florida, such cases average about $22 million, he said.
Interesting sentencing commentaries
This morning I noticed a few interesting comentaries about recent sentencing developments:
- This long piece from the American Chronicle discusses "the overcrowded, overwhelmed, under-functioning, understaffed, unaccountable, out-of-control, out-of-step, and in-debt California prison system" and it laments the politicians' "lack of depth and creativity on actual prison reform."
- This piece from the Houston Chronicle discusses the Jamie Olis resentencing; it contends that what has been "[m]issing from all the sentencing guidelines, legal arguments and judicial deliberations is the calculation of the unfairness to which Olis has been subjected." It also urges a new sentence of "two years, time served [so] Olis walks out a free man."
September 14, 2006
Joint advice for SCOTUS on Cunningham
Stephanos Bibas and I have just completed an article addressing the Supreme Court's sentencing jurisprudence, which will be published this fall in the Ohio State Journal of Criminal Law. The article, the draft of which can be downloaded below, is entitled "Making Sentencing Sensible." Here is the abstract:
This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states' flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion.
Ninth Circuit (unwittingly?) creates Booker ex post circuit split
Though the Ninth Circuit's death penalty work in Comer (basics here, commentary here) will likely get more attention, the circuit on Wednesday also rendered a noteworthy federal sentencing opinion in US v. Stevens, No. 05-30597 (9th Cir. Sept. 12, 2006) (available here). The underlying substantive issue in Stevens involves whether sending pornography to an undercover cop posing as an underage teenager triggers a steep guideline enhancement for "distribution to a minor." But, for Booker fans, Stevens is most significant for its ex post facto analysis.
Last month, the Seventh Circuit ruled in Demaree that, since the federal sentencing guidelines are now advisory, ex post facto doctrines no longer preclude applying the most recent guidelines even when they call for a longer sentence than the guidelines applicable at the time of the offense (basics here, commentary here). But, in Stevens, the Ninth Circuit applies its long-standing ex post facto doctrines to a post-Booker sentencing without even considering whether and how Booker might impact ex post facto considerations.
Because Stevens was argued and submitted before the Demaree ruling, I doubt the parties even raised the possibility that Booker might change ex post facto analysis. And, since Stevens does not address the issue at all, the panel apparently did not directly consider its implicit holding that Booker does not alter standard ex post facto analysis. Nevertheless, Stevens and Demaree apparently conflict on which version of the guidelines should be applied after Booker.
Of course, as I have detailed here, there is no shortage of circuit splits over post-Booker sentencing dynamics. Funny how a remedy purportedly intended to foster national sentencing uniformity has been interpreted and applied in so many disparate ways nationwide.
September 13, 2006
Another update on the Olis resentencing
As detailed in press reports here and here, the two-day resentencing hearing for former Dyegy executive Jamie Olis concluded today with Judge Sim Lake indicating that he hopes to announce a new sentence before the end of next week.
A few related Olis posts:
- Olis resentencing update
- Olis resentencing (finally) to go forward
- Cooperating Dynegy executives get relatively light sentences
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
UPDATE: This Houston Chronicle story now provides more details about the full Olis resentencing hearing. It notes an interesting point raised by the defense: "[Defense attorney] Gerger said the prosecutors were trying to discourage defendants from going to trial, not from committing crimes, with extremely long sentences. 'What the prosecution is asking for goes way beyond what's needed to deter crime,' Gerger said. 'They want to deter trials.'"
China does guidelines one better
Thanks to this post by Orin at VC, I see that the Chinese have come up with something even more efficient and effective than the federal sentencing guidelines and the presumption of reasonableness for imposing sentences. This fascinating Reuters article provides these details:
A court in China has used a software program to help decide prison sentences in more than 1,500 criminal cases, a Hong Kong newspaper said on Wednesday.
The software, tested for two years in a court in Zibo, a city in the eastern coastal province of Shandong, covered about 100 different crimes, including robbery, rape, murder and state security offenses, the South China Morning Post said, citing the software's developer, Qin Ye. "The software is aimed at ensuring standardized decisions on prison terms. Our programs set standard terms for any subtle distinctions in different cases of the same crime," Qin was quoted as saying....
Judges enter details of a case and the system produces a sentence, the paper said. "The software can avoid abuse of discretionary power of judges as a result of corruption or insufficient training," the paper quoted Zichuan District Court chief judge, Wang Hongmei, as saying.
As my comment above is designed to spotlight, anyone concerned about the use of a computer for sentencing needs to consider why China should not be lauded for the perfecting, rather than bastardizing, the concept of guideline sentencing. Fanatics of sentencing reform (like me) should recall that Judge Marvin Frankel, in his landmark call for sentencing reform in Criminal Sentences: Law Without Order, raised the possibility of computerized sentencing:
It is not necessary, or desirable, to imagine that sentencing can be completely computerized. At the same time, the possibility of using computers as an aid toward orderly thought in sentencing need not be discounted in advance. James V. Bennett, for years the able Director of the Federal Bureau of Prisons, noted the possibility some time ago.
Marvin Frankel, Criminal Sentences: Law Without Order 114-15 (1972).
Early Comer commentary
As expected, the blogosphere is already talking about the remarkable split Ninth Circuit panel ruling today in Comer (basics here). DotD has this post, C & C has this post, and How Appealing has this great post. In addition to its great title, How Appealing sets of these thought-provoking questions about the Ninth Circuit's work:
If the Eighth Amendment prohibits a state death row inmate from exercising his right to knowingly and voluntarily withdraw a federal habeas challenge to a death sentence, does a federal court within the Ninth Circuit have an affirmative obligation when reviewing a habeas challenge to a death sentence to consider all possible arguments for setting aside the sentence, whether or not raised by the inmate? If a state death row inmate becomes a death penalty volunteer before ever filing any federal habeas corpus action -- and as a result no federal habeas corpus action is filed by the inmate -- must the federal courts nevertheless affirmatively determine that no Eighth Amendment violation exists before the state may carry out the death sentence? And, why should this limitation on the right of a potentially-prevailing litigant's ability to withdraw a federal court claim be limited to death row inmates?
My lethal injection piece on SSRN
I have noted before here and here my lethal (injection) contribution to the forthcoming annual Cato Supreme Court Review entitled "Finding Bickel Gold in a Hill of Beans." Never one to stop shamelessly promoting (or to stop worrying about by SSRN download counts), I now want to note that this piece is available here through SSRN. To spice up my promotional efforts, let me here quote the closing paragraph from my piece:
Legislative inaction in the wake of Hill is not only disappointing, but also telling. It has become common sport for politicians and commentators to assail justices and judges for intervening in significant policy debates that seem more the province for legislative action. In Hill, the Court was perhaps attentive to these concerns when it decided to dodge the most contentious issues presented by the ongoing lethal injection litigation. Other branches of government must now demonstrate that they can and will soundly govern in this controversial area now that the Supreme Court has indicated that, for the time being, it will stay out of the way. If other branches don't step up, not only will the model of constitutional adjudication suggested by Bickel and Sunstein suffer a blow, but complaints of judicial activism will ring even more hollow.
Do you lose your right to die if sentenced to death row?
The Ninth Circuit, as I recall, wrote a powerful opinion about a decade ago championing the right to die for certain individuals. However, today in Comer v. Schriro, No. 98-99003 (9th Cir. Sept. 12, 2006) (available here), the Ninth Circuit essentially denies that right to an Arizona death row defendant who is eager to waive all his appeals and be executed.
I discussed Comer here last month when the Ninth Circuit denied the defendant's motion to dismiss his long-pending habeas appeal in order to allow the state of Arizona to proceed with his execution. Today we finally get a ruling on the merits, though I am certain this will not be the last judicial word on this case. (Indeed, I see the big question going forward in Comer as being whether an en banc hearing will come before a possible cert grant.)
Here are the highlights from the start of of the majority opinion in Comer:
We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer's waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State's and Comer's motions to dismiss the appeal and proceed to review the District Court’s denial of Comer's federal habeas petition.
We hold that Comer’s sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.
Here is how Judge Rymer's partial dissent begins:
We need to — and may only — decide one question: whether death row inmate Robert Comer is competent to withdraw his appeal from denial of his petition for writ of habeas corpus and has done so knowingly and voluntarily. All of us agree that the answer to that question is yes, based on what the district court found following a Rees hearing that we ordered. This means that this case is over, because Comer's waiver of further review of his habeas claims leaves no live controversy remaining between Comer and the State of Arizona.
Nevertheless, the majority reverses on the merits and orders the writ to issue. In the doing, it thumbs this court's nose at the United States Supreme Court, which made clear in Gilmore v. Utah, 429 U.S. 1012 (1976), that courts lack jurisdiction to consider unresolved constitutional issues underlying a death sentence when the defendant competently and voluntarily waives his right to pursue an appeal; at the district court, which went all out to conduct a comprehensive evidentiary hearing and issued an extraordinarily detailed and comprehensive, 90-page opinion setting forth its findings and conclusions on the competence and voluntariness of Comer's decision; and at Comer himself, who has repeatedly, competently and intelligently tried for five years to choose what he wants to do.
I dissent from this raw imposition of judicial power.
Missouri still strugging with its execution protocol
As detailed in press reports here and here, a "federal judge in Missouri on Tuesday rejected that state's lethal injection procedure for the third time, saying it was inadequate to ensure that condemned inmates did not suffer unnecessary pain during executions." The judge has given Missouri officials six weeks to try, yet again, to do better.
Persons interested in lethal injection issues, or troubled that a single federal district judge is actively setting regulations for executions, should be sure to check out my article in the forthcoming Cato Supreme Court Review. In the article, which is available here, I argue that Congress and state legislatures, and not individual federal district judges around the country, should be actively working on improving lethal injection protocols.
Follow-up on Third Circuit's big crack ruling
Today's Philadelphia Inquirer has this article discussing the possible impact of the Third Circuit's important ruling in Gunter earlier this week (basics here, commentary here). Here are a few snippets from the article:
In its 29-page ruling issued Monday, the U.S. Court of Appeals for the Third Circuit vacated Gunter's sentence, saying that the U.S. District Court judge erred in believing he was required to adhere to a prison term based on the 100-to-1 [crack/powder] ratio....
Assistant U.S. Attorney Robert A. Zauzmer said yesterday the ruling was important ― and likely to be cited by every defendant in a crack case. "This is a significant opinion which we are studying closely," said Zauzmer, who said prosecutors were considering whether to ask the appeals court to reconsider the decision or appeal to the U.S. Supreme Court.
Assistant Federal Defender David L. McColgin said the two-tiered sentencing structure created a racial disparity because crack is more prevalent in the black community. "This has a great impact in helping to reduce the racial disparity that stems from that ratio," McColgin said.
Latest FSR issue develops model federal guidelines
I am pleased to report that another Federal Sentencing Reporter issue is off to press. This issue (Volume 18, No. 5) is entitled "Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines." The heart of the Issue is an ambitous project engineered by FSR editor Frank Bowman to develop a set of Model Sentencing Guidelines for the federal system.
Though not yet available fully on-line, the Issue's contents can be seen on the cover page here: Download fsr185_cover.pdf. Also, the Federal Sentencing Reporter can be ordered here and past issues can be accessed electronically here.
Frank effectively explains and previews the model guidelines project in his opening commentary to Volume 18, No. 5. This piece is entitled "'Tis a Gift to be Simple: A Model Reform of the Federal Sentencing Guidelines," and it can now be accessed via SSRN at this link.
Other recent FSR issues:
- FSR Issue 18.4: Sentencing at the Supreme Court
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 17.4: The Booker Aftershock
Around the blogosphere
UPDATE: Capital Defense Weekly also has lots of posts and links worth checking out.