« December 3, 2006 - December 9, 2006 | Main | December 17, 2006 - December 23, 2006 »

December 16, 2006

An interesting perspective on the lethal injection mess

I received an intriguing anonymous e-mail today about all the lethal injection happenings.  Seems like states with large death rows have at least one person to whom then can turn; here's the text:

Lethal injection cruel?  Excuse me but this is just balderdash and fuel to gather votes re $ and to keep $ into a prison system that does not work.  All my life and the previous generations of my family have abided in the laws local, federal and the constitution.  Cruel to inject a good feeling drug to a murderer who tortured his victim(s)!

I volunteer to be the exeuctioner nationwaide, just pay me and let me choose the method. Did the murdered choose to "drug" his victim cuz it might be unconstituional. Why treat vicious people any better than they deserve? Please America get over yr endless guilt. Sure you would like to be papmered if it happens to u. That's the reason for CHOICE. Murderers CHOOSE their methods and after the age 5 that is the way it is!!

I volunteer to be burdened with the nations guilt over execution of death role imates. I certainly will be a busy full time employee. Give me an email, I can start Monday and have 45 to 50 executions over and done before Christmas unless of course I could get Holiday pay and double overtime.  BE done with the sorrowful pity for the killings of a death row inmate.

I suspect that this anonymous e-mailer is not the only one who feels this way about all the lethal injection hub-bub.

December 16, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Who will demonstrate lethal injection leadership?

Florida Governor Jeb Bush's Executive Order 06-260 (available here) and Judge Fogel's ruling that California's administration of lethal injection is constitutionally problematic as available here are both fascinating reads.  Here are two quotes that particularly caught my attention:

These quotes are especially telling as one considers that federal litigation over California's lethal injection process has dragged on for nearly a year, and yet Judge Fogel says the case is "in virtually the same position today that it was in ... in February 2006."  Meanwhile, Gov. Bush's Executive Order demands from his Commission on Administration of Lethal Injection a "premilinary report" in roughly 45 days and a "final report" in roughly 75 days.  These reality reinforce points I made in this article about the importance of other branches playing a central role in cleaning up the lethal injection mess.

I stress these points because of the need for states other than Florida and California to be fixing lethal injection protocols.  The DPIC's year-end report details that Texas, Ohio, North Carolina, Oklahoma and Virginia all had active death chambers in 2006.  When will we see "executive leadership" in these states to head off problems that have made this situation so ugly in other states? 

As I have stressed before here and here, these issues of life-and-death are surely of national concern and have the federal court's tied up in knots.  Will we ever see "executive leadership" at the federal level to deal with these issues.   In the words of Governor Bush, isn't more work at the federal level "a matter of humanity, constitutional imperative, and common sense"?

Some recent and related posts:

UPDATE:  How Appealing has all the news coverage on the California and Florida developments here.

December 16, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

December 15, 2006

Major California ruling on lethal injection protocol

Though I think the biggest news on Friday was Governor Jeb Bush's order of a moratorium after Florida's recent botched execution, the blogosphere is mostly buzzing about District Judge Jeremy Fogel's ruling today that the California's application of its lethal injection protocol violates the Eighth Amendment.  How Appealing has all the MSM coverage here, as well as this link to the opinion.  Blog commentary is available at TalkLeft, and at Crime & Consequences, and at Volokh.

Lethal injection guru Professor Debby Denno was kind enough to send me this insightful analysis of Judge Fogel's ruling:

Judge Fogel's decision is bold and incisive.  It is the most comprehensive decision in the country to determine that a state's lethal injection protocol, in its current form, is "intolerable" and unconstitutional under the Eighth Amendment.  The decision goes into impressive detail explaining the reasons for the court's conclusion, as well as all the evidence that the court reviewed to reach it.

To remedy California's intolerably flawed lethal injection process, Judge Fogel put the onus squarely on the Governor's office.  The Governor can meet that challenge in several ways.  The Governor could establish a commission on lethal injection like that ordered by Gov. Bush of Florida.  Or the Governor could order hearings of the type requested by Mr. Morales in his recently filed challenge to the California Department of Corrections' failure to conduct administrative hearings before promulgating the lethal injection procedures.

Whether the Governor's Office can respond to the challenge it has been given and promote the development of a protocol that rectifies the problems that have dogged lethal injection remains to be seen.  I credit Judge Fogel for a well-reasoned decision that takes the design of an execution protocol away from the Department of Corrections and encourages the Governor to institute a meaningful review that can address the currently grievously flawed system.

December 15, 2006 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Governor Jeb Bush orders moratorium after botched execution

In the wake of Wednesday's ugly execution of Angel Diaz,  Florida Governor Jeb Bush issued Executive Order 06-260 (available here) and created the Commission on Administration of Lethal Injection.  The Commission is charged with reviewing the method in which lethal injection protocols are administered.  StandDown Texas Project continues its extraordinary coverage of the extraordinary events in Florida over the last 48 hours. 

If certain federal officials were really committed to a "culture of life," perhaps they might encourage Governor Bush's brother to create a similar Commission at the national level.  As I have noted before, the federal government has delayed its own scheduled executions because of lethal injection worries, and the litigation over lethal injection protocols are playing out in federal courtrooms nationwide.  The Supreme Court's cert grants suggests it views the administration of capital punishment as a matter of national concern.  Will the other federal branches ever follow suit?

Recent related posts:

December 15, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Another dog for the sentencing hall of shame

This AP story provides these details about another notable shaming sanction:

A man who shot his Great Dane in the head is allowed to reduce his sentence by dressing up as a dog. Municipal Judge Michael Cicconetti, known for his creative sentences for low-level crimes, offered to cut Robert M. Clark's sentence Thursday to 10 days in jail if he wears a Safety Pup costume and visits the five elementary schools in Painesville, about 30 miles northeast of Cleveland. The mascot educates children about issues ranging from traffic safety to drug abuse.

Clark, 38, who lives outside the city, pleaded no contest to an animal cruelty charge and was sentenced to 180 days in jail for shooting his dog Bill.  Cicconetti suspended all but 30 days of Clark's sentence if he pays the Lake County Human Society for the dog's veterinarian bills. Then the judge offered to cut an additional 20 days if Clark dresses up as Safety Pup.

He was arrested July 3 after neighbors reported hearing the dog's cries and police found the injured animal. The humane society took the dog to an emergency veterinary clinic, but he suffered brain damage and had to be euthanized, the group said.

Clark is appealing the sentence, court officials said Friday.

I wonder if PETA or other animal groups might need counsel for an amicus filing in Clark's appeal.  By my lights, Clark ought to be grateful he got some sentencing options.

Some recent related shaming posts:

December 15, 2006 in Criminal Sentences Alternatives | Permalink | Comments (3) | TrackBack

More Kerr on Carrington and mandate recall discretion

I am very pleased to see that Orin Kerr here has jumped back into the debate over the Ninth Circuit panel's Carrington ruling, and his long post sharpens the issue effectively while also spotlighting key aspects of the Supreme Court's discussion of mandate recalls in Calderon v. Thompson, 523 U.S. 538 (1998) (available here).   Orin views Carrington "like a replay of Thompson," but I think Carrington is very different for some reasons I have already discussed here.

To begin, Thompson says "courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion."  Later on, after a review of the bizarre procedural history of the case, the ruling stresses that "Thompson's is not an ordinary case ... because he seeks relief from a criminal judgment entered in state court."  The ruling heavily stresses both federalism and habeas concerns in its discussion of finality, and yet still suggests that the Ninth Circuit's mandate recall might still have been proper to "avoid a miscarriage of justice" concerning the legality of the applicable sentence. 

Moreover, the dissent in Thompson (per Justice Souter garnering four votes) suggests the general principle of giving "a high degree of deference to the court exercising discretionary authority" to recall its mandate; it also suggests "that deference may be accorded to any reasonable selection of factors as relevant to the exercise of a court's discretion."  I do not think the majority in Thompson disputed these basic principles about reviewing a circuit's decision to recall its mandate, they just viewed the Ninth Circuit exercise of its discretion in Thompson as abusive.

Once again, I certainly can see why the full Ninth Circuit en banc might not agree with the Carrington panel's assessment of "extraordinary circumstances."  And I suspect the Justice Department will seek (and secure?) en banc review.   But, as Orin notes, the Justice Department apparently did not even appeal Carrington's precursor ruling from the Ninth Circuit.  Perhaps this is because DOJ properly feels it has more pressing tasks than trying every means to preserve a possibly unconstitutional sentence.

Related posts:

UPDATE:  A helpful reader suggested I clarify the reality that the huge Ninth Circuit "doesn't sit en banc. Instead, they create 11-judge panels. Circuit Rule 35-3."

A CORRECTION: Another reader has reminded me that the Ninth Circuit this year changed to 15-judge panels for its en banc hearings.

December 15, 2006 in Apprendi / Blakely Retroactivity | Permalink | Comments (2) | TrackBack

Distinguishing finality interests between convictions and sentences

As I await more responses to why the Ninth Circuit's Carrington ruling should be troubling (query here), let me spotlight key distinctions between finality interests regarding convictions (especially state convictions) and regarding sentences (especially federal sentences).  These distinctions are, in my view, critical to a complete understanding of the dynamics of retroactivity doctrines.

Teague, the 1989 SCOTUS case defining modern retroactivity doctrine, was about whether and when a new federal constitutional rule ought to disrupt final state convictions.  Structural concerns about finality are at their zenith here or else every long-ago convicted state defendant (even those who finished their sentence decades before) might run to federal court seeking to have a long-ago conviction wiped off the books.

Carrington, in sharp contrast, concerns whether a new federal constitutional rule ought to allow reconsideration of a federal sentence still being served.  One might argue that there are no finality concerns because the on-going sentence under challenge is not final.   Moreover, the result of the challenge won't wipe out a long-ago conviction, it will only (perhaps) alter an on-going sentence.

Some recent capital rulings help put the conviction/sentencing distinction in sharp relief.  After Atkins and Roper declared certain defendants ineligible for the death penalty, few asserted that we should still execute all the now-ineligible death row inmates that were sentenced to death before these rulings.  If "sentence finality" is so important, we should still be execute all the mentally retarded and juvenile capital defendants sentenced before Atkins and Roper.

December 15, 2006 in Apprendi / Blakely Retroactivity | Permalink | Comments (17) | TrackBack

Recapping the capital year

The Death Penalty Information Center has now released its 12th annual year-end report, available at this link.  As DPIC explains here:

[The report] reveals a broad decline in the use of the death penalty in the U.S. based on a number of factors: the public now favors life without parole over the death penalty; the number of executions has dropped to the fewest in a decade, in part because of challenges to the lethal injection process; and the annual number of death sentences is now at a 30-year low. The report notes that various states have put a hold on all executions, while others are reviewing problems in the capital punishment system. The report cites a number of new developments, including the challenges posed by the severe mental illness of many on death row, and quotes a series of law enforcement personnel, editorials, and public officials voicing serious concerns about the death penalty.

Articles today in the New York Times and Los Angeles Times discuss DPIC's findings and get reactions from the usual suspects.

December 15, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

December 14, 2006

What wrong with equitable Booker retroactivity in the Ninth Circuit?

Last year, after a Ninth Circuit panel in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), recalled its mandate to allow resentencing in a case that became final before Booker, I suggested that the court was essentially adopting "a policy of equitable Booker retroactivity."  And now, with the fascinating decision in Carrington v. US, No. 03-30263 (9th Cir. Dec. 13, 2006) (available here), that policy takes on new and broader life in the Ninth Circuit.

Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too.  But why?  Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful. 

What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?

Of course, finality is an important value, but this value is always balanced against other values.  If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?   

This issue would be a lot different if the Ninth Circuit were overturning long-ago state convictions based on its own questionable view of constitutional rules.  But, in Carrington, the Ninth Circuit is merely allowing reconsideration of on-going federal sentences based on the Supreme Court's constitutional rules.  Perhaps the Ninth Circuit en banc will seek to balance federal sentencing fairness and finality differently than the Carrington panel majority; but I do not see why the Supreme Court should be eagerly interested in keeping a federal district court from having a chance to reconsider an unconstitutional (and still on-going) federal sentence.

UPDATE: I fill out my perspective on Carrington in this post and in the comments, but I want to further address one commentor's concern that the Ninth Circuit has created a doctrine that unfairly turns on whether a "defendant [was] lucky enough to draw a vocal opponent of the Guidelines."  I share this worry, though it was not often expressed as a critique when this was the standard being used by most circuits when addressing Booker plain error.  In the 1st, 5th, 8th, 10th and 11th Circuits, defendants still on direct appeal would not get a chance to be resentenced right after Booker unless the district judge had been "a vocal opponent of the Guidelines."  (And, of course, the Supreme Court denied cert on all those defendants objecting to this rule.)

Why are folks worried about unequal justice when it might help some defendants, but not when it hurts them?  To paraphrase a famous quote from Justice Brennan, I wonder why we fear too much justice.

December 14, 2006 in Apprendi / Blakely Retroactivity | Permalink | Comments (10) | TrackBack

Isn't it finally time for Congress to do something about lethal injection problems?

Eight months ago in this post, I urged Congress to consider whether and how it could do something to address the lethal injection mess unfolding in state and federal courts.  (I expanded upon these points in this article in the annual Cato Supreme Court Review).   As recently detailed here and here, the mess continues to grow all over the country, and last night's botched Florida execution of Angel Diaz (basics here) is the latest disturbing development.

StandDown Texas Project & ODPI have great coverage of the Florida news over the last 24 hours.  In addition, a helpful reader has sent me this link to an Angel Diaz blog.  This post has a timeline of the execution with these chilling entries:

6:00 p.m.: The curtain opens.  Angel Diaz gives a short last statement claiming he is innocent.

6:02: Diaz begins grimacing and seems to speak, though a microphone is off and none of the witnesses can hear him.

6:06: Diaz squints his eyes and juts his chin as if in pain.  He continues this for several minutes.

6:12: Diaz's head slips to the right.  He coughs several times and appears to shudder.

6:15: His mouth has appeared to widen and his breathing is deep.

6:18: A member of the execution team hands a phone to another member of the team. What they say on the phone is not revealed.  Diaz's mouth and chin move as he breathes deeply.

6:24: Diaz's mouth and chin slowly stop moving.  His eyes appear fixed.

6:26: His body suddenly jolts.  His eyes appear to be opening more widely.  Again, a member of the execution team gets on the phone.

6:34: A doctor wearing a blue hood that covers his face enters the execution chamber and checks Diaz's vital signs.  The doctor returns a minute later, checks the vital signs again and nods to a member of the execution team.

6:36: A member of the execution team announces that the sentence of Angel Diaz has been carried out.  The curtain closes.

I am never a big fan of federal involvement in state matters.  But, recalling Congress's active role in last year's hub-bub over Terry Schiavo, I continue to wonder where we can find the vocal "culture of life" advocates when we need them?

UPDATE:  How Appealing here has collected lots of Friday morning news coverage of the problems with the Diaz execution.  Also, ODPI has a great round-up of latest developments.

December 14, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Proof the guidelines are reasonable ... from David Lat

Over at Above the Law here, David Lat reports on a discussion between Justice Breyer and Professor Charles Fried at Georgetown Law.   Here's the best part:

The sentencing guidelines are discussed.... Professor Fried points this out: "I have very strong views on this [issue].  The operative sections of the federal sentencing guidelines were written on my dining room table -- by Justice Breyer."

Well, I think that should certainly confirm all the assertions by the Justice Department and judges that the guidelines are always reasonable.  I am sure Justice Scalia will be convinced.

I cannot help but think of the scene of Breyer writing guidelines in Fried's house in terms of that great 1970s Recees' television commercials:

FRIED: You got active liberty in my contract as promise!

BREYER: You got contract as promise in my active liberty!

FRIED & BREYER: Wow, two great tastes that taste great together!

December 14, 2006 in Federal Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Shouldn't express statutory text trump perceived policy?

I have now read the interesting opinions concurring and dissenting from the Eleventh Circuit's decision not to hear en banc a crack sentence ruling (available at this link).  Both opinions have lots of good insights, though I am troubled by Judge Black's complete failure (like so many other appellate rulings discussed here and here) to address the parsimony provision of section 3553(a).  (Notably, Judge Barkett stresses the statutory text of 3553(a) in her contrary opinion.)

Judge Black's opinion repeated assails what she perceives to be a "categorical rejection of congressional sentencing policy."  But her opinion, like so many others from circuits since Booker, categorically ignores the express statutory text of 3553(a).  My sense is that even proponents of "active liberty" interpretation would urge judges to attend first to express statutory text before making judgments based on perceived policy.

Tellingly, we are already seeing blogosphere complaints here and here about the Ninth Circuit's mandate recall yesterday that perhaps put policy concerns ahead of the letter of the law.  Will we soon see similar complaints about Judge Black's work from the same quarters?

Also, even if after Booker it is an error for a judge to "categorically reject" the perceived congressional policy, shouldn't such an error be considered harmless on review as long as the sentence imposed is still "not unreasonable"?

December 14, 2006 in Booker in the Circuits | Permalink | Comments (10) | TrackBack

This is your brain, ... this is your brain after Roper

This newspaper article discusses new brain research to ask "Should teenage brain be a factor in sentencing?" Here are snippets from an interesting article:

Scientists are now seeing beyond the skull into an emerging debate over whether the differences between the brain of an adolescent and an adult should have different implications for each in the criminal justice system....  "We are interested in the broader question of whether juveniles should be punished to the same extent as adults who have committed comparable crimes," said psychologist Laurence Steinberg in his 2003 article, "Less Guilty by Reason of Adolescence."

Steinberg and others advocate that [an important] discrepancy in brain function should be taken into consideration when deciding to seek juvenile or adult sanctions. Childhood abuse and neglect further hampers normal brain development, researchers say.... 

A U.S. Supreme Court decision last year now prohibits sentencing a juvenile to death, a decision that took into consideration the incomplete brain development in juveniles. Court observers say that decision could have striking implications in cases where adult sanctions are being sought for juvenile offenders.

No one is saying, however, that an immature brain is an excuse for committing crime โ€” nor does it exonerate a juvenile from the consequences of breaking the law. It "does not excuse violent criminal behavior, but it's an important factor for courts to consider," according to a statement from the American Psychiatric Association.

Some related items:

December 14, 2006 in Offender Characteristics | Permalink | Comments (2) | TrackBack

December 13, 2006

An ugly (and fitting?) end to the capital year

The biggest death penalty story of 2006 has been the ups and downs of all the lethal injection litigation (which the Supreme Court fueled through its work in Hill, as I explain here).  Thus, it is perhaps fitting that the final execution of the year, which took place tonight in Florida, apparently involved lethal injection problems.  An AP report here provides these details:

Angel Nieves Diaz, who was convicted of murdering a Miami topless bar manager 27 years ago, was executed by lethal injection Wednesday, appearing to grimace before dying 34 minutes after receiving the first dose of chemicals.  The manner of his death will likely rekindle the argument that Florida's method of execution constitutes cruel and unusual punishment.

Diaz, 55, was pronounced dead at 6:36 p.m.... He appeared to move for 24 minutes after the first injection. His eyes were open, his mouth opened and closed and his chest rose and fell.

Already all over the story are Capital Defense Weekly and StandDown Texas Project.

Some recent related posts about lethal injection issues:

December 13, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Dr. Death gets a new lease on life

As detailed in this AP story, after 8+ years in prison "a frail Dr. Jack Kevorkian will be paroled in June with a promise that he won't assist in any more suicides, a prison spokesman said Wednesday."  Here's the basics for those who may not recall Dr. Death's exploits:

Kevorkian, once the nation's most vocal advocate of assisted suicide for the terminally ill, is serving a 10- to 25-year sentence for second-degree murder in the 1998 poisoning of Thomas Youk, 52, Oakland County man with Lou Gehrig's disease. Michigan banned assisted suicide in 1998.

Youk's death was videotaped and shown on CBS' "60 Minutes."  Kevorkian, who claimed to have assisted in at least 130 deaths in the 1990s, called it a mercy killing.  Mayer Morganroth, Kevorkian's attorney, said this summer that Kevorkian, now 78, was suffering from hepatitis C and diabetes, that his weight had dropped to 113 pounds and that he had less than a year to live....

Kevorkian has always been eligible for parole on June 1, 2007, and will now be released on that date, Lalonde said....  If Kevorkian is released on June 1, he will have spent close to 3,000 days in prison since being sentenced in April 1999.  He has promised he would not assist in a suicide if he was released from prison.

December 13, 2006 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

What one misses during faculty meetings

I have just emerged from a quite engaging 3+ hour faculty meeting.  While I was off-line, three very notable circuit rulings came to be.  Howard Bashman has all the basics, and I hope he won't mind my cut-and-paste efforts from his reports (with links to his coverage):

When I recover from my meetings, I hope to find time to read and comment on these latter two opinions.

December 13, 2006 | Permalink | Comments (5) | TrackBack

Seventh Circuit upholds another large upward variance

Judge Posner yet again talks up district judge discretion after Booker through his opinion for the Seventh Circuit in US v. Johnson, No. 06-2156 (7th Cir. Dec. 13, 2006) (available here).  Apparently (though the opinion does not clearly state the guideline range) the defendant in Johnson was facing a guideline sentence of 12-18 months, but the district judge decided to impose a sentence of 77 months.  Clearly put off by the defendant's arguments on appeal, Judge Posner concludes the opinion affirming Johnson's sentence by stating that his "crimes would have justified on grounds of both retribution and deterrence an even longer sentence than he received. The statutory maximum of 108 months (9 years) would have been reasonable. The judge displayed lenity, not the reverse as Johnson argues."

On the facts, Judge Posner's opinion does not trouble me.  What does trouble me is that, after a case like Johnson, Judge Posner and others are still inclined to call the guidelines "presumptively reasonable."  If 108 months would have been reasonable for the criminal conduct in Johnson, why did the vaunted guidelines advise a sentence of only 12-18 months? 

If the district judge had imposed a sentence of only 12 months in Johnson, would Judge Posner have found that sentence reasonable had the government appealed?  Does reasonableness in a case like Johnson really extend from 1 to 9 years imprisoment?  If so, is post-Booker reasonableness review, which is supposedly to reduce disparities, any real substantive review at all?

December 13, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

A Chinese shaming stirs controversy and debate

China_shamingA helpful reader pointed me to this fascinating article in today's New York Times regarding the recent shaming of prostitutes in Shenzhen, China. Here are snippets:

For people who saw the event on television earlier this month, the scene was like a chilling blast from a past that is 30 years distant: social outcasts and supposed criminals โ€” in this case 100 or so prostitutes and a few pimps โ€” paraded in front of a jeering crowd, their names revealed, and then driven away to jail without trial.

The act of public shaming was intended as the first step in a two-month campaign by the authorities in the southern city of Shenzhen to crack down on prostitution.  But the event has prompted an angry nationwide backlash, with many people making common cause with the prostitutes over the violation of their human rights and expressing outrage in one online forum after another....

That this event took place in Shenzhen, the birthplace of China's economic reforms and one of its richest and most open cities, seems to have added to its shock value. "Even people who commit crimes deserve dignity," one person wrote on the popular Internet forum 163.com....  While voices condemning the behavior of the city and its police force were the most energetic, some spoke up in support of the crackdown. "Perhaps you've never been to Shenzhen, or you've been there and you don't have a thorough understanding of the place," wrote one contributor to an Internet forum....

Instead of jumping on the bandwagon against prostitution, which is illegal but omnipresent in China, many commentators aimed their criticisms at the government for its hypocrisy in not acting against the rich underworld that operates the sex trade or even arresting the prostitutes' customers....

Whatever one might think about the specifics of this punishment in China, it is notable that a public shaming sanction has prompted an national and international debate about Chinese crime and punishment.  I doubt that the Chinese (or NY Times) buzz would have been as great if all these defendants were simply locked up or fined.

Some recent posts on shaming sentences:

December 13, 2006 in Criminal Sentences Alternatives | Permalink | Comments (4) | TrackBack

A sign of the sentencing times

For more evidence that sentencing for crime in the suites is catching up with sentencing for crime in the streets, today's New York Law Journal has this article entitled "Smoothing the Path From Corporate Life to Prison Life."  Here are snippets from its introduction:

The lengthy sentence imposed on former Enron CEO Jeffrey Skilling recently is a stark reminder that the U.S. Sentencing Guidelines have made federal prison a reality for many first-time offenders.  In fact, one third of all federal inmates are first-time, nonviolent offenders. Moreover, because of the length of their sentences, many of these individuals, like Skilling and WorldCom founder Bernie Ebbers, are denied placement in camp facilities.

But whether an inmate is assigned to a camp without wires and fences or a locked two-person cell, few would disagree that prison life is a profoundly dehumanizing experience. How then can a prospective inmate obtain the most favorable placement in federal prison?  Some hire sentencing consultants, the best of whom -- if hired early enough in the case -- can position and prepare their client for the least onerous experience the Bureau of Prisons (BOP) offers.

December 13, 2006 in Race, Class, and Gender | Permalink | Comments (1) | TrackBack

December 12, 2006

Tenth Circuit wraps up big day in the circuits

Tuesday was quite the busy sentencing day in the Circuits.  In addition to previously noted rulings from the Fifth Circuit and the Eighth Circuit, there were also significant sentencing decisions from the Third Circuit (on restitution awards), from the Sixth Circuit (on reasonableness review), and from the Seventh Circuit (on guideline calculations).  But, as noted here at How Appealing, the best read of the day might come from the Tenth Circuit's split decision in US vs. Begay, No. 05-2253 (10th Cir. Dec. 12, 2006) (available here) concerning whether drunk driving convictions should qualify as 'violent felonies' under the Armed Career Criminal Act.

Begay includes a nice little Booker section that clarifies that the guidelines "impose no rigid boundaries on what sentences are permissible."  But the heart of the opinion deals with statutory construction and congressional intent, and the start of Judge McConnell's dissent spotlights the central issue:

The majority holds that serial drunk driving is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. ยง 924(e).  As a result, it finds that the defendant was properly sentenced to over fifteen years in prison for a crime that otherwise would entail a Guidelines range of 41-51 months. I respectfully dissent.

December 12, 2006 in Offender Characteristics | Permalink | Comments (2) | TrackBack