December 20, 2006
Another editorial urging release of Genarlow Wilson
Following up yesterday's editorial in the Atlanta Journal-Constitution here which said "legal system must stop offering Genarlow Wilson condolences and start giving him justice," today the Macon Telegraph has this editorial which concludes with this call for action:
Genarlow Wilson should not be in prison; what consenting teenagers do sexually should not send them to prison for 10 years. The Legislature, and the people of Georgia, can help right that wrong.
Meanwhile, posts at Legal Fiction and The Debate Link spotlight why concerns about the impact of race in this case should not be quickly discounted. They point to this article in Atlanta Magazine, which notes two white defendants from the same jurisdiction that got a month or less imprisonment for sexual misdeeds more serious than what got Genarlow Wilson 10 years in prison.
Related posts on the Genarlow Wilson case:
- Why isn't the severe Georgia sentence constitutionally problematic?
- Time for a common-person approach to the Eighth Amendment
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
So much lethal injection buzzing
Thanks in part to Maryland now also jumping into the lethal injection mess (as first noted here), there is media buzz all over about lethal injection protocols. As he does so well, Howard Bashman has collected a lot of the newspaper coverage about lethal injection developments in Maryland and in California.
Also, last night the PBS NewsHour had a debate on lethal injection, and the transcript of the program can be found here. Meanwhile, Jurist has collected a lot of the latest news and links here, and DPIC provides a "closer look" at the California developments here.
For some quick reflections on what this all means, Andrew Cohen at the Washington Post has this commentary on all the happenings. And, of course, lots of blogs are buzzing about lethal inejction, too.
December 19, 2006
More on the pros and cons of GPS tracking
Salon.com has this interesting new article entitled, "Tracking sex offenders with GPS." Here are is how it begins:
It's not every Election Day that voters can cast a ballot to banish thousands of people to the hinterlands, but Californians did just that last month, and eagerly so. Seventy percent voted to ban registered sex offenders from living within 2,000 feet of a school or park, effectively outlawing them from many residential areas in the state. Known as "Jessica's Law," after a 9-year-old Florida girl who was kidnapped from her home, sexually abused and murdered by a registered sex offender, the California proposition swept in a myriad of punitive changes. The crackdown on residency applies to all registered sex offenders, including those convicted of a misdemeanor, such as indecent exposure.
Most notably, felony sex offenders will now be tracked 24 hours a day, seven days a week, via GPS (global positioning system), even after they're out of prison and off parole. The state senator and advocates behind the proposition call the GPS devices a necessary and vital tool to control sexual criminals. The California measure makes no distinction between habitual offenders at high risk of striking again, worth having their every move tracked electronically once they're out of prison, and the felons who have served their time and present no apparent threat to public safety in the eyes of the court. Just put a GPS device on all of them, voters said, forever....
But as states rush to impose harsher penalties on sex criminals, critics -- legal and criminal analysts, and even some victims of sex crimes themselves -- state that the punitive new laws violate civil liberties and are ineffective. And while a technological fix like fastening GPS devices to former felons may make the public feel safer, it will do little to protect the children who are the victims of most sex crimes.
Some recent related posts:
All the amazing top-side briefs in Claiborne and Rita
As discussed here and here, the first sets of briefs were filed yesterday in Claiborne and Rita, the SCOTUS Booker reasonableness cases to be argued in February. I am now pleased to report that the New York Council of Defense Lawyers has assembled, on this wonderful webpage, lots of background on the two cases, as well as links and summaries of all the briefs filed so far.
There is a lot of amazing information about the realities of federal sentencing on the NYCDL page — perhaps too much information to completely take in. Still, I strongly urge everyone involved with or interested in the federal sentencing system — prosecutors, defense attorneys, probation officers, district judges, circuit judges, law clerks, members/staffers of the USSC and Congress — to read as much as they can from the NYCDL page. There is SOOOO much information and insight in the briefs, and on-going federal sentencing cases and discussions should be informed by all the work therein.
In fact, I am right now heading off to a coffee house to read some more of these briefs.
The nuance in my provocation
Let me just add a bit more nuance to ensure my points are understood:
1. I am not accusing anyone of intentional racism or suggesting anyone made a consciously racist decision in this case. Rather, my chief point was to get people thinking about whether events would have played out the same way had Genarlow Wilson been white. Consider the contrast to Mark Foley. Arguably, his predatory acts were worse given his position of power and his purported maturity. Did anyone even suggest 10 years in prison for him? Why not?
2. I do not mean in any way to suggest that our country should not criminalize some consensual behaviors. Rather, I just continue to be troubled that libertarians and others who emphasize the importance of freedom in other areas (e.g., freedom of speech) do not get aghast when the state locks citizens up in small cages for extraordinarily long periods of time when their behavior does not clearly justify locking them up this way.
Big death penalty doings in Maryland
As detailed in two posts over at ODPI here and here, the nationwide death penalty buzz has gotten especially loud in Maryland. One post suggests that Maryland's Governor-elect Martin O'Malley might be prepared to try to move the state away from capital punishment. And, as if on cue, today the Maryland Court of Appeals (the state's highest court) in a 171-page opinion in Evans v. Maryland is (available here)orders state prison officials to conduct a review of the Maryland lethal-injection protocol in a forum open to public input.
Here is the key part of the ruling in Evans:
We shall find merit in the second aspect of Evans's complaint in No . 122, but no merit in any of his other complaints. Evans is not entitled to a new sentencing proceeding or to a new trial, but that part of the DOC protocol that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted as a regulation in accordance with the Administrative Procedure A ct, or (2) the Legislature exempts it from the requirements of that Act.
Provocative questions about Georgia sentencing injustice
Thanks to How Appealing, I see that both the New York Times here and the Atlanta Journal-Constitution here are discussing Genarlow Wilson (pictured here), the young Georgia man who was "sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year's Eve party" when he was 17 years old. The Times article details that Mr. Wilson is an "honor student and the first homecoming king at Douglas County High School" and that he has already served nearly two years in prison. The Atlanta Journal-Constitution rightly says in an editorial that the "legal system must stop offering Genarlow Wilson condolences and start giving him justice."
Upon learning more about this case, I cannot help but ask a number of provocative questions:
1. Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?
2. Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?
3. Had Wilson committed his offense in other state, could he have even been sentenced to the 2 years he has already served, let alone received the 10-year prison term he is still serving?
4. Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?
5. Can anyone make a reasoned argument for keeping this honor student in prison any longer?
Some prior posts posing additional questions:
- Why isn't the severe Georgia sentence constitutionally problematic?
- A Georgia case calling for executive clemency?
- Time for a common-person approach to the Eighth Amendment
December 18, 2006
My friendly efforts in Claiborne and Rita
As noted here, the first sets of briefs were filed in Claiborne and Rita, the SCOTUS Booker reasonableness cases to be argues in February. I had the good fortune to be involved in some amicus briefing; here are the primary fruits of my efforts:
1. Working with a terrific set of lawyers, I helped develop a pair of briefs in support of petitioners on behalf of the New York Council of Defense Lawyers. As detailed in this webpage (which has links to the briefs in Claiborne here and Rita here), as part of the amicus effort, "NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases," which documented "that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government."
2. Working from some of my scholarly writings, I helped put together a joint brief for a group of law professors who study sentencing reform. This brief is available at this link, and here is how it begins (along with some great quotes from Judge Marvin Frankel and Professor Norval Morris):
A set of long-standing federal sentencing principles should inform the Court's resolution of these cases. These are principles that find expression in the writings of Judge Marvin Frankel and Professor Norval Morris, two leading advocates of reform proposals that resulted in the Sentencing Reform Act of 1984. These are principles that animate provisions of the Sentencing Reform Act of 1984 and the PROTECT Act of 2003, especially the detailed sentencing instructions Congress has set forth in 18 U.S.C. § 3553. These are principles that have been emphasized by this Court in rulings from Mistretta v. United States, 488 U.S. 361 (1989), to Koon v. United States, 518 U.S. 81 (1996), to United States v. Booker, 543 U.S. 220 (2005).
These principles recognize the critical importance of judicial sentencing discretion and suggest the touchstone of federal sentencing should be district courts exercising reasoned judgment in response to case-specific factors and broader norms established by the Constitution and Congress.
Why isn't the severe Georgia sentence constitutionally problematic?
Eugene Volokh's extended riff here on the extreme consensual oral sex sentence for a teenager in Georgia (discussed here and with comments ablaze) includes Eugene's assertion that he doesn't "think there's any Cruel and Unusual Punishment Clause problem here." I have been reflecting on this issue after this post, and I have come to wonder what arguments could be made, given the facts we know, that the Georgia teen's fate is not "cruel and unusual."
Again, the key facts are that Georgia Legislature has now said that the defendant's type of behavior should be treated as a misdemeanor, and many studies suggest that the defendant's sexual behavior is quite common among teenagers. Yet prosecutions for consensual oral sex between teenagers is extremely rare, and I doubt anyone in recent decades has every received more than a year in prison for such an offense, let alone ten years. Why don't these facts alone make out at least a plausible case of the infliction of a "cruel and unusual punishment"?
- A Georgia case calling for executive clemency?
- Time for a common-person approach to the Eighth Amendment
Top-side briefing begins in Claiborne and Rita
I am pleased (and overwhelmed) that the first sets of briefs have now been filed in Claiborne and Rita, the SCOTUS reasonableness cases now set to be argued on February 20. Specifically, counsel for the defendants and their amici filed briefs today, and my e-mail in-box is overflowing.
In this post when cert was granted, I placed the early over/under for amicus briefs at 10. Looks like the over might win. Here's what I know has been filed (in no particular order) in addition to the two petitioner briefs:
- A joint brief from the NACDL
- Two briefs (one for each case) from the NYCDL (which I help with some)
- A joint brief from the FPCD and the NAFD
- A joint brief from FAAM
- A Claiborne brief from The Sentencing Project and the ACLU
- A Rita brief on behalf of two veterans' groups
- A joint brief from the WLF
Also, I know there are at least two law professor briefs in the mix. I was involved in one, which was technically filed on behalf of none of the parties, and I know casebook co-authors Marc Miller and Ron Wright were working up another.
I hope that someone soon will be creating a special page with all these briefs (and the parties briefs) in one place so I can avoid having to post them all here. There is lots and lots of important reading in these works, and I will be posting details and copies as soon as a I figure out an orderly way to do so.
UPDATE: The New York Council of Defense Lawyers has created this helpful webpage spotlighting its amicus work and providing links to the other briefs filed today. And in this post I discuss my chief amicus efforts.
Great blogosphere coverage of lethal injection mess
Not surprisingly, because the death penalty is involved, there is a boat load of blogosphere coverage of all the on-going lethal injection mess. I cannot keep up with it all, so I'll just refer readers to two very different resources covering the issues: Compare Crime & Consequences with Ohio Death Penalty Information.
UPDATE: From this TalkLeft post, I discovered this Lethal Injection blog. It appears to provide an anti-death penalty perspective. I wonder if a pro-DP version is out there in the blogosphere somewhere, too.
Time for a common-person approach to the Eighth Amendment
It's sentencing day over at The Volokh Conspiracy: Eugene Volokh riffs here on the extreme sodomy sentence in Georgia (discussed here and with comments ablaze); Orin Kerr riffs here on Judge Fogel's ruling essentially declaring California's administration of lethal injection unconstitutional (discussed here and here). Both posts make great reads, and they spotlight the ugliness of modern terribly Eighth Amendment doctrine.
The Eighth Amendment is one of the very hardest of constitutional provisions to operationalize no matter what interpretive theory one embraces. Justice Scalia's purported originalism often breaks down when asked about severe physical punishments common at the Founding; but fans of a living Constitution like Justices Brennan and Marshall seemed most like philosopher kings when when opining on the limits imposed by the Eighth Amendment.
Here is the full text of the Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
I am not sure I have a fully evolved and sound-tight approach to this provision. But I think a common-person test ought to be of some use. And I have to think common persons would surely view imprisoning a Georgia teenager for 10 years for consensual oral sex as far more "cruel and unusual" than imperfectly administering a lethal injection to a condemned murderer in California.
Sadly, common persons do not interpret the Eighth Amendment, lawyers and judges do. Today that means the Georgia teenager must spend a decade behind bars, while California murderers get an indefinite lease on life (to be served on death row). Maybe my old law-school classmate Adrian Vermeule is on to something when advocating for lay Justices.
Ninth Circuit still cleaning up the Booker pipeline
Time for the Booker maniac question of the day. What's more frightening: (A) that the Ninth Circuit is still struggling with Booker pipeline issues as evidenced by its ruling today in US v. Combs, No. 05-30486 (9th Cir. Dec. 18, 2006) (available here), or (B) that a whole new set of pipeline issues (and perhaps also some old ones) may be the fate of lower courts after SCOTUS decides Claiborne and Rita?
However they answer this question, true Booker maniacs will want to check out Combs. Judge Kozinski finishes his majority opinion this way: "Because the district judge failed to modify his original sentence in light of these new objections, he acted precisely as Ameline contemplated and we must affirm." Judge Berzon, dissenting, begins her opinion this way: "The majority's peculiar interpretation of the word 'reasonableness' not only defies its common usage in the English language, but more importantly, runs contrary to what this court decided, sitting en banc, in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc)."
Eighth Circuit reverses two more below-guideline sentences
Today brings more proof, in contrast to my speculation in this post, that the Supreme Court's recent cert grant in Claiborne is not going to slow down the Eighth Circuit in reversing downward variances granted by its district courts. In both US v. Kane, No. 06-1103 (8th Cir. Dec. 18, 2006) (available here), and US v. Morales-Uribe, No. 06-1855 (8th Cir. Dec. 18, 2006) (available here), the Eighth Circuit is again reversing a downward variance from the guidelines thought appropriate by the district judge who actually had the defendant before the court.
Kane and Morales-Uribe involve quite different facts, both as to the crimes involved and the bases that a downward variance was granted. Also, a completely different set of active judges are on the panel in each case. But both cases demonstrate the circuits' continued willingness to second-guess the sentencing judgments of district courts and to rely very heavily on the guidelines when engaging in such second-guessing.
A Georgia case calling for executive clemency?
How Appealing here spotlights an extraordinary Georgia case. As explained in this concurrence from the Georgia Supreme Court's decision not to reconsider the case, the defendant "was convicted of aggravated child molestation based upon an act of oral sodomy performed on him by victim T.C., which was documented on videotape and seems to show that the victim's participation in the act was voluntary." The defendant was 17 at the time of the offense, the victim was 15; under "the aggravated child molestation statute then in effect, Wilson was sentenced to ten years imprisonment without possibility of parole." Ten years ... yikes! (For a little context, consider that 10 years in prison is nearly what Enron bad guy Andrew Fastow received.)
The Georgia Legislature thereafter amended the applicable statute to provide that "an act of sodomy is only a misdemeanor when the victim is between 13 and 16 years of age and the convicted person is 18 years of age or younger and is no more than four years older than the victim." But, the Georgia Legislature "expressly chose not to allow the provisions of the new amendments to affect persons convicted under the previous version of the statute," and thus the Georgia Supreme Court decided the defendant was "not entitled to the misdemeanor treatment now accorded to identical behavior under" the revised statute.
Som the Georgia Legislature has now said that the defendant's type of behavior should be treated as a misdemeanor, and many studies suggest that the defendant's behavior is quite common among teenagers even though prosecutions are rare. Nevertheless, this defendant is still stuck serving 10 years in prison. Certainly not my idea of "getting lucky," but rather a case screaming out for the exercise of executive clemency.
I have a hard time thinking of any reasons why the defendant should remain in prison. Can readers perhaps help me understand why this case does not involve a far greater injustice than all the hub-bub over lethal injection protocols? [This paragraph has been tweaked for clarity.]
"I'm dreaming of a jailed Christmas..."
This story in today's Columbus Dispatch provides a holiday twist on an alternative sentencing idea:
The judge calls it a "Holbrook holiday," but for 23 people convicted in his court, it means spending Christmas in jail. As part of their plea agreements to avoid prison terms, the 23 men and women agreed to spend four days including Christmas in the Franklin County jail every year they are on probation.
The idea is to give them a taste of prison to keep them from going there, said Franklin County Common Pleas Court Judge Michael J. Holbrook. If they play by the rules, they might not have to go back for a second, third, fourth or fifth Christmas, said Brian Stein, a senior probation officer. If they break the rules, they could go to prison. "He gives us the discretion to decide," Stein said. "It’s an alternative to prison, so I’ve never had anybody really complain."
Holbrook, who was elected in 2004, said he got the idea from a federal prison program in which convicts on probation serve national holidays in lockup. "I wanted to send a message to those who were borderline and may have a chance to go to prison. If they’re not Christian in nature, I can use some other day, like their birthday," Holbrook said. "It’s a reminder of where they could be going, if nothing else."
His sentencing program has been successful. Only two of 15 people failed to appear last year, and five of those who spent last Christmas behind bars have earned a pass this year.
Two states turning to overdue reforms
Though death penalty developments get most of the headlines, non-capital sentencing has the broadest impact on criminal justice systems. Thus, it is heartening to see new that both Alabama and California are getting serious about long needed reforms:
- From Alabama, this AP article details that "Alabama has been chosen for a national project that would lead to more community corrections programs, more rooms in prisons and a drop in recidivism rates, state officials announced Friday." This local editorial provides more background on this important development for Alabama sentencing and corrections.
- From California, this AP article details that "California's corrections secretary said Friday that the state will create a commission to review sentencing guidelines for felons, a potential key step in Gov. Arnold Schwarzenegger's efforts to relieve prison crowding."
Will lethal injection woes speed abolition?
This morning at FindLaw, Austin Sarat has this essay entitled "When Executions Go Wrong: A Horribly Botched Florida Killing Adds Strong Impetus to a National Reconsideration of Capital Punishment." Here are some snippets:
Last Wednesday, the name of Angel Diaz was added to a long list of persons whose executions have been botched in recent American history.... After this execution, a spokesman for the National Coalition to Abolish the Death Penalty noted that "Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether electrocution or lethal injection."
Like the king and his men trying to put Humpty-Dumpty back together again, Florida Governor Jeb Bush immediately reacted to the Diaz fiasco by reaffirming his belief in capital punishment, ordering a halt to all executions, and convening a special commission to review that state's lethal injection procedures to insure that, in the future, they do not result in cruelty and needless suffering. Yet whatever Governor Bush's commission recommends, it is getting harder and harder for supporters of the death penalty to defend the system. The Diaz case is just the latest is a series of developments adding impetus to abolitionists' efforts to shift attention away from abstract philosophical debates, to the way the death penalty actually works.
Abolitionists have recent cited not only botched executions, but also dramatic exonerations of persons from death row, cases in which defense lawyers fell asleep during capital trials, and concerns over racial disparities in the death penalty system. These abolitionist arguments, each powerful in its own right, have gained so much traction that it now seems safe to say that the future of capital punishment in the United States is very much in doubt. Indeed, the prospect of its end, which once seemed so remote, is a distinct possibility in the foreseeable future.
December 17, 2006
A December to remember
As if October and November weren't exciting enough (as detailed here and here and here), this month has had nearly a full year's worth of notable sentencing events. Of course, this month is only half over and, among other coming events, tomorrow brings the top-side briefs in the Claiborne and Rita cases (background here). Nevertheless, since some are already celebrating Festivus, I could not help doing a mid-month review of sentencing highlights:
LETHAL INJECTION DEVELOPMENTS AND COMMENTARY
- Major California ruling on lethal injection protocol
- Governor Jeb Bush orders moratorium after botched execution
- An ugly (and fitting?) end to the capital year
- Isn't it finally time for Congress to do something about lethal injection problems?
- Who will demonstrate lethal injection leadership?
OTHER DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Recapping the capital year
- All the death data
- Major capital ruling from en banc Fifth Circuit
- Crazy capital developments in two states
- Executions and clemency in Ohio
SUPREME COURT DEVELOPMENTS AND COMMENTARY
- At least another month until Cunningham
- Slow-poke SCOTUS: a sign of division?
- SCOTUS takes up three new criminal cases
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- Recapping the SCOTUS docket discussion
BOOKER DEVELOPMENTS AND COMMENTARY
- What wrong with equitable Booker retroactivity in the Ninth Circuit?
- Laughing all the way to the (en) banc after Booker
- Seventh Circuit upholds another large upward variance
- Eighth Circuit follows the herd on crack sentencing
- Ninth Circuit decides to punt reasonableness en banc
- What the latest USSC data reveal
- Shouldn't express statutory text trump perceived policy?
ALTERNATIVE SENTENCING DEVELOPMENTS AND COMMENTARY
- The virtues of faith-based prisons
- Another shame(ful?) sentencing example
- Opposition to Iowa's residency restrictions
- Is the future parole with GPS and other techno-reentry devices?
Some Sunday sentencing headlines
Here is just a sample of some of the sentencing stories making headlines this morning:
- From the Minneapolis Star Tribune here, "Should society give up on its worst criminals?"
- From the San Francisco Chronicle here, "With lethal injection halted, all eyes on governor"
- From the San Jose Mercury News here, "Time to fix overcrowding"
- From the St. Petersburg Times here, "Does separation equal suffering? Some state inmates spend years in solitary; Critics say that is cruel and unusual"