January 6, 2007
Westar reversals ... a sentencing (and class) story?
The mainstream media and the blogosphere are justifiably buzzing over the Tenth Circuit's reversal yesterday of the federal criminal convictions of former Westar Energy executives David Wittig and Douglas Lake. How Appealing has the basic coverage here and here, and Houston's Clear Thinkers here and White Collar Crime Prof Blog here and here add astute commentary.
Here are my first reactions, in the form of two provocative questions:
1. Was the Tenth Circuit's review of these convictions (at least unconsciously) a little more rigorous because the defendants had been sentenced to 18 and 15 years in prison? I wonder if the appeal might have looked different if Wittig and Lake had been sentenced only to, say, 10 months in prison (like Martha Stewart) and were soon to complete their terms.
2. Was the Tenth Circuit's review of these convictions (at least unconsciously) a little more rigorous because the defendants were upper-class business executives? I am not alleging any conscious bias, but it sometimes appears that convictions for suite crimes get more carefuly appellate scrutiny than convictions for street crimes (though perhaps this is a reflection of lawyering realities rather than judicial perspectives).
January 5, 2007
Ohio's Gov-elect produces capital wondering
In posts following the November elections, I speculated here and here about how Ohio's new governor and attorney general might impact the death penalty in the Buckeye state. And, as detailed in this AP report, Gov-elect Ted Strickland is already making capital waves:
Strickland said Friday he will not have ample time to review the case of condemned killer Kenneth Biros before the scheduled execution date, signaling the likelihood that the first execution of his administration will be postponed. "In talking with my legal counsel and with Gov. Bob Taft's legal counsel, they have told me there is no way that we can have time to do the kind of analysis dealing with that that Bob Taft does," Strickland told The Associated Press. "It takes him much longer than that amount of time that I would have."
The statement was met with unified wonder by those for and against the death penalty: Does this mean the new governor is reconsidering the death penalty? "We've been through this before with Gov. (Richard) Celeste, but he did it when he was leaving office," said John White, immediate past president of the Ohio Prosecuting Attorneys Association. "But to have a new governor doing it on the way into office, it may set the stage for the battleground."...
Jim Tobin, a spokesman for Ohioans to Stop Executions, said governors in other states are increasingly concerned about the fairness of the death penalty and whether lethal injection causes undue pain and suffering. "We commend the governor for wanting to take his time and be very deliberate on the death penalty," he said.
Strickland, who takes office Monday, would have 16 days to review Biros' case if his execution is carried out on its scheduled date of Jan. 23. Strickland said Taft's reviews have typically taken at least several months.
Considering the nature and timing of Strickland's comments, I view his statements as an effort to assess the status and strength of Ohio death penalty opinions as he enters office. As the news articles note, the Biros execution has already been stayed by a federal district court and Strickland could have waited until that stay was fully adjudicated before commenting upon the timelines of his clemency review. But, rather than play this issue close to the vest, Strickland decided to get in front by stressing the importance of avoiding a rush to judgment on death penalty issues. Perhaps he is hoping to discover ASAP if the public and editorial page writers will praise or assail his emphasis on deliberation.
All this reinforces my sense that capital times will be very, very interesting in Ohio throughout 2007 (although, for the next 3 days, the subject will continue to be eclipse in the Ohio media by a big football game).
Supreme Court grants cert on capital mental illness issue
As detailed here at SCOTUSblog, the Supreme Court today granted cert on seven cases. One of the group is a Texas capital case. Here is Lyle Denniston's description:
Among the newly granted cases is a Texas death row case, testing whether it is unconstitutional to execute an individual who is factually aware of the reason he faces execution, but because of mental illness has a delusion about the state's actual reason for putting him to death. It is Panetti v. Quarterman (06-6407). Doctors who examined Scott Louis Panetti found him to have a mental disorder, although they concluded that he knew he was to be executed after killing his wife's parents. But the doctors concluded that Panetti had a personal belief that he was going to be put to death by the state because he was "preaching the gospel" and that the "forces of evil" were set against him. His lawyers claim that he is too mentally unstable to be executed without violating the Eighth Amendment ban on cruel and unusual punishment. The appeal is supported by the National Alliance for the Mentally Ill. It and Panetti's petition argue that the lower court decision in his case runs against the Supreme Court's 1986 decision in Ford v. Wainwright barring the execution of the mentally ill.
Panetti is an interesting grant given that, in the wake of Atkins and its prohibition on executing persons with mental retardation, many anti-death-penalty groups have been arguing for a prohibition on executing persons with serious mental illness. Since the facts in Panetti seem somewhat quirky, I would guess that the cert grant is designed to allow the Supreme Court to explore more generally the issue of applying the death penalty to persons with mental illnesses.
UPDATE: Linda Greenhouse has this strong coverage of the Panetti grant in this New York Times article.
Sentencing federalism: Judge Weinstein on state-federal disparity
I am pleased to see the Second Circuit Sentencing Blog is back in action, and especially happy it noted Judge Jack Weinstein's latest Booker work in US v. Brennan, No. 96-CR-793, 2007 WL 14590 (E.D.N.Y. Jan. 2, 2007) (download below). In Brennan, Judge Weinstein relies on state-federal disaprity concerns — and relies heavily on the student note I just spotlighted here — to justify adjourning a federal supervised release proceeding. Here are a few of many highlights from the opinion (with cites omitted):
This case illustrates the need to coordinate federal and state sentencing practices. For reasons indicated below, the court defers to the state in this drug possession case....
Federal legislation recognizes the desirability of avoiding sentencing disparity.... The disparity referred to has usually been interpreted to apply horizontally to comparisons among federal defendants. Yet, section 3553(a)(6) can also be interpreted to require consideration of vertical disparities between local state and federal sentences. Criminal law and sentences in the past and today have been crafted by the states not the federal government; federal sentences have had little impact on most crimes.
From the point of view of the impact of sentencing on specific and general deterrence and on reducing recidivism rates, state-vertical coordination is more important than national-horizontal uniformity. The public and criminals generally consider the local federal and state courts as part of a single protective institution. Too great a disparity between state and federal prosecution and sentencing decisions will be seen by the public as creating unjustified disparities. Section 3553 (a)(6) should be construed as covering disparities in state-federal as well as federal-federal comparative sentencing.
Considering comparable state sentences in formulating federal sentences will generally tend to reduce average time in prison. Federal sentences are generally higher than state sentences. This development may also moderate the power of prosecutors to whipsaw defendants — federal prosecutors intervening in state matters, and state prosecutors threatening deferral to federal prosecutions with the prospect of higher sentences.
Given the difference between the Federal and the New York State systems with regard to the assistance available to some offenders with substance abuse problems, the fact that the defendant has completed a detoxification program and is willing to be monitored in a state drug treatment program, family considerations, and the likelihood of more effective treatment out of as compared to in prison, justice would be better served within the state system. In an attempt to assist the defendant and his family, without endangering the public, the court should allow the defendant's present state drug possession charges to go forward in the state rather than the federal system.
I always enjoy Judge Weinstein's sentencing work, and his efforts in Brennan seem especially noteworthy because of the embrace of federalism values. In this prior posts, I have set out reasons for rooting for criminal justice federalism, and I am pleased whenever a jurist explores federalism themes when facing novel federal criminal justice issues (as Judge Nancy Gertner did in a distinct context a few month ago). I hope Booker and other developments keep these legal process issues front-and-center, even though they often get lost in substantive debates over specific sentencing policies.
I doubt the prosecutors in New York are too pleased with this ruling. But I also suspect that they may fear that some Second Circuit panels might embrace Judge Weinstein's reasoning. It will be interesting to see if Brennan gets appealed in some way.
Editorials supporting end of death penalty in NJ
Providing a telling sign of the capital times, a whole lot of newspapers have editorials advocating the abolition of the death penalty in New Jersey in the wake of a state commission's recommendation to do just that. StandDown Texas has helpfully assembled links and excerpts of many of the editorials here, which come from papers ranging from the New York Times to the East Brunswick Home News Tribune.
Recent related posts:
- NJ commission urges abandoning the death penalty
- First-cut reactions to the NJ report on the death penalty
- The federal law gap in the NJ death penalty report
- The big LWOP problem with the NJ death penalty report
In praise of student sentencing scholarship
One joy of specializing in sentencing law and policy is that law students can (and often will) effectively cover important issues in notes and other student scholarship. A good example comes from the latest Columbia Law Review, where this note is addresses "Advisory Sentencing and the Federalization of Crime: Should Federal Sentencing Judges Consider the Disparity Between State and Federal Sentencing Under Booker?"
This CLR note on Booker is not yet on-line, but in the meantime I recommend everyone make sure they've read this student note from April's Harvard Law Review entitled "A Matter of Life and Death: The Effect of Life-Without-Parole Statutes on Capital Punishment." In our debate over the New Jersey death penalty report (highlights here and here), Karl Keys reminded me of this piece; a re-read confirmed my recollection that it is a strong and important work.
I encourage law students to keep picking sentencing topics for their scholarship; there so many issues that merit attention that few established scholars are exploring. And, of course, I also encourage students to send me their efforts for highlighting here.
Calls for a sentencing commission in Colorado
This article from the Rocky Mountain News reports on report from the Colorado Lawyers Committee calling for the creation of a sentencing commission in Colorado. Here are some highlights from an encouraging piece that spotlights issues facing many states:
Colorado should look to the success other states have had as it considers forming its own sentencing commission, said Jim Scarboro of the Colorado Lawyers Committee and author of a report recommending the establishment of a commission here.... The Colorado Lawyers Committee report does not make specific recommendations for changes, but it suggests that a commission should study whether reduced sentences or nonprison sanctions could be used for nonviolent offenders, including low-level property and drug offenders, older offenders, female offenders and parolees returning to prison due to a technical violation of their release conditions....
Adams County District Attorney Don Quick, who is president of the Colorado District Attorneys Council, said he supports the idea of a sentencing commission, but said sentencing-reduction schemes must be examined carefully. "We need to get an accurate picture of who's being sent to prison before we send them out the door," he said. "We need to look at the history of those people before you say they don't pose a public-safety risk." Quick also said the state needs to do a better job of providing job training and drug treatment to prisoners who are being released. He notes that 80 percent of inmates have substance-abuse problems. "Colorado has a 50 percent recidivism rate," Quick said. "We've got to do a better job on re-entry."...
Everyone agrees that the state can't continue to pay for more and larger prisons, Quick said. "The reason this hasn't been solved is because it is a complicated issue, but it's clear that we cannot keep the status quo," he said. "We need to keep the public safe and look at better coordination and funding of resources so we can turn down the faucet on the front end and not just build a bigger bucket."
Lethal injection news and notes
In Florida, as detailed here, the Governor's Commission on the Administration of Lethal Injection, which was established after last month's botched execution, is starting to be assembled. Meanwhile, in Oklahoma, after this Tenth Circuit ruling rejecting a prisoner's attack on Oklahoma's lethal injection protocol, the first lethal injection execution for 2007 is still on pace for January 9. (Crime & Consequences has more on the Tenth Circuit decision here.)
January 4, 2007
What's the USSC doing these days?
As detailed here, the US Sentencing Commission had a very busy November: its staff conducted exciting roundtables exploring how to simplify the guidelines and improve the criminal history rules, and the whole USSC conducted a major public hearing on cocaine sentencing (discussed here and here and here). But, over the last two months, there has been barely a peep from the Commission even while numerous fascinating federal sentencing issues continue to swirl around. In this post from November, I set out a series of "Now what..." questions the USSC must be facing. I suppose I am not surprised — though I am a bit disappointed — that the Commission has not yet given even a clue of an answer to these questions.
These days, I am especially wondering whether and how the USSC might be planning to be involved in the Claiborne and Rita cases before the Supreme Court. In Mistretta and Booker, the USSC filed amicus briefs in support of the government's position, but those cases both questioned the constitutional validity of the guidelines. Claiborne and Rita are formally about the operation of reasonableness review after Booker, which is an issue that the USSC has so far avoided like the plague.
I am really curious about whether the USSC is working on a brief or otherwise planning to play any sort of public role in these big cases. Anyone in the know should, of course, feel free to use the comments to anonymously leaks news.
Death sentences continue to decline
This AP report has the near-final tally on total death sentences imposed last year, and it spotlights that the "number of death sentences handed out in the United States dropped in 2006 to the lowest level since capital punishment was reinstated 30 years ago." Here are the notable stats:
Death sentences fell in 2006 to 114 or fewer, according to an estimate from the [Death Penalty Information Center]. That is down from 128 in 2005, and even lower than the 137 sentences the year after the U.S. Supreme Court reinstated the death penalty in 1976. It is also down sharply from the high of 317 in 1996.
The article discusses various reasons for this decline, and also reviews the chaotic state of death penalty admininstration as we head into 2007.
The big LWOP problem with the NJ death penalty report
Karl Keys in this post spotlighted that the New Jersey Death Penalty Commission forged a political compromise by coupling its call to abolish the death penalty with an expansion of life without parole (LWOP). An informed reader from New Jersey sent along this comment about the practicalities — or should I say impracticalities — of the proposed LWOP expansion:
Prosecutors, criminal defense attorneys, and, presumably, overworked criminal trial judges alike must be shaking their heads over the New Jersey Death Penalty Commission's proposal to substitute New Jersey's death penalty with LWOP. The proposal would require LWOP in all cases where a defendant is convicted of first-degree murder. As the law currently stands, the punishment for that crime is between 30 years to life except in three circumstances: 1) where a statutory aggravating factor or factors served upon the defendant is proven at a penalty trial, resulting in the imposition of death; 2) where the defendant murders a law enforcement officer, resulting in life without parole; and 3) where the defendant murders a victim less than 14 years old, resulting in life without parole.
Under New Jersey's No Early Release Act, as amended in 2001, the sentencing court must set a minimum parole ineligibility term of 85% of the term set or 30 years, whichever is longer. The minimum parole ineligibility term applicable to a life sentence for murder is 63¾ years. Thus, in all but the most aggravated homicides, defendants now face anywhere — in actual time served — anywhere from 30 years to 63+ years. Obviously, 33+ years is a pretty expansive range by any measure. In a state where 98% of all criminal dispositions are the result of plea bargains, it doesn't take a rocket scientist to contemplate the likely impact of LWOP. No light at the end of the tunnel equates, in practical terms, to very few guilty pleas in murder prosecutions. In addition, the Commission's LWOP proposal does not exempt juveniles (ages 15 to 17) in cases where jurisdiction has been automatically transferred from juvenile to adult court.
A more nuanced and practical scheme might entail a grading of murder based on the degree of culpability. For example, prosecutors could, in a Blakely compliant manner, serve defendants with a notice of aggravating factors or factors and then submit an interrogatory to a jury at the conclusion of a murder trial. A finding of one or more factors would necessitate the imposition of LWOP. In all other cases, a defendant would be subject to range of punishment currently authorized, and which allows trial judges a modicum of discretion to impose a sentence tailored to the individualized circumstances of the offense and offender.
Prior posts on the NJ report (here and here) have spotlighted its lack of sophisticated analysis, and thus I am not surprised to hear that the proposed LWOP expansion may have practical problems. Perhaps the terrific New Jersey Commission to Review Criminal Sentencing, which apparently was not involved at all in the DP report, will spotlight some of these important practical issues for the New Jersey legislature when the debate gets going there.
Harriet Miers resigns as White House counsel
As detailed in this AP article, "Harriet Miers, President Bush's failed Supreme Court nominee, has submitted her resignation as White House counsel, the White House announced Thursday." As noted in the posts below from the period when she was a Supreme Court nominee, Miers has an interesting history with some criminal justice issues:
- Nominee Miers' 1992 discussion of crime and punishment
- Exploring Miers' work in support of prisoner re-entry
- Will a Justice Miers continue to be a vocal advocate for better funding of indigent defense?
- Will the MSM ever look at Miers and criminal justice issues?
- Miers, religion, and criminal justice issues
NPR story about elderly sex offender prisoners
Yesterday's broadcast of NPR's "All Things Considered" included this fascinating long segment entitled "Sex Offenders Fill Geriatric Wards of U.S. Prisons." Here is how the story begins:
In the geriatric ward of Pennsylvania's Laurel Highlands Prison, the floors are squeaky clean linoleum. The walls are painted in dull pastels. Dozens of inmates in hospital gowns line the hallways in wheelchairs, doing absolutely nothing.
Almost half of these men are sex offenders. They were once simply "dirty old men." Now, sex offenders in their 60s, 70s and 80s — like the men here — are a growing problem in the nation's prisons. Experts say it's the only crime that offenders are more likely to repeat with age. The result has been an explosion in the number of elderly men behind bars.
The federal law gap in the NJ death penalty report
In this post, I lamented the lack of sophisticated analysis in the New Jersey Death Penalty Study Commission Report (basics here). And it's dawned on me that the report fails to mention what might be the strongest argument for a state to abolish the death penalty: the modern broad applicability of the federal death penalty.
The NJ report does not even mention the federal death penalty or the fact that, as noted here and here, the Bush administration has often been willing to pursue federal capital charges in non-death-penalty states. The NJ report could have highlighted that any particularly horrific murders in New Jersey, especially if they could be described as an act or terror or involved harms to children, likely would provide a basis for the federal government to pursue a capital charge in New Jersey's federal courts.
Some related posts:
UPDATE: I just noticed that here Capital Defense Weekly defends the NJ report as the produce of "a consensus position between very diverse and competing interests that is, understandably, narrow." And yet, in the span of a 10-paragraph post, Karl Keys contributes more sophisticated insights to the NJ debate than one can find in the roughly 50 pages of findings in the main portion of the NJ report.
My chief concern is not the narrowness of the NJ recommendations, but the failure to explore complicated issues relating to how having (or not having) the death penalty on the books (or an expanded LWOP) might impact charging and plea bargaining practices throughout New Jersey's criminal justice system. Karl notes that there have been "10,000 homicides in New Jersey since the death penalty has been restored," but even this important data point does not appear in the NJ report. And, even more importantly, the report never explores whether and how prosecutors may have approached all these homicide prosecutions differently because the death penalty was on the books (or whether their approaches will be different with an expanded LWOP).
Shouldn't President Bush watch the uncut Saddam execution video?
This post about the Saddam execution video and death penalty aesthetics has drawn lots of traffic and lots of interesting comments about who should watch Saddam Hussein's final minutes. Intriguingly, this New York Times article reports that President Bush has "not seen the video of the execution Saturday."
Why not? Doesn't he have a responsibility to watch this video, especially now that there is an international debate over what transpired?
January 3, 2007
A sentencing judge becomes a dean
The Chief Justice kicked off the new year by comparing the salaries of federal judges to law deans (which, as Dahlia Lithwick notes, has brought the teflon John his first taste of widespread criticism). Funny that just two days later, Duke Law School announces that Judge David Levi, who currently serves as the chief federal judge for the Eastern District of California in Sacramento, will be taking over as Dean. The news is covered well by Peter Lattman and Howard Bashman, though I am left wondering about other historical examples of federal district judges taking deanships.
Over at Law School Innovation here, I riff generally about what Judge Levi might do once he becomes Dean Levi. On this blog, I want to give this issue a sentencing focus. Long ago here I argued that sentencing was among the most "under-taught" courses in law school, and I continue to hold that view. I wonder if this would change if a lot more deans came from trial courts than from within the legal academy.
UPDATE: How Appealing here collects links to news coverage of Judge Levi's new job.
Ninth Circuit rejects right to allocute at limited Booker remand
Addressing one of the more interesting remaining Booker pipeline issues, the Ninth Circuit today in US v. Silva, No. 05-50871 (9th Cir. Jan 3, 2007) (available here), concludes that "[d]enying allocution during a remand to discern sentencing error does not infringe on a defendant's constitutional rights, and our judicial role precludes us from engrafting new requirements into the Federal Rules of Criminal Procedure." This issue came up, because the defendant had argued "that he had a right to allocute during the limited remand proceeding" citing the Ninth Circuit's "decision in Ameline, our due process jurisprudence, and Federal Rule of Criminal Procedure 32."
Some other interesting 2006 reviews
If still in a reviewing mood, be sure to check out Grits for Breakfast's list of the "Top Ten Texas Criminal Justice Stories of 2006" and Dahlia Lithwick's review of "the top 10 civil liberties nightmares of the year."
Though focused on Texas, Grits serves up a very satisfying list with developments and issues that are faced by many criminal justice systems. Meanwhile, as critics have pointed out, Lithwick's list is disappointing for its focus on only war-on-terror issues. Especially after devouring the Grit's list and recalling various sentencing injustices (recent examples here and here), many of Lithwick's concerns seem quite misplaced in a purported catalog of top "civil liberties nightmares."
Related recent review posts:
- Top 10 sentencing stories from 2006
- A personal sentencing year in review
- Branch-by-branch sentencing stories to watch in 2007
Holiday season highlights
With nearly everyone now back to the grind at the close of the holiday season, I cannot help but review some of the notable sentencing highlights over the last two weeks. A complete review, is available through these weekly archives, but these posts were among my favorite and/or generated the most comments:
REVIEW AND REFLECTION POSTS
- Top 10 sentencing stories from 2006
- A personal sentencing year in review
- Branch-by-branch sentencing stories to watch in 2007
BOOKER REASONABLENESS DEVELOPMENTS AND COMMENTARY
- My friendly efforts in Claiborne and Rita
- All the amazing top-side briefs in Claiborne and Rita
- The stunning data on circuit reasonableness decisions
- Third Circuit karate chops the parsimony provision [update: and so does the Fourth Circuit]
- An eventful holiday week in the circuits
LETHAL INJECTION DEVELOPMENTS AND COMMENTARY
- Isn't it finally time for Congress to do something about lethal injection problems?
- Who will demonstrate lethal injection leadership?
- Calling out the Sixth Circuit for making a capital mess
- Is it time to seriously consider alternatives to lethal injection?
- Commentaries about lethal injection mess
- Seeking balanced scholarly wisdom on lethal injection mess
GEORGIA WILSON CASE DEVELOPMENTS AND COMMENTARY
- A Georgia case calling for executive clemency?
- Provocative questions about Georgia sentencing injustice
- Should the prosecutor request clemency for Genarlow Wilson?
- NYT adds to chorus calling for Genarlow Wilson to be freed
OTHER DEVELOPMENTS AND COMMENTARY
- The right's prison conversion
- Shouldn't we be much, much tougher with drunk drivers?
- Strong editorial against residency restrictions
- Examining crack sentencing in the new Congress
- Schwarzenegger's plan to reform California's prison problems
One effect of Saddam's execution...
has been to create an explosion in this blog's hit rate. I'm not exactly sure why: I have not blogged about the Hussien's execution since these two posts over the weekend. But, perhaps because of the robust comment thread here, it seems I have moved up to Google's first page if you search for Saddam execution video. Also, it appears that the term "uncut" in the title of this post may bedriving search traffic to this blog.
I note this phenomenon in part because I am often amazed by how consistent this blog's hit rate usually is. Most weekdays, this blog receives roughly 2000 to 2500 hits according to sitemeter, and even big sentencing events or links from other blogs rarely impact these number more than 10%. (The one exception was the week Booker was decided; I had 20,000 hits on decision day, and roughly 10,000 hits a few days thereafter. But the hit rate quickly returned to normal a few days later.)
I guess this is further proof that its a Google and utube world, we are all just living in it.