January 3, 2007
Lethal injection scrummages nationwide
Unsurprisingly, the new year is already hoping with lethal injection wrangling in states beyond California and Florida (where events last month brought execution moratoriums). Here's just some of the action:
From Indiana, this article details a new lawsuit seeking to block a scheduled January execution.
From Missouri, this article details the coming arguments in the Eighth Circuit on the issue.
From North Carolina, this editorial urges a moratorium on executions because of lethal injection worries.
January 2, 2007
First-cut reactions to the NJ report on the death penalty
Unsurprisingly, the media and blogosphere are already buzzing about the New Jersey Death Penalty Study Commission Report (basics here), which "recommends that the death penalty in New Jersey be abolished and replaced with life imprisonment without the possibility of parole." Here is coverage from Reuters and the New York Times, and a nice set of reaction quotes from Newsday. In addition, early reactions can be found at the blogs TalkLeft and Capital Defense Weekly.
Though I have only read the report quickly, I must say that I am quite underwhelmed. Though I tend agree with some the report's findings, the supporting analysis is no more sophisticated than what I would expect to see in a college term paper. Perhaps the goal of the report was to make it accessible to lay readers; the report could readily be assigned as reading in a high school civics class. But I was hoping that, after a year of work and five public hearings and a public working session, this report would be much more sophisticated.
Two related points spotlight my concerns about the report's lack of sophisticated analysis: (1) there is barely any mention, and absolutely no analysis, of how the death penalty might impact charging and plea bargaining practices; (2) the discussion of costs is simplistic and does not explore the possible costs of abolishing the death penalty. Especially since New Jersey has not had any executions in the modern era, these failings of the report seem particularly problematic. In a state that clearly won't ever have a lot of executions, the real question seems to be whether and how having the death penalty on the books genuinely impacts criminal justice actors in New Jersey.
The short dissent by Senator Russo also suffers from simplicity. Senator Russo asserts that arguments about costs "are utter and sheer nonsense.... It doesn't matter what it costs. The taking of a human life is something far too important to be influenced either way by costs." Really? Would Senator Russo demand that New Jersey pay for the costs of a taxi ride home for anyone concerned they had too much to drink to avoid the chance of drunk drivers taking human lives. Of course, it would cost the state a fortune to provide free taxi rides for everyone heading home from the Meadowlands after a game, but apparently Senator Russo believes that any "taking of a human life is something far too important to be influenced either way by costs."
NJ commission urges abandoning the death penalty
It didn't take long for the new year to produce some capital punishment headlines. As detailed in this AP report, a special commission in New Jersey has sent a report to Gov. Jon Corzine and legislators saying the state "should abolish its death penalty and replace it with life imprisonment without the possibility of parole." Here are more details from the AP story:
The report ... found no compelling evidence that New Jersey's death penalty, which has not been used in more than four decades, serves any purpose. It also found the death penalty costs taxpayers more than paying for prisoners to serve life terms without parole. "There is increasing evidence that the death penalty is inconsistent with evolving standards of decency," the report states.
The findings, authored by a 13-member commission created in late 2005 by the Legislature, found abolishing the death penalty would eliminate the danger of executing an innocent person and the risk of the punishment being unfairly implemented. "The alternative of life imprisonment in a maximum security institution without the possibility of parole would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of the families of murder victims," the report found.
I will post a link to the report when available. It should be linked here at some point.
UPDATE: Here is the link to the 133-page New Jersey Death Penalty Study Commission Report. Here is its central recommendations:
The Commission recommends that the death penalty in New Jersey be abolished and replaced with life imprisonment without the possibility of parole, to be served in a maximum security facility. The Commission also recommends that any cost savings resulting from the abolition of the death penalty be used for benefits and services for survivors of victims of homicide.
More FSR coverage of victims at sentencing
I am pleased to report that the second of two Federal Sentencing Reporter issues focused on victims is now available on-line here. This issue (Volume 19, No. 2) is entitled "Victims and Sentencing II: Beyond the CVRA." (The Federal Sentencing Reporter can be ordered here and a list and links of all recent issues can be accessed electronically here.)
The first FSR issue focused on victims, which was entitled "Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna," is discussed in this post and is available on-line at this link. As I have mentioned before, FSR editor Michael O'Hear deserves the credit for assembling an amazing set of materials and commentary on an amazingly interesting and intricate set of issues involving victims and sentencing.
Profiles of two men who could greatly impact Booker's future
Over at law.com, there are two fascinating and lengthy profiles of two very different men:
- This article is about John Conyers, the 77-year-old Michigan congressman who is about to take over as Chair of the House Judiciary Committee.
- This article is about Paul Clement, the 40-year-old Solicitor General who has won "plaudits from across the ideological spectrum."
Both pieces are great reads, despite the lack of any real discussion of sentencing issues. However, sentencing gurus realize that these men, in quite different ways, may hold the fate of Booker in their hands. As Chair of the House Judiciary Committee, Conyers will be in the middle of any serious discussion of any proposed legislative Booker fix in the new session of Congress. As Solicitor General, Clement will be in the middle of developing the Justice Department's legal positions in Claiborne and Rita, the two SCOTUS cases examining Booker reasonableness review.
January 1, 2007
Branch-by-branch sentencing stories to watch in 2007
Out with the old, in with the new: today it's time to transition from reviews of 2006 to previews of 2007. (For those still catching up, recent posts have reviewed the top sentencing stories from 2006 and my personal sentencing year. Also, my periodic recap posts with links are in this archive.) Though the top stories from 2006 will all carry over into 2007, here are my three big questions — one for each branch of government — that I am excited to watch play out in 2007:
Will there be more major jolts to sentencing doctrines? After a calm 2006, the Supreme Court is poised to issue major sentencing rulings in the first half of 2007. Cunningham could greatly impact the application of Blakely in the states (details here), and Claiborne and Rita could greatly impact the application of Booker in federal courts (details here). And though I doubt Blakely will be made retroactive in Burton (basics here), I do expect a Supreme Court struggling to fill its docket to take up additional Blakely and Booker issues in the months ahead.
Extra intrigue: Intra-court and intra-branch disagreements make future developments especially uncertain and intriguing. Will two new Justices bring more SCOTUS consensus on Blakely issues and/or forge a new direction for a confusing set of constitutional doctrines? Will lower state and federal courts keep up with evolving SCOTUS doctrines, or will many continue to resist giving rulings like Apprendi and Blakely and Booker broad application in new settings?
Will there be more tinkering with the machinery of death or moving on? In the two states with the largest death rows — California and Florida — governors have to figure out just how to tinker with lethal injection protocols in order to resume executions. Meanwhile, as detailed here at DPIC, nearly a dozen other states enter 2007 with formal or informal moratoriums on executions. The Washington Post in this editorial asserts it is "now a good time to push for repeal of death penalty laws in states outside the region truly committed to its use." Is this just wishful thinking by death penalty opponents or a real possibility in some states?
Extra intrigue: New administrations in some states likely do not want polarizing death penalty debates to disrupt a possible post-inauguration honeymoon. However, in Florida and Ohio, scheduled executions may prevent new governors from dodging death penalty issues for very long. Will any executive officials grab the capital bull by the horns in the coming year? If they do (or don't), what will be the political fallout in "purple" states like Florida and Ohio?
Might we truly see a new politics of crime and punishment? On Christmas Eve, the New York Times Magazine ran this notable article entitled "The Right Has a Jailhouse Conversion," and I have long spotlighted recent evolutions in crime politics (here and here). Especially after the 2006 election results, one can realistically hope that sound sentencing reforms might start to eclipse tough-on-crime rhetoric in the legislative arena. At the federal level, positive re-entry and sentencing legislation seem like real possibilities in 2007, especially if key legislators can engineer bipartisan coalitions to avoid sound-bite sniping at proposed reforms.
Extra intrigue: The 2008 presidential race is already in gear, and many front-runners are senators who may have to weigh in on any federal reform bills. Though I have not heard much from Hillary Clinton or John McCain or Barak Obama on issues of crime and punishment, a long election season ensures almost every hot-button issue gets some attention. Especially given how women and minorities are impacted by modern crime and punishment issues, I am particularly intrigued to see how Clinton and Obama address (or avoid) these issues.
Is law blogging already passe?
Peter Spiro in this post at Opinio Juris thoughtfully examines whether "the blogging phenomenon may have peaked" in the legal arena, and a terrific set of commentors have enriched the inquiry. I discuss my reactions more fully here at Law School Innovation, but I wanted to give SL&P readers a chance in the comments to express whether they think law blogs are coming or going.
UPDATE: Anyone who wants evidence that the death of law professors may be greatly exaggerated should check out this post at the Law Librarian Blog, which documents the growth and popularity of the Law Professor Blogs Network. The chart, which you can see better at LLB, provides details on the network's expansion.
A New Year's tradition for law geeks
True law nerds know that we all get to kick off every new year with the annual end-of-year report from the Chief Justice of the United States. Thanks to Lyle Denniston's post here, you can read a summary of CJ Roberts' report and access the full 15-page document here. As Lyle notes, the "appendix to Roberts' report contains some interesting details about the impact on the lower federal courts of the Court's major decisions on criminal sentencing, U.S. v. Booker and Blakely v. Washington."
Here are some of the sections Lyle is referencing:
Nationwide, the number of criminal appeals dropped by 5% to 15,246 filings, after rising by 28% in 2005 in response to the Booker decision. Despite that decline, the number of criminal appeals in 2006 surpassed by more than 25% the number of filings in the years before the Court's decision in Blakely v. Washington, 542 U.S. 296 (2004)....
The number of criminal cases filed in 2006 decreased by 4% to 66,860 cases and 88,216 defendants. The decline stemmed from shifts in priorities of the United States Department of Justice, which directed more of its resources toward combating terrorism. The number of criminal cases filed in 2006 is similar to the number of cases filed in 2002, when criminal case filings jumped by 7% following the terrorist attacks on September 11, 2001. Although the number of criminal case filings declined in 2006, the median time for case disposition for defendants climbed from 6.8 months in 2005 to 7.1 months in 2006. The median time period, which was 27 days longer than in 2004, reflected an increase in the time that courts needed to process post-Booker cases.
December 31, 2006
The uncut Saddam's execution video and death penalty aesthetics
All over the blogosphere, one can now access an uncut video of Saddam Hussein's hanging. Here's one of many links, along with commentaries from folks at TalkLeft, Appellate Law & Practice and Capital Defense Weekly. S. COTUS at AL&P has this provocative statement with the link:
Anyone who favors the death penalty, or the procedure applied in this case, should watch this and share it with their children. If you can't stand to watch it or you won't show it to your children, you need to re-evaluate your position. US lawyers approved of the procedure and authorized the hand-over of Saddam.... Hopefully, this will encourage the videotaping and dissemination of future executions in the US, so that they can be shown in schools, and future generations can have an honest discussion about the merits of the death penalty.
I have a mixed reaction to these matters of death penalty aesthetics in general and the Saddam execution in particular.
First, there are a lot of acts many would condone as worthwhile that we sensibly do not want to watch or share with our children: e.g., slaughtering of animals for food, required amputation of human limbs, violent acts in a justifiable war. The fact that we may be squeamish about certain sights and want to shield children does not conclusively make a case against an activity. (I doubt many folks would readily watch (or show children) a video of their parents engaged in consensual sexual relations, but few would argue this suggests a need to re-evaluate our position on such activity.)
Second, compared to what is shown at the local multiplex and in action video games and even in most episodes of CSI, the Saddam execution video strikes me as quite tame. I concur that everyone interested in death penalty debates should watch this video in order to get a sense of death penalty aesthetics. I also think it would be valuable to have video recordings of all executions; I do believe sunlight (or camcorder light) is one of the best disinfectants. (I can't help but wonder how many lethal injection executions were botched before we started watching them closely.)
I encourage all viewers to use the comments here to share reactions or insights.
An eventful holiday week in the circuits
Before I do some more year-in-review posts, the eventful holiday week in the circuits merits a recap. I had thought that the Supreme Court's cert grants in Claiborne and Rita might slow post-Booker rulings, but all this action even during a short holiday week suggests otherwise:
- First circuit says acquitted conduct enhancements still fine
- Third Circuit karate chops the parsimony provision [update: and so does the Fourth Circuit]
- Sixth Circuit affirms above-guideline sentence in TSA case
- Rough holiday week for defendants in the Eighth Circuit
- Another ugly day in the Eighth Circuit for defendants
- Two more notable Booker wins for the government