March 10, 2007
Montana AG urging DP repeal
As detailed in this AP article, state prosecutors in Montana are supporting a bill to repeal the death penalty:
The death penalty no longer should be allowed in Montana, the attorney general's office said Friday in supporting a bill that would abolish capital punishment. The threat of death does not deter criminals and the process involved in death penalty cases is long and expensive, Assistant Attorney General John Connor told the House Judiciary Committee.
"It seems to me to be the ultimate incongruity to say we respect life so much that we're going to dedicate all our money, all our resources, our legal expertise and our entire system to try and take your life.... Frankly, I just don't think I can do it anymore," he said.
Committee members took no immediate action on the bill, which would commute death sentences to life in prison and abolish capital punishment in the future. The measure passed the Democrat-controlled Senate last month.
March 9, 2007
Innovative organs for liberty proposal
This AP article ought to provide a great opportunity for weekend debate (and perhaps a bit of levity) concerning novel sentencing proposals. Here are the details:
Inmates in South Carolina could soon find that a kidney is worth 180 days. Lawmakers are considering legislation that would let prisoners donate organs or bone marrow in exchange for time off their sentences.
A state Senate panel on Thursday endorsed creating an organ-and-tissue donation program for inmates. But legislators postponed debate on a measure to reduce the sentences of participating prisoners, citing concern that federal law may not allow it. "I think it's imperative that we go all out and see what we can do," said the bills' chief sponsor, Democratic Sen. Ralph Anderson. "I would like to see us get enough donors that people are no longer dying."
The proposal approved by the Senate Corrections and Penology Subcommittee would set up a volunteer donor program in prisons to teach inmates about the need for donors. But lawmakers want legal advice before acting on a bill that would shave up to 180 days off a prison sentence for inmates who donate.
South Carolina advocates for organ donations said the incentive policy would be the first of its kind in the nation. Federal law makes it illegal to give organ donors "valuable consideration." Lawmakers want to know whether the term could apply to time off of prison sentences.
"We want to make this work, we really do," said Republican Sen. John Hawkins. "But I want to make sure no one goes to jail for good intentions." Mary Jo Cagle, chief medical officer of Bon Secours St. Francis Health System in Greenville, urged senators to find an allowable incentive. "We have a huge need for organs and bone marrow," Cagle said....
More than 95,300 Americans are awaiting an organ transplant, according to the Organ Procurement and Transplantation Network. About 6,700 die each year.
Remarkable Second Amendment ruling from DC Circuit
As Howard Bashman has well covered here and here, a divided three-judge D.C. Circuit panel today held that the District of Columbia's gun control laws violate individuals' Second Amendment rights. I look forward to having a chance to read this important ruling eventually, but my first-cut reaction is to wonder whether this ruling could possibly impact severe felon-in-possession federal sentencing realities.
Fear of the DIG and the SCOTUS docket
I never get tired of SCOTUS docket and cert pool discussions, and so I read with interest this ABA Journal article entitled, "Clerks Avoid Getting Their DIGs In: They just say no to cert petitions, as the court's docket shrinks." Here are some interesting excerpts:
Forcing the court to look bad is not something that clerks want to do. And avoiding a DIG ruling is among the advice clerks pass on each summer as their replacements take their seats in the cert pool, a cooperative in which clerks for eight of the nine justices review the thousands of petitions asking for a hearing....
It's better, some former clerks say, to be seen as someone who rarely, if ever, recommends that cert petitions be granted. That, coupled with clerks’ lack of practice experience and the fact that all the justices except John Paul Stevens participate in the cert pool, could be one of the key reasons for the decline in the number of petitions granted — and the consequent shrinking of the Supreme Court’s case docket, according to a number of legal scholars....
Even if a [cert pool] memo recommends that cert be denied and the justices instead decide to grant it, [former clerks] say, it's less embarrassing than being seen as someone who recommends grants too often. And there's the notion that finding a reason to deny cert showcases a clerk's legal skills.
Some related posts on sentencing and the SCOTUS docket:
- Roberts, the cert pool, and sentencing jurisprudence
- More on Alito and the criminal docket
- My effort to help with the SCOTUS docket problem
- A capital waste of time?
- What SCOTUS should be doing
- Solving the SCOTUS docket mystery
Candidate Huckabee's crime and punishment skeleton
As regular readers know, I am already following the 2008 presidential campaign with an eye focused on crime and punishment issues. Thus, I was pleased when an old friend sent me this fascinating Salon piece discussing the prospects of Republican candidate Mike Huckabee. Though the whole article is a great read, this is the passage that should really intrugue sentencing fans:
By far, Huckabee's most glaring mistake goes by the name of Wayne DuMond, a paroled rapist who murdered a woman after being released. DuMond's story is Southern Gothic, the Dukes of Hazzard meets John Grisham. He was a Vietnam veteran with a violent past and six children. In 1984, he was accused of raping a high school student in Forrest City, Ark., a town named for a founder of the Ku Klux Klan. The student happened to be a distant cousin of then-Gov. Bill Clinton, and the daughter of an influential local mortician. While DuMond was awaiting trial, two men broke into his home, hogtied and castrated him. The local sheriff, Coolidge Conlee, later displayed the testicles, floating in formaldehyde, for visitors to his office.
A mangled DuMond was eventually sentenced to life in prison, without the possibility of parole. But the distant Clinton affiliation soon turned his case into a cause. Right-wing radio hosts and columnists decried the severe sentence. They raised questions about the lack of DNA evidence, and railed against the small-town justice system, which never prosecuted DuMond's attackers. During the 1992 presidential campaign, while Clinton was traveling out of state, Tucker commuted DuMond's sentence to allow for the possibility of parole. When Huckabee became governor, he publicly announced that he intended to commute DuMond's sentence to time served. "My desire is that you be released from prison," he wrote DuMond in a letter. Before Huckabee signed any papers, the state parole board approved the prisoner's release. Two years later, DuMond murdered a woman in Missouri and later died in jail.
The case presents Huckabee with a clear problem, along the lines of Willie Horton, the furloughed rapist who helped sink the 1988 campaign of Democratic candidate Michael Dukakis. The attack ad almost writes itself: Huckabee, egged on by right-wingers, worked to free a rapist who murdered again. When I bring up the issue, the former Baptist minister becomes defensive and tries to place the blame elsewhere. "Jim Guy Tucker commuted this guy's sentence to make him parole eligible," Huckabee says, as we sit in the back of the minivan. "Clinton knew it, Tucker did it, and now they try to blame me for it." In 2002, several members of the parole board told the Arkansas Times that the governor had actively advocated for DuMond's release behind the scenes. Huckabee calls this a lie, but he acknowledges he made a public appeal for the parole. "And I certainly regret that, in light of what happened," he says.
But the DuMond debacle also provides a window into Huckabee's approach as he begins his run for president. He has refused to take the predictable path by talking tough on crime to deflect the DuMond criticism. Instead, he campaigns on a compassionate approach to wrongdoers, especially those whose crimes are the result of drug or alcohol addiction. At Philly's Finest, he condemned the "revenge-based corrections system," sounding every bit the sort of squishy liberal that the Bill O'Reillys of the world long ago scared into the shadows. "We lock up a lot of people we are mad at rather than the ones we are really afraid of," he said. "We incarcerate more people than anybody on earth." As governor, Huckabee pushed for drug treatment instead of incarceration for nonviolent offenders. He pushed for faith-based prison programs, and was critical of governors who "gladly pull the switch" on death penalty cases, an apparent knock on President Bush, who was criticized as governor of Texas for being cavalier about capital punishment.
A Sixth Circuit bridge over troubled Booker waters
The Sixth Circuit's decision in US v. Bridgewater, No. 05-6950 (6th Cir. Mar. 9, 2007) (available here), effectively covers a lot post-Booker sentencing ground in the course of affirming a sentence while also poking both the sentencing court and the especially appealing federal defender. Here are a few choice snippets about reasonableness review:
District courts ... should consider laying out how their sentencing reasoning connects to or serves the purposes of at least the § 3553 requirements that it considers salient in that case. Not all are important in every sentencing; often one or two prevail, while others pale. Our job on review can be indeed eased with some explanation directed at the factors listed in § 3553.... A full review of the record, as detailed above, reveals that the district court indeed considered the relevant factors in reaching a sentence that was sufficient, but not greater than necessary, to "comply with the [sentencing] purposes set forth" in § 3553....
Proper sentencing requires reasonable sentences, not simply the invocation of "magic words" by the sentencing court.... The record instead indicates that the district court's imposition of a lengthy sentence with lifetime supervised release was reasoned and properly founded.
In short, our application of Booker and the sentencing factors of § 3553 holds to the principle that the perfect should not be the enemy of the good. In reviewing challenges to the reasonableness of a sentence, we seek a sufficient decisional approach by the sentencing court, not necessarily the most ideal, or a "model" approach. Bridgewater received sufficient consideration of the appropriate sentencing factors and, consequently, a reasonable sentence was imposed.
Interesting parolee search case from the Tenth Circuit
Some might be inclined to read the Supreme Court's decision in Samson last year as a sign that parolee have virtually no Fourth Amendment rights. But the Tenth Circuit's decision in US v. Freeman, No. 05-3437 (10th Cir. Mar. 8, 2007) (available here), suggests that the death of the Fourth Amendment for parolees after Samson may be exaggerated.
Perhaps inspired by the defendant's surname, the Tenth Circuit in Freeman reverses the district court's denial of a parolee's motion to suppress evidence found in the warrantless search of the parolee's home. The Freeman opinion covers lots of interesting Fourth Amendment ground, and here's how Samson fits into the analysis: "We interpret the Knights-Samson line of cases as resting on the parolee’s diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case. As we shall see, neither rationale justifies the search in this case."
March 8, 2007
Bills coming due for Arizona's capital craze
Today's Arizona Republic has this article, entitled "Ending jam in capital cases to cost in 'millions,'" which details some economic consequences of Maricopa County Attorney's massive increase in the number of capital charges. Here are some details:
Maricopa County found lawyers on Wednesday for a dozen inmates who face the death penalty. But the emergency and long-term plans to fix the backlog of capital cases could fall apart unless the county supervisors pump money into the public defender system. It could ultimately cost "millions" for the county to bulk up the public defender offices and solve the attorney shortage, several officials said.
The county now pays $8.5 million to defend capital cases. "We realize that we are probably going to have to allocate more money," said county Supervisor Mary Rose Wilcox, adding that she is waiting for a final report on a permanent solution....
Maricopa County has drawn national attention because it's being strained by a record number of death-penalty cases. The county has more pending cases than Los Angeles County, which has more than twice as many residents, and the so-called "death-penalty capital" of Harris County, Texas.
There are more than 130 cases in trial or awaiting trial, and the county's four indigent defense agencies say that they have run out of attorneys to handle them. Most people who face the death penalty can't afford an attorney, and taxpayers pick up the tab. If the inmates don't have qualified lawyers, prosecutors risk having death sentences overturned, which would mean trying the expensive cases all over again and retraumatizing families of murder victims.
Recent related posts:
Are AG Gonzales' days numbered?
A delayed flight connection and an airport internet connection allows me to link this Washington Post article, which details the serious heat AG Alberto Gonzales is getting as a result of his poor efforts to explain away the recent US Attorney purges. As the article reports, Senator Arlen Specter today suggested publicly that Gonzales might not last as AG through the end of President Bush's term.
Interesting Second Circuit ruling on sentencing considerations
In my last pre-airport check of the circuits, I discovered the Second Circuit issued an interesting ruling on an interesting issue in US v. Kaba, No. 05-3813 (2d Cir. Mar. 8, 2007) (available here though a cranky link). Here is the summary:
The defendant-appellant, who pleaded guilty to one count of conspiring to distribute and possess with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 846, appeals her sentence of, principally, 72 months' imprisonment on the ground that the district court improperly considered and relied upon her West-African heritage during the sentencing proceeding. Vacated and remanded.
Off to the coast for the first "Stanford Executive Sessions on Sentencing and Corrections Reform"
I'm off to the airport again this afternoon, this time headed to California to participate in the exciting first meeting of the Stanford Executive Sessions on Sentencing and Corrections Reform being run by the Stanford Criminal Justice Center. Details about the concept and the format for the sessions can be found here.
Not suprisingly, with Cunningham and California's on-going prison crises, there is a lot to talk about. The Executive Session schedule is very full for Friday, so blogging may be light over the next few days.
Will Libby get bail pending appeal from the courts? Can he get it from the President?
Though all the Libby talk today is about a possible pardon, I would be quite surprised if the President granted a pardon now, especially because Libby is still a free man at least until his sentencing by Judge Walton. The sentencing is scheduled for June 5, though I suspect that date will get pushed back for various reasons.
Based on the guidelines and other factors, I expect that Judge Walton will impose a prison term whenever sentencing takes place, and that's the moment at which Libby's liberty is brought seriously into question. Most defendants must start serving their prison term soon after sentencing and are not granted bail pending appeal. (For example, Jeff Skilling has started serving his sentence though his appeal is still being briefed before the Fifth Circuit.)
Because pundits are saying that Libby has few strong appeal issues (a key bail issue if the defendant poses no flight risk), Fitzgerald's team likely would oppose bail pending appeal. I am less certain whether Judge Walton would grant bail pending appeal, nor do I have a sense of the DC Circuit's general approach to these issues.
I am eager to hear from informed folks about either Judge Walton's or the DC Circuit's general approach to bail pending appeal. And, here's a fun follow-up constitutional brain-teaser for pardon/clemency gurus: if Libby is ultimately denied bail pending appeal by the courts, would the President's "Reprieves and Pardons" power under Article II, Section 2 allow him to order Libby's freedom (as a reprieve) during the pendency of his appeal?
On severe sex offender sentences
A helpful reader sent me this new piece at Reason, which he described as a "thoughtful commentary on civil commitment and the Berger Case." The piece is by Jacob Sullum and is headlined, "To Life, to Life! Or Fry 'Em? Even sex offenders can be punished too severely." Here is one of many good snippets:
[I]t's important to keep in mind that "sex offenders" are a highly diverse group, ranging from teenagers who have consensual sex with younger teenagers to men who rape and murder children. Arizona provides an excellent example of how not to draw the appropriate distinctions.
Under Arizona law, mere possession of pornography involving minors younger than 15 is punishable by a 10-year mandatory minimum sentence. Each picture is a separate offense, and the sentences must be served consecutively. That's how Morton Berger, a former high school teacher, received a 200-year sentence without parole: 10 years for each of 20 images on his computer.
While the production of child pornography involves sexual abuse, Berger himself did not victimize anyone. He arguably deserved criminal punishment for encouraging abuse, in his own small way, by downloading the resulting images (although it's not clear he paid for them). But 200 years?
That's far longer than the sentence Berger would have received anywhere else in the country. It's also harsher than Arizona's penalties for violent crimes such as rape and second-degree murder. For looking at pictures of sexually abused children, Berger was punished more severely than he would have been for committing an actual sexual assault on a child.
Some related posts on the Berger case and other notable sex offender sentences:
- CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
- Analogizing extreme punitive damages and extreme punitive sentences
- ESPN effectively covers Genarlow Wilson's sad saga
"Hypothetical" protocol for full-proof painless execution by lethal injection?
Over at my Death Penalty Course @ Moritz College of Law blog, we've been talking a lot about execution methods and the role of doctors in lethal injection. Perhaps inspired by our class efforts, someone calling himself/herself "Provocateur Doctor" posted a comment purporting to set forth a "'Hypothetical' Protocol for Full-Proof Painless Execution by Lethal Injection." I wonder if anyone informed about this science can weigh in on the doctor's claim that this protocol would result in "full-proof painless executions."
- ~2-6 hours prior to execution, an emergency or critical care physician, surgeon, or anaesthesiologist inserts a central venous catheter into the femoral, internal jugular, subclavian, axial, or brachial vein (or artery, in that order of preference), by Seldinger technique. Intramuscular or subcutaneous conscious sedation (e.g., fentanyl +/- midazolam) is administered prior to and/or during this procedure, and full local anesthesia (e.g., lidocaine or bupivacaine) is utilized as well. If percutaneous Seldinger technique cannot be utilized in any of the above vessels, the procedure, AND the execution if need be, is delayed until a surgeon, veternarian, or other qualified person can perform surgical cut-down for catheter insertion. The catheter must be sutured in place by no fewer than 12 00 silk sutures passing into the deep subcutaneous tissues. Intravascular placement is confirmed by freely flowing withdrawal of blood from the catheter and functionality is confirmed by free saline flushing.
- After insertion and until the actual execution, the prisoner is monitored and immobilized if necessary to prevent dislodgement of the catheter. Continued doses of benzodiazepines can be administered for psychological distress. Opioids can be administered for any pain post-procedure.
- At the time of actual execution, blood is drawn from the catheter to again confirm intravascular placement.
- At the actual execution, to anesthetize and render completely unconscious the prisoner to absolutely assure that no pain or distress is experienced, a physician directs the administration of sodium thipental at a dose of 5000 mg.
- The physician or other designated person assures that anaesthesia has been achieved by assessing for apnea or with the use of EEG monitoring (optional).
- An intravenous mechanically delivered bolus of 160 MEQ of potassium chloride is administered at a rate of 4cc/second (40 seconds required for entire bolus), and cardiac asystole is confirmed by continuous EKG monitoring.
Everyone's talking about pardons
Though I am eager to focus on the sentencing issues now critical to Lewis Libby's fate, it seems that everyone else wants to talk about the possibility of a presidential pardon. Here are just a few major stories on the topic:
- From USA Today, "Conservatives press Bush for Libby pardon"
- From Time, "Will Bush Pardon Libby?"
- From the New York Times, "Debate Over a Pardon Follows the Libby Verdict"
- From the Washington Post, "Bush Deflects Pressure To Give Libby a Pardon"
Federalism follies in an age of dysfunctional politics
As I have noted before here and here, the pros and cons of federalism look quite different through the lens of criminal justice. And this fascinating news report from California spotlights reasons why dysfunctional state politics may lead some state actors to urge federal intervention and control:
Gov. Arnold Schwarzenegger said Tuesday he welcomes the threat of a federal judge imposing a prison population cap because the strong prospect of court-ordered inmate releases might be the only way to trigger action by an ideologically polarized Legislature.
"I like the idea of a federal judge threatening us, because this is the only way that in our Capitol there will be action created," Schwarzenegger said in a brief interview after touring a prison in the heart of the Southern California media market. "Because for 10 years now, before I came in, they've been fighting about the same problem. They haven't built anything in a decade, but we've seen this increase in inmates. So something is going to happen because of the judge telling us that he's going to take action if we don't."
Schwarzenegger's comments came as he dedicates a week to selling a $10.9 billion prison construction and sentencing overhaul to both the Legislature and the public. His trip Tuesday to the California Rehabilitation Center in Norco attracted a bevy of media and followed a tough-on-crime press conference he held Monday with Los Angeles County Sheriff Lee Baca and Republican presidential candidate Rudy Giuliani....
The governor also wants to create a sentencing commission that Republicans think would be the state's first step toward letting criminals out of prison before their terms are up. The governor said in the interview that his corrections fix should hold plenty of appeal for Republicans, mainly billions of dollars to expand prison, jail and juvenile detention space that would accommodate tens of thousands of offenders of all ages at the state and local levels. As for the Democrats, Schwarzenegger said he envisions a deal that would open the door for changes they want to see in parole and sentencing. "All of that can be worked out as long as we understand all that is on the table," Schwarzenegger said. "Especially knowing that a federal judge is breathing on our neck and that they're going to release a certain amount of inmates." ...
U.S. District Court Judges Lawrence Karlton in Sacramento and Thelton Henderson in San Francisco have both scheduled June hearings as first steps toward imposing inmate population caps. Both judges have suggested they are ready to act in absence of any action by the state to do something about its hugely overcrowded prisons, where some 172,000 inmates in California's 33 prisons and attendant camps and community facilities are now living in space designed for half that many.
When federal sentencing is more sensible
Especially in non-violent drug cases, I alway figure federal sentencing terms are much harsher and less balanced than state terms. But this news report on the sentencing federal child porn prosecution highlights one setting in which federal law, though tough, can be more sensible than some state sentencing.
The news article discusses a South Dakota high school teacher who received a (within-guideline) sentence of just over six years in federal prison for buying and storing a large and disgusting archive of child porn on his computer. This criminal activity sounds very similar to the crimes of Morton Berger, but Berger received a sentence of 200 years in state prison under Arizona state law (basics here, commentary here and here).
Not only does federal sentencing law seem more rational in this setting, but this report on a federal sentencing in Florida highlights that federal law can and will bring the hammer down on producers of child porn:
A federal judge has sentenced a 34-year-old Glades County man to 50 years in prison for videotaping sex acts with his adopted son and sending the images via the Internet. U.S. District Judge John Steele exceeded the recommended guidelines in sentencing the man this week. Steele said it was the worst child pornography case he has seen.... Steele said he imposed the long sentence partially because the images sent out on the Internet can't be retrieved.
Budgeting for (or as) sentencing reform
This interesting news report from Wisconsin shows how a budget plan can be the impetus for a certain kind of back-end sentencing reform:
More prison inmates could be eligible for early release under the state's "truth in sentencing" law, which was intended to make criminals serve their entire sentence behind bars, if lawmakers approve Gov. Jim Doyle's proposed budget. The document includes a provision that would allow the state Parole Commission to review inmates' petitions for early release under the decade-old sentencing law....
Truth in sentencing went into effect in late 1999 in an effort to abolish parole and early release and give crime victims more certainty that criminals would serve their entire sentences behind bars. But an amendment approved in 2002 allows inmates to petition trial judges in their cases for early release from prison. Corrections officials say only a fraction of all inmates file such petitions. The law allows for inmates convicted of less serious felonies like property crimes and drug offenses to petition for early release after serving at least 75 percent of their prison sentence, and for inmates convicted of more serious, usually violent, crimes to seek early release after serving at least 85 percent of their sentence.
Doyle's budget provision would apply only to those sentenced for less serious felonies. Corrections Secretary Matt Frank said the proposal is intended to streamline the early release process. He acknowledged that if lawmakers approve the change, "there could be more petitions granted because the current mechanism with the judges is not a very efficient process. With the commission, there could be more (approvals), but that would have to be decided by the commission."
The department's budget anticipates that more inmates will be released and that the state would save at least $464,900 beginning in 2008, when the proposed changes would take effect.
Doyle's budget also includes other changes to truth in sentencing, which prison officials said has driven up costs by increasing the time inmates spend in prison. The budget would extend the life of the state Sentencing Commission, which was set to expire later this year. The commission would develop guidelines for judges to use in sentencing criminals and report back to lawmakers by 2008.
March 7, 2007
Around the blogosphere
There are lots of great reads and other goodies for sentencing fans around the blogosphere today. Here is just a sample:
- At Concurring Opinions, Hidden Sentencing in Blakely's Wake
- At Houston's Clear Thinkers, Thinking about the criminalization of business
- At ODPI, Strickland declares Ohio catering moratorium
- At PrawfsBlawg, Neuroimaging and capital sentencing
- At Sex Crimes, The Innocence Project and Sex Crimes
- At Sex Offender Issues, Do Sex Offender Laws Really Work?
- At White Collar Crime Prof Blog, The Growing Libby Pardon Debate
- At WSJ Law Blog, Scooter Libby: The Pardon Question
The latest USSC Booker data
I am very pleased to see a new quarterly update with the latest, greatest post-Booker sentencing data available at this link over at the US Sentencing Commission's Booker webpage. Here's how the USSC describes this data:
Quarterly Sentencing Update (Published March 7, 2007): An extensive set of tables and charts presenting cumulative quarterly data on cases sentenced in fiscal year 2007. The numbers are prepared using data sentenced by close-of-business on December 31, 2006 and received, coded, and edited by the Commission by February 27, 2007.
I am about to head into a faculty meeting, and this data report makes for great multi-tasking materials. I'll update this post later if any really suprising numbers jump out of this new data snapshot.
UPDATE: Based on Figure C in this report, it appears that average sentences after Booker continue to rise, and may have experienced a (statistically significat?) up-tick from October 1 to December 31 2006. Also, the circuit-by-circuit variations in prosecutor-inititated and judge-initiated below-range sentences are quite intriguing.
It truly is an honor just to be nominated
Arriving in my mail today was a copy of the latest issue of The Green Bag, and the cover letter informed me that "my recent work was nominated as an example of excellent legal scholarship" and received "an honorable mention" in the Green Bag's second annual Almanac & Reader. Since I have have a whole lot of recent work (not just on this blog, but also in more traditional scholarly fora), I turned to the "Recommend Reading" section giddy with anticipation about which work of mine had earned me this great honor.
I was pleased to discover that I was one of 17 persons with a "long article" mentioned in the "Recommend Reading" section of the new Green Bag. And I was even more pleased that the article selection is a piece that is one of my personal favorites, but among my least cited, explorations of the Blakely and Booker revolution: Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 Journal of Criminal Law and Criminology 654 (2005).
Great Greenhouse affect on consensus
Linda Greenhouse has this terrific Reporter's Notebook entry today entitled, "As to the Direction of the Roberts Court: The Jury Is Still Out." Headline notwithstanding, her piece does not discuss the jury trial issues raised in Claiborne and Rita. But, in it reinforces my sense of the new Chief's limited ability to forge consensus and my broader instinct that "for anyone tempted by the joys of punditry to proclaim that the Roberts court is clearly one thing or another, this is a time to sit back, wait and see."
Some related posts:
- CJ Roberts and sentencing law: the virtues (and vices?) of consensus
- CJ Roberts and sentencing law: his Cunningham work
- Revving up for Claiborne and Rita: sentencing law in four dimensions
- Revving up for Claiborne and Rita: will due process play any role?
- Claiborne and Rita reasonableness case category archive
Sentencing and pardon politics in the Libby case
At TalkLeft, Jeralyn now has this terrifically clear post discussing the legal basics of Libby's sentencing realities. Though my post here spotlights that there may be more play in the guideline joints than Jeralyn details, her analysis provides a good starting point for an examination of the legal issues the Libby lawyers will be exploring as the sentencing process unfolds.
But, as everyone realizes, the Libby case cannot be fully understood or analyzed without an examination of its political dimensions. And though Libby's jury, as detailed here, seemed to do a good job focusing on law rather than politics, the sentencing players will face various political realities as the Libby case moves forward.
One facets of these politics highlights the virtues of sentencing guidelines for judges and prosecutors in high-profile cases. Judge Walton can (and many are suggesting he will) partially insulate himself from political allegations by following the advice of the guidelines at sentencing. Similarly, Fitzgerald's team can (and likely will) recommend a guideline sentence even though they could legitimately argue that the sentencing instructions of 18 USC 3553(a) call for a sentence harsher than the guidelines will recommend. Meanwhile, the defense team has to be attentive to these political realities and seek ways to push Judge Walton below the guidelines.
Another political dimension here concerns how the Bush administration, and especially vice-president Dick Cheney, will seek to support Libby at sentencing. Both before and after Booker, the Bush Administration's Justice Department has been very pro-guidelines. Against this backdrop, it might be hard for Cheney to publically urge a below-guideline sentence for his former employee.
Of course, as an inevitable pardon debate heats up, the discussion becomes all politics and no law. There are no formal legal limits on President Bush's pardon power, so whether and how he helps Libby is all about political calculations. And these political calculations not only could impact President Bush's thinking, but also the already-heated 2008 presidential campaign. Assuming the Libby case continues to make headlines throughout 2007, it will be interesting to see how lawyer-candidates like Giuliani and Clinton and Obama respond to media questions about a possible pardon. (Josh Gerstein's Libby piece in today's New York Sun is already all over these great political issues.)
Some morning capital headlines
Here are a few of the newspaper stories covering death penalty developments that caught my eye this morning:
- From California here, "California death row inmates often wait indefinitely for execution"
- From Florida here, "Death-row inmates often die in prison"
- From North Carolina here, "State sues medical board as it tries to resume capital punishment"
- From Texas here, "Prison gang leader executed in double killing"
Schwarzenegger talking up his prison plans
This AP report spotlights that California Gov. Arnold Schwarzenegger is starting to focus seriously on how to terminate his state's prison overcrwoding problems. Here are some snippets:
Gov. Arnold Schwarzenegger toured a prison for low-level offenders and drug addicts Tuesday while campaigning for an $11 billion reform and building package that he says will alleviate severe overcrowding at the state's 33 prisons. The governor toured parts of the California Rehabilitation Center and met with Warden Guillermina Hall before speaking with reporters in the prison yard....
California's prisons were designed for 100,000 inmates but hold nearly twice that number. Overcrowding is the subject of three separate lawsuits filed in federal courts throughout Northern California. One judge set a mid-May deadline for the state to produce a plan to deal with the crowding. Two judges said they could seek to cap the inmate population, leading to the early release of inmates or keeping convicts longer in county jails, unless the state acts to solve the overcrowding.
Options for an immediate fix are few. Schwarzenegger has recommended an $11 billion prison and jail building program, as well as a review of sentencing guidelines, but both will take months if not years to have any effect.... Two weeks ago, Schwarzenegger and Democratic leaders met urgently in Sacramento to discuss solutions to the overcrowding crisis. Advisers to the governor and legislators have been meeting periodically since then, but have reported little progress in reaching a consensus. Lawmakers said they expect to meet again with the governor early next week.
March 6, 2007
Are there Libby victims (and will they seek to testify)?
Back in October 2004, Congress enacted a comprehensive Crime Victims' Rights Act (codified at 18 USC § 3771). Leading opinions on the CVRA from the Ninth Circuit and from District Judge Paul Cassell indicate that the CVRA guarantees, inter alia, that victims of all crimes have a right to allocute at sentencing.
In the wake of the Lewis Libby verdict, I am wondering whether his crimes have any victims and/or who might reasonably claim to be victims under the CVRA and demand a right to testify at his sentencing. Libby's crimes of obstruction of justice and perjury might technically be victimless under the CVRA terms. That said, one can readily imagine Joe Wilson or Valerie Plame claiming to be victims and trying to assert rights under the CVRA. (Notably, even if Wilson and Plame do not have rights under the CVRA, the sentencing judge likely would have discretion to hear from them if he wanted to.)
Moreover, given the political dynamics surround this case, I cannot help but wonder if some other folks might seek to assert CVRA rights as victims (if only to have a high-profile soapbox). Judge Cassell's CVRA opinion has explained that the CVRA sought to expand broadly victims rights at sentencing:
[T]he CVRA extends its rights more broadly [than prior law to extend] to all crime victims, that is, to any "person directly and proximately harmed as a result of the commission of a Federal offense." The CVRA definition is not limited to certain kinds of crimes. To the contrary, the sponsors of the CVRA described this as "an intentionally broad definition because all victims of crime deserve to have their rights protected."
Are there others persons beyond Wilson or Plame who might be able to plausibly claim they were "directly and proximately harmed" as a result of Libby's offenses?
Some recent related posts:
- Ninth Circuit discusses victim's right to allocute at sentencing
- Victims' rights and the Enron sentencings
More Libby sentencing speculation
The speculations about sentencing in the Libby case are already quite interesting: US News has this brief piece headlined "Libby Looking at 15 Months to Three Years, Experts Predict"; Wonkette has this more fun piece entitled "EXCLUSIVE LEGAL MUMBO JUMBO: What Will Happen to Scooter?" Here is the tail end of the Wonkette coverage:
[A]ssuming that Scooter doesn't have more than one previous conviction for something like DUI, he's got a guideline Offense Level of 17 or 20 points, with no other enhancements bringing it up or credits bringing it down. That's 24-30 months or 33-41 months. Keep in mind that the Judge can use his discretion to go outside the guidelines in any one of 3 ways: give Scooter 2 points off for accepting responsibility (which is unlikely, 'cause it'd require that either effectively confess guilt, ending any appeal hopes, or that the Judge find that the guy has accepted responsibility when he clearly hasn't -- but hey, Martha Stewart’s judge did exactly that); find that his age or health entitles him to some downward departure; or just scrap a bunch of time for shits and giggles.
My guess is 24 months -- the low end of the range for a 17 point offense level. There's also a possibility that the US Attorney could ask for a reduction under Rule 5K or Rule 35 for some sort of substantial assistance, but I wouldn’t hold my breath that Scooter's now going to help, and I wouldn't imagine that Fitzgerald is going to do anything unless Scooter can give up the secret information tying W to Saddaam in a gay sex-for-drugs scheme that took place in Rumsfeld's den.
On related fronts, here at CNN legal analyst Jeff Toobin is exploring "can Scooter Libby extend his time outside of prison long enough to get to that lame duck period when he might actually get a pardon?"
Related Libby sentencing posts:
Documenting and dissecting death's delay
I am very pleased to see that Barry Latzer is guest-blogging about his new death penalty study at Crime & Consequences. His co-authored study, which can be accessed here, is entitled Justice Delayed? Time Consumption in Capital Appeals: A Multistate Study. This USA Today article provided some highlights from the study, and Professor Latzer does so more systematically in his post at C&C.
I am still trying to find time to read the full report, but my cursory review of the findings suggests that the study documents lots of important data and has lots of important insights about post-conviction death penalty realities. I hope to discuss these data and insights a lot in future posts, but let me first just spotlight Professor Latzer's "recommended two general reforms to expedite the direct appeals process:"
First, eliminate intermediate court review. Alabama and Tennessee are the only states that use a two-step capital appeals process: intermediate appellate review followed by high court review. While some judges on the courts of last resort said they appreciated the narrowing of the issues and the second opinion provided by the intermediate courts, the significant time increment far outweighs this benefit. Direct COLR review is much more efficient.
Second, the states should adopt rules or statutes that impose deadlines on actors in the capital appeals process. Such deadlines work. Those states with statutes or court rules that set reasonable but enforceable deadlines for crucial activities such as the preparation of the record, the perfecting of appellate briefs, and the resolution of the case by the appellate court, complete the direct appeals process more expeditiously.
Fourth Circuit reverses sentence on denial of allocution right
The Fourth Circuit today in US v. Muhammad, No. 06-4516 (4th Cir. Mar. 6, 2007) (available here), reversed the outcome of a Booker resentencing because the defendant was denied his allocution rights. Here's the start of an interesting opinion on an interesting procedural issue:
Abdul Hafeez Muhammad, convicted of wire fraud and money laundering offenses, appeals a 121-month prison sentence imposed by the district court following an earlier remand for resentencing. We conclude that the district court plainly erred by denying Muhammad the opportunity to allocute at his resentencing hearing, and we exercise our discretion to notice this error. We therefore vacate Muhammad's sentence and remand for resentencing.
Comparing Lewis Libby and Victor Rita
Among the fascinating aspects of Lewis Libby's now upcoming sentencing is that his high-profile case resembles in various ways the case of Victor Rita, the defendant whose 33-month (within-guideline) sentence is currently under review by the US Supreme Court. I detailed some Libby-Rita parallels in this post last month, and here are the major highlights.
1. The parallel nature of the crimes. Like Lewis Libby, Victor Rita got caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that he lied under oath as part of the investigation. And, like Libby, Victor Rita asserted his innocence and exercised his right to a jury trial. (Victor was convicted of all five counts at trial; Libby's was acquitted on one of five counts, but that may not matter much for sentencing purposes.)
2. The parallel personal history. Like Lewis Libby, Victor Rita is an atypical federal defendant because of his career in government service. Rita served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, received over 35 military medals and awards. Libby's pre-conviction resume is (equally?) impressive. The federal guidelines do not provide any formal breaks for government service or prior good works. But, with Booker making the guidelines advisory, federal judges have more discretion to consider these matters at sentencing (though Rita's sentencing judge decided just to follow the guidelines).
Since Victor Rita's crimes seems, in context, to be less serious than Lewis Libby's crimes, I view Rita's 33-month sentence as a possible benchmark for Libby's sentence. Moreover, I have heard that Judge Walton has a reputation as a tough sentencing judge, and so Victor Rita's 33 month sentence might even be viewed as just a floor for considering Libby's fate.
JULY 2007 UPDATE: Welcome Huffington Post readers! For more on Victor Rita's case and fate, check out more recent posts here and here. For lots more Bush commutation discussion, check out the latest Libby posts.
First-cut Libby guideline calculations?
In this post early during the Libby deliberation I encouraged thoughtful musing about the advisory guideline range that Libby might be facing were he convicted on all counts. (As regular readers know, for sentencing purposes, conviction on four of five counts is good enough for government work.)
A number of commentors set forth a number of guideline calculation scenarios. It is easy to conclude that Libby falls into Criminal History Category I, but commentators suggested his offense level could be 14 or 17 or 19 or 24 or 27 or 30.
If Libby's calculated offense level is as low as 14, his advisory guideline sentencing range would be only 15-21 months; if it is as high as 30, his advisory guideline sentencing range would be only 97-121 months. Big difference (and this analysis does not even begin to cope with Booker and 3553(a)).
On to sentencing, Scooter!
I just got this news alert from the Wall Street Journal:
A federal jury found Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, guilty of obstruction, perjury and lying to the FBI in an investigation that originated from the leak of the identity of a CIA operative. The jury, which was reduced to 11 jurors after one juror was dismissed after being exposed to case-related information, found Mr. Libby guilty of four of the five counts he faced. He was found not guilty of one charge of false statements. Sentencing was set for June 5.
I will, of course, have a lot to say about the sentencing in the days ahead (and I have now created a new Libby sentencing category archive). Let me start this discussion by reviewing some prior posts on this topic:
- Should the Libby jury be told Scooter could be sentenced on acquitted counts?
- Sincere questions about acquitted conduct sentencing
What should we make of the federal prosecutorial purge?
As detailed in this AP article, "the investigation into the Bush administration's firings of U.S. attorneys intensified yesterday as lawmakers ordered two more ousted officials to tell their stories, and the Justice Department said that Republican Sen. Pete V. Domenici had complained repeatedly to the attorney general about one of the prosecutors." This related AP piece notes that "as many as six of eight former prosecutors dismissed in recent months were expected to tell House and Senate committees Tuesday that they were given little or no information about the reason for their firings."
Currently providing lots of (partisan) coverage is Josh Marshall at TPM. Among other interesting materials, TPM has this comment purportedly from a current federal prosecutor, writing anonymously, who views the prosecutorial purge "as part of a much larger story on the devastating impact of this administration's policies on the institution of the U.S. Attorney's Office." All the recent developments suggest that Tuesday's Senate hearing and House hearing on the firings ought to make for good theater. But is there any deeper story that will truly resonate?
Though much is often made about prosecutorial independence, a certain measure of politics clearly does, and arguably always should, shape prosecutorial policies and decision-making in state and federal criminal justice systems. There will be a Captain Renault quality to these hearings if members of Congress claim to be "shocked, shocked" to find that politics is influencing federal prosecutorial realities.
The challenges of sex offender treatment
The New York Times, with this piece headlined "For Sex Offenders, a Dispute Over Therapy's Benefits," completes its three-part series on sex offender confinement. Here is a snippet:
Treatment methods have become particularly topical as thousands of sex offenders are confined or restricted beyond their prison terms under civil commitment laws on the books in 19 states. The laws have been found constitutional in part because they aim to provide treatment if possible; New York legislators announced last week that the state would soon allow civil confinement.
On average, the civil commitment programs cost four times more than keeping sex offenders in prison. But too little research has been conducted into how to treat sex offenders, experts say, putting psychotherapists and others working in civil commitment centers at a distinct disadvantage.
Taking stock of death's recent decline
The National Law Journal has this article on recent death penalty developments entitled "More Lawmakers Take a Stand Against Death Penalty: Eleven states react to bad convictions, botched executions." Here is how it begins:
A perfect storm of problematic executions, wrongful convictions and recent court rulings against the practice of lethal injection has led a growing number of states to challenge the death penalty through lawsuits and legislative action.
Adding still more to the momentum are a public backlash against the cost of capital cases and the development of more effective defense techniques, such as mitigation specialists who humanize death row inmates.
Eleven states have halted some or all executions -- including Florida and Maryland in December -- and more lawmakers have been speaking out against the death penalty.
March 5, 2007
SCOTUS developments, sentencing-free?
As noted here at SCOTUSblog, the Supreme Court issued two (non-criminal) opinions today and orders. Here are a few sentencing-related thoughts about today's sentencing-free action:
The denial of cert in Bernie Ebbers' appeal is garnering press attention, though I would have been surprised if the Supreme Court had taken up his legal challenge to his conviction. What's unclear is whether Ebbers' cert petition included a challenge to the reasonableness of his 25 year (below guideline, post-Booker) sentence. If Ebbers' did raise a claim about the reasonableness of his sentence, I wonder if SCOTUS considered holding the petition until it decides the standards for reasonableness review in Claiborne and Rita. As noted here, some circuits are holding sentencing appeals pending a SCOTUS ruling, and I would have thought that SCOTUS would be doing the same in any case where the post-Booker sentencing issues are debatable.
Meanwhile, the continued absence of an opinion in James v. US, which concerns criminal history predicate offenses under the ACCA, is making it hard for me to resist speculating that something big might be afoot. When reading the November oral argument transcript in James (discussed here), I kept thinking that this case could provide an opportunity for the Court to overturn the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule. Of course, this issue was not briefed and perhaps the delay in James is the result of the opinon being assigned to a "slow Justice." Still, anytime we get within the ambit of Apprendi-Blakely rules, perhaps it is wise to expect the unexpected.
brings breaks equipoise on post-Booker Rule 32(h) debate
Federal sentencing fans know that, since Booker, the circuits have been deeply split over wither the notice provision of F.R. Cr. P. 32(h) for sua sponte upward departures does or does not apply to Booker variances. Late last week, the Fifth Circuit weighed in through its opinion in US v. Mejia-Huerta, No. 05-11391 (5th Cir. Feb. 28, 2007) (available here). This paragraph usefully summarizes the split and the Fifth Circuit's ruling:
Since Booker, an incongruent pattern of caselaw has developed among those federal circuits that have considered whether Burns or Rule 32(h) continue to apply to non-Guidelines sentences. The Third, Seventh, and Eighth Circuits have answered in the negative; the Second, Fourth, Ninth, and Tenth Circuits have answered in the affirmative. In an unpublished and thus non-binding opinion, we have previously determined that a sentencing court's failure to provide notice of its intention to impose a non-Guidelines sentence post-Booker does not constitute plain error, but we have expressly declined to rule on whether such failure constitutes error. We now enter the fray, agreeing with the bare minority among the circuits that have addressed the issue and thereby bringing the circuit split on this issue into equipoise.
Ahh... equipoise, what a blistful post-Booker state. Let's see how long this lasts.
UPDATE: A helpful reader confirmed my nagging suspicion that the Fifth Circuit's Rule 32(h) head-count was off:
Alas, the Fifth Circuit decision breaks equipose. The Fifth Circuit didn't notice that the Eleventh Circuit has already answered in the negative. See United States v. Irizarry, 458 F.3d 1208 (11th Cir. 2006).
Second Circuit reverses above-guideline sentence as unreasonable
Today in US v. Sindima, No. 06-2245 (2d Cir. Mar. 1, 2007) (available here), the Second Circuit reverses an above-guideline sentence as unreasonable. Here is the start of a long and thoughtful opinion:
Following a guilty plea on federal mail fraud charges, the United States District Court for the Western District of New York (Richard J. Arcara, Chief Judge) imposed upon the defendant, Felix Sindima, a sentence under the United States Sentencing Guidelines of, principally, three years' probation. The terms of probation included a prohibition against Sindima's commission of any further crime. Thereafter, while still on probation, Sindima was charged with two violations of that prohibition. The district court found Sindima guilty of both. On April 13, 2006, the court imposed a sentence of thirty-six months' imprisonment, twenty-six months above the high end of the advisory Guidelines range. Sindima appeals, asserting that the sentence is substantively unreasonable.
We conclude that under the circumstances presented, the district court's statement of reasons for the length of the sentence are inadequate to assure us that they are "sufficiently compelling [and] present to the degree necessary to support the sentence imposed." United States v. Rattoballi, 452 F.3d 127, 137 (2d Cir. 2006). Accordingly, we remand.
Second NYT piece on sex offender confinement
Following up this initial article, the New York Times today has this long story headlined "A Record of Failure at Center for Sex Offenders" as the second of its three-part series on sex offender confinement. Sex Crimes has coverage here (along with lots of other good new stuff), as does Corrections Sentencing here.
Commentary on federal failure-to-register offense
At the National Law Journal, Wayne Logan has this thoughtful piece addressing the new federal Adam Walsh Act, which includes a provision making it a federal crime for sex offenders to cross state lines and not register anew. Here's a snippet:
This past July, Wilfredo Madera did something that millions of people do every year: He changed state residences. His legal status, however, complicated matters. A registered sex offender in New York, Madera was required to register with authorities upon his arrival in Florida. As of October, he had failed to do so, risking five years in prison and a $5,000 fine under Florida law.
By failing to register, Madera joined the thousands of other individuals nationwide who daily violate registration requirements. His case, though, would prove different in a significant way. As a result of the newly enacted Adam Walsh Act, he would be arrested by U.S. marshals, prosecuted in federal court and subject to 10 years' imprisonment and a $250,000 fine, sanctions far in excess of Florida law.
While since 1994 Congress has pressured states to comply with federal registration expectations, threatening loss of funds if they do not, the failure-to-register provision marks a new, complementary modus operandi. Congress has now created a criminal offense, making it a federal felony to cross state lines and not register anew. In October, U.S. marshals undertook Falcon III, a highly publicized roundup of nonregistrants, including Madera, who is the first to be convicted under the new law.
A federal trial court recently rejected Madera's several legal challenges, including that Congress exceeded its authority under the Constitution's commerce clause in federalizing what has always been a state crime. The outcome is sure to be appealed and Madera's case, or one like his, will in time likely come before the U.S. Supreme Court.
NYTimes piece on Arizona's capital craziness
Today the New York Times has this article, entitled "Policy Shift on Death Penalty Overwhelms Arizona Court," on the impact of and debate over the death penalty push by Maricopa County's prosecutor. Here is how the piece begins:
Maricopa County, one of the nation's fastest growing counties, now has an additional distinction: It is also a leader in seeking the death penalty.
During his two years in office, Andrew P. Thomas, the county attorney, has nearly doubled the number of times that the office has sought the death penalty, even though the number of first-degree murder cases prosecuted by the county has remained more or less the same for a decade. A policy change that he enacted has contributed to a backlog of capital cases here that has crippled the county's public defender system, left roughly a dozen murder defendants without representation, and prompted rancor and demoralization in the agencies that defend capital cases.
Recent related posts:
A weighty Booker resentencing
Though the details presented by this New York Daily News article are sketchy, it appears that a federal judge in New York has relied in part on a defendant's weight loss to impose a lower term in a Booker resentencing. Here's part of the report:
A controversial jurist whose mouth keeps getting him into trouble granted an early release to a Mafia enforcer last week after noting the wiseguy lost weight in prison and didn't look so scary anymore, the Daily News has learned....
[Brooklyn Federal Court Judge Frederic] Block handed a get-out-of-jail-free card to Gambino crime associate Richard Bondi, aka The Lump, a once-massive mobster who weighed 300 pounds. But when Bondi came before Block for resentencing after a long prison stint, he looked like a new man. "He's lost a lot of weight," Block observed. "He's a lot less of a big guy than he was before," agreed defense lawyer Richard Medina.
Bondi, 47, credited the new look to playing handball in prison, where he had been serving a 57-month term for extortion -- a jail term dictated at the time by federal sentencing guidelines. After a U.S. Supreme Court ruling restored sentencing discretion to federal judges, Bondi asked for a review.
At the 2003 racketeering trial of former crime boss Peter Gotti, prosecutors argued that Bondi's bulk was deployed to frighten a union official, a restaurant owner and even tough-guy actor Steven Seagal. Assistant U.S. Attorney Katya Jestin argued that Bondi should get the same sentence he did before.
But the judge had a different viewpoint. "I remember running into him in the elevator once . . . and he scared me," Block said. "Looking at him now, he may be out of a job in the future. I don't think he would scare anybody now. It's his bulk and size that was really the essence of his role." Block ... decided to set Bondi free in two weeks, canceling the remaining 18 months.
If this account of the resentencing is accurate, I might expect the government to appeal this ruling. Is Judge Block's reduction based on Bondi's reduction reasonable?
March 4, 2007
Should the Libby jury be told Scooter could be sentenced on acquitted counts?
As detailed here and here and here, the Libby jury concluded deliberations last week by asking a question about the meaning of reasonable doubt. Though others are trying to read the tea leaves presented by the jury's question, I am thinking about whether the jury might be working on a split verdict on the five counts. I am also wonder if folks think the jurors should be told that, even if they acquit on some counts, Libby could still be sentenced based on all the acquitted conduct if they come back with even a single conviction on the five counts.
Some related posts on Libby sentencing and on acquitted conduct:
- Pre-conviction speculation about possible sentencing term for Libby
- Could Libby's decision not to testify now result in an obstruction-of-justice enhancement?
- Sincere questions about acquitted conduct sentencing
Will sentencing issues surface in the Clinton-Obama battle for black votes?
This front-page New York Times article, entitled "Recalling Civil Rights, Democrats Seek Black Votes," spotlights that the democratic race for the 2008 presidential nomination is creating "one of the most competitive scrambles for black supporters since the Voting Rights Act was passed four decades ago." In the article, a Clinton adviser says "African-Americans historically align with people based on issues, not personality," and that has me thinking about criminal justice issues in the Clinton-Obama battle for black votes.
As I noted here a weeks ago, neither Hillary Clinton nor Barack Obama has spoken directly on many crime and punishment issues, but there are plenty of back stories in light of their personal and professional history. Moreover, I think some bold statements about felon disenfranchisement or the crack/powder disparity or the death penalty could really catch the attention of black voters, many of whom are aware and greatly concerned about the racial skew in the operation of state and federal criminal justice systems. And yet, as Hillary's husband recognized, being tougher on these issues, not being more progressive, seems to be the key to scoring political points with white voters.
For reasons emphasized in some posts listed below, these issues will be worth watching closely in the months ahead:
- Clinton and Obama, crime and punishment
- Major conference on race and criminal justice
- Racial disparity and sentencing reform
- New (depressing) report on race and increased incarceration
- Drugs and racial discrimination
- A call for USSC to focus on racial disparity
Florida gov seeks national LI review
As detailed in this AP report and this official statement, Florida Governor Charlie Crist on Friday responded to this week's report by the state's Commission on Administration of Lethal Injection by ordering "the head of the state prison system to conduct a study of how lethal injection is carried out by the federal prison system and in 37 other states." As the official statement indicates, Gov Crist believes this national review "will expand the perspective needed for future action on this issue."
I am pleased to see Gov Crist recognize the value of looking for nationwide guidance on the important issue of lethal injection protocols. As detailed in posts below and in a recent article of mine, I have long thought and hope that Congress might step up and show some national leadership on these issues, rather than require each state to struggle through these difficult issues on their own.
Recent related posts:
- Florida's LI Commission has final recommendations
- Florida LI commission report
- Does the Florida LI commission's recs require greater doctor involvement?
- How could (and should) Congress clean up the lethal injection mess?
- A lethal hearing (in the wrong place?)
- Who will demonstrate lethal injection leadership?
- An interesting perspective on the lethal injection mess
- Isn't it finally time for Congress to do something about lethal injection problems?
Ohio lethal injection litigation going forward
As noted here and here, on Friday a divided three-judge panel of the Sixth Circuit ruled that an Ohio death row defendant's lethal injection challenge was time-barred. Accord to this news report, this "ruling will be appealed to the entire 6th Circuit court, and to the U.S. Supreme Court if the full appeals court upholds it, said Gregory Meyers, chief counsel to the Ohio Public Defender, who is representing" the defendant.
This further appeals process could take many weeks and perhaps many months, and this is all a squabble over a procedural issue and does not directly address the soundness of Ohio's lethal injection protocol. Meanwhile, there are three executions scheduled for Ohio over the next three months. Stay tuned, and remember that Ohio Death Penalty Information is the place to follow all the Ohio capital action.
NYTimes on sex offender confinement
In what appears to be the first of a series of articles on sex offender confinement, the New York Times today has this major story headlined "Doubts Rise as States Detain Sex Offenders After Prison." Included with the piece are a series of pictorials and this amazing graphic with lots of interesting information about civil confinement realities around the country. Here is how the article begins:
The decision by New York to confine sex offenders beyond their prison terms places the state at the forefront of a growing national movement that is popular with politicians and voters. But such programs have almost never met a stated purpose of treating the worst criminals until they no longer pose a threat.
About 2,700 pedophiles, rapists and other sexual offenders are already being held indefinitely, mostly in special treatment centers, under so-called civil commitment programs in 19 states, which on average cost taxpayers four times more than keeping the offenders in prison.