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.