March 24, 2007
Politics and the war on drugs
Today's Los Angeles Times has this strong op-ed by Arianna Huffington entitled "The war on drugs' war on minorities: Democratic presidential candidates crave the Latino and black vote, but ignore the Drug War's unfair toll on people of color." Here are some snippets:
There is a subject being forgotten in the 2008 Democratic race for the White House. While all the major candidates are vying for the black and Latino vote, they are completely ignoring one of the most pressing issues affecting those constituencies: the failed "war on drugs" — a war that has morphed into a war on people of color....
[A] quick search of the top Democratic hopefuls' websites reveals that not one of them — not Hillary Clinton, not Barack Obama, not John Edwards, not Joe Biden, not Chris Dodd, not Bill Richardson — even mentions the drug war, let alone offers any solutions. The silence coming from Clinton and Obama is particularly deafening....
Because of disenfranchisement statutes, large numbers of black men who were convicted of drug crimes are ineligible to vote, even those who have fully paid their debt to society.
A 2000 study found that 1.4 million African American men — 13% of the total black male population — were unable to vote in the 2000 election because of state laws barring felons access to the polls. In Florida, one in three black men is permanently disqualified from voting. Think that might have made a difference in the 2000 race?
Our shortsighted drug laws have become the 21st century manifestation of Jim Crow. Shouldn't this be an issue Democratic presidential candidates deem worthy of their attention?
Some related posts:
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Clinton and Obama, crime and punishment
- Racial disparity and sentencing reform
- New (depressing) report on race and increased incarceration
- Drugs and racial discrimination
Major new report on incarceration of kids as adults
Thanks to this post at TalkLeft, I see that the Justice Policy Institute has helped produce an important new report on the incarceration of youth in adult prisons. The report is entitled, "The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform," and is available at this link. This summary comes from this press release:
The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform presents research, statuary analysis, and case studies to highlight the problems with the policies and practices that treat young people as adults in the justice system. The study examines the laws and data in seven key states: California, Connecticut, Florida, Illinois, North Carolina, Virginia, and Wisconsin. An estimated two hundred thousand youth end up in the adult system each year, and 40 states allow or require the jailing of youth in adult facilities before they ever go to trial.
Youth prosecuted as adults are often held in adult jails for months or years, even though most are charged with nonviolent offenses, the report demonstrates.... Data shows that tens of thousands of young people end up in the adult system for non-violent offenses. In 2003, over half the youth in California’s adult system were prosecuted for misdemeanors and less than 30 percent received a prison sentence, suggesting that the majority of youth could be safely handled in the juvenile justice system. Of the 8,000 young people who enter Connecticut’s adult court system, the vast majority are arrested for non-violent offenses. In 2002 almost 14,000 17-year-olds were admitted to Wisconsin’s adult jails but only 15 percent of these youth were arrested for violent crimes.
March 23, 2007
FSR Issue on Claiborne and Rita
I have finally put the finishing touches on the Federal Sentencing Reporter's latest issue, which is entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court." As the title suggests, this issue of FSR is focused primarily on the two post-Booker cases now pending before the Court. Here's a review of the contents:
- Douglas A. Berman, Claiborne and Rita — Booker Clean-up or Continued Confusion?
ARTICLES ON POST-BOOKER SENTENCING
- Frank O. Bowman, III, "The Question Is Which Is to Be Master—That's All": Cunningham, Claiborne, Rita, and the Sixth Amendment Muddle (available via SSRN here)
- Nancy Gertner, Thoughts on Reasonableness
- Carissa Byrne Hessick & F. Andrew Hessick, Rita, Claiborne, and the Courts of Appeals' Attachment to the Sentencing Guidelines (available via SSRN here)
- Alexandra A.E. Shapiro & Nathan H. Seltzer, Guidelines or Higher: NYCDL's Study of Reasonableness Review Patterns Reveals the Courts of Appeals' Aversion to Parsimony
- Regina Stone-Harris, How to Vary from the Federal Sentencing Guidelines Without Being Reversed
ARTICLES ON BROADER GUIDELINE OPERATION
- Lynn D. Lu, Prosecutorial Discretion and Racial Disparities in Federal Sentencing: Some Views of Former U.S. Attorneys
- John F. Pfaff, The Vitality of Voluntary Guidelines in the Wake of Blakely v. Washington: An Empirical Assessment
- Frederick H. Weisberg & Kim S. Hunt, Voluntary Sentencing Guidelines in the District of Columbia: Results of the Pilot Program
Other recent FSR issues on Blakely, Booker and federal sentencing dynamics:
- FSR Issue 18.5: Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines
- FSR Issue 18.4: Sentencing at the Supreme Court
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
A decade of Ohio sentencing reform
To mark what is roughly the 10-year anniversary of sentencing reform in Ohio, the Ohio Criminal Sentencing Commission has created a terrific primer fittingly entitled "A Decade of Sentencing Reform." Though focused exclusively on Ohio developments, the report covers an array of topics that should be of interest to all students of modern sentencing reforms. This report can be downloaded here: Download ohio_decade_of_sentencing_reform.doc
Busy sentencing times around the circuits
Though I surmise some sentencing work in the circuits is on hold as SCOTUS sorts through Claiborne and Rita, a quick tour of circuit websites reveals that parts of the sentencing show must still go on. In fact, I have seen notable opinions covering sentencing issues today from the DC, First, Third, Sixth, Seventh and Eighth Circuits. Here are the two items in today's released opinions that really caught my attention:
1. Criminal history fans will want to check out the DC Circuit's work in US v. Andrews, No. 03-3030 (DC Cir. Mar. 23, 2007) (available here), which is another case debating what constitutes a "crime of violence" and has a long thoughtful concurrence by Judge Williams.
2. Booker fans will want to check out the Sixth Circuit's (unpublished) work in US v. Kosinki, No. 05-2664 (6th Cir. Mar. 22, 2007) (available here), which reviews lots of post-Booker basics, but then makes this not-so-basic assertion about the scope of post-Booker discretion when ordering resentencing:
[T]he district court has discretion to calculate and consider the tax loss amount for sentencing purposes provided that 1) the district court does not consider itself required to do so, and 2) as long as the calculation is based on reliable information and supported by a preponderance of the evidence. See United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005).... [T]he district court may — but is not required to — calculate or consider Defendant's tax loss amount... (emphasis added)
A district judge sitting by designation, concurring in Kosinki, questions the Kosinki majority's suggestion here that a district court after Booker has discretion not to calculate a loss integral to determining the applicable guideline range. A helpful reader pointed me to this potentially important (though unpublished) decision. A district judge in the Sixth Circuit might now point to Kosinki to support a decision not to bother working through particular guideline intricacies in a particular case.
On Fisher's ability to hook Justice Scalia
The ABA e-Journal has this great new piece discussing Jeff Fisher's ability in both Crawford and Blakely to connect Justice Scalia and the Supreme Court's liberal wing to develop new rights for criminal defendants. The piece is entitled "A Sixth Sense About Criminal Trials: A young litigator unites Justice Scalia and the court's liberals over defendants' rights," and here are parts of a great article:
Fisher aimed his pitch right [in Crawford] at Scalia's jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution's text, and an adherence to bright-line rules. Add for good measure a reverence of 18th century colonial history. For Scalia, originalism says that the Constitution's founders meant what they said and said what they meant. So the court must be faithful 100 percent....
"When it comes to having a jury or witness confrontation or lawyer you pick, it's all or nothing," says University of Pennsylvania law professor Stephanos Bibas, who writes frequently about criminal procedure issues. That meant that in Crawford the court scuttled its long-held test for admitting out-of-court statements, a balancing formula that measured a statement's reliability....
For Scalia, few things grate more abrasively than balancing tests.... "Balancing tests are great if the judiciary shares your values," Fisher says. "As soon as the judiciary doesn't share your values, you need hard-and-fast rules."
Courts, including the Supreme Court, increasingly have favored the prosecution through the 1980s and '90s, says Fisher. "Most federal judges come from the prosecution side," he says. The consequence has been a series of setbacks for the criminal defense bar and for those judges and justices who favor defendants' rights.... "Liberals need not run from constitutional text. They can embrace it."
Scalia’s originalism also speaks to his faith in juries, according to Bibas, and for that the justice relies on colonial history. "The founding generation trusted juries, and not judges, in part because King George III had pressured judges and used them to oppress the colonies," Bibas says. For Scalia, the jury is nothing short of democracy itself — “the spinal column of American democracy,” he wrote in a 1999 case, Neder v. United States, 527 U.S. 1.
High-profile attack on acquitted conduct
Today's New York Sun has this article by Josh Gerstein, entitled "Al-Arian Asks Supreme Court To Overturn His Sentence," which spotlights a high-profile cert petition raise complains about a claimed sentence increase based on acquitted conduct. Here are details:
A Florida college professor who pleaded guilty to a charge of providing services to Palestinian Islamic Jihad, Sami Al-Arian, is asking the Supreme Court to overturn his 57-month prison sentence.
In a petition filed earlier this month, a lawyer for Al-Arian argued that the judge improperly punished the former University of South Florida professor for conduct that a jury acquitted him of during a six-month trial in 2005. "The record of the … sentencing hearing unambiguously demonstrates that the sentencing court did hold ‘acquitted conduct' against the defendant, to justify extending his incarceration for nearly a year," Al-Arian's attorney, C. Peter Erlinder, wrote. "It is difficult to imagine a clearer case for the need for protection against judicial hubris."
I am quoted in the article saying that SCOTUS should take up the issue of acquitted conduct sentence increases. But, as I also said to Josh Gerstein, the facts of the Al-Arian case may not present the best vehicle for the Justices to examine this issue.
Some recent posts on acquitted conduct sentence increases:
More of the costs of a capital case
The Atlanta Journal-Constitution today has this intrigung article that, along with the graphic shown here, seeks to details all the costs of the death penalty prosecution of courthouse killer Brian Nichols. Here is how it starts and some additional details:
Sparks fly over the multimillion-dollar defense of Brian Nichols, but few people complain about the cost of prosecuting the accused courthouse killer. In fact, no one even knows the bottom line. But the Nichols prosecution is running up a hefty tab of its own, a review of court filings, personnel and other information obtained through the Georgia Open Records Act shows.
Some legal experts predict police and prosecutors will spend twice as much — $4 million or more — as the defense by trial's end. The spending does not stop there. Other court expenses, including jury costs and the paychecks of the judge and courtroom security, could top $1 million....
The $82.5 million spent to investigate and prosecute Oklahoma City bombers Timothy McVeigh and Terry Nichols is believed to be a record. Defending McVeigh, who was executed for the 1995 attack that left 168 dead, cost more than $13 million.
Richard Burr, one of McVeigh's lawyers, said the defense team reached 14 lawyers plus six investigators and a number of paralegals. They had to sift through almost 500,000 pages of documents, he said. The cost of the defense is directly proportionate to the cost and the extent of the prosecution," Burr said. "The more work they do and the more resources they use, there has to be a corresponding response by the defense. That said, the defense resources never come close to the prosecution's."
Burr estimated the Nichols prosecution will cost two to three times more than his defense.
Some related posts:
HLR case comment on crack ruling
I noted a great Harvard Law Review note on lethal injection litigation here, and now I have the opportunity to spotlight a great forthcoming HLR casenote on US v. Spears, the Eighth Circuit post-Booker crack ruling. The casenote can be downloaded below, and here is a snippet:
Recently, in United States v. Spears, the Eighth Circuit ruled that it was impermissible for a district judge to grant a reduced sentence to a crack offender based on categorical disagreement with the ratio. This decision relied on questionable conclusions about Congress’s intent regarding both the 100:1 ratio and the place of judicial policy choices in a post-Booker world, and its result cabins judges into a cramped and counterproductive role in the sentencing of crack offenders.
How 'bout them Buckeyes!
March 22, 2007
Fifth Circuit gives short shrift to effort to do crack sentencing justice
In a brief per curiam opinion today in US v. Leatch, No. 06-10526 (5th Cir. Mar. 22, 2007) (available here), the Fifth Circuit follows the misguided herd of other circuits on post-Booker crack sentencing by holding that "a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair." I have explained at length in many prior posts (see, e.g., here and here) why I view this kind of ruling seems so substantively misguided.
Rather than replay my core substantive concerns with the Leatch ruling, let me spotlight some other worries:
1. Why decide this case now rather than await the Supreme Court's direction in Claiborne? As discussed here, apparently numerous circuit courts have decided to hold certain cases in abeyance pending Claiborne's resolution. Leatch would seem especially worthy of holding.
2. In the Claiborne oral argument, Justice Breyer said explicitly "one big power a judge has that they didn't have before, after Booker, is to say the guideline itself is unreasonable." Claiborne transcript at 31. And the Deputy SG also essentially conceded this point during the argument. In light of the SG's concession on Claiborne, the government arguably ought to now dispute the outcome in Leatch.
Feds moving to reduce Abramoff's sentence for cooperation
As all participants in the federal sentencing system know, the best rats always eventually get fed some sentence-reduction cheese. And today, as detailed in this AP story, the high-profile cooperator making headlines is Jack Abramoff. Here are the basics:
Federal prosecutors took the first steps toward reducing the prison sentence of former Washington lobbyist Jack Abramoff, currently scheduled for release in 2011 for a Florida fraud conviction. Documents filed in federal court say Abramoff has provided "substantial assistance" in a separate Washington corruption scandal investigation and continues to work with investigators from his prison cell in Cumberland, Md.
Assistant U.S. Attorney Paul F. Schwartz did not recommend how much Abramoff's sentence should be cut. In the court papers filed Wednesday, Schwartz said prosecutors would recommend a reduction in his sentence and would file further documents describing the "nature, extent and value" of his cooperation
Lots of interesting stuff at SSRN
Here are just some of the interesting-looking new papers I spotted on SSRN for adding to my always growing "to read" pile:
- And Unusual: Examining the Forgotten Prong of the Eighth Amendment by Joshua Lane Shapiro
- From the Asylum to the Prison: Rethinking the Incarceration Revolution - Part II: State Level Analysis by Bernard E. Harcourt
- How Privatization Thinks by Sharon Dolovich
- Shame and the Meanings of Punishment by Chad Flanders
Judge Cassell laments limits of federal restitution
District Judge Paul Cassell issued an interesting opinion yesterday that seeks to explain why the current federal restitution statutes unduly limit the power for federal judges to make crime victims whole. Here is the first paragraph of US v. Garcia, No. 2:05-CR-00827 (D. Utah Mar. 21, 2007) (available for download below):
This case illustrates the need to reform our federal restitution statutes. Defendant Ruby Garcia assumed the identity of a victim (who will be called “H.F.” here) by ordering credit cards in H.F.’s name. Ms. Garcia then ran up thousands of dollars in charges on these and other cards. While Ms. Garcia was quickly caught, the damage to H.F. was substantial. Although she was not liable for charges on the cards (the banks involved suffered that loss), it took H.F. considerable time and emotional energy to clear her credit. Because H.F. is, in her words, “a working mother and wife,” time is “the most precious thing [she] has.” Yet the court is without power to order any restitution for her lost time — in other words, the court is powerless to make H.F. whole for her losses from the crime committed against her. Because the court’s inability to provide full restitution here is a recurring problem, a short opinion describing the problem is appropriate.
Confronting the costs of capital punishment
This New York Times article discusses how a high-profile Georgia case is forcing folks in the state to appreciate and contemplate the economic costs of a capital punishment system. Here are snippets:
A high-profile multiple-murder case has drained the budget of Georgia's public defender system and brought all but a handful of its 72 capital cases to a standstill.
The case involves a rape suspect, Brian Nichols, who is accused of escaping from a courthouse here in 2005 after overpowering a guard, taking her gun and then killing a judge, a court reporter and two other people before he was recaptured. Prosecutors say the evidence against Mr. Nichols, including a videotaped confession, is overwhelming. But the case has cost the public defender system $1.4 million, and, on Wednesday, the judge in the case postponed jury selection until Sept. 10.
The judge, Hilton Fuller, said the "issue of funding" and the "complexities of this case have prevented an orderly and uninterrupted" method of proceeding. The Georgia Public Defender Standards Council, which manages the public defender system, has run out of money....
The situation has become a political issue as the legislature weighs a request for $9.5 million to keep the public defender system solvent through the fiscal year, which ends in June. The case "is testing the will of the state of Georgia with regard to whether or not the death penalty is worth the amount it costs," said Mike Mears, director of the standards council.
Georgia is not the only state pondering the cost of defending suspects in death-penalty cases. This year, the Colorado House Judiciary Committee voted to abolish the death penalty, replacing it with a sentence of life without parole, and to use the money currently spent on capital punishment to help solve some 1,200 cold-case homicides. The bill's sponsor, Representative Paul Weissmann, a Democrat, said it had cost the state $40 million in three decades to execute one inmate and put two others on death row. The bill now goes to the House Appropriations Committee. In Arizona, Maricopa County, which has been overwhelmed by a surge in capital cases, may not seek the death penalty in some cases to save money, officials there said....
Mr. Nichols has offered to plead guilty to all charges in exchange for a sentence of life without parole, but Paul Howard, the Fulton County district attorney, has refused to take the death penalty off the table. "The Nichols case could have been ended millions of dollars ago if the D.A. had been prepared to accept life without parole," said Emmet J. Bondurant, the departing chairman of the Public Defender Standards Council. "You can’t fault the defense for trying as hard as they can to save a man's life."
Some related posts:
March 21, 2007
Will Texas execute a woman next month?
The Death Penalty Information Center now has new coverage on its homepage of the case of Cathy Henderson who "is scheduled to be executed in Texas on April 18 for the 1994 murder of Brandon Baugh, an infant she was babysitting." As detailed here and in this television segment, since her arrest "Henderson has maintained that the child's death was accidental." Henderson claims that she dropped the baby, fracturing his skull, and then panicked and fled (after burying the body).
As noted here, Texas is the one state still in the execution business these days. (DPIC details here that 9 of the 10 US executions in 2007 have been in Texas.) But Henderson does have a clemency petition pending, and her intriguing "partial innocence" claim might provide a basis for some executive sympathy. More generally, as DPIC covers here, only 11 of 1067 executed persons in the modern capital era have been women (and I believe most of the executed women committed crimes arguably more heinous than Henderson).
Especially at a time when so many outside of Texas are questioning the death penalty, it will be very interesting to see how much and what kind of attention Henderson's case gets as her execution approaches.
Interesting death sentencing SCOTUS argument
This AP story provides some highlights of today's SCOTUS oral argument in Roper v. Weaver, which examines a range of issues surrounding a state prosecutor's provocative closing statements during the penalty phase of the capital trial. The official transcript, which is available at this link, is much more to read than yesterday's habeas hullabaloo in Fly v. Pliler (discussed here).
Sentencing job in Blakely's backyard
Any sentencing fan wanting to take their interests to a new level should consider applying for an exciting position now open in the land of Blakely. As detailed in the flier that can be downloaded below, the "Washington State Sentencing Guidelines Commission (SGC) located in the heart of the beautiful Pacific Northwest is seeking a dynamic, legal and legislative-minded Executive Director with technical, policy, managerial, and interpersonal skills."
Though I doubt this job pays quite what federal judges earn, I cannot imagine a more exciting opportunity for persons experienced in the field of sentencing. All the pertinent information about qualifications and application procedures can be found in the flier.
Great HLR note on lethal injection litigation
In this post a few months ago, I expressed my hope that other scholarly voices will start expounding balanced wisdom on all the lethal injection developments. I am now pleased to have discovered that a student at my alma mater has stepped up to the plate. Specifically, in the latest issues of the Harvard Law Review there is now this Note entitled "A New Test For Evaluating Eighth Amendment Challenges To Lethal Injections." The Note is too full of good insights to summarize, and so I'll just reprint the piece's conclusion:
The recent explosion of lethal injection litigation has left courts in a difficult situation. Eighth Amendment challenges to methods of execution are exceedingly difficult to adjudicate as a result of the vagueness of the existing tests and profound disagreement on how they should be applied. Lethal injection challenges are particularly problematic, requiring complex factual determinations and detailed remedies with almost no doctrinal guidance.
Courts should adopt a rule that accounts for both the objective measure of pain or risk associated with the procedure and the state's interest in choosing the procedure. Such a rule would be judicially manageable and consistent with Eighth Amendment precedent. But the onus should be on state executives and legislatures to craft improved protocols. Prompt action by the states would preclude potentially inappropriate judicially crafted remedies and ensure the successful administration of capital punishment.
Needless to say, this Note in especially timely in light of all the lethal injection mess in Ohio and elsewhere (basics here and here and here). Of course, I also like the piece because it is in harmony with my article last year on lethal injection developments for the Cato Supreme Court Review, entitled "Finding Bickel Gold in a Hill of Beans," in which I urged Congress and state legislators to do more to clean up the lethal injection mess.
YLJ Pocket Part on organizational sentencing
Continuing its strong work on covering sentencing issues, the latest installment of The Yale Law Journal's Pocket Part now has three short essays on the prosecution and sentencing of organizations. Here's a summary drawn from an e-mail I received from a helpful YLJ insider:
- The lead piece, by recent YLS grad Timothy Johnson, follows up his YLJ note by arguing that Booker's holding applies to the jury trial rights of organizations.
- Former DOJ lawyers Christopher Wray and Robert Hur respond in this piece; they argue that the organization guidelines have much less effect on corporate behavior than do the decisions of US Attorneys to initiate prosecutions, and they discuss the DOJ's efforts (most recently in the McNulty Memo) to make these charging decisions more transparent, consistent, and predictable.
- Professor Peter Henning adds in this response a call for the Organizational Guidelines to be abolished altogether: "the moment has arrived to put them to rest as a worthy effort whose time simply has passed."
Big retroactivity SCOTUS development?!?
Minutes after I finish this playful SCOTUS post, I discover this thoughtful post at SCOTUSblog entitled "Court to study scope of Teague retroactivity." The report by Lyle Denniston details a notable retroactivity briefing request from the Court. Here are the basics from Lyle:
The Supreme Court indicated on Tuesday that at least some Justices are interested in claims by state prisoners that they should be able to get more retroactive benefit out of U.S. Supreme Court decisions that lay down new rules of criminal procedure. The Court's electronic docket shows an order asking the state of Minnesota to discuss that question.
Here is how the Court phrased its inquiry in the pending case of Danforth v. Minnesota (06-8273): "Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?" (emphasis added).
In other words, the Court seems prepared to explore (only two decades after Teague) response whether state courts are bound to apply Teague in state-court collateral attacks.
As Lyle details, the Danforth case is focused on a Crawford issue. But, this obviously could become a significant issue in efforts to apply Blakely (or even Apprendi) retroactivity. Indeed, a thoughtful reader e-mail this reaction to this development: "If they take up a Blakely retroactivity case too, then that will pretty much nail down, one way or the other, the state of Blakely retroactivity."
Do the Justices have writer's block? the blue flu? spring (training) fever?
Though much has been made about the Supreme Court's small docket this Term, I am now more intrigued by the slow pace of its decision-making. By the end of March 2005, the Court had produced 37 opinions (including Booker) for OT '04; by the end of March 2006, it had released 43 opinions for OT '05; but so far this term we have gotten only 23 opinion. Moreover, because of the light (and somewhat uninspired) docket, the slow SCOTUS production cannot really be blamed on having to spend a lot of time gearing up for oral arguments. And, my own anecdotal impression has been that, even in the few notable cases that have been decided, not all that much notable has been said by the Justices.
So what gives? Are a few hard cases or a few struggling Justices slowing everything down? Have the Justices adopted a "blue flu" slow-down in productivity to protest being underpaid? Has the lecture circuit been just too much fun to give up for the day-to-day drudgery of proofing a draft opinion?
I am not generally opposed to the notion that "less is more" from the Supreme Court. A 25-page unanimous opinion in Booker likely would have been a lot more helpful to everyone than the 100+ page two-headed monster that the Court produced two years ago. Still, it is hard not to wonder what exactly is going on these days at One First Street.
Helpfully, a double-secret source from inside the Court sent me a copy of today's page from the new Chief's day-planner. I have reprinted below excerpts from CJ Roberts' notes on his schedule for today, and now I better understand what's taking so long:
Excerpts from CJ Roberts' day-planner for Wed, Mar. 21:
6:30am: Get kids up for school, pack Spiderman and My Little Pony lunch-boxes7:30am: Arrive at office; check How Appealing8:30am: Breakfast meeting with Justices to discuss last night's American Idol10:00am: Hear another friggin' habeas case11:15am: Call Bud Selig to remind him I am still waiting for my Nationals uniform12noon: Lunch with Crawford and Greenhouse and Lithwick2:00pm: E-mail federal judge listserve with praise for reduction in law review cites3:00pm: Review spring-training stats and strategy for weekend fantasy baseball draft3:45pm: Snacktime with Justices to discuss what might happen on Lost4:30pm: Color-code NCAA bracket picks to help figure out who to root for this weekend5:15pm: Check How Appealing; post comments on SL&P as S.cotus and federalist5:45pm: Head out to umpire kids' T-ball game
As you can see, this busy schedule does not leave a lot of time for finishing up opinions.
Judges' written testimony to USSC
District Judge Paul Cassell, who serves as chair of the Criminal Law Committee of the Judicial Conference, had forwarded to me the written testimony submitted to the US Sentencing Commission for consideration in its March 20, 2007 public hearing. This written testimony takes the form of a letter that can be downloaded below (and apparently Judge Reggie Walton, who spoke on behalf of the Committee at the USSC hearing yesterday, gave remarks that tracked the points made in the written submission).
Here is the first paragraph of the CLC's written testimony:
The Criminal Law Committee of the Judicial Conference is pleased to respond to the U.S. Sentencing Commission’s Notice of Proposed Amendments, Request for Public Comment, and Notice of Public Hearings for the amendment cycle ending May 1, 2007. While the Committee recognizes that the Commission is considering several important revisions to the guidelines, we would like to focus on one issue that we believe impacts the fair administration of justice. Specifically, the Committee believes that when the Commission is promulgating base offense levels for guidelines used for offenses with mandatory minimums, the Commission should set the base offense level irrespective of the mandatory minimum term of imprisonment that may be imposed by statute.
Reactions to another Ohio execution delay
This local news article provides some background on and reactions to Ohio's inability to proceed yesterday with the scheduled execution of Kenneth Biros because of on-going lethal injection litigation (background here and here). Here are snippets:
Trumbull County Prosecutor Dennis Watkins explained that Biros has requested that a full panel of federal appellate judges hear his claim to rejoin the lethal injection lawsuit. He recently was dismissed from the action on the grounds that his claim was not filed in a timely manner.... "We're disappointed and angry this execution didn't go forward. The claims on the part of Biros are completely frivolous and unreasonable," Watkins said.
The prosecutor said he will now have to wait until the 6th Circuit case and any appeals from that play out before seeking a new execution date for Biros. "This has been frustrating and placed a lot of stress on a lot of people," Watkins said.
Watkins still believes justice will be served. "I'm confident we'll see him executed," Watkins said. "The victims deserve no less and the public deserves to have laws enforced in a timely fashion. The number of appeals is burdensome. It's been 16 years."
Also hoping for justice is [murder victim Tami] Engstrom's mother, Mary Jane Heiss, whose shoulders slumped at the weight of her disappointment. "It hurts me to see my family, especially my kids, in so much pain. I live for them, but I hate to see them suffer," she said, vowing to keep fighting to see that Biros pays for Tami's death.
The irony of Biros' claim is cruel punishment was nearly unconscionable to Watkins. "You want to see cruel punishment? Look what he did to Tami. That is cruel and unusual punishment. The Ohio Supreme Court already ruled that lethal injection can be used. We used to have the electric chair and hangings. There is no painless way to die."...
This AP story provides additional details on some of Biros' other still-pending legal claims and also has more reactions to yesterday's developments:
Engstrom's sister, Debi Heiss, 41, of Hubbard, told The Herald in Sharon, Pa., that members of her family, who spent most of Tuesday waiting for the execution in a hotel near the prison, were furious over the delay. "We just want it to end," she said. "We want to get on with our lives, we want to close the chapter."
Attorney General Marc Dann said he would renew his efforts to have the sentence carried out. "Legal issues aside, I want to express my sympathy and compassion for the family and friends of Tami Engstrom who have been living with the pain of their tragic loss for the past 16 years," Dann said in a statement.
On Tuesday, Biros waited for the U.S. Supreme Court decision in Ohio's death house. When told of the ruling, Biros' mother clasped his hands through the bars of his cell and he thanked God.... Biros also was with a priest when [his attorney] gave them word of the ruling, and two sisters, a brother and a family friend also were at the prison, the attorney said. "There was a lot of crying, a lot of hugging," he said.
Politics still trumping policy in California reform debates
This latest news report on reform development in California highlight yet again that political rhetoric still seems more important than sound policies to California's lawmakers. Here are excerpts:
Legislative Republicans called Tuesday for quick action to resolve the state's prison overcrowding crisis, but they suggested they're ready to throw up a fairly substantial roadblock to Gov. Arnold Schwarzenegger's plan to add more than 16,000 beds to the system.
Appearing at a news conference with his GOP colleagues, state Sen. Dave Cox, R-Fair Oaks, said he could not support any expansion plan unless it also included a method to mitigate the effects that inmate population growth would have on surrounding prison towns. "We frankly think it's inherently unfair for the state of California to dump its prisoners into small rural towns and not consider the adverse affect prisons have on nearby communities," Cox said, citing local issues such as traffic, sewage and schools....
At Tuesday's Capitol news conference, Republicans voiced support for moving inmates into vacant cells they said are available at some private prisons in the state. They also endorsed Schwarzenegger's out-of-state transfer plan, and they said they are adamantly opposed to early releases for any inmates. "There really is no such thing as a nonviolent offender when it comes to the issue of state prisons," said Sen. George Runner, R-Lancaster....
Following the news conference, Ackerman said in an interview that his party opposes a sentencing commission along the lines of the one proposed last week by Sen. Gloria Romero, D-Los Angeles. Her commission would establish sentencing guidelines that could be overturned only by a two-thirds vote of the Legislature. "She's trying to divert power to the sentencing commission," Ackerman said. "And that's the Legislature's purview."
Romero implored the Republicans "to cut the rhetoric" and sit down with Democrats and the governor to work out a plan before three federal court judges contemplating population limits for the state do the job for them. "Let's recognize that we will not get out of this prison crisis by doing business as usual," she said.
Ackerman said legislative leaders and the governor are continuing to try to resolve their differences. An accommodation is all but mandatory by the time the state's first court briefs on legal motions on the population caps are due by the end of this month, Ackerman said. "Things need to be done right now if we're not going to have a catastrophic meltdown in our prison system," he said.
I have seen and heard a lot of heated rhetoric in sentencing reform debates, but I think "There really is no such thing as a nonviolent offender..." may take the top prize.
Sex, death and rock & roll around the blogosphere
Lots of recent stong blog work on various sentencing topics to be found at:
And Sex Offender Issues has a linked video entitled "Man Attacked While Watching Porn" that can provide a mid-week laugh.
March 20, 2007
SCOTUS refuses to vacate stay of Ohio execution
ODPI has been providing on-going coverage of Ohio's efforts to have Kenneth Biros executed today; it now this Supreme Court's order which denies Ohio's application to lift the lower court stay currently in place. This likely means a new execution date will have to be set for Biros, and I suspect that is now not likely to happen until the chaotic on-going 1983 lethal injection litigation reaches some stable resolution.
Meanwhile, as StandDown Texas reports here, Texas is ready to go forward with its ninth lethal injection execution of 2007. Background on the defendant and the crime can be found in this newspaper story.
Some recent related posts:
- The "just ridiculous" realities of Ohio's lethal injection litigation
- Sixth Circuit upholds stay for Ohio prisoner facing execution
- What should Ohio's new governor do about the death penalty?
- Ohio's new Governor issues first clemency denial
UPDATE: This AP story provides a somewhat misleading headline and description of SCOTUS' work here.
Reporting and realities in Fry
Based on this argument preview from SCOTUSblog, today's case argued before the Supreme Court seemed like an interesting legal issue raising habeas and federalism concerns. But this AP report on the argument this morning in Fly v. Pliler, headlined "Court Debates Credibility in Murder Case," makes the case sound like an interesting factual issue raising basic credibility and innocence concerns. I suppose I will just have to read this official transcript to figure out what's really going on.
Reports from the USSC hearing?
As previously discussed here and here and here, the US Sentencing Commission today is conducting a public hearing; this detailed official agenda now links most of the prepared written testimony. I hope any attendees (or participants) might use the comments to this post to report on any notable happenings.
Unfortunately, not (yet?) posted on the USSC hearing page is what Jonathan Wroblewski is saying on behalf of the Justice Department concerning criminal history. I am especially interested in this testimony because Jonathan not long ago co-authored a great paper calling for guideline simplification — R. Barry Ruback and Jonathan Wroblewski, The Federal Sentencing Guidelines: Psychological and Policy Reasons for Simplification, 7 Psych. Pub. Pol. & L. 739 (2001). The USSG Chapter 4 criminal history provisions are, without question, the guidelines most desperately in need of simplification.
Relatedly, NPR yesterday had this audio segment discussing crack sentencing with Marc Mauer based on the (incorrect?) assumption that the USSC hearing was "to discuss revamping tough policies for crack-cocaine offenses." I would be especially eager to hear if anyone speaking officially for the USSC indicates that the Commission is prepared to do something more than just talk about long-needed cocaine sentencing reforms.
E-mails, politics, coups and the need for new leaders
Aided by the disclosure of 3000 e-mails (coverage here), there is so much more grist for the mill in the seemingly endless prosecutor purge story. Of course, as I have indicated here and here, I am less intrigued by all the obvious politics surrounding this story than by the possible real-world fall-out in the day-to-day operation of the federal criminal justice system.
Of course, I am interested to discover some of the intriguing buzz that "it is becoming increasingly clear that Department of Justice insiders have been using the controversy to perpetrate what some Bush Administration loyalists are calling a 'coup'" in order to take down AG Alberto Gonzales. Of course, that buzz says Deputy AG Paul McNulty is behind the coup, while other buzz has both Gonzales and McNulty soon resigning.
I would be eager to hear reader predictions on how this will play out, especially now that, as the AP reports, President Bush is supporting old pal Gonzales. My hope is that we might get a whole new set of leaders at the Justice Department, and ideally folks with some judicial branch experience.
Indeed, here's an idea: how about USSC chair Ricardo Hinojosa for Attorney General and USSC vice chair John Steer for Deputy AG? Not only would they bring a fresh perspective to DOJ, but this could produce a needed post-Booker shake-up at the USSC, too.
UPDATE: Thanks to How Appealing, I've just seen this interesting new piece from The Nation entitled, "The Porn Plot Against Prosecutors." I just knew that porn had to be behind all of this.
Judge Adelman on what constitutes unwarranted disparity
Sentencing Hall of Famer Judge Lynn Adelman issued an an effective little opinion yesterday in US v. McGee, No. 06-CR-140 (E.D. Wis. Mar. 19, 2007) (available for download below), which concludes with this discussion of unwarranted disparity under the Booker regime:
There is a tendency to equate compliance with the § 3553(a)(6) admonition to avoid unwarranted disparity with fealty to the guidelines. See generally United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir. 2006) (quoting Boscarino, 437 F.3d at 638) (stating that "in most cases 'disparities are at their ebb when the Guidelines are followed'"). However, courts must be careful, post-Booker, not to reimpose mandatory or near mandatory guidelines under the guise of avoiding disparity. More importantly, § 3553(a)(6) refers only to unwarranted disparity. In my view, a disparity between the sentences of two similarly situated defendants will, under the Booker advisory guideline regime, be unwarranted only if the judge fails to provide sufficient reasons for the difference, grounded in the § 3553(a) factors. See Webster's New College Dictionary 1211 (1995) (defining "unwarranted" as "having no justification; groundless"). Variance from the guidelines alone cannot be equated with unwarranted disparity.
The "just ridiculous" realities of Ohio's lethal injection litigation
This AP article about death penalty doings in Ohio highlights just some of the ugly realities that play out as states deal (poorly) with lethal injection litigation:
Despite a federal appeals court ruling blocking the execution, the state moved forward with plans to put to death a man who killed a woman, mutilated her body and scattered the remains across two states. Ohio prison workers continued preparations for the execution of Kenneth Biros, 48, after the state appealed to the U.S. Supreme Court yesterday, seeking a ruling to allow the lethal injection. By early this morning, the high court had not addressed the matter.
That left standing yesterday's ruling by a 6th U.S. Circuit Court of Appeals panel in Cincinnati that denied the state's request to lift a lower court's order against the execution. The appeals panel said Biros should be able to continue appealing a lawsuit with other inmates arguing that Ohio's method of lethal injection is cruel and unusual punishment.
Biros acknowledged he killed Tami Engstrom, 22, in 1991, but said it was done during a drunken rage. "If this doesn't happen tomorrow, I don't know what I'm going to do," Engstrom's sister, Debi Heiss, 41, of Hubbard, told the Warren Tribune Chronicle yesterday. "I think some words are going to be said that shouldn't be said.… We've waited 16 years, and to be so close is just ridiculous."
Biros was moved yesterday to Ohio's death house at the Southern Ohio Correctional Facility in Lucasville, and prison workers will be ready to carry out the execution as scheduled this morning unless the Supreme Court allows the block to stand, prisons spokeswoman Andrea Dean said.
Biros received a special dinner at the prison about 4 p.m., Dean said. He ordered cheese pizza, salad with Italian dressing, cherry pie, blueberry ice cream, coffee with cream and sugar, Doritos with French onion dip and Pepsi. After eating his meal, Biros met with his mother, two sisters and brother from about 4:30 p.m. until 8 p.m., Dean said....
Other executions have been delayed in the past year because of the lethal injection lawsuit. However, former cult leader Jeffrey Lundgren was executed Oct. 24 despite his appeal.
Here is an abridged list of just some of the Kafkaesque realities now attending the death penalty in Ohio that are indeed "just ridiculous":
- Biros' lethal injection lawsuit now pending before the Sixth Circuit turns on whether death row inmates brought their claims too late. So, based on a dispute over whether Ohio prisoners waited too long to challenge Ohio's execution method, Ohio is likely going to have to wait longer before employing that method to execute Biros.
- New Ohio Governor Strickland postponed a January execution date to provide more time to review Biros' clemency request, and these legal issues surely could have been resolved during this extra two months. But, as is often the case, federal courts waited until the 11th hour to resolve long-pending legal claims, which expectedly increases the emotional distress felt by the victim's family (and also the condemned and his family).
- A murder victim's sister, who has clearly suffered extreme emotional pain for 16 years as a result of Biros' crimes and the capital system's dysfunctions, has no real legal recourse; but murderer Biros, who might suffer extreme physical pain for a few minutes, has federal courts helping to thwart the operation of Ohio's death penalty system.
- Doritos and Pepsi got an extraordinary product placement in the AP story about Biros' "last meal" (which is not likely to be his true last meal). I wonder if Tostitos and Coca-Cola might lobby Ohio's correction officials for equal time when Biros' next (and truly last?) "last meal" is served.
Community supervision debate in Washington state
As evidenced by the Blakely ruling, Washington state is often at the forefront of cutting-edge sentencing issues. And this AP article spotlights that Washington, after a high-profile crime, is now aggressively facing important reentry and community supervision matters. The start of the AP article provides the background:
Gov. Chris Gregoire turned up the heat on the state Department of Corrections Monday, sending a letter to Secretary Harold Clarke requiring that the department implement interim prisoner release guidelines within a week.
The department had set a June 15 deadline for implementing new guidelines, which are meant to give parole officers a clearer idea on when a released felon who violates the terms of his or her release should be sent back to prison. Right now, it's up to the officers' discretion. "I believe a thoughtful collaborative approach to developing these guidelines is essential; however, I also believe public safety demands immediate action," Gregoire wrote.
The department released reports last week that were commissioned by Gregoire after three released convicts were implicated in the deaths of three Seattle-area law enforcement officers in recent months. The reports, written by the Corrections Department and reviewed by the National Institute of Corrections, found that Washington's sentencing statutes are too complex and often conflicting.
The Washington state Corrections Department report can be found at this link, and the last 20 pages of this document includes the report from the NIC to that department. Both reports are great reads for anyone interested in cutting-edge reentry and community supervision issues.
March 19, 2007
Can the USSC's post-Booker data be trusted?
Though I have been (justifiably?) critical of the US Sentencing Commission's substantive work since Booker, I have generally been (justifiably?) complementary of the USSC's data work since Booker. However, this line in footnote 12 in Judge Young's stunning Richardson opinion (basics here) has me worried about whether anyone should put too much stock in even the USSC's data work:
The Sentencing Guidelines statistics for the District of Massachusetts ... are, in actuality, seriously flawed. Through a combination of reporting errors, categorization errors by Commission staff, and the Commission’s obdurate refusal even to look at the opinions, transcripts, and detailed orders that explain actual sentences in this District, the reported departure rate is significantly overstated.
Intriguing testimony for tomorrow's USSC hearing
As discussed here and here, the US Sentencing Commission has a public hearing on tap for tomorrow, Tuesday, March 20. This detailed official agenda now has links to some of the prepared written testimony. And though the USSC seems eager to keep all its discussion of the guidelines Booker-free, some of the linked testimony discusses Booker (and also Claiborne and Rita).
For example, the Justice Department's main representative is to be John Richter, Chairman of the Attorney General's Advisory Subcommittee on Sentencing and the United States Attorney for the Western District of Oklahoma. Here is a notable passage at the outset of his prepared testimony:
But before I address a specific topics [sic], I would like to note that we are at a unique place in the history of the guidelines. At least for the time-being, the guidelines are advisory and while the Department has suggested some possible legislative responses, it is clear that everyone is waiting for the Supreme Court's decisions in Rita and Claiborne. In the meantime, the data that the Commission has collected has helped inform the discussions about the impact of Booker and its progeny.
The Department believes that in establishing the priorities for this year, the Commission correctly focused on some of the larger, systemic questions that are constantly raised, and decided, except as to immigration, to address only those guidelines that have been impacted by newly enacted or amended statutes. In recognition of these Commission priorities, the Department is not seeking increases to the guidelines except in response to specific, newly-enacted, mandatory minimums or where the maximum sentence has been raised — i.e., where it is clear that Congress intended that sentences should be increased. In those instances we have been guided by the principle of proportionality with other existing guidelines.
The latest greatest sentencing opinion from Judge Young
A sharp and helpful reader discovered that Judge William Young of the District of Massachusetts, whose work always captures my attention for various reasons, has today issued an interesting opinion in Richardson v. United States, No. 06-10993 (D. Mass. Mar. 19, 2007) (available here). There is too much in Richardson to summarize, but this introduction provides a flavor of what's inside:
This is a case abounding in irony. It requires this Court, first, to figure out how the First Circuit would handle evidence of ineffectiveness of counsel — not in proceedings at the trial level — but in prosecuting an appeal before it; and, second, to consider whether petitioner Joanne Richardson might benefit from re-sentencing before one of my colleagues.
These issues are not the ordinary grist of the district court mill. Yet, in the strange world of federal sentencing today they must be addressed, notwithstanding the indisputable facts that Richardson's trial and sentencing were utterly free from error and she was afforded greater procedural protections than the First Circuit now considers her due.
Sixth Circuit upholds stay for Ohio prisoner facing execution
As reported by the AP and ODPI, a Sixth Circuit panel has today decided not to lift a stay that Kenneth Biros (who was due to be executed at 10am on Tuesday March 20) obtained as part of the on-going lethal injection litigation in Ohio. Apparently the state is appealing to the Supreme Court, though I'd be surprised if SCOTUS want to get involved now.
You can find the Sixth Circuit's order at this link. Here is the order's full substantive text:
Ohio inmate Kenneth Biros is scheduled to be executed on Tuesday, March 20, 2007. On December 21, 2006, the district court granted Biros a preliminary injunction barring the State of Ohio or its agents “from implementing an order for the execution of Kenneth Biros issued by any court of the State of Ohio until further Order from this Court.” The State has filed a motion to vacate that injunction in this Court. However, as Biros is also an intervenor in the district court in the matter appealed as No. 05-4057, Cooey v. Strickland, decided by this Court on March 2, 2007, and has joined in the petition for rehearing with suggestion for rehearing En Banc, currently pending before this Court, see Cooey v. Strickland, No. 05-4057, – F.3d –, (6th Cir. March 2, 2006), petition for reh’g filed March 13, 2007, this Court DENIES the State’s motion without prejudice. The State can renew its motion, if appropriate, upon resolution of that petition.
Some recent related posts:
Terrific outline of post-Booker law in the Second Circuit
At the Second Circuit Sentencing Blog, Harlan Protass discusses a recent New York City Bar Association CLE program entitled "Federal Sentencing in the Post-Booker Era." Of enduring value, Harlan prepared an outline of significant Second Circuit caselaw for the event and has now made his terrific nine-page outline available at this link.
More grist for the blog-scholarship debate
Today's New York Times has this interesting "Sidebar" column by Adam Liptak entitled, "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant." (Howard Bashman has the link and thoughtful early commentary comes from Jack Balkin and Orin Kerr and Dan Solove.) The article confirms my instinct and experience that judges find scholarly blogs much more relevant and user-friendly than traditional law review articles. Here are some excerpts:
"I haven't opened up a law review in years," said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. "No one speaks of them. No one relies on them." In a cheerfully dismissive presentation, Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts.
The assembled professors mostly agreed, though they differed about the reasons and about whether the trend was also a problem. Some suggested, gently, that judges might not have the intellectual curiosity to appreciate modern legal scholarship.
Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them. The upshot is that the legal academy has become much less influential.
In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937. Patterns at other leading law reviews are similar....
Even when courts do cite law review articles, Judge Robert D. Sack said at Cardozo, their motives are not always pure. "Judges use them like drunks use lampposts," Judge Sack said, "more for support than for illumination."
The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles. "If the academy does want to change the world," Judge Reena Raggi said, "it does need to be part of the world."
To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs. Law reviews, by contrast, feel as ancient as telegrams, but slower.
Along with the article, the NYT provides this link to the referenced Cardozo Law Review analysis entitled "Trends in Federal Judicial Citations and Law Review Articles."
Some related posts:
UPDATE: Both the Cardozo analysis and the insights of the Liptak article reinforce my perspective that structural forces like new technologies and the unusual "marketplace" in which law professors operate have a lot to do with these trends. I discuss these dynamics in detail in my recent article "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs."
A model sentence
I cannot resist starting the week with a little glamour by noting this Newday piece reporting that Naomi Campbell begins a community service sentence today:
Supermodel Naomi Campbell is known for her fashion poses on the catwalk, not her cleaning skills. But for five days, beginning Monday morning, Campbell can expect to push a broom or a mop at a Manhattan garage to fulfill her sentence of community service for throwing a cell phone at her maid.
Unlike the singer Boy George, who had to served a similar community service sentence in full view of TV cameras, the sentencing judge allowed Campbell to be assigned to work indoors.... While community service has been employed in U.S. courts for decades, the punishment has gained a higher profile after the celebrity sentences. Television cameras were on the scene when Boy George found himself using a broom and wearing a reflective orange vest as he swept a driveway at a Sanitation Department depot....
Besides community service, Campbell was ordered to pay the maid's medical expenses and attend a two-day anger management program.
March 18, 2007
Wondering about studies on age and the application of the death penalty
After thinking hard about the great new Missouri study on prosecutorial discretion (details here) and exploring with my death penalty class various disparity issues (details here), I am wondering if there have been any serious empirical studies about the impact of age — both age of offender and age of victim — on the application of the death penalty. Specifically, though there have been numerous empirical explorations of the impact of race (and a few studies on gender and geography), I cannot recall ever seeing a systematic examination of the impact of age on who does and does not get sentenced to death for intentional murder.
In all settings, age is an interesting (and debatable) sentencing variable. One could contend, based on a variety of theoretical justifications, that age-of-victim and age-of-offender considerations are morally relevant in the application of the death penalty (and other sentencing regimes). Of course, age of the offender has long been afforded constitutional significance: even before Roper, murderers under age 16 were not death-eligible; after Roper, murderers under age 18 are not death-eligible. And I suspect that age of the victim has always had a practical impact: I would guess that prosecutors are more likely seek, and juries are more likely to endorse, the death penalty for those that kill kids and/or the elderly.
So, with that backdrop, I wonder if readers know of — and can point me to — any empirical studies addressing the impact of age in the modern application of the death penalty.
UPDATE: George in the comments helpfully points to this impressive 2000 study of Virginia's death penalty. Table F.1 of that study suggests that prosecutors are more likely to seek the death penalty when there are juvenile victims; but tables C.1 and F.1 suggest that the gender status of the victim — i.e., that the victim is a woman — is a far more significant variable in prosecutorial decisions in potential capital cases.
Wash Post piece on strategic Second Amendment litigation
Today's issue of the Washington Post includes this intriguing front-page article about the DC Second Amendment litigation headlined "Lawyer Who Wiped Out D.C. Ban Says It's About Liberties, Not Guns." Here is how the piece begins:
Meet the lawyer who conceived the lawsuit that gutted the District's tough gun-control statute this month. Meet the lawyer who recruited a group of strangers to sue the city and bankrolled their successful litigation out of his own pocket. Meet Robert A. Levy, staunch defender of the Second Amendment, a wealthy former entrepreneur who said he has never owned a firearm and probably never will.
After reading this article, I wonder if I can convince Levy to now start bankrolling some strategic Eighth Amendment litigation.
Some related posts:
Important commentary on criminal history and structured sentencing
Over at the always fascinating Corrections Sentencing, the always insightful Michael Connelly has this long post on "Criminal History, Disparity, and Sentencing Guidelines." The full post is a must-read for any serious student of structured sentencing; here is a small taste:
Most guidelines systems rely heavily if not totally on criminal history as the "offender score" in their grid systems and to apply enhancers and mandatory minimums. I've worked for over a dozen years now with criminal history records, I've seen how they’re developed, and I think there is, even today, too much wrong with the collection and reporting to justify the faith that guidelines put in them.
I am intrigued by this critique of undue reliance on criminal history in part because I surmise that the Supreme Court is deeply engaged in criminal history issues. The Court continues to grant cert on a number of criminal history enhancement cases, and it is taking a very long time to decided James, the Armed Career Criminal Act case argued more than four months ago.
Faith-based opposition to residency restrictions
Through a link from Sex Offender Issues, I discovered this interesting page of materials with commentary on Georgia's sex offender residency restrictions, including this document providing a "Statement of Faith and Concern On HB 1059's Church Restrictions." Here is how that statement begins:
As Christian leaders in Georgia, we are deeply troubled by the implementation of HB 1059, Georgia’s Sex Offender Legislation. We believe that HB 1059 runs counter to the Church's mission of inclusion and hospitality, of sharing God's love and grace and message of redemption.