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March 31, 2007

The real capital problem: seeking death on the cheap

Though my views on the death penalty are always evolving, I am always sure that many flaws with the modern administration of the death penalty stem from the desire of many jurisdictions to operate a capital system on the cheap.  This interesting article from the Los Angeles Times spotlights this reality in the context of Georgia's recent debate over capital defense funding.  Here are highlights:

When Georgia instituted a statewide public defender system in 2005, human rights groups praised it as a milestone in ensuring that poor criminal defendants received their constitutional right to a fair trial. Until then, counties determined how indigent people would be represented. In some counties, the courts operated like assembly lines, with defendants pleading guilty after talking with their appointed lawyers for a few minutes.

But some people accuse the Georgia Public Defender Standards Council, which runs the system, of spending too much time and money on indigent people. One defendant has provoked particular anger: Brian Nichols, the rape suspect accused of escaping from an Atlanta courthouse in 2005 and killing a judge, a court reporter, a sheriff's deputy and a U.S. customs agent. Nichols' defense has cost $1.4 million, and the trial has not begun.  Last week, Superior Court Judge Hilton Fuller postponed the trial until Sept. 10 because the public defender system had run out of money. Almost all of the council's 75 capital cases are on hold.

The Nichols case did not create the funding crisis. A technical glitch in state law left the council with a shortfall of about $10 million in the state budget.  But the Nichols case, as one of the most expensive death penalty trials in Georgia history, has exacerbated concerns about criminal defense spending....

Though many legislators fear the Nichols case could set a precedent for death penalty cases, legal experts say it's a rarity. Fuller, who has appointed four lawyers to the defense and approved more funding for a mental health expert, defends the spending as necessary to ensure a fair trial, noting that the state has charged Nichols with 54 felony counts and appointed five lawyers to the prosecution.

Some defense lawyers say legislators don't complain about prosecution costs. In the Nichols case, experts estimate the prosecution will spend twice as much as the defense. "No one is telling the district attorney he can only spend a certain amount on a death penalty case," West said.

Others say the Nichols case wouldn't cost so much if prosecutors had not sought the death penalty. Paul Howard, Fulton County's district attorney, rejected an offer from Nichols' lawyers for a guilty plea in exchange for a life sentence. "People who are very concerned about the cost of the defense still believe Nichols should get the death penalty," [Stephen] Bright said. "They can't have it both ways."

Some related posts on the costs of capital cases:

March 31, 2007 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

March 30, 2007

A call for a broader pardon perspective

Over at the National Journal, Jonathan Rauch has this strong new commentary entitled "Pardon Libby? Maybe, But Not Alone."  Here are some highlights:

Will President Bush pardon I. Lewis (Scooter) Libby? Everyone is wondering. But it is the wrong question. The right question is: Will he pardon anyone else?...

Here is a fact that historians may note with puzzlement: Bush, who is obsessively protective of unilateral executive power in every other sphere, has all but abandoned the most unequivocally unilateral power that the Constitution gives him.  Presidents can grant pardons and commutations to anyone they please, for any reason or for no reason at all.  That's because the Founders understood the excesses of bureaucratic justice. "The criminal code of every country partakes so much of necessary severity," Alexander Hamilton wrote, "that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Prosecutors are paid to be relentless. Courts are bound to go by the book.  The Supreme Court cannot reach down and undo a single sentence without potentially overturning a whole branch of law.  Thus the Founders ultimately wanted justice to be acceptable and accountable not to a system but to an actual human being, a solitary conscience.  That conscience belongs, at the moment, to Bush, who doesn't seem to overtax it. 

According to Justice Department statistics, Presidents Truman through Ford granted a quarter or more of clemency petitions. The total fell to 12 percent under President Reagan, and then into the mid-single digits under Presidents George H.W. Bush and Clinton. Now, under George W. Bush, it has dropped to less than 2 percent. 

Some recent related posts:

March 30, 2007 in Clemency and Pardons | Permalink | Comments (6) | TrackBack

Friday afternoon around the blogosphere

Lots of thoughtful goodies to be mined from a last Friday afternoon tour around the blogosphere:

March 30, 2007 | Permalink | Comments (0) | TrackBack

California Cunningham fix is now law

As detailed in this news article, "Gov. Arnold Schwarzenegger signed a bill Friday that was designed as a legislative fix to the state's criminal sentencing law that was upended by a U.S. Supreme Court decision earlier this year declaring a key portion of it unconstitutional."

I detailed in this recent post some of my litigation concerns with SB 40, which today became law, as a sound response to the Supreme Court's Cunningham decision.  But David in the comments thoughtfully responded to many of my concerns.  Meanwhile, Jonathan Soglin at Criminal Appeal has this new post on the bill, which reminds me that the California Supreme Court has awhole bunch of cases in which it will be trying to assess the post-Cunningham fall-out.

To provide a summary, this is likely a good time for lawyers in California to get some exciting sentencing litigation experience.

March 30, 2007 in Cunningham coverage | Permalink | Comments (5) | TrackBack

ACS issue brief on PLRA

The American Constitution Society has, as noted here, a new issue brief entitled "Preserving the Rule of Law in America's Prisons: The Case for Amending the Prison Litigation Reform Act. "  Available at this link, here is part of ACS's account of this new work:

In this paper, [Margo] Schlanger and [Giovanna] Shay argue that certain provisions of the PLRA undermine the rule of law by shielding corrections officials from accountability even in situations in which law violations are clear.  While the PLRA has shrunk the number of court cases initiated by prisoners and reduced the burden on prison and jail administrators as intended, the authors demonstrate that significant unintended problems also flow from this law. Schlanger and Shay contend that "constitutionally meritorious cases are faced with new and often insurmountable obstacles" and that the resulting harm is not only to the claimants in the particular cases that have been dismissed despite their merit, but to the entire system of accountability that ensures that prison and jail officials comply with constitutional mandates.

March 30, 2007 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Archive of AFDA webcast

As noted here, earlier this week Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), enabled me to again utilize the AFDA's cool Audio Webcast System for a lengthy discussion of various state-of-post-Booker-sentencing realities.  Greg has now kindly created this audio file of the webcast for anyone who would still like to hear what I had to say.

As noted before, Greg provides a complimentary password registration system for members of the federal court community (judges, law clerks, federal public defenders, probation officers), and members of academia, at this sign-up page.  And everyone should want to sign up for the next AFDA webcast, which is scheduled for April 23 with Alan Dorhoffer, senior staff attorney at the Sentencing Commission, discussing guideline application topics.

March 30, 2007 in Booker and Fanfan Commentary | Permalink | Comments (0) | TrackBack

Fifth Circuit rejects application of Crawford at capital sentencing

Thanks to How Appealing, I see that the Fifth Circuit has issued a very lengthy opinion in US v. Fields, No. 04-50393 (5th Cir. Mar. 29, 2007) (available here), addressing whether the Confrontation Clause applies at the penalty phase of a capital case.  I believe the circuit courts are split on this issue, and so was the Fifth Circuit panel in Fields: Judges Jerry Smith and Carolyn Dineen King rejected the application of Crawford at capital sentencing; Judge Fortunato P. Benavides dissented on this point.

I suspect this issue might before long capture the attention of the Supreme Court.

March 30, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

March 29, 2007

Wondering about criminal legislation that sunsets

One of many intriguing aspects of California's Cunningham fix bill, SB 40, is that it has a Jan. 1, 2009, sunset provision.  Though I largely applaud the sentiment of having a sunset provision in what is obviously a short-term-solution bill, I fear that, as explained in this post, the sunset provision could cause special legal headaches.

As I thought about this issue more, I came to wonder generally about (a) whether there are past examples of criminal laws or sentencing legislation enacted with concrete sunset provisions, and (b) whether there are unique constitutional issues potentially raised by criminal laws with sunset provisions. 

Anyone have any information or thoughts on criminal law with sunset provisions?

March 29, 2007 in Sentences Reconsidered | Permalink | Comments (5) | TrackBack

The realities of a doctored execution

This interesting article from North Carolina provides a rare inside look into some of the realities and challenges of trying to incorporate medical personnel into execution protocols.  (My students had a great debate on this very interesting topic at my class blog.)  Here is how the article begins:

A prison doctor stood in a small observation room near a brain-wave machine during the state's past two executions.   He said in an interview this week that as the inmates died just a few feet away, he did not monitor their level of consciousness, and prison officials never asked him to, despite a federal judge's order requiring that.

The question of whether Dr. Obi Umesi can stand in the observation room with a heart monitor and brain-wave monitor and not track a dying man's vital signs is at the center of a legal dilemma that has delayed five executions in this state.  If Umesi monitored the dying man's consciousness, he might have violated his profession's ethical rules.  If he did not, the state would be violating the judge's order.

March 29, 2007 in Death Penalty Reforms | Permalink | Comments (12) | TrackBack

Cunningham fix litigation and other California problems

As detailed in this AP story, SB 40, the California bill that essentially seeks to Booker-ize California's sentencing structure in response to Cunningham "was sent to Gov. Arnold Schwarzenegger on Wednesday" after the state senate "approved the bill on a 32-2 vote without debate."  As I suggested here a few weeks ago, the "fix" of SB 40 seems likely to create more legal problems than it solves.  Let me explain:

1.  Since SB 40 functionally increases available sentences, defendants can (and some surely will) raise ex post facto challenges if prosecutors seek to invoke this "fix" at the sentencing of any crime committed before the fix becomes law.

2.  Since SB 40 has a Jan. 1, 2009, sunset provision, shrewd defendants convicted who fear long sentences might reasonable try to "play out the clock" once the law becomes applicable.  Though perhaps trial judges won't allow defendants to keep postponing sentencing dates, it seems unlikely that most appeals of SB 40 sentences will be complete before SB 40 is scheduled to sunset.  Will state appellate courts enforce a sunsetted law being challenged by a criminal defendants?  Should they?   Can they?

3.  In light of the Cunningham ruling and what could happen in Claiborne and Rita, it's quite possible that SB 40 will itself be found unconstitutional on the merits by lower California courts (or federal courts eventually).

I hope that the sponsors and supporters of SB 40 have thought through these litigation realities, though my own sense of California's sentencing history and legislative process does not give me great confidence.  Were I advising Governor Schwarzenegger, I would encourage him to veto SB 40 if only to spare lower courts the litigation mess (and to buy more time to see what happens in Claiborne and Rita).

But, as articles here and here highlight, litigation over sentencing rules is perhaps just a tiny concern for state policy-makers in light of broader correctional problems facing California.  Here are details from the Los Angeles Times:

Busloads of protesters fighting the construction of new penitentiaries swarmed the Capitol on Wednesday, while inside the statehouse, the simmering politics surrounding the prison overcrowding crisis boiled into full view.

The protesters attacked Gov. Arnold Schwarzenegger's plan to build 78,000 new prison and jail beds, saying that $11 billion worth of "bricks and mortar and debt" are no substitute for true reform. Instead, the demonstrators — some dressed in orange prison jumpsuits and standing in makeshift cells — said lawmakers could quickly thin the inmate population by releasing geriatric and incapacitated convicts and by sanctioning thousands of parole violators in their communities rather than in state lockups.

Meanwhile, political fireworks were flying over a decision by Senate Democrats to place a moratorium on bills that would lengthen criminal sentences and thereby exacerbate prison crowding.  The maneuver infuriated Republicans, but Sen. Gloria Romero (D-Los Angeles), chairwoman of the Senate Public Safety Committee, said it could not be "a business-as-usual year" in Sacramento given the overcrowding emergency.

March 29, 2007 in Cunningham coverage | Permalink | Comments (5) | TrackBack

A new website inspired by Genarlow Wilson

I have not blogged about the Genarlow Wilson case much lately because there has not been much to report.  Despite a flurry of media coverage calling for Wilson's release (details here and here), Georgia officials have not responded and Wilson is now deep into his third year in prison serving a 10-year sentence for a crime that Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment.

Meanwhile, Wilson's case has inspired the creation of a new non-profit organizarion called "My 5th," which has this intriguing new website.  The website's home page states, "With this website, blog and workshops, MY 5th wants to prevent you from paying the price for not knowing the law!!!! Use the law, don't let it use you!!!".  An intriguing and diverse set of individuals are on My 5th's board, and Wilson's lawyer is listed as the president and founder of the organization.  Not suprisingly, Wilson's case is featured here on the My 5th site.

Some related Genarlow Wilson posts:

March 29, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Judge Adelman does case-specific Booker justice again

US District Judge Lynn Adelman, continuing his strong post-Booker work in cases like Greer (discussed here) and Smith (discussed here), has released a new sentencing decision in which he attempts to "refract" the concerns with the 100:1 crack/powder cocaine ratio through an individual defendant's case.  Here is one of many strong passages in Judge Adelman's decision in US v. Willis, No. 04-CR-190 (E.D. Wisc. Mar. 28, 2007) (which can be downloaded below):

The rule that emerges from Jointer, Gunter and Pickett is that while district courts may not construct their own alternative crack/powder ratio, neither are they required to impose a sentence under the current 100:1 ratio in the guidelines.  Further, they can, in imposing an appropriate sentence in the individual defendant's case under § 3553(a), consider the Sentencing Commission's reports on the problems with the crack guideline. Finally, they may consider whether the aggravating circumstances that prompted the adoption of the 100:1 ratio are present in the case before them.

Download latest_adelman_sent_memo.pdf

March 29, 2007 in Booker in district courts | Permalink | Comments (1) | TrackBack

Tracking the execution realities of 2007

Though there is constant chatter about capital punishment nationwide, I cannot help highlighting again that only one state is continuing to administer the death penalty. 

As detailed in this Houston Chronicle story, Texas executed its tenth murderer of 2007 last night, and it has another execution scheduled for tonight and three more scheduled in April.  (As discussed here, one of the scheduled April execution is a woman with a distinctive claim of innocence.)

Meanwhile, mostly as a result of lethal injection litigation, no other state in the country has executed anyone since an early January execution in Oklahoma.  And over the last five months there have been only 3 execution outside Texas.

As detailed here at DPIC, these dynamics could change soon.  There are federal and Ohio executions scheduled for April, and Tennessee and Nebraska have executions scheduled for May.  But even if other states get back in the execution business, it seems likely that 2007 will have the fewest US executions in over a decade.

March 29, 2007 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

March 28, 2007

A Texas juve case creating controversy

Thanks to posts at TalkLeft and Grits for Breakfast, I have become away of a controversial case of seemingly unduly severe juvenile punishment coming out of Texas.  This AP story has these highlights:

A teenager has been jailed for more than a year for shoving a teacher's aide at her high school, sparking anger and heightening racial tensions in rural East Texas.  Shaquandra Cotton, now 15, claims the teacher's aide pushed her first and would not let her enter school before the morning bell in 2005.

A jury convicted her in March 2006 on a felony count of shoving a public servant, who was not seriously injured.  The girl is in the Ron Jackson Correctional Complex in Brownwood, about 300 miles from her home in Paris....  Under the sentence handed down by Lamar County Judge Chuck Superville, she will remain at the facility until she meets state rehabilitation standards or reaches her 21st birthday.

But her family and civil rights activists say they want her home now. They are condemning the sentence as unusually harsh and say it shows a justice system that punishes young offenders differently, depending on their race.  Creola Cotton, Shaquandra's mother, and activists argue that while Superville sent Shaquandra to the state's juvenile prison system, he gave a white 14-year-old arsonist probation. As many as 400 people marched and rallied in Paris on Tuesday, the second such protest in as many weeks by civil rights groups.

Meanwhile, the Paris school district fiercely denied claims of racism and chided the girl's mother for "playing a game" to start controversy.... Creola Cotton is preventing the district from fairly defending itself by refusing to let the school district make her daughter's entire record public, [Paris school district attorney Dennis] Eichelbaum said. "Mrs. Cotton has been wrongfully attacking the character of the district," Eichelbaum said. "She's being disingenuous with regard to her daughter being an innocent child."...

Prosecutors say they offered Shaquandra a plea agreement that would have reduced the felony charge to a misdemeanor and given her two years' probation.  But Creola Cotton rejected the plea behalf of her daughter, prosecutors said.

The Dallas South Blog, whose author Shawn Williams comes from Paris, Texas, offers lots of comments on the case here and here and here.  Also, there is a blog, Free Shaquanda Cotton, which pleads "Please help me, Shaquanda Cotton, receive proper justice. Leave me notes of encouragement, donate to my trust fund, and spread the word!"  That blog has links to other media coverage of this case.

March 28, 2007 in Examples of "over-punishment", Race, Class, and Gender | Permalink | Comments (18) | TrackBack

Notable restitution ruling from the Tenth Circuit

Though I doubt the decision will get as much attention as the restitution blunder case from DC (discussed here), today the Tenth Circuit issued a notable (spilt panel) restitution ruling in US v. Gordon, No. 04-6384 (10th Cir. Mar. 28, 2007) (available here).  Here's the majority's explanatory first paragraph:

Defendant-Appellant Margaret Ann Gordon appeals from the district court's order requiring her to pay restitution for credit card fraud in the amount of $68,698.52.  Ms. Gordon argues the amount of restitution exceeds the statutory limits set forth in the Mandatory Victim Restitution Act (MVRA).  See 18 U.S.C. § 3663A.  The government filed two motions for enforcement of the plea agreement, arguing that Ms. Gordon waived her right to appeal the amount of restitution.  Ms. Gordon responds that her challenge to the amount of restitution is not covered by her waiver of appellate rights and that, if it is, she did not enter the waiver knowingly and voluntarily.  Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we determine that Ms. Gordon may appeal the restitution order.  We vacate that order and remand to the district for the entry of a restitution order in the amount of $7,950.98.

March 28, 2007 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

Habeas attack on NY persistent felony offender statute

A helpful reader noted to me a big recent habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here).  In Portalatin, EDNY District judge John Gleeson essentially disagrees with the New York's state court decision in Rivera that the state's discretionary persistent felony offender statute is constitutionally sound (background here and here).  Here is the start of Portalatin (which I will discuss more fully when I get a chance to read it more closely):

Carlos Portalatin petitions for a writ of habeas corpus, challenging the sentence imposed in state court pursuant to New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10. Because that sentence violated Portalatin's constitutional right to a jury trial, the petition is granted.

UPDATE:  Laura Appleman at Concurring Opinions has more on Portalatin here.

March 28, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (7) | TrackBack

Questioning the latest crime concerns

I have recently seen two interesting commentaries, from two very different commentators, expressing skepticism about a purported rising crime rate that has stirred calls from some for increased police funding and harsher penalties:

March 28, 2007 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

National Review agrees AG Gonzales should pack up

Though I have only barely been following the US Attorney purge story, I suggested here last week that it was time for new leaders at the Justice Department.  I am thus pleased to see from this editorial that the National Review has joined the call for AG Gonzales to resign.  Here are snippets from the editorial:

While we defended [Gonzales] from some of the outlandish charges made during his confirmation hearings, we have never seen evidence that he has a fine legal mind, good judgment, or managerial ability. Nor has his conduct at any stage of this controversy gained our confidence. 

His claim not to have been involved in the firings suggests that he was either deceptive or inexcusably detached from the operations of his own department.... 

He cannot defend the administration and its policies even when they deserve defense.  Alberto Gonzales should resign.  The Justice Department needs a fresh start.

Some related posts:

March 28, 2007 in Who Sentences? | Permalink | Comments (2) | TrackBack

Record sentence (with a loophole) for tax cheat

Thanks to this post at TaxProf, I noticed this Washington Post article reporting on a record (and timely) sentence in a tax case:

Eccentric Washington telecommunications mogul Walter C. Anderson was sentenced yesterday to nine years in prison for failing to pay $200 million in taxes -- but a federal judge ruled the Internal Revenue Service won't be repaid for now because prosecutors botched the plea agreement.

Anderson, the biggest convicted tax cheat in U.S. history, received the longest punishment ever given in a tax crime case for his admitted effort to hide $365 million in personal income in the 1990s.  He avoided paying taxes by using aliases, shell companies, offshore tax havens and secret drop boxes abroad.   "I agree I'm responsible for what I did . . . but I'm not a criminal person," Anderson told U.S. District Judge Paul L. Friedman before he was sentenced. "I believe I've tried to do the right thing most of my life."

In a major embarrassment to the government's seven-year prosecution of Anderson, the judge ruled he could not order Anderson to make restitution to the IRS for an estimated $140 million of his unpaid federal income taxes.  Friedman blamed prosecutors for making a sloppy plea agreement with Anderson.

So, the lessons of this story are (1) pay your taxes, and (2) the Justice Department under AG Gonzales apparently cannot even write plea agreements without costing the government hundreds of millions of dollars.  (Indeed, a botched plea agreement costing the government $140 million sounds like a very legitimate performance-related reason to take a prosecutor to task.)

UPDATE:  This AP story provides more details on DOJ's $100 million blunder in this case:

U.S. District Judge Paul Friedman said he couldn't order Anderson to repay the federal government $100 million to $175 million because the Justice Department's binding plea agreement with Anderson listed the wrong statute.  Friedman said he could have worked around that problem by ordering Anderson to repay the money as part of his probation. But prosecutors omitted any discussion of probation — a common element of plea deals — from Anderson's paperwork.  "I've come to the conclusion, very reluctantly, that I have no authority to order restitution," Friedman said. "I hope the government will appeal me."

It is a sad and telling commentary on the state of modern sentencing realities that the government in this case likely spent a lot more time making sure that a non-violent tax cheat spends years behind bars (at taxpayer's expense) than it spent making sure the tax cheat actually had to pay the money he owes.

March 28, 2007 in Offense Characteristics | Permalink | Comments (34) | TrackBack

Ohio Gov grants reprieve for more DNA testing

As detailed in this Columbus Dispatch article, an Ohio death row defendant, whom many believe may be innocent, has received yet another reprieve to allow additional DNA testing:

Gov. Ted Strickland today granted another reprieve for convicted killer John G. Spirko Jr., pushing his execution date until Sept. 18.  It was the sixth reprieve granted to Spirko to allow time for additional DNA testing related to the 1982 kidnapping and murder of Betty Jane Mottinger, 48, postmaster at Elgin in northwest Ohio.

Attorney General Marc Dann asked Strickland to delay the execution which had been set for April 17.  Spirko, 60, was originally set for lethal injection on Sept. 19, 2005, but his defense attorneys repeatedly requested additional DNA testing.  They claim he is an innocent man convicted based solely on circumstantial and misleading evidence.

Ohio Death Penalty Information has a lot more on this case (and other interesting new posts).

March 28, 2007 | Permalink | Comments (2) | TrackBack