April 14, 2007
A practical challenge to GPS monitoring
As detailed in posts linked below, I think GPS tracking has lots of promise as a possible alternative to excessive imprisonment. However, as this short local news story details, there are challenges to broadening the use of this form of technocorrections:
Sentencing people to wear ankle bracelets is taking its toll on Suffolk County's probation department. It has run out of officers to monitor the criminals and defendants. Suffolk's Probation director John Desmond told his staff to stop recommending GPS devices as a condition of probation because the department does not have enough officers to supervise more accused and offenders.
Currently, 10 probation officers working in three shifts track the whereabouts of 50 criminals and defendants around the clock to ensure they don't go where they're not supposed to. Increasingly, lawmakers are turning to technology like GPS as an alternate means to incarceration for some offenders, including drunk drivers, some sex predators, and violators of orders of protection. It's cheaper to track people using GPS devices than it is to send them to jail.
Some related posts on GPS tracking:
- Is the future parole with GPS and other techno-reentry devices?
- Every step you take, every move you make...
- Is GPS tracking a better way?
- More on the pros and cons of GPS tracking
- The devil's in the details of GPS tracking of sex offenders
A (secret?) new death chamber in California
This AP story details the latest twist in the on-going saga over execution protocols in California. Here are the highlights:
Gov. Arnold Schwarzenegger's administration last month quietly began building an elaborate new death chamber at San Quentin State Prison in an attempt to past muster with a federal judge who ordered a moratorium on the state's executions.
News that the administration authorized the facility ― which will have three separate viewing rooms, a holding cell and a large area for executioners to prepare deadly cocktails for lethal injections ― drew immediate criticism from Democratic lawmakers and budget analysts who said they were kept in the dark about the expenditure. The administration began building the facility in March after prison officials determined they could construct the chamber for $399,000 - just under the $400,000 limit that would have triggered a financial review by state lawmakers.
"We have not reached any judgment that the administration violated state rules, but we are trying to understand the full scope and plan the administration has" for the facility, said Dan Carson, criminal justice director for the state's non-partisan legislative analyst's office. "Obviously this is very close to the $400,000 limit." Carson and other analysts discovered the new facility last week on a scheduled tour of the Marin County prison.
This Los Angeles Times article has more on this fascinating (little? big?) story.
April 13, 2007
Genarlow Wilson seeking state habeas relief
The sad Genarlow Wilson case from Georgia (background here and here) is back in the news because, as detailed in this news story, Wilson's lawyer, BJ Bernstein "filed a petition for writ of habeas corpus Thursday with the Superior Court of Monroe County." In addition, as detailed on this website, advocates for Wilson are hoping to leverage the events in the Duke rape case to get justice for Wilson. Here's what the website says:
Yesterday we saw the Attorney General of North Carolina step forward as the chief law enforcement officer to correct an injustice by a district attorney in the Duke rape case. Genarlow Wilson now appeals to the Attorney General of Georgia, Thurbert Baker to use his power to act justly, and review and consent to Wilson's habeas petition. As the guardian of justice in this State, we appeal to him to correct this grave injustice.
Makes sense to me.
Some recent related posts:
- ESPN effectively covers Genarlow Wilson's sad saga
- CNN covers Genarlow Wilson case, who's next?
- Why isn't the severe Georgia sentence constitutionally problematic?
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed
- More attention for Genarlow Wilson
More weekend Sixth Amendment reading
For anyone seeking a weekend reading companion to "Apprendi's Domain" (discussed here), there is another newly published piece on sentencing after the Supreme Court's modern Sixth Amendment revolution. I fear this piece is only available via paid on-line services, but here's the cite and the introduction's first paragraph:
Graham C. Mullen & J.P. Davis, Mandatory Guidelines: The Oxymoronic State of Sentencing After United States v. Booker, 41 U. Rich. L. Rev. 625 (2007):
"Like a vampire buried without a stake, mandatory sentencing guidelines have been resurrected to stalk our jurisprudence once more. When the Supreme Court announced the end of the mandatory Sentencing Guidelines regime in United States v. Booker, many expected to see a major paradigm shift in the way sentences were handed down. A year and half has passed since Booker, but little has changed. Judges are still enhancing sentences based on facts neither found by a jury nor admitted by the defendant, and nearly two-thirds of all sentences are within the prescribed Guidelines range, a difference of less than ten percent from pre-Booker levels. While the principal results of sentencing remain the same, the logistics of sentencing have changed. Sentencing has become more complicated than ever before and consumes more judicial time and resources. The ultimate result is that the constitutional issues behind Booker and its parent case Apprendi v. New Jersey have been glossed over while the federal courts grow more backlogged in the process."
Hollywood does technocorrections
In my morning paper was a pretty good review of "Disturbia," which is essentially a modern riff on the Alfred Hitchcock classic Rear Window. As a sentencing nerd, what really caught my attention was the fact that the main character in the update is house-bound because of a sentence of house arrest with electronic monitoring (instead of being wheel-chair bound with a broken leg as in the original).
April 12, 2007
The legal spaghetti in Panetti
I have had a chance to chat with a few reporters about the Supreme Court's upcoming argument in Panetti v. Quarterman, No. 06-6407, the capital case that was supposed to assess the standards for deciding if an inmate is mentally competent to be executed. When cert was granted, I suggested here that, because the facts in Panetti seem somewhat quirky, perhaps the cert grant was designed to allow the Supreme Court to explore generally the issue of applying the death penalty to persons with mental illnesses. When talking to reporters, though, I came to appreciate again that, by definition, any litigation over whether a properly convicted murderer is mentally competent to be executed necessarily going to involve quirky facts.
And the story of Panetti took on an added dimension when the Supreme Court, sua sponte, called for briefing on the question of whether the defendant's habeas petition was "successive" within the meaning of 28 U.S.C. § 2244. Those briefs have now been filed, and the Criminal Justice Legal Foundation has helpfully assembled all the Panetti briefs here. A quick scan of all the briefs confirms my sense that there are lots of different strands lumped together in Panetti, (This point is also born out by the issues covered on this webpage discussing Panetti and this ACS briefing and blog post about the case.) It will be interesting to see if next week's oral argument will show which of the various possible strands that the Justices are most eager to chew on.
UPDATE: This ABA Journal article provides effective coverage of Panetti, and the article nicely summarizes the dilemma facing the Justices:
Experts say the case could help clarify the criteria to be used for assessing whether a mentally ill death row inmate is competent for execution. But observers on either side of the issue say it also raises the possibility that the court could go too far in one direction.
If the court holds that a defendant need only be aware that he or she is about to be executed and why the state says it wants the execution, even a profoundly mentally ill death row inmate might not be spared the ultimate punishment. On the other hand, if the court holds that any defendant who could be classified as mentally ill should never be put to death, hardly anybody on death row would qualify for execution.
ANOTHER UPDATE: Lyle Denniston at SCOTUSblog now has this thoughtful discussion of the supplemental briefing issue and arguments in Panetti.
Op-ed from California legislators urging commission
California Senators Gloria Romero and Don Perata make their case for SB 110, a bill to create to create California's first sentencing commission, in this Sacramento Bee op-ed piece. Here is a taste:
Members of the Legislature have begun debate on a slew of prison reform bills. We are knee deep in a prison crisis and now is the time for action -- not rhetoric, scare tactics or labeling. Specifically, the Senate Public Safety committee recently heard our Senate Bill 110, which would create a Sentencing Commission for California.
The commission would be charged with the responsibility of collecting and analyzing sentencing and corrections data, developing statewide sentencing policies and achieving uniformity and consistency in our sentencing practices. In creating a sentencing commission, we will join 21 states that have a body that conducts some form of sentencing policy review, plus Washington, D.C., and the federal government.....
We need resolve, and we need action, and SB 110 is the prescription we require. The commission, as proposed, would be independent and nonpartisan, not allied with the Department of Corrections and Rehabilitation nor with the governor. It should not be merely advisory. It should command accountability; it should have teeth....
Everybody agrees that CDCR is in a state of crisis. The budget for the department has now ballooned to $10 billion and the governor has proposed spending an additional $11 billion this year to build new prisons and expand jail capacity. Yet our recidivism rate is more than 70 percent, and our parole system has been dubbed a billion-dollar failure. Not one but three federal judges have threatened to take complete control of the system, and the governor already has declared a state of emergency. June 4 is our deadline to find overcrowding relief before the court establishes a panel of judges to impose a cap....
We hear those critics who say Democrats are being "soft" on crime. But looking "tough" on crime isn't really worth much if in the end we can't deliver a correctional system that can pass constitutional muster. And looking "tough" on crime isn't really worth much if we can't even protect the public's safety.
We can't build or export our way out of this crisis. It will take political will and backbone to provide systemic relief that includes parole success, rehabilitative programs, sentencing reforms and, yes, perhaps, additional beds.
Wonderful (but unpublished!?!) Fifth Circuit affirmance of below-guideline sentence
Thanks to a helpful reader, I am pleased to be able to spotlight a terrific (but unpublished) opinion today from the Fifth Circuit affirming a below-guideline sentencing in US v. Anderson, No. 06-40732 (5th Cir. Apr. 12, 2007) (available here). Anderson involves a minor felon-in-possession charge, and anyone arguing for (or seeking to defend) a downward variance will want to read Anderson in full. Here is a taste of its main flavors:
With due regard to the Sentencing Guidelines, we find that Anderson's sentence was reasonable. The "nature and circumstances of the offense" reveal that Anderson was buying ammunition for his father and had no firearm compatible with the ammunition. See 18 U.S.C. § 3553(a)(1). The history and characteristics of the defendant, who had reintegrated into his community and showed no signs of repeating his long since past criminal behavior, also support leniency. Id. The district court carefully articulated its reasons for this non-Guidelines sentence and had good reason to believe that Anderson was reformed and posed little risk to repeat his offense. See United States v. Mares, 402 F.3d 511, 519 (2005)....
The government complains that too much emphasis was given to Anderson's work and family ties, but the sentencing transcript lends no credence to that argument. The district court was concerned with Anderson's personal growth, the nature of his offense, and the importance of Anderson's job to his rehabilitation. See 18 U.S.C. §§ 3553(a)(1), 3553(a)(2)(D). While the court did note that it received many letters from prominent members of the community, the content of those letters largely spoke to the § 3553 factors discussed above, and the court did not substantially rely on the mere fact that Anderson had strong community ties.
While Anderson certainly violated the letter of the law, the circumstances of his offense and of his criminal history provide rational and legitimate reasons to sentence him below the Guidelines range. Just as we have upheld sentences more than thirty months above the applicable Guidelines range, see Smith, 440 F.3d at 705–06, we will not stop the pendulum from swinging the other way where the sentence is otherwise reasonable.
Perhaps the only disappointing aspect of Anderson ― besides the fact that DOJ even bothered to appeal a sentence that seems eminently reasonable to anyone not blindly committed to the guidelines ― is the Fifth Circuit's curious decision to have it "not be published." Downward variances are rare in the district courts in the Fifth Circuit, and affirmances of such variances are even rarer. I wish the pro-discretion pendulum would swing all the way to publication. Perhaps counsel (or even a defender group) might move to have the Anderson opinion published; it deserves a place in F.3d.
California Supreme Court opinion implementing Atkins
I recently noted here that states have developed, and struggled with, a wide array of "ways to enforce the constitutional restriction" on executing mentally retarded offenders as required by the Supreme Court's 2002 Atkins decision. The Supreme Court of California take on this issue today in People v. Super. Ct. (Vidal), No. S134901 (Cal. Apr. 12, 2007) (available here). The ruling is intriguing for both substantive and procedural reasons, and persons interested in the use of scientific evidence in court will want to be sure to check this case out. Here's one passage that spotlights just some of the interesting issues that can arise in these sorts of cases:
The Court of Appeal majority erred in thus purporting to resolve a factual question ― the best scientific measure of intellectual functioning ― as a matter of law. In finding the facts of a particular case, courts and juries untrained in science are sometimes called upon to resolve contested scientific issues, but such factual findings do not establish generally applicable rules of law. The superior court here, for example, found on the basis of Couture's and Widaman's testimony that in Vidal's case his Full Scale IQ scores in the low average to average range did not preclude a finding of mental retardation. In a given case an appellate court might, within its proper role, hold that such a finding was not supported by substantial evidence in the hearing record. But an appellate court cannot convert a disputed factual assertion into a rule of law simply by labeling it a "legal standard," as the Court of Appeal purported to do here....
The Legislature has mandated that trial courts, in determining mental retardation for Atkins purposes (Atkins, supra, 536 U.S. 304), find whether the individual's "general intellectual functioning" is significantly impaired (§ 1376, subd. (a)), but has not defined that phrase or mandated primacy for any particular measure of intellectual functioning. The question of how best to measure intellectual functioning in a given case is thus one of fact to be resolved in each case on the evidence, not by appellate promulgation of a new legal rule.
New paper exploring the terrain of Apprendi-land
Just posted on SSRN is this new paper (which is forthcoming in the 2007 Supreme Court Review) by Jonathan Mitchell entitled "Apprendi's Domain." Here's the abstract:
Apprendi v. New Jersey and subsequent Supreme Court cases have extended the Sixth Amendment right of jury trial to some, but not all, factual disputes at sentencing. These court decisions require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant's punishment, but do not extend this requirement to facts that decrease a defendant's punishment or that establish mandatory minimums without raising the maximum allowable sentence. This fails to provide a coherent or sensible constitutional rule for distributing factfinding powers between judge and jury. The reason is that the Supreme Court has inexplicably decided that all facts subject to the Sixth Amendment jury requirement must also be proved beyond a reasonable doubt, as if they were "elements" of substantive criminal offenses.
This tie-in arrangement between the jury right and the reasonable-doubt rule is mistaken, and has caused two serious problems with the Court's Apprendi jurisprudence. First, it has produced a formalistic jury right that is easily evaded by legislatures and that hinges on an untenable distinction between "aggravating" and "mitigating" sentencing facts. The criminal jury's role was traditionally understood as extending to all "questions of fact," as opposed to "questions of law," but the Supreme Court cannot adopt this approach because it is unwilling to countenance a corresponding expansion in the proof-beyond-a-reasonable-doubt requirement and the concept of "elements." Second, Apprendi's all-too-limited efforts to expand the jury right have propogated an overbroad concept of "elements" that lacks historical support and brings needless doctrinal complications to judicial efforts to broaden the right of jury trial. This article urges a different approach that uncouples the Court's link between these two constitutional protections. Juries should decide all disputed questions of fact that aggravate or mitigate a defendant's guilt or punishment. But courts should not require these facts to be charged by prosecutors or proved beyond a reasonable doubt whenever they increase a defendant's maximum allowable punishment. This will give meaningful content to the right of jury trial while avoiding the historical and pragmatic problems caused by an expansive theory of "elements."
Looks like I already have a must-read for this weekend.
Admitting a parsimony problem
Thanks to this post at AL&P, I see an interesting admission by the government of sentencing error in the unpublished disposition in US v. Rosa, No. 06-2408 (2d Cir. Apr. 11, 2007) (available here). Here is the full text of the Rosa opinion:
Defendant-Appellant David Rosa appeals from the 10-month sentence of incarceration imposed on him following his third violation of supervised release. The Government concedes that remand is necessary because the District Court made statements inconsistent with the “parsimony clause” in 18 U.S.C. § 3553(a) — that is, the statutory mandate to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in” 18 U.S.C. § 3553(a)(2). We do not reach the question of whether a 10-month sentence for appellant’s violation is substantively reasonable.
I wonder what exactly the district court said.
UPDATE: A helpful reader sent me the problematic section of the transcript from the Rosa sentencing hearing. It can be downloaded below, and here's one key sentence from the Judge describing the 10-month sentence being imposed: "It's harsher than was anticipated by him or you, and maybe a little more than needed...."
April 11, 2007
Fourth Circuit reverses significant downward variance
The Fourth Circuit today reverses a significant downward variance in US v. Pyles, No. 06-4522 (4th Cir. Apr. 11, 2007) (available here). I may pile on with commentary later, but for now I'll let the start of the opinion speak for itself:
Derry Drew Pyles pleaded guilty to one count of aiding and abetting the distribution of crack cocaine, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2000). Although the advisory guideline range called for 63-78 months' imprisonment, the district court imposed a variance sentence of 5 years' probation with 6 months' home confinement.
The district court viewed probation as an appropriate sentence in this case because of Pyles's extraordinary rehabilitation. The Government appeals this sentence, arguing that the extent of the variance is unreasonable. While we appreciate the thoughtfulness that went into the district court's decision not to impose a sentence of imprisonment, we agree with the Government that the variance sentence of probation does not reflect the seriousness of Pyles's offense or provide a just punishment. The sentence therefore failed to satisfy adequately the sentencing factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). Accordingly, we vacate Pyles's sentence and remand for resentencing.
Could there be symbolic and practical value in making repeat child rape a capital offense?
As discussed here and here, the "hot new thing" in death penalty legislation is to make some forms of child rape a death penalty offense. This local article discusses an Alabama bill in the works and also provides useful background on these issues:
HB335 focuses on sexual attacks on children under 12, sexual torture of children under 16 or sexual attacks on anyone incapable of giving consent. Those crimes would be capital offenses if the defendant already has been convicted of rape, sodomy, sexual torture or sexual abuse in the first or second degree. The punishment in those cases would be life without parole or death by lethal injection....
Louisiana, Florida, South Carolina, Montana and Oklahoma already allow the death penalty in some cases of non-fatal child molestation. Texas and Utah are considering similar laws. Louisiana inmate Patrick Kennedy is the only person on Death Row nationally for a non-fatal child molestation, said Richard Dieter, executive director of the Death Penalty Information Center in Washington.
Unsurprisingly, folks who categorically oppose the death penalty are categorically against these laws, and there are serious constitutional questions in light of the Supreme Court's declaration 30 years ago in Coker that the death penalty for adult rape violates the Eighth Amendment. But, because we are discussing these laws in my death penalty class this week (details here), I have been giving more and more thought to some of the potential values of these new laws. Here are some initial ruminations:
1. Symbolic value: As regular readers know, almost no murderers get executed outside Texas anymore, and so the odds that many (or even any) repeat child rapists will be executed seems small. But what seems potentially large is the symbolic (and psychic?) benefits that legislators, victims, and general citizens might draw from making the symbolic statement that some cases of repeat child rape can be as horrible as some murders. (I mean here to suggest a value that is beyond the (possible? unlikely?) tangible deterrence benefits that might come from being able to tell first-time child rapists that their next offense could lead to a death sentence).
2. Practical value: Especially because few death sentences lead to executions and even fewer capital indictments lead to a death sentence, I have long believed the real practical consequence of the death penalty is to induce pleas and cooperation. (I am not saying this is the primary or even a proper reason for having the death penalty, but I think it is accurate to say that the Green River Killer and the Unibomber and many others have been been brought to justice more easily because of the threat of the death penalty.) Because child rape cases can be notorious hard to prosecute sometimes, perhaps the possibility of a death sentence for repeat child rapists could have a real practical benefit in inducing valuable pleas and cooperation.
As suggested above, these are just ruminations. But I would be interested in reactions (particularly from folks not categorically opposed to the death penalty).
UPDATE: In addition to a lot of great comments already, Corey Yung at Sex Crimes weighs in here. Notably, Corey (and federalist in the comments) asserts that these statutes "increase the risks that victims will be killed." I hear that claim a lot, but do not quite understand it. Do we think that the death penalty for certain felony-murder killings increases the chances that witnesses who see the robbery will be killed. Also, as Crunk highlights, any truly "rational" child rapist must know he has a much better chance of escaping conviction altogether on a child rape charge than of escaping a rape+murder charge. Further, all of these statutes would no doubt have killing (or even harming) the victim as an aggravator at the punishment stage.
I have never seen any empirical support for the notion that these statutes increase the instances of killing the victim. (Someone should be able to study this, since the Louisiana child rape statute's been operational for more than a decade.) Until I see some support for this "kill the victim" assertion, I am suspect of this argument against these statutes.
Who is working on the Sixth Amendment part of the SCOTUS playbook?
Joan Biskupic had this entertaining article in yesterday's USA Today entitied "Roberts, Scalia strike similar chords on court; With a bond over style, substance and showmanship, conservative justices change tone of the bench." Here are some notable snippets:
They sit side by side on the Supreme Court's mahogany bench, and much of the time they seem to be working from the same playbook. Chief Justice John Roberts and Justice Antonin Scalia share conservative views on the law, and in Roberts' second term on the court he appears to have formed a bond with Scalia that involves not just substance, but also style....
Roberts and Scalia are particularly in tune when questioning lawyers in criminal law cases. They are aggressively skeptical of appeals by death row inmates and usually support law enforcement over defendants. During one court session this year, Roberts and Scalia were in lock step while scrutinizing claims by a lawyer for a death row prisoner who wanted a new hearing on the grounds that his initial lawyer was ineffective. Roberts and Scalia asked nearly 20 questions before any other justice got a word in.
As I highlighted (here and here and here) during all the recent SCOTUS transitions, it could be very consequential for the Supreme Court's Sixth Amendment jurisprudence if either of the two new Justices end up looking at Blakely issues in sync with Justice Scalia (or Justice Thomas). Especially after Chief Justice Roberts' decision in Cunningham to join the Blakely five (discussed here), and with potentially significant cases like James and Claiborne and Rita pending, I am eagerly waiting to see if CJ Roberts and Justice Scalia will continue to run formations from the same Sixth Amendment part of the SCOTUS playbook.
Commission coming in California?
Speaking of bills to create a state sentencing commission (Colorado story here), the news out of California should be heartening for those who hope a sentencing commission could help chart a better path for California's dysfunctional sentencing system. This article provides the latest state legislative news:
A bill to place state sentencing policy in the hands of a newly created commission passed its first legislative test Tuesday, but not until some of the heaviest hitters in California law enforcement took some meaty swipes at it.
The California District Attorneys Association, the California Police Chiefs' Association, the Police Officers Research Association of California and representatives of seven other groups all stepped forward at the state Senate's Public Safety Committee meeting to rip the measure proposed as a major fix to the state's incarceration crisis. Mostly, the groups blasted the outlines of the sentencing commission proposed by state Sen. Gloria Romero, D-Los Angeles, as taking authority away from the elected Legislature and giving it to a panel featuring a mixture of appointees put there by the governor, lawmakers and the courts....
Romero said she was "disappointed" in the opposition to Senate Bill 110 that was expressed by the police and prosecutor groups representing both labor and management. But she expressed satisfaction that the bill still passed the committee she chairs on a 3-2 party-line vote. Romero also predicted successful, if not smooth, sailing as it moves to the Senate Appropriations Committee, to the chamber's floor and then over to the Assembly, where a similar bill being carried by Assemblywoman Sally Lieber, D-Mountain View, also is getting aired.
Commission coming in Colorado?
As detailed in this local article, Colorado may be on the verge of creating a state sentencing commission to help address its prison overcrowding woes:
Today in Denver, state lawmakers are poised to form a group to study criminal justice in Colorado, which many believe is a step to reducing prison populations and cutting crime. But it's the criminal justice system, so naturally, there are opposing views about how to do it.
The Colorado Criminal and Juvenile Justice Commission would collect data about Colorado's prison population, examine the state's sentencing scheme, consider alternatives to incarceration, and make policy recommendations. "It's time that Colorado got smart about crime," said state Rep. Terrance Carroll, D-Denver, the bill's sponsor. "It's easy for someone to say we're going to be tough on crime, but that doesn't require any thought. We have to be thoughtful on crime, smarter about how we deal with crime."
While many others agree the notion is a noble one, they are wary of how it might unfold. Weld District Attorney Ken Buck is wary of the commission's intent. "I want to make sure this is a criminal justice bill and not a sentence reduction bill," he said.
The director of the Colorado Criminal Justice Reform Coalition, which advocates the reduction in prison expansion, said the commission is a step in the right direction. But she added that as planned, it doesn't have enough involvement from regular residents. "People in the community are the ones dealing with these issues on a daily basis in their lives. The struggles and the challenges are in the community," Christie Donner said. "This cannot just be about bureaucrats getting together, bureaucrats and politicians, and that's what it is right now."
Carroll said the measure came from a document that has been the genesis of many a unique idea: Colorado's strapped budget. He said 22,000 people are incarcerated in Colorado, and if the state keeps its current pace, that number will rise to 28,000 in the next four years. Spending on corrections puts a major strain on the state budget, which also is hamstrung by spending limitations. "It hurts other things like transportation, K-12, higher education, things that people care about," Carroll said.
The commission would look at ways to reduce recidivism, which means re-offending after being released from prison, as one way to reduce the population. Other possibilities could include changing the state's sentencing guidelines or mandatory minimum sentences, although nothing in the bill would require that.
April 10, 2007
The DOJ went crazy on Georgia
With apologies to the Charlie Daniels Band and one of the all-time great songs (which can be enjoyed at this link) I cannot help but doing a (lousy?) song parody to capture my reaction to the recent remarkable reversal of the Georgia Thompson federal conviction conviction by the Seventh Circuit.
Howard Bashman has been all over this case since the Seventh Circuit's ruling last week (coverage here and here), at Jeralyn at TalkLeft has this terrific post reflecting on the story. I did not pay the story too much attention until today's news that the case has now been drawn into the US Attorney purge investigation. But, after now listening to the Seventh Circuit oral argument audio via this link (mp3 file), I cannot help but express how troubled we all should be that this prosecution went so far on such paper thin facts.
Only by listening to the Seventh Circuit oral argument can one fully appreciate just how crazy the case was against Georgia Thompson. In short, the feds went after Georgia essentially because how she did her job as a state purchasing employee was imperfect. Of course, I am bothered by the decision by the federal prosecutor to pursue such a weak case. But, perhaps more troubling is that none of the critical safeguards against prosecutorial overreaching — the grand jury, the district judge, the trial jury — could see clearly that Georgia's actions were not even clearly questionable, let alone a sound basis for convicting her of a serious federal crime.
As Paul Soglin suggests here, I think we all need to make "Question Authority" a modern mantra.
UPDATE: Mark has a great comment below that which deserves to be highlighted in the body of this post. Here is the heart of the comment:
Our trial judges, our fellow citizens, and our fellow defense counsel are way too servile. They aren't servile to an Administration; they ARE, however, servile to the bureaucratization of criminal law. When President Bush leaves office, this fundamental problem will remain. So using this situation as a chance to bash Bush obscures the problem. It deflects the problem. It avoids the problem. I don't know the solution, but I do know that misdirected political pot shots are part of the problem.
Race, Inequality and Incarceration
This title of this post is the title of this event taking place tomorrow at Stanford University, which is described as an "intellectual summit addressing the causes, meanings, and effects of racial disproportion in the American criminal justice system with a focus on massive incarceration and racial disproportion in American prisons and jails." Here is the set up for the first of four panels that all look amazing:
The numbers are now starkly and frighteningly clear. The prison/jail population of the US now approaches two million, with the rate of increase itself dramatically increasing in recent years. African-Americans, representing about 13 percent of the American population, make up about 44 percent of the incarcerated population. These devastating numbers obviously call on us to consider the most foundational questions about American society. But to reframe the issues a bit more concretely, what are the specific institutional inputs or most immediate social inputs into these numbers? And what metrics do the social sciences — and the humanities — offer us to grasp the significance of these numbers in American history and in comparison to the other nations?
Regular readers will not be surprised to hear that I think this event and the societal issues it addresses are far, far, far, far, far more important and newsworthy than any offensive and stupid comments by an offensive and stupid radio talk show host.
More federalism in administering Atkins
When the Supreme Court declared in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibited the execution of mentally retarded offenders, the Court punted all tough administrative issues by leaving to the states "the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." Years later, as detailed in posts here and here, states have developed, and struggled with, a wide array of "ways to enforce the constitutional restriction" on executing mentally retarded offenders.
In Texas, as detailed in this Amnesty International release, the state legislature has never enacted a law to comply with Atkins. The Texas Court of Criminal Appeals in early 2004 developed "temporary judicial guidelines" for trial courts making retardation determinations. Those guidelines have not helped death row defendant James Lee Clark, who has considerable medical support for his claim that he is retarded, but still is slated to be executed tomorrow. (As an interesting footnote, Clark's execution will mark the 152nd Texas execution since Rick Perry became governor in 2001, which is the exact number of executions George Bush oversaw in his five years as governor.)
Meanwhile, Ohio has also administered Atkins through judicial rulings, but it seems that Ohio courts tend to apply the state's MR standard in a more defendant-friendly manner. Specifically, as detailed here at ODPI, a state common pleas court has recently ruled that an Ohio death-row defendant satisfied the three-prong test for establishing retardation in Ohio based on medical evidence not much different than has been presented by James Lee Clark.
Should GITMO outcomes impact federal sentencing in terrorism prosecutions?
This article in the New York Sun highlights how defendants can try to use events at GITMO in support of arguments for a lower sentence in standard federal court sentencing:
The nine-month prison sentence recently handed down at the Guantanamo Bay detainment camp to an Australian who served Al Qaeda could sway federal judges on the mainland toward leniency in terrorism-related cases, an expert in sentencing says. The first case to test this possibility will be called today in U.S. District Court in Manhattan, where a Brooklyn man who owns an Islamic bookstore faces sentencing for plotting to send money overseas to jihadists in Chechnya and Afghanistan.
Abdulrahman Farhane likely faces about 13 years in prison, according to the federal guidelines. Lawyers for Farhane are saying the sentence the Australian, David Hicks, received is the appropriate sentence for him as well. "It would be disproportionate for the Court to sentence Mr. Farhane (who discussed transferring money overseas and lied about the fact) to a term of imprisonment greater than Mr. Hicks … who left his native Australia to wage Jihad," a lawyer for Farhane, Michael Hueston, wrote recently to the judge, Loretta Preska.
Another example of victims seeking leniency
As I have stressed before, the role of victims in sentencing is always dynamic and nuanced (and victims are not always seeking severe outcomes). A good example of these realities comes from this state sentencing story out of Missouri:
A former MU student was sentenced Monday to five years' probation for driving drunk and causing a crash that killed his best friend in May 2006. Adam Droesch, 22, of St. Louis, pleaded guilty on Jan. 8 to first-degree involuntary manslaughter and two counts of second-degree assault. He was facing up to 30 years in prison, but the victim's parents asked the court to show leniency in deciding Droesch's sentence.
"No amount of jail time would ever compare to the amount of remorse he feels," the victim's father, Gerald Keeven, said, reading from a letter he had written to Boone County Circuit Judge Gene Hamilton. He told the judge that he made the request without "misgivings or hesitation."...
As part of his probation, Droesch will complete 200 hours of community service, which will include participating in victim impact panels and doing other work with organizations such as Mothers Against Drunk Driving.
Latest OSJCL issue on-line
Though it still does not yet feel like winter has ended the Spring 2007 issue of the Ohio State Journal of Criminal Law is already available on-line here. Though I am biased, I think this new issue is terrific; the articles in the symposium on Mercy and Clemency and other pieces are all quite thought-provoking.
Hard-core sentencing fans should especially enjoy the written-up version of Judge Nancy Gertner's OSU Blackmun Lecture. Judge Gertner's essay is entitled "From Omnipotence to Impotence: American Judges and Sentencing," and can be accessed at this link.
April 9, 2007
Judge Posner provides today's great sentencing read
Judge Richard Posner is in fine form with his highly entertaining opinion in US v. Sriram, No. 05-2752 (7th Cir. Apr. 9, 2007) (available here). Here is the opening paragraph, which foreshadows the pulse-quickening sentencing ride that follows:
The defendant, a cardiologist who had billed Medicare some $17 million over a five-year period, pleaded guilty to health care fraud and tax fraud. He admitted having received "substantial payments" for fraudulent claims (estimated in the presentence investigation report to be between $5 and $10 million) submitted to health insurers and having defrauded the government of more than $550,000 in income tax. After a 13-day sentencing hearing, the district judge threw up his hands and imposed an absurdly light sentence of five years' probation for both the health fraud and the tax fraud (the sentences to run concurrently) plus restitution of $1,258.
The rest of the opinion provides more heart-stopping entertainment (and also covers a lot of significant post-Booker sentencing ground). Here are snippets that are both noteworthy and amusing:
The judge dipped far below even his erroneously calculated guidelines range to take account of what he considered to be the following mitigating factors: the defendant was "chronically inept as a businessman"; the prosecution had been protracted; the government had violated the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over records of the defendant's medical training; the defendant had spent a great deal of money on his legal defense; and the prosecution had stigmatized him and might cause him to lose his medical license (it has in fact been suspended). Only the last two of these factors (stigma and effect on professional opportunities) are admissible in determining a sentence, and perhaps only the last one....
A judge's sentencing discretion is constrained by 18 U.S.C. § 3553(a), which lists the factors to be considered in deciding on a sentence. That a conviction for fraud imposes a "stigma cost" on a "respectable" professional person, such as a doctor, and may even lead to his expulsion from the profession, adds to the punishment inflicted by a prison term or fine. United States v. Dreske, 536 F.2d 188, 196 (7th Cir. 1976); Jeffrey S. Parker & Raymond A. Atkins, "Did the Corporate Criminal Sentencing Guidelines Matter? Some Preliminary Empirical Observations," 42 J. Law & Econ. 423, 426-27 (1999). And so it may justify a limited (but we stress "limited"—see United States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006) (per curiam)) reduction in the term or the fine, because the consequences of a sentence for the defendant's well-being are relevant to the deterrent, incapacitative, and retributive goals of sentencing, all recognized in section 3353(a).
But that a defendant spends heavily on lawyers is not a mitigating factor. It would not only encourage overspending; it would be double counting, since the pricier the lawyer that a defendant hires, the less likely he is to be convicted and given a long sentence. And as for governmental misconduct, nothing in section 3553(a) suggests that punishing the government is a proper goal of sentencing; two wrongs don't make a right.
The Brady claim hovers on the border of cloud-cuckooland....
I wonder if cloud-cuckooland is anywhere near Apprendi-land. Perhaps someday CourtTV can sponsor an attorney version of The Amazing Race to visit all these legally consequential locales.
Another Amendment to obsess over?
I am just back from a terrific faculty workshop in which Prof. Suja Thomas discussed her latest project that builds off her intriguing essay (now in printing in the Virginia Law Review) entitled "Why Summary Judgment is Unconstitutional." Hearing Suja's presentation and her theory of the Seventh Amendment confirmed my instinct that there are important parallels between the scope and application of the criminal jury trial right safeguarded by the Sixth Amendment and the civil jury trial right safeguarded by Seventh Amendment.
Of course, few should care if I see parallels between between the two jury trial rights that appear in these neighboring provisions of the Bill of Rights. But, since SCOTUS has cases implicating both Sixth and Seventh Amendment jury trial issues pending this term, I am certainly going to be watching closely to see if some Justices start talking up the parallels.
ACS event on death in Texas
I just got a press release promoting this death penalty event sponsored by the American Constitution Society for Law and Policy. Here's the substance:
At a time when many states are considering death penalty moritoriums or even abolishing capital punishment outright, Texas executes more inmates than any other state. This term, the Supreme Court is hearing four death penalty appeals arising out of the state of Texas -- the last of which, Panetti v. Quarterman, is scheduled for oral argument on April 18th. Our panel will discuss the legal issues behind Panetti, which considers whether the Eighth Amendment permits Texas to execute a mentally ill inmate who believes he is being executed for "preaching the gospel," and will also ask whether Texas' relatively high number of executions represents a break with a developing trend among the several states.
The folks at ACS might also want to discuss that, as detailed here at DPIC, Texas has plans on Wednesday to execute James Lee Clark, who may be mentally retarded. But, after Clark's fate is resolved, Ohio will be back "on the capital clock" for an execution scheduled for later this month.
Noticing an upward variance pattern
This article at Legal Times, entitled "Hard Hits: Departures From Sentencing Guidelines Seem Immune From Scrutiny When National Security Invoked," spotlights that Booker has proved to be more of a curse than a blessing for certain sets of defendants. Here is how the piece begins:
Despite new freedom in sentencing criminals, federal district courts are mostly staying within the U.S. Sentencing Guidelines — with one significant exception. That exception is national security.
For defendants in these cases, the news is grim: Upward departures based on national-security concerns have not only been upheld in every case but have also resulted in sentences that exceed the guidelines by as much as 333 percent. And these extremely high sentences often have been imposed and affirmed without compelling reasons for such strong punishments. This trend is troubling, and it deserves closer scrutiny.
Two distinct snapshots of the modern capital state
Sunday's papers brought two distinct, and yet perhaps similar, snapshots of the state of the modern death penalty:
- This Chicago Tribune article provides an effective nationwide overview explaining how and why questions about fairness and costs are "undermining political support for capital punishment."
- This Columbus Dispatch article provides an effective in-depth analysis of why, in Franklin County, Ohio, a jury has not returned a death sentence in nearly four years. In addition to the article, the Dispatch has this fascinating review "of the last 100 aggravated murder indictments [in Franklin County which] shows that juries are becoming more reluctant to impose the death penalty."
April 8, 2007
Challenging geographic death disparity
I find the issue of geographic disparity in the application of the death penalty to be very interesting (and generally under-examined). Thus I was pleased and intrigued to see this new student note in the Georgetown Law Journal entitled " Challenging the Intrastate Disparities in the Application of Capital Punishment Statutes." Here is a portion of the note's introduction:
This Note will address the issue of prosecutorial discretion in the application of the death penalty at the county level within a state. Part I will address the existence of interstate and intrastate variations in the application of capital punishment statutes, and why it is not constitutionally problematic for one state to apply the death penalty in a different manner than another state. Part II will assess evidence that indicates that within states, capital punishment statutes are applied with drastically different frequencies among counties. While the focus will be on the application of the death penalty in Maryland, this Note will present evidence that the results of statistical analyses in Maryland have been replicated in several other states, thus indicating the widespread applicability of the arguments presented. Part III examines the typical explanation for the variation in frequencies of application of the death penalty: prosecutorial discretion. While prosecutors often are given broad discretion in applying a jurisdiction’s law, Part IV presents several arguments suggesting that this is problematic in the capital punishment context.
Some related posts:
Minnesota SG Commission urging drug sentencing reforms
As detailed in this local news story, the Minnesota Sentencing Guidelines Commission is urging in this new report a rehaul of the state's drug sentencing laws. Here are the basics from the news story:
Minnesota's drug laws might be too harsh and the state should consider reducing prison terms for users and small-time dealers, a powerful sentencing commission contends. The provocative stance from the Minnesota Sentencing Guidelines Commission would have been improbable a decade ago, when politicians and prosecutors often spoke about zero tolerance and a "war on drugs." But the idea of reforming drug laws, including the possibility of reducing recommended sentences for certain offenses, has been gaining traction among lawmakers, judges and prosecutors.
The sentencing commission put forward a proposal that would cut recommended sentences on some drug offenses nearly in half. First-degree offenders convicted for the first time could see recommended sentences reduced from seven years to four years.
A bill that passed the state Senate last month includes a provision ordering a drug-sentencing study. The review would be done next year and could include new sentencing guidelines that would automatically take effect unless lawmakers act to block them. Backers of a review said the state must examine whether the lengthy prison terms for drug offenses recommended under current sentencing guidelines are fair, effective and worth the cost. Drug offenders represent an increasing percentage of the state's prison population.
"We've got too many drug folks in prison," said Hennepin County Attorney Mike Freeman. "We need to do something about it. We need to have an enlightened dialogue that includes treatment." Dakota County Attorney James Backstrom said he would oppose lighter sentences. He said violent crime and other problems stemming from drug use and dealing can "overwhelm communities."
"Give Them What They Want"
Like scores of inmates in other states, Marco Allen Chapman wants to go ahead with his execution after admitting he brutally killed two children and left their sister and mother for dead. What makes Chapman's case groundbreaking, lawyers say, is his decision to waive trial and sentencing by a jury, and then nearly beg to be sentenced to death....
On Thursday, the Kentucky Supreme Court is set to hear arguments on the legality of Chapman's request, part of the automatic appeals process in all death penalty cases. The case has the unusual twist of putting prosecutors and Chapman on the same side arguing for the death sentence while Chapman's court-appointed defense attorneys seek to stop the lethal injection....
Chapman, who has turned down multiple interview requests, pleaded guilty in December 2004 to killing 7-year-old Chelbi Sharon and 6-year-old Cody Sharon in their home in the northern Kentucky community of Warsaw. Chapman also admitted stabbing 10-year-old Courtney Sharon, who survived, then raping and trying to kill their mother, Carolyn Marksberry, during the 2002 assault. A judge granted his request to be sentenced to death....
Chapman's court-appointed attorneys, Donna Boyce and Randall Wheeler ... argue that the trial judge mishandled the case and that Chapman was depressed and seeking to use court proceedings to commit suicide. They want a new sentencing hearing after Chapman has been treated for depression. "Marco Chapman is committing suicide," Boyce and Wheeler wrote.
Prosecutors' briefs say Chapman was found competent multiple times. "The fact of the matter is that preferring death over life imprisonment is not state assisted suicide, just because death penalty abolitionists like to call it that," Assistant Attorney General David Smith wrote.