April 18, 2007
How rare events skew perspectives
Eugene Volokh has a great post here about how the law ought to respond to the VT tragedy that picks up a theme I often stress in discussions of the death penalty. Here is a snippet:
It turns out that yesterday, about 25 to 40 people were killed in alcohol-related homicides, not including those that died because of their own alcohol consumption. Each year, between alcohol-related drunk driving deaths and alcohol-involved murders, about 10-15,000 Americans (not including the responsible drunk drivers themselves) die. That translates into roughly 25 to 40 deaths per day (the range is wide because the source numbers are necessarily back of the envelope estimates), about the same number as the extra homicide deaths from yesterday's mass shootings. If you counted people whose alcohol consumption killed themselves, the total would likely be far more.
Eugene's point is not to minimize the VT tragedy, but rather to spotlight that rare and sensational events often skew our ability to do sensible cost-benefit assessments of proposed legal reforms. And those who work in the arena of sentencing reform understand this reality whenever a single child abduction or parolees crime prompts new (and often unwise) sentencing proposals nationwide.
One interesting variation on this theme relates to whether and how Supreme Court Justices can have their own perspectives skewed. Specifically, as I listened to all the news today concerning the VT shooters mental problems, I wondered if the Supreme Court's consideration of the Panetti competent-to-be-executed case this afternoon might have a much different look and feel now.
A few quick reactions to James
A too-quick read of today's James opinion (basics here) prompts these first-cut reactions:
1. Except for Justice Thomas (who pens a brief solo dissent to state again his modern opposition to the prior conviction exception), nobody seems concerned about the Sixth Amendment implications of having judges assess what might qualify as a "violent felony" under the Armed Career Criminal Act. The majority opinion says this is a non-issue because in "determining whether attempted burglary under Florida law qualifies as a violent felony under §924(e)(2)(B)(ii), the Court is engaging in statutory interpretation, not judicial factfinding." The main dissent does not engage this issue, suggesting only Justice Thomas disagrees.
2. In light of point 1, just why did this little opinion in a little criminal case take so long? My gut instinct is that there was a "fight" over Justice Souter's vote and perhaps also Justice Breyer's vote. Justice Scalia's dissent seems awfully lengthy and detailed for a dissent, and there are passages of Justice Alito's majority opinion in James that seem written to hold on to five votes. (See, e.g., point 3 below, discussing a classic Breyerian passage in the majority opinion.)
3. In a passage that is notable with Claiborne and Rita pending, the James majority opinion gives the US Sentencing Commission and its guidelines much more credit than deserved. At pages 12-13, the James majority discusses the "crime of violence" definition in the career-offender guideline which parallels the "violent felony" term under ACCA at issue in James. In this discussion, the majority quotes a 1992 opinion from then-Judge Breyer as part of a claim that the career-offender guideline is "based on the Commission's review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses." In fact, I think that the USSC's own research generally shows considerable dysfunction in the operation of the career-offender guideline. Moreover, crack sentencing realities highlight that USSC's empirical research is not always ― indeed, is not often ― reflected in its guidelines.
4. As I will explain more fully in a subsequent post, Justice Scalia's dissent reveals that Justice Scalia is continuing his modern tendency to channel Justice Brennan through his votes and opinions in non-capital criminal cases.
5. What about the rule of lenity? Justice Scalia mention the rule of lenity only once in passing in his dissent, and the majority does not engage the point. There can be little doubt that the statute being interpreted in James is vague and debatable (indeed, Justice Scalia suggests it is unconstitutionally vague). Isn't James exactly the type of case in which the rule of lenity ought to serve as a decisive canon of construction?
Splintered SCOTUS upholds sentence enhancement in James
Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:
In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.
Based on the unusual vote line-up and the outcome, I suspect James will provide many tea leaves about future Sixth Amendment cases. I will, of course, post and comment on the opinion once it is available.
UPDATE: The James opinion can now be accessed here. It runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!
April 18, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (10) | TrackBack
Good works Booker break for white-collar offender in DC
The Washington Post has this detailed coverage of a notable federal sentencing of a white-collar offender yesterday in Washington. Here are some of the highlights:
Downtown developer Douglas Jemal avoided prison when a federal judge yesterday sentenced him to probation and declared that the countless good works he has performed for Washington and its residents far outweighed his financial fraud conviction. U.S. District Judge Ricardo M. Urbina said the maverick leader of Douglas Development Corp. was "one of those rare cases" and that he felt compelled to balance the community's views about Jemal's character against the prosecution's demand for punishment....
Prosecutors initially sought a prison sentence of up to five years for the financial fraud conviction, and later agreed that 33 to 41 months was a proper penalty. The judge's rejection of the prison sentence floored the U.S. attorney's office and its public corruption team, which spent three years on the case. Jemal's sentencing came nearly six months after a jury rebuffed most of the government's case, acquitting him of charges that he had bribed a former D.C. government official in return for sweetheart city leases on an impound lot and other properties....
Lead federal prosecutor Mark H. Dubester had urged the judge to send Jemal to prison to punish him and deter other business leaders from committing similar crimes. Dubester also stressed that a prison term would give the public confidence that wealthy white-collar criminals -- who can afford top-notch lawyers and give generously to charitable causes -- won't get off easier than "little guys."... "Clearly, we're disappointed," Jeffrey A. Taylor, U.S. attorney for the District of Columbia, said in a statement. "In our view, this sentence -- well below that called for by the sentencing guidelines -- sends the wrong message to the citizens of the District and the many honest businesspersons of this city."
The judge said he compared two disparate groups in reaching his decision: convicted felons-turned-cooperators for whom prosecutors urge reduced sentences and community members who attested that Jemal's generosity changed their lives. "They have committed numerous, numerous crimes," Urbina said of the informants. "They have lived such a corrupt life that it now helps them buy their way out of trouble." By contrast, Jemal had demonstrated a genuine selflessness, he said, helping homeless men get work, giving plane tickets to poor workers for family visits, even giving his beloved dog to a woman suffering mental anguish.
"One thing is clear: Mr. Jemal has devoted much of his adult life to good, charitable causes," Urbina said. "When I compare the valuable and worthwhile services [repeat offenders] provide to society and I see what Mr. Jemal has done over the course of his lifetime, it is inconceivable to me that I should impose the penalty proposed here. . . . Being fair means being fair."
Some related posts:
Will Genarlow Wilson get Duke justice?
The sad Genarlow Wilson case from Georgia (background here and here and here) is generating more press in the wake of the upstanding way in which North Carolina's Attorney General admitted mistakes in the Duke case. Here is some of the latest coverage and commentary:
- From the New York Times, "Dropped Duke Charges Renew Hope in Georgia"
- From the Atlanta Journal-Constitution, "Break legal ranks to right a wrong"
Some recent related posts:
- ESPN effectively covers Genarlow Wilson's sad saga
- Why isn't the severe Georgia sentence constitutionally problematic?
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed
- Genarlow Wilson seeking state habeas relief
Capital times at SCOTUS
On Wednesday, the Supreme Court will hear argument in Panetti (previously discussed here and here; lots more coverage collected here at How Appealing). If SCOTUS sticks to the narrow question on which cert was granted, its ruling will be virtually inconsequential to the operation of the death penalty. But, if some Justices seize Panetti to address broader issues, the case could become a blockbuster. Oral argument today may provide some clues on how some Justices are approaching the case.
Meanwhile, yesterday the Justices heard argument in Uttecht v. Brown, a case that could greatly impact both capital jury selection and the review of death sentences in federal courts. The oral argument transcript is available at this link, and Kent Scheidegger has an analysis of some of the issues that arose during argument in this post at Crime & Consequences.
Capital Defense Weekly reviews all these SCOTUS development in this extended post.
Fifth Circuit reverses another below-guideline sentence
The Fifth Circuit has reversed another below-guideline sentence in US v. Sanchez, No. 06-20193(5th Cir. Apr. 17, 2007) (available here). Sanchez involves a high-profile alien smuggling case, and the Fifth Circuit panel ultimately concludes that the district court made multiple errors: "In imposing the non-Guideline sentence in this case, the district court relied on clearly erroneous factual determinations, put significant weight on an improper factor, and ignored factors that should have been given significant weight. For those reasons, we hold that the sentence is unreasonable."
April 17, 2007
New student note on "Executioner Identities"
Professor Debby Denno was kind enough to send me an advance (and postable) copy of a new student note soon to appear in the Fordham Law Review entitled "Executioner Identities: Toward Recognizing A Right To Know Who Is Hiding Beneath The Hood." Here are selections from the introduction:
The doctor had more than twenty malpractice suits filed against him. Two hospitals had revoked his privileges. He testified that he had dyslexia and sometimes confused drug dosages. This same doctor also supervised the lethal injections of fifty-four inmates in Missouri over a decade....
Part I of this Note briefly looks to the history of the executioner in the United States and then examines the basis for a First Amendment right of access and when that right can be limited. Part II highlights how this right applies in the context of the lethal injection executioner. Part II first focuses on the justification for concealing the executioner's identity before exploring why the public and the inmate have a right to know the identity. Part III argues that the right of the inmate and public to know the identity outweighs the state and prison's speculative concerns on which the grounds for concealment are based. Part III initially advocates that an executioner's name and qualifications should be revealed but then argues, in the alternative, that if states provide substantiated justification for concealing an executioner's identity, then the identity can be concealed, but specific qualifications of the executioner should be revealed.
UPDATE: On a related theme, ODPI discusses here the news that the paper Nashville Scene has now sued the state of Tennessee for secret execution protocol documents.
Some (needed?) help for SCOTUS on Sixth Amendment "first principles"
As detailed here and here, this morning was civil at the Supreme Court: the Court released opinions in three civil cases (and the vote alignments in all three cases seem notably unpredictable). As Lyle Denniston notes, now the earliest-argued case still undecided is "James v. U.S. (05-9264), on whether a state conviction for attempted burglary can be treated as a violent felon under federal armed criminal sentencing law." More opinions are to be released tomorrow, so maybe then we will finally see a SCOTUS version of "Sweet Baby James."
Of course, Claiborne and Rita are still pending, and my anticipation is starting to build (even though I doubt we will see these decisions until June). Adding to my anticipation is an e-mail I received from YLS Professor Kate Stith, who reports to me that her student "Richard Re, YLS '08, has a nuanced exposition of the argument [that] Sixth Amendment 'first principles' resolve the apparent tension between Blakely and Booker I, on the one hand, and Booker II, on the other." That explanation can be downloaded below, and here is a taste to whet your appetite:
If reasonableness review is to be consistent with the Sixth Amendment, then Sixth Amendment doctrine must be re-conceptualized so as to differentiate between sentencing guidelines imposed by legislatures and those generated by judges themselves. But why would the Blakely and Booker rules apply only when the legislature is involved? In order to answer this question, we have to return to Sixth Amendment first principles.
Using technocorrections to combat DUI
This story from Arizona provides another example of a technocorrections proposal in the works:
In a move welcomed by advocates for tougher laws against drunken driving, Arizona legislators are moving toward requiring DUI offenders to use ignition interlocks for at least a year when resuming driving after first convictions.
The House is poised to vote on a DUI sentencing bill recently amended to add a requirement that convicted DUI offenders equip their vehicles with the breath-test devices to analyze a person's blood-alcohol content. The ignition interlock system will not allow a vehicle's ignition to operate if the person's alcohol content is above a certain limit....
If the requirement for first-time DUI offenders is enacted, Arizona would be following the lead of New Mexico. That state adopted a similar mandate in 2005. Arizona already requires that some DUI offenders use ignition interlocks when their driving privileges are restored but not for first offenders of regular DUI.... Cost for the devices, typically $120 for installation and $60-$70 a month for monitoring, would be borne by offenders.
I have heard various stories about the efficacy of ignition interlocks. Readers familiar with the technology are encouraged to reports on their experiences and perspectives in the comments.
April 16, 2007
The really big SCOTUS capital case this week
Because the issue involves a somewhat crazy issue about a possibly crazy killer, the Panetti case to be argued before the Supreme Court on Wednesday is getting significant media attention. (See my prior post here along with more recent coverage from the AP, from the Houston Chronicle, and from the San Antonio Express.) However, a capital case to be argued before SCOTUS tomorrow, Uttecht v. Brown, is a case which surely will have much greater impact on the administration of capital punishment and on the review of death sentences in federal courts.
Lyle Denniston provides over at SCOTUSblog has this helpful oral argument preview of Uttecht. Here is how it begins:
A single jury panel member named Richard Deal, excluded from serving in a gruesome murder case that went to trial 14 years ago in Washington State, is at the center of a potentially historic case on jury selection in death penalty cases due for argument at 1 p.m. Tuesday. The case of Uttecht v. Brown (06-413) puts before the Court a mixture of issues about federal court authority to review jury selection in state criminal courts, about the ease with which judges may bar jurors with reservations about the death penalty, and about how to apply a key Supreme Court precedent on capital trials (Wainwright v. Witt, 1985). It also involves the ongoing conflict between the Supreme Court and the Ninth Circuit Court over how rigorously to read the habeas-curbing provisions of the Antiterrorism and Effective Death Penalty Act of 1996.
The on-going MPC sentencing project
A month from today at the American Law Institute's Annual Meeting, Tentative Draft No. 1 of the "Model Penal Code: Sentencing" project is up for approval. As detailed here, work on this project began back in 1999 because of the need to update the MPC's approach to sentencing "in light of the many changes in sentencing philosophy and practice that have taken place in the more than 40 years since the Code was first developed."
The project's progress has been disrupted somewhat by the Blakely revolution, and the project's direction has been questioned by ALI member Michael Marcus, circuit-court judge for Multnomah County, Oregon. As detailed in this statement, Judge Marcus proposes to make a number of motions critical of the draft in its present form. The project's Reporter, Professor Kevin Reitz has this response.
The debate over the substance of the new MPC sentencing provisions is very interesting, but it is not clear that it is very important. These days, there are no shortage of ideas for sounder sentencing reform; the real challenge, as California continues to demonstrate, is to be able to manage or alter the skewing influence of politics so that sounder sentencing reforms can be effectively exacted and implemented.
Capital punishment news and notes
Perhaps it is fitting to have a capital punishment post right after a report on today's horrific mass shooting in Virginia. In this post, however, I will only point to all the new and significant capital punishment developments covered well in new posts at:
Among all the important stories covered at these blogs, I hope my students (and others) will be sure to chack out this Cincinnati Enquirer article entitled "Fatal mistakes: When death sentences are overturned, it's usually because the accused killer's lawyer made them." It confirms my view that anyone interested in a well-functioning capital punishment system needs to put a lot more resources into capital defense services.
A campus tragedy "of monumental proportions"
A gunman opened fire in a dorm and classroom at Virginia Tech on Monday, killing 21 people in the deadliest campus shooting in U.S. history. The gunman was killed, but it was unclear if he was shot by police or took his own life.
"Today the university was struck with a tragedy that we consider of monumental proportions," said Virginia Tech president Charles Steger. "The university is shocked and indeed horrified."
The university reported shootings at opposite sides of the 2,600-acre campus, beginning at about 7:15 a.m. at West Ambler Johnston, a co-ed residence hall that houses 895 people, and continuing about two hours later at Norris Hall, an engineering building. Some but not all the dead were students. One student was killed in a dorm and the others were killed in the classroom, Virginia Tech Police Chief W.R. Flinchum.
The name of the gunman was not released. It was not known if he was a student.
Because I have spent most of my adult life on college campuses, this crime story impacts me emotionally more than most. My heart and thoughts go out to all the victims and everyone impacted by this tragic crime.
I mention this (still developing) story in part because these kinds of horrific, historic crimes have a way of impacting many criminal justice and sentencing issues. Whether the debate is gun control, campus security, mental illness or the death penalty, today's VT shooting will likely impact, both consciously and unconsciously, many people's perspectives.
UPDATE: The latest version of the AP story now has this telling sound-bite coming from the White House:
A White House spokesman said President Bush was horrified by the rampage and offered his prayers to the victims and the people of Virginia. "The president believes that there is a right for people to bear arms, but that all laws must be followed," spokeswoman Dana Perino said.
MORE: Sadly, the death toll keeps rising; the latest AP update now reports 32 dead along with the gunman. And the emerging details from what folks are calling the "College Columbine" ensure that this tragic event will be making headlines for a long time.
ON THE RIPPLES: As I expect once the number of deaths reached double digits, the Senate has postponed the AG Gonzales hearing planned for Tuesday in response to this tragedy.
Assessing the slow SCOTUS pace
Over at SCOTUSblog, Tom Goldstein has this new post entitled "The Pace of the Court's Decisionmaking." Here are excerpts from an interesting read:
One possible explanation for the falloff in output that I considered was that the Court is taking longer in its internal deliberations in an effort to produce greater unanimity, which is an expressed goal of the Chief Justice. That may indeed be occurring; until we see the opinions released later in the Term, there is no way to know for sure. But the numbers so far do not suggest a trend towards greater unanimity. At this point last Term, of the post-argument decisions, 17 were unanimous and 3 were 5-4; this Term, 6 are unanimous (far fewer) and 5 are 5-4 (more)....
From outside the building, there is no obvious cause for the Court's slowed decisionmaking. The best guess from my perspective is that there is a natural transition that comes with the change in the Court's composition, including its leadership. Before the addition of two new colleagues, the Justices (who had sat together for more than a decade) could write with great confidence in where the rest of the Court would come out and what it would find acceptable. Now there is naturally more hesitancy and perhaps there are more and longer exchanges between the chambers. The topic receives attention at all, perhaps, only because of the reduction in both cert. grants and written opinions in a single Term.
It bears stating that the Court's reduced output has had no adverse consequences. No decision is pending in an urgent matter. And the Supreme Court still issues rulings faster than almost any other court. No one doubts that the Justices will decide this Term's cases before the summer recess begins in July.
Though I think some defendants sitting in federal prison might disagree with the assertion that no decision is pending in an urgent matter, Goldstein's sober analysis helpful highlights that the Court's slower pace this Term is likely of little long-term consequence.
Some recent related SCOTUS posts:
More ugly details about the Georgia Thompson case
Adam Cohen in the New York Times today has this interesting commentary on the remarkable Georgia Thompson case (background here). The commentary, entitled "A Woman Wrongly Convicted and a U.S. Attorney Who Kept His Job," questions why US Attorney Steven Biskupic "turned a flimsy case into a campaign issue that nearly helped Republicans win a pivotal governor's race." Here's how the commentary ends:
Mr. Biskupic insists that he prosecuted Ms. Thompson only because he believed a crime was committed, and that he did not discuss the political implications of the case or the timing with anyone in the Justice Department or the White House. Congress has asked the Justice Department for all e-mail messages about the case to help resolve the matter. But even if there were no discussions, Mr. Biskupic may have known that his bosses in Washington expected him to use his position to help Republicans win elections, and then did what they wanted.
That would be ironic indeed. One of the biggest weaknesses in the case against Ms. Thompson was that to commit the crime she was charged with she had to have tried to gain personally from the contract, and there's no credible evidence that she did. So Mr. Biskupic made the creative argument that she gained by obtaining "political advantage for her superiors" and that in pleasing them she "enhanced job security for herself." Those motivations, of course, may well describe why Mr. Biskupic prosecuted Ms. Thompson.
Related post: The DOJ went crazy on Georgia
April 15, 2007
Can and should AG Gonzales be blamed for the uptick in violent crime?
This week will surely be consumed with the stories surrounding AG Alberto Gonzales' hearings before the Senate to defend the US Attorney firings. Today the fun starts with this Washington Post piece authored by Gonzales detailing what are sure to be themes in his testimony. And this one sentence toward the end of the Gonzales piece really got me to thinking:
During the past two years, we have made great strides in securing our country from terrorism, protecting our neighborhoods from gangs and drugs, shielding our children from predators and pedophiles, and protecting the public trust by prosecuting public corruption.
Specifically, I am wondering what evidence exists to support the assertion that "great strides" have been made in these areas over the last two years while AG Gonzales has been the nation's top prosecutor. Here's my own off-the-cuff assessment of the Gonzales record:
- Terrorism: We've not had a major terrorist attack in the US during the Gonzales term, though there seems to be evidence that we are not using homeland security dollars wisely and that privacy interests are not be respected.
- Protecting our neighborhoods: As this article details, it appears that there has been a significant increase in violent crime in 2005 and 2006. The article notes "heightened criticism of the federal government from many police chiefs and state law enforcement officials, who complain that the Bush administration has retreated from fighting traditional crime in favor of combating terrorism and protecting homeland security."
- Shielding our children: Gonzales helped DOJ create a national sex offender registry, which seems like an important and valuable develop. The DOJ has not shown much leadership on the important reentry initiatives that President Bush spoke grandly about in his 2004 State of the Union address.
- Protecting the public trust: I am not sure how to assess the public corruption issues, but the ugliest part of "purgegate" is how it must lead everyone to question whether public justice or just personal politics defines agendas for both Main Justice and for local prosecutors.
I would be eager to hear reader assessments of how much justice the Justice Department has been helping to produce under the control of AG Gonzales. Needless to say, I have been less than impressed with its work in sentencing area, including DOJ's mysterious eagerness to get death sentences while acceptance of de facto moratorium on federal executions (discussed here).
Examining votes of circuit judges in capital review
The Cincinnati Enquirer has this strong article examining the work of the Sixth Circuit in capital habeas cases entitled "The politics of life and death: An inmate's fate often hinges on luck of the draw." Here is how it begins:
Paul Gregory House pinned his hopes for survival on the U.S. 6th Circuit Court of Appeals in Cincinnati five years ago when he challenged his death sentence for rape and murder. He won.
Two years later, House's case returned to the 6th Circuit for what amounted to a new hearing on the same issues. The only change was the addition of four conservative judges to the court. He lost.
Same evidence. Same arguments. Different outcome. House learned the hard way that a federal death-penalty appeal can be a game of chance. If the judges assigned to a case were appointed by Democratic presidents, odds are good they will overturn a death sentence because of new evidence or mistakes made during the trial. If the judges were appointed by Republicans, the chances are slim.
That's especially true at the 6th Circuit, the powerful and deeply divided court that decides death penalty appeals from Ohio, Kentucky and Tennessee. An Enquirer analysis of the court's death-penalty decisions since 2000 shows that 6th Circuit judges consistently voted along partisan lines, just as they did in House's case:
Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time. Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time. Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.
"That is very stark," said Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., a nonprofit group that has been critical of capital punishment. "It makes blind justice look like part of the political system."
Dallas Morning News calls for death to die in Texas
Though I doubt this development will matter much politically, it still is noteworthy that today the Dallas Morning News has this editorial entitled "Death no more: It's time to end capital punishment." Emphasizing innocence concerns, here is a portion of the pitch:
And that uncomfortable truth [about an executed man's possible innocence] has led this editorial board to re-examine its century-old stance on the death penalty. This board has lost confidence that the state of Texas can guarantee that every inmate it executes is truly guilty of murder. We do not believe that any legal system devised by inherently flawed human beings can determine with moral certainty the guilt of every defendant convicted of murder.
That is why we believe the state of Texas should abandon the death penalty ― because we cannot reconcile the fact that it is both imperfect and irreversible.
Flaws in the capital criminal justice system have bothered troubled us for some time. We have editorialized in favor of clearer instructions to juries, better counsel for defendants, the overhaul of forensic labs and restrictions on the execution of certain classes of defendant. We have urged lawmakers to at least put in place a moratorium, as other states have, to closely examine the system. And yet, despite tightening judicial restrictions and growing concern, the exonerations keep coming, and the doubts keep piling up without any reaction from Austin.
From our vantage point in Dallas County, the possibility of tragic, fatal error in the death chamber appears undeniable. We have seen a parade of 13 men walk out of the prison system after years ― even decades ― of imprisonment for crimes they didn't commit. Though not death penalty cases, these examples ― including an exoneration just last week ― reveal how shaky investigative techniques and reliance on eyewitnesses can derail the lives of the innocent.
Accompanying this editorial are these additional items:
- This long article entitled "A death penalty slowdown, but not in Texas"
- This extended counter-point entitled "Opposing a death penalty repeal"
- This cool graphic with key death penalty statistics in Texas
- This basic chart showing how Texas dominates in total executions in the modern era
Massachusetts new Governor looking at sentencing reform
It is refreshing to see new officials bringing a healthy new perspective to sentencing issues. According to this Boston Globe article, that's what's happening in Massachusetts:
Governor Deval Patrick has launched a comprehensive review of the state's mandatory sentencing laws, an effort endorsed by the attorney general and the chief justice of the state trial courts to help stop the "revolving door" in the state's prison system. "People come out more dangerous than when they went in," Patrick told the Globe last week, explaining his administration's focus on fundamentally changing the philosophy of the criminal justice system.
Administration officials say that the mandatory minimum sentences, which eliminate judges' discretion in certain cases, drive up the cost of corrections and make it less likely that prisoners will participate in programs that could help them reenter society when they are released. Because those prisoners cannot get out early for good behavior, critics say, they have little incentive to participate in programs while in prison. And they are barred by law from enrolling in work release, rehabilitation, or furlough programs outside their institution, according to Mary Elizabeth Heffernan, an undersecretary for public safety. Once they wrap up their sentence, she added, they are sent back into society unsupervised.
The effort to revamp these laws is part of a larger administration policy aimed at preparing criminals for life after prison, including changes to a program that allows employers to review the criminal records of potential employees. Without a comprehensive plan to reintegrate the thousands of criminals who get out of Massachusetts prisons each year, Heffernan said, many will return to crime.
Administration statistics indicate that nearly half commit a crime during their first year after release. "The concept of the revolving door -- the governor and the secretary want to look at how we stop that," Heffernan said, referring to Public Safety Secretary Kevin Burke. "People are moving away from the breaking-rocks portion of the program. This administration is going to take a more thoughtful and appropriate look at what works and what doesn't."