April 25, 2007
SCOTUS death penalty rulings
SCOTUSblog reports here that the Supreme Court today has handed down decisions in Smith v. Texas and Abdul-Kabir/Brewer v. Quarterman, both death penalty cases. Here is an early report from Lyle Denniston:
In one of two rulings Wednesday on death penalty procedures in Texas, the Supreme Court ruled that Texas' highest state court wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing. The 5-4 decision came in the case of Smith v. Texas (05-11304), a case that had been before the Court once before.. Justice Anthony M. Kennedy wrote for the majority.
The Court reversed the Texas Court of Criminal Appeals' ruling that reinstated the death sentence of a Dallas man, LaRoyce Smith; the state court had applied a new harmless error standard under state law. That was a misinterpretation of what federal law required, the Court concluded.
In the consolidated cases of Abdul-Kabir v. Quarterman (05-11284) and Brewer v. Quarterman (05-11287), the Court in another 5-4 decision found that the Fifth Circuit Court wrongly applied prior rulings on instructions to assure that capital juries give full consideration to any factor that might suggest a death sentence should not be imposed.
I now have to jump in the car to drive to Cincinnati for a Sixth Circuit argument, so I won't be able to comment on these ruling until late tonight. I am sure SCOTUSblog and Capital Defense Weekly and others will have comments (including about Justice Kennedy's continued status as a swinger in high-profile cases). Perhaps readers can also use the comments here to fill my short-term absence.
Victims' statement against the death penalty
Providing another perspective during National Crime Victims' Rights Week is this item at DPIC, which reprints a statement The statement issued by the leaders of Murder Victims' Families for Human Rights, Murder Victims' Families for Reconciliation, and Journey of Hope, calling for an end to the death penalty Here is a portion of the statement:
April 22 – 28, 2007 is National Crime Victims' Rights Week. The theme for this year is "Victims' Rights: Every Victim, Every Time." As victims, and survivors, we strongly support efforts to ensure that the needs of victims' don't fall through the cracks or fall prey to politics.
The death penalty does not serve victims' families. It draws resources away from needed support programs, law enforcement and crime prevention. And the trials and appeals endlessly re-open wounds as they are beginning to heal, and it only creates more families who lose loved ones to killing.
Related posts during NCVRW:
Big FSG seminar now just a month away
As I have mentioned before, the Annual National Seminar on the Federal Sentencing Guidelines, co-sponsored by the US Sentencing Commission and the Federal Bar Association, is an event not to be missed. The sixteenth version this year takes place in Salt Lake City, Utah on May 23-25. All the particulars of this exciting event are set out in this event brochure, which highlights that the Seminar presents an opportunity to commune with the entire sentencing commission, many staff, key judges, prosecutors, professors and others coping with post-Booker realities.
I'll be there moderating a great panel on "Guideline Departures & Variances Outside the Range under § 3553(a)." I am hoping, though doubtful, that Claiborne and Rita will be decided by event. Even if they aren't, I am sure there will be plenty to talk about.
Giving voice to victims during NCVRW
Because this is National Crime Victims' Rights Week (discussed here and here), it seems fitting to spotlight a few news articles reporting on victims expressing anguish about the harms they suffered and criminal justice outcomes:
- Here from the Baltimore Sun, "Accident victims voice their misery at sentencing"
- Here from the Grand Rapids Press, "Drunken-driving deal draws mother's ire"
More on Fifth Circuit reversal in human smuggling case
As noted in this prior post, last week the Fifth Circuit reversed a below-guideline sentence in US v. Sanchez, No. 06-20193(5th Cir. Apr. 17, 2007) (available here), a high-profile alien smuggling case. Today the Houston Chronicle has this extended story about the ruling. Here is a snippet:
In its latest ruling last week, a three-judge panel of the appeals court decided that Gonzalez Sanchez's sentence was calculated incorrectly. Remanding the case to Gilmore for resentencing, the judges said federal guidelines call for a prison term of 57 to 71 months.
That means that Gonzalez Sanchez, 46, could spend at least two more years behind bars. For now, she remains on three years' supervised release, her attorney, Wendell Odom Jr., said Tuesday.
After the U.S. Supreme Court ruled in 2005 that the guidelines are not mandatory, each circuit has taken its own approach on judges' options. The high court also has some cases pending on judicial discretion in federal sentencing.
Odom said the 5th Circuit takes a conservative view of the issue. "It is not a great surprise to me to see the opinion come down the way it did," said Odom, who is preparing an appeal of Gonzalez Sanchez's case to the Supreme Court.
April 24, 2007
The benefits of a (criminal history) vacation
It was hard for me to keep one of my favorite songs from the 1980s out of my head when I read a particular recent federal district court sentencing decision kindly sent my way by a reader. The decision is US v. Marsh, No. 05-40025 (D. Mass Apr. 16, 2007) (available here), and the "principal issues at sentencing arise out of the fact that defendant Matthew Marsh successfully moved after his plea of guilty to vacate two state convictions that would have otherwise qualified him as a career offender." Here is the background that puts a new twist on the impact of criminal history (and its erasure):
Defendant pleaded guilty in this case in October 2006. He then moved in state court to vacate two prior convictions for resisting arrest. Those convictions would have qualified as "crimes of violence" under the career offender guidelines, U.S.S.G. § 4B1.1, and would have dramatically raised his guideline sentencing range, from 120 months to 262 to 327 months.
The claimed basis for the motions to vacate the convictions was that defendant was not mentally competent at the time of the pleas of guilty in 2000 and 2004. Defendant contends (and the government does not dispute) that he suffers from bipolar disorder and post-traumatic stress disorder, and that his condition was not being treated at the time with medication. Defendant also forthrightly, if inaccurately, advised the state court that if his motions to vacate were not granted, he would be facing "30 to life" in federal court. The state court granted the motions nine days before the scheduled sentencing.
Some related posts:
Colorado Supreme Court capitalizes Blakely
A thoughtful reader kindly sent me news of a Colorado Supreme Court ruling which examines Blakely in the context of the death penalty and guilty pleas. Here are the basics from the decision in Colorado v. Montour, No. 02SA365 (Colo. Apr. 23, 2007) (available here):
In this appeal, we exercise our jurisdiction to conduct an independent review of the death sentence of Edward Montour, Jr. We hold that Colorado's death penalty statute cannot deprive the defendant of his Sixth Amendment jury trial right on the facts essential to the death penalty eligibility determination when that defendant pleads guilty. Here, Montour pled guilty and pursuant to the Colorado death penalty statute, his guilty plea automatically waived his right to have a jury determine his sentence. We hold that the statute unconstitutionally links the waiver of a defendant's jury sentencing right to his guilty plea. Hence, we affirm Montour's guilty plea and apply the severability clause in the death penalty statute to excise the unconstitutional language in the death penalty statute. We reverse Montour's death sentence and remand this case to the district court. On remand, the district court must set a new sentencing hearing before a newly impaneled jury unless Montour waives his right to jury sentencing. To be valid, Montour's waiver of his Sixth Amendment right must be knowing, voluntary, and intelligent, and not linked to his guilty plea.
In the course of its rulings in Montour, the Colorado Supreme Court arguably extends Blakely in various ways. For this reason and others, it will be interesting to see if the state might try to appeal Montour to the US Supreme Court.
UPDATE: At Volokh, Orin Kerr has this effective head-scratching post that exposes some of the questionable aspects of the Montour ruling.
Ohio proceeds with lethal injection execution
As well covered at ODPI, James Filiaggi lost his last-minute attempts to challenge the Ohio's lethal injection method and his execution went forward this morning. The Sixth Circuit this morning issued this two-page opinion explaining its decision to deny Filiaggi a stay.
Texas has another execution scheduled for this week. In early may, Indiana, Nebraska and Tennessee all have scheduled executions, so I suspect we will be seeing more lethal injection litigation before too long.
A new study assails lethal injection protocols
Just as Ohio and some other states appear poised to finally carry out some scheduled executions, a new study appearing in a medical journal reiterates concerns about lethal injection protocols. Articles from the AP and from the Washington Post tell the story; here are highlights from the AP:
The drugs used to execute prisoners in the United States sometimes fail to work as planned, causing slow and painful deaths that probably violate constitutional bans on cruel and unusual punishment, a new medical review of dozens of executions concludes.
Even when administered properly, the three-drug lethal injection method appears to have caused some inmates to suffocate while they were conscious and unable to move, instead of having their hearts stopped while they were sedated, scientists said in a report published Monday by the online journal PLoS Medicine.
No scientific groups have ever validated that lethal injection is humane, the authors write. Medical ethics bar doctors and other health professionals from taking part in executions....
The journal's editors call for abolishing the death penalty, writing: "There is no humane way of forcibly killing someone."...
The new review was written by many of the same authors who touched off controversy when they published a 2005 report suggesting that many inmates were conscious and possibly suffering when the last of the drugs was given. That report was criticized for its methodology, which relied on blood samples taken from prisoners hours after executions. The new paper looked at the executions of 40 prisoners in North Carolina since 1984 and about a dozen in California, plus incomplete information from Florida and Virginia....
Death penalty proponents complained the report's conclusions were based on scant scientific evidence. "It's more like political science than medical science," said Mike Rushford, president of Criminal Justice Legal Foundation in Sacramento.... Dr. Mark Heath, an anesthesiologist at Columbia University Medical Center who has studied lethal injection cases, took issue with some of the paper's conclusions, but said it generally showed that concerns about lethal injection in its current form "are well-justified."
The full study appearing online journal PLoS Medicine can be accessed at this link, and the journal's editorial here asserts that "new data in PLoS Medicine will further strengthen the constitutional case for the abandonment of execution in the US." Not surprisingly, Crime & Consequences and TalkLeft have different reactions to this new study.
UPDATE: Orin Kerr has this thoughtful post at Volokh, which astutely explains why "it seems that there is much less to this study than the media coverage would have you believe."
A telling accounting of how criminal justice resources are allocated
As hinted in this post, I generally believe that the true interests/rights of crime victims ought to be given more formal emphasis in the operation of criminal justice systems. And, in reviewing some fascinating statistics the Justice Department has collected about crime victimization, I discovered these telling economic data that spotlight how few criminal justice resources are now devoted to victim compensation:
- In 2003, the United States (at federal, state, and local levels) spent a record $185 billion for police protection, corrections, and judicial and legal activities. Since 1982, expenditures for operating the criminal justice system increased 418 percent, not accounting for inflation.
- Victims of violent crime and their families received compensation benefits totaling $427 million in 2004.
- In 2004, medical expenses constituted 53 percent of all victim compensation payments; economic support for lost wages for injured victims and for lost support in homicides made up 19 percent of the total; 11 percent of total payments were for funeral bills; and 8 percent went toward mental health counseling for crime victims.
These numbers provide only an incomplete snapshot of how criminal justice resources are allocated. Still, they suggest that nearly $500 is spent on police protection, corrections, and judicial and legal activities for every $1 spent on helping to compensate the victims of violent crime. And most of the compensation money simply covers (surely inadequately) basic economic losses.
April 23, 2007
Will Ohio have its planned execution?
As always, ODPI is keeping up with the latest twists and turns concerning Ohio's death penalty. Today that means tracking decisions from the Ohio Supreme Court and the federal district court denying stays to James Filliagi, who is making a last-ditch attempt prevent his scheduled execution tomorrow. The best read today comes from US District Court Judge Greg Frost's decision (available here) denying Filliagi's effort to join the Cooey suit seeking an examination of Ohio's lethal-injection protocol. Here are my favorite sentences from that opinion:
To be certain, today's decision no doubt provides fodder for the argument that the law often follows form over substance. But this argument rings hollow given that this litigation has so often been about, or at least should have been about at every level of review, the application of the law in a consistent manner free from subjectivity or whim and guided only by reasoned adherence to stated objective rules.
We will likely get decisions from the Sixth Circuit and SCOTUS before tomorrow's scheduled 10am execution. Right now I am inclined to predict that Ohio will soon be joining Texas and Oklahoma as the only states to execute anyone in 2007.
UPDATE: ODPI now reports here that the Sixth Circuit has refused Filliagi's request for a stay.
Some reasons why victims' rights can and should be progressive
I was disappointed to see that Barry Boss in this Washington Post commentary and Jeralyn in this post at TalkLeft have celebrated the start of National Crime Victims' Rights Week (details here) by reinforcing the old trope that there is a zero-sum game between the interests/rights of crime victims and the interests/rights of criminal defendants.
The reality of victims' rights and interests are much too varied and nuanced to assume that giving more rights to victims will be detrimental to the interests of criminal defendants. In fact, there are lots of reasons why those generally concerned about harsh and oppressive criminal justice systems (and especially harsh and oppressive sentencing systems) ought to embrace and extol victims' rights Let me explain with some particulars:
1. Some minor crimes that can often lead to unduly long sentences do not have obvious victims (e.g., minor drug, gun, and obscenity possession charges, underage consensual sex). Greater emphasis on the rights and interests of real crime victims could and likely would lead to less emphasis on unduly harsh prison terms for minor crimes without obvious victims (like Morton Berger's 200 years for downloading child porn in Arizona or Genarlow Wilson's 10 years for consensual oral sex in Georgia).
2. Many crime victims seek punishments and remedies that are much less harsh than sought by the state. Victims of economic crimes often would rather have defendants out working and paying restitution rather than rotting in a prison cell. Also, as noted in stories discussed here and here, some crime victims will actually make formal and public pleas for leniency (though prosecutors will rarely give voice to these victims).
3. Victims' interests seem to be at the very center of the restorative justice movement, which seem to me to be a pretty progressive (though perhaps unduly optimistic) effort to reform modern criminal justice realities.
Some recent related posts:
- Another example of victims seeking leniency
- Extensive FSR coverage of victims at sentencing and the CVRA
- How to consider victims opposing killer's execution?
- Shaming, remorse, apologies and victims
- New study on victim impact testimony
Interesting Eighth Circuit en banc ruling on enforcing a plea agreement
The Eighth Circuit today has produced an interesting set of opinions concerning when a defendant can enforce a plea agreement. The en banc opinions in US v. Norris, No. 04-2074 (8th Cir. Apr. 23, 2007) (available here) say a lot about the often under-explored underbelly of plea agreements. Here is the conclusion of the plurality opinion of the court:
We hold that a defendant generally has no right to specific performance of a plea agreement where the Government withdraws from the agreement before the defendant's associated guilty plea is accepted by the district court. We recognize exceptions to the general rule to the extent that the plea agreement specifically contemplates pre-plea performance or if the defendant shows that the Government has taken unfair advantage of its withdrawal from the agreement. Because Norris meets neither exception, we vacate the district court's order granting Norris's motion for specific performance of the plea agreement and dismissing the superseding indictment. We remand for further proceedings consistent with this judgment.
ABA releases Tennessee capital moratorium report
Thanks to ODPI and this local news article, I see that the American Bar Association's Death Penalty Moratorium Implementation Project has released this massive report on Tennessee's capital punishment system. The report runs 400+ pages its 39-page executive summary can be accessed at this link. According to the newspaper account, the ABA report stresses that there are "[t]oo many blacks on death row, bad lawyers representing the accused, and good ones faltering under the demands of heavy caseloads" in Tennessee.
Some prior posts (and concerns) about the ABA's moratorium project:
- ABA produces mega-report assailing Florida's death penalty
- ABA calls for death penalty moratorium in Alabama
- ABA report calls for Georgia DP moratorium
- Two (long) reports on problems administering the death penalty
Like comedy, sentencing is all about timing
This week's installment of Adam Liptak's "Sidebar" column in the New York Times spotlights differing sentencing outcomes for certain enemies. Here are excerpts:
At the time, a year after the Sept. 11 attacks, it looked like John Walker Lindh had made a pretty good deal.
Mr. Lindh, a 21-year-old from Marin County, Calif., who had served as a Taliban soldier in Afghanistan, faced charges that could have sent him to prison for the rest of his life. In a plea deal, though, the government dropped its most serious accusations ... [and he] was sentenced to 20 years....
Times change. Passions cool. Other cases offer telling contrasts. And Mr. Lindh now has a powerful and understandable case of buyer's remorse. "He was a victim of a hysterical atmosphere post-9/11," Frank R. Lindh said about his son....
[T]wo men accused of quite similar conduct [Yaser Hamdi and David Hicks] managed to make much better deals. They had the good fortune, it turned out, to be held by the military rather than by civilian authorities, and they probably also benefited from the fact that the memory of the Sept. 11 attacks had receded a little by the time they sat down to negotiate....
April 22, 2007
Good guidelines in the works from the USSC
I am pleased to be able to report some positive sentencing developments in the works at the US Sentencing Commission. Though you cannot tell from the USSC's official webpage, FAMM has the news here about the USSC's new "Compassionate release" guideline amendment. Here is a portion of the FAMM report:
On April 18, the United States Sentencing Commission voted unanimously to approve a new policy statement to instruct judges considering whether to reduce a prisoner's sentence for extraordinary and compelling reasons, also sometimes know as "compassionate release" motions. This proposed guideline amendment would substantially expand the grounds for reduction of sentence under 18 USC § 3582(c)(1)(A)(i).
The proposed guideline amendment is a victory for advocates. For a number of years, FAMM and other organizations have urged the United States Sentencing Commission to adopt a policy statement on “compassionate release” motions that recognizes conditions other than the disabling illness or imminent death of the prisoner. FAMM, the National Association of Criminal Defense Lawyers (NACDL), the Practitioner's Advisory Group, the Federal Public Defenders and other organizations most recently endorsed the American Bar Association's recommendations, which the U.S. Sentencing Commission also recognized when announcing the proposed amendment.
A helpful reader has also told me that the USSC has some significant tweaks to the criminal history guidelines geared up for this amendment cycle.
All of these positive USSC developments should be official by the end of this month, because the USSC has to submit proposed guideline amendments to Congress by May 1. Back when the guidelines were mandatory, new guideline amendments did not become effective until November 1 after Congress has 180 days to consider whether to reject the amendments via legislation. After Booker, advocates might sensibly urge sentencing judges to follow the USSC's latest amendment advice even while they are officially pending before Congress.