May 5, 2007
Dissecting the SCOTUS docket dilemma
Over at SCOTUSblog, there are great posts from Tom Goldstein and David Stras dissecting the Supreme Court's ever-shrinking docket. This comment from David's post sums up the central theme: "Tom's calculation of 71 signed opinions [for this current Term] is the lowest output for the Court since 1865. At a time of extremely large caseloads in the lower courts, recent figures on the Supreme Court's plenary docket are truly astonishing."
Meanwhile, Orin Kerr here notes that the new Chief Justice is suggesting that on-line resources account for fewer splits for SCOTUS to resolve. This argument sounds a bit kooky to me, especially since I can name more than a dozen splits on Apprendi-Blakely-Booker issues (some examples here and here and here) that the Supreme Court has refused to take up in the last few years.
Some related posts:
Tennessee execution disrupted by lethal injection scrummage
As this local story details, Tennessee's "plans to execute convicted cop killer Philip Workman on Wednesday stalled Friday when a federal judge agreed that the state's new execution guidelines could conflict with the constitutional ban on cruel and unusual punishment." Here's more:
In issuing a temporary restraining order, U.S. District Judge Todd J. Campbell said more time is needed to examine the defense claims that "the new execution protocol exposes (Workman) to a foreseeable and likely unnecessary risk" of pain and suffering prohibited by the U.S. Constitution. Those were the arguments earlier in the day when Kelley Henry, a federal public defender representing Workman, said the new execution procedure was worse than the flawed older method.
The state will "review the judge's opinion and then decide whether to appeal," said Sharon Curtis-Flair, spokeswoman for the Attorney General's Office. The state's options would be to ask the court to reconsider the order or to appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati. Barring those moves, the execution will be put off until at least May 14, when Campbell will hold an 8 a.m. hearing.
It will be interesting to see what the Sixth Circuit might do with this TRO if it gets appealed. The full Sixth Circuit has been mulling for a long time a petition for en banc rehearing from Ohio death row inmates attacking Ohio's lethal injection protocols. Now there are two states possibly putting these issues in front of a court that, as detailed here, is deeply divided on death penalty issues.
Should ecoterrorists be sentenced like terrorists?
This AP article discusses an interesting case in which the government is pushing for a terrorism sentencing enhancement to apply to trouble-making environmentalists. Here are some details:
A sentencing memorandum filed Friday by federal prosecutors says that arson and sabotage by 10 radical environmentalists convicted of setting fires across five Western states amounted to terrorism.
Six men and four women are awaiting sentencing before U.S. District Judge Ann Aiken beginning May 22. All were convicted for their roles in the five-state arson campaign that left timber company offices, dozens of SUVs, meat companies, federal installations and a ski resort in smoldering ruins. The government estimates damages at more than $40 million.
But Eugene attorney Kelly Beckley, who represents defendant Daniel McGowan, told The Oregonian newspaper in Portland that the defendants are neither "monster terrorists" nor "Osama bin Laden and friends."...
The motive of the saboteurs, who often channeled claims of responsibility to news media, was to punish corporations, the government and symbols of capitalism for harming the air, forests and animals for profit. Supporters say the arson was intended only to cause economic harm and nobody has been injured.
But federal law and sentencing guidelines define terrorism as crimes intended to influence or affect government conduct by such measures as coercion or retaliation. The government's sentencing memo devotes dozens of pages to describing how the 10 defendants meet that test, including "an overarching conspiracy with the purpose, among other things, 'to influence and affect the conduct of government' and others by means of violent acts, and 'to retaliate against the conduct of government' and others."
May 4, 2007
Great primer on federal compassionate release
Over at the Ninth Circuit Blog, Steve Sady has this terrific post discussing the history and recent developments surrounding the federal rules governing so-called compassionate release. (Basic information is available here from FAAM.) Steve full post is a must-read; he thoughtfully details the ins and outs of "a tragic story with a hopeful ending."
A new kind of Hilton accomodations for Paris
The Los Angeles Times has this coverage of the tough sentencing love experienced by Paris Hilton today. Here are highlights:
Celebrity heiress Paris Hilton today was sentenced to 45 days in jail for violating her probation in a reckless-driving case.
A Los Angeles judge handed down the sentence after prosecutors contended in a two-hour hearing that Hilton had violated her probation when she was ticketed in late February for driving a blue Bentley Continental GTC on Sunset Boulevard with a suspended license. Hilton, who said her aides did not tell her she could not drive, and her attorneys argued that it was a mistake and that her action did not warrant a jail sentence.
But Superior Court Judge Michael T. Sauer rejected Hilton's plea, ordering her to report to Los Angeles County Jail on June 5. If she doesn't appear, the jail the sentence would rise to 90 days.
I suspect that Paris might be able to find the money to get the upgraded accomodations offered in the California jail system.
Weekend reading from SSRN
These two relatively new papers on SSRN look like great weekend reading for criminal justice fans:
- The Supreme Court and the Politics of Death by Stephen Smith
- Punishing the Innocent by Josh Bowers
Ninth Circuit upholds appeal waiver
As recently discussed here, appeal waivers have been shown to undermine consistency in federal sentencing and thus might be viewed as invalid on public policy grounds in light of the Sentencing Reform Act's interest in more uniform sentencing outcomes. Nevertheless, even after Blakely and Booker, appeal waivers remain a central part of federal sentencing practice and circuit rarely hesitate to uphold their terms.
The latest example of these realities comes from the Ninth Circuit work today in US v. Bibler, No. 06-30375 (9th Cir. May 4, 2007) (available here). Bibler upholds an appeal waiver and concludes its discussion with this general statement of the Ninth Circuit's approach to such provisions in plea agreements:
If defendants intend to preserve a larger subset of their appellate rights, this must be bargained for in the plea agreement. For instance, defendants could reserve the right to appeal in case of plain error, or in case the district court issued a sentence that exceeded a particular period of time. But absent such a bargained-for term, or the applicability of an exception, a knowing and voluntary waiver of appellate rights will preclude substantive appellate review in this court.
April litigation still brings May executions
It was a cold dark winter for death penalty fans in 2007, with only one execution nationwide in any state other than Texas (details here from DPIC). But spring has brought new life to the death penalty, with an execution in Ohio last week and executions in the last 24 hours in Alabama and indiana (local AP stories here and here).
I would not yet say that the lethal injection litigation log-jam is breaking, but it does seem likely that two or three other states may also go forward with scheduled execution in the next few weeks (see DPIC list here). And, ast more executions that go forward without ugly incident, it becomes more likely that jurisdictions with de facto moratoriums feel more comfortable returning to their old lethal injection ways.
Still, I am sticking with my prediction that 2007 will have an notably low number of executions in recent US history, in part because of all the lethal injection scrummages.
Interesting motion for recusal at sentencing
This local story out of North Carolina spotlights an interesting federal case (with political overtones) in which the defendant is seeking the recusal of the judge as sentencing approaches. Here are the basic details:
The federal judge scheduled to sentence Jim Black in two weeks has a potential conflict of interest because he once targeted Black and others in a politically charged lawsuit, the former House speaker contends. In court papers filed Thursday, Black's attorney Ken Bell wrote that "the obvious appearance of impropriety cannot be overcome" and that the judge, James Dever III of U.S. District Court, should step aside.
Bell cited a lawsuit filed five years ago by the N.C. Republican Party. The lawsuit challenged the drawing of state legislative districts and named Black, a Democrat, as a defendant. Dever, then in private practice, was one of the GOP's lawyers. "If Judge Dever imposes judgment on Black," Bell wrote, "it will appear to the public that Judge Dever will indeed have had the last word on the redistricting battle engaged in during his private practice."
The surprise request for Dever to remove himself from Black's public corruption case could delay Black's sentencing, scheduled for May 18. It's the latest twist in the wide-ranging, two-year investigation by state and federal authorities into Black's campaign finances. It could also revive a bitterly partisan dispute over the drawing of legislative districts.
Dever is expected to rule on the request, and his decision could be appealed. Such requests are rare in federal court, so its outcome is difficult to predict.
May 3, 2007
More great NJ drug sentencing work
As detailed in this New York Times article, the New Jersey Commission to Review Criminal Sentencing is about to release some important reports on drug sentencing in the Garden State. Here are excerpts from the Times article:
A state commission plans to recommend on Friday that New Jersey's therapeutic drug courts, which allow offenders to avoid jail by getting treatment, be expanded to include people with more than two previous offenses. A report by the New Jersey Commission to Review Criminal Sentencing said that 68 percent of offenders remained in their treatment programs in state drug court cases since 2002.
The report also calls on the State Legislature to give drug court judges more discretion in dealing with those who relapse, and for the courts to provide incentives and rewards like shortened probation and decreased court fees. "Our prisons are burgeoning with a population that cannot be helped or prevented from reoffending if substance abuse is not addressed in a comprehensive, community-based manner," the report said....
In a separate report, also to be released on Friday, the 15-member commission on criminal sentencing will recommend that the boundaries around schools, where there are mandatory penalties in New Jersey on convictions for drug possession or sales, be reduced to 200 feet from 1,000 feet.
UPDATE: An official press release and links to the new reports can now be found here.
Challenge to 3-strikes sentence strikes out
Among lots of criminal justice coverage at How Appealing is this post noting the split (non-precedential) Ninth Circuit ruling rejecting a mentally ill man's challnege to his three-strikes sentence in Joshua v. Adams, 05-55437 (9th Cir. May 2, 2007) (involving a short majority opinion and a long dissent by Judge Ferguson). The San Francisco Chronicle covers the case effectively in this article, providing these highlights:
A federal appeals court upheld a mentally ill man's three-strikes sentence of 25 years to life Wednesday for shoplifting two bottles of liquor from a Southern California market, a sentence that a dissenting judge called "barbarous.''...
Joshua, diagnosed as a paranoid schizophrenic, had been convicted of robbery five times since 1974 and had been in and out of prisons and mental hospitals in the decades before his shoplifting conviction, said his attorney, Jerry Sies. He argued that a three-strikes sentence in such a case would violate the constitutional ban on cruel and unusual punishment....
Sies, Joshua's lawyer, said he would ask the full appeals court for a rehearing. He declined to suggest an alternative sentence but said it should be much less than 25 years to life. "His ability to control his impulses was severely damaged by virtue of his mental illness,'' Sies said. "His recidivism is not a conscious choice.''
Because of Judge Ferguson's strong dissent (and because one judge in the majority was sitting by designation), this case might have a real shot at en banc review. And, with a case like Panetti now before the Supreme Court, the mental illness angle in this case also is worth watching for further developments.
Nebraska electrocution put on hold
As detailed in this AP article, the "Nebraska Supreme Court on Wednesday stayed an execution over concerns about a new electrocution protocol in the only state that still relies solely on the electric chair for capital punishment." The Nebraska court was split 4-3, and the court's opinion is available at this link.
Some recent related posts:
International DP perspective from The Economist
A thoughtful student pointed me to this recent article from the The Economist, which provides a perspective on recent death penalty developments worldwide. Here are some highlights:
According to Amnesty International's latest report, "at least" (precise figures are hard to get) 1,591 executions were carried out worldwide last year, well down on the previous year, but nearly 40% higher than in 2003. Yet Piers Bannister, the lobby group's death-penalty specialist, believes that the world is gradually inching its way towards abolition.
That may sound wildly optimistic. But he says the important point is not the number of executions, which fluctuates from year to year, but the number of countries that carry out executions. This total has fallen steadily from 40 a decade ago to just 25 last year. Since 1985, 55 countries have ended the death penalty or, having already limited it to “extraordinary” crimes (such as those committed in wartime), have now banned it outright. During the same period, only four states have reintroduced the death penalty. Two of them, Nepal and the Philippines, have since abolished it again; in the other two, the Gambia and Papua New Guinea, there have been no executions.
Big swathes of the world have become execution-free: 89 countries have abolished the death penalty for all crimes, another ten for all but exceptional crimes, and a further 30 are abolitionist in practice, having executed nobody for at least a decade. Louise Arbour, the UN High Commissioner for Human Rights, has called for the complete abolition of the death penalty.
In Europe, where abolition of capital punishment is a condition of membership of both the European Union and the 46-nation Council of Europe (of which Russia is a member), Belarus is the only country that still uses it. In Africa, only four countries carried out the death penalty last year. And in the Americas, the United States is the only country to have executed anybody since 2003. Only Asia and the Middle East seem largely untouched by the global movement away from the death penalty.
May 2, 2007
Eighth Circuit back to its old ways
Continuing a long-standing pattern, the Eighth Circuit today again affirmed some above-guidelines sentences and vacated another below-guideline sentence (all of which shows up on this official opinion page). The panel reversing the below-guideline sentence in US v. Miller, No. 06-2875 (8th Cir. May 2, 2007) (available here), included retired Justice Sandra Da yO'Connor (though Judge Smith wrote the opinion). Basic details about the Miller case are available from this local news article.
Around the blogosphere
There are lots and lots of interesting posts for sentencing fans these days at Crime and Consequences and at Ohio Death Penalty Information and at Sex Crimes. And Bernard Harcourt, still guest-blogging at The Volokh Conspiracy, has this noteworthy post examining the implications of his recent work by asking "Institutionalization vs. Imprisonment: Are There Massive Implications for Existing Research?"
Scarlet letter license plates for sex offenders
USA Today has this article about a new sex offender sanction growing in popularity. The piece is entitled "Sex offenders may get special tags; Eye-catching license plates proposed by lawmakers in Wisconsin, Ohio, Alabama." Here is how it starts:
Lawmakers in three states are pushing bills to require convicted sex offenders to display special license plates on their cars. Proponents in Wisconsin, Ohio and Alabama say the sex offender plates would be another tool to keep the public safe. Critics say the plates would lead to a false sense of security and unintended consequences.
"For too long child sex predators have been watching our children," said state Rep. Joel Kleefisch, a Wisconsin Republican. "It's time we have an opportunity to watch them back." Wisconsin's bill, authored by Kleefisch, would require people convicted of the most serious assaults involving children to use a chartreuse-green plate. The license plate in Ohio would be fluorescent green, and the Alabama bill would leave it up to the state Department of Revenue to design the plate.
An Assembly committee approved the Wisconsin bill 8-3 last week. Hearings have been held in Ohio, where Gov. Ted Strickland, a Democrat, has said he would sign the bill if it makes it to his desk. The Alabama bill was only recently introduced.
Some lethal injection headline highlights
Lots of headlines nationwide about a variety of lethal injection litigation development. All of these stories come from the AP:
In addition, columnist Deborah Saunders has this interesting new commentary entitled "Bad Medicine on Lethal Injection" that begins this way: "Death penalty opponents will say anything, no matter how unbelievable, to stop an execution during the appeals process. There is no claim too bogus for some lawyers and activists -- and apparently no claim too bogus for some medical journals."
Some recent related posts:
Prison overcrowding problems for Kiwis
Highlighting that the US is not the country with prison overcrowding problems, this article from New Zealand details some southern hemisphere prison woes. Here are highlights:
Overflowing prisons set to explode New Zealand's prison system is five months from a potentially disastrous overcrowding problem, says National's Justice & Corrections spokesman, Simon Power. "The Government's failure to pass legislation early enough to help ease pressure on our already bulging prisons is to blame for this very concerning possibility."
He is releasing Justice Ministry documents from last year, which show that proposed changes to home detention, community-based sentences, sentencing guidelines and parole reforms which are contained in the Criminal Justice Reform Bill (formerly the Justice Remedial Matters Amendment Bill) are behind schedule.
May 1, 2007
USSC sends amendments to Congress
Today the US Sentencing Commission sent to Congress a set of guideline amendments, which were previewed in this press release and all of which can be found in (reader-unfriendly form) at this link. FAMM has this effective summary of the highlight items: "an amendment to improve crack cocaine sentences and a policy statement to give sentencing courts guidance on granting release to prisoners for extraordinary and compelling circumstances (sometimes referred to as compassionate release)." BTL also has this quick coverage of the crack sentencing issues, which I have covered extensively in these recent posts:
- USSC provides (yummy?) half-a-loaf crack amendment
- Why the USSC's new crack work is soooooo significant
- How will the new USSC crack work impact present (and past) cases?
- Previewing the (quite unpredictable) new federal politics of crack sentencing
A juve break from the sex offender panic
This local article from Arizona reports on a new piece of legislation designed to soften the impact of severe sex offender laws when applied to juvenile offenders. Here are excerpts:
Punishment will be softened for teens who commit certain sex crimes under a bill that awaits Gov. Janet Napolitano's signature. After months of debate, with tearful testimony from families and hallway negotiations, a package of bills was combined into one measure that earned unanimous approval in both the House and Senate.
SB1628 requires that juveniles prosecuted as adults receive treatment with similar offenders and allows teens prosecuted as adults to have their cases sent back to juvenile court and their lifetime probation lifted. "I think this is going to save a lot of kids' lives," said Sen. Karen Johnson, R-Mesa, who sponsored the bills and headed an interim committee on the issue....
Johnson and other lawmakers had been hearing from constituents for years who said their children were required to register as sex offenders and serve lifetime probation for fondling a family member or having sex with a younger girlfriend. While the families didn't condone the behavior, they argued that the boys, some as young as 13 or 14, shouldn;t be prosecuted as if they were 40-year-old child predators. They objected to the teens being placed in treatment with adults. And they wanted them to have a better chance at getting out from under the harsh terms of lifetime probation.
The families were joined by judges, probation officers and others in the juvenile and adult court systems, as well as an unlikely coalition of conservative Republicans and Democrats. They were opposed, however, by county prosecutors who argued in committee hearings that the teens they prosecute are predatory and deviant, not just succumbing to hormones or innocent curiosity.