May 1, 2007
Academic insights on the lethal injection scrummages
Lethal injection guru Professor Debby Denno now has up on SSRN her latest insights in this article entitled "The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty." Here is the abstract:
On February 20, 2006, Michael Morales was hours away from execution in California when two anesthesiologists declined to participate in his lethal injection procedure, thereby halting all state executions. The events brought to the surface the long-running schism between law and medicine, raising the question of whether any connection between the professions ever existed at all. History shows it never did. Decades of botched executions prove it.
This article examines how states ended up with such constitutionally vulnerable lethal injection procedures, suggesting that physician participation in executions, though looked upon with disdain, is more prevalent - and perhaps more necessary - than many would like to believe. The article also reports the results of this author's unique nationwide study of lethal injection protocols and medical participation. The study demonstrates that states have continued to produce grossly inadequate protocols that severely restrict sufficient understanding of how executions are performed and heighten the likelihood of unconstitutionality. The part emphasizes in particular the utter lack of medical or scientific testing of lethal injection despite the early and continuous involvement of doctors but ongoing detachment of medical societies. Lastly, the article discusses the legal developments that lead up to the current rush of lethal injection lawsuits as well as the strong and rapid reverberations that followed, particularly with respect to medical involvement.
This article concludes with two recommendations. First, much like what occurred in this country when the first state switched to electrocution, there should be a nationwide study of proper lethal injection protocols. An independent commission consisting of a diverse group of qualified individuals, including medical personnel, should conduct a thorough assessment of lethal injection, especially the extent of physician participation. Second, this article recommends that states take their execution procedures out of hiding. Such visibility would increase public scrutiny, thereby enhancing the likelihood of constitutional executions.
Around the blogosphere
Geography and sentencing differences in Ohio
Thanks to ODPI, I saw this interesting article in the Defiance Crescent-News, entitled "Felony sentencing philosophy reflects community values," which details how local geography impacts sentencing outcomes in different ways in capital and non-capital cases. Her is how it starts:
Do judges in Ohio's rural counties send certain offenders to prison at a higher rate than judges in larger counties? The answer -- according to three area common pleas court judges -- is yes. And they make no apologies for it.
"It's definitely true that convicted offenders in rural areas are sent to prison more than in the metropolitan areas, particularly in drug cases," said Joseph Schmenk of Defiance County. "I think most judges have a sentencing philosophy which reflects their county's values and mores," he added. "I don't think there's anything wrong with that."
Lots of SCOTUS action including a notable cert grant
While I was off-line most of the day, the Supreme Court has one of its most active days of the Term to close out April. Though there were a lot of interesting developments (including the notable posting of a video in the police-chase case), the only SCOTUS action with significant sentencing implications was its grant of certiorari (again) in Medellin v. Texas, which concerns federalism and executive power issues in the case of Jose Ernesto Medellin, a Mexican national convicted of murder and facing execution in Texas.
April 29, 2007
Recapping the big crack news
Anyone not keeping up with sentencing news late on Friday nights should be sure to start the new week noting the big crack sentencing developments coming from the US Sentencing Commission. Though this story will unfold in many dimensions in the weeks and months to come, I spent the weekend clacking ought a few posts on the USSC's new crack work:
- 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
Noticing the disappearing jury trial
Adam Liptak's "Sidebar" column in Monday's New York Times is entitled "Cases Keep Flowing in, but the Jury Pool Is Idle." As this snippet highlights, the piece notes the dwindling significance of jury trials in both civil and criminal cases:
Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions....
In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants. Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government.
The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.”
Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself.
In an article titled “Why Summary Judgment Is Unconstitutional,” published last month in the Virginia Law Review, Suja A. Thomas, a law professor at the University of Cincinnati, makes the perfectly plausible argument that the procedure violates the Seventh Amendment, which reserves the job of determining the facts in civil cases to juries. When judges decide summary judgment motions, Professor Thomas wrote, they intrude on that job....
In 2004, in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for “leaving justice entirely in the hands of professionals.” But that is not the theory of the Constitution, he continued, which enshrined “the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.”
NPR piece on victims' rights
Providing a fitting close to National Crime Victims' Rights Week, NPR's All Things Considered today ran this story entitled "Debating the Value of Victims' Rights Laws." Here is the set up:
The federal government and every state have laws granting victims of crime certain legal rights. Prosecutors and victims' rights group say these laws let victims' voices be heard. But defense lawyers argue they threaten the rights of defendants.
Related posts during NCVRW:
Petition for rehearing in US v. Lett
I noted here the Eleventh Circuit's decision earlier this month in US v. Lett in which a panel, relying on a suspect application of Rule 35(a), ordered the imposition of a 60-month sentence based essentially on a technicality. Along with Douglas Cole of Jones Day here in Columbus, I have taken on Pat's case and on Friday we filed a petition for rehearing. That petition, which seems especially timely in light of the US Sentencing Commission's new attack on the crack sentencing rules (basics here), can be downloaded below.
Some related posts on the Lett case:
- Technicality leads Eleventh Circuit to require 5-year mandatory for veteran
- NLJ coverage of Patrick Lett appeal
- Should prior military service reduce a sentence?
- My amicus effort to support our troops
Previewing the (quite unpredictable) new federal politics of crack sentencing
As I mentioned in this post, the usual federal politics of crime and punishment are all mixed up these days. Consequently, political reactions to the US Sentencing Commission's new crack work (basics here) are not easy to predict.
Just a few years ago, "tough on crime" federal politics produced the ugly Feeney Amendment in 2003, and few politicians would dare publicly support any measure to lower any federal sentences. But a whole lot has changed in only four years. President Bush has championed America as a "land of second chance," the Justice Department is no longer viewed as a paragon of virtue, both houses of Congress are now controlled by Democrats, and many leading Republicans (including presidential candidates Sam Brownback and Mike Huckabee) have vocally endorsed a kinder, gentler criminal justice system.
So what does all this mean for the US Sentencing Commission's new crack guidelines and the USSC's forthcoming report (which will urge further reforms)? To begin, the new politics in part it explans why the USSC is finally moving forward on these issues: the USSC insiders surely know that new crack guidelines and suggestions for other reforms will get a warmer reception now than perhaps at any other time in the last decade.
But exactly how warm will that reception be? Is there a real chance that Congress will reform the crack mandatory minimums int he months ahead? Might there even be a broader movement to eliminate all federal mandatory minimums? Or will "tough on crime" rhetoric take center stage again? Will any presidential candidates appreciate that the enfranchisement of felons in swing-state Florida could make these issues very important in the 2008 campaign? Only time will tell.
Some related posts on modern sentencing politics:
- Clinton and Obama, crime and punishment
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Politics and the war on drugs
- State of the Union and modern sentencing politics
- Is there a "new right" on criminal sentencing issues?
Money changes everything ... including jail
Cyndi Lauper fans have long known that Money Changes Everything (YouTube clip here). The New York Times today has this interesting article spotlighting that this is also true for jail experiences in California. The article is headlined "For $82 a Day, Booking a Cell in a 5-Star Jail," and here is a snippet:
Anyone convicted of a crime knows a debt to society often must be paid in jail. But a slice of Californians willing to supplement that debt with cash (no personal checks, please) are finding that the time can be almost bearable.
For offenders whose crimes are usually relatively minor (carjackers should not bother) and whose bank accounts remain lofty, a dozen or so city jails across the state offer pay-to-stay upgrades. Theirs are a clean, quiet, if not exactly recherché alternative to the standard county jails, where the walls are bars, the fellow inmates are hardened and privileges are few....
For roughly $75 to $127 a day, these convicts — who are known in the self-pay parlance as “clients” — get a small cell behind a regular door, distance of some amplitude from violent offenders and, in some cases, the right to bring an iPod or computer on which to compose a novel, or perhaps a song.
Many of the overnighters are granted work furlough, enabling them to do most of their time on the job, returning to the jail simply to go to bed (often following a strip search, which granted is not so five-star). The clients usually share a cell, but otherwise mix little with the ordinary nonpaying inmates, who tend to be people arrested and awaiting arraignment, or federal prisoners on trial or awaiting deportation and simply passing through.
At Concurring Opinions, this post suggests there ought to be a sliding-scale approach to all the financial aspects of criminal sanctions.