June 2, 2007
Can the Claiborne case survive Mario Claiborne's demise?
As detailed in this post from Lyle Denniston at SCOTUSblog, an effort is underway to help the Supreme Court resolve the issues raised by the Claiborne case even though Mario Claiborne died last week (details here). Here are the basics from Lyle's post:
A public defender in St. Louis has urged the Supreme Court to find a way to decide in the current Term a significant issue about federal criminal sentencing law that was at stake in a case involving an individual who died last week. The case is Claiborne v. U.S. (docket 06-5618)...
Michael Dwyer, assistant federal public defender in the Eastern District of Missouri, on Friday filed a motion asking the Court either to go ahead and decide the Claiborne case as presented, or to grant expedited review of another case from Dwyer's office involving the same Guidelines question. The alternative case suggested is Beal v. U.S. (docket 06-8498) -- like Claiborne, from the Eighth Circuit Court. The Supreme Court considered the Beal case at a Conference in February, but took no action on it, apparently intending to hold it until after it had decided Claiborne....
Dwyer contended in his motion that "the close similarity of the facts and decisions of the districts courts and appellate panels in Claiborne and Beal makes the latter case an efficient and effective vehicle to resolve the urgent issues presented in Claiborne. Because of his representation of Claiborne, the Federal Public Defender for the Eastern District of Missouri could expeditiously prepare Beal for briefing and argument."
The best sentencing defense money can buy...?
I have now had the opportunity to read closely the sentencing filings of Lewis "Scooter" Libby's defense team (which can be accessed here and here), and I was generally impressed. Though more could and probably should have been made of certain 3353(a) sentencing factors (see below), the filings built a solid case for sentencing Libby below the guideline range of 15-21 months recommended by the probation office's presentence report. (Recall that, as discussed here, Fitzgerald's prosecution team runs the guideline numbers differently, arriving at a guideline sentencing range of 30-37 months.)
Still, were I in Scooter's shoes, I would be wondering about a few matters as my June 5 sentencing swiftly approaches:
1. Why didn't the defense seek to follow Judge Posner's recent sentencing advice by providing "credible empirical evidence" for a probation sentence in order to avoid being at "the mercy of the instincts and intuitions of the sentencing judge"?
2. Why did AG Gonzales decide to again advocate a mandatory minimum guideline system just days before one of the highest-profile post-Booker sentencings in many months?
3. In light of the significant parallels (discussed here and here) between Libby's situation and the case against Victor Rita, whose sentence is still pending before the Supreme Court, wouldn't the defense team have been wise to seek a delay in the sentencing in the hope that SCOTUS might declare a within-guideline sentence for Rita unreasonable?
Some recent related Libby sentencing posts:
- Exactly what sentence should/will Scooter Libby get?
- Government pushing for around 3 years for Libby
- A thoughtful take on the Libby pardon politics
- Will Libby get bail pending appeal from the courts? Can he get it from the President?
- Libby sentencing archive
New series on women in CJ system
The Sentencing Project is pleased to announce the publication of a series of briefing sheets on Women in the Criminal Justice System. The series documents the gender implications of changes that have occurred over the last 20 years within the criminal justice system, including expansive law enforcement, stiffer drug sentencing laws and re-entry barriers. The briefing sheets delve into family, socioeconomic and physical and mental health issues that women — and their families — face as a result of being incarcerated.
Women in the Criminal Justice System contains five sections: Overview; Involvement in Crime; Mothers in Prison; Inadequacies in Prison Services; and Barriers to Reentering the Community.
Women in the Criminal Justice System notes that since 1985 the number of women in prison has increased at almost double the rate of incarcerated men — 404 percent vs. 209 percent. Reasons for the increasing rate for women are directly related to the 'war on drugs,' economic disadvantage, and the criminal justice system's failure to carefully consider women's involvement in crimes. The analysis also reports that 30 percent of all females incarcerated are black and 16 percent are Hispanic.
The full series of briefing sheets, which runs only 10 total pages, can be accessed at this link.
June 1, 2007
The latest on California's lethal injection litigation
This AP story provides the lastest news concerning California's efforts to convince a federal judge it should be allowed to get back into the business of conducting executions. Here are snippets:
A federal judge said Friday that if California completes a new execution chamber, he would want to inspect it before deciding whether revised death penalty procedures proposed by the Schwarzenegger administration pass constitutional muster.... The judge's comments were his first on the amended capital punishment plan since the governor's office submitted it on May 15 in hopes of persuading him to lift a 16-month-old moratorium on the death penalty in California....
A lawyer for San Quentin told Fogel the new chamber was about 80 percent done and could be finished within 90 days after the Legislature approves funding for it, estimated at more than $700,000. The judge tentatively scheduled Oct. 1-2 for the field trip and to hear from lawyers for the state and for Michael Morales, the condemned killer whose challenge to the state's execution methods led to the moratorium....
Under the revised protocols, prisoners still would be put to death with a combination of three drugs, the same lethal injection formula Fogel wanted reevaluated when he ruled that the state's execution procedures violated a constitutional ban on cruel and unusual punishment.
Some recent related posts:
AG Gonzales talking again about a mandatory minimum guideline system
Perhaps deciding that the best defense is a good offense, Attorney General Gonzales today announced a set of new initiatives for combating violent crime. (I would think that not firing well-regarded US Attorneys would be part of any effective crime-fighting program, but....)
As detailed in this lengthy official press release, one part of the AG's proposed plan is another pitch for a "topless guideline" Booker fix that would make mandatory again "the bottom of the guideline range for each offense." There are lots and lots of particulars to the AG's proposed "new legislation to help prevent and combat violent crime," and it is not clear that anything is new in the Booker fix discussion. In addition, it strikes me as very unlikely that any "topless guideline" system would be well received in Congress. Nevertheless, it is interesting and notable that, after nearly six months of ugly developments involving the AG, he and his Justice Department are starting what should be a hot summer with some old school "tough on crime" talk.
Split Sixth Circuit denies en banc review of Ohio lethal injection litigation
Three months ago, as noted here, a split Sixth Circuit panel in Cooey v. Taft declared that an Ohio inmate's lethal injection lawsuit was time-barred. As detailed in this order, the full Sixth Circuit in a split vote denied rehearing en banc in Cooey. The brief dissent from the order is authored by Judge Gilman, and it concludes with this sentence: "I believe that en banc review would have been appropriate in the present case to ensure that the law in this Circuit conforms with Supreme Court precedent and to prevent the judicial inefficiency of juggling repetitive, simultaneous, and contradictory litigation from death-sentenced prisoners."
I cannot quite be sure of the vote line-up in this en banc denial, but Ohio's lethal injection litigation appears to provide another example of the circuit voting patterns in capital cases documented recently by the Cincinnati Enquirer. I assume a cert petition will follow next, though there might be some execution dates set in the meantime.
As always, the Ohio Death Penalty Information blog is the place to check out first for anyone following any and all Ohio capital developments.
A thoughtful take on the Libby pardon politics
John Dean has this thoughtful commentary at FindLaw entitled "The Bush Administration's Dilemma Regarding a Possible Libby Pardon - And How Outsiders Such as Fred Thompson Appear to Be Working on a Solution." Here is how it begins:
On June 5, U.S. District Judge Reggie B. Walton will sentence Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, who has been convicted of obstruction of justice, making false statements, and perjury, as the result of the Special Counsel investigation arising from the revelation of Valerie Plame's identity as a CIA agent. I suspect that Judge Walton's actions will create a difficult and delicate problem for the White House.
Needless to say, I have no crystal ball. But it is plain that the White House must be bracing itself for Libby's being sent to prison. Moreover, it appears that high-powered friends of Libby and Cheney have figured out the White House's dilemma, so they are trying to help keep Scooter out of prison in a manner that will not have criminal consequences for anyone involved.
No one has been more active in this undertaking on Libby's behalf than former Tennessee Senator Fred D. Thompson, who has strong Presidential aspirations. Yet, to my surprise, Thompson is either being blatantly dishonest, or he is remarkably uninformed about his efforts. Unfortunately for Thompson, neither state of mind ought to commend itself to Republicans clamoring for a conservative with stature for the GOP nomination in 2008.
Some related Libby pardon posts:
Exactly what sentence should/will Scooter Libby get?
Howard Bashman helpfully collects here major press coverage of the sentencing filings by the defense team for Lewis Libby's upcoming sentencing. In addition, Jeralyn TalkLeft has this thoughtful post with a review and analysis of the defense filings (which can be accessed here and here). Here's Jeralyn's take on what's likely to be the outcome of Libby's June 5 sentencing:
I'm wondering if Judge Walton will have the wherewithal to sentence Libby to probation given the high profile nature of the case. But, in an ordinary case, given a pre-sentence report as favorably described as this one, I think that would be the outcome. Because this case is being watched by so many, I suspect Walton will decide Libby needs some time.
My prediction at this juncture: The Government loses on its sentencing arguments for heavier guideline calculations, the Court finds at least one departure ground and Libby gets a split sentence of 10 months, with 5 spent in prison and 5 on home detention.
In answering the question post in the title of this post, I keep returning to the fact that Victor Rita, whose sentenced in now being reviewed by the Supreme Court, was sentenced to 33 months for similar (but less serious) crimes as Libby. I think, for a variety of reasons, Libby should/will get some prison time, and my money would be on him getting something between 1-2 years.
Please use the comments, dear readers, to argue about what you believe Libby should or will get. (For all we know, Judge Walton and/or his clerks read this blog, so the comments might provide a setting for filing a bloggy amicus brief.)
A double dose of Booker highlights
As mentioned quickly here, two remarkable sentencing decisions were a key part of a remarkable federal sentencing day. Here are some highlights:
From Judge McConnell, writing for the Tenth Circuit in the remarkable Allen case:
This case presents precisely the scenario the Blakely Court labeled as too "absurd" to contemplate: that a judge could sentence a man for attempted sexual abuse or solicitation of murder, even though he was convicted only of distribution of methamphetamine. We do not believe that the Court's remedial decision in Booker departs so dramatically from the Court's interpretation of the Sixth Amendment in Blakely that what was absurd in Blakely is now a reasonable practice after Booker.
From Judge Merritt, writing in dissent from a split Sixth Circuit reasonableness ruling:
The Guidelines violate § 3553 by forbidding consideration of addiction and most other significant mitigators.... Therefore, in a case like this, the Guidelines are not a reliable or even a rational guide to sentencing. If the federal judiciary is to impose just sentences after Booker, it must extricate itself from the prevailing mind set under the Guidelines that includes almost all conceivable enhancements and aggravators while excluding from consideration almost all significant mitigating circumstances.
And, not to be overlooked, King James produced lots of highlights tonight in the Motor City: as the AP put it, "LeBron James used one of the most spectacular performances in playoff history to lift the Cleveland Cavaliers to the verge of their greatest season."
Not quite "La Dolce Vita"
Even a short time in Italy makes it easy to understand why many talk of the sweet life in that country. But, as this BBC article details, some Italian prisoners do not see life as very sweet:
Hundreds of prisoners serving life sentences in Italy have called on President Giorgio Napolitano to bring back the death penalty. Their request was published as a letter in the daily newspaper La Repubblica. Italy has almost 1,300 prisoners serving life terms, of whom 200 have served more than 20 years.
Italy has been at the forefront of the fight against capital punishment and recently lobbied the UN Security Council to table a moratorium on it. But at home some of the country's longest serving prisoners want the death penalty re-introduced.
The letter they sent to President Napolitano came from a convicted mobster, Carmelo Musumeci, a 52-year-old who has been in prison for 17 years. It was co-signed by 310 of his fellow lifers. Musumeci said he was tired of dying a little bit every day. We want to die just once, he said, and "we are asking for our life sentence to be changed to a death sentence".
May 31, 2007
A big federal sentencing day for so many reasons
I am still reeling from the reality that Mario Claiborne's below-guideline sentence may have, in some sad ironic cosmic way, resulted in his demise and the demise of his case before the Supreme Court (basics here and here). But federal sentencing fans cannot take too long to mourn before having to get back to thinking about what Booker means for various other defendant's fates.
Specifically, today I see noteworthy sentencing opinions from the 1st, 6th, 10th and 11th Circuits, and I hope to have time before too long to comment at length at the particularly notable and important work from Judge Merritt in dissent in the Sixth Circuit's Eversole case and from Judge McConnell for a Tenth Circuit panel in Allen.
So, dear readers, which of these stories are of the greatest interest? Which should I focus on in the wee hours when I am not distracted by notable local events during the day?
Could SCOTUS address below-guideline sentences in another case?
A thoughtful reader asks:
Wouldn't it be possible for the Surpeme Court simply to...
- take another case on cert for the same issue in Claiborne (there are a ton of appeals out there on the same issue; US v. Eura, which is on cert from the 4th Cir, to name just one),
- decide in its discretion that it doesn't need oral argument or briefing to decide the case (certainly, it has discretion to do so),
- and write effectively the same decision with a different facts section?
Is there anything stopping it from doing this?
Mario Claiborne killed in strange robbery... now what?!?!?
I have been hearing rumors since yesterday that the defendant in Claiborne v. US, Mario Clairborne, had been killed in Saint Louis. I have now confirmed through various sources that the "Morio Claiborne" mentioned in this article as having been killed in a car robbery incident is the same person whose case is right now pending before the Court.
My sources tell me that something will be filed officially with the Supreme Court today. But exactly what this means for the Claiborne case (and the companion Rita case) remains to be seen. Needless to say, I am stunned by this remarkable development, and I wonder if there is any recent precedent about what exactly should be done in circumstances like this.
Wow... and I'm very interested in reader comments.
UPDATE: SCOTUSblog is now reporting the news and has this analysis of now what:
Under Supreme Court Rule 35, when a party to a case has died, a personal representative may be named if the legal interests would survive the death. That would not be possible in a case involving a convicted and sentenced individual, who has the sole legal interest in the outcome. Thus, it would appear that the Claiborne case would simply be dismissed by the Court, leaving that aspect of the Guidelines reasonableness inquiry unsettled -- unless the coming decision in the Rita case goes beyond the single issue presented there.
Libby sentencing letters to be released after sentencing
As detailed in this AP article, a "federal judge said today he will release more than 150 letters he received regarding next week's sentencing of former White House aide I. Lewis 'Scooter' Libby." Here are more details:
Libby, who was convicted in March of perjury and obstruction in the CIA leak case, had asked that the letters not be released. Attorneys for several news organizations argued that the law required the letters be made public. U.S. District Judge Reggie B. Walton agreed, citing a need for transparency.
"The court has received more than 150 sentencing letters in this case, some urging leniency for the defendant and some expressing opprobrium at the defendant's actions and calling for the imposition of a substantial prison sentence," Walton wrote. The letters will be released after Libby is sentenced June 5, Walton said. Addresses and other personal information will not be released.
Another federal sentence for failing to register
As detailed in this news account, this week in Oklahoma another federal sentence has been imposed under the new Adam Walsh act for failing to register as a sex offender. Here are the basics:
Darrell Templeton soon will be back to looking for work as an Elvis impersonator, but this time he'll be doing it as a registered sex offender. Templeton, 47, was sentenced Wednesday to eight months in federal prison for failing to register with Oklahoma authorities after applying for a state driver's license in January 2006.
Templeton was one of the first people in the country to be charged in federal court with failing to register as a sex offender after the Adam Walsh Child Protection and Safety Act increased the federal government's role in such cases....
Templeton said he did not realize he had to register with Oklahoma authorities because he was not required to do so in Arizona, where he was convicted in 1989 of sexual abuse.
U.S. District Judge Vicki Miles-LaGrange noted Templeton had been arrested 32 times since he was released from prison in 1991 as she decided to sentence him to eight months in prison. That is two more than the maximum term recommended by federal sentencing guidelines. "That probably is not enough, quite honestly," she said.
For various reasons that can be issue-spotted in this story, I think the failure to register provisions of the Adam Walsh act could eventually end up before the Supreme Court.
Analysis of capital child rape laws
At FindLaw, Professor Marci Hamilton has this new commentary discussing new laws making child rape a capital offense. Here is how it begins:
Last week, the Louisiana Supreme Court upheld the death penalty as applied to a child abuser. Louisiana has led the way in passing laws to execute pedophiles. However, Oklahoma, South Carolina, Georgia, and Montana also have passed such laws, with Texas soon to follow when Gov. Rick Perry signs such legislation.
A major impetus for the death penalty in child sex cases is the heinous crime by a previously-convicted sex offender against Florida nine-year old Jessica Lunsford, who suffered horrific abuse, including burial alive in a shallow grave, where she eventually suffocated. If there is a way to measure the temperature of public opinion against child abuse, this is it, and it bodes well for children, even if it is not the most effective way of protecting children.
Some recent related posts:
- Debating death for child rape
- Could there be symbolic and practical value in making repeat child rape a capital offense?
May 30, 2007
Arguments over Cunningham's consequences
As detailed in articles from the San Francisco Chronicle and the Metropolitan News-Enterprise, the California Supreme Court on Tuesday heard oral argument in a set of cases dealing with the fallout of the Supreme Court's Cunningham decision. Here are snippets from the Chronicle's report:
The prison terms of hundreds of inmates were at stake Tuesday as the California Supreme Court tried to determine how much power trial judges have to increase sentences in the wake of a U.S. Supreme Court ruling declaring the state's sentencing system unconstitutional.
The state justices heard two cases in San Francisco that will set standards for sentences cast in doubt by a U.S. Supreme Court ruling in January. In that ruling, the court said a 1977 California law allowing judges to add years to the sentence prescribed by the jury verdict violates the constitutional right to a jury trial....
In response to the Supreme Court ruling, legislators hurriedly passed a prosecution-backed bill that lets judges choose any of the three terms without making factual findings. The new law took effect March 30 and is scheduled to expire in two years, giving lawmakers and Gov. Arnold Schwarzenegger time to consider alternatives that may include establishment of a sentencing commission with authority to propose wholesale changes.
The law does not apply to prisoners sentenced before March 30, the subject of Tuesday's cases. The state Supreme Court's rulings, due within 90 days, will probably determine the outcome of more than 100 cases pending before it and hundreds of cases in lower courts.
A history lesson (and an important precedent?) from the Ninth Circuit
As Howard Bashman details here, today was full of interesting rulings from the Ninth Circuit. Sentencing fans will be most interested to learn that in US v. Trimble, No. 06-30298 (9th Cir. May 30, 2007) (available here), declares a $25 processing fee unconstitutional. Here is how Judge Berzon's intriguing opinion for the majority begins:
The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904.
Fast forward to 2005: Sahneewa Trimble was issued several traffic tickets, fairly serious ones, on a military base. She believed that she was charged too much — more than other drivers who did the same thing on federal property on the same day. When Trimble appeared in court to plead guilty to the violations, the magistrate judge dismissed two of the six original citations but imposed a twenty-five dollar processing fee for three of the remaining ones. Standard stuff, except that some individuals, like Trimble, were charged the fee while the others were not. Why? Because Trimble received a new version of the citation notice and the fortunate others received an older version. So what follows is a tale of two forms, old and new. We reverse — demonstrating, again, that our Constitutional principles protect against monetary injuries large and small.
The dispute here obciously involves a relative triffle; indeed, I can't help but wonder how many federal tax dollars have aleady been spent adjudicating this $75 claim. However, the principles and language supporting the holding in Trimble may have broader significance. Indeed, Judge O'Scannlain seems concerned about what is said in Trimble, as he concurs separately with this paragraph:
I agree that no rational basis supports the discriminatory imposition of processing fees in this case. However, the majority opinion exceeds the grounds necessary to decide this appeal. Accordingly, I concur only in the judgment.
Based on a quick read, I am not entirely sure whether the Trimble holding might provide a basis for questioning other sorts of criminal justice "injuries large and small." Any readers have any suggestions or creative litigation thoughts?
Around the blogosphere
One can find a lot of interesting new sentencing-related items at:
- Capital Defense Weekly
- Corrections Sentencing
- Crime and Consequences
- Sex Crimes
- White Collar Crime Prof
May 29, 2007
Isn't chemical castration worth trying if it works?
The state is close to approving a Corrections Department budget that includes money to expand the state's chemical castration program. If passed, the state would pay for high-risk sex offenders to receive twice-monthly shots of Depo-Provera, a testosterone-reducing drug.
Oregon has had a chemical castration law since 1999. But use of the drug has been spotty because of a lack of a money and opposition from doctors and counselors. Sen. Kurt Schrader, D-Canby, the chief sponsor of the 1999 bill, is leading the effort to add $150,000 to the program, saying it's been effective when used.
Schrader said he wants the injections to be required as a condition of post-prison supervision for about 20 offenders per month - up from the current five per month - in a pilot program that would include Multnomah County and two other counties that have not been determined. "Since it has been pretty darn successful, we want to see if there's a larger population we can use it on to keep people safe when these guys get out of jail," he said....
Depo-Provera, originally developed as a contraceptive for women, creates sexual apathy in men by reducing the level of testosterone. European countries have used the drug since the 1960s to treat sex offenders. It's less popular in the U.S., and Oregon is one of fewer than 10 states reported to have chemical castration laws.
The AP article is does not report on any research that chemical castration is as effective as Senator Schrader asserts. But, if there is decent evidence that this form of technocorrections is effective on some high-risk offender populations, I like the idea a lot more than over-broad civil commitment and residency restriction regimes.
Can anyone report (ideally with cites/links) on any research about the efficacy of chemical castration? If it works, is there any reason not to consider expanding its use for certain high-risk offender populations?
Judge Posner provides a great sentencing lesson
In the course of affirming a 30-year sentence for the producer of child pornography, Judge Posner writing for the Seventh Circuit in US v. Beier, No. No. 06-3374 (7th Cir. May 29, 2007) (available here) provides an effective lesson on post-Booker 3553(a) arguments. Here is a brief excerpt from a short opinion that is packed with intriguing (and sometimes debatable) assertions:
The statute [3553(a)] does not attach weights to these factors, thus leaving the sentencing judge with enormous latitude, reinforced by the vagueness of some of the factors (what is "just punishment," for example?). A party who fails to provide cogent reasons or credible empirical evidence for or against a proposed sentence is pretty much at the mercy of the instincts and intuitions of the sentencing judge.
The defendant failed to give the district judge any help in picking a sentence. It was not nearly enough for his lawyer to point out that his client had been a victim of child molestation; the lawyer presented no evidence or studies to indicate that such a history makes a person less able to avoid becoming a child molester, let alone becoming a producer of child pornography (which might however be considered a form of child molestation when it involves photographing actual children in erotic poses).
A cold SCOTUS sentencing start to a hot summer
Memorial Day marks the unofficial start of summer, and it should be a hot one for sentencing fans with the still pending Claiborne and Rita cases, the upcoming Libby sentencing and congressional hearings all in the works. But, as detailed here at SCOTUSblog, the Justices got back to work after the long weekend without much for sentencing fans to get excited about.
The Justices issued only one opinion today (a labor law issue producing another 5-4 partisan split). And the set of cert grants, except for a case with what seems like a little federal prisoner rights issue, have little of interest for criminal justice folks.
Significantly, the Justices denied cert today in Washington v. VanDelft, a state case that raised effectively whether Blakely applies to judicial factfinding supporting the imposition of consecutive rather than concurrent sentences. I am inclined to guess that the Justices are a bit tired of Blakely issues as they sort through Claiborne and Rita. (I am hoping, however, that the Justices are interested in judicial factfinding again when my supervised release case, discussed here and here, comes up for review in a few weeks.)
UPDATE: Kent at Crime & Consequences here notes the VanDelft denial and also details that these sort of Blakely issues are up before the California Supreme COurt in the wake of Cunningham.
The de facto death penalty moratorium in North Carolina
This article in the Charlotte Observer details that lethal injection lawsuits and legislative indifference have produced a de facto moratorium on executions in North Carolina. Here are the basics from the effective article:
As North Carolina edges toward a full year with no executions, top state leaders aren't in a hurry to make changes that would reinstate the death penalty. Five executions have been put on hold since a state judge in Wake County heard their cases earlier this year, as part of a national controversy over the role of doctors in executions.
Now, Democrats controlling the N.C. legislature say they are waiting for the court's decision before making any moves. Republican-backed legislation, which would allow doctors to participate without fear of discipline from the N.C. Medical Board, hadn't had a hearing in either the House or Senate by the time a key deadline for moving forward this year passed last week. "We're waiting to hear what the court says," said Senate Majority Leader Tony Rand, D-Fayetteville. "We're not sure that the law we have is not right."
Republicans are questioning whether the inaction is part of a hidden agenda. "The only conclusion that someone could draw is that the leadership wants a moratorium on the death penalty but doesn't want to vote on it," said Senate Minority Leader Phil Berger, an Eden Republican.
Gov. Mike Easley, a two-term Democrat, is backing the Democratic leadership's position.
The state judge issued a de facto moratorium in January after the medical board declared that doctors couldn't participate in executions without violating medical ethics.
Whatever one thinks of this state stalemate on executions, at least this de facto moratorium is being noticed. As I have lamented in posts here and here, the Bush Administration seems to be supporting a de facto moratorium on federal executions, but nobody is questioning why and there is precious little public information about the on-going federal lethal injection litigation.
Noticing the government's sentencing trick in the Libby case
Byron York, writing at the National Review Online, has this new commentary on the upcoming Libby sentencing entitled "Fitzgerald: O.K., Libby Wasn't Convicted of Leaking — But Punish Him As If He Had Been." York notices the little trick of punishing for unconvicted conduct that the government, aided by provisions of the federal sentencing guidelines, uses all the time in federal sentencing. (I wonder if York realizes that, under current federal sentencing rules, Fitz could make this argument even if Libby had been acquitted of leaking.)
Some recent related posts:
- Government pushing for around 3 years for Libby
- Libby sentencing buzz starting
- Comparing Lewis Libby and Victor Rita
- Sentencing and pardon politics in the Libby case
- Will VP Cheney help Libby at sentencing?
Editorial supporting more sentencing discretion for federal judges
Perhaps sensing that it is possible (but I think unlikely) that SCOTUS decides Claiborne and Rita today, the Des Moines Register has this new editorial entitled "Let federal judges use judgment in sentencing." The editorial complains about the Eighth Circuit's reversal last week of a below-guideline sentence in US v. Pepper (discussed here). Here is the heart of the editorial:
This [Pepper] case illustrates the problem with federal sentencing rules. Besides shackling judges from tailoring sentences to individual offenders, they tend to produce vastly longer prison sentences. And, by relying heavily on recommendations from prosecutors, the rules give more discretion to U.S. attorneys than judges.
The Supreme Court, in striking down the sentencing rules in 2005, said mandatory sentencing rules violate a defendant's Sixth Amendment right to trial by jury because the sentence formula uses information gathered after the trial, not on facts presented to the jury. Since then, however, federal appeals courts — including the 8th Circuit, which has jurisdiction over Iowa — have still enforced the old guidelines as if they were mandatory.
May 28, 2007
A (justifiable?) rant against lengthy death penalty appeals
Writing in the Houston Chronicle, Tom Kennedy has this lengthy opinion piece complaining about lengthy delays in the appeals of defendants convicted of killing cops. Here is a taste:
We need to ask ourselves if the good guys are still winning the criminal justice game, especially when cop killers are involved.... Currently there are 10 men sentenced to Texas' death row for killing nine Houston police officers. They have resided there an average of 12 1/2 years and counting since none is scheduled to pay the ultimate price in 2007....
Take death row resident Carl Wayne Buntion, 67, for example. This lifelong criminal enjoys writing poems and tending to his Web site, while Officer James Irby, the HPD officer Buntion killed on a hot summer day in 1990, never lived long enough to learn about the Internet.
This is not half bad punishment when you consider that after 17 years of life Buntion seeks pen pals and monetary contributions, as do his death row colleagues. Meanwhile, the good guys' appellate attorneys in the office of District Attorney Chuck Rosenthal grow frustrated with the large number of years that elapse as death penalty inmates exhaust their appeals.
Arthur L. Williams may yet establish the longevity record. In 1983, Williams received the prospects of a lethal injection for the senseless killing of Officer Daryl W. Shirley. Williams used a pistol on Shirley while scuffling with the officer as he tried to serve a warrant at Williams' apartment complex on April 28, 1982.
The system has allowed Williams to live at least a quarter of a century longer than Shirley, the divorced father of two sons, both of whom became law enforcement officers. Williams can look forward to many more years. He is in the midst of his second round of state appeals, still an untold number of years away from graduation to the federal appellate level. Williams' Web site quotes him as saying he is struggling "for justice and freedom in the courts for killing an undercover cop in Houston (a case of self-defense!)."...
As in the old fable, the tortoise is winning the race in the guise of a cop killer on death row. He has pen pals and Web sites while honest citizens and the surviving families of dead officers have only memories and gravesites.
From The Onion: SCOTUS rules "It Depends"
The always amusing The Onion has this new funny article entitled "Supreme Court Reaches Landmark 'It Depends' Ruling." Here is how the piece starts and ends:
In a landmark 8-1 decision, an uncharacteristically subdued Supreme Court ruled "it depends" in the case of Panetti v. Quarterman, leaving the issue of executing the mentally ill completely open-ended....
Justice Ruth Bader Ginsburg wrote the lone dissenting opinion, in which she stated that she knew the correct decision was either yes or no, but couldn't say which one it should be.
The entire article is a fun read, and the last sentence suggests that the author was familiar with Justice Ginsburg work in Booker.
Should Lohan share a Hilton cell? Seriously....
Others will always cover celebrity sentencing much more fully than I ever will (such as this site). Still, I cannot help using the news of Lindsay Lohan's latest serious troubles to wonder here whether she might get (Paris) Hilton accommodations.
Seriously, many persons surely develop perceptions of the criminal justice system based on the treatment afforded to repeat-offender celebrities like Robert Downey and Snoop Dogg and Hilton and Lohan. When these stars repeatedly violate serious laws and suffer few serious consequences, it is no surprise that polls still show that, despite severe sentencing laws, the public often asserting that sentencing judges are generally too lenient.
High-profile scheduled execution raises distinct innocence claim
As detailed in this AP story, Texas is scheduled in two weeks to execute Cathy Henderson. Her case, as detailed in the AP piece, raises a distinct type of innocent claim:
A neighbor in a suburban Austin neighborhood appeared to be the perfect babysitter for Eryn Baugh's infant son and his 2-year-old sister. "She's the most sweet, endearing person in the world and put forward this good Christian front," Baugh said of Cathy Lynn Henderson, who lived two blocks away. "She could sell snow to an Eskimo."
But just weeks after Henderson started working for the Baughs, 3-month-old Brandon was dead and Henderson had fled the state. The infant's body was found buried 60 miles away with his skull crushed, wrapped in his yellow-trimmed white blanket and stuffed into a box that previously held Bartles & Jaymes wine coolers.
Henderson, 50, is set to die in less than three weeks for the 1994 slaying that made her one of the most hated women in Texas. She would be just the 12th woman among the nearly 1,100 convicted killers executed since capital punishment resumed in the United States in 1977.
Henderson insists Brandon died in an accidental fall and that her decision to bury him and flee was made in panic, not in cold blood. "It's apparent I wasn't thinking clearly," Henderson told The Associated Press recently from the state's female death row outside Gatesville. "I think I was in shock, disbelief. I just didn't know what I was doing. That baby was dead. I didn't want to deal with that. There was too much sorrow. It hurt, it hurt," she said, tearing up. "When I look back at it, it does kind of look like I was guilty, doesn't it?"
Henderson's case has been championed by Sister Helen Prejean of "Dead Man Walking" fame. Supporters say new engineering data interpreting Brandon's skull fracture could better support Henderson's contention the child's death was an accident and her life should be spared.
As noted before in this post (when Henderson faced an April execution date), Henderson's gender, the involvement of Sister Helen Prejean, and her distinct claim of innocence all suggest this case will become very high-profile as her execution date approaches.
Especially because this case is in Texas — which has already conducted 2/3 of all executions nationwide this year and has five executions scheduled for June — I will be following the Henderson case closely as a litmus test on the state of death penalty politics. If support for the death penalty is really waning nationwide, Henderson might get another reprieve. But, in Texas, the safe money is always on an execution going forward.
Clear (near) consensus on crack corrections
At the National Seminar on the Federal Sentencing Guidelines in Salt Lake City last week (reviewed here and here), I heard lots of praise and virtually no criticisms regarding the US Sentencing Commission's important recent work on crack sentencing (details here). And two thoughtful recent newspaper commentaries add to the seemingly consensus view that Congress need to build upon the USSC's work to further reform the crack-powder disparity:
- Jacob Sullum in this piece entitled "Crackbrained crackdown" seems to urge complete equalization of crack and powder sentencing.
- Sylvia Smith in this piece entitled "Sentencing disparity hurts blacks" argues that "[f]or reasons of fairness and to help lessen the mistrust in the legal system, Congress would be wise to tackle this."
However, as Smith's piece highlights, the consensus that Congress should do something breaks down when it comes to exactly what Congress should do. As a piece in CQ Today recently highlighted, there are many competing views and proposals concerning how the crack-powder disparity should be addressed.
May 27, 2007
Reentry job for Dr. Death: lethal injection consultant
As detailed in this interesting AP article, Dr. Jack Kevorkian is scheduled to be released from state prison in a few days after having served more than eight years of a 10-25 year sentence for aiding in the death of a Michigan man. One notable part of the story concerns the Michigan's interest in keeping "Dr. Death" from profiting unduly from his criminal activities:
The state wants to go after money that Kevorkian makes following his release to help cover the cost of his incarceration. Morganroth has said his client has been offered as much as $100,000 to speak. Many of those speeches are expected to be on assisted suicide.
It is interesting to consider whether Michigan should be able claim some or all of the monies that Kevorkian could be making on the lecture circuit. If Dr. Death was smart, he'd try to work out a deal to have monies go to end-of-life pain-management research.
And, speaking of end-of-life pain-management research, I wonder if any jurisdictions struggling with their lethal injection protocols might have the guts to reach out to seek Kevorkian's help on how best to seek a pain-free death for condemned prisoners. (Interestingly, this Wikepedia entry on Kevorkian indicates that a "paper he presented in December 1958 that advocated consensual experiments on convicts during executions led the University of Michigan to ask him to terminate his residency.")
I believe that California, Missouri, North Carolina and maybe a few other states are still looking for a doctor willing to help significantly with lethal injection protocols. Dr. Jack Kevorkian is surely has more experience in this field than anyone else. I wonder what he might charge for his services.
What's the matter with Kansas .... rape sentencing?
In Arizona, Morton Berger is serving a 200-year sentence for downloading the wrong kind of porn. In Georgia, Genarlow Wilson is serving a 10-year sentence for an act of consensual oral sex between two teenagers. But in Kansas, according to this hard-to-believe AP story, a "Topeka man convicted of repeatedly raping and sodomizing a 14-year-old girl was sentenced to three years probation, rather than nearly 13 years in jail." This seems like a sentence that is much too lenient.
To get a fuller understanding of this notable state sentencing, one needs to read this more complete article from Topeka Capital-Journal. The article indicates that the victim was in a sense "dating" the perpetrator, but the age difference is still extreme: the perpetrator was 38-years-old and should know full well the illegality of repeatedly having sex with a 14-year-old girl.
The Topeka Capital-Journal article provides this (not especially satisfying) account of why such a lenient sentence was imposed:
[Shawnee County District Judge Matthew] Dowd said he departed from sentencing guideline based in part on Cisneros having "massive depression" at the time of his alleged crimes. Dowd said Cisneros was being treated with medication and psychiatric therapy. The judge also said Cisneros had shown a history of having steady employment.
"I felt he had a good chance of rehabilitation, based on family support," Dowd said. "Plus, I felt there was no permanent, severe damage to the victim. She said that, too." As a condition of his parole, Cisneros is to continue with his psychiatric treatment and medication and is to have no contact with the victim.
These rationales might sensibly support a prison sentence of less that 13 years, but I can't see how "a good chance of rehabilitation" justifies a probationary term. The DA has vowed an appeal, and I would expect and hope that a Kansas appellate court will demand some prison time.