January 20, 2007
Coverage of Ohio reprieves
ODPI has this terrific round-up of media coverage of Ohio Governor Ted Strickland's decision late Friday to delay the executions of three Ohio inmates who were scheduled to receive lethal injections in January or February (basics here). I am already wondering what the editorial pages will be saying on Sunday.
Capital Defense Weekly rightly wonders here how "the reprieves will impact the current lethal injection litigation in the Sixth Circuit." Also, Kent at Crime & Consequences has this supportive comment:
Personally, I consider it a positive development that the governor makes it a point to not only consider the cases carefully but to demonstrate to the public that he is doing so. He should take enough time to do that. The time actually stated in the order is more than required in my opinion, but not excessively so. I will reserve further judgment until I see how he actually decides the petitions, and on what basis.
Also, I see DPIC now has this great new page covering executive clemency in capital cases.
Seeking information on state restrictions on clemency
In thinking about the sad Gerarlow Wilson case (background here), I learned that Georgia's legislature may have completely barred the state's governor from being able to grant clemency in this sort of sex offense case. Similarly, one extraordinary aspect of the extraordinary Berger case (background here) is that the Arizona legislature has completely barred the state's governor from being able to grant clemency in certain cases.
Has anyone investigated or assembled information about substantive state restrictions on governors' clemency powers, particularly in non-capital cases? I know many states have long set forth procedural regulations to regulate the clemency and pardon power, but I believe the complete elimination of that power in certain classes of cases is a relatively new (and uniquely questionable) development.
UPDATE: Thanks to commentors for noting some notable state clemency restrictions. Keep up the great work.
Who will be supporting the government in Claiborne and Rita?
When cert was first granted in Claiborne and Rita, I wondered here how many amicus briefs might be filed. When the top-side briefs were filed last month, as documented here, eight different amici briefs shared their insights with the Supreme Court. And now that bottom-side briefs are due next week, I am wondering how many others will be giving SCOTUS friendly advice about post-Booker sentencing.
I suspect the US Sentencing Commission will file a brief supporting the government's emphasis on the guidelines in the post-Booker world. (If USSC does file a brief, it will mark yet another ocassion in which it has opined about Booker while its guidelines chug along without even mentioning Booker.) But I am quite uncertain about how many other briefs will be filed supporting the government's approach to the post-Booker world and the circuit outcomes in Claiborne and Rita. I doubt there will be as many as were filed on the defense side, but one never knows.
January 19, 2007
Ohio's new governor signs three reprieves
I predicted to my students in my Death Penalty Course yesterday that this weekend might bring some interesting Ohio capital action because an execution was scheduled (though stayed) for next Tuesday. And now I have just seen a report that Ohio's new Governor has not even waited for the weekend. Here's the report I saw from a state news agency:
[On Friday], the governor signed warrants that delay the executions of three Death Row inmates who were scheduled to receive lethal injections in January or February. The warrants provide the new governor additional time to review the sentences imposed on Kenneth Biros, James Filiaggi and Christopher Newton.
This brief AP report states that "Biros was granted a reprieve until March 20, Filiaggi to April 24, and Newton to May 24." Among other interesting aspects of this development is that Christopher Newton is a so-called "volunteer" who has dropped his appeals. Will the "right to die" crowd to come out and complain about Newton having his death wish delayed?
Of course, the place to go to get all the details (and the likely storm of new coverage) is the Ohio Death Penalty Information blog.
Since lethal injection isn't working out...
how about hanging? Thanks to ODPI, I see that Dean Reynolds has this lengthy article on hanging over at the ABC News website. The long piece is entitled "Sentenced to Hang: Executions by Hanging Still Happen in the U.S. — But is it 'Humane'?" and it almost reads like a how-to guide. Here's one abridged portion of the article:
[H]anging is the oldest and still most widely used method of execution in the world today, according to a British study on executions. The research goes on to say that at the very least, 315 men and 4 women were hanged in 10 countries during 2006, many in public.
There has not been a hanging execution in the United States since 1996, and only three overall since 1976 when the Supreme Court re-instated the death penalty.
From trees, to gallows, to stages with trap-doors, hanging continues to be an attempt at a highly visible deterrent.... Again, referring to the British study, there are four main forms of hanging:
- Short or no-drop hanging, in which the condemned drops just a few inches and in struggling against the noose, strangles himself....
- Suspension hanging, in which the condemned is slowly raised by the neck and asphyxiated....
- Standard drop-hanging, in which the prisoner drops a distance of four to six feet. It may or may not break the neck, so asphyxiation is also a possibility with this method....
- Measured or long-drop hanging, in which the person's height, weight and physique are calculated to ensure a quickly broken neck and subsequent death.
Former congressman Ney gets 30 months
As detailed press reports here and here, "Former Rep. Bob Ney was sentenced Friday to 30 months in federal prison for his role in a congressional bribery scandal." The reports indicate that this sentence was three months higher than the term urged by prosecutors, which leads me to think that the sentence involved an upward variance. Here's more details from this NBC article:
U.S. District Judge Ellen Segal Huvelle said that Ney would serve his time at a federal prison in Morgantown, West Virginia. When he is released, the judge said, Ney will serve another two years on probation and pay a $6,000 fine. She also ordered him into a prison alcohol rehabilitation program for treatment of a drinking problem he has acknowledged in recent months.
The sentence was harsher than recommended by prosecutors or Ney's lawyers, Huvelle said, because Ney had violated the trust place on him as a public official. "Both your constituents and the public trusted you to represent them honestly," she said.
An fitting MLK-week race reminder
This morning, I happened across the website of the Equal Justice Initiative of Alabama and its page on race in the state's criminal justice system. I thought it fitting to close the MLK work week with a review of the racial skew in Alabama's "modern" system of criminal justice:
Although black people in Alabama constitute 26% of the total population, none of the 19 appellate court judges and none of the 42 elected District Attorneys in Alabama are black. Nearly 63% of the Alabama prison population is black.
Although only 6% of all murders in Alabama involve black defendants and white victims, over 60% of black death row prisoners have been sentenced for killing someone white. Each year in Alabama, nearly 65% of all murders involve black victims. However, 80% of the prisoners currently awaiting execution in the state were convicted of crimes in which the victims were white.
Between 1975 and 2001, there were 23 executions in Alabama. Nearly 70% percent of those executed were black. In 21 out of the 23 cases, black people were significantly underrepresented in the juries that condemned the accused to death. In 14 of those cases, the jury was either all-white or had only one black juror although the counties where the cases were tried were between 33% to 47% black.
Death and the SCOTUS docket
Yesterday the Washington Post ran this intriguing piece focused on one of my favorite topics for kvetching: the Supreme Court's criminal docket being consumed by death penalty cases. Here is a snippet:
The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard [this week].
I am in the midst of finishing an article with some musings about why — and why its is bad — the Supreme Court's docket is so deadly. The article (which I'll post when fully drafted) builds on some of my (excessive?) blog work on this topic.
Some related posts:
A push for a sentencing commission in California
Launching what promises to be one of the year's fiercest debates in the Capitol, the Senate's top Democrats on Thursday moved toward reforming California's byzantine criminal sentencing system. Unveiling legislation to create a sentencing review commission, Senate leader Don Perata of Oakland and Sen. Gloria Romero of Los Angeles said California should join 16 other states now revisiting the question of who goes to prison and for how long.
The lawmakers also urged Gov. Arnold Schwarzenegger to use his executive powers to create an interim working group that would begin collecting and analyzing sentencing data as early as February. "We can't wait," Romero said, noting that prison overcrowding is so severe that federal judges may impose a cap on the inmate population, now at 172,000. "Public safety is not served with a broken corrections system."
Last month, Schwarzenegger proposed a sentencing commission of his own, part of a sweeping $10.9-billion prison building and reform plan. The Republican governor did not specify what changes in penalties he favored but called for a 17-member panel that would suggest improvements to the Legislature. Romero and Perata said that model lacked teeth and would doom any significant reform to failure. The Democrats want the commission to have the power to tweak sentencing guidelines or create new ones and say its ideas should automatically take effect unless legislation is introduced to block it.
A spokesman for the governor had no specific comment on the proposal but said Schwarzenegger was "thrilled" that legislators shared his commitment to tackling the prison crisis. Republican lawmakers were far from thrilled, arguing that the responsibility for setting or changing sentences for felons must remain squarely with the Legislature. Assemblyman Todd Spitzer (R-Orange) said suggesting that lawmakers "punt to a commission that has no accountability is a nonstarter." "They want to take the politics out of it," said Spitzer, who was a prosecutor before becoming an elected official. "But in my opinion, the politics is critical to making sure a liberal Legislature does not become more soft on crime."
January 18, 2007
Does the Seventh Circuit know its own law?
As discussed here, last year the Seventh Circuit in Demaree decided that, after Booker, the ex post facto clause does not preclude a District Court from using the latest guidelines, which in turn raised a lot of questions about whether and when a district judge in the Seventh Circuit might appropriate "consider" only earlier versions of the guidelines. Today, the Seventh Circuit in US v. Jung, No. 05-3718 (7th Cir. Jan 18, 2007) (available here), without mentioning Demaree, affirms a sentence in which the district court, after Booker, "chose a sentence within the advisory range of the 1997 Guidelines."
Question for folks practicing in the Seventh Circuit: is Demaree being faithfully applied or are old versions of guidelines still the coin of the realm? Since the panel in Jung did not seem to be fully aware of the work in Demaree, I am wondering if district judges throughout the circuit are.
Report on USSC public hearing
A helpful reader who attended yesterday's US Sentencing Commission hearing has sent me this informative (and discouraging?) report:
Most of the proposed amendments are reactions to legislation (though not always to Congressional directives). On crack, the Commissioners merely invited more comment without giving a clue as to what they have in mind in the way of Commission action.... Also of note are requests for further comment on the circumstances in which a motion from the Bureau of Prisons for reduced sentence are appropriate as well as possible changes to criminal history -- the treatment of so-called minor offenses and related cases.
The votes were unanimous to publish all of the proposed amendments and requests for comment, with a 60-day comment period. There was no debate or discussion, which I believe is par for the course.
I have not had a chance to look carefully at the other proposals and requests for comment. I am told that the immigration package is largely identical to what they put out -- and then tabled -- last year. Notably absent is any proposal to make various updates to the Manual to recognize the impact of Booker on federal sentencing, despite the frequent recommendation that they make these changes to bring the Manual into the post-Booker world.
My effort to help with the SCOTUS docket problem
As noted here and here, one reason given for the Supreme Court's shrinking docket is a purported lack of cert-worthy cases. As readers know, I think there are plenty of cert-worthy sentencing issues, especially in the wake of Blakely and Booker. And, ever eager to help out the Justices, I have been a part of a team that yesterday filed a petition in US v. Faulks, which concerns the procedures for revoking supervised release in a case with extraordinary facts. Here's the pitch from the petition (which can be downloaded below):
In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years' supervised release. Seven years later, as Faulks's term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release. Faulks denied the allegation. At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof. Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment. This case presents two questions:
1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year term of imprisonment based solely on the judge's disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.
2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).
First(?) test of the new federal crime for failing to register as a sex offender
A helpful reporter has sent me a copy of a recent district court opinion, US v. Madera, No. 6:06-cr-202-Orl-1SKRS (M.D. Fla. Jan. 16, 2007) (download below), which is the first ruling I have seen addressing constitutional challenges to certain provisions of the the Adam Walsh Child Protection and Safety Act enacted by Congress last summer.
The ruling in Madera covers a lot of constitutional ground in the course of rejecting a motion to dismiss brought by a defendant "charged in an indictmcnt with one count of failing to register as a sex offender in violation of 18 U.S.C. 2250(a) and the Walsh Act." Based on my quick read, I am not convinced the Madera opinion properly unpacks all the complicated issues raised here, and it seems inevitable that many courts may have to struggle with these issues before long.
UPDATE: Sex Crimes now has this discussion of Madera that zeroes in on the defendant's Commerce Clause challenge, with I see as just one of a dozen complicated aspects of the ruling.
Recaps of all the capital action
Fittingly, there was lots of death penalty action (including an execution in Texas and a stay in Indiana) to celebrate yesterday's killer anniversary. As I have highlightedbefore, I find that regular stops at three great death penalty blogs — Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project — is the best way to keep up with all the current capital happenings. In addition, Crime & Consequences has lots of capital coverage from a perspective distinct from these other DP blogs.
For anyone eager for some historical reflections, I have some links here at my Death Penalty Course blog to a few discussions of America's history with capital punishment. Also, I just noticed this extended article at Stateline.org covering lots of historical ground while providing a modern update on recent developments.
Another day full of Booker circuit fireworks
As if Tuesday's action was not exciting enough, Wednesday brought another collection of noteworthy circuit opinions addressing a range of Booker issues. And though the Eighth Circuit had a couple of notable remands (available here and here), the most interesting rulings came from neighboring circuits. Here's a quick run-down:
Seventh Circuit: US v. Roberson, No. 06-1121 (7th Cir. Jan 17, 2007) (available here) (reversing as unreasonable a reduced guideline sentence because of concerns of the impact of 924(c) mandatory enhancement) (discussed by How Appealing here)
Ninth Circuit: US v. Pike, No. 05-30528 (9th Cir. Jan 17, 2007) (available here) (reversing sentence because judge applied clear-and-convincing proof standard when deciding not to apply guideline enhancement)
Tenth Circuit: US v. Atencio, No. 06-1333 (10th Cir. Jan 17, 2007) (available here) (reversing for lack of notice and as unreasonable an upward variance over the dissent of judges eager to hear the case en banc) (discussed by How Appealing here)
Though a lot could be said about all of these opinions, I find the Ninth Circuit's work in Pike to be the most disappointing. Pike is written by Judge Reinhardt, who is rightly (in)famous for not letting doctrines he sees as questionable get in the way of achieving what he believes to be a just result. Pike presented an interesting issue in a useful setting for breaking new ground in the name of procedural justice after Booker. Yet Judge Reinhardt delivers an opinion that, while entirely ignoring Booker, fully embraces a civil standard of proof for guideline enhancements and does not ever mention that Booker changed the standards for appellate review of federal sentencing decisions.
January 17, 2007
Any reports from today's USSC meeting?
As first noted here, the US Sentencing Commission had a public meeting scheduled for today, January 17, 2007, and the agenda here included an item listed as "Possible Votes to Publish Guideline Amendments and Issues for Comment." Can any readers in the know report on any noteworthy happenings. Are there any guideline amendments in the works to address the ugliness of the current crack guidelines or the apparent reality that the Booker decision appears here to stay?
UPDATE: A helpful reader sent me USSC proposed amendments to implement the Adam Walsh Act and some immigration reforms. I am unsure if this means there is nothing planned from the USSC this amendment cycle on crack and Booker.
NLJ coverage of Patrick Lett appeal
Though locked behind a subscription, Pamela MacLean has a terrific article in the National Law Journal about the upcoming Eleventh Circuit argument in the Patrick Lett case. Here's a bit of the article about the case (in which, as detailed in posts linked below, I have been involved):
Reducing a five-year prison sentence to 11 days in a crack cocaine case gave a second chance to a veteran with an exemplary 17-year Army career, but also prompted prosecutors to challenge the crediting of military service in determining criminal sentences. The question of whether, and to what extent, military service may be used to mitigate sentences will be the subject of arguments on Feb. 1 before the 11th U.S. Circuit Court of Appeals in the case of 38-year-old Sergeant Patrick Lett.
Some related posts:
The wait for Cunningham continues
As detailed here at SCOTUSblog, the Supreme Court issued just one opinion today from a case that was argued only last month, Gonzales v. Duenas-Alvarez (05-1629). I was hoping we might get a decision in Cunningham, the California Blakely cases, but now it appears this case is to take longer than Booker for SCOTUS to adjudicate (informed speculations here).
To justify my anticipation (and impatience), let me document reasons why I am so eager to see what the Court does in Cunningham:
1. In the wake of Harris, the Blakely ruling was huge because it showed that five Justices were prepared to make the Apprendi doctrine truly revolutionary. But Justice Ginsburg's flip in Booker helped a distinct group of five justices water-down the impact of Blakely through the Booker remedy. Coming a full two years after Booker, the Cunningham case is likely to reveal whether a majority of the Court wants to continue to water-down, or now start to again liven up, the Apprendi-Blakely rule.
2. It seems clear that Justice Kennedy still wants the Apprendi-Blakely rule watered down and that Justice Stevens likes the Apprendi-Blakely rule livened up. But, after Recuenco and other intriguing post-Booker signals from oral arguments, it is hard to be certain about the views of any other Justices (especially now that we all have two full years' experience with the impact of the Blakely-Booker rulings).
3. Particularly unclear is how the new Justices will get into the mix in Cunningham. Many are assuming that the new Chief and Justice Alito are hostile to the Apprendi rule, but both Blakely and Booker revealed how conventionally thinking can be very wrong. Especially given Justice Alito's keen understanding of criminal justice issues and CJ Roberts' avowed affinity for consensus, I think their votes (and who may be writing separate opinions) are hard to predict.
4. Speaking of consensus, as I argued here, for the health of criminal justice systems nationwide, it is probably far more important to have a clear set of Sixth Amendment rules than to having a perfect set of rules. As detailed here and here, Stephanos Bibas and I authored this OSJCL article discussing consensus principles designed to help SCOTUS bring order to its sentencing jurisprudence. I am hopeful, but not especially optimistic, that the Court will use Cunningham to make its shaky sentencing doctrines more stable, sensible and predictable.
I cannot quite figure out if the long wait for Cunningham is a good or bad sign. Adding to the intrigue is the fact that, not long after the Cunningham oral argument, the Court granted cert on two Booker reasonableness cases (Claiborne and Rita). I am now wondering if we won't see Cunningham before the SCOTUS arguments next month in Claiborne and Rita; perhaps will get all these decisions handed down together only sometime in June.
Another (ineffective?) sex offender restriction
I have not yet seen any evidence that sex offender restrictions are effective; many say, as detailed here, that they actually harm public safety. Nevertheless, this article from my local paper details that a town in central Ohio is considering a new twist on sex offender restrictions:
Upper Arlington is proposing tough restrictions on sexual offenders that would limit not only where they can live, but also where they can work. State law already forbids sex offenders from living within 1,000 feet of a school. And several cities in Franklin County, including Hilliard and Reynoldsburg, have passed or are considering additional prohibitions. But none has restrictions on where offenders may work.
"I'm not aware of an employment restriction anywhere in the state. As far as I know this is a first," said David Singleton, executive director of the Ohio Justice and Policy Center, a nonprofit, public-interest law firm based in Cincinnati.
Some related posts:
UPDATE: Over here at Sex Crimes, Corey Yung has a thoughtful and nuanced post about work restrictions for sex offenders. He also has a lot of other interesting new posts on topics ranging from the Duke case to criminal adultry laws.
A killer anniversary
As spotlighted by this press release from Amnesty International, the first "modern" US execution took place exactly 30 years ago today. AI marks the anniversary with this long essay, entitled "The experiment that failed: A reflection on 30 years of executions."
Meanwhile, the Supreme Court today fittingly has a day devoted to oral arguments in yet another round of review of Texas capital jury deliberations. For effective previews, check out SCOTUSblog and Crime & Consequences. And, as detailed here at How Appealing, California is busy trying to get its execution protocol worked out.
For my part, I'll try my hand at a macabre fractured song lyric:
It was thirty years ago today, thatGary Gilmore told the state to slayDeath's been going in and out of styleBut the killings will go on a while.
[pause]So you just need to get used toThe act you've known for all these years...