September 14, 2007
Lawyer-presidents and future sentencing reforms
Over at Law School Innovation, Anupam Chander has this new post highlighting that "the three leading candidates for President in both parties are all lawyers." (This recent USA Today article covers similar ground.) Of course, this factiod has me thinking about which of the lawyer-president-wannabes would be most likely to champion sound sentencing reforms.
Our last few lawyer-presidents — Richard Nixon, Gerald Ford, and Bill Clinton — have hardly had inspiring records on various criminal justice issues, and I have noted some of my gripes with Clinton's sentencing record in some posts linked below. That said, Rudy Giuliani has called at least one federal guideline sentence "grossly excessive" (when discussing Scooter Libby's original prison term), and Barack Obama has indicated an interest in "expert evidence" concerning sentencing reform (though in comments suggesting he is oblivious to the work of the US Sentencing Commission), and Fred Thompson has recent criminal justice experience (though this comes from pretending to be a DA on Law & Order).
Sarcastic comments aside, I wonder if any readers have thoughts on how a single-issue sentencing voter ought to sort through the crowded field of presidential candidates.
Some related posts on sentencing politics:
- Extended discussion of race and justice among Democratic hopefuls
- Clinton and Obama, crime and punishment
- Will sentencing issues surface in the Clinton-Obama battle for black votes?
- Oh geez, who's briefing Obama on criminal justice issues?
- Politics and the war on drugs
- Previewing the (quite unpredictable) new federal politics of crack sentencing
- State of the Union and modern sentencing politics
- Is there a "new right" on criminal sentencing issues?
Not quite sentencing the dead
This sentencing item from the AP wires seems fitting for a Friday afternoon:
Prosecutors [in Indiana] are investigating whether a phony obituary was placed in a newspaper in an attempt to keep a convicted forger out of prison. The obituary reporting the supposed death and cremation of Shawnda K. Hatfield was faxed to Delaware Circuit Court Judge Robert Barnet Jr.
But Hatfield, 41, was later found at her home in nearby Dunkirk and arrested. Barnet sentenced her Thursday to four years in prison for altering a check drawn on the account of White Feather Farms, where she formerly worked. Hatfield said she had no idea how her obituary ended up in The Star Press.
A strong argument for commuting Patrick Kennedy's death sentence
I have now had a chance to read closely the effective petition for writ of certiorari in Kennedy v. Louisiana (available here), which calls upon the Supreme Court to review and reverse the Louisiana Supreme Court's decision to uphold the death sentence given to Patrick Kennedy for the crime of child rape. Because the petition is so strong and effective, I have decided that the case ought to get "resolved" before the Supreme Court even has a chance to consider it. Specifically, I now think the Governor of Louisiana ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's death sentence.
As I have explained in this post, I believe states could reasonably garner symbolic and practical benefits from making certain repeat child rape a capital offense. Consequently, as I read the Kennedy cert petition, I am troubled greatly by arguments suggesting that it is always unconstitutional to make any extreme non-homicide offenses subject to the death penalty. And yet, because the facts surrounding the Kennedy case do not seem extremely aggravating, I am troubled greatly by the fact that Patrick Kennedy is the only person sentenced to death for a non-homicide offense.
Of particular note, Patrick Kennedy has no significant criminal history, he may be mentally retarded, he has "insisted on his innocence," and there does not seem to be any distinctive aggravating factors surrounding his crime. See petition at pp. 4-8. In other words, Patrick Kennedy does not fit the image of a monstrous predator sex offender perhaps deserving of a death sentence. Indeed, anyone considering the distinctive facts of the Kennedy case could readily conclude that it is "cruel and unusual" for Patrick Kennedy to be the only rapist sentenced to death in the modern capital era. Consequently, because the Governor of Louisiana has an obligation to uphold the Constitution, I think the Governor ought to — perhaps even ought to feel obligated to — commute Patrick Kennedy's constitutionally-suspect death sentence.
The irony of Patrick Kennedy being the potential test defendant for the capital child rape issue is evident when one considers the crimes of Ehrlich Anthony Coker, the defendant at the center of the Supreme Court's 1977 decision declaring the death an unconstitutional punishment for the crime of adult rape. As I have suggested elsewhere, Coker would seem to be a poster boy for the death penalty given this description of his life and crimes from Chief Justice Burger's opinion in Coker:
On December 5, 1971, the petitioner, Ehrlich Anthony Coker, raped and then stabbed to death a young woman. Less than eight months later Coker kidnaped and raped a second young woman. After twice raping this 16-year-old victim, he stripped her, severely beat her with a club, and dragged her into a wooded area where he left her for dead. He was apprehended and pleaded guilty to offenses stemming from these incidents. He was sentenced by three separate courts to three life terms, two 20-year terms, and one 8-year term of imprisonment. Each judgment specified that the sentences it imposed were to run consecutively rather than concurrently. Approximately 1-1/2 years later, on September 2, 1974, petitioner escaped from the state prison where he was serving these sentences. He promptly raped another 16-year-old woman in the presence of her husband, abducted her from her home, and threatened her with death and serious bodily harm.
Since the state of Georgia was constitutionally barred from executing Ehrlich Anthony Coker, I have a very hard time seeing how Louisiana's executive officials can feel constitutionally certain about moving forward with the execution of Patrick Kennedy.
UPDATE: A helpful reader sensibly suggested that I highlight that the Kennedy petition stresses the distinctive nature of "person-on-person" violent crime and further explains in a footnote that this particular phrasing "leaves aside 'sui generis' crimes such as treason and espionage, as well as offenses such as air piracy and the federal 'drug kingpin' law that inherently involve a reckless disregard for human life on a large scale."
September 13, 2007
Should Crawford confrontation apply at capital sentencing?
In this recent post, I flagged a number of sentencing-related issues that are or could be coming before the Supreme Court this Term. And, thanks to this post at SCOTUSblog, I see another lively issue related to death sentencing. Here's a snippet from Lyle Denniston's report about a new cert petition:
The petition in Fields v. U.S. (07-6395, download here), filed Sept. 4 by the Capital Punishment Center at the University of Texas Law School, raises five issues, but the Confrontation Clause question is the central one. It asks whether the Supreme Court's 2004 decision in Crawford v. Washington, limiting the use at trial of out-of-court testimony not subjected to cross-examination, has so altered constitutional understanding that it should be extended to sentencing. The dissenting judge in the Fields case, relying upon Crawford and recent developments in criminal sentencing, argued that, when a death sentence depends upon fact-finding, the facts should only be those "tested through confrontation."
Some related posts:
Cleaning up the jail
This little AP story from my home state to too fun to resist a post:
Inmates at the Allen County Jail are scrubbing floors and showers after complaining about sanitary conditions at the facility. Sheriff Dan Beck says he eliminated phone and television privileges for two days in two cell blocks and made inmates start cleaning. Some of the inmates had signed a petition complaining of leaky roofs and toilets, poor air quality and mold in the jail.
Sixth Circuit panel splits over penile penology procedures
Though the defedant's challenge to the possible use of penile plethysmography (PPG) add a prurient element to the case, the Sixth Circuit's split panel decision today in US v. Lee, No. 06-5848 (6th Cir. Sept. 13, 2007) (available here), turns on a number of interesting legal process issues.
In Lee, the majority dismisses as unripe the defendant's challenge to possible PPG as a supervised release conditions, in part because this condition would not be applicable until the defendant finishes his prison term and PPG many not be used when that occurs more than a dozen years from now. Judge Batchelder dissents to argue that the defendant's claim should be dismissed with prejudice because of an appeal waiver.
When saying sorry is not enough
The New York Times and the The Virginian-Pilot have coverage of the dog-loving amici brief urging a stiff sentence filed yesterday in the Vick case (details here). Part of the local coverage has this interesting account of how and why the brief was put together:
Flora Edwards, a New York attorney who is also helping the dog advocates, said the organizations behind the motion coordinated largely through the Internet. Their push for action grew after many of the members felt Vick wasn’t genuinely contrite in his public apology after his guilty plea, Edwards said.
Some related posts on Michael Vick's sentencing:
- Friday forum: what sentence should Vick get if he pleads guilty?
- Michael Vick takes a plea deal
- Mid-week forum: is it fair for Vick also to face state criminal charges?
Coverage of Carrington and Chemerinsky course changes
It is no news that strange things happen in California, but today there is lots of news about surprising changes of course:
- This article in The Recorder, entitled "Ninth Circuit Flips on 'Booker' Retroactivity," discussed the recent panel flip-flop on mandate recalls in Carrington (previously discussed here).
- How Appealing collects here all the news coverage of UC Irvine's decision to undo its hiring of Erwin Chemerinsky as dean of its law school.
September 12, 2007
Major Human Rights Watch report about sex offender sanctions
Thanks to this post at Sex Crimes, I see that Human Rights Watch has released a major new report about sex offender law and policy, entitled "No Easy Answers: Sex Offender Laws in the US." The lengthy and wide-ranging report is available at this link, and here is an excerpt from the summary:
Federal law and the laws of all 50 states now require adults and some juveniles convicted of specified crimes that involve sexual conduct to register with law enforcement — regardless of whether the crimes involved children. So-called “Megan’s Laws” establish public access to registry information, primarily by mandating the creation of online registries that provide a former offender’s criminal history, current photograph, current address, and other information such as place of employment. In many states everyone who is required to register is included on the online registry. A growing number of states and municipalities have also prohibited registered offenders from living within a designated distance (typically 500 to 2,500 feet) of places where children gather — for example, schools, playgrounds, and daycare centers.
Human Rights Watch appreciates the sense of concern and urgency that has prompted these laws. They reflect a deep public yearning for safety in a world that seems increasingly threatening. Every child has the right to live free from violence and sexual abuse. Promoting public safety by holding offenders accountable and by instituting effective crime prevention measures is a core governmental obligation. Unfortunately, our research reveals that sex offender registration, community notification, and residency restriction laws are ill-considered, poorly crafted, and may cause more harm than good:
- The registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk;
- Under community notification laws, anyone anywhere can access online sex offender registries for purposes that may have nothing to do with public safety. Harassment of and violence against registrants have been the predictable result;
- In many cases, residency restrictions have the effect of banishing registrants from entire urban areas and forcing them to live far from their homes and families.
The evidence is overwhelming, as detailed in this report, that these laws cause great harm to the people subject to them. On the other hand, proponents of these laws are not able to point to convincing evidence of public safety gains from them. Even assuming some public safety benefit, however, the laws can be reformed to reduce their adverse effects without compromising that benefit. Registration laws should be narrowed in scope and duration. Publicly accessible online registries should be eliminated, and community notification should be accomplished solely by law enforcement officials. Blanket residency restrictions should be abolished.
An amici sentencing brief going to the dogs
Though the dog-days of summer have come to an end, the dog-days of sentencing are just starting to heat up. Specifically, today I received a copy of a "Brief of Amici Curaie" in US v. Vick, with the friends being a group of "organizations concerned about animal welfare and responsible dog ownership." This brief runs over 30 pages and can be downloaded below.
There are many interesting facets of this brief, including (1) a section purporting to be "a victim impact statement on behalf of the bad newz kennel dogs, (2) a section arguing that the "agreed upon offense level does not adequately reflect the nature of Vick's conduct nor his role in the offense," (3) a calculation indicating that Vick's guideline offense level should be 20 and his sentencing range 33-41 months, (4) a request that amici have a "brief opportunity to be heard at sentencing."
Perhaps most notable is the precise sentencing recommend in this amici brief: that the court impose a 57-month sentence and a $250,000 fine, and order the forfeiture of the property on which the dog-fighting took place, and that Vick has to pay to renovate and convert his property into a "no-kill shelter for abused and neglected dogs."
Some related Vick sentencing posts:
- The nitty-gritty on sentencing in the Michael Vick case
- Who knows what guidelines apply to dog fighting?
- Vick being sacked by the collateral consequences of an indictment
- Friday forum: what sentence should Vick get if he pleads guilty?
- A late afternoon Vick update (with federal guideline musings)
- Michael Vick takes a plea deal
- Mid-week forum: is it fair for Vick also to face state criminal charges?
A big SCOTUS sentencing Term in the works?
The SCOTUS preview season is getting started, and the big Booker reasonableness cases — Gall (index here) and Kimbrough (index here) — to be heard at the start of the Term surely deserve early attention. And hard-core sentencing fans can also look forward to October SCOTUS oral arguments in Watson (QP here) and Logan (basics here), which will examine some technical federal sentencing issues, and in Medellin (QP here) and Danforth (basics here), which will examine interesting criminal justice questions that can impact sentencing outcomes.
Further, a number of other interesting non-capital sentencing issues are floating in the cert pool. For starters, I still have my fingers crossed for the petition I helped put together in Faulks regarding the constitutionality of certain supervised release revocation procedures. And, as detailed here, another notable Apprendi-Blakely issue from Washington is before the Court noting splits over the "prior conviction exception." And, as reported here by SCOTUSblog, the Court also got a recent petition seeking resolution of a circuit split on "the question whether a court of appeals may order an increase in a criminal defendant's sentence sua sponte, absent an appeal or cross-appeal by the Government."
Of course, no Supreme Court Term would be complete without some notable death penalty cases. As indicated here, the constitutionality of the death penalty for child rape may be ripe for SCOTUS review. Also, as Crime & Consequences notes here, some of the state lethal injection litigation has made its way back to the Court in new cert petition. And I am sure there are some other capital cases helping to keep the cert pool full of life-and-death issues.
In addition, I know there are a lot of other cert-worthy issues in or around the cert pool, with topics ranging from acquitted conduct enhancements to Blakely/Booker retroactivity to bible-impacted capital jury deliberations to due process requirements at sentencing. (Readers are encouraged to flag other petitions and issues worth watching.)
Though I am sure that SCOTUS won't address all these matters over the next 9 months, I am already reserving time in my July 2008 calender for putting together a long supplement to my co-authored casebook Sentencing Law and Policy. Moreover, the chaotic world of sentencing jurisprudence highlights that the Supreme Court's could stop the shrinking of its docket by deciding to decided just some of the many important (and often long-festering) sentencing questions they've not resolved in prior terms.
What's a fitting punishment for a cheating NFL team?
I have not done any football posts recently (even while experiencing such schadenfreude over the early season fates of the maize and blue). Consequently, I cannot help but turn a brewing NFL controversy into a sentencing debate.
As detailed in this ESPN report, "NFL commissioner Roger Goodell has determined that the New England Patriots violated league rules Sunday when they videotaped defensive signals by the New York Jets' coaches." And, continues the ESPN report, "Goodell is considering severe sanctions, including the possibility of docking the Patriots 'multiple draft picks' because it is the competitive violation in the wake of a stern warning to all teams since he became commissioner.... The Patriots have been suspected in previous incidents."
Is loss of NFL draft picks a sufficient sanction for what seems like blatant cheating that likely impacted the game play? I suppose this sanction could serve some deterrent purposes, but what about other other theories of punishment. Why not, in service to the goals of retribution and restitution, require the Patriots to forfeit the game (which, I believe, is a common NCAA sanction)? Why not, in service to incapacitation, force the Patriots to play the rest of the season without any technological devices?
And there is one additional question I am pondering: what will this mean for Tom Brady's future performance on my fantasy team?
Tennessee conducts old school execution
Some related posts:
September 11, 2007
When will SCOTUS address the constitutionality of the death penalty for child rape?
At SCOTUSblog, Lyle Denniston has this extended post discussing the filing of a petition for writ of certiorari in Kennedy v. Louisiana. The petition is available at this link, and here is the questions it presents:
1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.
Regular readers know these questions have been widely debated in lower courts and law review pages, Kennedy seems to be the first well-positioned case for the Supreme Court to take up these issue.
In my view, it is inevitable that the Supreme Court will address the constitutionality of capital punishment for child rape before anyone is actually executed for child rape. Still, one might develop a number of interesting Bickelian arguments for why the Justices should consider ducking this issue right now and taking it up only if and when this case goes through state and federal habeas review.
Some related posts:
- Direct test of constitutionality of the death penalty for child rape
- A capital experiment spreading in the state laboratories
- Analysis of capital child rape laws
- Debating death for child rape
- LA Times opposes death penalty for child rape for intriguing reason
- Could there be symbolic and practical value in making repeat child rape a capital offense?
Ninth Circuit panel reverses course on equitable Booker relief
Today, a Ninth Circuit panel in Carrington v. US, No. 05-36144 (9th Cir. Sept. 11, 2007) (available here) decided to change course on allowing certain defendants to get resentenced after Booker through the recalling of prior mandates. Specifically, it appears that since this prior opinion in the case, one panel member (Judge Noonan) changed his mind/vote, and here is how he starts his separate opinion in the new disposition:
Resolution of this appeal turns on how the constitution is conceived to be. For some, the constitution is an unchanging document, speaking now as it did in 1789 except for such amendments as have been duly added to it. The paper and ink of the old document have not altered; neither has its meaning. Stability is the bedrock of our government of laws.
In the same interesting vein, Judge Noonan closes his opinion with this interesting response to Judge Pregerson's dissent:
The strength of Judge Pregerson’s position must be acknowledged. It is humane, and humaneness is a necessary quality in humans who are judges. The panel has the power to do what he asks. The panel does not have the authority.
Because I was a fan of the original Carrington opinion (as detailed here and here and here), I am not too pleased to see this panel do a 180 on this fascinating Booker issue. (Also, I have to like Judge Pregerson's dissent because it cites this blog in a footnote.) For lots of (needed) background and good commentary on these matters, check out these prior posts and their comments:
- What wrong with equitable Booker retroactivity in the Ninth Circuit?
- Distinguishing finality interests between convictions and sentences
- More Kerr on Carrington and mandate recall discretion
Notable Rita reversal from the Seventh Circuit
Through a relatively short opinion in US v. Ross, No. 07-1215 (7th Cir. Sept. 11, 2007) (available here), the Seventh Circuit covers a lot of notable post-Rita ground. The first paragraph of the opinion highlights the main issues in Ross:
William Ross challenges his 78-month sentence for his role in a conspiracy to possess and distribute cocaine and marijuana. Because it appears from the record that the district court improperly applied a presumption of reasonableness for a within-guidelines sentence, we vacate the sentence and remand for resentencing.
USSC official statement of priorities
The US Sentencing Commission has now officially "identified its policy priorities for the upcoming amendment cycle." These priorities can be accessed at this link, and here are a few highlights:
[T]he Commission has identified the following priorities:...
(2) Continuation of its work with Congress and other interested parties on cocaine sentencing policy to implement the recommendations set forth in the Commission’s 2002 and 2007 reports to Congress, both entitled Cocaine and Federal Sentencing Policy, and to develop appropriate guideline amendments in response to any related legislation;
(3) Continuation of its work with the congressional, executive, and judicial branches of the government and other interested parties on appropriate responses to United States v. Booker and United States v. Rita, including any appropriate amendments to the guidelines or other changes to the Guidelines Manual with respect to those decisions and other cases that may be adjudicated during this amendment cycle, as well as continuation of its monitoring and analysis of post-Booker federal sentencing practices, data, case law, and other feedback, including reasons for departures and variances stated by sentencing courts;...
(9) Preparation and dissemination, pursuant to the Commission’s authority under 28 U.S.C. § 995(a)(12)-(16), of research reports on various aspects of federal sentencing policy and practice, such as updating the Commission’s 1991 report to Congress entitled Mandatory Minimum Penalties in the Federal Criminal Justice System and studying alternatives to incarceration, including information on and possible development of any guideline amendments that might be appropriate in response to any research reports.
Editorial calls for a California sentencing commission
This morning's San Jose Mercury News has this editorial, entitled "Time running out on prison reform," discussing California's continued struggles with systematic sentencing and corrections reform efforts. Here are snippets:
California has one last stab at legislation that could avert a court takeover of the state's prison system. But time is running out. A bill to create a sentencing commission must be passed this week. The commission would make sense of the crazy quilt of sentencing laws that helped cause the prison overcrowding that lawsuits now are forcing the state to alleviate.
A panel of three federal judges is considering whether to intervene further. They'd likely view a failure to pass a bill as another sign that the governor and Legislature simply aren't up to the task of reform. A commission has worked well in other states to establish uniform and even-handed sentences....
It's one thing to be tough on violent criminals. But California has been cramming prisons with drug offenders and minor parole violators, while providing neither space nor money for job training and drug rehab. It can't claim its current sentencing and parole laws are working; the state has the nation's highest recidivism rate.
A sentencing commission would include judges, prosecutors, public defenders, victims' advocates, legal scholars, sheriffs and mental health experts. It would set sentencing priorities, in part by studying what has worked elsewhere.
Sentence of two dozen years in terror case
A high-profile terror sentencing took place yesterday in California. This Sacramento Bee article provides these details:
Hamid Hayat, a 25-year-old cherry packer from Lodi with a seventh-grade education, was sentenced Monday in Sacramento federal court to 24 years in prison for providing material support to terrorists and making false statements to hide his conduct.
On April 25, 2006, a jury found Hayat, who was born in Stockton but has lived nearly half his life with relatives in Pakistan, guilty of undergoing terrorist training in Pakistan and returning to Lodi prepared to wage violent jihad -- or holy war -- against fellow U.S. citizens. He also was found guilty of lying to conceal the training and his terrorist intent when initially questioned by FBI agents....
The prison term is 11 years less than the 35 sought by the government and recommended by a probation officer. On the other hand, it is nine years more than the defense's request for 15, the statutory maximum for the material-support count.
September 10, 2007
Back-to-school musings: teaching sentencing
A few years ago when guest-blogging at PrawfsBlawg, I suggested here that sentencing law and policy is badly "under-taught" in law school. I contended (and still believe) that a sentencing course should become a modern staple in the upper-level law school curriculum. Two years later, I sense that a (slowly) growing number of schools are offering a sentencing course, but such a course is still a curricular exception rather than the rule. (Of course, my pitch for more sentencing instruction is biased for many reasons, including the fact that I have recently wrapped up work on the second edition of my co-authored casebook entitled Sentencing Law and Policy.)
Against this backdrop, I was intrigued to see Larry Kramer, Dean of the Stanford Law School, make a strong pitch for moving the law school calender away semesters to quarters to "increase the number of course opportunities by 50%." (Dean Kramer's comments and related musings are noted in this post at Law School Innovation.) I suspect that if more law schools moved to a quarter system, there would be more opportunities for the development of sentencing courses and other courses that are not yet, but should be, part of a standard law school curriculum.
Other posts in this series: