September 10, 2007
Another big circuit discussion of Bible-influenced capital sentencing
Addressing en banc an issue that arises frequently in lower courts, the Ninth Circuit today upheld a death sentence in Fields v. Brown, No. 00-99005 (9th Cir. Sept. 10, 2007) (available here), despite the jury's consideration of biblical passages while deciding upon the defendant's penalty. The length opinions in Fields all make for interesting reading, but you will need almost 100 pages in your printer if you want a hard-copy of the Ninth Circuit's en banc work.
As detailed in posts linked below, lower courts have split over the consequences of juror consideration of biblical passages during the penalty phase of a capital trial. It will thus be interesting to see if Fields might get Supreme Court attention. If it does, the defendant might set a modern record for the length of capital appeals: his death sentence was imposed in 1979 and thus his appeals have occupied state and federal courts now for 28 years.
Some related prior posts:
Lots of sentencing due process talk from the Third Circuit
The Third Circuit today issued two lengthy sentencing opinions discussing two different aspects of post-Booker sentencing procedures. Both US v. Ausburn, No. 06-2250 (3d Cir. Sept. 10, 2007) (available here) and US v. Fisher, No. 06-2250 (3d Cir. Sept. 10, 2007) (available here), merit a close read and further discussion, but I won't be able to provide anymore on these notable rulings until after I teach this afternoon. However, a quick scan suggests that fans of due process won't be too excited about these rulings.
Strong commentary on acquitted conduct sentencing
Harlan J. Protass, who runs the terrific Second Circuit Sentencing Blog, has this new commentary in the National Law Journal, entitled "Not guilty? Go to jail." The commentary attacks acquitted conduct sentencing enhancements and focuses on the Seventh Circuit troublesome decision last month in US v. Hurn (discussed here). Here are snippets from the commentary:
In his novel The Trial, Franz Kafka describes a totalitarian state with a repressive judicial system. One technique of this repression is provisional acquittals — the practice of clearing the accused and lifting the charges from their "shoulders for the time being," only to lay the charges on them again "as soon as an order comes from on high." This is the way Mark Hurn must feel....
Hurn was charged and tried by a jury on charges of possession with intent to distribute both cocaine and crack. He was found guilty on the cocaine charge, and not guilty on the crack charge. He was sentenced to 17.5 years in prison. If Hurn's sentence had been based solely on his cocaine conviction, he would have received jail time of about 2.5 years. It wasn't. Instead, Hurn's lengthy sentence — almost seven times what he faced for his cocaine conviction — was based on the crack offense of which he was found not guilty....
Acquitted conduct sentencing ... goes against virtually everything we know and respect about the American criminal justice system. We understand that the government cannot lock people up unless and until guilt has been proven to a jury beyond a reasonable doubt. We also understand that the American criminal justice system would rather free a guilty person than imprison an innocent one. Sentences based on acquitted conduct erode these principles and, with them, our respect for the law....
We've been taught from a young age that juries are the bedrock of the judicial system, and that we should take pride in the system's inherent fairness. But acquitted conduct sentencing effectively nullifies jury verdicts and allows judges to usurp the jury's fact-finding role — no need for juries at all if a sentence can be based on conduct of which a defendant was found not guilty. This upsets the delicate balance that the founding fathers struck when framing the U.S. Constitution. As Alexander Hamilton put it, "arbitrary punishments upon arbitrary convictions" are the "great engines of judicial despotism."...
Mark Hurn is no boy scout. He's a drug dealer. But the government failed to prove beyond a reasonable doubt that he was dealing crack. Nevertheless, Hurn is serving time as if the government had — 17.5 years, to be precise. That's a long time. He'll likely spend much of his time wondering how he got there. The American public and lawmakers should spend some of that time asking the same question.
A few related posts on acquitted conduct sentencing enhancements:
Another split reasonableness ruling from the Sixth Circuit
Another work week means another week of circuits working on exactly what reasonableness review means. Today, in US v. Hairston, No. 06-4072 (6th Cir. Sept. 10, 2007) (available here), the Sixth Circuit splits when judging the substantive reasonableness of a below-guideline sentence in a low-level crack case. The majority (per Judge Martin) rejects the government's assertion that the imposition of a 60-month mandatory minimum was substantively unreasonable, whereas Judge Batchelder dissents on this point. Judge Batchelder's dissent concludes with this notable flourish:
If Mother Teresa sold 5 grams of crack then she could not possibly get less prison time than the majority opinion approves for Hairston. There are clearly “more worthy defendants” than Hairston. Therefore, Hairston’s sentence is not substantively reasonable.
Given that Mother Teresa died long ago, I doubt that news coverage of the discovery that she is now selling small amounts of crack would focus on her minimum possible federal sentence. Nevertheless, I suppose Mother Teresa would be flattered that she is still in the minds of federal judges as they consider drug sentences even a full decade after she passed away.
The ironic purge of prison religious readings
When a group of 18th century progressives imagined alternatives to capital and corporeal punishment, they "proposed a radical idea: to build a true penitentiary, a prison designed to create genuine regret and penitence in the criminal's heart." They built a prison in which in a "vaulted, skylit cell, the prisoner had only the light from heaven, the word of God (the Bible) and honest work (shoemaking, weaving, and the like) to lead to penitence." (Quotes from this history of the historic Eastern State Penitentiary.)
Knowing that the Bible was originally to be the only reading allowed prisoners, it is thus sadly ironic to see this story in today's New York Times, entitled "Prisons Purging Books on Faith From Library." Here is how the piece begins:
Behind the walls of federal prisons nationwide, chaplains have been quietly carrying out a systematic purge of religious books and materials that were once available to prisoners in chapel libraries. The chaplains were directed by the Bureau of Prisons to clear the shelves of any books, tapes, CDs and videos that are not on a list of approved resources. In some prisons, the chaplains have recently dismantled libraries that had thousands of texts collected over decades, bought by the prisons, or donated by churches and religious groups.
September 9, 2007
Lots of capital news and notes
There are lots and lots of new and different posts on a wide array of death penalty topics at some of my favorite DP blogs:
Also, Crime & Consequences has this long post on the always interesting topic of doctor involvement in executions. And, the New York Times has this interesting piece on a condemned killer's in Tennessee choosing the electric chair over lethal injection.
UPDATE: How Appealing details via links here that New York's highest court starts the week with a death penalty case. Also, check out the PBS show Expose, in which after "an extraordinary four-year investigation, McClatchy Supreme Court beat-reporter Stephen Henderson finds that defense lawyers in four states are failing [to provide a vigorous defense of murder defendants]; as a result their clients — even those who have suffered lifetimes of abuse and/or have IQs suggesting mental retardation — are heading to death row."
Another strong editorial on correction costs
This morning's Detroit Free Press has another effective editorial, entitled "Stop the state prison drain: Sentencing, parole reforms are key to getting state Corrections costs in line." This latest editorial hits similar themes as this earlier one on the costs to Michigan of ever-increasing incarceration rates. Here is how it starts:
Michigan's super-sized prison system has put the state on financial lockdown. The Department of Corrections is largely responsible for the state's ongoing budget crisis and the nearly $2-billion shortfall it faces for the next fiscal year. Michigan taxpayers spend $1.9 billion a year -- $5 million a day -- to lock up more than 50,000 prisoners. That's more than it spends on higher education. Today, one of three state civil service employees works for Corrections; in 1980, one in 20 did.
Most troubling, Michigan incarcerates at an average rate of 40% higher than the seven other Great Lakes states, which also report lower crime rates. Michigan's higher incarceration rates take an extra $500 million a year from the state's depleted general fund. It's money that could be better used for education, health care, roads or even a tax cut.
Some recent related posts on sentencing costs, politics and increased incarceration:
Ernon appeal in the news
As detailed in this Houston Chronicle article, entitled "Enron's Skilling asks court to throw out all his convictions," the highest profile white-collar conviction is back in the news. The WSJ Law Blog has more here on the looong opening appeal brief filed by Jeff Skilling's lawyers. The sentencing arguments made to the Fifth Circuit start on page 206 of the 239-page brief.
I expect that it will take a while for the Government to respond, and thus it seem unlikely that oral argument will take place before 2008 and it surely could be a full year or more before Skilling's appellate claims are adjudicated. Because he lost his plea for bail pending appeal, Skilling is serving time in prison while his arguments on appeal work their way through the courts.