September 29, 2007
Could prison nation be approaching a tipping point?
This lengthy Los Angeles Times article spotlights the growing consensus that "the federal sentencing system is badly out of whack." The article notes that the Supreme Court's expected work in Gall and Kimbrough, as well as the US Sentencing Commission's proposed new crack guidelines, together can be viewed as a "move to lower the prison terms for drug crimes." Meanwhile, a leading presidential candidate is talking seriously about sentencing reform (details here and here) and a leading federal judges is talking about the need to check prosecutorial power (details here).
Because crime politics still seem caustic for progressive sentencing reform, I am not confident that these encouraging developments will produce a ready reverse of two decades of super-tough sentencing policies. Still, as this strong Boston Globe commentary highlights, even some unexpected politicians are starting to appreciate the societal impact of all our harsh rhetoric and policies:
In national politics, concern about the people who actually go to prison has been drowned out by tough-on-crime rhetoric, but today the issue is getting a hearing from some politicians, and not just hard-left liberals. On Oct. 4, Congress's Joint Economic Committee will hear testimony from [sociologists Bruce] Western, [Glenn] Loury, and others on the economic and social costs of the prison boom. The session will be chaired by Jim Webb, the gruff, moderate Democratic Senator from Virginia. Cities including Boston and San Francisco are changing their hiring practices to destigmatize prisoners, and there is detectable momentum in Congress toward reducing the extraordinarily harsh minimum sentences for possession of crack cocaine, which disproportionately affect poor black Americans.
Especially in the modern desert of sentencing policies, just an oasis of hope is very refreshing.
Some recent related posts:
Everyone trying to figure out if there is now an execution moratorium
Not surprisingly, the media is as unsure as I am about whether Supreme Court's blocking of a Texas lethal injection Thursday (details here) means the Justices will prevent all lethal injection executions while the Baze case is pending. (Notably, in this Jurist forum piece, Alison Nathan suggests that Baze should lead to a "Pausing the Machinery of Death.") Consider these dueling headlines from major media coverage:
- From the Dallas Morning News we get "Irving killer's reprieve may slow executions nationwide: But legal experts don't expect moratorium as lethal injection reviewed."
- From the Houston Chronicle we get "Texas executions probably on hold until next year: State awaits High Court ruling on lethal injection"
- From the New York Times we get "Texas Planning New Execution Despite Ruling"
- From Reuters we get ""U.S. executions seen on hold as method challenged"
I am grateful to the NYTimes for citing this post speculating that we will see few if any executions over the next 9 to 18 months.
Also, with one reporter, I suggested that the broadest impact from the Baze case may be the creation of a "molasses moment" in the administration of the death penalty throughout the United States. In addition to stalling executions, the Baze case might lead prosecutors and judges nationwide to stop spending less time on capital cases and more time on other matters.
Some recent related posts:
- SCOTUS to review lethal injection protocols with Kentucky case
- What will be the ripples of Baze in the states?
- Top-notch Baze-ian analysis
- SCOTUS stops Texas execution: is a national Baze moratorium now a given?
- The impact of Baze in Alabama and Delaware
- A Texas companion? A lenghty de facto moratorium? What the Baze f@%$, SCOTUS?
Media coverage of Obama sentencing speech
As noted here, yesterday Barack Obama gave a speech at Howard University which discussed serious sentencing reform. The speech appears to have received significant media coverage, as evidenced by article from the AP and the Chicago Tribune. I do not know how this will play politically, but it is refreshing to hear a major politician talking about sensible sentencing reforms. That said, it would be nice to see Obama back up this campaign talk with some work on these issues in the Senate.
Some related posts:
September 28, 2007
"Crack Sentencing Is Wack"
The title of this post is the title of this new Slate commentary by Harlan Protess. Here are some snippets:
In 1986, artist Keith Haring painted a mural called Crack Is Wack on the wall of a handball court in Manhattan. Its message sums up the attitude of the late 1980s, when Congress was driven to pass new laws punishing crack offenses much more harshly than crimes involving powder cocaine. For most of the time since, judges, academics, defense lawyers, and the U.S. Sentencing Commission (the expert agency charged by Congress with establishing fair federal sentencing guidelines) have condemned crack penalties as unfair and unfounded. Lawmakers, however, have obstinately refused to change them.
And yet, thanks to science, common sense, and the Supreme Court, the vast disparity between crack and powder sentencing is poised to end, or at least change.... On Tuesday, in Kimbrough v. United States, the Supreme Court will hear a challenge to the 1980s sentencing laws and the power of judges to disregard the 100-to-1 ratio so that they can give crack defendants lower sentences. As Tom Goldstein argues here for Slate, the same majority that prevailed in Booker is likely to give sentencing judges the authority to mete out these reduced sentences. They still won't be able to go below the mandatory minimums, but above that, they will be able to hand out prison terms shorter than those called for by the 100-to-1 ratio.
A Texas companion? A lengthy de facto moratorium? What the Baze f@%$, SCOTUS?
Along with many others, I am trying to figure out just what to make of the Supreme Court's decision to block Texas's effort to go forward with a lethal injection execution last night (details here). The decision suggests (but hardly ensures) the Justices will decided to block all lethal injection executions while the Baze case is pending.
As I think this through, this one not-quite-random thought came to mind: perhaps the Justices are now thinking about taking a Texas lethal injection case to hear and adjudicate along with Baze? After all, as these DPIC stats highlight, Texas is the only state still regularly using the death penalty and nearly 70% of all lethal injections in 2007 have taken place in Texas. If any particular state's execution protocol is to be rigorously examined by the Supreme Court, it really ought to be the protocol being used in Texas.
Even though it likely would be a good idea for SCOTUS to take a Texas companion case, a clear and cogent opinion in just the Kentucky case ought to provide sufficient guidance for Texas and other states eager to continue lethal injection execution. However, I am not that all confident that we will get a clear and cogent opinion in Baze (since we didn't in the Hill precursor case). Moreover, it seems all but certain that there will be (chaotic?) lower court litigation after Baze no matter what the Justices decide.
Looking at the calender, then, I think there is now a real possibility of very few (if any) executions in the United States for the next 9 to 18 months. With or without a companion case, the Justices seem unlikely to resolve Baze until at least March or April. And, if there is strong division within the Court, the Baze opinion might not come until late June. And, with a divided opinion, lower court litigation over Baze's impact might take at least another few months even in states like Texas eager to get back to their capital business.
What a mess. Nearly 18 months ago in this post, I described all the lethal injection litigation "a national disgrace" undermining the interests of federalism and sentencing consistency and orderly government. Then (and in this subsequent article), I urged Congress to step in because it seems that the Court is poorly positioned to handle these issues effectively and efficiently. (Of course, I have little confidence Congress would handle this issue well, but at least it should try since its approval rating cannot get much lower.)
UPDATE: This new AP piece includes this assessment from an informed observer:
"I think we're headed toward a moratorium, at least until the Supreme Court resolves the Kentucky case," University of Texas law professor Jordan Steiker said Friday. "I think now the course seems relatively clear that we are likely to have moratorium on executions for at least nine months, probably a year, until the court issues an opinion and provides definitive guidance."
Intriguing article on fishy criminal registries
Thanks to an SSRN e-mail, I see an interesting looking piece about criminal registries for reading this weekend (when I am not busy rooting for a four-way tie in the National League). The article by Ofer Raban is entitled "Be They Fish or Not Fish: The Fishy Registration of Nonsexual Offenders" and is available at this link. Here is the abstract:
The article deals with a bizarre but common phenomenon: the registration of nonsexual criminals in sex offender registries. The practice has been challenged in a number of cases, but there is much disagreement among courts — often within the same jurisdiction — on its constitutionality, and on the analysis it entails. The issue has recently picked-up steam — reaching some state Supreme Courts (Florida's and Illinois'), and appearing in the popular news media. The article offers a comprehensive analysis of the Substantive Due Process issues involved, showing why registering nonsexual criminal in sex offender registries is a violation of the federal Constitution (both on the part of the States and on the part of the federal government). It also shows that the registration of nonsexual criminals in sex offender registries is a first-rate case-study for negligent policy-making (supported by faulty data), which frequently received a stamp of approval from an often-poor judicial reasoning, itself supported by an impoverished constitutional jurisprudence.
Obama talking about serious sentencing reform
As detailed in a number of posts below, I have been wondering about when some of the presidential candidates would start talking seriously about sentencing reform. According to this press release, which is entitled "Obama Outlines Plan to Address Disparities in America's Justice System," today is the day for Barack Obama.
Obama is giving a speech at Howard University, and the press release details these notable feature's of Obama's plan for "ensuring that every citizen is afforded equal and fair justice under the law":
- "He will ensure that we have crime policy that is both tough and smart. This means if you are convicted of a crime involving drugs, you will be punished. However, the punishment for crack cocaine should not be that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them."
- "He will review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders. And he will give first-time, non-violent drug offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior."
With last week's Jena 6 march and next week's SCOTUS argument in Kimbrough, the timing for this speech seems just right. It will be especially interesting to see what sort of national reception it gets and whether these issues have any long-term traction.
UPDATE: A lengthy 7-page official document from the Obama campaign covering a range of equal justice issues can be accessed at this link.
September 28, 2007 in Campaign 2008 and sentencing issues, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (36) | TrackBack
How can extreme prosecutorial power be checked?
Thanks to this post at the WSJ Law Blog, I see that Judge Lewis Kaplan is talking about the need to check prosecutorial power in corporate crime investigations. This Wall Street Journal article provides these details:
The federal judge in the case involving allegedly fraudulent tax shelters marketed by KPMG LLP said it may be time to re-examine laws governing corporate criminal liability and the tactics used by prosecutors to investigate those cases.
US District Judge Lewis A. Kaplan, speaking at a National Association of Criminal Defense Lawyers seminar, said the KPMG case and others, such as the government's prosecution of Adelphia Communications Corp. executives, raise questions about the government's practice of using the threat of criminal prosecution of companies in order to gain leverage in investigations of alleged wrongdoing by company employees.
He said the laws appear to give expansive power to prosecutors, lessening the oversight of courts and juries, at the expense of the constitutional rights of those accused. "I question whether placing virtually unchecked power in the hands of any branch of government" is the right thing, Judge Kaplan said.
Of course, as many know — especially those in places like Durham and Jena or those involved in cases like the border agents and Genarlow Wilson — issues of extreme prosecutorial power and the potential for abuse are not confined to corporate settings. Especially now that prosecutors can often credibly threaten decades in prison even for first offenders if they risk going to trial (and then can get sentence enhancements even for acquitted conduct), the potency of prosecutorial threats cannot be overstated.
Indeed, I became of fan of Apprendi and Blakely in part because I was hopeful the Supreme Court was coming to appreciate the dire need for new constitutional doctrines to check extreme prosecutorial power. Unfortunately, as the Booker remedy and many lower court rulings after Booker highlight, it is very hard to convince judges just how important it is to expand constitutional doctrines and procedural rights to restore balance in the operation of the modern criminal justice system.
In short, I strongly believe greater checks on prosecutorial power are desperately needed. But I am quite unsure how to effectively engineer and sustain greater checks on prosecutorial power, especially in our persistent tough-on-crime political climate.
Any good ideas, dear readers?
SCOTUS stops Texas execution: is a national Baze moratorium now a given?
As detailed in this AP article from Texas, late last night the "U.S. Supreme Court stopped an execution in the nation's busiest death penalty state after deciding earlier this week to review lethal injection procedures elsewhere." Here are more details:
The high court, which refused a similar appeal this week from another Texas inmate who wound up being put to death, blocked Texas corrections officials Thursday evening from executing Carlton Turner Jr. Last-day appeals linked his case with an appeal from two Kentucky inmates who argued lethal injection is unconstitutionally cruel.
The justices Tuesday agreed to consider the Kentucky appeal and Turner's case was viewed as a barometer of whether capital punishment in Texas could be placed on hold while the Supreme Court considered that case. Both states use similar injection procedures employing three drugs — a sedative, a muscle paralyzing drug and a drug that induces cardiac arrest.
"All I can say is: All glory to God," Turner said when he was told by prison officials of the reprieve that kept him from becoming the 27th Texas inmate executed this year. He had spent much of the day Thursday in a small holding cell a few feet from the death chamber. After the reprieve was issued — about four hours after he could have been put to death and about two hours before his execution warrant would have expired — Turner was returned to death row at a prison about 45 miles to the east.
The Supreme Court reprieve was only one paragraph and gave no reasons for the decision.... Another execution is scheduled for next week, one of at least three more set for this year in Texas. The status of that case was uncertain in light of Thursday's developments, although it would appear lawyers in that case could file a similar appeal.
September 27, 2007
The impact of Baze in Alabama and Delaware
In this post yesterday, I pondered "What will be the ripples of Baze in the states?". As detailed in this report from Reuters, today we see how the death penalty pond has been disrupted in Alabama by the Baze stone:
Hours before an inmate's scheduled execution, Alabama's governor issued a temporary stay on Thursday so the state could review its method of lethal injection. Gov. Bob Riley said Thomas Arthur, a convicted murderer, would be executed after the 45-day stay expires. Arthur, 65, was scheduled to be executed at Alabama's Holman prison at 6 p.m. "The decision to grant a brief stay is being made only because the state is changing its lethal injection protocol, and this will allow sufficient time for the Department of Corrections to make that change," Riley said in a statement.
Meanwhile, as this local story details, the news from Delaware about Baze's impact is less dramatic, but still consequential:
The class-action federal lawsuit on behalf of Delaware's death row inmates alleging that the state's use of lethal injection is unconstitutionally cruel and unusual has been put on hold. The case had been set to go to trial before District Judge Sue L. Robinson in U.S. District Court on Oct. 9.
In her order delaying the case indefinitely, Robinson cited the fact that the U.S. Supreme Court is now set to take up a nearly identical challenge by two death row inmates in Kentucky.
UPDATE: And the latest news from Texas suggests that the state is still planning to go on with its lethal injection execution tonight.
New NJ report on state sentencing
This afternoon I received an e-mail reporting the release of a new report from New Jersey (which can be downloaded below). Here are the basics from the e-mail:
The New Jersey Commission to Review Criminal Sentencing today issued the first comprehensive and independent examination of legislative changes relevant to sentencing of adult criminal offenders since the enactment of the Code of Criminal Justice in 1979.
Specifically, the report explains the sentencing system established by Legislature in 1979 as part of the then-newly enacted Code. In addition, the report discusses how subsequent and numerous statutory changes to the Code during the intervening 28 years have fundamentally altered that scheme in terms of both the amount of punishment authorized and the process by which sentences are imposed.
A favorite footnote from my Rita reflections
As noted here, the Denver University Law Review allowed me to contribute my thoughts about the Supreme Court's work in Rita v. United States in its special speedy issue on Rita. My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change" and available at this link, covers lots of ground and cannot be readily summarize here. But I cannot help but flag my favorite substantive footnote from the piece, which spots a bit of a head-scracther from Justice Scalia's Rita concurence.
Justice Scalia’s opinion in Rita seems to suggest that a within-guidelines sentence depending too much on judicially found facts would trigger “as-applied” Sixth Amendment concerns even within an advisory guideline scheme. B ut Justice Scalia’s opinion for the Court in Blakely argued for a “bright-line” approach to what types of judicial fact-finding violates the Sixth Amendment because of the “need to give intelligible content to the right of jury trial.” Blakely v. Washington, 542 U.S. 296, 305-08 (2004). It is ironic and surprising that Justice Scalia in Rita now seems to be advocating a vague, judicial-administered, not-yet-very-intelligible standard for applying the Sixth Amendment in the context of advisory guideline systems.
Second Circuit calls out district judge for sloppy sentencing work
Whenever I am struggling to figure out why some circuit courts are so critical of the sentencing work of district judges, I try to recall that at least a few district judges merit criticism for their sentencing efforts. Today's decision by the Second Circuit in US v. Benjamin, No. 05-3677 (2d Cir. Sept. 27, 2007) (available here), highlights how a few bad apples can make the entire district court bunch look bad. Though all of Benjamin must be read for context, here is the telling final substantive paragraph:
This is, therefore, the third case in two years in which Judge Elfvin failed in the initial sentencing proceeding to comply with the requirements of notice and explanation for the imposition of a non-Guidelines sentence and then, on remand, failed to follow a direction of this court to comply with those requirements. This pattern of behavior is disturbing evidence of willfulness. The need to remove Judge Elfvin from this case being self-evident, we order reassignment to a different judge.
UPDATE: As a commentor notes, this story from New York Law Journal has more details about this Benjamin decision. Here is one interesting tid-bit from the story:
[Neal Benjamin's attorney, John] Lavin, who has been working on the case for 10 years, said Thursday he was disappointed by the ruling but not surprised. "Judge Elfvin has on a couple of occasions been his own boss and I believe the 2nd Circuit doesn't want him to be that," Lavin said. "He's a maverick judge and I mean that with the best intentions."
Top-notch Baze-ian analysis
Over at FindLaw Edward Lazarus has this terrific essay discussing Baze, the SCOTUS lethal injection case taken up this week. The piece cover a lot of ground in a short space, and here is one of many effective passages:
It is hard to imagine a case more perfectly suited to capture the jurisprudential dilemma that has consumed and divided our legal culture for the last thirty years — namely, the tension between interpreting our Constitution in a way that is responsive to the nation's history and experience, and making the interpretive process a free-for-all in which unelected and generally unaccountable judges impose on the Constitution their own personal political and moral beliefs.
This dilemma arises in significant part because some of the Constitution's key phrases (like "due process") are inherently amorphous. The lethal injection case raises a classic example, for it will turn on an interpretation of one of the Constitution's less pellucid phrases - the prohibition on "cruel and unusual" punishments. There is no self-evident benchmark for what is too cruel or too unusual. Rather, deciding what punishments are "cruel" or "unusual" seems to cry out for some sort of subjective judgment — a search for standards and benchmarks that will never be completely value-neutral.
But if defining "cruel and unusual" necessarily calls for some inherently subjective assessment, what limits are there on judicial discretion in creating a constitutional definition? Surely, the constitutional definition of "cruel and unusual punishment" should have a more objective meaning than simply whatever at any given moment a majority of Supreme Court justices think the term should mean, based on their own various senses of individual morality.
Some recent related Baze posts:
Kimbrough case bringing attention to crack sentencing
Among many virtues of SCOTUS attention to post-Booker issues is the spotlight it can bring on particularly ugly features of the federal sentencing system. This is most apparently, of course, in the context of the Kimbrough case's focus on crack cocaine sentencing realities. And today there are notable pieces in two major newspapers:
- The Houston Chronicle has this effective article entitled "Sentencing disparity for cocaine under attack"
- The Philadelphia Inquirer has this potent commentary from Marc Mauer entitled "The selective and unfair penalty for crack"
Especially in the wake of the Jena 6 march last week, I am hopeful (but not optimistic) that the attention Kimbrough generates could possibly bring the crack/powder discussion back into congressional view.
More reasonable reasonableness work from the Sixth Circuit
Though perhaps still a bit too guideline-centric for my taste, the Sixth Circuit's reasonableness work today in US v. Brogdon, No. 06-5548 (6th Cir. Sept. 27, 2007) (available here) seems pretty reasonable. Here is how the opinion begins:
Defendant-Appellant Jonathan Gregory Brogdon appeals the sentence and sex-offense-related conditions of supervised release imposed by the district court. Because the sentence is procedurally and substantively reasonable and because the conditions of supervised release are reasonably related to the rehabilitation of the defendant and the protection of the public, we affirm.
Strong AJC series about the realities of Georgia's death penalty
The Atlanta Journal-Constitution has just completed a very strong series of articles on the operation of the death penalty in Georgia. Here are the four lead articles from the series:
- Death still arbitrary
- A death case derailed
- Prosecutors divided on armed-robbery murders
- Court botched reviews
These main pieces and the many companion features are must-reads for any serious student of the administration of capital punishment. A key theme of the series is the arbitrariness of the Georgia death penalty in operation, as evidenced by these data:
- Of Georgia's 132 most heinous murderers over a recent 10-year span, only 29 of them landed on death row.
- Fifty of the worst killers avoided death by pleading guilty. Some got life sentences and will be eligible for parole.
- A killer's chances of facing the death penalty increased when the victim was white.
Is prison population growth slowing down?
As detailed here, earlier this year The Pew Charitable Trusts released a big report entitled forecasting that prison populations will continue to grow sharply over the next few years. However, this new Washington Post article suggests that prison growth has slowed considerably this decade. The article, entitled "Influx of U.S. Inmates Slowing, Census Says: Number Incarcerated Still a Record High; Sentencing in '90s Cited as Factor," starts this way:
After two decades of massive growth, the U.S. prison population began to level off in the first six years of this century, according to 2006 census statistics released today. At nearly 2.1 million, the number of adults in correctional institutions remains at an all-time high. Still, that figure represents a 4 percent rise since 2000 -- nowhere near the 77 percent spike in the prison population from 1990 to 2000.
September 26, 2007
Read all about Rita (and get ready for Gall and Kimbrough)
I am pleased to see that the Denver University Law Review now has all the papers in its special symposium on Rita now available at this link. A list of the titles and contributors shows why anyone interested in federal sentencing after Booker has to cruise over and check out all the paper in the symposium:
- Rerouted on the Way to Apprendi-land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction
- Rita, Reasoned Sentencing, and Resistance to Change
Douglas A. Berman
- Empirical Questions and Evidence in Rita v. United States
Paul J. Hofer
- Rita, District Court Discretion, and Fairness in Federal Sentencing
Hon. Lynn Adelman & Jon Deitrich
- Rita Needs Gall—How to Make the Guidelines Advisory
Hon. Nancy Gertner
- An Appellate Perspective On Federal Sentencing After Booker and Rita
Hon. Jeffrey S. Sutton
What will be the ripples of Baze in the states?
Today brings more than a few good media reviews of the Baze lethal injection cert grant and what it might mean for the death penalty throughout the United States. For example, BBC News has this extended piece entitled "US lethal injection: end of the line?" and Stateline.org has this strong piece entitled "Lethal injection goes on trial, but goes on." Also of interest are local pieces, such as articles in papers from Arizona and Maryland and Ohio and Washington, exploring what the Baze case might mean for on-going lethal injection debates in their back yards.
Few should be too surprised that Texas was able to go forward with an execution last night (basics here), especially because the defendant executed by Texas apparently had not previously brought a lethal injection challenge. But, as this local story details, Alabama has an execution scheduled for tomorrow night. And, as detailed here, the next few weeks also includes serious executions dates in Arkansas and Virginia.
It is a certainty that defense attorneys will seek stays based on the Baze cert grant. Whether these stays will be granted (and by whom) is the story to watch over the next month or so.
UPDATE: Howard Bashman has a nice round-up here of media coverage of the Baze cert grant, including links to a number of local articles examining the possible local impact of the case.
Michael Vick provides good example of what not to do while awaiting sentencing
As detailed in this AP story, Michael Vick is in the news again and not in a good way. Here are the basics:
A federal judge placed tighter restrictions on Michael Vick on Wednesday after he tested positive for marijuana. Because of the result, U.S. District Judge Henry Hudson placed special conditions on Vick's release, including restricting him to his home between 10 p.m. and 6 a.m. and ordering him to submit to random drug testing.... The home confinement will include electronic monitoring. Vick also was ordered to submit to random drug testing.
On Tuesday, Vick was indicted on state charges related to a dogfighting ring operated on his property. He pleaded guilty to dogfighting conspiracy charges in federal court last month. Vick was placed under pretrial release supervision by U.S. Magistrate Dennis Dohnal in July. His restrictions included refraining from use or unlawful possession of narcotic drugs or other controlled substances.
Hudson's order on Wednesday also requires Vick to participate in inpatient or outpatient substance therapy and mental health counseling, if the pretrial services officer or supervising officer deem it appropriate. Vick must pay for the treatment.
Another tough week for anyone hoping to see Michael Vick on the football field again in the not-too-distant future.
A few of my scholarly thoughts on Rita
I was honored to be asked by students at the Denver University Law Review to contribute my thoughts about the Supreme Court's work in Rita v. United States, and very pleased that the students at DULR were eager to get a special issue on Rita to press before the Court heard Gall and Kimbrough. My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change," is now available at this link.
I will do a number of future posts about my piece and the other terrific pieces that DULR has assembled in short order, but for now let me just provide this snippet from my introduction:
As explained in Part I below, the Booker remedy transformed a constitutional debate into a multi-dimensional cacophony of sentencing issues that Rita could only begin to address. Moreover, as detailed in Part II, though Rita does answer a few key post-Booker questions, the opinions in Rita have passages that present new puzzles for anyone trying to sort through the post-Booker world of federal sentencing. Finally, as discussed in Part III, Rita and lower courts’ early reactions to the decision ultimately reveal, yet again, that dramatic legal changes face resistance from sentencing actors who become acclimated to the status quo. Indeed, the history of modern federal sentencing reforms demonstrates that changes in legal doctrines become revolutionary only when they ultimately transform the legal cultures in which these doctrines operate. This lesson should be heeded not only by the Supreme Court as it considers another set of sentencing cases, but also by all would-be legal reformers in the field of sentencing and beyond.
Latest insights from federal public defenders
The fine lawyers at the Federal Defender Services of Wisconsin were kind enough to send me for posting a copy of their latest newsletter (quaintly called the Doing Time Times). This document, which can be downloaded below, covers lots of notable modern federal sentencing ground: it includes information on the USSC's crack guideline amendments, other proposed legislation before Congress to address the crack/powder disparity, sex offender notification and registration , the Second Chance Act and an pieve entitled "How To Get What Lewis Libby Got."
Early prediction on the lethal outcome in Baze
Thanks to SCOTUSblog, I see that Andrew Cohen already has posted his this prediction for the outcome in Baze v. Rees, the lethal injection case from Kentucky taken up by SCOTUS yesterday. Here it is:
I make predictions about Supreme Court decisions about as often as the Justices agree unanimously on contentious issues, which is say, almost never. But I am prepared to go out on the legal limb in the lethal injection case out of Kentucky which the High Court yesterday agreed to consider and decide during the looming term.
By a 5-4 vote, I predict, with Justice Anthony Kennedy writing the majority opinion, the Court next spring will declare invalid the lethal injection procedures Kentucky and certain other states employ when they execute capital defendants. The decision will then force all “lethal injection” states to do what some already are doing, which is to revamp their execution protocols to ensure that the condemned are given the proper amount of the proper medications in the proper order so they don’t endure “cruel and unusual punishment” before they die.
The Court’s most conservative quartet — Chief Justice John Roberts and Associate Justices Scalia, Thomas and Alito — will offer a stinging dissent that focuses upon the rights of states to determine for themselves their own execution protocols. And if Justice Scalia gets to write that dissent I’m fairly confident that we’ll see a line or two about what he considers the “absurdity” of spending so much time and effort ensuring that a death row inmate about to be killed in the name of the people is treated like a patient in the finest hospital in the world.
I think this is a sensible prediction, though I also think that we might possibly be in for some surprises in Baze, in part because I suspect that a few Justices may be eager to avoid a 5-4 ruling in this setting.
USSC review of SCOTUS sentencing decisions
A research assistant discovered that the US Sentencing Commission has available on this training page of its website this updated 2007 version of "Supreme Court Cases on Sentencing Issues." As the USSC website explains, this document "summarizes Supreme Court decisions in cases involving the Commission, the federal sentencing guidelines, and other related issues."
In addition to providing a helpful compilation of major modern sentencing rulings, this document highlights where the Supreme Court has (and has not) invested its energies. Particularly telling, in my view, is that the Justices have paid so little attention paid to the Fifth Amendment and particularly the Due Process Clause in their sentencing work. Due process concerns do make some cameo appearances in cases like Burns and Watts and the Apprendi-Blakely line. But it is still remarkable (and disappointing) that there has not been a single major due process ruling concerning sentencing procedures over two decades of federal guideline sentencing.
September 25, 2007
Baze already creating haze around Texas execution
As noted by Capital Defense Weekly and StandDown Texas Project, reports from Texas indicate that a lethal injection execution scheduled for this evening has been delayed. However, as this AP article reveals, no one is yet quite sure whether this is a ripple effect from the Supreme Court's cert grant today in Baze.
UPDATE: This new AP report indicates that Texas went forward with its execution tonight "after the U.S. Supreme Court rejected [the defendant's] request for a reprieve because of the court's earlier decision in a Kentucky case to review whether lethal drugs used in executions are unconstitutionally cruel."
Lethal injection readings (thanks in part to my students)
I have done so many blog posts about lethal injection protocols and litigation, I am not sure exactly how best to put together an abridged list of readings for anyone now eager for additional reading in light of the cert grant in Baze (details here). Helpfully, when I taught my death penalty course this past spring, my students assembled some great readings on the topic for their class presentations. Here are links to their reading lists:
- General readings on execution methods
- Reading on lethal injection protocols and the role of doctors in executions
In addition, nobody can claim to be informed on these topics without being familiar with the work of Professor Deborah Denno. Here are links to some of her writings I've previously highlighted in this blog:
- Academic insights on the lethal injection scrummages (noting Debby's article entitled "The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty")
- Seeking balanced scholarly wisdom on lethal injection mess (noting Debby's article entitled "Death Bed")
- The legal attack on lethal injection (noting Debby's article entitled "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us")
Finally, I cannot help but plug my own article on lethal injection developments entitled "Finding Bickel Gold in a Hill of Beans," in which I urged Congress and state legislators to do more to clean up the lethal injection mess.
Reply briefs in Gall and Kimbrough
Though I am still in a haze over Baze (details here), sentencing fans should be sure not to forget that we are but a week away from oral argument in the Booker reasonableness cases of Gall and Kimbrough. Helping to get my mind back on these federal sentencing cases — which are, realistically, a lot more important to a lot more defendants than Baze — are the just-filed reply briefs from the petitioners.
Based on a quick review, both briefs look like great reads, and they can be downloaded here:
How many amicus briefs will be filed in Baze?
My phone has been ringing of the hook with media eager to talk about the cert grant in Baze. I am not at all surprised that a lot of folks (myself included) are trying to figure out exactly what to make of the cert grant and what the grant might mean for pending executions throughout the nation.
Amidst all the head-scratching, Orin Kerr here makes this nice point at The Volokh Conspiracy:
This case really calls out for amicus participation to give the Justices context: In particular, it really needs briefs by leading historians on the history and evolution of how executions were carried out over time in the United States and at common law. What techniques were used in different historical periods, and why did they change? A really top-notch brief on the history of methods of execution would provide some very helpful context for the Justices. Obviously it wouldn't decide the case for the seven nonoriginalist Justices, but it would be quite helpful background for all of them. I hope someone is inspired to write a careful and balanced brief on this issue; that person would truly be a "friend of the Court."
I concur with the value of scholars being friendly to the Court in this case, especially because I suspect that a lot of partisan advocates will be chiming in. Specificially, I am pretty sure the SG and many states will be filing in support of Kentucky and many anti-death penalty groups will be filing in support of Baze. Any non-partisan brief that is, in Orin's words, "careful and balanced" should get special attention from the Justices.
Early coverage of the lethal injection cert grant
I have added a new topical category for coverage of the Supreme Court's consideration of Baze v. Rees, 07-5439, the Kentucky case which will finally enable the Court to address on the merits the constitutionality of modern lethal injection protocols. As How Appealing's latest posts spotlight, Baze may quickly become one of the highest profile cases on the Court's docket this term. Here is a brief round-up of some of the early blog and MSM coverage of the cert grant.
Notable blog coverage:
Notable MSM coverage:
SCOTUS to review lethal injection protocols with Kentucky case
I spoke too soon when I said here that the ACCA cases were the only notable sentencing cases in the big group of SCOTUS cert grants today. In addition, the Supreme Court has taken up Baze v. Rees, 07-5439, a case from Kentucky which, according to this SCOTUSblog post, will finally enable the Court to address on the merits "the constitutionality of execution by lethal drugs when the protocol poses a risk of pain and suffering." (Thanks to commentors to my prior post spotlighting Baze.)
This is huge news which could (and probably should) lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling (which might not come until June 2008). I'll have a lot more to say about this very important cert grant in future posts, but for now here are some links a small sample of my copious coverage of all the lethal injection litigation that has been percolating around the country over the last two years:
- Notable ruling on constitutionality of lethal injection (discussing 2005 state ruling in Baze)
- Another view of viewing an execution
- NY Times against hiding the executioner
Lots of SCOTUS cert grants, including at least one sentencing case
As SCOTUSblog reports here, "the Supreme Court granted certiorari in 17 cases this morning. The orders list is at this link." Though there seem to be a few criminal cases in the mix, and I noticed Begay v. US on the grant list. Begay, as noted here, is a case from the Tenth Circuit concerning whether drunk driving convictions should qualify as "violent felonies" under the Armed Career Criminal Act. The circuits are divided on this issue, and so I do not think this is a surpising (or likely to be especially consequential) case for the Court.
UPDATE: SCOTUSblog has details about all the cert grants here and here, and it appears that a second case, US v. Rodriquez, is also about ACCA predicate offenses. It does not appear that any other sentencing issues are among today's select seventeen.
MORE: As detailed in this new post, the Court has also taken up the constitutionality of lethal injection protocols.
How much have sentencing issues contributed to federal judicial resignations?
- 1958-69: 3 federal circuit and district court judges departed
- 1970-79: 22 departures
- 1980-89: 41 departures
- 1990-99: 55 departures
- 2000-2009: 68 (51 departures already: 17 are projected departures)
Though the WSJ folks and others spotlight salary issues as the prime culprit in the judicial flight, the impact of sentencing issues should not be completely overlooked. At least a handful of judges have mentioned the injustices of the federal sentencing system when giving reasons for their resignation. For example, as detailed here, SDNY District Judge John Martin said he was resigning from the federal bench because "Congress has tried to micromanage the work of the commission and has undermined its efforts to provide judges with some discretion in sentencing or to ameliorate excessively harsh terms."
Though dollars and cents surely is the main reason for many judicial departures, the role of justice and sentencing is certainly also an important and interesting part of the story.
September 24, 2007
Tyson pleads guilty to felonies
Neither Michael Vick or OJ Simpson have made legal news this week, but Mike Tyson comes to the rescue in allowing me to feel like I'm working while checking SI.com. Specifically, as this AP article details, today "Mike Tyson pleaded guilty Monday to charges of drug possession and driving under the influence stemming from a traffic stop last year as he was leaving a nightclub." As for sentencing, "Tyson faces a maximum of four years and three months in prison when he is sentenced Nov. 19."
Lies, damn lies and FBI crime statistics
This Washington Post article is headlined "FBI Report: Violent Crime on the Rise." This TalkLeft post reacting to the Post story is headlined "Overall Crime Rate Lowest in 30 Years." Rather than provide my own take on this new FBI report, I would simply propose that nobody (including no politician) opine on crime and sentencing policy until having the chance to read the report.
Perhaps the more intriguing related tidbit comes from this coverage of a pledge by Rudy Giuliani in a speech to the NRA of "No plea bargains, no exceptions, you go to jail" for violent offenders. For an academic, it is fun to imagine a world without plea bargains for violent offenders; but, practically speaking, such a world is almost as likely as Rudy finding time to read the new 500-page Ohio Death Penalty report.
ABA releases mega-report criticizing Ohio's death penalty
Continuing the extraordinary efforts of the American Bar Association's extraordinary Death Penalty Moratorium Implementation Project, today you can now read a nearly 500-page(!) report about the application of the death penalty in Ohio. Helpfully, this webpage links all the parts of the "Ohio Death Penalty Assessment Report," including a link to this executive summary.
The executive summary runs 40+ pages, but there is no executive summary of the executive summary. Fortunately, this fact sheet provides a two-page set of highlights with this set up: "The Ohio Death Penalty Assessment Team, working with the American Bar Association, has found that Ohio’s death penalty is plagued with serious problems. The Team recommends a number of reforms that would help to improve the fairness and accuracy of Ohio’s system. Until these reforms are implemented, Ohio should temporarily suspend executions."
I have complained in the past that these mega-reports represent an extraordinary investment of time and energy trying to ensure that a bunch of murderers get to spend a bit more time locked in a cage before they die. My particular concern was that these very detailed reports seem unlikely to get much traction (or even be read) in states with politicians that are very committed to the death penalty. In Ohio, however, we have a governor and attorney general more than a few state legislators who have repeatedly expressed reservations about capital punishment. The Ohio reaction to this ABA report should be a good test of whether all this work by the ABA can be truly consequential.
Of course, I expect the Ohio Death Penalty Information blog to provide copious coverage of the ABA's work and local reaction thereto.
Some prior posts (and concerns) about the ABA's moratorium project:
- ABA produces mega-report assailing Florida's death penalty
- ABA calls for death penalty moratorium in Alabama
- ABA report calls for Georgia DP moratorium
- Two (long) reports on problems administering the death penalty
New magazine launches with piece on crack sentencing
I received word today of the launch of a new publication, Human Nature magazine, which can be accessed at this link. Included in a number of intriguing looking articles in the first issue is this piece about mandatory minimum crack sentencing, which is authored by publisher/executive editor Christopher Windham. The story is entitled "Doing The Right Thing: After 20 Years, the Debate Over Mandatory Minimum Sentencing Laws for Cocaine Heats Up," and here is one of many notable passages:
The federal mandatory minimum sentencing laws have also had a profound affect on African-American women. For example, the incarceration rate for African-American women for all crimes has increased by 800% since 1986 compared to 400% for women of all ethnicities, largely due to drug convictions. Since federal judges have little or no flexibility to consider the reasons why women are involved in the drug trade, such as domestic violence or financial dependency, they often receive the same or harsher sentences as major drug traffickers, policy experts say.
Only a week now until first Monday
It is officially Supreme Court preview season, and this new article puts the sentencing cases of Gall and Kimbrough at the top of its discussion of the Court's early docket. As I have highlighted in numerous posts (some of which are linked below), I am preparing for lots of sentencing fireworks this Term.
Some related posts:
All the news that's fit from How Appealing
Howard Bashman starts off the new week with lots of very intriguing links, including this array of items for sentencing fans:
- "A matter of life or death" (linking series on death penalty prosecutions)
- "Ex-border agents appeal convictions" (discussing Compean and Ramos appeal to he Fifth Circuit)
- "Nuance and Resolve in Rulings by Attorney General Nominee" (linking NY Times article noting AG-nominee Mukasey's judicial sentencing record)
- "Congress OKs Fast-Tracked Executions" (linking NPR coverage of death penalty appeals)
In addition, How Appealing also has lots of links to other items that will interest anyone who follows closely the Supreme Court or law school developments.
September 23, 2007
Bad apples may destroy parole in Connecticut
Any deserving potential parolees in Connecticut should be very grumpy that some parolee bad apples are threatening the entire system of parole in the Nutmeg State. This New York Times piece provides the latest news on this on-going story:
Gov. M. Jodi Rell of Connecticut has suspended parole for all inmates serving time for violent offenses after the authorities said a parolee stole a car at knifepoint in Hartford and then drove to New York City, where he was shot by the police. The move comes two months after a pair of parolees were arrested in the killing of a woman and her two daughters in a home invasion.
"Until we can find a better way to determine who poses a risk to the public if released, we will not add to the ranks of people on parole," Mrs. Rell said in a news release Friday evening. In addition to suspending parole for violent offenders, she directed the state’s Board of Pardons and Paroles to immediately review all parolees who were sentenced for violent crimes. She said any in violation of their parole would be sent back to prison to serve the remainder of their sentences. Typically, inmates convicted of what are classified as violent offenses must serve at least 85 percent of their sentences before parole.
Robert Farr, chairman of the Board of Pardons and Paroles, said on Saturday he that agreed with the governor’s decision and that the board would start its review on Monday. He estimated that one-third of the approximately 3,000 inmates the board paroles each year are classified as violent offenders.
Representative Michael P. Lawlor of East Haven, the co-chairman of the Joint Committee on Judiciary, said in a news release on Friday that the General Assembly would work with the governor to make sure that the Corrections Department had the resources it needed to deal with what he described as a "dramatic increase in population over the next few months." The state’s prison population is roughly 19,000 inmates.
The governor said the parole suspension would continue until "reforms of the parole process are complete." State lawmakers and other officials have been discussing parole overhaul and construction of new prisons since the home invasion and murders, in the town of Cheshire.
California sentencing getting the finger after Cunningham
Thanks to this post by Kent Scheidegger at Crime & Consequences, entitled "Cunningham, Chili, & Fingers," everyone can catch up with various post-Cunningham issues playing out in California court by reading about the sentencing appeal of Anna Ayala, the woman who infamously tried to defraud Wendy's by putting a human finger in her own chili. Kent points to this newspaper account of the ruling, which provides this summary of the latest legal developments:
A Las Vegas woman could get at least two years shaved off her nine-year prison sentence for planting a severed finger in a bowl of chili at a San Jose Wendy's restaurant, under a state appeals court ruling issued Friday. Anna Ayala, 41, who said on national television that she had bitten into a fingertip at the Wendy's in March 2005, and husband Jaime Placencia each received nine-year prison terms for the scam from a Santa Clara County Superior Court judge last year.
In her appeal, Ayala argued that the judge shouldn't have sentenced her to the maximum of five years in prison on a felony count of presenting a false insurance claim, one of three counts of which she was convicted. In an opinion Friday, the Sixth District Court of Appeal agreed, saying Judge Edward Davila's decision to impose five years for "aggravating circumstances" was based on his own fact-finding and not by a jury's conclusions.
As Kent rightly notes, various post-Cunningham developments in California means that Ms. Ayala should not to quickly count on receiving a lower sentencing on remand.
Interesting article on backdating sentencing issues
Thanks to law.com, everyone can get an early look at this interesting sentencing article from Monday's issues of The Recorder, which is entitled "Prosecutors Seek Tougher Sentencing Rules for Former Brocade CEO: Preliminary brief focuses on backdating's later effects at Brocade, which would lead judge to use stricter guidelines." Here is how it begins:
As the stock option backdating scandal has unfolded, defense lawyers have sounded a familiar refrain: No one got hurt. Prosecutors won guilty verdicts on 10 counts against backdating poster boy Gregory Reyes in August. But they still need to explain just who it was he hurt, and how much.
Under the sentencing guidelines, the penalty for financial fraud depends on the magnitude of the loss. In a preliminary sentencing brief filed in Reyes' case Friday, prosecutors laid out the numbers: Reyes cost investors and the company $12 million -- $7 million the company paid in SEC fines, $3 million paid in taxes owed by employees who unknowingly got backdated options, and $2 million, representing the one-day loss to investors when the company revealed its backdating problems. Those numbers pale in comparison to the more than $300 million in earnings that Brocade Communications was forced to restate as a result of its options practices.
"They're taking a more conservative approach," said Peter Henning, a Wayne State University Law School professor. "The government is very much focusing on how much money was taken out of people's pockets." The prosecution is also recommending that Judge Charles Breyer apply current sentencing guidelines, arguing that Reyes' crimes continued until 2004, when harsher penalties were put in place for financial fraud.
Although no sentence was recommended in the preliminary brief, criminal lawyers speculate that under current guidelines, the prosecution's count of the losses would call for about 10 years in the slammer for Reyes.... Sentencing is set for Nov. 21.