January 27, 2007
Two (feminist?) perspectives on the Wilson case
I want to address your wondering why more people of influence are not rushing to get Genarlow Wilson out of jail, since his sentence is so long that he is the victim of a clear and disturbing injustice.
I think that it is possible that the behavior of Genarlow and his friends on the night they got in trouble is deeply offensive to many who hear about it, and people simply do not like Genarlow well enough to fight for him. It is very troubling to know that high school football heroes invited hero-worshipping fifteen-year-olds to a party and got them drunk in order to have practically guaranteed sexual service. What a cowardly act!
Beyond ethical considerations, I'll bet that many women hearing about this, knowing what hero worshippers they were at fifteen, shudder at the thought that a lot of us could have been those vulnerable little girls at the party, taken advantage of in the most cynical way, and think that, while ten years is excessive, the guy basically got what he deserved. I can't say what men think along those lines, but they, too, are keeping their distance from Genarlow.
Providing a notably different female perspective is Becky C. at her blog, which purports to provide "observations and commentary by a post-modern neo-feminist libertarian cyberpunk on society, culture, politics and whatever." Here is a snippet from this long post entitled "A Blowjob in Georgia":
At lot of people are saying this law was a result of a hick Georgia legislature. That is not really fair.... The Georgia legislature did not sit down one day and decide that kids doing bjs was much more serious than doing the full deal. Laws are passed piece meal. Amendments are almost always not read by the lawmaker. And they never have a full understanding of the effect of the legislation....
But there is someone in the system that is suppose to prevent these problems, not exploit them. That is the prosecutor. I became a prosecutor, for a few years, because I wished to crush the balls of sexual perverts and woman beaters. While I like to think my motives were noble, many lawyers find this kind of power intoxicating. Prosecutor offices are mostly staffed with young lawyers directly out of law school. The pay is not good, but the experience is unparalleled....
But most people do not do this type of work for long. Some, like me, just get sick of the whole thing. Most, after a few years, can make tons more money by moving to the private side. However, there are some who pretty much make a career out of it. Now some of these have the best of intentions. But all too many stay because, even though the dough is a lot better in a private firm, you do not have the opportunity to lop off heads on a regular basis. And that is what this is all about. In legal parlance it is called "prosecutorial discretion."
Though the harsh mandatory sentences for two border agents (details here and here) and for Genarlow Wilson (latest here) have drawn my attention recently, the biggest news of the week was the Supreme Court's Cunningham decision declaring California's sentencing scheme unconstitutional. I will have some more analysis of Cunningham soon, but first I want review prior posts on the decision (all of which have great additional analysis in the comments):
- Cunningham arrives (and strikes down California sentencing)!
- Cunningham opinion basics
- Justice Ginsburg's majority opinion in Cunningham
- A few more observations on the Cunningham opinion
- CJ Roberts and sentencing law: his Cunningham work
- More reactions to and analysis of Cunningham
- A fine overview of the sentencing scrambles
- California chaos after Cunningham?
- Hoping for Cunningham scholarship
UPDATE: At the Ninth Circuit Blog here, Steve Sady provides his two cents on Cunningham and the ACCA and reasonable doubt. Here is how it begins: "The Supreme Court opinion in Cunningham once again demonstrates that the Nation's highest court is far ahead of the Circuits in protecting Fifth and Sixth Amendment rights."
CNN covers Genarlow Wilson case, who's next?
CNN now has this lengthy video providing lots of background on the Genarlow Wilson case, which includes interviews with Wilson and prosecutor Eddie Barker. It also details the start of legislative efforts to do justice.
Though the CNN piece effectively covers the basics of the case, it continues the failure of the media or anyone else to pressure the prosecutor to seek true justice. The CNN reporter indicates that the prosecutor is willing to cut Wilson's sentence down to five years, but then never follows up to ask why the prosecutor believes that a five-year sentence is appropriate for Wilson having consensual oral sex with a fellow teenage. Grrr!
Now that Wilson's plight is getting more coverage with ESPN and now CNN doing stories, I am wondering when powerful celebrities might use their clout to help achieve justice for Wilson. As I recall, some celebrities spoke out for the murderer Tookie Williams. Where are they now when a young kid who never hurt anyone needs help?
Though perhaps I put too much faith in the power of celebrities, a little attention from the likes of Angelina Jolie or Bono or Donald Trump (all of whom, I suspect, are supporters of consensual sex) might really make a difference. Where is Oprah when we really need her?
Some recent related posts:
- Will the Georgia legislature help Genarlow Wilson get justice?
- ESPN effectively covers Genarlow Wilson's sad saga
- Why isn't the severe Georgia sentence constitutionally problematic?
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed
Watch Ohio for death debates
As noted here and here, the death penalty has taken some serious blows recently. As I have been suggesting since election night, the new Democratic administration in Ohio makes it an especially interesting state to watch as all action unfolds. Of course, ODPI covers this action better than anyone, and here are the latest headline:
- Cleveland Plain Dealer calls for Ohio death penalty study / lauds Strickland for execution delays
- Strickland interview on death penalty to be in Sunday Cincinnati Enquirer
- Different views on need for Ohio death penalty study
The last link references this article in today's Columbus Dispatch, which highlights that the traditional battle lines are being drawn in the Ohio death penalty debate:
Ohio's legal system hasn't sent anyone to Death Row who doesn't belong there, the head of the state prosecutors association says. He is urging Gov. Ted Strickland not to support a capital-punishment study. "There are no mysteries here. … The death penalty is in fact being applied to exactly those persons and to those crimes for which it was intended," John E. Murphy wrote in a Jan. 15 letter to the Democratic governor.
Murphy said a study, long advocated by capital-punishment opponents and Attorney General Marc Dann during his campaign last year, would "send the wrong message to the citizens of this state that there is something wrong with our death penalty." The only thing wrong, Murphy added, is that "it takes too long to get the penalty enforced."...
Ohio Public Defender David Bodiker strongly disagreed with Murphy's assurances about wrongly convicted inmates. "There are a dozen cases right now where there is considerable evidence that the guy is innocent," he said. "The problem is unringing the bell. If there's a conviction, the system is not likely to want to reverse the situation." Bodiker said Murphy and many county prosecutors take the attitude, "You haven't caught us, so nothing's wrong."
Jim Tobin of the Catholic Conference of Ohio said a study has always been a goal of Ohioans to Stop Executions. He said the group has had conversations with Strickland and Dann's staff about a study. "We would strongly encourage a nonbiased, professional study, an open dialogue and discussion," Tobin said.
UPDATE: I also see from this article that Catholic groups are actively working against the death penalty in two other states: " In separate actions the Maryland Catholic Conference and Bishop Blase J. Cupich of Rapid City, S.D., have called for an end to the death penalty in their states."
Will serious sentencing reform come to Colorado?
Though California's sentencing woes and need for reform are making lots of headlines, this news article from Colorado highlights another state trying to start on needed reforms:
The state legislature will look at reforming Colorado prison sentences this session, breaking a longtime taboo in state politics. "We will make a significant attempt at some kind of sentencing reform," Rep. Terrance Carroll D-Denver, chairman of the House Judiciary Committee, said Friday. He said his committee would be looking at a recent report from the Colorado Lawyers Committee that called for creation of a sentencing reform commission to propose changes.
Carroll said the state's new Democratic governor, Bill Ritter, is interested. Evan Dreyer, the governor's spokesman, said Ritter, a longtime prosecutor, "is interested in taking a closer look at many aspects of the criminal justice system," with emphasis on reducing recidivism....
Carroll spoke after a news conference about halting Colorado's soaring growth in prisoners. The gathering brought together a disparate group of supporters, including the free-market Independence Institute, Democratic legislators, the sheriff from conservative Colorado Springs and prison reformers.
The state expects to add more than 6,000 prisoners by 2011, requiring $800 million in prison construction. That figure is more than twice the amount Colorado expects to have for all capital construction other than roads during that period of time. A number of officials have concluded the state cannot afford it....
Carroll called state sentencing laws "byzantine" because they are so complex. Lawyers and judges often debate in court how indecipherable laws interact to mandate a particular sentence, said Maureen Cain of the Colorado Criminal Defense Bar. She cited a client who has been successfully managing probation for three years, supporting his children and passing his drug tests - but who is about to be sent to prison because he cannot afford his probation fees.
January 26, 2007
Giving voice to Virginia Orwig
Commentors have been in fine form all week, but I wanted to close the week by bringing up to a post a comment from a woman who knows a lot more about harsh sentencing realities than I ever will. Here is Virginia Orwig's comment (in response to other comments) following this post on the furor over border agents' long sentences:
My son is Ignacio Ramos, Former Border Patrol Agent.
Unless you have walked in his shoes in that 15 second moment, I feel that you would have a different perspective, unless you have been in that same exact situation. Unless you were at the 2-3 week trial and heard the testimony that was allowed to be given by and at Judge Cardone's mercy, you would have heard the lies, speculations and the drama that the US attorney brought into the case. And the last item is the transcript. We have not been able to obtain the transcript from the Court house in El Paso Texas.
Many questions are up in the air by the US Attorney, but they have transformed this case into a card game and/or chess game. But most important, they have allowed an illegal drug smuggler's word over two good men fighting and protecting you and me.
Amazing times for the death penalty
For anyone categorically opposed to the death penalty, the past week has to be a cause for celebration. As DPIC is now spotlighting on its home page, "seven executions in three states were stayed for various reasons between January 19 and the 25th." In addition, some recent posts at Capital Defense Weekly and Ohio Death Penalty Information report on developments I could not have imagined even six months ago. Here are some notable headlines:
- NC - stays & state announces it won't appeal
- Bills introduced in Maryland and South Dakota would replace death penalty with life w/o parole
- Maryland governor indicates support for death penalty repeal legislation
- Cleveland Plain Dealer calls for Ohio death penalty study / lauds Strickland for execution delays
I am becoming more and more confident about the soundness of my decision not to work on a Death Penalty casebook. It seems that, perhaps except in Texas and maybe a few other states, the death penalty really could become a matter of legal history. (Then again, that's how things must have looked in the late 1960s before Furman and the state backlash produced our modern death penalty era.)
Important California report on sentencing reform
Professor Kevin Reitz, a state sentencing guru and the reporter on the ALI's on-going MPC sentencing project, sends this note about an important report released today on California's sentencing woes and need for reform:
Check out today's new report from the Little Hoover Commission in CA (a bipartisan research and policy commission with a good track record for high quality analysis and recommendations). Among other proposals to address the prison crisis in California, the report strongly supports the creation of a permanent sentencing commission in California, authorized to promulgate sentencing guidelines and sentence revocation guidelines, and to be the research and information center of the California sentencing system.
From the Executive Summary at iii:
[T]he State should begin a comprehensive evaluation of its sentencing system by establishing an independent sentencing commission to develop guidelines for coherent and equitable sentencing guided by overarching criminal justice policy goals. This is not a short term solution, but a way to create rational long-term policy. Critics who suggest that a sentencing commission is code for shorter sentences are misinformed. Other states have used sentencing commissions to lengthen sentences for the most dangerous criminals, develop community-based punishment for nonviolent offenders and bring fiscal responsibility to criminal justice policies.
This strong report from a well-respected commission should give a shot in the arm to recent proposals for a permanent sentencing commission put forward by Governor Schwarzenegger and the majority leadership (Democratic) in the state legislature.
Friday forum: rate the injustices
My last three posts prompt me to seek feedback on which of three on-going sentencing debates involves the greatest injustice to the defendants. Here are the choices:
1. The federal sentences for two border patrol agents, Ignacio Ramos and Jose Alonso Compean, who each got more than 10 years' in prison for the shooting of a suspected Mexican drug dealer in Texas (details here).
2. The state sentence for Genarlow Wilson, who got 10 years' in prison for having consensual oral sex with a fellow teenager (details here).
3. The possible (but not certain) limited period of extreme pain that a convicted and condemned murderer might feel in the course of an execution.
I see cases 1 and 2 as presenting distinct but parallel examples of (a) extreme and unjust sentencesg that can result from mandatory minimums and (b) how challenging it is for anyone, except a prosecutor exercising his broad discretion, to remedy mandatory minimum sentencing injustice.
Meanwhile, I see very little injustice to defendants in case 3 (though I see a lot of injustice to victims of crime). By necessity, every condemned murderer has caused certain and extended extreme pain to his victims (both the murder victim and his/her family and friends). And yet, not only do these condemned murderers seem to have many more vocal advocates than Ignacio Ramos, Jose Alonso Compean and Genarlow Wilson, they also have been able to convince state and federal judges nationwide to dramatically disrupt the administration of duly imposed capital sentences.
UPDATE: I am pleased to see that Jeralyn at TalkLeft is also interested in this sad ratings game and has commentors giving interesting answers.
With NC execution stays, "these go to 11"
Henry Weinstein has this Los Angeles Times article today providing more details on yesterday's state judge ruling to stay "two executions in North Carolina, creating a de facto moratorium on capital punishment in the state until it changes its lethal injection procedure." As the article notes, the "ruling by Superior Court Judge Donald W. Stephens in Raleigh means that 11 states, including California, have now halted executions stemming from challenges to lethal injection."
Of course, this news all but demands a reference to a great scene and in what is surely one of the all-time greatest comedies. Indeed, at the end of an intense week, I cannot help enjoying all these great Spinal Tap quotes looking for other fitting references. Tellingly, the lyrics to the Tap's Hell Hole would better suit a post on imprisonment, so perhaps a lethal injection riff on Big Bottom is more fitting: "The badder the cushion, the sweeter the pushin' ... That's what I said... The looser the process, the more judges stop us... Or so I have read."
Poor taste jokes aside, the LA Times article details how lethal injection scrummages have now helped bring executions to a halt in North Carolina and 10 other states:
Illinois and New Jersey have a formal moratorium on all executions while the viability of the death penalty is considered. In mid-December, Florida Gov. Jeb Bush ordered a halt on executions until the state thoroughly reviewed its lethal injection procedure. In seven other states — California, Arkansas, Delaware, Maryland, Missouri, Ohio and South Dakota — almost all executions are being stayed as courts grapple with lawsuits asserting that lethal injection procedures violate the constitutional bar on cruel and unusual punishment.
Will the Georgia legislature help Genarlow Wilson get justice?
State Sen. Emanuel Jones, D-Decatur, [has] introduced legislation that he said he hopes would allow a judge to re-sentence Wilson under the more lenient sentencing provision.
Since the state Supreme Court issued its Dec. 15 ruling, the case has become a bit of a cause célèbre, with The New York Times publishing an editorial calling for Wilson's release and the The Atlanta Journal-Constitution saying Wilson deserves "justice," not "condolences." Thursday morning, ESPN.com's top story was an in-depth report on the legal case of the former high school football player, headlined "Outrageous Injustice."
"I read the editorials, I again went back and reviewed the comments from Justice Hunstein, and I said I would make it my … work this session to get him out of prison," said Jones. He added that he has bipartisan support, and one of his co-sponsors is Sen. Dan Weber, R-Dunwoody.... Senate Judiciary Committee Vice Chairman Seth Harp, R-Midland, said Thursday that he wanted to study the bill and its ramifications before determining his position on it.
Though I am encouraged some Georgia legislators are looking for solutions, I continue to be deeply troubled and mystified that there isn't more pressure being placed on executive branch officials to do justice for Genarlow Wilson. Recall this passage from the ESPN article:
"We can set aside his sentence," [prosecutor Eddie] Barker says. "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge. But it's up to us. He has no control over it." The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.
What I find depressing (and what confirms the impact of race and class) is the contrast we see in reaction to this case and the Duke lacrosse case. In the Duke case, as detailed here, prosecutor Michael Nifong may be disbarred for purported "systematic abuse of prosecutorial discretion" simply because of the way he filed charges. In the Wilson case, in sad contrast, no one is even seriously questioning the prosecutors about their refusal to exercise their discretion to achieve justice.
UPDATE: A few commentors have already reacted strongly to my suggestion that distinct reactions to prosecutorial behavior shows the impact of race and class.
Please understand that I am not arguing that that the actions of Nifong and Barker/McDade are legally, morally or ethically parallel in any way. Rather, I am simply trying to note that when a NC prosecutor over-zealously prosecutes rich white kids, his decisions are question by the whole world; but when GA prosecutors continue to over-zealously prosecute a less-affluent black kid, far fewer questions are asked. My chief point is that, as Mike Connelly explains here, we ought to be much more willing to question the exercise of prosecutorial discretion in all cases (like Republican legislators are now doing in the border shooting case.)
The furor over border agents' long sentences
As first noted here, there is a lively debate over the sentences for two border patrol agents who each got more than a decade in prison for the shooting of a suspected Mexican drug dealer in Texas. This Washington Times article spotlights the case and the growing political furor:
The prosecutor who won lengthy prison sentences for two U.S. Border Patrol agents for shooting a suspected drug smuggler fleeing back into Mexico acknowledged this week the "punishment was high" but said the sentences were mandated by Congress. "I agree the punishment was high, but the sentencing guidelines were set by Congress and the judge acted in accordance with the law," U.S. Attorney Johnny Sutton told The Washington Times in a telephone interview.
Mr. Sutton said 11- and 12-year sentences, respectively, for Agents Ignacio Ramos and Jose Alonso Compean fell within the federal sentencing guidelines.... Ramos, 37, and Compean, 28, were convicted of causing serious bodily injury, assault with a deadly weapon, discharge of a firearm in relation to a crime of violence and a civil rights violation. A jury convicted the agents in March after a two-week trial of shooting Osbaldo Aldrete-Davila in the buttocks as he ran from a marijuana-laden van back into Mexico. Sentencing guidelines established by Congress say a person convicted of committing a crime of violence and using a firearm during that crime faces a 10-year mandatory minimum, in addition to what other charges are involved.
The convictions and sentences have drawn widespread criticism from several sources, including some members of Congress. Rep. Dana Rohrabacher, California Republican, called it "the worst betrayal of American defenders I have ever seen." Rep. Duncan Hunter, California Republican, introduced legislation calling for a congressional pardon. Rep. Joe Wilson, South Carolina Republican, described the case as a "grotesque misdirection of our judicial system."
Petitions with more than 260,000 signatures have been presented to President Bush calling for a pardon. Seventy members of Congress are co-sponsors of Mr. Hunter's bill. National Border Patrol Council President T.J. Bonner, whose organization represents all 10,000 of the agency's non-supervisory personnel, said Mr. Sutton was not required to bring the mandated firearms charge, saying "it is quite doubtful Congress ever intended that this provision be used against law-enforcement officers who carry firearms in the performance of their normal duties."
Rep. Walter B. Jones, North Carolina Republican, said in a letter to Attorney General Alberto R. Gonzales -- co-signed by Mr. Rohrabacher and Republican Reps. Ernest Istook of Oklahoma, Gary G. Miller and Ed Royce of California, and Tom Tancredo of Colorado -- the 10-year mandatory gun charges should have been dropped. "This statute has historically been used in violent crime and drug trafficking cases," Mr. Jones said in the letter. "It has also been applied to law enforcement when necessary, however, based on past applications ... it appears that its application in the present case is unwarranted."
In addition to being an interesting case on its substantive merits, this case would seem to present the perfect opportunity for the US Sentencing Commission and groups like FAMM to engineer bipartisan legislation to minimize the unfairness of mandatory minimum sentencing provisions.
Instead of legislation calling for a pardon (which arguably is unconstitutional), why isn't this case being used as the focal point for devloping broader safety-valve exceptions to the application of the federal mandatory minimum sentence applied here (which could be made retroactive in various ways)?
January 25, 2007
Lethal injection issues halt NC executions
As detailed here, there was good reason to suspect that North Carolina's scheduled execution for this might get disrupted by the lethal injection debate. And, as detailed here by the AP, the lethal injection scrummages have brought down yet another state's death penalty plans:
A judge on Thursday stopped two executions scheduled within the next eight days, saying a recent decision to change the role a doctor must play in the process must be approved by the governor and the Council of State.
North Carolina law requires a doctor be present at executions and until recently, they helped monitor a patient's vital signs. But the North Carolina Medical Board decided last week that any participation by a doctor, beyond merely attending the execution, violated its ethics policy. In a filing in a separate case that cited the medical board's decision, the state said Monday a doctor would no longer monitor the inmate's vital signs, a duty it has turned over to a nurse and emergency medical technician.
Citing a law from 1909 that requires the governor and the council of state to approve any change in the execution process, Wake County Superior Court Judge Donald Stephens ordered Thursday the executions of Marcus Reymond Robinson and James Edward Thomas be halted until they do so. "I believe this is a significant change in the execution protocol," Stephens said. "In order to carry out an execution under these circumstances the governor and Council of State should review that protocol and approve it."
Once again, I cannot help but comment that my prediction of a record-low number of executions in 2007 is looking pretty solid as of right now. Of course, that could change with a notable SCOTUS decision or two.
Advocating imprisonment as a last resort
The New York Times has this potent editorial that laments our nation's heavy reliance on incarceration and presents Congress with a to-do list for needed reform. Here's how it begins and ends:
The United States is paying a heavy price for the mandatory sentencing fad that swept the country 30 years ago. After a tenfold increase in the nation's prison population — and a corrections price tag that exceeds $60 billion a year — the states have often been forced to choose between building new prisons or new schools. Worse still, the country has created a growing felon caste, now more than 16 million strong, of felons and ex-felons, who are often driven back to prison by policies that make it impossible for them to find jobs, housing or education.
Congress could begin to address this problem by passing the Second Chance Act, which would offer support services for people who are leaving prison. But it would take more than one new law to undo 30 years of damage....
The only real way to reduce the inmate population — and the felon class — is to ensure that imprisonment is a method of last resort. That means abandoning the mandatory sentencing laws that have filled prisons to bursting with nonviolent offenders who are doomed to remain trapped at the very margins of society.
Making imprisonment a true last resort is a central theme that shapes much of my advocacy on this blog:
- I am a fan and advocate of any novel sentencing schemes — from shaming sanctions to GPS tracking to problem-solving courts — that might disrupt our status quo bias toward longer terms of imprisonment as the "solution" to every criminal justice problem. At Corrections Sentencing here, Michael Connelly right wonders whether our emphasis on imprisonment may actually imperil public safety.
- I am pulling for the defendants in Claiborne and Rita because I see few benefits from Mario Claiborne serving more than 15 months or from Victor Rita serving 33 months in federal prison. (And that's why, as explained here and here, I found the Senators' brief filed against Mario Claiborne so disappointing.)
- I am a fan and advocate of the original SRA because I read § 3553(a)'s parsimony provision as a statement that imprisonment should be a last resort, and because Congress in 28 U.S.C. § 994(j) also stressed "the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense." Sadly, these important provisions have received depressingly little attention in the 20+ years since the SRA's passage.
My personal crusade against over-reliance on imprisonment is based in part in my (naive?) belief that we are a country built upon, and committed to, principles of liberty and freedom. I view broad state power to lock up citizens in small cages for long periods of time — a power likely never even imagined by the Framers — to run contrary to these principles of liberty and freedom. In contrast, treating prison as a last resort would honor these principles.
The NYT editorial is powerful in part because it sets an agenda for the new Democratic Congress if it has any real interest in progressive reforms. Notably, at the federal level, Democrats bear much responsibility for our modern over-reliance on imprisonment. The Democrats controlled Congress in 1986 when the most significant federal mandatory minimum sentences were created. Also, Democratic President Bill Clinton played a key role in rejecting the US Sentencing Commission's 1995 efforts to fix the crack/powder disparity. Here's hoping the new Democratic Congress will find the courage to chart a new and sounder course.
January 24, 2007
ESPN effectively covers Genarlow Wilson's sad saga
As of this writing, the front page of ESPN.com features this lengthy article on the Genarlow Wilson case from Georgia (which I blogged about at length last month). The piece is entitled "Outrageous Injustice" and carries this sub-heading: "Genarlow Wilson, honor student and football star, had consensual sex with a fellow teenager. What happened to him next was a crime."
There are many intriguing facets and new details in this major article on Genarlow Wilson (and also many moving pictures of Wilson in prison). Here's is one notable passage:
No one involved believes Wilson should be in jail for 10 years. The prosecutors don't. The [Georgia] Supreme Court doesn't. The legislature doesn't. The 15-year-old "victim" doesn't. The forewoman of the jury doesn't. Privately, even prison officials don't.
Yet no one will do anything to free him, passing responsibility around like a hot potato. The prosecutors say they were just doing their job. The Supreme Court says it couldn't free him because the state legislature decreed the new law didn't apply to old cases, even though this case was the entire reason the new law was passed....
The legislature still could pass a new law that would secure Wilson's freedom, so [Wilson's lawyer, BJ] Bernstein is pushing hard for that. One such bipartisan bill was introduced this week, pushed by state Sens. Emanuel Jones, Dan Weber and Kasim Reed. This is Wilson's best shot. "I understand the injustice in the justice system," Jones says, "and when I heard about Genarlow and started studying what had happened, I said, 'This is a wrong that must be righted.' Everyone agrees that justice is not being served."
Every story needs a villain, and in this one, the villain's hat has been placed squarely on the head of [Eddie] Barker, the prosecutor and a former college baseball player. Barker doesn't write the laws in the books to the left of his desk. He simply punishes those who break them.
"We didn't want him to get the 10 years," he says. "We understand there's an element out there scratching their heads, saying, 'How does a kid get 10 years under these facts?' " In Barker's eyes, Wilson should have taken the same plea agreement as the others. Maintaining innocence in the face of the crushing wheels of justice is the ultimate act of vanity, he believes....
Barker is quick to point out that he offered Wilson a plea after he'd been found guilty — the first time he has ever done that. Of course, the plea was the same five years he'd offered before the trial — not taking into account the rape acquittal. Barker thinks five years is fair for receiving oral sex from a schoolmate. None of the other defendants insisted on a jury trial. Wilson did. He rolled the dice, and he lost. The others, he says, "took their medicine."...
The folks in Douglas County are playing god with Genarlow Wilson's life. "We can set aside his sentence," Barker says. "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge. But it's up to us. He has no control over it." The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.
At the same time this trial was under way, a local high school teacher, a white female, was found guilty of having a sexual relationship with a student — a true case of child molestation. The teacher received 90 days. Wilson received 3,650 days. Now, if Wilson wants a shot at getting out, he must throw himself at the prosecutors' feet and ask for mercy, which he might or might not receive. Joseph Heller would love this. If Wilson would only admit to being a child molester, he could stop receiving the punishment of one. Maybe. "Well," Barker says, "the one person who can change things at this point is Genarlow. The ball's in his court."
Related posts on the Genarlow Wilson case:
- Why isn't the severe Georgia sentence constitutionally problematic?
- Time for a common-person approach to the Eighth Amendment
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
- Another editorial urging release of Genarlow Wilson
- NYT adds to chorus calling for Genarlow Wilson to be freed
Notable Tenth Circuit reasonableness ruling
A helpful reader sent me this account of the Tenth Circuit's notable recent decision on procedural reasonableness in US v. Hall, No. 05-1205 (10th Cir. Jan 23, 2007) (available here):
[The Hall] court reverses a substantial downward variance, on the government's cross-appeal [but] uses some good language about the district court's duty to explain its sentencing determinations and to tie them to the 3553(a) factors. In particular, the court explains, "[a]lthough we have never required a district court to recite any 'magic words' to show that it has fulfilled its obligation to be mindful of the factors Congress has instructed it to consider in sec. 3553(a), we have nevertheless required the court to give reasons for imposing a specific sentence." (citing its decision in Sanchez-Juarez).
The Court further explains that such reasons are necessary for "meaningful appellate review." Next, the Court says that the defendant's 151-month sentence (substantially below the Guidelines range) might be substantively reasonable, but says it is procedurally unreasonable because the district court's only basis for varying from the Guidelines range (which was also the range for his co-defendants) was his "comparatively minor" criminal history. The district court didn't discuss the offense characteristics or specifically discuss 3553(a), it just constructed a "hypothetical" Guidelines sentence based on a lower criminal history category AND a lower offense category.
Another execution stay in Texas?!?!
As detailed by DP bloggers here and here, the two executions planned in Texas this week have now both been stayed. If scheduled executions in Texas start being stayed regularly, my prediction of a record-low number of executions in 2007 is almost sure to come true.
Meanwhile, North Carolina has an execution scheduled for later this week, and the fighting seems to be about lethal injection protocols.
In praise of comments
Just a quick post to praise (and recommend) the many interesting comments to posts on the Emily Bazelon article and on my federal death penalty idea. On the many reasons I love this medium is because I get instant and thought-provoking feedback from so many informed and interested sources.
Keep up the great work, commentors.
An interesting crack/powder SCOTUS development
I just got an interesting bit of news from a reader about a notable crack/powder development at the Supreme Court cert stage. Here is the e-mail report:
I know that Rita/Claiborne examine the crack/powder disparity in the guidelines, so I thought you would be interested to know that SCOTUS has asked the S.G. to respond to a cert petition challenging the crack/powder disparities in 21 USC 841(a) as violating due process, equal protection and the 8th amendment. The case is US v. Jackson, SCOTUS number 06-8391.
Second Circuit reverses another below-guideline sentence
The Second Circuit has released today another decision reversing a below guidelines sentence in US v. Trupin, No. 05-2934 (2d Cir. Jan. 23, 2007) (available here). Here is the starting paragraph:
This appeal concerns the bounds of "reasonableness" after United States v. Booker, 543 U.S. 220 (2005). In particular, we must determine whether it was reasonable for the district court to prescribe a seven-month prison term — amounting to an eighty percent reduction from the bottom of the applicable Sentencing Guidelines range — for a defendant who engaged in a multi-year, multi-million dollar tax evasion scheme. We hold that the district court's decision was unreasonable; it failed to properly weigh all of the sentencing factors enumerated in 18 U.S.C. § 3553(a) and the record does not adequately support those factors on which the district court relied.
UPDATE: An insightful reader sent (and approved my posting) of this comment on Trupin:
Although the facts are not all that sympathetic, one point of particular note was the way CA2 criticized the district judge for complaining that the particular guideline was too harsh. It seems like district judges are certainly within their discretion, in considering whether to impose a guidelines sentence, to express this sort of view. Also, though one might disagree with the judge's conclusions about the defendant's age and the other factors, CA2 seems to go out of its way to engage in a sort of rigorous second-guessing that seems inappropriate.
Further clarification of my take on the Senators' Claiborne brief
Various folks whom I respect greatly have suggested that my first discussion of the Senators' brief filed in support of the government in Claiborne has been misconstrued (or at least has undermined a constructive dialogue because it could be misconstrued) as making inflammatory charges about the motives of the Senators who signed the brief. Especially because I have extraordinary personal respect for all the Senators who signed the brief, let me clarify my reaction to the brief:
BACKGROUND: As detailed here, I was very involved in developing briefs filed last month in Claiborne and Rita. (I helped with the NYCDL's briefs for the defendants and wrote most of a brief not in support of any party). Thus, everyone should realize that I am a partisan in this discussion.
SUBSTANCE: I agree with most of the substance of the Senators' brief. It stresses many great themes and even states, at page 27, that the district judge in Claiborne "may indeed have been correct that a sentence of 15 months, not 37 or 46 months, was warranted in light of the specific facts of the offense and the defendant's background." The brief also concluded with this bold and important assertion:
It is well-documented that the crack-powder disparity has a disproportionate impact on African-American defendants, their families, and their communities, see ABA Justice Kennedy Commission Report, supra, Res. 121A at 28-29, and as a result has undermined public confidence in the criminal justice system. Such sentencing disparity is completely contrary to the goals of the Sentencing Reform Act, and § 3553(a) enables courts to consider this impact as they develop principled rules on sentencing.
For these reasons and others, I hope the Justices play close attention to the substance of the Senators' brief when deciding Claiborne.
CONTEXT: What troubles me about the Senators' brief (and what likely generated another's potentially offensive remark that I repeated) is that the brief was filed in support of the government in Claiborne. (Senator Kennedy's office has this press release explaining that the "brief urges the Supreme Court to affirm the ruling of the 8th Circuit remanding the case for resentencing because the sentencing judge failed to state a sufficiently clear and principled rationale that can be readily applied by other courts in similar cases.")
As detailed here, many groups and persons who follow sentencing reform filed briefs in support of the defendants in both Claiborne and Rita. Indeed, the Senators' brief is the only brief filed supporting the government's position in Claiborne. (The US Sentencing Commission's brief is really focused on supporting the government's position in Rita.)
Because the Senators' brief states that the "crack-powder disparity ... is completely contrary to the goals of the Sentencing Reform Act" and that Mario Claiborne's sentence "may indeed have been correct," it is hard to understand why the Senators' brief "urges the Supreme Court to affirm the ruling of the 8th Circuit remanding the case for resentencing."
Critically, I do not think there was any malice or ill will or nefarious motive in the decision of the Senators to support the government in Claiborne. And I sincerely apologize if my prior coverage has been misconstrued or has in any way undermined a needed reform dialogue on the crack-powder disparity. Especially because I find the Senators' decision to support the government in Claiborne to be peculiar, I really hope the brief will spur a positive (and not inflammatory) dialogue on reform.
Hoping for Cunningham scholarship
Especially with Claiborne and Rita afoot in the Supreme Court and the potential for Cunningham chaos in California, I am hoping we might see in some forum a quick blast of Cunningham analysis from both scholars and practitioners. Two super-smart law profs, as well as many commentors, have already started this important dialogue, but I am unable to harness and organize this important work effectively or systematically on this blog (although I may try to do so through the Federal Sentencing Reporter).
Perhaps one or more of the growing number of high-profile on-line companions to high-profile student law journals (background here and here) might jump on Cunningham ASAP. As Orin Kerr spotlights here, the Virginia Law Review has now joined the club of more than a half-dozen major journals with an on-line companion. These on-line journals would seem perfectly suited to take up the Cunningham challenge. Will any?
California chaos after Cunningham?
The Supreme Court's Cunningham decision is less than 48 hours old (buzz indexed here), and I have already received e-mail suggesting the fall-out in California is chaotic from the get-go. Helpfully, the First District Appellate Project, which has done great work tracking Blakely's impact in California as shown here, now has posted an extraordinary document here examining "Challenges to Upper Term Sentences After Cunnnigham v. California." Here are the headings from the FDAP's important (and extended) practical examination of Cunnnigham:
I. A general triage approach to cases.
II. A general comment concerning compensation.
III. Specific suggested procedures for raising Cunningham claims depending on the current status of the case.
IV. A Note on questions of remedy.
V. A Note on questions of retroactivity.
In addition to encouraging all Californians to check out this practical analysis, I would appreciate reports in the comments about what is happening "on the ground" in the wake of Cunningham.
A fine overview of the sentencing scrambles
Emily Bazelon, who way back when wrote this great Boston Globe story focused on Justice Breyer's central place in federal sentencing reforms, now has this new Slate commentary discussing Cunningham and the Supreme Court's modern sentencing jurisprudence. The piece is entitled "Diagramming Sentences: The Supreme Court's war on sentencing guidelines," and it has many fine insights and flourishes as it takes stock of the Supreme Court's work in the Apprendi line of cases. Here are just a few of my favorite passages:
The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work. Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods. But the court can't make pro-defendant reform its explicit aim — that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles. These cases showcase destruction — this is what it looks like when the Supreme Court lays waste.
Is it a good idea to toss out sentencing schemes like California's and the federal guidelines? That's a hard question.... On the margins, at least, the Apprendi cases have helped loosen sentencing straitjackets.... On the other hand, as federal appeals judge Michael McConnell argued last year in a law-review article, the Supreme Court's new approach may have derailed a push for broader sentencing changes....
Cunningham is only the court's first word on the subject this term. In two cases to be argued next month, the court will fill in more detail about how much discretion federal judges actually now have. Doug Berman, law professor and sentencing blogger extraordinaire, thinks that both cases look like vehicles for additional change and leniency. In one, the defendant is a military veteran whose perjury crime looks more like a misunderstanding than a deliberate lie. In the second, an appeals court supplied the facts it relied on to reverse the sentencing break given by a trial judge. Get ready for more destruction.
A poster child for the (federal) death penalty?
This AP story discusses the life and crimes of Joseph Edward Duncan III, who would seem to be exhibit A for anyone trying to make a case for the death penalty. Here are some details on this bad man:
A man accused of kidnapping two Idaho children, killing one of them, after slaughtering their family has confessed to the killings of three other children a decade ago in Washington state and California, federal prosecutors said Tuesday.
The prosecutors cited the confessions to the old killings in court papers saying they intended to seek the death penalty against Joseph Edward Duncan III, who was indicted last week on charges involving the two northern Idaho children. "The defendant has engaged in a continuing pattern of violence, attempted violence, and threatened violence," prosecutors said. Duncan "is likely to commit criminal acts of violence in the future that would constitute a continuing and serious threat to the lives and safety of others."...
The U.S. attorney's office said Duncan confessed that he killed Carmen Cubias, 9, and Sammiejo White, 11, in Washington state in 1996 and Anthony Martinez, 10, in California in 1997....
In October, Duncan pleaded guilty in Idaho state court to first-degree murder and kidnapping for the May 16, 2005, hammer slayings of Dylan and Shasta's mother, Brenda Groene; her fiance, Mark McKenzie; and Groene's 13-year-old son, Slade. Prosecutors say he killed them to get the younger children.
If federal prosecutors fail to win a death sentence in the case involving the two younger children, a jury will be chosen in Idaho state court to consider whether to impose the death penalty on the murder counts that Duncan pleaded guilty to in October. Duncan was charged Thursday in a California state court in Anthony's death. Prosecutors there said they also intend to seek the death penalty.
Duncan is a Tacoma, Washington, native who spent most of his adult life in Washington state prisons for sexual crimes against children. In 2004, he had been arrested for allegedly molesting a 6-year-old boy and attempting to molest another boy in Detroit Lakes, Minnesota. Authorities say he jumped bail on that charge.
This story has me thinking again about under-explored federalism issues in the debate over the death penalty. As this case shows, particularly awful murders often provide a basis for the federal government to pursue a capital charge in federal courts. Wouldn't it make sense for states to rarely (if ever) pursue capital cases (and not be able to take second bites at the death penalty apple), and for the federal government instead to have primary responsibility for pursuing the death penalty in the most horrific murder cases nationwide?
Significantly, the federal government already tends to dominate the prosecution of the most severe white-collar crimes. Though they surely could have been be charged with some state offenses, high-profile white-collar defendants like Jeff Skilling and Bernie Ebbers typically face only a federal prosecution. If this model seems to work for high-profile white-collar crimes, why not also for high-profile murders?
January 23, 2007
State of the Union and modern sentencing politics
I will be surprised if President George Bush's 2007 State of the Union Address tonight includes any criminal justice talk. Last year's speech didn't. Still, it bears recalling that some of President Bush's previous State of the Union Addresses included a few criminal justice surprises:
- Calling America "the land of second chance," President Bush in his 2004 State of the Union address spotlighted prisoner re-entry issues and proposed "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."
- Asserting that in America "we must make doubly sure no person is held to account for a crime he or she did not commit," President Bush in his 2005 State of the Union Address asserted that he was bringing "to Congress a proposal to fund special training for defense counsel in capital cases, because people on trial for their lives must have competent lawyers by their side."
I spotlight these prior comments in part because, after the filing of a brief against the defendant in Claiborne on behalf of two purported liberal Democrats, I continue to think that current Republican leaders are perhaps the federal officials most likely to advocate and engineer progressive sentencing reforms. Sadly and tellingly, as well detailed here at the Law Librarian Blog, House Speaker Nancy Pelosi aggressive agenda for the first 100 legislative hours of the 110th Congress did not include any criminal justice reform.
More reactions to and analysis of Cunningham
For a lot more reaction and insight on Cunningham, check out all the media pieces that Howard Bashman has assembled here. In addition, my terrific OSU colleague Alan Michaels sent me a lengthy e-mail with a seven-point dissection of aspects of Cunningham. He has permitted me to post his full e-mail (which can be downloaded below). For a taste, here is one of his thought-provoking points:
The Court was at least reasonably tough here in not allowing a state to do an end run around the Court's earlier decisions by federalism-tinged arguments about construing their own law. This issue would seem to arise in at least a couple of other Crim. cases this term --- totally outside the Apprendi line --- including Smith and Panetti. It will be interesting to see if this toughness carries over to other areas or if its presence becomes dependent on the issue in question.
MORE: Another colleague, Kate Stith from Yale, has chimed in with an additional comment about a notable aspect of Justice Alito's dissent:
Senators' brief supporting the government in Claiborne
In addition to the bottom-side briefs noted here, Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein have filed a "Brief in Support of Affirmance in Claiborne v. United States." That brief can be accessed here thanks to the NYCDL, which now has updated its complete set of Claiborne and Rita briefs at this page.
I had heard that a Senators' brief was in the works, but I was hoping it might be filed not in support of either party (as was the brief I wrote for a group of law professors striking similar themes). I am particularly disappointed that these Senators concluded that the district judge in Claiborne acted unreasonably when deciding that 15 months was a sufficient punishment for Mario Claiborne.
Though I will have a lot more comments about all the bottom-side briefs in future posts, I find especially peculiar that the Senators' brief asserts that "The District Court Failed to State Clear and Principled Reasons for the Sentence It Imposed." If their concern is ensuring that district courts state clear and principled reasons for sentences, the Senators really should have filed a brief in support of the defendant in Rita. I have not heard a clear and principled reason — from the district court or the Fourth Circuit or from anyone else — as to why a decorated military veteran like Victor Vita should receive a prison sentence of 33 months for a seemingly minor, non-violent offense.
UPDATE: A partisan observer of federal sentencing had this immediate unvarnished reaction to the Senators' brief:
After a quick scan, the Senators' brief looks even more offensive than I expected. And racist, I might add.
CLARIFICATION: A thoughtful and well-meaning reader has rightfully suggested that I not react to my disappointment over the Senators' brief by taking cheap shots or by indirectely suggesting anyone is a racist. Indeed, this reader suggests I stress notable aspects of the substance of the Senators' brief, such as this interesting footnote:
[A]mici respectfully disagree with the proposition that sentencing decisions "must be done case by case and must be grounded in case-specific considerations," without reliance on broader principles that can be applied by courts in other cases. See, e.g., United States v. Pho, 433 F.3d 53, 64-65 (1st Cir. 2006). Uniformity is advanced by the development of rules of general applicability, not the exercise of unguided discretion on a case-by-case basis.
FURTHER EXPLANATION: Highlighting the power of loaded charges, the term "racist" above has generated lots of reaction. The partisan has sent me this further explanation: "if the Senators knew all of the facts regarding the crack guideline, they could not get behind affirmance of the Eighth Circuit's reversal of a perfectly reasonable application of 3553(a) that ameliorated the unreasonable effect of a guideline that everyone, including the Sentencing Commission, knows has a racially disparate impact."
For me, this whole debate highlights the importance of taking a critical race perspective on the modern state of federal sentencing. As but one example, I highlighted in this post, consider that the USSC's March Booker report reveals that, after Booker, roughly 1 in 5 first offenders get a below-guideline sentence after Booker, but for black first offenders, the number is roughly 1 in 6; for hispanic first offenders, the number about 1 in 9. And yet, sadly, these Senators have chosen to file a brief arguing that one of the rarer below-guideline sentences given to a black, non-violent first offender is unreasonable.
CJ Roberts and sentencing law: his Cunningham work
Almendarez-Torres, Jones, Apprendi, Harris, Blakely, and Booker, the six major (non-capital) Sixth Amendment rulings of the Rehnquist Court, were all decided by 5-4 votes. Cunningham, the first (of many?) major Sixth Amendment ruling of the Roberts Court was decided 6-3. This notable reality is magnified by the fact that Chief Justice Roberts is the sixth Justice to buy his ticket to Apprendi-land.
As Linda Greenhouse and others have noted, CJ Roberts' vote is perhaps the biggest SCOTUS-watcher aspect of Cunningham, especially given his apparent hostility to Apprendi expressed at the Cunningham oral argument and Jeff Rosen's recent article in the Atlantic Monthly about CJ Roberts' eagerness for greater consensus. Here are just a few questions kicking around my brain this morning:
1. Did CJ Roberts' vote for defendant Cunningham at the Justices' private conference right after oral argument and then assign the opinion Justice Ginsburg OR was CJ Roberts' initially with the dissent until he saw that the majority opinion had the weight of nearly all recent precedents on its side?
2. Might Justice Thomas — who initially resisted a broad reading of the Sixth Amendment in Almendarez-Torres but then became a true Apprendi believer — have played a large role in shaping CJ Roberts' vote? Jan Crawford Greenburg has this WSJ op-ed suggesting Justice Thomas has been a far more influential Justice than many realize.
3. What CJ Roberts' vote in Cunningham portend for the future of both Blakely and Booker? Specifically:
- Will CJ Roberts resist — as has Justice Thomas — the prior conviction and mandatory minimum exceptions to the "bright-line" Apprendi-Blakely rule?
- Will CJ Roberts favor extending Blakely's reach to new settings to limit, for example, judicial fact-finding increasing financial penalties or revoking supervised release?
- How will CJ Roberts approach Claiborne and Rita, especially in light of his role as Chief? Will he work extra hard (as I think he should) to push the Court to deliver a crisp and clear opinion to guide all confused federal sentencing participants about post-Booker rules?
Prior posts in series:
- CJ Roberts and sentencing law: a series
- CJ Roberts and sentencing law: the virtues (and vices?) of consensus
What will Cunningham mean for other state sentencing reforms?
Trying to figure out exactly what Cunningham might mean for California sentencing — both in terms of past sentences and future reforms — makes my head hurt. This AP piece and this commentary covers this part of this story nicely. And, in the days and weeks ahead as oral argument in Claiborne and Rita approach, many will debate what Cunningham might mean for post-Booker federal sentencing.
But not to be overlooked in all the Cunningham craziness is what the decision might mean for the development of structured sentencing reform in states throughout the country. In short form, the impact of Cunningham depends largely on how a state dealt initially with Blakely: those that denied Blakely's applicability (like New Mexico) have a lot of new work ahead; those that dealt with Blakely head-on should see Cunningham as vindication for earlier efforts.
For more background and insights on state stories, be sure to check out the recent issues of the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law examining Blakely in the states.
An interlude for sex and death
I could continue to write non-stop about Cunningham and Claiborne and Rita after all of Monday's action (details here and here). But, not wanting to forget about all the other significant sentencing action these days, here is a brief interlude for some sex and death:
Sex: Corey Young has lots of great stuff at Sex Crimes on a range of topics, including interest posts on developments in New Jersey and a controversy about whether Dakota Fanning's new edgy movie, Hounddog, might qualify as child pornography. This latter topic is also smartly covered here by Ann Althouse (who has been in especially fine form lately).
Death: As usual, Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project all have lots of coverage of lots of different capital developments. Of particular note, as detailed here, Justice Scalia granted a stay to a Texas death row inmate due to be executed later this month.
Major conference on race and criminal justice
As detailed in this flyer and full program, an extraordinary group is coming together in early March at Columbia Law School for a symposium entitled Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp. Here is part of the pitch from the full program:
The 20th anniversary of the McCleskey decision presents a unique opportunity for the racial justice community to renew and reinvigorate the struggle to achieve balance and fairness in the administration of justice in the United States. With the "Pursuing Racial Fairness in Criminal Justice" Symposium, LDF and Columbia Law School are bringing together leading scholars on race, crime and law, as well as activists and practitioners to discuss new ways of challenging, and ultimately reversing, McCleskey's reach through legislative advocacy, institutional reform, and litigation.
As I have detailed in some posts below, I think this should be the next frontier for a modern civil rights movement.
- New California study on race and death penalty
- Race and reform
- Racial disparity and sentencing reform
- New (depressing) report on race and increased incarceration
- Drugs and racial discrimination
- A call for USSC to focus on racial disparity
January 22, 2007
(All?) bottom-side briefs for Claiborne and Rita
Thanks to many kind readers, I now have received multiple copies of the government's briefs and the US Sentencing Commission's brief filed today in Claiborne and Rita. I provide them for download here:
I am not certain if this comprises the total of all the briefs filed in Claiborne and Rita (and I have left out some of the appendices). I will post any other amici briefs filed today upon discovery. And commentary on these defenses of the federal guidelines will follow as time an energy permits.
A few more observations on the Cunningham opinion
There's so much more to say about the Court's work in Cunningham, I hardly know where to jump in. Before heading home for the night, let me make a few more observations about the majority opinion:
1. The Cunningham majority twice calls the Apprendi doctrine a "bright line rule" (which is how Justice Scalia described the rule in Blakely). As I explained here a long time ago, the California lower court ruling reviewed in Cunningham was really possible because the Booker remedy obscured whatever bright line Blakely may have aspired to create. Cunningham reveals that there are now six Justices eager to draw this constitutional bright line.
2. Footnote 14 suggests that six Justices are not eager to have "Apprendi's bright line rule" include an offense/offender distinction that I have long been espousing. Justices Kennedy and Breyer seem to have some affinity for such a distinction, but it seems that ship has sailed. However....
3. Still unclear now is the validity and scope of the "prior conviction exception" to "Apprendi's bright line rule." My embrace of an offense/offender distinction was in part an effort to give this exception some conceptual vitality. One would think that a "bright line rule" ought not be obscured by exceptions, which suggests the fate of the "prior conviction exception" may still be very much up in the air (although it may now qualify as super-duper precedent).
4. The Cunningham majority emphasizes judicial fact finding as presenting constitutional problems, which suggests that the fact/judgment distinction that I have been also espousing (with some help) might still have legs. I suppose time (and Claiborne and Rita) will tell.
Were bottom-side briefs filed in Claiborne and Rita today?
Though I have already speculated here on a new SG strategy for Claiborne and Rita, I am very curious about whether and what was filed by the government (and any amici) in these cases today. I have not yet seen any bottom-side briefs, and perhaps I have my dates wrong. But, if any readers have their hands on these filings, please consider sending me a copy for posting.
First-cut media coverage of Cunningham
Howard Bashman (who else?) already has collected lots of early media coverage of Cunningham from NPR and law.com and San Francisco Chronicle and the Los Angeles Times. Additional coverage is flagged here at SCOTUSblog. Let me recap my first set of posts, which have already produced lots of great comments:
- Cunningham arrives (and strikes down California sentencing)!
- Cunningham opinion basics
- Cunningham as a lawyer's and law profs' dream (or nightmare)
- Justice Ginsburg's majority opinion in Cunningham
- Should the SG now ask for a GVR in Claiborne and Rita?
In (timely?) other news, Ninth Circuit approves use of acquitted conduct
Perhaps just to prove my claim that the Supreme Court is most pro-defendant appellate court on issues of sentencing procedure, the (purportedly liberally) Ninth Circuit today in US v. Mercado, No. 05-50624 (9th Cir. Jan. 22, 2006) (available here) approves judicial use of acquitted conduct to enhance sentences. Mercado is a split decision with Judge Fernandez ending the majority opinion this way:
We join, rather than rain upon, the parade of authority that finds no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts. We hold that Booker has not abrogated the previously prevailing constitutional jurisprudence that allowed sentencing courts to consider conduct underlying acquitted criminal charges.
Judge Betty Fletcher finishes here dissent this way:
Had the district court not rejected the jury's finding, defendants would have received a dramatically reduced sentence — a fact disputed by nobody in this case. To hold that any sentence beneath the statutory maximum is acceptable is not enough: Apprendi requires examination "not of form, but of effect." Id. And here the effect was to expose defendants to a dramatic increase in punishment based upon conduct for which the jury refused to authorize punishment in the only way it could — by acquitting defendants of the most serious conduct with which they were charged. Neither Jones, nor Apprendi, nor Ring, nor Blakely, nor Booker countenance this result. I would vacate defendants' sentences on Sixth Amendment grounds and remand to the district court for re-sentencing.
Hmmm... now that Cunningham can be added to Judge Fletcher's list, I have to say I think the dissent gets the better of the arguments.
Should the SG now ask for a GVR in Claiborne and Rita?
I noted here that, after today's Cunningham ruling, my heart goes out to the lawyers who had to file bottom-side briefs in Claiborne and Rita. Giving a bit more thought to federal sentencing in light of the broad discussion of Claiborne and Rita in the Cunningham opinions, I am wondering if anyone inside the SG's offices is now considering a really bold strategy — namely, conceding possible error in Claiborne and Rita and asking for a GVR so the lower courts can take stock of Cunningham.
It is not clear that SCOTUS would even grant a GVR in Claiborne and Rita, but the first issue is whether the SG ought to now ask for one. Cunningham has reinforced my sense that the Supreme Court is currently the most pro-defendant appellate court in country on issues of sentencing procedure. For that reason, I could see the SG being more eager to hash out the meaning of Cunningham with the generally pro-government circuit courts than with the generally pro-defendant Supreme Court.
Justice Ginsburg's majority opinion in Cunningham
I am about to head to a coffee shop with a hard-copy of Justice Ginsburg's majority opinion in order to make sure I am fully caffinated for a close read. Based on my first quick read, here's a line that will surely endure: "Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless."
Dan Markel here at PrawfBlawg has some initial insights about the majority opinion, all of which seem spot-on. I agree with the notion that CJ Roberts' willingness to join a forceful opinion ensuring Blakely has teeth is possibly the most important bit of news today.
More commentary about the majority opinion will follow, but I encourage readers to use the comments to pinpoint other quotes or ideas that merit extra attention from Justiuce Ginsburg's work for a full six members of the Court.
Cunningham as a lawyer's and law profs' dream (or nightmare)
Thanks to this SCOTUSblog post, you can find the opinion of the Court in California v. Cunningham here (syllabus here). The dissent, written by Justice Kennedy and joined by Justice Breyer, is here. Justice Alito's dissent, joined by Kennedy and Breyer, is here.
I have only had a chance to give all the opinions a very quick read, but my first take is that there is A LOT in all of the opinions that every criminal lawyer (and interested law professor) will have to think about. For those arguing for extensions of Blakely (or against lower court approaches to Booker), there is a lot in all the opinions that should make you smile. For those eager to have the Court start charting a more cautious, consistent and consensus post-Booker path, there are passages that may make you sad.
Especially since the opinions spend a lot of time discussing federal sentencing law and Claiborne and Rita, I think right now my heart goes out to the DOJ lawyers who had to file bottom-side briefs in those cases today. I wonder if they can ask for a last-minute extension (or if the timing of the Cunningham ruling is not merely coincidental).
Cunningham opinion basics
The full Cunningham opinion can now be accessed via Westlaw (and is also likely soon to be available here). I'll need a few hours — perhaps even a few days or weeks — to take in all in. But here are the basics:
1. Justice Ginsburg wrote the opinion for the Court, which is joined by Justices Stevens, Scalia, Souter, Thomas and (consensus-builder?) CJ Roberts.
2. Justice Alito wrote the main dissent in which Justices Kenney and Breyer joined. It starts with this notable sentence: "The California sentencing law that the Court strikes down today is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in United States v. Booker, 543 U. S. 220 (2005)."
3. Justice Kennedy wrote an additional dissent in which Justice Breyer joined (and which kindly cites my recent piece with Stephanos Bibas, Making Sentencing Sensible, 4 Ohio St. J. Crim. L. 37 (2006)).
Cunningham arrives (and strikes down California sentencing)!
Apprendi, Blakely and now Cunningham ... the A,B,C of jury trial rights now includes three cases striking down state sentencing laws giving state judges undue authority to find facts to increase sentences. Here's the initial report on Cunningham from SCOTUSblog:
Dividing 6-3, the Supreme Court ruled on Monday that California's "determinate sentencing law" is unconstitutional because it allows judge's to find facts that lead to higher criminal sentences. Justice Ruth Bader Ginsburg wrote for the majority in Cunningham v. California (05-6551). The California system, the Court said, assigns to the trial judge, not the jury, authority to find the facts that expose a convicted individual to an elevated "upper term" sentence.
How huge Cunningham is for state and federal structured sentencing reforms will depend greatly on exactly what the opinion says. But, even sight unseen, the outcome of Cunningham spotlights that a majority of the High Court is now more interested in livening up Blakely than in continuing to water it down (as did the Booker remedy).
A lot more commentary will follow throughout today once I see and have a chance to consume the Cunningham opinion.
UPDATE: This AP account already has this quote from the opinion:
"This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by the jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence," Justice Ruth Bader Ginsburg wrote for the court.
Busy non-capital sentencing times
January has already been quite a sentencing month. Though death penalty issues are capturing a lot of attention (details here and here and here), the sentencing news has been dynamic on many fronts. Because I am always eager to ensure capital stories do not eclipse other developments, here is a recap of some of this month's non-capital highlights:
SCOTUS DEVELOPMENTS AND COMMENTARY
- My effort to help with the SCOTUS docket problem
- The wait for Cunningham continues
- Speculating about Cunningham's composer
- CJ Roberts and sentencing law: a series
- CJ Roberts and sentencing law: the virtues (and vices?) of consensus
BOOKER DEVELOPMENTS AND COMMENTARY
- Who will be supporting the government in Claiborne and Rita?
- NLJ coverage of Patrick Lett appeal
- Report on USSC public hearing
- Judge Gertner keeps contributing to a post-Booker common law
- Sentencing federalism: Judge Weinstein on state-federal disparity
STATE SENTENCING DEVELOPMENTS AND COMMENTARY
- A push for a sentencing commission in California
- Strong commentary on California reforms and the incarceration bias
- When tough-on-crime bills come due
- Calls for a sentencing commission in Colorado
SEX OFFENDER DEVELOPMENTS AND COMMENTARY
- First(?) test of the new federal crime for failing to register as a sex offender
- Another (ineffective?) sex offender restriction
- NPR story about elderly sex offender prisoners
- Potent commentary on the Genarlow Wilson case
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Seeking information on state restrictions on clemency
- An early sentencing take on the Libby trial
- Is going to state prison good for your health?
- Interesting federal focal point for pardon/clemency debate
- Recommended reading
Judge Gertner keeps contributing to a post-Booker common law
A new year brings a new terrific Booker read from US District Judge Nancy Gertner in US v. Germosen, No. 05-cr-10120 (D. Mass. Jan. 16, 2007) (available below). In Germosen, Judge Gertner provides a critical analysis of the the guidelines' treatment of first offenders and "aberrant behavior" on the way to granting a variance in a drug case.
As usual, Judge Gertner's contributions to the common-law development of post-Booker doctrines defies a summary; here is one of many notable passages from Germosen:
The Sentencing Reform Act, 28 U.S.C. § 994(j) directed the Sentencing Commission to deal specifically with first offenders. It ordered the Commission to "insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense..." Id.
The Commission, however, implemented that statutory directive by redefining "serious offense" in a way that was entirely inconsistent with prior practice, and not at all based on any real data or analysis. First offender status was folded into criminal history category I. Category I included those who had never had any encounters with the criminal justice system, never been arrested, as well as individuals who had been arrested and convicted but received short sentences. Shortly after the implementation of the Guidelines, it was clear that the Commission's decisions led to a far higher incarceration rate for non-violent first offenders than had been the pattern pre-Guidelines.
Because Judge Gertner granted a substantial variance in Germosen — varying from a a 37-46 month guideline range to a sentence of probation for two years with six months home detention and community service — I suspect the government is likely to appeal. I think the fact that Judge Gernter explained her approach in an opinion of 20+ page ought to garner her sentencing decision a presumption of reasonableness, but I doubt the First Circuit will adopt this suggestion.
January 21, 2007
Strong commentary on California reforms and the incarceration bias
As noted here, the debate over sentencing reform in California is about to get real interesting and dynamic. Helpfully, there is no shortage of thoughtful folks keeping an eye on the action. Over at Corrections Sentencing here, Michael Connelly zeroes in on the pervasive (and I think very harmful) tendency to assume imprisonment is the best and only way to be tough. Here is Mike's lament about this destructive status quo bias:
Where is evidence that prison is the best option? Seriously, where is it? What shows that the states which imprison at the levels of the CO's, the TX's, my own OK actually have lower crime rates than the states that don't? If they don't, then why is the option that costs us the most get such devotion?
Relatedly, the Sacramento Bee has this clear-headed commentary from Roger Warren, a former Sacramento Superior Court judge, about California sentencing reform. Here is Warren's astute account of what sentencing reform is really all about:
Criminal cases dominate the workload of California judges, who sentence more than 135,000 felony offenders a year. The hardest cases are not those of the most violent or dangerous criminals, or the sexual predators. Those offenders belong in prison and constitute only about 10 percent of the cases. Cases where the law mandates a prison sentence under circumstances that a judge considers unjust are hard, but they are also rare.
For many judges the most difficult and frustrating aspect of handling felony cases is dealing with the crushing volume of repeat offenders, most charged with nonviolent crimes, who constitute the vast majority of felony cases. Year after year, California judges sentence repeat offenders to jail and probation, and finally prison, with little hope for success in changing an offenders' future criminal behavior. Over time, many judges grow increasingly cynical and discouraged. Every day, judges see that our current sentencing policies aren't working and question whether there isn't a better way.
California's sentencing policies aren't working because, more than any other state, California relies overwhelmingly on incarceration as the answer to every crime rather than invest in meaningful adult probation services and effective community corrections programs to reduce crime. We need to put the concept of "corrections" back into the corrections profession.
Interesting federal focal point for pardon/clemency debate
As detailed here and in this topical index, I find legal and policy debates over executive clemency to be interesting, important and often under-developed. Now, thanks to recent coverage at TalkLeft and the New York Times, I see that President Bush is getting some notable pardon pressure from his right flank. Here are specifics from the NYT piece:
President Bush waded this week into the furor surrounding two former border patrol agents who were each convicted and sentenced to more than a decade in prison in the shooting of a suspected Mexican drug dealer in Texas. The case has become something of a cause among some advocates for tougher border security, who argue that the agents should be pardoned because they were doing their jobs in 2005 when they fired on the man, an assertion that has been contested by the federal prosecutors overseeing the case.
In an interview with KFOX-TV in El Paso, Mr. Bush was asked on Thursday whether he would consider a pardon for the two former agents, Ignacio Ramos and Jose Alonso Compean, who began serving their federal prison sentences of 11 years and 12 years respectively this week. "There are standards that need to be met in law enforcement, and according to a jury of their peers, these officers violated some standards," Mr. Bush said. "On this case, people need to take a hard look at the facts, at the evidence that the jury looked at, as well as a judge. And that's — I will do the same thing." "Now, there's a process for pardons," he continued. "I mean, it’s got to work its way through a system here in government. But I just want people to take a sober look at the reality. It's a case, as you said, it’s got a lot of emotions."
Some interpreted Mr. Bush's remarks to imply that he would consider a pardon for the two men. But Justice Department officials said on Friday that the two men were ineligible for consideration of a pardon at this time. Requests for pardons, which are screened by the Justice Department before being considered by the White House, are not considered until at least five years after a petitioner has been convicted or released from jail or prison, according to the department’s guidelines.
Some posts on President Bush's clemency and pardon powers:
Is going to state prison good for your health?
I just received news of a new publication from the Bureau of Justice Statistics which might force me to rethink my entire world-view as to the pros and cons of imprisonment. The new publication is "Medical Causes of Death in State Prisons, 2001-2004" and can be accessed online here. As explained in this press release (emphasis added), being sent to state prison might extend the average person's life:
The nation's state prison officials reported that 12,129 inmates died while in custody from 2001 through 2004, the Justice Department's Bureau of Justice Statistics (BJS) announced today. The deaths over this four-year period constituted an annual mortality rate of 250 deaths per 100,000 inmates, which was 19 percent lower than the adult mortality rate in the U.S. general population.
Overall, 89 percent of all state prisoner deaths were attributed to medical conditions and 8 percent were due to suicide or homicide. The remainder of deaths were due to alcohol/drug intoxication or accidental injury (1 percent each). A definitive cause of death could not be determined for an additional 1 percent. Two-thirds of inmate deaths from medical conditions involved a problem that was present at the time of admission to prison.
Of course, I suspect that, generally speaking, the baseline health of the population sent to state prison is better than the baseline health of the general population. Thus, I really doubt that these statistics prove that state prison is good for one's health. That said, I suspect that the populations in state prisons generally have healthier diets, exercise more and receive better basic medical care than much of the general population (given that, as noted here, someone pays attention to whether they are having too many donuts).
Terrific coverage of capital (mis)representation
As noted at How Appealing, and as nicely summarized at CDW and ODPI, Stephen Henderson today has a fantastic series of related articles about the poor quality of capital defense assembled here under the heading "No Defense: Shortcut to Death Row. The lead piece is available here and is entitled "Indefensible? Lawyers in key death penalty states often fall short."
The series has far too many highlights to conveniently summarize; anyone who follows the death penalty closely should read the whole set of piece. Among other virtures, these articles are great because they focus on the operation of the death penalty in four key states other that Texas, California and Florida, which are the three states that tend to make the most capital headlines (for various different reasons). Here are some of the findings:
A broad review by McClatchy Newspapers of recent death-penalty cases in Georgia, Mississippi, Alabama and Virginia provides, for the first time, an assessment of how commonplace these failures have become. McClatchy reviewed trial transcripts and appeal records and interviewed lawyers for 80 men and women who were sentenced to death from 1997 through 2004 in those four states. The review found that:
- In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty and serious psychological problems.
- By failing to investigate their clients' histories, lawyers in these 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the U.S. Supreme Court has mandated several times.
- Appeals courts for the most part have ducked those Supreme Court directives about the importance of quality defense counsel. So far, only two of the 80 death sentences have been overturned for bad lawyering.
- In 11 of the cases, the defendants already have been executed. Their cases moved through the appeals process without a single judge flagging lapses in the defense attorneys' performances.
In Virginia, Alabama and Mississippi, this poor legal representation is a result of official policy. The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases. Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence. So far, none of that office's 46 clients has been sentenced to death. Overall, the 80 cases that McClatchy reviewed show how poorly these four key death-penalty states fulfill a basic constitutional principle.
"For government, this is the ultimate policy decision outside of going to war," said Kenneth Starr, a former federal judge and independent counsel. Starr, who's now the dean of the Pepperdine University School of Law, has represented several death-row inmates on appeal, including one whose case was part of McClatchy's review. "We are going to sit in judgment of one of our own and take their life. Not doing it right is unspeakably shameful," said Starr, who supports capital punishment.
When tough-on-crime bills come due
This AP article from Michigan provides another example of the tough political choices that arise when the costs of tough-on-crime politics start coming due. Here are snippet from a very effective article:
Some politicians are as wary of freeing prisoners as they are of raising taxes. But with Michigan facing a daunting $800 million-plus budget hole this year, it's harder to ignore how much the state spends locking up criminals. States such as Illinois, Ohio and Pennsylvania have more residents than Michigan but incarcerate fewer inmates. Michigan's per-capita incarceration rate is the country's 11th-highest, ranks higher than seven other Great Lakes states and is fourth-highest among the 11 most populous states.
"The easy thing is to say, 'Don't let anybody out,'" said state Sen. Michael Switalski of Roseville, the top Democrat on the Senate Appropriations Committee. "Then you've got to pay the bill. But we're having trouble paying the bill." About 1,500 more inmates are being housed in state prisons this year than officials anticipated -- for a record-high total of more than 51,000.
Tom Clay, a budget guru with the nonpartisan Citizens Research Council of Michigan, has given hundreds of talks about the state's fiscal status in recent years. He says people are startled to learn that Michigan spends more on prisons than public universities. Clay said during a November conference that Michigan's annual prison budget is $1.9 billion -- roughly a fifth of the general fund -- but would be closer to $1.4 billion if the state's incarceration rate wasn't 40 percent higher than that of its Great Lakes neighbors.
Deep theory thoughts for a snowy Sunday
To celebrate our first real snow of the season in central Ohio, I plan to spend the day (after some snowman building) catching up on reading while keeping an eye on who plays their way into the Super Bowl. One piece I just found for my reading list is this SSRN draft by Mitchell Berman (no relation) entitled "Punishment and Justification." Here is the enticing abstract:
Retributivist and consequentialist justifications for criminal punishment have contended for generations without either emerging the obvious victor. Indeed, although many commentators have recently announced a retributivist renaissance, it is perhaps more accurate to observe a growing scholarly attraction to "mixed" or "hybrid" theories. And yet most extant mixed theories strike many as unsatisfactory for either of two reasons. The best known mixed theories assign retributivist arguments a too-marginalized role relative to their consequentialist competitors. Others, that avoid this perceived failing, lack hard edges: They assert that desert and good consequences are jointly necessary to the justification of punishment but offer little shape or structure to their inter-relationship.
This paper sketches a mixed theory that avoids these pitfalls. It gives retributivist and consequentialist accounts closer to co-top billing, while assigning each a distinct role in the argumentative logic. It accomplishes this task by attending with seriousness to the point of departure for virtually the entire scholarly literature on the justification for criminal punishment. Almost invariably, contributions to that literature start by observing that "punishment stands in need of justification." So-called theories of punishment are, accordingly, efforts to meet that need. Precisely because these theories are situated ab initio within an argumentative dialectic, one might expect their persuasiveness to depend, in part, on how fully and satisfactorily they understand the proposition to which they aim to respond. Surprisingly, however, the vast literature on punishment has given remarkably short shrift to the question of what is meant and entailed by a demand that punishment be justified. This paper seeks to rectify that oversight by analyzing both what it means to demand justification for a given practice and how such a demand can be satisfied. Once armed with a richer understanding of the logical structure of justificatory argumentation, we are better able to see how a mixed theory of punishment might plausibly emerge.