October 13, 2007
Suggestions for helping the Roberts Court deal with shrinkage
Time magazine has this great cover story on the Roberts Court. The piece is entitled, "The Incredibly Shrinking Court" and here are some (of many) highlights:
As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law. There is, it seems, an inverse relationship between the passions expressed in judicial writings and the import of the cases that inspire them. In the midst of these battles, no one seems to have noticed that the stakes have diminished....
The familiar hot-button controversies -- abortion, affirmative action, the death penalty, police powers and so on -- have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it's not clear that Roberts wants to alter that trend. His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution. Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000--a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence. What once was salient is now mostly symbolic....
A sense of proportion is among the defining qualities of a judge. Yet the Roberts Court so far is better known for making symbolic mountains out of real-life molehills.
Though the Time piece suggests that the new Chief is not troubled by the shrinking court, I am troubled by the Court's Constanza-like shrinkage experience. Of particular concern to me is the Court's repeated tendency to shrink like a frightened turtle from an array of important questions ranging from procedural rights at sentencing to extreme mandatory sentences to residency restrictions.
Consider, as but one example, the meaning of the Fifth and Fourteenth Amendments' Due Process Clause at sentencing. The Justices have not addressed this issue head-on since the mid 1980s in McMillian, and the very-dated 1949 Williams decision is still a leading precedent. And yet, with well over a million felony sentences imposed every year, roughly 4000 "real people" are impacted by sentencing procedures every single day the nation's courts are open for business. I sure wish the incredibly shrinking Court would come out of its shell to take a modern look at what the Due Process Clause means at sentencing.
Does the efficacy of sex offenders residency restrictions impact their constitutionality?
This new piece by Sarah Tofte at the Huffington Post, entitled "Sex Offender Laws May Do More Harm Than Good," chronicles the potential inefficacy of sex offender laws. Here are snippets:
A growing number of child safety and rape prevention advocates agree that current laws are not working. For example, the California Coalition Against Sexual Assault (CALCASA), a state-wide coalition of 84 rape crisis centers and sexual assault prevention programs, had this to say about residency restriction laws: They "waste valuable resources on sex offenders who are unlikely to reoffend, while leaving a deficit of treatment, supervision, and focus on offenders who we know should be receiving more intense scrutiny."...
Residency restriction laws, in place in 20 states, are based on another popular belief about former offenders -- that keeping them away from places where children gather will reduce their risk of re-offending. But there is no evidence these laws diminish crimes against children and some to suggest the opposite.
A recent study by the Minnesota Department of Corrections analyzed 224 sex offender recidivists to see if where they lived had an effect on their crimes. The study found that residential proximity had very little impact on a recidivist's opportunity to re-offend. Many took pains to drive far from their neighborhoods in order to re-offend. More than half (113) came into contact with their victims through "social or relationship proximity" to the child. The most common example was that of a male offender who found his victim(s) while socializing with their mother.
The main impact of residency restrictions may be to drive former offenders underground, away from families, police supervision and the help that can stop them re-offending. As an Iowa sheriff pointed out, "We've taken stable people who have committed a sex crime and cast them out of their homes, away from their jobs, away from treatment, and away from public transportation. It's just absolutely absurd what these laws have done, and the communities are at greater risk because of it."
It will be interesting to see whether, as evidence mounts about the inefficacy of sex offender residency restrictions grow, whether more courts are inclined to find these laws unconstitutional.
Some related related posts:
October 12, 2007
A challenge: help me "come off the fence" concerning the death penalty!
In a wonderfully provocative comment, peter here urges me to "come off the fence" concerning the death penalty. OMG echoes and endorses "peter's very respectful observation." If forced off the fence, however, I am probably not inclined to land on the abolitionist side (where peter and OMG apparently want me). In the (silly?) hope of generating a productive debate, let me quickly explain to peter and others why I am so ambivalent about the death penalty.
1. Uncertainty about deterrence. Lacking sophisticated social science skills, I cannot reach a firm conclusion on the empirical debate over whether the death penalty saves innocent lives. But my consequentialist philosophy makes me willing to endorse the execution of a few convicted murderers if doing so could save innocent lives. Though many justifiably raise doubts about deterrence data, only clear evidence that the death penalty costs innocent lives would turn me into a committed abolitionist.
2. Concerns about alternatives. In the spirit of JS Mill's famed speech, I am troubled by the embrace of life imprisonment without parole (LWOP) as a "more just" alternative to the death penalty. It is telling (and disappointing) that many modern efforts to abolish the death penalty lead to more LWOP sentences (often even for some offenders who would not have been subject to capital punishment).
3. Sincere assertions of victims' interests. I believe victims should have a prominent (though not dominant) say in how the criminal law responds to their victimization. Consequently, I have a hard time disregarding the voices of those victims who sincerely assert and genuinely believe that only the execution of a murderer will bring catharsis or repose for them.
4. Respect for democratic choices. Points made above do not make me a supporter of the death penalty, just an agnostic. But that agnosticism makes me skeptical of abolitionist opposition to the death penalty in light of broad democratic support for the punishment. Though I do not agree with all policy positions supported by public opinion polls, my respect for democratic choices makes me wary of the implicit political commitments of committed abolitionists.
That all said, I still view the modern flawed American death penalty system as an expensive, convoluted and distorting legal machinery that probably does more harm than good. But that is why I tend to be drawn more toward arguments to fix the death penalty --- by, as suggested here and here, making it exclusively federal --- rather than toward abolitionist claims.
But, on a Friday afternoon after a long week, perhaps I just can't see the great arguments for pushing me off the fence regarding the death penalty. Commentors are encouraged to help me see the light.
When and how will SCOTUS address residency restrictions?
There is lots of news around the blogosphere about sex offender residency restrictions:
- How Appealing here collects media coverage of a new brouhaha between the California Supreme Court and Governor Arnold Schwarzenegger over enforcement of the state's residency restriction.
- Sex Crimes here notes the dispute in California along with the litigation now before the Ohio Supreme Court concerning retroactive application of Ohio's residency restrictions.
- f/k/a here laments the extreme residency restrictions recently enacted in Utica, New York and in Newton, New Jersey.
All these developments confirm my instinct that it is only a matter of time before the US Supreme Court is going to have to take up legal challenges to sex offender residency restrictions. It is interesting to speculate exactly when and how these issues will come before the High Court.
October 11, 2007
The latest lethal injection news
As this new NPR piece highlights, it is still not clear whether the Supreme Court's consideration of the Baze lethal injection case will halt all states from carrying out executions. The NPR piece, entitled "States Still Planning Lethal Injection Executions," highlights that Georgia has recently scheduled two execution dates for later this month (previously discussed here).
In addition, StandDown Texas Project has a great round-up here of various other developments on the lethal injection front. All this uncertainty and state-federal craziness draws me back to this post from 18 months ago in which I urging Congress to be more proactive in trying to deal with all the lethal injection messiness.
Some recent related posts:
- SCOTUS stops Texas execution: is a national Baze moratorium now a given?
- A Texas companion? A lengthy de facto moratorium? What the Baze f@%$, SCOTUS?
- Georgia schedules two executions for later this month
- Another Texas execution halted ... is moratorium now official?
- Is the developing moratorium on executions risking innocent lives?
UPDATE: The Miami Herald provides an update on developments in Florida in this article entitled "Court weighs fairness, secrecy of executions."
ANOTHER UPDATE: Over at Capital Defense Weekly, Karl Keys has this terrific post providing a "rough thumbnail sketch of the rest of this year's scheduled executions." The post concludes with this summary: "Long story short, stays in light of Baze are possible, and believed to be likely, for all the currently scheduled execution dates through Christmas save Monday's scheduled date of [execution volunteer] William Castillo in Nevada."
Exploring prior good works in a white-collar world
Peter Henning of White Collar Crime Prof fame has posted on SSRN this new piece, entitled "Prior Good Works in the Age of Reasonableness," that should be of interest for folks following the federal sentencing of offenders with any color collar crime. Here is the abstract:
The Supreme Court's decision in United States v. Booker allows federal judges a bit more discretion in sentencing, and with greater discretion in sentencing likely means less predictability in individual cases if the background of the person being sentenced takes on a larger role in assessing the appropriate punishment. One area that may become more prominent in sentencing in white collar crime cases is a defendant's prior good works, which the Federal Sentencing Guidelines discourage as a sentencing factor but judges in the post-Booker age of reasonableness may pay greater attention to in their sentencing decisions. The President's recent commutation of the sentence of I. Lewis "Scooter" Libby, based in part on his valuable government service, will only increase the likelihood that prior good works will be an important ground for seeking a reduced sentence.
With greater discretion comes the potential for disparity, and in this Article I offer three rules of thumb for trial courts, and appellate courts reviewing the reasonableness of a punishment, to keep in mind when considering whether a defendant's prior good works should be a factor in the sentence. The three rules are: (1) Money matters; (2) Beware the corporate chieftain; and (3) Elected officials violating the public trust should not receive credit for good works.
Some related posts about prior good works at sentencing:
Lastest federal-state head-butting over prior convictions
I noted here last week this article from Boston discussing a brouhaha over a state judge vacating a prior state conviction in an effort to impact federal sentencing realities. The latest twists in the story come from this new Boston Globe story. Here are excerpts:
A prominent federal judge issued an angry rebuke yesterday against his counterpart in the state district court, adding another extraordinary twist in the now failed attempts of a repeat convict to sidestep a lengthy prison term under the career criminal statute.
"It never occurred to me that there could be [such] a deviation from the laws of the Commonwealth," US District Court Judge William Young said at a sentencing hearing. His ire was directed not at the convicted drug dealer before him, but at Quincy District Court Judge Diane E. Moriarty, who last month vacated a previous state conviction against the defendant without prosecutors present. Moriarty's Sept. 24 decision to rescind a previous assault conviction against Matthew West, who was awaiting sentencing on a federal drug charge, would have spared him designation as a career criminal and a longer prison term. According to transcripts, she told West's lawyer to tell his client that "it was an early Christmas present."
While Young never mentioned Moriarty by name, his criticism clearly referred to her decision, which would have reduced West's maximum prison time from 27 years to less than two. Young said it never occurred to him that a state judge would display "so little respect" for court proceedings by ruling without consulting Suffolk County prosecutors. "I confess that having gone over the record, I am guilty of a stunning naïveté," said Young, a Superior Court judge from 1978 to 1985, who sentenced West yesterday to 15 years in prison for his March conviction on two federal counts of distributing cocaine.
The rare public rebuke was the latest development in the topsy-turvy case in which Moriarty rescinded her reversal Tuesday, under pressure from federal prosecutors.... As a result of Moriarty's initial dismissal of the conviction, Young said he would change procedures for sentencing federal defendants who are waiting to see whether they can get minor state convictions thrown out to avoid being labeled career criminals.
Oregon Supreme Court applies Apprendi to consecutive sentences
Providing a great reminder that there are still many unsettled Blakely issues, the Oregon Supreme Court today in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), holds that the "federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences." All Blakely fans should make the time to check out Ice.
The majority's opinion in Ice is cool for many reasons: it has a thoughtful discussion of state constitutional law, it effectively reviews the Apprendi line of cases, and it essentially castigates other state supreme courts for reading Apprendi too narrowly. But the dissent in Ice is also cool: it notes the long tradition of judges deciding whether to impose consecutive or concurrent sentences, it accuses the majority of "extending the rule in Apprendi farther than either the holding or the reasoning in that case warrants," and it documents that nearly every court "that has considered this [consecutive sentencing] question has held that Apprendi does not apply in this context."
Because Ice deepens a split over the reach of Apprendi and Blakely, the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court.
Second Circuit revises reversal of above-guideline sentence
As How Appealing notes here, the Second Circuit today issued this revised decision in its important variance case of United States v. Cavera (previously discussed here). I am hopeful that Harlan at the Second Circuit Sentencing Blog will help everyone figure out what's new and extra important in this revised effort.
Split Sixth Circuit ruling upholding large upward variance
A divided Sixth Circuit panel this morning in US v. Smith, No. 06-5681 (6th Cir. Oct. 11, 2007) (available here), upholds a large upward variance. Here is how the majority opinion authored by Judge Griffin begins:
Defendant Ronald Russell Smith pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). After noting that Smith committed the robbery while on supervised release for two other federal felonies, had 22 prior state convictions, and continued to commit crimes while in custody, the district court sentenced him to a term of 132 months of incarceration. The district court considered the advisory Sentencing Guideline range of 46 to 57 months, but concluded that a 132-month sentence was warranted because of defendant’s extraordinary criminal history and exceptional danger to public safety. Defendant now appeals his sentence as being unreasonable. For the reasons set forth below, we affirm Smith’s sentence. In doing so, we hold that defendant’s above-the-Guidelines sentence is both procedurally and substantively reasonable, and thus the district court did not abuse its sentencing discretion.
Here is how the dissenting opinion authored by Judge Cole ends:
[I]n affirming the district court’s sentence as reasonable, the majority has departed from our central task in reviewing sentences–to ensure ‘“a sentence [is] sufficient, but not greater than necessary, to comply with the purposes set forth in’” section 3553(a). Under our “proportionality review,” the record simply does not permit this Court to conduct a meaningful review as to whether an upward variance of 158 percent is proportionate to the instant offense or offender. Had therebeen a fuller explanation from the characteristically thorough, experienced, and competent judge who sentenced the defendant–a defendant who clearly has an extensive criminal past–then my review might have come to a different result.
Getting to the emotional heart of the death penalty
Susan Bandes, who has done a lot of interesting work on law and emotions, has this new piece about the death penalty posted on SSRN. The piece is entitled "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty," and here is the abstract:
The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values, and if the latter, what values the penalty does in fact express, where those values originated, and how deeply entrenched they are. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will have salutary consequences for the clarity of the debate. The focus on emotional variables reveals that the demarcation between instrumental and expressive values is porous; both types of values are informed (or uninformed) by fear, outrage, compassion, selective empathy and other emotional attitudes. More fundamentally, though history, culture and politics are essential aspects of the discussion, the resilience of the death penalty cannot be adequately understood when the affect is stripped from explanations for its support. Ultimately, the death penalty will not die without a societal change of heart.
A defendant a bit too motivated to present mitigating evidence
A friendly reader sent me a link to this interesting local story discussing a recent development about a federal sentencing proceeding in Arkansas. Here are the highlights:
A motivational speaker accused of filming girls as they undressed and downloading images of infant rape submitted forged letters of support in an attempt to reduce his prison sentence, a federal judge found Tuesday. The ruling could mean tougher punishment for Michael V. Fortino, a Pittsburgh man who was arrested on child pornography charges in 2005 after a speaking engagement in Fayetteville.
Fortino, 47, was sentenced last week in U. S. District Court to 11 years and three months in prison then 20 years of supervised release after entering a plea agreement charging him with one count of transmitting child pornography across state lines. Prosecutors and probation officers, who conducted pre-sentencing investigations, had asked for leniency, saying Fortino had accepted responsibility for his actions and had cooperated with investigators.
But last week, the U. S. attorney’s office filed a motion to vacate the sentence after receiving information that led them to believe that two letters, including one supposedly written by the father of a girl who had been secretly taped, were fake. Judge Jimm L. Hendren said that had the court known Fortino submitted fraudulent letters, his sentence likely would have been harsher.
October 10, 2007
Does the Blakely Five really care about sentencing procedures?
One of many reasons I thought Blakely was so important was because it suggested that five Justices really cared about procedural rights in modern sentencing schemes. But, as Steve Sady highlights in this recent post, the Supreme Court continues to deny cert on many issues that seek to follow-up on Blakely's promise to champion "adversarial testing" over "judicial inquisition" at sentencing.
Of course, the Booker remedy seriously undercut efforts to champion "adversarial testing" over "judicial inquisition" at sentencing. Nevertheless, a range of follow-up Booker issues, ranging from the proper burden of proof at sentencing to acquitted conduct enhancements to judicial fact-finding to revoke supervised release, all present fresh and important opportunities for the Blakely Justices to champion again "longstanding tenets of common-law criminal jurisprudence." Sadly, though, more than 3 years after Blakely, we are still awaiting the Court to fulfill Blakely's promised commitment to robust procedure justice at sentencing.
A lengthy argument in Medellin
As reports from SCOTUSblog and the AP highlight, the Medellin case argued today before the Supreme Court gave the Justices plenty to think (and talk) about. The full transcript of today's oral argument is available here, and it runs 40 pages longer than most.
New paper on increasing prison sentences
I just got an e-mail alerting me to this new short article by Marc Mauer in the journal Social Research. The article is entitled "The Hidden Problem of Time Served in Prison," and here is what the e-mail tells me about the article:
[This article] addresses one of the key factors contributing to the rising rate of incarceration in the United States - the increasing length of prison sentences. As a result of such policies as mandatory sentencing, "three strikes and you're out," and cutbacks in parole eligibility, the average time served in prison before first release rose by 32% in the 1990s, according to Department of Justice data.
Lengthening prison terms is problematic for several reasons:
- Increasing time served does not reduce recidivism
- Longer prison terms are expensive and erode community ties
- Increasing time served does not contribute to general deterrence
The commentary also suggests reforms in sentencing policy and practice that could scale back the length of prison terms without causing any negative consequences for public safety.
Can we be sure Martians are against capital punishment?
As Wikipedia notes here, the term "world" can reference just the Earth or the entire universe. Because I suspect that the organizers of today's "World Day Against the Death Penalty" are eager to give the term its broadest meaning, I am left wondering how we would know if life on other planets might be for or against capital punishment. (Of course, if there is the death penalty on other planets, I suppose the certain terrestrial prison officials will be eager to find out if any aliens have devised an execution technology superior to lethal injection.)
Astrophysics and metaphysics aside, I suppose it is fitting that the Supreme Court is honoring this worldly day by hearing oral argument in Medellin v. Texas (06-984), a capital case examining the President's power to direct Texas courts to comply with a judgment of the World Court concerning the Vienna Convention on Consular Relations. SCOTUSwiki has effective coverage of the case here.
The evolution of Justice Thomas and the wonderful nuance of sentencing law
As noted by Howard Bashman and Orin Kerr, the folks at Bloggingheads.tv have produced this amazing segment with Dahlia Lithwick and Jan Crawford Greenburg discussing Justice Clarence Thomas's new book and partisan dynamics surrounding coverage of Supreme Court. Anyone interested in the Court/Justices or the legal media/blogging must find time to listen to the whole segment.
Among many themes developed are (1) the seemingly limited evolution of Clarence Thomas as a Justice, and (2) the constant politicization of Court coverage. As is my tendency, my first reaction is "But everyone is failing to pay enough attention to sentencing!" If Lithwick and Greenburg and others would all just become Blakely/Booker people, they could add so much more nuance and insight to these important issues.
First, consider Justice Thomas: he evolved (quite rapidly) concerning his understanding of the Sixth Amendment. In 1998, he provided the fifth vote in Almendarez-Torres for what would become the "prior conviction" exception to the Apprendi rule. But, by 2000 in Apprendi, Justice Thomas became perhaps the most ardent and vocal advocate for a broad reading of the Sixth Amendment.
Second, consider politicized debates: sentencing cases regularly defy the usual left-right tripe. Consider, for example, the Court's work last term in Cunningham, which split the new Justices with the Chief joining the Blakely five and Justice Alito authoring a strong dissent. Or how about James, which led to Justice Alito (for an unusual majority coalition) and Justice Scalia to trading barbs over statutory interpretation.
Another strong piece about race and justice
Writing in the National Journal, Stuart Taylor has this effective piece entitled "Criminal Injustice And Race." Here are some highlights:
[T]he heart of the racial injustice in our penal system is the grossly excessive punishment of hundreds of thousands of nonviolent, disproportionately black offenders whose long prison terms ruin countless lives and turn many who could have become productive citizens into career criminals.
The Supreme Court heard two cases on October 2 that focus on a relatively small piece of this problem: how much discretion federal district judges have to depart from federal sentencing guidelines that provide savagely severe prison terms for small-time drug offenders, among others. The most savage penalties of all are for people -- overwhelmingly, black people -- caught with fairly small amounts of crack cocaine.
But the justices, hemmed in by wrongheaded mandatory sentencing laws, are merely rearranging deck chairs on the Titanic, no matter how they rule. Nothing that the Court will ever do could make much of a dent in the overly punitive regime that has sent the number of prisoners in this country soaring to 2.2 million, more than in any other nation. This represents more than a sixfold increase in the number of incarcerated Americans since 1970, when it was 330,000. More than 40 percent of these prisoners are black. And according to a recent study by the nonprofit Sentencing Project, 500,000 of the 2.2 million are locked up for drug crimes, and a majority of the convicted drug prisoners have no history of violence or high-level drug-selling....
Our penal system visits these dire consequences on a staggeringly high percentage of the African-American population. More than 22 percent of all black men in their early 30s and more than half of the subset who dropped out of high school have spent time behind bars. These percentages are far higher than they were during the worst era of American apartheid.
Is this situation the fault of white racism? Well, the main reason that an overly punitive system has such a severe effect on black men is that they commit hugely disproportionate numbers of crimes. As The Economist points out, "Young black men are seven times more likely to be jailed than whites, but they are also seven times more likely to murder someone, and their victims are usually black." The absurdly excessive penalties for possessing or selling crack cocaine could be seen as evidence that many white voters and legislators are subconsciously more willing to throw away the lives of small-time black offenders than small-time white offenders. You can call that racism, but only by stretching the word....
In short, focusing mainly on the residue of racism is a distraction from the far bigger problem of over-punishment. It is also a distraction from understanding why African-American crime rates are so high.
Some recent related posts:
October 9, 2007
Advice for the Justices on Gall
Greg Poe and Brian Willen have this short article on Gall in the current issues of Legal Times. The piece is entitled "Tailored To the Crime: Sentencing case shows need to defend judicial discretion," and it concludes with this sound tripartite advice to the Justices:
First, there should be no thumb on the scale in favor of a guideline sentence. Although the judge must consider the advisory guideline range, that range is not to be treated as a tether. Congress has set out a variety of factors to guide courts in sentencing. Judges must assess those factors and articulate how any particular sentence would advance the legislative goals.
Second, the sentence ultimately imposed, whether inside or outside of the guideline range, should be entitled to substantial deference on appeal as long as the district court follows correct procedures and articulates substantial reasons for the sentence. Such deference recognizes a trial judge’s superior ability to assess the facts and circumstances of each case. But deference is not abdication, and appellate review would allow true outlier sentences to be corrected.
Third, judges must respect the statutory command to impose a sentence “sufficient, but not greater than necessary” to achieve specified purposes of punishment. This “parsimony principle,” which traces back to Montesquieu, has been a central maxim in American criminology since the framing of the Constitution.
Notable aspect of the oral argument in Watson
The transcript from today's SCOTUS oral argument in Watson v. United States (06-571) in now available here. As well previewed in this article from the Christian Science Monitor, the facts are a bit more engaging that the legal issue raised by a sentence enhancement from a gun-for-drug transaction.
The transcript is an interesting read, though what stood out for me was how Justice Breyer (and even Justice Ginsburg) seemed so eager to stretch the applicable federal statutes to find a way to skunk the defendant, while Justice Scalia (and also Chief Justice Roberts) seemed most troubled by the government's arguments.
Interesting (though incomplete) piece on administrative law and mercy
As I have said before, Professor Rachel Barkow's scholarly work is always thought-provoking because, in addition to being a sentencing guru, she brings an important legal process perspective to the issues she explores. I thus read with great interest her latest piece, now available here from SSRN, entitled "The Ascent of the Administrative State and the Demise of Mercy." Here is the start of the abstract:
It is not news to anyone familiar with criminal law and sentencing that we live in punitive, unforgiving times. Although scholars have sought to explain the rise in punishment and the incarceration boom of the past few decades, very little work has focused on the reasons why forms of mercy have been on the decline. Specifically, scholars have not done much to explore why the unreviewable power to be merciful through pardons and nullification is currently looked upon with such disfavor. While the same political climate that produces greater punishment also depresses mercy, that account is an incomplete one. As this Essay explains, skepticism about the jury's nullification power and executive clemency has its roots in another development: the rise of the administrative state and the key concepts of law that have emerged alongside it.
This essay is a great read, but it feels a bit incomplete. As the abstract suggests, the essay mostly focuses on jury nullification and executive clemency. But, even before the rise of the modern administrative state, nullification and clemency were relatively marginal aspects of the exercise of mercy in most criminal justice systems. Practically speaking, over the last century, the most mercy has been delivered by judges at non-capital sentencing, by juries in capital sentencing, and by parole board in release decision-making.
I highlight this point in part because there are powerful modern administrative law stories surrounding the application of mercy now by modern judges, juries and parole boards at sentencing. All of these decision-makers have been regulated in modern times by some form of administrative guidelines (in the form of judicial sentencing guidelines, or guided discretion rules in capital sentencing, or parole guidelines). I hope Rachel can and will explore other robust connections between administrative law and mercy in further work.
ABA releases another mondo state death penalty report
Pennsylvania has only executed three defendants in the last 30 years, and has not executed anyone in nearly a decade. (Also, I believe all of the defendants executed in Pennsylvania have been volunteers.) But the apparent inefficacy of capital punishment in Pennsylvania did not stop the American Bar Association's extraordinary Death Penalty Moratorium Implementation Project from producing yet another mega-report documenting problems in the operation of capital justice in the Keystone State.
Over at CDW, Karl Keys has this lengthy post summarizing the ABA's lengthy report; he also has links to some of the media coverage of the report. As I have said before (and will surely say again), every time these massive reports come out, I cannot help but wish the ABA (and the media and many others) would devote a little less time to the sentences of capital murderers and a little more time at the sentences given to defendants convicted of all the less serious crimes.
Some prior posts (and concerns) about the ABA's moratorium project:
- ABA releases mega-report criticizing Ohio's death penalty
- 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
SCOTUS capital sentencing dogs not barking with today's order list
Lyle Denniston at SCOTUSblog here details that the Supreme Court did not grant any new cases today, and his report includes this coverage of some notable actions in capital cases:
The Court ... refused to give states new guidance on how a death-row inmate is to be judged mentally retarded and thus not subject to the death penalty. (Chester v. Texas, 06-1616)....
Over the dissents of three Justices, the Court sent back to lower courts for reconsideration a new case testing what instructions must be given to a jury in a death penalty case to assure that they need not be unanimous in finding offsetting (mitigating) factors even though they must all agree on their ultimate punishment verdict. The case, Hudson v. Spisak (06-1535), also tested the standard for evaluating the effectiveness of a defense lawyer when trial strategy seems to work against the defendant’s interests. The case was returned to the Sixth Circuit Court for a new look under two prior precedents, Carey v. Musladin and Schriro v. Landrigan. Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens noted that they would have denied the petition.
The Court took no action on Tuesday on a plea to expand its review of the lethal injection procedure in capital punishment cases. The new case is Taylor v. Crawford (07-303). The Court was asked to expedite that petition and hear it along with 07-5439, granted in September.
Notable Sixth Circuit habeas ruling on sentencing due process
The Sixth Circuit today in Stewart v. Erwin, No. 05-4635 (6th Cir. Oct. 8, 2007) (available here), grants habeas relief to a state prisoner because he was denied access to certain information used at his sentencing. Here are the highlights from the start of the opinion:
After exhausting his state remedies, Stewart filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254, alleging, inter alia, that he was denied due process of law because he was not given the opportunity to review, rebut, and explain the entire body of information that the sentencing court relied upon to justify its imposition of an eight-year prison term. The district court denied the habeas petition but, on the same day, granted Stewart’s motion to expand the habeas record and ordered the State of Ohio to file, under seal, the presentence report and victim impact statements from Stewart’s case. The custodian of these documents has thus far refused to comply with the district court’s order, and these documents do not appear in the record on appeal. The district court also subsequently granted a certificate of appealability as to Stewart’s due process challenge, and this is the sole claim presently before us.
As explained below, we agree with the district court that there is no clearly established federal constitutional right to full disclosure of all information used by a trial judge in determining a defendant’s sentence. Nonetheless, we recognize, as did the court below, that there is a clearly established federal due process protection against a trial court’s reliance on materially false information at sentencing. Unlike the district court, we find ourselves unable to ascertain whether this latter sort of due process violation might have occurred here, where a portion of the materials used in determining Stewart’s sentence has been withheld from federal court review, and where the limited record before us suggests a reasonable possibility that at least some of this sentencing information might have been erroneous. Consequently, we reverse the district court’s order denying Stewart’s petition for a writ of habeas corpus and remand for additional proceedings, with further instructions that the writ should be granted if the State fails to supplement the record as ordered by the district court within forty-five (45) days of the date of this opinion.
October 8, 2007
A town's plan for a total ban on sex offenders
This New York Times article reports on the latest development in the panic over sex offenders:
While dozens of New Jersey municipalities have tried to restrict convicted sex offenders from living near their schools and parks, officials in Newton are seeking to bar high-risk sex offenders from living anywhere within the borders of their 3.5-square-mile Sussex County community.
During the past year, courts have struck down three New Jersey towns’ ordinances prohibiting convicted sex offenders from living within specified distances of schools and parks. Despite the prospect of a legal challenge, officials in Newton said they were confident that their ordinance, which would bar sex offenders classified as being at high risk of repeating their crimes, would win approval by the Town Council on Oct. 10....
Most New Jersey municipalities that have limited sex offenders’ residency have focused on creating boundaries around child care centers and schools. “In effect, a couple of towns, by doing this, may have made the town off-limits, but I’ve never heard of any municipalities saying it outright,” said Deborah M. Kole, staff attorney for the New Jersey State League of Municipalities.
Municipal and state efforts across the nation have also focused on keeping sex offenders from living near schools. Dyersville, Iowa, may have the toughest restriction. In 2005, it barred any sex offender older than 21 from living there. The law has yet to face a legal challenge, Mayor Jim Heavens said. The Newton proposal would prohibit sex offenders listed on the state police’s Internet registry from living within the town limits.
Some recent related posts:
Major media coverage of crack disparity
The Sentencing Project has effectively assembled here a lot of the major media coverage of crack sentencing issues in the wake of the Supreme Court argument in Kimbrough. Here is how the assembly is set up:
As the national debate over the excessive penalties prescribed under the federal sentencing guidelines for low-level crack cocaine offenses has infiltrated Congress, the advocacy community and now the U.S. Supreme Court, major media are offering broad commentary on the issue. Ongoing coverage includes editorials addressing disparity concerns, the science behind the effects of crack and powder, and mandatory minimum sentencing issues.
Some recent related posts:
- Latest FSR issue covers crack sentencing
- Obama talking about serious sentencing reform
- "Crack Sentencing Is Wack"
Another notable SCOTUS sentencing week
Even though shortened by the observance of Columbus Day, this week brings the Supreme Court more sentencing issues. On Tuesday, the Court will hear oral argument in Watson v. United States (06-571). The previews provided by this article in the Christian Science Monitor and this summary at the SCOTUSwiki spotlight that the case centers on the application of a surprisingly common federal sentencing enhancement based on bartering guns for drugs.
On Wednesday, the Court will hear oral argument in Medellin v. Texas (06-984). The previews provided by these pieces assembled at How Appealing and this summary at the SCOTUSwiki spotlight that this case creates strange bedfellows in the intersection of international law and the death penalty.
In addition, Tuesday morning could also bring a few new cert grants. Even without any new criminal cases, this Term is shaping up to be marked by major sentencing rulings. A couple more major grants and we might have the sentencing Term of the century (which is saying a lot even though the century is not yet that old).
Some related posts:
- A big SCOTUS sentencing Term in the works?
- Baze lethal injection case index
- Gall reasonableness case index
- Kimbrough reasonableness case index
- A fitting take on SCOTUS sentencing cases fit to be tied
Deep in the heart of prison nation
Though I usually think about Texas in conjunction with the death penalty, the terrific work done at Grits for Breakfast provides a steady reminder of all the other criminal justice news of note from the Lone Star State. And these two recent impressive Grits posts highlights that Texas is at the forefront of incarceration realities that many states are experiencing:
An be sure to say thanks for the Grits on its blogiversary.
D'oh! A potential life sentence for stealing a single doughnut?
A kind reader sent me this local story from the Saint Louis Post-Dispatch about a case that sounds almost as if it came from the pages of a script for The Simpsons. The headline is "52-cent doughnut may cost man 30 years to life," and here are the basics:
Country Mart's doughnuts — fried fresh daily in the store — sell for just 52 cents each. That is why the "shoplifters will be prosecuted" signs are displayed in aisle 4 with the pricey pain and allergy pills, and not in aisle 5 beside the glass doughnut case with its tiger tails, jelly-filleds and eclairs. Then one man's sweet tooth got the better of him. He stole a doughnut. A single doughnut.
Authorities called it strong-arm robbery. The "doughnut man," as the suspect is now known, faces five to 15 years in prison for his crime. And Farmington, a town of 14,000 people about 70 miles south of St. Louis, has been buzzing about it ever since. "That someone would take just a single doughnut, not something very expensive or extravagant, that's unique," supermarket assistant manager Gary Komar said, smiling.
Scott A. Masters, 41, is accused of shoplifting the pastry and pushing a store worker who tried to stop him. The worker was unhurt. But with that shove, his shoplifting turned into a strong-arm robbery. Masters, who appeared in court Friday, is stunned. The prosecutor shows no signs of backing down. In fact, because Masters has a prior record, he could get a sentence of 30 years to life.
Some Monday morning sentencing quarterbacking
Two commentaries this morning provide advice about how the Supreme Court ought to be doing its job in sentencing cases:
- In the New York Times, Adam Liptak has this column, entitled "Going to Court, but Not in Time to Live," provides SCOTUS advice on the granting of stays in capital cases.
- In the Los Angeles Times, this editorial, entitled "Do the crime, do how much time? The Supreme Court should find an equilibrium between judicial discretion and strict guidelines on criminal sentences," provides SCOTUS advice on how to resolve the Kimbrough case argued last week.
October 7, 2007
NYT commentary on race and justice
Though covering well-trod ground, it is still nice to see this New York Times commentary, entitled "Race Gap: Crime vs. Punishment," reflecting on racial disparities in the operation of the criminal justice system. Here is how it starts:
If criminal legal proceedings seem to turn out differently for people of different races, when does a constitutional problem exist?
Recent events in Jena, La., where protesters have challenged a prosecutor’s decision to file attempted murder charges against six black youths who beat a white schoolmate, have raised the question anew. (The charges were reduced.)
Last week, the Supreme Court heard arguments over the right of a judge to depart from sentencing guidelines that call for far harsher penalties for crimes involving crack cocaine compared with powdered cocaine. The difference in these guidelines unavoidably involves race since black cocaine users are more likely to use crack, which is a cheaper form of the drug.
“It’s a very key moment,” said Wayne S. McKenzie, director of the prosecution and racial justice program at the Vera Institute of Justice in New York. Because of cases like these, he said, “You have all of these conversations now that are taking place about the disparities in the criminal justice system.”
Juves serving life terms
The Monterey County Herald has this extended article about harsh sentences for juvenile offenders entitled "Sentencing children to life behind bars: A throw-away-the-key political climate means longer sentences — and fewer paroles." Here are excerpts:
In courts around the country, life sentences are being handed down at a dramatically increasing rate, and this new crop of "lifers" is getting younger than ever. Nearly 10,000 U.S. juveniles are serving life terms — with or without possibility of parole — said a recent New York Times survey.
Meanwhile, life sentences for all age groups have climbed across the country. The number of Americans in prison for life has quadrupled since the mid-1980s.
Californians serving life make up about a quarter of the nation's total. One of every five inmates in the state has a life term, and their numbers are increasing rapidly. Since 2001, the population of lifers shot up 65 percent. And few of these lifers, most of whom are eligible for parole, are ever released.
With the lifetime cost of each life sentence estimated at more than $2 million, California taxpayers will spend at a minimum some $66 billion to keep the state's lifer population of 33,000 behind bars. That's not accounting for the rapidly rising cost of medical care for an aging lifer class that will grow infirm behind bars.
Some related posts:
- Using Roper's focus on age in post-Booker sentencings
- California considering eliminating LWOP for juveniles
- Forthcoming PBS program "When Kids Get Life"
The title of this post is the headline on this effective article from my local Columbus Dispatch discussing the reality of sex offender residency restrictions in Ohio. The article's subtitle highlights its main theme: "Get-tough laws force predators to move but do little to make kids safer." Here are some snippets from a long article that should be read in full:
Ohio is among 22 states with laws restricting where sex offenders may live. A 2003 law prohibits sex offenders from living within 1,000 feet of schools, and a new state law effective July 1 adds preschools and day cares.
Newark is among nine central Ohio communities with additional restrictions. There, sex offenders may not live within 1,000 feet of city parks and the municipal swimming pool, either. The Licking County seat is among a growing number of communities in central Ohio and across the state that have exceeded state law in the past two years by approving local ordinances further restricting where registered sex offenders may live.
One visible consequence is that when sex offenders cannot live in some places, they cluster in others. Newark resident Elizabeth Chandler lives in an enclave of registered sex offenders in a neighborhood north of downtown. Clinton Street, in particular, has become something of a sex-offenders row. They are strung all along the street, and one homeless sex offender even listed his address as beneath a Clinton Street bridge. As the mother of three young girls, Chandler tries to keep track of the registered sex offenders living in her neighborhood. It's difficult. More keep moving in....
Last month, a federal judge ruled that the Ohio residence-restriction law could not be applied retroactively to a sex offender whose crime preceded the law's effective date of July 31, 2003. A sex-offender homeowner has filed the constitutional challenge that the Ohio Supreme Court will hear this week. Both cases turn on the same issue: Does the state constitution permit the retroactive application of residence restrictions to pre-2003 sex offenders?
The state Supreme Court case is significant because it's the first time the high court has agreed to address the constitutionality of any aspect of the state's residence-restriction law, said David A. Singleton, executive director of the Ohio Justice and Policy Center. "This will be a landmark case, however it turns out," he said.
Some related posts on sex offender residency restrictions: