October 9, 2007
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: