October 20, 2007
More on what a de facto execution moratorium might entail
This new AP article explores whether the emerging de facto execution moratorium could mean even bigger things for death penalty policy and politics. Here is how the piece starts:
Stop executions for a while and perhaps they can be stopped forever. That calculation has been part of the strategy of capital punishment opponents for decades. The Supreme Court-inspired slowdown in executions offers the first nationwide opportunity in 20-plus years to test whether the absence of regularly scheduled executions will lead some states to abandon the death penalty and change public attitudes about capital punishment.
Some recent related posts:
Should medical boards be able to bar doctor involvement in executions?
This interesting article discusses an on-going battle in North Carolina over doctor involvement in executions. Here are snippets:
North Carolina doctors reasserted their opposition to participating in the executions of condemned criminals this week, appealing a judge's ruling that the state medical board cannot prohibit doctors from taking part in lethal injections. The appeal focused renewed attention on doctors' roles during executions.
The U.S. Supreme Court and several other states are also considering whether executions by lethal injection cause excessive pain. There has been considerable debate about whether doctors should be present during lethal injections, a conflict sometimes described by doctors as "The Hippocratic Paradox." On one hand, doctors may be needed to carry out a lethal injection execution so that it is consistent with 8th Amendment prohibitions against cruel and unusual punishment. But others say the Hippocratic oath to preserve life rules out their involvement....
The current controversy was stirred when U.S. District Judge Malcolm J. Howard blocked an April 2006 execution at the prison in Raleigh after defense lawyers raised concerns that condemned inmates were experiencing an excessive level of pain during lethal injections.... Then, Howard reversed course, ruling that the execution could go forward, after prison officials said they would use a bispectral index monitor, which the state said could track the inmate's level of consciousness. The ruling required that medical personnel be present to ensure that the condemned inmate was unconscious before the second and third drugs were administered.
Charles van der Horst, professor of medicine at the University of North Carolina Medical School, and Arthur Finn, a retired doctor, were concerned that doctors would be asked to play a larger role in lethal injections. Last year, they and other physicians urged the medical board to take a firm stand against any doctor participation in executions, saying it violated the Hippocratic oath. In mid-January, the board adopted that position.....
In March, the state corrections department sued the board, asserting that it had prevented the state from finding physicians to be present at executions. Last month, state court JudgeDonald W. Stephens ruled that the board had overstepped its bounds. He said the state law requiring a doctor to "attend and provide professional medical assessment" during executions overrode the board's position. The judge said executions should not be categorized as a "medical procedure or medical event" even though doctors were called on for medical tasks, including "ensuring that the condemned inmate is not subjected to unnecessary and excessive pain," and determining whether the inmate was dead.
Some related posts/readings about doctors and executions:
The practical challenges of sex offender tracking
This fascinating Los Angeles Times story highlights the practical difficulties of extensive tracking of sex offenders. The article is headlined "Some sex offenders go untracked: A measure approved by voters last year fails to clarify how to pay for satellite monitoring and which offenders require supervision." Here is how it starts:
Hundreds of California sex offenders who are supposed to be monitored for life under an initiative approved by voters last year are now unsupervised because the law does not detail who is responsible for tracking them or how to pay for enforcement. The ambiguity in the measure, Proposition 83, commonly known as Jessica's law, could affect thousands of sex offenders returning to local communities.
State corrections officials are warning local sheriffs and police that 553 convicted sex offenders who they believe fall under Proposition 83 have already been dismissed from parole and are not being monitored. Therefore, there is no way to check whether they are complying with the law's requirement that they live more than 2,000 feet from schools and parks, and they are not being tracked by satellite for life. An additional 98 are expected to leave parole by year's end.
California Corrections Secretary James Tilton on Thursday began notifying local law enforcement agencies that the state would no longer take responsibility for placing tracking devices on the ankles of sex offenders once they leave parole. But few if any local agencies around the state are equipped to handle the expensive and intensive satellite monitoring the law requires. And the law is not clear on whether they should have to do so.
Some related posts on sex offender GPS tracking:
October 19, 2007
Is the de facto moratorium on executions going to impact capital indictments and death sentences?
One of many questions I have now that a de facto execution moratorium has emerged is whether and how all these Baze-y, crazy lethal injection developments might impact prosecutors considering whether to seek death charges and jurors considering whether to impose death sentences.
Of course, legal concerns about lethal injection protocols should have no real impact whatsoever on the legal issues surrounding capital charges and sentences. Nevertheless, the fact that few if any executions will go forward for many months, I have to suspect that state prosecutors and juries could be less motivated to push a case into the unpredictable death penalty universe.
I would be especially grateful if practitioners might be willing to weigh in on this question:
Do you think the Baze case and all its ripple effects could start impacting prosecutors' willingness to pursue capital charges or the views of capital jurors?
Intriguing new paper on plea dynamics on SSRN
The recent Marquette Law Review symposium on plea bargaining looks to be producing a number of very interesting papers. One by Alafair Burke, entitled "Prosecutorial Passion, Cognitive Bias, and Plea Bargaining," recently appeared on SSRN at this link. Here is the abstract:
The standard account in support of plea bargaining is that it reflects both likely trial and sentencing outcomes, but a growing literature explores the ways in which plea negotiations are influenced by factors other than the likelihood of conviction and the probable post-trial sentence. For example, structural factors such as limited pre-trial discovery, attorney self-interest and incompetence, pretrial detention, and determinate sentencing can affect the parties' willingness and power to negotiate. Several scholars have also observed the ways that psychological and cognitive factors, such as overconfidence, denial, information barriers, framing, anchoring, and risk aversion, can influence plea bargaining. Previous examinations of the influence of cognitive bias on plea bargaining have focused primarily on the decision making of defendants. This Article, a contribution to Marquette Law Review's symposium on plea bargaining, seeks to contribute an additional dimension to the understanding of plea bargaining dynamics by exploring influences on the decision making of prosecutors.
A central tenet of plea bargaining is that prosecutors are willing to negotiate settlements to free up trial resources for other cases. Accordingly, the first step in this Article's exploration of prosecutorial decision making in plea bargaining is an examination of the factors that drive a prosecutor's prioritization of cases. Specifically, Part I argues that prosecutors prioritize cases in part by the amount of passion they feel in each case. Prosecutorial passion — how much a prosecutor “cares” about a case — is an undefined and unexplored factor in the current literature, and reflects subjective determinations beyond the strength of a case's evidence or its likely post-conviction sentence.
Part II explores the ways that prosecutorial passion might affect plea bargaining. First, passion might create a conscious aversion to plea bargaining in prosecutors. Second, even when a passionate prosecutor believes she desires settlement, passion might trigger or exaggerate cognitive biases that will make settlement less likely, such as selective information processing, loss aversion, framing, overoptimism, hindsight bias, anchoring, and the sunk cost fallacy. Part III concludes with some brief thoughts regarding the implications of prosecutorial passion for plea bargaining reform.
NY Times coverage of moratorium head-scratching
In today's New York Times, Linda Greenhouse has this effective article entitled, "Trying to Decipher the State of the Death Penalty." Here is how it starts:
Is there a death penalty moratorium now in place, and how would we know?
The Supreme Court has granted two stays of execution and refused to vacate a third in the three weeks since it agreed to hear a challenge to Kentucky's use of lethal injection.
On Thursday, the Georgia Supreme Court became the latest state court to interpret the justices' actions as a signal to suspend at least some executions. It granted a stay to Jack Alderman, who had been scheduled to die by lethal injection Friday night for murdering his wife 33 years ago.
The top criminal court in Texas, a state that accounts for 405 of the 1,099 executions carried out in this country since 1976, has indicated that it will permit no more executions until the Supreme Court rules, sometime next spring. The Nevada Supreme Court this week postponed all executions in that state. The governor of Alabama gave one inmate a 45-day reprieve.... This sequence of events has led some death penalty opponents and other analysts to declare that a de facto moratorium is in place.
Because the article thereafter kindly quotes my recent "moratorium mojo" post, it seems I am one of the "other analysts" declaring that we now have a de facto moratorium. In fact, as some posts linked below explain, I think we may now be only a month into an execution hiatus that could last a year or even longer because of the likely pace of the Baze litigation and the uncertainty that may follow whatever nuanced ruling the Supreme Court delivers in Baze.
And yet, moratoriums (like sports momentum) can change very quickly. So I think Karl Keys and others are wise to caution against too readily assuming that there will be no executions at all until Baze is decided. That said, as detailed in this AP article, it seems all but certain that 2007 will end up having the fewest total executions in a decade and 2008 may end up having the fewest executions in a quarter century.
The practical consequences of residency restrictions
This new CNN piece, headlined "Trailer park becomes 'paradise' for sex offenders," highlights one of the many collateral consequences of sex offender residency restrictions. Fortunately, the story is a bit more positive than the headline suggests. Here is how it begins:
It's a community that seems serene, with just a wind chime breaking the silence. But look again and you will see many residents wearing ankle monitor systems that alert authorities if they wander too far away. Nearly half the residents of the Palace trailer park are convicted sex offenders.
Ninety-five of these 200 residents are convicted sex offenders, including some pedophiles. The adults-only, nondescript, low-income trailer park near St. Petersburg, Florida has gained a reputation among sex offenders on probation as a good place to live and stay out of trouble.
"Out there ... it's a jungle," said Michael, who did not want his last name used for this report. "In here, it's our own little piece of paradise. We're safe here." Michael was released from prison in June. He's been a familiar face to law enforcement in Florida and Mississippi for the past 20 years, serving prison time for grand theft, drug possession and sexual battery on a child. "I pray a lot that my victim has been given the opportunity to grow beyond the horrendous problem that I caused for them," he said. In many ways, the Palace provides him a second chance at life.
New laws across the country have limited where sex offenders and predators can live, banning them from places where children might congregate. This trailer park is far enough away from schools, churches, playgrounds and bus stops, allowing Michael to call it home without running afoul of the law. "As a sex offender -- when you come out, you're told you can't do this; you can't be around children; you can't go to parks; you can't go to the beach; you can't go to the library," he said.
Nearly 600 sex offenders have lived here in the past couple of years, according to manager Nancy Morais, who said she was sexually assaulted by a family member as a little girl. Not only does she allow the sex offenders to live here, she also offers therapy to help them become part of society again. "Put him on the right track, and we have a better chance of seeing society be a little bit safer with this person," she said. "Can I guarantee they're all gonna be good? Of course not."
A Fifth Circuit unpublished affirmance of a long white-collar sentence
This AP article details that the Fifth Circuit this week affirmed a notable above-guideline sentence in a fraud case. Here are details from the article:
A federal appeals court has upheld the sentence of the former chief financial officer of a West Texas oil and gas drilling company who pleaded guilty to swindling $77 million from his employer. Jonathan Dwane Nelson wanted the 5th U.S. Circuit Court of Appeals to revisit his 25-year sentence, saying the length fell outside punishment guidelines. The New Orleans-based court on Wednesday disagreed, saying the district court's sentence was reasonable.
Officials say Nelson embezzled $77 million from Snyder-based Patterson-UTI. Authorities allege Nelson sent the money to companies he controls and then spent it on an airplane, an airfield, a cattle ranch, homes, vehicles and a truck stop. He pleaded guilty in April 2006 to one count of wire fraud and aiding and abetting; and one count of engaging in monetary transactions derived from specified unlawful activity and aiding and abetting.
He was sentenced last October. He also was fined $200,000 and ordered to pay restitution from the sale of assets he had purchased with the stolen money. The punishment range was 188 to 235 months, court documents show. But U.S. District Judge Sam Cummings issued a non-guideline sentence of 300 months because the court found Nelson's actions justified a harsher punishment than the guidelines set forth.
I had to get the case details from the AP article because the Fifth Circuit's unpublished disposition in Nelson provides very few of these specifics. Indeed, what's most significant about the Fifth Circuit's work is its willingness to approve so quickly a sentence that requires a non-violent offender to serve nearly a decade more time in prison than the guideline range suggests would be sufficient.
October 18, 2007
Georgia Supreme Court stays execution scheduled for this week
Providing still more evidence that the Supreme Court has helped create a de facto moratorium on executions, the Georgia Supreme Court has now blocked the scheduled execution of condemned defendant Jack Alderman, which was to take place tomorrow. This local article provides more details:
Alderman was scheduled to die at 7 p.m. Friday, but 27 hours earlier the Georgia Supreme Court issued a stay. The justices wrote in their order that their reasoning was based on the U.S. Supreme Court decision last month to hear a Kentucky inmate's challenge to the three-drug lethal injection method, and then a decision by that same court on Wednesday to stop an execution that was scheduled in Virginia.
"It certainly seems a [national] moratorium is now in place on lethal injections and all executions until the [U.S.] Supreme Court issues an opinion in the Kentucky case," said Richard Dieter, executive director of the Death Penalty Information Center in Washington. "The pattern seems clear. Lower courts and state courts have gotten that message."
Mitt Romney, a foolproof death penalty system, and tinkering with the machinery of death
I had a chance to talk with a reporter today about whether the Baze case and broader capital punishment issues might become a topic in the 2008 election campaign. While saying "anything is possible" when it comes to the politics of the death penalty, I was reminded of the interesting encounter that candidate Mitt Romney had with death penalty politics when governor of Massachusetts.
As noted in my very first blog post, back in 2004 then-Governor Romney created by an 11-member death penalty commission to attempt to establish a nearly "foolproof" death penalty system for Massachusetts. That committee produced a very interesting report --- which, intriguingly, is no longer easily accessible on-line [Update: S.cotus found the report] --- that became a Romney-backed bill for bringing the death penalty back to the Bay State. However, as this amazing article from the Boston Phoenix highlights, Romney's capital punishment bill proved to be an extraordinary political disaster. (The full title of the Boston Phoenix article is "The sudden death of Romney's dream: What once seemed like a clever ploy has become a political and policy disaster for the governor.")
Could Romney's bad experience with capital punishment politics in part explain why none of the presidential candidates have so far said boo about all the recent lethal injection controversies?
Possible ineffective assistance in an Eighth Circuit crack appeal that nobody sees
Though perhaps I am trying to turn this into a "dogs not barking" story, I am very troubled to see that Eighth Circuit today apparently affirms a within-the-old-crack guidelines sentence in an unpublished Anders case in US v. Wanton, No. 06-3502 (8th Cir. Oct. 18, 2007) (available here). The facts are scarce in this unpublished disposition, but it appears that the defendant in Wanton pleaded guilty to distributing more than 50 grams of crack and received a bottom-of-the-range sentence of 135 months in prison. Since the Eighth Circuit has adopted a presumption of reasonableness for within-guideline sentences, perhaps it seemed obvious to the defense counsel that a sentencing appeal was friviolous.
But, with the US Sentencing Commission saying in powerful terms in May that the crack guideline are too harsh, and with the USSC's reduction in crack guildeines sentences becoming effective in a matter of weeks, and with the Supreme Court having just hear a crack sentencing case in Kimbrough, there ought to be a lot more to the story in Wanton. Indeed, unless the district court record demonstrates that the district judge was aware at sentencing of all these developments, I think it is a form of ineffective assistance for a defense attorney to assert that any appeal of a within-the-old-crack guidelines sentence is frivolous.
Some related posts:
- Conclusive proof old crack guidelines unreasonable
- USSC schedules public hearing on crack
- USSC analysis on potential crack amendment retroactivity impact
- Crack wackiness brewing over impact of crack amendments
- Latest FSR issue covers crack sentencing
- USSC provides (yummy?) half-a-loaf crack amendment
- Why the USSC's new crack work is soooooo significant
More on the moratorium mojo and a guessing game
This front-page article in today's Washington Post provides a very nice review of the de facto execution moratorium the the Supreme Court has helped produce. The piece is entitled "Supreme Court Halts Va. Inmate's Execution: Ruling Could Lead To National Hiatus In Lethal Injections," are here are a few snippets:
Richard Dieter, executive director of the Washington-based Death Penalty Information Center, agreed [a moritorium has developed]. "I believe this stay in Virginia, combined with previous stays in a number of other states, confirms that a moratorium on all lethal injections is in place in this country until the Supreme Court rules on the issue," he said. Lethal injection is the primary method of execution in 37 of the 38 states that have the death penalty. Nebraska uses electrocutions, but no executions are scheduled there.
Kent Scheidegger, legal director and general counsel for the Criminal Justice Legal Foundation, which favors capital punishment and opposes expansion of criminal rights, said he had hoped the court would explain its reasoning in its case-by-case review of the stay requests. Another appeal, from Georgia, is likely to reach the court this week. If the court's action amounts to a moratorium, Scheidegger said, it would dilute "the deterrence effect" of the death penalty and "cause more innocent people to die."
Even without a halt to the use of lethal injections, the pace of executions nationally is the slowest in a decade.
As I have explained in prior posts (some of which are linked below), the Baze case presents the potential to halt executions for as long as a year if the Supreme Court doesn't issue a ruling in this Kentucky case until summer 2008, and then other states need a few months to figure out exactly what the ruling means for their execution protocols. So, now seems like a fitting time for an SL&P guessing game centered on this question:
On what date and in what state will the next US execution take place?
As the excerpt above notes, it is possible that Georgia could still be trying to forward with executions in the next few weeks. But, after the Virgina stay, I think Georgia will get thwarted, too. As a result, I am inclined to guess that we won't see another execution until probably August 2008 in Texas. But this is pure speculation and others are encouraged to provide a more informed perspective. (In this context, I must spotlight that my early January prediction of less that 46 executions in 2007 is now looking pretty good.)
Some related posts:
- Is the developing moratorium on executions risking innocent lives?
- The crazy, Baze-y lethal injection uncertainty continues
- What will be the ripples of Baze in the states?
- Georgia schedules two executions for later this month
- Another Texas execution halted ... is moratorium now official?
- What's the over/under on executions for 2007?
Valuable recidivism assessment and analysis from down under
Thanks to a helpful colleague, I learned of this terrific new report on recidivism published by the Australian Institute of Criminology entitled "Recidivism in Australia: findings and future research." This report is obviously a must-read for anyone interesting in international sentencing issues, but it also ought to be read closely by anyone seriously interested in evidence-based sentencing policy and reform.
The report is lengthy, but an executive summary makes it easy to take in the highlights. Here is how that summary starts:
At a time when evidence based policy development has become increasingly important in the criminal justice policy arena, recidivism research provides promise for crime control strategies targeted at reducing reoffending. Identifying recidivists, understanding the correlates of high volume offending, and evaluating programs designed to reduce offending remain three key research and policy priorities in Australia.
Despite the importance of recidivism, there is a large divide between research and policy. What policy makers would like to measure often bears little resemblance to what researchers are able to measure, given the limitations on appropriate data and available information. As a result, research findings are often used out of context and with little regard for limitations imposed on them by the methodological constraints they face. This is driven primarily by a lack of clarity surrounding an appropriate definition of recidivism and clear articulation of research methodologies.
This report deals with important questions relating to recidivism research. It provides a conceptual framework through which recidivism can be defined and interpreted and arms both researchers and policy makers with a battery of tools useful in critical assessment of the research literature. It begins by looking at the general definition of recidivism and the problems inherent in its measurement and identification.
Interesting state sentencing stories nationwide
I am having a ver hard time keeping up with all the sentencing news these days, and thus I'll let these recent headlines and links cover a lot of notable state sentencing stories:
- From the Los Angeles Times, "Law toughens state's DUI sentencing"
- From the Seattle Post Intelligencer, "Governor's panel: Sex offender tracking needs to improve"
- From the Boston Globe, "The push to void old convictions vexes DAs"
- From Newsday, "New York sentencing commission calls for reform"
- From NPR, "Report Compares Teen Sentencing Around World"
I hope to find time to do a lot more coverage of some of these important stories in future posts.
The consequences of Cunningham in Hawaii and Tennessee
With so much going on, I have failed to report previously that in the last few weeks the highest courts in both Hawaii and Tennessee have (finally) recognized that they have to live in Apprendi-land. Specifically, recognizing the impact and import of the Supreme Court's ruling in Cunningham (which applied Blakely to California's structured sentencing system), the Supreme Courts of Hawaii and Tennessee have both recently held that their states' mandatory sentencing schemes create Sixth Amendment problems.
These recent rulings came in State v. Maugaotega (available here) and State v. Gomez (available here). A local press report provide the basics in this article from Hawaii. And BNA subscribers can read about both rulings at this link.
October 17, 2007
Effective district court review of SONRA enforcement issues
Though District Judge Paul Cassell will be stepping down from the bench in only a matter of weeks (details here), he is still producing effective sentencing rulings as he clears his docket. Specifically, earlier this week he effectively reviewed the state of the law concerning enforcement of the recently enacted federal Sex Offender Registration Notification Act (SORNA) in US v. Gill, No. 2:06-CR-00725 (D. Utah Oct. 15, 2007) (available below). Here is how Gill begins:
Defendant John Henry Gill, convicted of a sex offense in 2003, moves this court for an order to dismiss the indictment charging him with failing to register as a sex offender during September and October 2006 — as required by 18 U.S.C. § 2250(a) of the recently enacted Sex Offender Registration Notification Act (SORNA). Mr. Gill alleges that, at least as applied to him, SORNA violates the Ex Post Facto Clause of the Constitution. Mr. Gill raises two ex post facto challenges. He first argues that the Ex Post Facto Clause blocks any registration requirement for previously convicted offenders. He also argues that, even if SONRA could constitutionally be applied to him, it did not in fact apply to him; he failed to register before the Attorney General had promulgated Interim Rules making SORNA’s criminal provision applicable to persons convicted before its effective date. The court agrees with Mr. Gill’s second, narrow submission. Because SORNA did not apply to Mr. Gill until the Attorney General issued the Interim Rule in February 2007, and because his alleged failure to register predates the promulgation of that Rule, his indictment violates the Ex Post Facto Clause. Therefore, the court grants Mr. Gill’s motion to dismiss.
Footnotes 26 and 27 of this ruling spotlight that there is a very significant split of district court authority on the Ex Post Facto issue on which the defendant in Gill prevails. Put more boradly, Gill highlights that SORNA is a piece of legislation that seems likely to divide lower courts on various consequential issues.
Supreme Court, continuing de facto moratorium, grants execution stay in Virginia
The latest news from inside the Beltway, as detailed in this new order, is that the Justices have yet again granted a stay to prevent a state from going forward with a lethal injection execution. As detailed in this AP report, the latest stay comes in a Virginia case.
The Supreme Court decides cases and motions; it is not in the business of officially declaring executions moratoriums. Nevertheless, despite the sound and cautious analysis from Kent at C&C and Lyle at SCOTUSblog, I am prepared to assert that the Supreme Court has essentially decided that it should perpetuate a de facto national moratorium on lethal injection executions at least until the Baze case gets going (and probably until the Baze is decided on the merits sometime in 2008).
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?
- Even a volunteer can't get executed because of Baze
- The crazy, Baze-y lethal injection uncertainty continues
- Is the developing moratorium on executions risking innocent lives?
Any serious sentencing talk at the Mukasey hearings?
This new CNN piece, headlined "Attorney general nominee pledges independence," provides some of the highlights of today's Senate Judiciary Committee hearing for Attorney General-designate Michael Mukasey. I watched the first hour of the hearing on C-Span 3, but then got bored because I did not hear any sentencing talk, and now I am wondering if any of the questioning involved sentencing issues.
Booker and possible Booker fixes, crack sentences, mandatory minimums, federal death penalty policy, lethal injection litigation, extreme sentences for white-collar and non-violent offenses and national sex offender policies all seem like topics very worthy of exploring with the likely next AG. Did any of this stuff come up?
UPDATE: Thanks to S.cotus for live-blogging a few sentencing-related highlights in these comments. Now I am just waiting for federalist to add his perspective given that, as Stephen Colbert has explained, "reality has a well-known liberal bias."
Making sense of the Second Circuit's second thoughts on Booker
Last week I noted here that the Second Circuit issued this revised decision in its important variance case of United States v. Cavera (previously discussed here). Helpfully, the New York Law Journal has this new article, entitled "Mindful of 'Booker,' 2nd Circuit Revises Sentencing Opinion," which provides some background on the revised Cavera ruling. Here are some interesting particulars:
In June, Judges Richard Cardamone, Guido Calabresi and Rosemary Pooler reversed Eastern District of New York Judge Charles Sifton, who had gone above the guidelines range of 12-18 months and given two years in prison to Gerard Cavera after he pleaded guilty to conspiracy to deal in and transport firearms.
Sifton's mistake, the panel said in June, was that he considered New York City's population density and reasoned that gun trafficking there required a heavier sentence. The circuit panel, in a decision by Cardamone, initially said Sifton's approach ran counter to one of the chief purposes of the guidelines -- to reduce disparity in sentencing across the nation's federal districts.
But in a new opinion released Oct. 11 in United States v. Cavera, 05-4591-cr(L), the court said its June opinion "prompted comments from several members" of the circuit, so it was withdrawing the old opinion as well as a concurring opinion by Calabresi. "The best I can understand is that, after they issued the first decision, other judges looked at this and said, 'Look, this is a critical issue for sentencing purposes and the decision itself doesn't really cover all the issues that are necessary to set precedent,'" said Jeffrey Rubin, who represented Cavera.
The circuit's new opinion does not change the result -- a remand to Sifton for resentencing. However, Rubin said it is less sweeping in its language than the first ruling and focuses more on limiting the holding to the facts of Cavera's case. In the June opinion, for example, the court said the sentence was unreasonable because the lower court relied on "community-specific characteristics," such as population density. But in the second opinion, the circuit states, "Under the circumstances of this case, the district court's reliance on the simple fact of population density to impose a non-guidelines sentence constitutes legal error and rendered the defendant's sentence unreasonable."
I suppose this judicial history suggests that, at least in the Second Circuit, it may sometimes be reasonable for a sentencing court to rely on "community-specific characteristics" after Booker. Very interesting.
Overcrowding problems in the Nutmeg State
As detailed in this New York Times article, Connecticut is yet another state on a ever-growing list that is struggling with its ever-growing prison population. Here are a few specifics from the piece:
Cubicles built for four are crammed with eight inmates, and enclosed areas known as dollhouses where inmates once played cards and wrote letters now hold 14 bunk beds. The corridors are lined with more beds.
Each large room at the Willard-Cybulski Correctional Institution once had 50 beds and now has 118. The dual prison, one part in Enfield and the other in Somers, is part of a system so overcrowded that it tests the state's resolve to get tough on criminals. Correction officers who work at this dormitory-style, minimum security prison say the cramped conditions give them little room to maneuver and little hope of keeping small problems from turning into big ones....
The arrest in July of two parolees in the grisly murders of a mother and her two daughters in Cheshire, followed closely by a carjacking involving a parolee, touched off a wave of official responses that were intended to address flaws in the criminal justice system, but that also made crowded prisons even more crowded. Gov. M. Jodi Rell ordered the Department of Correction to temporarily stop granting parole to violent offenders, a class that now includes home burglars. "Security comes first," the governor said in a Sept. 21 statement.
In addition, prosecutors are holding out for stiffer plea bargains, and judges are imposing longer sentences. Ms. Rell has promised a top-to-bottom review of the state’s criminal justice system, but in recent weeks, as policy makers have been discussing the issue, pressure has been building. The union that represents two-thirds of the 7,000 employees at the Department of Correction said Monday that its members counted 821 temporary beds — they resemble plastic toboggans with mattresses — in use in 11 of the state’s 18 prisons one night last week. "My members believe we're already at a crisis population," said Jon Pepe, president of a correction officers union. "We're only managing them because the population is letting us manage them."
UPDATE: Anyone interested in more background and discussion of the problems of overcrowding Connecticut should be keeping up with the blogging done by Gideon at "a public defender," who has been following these overcrowding problems very effectively.