October 17, 2007
The crazy, Baze-y lethal injection uncertainty continues
Monday brought a last minute state court stay of a scheduled execution in Nevada (discussed here). But then we got rulings in Georgia and Virginia which keep scheduled executions on track: in the Virginia case, as detailed here, the Fourth Circuit refused to grant a stay; in the Georgia case, as detailed here, the state Supreme Court refused to grant a stay. But, then, late Tuesday, the US Supreme Court refused to vacate a stay granted by the Eighth Circuit in an Arkansas case. Here is the notable text of the SCOTUS order in the Arkansas case:
ORDER IN PENDING CASE
07A311 NORRIS, DIR., AR DOC, ET AL. V. JONES, JACK H.
The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on October 11, 2007, presented to Justice Alito and by him referred to the Court, is denied.
Justice Scalia, dissenting.
I vote to grant the State’s application to vacate the stay because in my view the decision of the Eighth Circuit was based on the mistaken premise that our grant of certiorari in Baze v. Rees, ___ S. Ct. ___ (2007), calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol. The grant of certiorari in a single case does not alter the application of normal rules of procedure, including those related to timeliness. In this case, Jones’s challenge to the lethal injection protocol, which was brought nine years after his conviction and sentence became final, was dilatory.
NYTimes coverage of very young lifers
Writing in the New York Times, Adam Liptak has this potent new article discussing offenders serving life terms for crimes committed as very young teenagers. Here are excerpts from a piece that is part of a new series "that will examine commonplace aspects of the American justice system that are actually unique in the world":
In December, the United Nations took up a resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers. The vote was 185 to 1, with the United States the lone dissenter.
Indeed, the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14....
The group that plans to release the report on Oct. 17, the Equal Justice Initiative, based in Montgomery, Ala., is one of several human rights organizations that say states should be required to review sentences of juvenile offenders as the decades go by, looking for cases where parole might be warranted.
But prosecutors and victims’ rights groups say there are crimes so terrible and people so dangerous that only life sentences without the possibility of release are a fit moral and practical response.
According to a 2005 report from Human Rights Watch and Amnesty International, 59 percent of the more than 2,200 prisoners serving life without parole for crimes they committed at 17 or younger had never been convicted of a previous crime. And 26 percent were in for felony murder, meaning they participated in a crime that led to a murder but did not themselves kill anyone.
The new report focuses on the youngest offenders, locating 73 juvenile lifers in 19 states who were 13 and 14 when they committed their crimes. Pennsylvania has the most, with 19, and Florida is next, with 15. In those states and Illinois, Nebraska, North Carolina and Washington, 13-year-olds have been sentenced to die in prison. In most of the cases, the sentences were mandatory, an automatic consequence of a murder conviction after being tried as an adult.
October 16, 2007
I am heading out to attend in person (after a long drive) a great aspect of the great month of October. Though commentors are welcome to try to find a sentencing angle in my evening plans, they are also welcome to debate here whether the BoSox should be pitching Josh Beckett on 3 days rest.
In the SL&P mailbag: " Unequal under Law"
I am not quite sure whom to thank, but I am grateful for getting a free copy of this new book from The University of Chicago Press by Doris Marie Provine entitled "Unequal under Law: Race in the War on Drugs." Here is the blurb from the publisher:
Race is clearly a factor in government efforts to control dangerous drugs, but the precise ways that race affects drug laws remain difficult to pinpoint. Illuminating this elusive relationship, Unequal under Law lays out how decades of both manifest and latent racism helped shape a punitive U.S. drug policy whose onerous impact on racial minorities has been willfully ignored by Congress and the courts.
Doris Marie Provine’s engaging analysis traces the history of race in anti-drug efforts from the temperance movement of the early 1900s to the crack scare of the late twentieth century, showing how campaigns to criminalize drug use have always conjured images of feared minorities. Explaining how alarm over a threatening black drug trade fueled support in the 1980s for a mandatory minimum sentencing scheme of unprecedented severity, Provine contends that while our drug laws may no longer be racist by design, they remain racist in design. Moreover, their racial origins have long been ignored by every branch of government. This dangerous denial threatens our constitutional guarantee of equal protection of law and mutes a much-needed national discussion about institutionalized racism — a discussion that Unequal under Law promises to initiate.
Some recent related posts:
The Sentencing Project urges retroactivity of USSC crack amendment
As detailed here, the Sentencing Project "has submitted a letter to the United States Sentencing Commission urging it to apply retroactively a crack cocaine sentencing amendment passed this May to defendants previously sentenced for a crack offense." The full text of the lengthy letter can be accessed at this link, and here is a snippet:
The Commission has opted to make retroactive every amendment to a drug sentence that could be formulaically applied, i.e., in cases where the district court could calculate the new sentencing range using a simple mathematical equation. The Commission has followed the same pattern since it began requesting public comment in 2000.... [The crack amendment] fits squarely in the category of amendments that have been made retroactive. It can be easily applied by district courts in a formulaic manner. ...
To diverge from its paradigm in this particular instance would be particularly inappropriate given the racial implications of [the crack amendment]. Failing to make the amendment retroactive would perpetuate the already disproportionate effect of the severity of the Guidelines on African American defendants and poor urban neighborhoods.
Some related posts:
- 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
- ABA makes pitch for USSC crack amendments to be made retroactive
New ABA publication on "Mental Health and Criminal Justice System"
I just received in my in-box this announcement: "The ABA Section of Criminal Justice is pleased to announce the online availability of the Fall 2007 Special Issue of Criminal Justice Magazine, 'The Criminally Mentally Ill', at this link." The issues looks like a great read from start to finish, and here are some of the feature articles that should be of special interest to sentencing fans:
Mental Health and Criminal Justice: An Overview by Andrew E. Taslitz
The Supreme Court’s Recent Criminal Mental Health Cases Rulings of Questionable Competence by Christopher Slobogin
Executing the Mentally Ill: When Is Someone Sane Enough to Die? by Michael Mello
Even a volunteer can't get executed because of Baze
As covered by media links at How Appealing and this post at CDW, the Nevada Supreme Court prevented a condemned inmate who wished to be executed from being subject to lethal injection. Here are details from this local news coverage:
Death row inmate William Castillo seemed "very disappointed" Monday night that the Nevada Supreme Court canceled his execution about 90 minutes before he was scheduled to have a lethal injection. "He asked if it was possible to get more medication to calm him," Nevada Department of Corrections Director Howard Skolink said of Castillo's reaction. "He wanted something to take the edge off."
The court convened at 4 p.m. to hear arguments and about 7 p.m. stayed the execution and gave the American Civil Liberties Union and the state attorney general 20 days to file briefs regarding the ACLU's last-minute request that the execution method is unconstitutional because the drugs masks the inmate's reaction, denying news media the First Amendment right to report the actual effects of the injection. The ACLU petition came on the heels of a U.S. Supreme Court review of the constitutionality of lethal injection methods in a Kentucky case.
Lee Rowland, the ACLU coordinator in Northern Nevada and the lawyer who argued the case, termed the decision "clearly correct legally and morally."...
"The elderly relatives of the victims had hoped for closure, and they didn't get it tonight," Skolink, who told media of the court's decision, said at the prison in Carson City. "The inmate had prepared himself for the execution, and now it will be at least 60 days before he's going to know what happened to him."
Castillo was sentenced to death for the tire-iron beating of Isabelle Berndt, 86, a teacher who lived in Las Vegas. His female accomplice is serving a term of life with parole. Two of Berndt's elderly relatives had driven to the prison, were told of the cancellation and never went inside. Skolink said Berndt's family said they were going to ask the state supreme court and ACLU for their travel expenses for a "trip that need not have been made."
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?
October 15, 2007
SCOTUS denies cert in death row syndrome case
I missed in the quick review of SCOTUS action today that the Court rejected, yet again, a "death row syndrome" case. Here are particulars from Lyle Denniston at SCOTUSblog:
The Court refused, for at least the fifth time in the past 12 years, to consider whether it is unconstitutional for a individual facing a death sentence to have to remain on Death Row for a long period of time. The Court declined to hear the case of Smith v. Arizona (07-5847), raising this issue: “Whether the standards of decency have evolved to the point that the execution of a person after confinement on death row for over three decades violates the Eighth Amendment’s prohibition against cruel and unusual punishment?” Justice Stephen G. Breyer, who has voted repeatedly to consider that issue (as has Justice John Paul Stevens), dissented from the denial, and filed a one-page opinion briefly outlined views he had expressed previously. Justice Stevens did not note his vote this time. Several times in the past, Justice Clarence Thomas has written opinions arguing that there is no constitutional problem in such prolonged waits for execution. He did not write on Monday.
More details about the Smith case can be found in this Reuters report.
UPDATE: Justice Breyer's one-page dissent is available here.
MORE: And Kent at C&C comments here on Smith.
Arizona prosecutor drops child-porn charges after convictions(!) to avoid "disproportionate" sentence
A helpful reader sent me this interesting article from Arizona describing a case in which a local prosecutor has dropped numerous child-porn charges "in the interest of justice" --- after a conviction was obtained on these charges! Here are the particulars:
Mesa jurors found a defendant guilty on nine counts of child-pornography charges, setting him up for a potential 90-year sentence under Arizona's tough dangerous-crimes-against-children law. But, in a rare move, the Maricopa County Attorney's Office urged a Superior Court judge to drop five counts, leading instead to a 40-year sentence handed down Oct. 5 for Todd Robert Laughlin.
Laughlin, 46, was convicted of possessing three movies and six computer images depicting children performing sex acts. A motion filed by prosecutor Ronald M. DeBrigida Jr. noted that jurors found Laughlin guilty of all nine counts Aug. 21, but asked Judge Helene Abrams to dismiss five counts, saying that it was "in the interests of justice." He offered no further explanation.
Deputy County Attorney Daniel Strange prosecuted Laughlin, but the motion was filed by DeBrigida, a supervisor in the office. Maricopa County Attorney Andrew Thomas was unavailable for an interview but released a statement. "Upon further review of the facts in this case, I concluded that the mandatory 90-year sentence facing the defendant was disproportionate to the offenses he was convicted of," Thomas' statement said. "As a result, our office exercised its prosecutorial discretion in dismissing five of the criminal counts, so that the mandatory sentence now will be 40 years in prison," it said.
Barnett Lotstein, one of Thomas' top assistants, said his office tried Laughlin on nine counts to prove a pattern of child pornography, removing any possible defense that he accidentally accessed child pornography on the Internet. "It's not uncommon to look at a case again and re-evaluate it," Lotstein said. "He (Thomas) is not being soft. Forty years is a harsh sentence. Murderers serve 25 years."
Regular readers will recall that similar stacked child-porn charges against a former Phoenix high school teacher, Morton Berger, ultimately led to Berger receiving a 200-year prison sentence (basics here, commentary here and here). Though the Supreme Court denied cert in Berger (details here and here), Mr. Berger likely has a habeas claim in the works; the statements from the prosecutors in this other case should provide some help for his sentencing claims.
October 15, 2007 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (32) | TrackBack
Ninth Circuit opines on sentencing practices
The Ninth Circuit has an intriguing little sentencing ruling today in US v. Saeteurn, No. 06-10401 (9th Cir. Oct. 15, 2007) (available here). Here is how it starts:
This case deals with sentencing practice. Specifically, is the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (“PSR”), when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison? We hold that there is no such requirement upon the sentencing judge. We also consider whether the sentencing judge imposed a reasonable sentence in this case. We conclude that he did.
UPDATE: Steve Kalar has a new post here at the Ninth Circuit Blog on Saeteurn. Here is how it starts:
"Close enough for government work" is close enough for the Ninth in a disappointing decision. See United States v. Saeteurn, __ F.3d __, 2007 WL 2983806 (9th Cir. Oct. 15, 2007). In Saeteurn (written by Judge Bea), the Court tolerates disputed and erroneous information in a PSR, unresolved by the district court -- despite the fact that this error will have a profound impact on the defendant's conditions of confinement. A very troubling decision that calls out for en banc review.
Supreme Court taking in some laundry
Though not technically a sentencing case, the Supreme Court's decision today to grant cert to explore what it means to "launder" money in Cuellar v. US (06-1456) certainly could have lots of sentencing ripples. Moreover, it provides more evidence that this Term of the Roberts Court may create its biggest headline through its work on its criminal docket.
Some recent related posts about the SCOTUS docket:
- Suggestions for helping the Roberts Court deal with shrinkage
- When and how will SCOTUS address residency restrictions?
- Does the Blakely Five really care about sentencing procedures?
- SCOTUS capital sentencing dogs not barking with today's order list
- A big SCOTUS sentencing Term in the works?
- Baze lethal injection case index
- Gall reasonableness case index
- Kimbrough reasonableness case index
Effective coverage of new compassionate release guidelines
The Los Angeles Times this morning has this effective piece discussing the US Sentencing Commission's new (and potentially very important) compassionate release guidelines. Here are excerpts:
Every year, about a dozen of more than 200,000 inmates in federal custody around the country have their sentences commuted for health reasons. The actions are part of a safety valve included in an otherwise tough law enacted by Congress in 1984 that stiffened sentences in federal prison and abolished parole. As interpreted by prison officials, the idea is to give the terminally ill -- and those so profoundly disabled that they can no longer care for themselves -- an opportunity to have their sentences commuted. The provision -- dubbed "compassionate release" by the government -- gives the inmate a chance to die at home or among loved ones, and the government a chance to pass along some of the often heavy costs of incarcerating and caring for sick prisoners.
But advocates for inmates say the way the statute is actually carried out is anything but compassionate. Few terminally ill inmates are approved for release, and the bureaucracy is such that even when people are approved, they often die before they get out. The advocates also contend that prison officials have misconstrued the original intent of Congress and interpreted the grounds for release much too narrowly.
Now, in a departure from the tough sentencing policies that it has legislated for more than two decades, Congress is poised to allow guidelines to go into effect starting Nov. 1 that would give federal judges much greater power to release federal inmates. The new guidelines would be a victory for advocacy groups that have been seeking more lenient treatment for years. They would also put the federal government ahead of a movement in which a number of states, including California, have sought to expand their early-release laws.
But whether the Bureau of Prisons will go along is far from clear. Although compassionate releases must be ordered by federal judges, the Justice Department's prisons bureau acts as the gatekeeper in bringing early-release requests to the courts. A Justice Department official last year called the proposed guidelines "an excess of permissiveness" that could be "an incitement to prisoners" to file lawsuits.
The issue could present an early test for Atty. Gen.-designate Michael B. Mukasey, who faces a confirmation hearing in the Senate this week. The new guidelines, developed by the U.S. Sentencing Commission, would empower judges to commute sentences in "extraordinary and compelling" circumstances.
Some legal experts argue that the original intent of the law was to cover health concerns and a range of purposes such as rewarding prisoners for acts of heroism or assisting the government, giving them the benefit of later changes in applicable laws, or eliminating disparities in sentences they received compared with co-defendants. One of the proposed guidelines would allow for early release of incarcerated women with minor children in case of death or incapacitation of relatives capable of caring for the children. Prison officials decline to say whether they will now support a more generous approach to early release.
October 14, 2007
USSC schedules public hearing on crack amendment retroactivity
As noted on the US Sentencing Commission's website, the "Commission has scheduled a public hearing for November 13, 2007 at Georgetown University Law Center ... regarding whether Amendment 9 pertaining to offenses involving cocaine base ("crack") and Amendment 12 pertaining to certain criminal history rules ... should be applied retroactively to previously sentenced defendants." This official notice provides a bit more background and details on the hearing.
This should be a very interesting hearing, in part because it deals with a very important issue: as this recent USSC analysis details, the Commission's research "estimates that 19,500 offender sentenced between October 1, 1991 and June 30, 2007 ... would be eligible to seek a reduce sentence if the Commission were to make the 2007 crack cocaine amendment retroactive."
Some recent related posts on crack sentencing:
- USSC analysis on potential crack amendment retroactivity impact
- Crack wackiness brewing over impact of crack amendments
- Latest FSR issue covers crack sentencing
- Obama talking about serious sentencing reform
Is faith the best thing to happen to prisons since ... the faithful started prisons?
Killer-turned-artist Manny Hernandez on the prison where he's finishing an eight-year term: "It's a blessing to be here." Fellow murderer and inmate Raymond Hall likens it to heaven. "I love this place," says their warden, Cynthia Tilley. "It's so calm." They're praising the Carol Vance Unit, founded in 1997 on the outskirts of Houston. It's the oldest of a rapidly growing number of faith-based prison facilities across the nation.
Even as they proliferate, fueled by the fervor of devout volunteers, these programs are often criticized. Evidence that they reduce recidivism is inconclusive, and skeptics question whether the prevailing evangelical tone of the units discriminates against inmates who don't share their conservative Christian outlook. However, evidence is strong that violence and trouble-making drop sharply in these programs, and they often are the only vibrant rehabilitation option at a time when taxpayer-funded alternatives have been cut back.
Inmates at Vance offer another compelling argument. Unlike many of America's 2 million prisoners, they feel they are treated with respect. They have hope. "A bunch of cats in prison, they never had anyone show them love — even their mother and father," said Anzetta Smith, who served 18 years for attempted murder before graduating from Vance this year. "You get in the program, and everybody shows you love."
Impressed by the Vance operation, Texas officials have opened a dozen faith-based dorms elsewhere in the state, accommodating some 1,300 inmates. At one dorm, at the maximum-security Allred prison near Wichita Falls, infractions by the inmates dropped more than 90 percent once they entered the program.... "In my other prison, on a daily basis there was rape, drugs," said Raymond Hall, who was convicted at 16 of murder and hopes to complete his 15-year sentence in early 2009. "When you come to Carol Vance, it's like a load is lifted. It's like heaven."...
Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project, has qualms about whether the faith-based programs are fair to non-Christian inmates but hesitates to criticize them because they fill a void. Two decades of tough-on-crime policies have sharply reduced the number of rehabilitative prison programs, she said, and volunteer-driven religious initiatives offer states a low-cost way to meet some of the demand.
In all, at least 10 states now have faith-based prison dorms. The Corrections Corporation of America, which operates private prisons, has separate "faith pods" housing about 1,660 inmates at 24 prisons in 13 states. "The inmates have far fewer discipline issues," said CCA's John Lanz.
While disciplinary trends have been easy to track, it's been harder to compile data proving that faith-based programs succeed at their core mission — reducing recidivism. Nationally, federal experts estimate that two-thirds of inmates released from state prisons are re-arrested for serious offenses within three years, and 52 percent go back behind bars.
Proponents of faith-based programs insist they can achieve lower rates. But supportive data remains scarce, and some skeptics say the programs "cherry-pick" motivated inmates who would be less likely to re-offend under any circumstances. Only about 10 percent of the inmates released from Florida's faith-based prisons have been reincarcerated. But an independent study last year also found very low recidivism among Florida inmates with similar characteristics who didn't go through the faith program. Similarly, proponents of the InnerChange program at Vance have touted a 2003 study asserting that only 8 percent of its graduates returned to prison. But critics belittled that finding, saying it measured recidivism only for inmates who completed the program and got jobs, not for the larger number who dropped out and had a high recidivism rate. "It's not that these programs are a bad idea," said Dan Mears, a Florida State University criminologist. "But there's no good evidence that they work."...
Prison Fellowship's president, former Virginia attorney general Mark Earley, said any move to curtail evangelicals' volunteer work in prisons would undermine the prospects for greater nationwide emphasis on rehabilitation. "If you excluded faith-based groups, you're excluding the largest number of people willing to be involved," he said. "There's not a whole lot of other people lining up at the prison doors."
Some related posts on faith-based prison programs:
- Interesting Ohio report on correctional faith-based initiatives
- The virtues of faith-based prisons
- Interesting examination of faith-based prison movement
- A thoughtful, but disappointing, attack on a faith-based prison program
- Religion, sentencing and corrections
- Having faith in prisons
Persistent strong public support for the death penalty
In my recent post explaining my agnosticism regarding the death penalty (which generated a fantastic comment thread), I noted that broad public support for the death penalty was one reason have a hard time being categorically opposed to this punishment. Coincidentally, this weekend the Gallup Poll released its annual survey on public support for the death penalty and it "shows no diminution in Americans' strong support for the death penalty in cases of murder." Specifically:
The Oct. 4-7 poll indicates that 69% of Americans respond "yes" when asked this question: "Are you in favor of the death penalty for a person convicted of murder?" This level of support for the death penalty is generally in line with the level of support that Gallup has measured in 13 polls featuring this question since 1999.
This post at Crime & Consequences talks about the Gallup results and other polling questions about the death penalty.
The Gallup press release about its findings has lots of interesting particulars. I found especially interesting the fact that though "support for the death penalty varies some within different subgroups of the American population," this variations was not nearly "as much as might be expected."
If you build it (guidelines) well, they (judges) will come
As this local article from Alabama highlights, sentencing judges are eager to comply with sensible sentencing regulations. In addition, as the story documents, when sentencing guidelines are truly sensible, prosecutors often complain about them more than defense attorneys. Here's are excerpts from the article:
Trial judges in the state surprised the Alabama Sentencing Commission by overwhelmingly making use of voluntary sentencing guidelines that went into effect a year ago.... The commission reported earlier this month that judges considered the guidelines in 86 percent of cases.
The guidelines were created to reduce prison overcrowding and give judges more options. They tighten the range of prison time for certain offenses and reduce the sentences for property crimes. To use the sentencing guidelines, judges and attorneys fill out a worksheet devised by the sentencing commission with information such as age and the number and severity of previous crimes. The worksheet helps determine the length of sentence and whether an alternate sentence, such as drug court, is appropriate. The compliance figures took into account only how many times judges used the worksheets, not how often they followed the recommendation....
Not everyone is a fan of the guidelines, including Chris Hargett, the senior assistant district attorney in Tuscaloosa. “I’ve never been sold on the idea of guidelines,” he said.... Hargett said that prisoners usually receive shorter sentences when judges use the guidelines....
One goal of the guidelines is to create equality in sentencing so people who commit the same crimes in different areas of the state spend about the same time in prison. Hargett believes that the standards, in this first year, have had the opposite effect, since not all judges are using them. “There is a greater disparity in sentencing than there was before,” he said. “This leaves me with the feeling that my victims are being shortchanged.”
But retired Judge Joseph Colquitt, a University of Alabama law professor and chairman of the Alabama Sentencing Commission, doesn’t agree. “By using the standards even more frequently than we had anticipated, the judges are helping to reduce disparity in sentencing beyond our initial expectations,” he said. “The elimination of unwarranted disparity in sentencing is a worthy goal, and one that the Alabama Sentencing Commission has identified as a principal objective.”