October 27, 2007
Latest OSJCL issue with lots of for sentencing fans
The Fall 2007 issue of the the Ohio State Journal of Criminal Law has recently gone to press, and the entire new OSJCL issue is available on-line here. Among a number of terrific pieces in this issue, there are these sentencing related pieces:
- Gabriel J. Chin, Felon Disenfranchisement and Democracy in the Late Jim Crow Era
- Richard J. Bonnie, Panetti v. Quarterman: Mental Illness, the Death Penalty, and Human Dignity
- Carol S. Steiker, Panetti v. Quarterman: Is there a "Rational Understanding" of the Supreme Court's Eighth Amendment Jurisprudence?
A notable collateral consequence of eliminating parole
This article from my local Columbus Dispatch highlights a notable corrections collateral consequence from the elimination of parole:
After nearly 30 years as one of Ohio's premier prison experts, Peter Davis arrived at this conclusion: The bad guys are getting badder. Many older prisoners, even murderers, fear the new breed of aggressive and increasingly violent young inmates, said Davis, a member of the Ohio parole board and former longtime director of the legislature's Correctional Institution Inspection Committee....
Davis told The Dispatch that Ohio prisons are challenged not only by rapid growth -- the inmate population is expected to hit 50,000 for the first time in the next few weeks -- but also by problems posed by prisoners serving "flat" sentences. Ohio's flat-sentencing law, enacted in 1996, eliminated "good time" and parole in favor of fixed-term sentences, meaning inmates are released at the end of their term, no matter what they do in prison -- unless they commit a new offense.
There is little, if any, incentive for inmates to pursue educational or vocational opportunities, Davis said. "We're getting a different kind of prisoner," Davis said. "Flat time is awful from multiple dimensions."
Mississippi moratorium test case now primed for SCOTUS
Late yesterday a Fifth Circuit panel, in this relatively detailed opinion, denied a stay to a Mississippi death row inmate scheduled to be executed by lethal injection on Tuesday. (The Fifth Circuit's work has me thinking of a variation on a famous movie sequence. In response to the stay request, the Fifth Circuit panel said: "Baze? ... We ain't got no Baze... We don't need no stink'n Baze stays.")
As spotlighted in posts from SCOTUSblog and Crime & Consequences, this case is now primed for the Supreme Court to clarify whether Baze calls for a complete moratorium on all executions during its pendency, or whether defendants who did not raise these issues before Baze can still be executed while the Justices take their time to decide on the constitutionality of lethal injections. Kent provides this fitting account of where matters stand and what followers must hope for:
This case should require the Supreme Court to tell us if there is a nationwide moratorium or not.... Memo to SCOTUS: whatever you do, please give us a reasoned explanation this time.
Some recent related posts:
October 26, 2007
Why so much fear about a robust Eighth Amendment doctrine?
I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case. Specifically, Eugene Volokh has this to say:
I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.
And Laura Appleman adds this:
If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine? I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face. But I'm a little nervous about using the 8th Amendment as a tool to free him. Wilson's case was arguably a problem of proportionality -- isn't using the 8th Amendment to free him like using a battering ram when a kick or two would do?
I just do not get these sorts of concerns. Let's start with Eugene's points. Why does he or others think the Eighth Amendment's prohibition on "cruel and unusual punishments" is any more "mushy" or less subject to sound judicial line-drawing than the Fourth Amendment's prohibition on "unreasonable searches and seizures" or the Fifth Amendments requirements of "due process" and "just compensation." Of course, one might contend that all these vague standards defy effective constitutional line-drawing. But, if one excepts the appropriateness of courts drawing hard lines when interpreting other vague Amendments, I do not quite understand why the protections of the Eighth Amendment should evaporate once a person gets sentenced to a term of confinement.
Laura raises related issues that also make me scratch my head: for Genarlow Wilson, another 7 years in prison seems pretty dire. I know everyone thinks "death is different," but many defendants on death row bringing Eighth Amendment claims are going to die in prison as old men before appeals are exhausted. But, for Genarlow Wilson, this case essentially concerned whether he was going to get to be a free man in his 20s (which is a probably a decade that few adults would want to have spent locked up in a prison). Though others may disagree, but I am much more eager to use a battering ram for the likes of Genarlow Wilson than for the likes of Ted Bundy.
Finally, Eugene suggests a focus on the text of the Eighth Amendment (which few really do). As the Wilson majority adroitly notes, statistics suggest that 7.5 million teenagers are involed each year in the specific offense behavior that resulted in 10 years in prison. Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?
A few reflections on the Genarlow Wilson case and the Georgia Supreme Court
The Georgia Supreme Court's ruling in the Genarlow Wilson case (discussed here) has restored my faith in the willingness of at least some judges to let reality and common-sense enter into their analysis of the cruel and unusual punishment clause. That said, I remain saddened that prosecutorial tunnel-vision prevented Genarlow from receiving justice much sooner.
Though a lot could and surely will be said about the Georgia Supreme Court's ruling and its broader significance, I find interesting to note the racial and gender breakdown of ruling in a case that has had lots of racial and gender dynamics in play throughout.
The majority opinion was authored by Chief Justice Leah Ward Sears, who according to the Court's website, "was the first African-American woman to serve as Superior Court Judge in Georgia [and upon appointment in 1992 became] the first woman and the youngest person ever to serve on Georgia's Supreme Court." Joining her opinion was Justice Carol Hunstein (the only other woman on the Court), Justice Robert Benham (one of two African-American men on this Court) and Justice Hugh Thompson (who may now seem to Wilson supporters to be pretty fly for a white guy). Justice George Carley authored the dissent, and he was joined by Justices Harris Hines and Harold Melton. Justice Melton is the other African-American man on the Court and its newest member.
Lots of observations could be made based on these demographics and the voting pattern they produced in the Wilson case. However, I find most striking simply how much more diverse the Georgia Supreme Court is than the U.S. Supreme Court. Despite having nine members, SCOTUS has never had more than one active African-American justice, has never had an African-American female justice, and now only has a single female justice. But, in the deep south state of Georgia, Genarlow Wilson's fate was in the hands of a seven-member court with three African-American jurists, two female jurists, and an African-American woman as the Chief.
Some (dated) Wilson posts discussing race, gender and related issues:
- Two (feminist?) perspectives on the Wilson case
- Provocative questions about Georgia sentencing injustice
- The nuance in my provocation
- Why isn't the severe Georgia sentence constitutionally problematic?
- ESPN effectively covers Genarlow Wilson's sad saga
A notable Miranda decision about sentencing
The Seventh Circuit issued a notable Miranda decision today, but this one is entirely about sentencing. Specifically, here is the first paragraph of today's ruling in US v. Miranda, No. 06-4195 (7th Cir. Oct. 26, 2007) (available here):
Luis Miranda pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Miranda has a history of severe mental illness, and at sentencing, he presented considerable evidence of diminished capacity. Miranda also presented evidence in support of an argument that his criminal history category overstated the nature of his prior criminal history. He argued to the district court for a below-guidelines sentence based on several factors listed in 18 U.S.C. § 3553(a). The district court did not directly address these non-frivolous arguments and sentenced Miranda to fifty months of imprisonment, a sentence greater than the government requested. Because the district court did not address Miranda’s principal, non-frivolous arguments before sentencing, we vacate and remand for resentencing.
Split justice for Genarlow Wilson from the Georgia Supreme Court
As detailed in breaking news stories from the Atlanta Journal-Constitution and from the AP, theGeorgia Supreme Court this morning ordered the release of Genarlow Wilson, the young man who has been serving a 10-year sentence for consensual oral sex. The decision divided the state justices 4-3, but ultimately upholds county judge's ruling that the sentence constituted cruel and unusual punishment. The ruling is available at this link, and the court also has this news release summarizing the decision. Here is how the opinion begins:
In Case No. S07A1481, the appellant, Warden Carl Humphrey, appeals from the grant of habeas corpus relief to the appellee, Genarlow Wilson, by the Superior Court of Monroe County (hereinafter referred to as the “habeas court”). For the reasons that follow, we conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment, but erred in convicting and sentencing Wilson for a misdemeanor crime that did not exist when the conduct in question occurred. Because the minimum punishment for the crime for which Wilson was convicted constitutes cruel and unusual punishment, this case must be remanded to the habeas court for it to enter an order reversing Wilson’s conviction and sentence and discharging him from custody. Accordingly, in Case No. S07A1481, we affirm the habeas court’s judgment in part and reverse it in part.
In Case No. S07A1606, Wilson appeals the denial, by the Superior Court of Douglas County (hereinafter referred to as the “trial court”), of his motion for release on bail during the pendency of the warden’s appeal in Case No. S07A1481. Because the trial court properly denied Wilson’s motion for bail, we affirm the trial court’s judgment.
Is there any principled basis for DOJ opposition to the crack amendment being retroactive?
Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive. The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:
As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive. The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.
The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.
The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work. The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.
"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM). Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.
Yet to weigh in on the retroactivity issue is the U.S. Department of Justice. But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline. I can tell you that our comment will reflect our opposition to retroactive application."
I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy.
Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant. But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation. Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.
Some related posts:
- The Sentencing Project urges retroactivity of USSC crack amendment
- USSC schedules public hearing on crack amendment retroactivity
- 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
October 26, 2007 in Enron sentencing, Kimbrough reasonableness case, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Lifetime GPS tracking after consensual teenage sex
A helpful reader sent me this notable piece from Arizona discussing a case in which, under a new state law, a fellow who pleaded guilty to having consensual sex with a 14-year-old girl and a 16-year-old girl when he was over 18 is now subject to lifetime electronic monitoring. Here are more details:
Upon his release from jail, he was placed on probation for the rest of his life, and he has to register as a sex offender for the rest of his life.
On Oct. 15, in accordance with a 2006 law, he was the first person in Coconino County outfitted with an electronic device that allows his probation officer and surveillance officer to know exactly where he is 24 hours a day. If he tries to take the device off, his probation officer will be contacted. If he gets too close to a school or a park where children frequent, his probation officer will be contacted. If he gets more than 100 feet from his tracking monitor, his probation officer will be contacted.
"Anyone who has been convicted since November 2006 for dangerous crimes against children gets one," said Rick Day, probation officer. The purpose of the law, according to information from the office of Gov. Janet Napolitano, is to give law enforcement agencies more updated information on sex offenders to protect the public.
According to the law, "Beginning November 1, 2006, after conviction of a dangerous crime against children ... if a term of probation is imposed, the court shall require global position system monitoring for the duration of the term of probation." [This defendant], because he's on probation for the rest of his life, must wear the device the rest of his life.
Day said the law also covers crimes that are not sexual in nature. For instance, if a child is in a home where meth is being manufactured and is physically injured, that is considered a dangerous crime against a child.
Some related posts on sex offender GPS tracking:
Interesting Tenth Circuit discussion of restitution issues
The Tenth Circuit has a very interesting discussion of some very interesting restitution issues in US v. Serawop, No. 06-4022 (10th Cir. Oct. 25, 2007) (available here). Here are the basic facts and the range of issues covered in Serawop:
Redd Rock Serawop was convicted of one count of voluntary manslaughter in the death of his three-month-old daughter Beyoncé Serawop. The court sentenced Mr. Serawop to 120 months’ imprisonment and ordered him, under the Mandatory Victims’ Restitution Act, 18 U.S.C. § 3663A (“MVRA”), to pay $325,751 in restitution to the Estate of Beyoncé Serawop. Mr. Serawop appeals the restitution order. We affirm....
Mr. Serawop argues that we must reverse the restitution order because the statute (1) is written in the disjunctive so as not to encompass an award of future income; (2) is meant to “reimburse” for past income lost, rather than project potential future income lost; (3) is ambiguous and is thus subject to the rule of lenity, which would resolve any ambiguity in favor of Mr. Serawop; (4) does not apply to speculative losses; and finally (5) requires that gender- and race-based statistics and consumption be included in the calculation. As will become apparent, we disagree.
October 25, 2007
Could states eager to execute quickly adopt a new execution method?
Today's somewhat peculiar en banc ruling from the Eleventh Circuit today in the Siebert capital case (basics here) was made possible in part because the state of Alabama decided it was important to appeal the stay granted yesterday by an Eleventh Circuit panel (basics here). Of course, I understand why a defendant facing lethal injection won't stop litigating the issue. But now I am starting to wonder whether states eager to continue with executions while Baze is pending ought to turn to legislation, rather than litigation.
Specifically, I am wondering what is stopping an execution-eager state from quickly passing legislation to now authorize electrocution (or even a firing squad and/or hanging) in order to go forward with a scheduled execution. Given the unpleasant aesthetics of various execution methods, perhaps a legislature acting to bring back the electric chair would seem barbaric to the general public. But is it any more barbaric than what Alabama is now doing: litigating to the hilt in order to make sure the state gets a chance to kill Daniel Lee Siebert before his terminal illness does?
Of course, defendants facing a new execution methods could (and surely would) bring challenges to that method. But, in these crazy, Baze-y days, a state might have more luck convincing courts to allow an electrocution to go forward than to allow a lethal injection execution.
Just a thought as concerns grow over back-alley lethal injections.
Some recent related posts:
News on the Alabama execution stay from the Eleventh Circuit
The de facto execution moratorium and Alabama's effort to disrupt this moratorium today has taken another twist, I think, based on this order from the full Eleventh Circuit in the Seibert case. Here is the full text of the order:
A member of this court in active service having requested a poll on the Petition for Rehearing En Banc filed by the Defendants-Appellees on 25 October 2007, and a majority of the judges of this court in active service (available and not recused) having voted in favor of granting a rehearing en banc, IT IS ORDERED that the above cause shall be reheard by this court en banc.
The opinion and stay entered by the panel on 24 October 2007 is hereby VACATED. The en banc Court sua sponte hereby STAYS the execution of the Plaintiff-Appellant pending further en banc consideration of this case.
I think this means that Alabama cannot yet go forward with the defendant's execution, but I think it also means that a fuller ruling will be coming soon from the full Eleventh Circuit. Of course, whatever that Court does will likely get appealed by the loser to the Supreme Court.
A Second Amendment problem with Peltier?
Along with commentors, I have bemoaned the statutory problems and the practical craziness of the Fifth Circuit's affirmance of a 10-year maximum sentence for a not-particularly-serious version of felon-in-possession in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here). And, with the Supreme Court now poised to consider whether the Second Amendment protects an individual right to keep arms (a view I believe the Fifth Circuit has already embraced), I am now wondering whether there might be a serious Second Amendment issue lurking here.
Recall that in Peltier the defendant "pleaded guilty to one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1)." Specifically, he possessed an "old, rusty .12 gauge shotgun stashed in an outdoor shed," which he said "he kept ... for personal protection." Of course, even if the Second Amendment confers upon individuals a right to keep arms, some reasonable restrictions on that right (just like reasonable restrictions on free speech/press rights) must be allowed in the name of public safety. And perhaps even a total ban on felons possessing firearms might qualify as such a reasonable restriction in the name of public safety.
But at some point, if the Second Amendment does confer on individuals a right to keep arms, wouldn't extraordinarily severe criminal punishments for non-threatening possession raise serious constitutional questions? Don't the penumbras of the Second, Fifth and Eighth Amendments cast a dark shadow on rulings like Peltier in which a defendant is deprived of 10 years of liberty by a judge simply for having a shotgun in his shed?
Perhaps I am trying to read too much into the Second Amendment, but cases like Peltier are one of many reasons I am keeping a close eye on the brewing gun litigation brouhaha.
Wildfires and wild prison growth in California
Like so many others, I am saddened by all the wildfire news from California and intrigued to watch Governor Schwarzenegger have a chance to be a real-life action hero. And yet, influenced by this strong new piece on California's prison woes and this strong follow-up post at Corrections Sentencing, I cannot help but see some sentencing and corrections stories through all flames. Specifically, today I am thinking about wildfires and wild prison growth in economic terms.
As this article details, California's bloated and ineffective prison system already costs state taxpayers about $10 billion per year. In addition, because federal courts are threatening to take control of the California system due to chronic overcrowding, California's "state politicians — urged on by Schwarzenegger — this year approved a $7.3 billion emergency measure, known as AB 900, to expand the system by a mammoth 53,000 beds."
These cost numbers for California's wild prison growth provides an interesting perspective on the news reports that the wildfire damages are likely to exceed $1 billion. Put another way, for all fire destruction we see on the news, the overall economic damages are only about what California taxpayers spend every single month to run (poorly) its corrections system.
Of course, it is not the economics, but the tragedies of personal harms and disrupted lives that draws our interest. But, whether you focus on the harms to victims from high rates of recidivism or the harms to defendants and their families from high rates of incarceration, the costs of California's out-of-control criminal justice system in terms of personal harms and disrupted lives is also remarkable.
Some related posts on California's prison woes:
- Is federal judicial intervention necessary for California's prison woes?
- The failing of California's new prison plan
- Interesting piece on California's prison woes
- Great commentary on California's prison problems
- "Hasta la vista, prison overcrowding!"
Second Circuit discusses loss calculations in white-collar fraud sentencings
Toward the end of a relatively long opinion, the Second Circuit discusses at some length (though with some opaqueness) the calculation of loss under the guidelines in US v. Rutkoske, No. 06-4067 (2d Cir. Oct. 25, 2007) (available here). Here is one of many key passages from the discussion:
The Government contends that the principles set forth in Dura Pharmaceuticals, a civil case, should not apply to loss calculation in a criminal case. The dicta in Ebbers strongly undermines that position. Moreover, we see no reason why considerations relevant to loss causation in a civil fraud case should not apply, at least as strongly, to a sentencing regime in which the amount of loss caused by a fraud is a critical determinant of the length of a defendant’s sentence.
Because loss calculations are extraordinarily important in most major fraud cases, and because the Second Circuit is a venue for many such prosecutions, Rutkoske is necessarily an important ruling for all white-collar criminal cases involving loss issues.
Are long criminal trials presumptively problematic?
Though not technically a sentencing issue, I cannot help but not some interesting work and words coming today from the Seventh Circuit. As detailed in this order, the Seventh Circuit has denied a petition for rehearing in the appeal of the conviction of former Illinois Governor George Ryan and his co-defendant. To that order, Judges Posner, Kanne, and Williams have added a joint opinion dissenting from the denial of rehearing en banc . This long dissent is a very interesting read that ends this way:
The role of the courts of appeals in protecting jurors and litigants from excessively protracted criminal trials that strain the capacities of jurors, and by doing so undermine procedural justice, merits plenary consideration by this court.
(Because I can't resist a sentencing spin, let me provide my own desired variation on this sentiment in light of the current state of reasonableness review (a sentiment I wish Judge Posner and all other federal circuit judges would embrace): "The role of the courts of appeals in protecting defendants and society from excessively protracted incarceration terms that strain the capacities of prison systems, and by doing so undermine substantive justice, merits repeated consideration by appellate courts.")
Dogfighting kingpin(?) cooperates and may avoid any prison time
I wonder how folks outraged by dogfighting feel about this news that a fellow who helped Michael Vick set up his dogfighting operations appears likely, because of cooperation with authorities, to avoid any prison time. Here are the basics:
Dogfighter Oscar E. Allen admitted to ties with suspended NFL quarterback Michael Vick's Bad Newz Kennels and pleaded guilty yesterday to the same dogfighting conspiracy charge as Vick. Allen, 67, of the Williamsburg area, pleaded guilty in U.S. District Court to one count of conspiracy to travel in interstate commerce in aid of illegal gambling and to sponsor a dog in animal fighting.
The conspiracy charge carries a maximum prison term of five years. However, Assistant U.S. Attorney Mike Gill said he will recommend to the judge no incarceration for Allen at his sentencing Jan. 25. His plea agreement requires cooperation with authorities. Judge Henry E. Hudson won't be bound by that recommendation or by the federal sentencing guidelines....
In making his guilty plea, Allen admitted in a signed statement that starting in 2001 he gave Vick and his associates advice about running a kennel. Over the years he sometimes took part when Bad Newz Kennels hosted dogfights at Vick's Surry County house, where Bad Newz Kennels was located. He also traveled with members of the Vick operation to some arranged fights in other states. Not long after the kennel started up in 2001, Allen sold it some American pit bull puppies to be used for dogfighting. One of the puppies, a female named Jane, became a "champion" for Bad Newz Kennels in 2003 by prevailing in three dogfights.
Allen also admitted he was at the Surry County property in April when Vick and two of Vick's co-defendants -- associates in the dogfighting operation -- tested dogs by forcing them to fight each other. Allen said he did not participate in the subsequent killings of eight dogs that did not measure up.
Though I am not sure from these facts if it is entirely fair to describe Allen as a "dogfighting kingpin," but the analogy to a drug kingpin seems apt given that Allen played a major role in making Vick's dogfighting operation a reality. Also, according to his lawyer, Allen "has participated in dogfighting, has at times owned fighting dogs and has been a breeder of fighting dogs."
Of course, as those involved in large federal drug prosecutions know, it is not unusual to see cases in which drug dealing kingpins are able to trade information in order to get shorter sentences than less the mules involved in the operation. So, even if Allen is justifiably considered a dogfighting kingpin, that fact alone won't ensure he gets a sentence as severe as Michael Vick.
Some related Vick posts:
All the lethal injection news that's fit to print (but not for law prof blogging?)
The New York Times this morning has two article covering the state of the lethal injection world:
As these two articles highlight, the media continues to provide a lot of coverage of the dynamic post-Baze death penalty developments. Though lots of media attention on capital punishment does never surprises me, I am somewhat surprised that most high-profile law professor bloggers — like the folks at Balkinization and Concurring Opinions and PrawfsBlawg and The Volokh Conspiracy — are yet to give these high-profile, constitutional, legal-process death penalty stories any attention at all.
October 24, 2007
A call for SCOTUS Justice diversity
Echoing some thoughts I had during the last round of Supreme Court vacancies, I see thanks to CrimProf and intriguing looking new paper on SSRN. This piece by Timothy P. O'Neill is entitled "The Stepford Justices: The Need for Experiential Diversity on the Roberts Court," and here is the abstract:
For the first time in history every Supreme Court justice has come directly from the same job: judge on the U.S. Court of Appeals. For the first time in history no justice has ever served in a legislature at any level of government. For the first time in history no justice has ever run for political office. For the first time in history eight of the nine justices have graduated from the same three Ivy League law schools.
This narrowness of experience on the Supreme Court is unprecedented. Our current Supreme Court can indeed be called The Stepford Justices. This article traces this homogeneity to the failure of the Robert Bork nomination in 1987. Since Bork, Presidents have tried to sell their nominees as non-ideological legal technicians. At the same time, justices are actually being selected for the same reason they always have been — the hope that their decisions will reflect the political beliefs of the President and his party. The result? An ideologically split Court that decided one-third of last Term's cases by 5 to 4 votes.
This article contends that Presidents — and the legal community — must be more honest about the role of ideology in the work of the Supreme Court. It draws from the work of the mathematician Kurt Godel to argue that the nature of the Supreme Court docket leads to decisions that are both true and at the same time unprovable. Technical legal skill is not as important as values and intuition.
The article recommends a return to the policies of presidents such as Roosevelt, Truman, and Eisenhower. While they certainly tried to choose nominees who shared their political beliefs, they nominated not just individuals with judicial experience, but also lawyers who had been Senators, Governors, cabinet members, heads of regulatory agencies, professors, and even private practitioners. This mix of justices with wide legal and governmental experience is vital for the effective functioning of the nation's highest collegial court.
Some related posts:
Eleventh Circuit grants stay to Alabama defendant facing execution
As detailed in this AP article, the Eleventh Circuit this afternoon "granted a stay of execution for Daniel Lee Siebert, a terminally ill killer who claimed that his cancer medication would counteract with a lethal injection, inflicting unnecessary pain." As the article notes, in "granting the stay, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta reversed an order by U.S. District Judge Mark Fuller in Montgomery."
I had predicted here that the Eleventh Circuit would affirm Judge Fuller, so this shows I am not always very good at predicting what courts are going to do. But this ruling does add more steam to my (hasty?) declarations that the Baze case before the Supreme Court has create a de facto moratorium on lethal injections executions.
I suppose it is possible the full Eleventh Circuit acting en banc or the Supreme Court could undo Siebert's stay, but that seems unlikely. And if Siebert's stay stays, the moratorium spotlight will shift next door to Mississippi, As detailed in this AP piece, lawyers for "condemned Mississippi inmate Earl Wesley Berry headed to a federal appeals court seeking to stop his execution after a district judge rejected Berry's plea for a delay."
UPDATE: I now see that the Eleventh Circuit's per curiam stay ruling in Siebert is available here. Seeing the composition of the panel leads me to think the stories surrounding this case might not be over.