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.
Spotting the many statutory errors in Peltier
Commentors here have done a great job highlighting the practical craziness of the Fifth Circuit's adoption of a "plain error" approach to reasonableness review in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here). But the problems with Peltier run deeper: at the most fundamental level, the Fifth Circuit's approach seems to misunderstand that reasonableness review was embraced in the Booker remedy to "iron out sentencing differences," not simply to protect a defendant's rights. The whole goal of reasonableness review emphasized by the Booker remedial opinion is undermined by affirming unreasonable sentences because errors are not plain enough.
Moreover, spotting the many statutory errors in Peltier would make for a good exam in my sentencing classes. Here are just a few I saw based on a quick read:
1. Peltier asserts in a footnote that "reasonableness has become ... a substantive standard to be applied by the district court," but that claim transgresses the congressional directive in section 3553(a), which states clearly that a sentencing court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 3553(a)(2).
2. Peltier affirms a statutory maximum sentence of 10 years for a defendant who pleaded guilty to a not-particularly-serious version of felon-in-possession (the defendant had a shotgun in his shed). Given the requirement in 3553(a)(3) to consider "the kinds of sentences available" and in 3553(a)(6) to "avoid unwarranted sentence disparities," what is reasonable about the district court's determination that the defendant should get the highest legally available sentence for this type of crime (especially given that his guideline range was less than half as long)?
3. Peltier makes much of the "weight given to the proper factor of need for treatment" to justify the district court's extra long prison term. However, 18 USC 3582(a) plainly states that courts must "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation."
I could go on, but perhaps I need to first re-read Peltier to make sure I'm not overlooking reasons it might not be as bad as it seems.
Notable dissent from a denial of crack rehearing
Today the Third Circuit released its decision (available here) to deny rehearing in US v. Ricks which concerned whether judges can disagree with the guidelines crack/powder ratio. Judge Ambro's adds a thoughtful dissent, which has this passage among a number of sound insights:
The panel’s opinion conflicts with the Supreme Court’s remedial opinion in Booker, which makes the Guidelines “effectively advisory” and requires district courts to consider all the factors of § 3553(a). In Ricks, the District Court considered the Guidelines’ sentencing range—which applied a 100:1 ratio—and rejected that range for what it considered to be a more reasonable punishment. I cannot see why “meaningful consideration” cannot lead to carefully considered rejection of an advisory policy.
It is no answer to say that sentencing judges cannot reject the policy decision of Congress. The whole Guidelines manual represents a policy decision of Congress. In order to remedy a constitutional defect, Booker excised the provisions that previously made the Guidelines mandatory. This made advisory Congress’s policy decisions as expressed in the Guidelines.
Comical lethal injection coverage from The Onion
Proving yet again that it truly is "America's Finest News Source," The Onion has this new coverage of the legal brouhaha over lethal injection protocols. The article is headlined "Lethal Injection Ban Leads To Rise In Back-Alley Lethal Injections," and here are just a few of many highlights:
To all outward appearances, "Kevin" is a typical Southern state governor. He enjoys vetoing bills, attending ribbon-cutting ceremonies, and hanging out with friends. But the recent suspension of lethal injections in 10 states has put Kevin's political life in serious jeopardy. Unable to wait for the U.S. Supreme Court to determine whether the practice constitutes cruel and unusual punishment, Kevin, like many young governors who find themselves saddled with an unwanted death row inmate, has been forced to take desperate action and obtain an illegal back-alley lethal injection.
"It was awful," said Kevin, who still suffers from nightmares after witnessing the prisoner die in horrible agony without any anesthesia. "We did it on an old card table. All the equipment was really rusty and dirty. I just closed my eyes and prayed for it to be over." "I had my whole political career ahead of me," Kevin continued through tears. "If I didn't do it, the voters would have left me. I couldn't see any other way."...
Lethal injection has long been a polarizing issue and, according to proponents of the banned procedure, Kevin's story is becoming all too common. Dr. Daniel Blecker, a professor at the University of California, Berkeley, School of Law, and expert on capital punishment, said that the illegal back-alley execution trend will only intensify if the ban is upheld.... "The reality of the situation is that you can't legislate lethal injections away," Blecker said. "If governors can't inhumanely execute prisoners legally in prisons, they're going to turn elsewhere for the procedure. More often than not with tragic results."
Plain error review adopted by Fifth Circuit to affirm large upward variance
I suppose I should not be amazed at the lengths circuit courts will go to reject a defendant's sentencing arguments on appeal. But still, I am amazed by the "plain error" approach to reasonableness review adopted by the Fifth Circuit in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here). Here are a few of the factual particulars of a ruling that seems wrong on so many levels:
Peltier pleaded guilty to one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). While executing a warrant to search for illegal narcotics in Peltier’s residence, agents found cocaine residue, large amounts of cash, and an old, rusty .12 gauge shotgun stashed in an outdoor shed.
Peltier had felony convictions for cocaine distribution, simple burglary, and second degree battery. He admitted that he knew those felonies prohibited him from possessing the firearm, but he kept it for personal protection.
Peltier had a base offense level of 20, subject to a three-point reduction for acceptance of responsibility. He also had a criminal history category of V, based on five prior convictions — the three felony convictions and two misdemeanor drunk driving convictions. This resulted in a guidelines range of 46 to 57 months.
Peltier urged the district court to consider deviating below the guidelines range, and he suggested that he would benefit from a halfway house. The court, however, explained at the sentencing hearing that the guideline range did "not adequately address the very true and real concerns this Court has about Mr. Peltier [and] the policies and the factors reflected in 18 U.S.C. § 3553(a)." Specifically, the court noted Peltier's long criminal history, his violence and anger problems, the dangers posed by his drunk driving, and his addiction to drugs....
The court sentenced Peltier to 120 months, which is the statutory maximum penalty and more than twice the maximum under the advisory guideline range.... The court recommended that Peltier be placed in a facility with the most extensive drug treatment program. Peltier did not object to the sentence.
Then comes the Fifth Circuits legal analysis, which has to be read in full to appreciate all its glory. But the essence of the ruling can be distilled down to these few sentences:
Because Peltier did not object, we must determine the proper standard of review. Ordinarily we review non-guideline sentences for "unreasonableness" and "apply an abuse of discretion standard of review to the reasonableness inquiry." Where the defendant fails to preserve an error, however, we generally apply a plain error standard, which requires considerable deference to the district court and erects a more substantial hurdle to reversal of a sentence than does the reasonableness standard....
Although the district court deviated strikingly far above the guidelines range, we cannot conclude that any insufficient weight given to the guidelines constitutes plain error.
I think I need another post to explain in detail why Peltier seems so wrong. That post will come shortly.
Perceptive public perceptions and political opportunities
A helpful reader pointed me to some recent Gallup poll results concerning public perception of crime rates and drug problems. Here are links and highlights from these recent polls:
On crime, this Gallup poll report is headlined "Perceptions of Crime Problem Remain Curiously Negative: More see crime worsening rather than improving." This Gallup report makes much of the fact that "Americans have a decidedly negative outlook about crime" even though overall crime rates "have generally leveled off at extremely low numbers." But, Gallup's poll question asked about perceptions of crime in the last year, and the latest FBI yearly report shows a roughly 2% increase in violent crime.
On drugs, this Gallup poll report is headlined "Little Change in Public's View of the U.S. Drug Problem: More than 7 in 10 Americans say nation's drug problem is very serious." This Gallup report details that "the vast majority of Americans [are] saying the problem of illegal drugs in the United States is very serious," but "only about one in three Americans [believe that government efforts have] made progress in this area."
Beyond being impressed with the public's perceptiveness, these result would appear to present real political opportunities for those interested in sounder crime and sentencing policies. Read together, these polls suggest that the public is primarily concerned with violent crimes and that most Americans view the government's use of harsh sentences in the "war on drugs" to be a failure. In turn, the public ought to be very receptive to campaigns that promise dramatic reductions in sentences for non-violent drug offenders so that resources could be more effectively concentrated on (a) drug treatment programs, and (b) police and correctional resources devoted to preventing and responding to violent crimes and offenders.
Some related posts:
- New Sentencing Project report on the "war on drugs"
- Politics and the war on drugs
- SF Mayor Gavin Newsom: "End this war on drugs."
- A gendered perspective on the war on drugs
- Lies, damn lies and FBI crime statistics
- Disconcerting rise in violent crime rates
- How the war on terror impacts the politics of crime
October 24, 2007 in Campaign 2008 and sentencing issues, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Ohio moving toward crack/powder equality by raising sentences
This local article, entitled "Ohio Senate equalizes penalties for crack, powdered cocaine," spotlights that cocaine sentencing equality is politically feasible if it involves raising sentences. Here are the highlights:
Those nabbed with powdered cocaine would face the same harsh penalties as those caught with crack cocaine, under a bill passed unanimously by the Ohio Senate on Tuesday.
Legislation ending the racially loaded distinction between powdered cocaine and crack cocaine has been sought by Ohio's black delegation at the Statehouse over the past decade. What tipped the scales in favor of this bill this session was a "broader understanding" that the drug problems in Ohio extend beyond city street corners, said the bill's sponsor. Also, the bill was tweaked to bring up the penalties for powdered cocaine rather than ratchet down the penalties for crack cocaine....
"We've got a growing problem in our rural areas of the state, and many of these members are well aware of the problem," said State Sen. Ray Miller, a Columbus Democrat who sponsored the bill. "Fundamentally, equalizing the penalties at a higher level as opposed to bringing them down was key to passage," Miller said.
Under current state law, penalties for crack cocaine are far harsher than those for powdered cocaine. For example, a person caught with only 25 grams of crack can be convicted of a first-degree felony, while it requires at least 500 grams of powdered cocaine to face the same sanctions. Urban lawmakers have long contended the distinction was racially and economically biased, as the state's crack-cocaine problem is largely based in poor and minority areas.
State Sen. Bill Seitz, a Cincinnati-area Republican, voted for the bill but said he was concerned by a nonpartisan analysis that put costs of additional incarceration at $25 million or more per year from the harsher penalties. "That's real money," he said. "And that's what happens when we equalize penalties at a higher rate."
October 23, 2007
A brewing brouhaha over sentencing reform in New York
As detailed in prior posts here and here, New York Governor Eliot Spitzer earlier this year established through an executive order the New York State Commission on Sentencing Reform (NYSCSR). And, as detailed in this AP story and this official press release, last week the NYSCSR released a preliminary report (available here) which "outlined several major preliminary recommendations to improve the state’s current sentencing structure, calling for a more simplified and streamlined system focused on public safety, consistency and fairness."
This preliminary report, entitled "The Future of Sentencing in New York State: A Preliminary Proposal for Reform," is a very impressive 100-page document that makes a lot of very sound points and recommendations. However, as detailed in this strong article in City Limits, there is some dissension in the NYSCSR ranks:
The future of a pair of provocative criminal justice issues — parole for felons, and New York state's strict drug laws — remains in the air, as a commission proposing sweeping prison sentencing changes announced it was split on two fundamental issues....
The Commission recommended effectively ending parole for most crimes, but three of the 11 commissioners did not support that view. And because commission members were unable to reach consensus on whether mandatory minimum prison sentences are appropriate for drug offenders, the panel largely put off discussion over whether to amend the Rockefeller drug laws.
The NYSCSR's decision to duck the Rockefeller drug laws has met with pointed criticism, as evidenced by this press release from the Drug Policy Alliance. It notes: "Advocates and family members of those impacted by the Rockefeller Drug Laws responded to NYSCSR report by their voicing disappointment over the Commission's lack of findings."
As detailed here, the NYSCSR has scheduled a series of public hearing around New York next month. it will be interesting to see how much attention these hearing receive and how the NYSCSR deals with its divisions and outside criticisms.
A fascinating balance of execution equities in Alabama
The lethal injection moratorium debate is about to get real interesting in Alabama as the scheduled execution date of Daniel Lee Siebert approaches. Siebert is due to be executed Thursday evening, and yesterday Alabama's governor indicated he wanted the execution to go forward. Today, as detailed in this AP story, a federal district judge turned down Siebert's stay request. Here are the litigation details:
The judge sided with the state attorney general's office, which argued that Siebert didn't raise the lethal injection issues until he had exhausted all other appeals and that was too long to wait. Siebert's attorneys immediately appealed to the 11th U.S. Circuit Court of Appeals in Atlanta.
What makes this case especially notable is that Siebert is terminally ill and apparently only has a few months to live. Though the AP report does not mention whether the federal district court considered Siebert's health when refusing a stay, the defendant's condition is arguably a relevant factor when balancing equities in the consideration of a motion for a stay. (Ironically, though folks opposing Siebert's execution cited his illness as a reason for clemency, Alabama's governor views his illness as a justification for going forward in order to ensure that the state gets to kill Siebert before his illness does.)
If past is prologue, we can expect the Eleventh Circuit to affirm the district court's decision to deny a stay. Then it will be up to the Supreme Court yet again to decide if it wants to grant a stay and keep the de facto Baze moratorium in place.
Some recent related posts:
Rooting for the Sixth Circuit to take acquitted conduct en banc in White
As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)." This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here). I believe an en banc petition was filed last week in White, so now I am eagerly awaiting word on whether the White panel has convinced the majority of the Sixth Circuit to take up the acquitted conduct issue.
As regular readers know (and as posts linked below highlight), I find acquitted conduct enhancements especially troublesome in the wake of Blakely and Booker. Moreover, Justice Scalia's concurring opinion in Rita indicates that some within-guideline sentences depending too much on judicially found facts would trigger "as-applied" Sixth Amendment concerns even within an advisory guideline scheme. Justice Scalia's discussion of "as-applied Sixth Amendment challenges" in Rita provides further support for a constitutional attack on use of acquitted conduct as a sentencing enhancement.
Further, a number of district court opinions suggest that sentencing courts may be taking a variety of post-Booker approaches to the consideration of acquitted conduct sentencing enhancements. For example, a terrific district court opinion from the Eastern District of Virginia in Ibagna (discussed here) makes a strong case for why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making. And, within the Sixth Circuit, another terrific district court opinion from the Southern District of Ohio in Coleman (discussed here) reaches a distinct conclusion about how to deal with acquitted conduct enhancements after Booker.
In short, in addition to a core constitutional issue, acquitted conduct enhancements after Booker raise interesting and important statutory interpretation and reasonableness review issues as well. Because the Sixth Circuit has been among the most thoughtful and nuanced appellate courts trying to sort through Booker fall-out, I am very hopeful it will be the first circuit to assess these issues directly through an en banc proceeding.
Some related posts:
- Will the Sixth Circuit consider acquitted conduct enhancements en banc?
- Strong commentary on acquitted conduct sentencing
- A terrific district court opinion on acquitted conduct
- New (or renewed) ideas and arguments suggested by Rita
- Sincere questions about acquitted conduct sentencing
October 23, 2007 in Booker and Fanfan Commentary, Booker in the Circuits, Claiborne and Rita reasonableness case, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Does Roper suggest young juve LWOP is unconstitutional?
The Baltimore Sun today has this effective editorial, entitled "Too young to die in prison," which builds off the Equal Justice Initiative's recent new report (available here, overviewed here) on life terms for offenses committed by young teenagers. Here are snippets from the editorial:
Teenagers serving life sentences without the possibility of parole have been condemned to die in prison. It's a death sentence without an executioner, it's perilously close to cruel and usual punishment, and it simply shouldn't be allowed.
States, such as Maryland, that let juveniles spend the rest of their lives behind bars ignore what researchers and others have shown to be true: These offenders lack the physical and emotional maturity to make rational decisions. A life sentence, with the appropriate parole eligibility requirements and restrictions, would keep these young criminals behind bars for a lengthy period and prevent their release until an appropriate time.
A report issued last week by the Alabama-based Equal Justice Initiative found that nationally, more than 2,225 juveniles, age 17 and younger, have received life without parole sentences. Of those, 73 were 13 or 14 — children by almost any measure — when they committed their crimes....
Their crimes may have been terrible, but there is a reason we have different systems for juvenile offenders: Society recognizes the differences between teenagers and adults; the key difference is that parts of their brains that control impulses, emotions and reasoning are less developed.
Juveniles are barred from buying cigarettes or beer; they can't enlist in the military and aren't supposed to watch R-rated movies unless accompanied by a parent or guardian. And yet when they commit a serious crime, it's as if they have morphed into adults for purposes of their punishment....
The Supreme Court recognized all these differences when it barred the execution of juveniles, no matter the crime. But a mandatory life sentence without possibility of parole is just as fatal in its way, and should be prohibited for the same reasons.
I share the editorial's instinct that a fair reading of Roper supports an argument that life without parole for young teenagers is constitutionally excessive under the Eighth Amendment. I suspect others may agree. But it is telling (and troubling) that these viable constitutional arguments on behalf of young offenders facing life terms have not gotten nearly the traction and attention — from courts, the media or academics — that has been given to older offenders facing lethal injections.
Some related posts:
- Using Roper's focus on age in post-Booker sentencings
- California considering eliminating LWOP for juveniles
- Forthcoming PBS program "When Kids Get Life"
NY high court reaffirms its disruption of state death penalty
As Howard Bashman reports here, the Court of Appeals of New York has affirmed its 2004 LaValle ruling finding unconstitutional the state's death penalty procedures (originally discussed here). Today's majority opinion in People v. Taylor, No. 123 (NY Oct. 23, 2007) (available here) begins this way:
Three years ago, in People v LaValle (3 NY3d 88 ), we held that the jury deadlock instruction under CPL 400.27 violates our State Constitution. Because a deadlock instruction is both essential to a death penalty statute and necessary to conform with principles of due process, we were compelled to invalidate the entire sentencing portion of the statute. We are now asked to decide whether an earlier attempt by a trial court to minimize the coercive effect of the flawed jury deadlock instruction warrants revisiting the issue of that instruction's constitutionality as applied to the present defendant. We hold that under the doctrine of stare decisis, defendant's death sentence must be vacated and the matter remitted to Supreme Court for resentencing.
Should the Senate reject AG-nominee Mukasey?
I have not been paying much attention to the debate over the Mukasey nomination hearings because, as noted here, sentencing issues seemed to be largely off the radar screen. Still, I am intrigued to see that my colleague (and sentencing guru) Frank Bowman has this new piece at Slate urging the Senate to reject the President's AG nominee. Here is how the piece starts:
The Senate should not confirm Michael Mukasey as the next attorney general. I am surprised to find myself writing this. I was initially pleased by his nomination. By all accounts, Judge Mukasey is honest, thoughtful, tough-minded, and independent — qualities his disgraceful predecessor notoriously lacked. If confirmed, Mukasey would probably reinvigorate the Justice Department's depleted and demoralized upper management and make a start on the long job of restoring the department's reputation for integrity and professionalism.
Sadly, that's not enough. The problem is not Mukasey's intellect, competence, or personal probity. It's that — as became clear on the second day of his Senate testimony — he is wrong about the fundamental moral question of whether reasons of state can justify or excuse the official embrace of torture. And he is even more wrong — dangerously, subversively wrong — about the place of the president in American constitutional government. If the senators on the judiciary committee really listened to what Mukasey said, and listened as senators and citizens rather than as nervous party politicians, they would reject his nomination on constitutional principle and as a matter of institutional self-defense.
Massachusetts event on sentencing reform
As discussed in this Boston Globe editorial, the Massachusetts Bar Association this morning is conducting a State House symposium focused on sentencing reform. Details about the event and the many scheduled speakers is available from this MBA webpage. The Globe editorial includes these effective insights about the event and the issues it is seeking to spotlight:
The symposium offers a welcome opportunity to reconsider the effects of such blunt [mandatory minimum sentencing] laws. But it still feels like the state is revisiting an old controversy that ought to have been resolved by now. In the mid-1990s, a commission of judges, prosecutors, and defense attorneys spent two years of research and debate creating a balanced set of sentencing guidelines. In what appeared to be a sensible compromise, the Massachusetts Sentencing Commission stiffened sentences for violent crimes but gave judges leeway to depart from mandatory minimum sentences in nonviolent drug cases. Alternative sanctions, such as electronic bracelet monitoring, could replace prison time for minor offenses. But the Legislature never gave the sentencing reform bill serious consideration.
Today's symposium could suffer from the fact that no district attorney will be on the panel. A vigorous debate on sentencing reform is impossible without the DAs, who are among the state's fiercest protectors of mandatory minimum drug sentences. Still, there are signs of flexibility even among hard-line prosecutors. Cape and Islands District Attorney Michael O'Keefe, for example, says he can't imagine fellow DAs agreeing to the elimination of mandatory drug sentences. But O'Keefe could envision changes to the controversial law on school zones. This would be a good place to start. About one third of the roughly 1,000 people who received mandatory drug sentences in 2006 fell under the sloppy school zone policy that provides little or no actual protection to students.
The state's district attorneys association and bar association worked well together recently to update the state's drunk driving laws. They should do the same to bring Massachusetts drug laws into the modern era.
Effective examination of sex offender realities in Texas
Amidst lots of great new posts at Grits for Breakfast is a review of this past weekend's strong series in the Dallas Morning News about the realities of child sex abuse cases and treatment programs aimed at reducing recidivism. The Grits effective summary of the series is available at this link, and here are links to the original newspaper articles:
October 22, 2007
Georgia continues de facto moratorium, while Alabama's governor pledges to go forward
Today brings two more notable data points in the debate over whether the Baze case has created a de facto moratorium on executions: (1) as detailed in this AP article, the Georgia Supreme Court today granted a stay of execution to Curtis Osborne, whose lethal injection execution was scheduled for Tuesday, but (2) as detailed in this Reuters article, Alabama's Governor Bob Riley today expressed his interest in going forward with an execution scheduled for Thursday in his state. Here are some details from the Alabama story:
Alabama Gov. Bob Riley on Monday rejected calls to postpone this week's execution of convicted serial killer Daniel Lee Siebert despite his terminal cancer and a national controversy over lethal injections. Siebert's execution, scheduled for Thursday at 6 p.m. will be the first to go forward since the beginning of a "creeping moratorium" that has halted executions in several U.S. states while the U.S. Supreme Court decides whether lethal injections cause unacceptable pain.
"I would in essence be commuting his sentence to life in prison and that is not the sentence he was given by a jury. His crimes were monstrous, brutal and ghastly," Riley said in a statement dismissing calls to halt the execution because of Siebert's cancer. The governor added that Alabama had changed its lethal injection procedures to make sure inmates were unconscious when the lethal drugs were injected during executions and that the state would therefore move forward with Siebert's sentence.
Some recent related posts:
Examples why federal sentencing and reasonableness review should migrate away from the guidelines
Sentencing rulings today from the Sixth and Ninth Circuits provide more examples for why federal judges interested in a sound and comprehensible sentencing system should be more willing to migrate away from the diktats of the guidelines.
From the Sixth Circuit in US v. Geerken, No. 06-3987 (6th Cir. Oct. 22, 2007) (available here), we learn about the distinctive math of the guidelines in which 204 still images and 49 videos adds up to 600 or more images of child pornography. (As a Tom Lehrer fan, Geerken reminded me of two of his great songs, "New Math" and "Smut'). In a similar guideline-centric mindset, the Ninth Circuit in US v. Rodriguez-Guzman, No. 06-10585 (9th Cir. Oct. 22, 2007) (available here), provides a lengthy tutorial on whether California's particular definition of statutory rape qualifies as a "crime of violence" under the guidelines.
Meanwhile, the Ninth Circuit today also handed down US v. Rodriguez-Guzman, No. 06-30341 (9th Cir. Oct. 22, 2007) (available here). Mercifully, that ruling manages in seven short paragraphs to provide a clear account of the reasonableness of a sentence based on the district court's focus on the "defendant's extensive criminal history and the need for deterrence."
Reading these cases together, I cannot help but note the clarity and sensibility that can result from emphasizing the simple provisions of 3553(a), over the complex (and falsely precise) provisions of the guidelines. Because of the interpretive complications that the guideline can produce, I expected and hoped we would see a slow migration away from the most opaque guideline diktats after Booker. But now, almost three years afteer Booker, I see very little evidence of a migration away from guideline technicalities. Perhaps the forthcoming rulings in Gall and Kimbrough will help the migration away from the guidelines, but I'm not holding my breath.
October 21, 2007
Why exactly are some death penalty opponents resisting the moratorium label?
As detailed in this prior post, the opaque work of the Supreme Court in granting stays since its cert grant in Baze makes it hard to say with great certainty that there is a de facto moratorium on all lethal injection executions now in place. Nevertheless, I find quite intriguing, as detailed in this post from Karl Keys and from comments here, that various persons who support an end to executions seem eager to avoid using the moratorium label to describe post-Baze developments.
Let's start with some basic facts. Partially as a result of the Baze grant and post-Baze developments, there has not been an execution in the United States for nearly a month and more than a dozen scheduled executions in nearly 10 different states have been put on hold. (A few of these stays pre-date the Baze grant, but the Baze grant essentially ensured the stays would not be undone.) Perhaps most significantly, Texas, the state responsible for the majority of executions in 2007, has indicated that it won't even try to go forward with any executions until Baze is decided.
Of course, no formal moratorium has been declared (or really could be declared) by the Supreme Court. Thus, nobody should believe there is a de jure moratorium that ensures no executions until an outcome in Baze. But, in the wake of this past week's stays in Nevada and Virginia and Georgia, I have come comfortably to the conclusion that there is now a de facto moratorium on lethal injection executions. And though it's possible that a state will at some point convince the Supreme Court to allow it to go forward with an execution while we await Baze, I still think the label "moratorium" is the most accurate way to describe the extant consequences of the Baze grant and post-Baze developments.
Intriguingly, it appears that death penalty supporter Kent Scheidegger has now begrudgingly accepted the de facto moratorium label. Why exactly, then, are death penalty opponents eager to resist the moratorium label?
UPDATE: Karl Keys responds here by suggesting it "may be more helpful to ask why call it a moratorium" given that there are "six serious execution dates that have yet to be stayed just in the next 60 days, any one of whom may realistically lead to a fellow human being getting strapped downed to a gurney and poisoned to death." My response is that I do not know what other word effectively describes the fact that more than a dozen serious execution dates have been stayed in the last four weeks since the Baze grant.
Karl goes on suggest that calling current events "a moratorium would be to denigrate [the] effort" of defense lawyers working to get stays in cases still with serious execution dates. On this point, I look at the issue from the other end of the legal uncertainty: by denying the existence of a de facto moratorium, aren't death penalty opponents indirectly encouraging lower courts NOT to grant stays and encouraging prosecutors to keep pushing capital cases forward.
In my view, If death penalty opponents were to vocally accept (and vigorously praise) the existence of a de facto moratorium on all lethal injection executions, it would make it a lot easier for defense lawyers to get stays in all still-pending capital cases. Or, put differently, it seems that denying the existence of a moratorium serves to justify the efforts of those prosecutors and judges seeking to keep the machinery of death well oiled and fully functional despite Baze.
A positive, practical consequence of a parole panic
I have long thought that sentencing and corrections would be more effective if decision-makers focused resources and attention on violent offenders. Interestingly, this local story from Connecticut spotlights that, in the wake of a horrific violent crime by parolees, state official are reorienting energies on distinguishing violent and non-violent offenders in prison. Here are snippets from the story:
Gov. M. Jodi Rell said Saturday she has authorized adding prison staff to speed the release of nonviolent offenders and make room for violent offenders no longer eligible for parole. The inmate population has swelled by 461 in the month since Rell suspended additional paroles of violent offenders until the procedures for reviewing applications are tightened.
In a series of changes prompted by the July 23 slayings of a mother and her two daughters in their Cheshire home, Rell also approved the expedited hiring of 13 parole officers to improve the oversight of parolees. Rell authorized the Board of Pardons and Paroles to hire five temporary employees to process and review a backlog of 1,000 parole applications. The backlog was caused by a decision to grant no paroles without reviewing applicants' sentencing transcripts.
Some related posts:
Punished (twice?!?) for an uncharged murder in federal court
A helpful reader sent me this remarkable story about a recent federal sentencing in Nevada. Here are the highlights:
A Las Vegas judge found by "clear and convincing evidence" Friday that David Fitch killed his wife eight years ago, although the defendant has never been charged with murder and the woman's body has never been found. The finding allowed U.S. District Judge James Mahan to depart from federal guidelines and sentence Fitch to nearly 22 years in prison for committing bank fraud and other crimes in a case that stems from the September 1999 disappearance of the Fitch's wife, Maria Bozi....
Fitch, 49, recently completed an eight-year prison term for illegally possessing firearms and false identification documents in a related case.... Fitch's court-appointed attorney, Lisa Rasmussen, argued that Bozi's disappearance was considered by U.S. District Judge Kent Dawson at the previous sentencing and that her client should not be required to serve any additional time in the new case, which stemmed from the same "scheme of conduct." Mahan said the record does not support the contention that Dawson considered the murder allegation in sentencing Fitch....
Although federal guidelines suggested a sentence in the range of 41 to 51 months, Mahan chose to impose a 262-month sentence, which amounts to nearly 22 years. Assistant U.S. Attorney Timothy Vasquez had requested a 30-year term....
Fitch ... argued that authorities have no evidence showing that he harmed anyone. "I'm not a violent person," he said. Fitch pleaded guilty in July 2000 to multiple felony counts that involved possession of firearms, ammunition and false identification documents. In July 2004, while Fitch was serving his eight-year sentence, he was indicted in the bank fraud case. A jury convicted Fitch earlier this year of multiple felony counts of bank fraud, money laundering and unauthorized possession of a credit card. Bozi was the victim of most of the crimes....
Clark County District Attorney David Roger said he doesn't plan to file a murder charge against Fitch, despite Mahan's comments Friday. Clark County prosecutors will not pursue a murder charge until they have enough evidence to prove the case beyond a reasonable doubt, Roger said.
In prior posts, I have noted numerous other recent instances in which federal courts have enhanced sentences based on uncharged murder allegations. The great irony is that Justice Scalia's opinion in Blakely expressed grave concerns about allowing judges to "sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it." It seems that, despite Blakely's outcome, this remains a surprisingly common occurrence in federal court.
Related posts on uncharged murder sentencing enhancements:
- Sentenced for an uncharged murder
- Sentenced for three uncharged murders
- Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
- Seventh Circuit affirms 10-year sentence increase for uncharged murder
- Eighth Circuit affirms another lengthy sentence for an uncharged murder
- Eleventh Circuit approves sentences based on hearsay evidence of uncharged murders
An unexpected sentencing windfall for drunk drivers
This local article from Alabama spotlights a new troublesome flaw in the state's sentencing laws for drunk drivers. Here is how the article begins:
An unintended change in the state’s drunk driving law will mean lighter sentences for some of the worst violators of the law. State lawmakers were trying to strengthen the state law on driving under the influence of alcohol when they amended it in 2006. Their goal was to let prosecutors and judges consider previous out-of-state DUI convictions when charging or sentencing. But the amendment prevents prosecutors and judges from considering all prior DUI convictions and limits them to considering only convictions that go back five years.
As I have explained in prior posts, I always find troubling and telling that the harms and risks posed by drunk drivers are rarely treated as seriously as those posed by other types of offenders. Against this backdrop, it is amazing to see drunk drivers also getting a break from a legal loophole.
Some related posts on drunk driving sentencing:
- Shouldn't we be much, much tougher with drunk drivers?
- Technology versus toughness to combat drunk driving
- Is capital punishment for drunk driving morally required?
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?