October 30, 2007
Thoughtful reasonableness review discussions from the circuits
This afternoon brought two interesting and thoughtful discussions of various federal sentencing issues from two well-regarded judges in two circuits:
From the First Circuit, in US v. Milo, No. 06-2185 (1st Cir. Oct. 30, 2007) (available here), Judge Boudin discusses at length arguments made by the government assailing a district court's decision to give only time served and probation to a major pot dealer who had shown contrition and had cooperated with the government. The government ultimately prevails, but defense attorneys should like some of the discussion of pertinent sentencing considerations.
From the Tenth Circuit, in US v. Angel-Guzman, No. 06-4303 (10th Cir. Oct. 30, 2007) (available here), Judge McConnell discusses at length the standards for appellate review in light of Rita. Judge McConnell's work provides a great review of post-Booker and Rita realities in the course of affirming a within-guideline sentence.
Both of these rulings show what fine work the circuits can do to help create a rich common law of sentencing, if and only when they take the time to examine seriously a litigant's arguments concerning a district court's sentencing choices.
UPDATE: The Boston Globe has this piece on the Milo ruling.
Down to the wire with execution
still scheduled now stayed in Mississippi
30Along with Kent at Crime & Consequences, I am still awaiting word on whether the Supreme Court will block Mississippi's effort this evening to execute Earl Wesley Berry. I am bad at reading tea leaves, so I am not sure what to make of the fact that the Supreme Court still has not yet resolved Berry's request for a stay coming from his lethal injection case in federal court. Perhaps the delay is a sign that the Justices are putting together some sort of opinion to accompany whatever action (or non-action) they take. Given that this Mississippi case has been on everyone's radar screen since last week, the Justices have had a bit more time than usual to adjudicate this matter with everyone is watching closely.
Some recent related posts:
- Execution drama building in Mississippi case
- Mississippi moratorium test case now primed for SCOTUS
- Could states eager to execute quickly adopt a new execution method?
- News on the Alabama execution stay from the Eleventh Circuit
UPDATE: While I was spending the evening playing dad taxi, the Supreme Court continued the de facto moratorium on lethal injection executions by granting a stay for Berry. This post from Lyle Denniston at SCOTUSblog provides all the peculiar details, including the court's stay order here. Up-to-date media coverage includes this piece by Jan Crawford Greenburg at ABC News, this piece by Linda Greenhouse at the New York Times and similar articles from Bloomberg and Reuters.
Over at CDW, Karl Keys provides this nuanced assessment of where matters now seem to stand in the moratorium debate:
In light of the United States Supreme Court’s stay tonight of the Earl Berry execution in Mississippi, I strongly suspect the fluid situation that has marked the subject of lethal injection has now somewhat solidified. There will likely be no additional executions by lethal injection until at least after oral arguments & conference in Baze v. Rees, save for volunteers, and most likely until well in to 2008. Note Nebraska does not use lethal injection, volunteers will still likely be executed, and states are free to abandon lethal injection for another method of execution; I still have difficulty calling it a “de facto national moratorium,” but without getting in to why it doesn’t work, as a general concept it aptly explains our current situation. [I would prefer to borrow a term from elsewhere, “a patch quilt moratorium” that is likely to show signs of fraying as it gets tested, pulled, and ages, however, nuance and clarity are, at least in this context, mutually exclusive].
Rocky Rhode Island consequences in moving juve crime age line
A helpful reader alerted me to this very interesting article from the New York Times that highlights how tough on crime efforts to save a few bucks often can backfire and produce many unexpected consequences. Here are snippets from an article that should be read in full:
It was conceived as a way to save money in the face of a $450 million deficit in Rhode Island’s current budget: making 17-year-olds adults in the eyes of the law, shifting their cases to criminal from juvenile court and putting offenders in the state prison rather than the youth correctional center. The measure, which took effect July 1 and was expected to save $3.6 million a year, has ignited a firestorm, with children’s groups, the state public defender and others calling it bad policy that in any event is not a money-saver.
“It’s a gross failure of responsibility,” said the state’s attorney general, Patrick C. Lynch. “It’s not saving money. It’s creating enormous questions and problems in the system, never mind ruining lives” of young offenders who are left with criminal records. Responding to the concerns, the legislature plans to take up a measure today that would essentially repeal the law....
The proposal to treat 17-year-olds as adults for criminal-justice purposes was the subject of a legislative hearing in March, where Attorney General Lynch, a Democrat whose office is elective, and others came out strongly against it. Opponents took little action after that, as many thought it would be killed in the overwhelmingly Democratic legislature. But it survived, and before long it became apparent that the new law could well cost money rather than save it.
The State Department of Children, Youth and Families, which had proposed the idea, had assumed that 17-year-olds would be held among the general prison population, where incarceration costs $39,000 an inmate per year, 60 percent less than the $98,000 in the juvenile-offender system. But A. T. Wall II, director of the Rhode Island Department of Corrections, decided that for the sake of the young inmates’ protection, they would be held in maximum security, where the annual per-inmate cost is $104,000....
Beyond the fiscal issue are those involving public-records law, privacy and even bail. Seventeen-year-olds are not legally authorized to sign a contract in Rhode Island, and as a result cannot sign a bail form or a plea agreement without a parent present. “How do you plea a kid, or how do you post bail, when you’re not old enough to contract?” said John J. Hardiman, the state’s public defender. The new law also now makes the records of 17-year-olds public, unlike all juvenile records in the state, which are sealed.
Attorney General Lynch believes the law unnecessary because he could previously elevate juvenile cases to the adult level if the suspect had committed prior offenses or the crime was particularly violent. He said he believed the measure was destroying the lives of young nonviolent offenders, as drug convictions make it harder to find jobs and housing and cause students to be ineligible for federal aid. “This isn’t about the murderers, rapists, robbers — they could all be waived,” Mr. Lynch said. “This is about if there’s one joint in a car with four kids and it’s not lit. Those charges aren’t what they used to be. The world has changed for 17-year-olds in Rhode Island.”
Ten other states try people under 18 as adults, said Mr. Griffin, the juvenile justice researcher. But in Illinois and Wisconsin, there is a push to raise it back, he said. And Connecticut, which currently tries 16-year-olds as adults, is already set to raise the age to 18 as of 2010. In Rhode Island, Mr. Hardiman, the public defender, said judges’ concerns about the new law had caused many cases to be resolved before they even reach court. “They’re exercising discretion,” Mr. Hardiman said of the judges, “and I applaud them in trying to protect young people when the current sanctions are for someone much more mature than a 17-year-old kid.”
A guide to Apprendi issues for courtroom practitioners
Bruce Cunningham, Heather Rattelade and Amanda Zimmer have a new article (available here from SSRN) entitled "Apprendi/Blakely: A Primer for Practitioners." Here is the abstract:
The purpose of this article is to explore some of these complex Apprendi/Blakely issues in a manner which is useful for the courtroom practitioner. The implications of Apprendi/Blakely are largely uncharted territory and some of the opinions expressed in this article have not been addressed by any appellate court. In some instances, there are North Carolina appellate decisions which the authors contend are inconsistent with the basic premise of the Sixth Amendment line of cases. The article is intended to broaden the view of Apprendi/Blakely to include concepts that extend far beyond sentencing.
The article is divided into three parts and is geared toward the trial, appellate, and postconviction lawyer. Part I is devoted to a discussion of the historical context of Apprendi/Blakely and the basic conceptual underpinnings of the Supreme Court's Sixth Amendment line of cases. Part II presents a framework for analyzing Apprendi/Blakely issues arising under the Structured Sentencing Act. Part III, appearing in a later volume of the North Carolina Central University Law Journal, will deal exclusively with capital litigation and the Sixth Amendment line.
In an e-mail to me, one of the authors has said: "I hope some trial lawyers from the Blakely compliant states will comment."
Criminal porn and punishments today at the Supreme Court
If you are into criminal porn or criminal punishments, today is a day to keep an eye on the Supreme Court. This post at SCOTUSblog details the two cases scheduled to be argued this morning:
At 10 a.m, the Court is scheduled to hear oral argument in United States v. Williams (06-694), asking whether a federal ban on pandering material believed to be child pornography is unconstitutional....
At 11 a.m, the Court is scheduled to hear oral argument in Logan v. United States (06-6911), asking whether the Armed Career Criminal Act exempts state convictions for which civil rights were not originally revoked.
October 29, 2007
Execution drama building in Mississippi case
This extended post at SCOTUSblog and this AP story provides the latest news on the capital case from Mississippi, which could result tomorrow in the first execution in over a month in the wake of the Baze lethal injection cert grant. In short form, it appears that the Supreme Court refused to review a state action denying a stay, but a parallel case coming through the federal courts is still pending.
Eighth Circuit opines on intricacies of post-Booker sentencing
The Eighth Circuit in US v. Coyle, No. 06-2296 (8th Cir. Oct. 29, 2007) (available here), gets a second chance to explain how post-Booker sentencing work in a case that has a district judge and the parties all worked up. The panel's wotk in Coyle defies easy summary, but the Circuit's opinion page provides this unofficial account of the panel's work:
The court refuses to reconsider its decision in U.S. v. Coyle, 429 F.3d 1192 (8th Cir. 2005), that a substantial- assistance reduction from 135 months to 36 months' imprisonment was unreasonable; when the court remanded this case for resentencing, the district court was not prohibited from considering factors other than substantial assistance in fashioning Coyle's sentence, and the court could rely to some degree on both 18 U.S.C. Sec. 3553(a) and (e) factors in deciding upon a sentence; however, the court erred in relying on an impermissible factor — post-sentencing rehabilitation — when it applied Sec. 3553(a), and the case must be remanded for resentencing.
NPR piece on moratorium mayhem
Today on its Day to Day show, NPR started with this segment entitled "Future of Lethal Injection in Question." The audio piece covers some of the uncertainty that has followed the Supreme Court's grant of cert in Baze; it also notes the ABA's call for a national moratorium on executions for reasons unrelated to lethal injection protocols.
Some recent related posts:
- ABA sets out (incomplete) case against the modern administration of the death penalty
- Mississippi moratorium test case now primed for SCOTUS
- Could states eager to execute quickly adopt a new execution method?
- News on the Alabama execution stay from the Eleventh Circuit
SCOTUS order list includes two Rita GVRs
As first noted in comments by Peter G, the Supreme Court returned from its summer break by denying cert in early October to a lot of federal criminal appeals that perhaps could have justified Rita GVRs. That reality makes somewhat notable that today's Supreme Court order list, which is available here, includes two Rita GVRs in cases captioned Ibarra and Heavner from the Eighth Circuit.
I am not sure why Ibarra and Heavner get the benefit of Rita GVRs when so many other cases did not. Anyone in the know about these cases or (any Rita-related) others are encouraged to offer enlightenment in the comments.
ABA sets out (incomplete) case against the modern administration of the death penalty
According to this Chicago Tribune article, the America Bar Association's Death Penalty Moratorium Implementation Project has, after "concluding its three-year study of capital punishment systems in eight states," discovered "so many inequities and shortfalls that the group is calling for a nationwide moratorium on executions." I wonder if I will be the first to say that I am shocked — shocked — to learn that the ABA's Moratorium Project has now come to the shocking — shocking — conclusion that there should be a death penalty moratorium. (In somewhat related news, the latest issue of the ABA's Human Rights magazine is dedicated to the death penalty, and all the articles appear to advocate against this punishment.)
In all seriousness, the ABA's moratorium research project has provided a thorough account of the operation of the death penalty in eight states: Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee. And, though I suspect few working on this project are genuinely interested in creating a more effective and efficient system of capital punishment in the United States, the ABA deserves great praise for contributing an extraordinary amount of information and insight about the modern operation of capital justice systems and for making sounds suggestions about how capital justice might be improved. And yet, there is a troublesome incompleteness in all of the ABA's copious work.
First, consider the many notable jurisdictions left out of the ABA's research. California has a death row nearly twice as large as any other state, and yet its capital system has not been subject to the ABA's analysis. Even more glaring, the four states that have executed the largest number of defendants in the modern era — Texas, Virginia, Oklahoma and Missouri — also escaped the ABA's scrutiny. Indeed, by also leaving out North Carolina, South Carolina, Arkansas and Louisiana, the ABA failed to examine the states responsible for roughly 3/4 of all executions in the last 30 years. Any assessment of the death penalty that does not focus on Texas is like staging Hamlet without the prince, and the ABA has also left out Claudius, Gertrude, Horatio and Ophelia.
Second, consider key issues left out of the ABA's work. Somewhat comically, the issue that has now created a de facto moratorium — problematic execution protocols — is not examined at all by the ABA in this work. Also, some issues that might be most important to persons undecided about the death penalty — debates over deterrence and cost realities — are not addressed in the ABA's reports. And, returning to a theme that I often stress, the ABA does not explore federal capital prosecutions or the broader idea of having the federal government take over administration of the death penalty.
In short, those persons wanting to feel good about their pre-existing opposition to the death penalty will enjoy reviewing the thousands of pages produced by the ABA's research. But someone who is genuinely agnostic about capital punishment is likely to find the ABA's work more frustrating than enlightening.
Remarkable Booker variance for "shameful" jail conditions in NJ
As detailed in this article from the Newark Star-Ledger , a district judge in New Jersey last week granted a variance in response to evidence that prison conditions in a county jail were horrid. Here are the basics from the news account:
Ruling that overcrowding and poor conditions at the Passaic County Jail are "shameful" and have been ignored for too long, a federal judge has taken the dramatic step of cutting the sentence of a federal inmate being housed there by seven months. The federal public defender's office in New Jersey has argued for such reductions for years, but the case marked the first time it has been successful, officials said.
U.S. District Judge Katharine Hayden issued her ruling Thursday after presiding over hearings in which the inmate complained of putrid air, mold and other problems and officials acknowledged a deteriorating structure that lacked fire sprinklers and reached 100 degrees on hot days.
The half-century old jail, located in Paterson, was designed to hold 896 inmates, but houses more than 2,000. Hayden said "the mind boggles" at the living space: 64 are housed in each of the jail's 54-by-40-foot dorm-style units where they sleep, shower, and use toilets that lack ventilation and are six or seven feet away from dining tables. Hayden said the reduction in the sentence was needed as "a statement that there is a law of reason and fairness behind detention." The case, she said, "forces the question of how long we continue to turn a deaf ear, mine included. It has become a tired fact of life in these courtrooms that Passaic County Jail is overcrowded, is breaking down, and is a very rough place to serve time."
A helpful reader sent me a copy of Judge Hayden's opinion, which in part connects this variance to the 3553(a) factor of needing to "promote respect for the law." The opinion can be downloaded below, and here is a key snippet:
Respect for the moral law that makes the conditions in Passaic County Jail stick in the craw supports a variance, however big or small, as a statement that there is a law of reason and fairness behind detention. "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485 (1928)(Brandeis, J., dissenting).
Exploring our harsh approach to juve punishment
Over at FindLaw, Sherry Colb has this new piece entitled "Why Does the U.S. Sentence Adolescents To Life Without Parole?". Here is how it starts:
Last year the United Nations voted on a resolution to abolish life imprisonment without the possibility of parole for children and young adolescent offenders. The vote was 185 to 1 in favor of abolition, and the United States was the lone dissenter. Until 2005, moreover, when the Supreme Court outlawed the juvenile death penalty under the Eighth Amendment in the case of Roper v. Simmons, twenty states had allowed the execution of murderers who committed their crimes before the age of 18. In this column, I will explore ways of thinking about crime in the U.S. that might help explain this punitive approach to juvenile offenders.
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"
October 28, 2007
More intriguing plea bargaining scholarship
I continue to be pleased to continue to see interesting scholarship about plea bargaining appearing on SSRN. This latest piece comes from Russell Covey and is entitled "Fixed Justice: Reforming Plea Bargaining With Plea-Based Ceilings." Here is the abstract:
The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to challenge, conventional fixed discounts are doomed to failure.
This Article urges abandoning the effort to constrain prosecutors' discretion to make lenient plea offers and instead shifting regulatory focus to the creation of sentencing rules that prevent trial courts from imposing overly harsh trial sentences. The Article makes an original contribution to the plea bargaining literature by demonstrating that effective enforcement of discount limits is possible through adoption of plea-based ceilings. Ceilings would limit sentence differentials by ensuring that trial sentences do not exceed plea sentences by more than a modest amount. Because ceilings focus on limiting punitive trial penalties rather than preventing overly lenient plea offers, ceilings are practically enforceable in a way that conventional fixed discounts are not, and thus promise a method to improve the guilt/innocence sorting function of criminal procedure.
Some other interesting plea recent scholarship:
After Cunnigham remand, New Mexico gets with the Sixth Amendment program
Following the leads of the highest courts in Hawaii and Tennessee (which both recently recongized that they have to live in Apprendi-land), the New Mexico Supreme Court this week recognized that the US Supreme Court's ruling in Cunningham conclusively determined that its state's mandatory sentencing scheme creates Sixth Amendment problems. The ruling, in State v. Frawley (available here), begins this way:
This case is before us for a second time, after remand from the United States Supreme Court for reconsideration in light of its recent opinion in Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856 (2007). The issue we are asked to revisit is whether alteration of a defendant’s basic sentence upon a finding by the judge of aggravating circumstances surrounding the offense or concerning the offender, NMSA 1978, § 31-18-15.1(A) (1993), violates the federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution. We conclude Cunningham requires that we declare Section 31-18-15.1 facially unconstitutional.
Fascinating NY Times piece on victims, religion and the death penalty
On the front page of my Sunday New York Times is this fascinating article about the reactions of a Connecticut congregation to a brutal murder in its midst. The article is entitled "Death Penalty Tests a Church as It Mourns," and here are some excerpts:
Two years ago, congregants attended midnight vigils outside the prison where Connecticut executed a prisoner for the first time in 45 years. So it might have been expected that United Methodist congregants would speak out forcefully when a brutal triple murder here in July led to tough new policies against violent criminals across the state and a pledge from prosecutors to seek capital punishment against the defendants.
But the congregation has been largely quiet, not out of indifference, but anguish: the victims were popular and active members of the church — Jennifer Hawke-Petit, 48, and her two daughters, Hayley, 17, and Michaela, 11. On July 23, two men broke into the family’s home. Mrs. Hawke-Petit was strangled and her daughters died in a fire that the police say was set by the intruders.
The killings have not just stunned the congregation, they have spurred quiet debate about how it should respond to the crime and whether it should publicly oppose the punishment that may follow. It has also caused a few to reassess how they feel about the punishment....
At least two church members say they think that Mrs. Hawke-Petit endorsed an anti-death-penalty document known as a Declaration of Life. The declaration states a person’s opposition to capital punishment and asks that prosecutors, in the event of the person’s own death in a capital crime, do not seek the death penalty. The documents have been signed by thousands of people, including Mario M. Cuomo, the former governor of New York, and Martin Sheen, the actor....
Declarations of Life are often kept with a person’s will or other important papers; sometimes they are filed with registries. But it could not be independently determined whether Mrs. Hawke-Petit had signed one. Although the family’s home was heavily damaged in the fire and no independent copies have surfaced, death penalty opponents both inside and outside the church have kept trying to find one. A clear indication that Mrs. Hawke-Petit rejected capital punishment could help them mobilize, they say, not only in the Cheshire case but also on behalf of the nine people on Connecticut’s death row in Somers. The opponents also say that a signed declaration by Mrs. Hawke-Petit opposing capital punishment could help counter the public outrage to the killings — outrage that has pressured state officials to suspend parole for violent criminals.
Still, if proof of Mrs. Hawke-Petit’s sentiments did surface, it would have little standing in court, lawyers and prosecutors say. “Our job is to enforce the law no matter who the victim is or what the victim’s religious beliefs are,” said John A. Connelly, a veteran prosecutor in Waterbury who is not involved in the Cheshire case. “If you started imposing the death penalty based on what the victim’s family felt, it would truly become arbitrary and capricious.”
Some related posts on victims, religion and the death penalty:
- Victims' statement against the death penalty
- Senator Brownback questions death penalty and culture of life
- Debating religion and the death penalty
- New DPIC page on religion and the death penalty
- New resource examining religion and the death penalty
- Remarkable circuit judge speech on capital punishment at mass
- Sister Prejean's powerful perspective