November 17, 2007
The impact of the execution moratorium on victim's family
CNN has this new piece showcasing the impact of the Baze execution moratorium on the family of one murder victim. Here is a snippet:
The call. He expected it. Dreaded it. But he didn't hesitate to answer. Junny and Vicki Rios-Martinez have been waiting since 1991 to see Mark Dean Schwab executed.
When Junny Rios-Martinez's cell phone rang Thursday afternoon, he and his wife were in their car, getting the family together on their way to witness the execution of their son's killer scheduled for that night. "It was a woman from the governor's office. She told me there was a stay."...
Mark Dean Schwab, 38, won a stay from the Supreme Court hours before he was scheduled to be put to death. When Rios-Martinez hung up, no one said a word.... Junny and Vicki Rios-Martinez had been waiting for more than 16 years to see their son's killer executed. Now, they'll have to wait even longer. The Supreme Court is reviewing whether executions by injection violate the Eighth Amendment to the Constitution, which prohibits cruel and unusual punishment....
Rios-Martinez said the delay gives him just one more reason to be fed up with a criminal justice system he feels has let him down. "People tell me I'm full of anger. Why shouldn't I be? My son was my life. He was the light of my eyes. I loved him more than anything," said Rios-Martinez.
Dyslexic doctor of death involved in federal LI protocol
As detailed in posts here and here, I have long been wondering why federal officials have so willingly postponed federal executions during all the litigation over state execution protocols. Now, thanks to this article from the St. Louis Post-Dispatch, the mystery may be clearing up:
The doctor barred by a federal judge from performing executions in Missouri is part of the federal government's secret execution team at its death chamber in Indiana, according to court documents filed in a death penalty appeal.
Dr. Alan Doerhoff testified anonymously in federal court in Kansas City in June 2006 that dyslexia caused him at times to confuse numbers, give inconsistent testimony and call drugs by the wrong name. As a result, U.S. District Judge Fernando Gaitan Jr. ordered a temporary halt to Missouri executions, saying he had concerns that the condemned might be subjected to unconstitutionally cruel punishment.
Doerhoff remained anonymous until the Post-Dispatch reported his name the following month and revealed that he had been sued for malpractice more than 20 times, denied staff privileges by two hospitals and reprimanded by the state Board of Healing Arts for failing to disclose the lawsuits to a hospital where he was treating patients.
The allegations that Doerhoff was involved in federal executions surfaced in a legal filing in September, amended last month, in the appeal of James Roane Jr. He was sentenced to death in February 1993 for his participation in a series of drug-related murders in Richmond, Va.
Fifth Circuit approves upward departure based on "remote" uncharged conduct
Providing yet another example of Blakely principles being dishonored, the Fifth Circuit yesterday in US vs. Newsom, No. 06-10822 (5th Cir. Nov. 16, 2007) (available here), approves an upward departure based on uncharged conduct with only a remote connection to the offense of conviction. Here are key snippets from the Newsom ruling:
Newsom argues that the district court erred when it upwardly departed at sentencing pursuant to § 5K2.21 based on his uncharged conduct involving drug distribution and unlawful firearms possession. He contends that § 5K2.21 permits an upward departure for uncharged conduct only if the conduct is related to the offense of conviction [which in this case involve theft of explosives]. We have only addressed § 5K2.21 generally in a limited number of cases, and so Newsom’s appeal presents an issue of first impression for our court....
[W]e join those other circuits, such as the Eighth Circuit, in interpreting § 5K2.21 as requiring some degree of connection between uncharged and charged offenses, although even a remote connection will suffice. Turning to the facts of this case, we conclude that Newsom’s argument is without merit. Newsom’s uncharged conduct involves drug distribution and illegal firearm possession. Given that Newsom and his co-defendants, Hardin and Garrett, had a history of trading guns for drugs, and were all high on drugs the night they stole the explosives, we find that there is a sufficient connection between the uncharged and charged offenses.
November 16, 2007
A significant (unpublished?!?!?) Second Circuit Rita ruling
The Second Circuit today has a lot of effective sentencing analysis in its unpublished(!?!) ruling in US v. Baker, No. 05-4693 (2d Cir. Nov. 16, 2007) (available here). The summary order reverses for lack of adequate explanation a within-guideline sentence by stressing the importance of giving sentencing reasons after Booker and Rita. Here are some snippets from a strong opinion that, in my view, should be published:
Sentencing judges are not relieved of their obligation to provide their rationale for sentencing because they impose a sentence within the Guidelines.... The increased discretion granted to judges by the Booker decision only amplifies the importance of articulating the reasons for a particular sentence and requires sentencing judges’ compliance with § 3553(c)’s requirements.
Here, although Baker argued that he was entitled to a sentence below the Guidelines range and raised numerous arguments to that effect, the district court made clear from the outset of the sentencing hearing that it would only consider a sentence within the Guidelines. The district court did not articulate why a Guidelines sentence was appropriate....
Baker specifically argued that there are no findings by Congress or the Sentencing Commission to support the assumption that people who possess or transport child pornography are likely to engage in the sexual victimization of children, and that, when crafting the heightened Guidelines range for these offenses, the Sentencing Commission failed to consider this fact. The district court’s reticence to discuss how Baker’s conduct fits within the range of child pornography offenses targeted by the Guidelines is especially problematic in light of its specific finding that there was no evidence that Baker engaged in any sort of sexual abuse.
Given the circumstances presented by Baker’s case, as well as the non-frivolous arguments made on his behalf for a below Guidelines sentence, at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence. Even though the district court stated that it had considered the § 3553(a) factors, that it was not bound by the Guidelines and that it found a sentence within the Guidelines to be “necessary, reasonable, and appropriate to address the nature and seriousness of the offense, the criminal history category, and the characteristics of the [d]efendant to serve the overall objectives of punishment, general deterrence, incapacitation, and rehabilitation,” there is nothing in the record which showed that the district court actually complied with these statements.
This was not a “typical case” where “the context and the record make clear” the reasoning underlying the judge’s conclusion. Rita, 127 S. Ct. at 2468-69. The district court’s lack of analysis of the positions presented by defense counsel and relevant under § 3553(a) precludes proper appellate review of the reasonableness of Baker’s sentence.
Split Sixth Circuit panel addresses challenges to Tennesse sex offender GPS rules
Thanks to How Appealing's post here, I see that the Sixth Circuit today split in Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (available here) over a challenge to the application of Tennessee's new GPS sex-offender tracking rules. This first paragraph from the partial dissenting opinion by Judge Keith provides an effective review of the holding and the terms of the debate:
The crux of the matter before us concerns Tennessee’s Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004.... Doe, a convicted sexual offender, alleges that the Registration Act and the Surveillance Act violate the Ex Post Facto Clause of the United States Constitution. Specifically, Doe takes issue with (1) the retroactive application of the Registration Act (§ 40-39-207(f)(1)(B)), which requires Doe to register with the Tennessee sexual offender registry for the remainder of his life, and (2) the enactment and retroactive application of the Surveillance Act (§ 40-39-301 et seq.), which allows the Tennessee Board of Probation and Parole to enroll Doe in a “Satellite-Based Monitoring Program” to monitor (via a global positioning system (“G.P.S.”)) his movements while on probation. Because our Circuit has foreclosed Doe’s argument with respect to the Registration Act, see Cutshall v. Sundquist, 193 F.3d 466, 476-77 (6th Cir. 1999), I concur with the majority’s dismissal of this claim. However, as to the Surveillance Act, I strongly disagree with the majority’s decision to affirm the district court’s dismissal of this claim. I cannot, in good conscience, join my colleagues’ opinion which finds no constitutional violation in requiring Doe to wear a relatively large box as a symbol of his crime for all to see. The Surveillance Act, particularly the satellite-based monitoring program, as applied to Doe, is punishment, excessive, and indeed, the modern day “scarlet letter.” I vigorously dissent.
It is only a matter of time before all the circuits will be having to weigh in on similar legal issues surrounding GPS tracking. The long-term question is not whether these issues will come before the Supreme Court, but rather when and how.
Some related posts on sex offender GPS tracking:
Mark your 2008 SCOTUS calenders
This post at SCOTUSblog notes that the Supreme Court "will open its January sitting with the argument on constitutional issues surrounding the lethal injection method of execution. The Court on Friday released the calendar for the session beginning Jan. 7, with Baze v. Rees (07-5439) scheduled at 10 a.m. that first day. That is the Kentucky case raising three issues about the three-drug protocol for execution, now used in 36 states."
The post also highlights that on Tuesday, January 15, the Court will be hearing two ACCA cases:
- U.S. v. Rodriguez (06-1646) — crimes that qualify for enhanced sentence under armed career criminal law; specific issue involves state drug crime conviction
- Begay v. U.S. (06-11543) — whether felony drunk-driving is a violent felony for purposes of enhanced sentencing under armed career criminal law
Sentencing stuff around the blogosphere
Lots of my favorite blogs have lots of new interesting posts on sentencing and related topics, and here is a smorgasbord of links from various sources based on post headlines:
- Cracking Down on Disparities in Drug Punishment
- Education = Less Recidivism
- Fewer $$$ for Treatment = More Recidivism
- The Indictment of Barry Bonds
- Marijuana Review Panel
- Probation for Murder?
- Roundup: Public Safety Orphaned, Drug War Deja Vu, Jail Boosterism, and Probation for Murderers
"I want to be a sentencing expert"
Now I can retire happy because, as I was watching ESPN2 this morning with my cup of joe, I got to see both Mikes on Mike & Mike in the Morning make fun of me as a "sentencing expert." Specifically, Mike Greenberg started talking about my assessment of Bonds' likely sentence if convicted by asking "where'd he get this job?" Greeny went on to say, "I want to be a sentencing expert," and Mike Golic followed up by saying "That's the job to have!"
Okay, Mikes, here is an offer: Both Mikes have an open invitation to have my job (and salary) for a day or even a week if I can have either of their jobs (and salary) for even a few hours. Heck, I'll forgo the salary part if they'll just invite me to hang out at ESPN's studios for a little while.
For more serious analysis of Barry Bonds' indictment, How Appealing collects coverage here.
November 15, 2007
Louisiana and amici file SCOTUS briefs in capital child rape case
As detailed in this long and thoughtful post at SCOTUSblog, Lyle Denniston reports on the breif filed by the state of Louisiana defending its statute making child rape a death penalty eligible crime. Here are snippets of the post (with a link to filings):
Louisiana officials have urged the Supreme Court to allow the state to continue to seek the death penalty for those convicted of child rape. In a brief in opposition (found here) filed on Wednesday, the state argued that there is a distinct trend across the country to impose death sentences for crimes that do not result in death of any victim. In addition, it said, more states are opting to pass laws to make child rape a capital crime....
Arguing that such a sentence fits the crime, the state said that “the harm inflicted upon a child when raped is tremendous,” and that “sex offenses against children cause untold psychological harm not only to the victim but also to generations to come….Execution of child rapists will serve the goals of deterrence and retribution as well as the execution of first-degree murderers.”
[Defendant] Kennedy’s appeal is now supported by the National Association of Social Workers and a group sexual assault crisis centers, arguing that the Louisiana law goes too far by providing for a possible death sentence for any act of oral, anal or vaginal sex with a child under age 13 and thus will encourage offenders “to kill their victims.” Another amicus, the National Association of Criminal Defense Lawyers, argued that the unreliability of child victim testimony makes it “far too likely” that the death sentence may actually be imposed on the innocent. A group of public defenders in Louisiana also supported the appeal, arguing that they must prepare to defend anyone accused of child rape as if it were a capital case, even though prosecutors often reduce the charge to a non-capital offense; public defenders thus must spend limited resources in cases that may never turn out to be capital, after all. Thus, they contended, they need the uncertainty over the validity of the Louisiana law cleared up as soon as possible. The briefs of amici can be found here and here and here.
Some related posts:
- Direct test of constitutionality of the death penalty for child rape
- A capital experiment spreading in the state laboratories
- Analysis of capital child rape laws
- Debating death for child rape
- LA Times opposes death penalty for child rape for intriguing reason
- Could there be symbolic and practical value in making repeat child rape a capital offense?
Barry Bonds indicted, what would be his guideline range?
Just when you thought it was safe to read the sports pages without having to think about sentencing issues.... Today, as detailed in this AP story, "Barry Bonds was indicted Thursday for perjury and obstruction of justice, charged with lying when he told a federal grand jury that he did not knowingly use performance-enhancing drugs."
I have already gotten a call from the media asking what sort of sentence Bonds might face, so I'd appreciate reader help in figuring out what federal sentencing guideline range would apply were the modern Home Run King convicted of all the allegations in the indictment. Of course, before doing any of this analysis, I could not help but think about the sentences that Victor Rita and I. Lewis Libby received for lying to a grand jury. Specifically, Rita got a 33-month (within-guideline) sentence for his lies and his sentence was affirmed as reasonable by the Supreme Court. Libby got a 30 month (within-guideline) sentence for his lies and his entire prison term was commuted by President Bush.
SCOTUS stays Florida execution
Continuing its Baze-ian de facto moratorium on executions, the Supreme Court has stayed a Florida execution scheduled for later today. This AP story has the details:
The U.S. Supreme Court halted Florida's execution of convicted child killer Mark Dean Schwab on Thursday. The move by the high court was widely expected as it considers the appeals of two Kentucky inmates challenging the same lethal toxic three-drug combination used in Florida.
The stay was issued about four hours before Schwab was scheduled to die for the 1991 kidnapping, rape and slaying of 11-year-old Junny Rios Martinez. It will remain in effect until the Supreme Court rules on the Kentucky case.
Some related posts:
- Florida Supreme Court upholds state's lethal injection protocol
- Florida Supreme Court denies execution stay
- The latest (halting) execution news from Florida
- Eleventh Circuit green lights Florida execution; SCOTUS on deck
An academic amicus Note for the Sixth Circuit on acquitted conduct
As noted in prior posts here and here and here, the Sixth Circuit is currently considering en banc review of the continuing use of acquitted conduct as a sentencing enhancement after Booker in the wake of a panel's notable per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here). Though some commentators seem to think only the Supreme Court should be giving acquitted conduct issues second thought, a recent sudent note available here from SSRN lays out a thoughtful case that Watts is not the end of the story for this issue. The Note by James Bilsborrow is entitled "Sentencing Acquitted Conduct to the Post-Booker Dustbin," and here is the abstract:
Robert Mercado was an alleged member of the Mexican mafia operating in Los Angeles. He was charged, tried by a jury, and subsequently convicted on several counts of drug conspiracy. But Mercado was acquitted of the most serious charges: participation in multiple murders, violent crimes in the aid of racketeering, and assault with a deadly weapon. When the district court judge calculated Mercado's sentence under the Federal Guidelines, however, he obliged the prosecution request to consider Mercado's liability in the offenses for which the jury returned acquittals. As a result — and in spite of the jury's verdict — Mercado's Guidelines sentence increased by seventeen years. The Ninth Circuit later affirmed this sentence increase.
Although judicial consideration of acquitted conduct — conduct for which an offender has been charged and acquitted by a jury — may strike non-lawyers as confusing, the practice is not only quite common, but was specifically sanctioned by the Supreme Court in United States v. Watts in 1997. Ten years later, however, the Court's sentencing jurisprudence is radically changed; beginning with Apprendi v. New Jersey in 2000, and continuing through its recent invalidation of the California state guidelines system in Cunningham v. California, the Court has steadily invalidated modern guidelines sentencing practices as violative of the Sixth Amendment right to a jury trial. In short, the Court has held that guidelines regimes often unconstitutionally transfer a disproportionate amount of fact-finding power from the jury to the judge. This Note argues that judicial consideration of acquitted conduct is one such aspect of guideline sentencing that the Court's recent jurisprudence renders unconstitutional. Consequently, not only is Watts no longer controlling, but so also is the commonplace practice that allows a judge to replace a jury determination of guilt with his own.
Eighth Circuit (again!) finds substantial assistance departure unreasonable
Because they so frequently second guess sentencing judges, I often wonder if the circuit judges on the Eighth Circuit really have a secret desire to be district judges with the primary task of imposing sentences. The latest example of circuit sentencing second-guessing comes in US v. Donna Peterson, No. 06-3916 (8th Cir. Nov. 15, 2007) (available here). Here is the unofficial summary from the Eighth Circuit's opinion page:
[Riley, Author, with Wollman and Hansen, Circuit Judges] Criminal Case - sentencing. Following remand for resentencing, district court sentenced to two concurrent 68-month terms of imprisonment, representing a 50% downward departure and 7-level downward reduction. Case is remanded for resentencing because district court's imposition of sentence below statutory minimum, although based only on substantial assistance considerations, was nonetheless unreasonable because extraordinary circumstances were not present.
Some recent related posts on the Eighth Circuit's reasonableness work:
Big event and report urging reforms to reduce prison populations
I just got via e-mail a press advisory entitled "Major Report Calls for Significant Reductions in U.S. Prison Population." Here are highlights from the advisory:
WHAT: Forum to Release "Unlocking America: Why and How to Reduce America's Prison Population"
WHEN: Monday, Nov. 19, 9:30-11a.m.
WHERE: National Press Club, 529 14th Street, NW, 13th Floor,Washington, D.C...
A major report examining America's exploding prison system population will be released on Nov. 19 at the National Press Club. The report, co-authored by nine leading criminology and penal experts, recommends significant reforms to the criminal justice system in order to reduce the prison population. Recommendations include reducing length of stay in prison and eliminating prison time for technical parole and probation violations. The National Press Club event will include a panel discussion with experts from the corrections, sentencing, academic and public policy fields, moderated by nationally syndicated columnist Clarence Page...
The report is being released by the JFA Institute, a Washington nonprofit organization focused on research-based solutions to criminal justice issues.
Eleventh Circuit green lights Florida execution; SCOTUS on deck
As explained in this 11-page per curiam order, an Eleventh Circuit panel this morning has vacated the stay of execution granted yesterday by a federal district judge to allow Florida to (try to) go forward with an execution scheduled for 6pm this evening. Of course, this decision will surely be appealed to the Supreme Court (which has related papers before it, too), and I would predict the Justices keeping their de facto moratorium in place. But, one never knows.
Some related posts:
- Florida Supreme Court upholds state's lethal injection protocol
- Florida Supreme Court denies execution stay
- The latest (halting) execution news from Florida
- Is an execution moratorium scary or sacred or silly or sound?
Is the US impeding certain Iraqi executions?
This interesting piece in today's New York Sun, entitled "U.S. Sparks Row Over Iraqis Set For Execution," hints that the US is hindering the ability for Iraq to go forward with scheduled executions. Here are snippets:
The American administration in Baghdad has sparked a diplomatic row with Prime Minister al-Maliki of Iraq by refusing to hand over for execution three war criminals convicted of genocide, including a cousin of Saddam Hussein's known as "Chemical" Ali....
While Mr. Maliki insists that the execution should go forward without delay, the presidential council has a different view. Under Iraqi law, the council must sign the execution warrants before the hangings are carried out, but the constitution doesn't rule on what happens if they fail to agree on the sentence....
The American Embassy in Baghdad insists that the fate of the three men is in the hands of the Iraq government and that until the legal dispute is resolved, it will keep the trio in coalition captivity.
Some related posts with lots of questions:
November 14, 2007
Opposition to considering 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).
As detailed in this post, last month an en banc petition was filed in White and I am eagerly hoping the White panel will convince the majority of the Sixth Circuit to take up the acquitted conduct issue. Last week, the government filed its brief opposing en banc review in White. I received a copy of that opposition, and it can be downloaded here:
Download govt_en_banc_opp_in_white.pdf (I think the pdf was scanned upside-down, but the brief prints out fine for reading).
Not suprisingly, the government asserts that the defendants claims are foreclosed by the Supreme Court's Watts decision a decade ago. But, as I have suggested in a number of prior posts, I do not think Watts ends this debate in the light of Blakely and Booker and Rita.
- Rooting for the Sixth Circuit to take acquitted conduct en banc in White
- 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
UPDATE: Because some commentors seem to think Watts ends this debate, it is valuable to remember that Booker clearly explains that Sixth Amendment issues were not raised on addressed in Watts. Moreover, the fact that Watts indicates that it is not per se unconstitutional to enhance sentences based on acquitted conduct in some cases does not logically entail that it is always constitutional to enhance sentences based on acquitted conduct in all cases.
Prison over-crowding problems in Ohio
My local Columbus Dispatch had this article this morning noting the crossing of a numeric milestone in Ohio's prison population. Here are snippets:
Imagine if every man, woman and child in Mansfield disappeared. All 50,000 of them. An entire city, gone. That's how many inmates were jammed into Ohio 32 prisons yesterday -- 50,016. It set an all-time high for the Ohio Department of Rehabilitation and Correction.
Prisons chief Terry Collins, the man who must cope with keeping that many prisoners locked up, fed and clothed in space designed for 75 percent of that number, said the record is nothing to celebrate. "Our projections are that it's going to continue to climb," he said. "We think we'll hit 52,000 by this time next year."
Significant is a recent surge in that population -- 6,500 since February 2005. That came after a period when the prison population declined. Each prisoner costs Ohio taxpayers about $25,000 a year. The crime rate isn't up appreciably, but the court system and prisons are jammed with increasing numbers of nonviolent, short-term offenders, many of them drug offenders, Collins said....
[T]he General Assembly, as part of the biennial budget, convened a commission and allocated $50,000 for a consultant to reappraise the situation. The committee will take public testimony Friday in Lima. The Ohio Civil Service Employees Association, the union representing corrections officers and other prison workers, has long said that overcrowding threatens security in state prisons.
The latest (halting) execution news from Florida
Over at SCOTUSblog here, Lyle Denniston has the latest news from Florida, where state official are trying to go forward with a lethal injection scheduled for tomorrow evening. Here are highlights from Lyle's report:
U.S. District Judge Anne C. Conway in Orlando on Wednesday blocked the execution by lethal injection of Mark Dean Schwab, until after the Supreme Court rules in a pending Kentucky case challenging the same three-drug protocol. “The overriding consideration in this case,” the judge ruled, “is that some of the very same issues Plaintiff presents here are currently pending for decision before the Supreme Court of the United States,” citing the case of Baze v. Rees (docket 07-5439). “Not only is the Supreme Court poised to clarify the standard by which the Eighth Amendment is to be interpreted in death cases, but the high court also has before it the constitutionality of using the very chemicals employed in this State as a means of carrying out the death sentence and challenged in the instant action. Simply put, the Court would not issue this stay absent the Supreme Court’s grant of certiorari in Baze.” The judge’s nine-page ruling and stay order can be found [at this link]. Unless overturned by the Eleventh Circuit Court, the judge’s order would make it unnecessary for the Supreme Court to rule on a pending stay motion by Schwab.
Tennessee AG opines about alternative execution methods
As detailed in this article, local Tennessee prosecutors "have been calling on the state to use the electric chair as a back-up after a U.S. District Court in September found Tennessee's lethal injection procedures to be unconstitutional." But yesterday the state's attorney general in this written opinion concluded that the state cannot use its electric chair unless the defendant selects this method. Here is how the AG's opinion starts:
In light of the recent decision by the United States District Court for the Middle District of Tennessee holding unconstitutional Tennessee’s current three-drug protocol for carrying out executions by lethal injection, does Tenn. Code Ann. § 40-23-114(d) authorize the state now to proceed with an execution by means of electrocution when a death-sentenced prisoner has declined to exercise his statutory right to elect electrocution as the method of execution in his case?
No. It is the opinion of this office that electrocution may be substituted as a method of execution for an inmate who has not chosen it only in the event that lethal injection is declared unconstitutional by the United States Supreme Court, Tennessee Supreme Court, or other appellate court specified in Tenn. Code Ann. § 40-23-114(d).
Some related posts:
Media coverage of crack retroactivity hearing
How Appealing collects here some of the major media coverage of yesterday's debate over retroactive application of the new crack guidelines before the US Sentencing Commission. This Washington Post piece provides this information about a likely timeline for the USSC's decision:
The commission, comprising seven voting members appointed by President Bush and former president Bill Clinton, is scheduled to meet today, but a vote on retroaction is unlikely. Individuals familiar with the panel's deliberations who spoke only after receiving a promise not to be identified said the commission is likely to vote on retroaction in January. A spokesman for the group declined to discuss its plans.
Meanwhile, this New York Sun piece suggests that Rudy Guiliani is against retroactivity, although it appears the paper is itself trying to drum up a controversy"
In response to a question from The New York Sun yesterday, Mr. Giuliani said he was not familiar with the details of the proposal, but added that his experience as a prosecutor made him wary of a surge of thousands of ex-offenders onto the streets.
Some recent related posts:
November 13, 2007
News and notes on sex offender issues
With so much going on in other arenas, I have not been able to keep up some recent sex offender news. Fortunately, Sex Crimes has been keeping up, and here are a few especially notable posts:
- More Backlash Against Residency Restrictions in Iowa
- Some Wise Words from Wisconsin
- Having your Conviction Sex Aside in Michigan doesn't Get your Name Removed from Sex Offender Registry (reporting on this ruling Tuesday from the Sixth Circuit).
A report on the USSC crack retroactivity hearing
I am pleased to be able to provide, thanks to a person self-described as a "DC Wonk," this informative report sent to me by e-mail concerning today's US Sentencing Commission hearing about the possible retroactive application of the new crack guidelines:
I have no experience reading tea leaves, but it sure seemed to me that the USSC is grappling with *how* to implement retroactivity, not *if* they should. That they will vote to implement seems a foregone conclusion.
The major issue seemed to be: would Booker apply to an inmate who was initially sentenced before Booker, and is now applying to get his sentenced reduced under retroactive application of the two-level reduction. Those who are against retroactivity argued that "of course it applies," as they tried to demonstrate the huge caseload that will clog up the entire federal court system. (Repeated cites to the figure of 19,500 to whom retroactivity might apply.) One of the commissioners noted that Booker would apply according to Hicks, but that Hicks is only applicable in the 9th Circuit where only 500 of these 19,500 are; but that the 4th Cir views otherwise, and 5,000 (of the 19,500) reside there.
Another interesting observation: for the most part everyone was polite and cordial, with one exception. The spokesperson for DOJ, the USA from West NC was pretty extreme in her language (most of her presentation was anecdote) and a bit misleading with some of her stats. She was the only witness (as of 1:00 pm) to face any hostile questioning. If anyone was wavering (itself a dubious proposition), she did her cause damage.
Most interesting was Prof Chanenson (Villanova) who argued that 3582(c)(2) was *not* a resentencing, but more like an "equitable sentencing procedure", and therefore Booker had no relevance, and that the USSC and/or Congress would have the right to make this retroactivity fairly restrictive (so as to minimize the burden on the courts, on the Marshals who have to transport prisoners, etc.) The Prof had a number of other suggestions to minimize the impact of resentencing on the federal system, and the USSC seemed most interested....
All in all, a few commissioners seemed to almost openly support retroactivity (particularly Castillo, Howell, and Sessions); I suspect Hinojosa is sympathetic (although he was "above it all" as chair); John Steer said that he agreed with the Prof that Booker wouldn't apply; Horowitz seemed sympathetic; Friedrich asked a question that was unflattering to DOJ.
In summary here: there were some statements that seemed to indicate favor to retroactivity, and some neutral. I didn't see any from any Commissioner to indicate s/he was against. I find it hard to see how anyone can scrounge four votes against retroactivity....
I am very pleased to hear that the Commissioners were in sync with Professor Steve Chanenson's insights. I had the good fortune to talk with Steve as he was putting together his testimony, and I agreed with 99.9% of what he was planning to say to the USSC. I have provided for downloading below Steve's written testimony, which is both effective and fascinating on many levels.
Some of the amici filings in Baze
Over at Lethalinjection.org, the project of the Death Penalty Clinic at U.C. Berkeley School of Law, everyone can now find some of the amicus briefs filed today in Baze v. Rees on this page. Here is what appears on the page as of this writing:
Amicus Briefs Filed in Support of Petitioners
- Amicus Briefs Filed in Support of Petitioners Brief for Michael Morales, Michael Taylor, et al.
- Brief for The Fordham University School of Law, Lewis Stein Center for Law and Ethics
- Brief of The American Civil Liberties Union and the Rutherford Institute
- Brief of Critical Care Providers and Clinical Ethicists
- Brief of the American Association of Jewish Lawyers and Jurists Amicus
Amicus Briefs Filed in Support of Neither Party
- Brief of the Anesthesia Awareness Campaign, Inc.
UPDATE: Also now appearing on this page are these additional friendly efforts:
- Brief of Drs. Kevin Concannon, Dennis Geiser, Carolyn Kerr, Glenn Pettifer, and Sheila Robertson
- Brief of Human Rights Watch
- Brief of the American Society of Anesthesiologists
Super Tuesday: Lawyers, guns and methods
1. As detailed here, a lot of lawyers (and others) will be talking with the US Sentencing Commission all day about whether and how it should make its new crack guidelines retroactive. (More from this archive of my crack coverage.)
3. As noted here at SCOTUSblog, the Supreme Court may also decide today on a stay in the lethal injection case from Florida. Also, as mentioned here, some amici will be filing briefs in support of the defendant in the Baze case and likely will be advocating revised methods of executions.
So, I will be humming my favorite Zevon songs all day, while trying to avoid reacting like Zevon's Excitable Boy.
Effective reflections on political realities of execution protocols
Showcasing her talents for great titles and insightful analysis, Dahlia Lithwick has this new essay at Slate entitled, "Die Hardest: Why the states are standing by their outdated, messy lethal-injection protocols." (Of course, I'm biased because Ms. Lithwick is always nice to the blog.) Here are excerpts:
If academics, doctors, and prisoners — as well as death-penalty supporters and the guy who invented the protocol — have been criticizing the three-drug protocol for years, why haven't the states switched methods? And once the court agreed to hear Baze, why didn't Texas simply change to barbiturates and keep its executions on schedule? You'd expect the states to choose doling out the barbiturates instead of acceding to a monthslong moratorium that will offer the public a chance to see that life without the death penalty may still be worth living.
The reason the states haven't acted is one part strategic and one part inertia. ... As Richard Dieter at the Death Penalty Information Center points out, once the Supreme Court granted certiorari in Baze, the states were forced to defend their protocols en masse, even if they knew them to be flawed. If even one state were to change its procedure now, prisoners in the other states would have a constitutional claim. It's a form of — pardon the pun — prisoner's dilemma; the states backed their way into a rotten system, and now they must insist that it's the greatest, most constitutional system around.
But Dieter points to another, more important reason states aren't racing to embrace new execution methods: "The pitched battle over the death penalty is not a rational one," he says. States that allow capital punishment don't really want to kill a lot more people a lot more efficiently. They want to execute some people, sometimes, and the lethal-injection system — while flawed in substantive ways —was a political solution to a political problem.
The politics of the fight over capital punishment may also explain why, as professor Doug Berman pointed out, the Bush Justice Department seemed to be secretly accepting a moratorium on lethal injections even before the high court agreed to hear Baze. Berman's best hypothesis at the time? "Most folks on both sides of the debate seem to care a lot more about death sentences than they care about whether those sentences result in actual executions."
November 12, 2007
USSC hearing testimony on crack amendment retroactivity
Over at its website, the US Sentencing Commission now has lots of the witnesses' written testimony linked to this planned agenda for the all-day public hearing tomorrow at Georgetown University Law Center concerning whether the USSC's new crack guidelines should be applied retroactively to previously sentenced defendants. I do not see anything too surprising in the testimony now linked there, though I still expect the hearing will be quite eventful (especially with FAMM encouraging its members to attend).
I hope attendees will take good notes and perhaps send me reports for posting. I am especially interested to hear if the Commissioners indicate when they expect to make their decision on retroactivity. As this article in the Los Angeles Times highlighted this morning, this crack retroactivity decision may be the single most consequential decision to be made by the USSC since the initial guidelines were first promulgated 20 years ago. (This archive of my crack coverage provides plenty to review in anticiaption for Tuesday's hearing.)
UPDATE: The Washington Post has this front-page article in its Tuesday edition entitled "Sentences For Crack Offenses Studied; Thousands Could Be Released Soon." The piece highlights the racial dimensions of the retroactivity issue: "Nearly 86 percent of inmates who would be affected by the change are black; slightly fewer than 6 percent are white. Ninety-four percent are men."
Also, the Post has this strong op-ed by former Judge Paul Cassell entitled "Repairing a Crack in the System." He responds to some of the Justice Department's advocacy against retroactivity:
[T]he Justice Department "strongly opposes" such a move. In a letter to the commission, the department expressed concern about the "sweeping impact" retroactive application would have. This curious, misery-loves-company argument seemingly suggests that the commission should correct small injustices, but not significant ones.
The department also argues that re-sentencing offenders would "impose enormous and unjustified costs" on the federal court system. But even the department's possibly exaggerated estimate, in the millions of dollars, would be dwarfed by the more than $1 billion that could be saved by releasing prisoners early from expensive prison cells.
Has President Bush been soft on capital murderers?
As showcased here, the Dallas Morning News is in the midst of a five-part series debunking the myth that Texas justice is always harsh for murderers. In the same spirit, this comment by federalist led me to think a bit about George Bush's record on capital punishment as President. Specifically, I was thinking about the distinct records of Bill Clinton and Bush on the practical operation of the death penalty. Consider this comparison:
- President Clinton helped engineered the passage of AEDPA, which limited appeals by many state death row defendants and led to have a modern record high number of executions during his second term as President. (As detailed here, from 1997 to 2000, there were 326 executions in the US.)
- President Bush has not done anything to address appeals by many state death row defendants concerning lethal injection protocols, and those appeals have helped create a moratorium on executions during his second term as President. (As detailed here, from 2005 to the present, there have been only 155 executions in the US.)
Of course, the U.S. President usually will have only a very modest impact on the administration of the death penalty throughout the United States. (Though, notably, the Bush Admininstration has agreed to stay numerous federal execution dates for no clear reason, and in the Medellin case it is supporting the murderer's claims against the state of Texas.) Still, if research suggests that a certain number of innocent lives are saved for each execution (perhaps as many as 74 lives), we all should have felt a lot safer under President Clinton than we do under President Bush.
Obama, the death penalty and presidential politics
This new post at TalkLeft, which spotlights this new AP article headlined "Obama Cites Death Penalty Reforms," has me thinking again about how capital punishment issues could become significant during the primary and general election seasons. First, a snippet from the AP article:
Barack Obama can honestly claim to have made a difference on a matter of life and death. While an Illinois state senator, Obama was key in getting the state's notorious death penalty laws changed, including a requirement that in most cases police interrogations involving capital crimes must be recorded.
The changes enacted in 2003 reformed a system that had sent 13 people to death row, only to have them released because they were later determine to be innocent or had been convicted using improper methods. "Without Barack's energy, imagination and commitment I do not believe the very substantial and meaningful reforms that became law in Illinois would have taken place," said author Scott Turow, a member of the state commission that recommended many of the changes.
Obama often cites his role in Illinois death penalty debate as evidence that he can resolve thorny issues through compromise. "We brought police officers and civil rights advocates together to reform a death penalty system that had sent 13 innocent men to death row," he declare in a recent presidential debate. Enactment of the 2003 law was a huge political achievement in a state that had been deeply divided over problems with capital punishment. Obama was at the center of the emotional debate.
Legislators and lobbyists who worked with him describe a lawmaker who was personally involved, refused to abandon some needed changes but also demanded compromises from both law enforcement and death penalty critics.
A proposal to require that police record interrogations of murder suspects was opposed by police, prosecutors and the Democratic governor and considered so touchy it was separated from other legislation. It also was the issue that garnered Obama's special interest. "I thought the prosecutors and law enforcement would kill it," said Peter Baroni, who was then a Republican aide to the Illinois Senate's judiciary committee. "He (Obama) was the one who kept people at the table." In the end, police organizations supported the recording mandate, and the measure passed the Senate unanimously.
Second, a little personal analysis: if Obama plays this issue right, it could be a real plus in setting up the broader theme that he can be a principled and effective "good government" moderate. As I have suggested before, neither the Clinton record nor the Romney record on the death penalty make them look very good. Moreover, the death penalty is likely to be in the news a lot with the Baze case before the Supreme Court.
Indeed, if Obama was really clever, he might even consider proposing federal legislation calling for the development of new and improved national execution protocol. Though such a proposal, Obama could say that it is important to have a humane and thoughtful review of these issues, and yet he could also assert that this is really a policy/practice issue that ought to be addressed by legislators and not judges. Along the way, he could beat up the bush Administration for talking tough and yet agreeing to unexplained stays for the federal prisoners scheduled to be executed.
Some related posts:
Effective coverage of crack retroactivity debate
The Los Angeles Times has this new extended article highlighting the import and significance of the debate over whether to make the new crack sentencing guidelines retroactive. Here are snippets of the piece:
Under pressure from federal judges, inmate advocacy groups and civil rights organizations, federal authorities are considering a sweeping cut in prison sentences that could bring early release for thousands of federal inmates.
The proposal being weighed by the U.S. Sentencing Commission would shave an average of at least two years off the sentences of 19,500 federal prisoners, about 1 in 10 in the 200,000-inmate system. More than 2,500 of them, mainly those who have already served lengthy sentences, would be eligible for release within a year if the rule is adopted....
The congressionally chartered commission, which sets sentencing guidelines for federal judges, has already adopted reduced penalties for new crack cases hitting the courts effective Nov. 1. That decision will affect about 4,000 a cases a year. The debate now is about its plans to make those changes retroactive to inmates. The seven-member commission is considering the proposal at a hearing Tuesday; a vote is expected next year....
The widely differing treatment of crack offenders is "fundamentally unjust," said Reggie B. Walton, a federal judge in Washington.... "It is one of the very important civil rights issues of our day," said Hilary O. Shelton, director of the Washington office for the National Assn. for the Advancement of Colored People, which has long pushed for changing cocaine laws.
Some recent related posts:
- USSC sets agenda for crack amendment retroactivity hearing
- Judicial Conference urges retroactivity of new crack guidelines
- DOJ and FPD advocacy to the USSC about crack amendment retroactivity
- Debate over retroactive application of new crack guidelines
- More of the crack facts and retroactivity arguments
- USSC analysis on potential crack amendment retroactivity impact
- Latest FSR issue covers crack sentencing
Unpacking the legal and practical consequences of parole changes
Adam Liptak's latest "Sidebar" column in the New York Times, "Contemplating the Meaning of 'Life,'" highlights an issue that many courts are likely to confront as parole opportunities get tighter and tighter. Here are snippets from a piece flagging an issue that could justify a lot of serious scholarship:
In 1977, when Gerald L. Hessell was sentenced to life in prison for second-degree murder, a gallon of gas cost 62 cents and a life term in Michigan meant about 15 years. But Michigan changed its parole system in 1992, replacing a parole board made up of civil servants with political appointees. The new board summarized its thinking in a presentation to the state’s judges in 2001: “A life sentence means life in prison.”
Mr. Hessell was released the other day, thanks in part to a decision from a federal judge in Detroit last month ruling that the state had violated the ex post facto clause of the Constitution when it changed the parole rules. The clause says the government cannot increase punishments retroactively. Mr. Hessell was 19 when he was sentenced, and he is 50 now. “I was told by my attorney at the time that I could look to do about 12 to 15 years provided I had a clean record,” he said last week. “It was a 31-year fight to get out.”
It is not clear how the federal judge’s decision will affect about 1,000 other Michigan lifers sentenced before 1992. The judge, Marianne O. Battani, has yet to decide exactly what should follow from her ruling, and the state has said it will almost certainly appeal once she does....
It used to be, the plaintiffs in the Detroit suit said, that more than 5 percent of lifers were paroled every year. These days, the number has dropped to less than a fifth of a percent. A survey of 95 current and retired judges by the Michigan bar released in 2002 indicated that a majority thought that lifers eligible for parole would serve fewer than 20 years....
Courts in other states have also been struggling with how far states can go in changing their pardon and parole systems retroactively. In 1997, for example, the Pennsylvania board of pardons reserved a seat for a crime victim and required a unanimous rather than majority vote.
Last year, a lower court ruled that those changes violated the ex post facto clause. Last Monday, a federal appeals court in Philadelphia said the particular plaintiffs in the suit may not have had standing to sue and ordered the trial judge to look into that. It did not address the central question in the case.
Still lots more capital punishment buzz
As I have noted before, a hiatus on executions due to the Baze case has not stopped the media or the blogosphere from buzzing about death penalty issues. Both Capital Defense Weekly and StandDown Texas Project have lots of new posts, some of which link to the latest media discussions of the death penalty. Of particular note is this lengthy new article from Newsweek headlined, "Injection of Reflection: There's wide support for a death penalty, but those who carry it out are increasingly uncomfortable." Here are some excerpts:
Texas still accounts for more than half of all executions in the United States. But a strange thing is happening in the state that has executed more prisoners than any other since the U.S. Supreme Court revived the death penalty in 1976 after a brief hiatus. Texas prosecutors are less willing to seek, and juries are less willing to grant, capital punishment for aggravated murder. In 2006, only 15 Texas convicts were sentenced to death, down from 34 a decade earlier. Texas mirrors a national trend: death-penalty sentences in the 38 states that allow capital punishment dropped from 317 in 1996 to 128 in 2005, the latest year for which statistics are available.
Why the reluctance to populate death row? Polls show popular support for capital punishment stays relatively high, at about 65 percent. But when it comes to carrying out death sentences, the people involved — judges and juries, prosecutors and prison officials — are starting to recoil, or at least pull back. What is acceptable in theory seems less and less tolerable in practice. Indeed, the Supreme Court has called at least a temporary halt to executions while it examines the fine points of killing convicts by pumping lethal chemicals into their veins. "The death penalty may go out with a whimper, not a great moral revolution," says Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.
Steve at SDTP provides further reflections here on this Newsweek piece.
November 11, 2007
Conclusive proof you are smarter when reading this blg
Fascinating article on realities of sex offender civil commitment
Today's Virginian-Pilot has this long article discussing the realities of sex offender civil commitment in Virginia. The piece is a must-read for anyone interested in this field. Here are snippets:
They are considered the worst of Virginia's sexual predators, a community of 61 men deemed so dangerous that even after completing their prison sentences, they remain locked up. A towering, razor-lined fence keeps them in a complex called the Virginia Center for Behavioral Rehabilitation. Although the facility is classified as a mental institution, it has the look of an isolated prison. In theory, the state hopes to rehabilitate these career child abusers and rapists so that they can be trusted back on the streets. But to date, no one has been freed.
The men are confined indefinitely under Virginia's four-year-old civil commitment program, which allows chronic sexual predators to be institutionalized after serving their prison sentences. Eighteen other states have similar regiments and the U.S. Supreme Court has declared them constitutional — if it can be proved that the molesters are likely to repeat their crimes, and if they are receiving psychological counseling to learn how to control their deviancies. There is no convincing evidence that therapy changes chronic molesters, particularly pedophiles. Across the nation, only about 5 percent of the 2,700 sex offenders civilly committed since 1990 have been released.
By June, Virginia officials are expecting the population at the Petersburg institution to almost double to 113 sex offenders. The high cost of their therapy will require taxpayers to shell out at least $123,000 a year for each sexual predator — about six times the cost of keeping an inmate in prison. The program is outgrowing its Petersburg home, once a training center for the mentally retarded. The state plans to close the facility early next year and move operations to a $63 million institution being built in Nottoway County near Burkeville solely to house sexual predators. It will hold as many as 300 molesters. Legislators say it could be filled in three years.
Some mental health experts and civil libertarians say the facility is little more than a new form of prison to keep sex offenders locked up for life.... "I'd have to assume the chances are slim and none that anyone will leave the program in Virginia," said state Sen. Kenneth Stolle, R-Virginia Beach, vice chairman of the state crime commission. Since the Virginia program's inception, about 2 percent of sex offenders have been sent to civil commitment after serving their prison time. "These are the worst of the worst," Stolle said. "From that perspective, I think the risk of releasing them outweighs the concerns about their civil liberties. I don't have a lot of sympathy for them."
Mario Dennis, the facility's chief psychologist .... who specializes in treating sexual deviancies, said offenders have "a much better lifestyle" in civil commitment than in prison. When not in therapy, residents are allowed to roam the yards and common areas. They are not required to wear uniforms, and they have a library with books and appropriate videos. They are allowed to stay up later at night than they could in prison and rise later in the morning. "There's more freedom here, and more responsibility," Dennis said....
Although Dennis acknowledged that many of the men may never be released, he said others have made "substantial progress" and one or two may be nearing a point where he might recommend release if their movement was monitored by GPS. "The goal is, have they learned to manage their risk so they can be safely maintained and employed," Dennis said.
60 minutes feature on a mentally ill death row defendant
As detailed here, 60 Minutes tonight will include a segment on a capital case from Tennessee. Here is the set up:
The U.S. Supreme Court prohibits the execution of a prisoner who is insane, but Gregory Thompson, a murderer whose lawyers and doctors say is mentally ill, may yet be put to death in a bizarre case that has been going on for more than 20 years. Lara Logan's report, including an interview with Thompson, will be broadcast on 60 Minutes, this Sunday, Nov. 11, 2007.
Study shows Texas is sometimes soft on murderers
As showcased here and in this AP report, the Dallas Morning News has a remarkable new investigative report entitled ""Unequal Justice: Murderers on Probation." This first article in the paper's five-part series starts this way:
The young man fights back during a robbery. Kill him. The neighbor accuses you of stealing gas from his truck. Kill him. The son you never wanted is yelling at your wife again. Kill him. Your punishment in Texas, the nation's death-penalty capital? In each case, it was probation.
In many states, probation is a rare or impossible sentence for murder. But a Dallas Morning News investigation found that it happened in Texas at least 120 times from 2000 through 2006. And Dallas County easily leads the way. It put more than twice as many murderers on probation as it sent to death row. Nine percent of all murder sentences in the county resulted in probation — that's 47 people released to the streets.