November 24, 2007
A continuing moratorium, murder statistics and capital news
This weekend marks the end of a second full month of an execution moratorium created and sustained by the Supreme Court's decision to examine the constitutionality of lethal injection protocols in Baze. Interestingly, though some contend that a suspension of executions can cost innocent lives, the latest news from New York is that the Big Apple "is on course for its lowest murder rate in four decades with this year's total expected to be below 500." (Of course, New York state has not executed anyone in the modern death penalty era and its death penalty law has been inoperative since declared unconstitutional by its courts in 2004.)
Ultimately, whatever national murder statistics show through 2007 and 2008, advocates with different goals will likely find ways to claim that reality reflects their claims. Still, it is fun to speculate about whether and how the Justices might be impacted by the broader deterrence debate (and also to speculate whether and how Kentucky and its amici might promote deterrence data to support their cause in Baze.)
Meanwhile, a temporary end to executions does not end capital punishment news. Here are some items from some around the web with notable capital developments:
- Latest type of LI challenge
- Georgia Supreme Court looks at capital defense & how its funded
- Massachusetts Again Votes Overwhelmingly Against Reinstating Death Penalty
Booker's limited impact in one district, three years later
I almost find it hard to believe that the Booker advisory guideline system has been in operation for nearly three years now. And, as this Cleveland Plain Dealer article spotlights, the federal sentencing system has been surprisingly stable over this time. Here are snippets:
Federal judges in Cleveland and Akron and around the country continue to mostly sentence offenders within the once-mandatory guidelines, according to U.S. Sentencing Commission statistics. Congress created mandatory sentencing guidelines in 1986 under the Sentencing Reform Act as a way to establish near-uniform sentences for similar crimes....
[US District Judge James] Carr, the chief judge in the Northern District of Ohio, attributes that to the fact that most of the judges on the federal bench today were appointed during the mandatory-guideline era. "We're simply much more accustomed to dealing with the guidelines than our predecessors," Carr said. But Carr and U.S. District Judge Dan A. Polster said judges have done their best to adapt to a system that seems to be in flux and continues to draw scrutiny from legal experts, lawmakers and the public. "I don't think anyone is on autopilot," Polster said. "We're used to giving sentences with the range. In many cases, they are reasonable and appropriate sentences."
My recent article, entitled "Rita, Reasoned Sentencing, and Resistance to Change" (available here), emphasizes the unique force of status quo biases in the reform of the federal sentencing system. This article just highlights how these biases play out in one district.
November 23, 2007
What's to come in sex offender residency restriction litigation?
Though eclipsed by legal debates over guns, crack and executions, I think the Georgia Supreme Court's striking down of the state's sex offender residency restriction (basics here) is potentially the most significant recent story in the sentencing world. How Appealing collects here some of the major media coverage of the ruling, which shows that others realize this is an important decision for the national legal landscape.
Literally hundreds of thousands of sex offenders are impacted by state and local residency restrictions, and this Georgia ruling seems likely to energize and enhance legal challenges to these laws in state and federal courts nationwide. Moreover, major rulings like this are sure to increase the likelihood that the US Supreme Court will take up one of these legal challenges soon rather than later.
Because I am not a takings expert, I cannot effectively assess the legal reasoning in the Georgia Supreme Court's decision. But the fact that a court was even willing to consider a novel type of challenge here suggests that judges are starting to appreciate not only how problematic these residency restrictions can be, but also that courts need to take the lead in limiting their reach and use.
Judge Professor Paul Cassell still speaking out about unfair sentencing
This article from the Deseret Morning News, headlined "Former federal judge is striving for balance," catches up with former federal judge Paul Cassell now that he has been off the bench and back in the academy for a few weeks. Here are some snippets with a sentencing focus:
Sitting in his temporary office at the S.J. Quinney College of Law, Cassell told the Deseret Morning News that, as a federal judge, he felt there were several areas in federal law that were out of balance, particularly in the areas of minimum-mandatory sentencing and prosecution of some illegal immigrants. He saw some aspects of federal law caught in a vortex of political competitiveness for tougher sentences pushed by members of Congress....
"There's a kind of ratchet effect where the Republicans will say, 'We want a five-year mandatory minimum sentence,' and Democrats will say, 'We'll up you, we want a 10-year mandatory minimum sentence,' and you have people ratcheting up sentences to the point where any reasonable observer would think we've gone too high, but there's no political incentive to undo the mischief." Cassell said, in his mind, it takes political courage to step up and say the punishment does not fit the crime....
Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that. "One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation." Becoming a legal advocate is a better fit, he said. "I felt like for the rest of my life, I wasn't sure I could stay in one place doing one kind of thing. There were some issues I wanted to pursue, particularly working on crime victims' rights, which is an area that I felt very passionately about."
Traditionally, criminal cases involve two parties: the state and the defendant. But a growing trend in courts is to give the victims of crimes more of a voice in cases. In addition to teaching at the U., Cassell plans to work with a Washington, D.C., group that deals with crime victims' rights. It seems being a voice for balance is innate in Cassell.
One of the last things he did as a federal judge is speak out on the issue of sentencing guidelines for crack cocaine. As chairman of the Judicial Conference's Criminal Law Committee, Cassell said he spoke for the judiciary when he sent a letter to the president and Congress supporting the Federal Sentencing Commission's recommendation to reduce sentences for crack cocaine possession versus powder. Such sentences bear a 100-to-1 ratio to sentences for powder cocaine. "The differences between crack and powder cocaine penalties have been hurting the federal judiciary's credibility in minority communities, particularly in the African-American communities, who view the differences as racially motivated," Cassell said.
"The Challenge of White Collar Sentencing"
Sentencing white collar offenders is difficult in that the economic crimes committed clearly injured individuals, but the offenders do not present a physical threat to society. This Article questions the necessity of giving draconian sentences, in some cases in excess of twenty-five years, to non-violent first offenders who commit white collar crimes. The attempts by the U.S. Sentencing Commission to achieve a neutral sentencing methodology, one that is class-blind, fails to respect the real differences presented by these offenders. As the term white-collar crime has sociological roots, it is advocated here that sociology needs to be a component in the sentencing of white collar offenders.
Are botched executions inevitable?
Today's Washington Post has this extended article on execution protocols entitled, "Lethal Injection to Get Supreme Test; Doubts of Humaneness Bring Case to High Court." Though the headline suggests that the article is about the Baze case before SCOTUS, the body of the article is mostly focused on botched executions in Ohio and Florida. Consequently, this article has me thinking about whether botched executions are inevitable given human imperfection and also whether the Justices in Baze will suggest that states have an obligation to minimize the risk of botching an execution.
Though I am not an expert on botched executions, I suspect that society has often moved toward execution techniques that increase the risk of errors. The electric chair seems even more likely to mess up than a firing squad, and lethal injection seems to require even more expertise than the electric chair. Indeed, if reducing the risk of botched executions was our chief goal, perhaps we ought to start talking about bringing back the guillotine. (For anyone interested in a little morbid legal history, check out detailed in discussions here and here about the electric chair, and this discussion of older execution techniques.)
November 22, 2007
Few giving the President sentencing thanks
It has become something of a holiday tradition on this blog to lament President George Bush's stingy clemency record. Helpfully, this strong article in the Los Angeles Times — which is entitled "Clemency bids backing up for Bush; More than 3,000 petitions by federal inmates are pending; The president acted on only 18 in fiscal 2007" — provides extra gravy and stuffing for the story this year. Here are snippets:
The federal clemency system is approaching gridlock as a surge in applications for pardons and commutations has resulted in the largest and most persistent backlog of cases in recent history, according to federal data obtained by the Los Angeles Times....
The backlog has grown sharply in recent months. After acting on several hundred petitions each year since 2001, Bush closed only 18 cases in fiscal 2007, which ended Sept. 30. The last action Bush took was to commute the 30-month prison term of former White House aide I. Lewis "Scooter" Libby in July....
Critics say the lack of action on clemency applications reflects an abandonment by Bush of the discretion he holds under the Constitution to commute sentences. Bush has granted 113 pardons and commuted four sentences since taking office. That is the lowest number of any president since World War II, except for President George H.W. Bush, who granted 74 pardons and three commutations in his one term. The critics also said the backlog raises questions about whether the Justice Department is up to the task of assessing petitions in an orderly and fair way.
P.S. Ruckman provides effective coverage of this story and other related clemency issues at his blog.
November 21, 2007
Transcript from USSC hearing on crack retroactivity
Many folks this holiday season are likely thankful that the US Sentencing Commission seems poised to make its new crack guidelines retroactive. And, thanks to the magic of websites, these folks can now read a transcript from the USSC's November 13, 2007, public hearing on this issue at this link.
Some recent related posts:
- USSC analysis on potential crack amendment retroactivity impact
- Thoughtful review of crack amendment retroactivity debate
- Latest FSR issue covers crack sentencing
Georgia Supreme Court strikes down sex offender residency restrictions (on a takings theory)!
As detailed in this AP report, "Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate." Though the outcome itself is noteworthy, the legal theory behind the ruling in Mann v. Dept. of Corrections (available here) is particularly interesting and could garner US Supreme Court attention: the court finds a takings problem with the law. Here is a key paragraph from the ruling:
Looking to the magnitude and character of the burden OCGA § 42-1- 15 imposes on the property rights of registered sex offenders and how that burden is distributed among property owners, Lingle, supra, 544 U.S. at 542; see also Mann, supra, we conclude that, under the circumstances present here, justice requires that the burden of safeguarding minors from encounters with registered sexual offenders must be "spread among taxpayers through the payment of compensation." Lingle, supra at 543. We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant's property without just and adequate compensation. Accordingly, we reverse the trial court's ruling denying appellant's request for declaratory relief in regard to the residency restriction.
The challenge of killing the death penalty
The leading social conservative in the New Jersey State Senate, Gerald Cardinale, accused Democrats on Tuesday of trying to rush a bill repealing the death penalty through the Legislature without sufficient deliberation.
The Democrats, who control both the General Assembly and the Senate, have put the legislation on a fast track, and supporters and opponents alike say it has a good chance of passage before the new Legislature takes office in January. Passage by that group would not be as certain. If the bill becomes law, New Jersey will become the first state to outlaw capital punishment since the United States Supreme Court permitted executions to resume in 1976.
Seeking to counter some of the momentum that has been building for the proposal, Mr. Cardinale, of Bergen County, appeared at the state Capitol on Tuesday with Prof. Robert Blecker of New York Law School, a prominent death penalty supporter. “There’s no emergency here,” Professor Blecker said. “As everybody knows, New Jersey hasn’t executed anybody in decades.” The state’s last execution was in 1963.
Mr. Cardinale said the Democratic leadership in the Legislature was trying to bulldoze the opposition. “Ramming an issue of this magnitude through the Legislature during the lame-duck session is at the very least poor public policy and, quite frankly, offensive.” At one point during Mr. Cardinale’s remarks, the news conference veered into a sticky discussion of urban politics and race after he said that Democrats were taking advantage of their “uninformed” urban base by fast-tracking the bill.
Some related posts on New Jersey's capital punishment debate:
Judge Gertner sentences in a holiday mood
The Boston Globe covers a notable sentencing decision by Sentencing Hall of Famer Judge Nancy Gertner in this article entitled "Judge skips guidelines, releases man in crack case Long prison sentence hurts blacks, she says." Here are snippets:
A federal judge has freed a Boston man who pleaded guilty to selling small amounts of crack cocaine, saying that he dealt the drugs out of desperation and that long prison sentences for such crimes often do more harm to black communities than good.
US District Judge Nancy Gertner sentenced Myles Haynes to the 13 months he has served in jail since his arrest. She said that he appeared to be an honest man whose two admitted drug sales were isolated and that lengthy federal prison terms for such crimes are depleting cities of a generation of young black men. "Isn't it time for us to say that there is on the one hand the impact of the drug trafficking and on the other hand the impact of mass incarceration of African-Americans from crack cocaine?" Gertner said from the bench Monday. "To suggest that the public safety requires the further incarceration of Mr. Haynes makes no sense." Gertner then set aside sentencing guidelines that could have kept Haynes behind bars an extra 20 to 28 months.
While federal judges sometimes depart from guidelines, it is rare for them to air such outspoken views from the bench. Glancing at Haynes's 8-year-old son, Myles Jr., in the gallery with the defendant's family, Gertner added, "Indeed, when I see your son, I think that public safety requires that you be with your son so that he doesn't follow in your footsteps."
SCOTUS issue of Harvard Law Review covers all the sentencing cases
The November issue of the Harvard Law Review is always dedicated to a review of the past Supreme Court Term, and the full contents are now available online here. I was pleased to see that just about every sentencing ruling from the past SCOTUS Term gets discussed in the student commentary, and here is some of what you can find in the august HLR pages:
- Sixth Amendment — Allocation of Factfinding in Sentencing: Cunningham v. California
- Sixth Amendment — Federal Sentencing Guidelines — Presumption of Reasonableness: Rita v. United States
- Armed Career Criminal Act — Definition of "Violent Felony": James v. United States
- Eighth Amendment — Death Penalty — Execution of the Presently Incompetent: Panetti v. Quarterman
- Sixth Amendment — Death Qualification Decisions: Uttecht v. Brown
- Sixth Amendment — Ineffective Assistance of Counsel: Schriro v. Landrigan
- Eighth Amendment — Death Penalty — Consideration of Mitigating Evidence: Abdul-Kabir v. Quarterman; Brewer v. Quarterman
November 20, 2007
Shouldn't the turkeys have been named Scooter and Libby?
While I am in the midst of one all-to-common Thanksgiving tradition (awaiting a delayed plane), President George W. Bush today discharged another honored holiday tradition: the annual pardoning of a turkey. This AP story provides the details:
The turkey at the White House really draws a crowd. When President Bush stepped into the Rose Garden on Tuesday, he found visitors in every coveted seat, reporters standing three rows deep and staff members craning for just one good glimpse. They came for one of those signature White House moments: Bush saving the life of a huge, white, gobbling bird.
Bush granted his yearly pardon to the national Thanksgiving turkey, named "May," and a backup turkey who went unseen, who goes by "Flower." The names were chosen in an online poll that drew more than 28,000 votes. It was close; people also liked "Wish and Bone," and "Wing and Prayer." "They're certainly better than the names the vice president suggested, which was 'lunch' and 'dinner,'" Bush said.
Apparently, as detailed here, the press corps also through of the names suggested by the title of my post. And I suspect the Vice President also thought about the similarities between the chief turkeys and his chief of staff.
Some related posts about presidential pardons:
SCOTUS takes up DC Second Amendment case ... predictions?
Lyle Denniston in this post at SCOTUSblog has the big Supreme Court news today:
After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?
How Appealing has lots of additional coverage here.
As I have suggested in previous posts, if the Supreme Court gets serious about protecting gun rights, I think severe sentences for some minor gun crimes could be subject to a new kind of constitutional attack. But I'm not betting the Justices will get truly serious about protecting gun rights.
Some great (non-capital) holiday reading
As noted in posts here and here, there are plenty of new capital punishment articles to keep one busy this holiday week. But, if you are interested in avoid death while in a thankful mood, here are two new pieces addressing other sentencing -related issues on SSRN that are also worth downloading:
- Judges on Trial: A Reexamination of Judicial Race and Gender Effects Across Modes of Conviction by Brian Johnson
Abstract: Extant research on the effects of judicial background characteristics suggests minimal influence from the race or gender of the sentencing judge in criminal cases. This raises at least two possibilities: 1) the combined influence of judicial recruitment, indoctrination and socialization into the judgeship results in a homogenous body of criminal court judges, or 2) current approaches to identifying judge effects in criminal sentencing have methodological and conceptual flaws that limit their ability to detect important influences from judicial background characteristics. The current paper argues that the mode of conviction shapes the locus of sentencing discretion in ways that systematically underestimate judge effects for pooled estimates of incarceration and sentence length. The empirical results support this interpretation, especially for incarceration in trial cases, where older, female, and minority judges are substantially less likely to sentence offenders to jail or prison terms.
- American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer by Frank O. Bowman III
Abstract: This essay is an invited response to Professor Ronald Wright's impressive study of the fact that the acquittal rate in federal criminal trials is declining even faster than the rate of trials themselves, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). The essay concurs with Professor Wright's conclusion that one significant factor driving down both federal trial and acquittal rates is the government's use of the markedly increased bargaining leverage afforded to prosecutors by the post-1987 federal sentencing system consisting of the U.S. Sentencing Guidelines interacting with various statutory mandatory minimum penalties. It offers some additional evidence in the form of statistical data and personal experience supporting that conclusion.
However, the essay goes on to wonder whether Professor Wright's proposed explanations for the disproportionate decline in federal acquittal rates capture the whole story. It suggests that part of the explanation for both the continuing decline of trials and the disproportionate decline in acquittals may be the gradual extinction of true trial lawyers, particularly in U.S. Attorney's Offices. The essay concludes by expressing concern that the decline of trial lawyers may be having deleterious affects on the justice system as a whole.
A great idea for regulating capital punishment prosecutions
Thanks to this helpful capital literature review from CDW, I see that Adam Gershowitz has published in the Missouri Law Review this great looking new article entitled "Imposing a Cap on Capital Punishment." Here is the conclusion to give you a sense of what the article argues:
In its three-decade struggle with the death penalty, the Supreme Court has tried and failed to root out arbitrariness. The Court’s efforts have failed largely because it has focused on regulating the procedure of capital punishment, rather than forcing substantive changes in the criminal justice system. To the extent that the Court has dabbled in substantive restrictions, it has chosen poor proxies such as mental retardation and age, which do not force prosecutors to confront the core problem of selecting only the worst of the worst offenders from the outset. A preferable approach would be for the Supreme Court to impose a cap on the number of death-penalty prosecutions that each jurisdiction can pursue each year. Such a cap — if drawn based on the national average of death-penalty prosecutions — would bring outlying jurisdictions into the mainstream, rather than allowing those counties to seek the ultimate punishment in both the worst cases and some borderline cases. Imposing a cap on capital punishment would allow more resources to be devoted to each capital defense and would lower the risk of wrongful convictions. A cap on capital punishment therefore would minimize, though certainly not eliminate, the arbitrariness of the death penalty.
Split Sixth Circuit finds problems with ex parte communications impacting sentence
Providing an interesting primer on the uncertain legal rules governing the sentencing process, a split panel today in US v. Christman, No. 06-3266 (6th Cir. Nov. 20, 2007) (available here), vacates a sentence based on a violation of Rule 32. Here is how the opinion starts:
Defendant-appellant Richard Christman pleaded guilty to two counts of a superseding indictment, charging him with the possession of materials constituting child pornography in violation of 18 U.S.C. §§ 2252, 2252A, and 2256. The district court sentenced defendant to 57 months of imprisonment, 3 years of supervised release, a $1,000 fine, and a $200 special assessment. Defendant now timely appeals, claiming that in determining his sentence, the district court improperly relied upon extraneous information obtained from ex parte communications with a probation officer and a pretrial services officer that contradicted record evidence and information contained in the presentence investigation report.
For the reasons set forth below, we hold that defendant’s sentence was imposed in violation of Federal Rule of Criminal Procedure 32, which requires that at sentencing, the court “must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence,” and further states that the court “must – for any disputed portion of the presentence report or other controverted matter – rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter at sentencing. . . .” FED. R. CRIM. P. 32(i)(1)(C), (i)(3)(B) (2002). Here, the district court’s admitted reliance upon the ex parte communications, consisting of the probation and pretrial services officers’ subjective impressions that defendant had acted on his pedophilia and in fact had molested children, not only deprived defendant of his right to be sentenced on the basis of accurate and reliable information, U.S.S.G. § 6A1.3, but also foreclosed any opportunity for defendant to comment on and respond to the information, contrary to Rule 32(i).
Because the district court acknowledged three months after the sentencing hearing that were it not for the information not disclosed to defendant, it would have imposed a lower sentence, the error was prejudicial. We therefore vacate defendant’s sentence and remand for resentencing.
November 19, 2007
First Circuit endorses fast-track disparities
Thanks to this post at AL&P, I see that the First Circuit today in US v. Andujar-Arais, No. 06-1189 (1st Cir. Nov. 19, 2007) (available here), discusses at great length the sentencing disparities created by some districts having fast-track programs. Here is how the opinion begins:
Falcón Diómedes Andújar-Arias claims that his sentence for illegal reentry after deportation was unlawful because the district court declined to account for "unwarranted" sentence disparities as required by 18 U.S.C. § 3553(a)(6). He claims that these "unwarranted" disparities result from the operation of fast-track sentencing programs in other districts. These programs allow some districts whose resources are strained by high immigration workloads to offer diminished charges or sentences in immigration cases in exchange for a defendant's agreement to waive certain procedural rights. In addition, Andújar argues that fast-track programs violate his constitutional right to equal protection. Finally, he argues that the district court erred in treating his prior convictions as sentencing factors. We reject each of these contentions and affirm his sentence.
A notable piece on revising lethal injection protocols
I just noticed this new piece up on SSRN addressing state efforts to revise lethal injection protocols. The piece's title makes quite a first impression: "How Lethal Injection Reform Constitutes Impermissible Research on Prisoners." The abstract suggests a somewhat more moderate discussion:
This essay exposes how recent attempts at lethal injection reform have involved unethical and illegal research on prisoners. States are varying the doses and types of drugs used, developing methods designed for non-medical professionals to administer medical procedures, and gathering data or making provisions for the gathering of data to learn from executions gone wrong. When individual prisoners are executed under these conditions, states are conducting research on them. Conducting research or experimentation on prisoners in the process of reform is problematic because it violates ethical frameworks and state laws.
The Supreme Court has recently taken up the challenge of elucidating the standard for determining the constitutionality of lethal injection. If the Court suggests an approach to lethal injection reform that is akin to some of the more thoughtful and cautious approaches other courts have proposed, the Court's decision may also contravene state laws or ethical precepts regarding research with prisoners. Thus, this paper provides important limitations on the kinds of reform that may be permissible and outlines the open questions that must be addressed before it can be determined whether the risks and uncertainties involved in lethal injection can be remedied.
Around the blogosphere
Here are some notable new posts I spied today around the blogosphere:
- From Corrections Sentencing, A Costly and Harmful Failure
- From Crime & Consequences, California Capital Appeal Proposal
- From Grits for Breakfast, Texas Worst Court: Cops can hand out dope to create snitches
- From SCOTUSblog, The State of the Term
UPDATE: The story surrouding the new capital review process discussed in the post at Crime & Consequences is also the subject of this article in the Los Angeles Times.