February 3, 2007
The federalization of the death penalty
The Wall Street Journal has this weekend piece on the increased application of the federal death penalty. Here are snippets:
At a time when many states are backing away from capital punishment, the federal government is aggressively pursuing — and winning — more death sentences, including in jurisdictions that traditionally oppose them.... Today, there are 47 people on federal death row — more than double the number six years ago — and [seven come from] a state without a death statute of its own.... The ranks may grow in the months ahead, with several capital cases on tap in locales traditionally opposed to the death penalty....
The growth in federal capital cases, many observers say, results from a heightened effort by the Justice Department to centralize the process for deciding whether prosecutors should push for capital punishment. Justice Department spokesman Erik Ablin says the government is making an effort to pursue capital punishment uniformly across the country. "We have in place a clearly defined review process to ensure the death penalty is applied in a consistent and fair manner nationwide," he said....
Since the 1988 reinstatement of the federal death penalty, prosecutors have attempted to bring capital cases in federal courts across the country. Typically, this has proved much easier in states such as Texas, which have death penalties of their own, than in states such as Iowa, which don't. In 2000, there were 18 inmates on federal death row, but none were from a state that disallows capital punishment.
Things began to change in 2002, when federal prosecutors secured a death sentence in Michigan, a state without a death penalty. A year later, Mr. Ashcroft ordered U.S. attorneys in New York and Connecticut to seek death penalties against 12 defendants even though prosecutors handling the cases had recommended against doing so or decided not to pursue capital charges. At the time, the Justice Department said there shouldn't be "one standard in Georgia and another in Vermont."
As explained in some posts listed below, I see many potential virtues in an expanded federal death penalty, including the possibility of emboldening states to gear down their (often ineffectual and inconsistent) use of the death penalty.
More on the SCOTUS deadly, but still shrinking, docket
This week brought some new coverage of one of my favorite issues: the excessively large number of capital cases on the Supreme Court's ever shrinking docket. The ACS Blog's Martin Magnusson has this great post entitled, "The Dominance of the Death Penalty on the Decreasing Supreme Court Docket." The post echoes my concerns about a SCOTUS docket "filled with criminal cases that have no impact on the vast majority of American inmates."
Relatedly, this Washington Post article discusses comments by Chief Justice John Roberts about the court's docket. I found this quote especially notable:
"I regarded this as a matter of great concern when I was a practicing lawyer, somewhat less significant when I became a Court of Appeals judge," Roberts said. And now that he has seen it from the high court's viewpoint, he says that at times, there just are not that many cases that merit the court's review.
I guess this means that CJ Roberts and the other Justices will understand why, because I am a practicing lawyer particularly in the arena of non-capital sentencing jurisprudence, I am always eagerly rooting for SCOTUS to take more non-capital sentencing cases.
Some (of many) recent related posts:
- My effort to help with the SCOTUS docket problem (with cert. petition link)
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- Time to take some more Blakely and Booker cases....
- New Justices content with their dip in the pool
- Roberts, the cert pool, and sentencing jurisprudence
Death around the blogosphere
Another amazing week for death penalty developments has me again unable to keep up with all the capital news. Fortunately, the always helpful Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project all have lots of new posts for those eager to keep up with all the happenings. In addition, the What's New section of the DPIC website has additional interesting information on current events.
It is somewhat ironic that I cannot keep up with all the death penalty news on this blog in part because I am busy with my death penalty course blog. Over there I have a new post on Coker and the death penalty for sex crimes. Check out that post if you are following the debates over the death penalty for child rape offenses.
A notable federal banishment sentence
A helpful reader sent me this news article about a new banishment sentence from New Hampshire. The article is entitled, "N.H. man banished from state for 3 years; Threat to judge prompts sentence," and here are the interesting details highlights:
Jeffrey Phillips had lived half his life in New Hampshire, but this week he was given a few hours by authorities to gather his belongings and then was sent across the border and told not to return for three years. Phillips, 56, was banished from the Granite State for threatening the judge assigned to his divorce case. Tempers often flare in such cases, but prosecutors said yesterday that Phillips's threat to shoot the judge in the head, scribbled in a note, was an attack on "the very fabric of the constitutional system."
So, like Napoleon Bonaparte and other enemies of the state sent into exile before him, Phillips left his home in Kingston, N.H., journeying to Massachusetts on Thursday....
Civil liberties lawyers said the sentence was unusual, and the prosecutor in the case agreed. "This is an unusual condition of supervised release, but I think it was an appropriate condition, given the fact that the victim of the offense is a district court judge in New Hampshire," said Assistant US attorney Robert Kinsella.... "I imagine the judge did it because he wanted to keep him away from the victim of this crime," he said. "The condition seems logical."
Phillips, an electronics engineer, said he is not a violent man. Anguished by his divorce, he said he had a momentary lapse in judgment. While his divorce case was pending last June, Phillips mailed a note to Brentwood Family Court Judge Peter Hurd saying that he would be shot in the head if he failed to confess to some unspecified offenses, according to prosecutors....
In November, Phillips pleaded guilty to mailing a threat and was sentenced to the four months he spent behind bars awaiting trial. On Thursday, US Judge Steven J. McAuliffe sentenced him to three years of supervised release with the condition that he stay out of New Hampshire, though he can make periodic trips there with approval by his probation officer. "They used the term banished ; I don't really understand it," said Phillips.
Boston defense lawyer Harvey Silverglate, a longtime member of the American Civil Liberties Union of Massachusetts, said that while the sentencing is constitutional, it does not make much sense. "It is not that uncommon to have a geographical restriction in probation conditions," Silverglate said, citing spousal abuse defendants being kept away from victims and pedophiles restricted from school zones. "But if this fellow got into a homicidal rage and decided he's going to go after somebody in New Hampshire, you don't think he's going to ask permission from his probation officers do you?"
Exciting AFDA webcast this Tuesday
I have been working recently on an exciting new kind of web programming with Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA). As explained here, AFDA is "an Internet-based association for criminal defense attorneys, law professors, paralegals, investigators, and all other professionals associated with the field of federal criminal defense litigation." Greg has kindly invited me to utilize (perhaps on a regular basis) the AFDA's cool Audio Webcast System.
As detailed here, my first audio webcast is scheduled for this Tuesday (Feb. 6) at 12noon EST. The plan for this webcast is to provide an "informal, 60-minute discussion covering key developments in federal sentencing." Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.
I am grateful to Greg and the AFDA for putting this event together, and I am eager to do these sorts of user-friendly webcasts on a monthly basis if participants report a positive experience this Tuesday.
February 2, 2007
Notable Third Circuit ruling on improper basis for a variance
The Third Circuit today, in US v. Manzella, No. 06-3434 (3d Cir. Feb. 2, 2007) (available here), has an interesting discussion about grounds for a variance. Here's how it starts:
Section 3582(a) of Title 18 requires sentencing judges to "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation." We conclude that the District Court, despite the best of intentions, violated this statutory command by sentencing Valerie Manzella to 30 months of imprisonment solely because a term of that length was believed necessary to make her eligible for a 500-hour drug treatment program offered by the Bureau of Prisons.
Helpfully, the Third Circuit Blog here provides this summary account: "the Third Circuit broke new ground today by reversing, as unreasonably long, a 30-month sentence for counterfeiting checks when the Guidelines range was 2-8 months."
When will the Sixth Circuit emerge from its lethal injection hole?
As detailed here, Punxsutawney Phil did not see his shadow "which, according to German folklore, means folks can expect an early spring instead of six more weeks of winter." But, as discussed in this post, Tennessee Phil (Bredesen) yesterday felt compelled to postpone four pending executions in part because no one can predict when the Sixth Circuit will resolve a long-pending case from Ohio about federal challenges to state lethal injection protocols. Especially now that two states in the Sixth Circuit have had to postpone scheduled executions, I sure hope the Sixth Circuit won't make all the good citizens (and lawyers) of Ohio and Tennessee wait six more weeks for a ruling.
Some related posts:
- Calling out the Sixth Circuit for making a capital mess
- The lethal mess in Ohio
- Lethal injection mess hits Ohio again
- Tennessee's planned execution splits Sixth Circuit again
- Who will demonstrate lethal injection leadership?
- My lethal injection piece on SSRN
"Justice Reinvestment" in Texas
Thanks to Grits for Breakfast, I see that the smart folks are starting to come up with a smarter slogans for smarter sentencing reforms: "Justice Reinvestment." Here's more information (with cool links) from this page at the Justice Center of the Council of State Governments:
On Tuesday, January 30, 2007, the Texas Senate Criminal Justice Committee and the House Committee on Corrections held a joint hearing to review correctional policies in the state. At the invitation of Senator John Whitmire (D-Houston), Chairman of the Senate Criminal Justice Committee, and Representative Jerry Madden (R-Plano), Chairman of the House Corrections Committee, the Council of State Governments Justice Center, along with its senior research consultant Dr. Tony Fabelo, presented a report to the Committee entitled "Justice Reinvestment: A Framework to Improve Effectiveness of Justice Policies in Texas." This report outlined two justice reinvestment scenarios: provide more tools to the Parole Board to enhance the use of parole and increase the availability of treatment services. According to the report, state policymakers could avert spending $377 million for construction of prisons for 5,000 more inmates.
If anyone in the sentencing reform "ad biz" is listening, let me also suggest an add-on slogan. How about: "Justice Reinvestment: Less Cost and Less Crime."
Some recent related posts:
Strong commentary on Cunningham
Professor Vik Amar, who two years ago had this terrific commentary discussing the California Supreme Court's big Blakely decision in Black, now has a new FindLaw commentary on Cunningham. The piece, the first of two parts and available here, is entitled "The Supreme Court Invalidates California's 'Determinate Sentencing' Law." Here is the set up:
In this two-part series of columns, I will examine [Cunningham v. California] decision, and its important implications for current and future doctrine -- including its likely impact on two additional related cases the Supreme Court is hearing on February 20.
February 1, 2007
Tennessee's Gov halts executions over lethal injection concerns
As detailed in early press reports here and here, Tennessee "Gov. Phil Bredesen on Thursday postponed four pending executions, saying the state needs to rework its procedures for lethal injection." Here's more:
Bredesen reiterated his support for the death penalty but said he was issuing temporary reprieves for four condemned killers because of concerns the state’s written protocol for execution isn't specific enough. "The document describes the drugs to be used, it doesn't describe how much is to be used. That's a huge failure of that document," Bredesen said.
State officials want to complete a "comprehensive review" and reworking of the execution guidelines by May 2, the governor said. "There's no question in my mind the protocols are not adequate. that’s why we're taking this action today," Bredesen said. The governor said he called for the review because of a case pending in federal court that challenges the state's lethal injection process.
A kind reader who alerted me to this news also sent along the Governor's executive order, which can be downloaded here:
Some recent related posts:
New of interest at SSRN
This chilly time of year usually produces a heating-up of scholarly drafts, and so I am not surprised to see all these new papers of interest at SSRN:
- The Innocent Prisoner's Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings by Daniel S. Medwed
- Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States Jeffrey L. Kirchmeier
- The Merciful State by Linda Ross Meyer
- Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process by Cyrus Tata
Still more on Boyd
I am still gaining wisdom from thinking and talking with others about Judge Posner's work for the Seventh Circuit in Boyd (my prior rants here and here). And the folks at The Volokh Conspiracy provide still more food for thought with posts by Jonathan Alter and Orin Kerr. In part because Orin partially defends Boyd, I wanted to clarify a few points and also spotlight some of the VC comments.
First, it seems that Orin reads Boyd to indicate that "a federal district court determined beyond a reasonable doubt [that defendant Artemus Boyd] violated state law." My reading is that the district court only applied a preponderance standard (if that), and the many factual "gaps" stressed by Judge Posner in Boyd suggests that the facts probably weren't sufficient under either fact-finding standard. Relatedly, I am not at all concerned about federal courts conducting traditional jury trials with standard procedures for state-defined crime (Orin rightly notes this has been held constitutionally permissible). Rather, what rankles me is when, as in Boyd, federal judges at sentencing use cursory conclusions about possible state crimes to justify an increased federal sentence.
Second, the comments to Orin's post thoughtfully develop other apparent problems with Judge Posner's work in Boyd. Marty Lederman notes that "Posner has eliminated one of the elements of the Indiana crime" in the course of affirming the sentence of Artemus Boyd. Moreover, though some provide doctrinal cover for what Judge Posner is doing in Boyd, I found this comment captured the common-sense basis for my prior rants about Boyd:
Not a lawyer. "If you want a decision, go to court. If you want justice, go to church." is becoming truer and truer. Sentenced because of a crime he was not tried for, is that correct? [snort] Was bound to happen, and, I suspect, will be common practice. After all, we're all guilty of something.
I cannot fix this system, very few of you lawyers seem to think that there is even a problem, and so I think that things will get a good deal worse before they get better. Once the lawyers start being convicted for the crimes of their clients, maybe.
Nationwide and Ohio capital developments of note
StandDown Texas Project has lots of new death penalty posts, including this effective post reviewing "Coast to Coast Developments." And, at Ohio Death Penalty Information, there are these two notable posts about Ohio developments:
- Poll shows strong support for Strickland reprieves
- Strickland restates he has no plans for Ohio execution moratorium
The mixed and nuanced (and confusing?) messages coming from Governor Strickland and Ohio polls reinforces my sense that Ohio is the state to watch as a bellweather for nationwide death penalty deveopment.
Some recent related posts:
Two notable Fifth Circuit sentencing wins for defendants
Yesterday brought two notable defense wins on sentencing issues in the Fifth Circuit:
- In US v. Polito, No. 06-30133 (5th Cir. Jan. 31, 2007) (unpublished) (available here), which is an internet child porn case, the district court went from a guideline range of 27-33 months to five years probation with one year house arrest. In a short "per curium" [sic] opinion, the Fifth Circuit panel holds that "[g]iven the totality of the reasons stated by the district court, we do not find that this sentence is unreasonable." Perhaps the use of "curium" here reveals that the appellate panel realized that affirming a below-guideline sentence in an internet child porn case could prove to be radioactive.
- In US v. Davis, No. 05-10754 (5th Cir. Jan. 31, 2007) (available here), the defendant prevails on a complicated claim relating to the calculation of drug quantities under the guidelines.
Great (short) sentencing report from Texas
Folks concerned about harsh sentencing and excessive use of incarceration have a lot of new additions to their reading lists. In addition to recent important reports from the Little Hoover Commission and from the Vera Institute, I just learned of a great new resource on Texas sentencing. The resource, available here, is a special report on the topic of state sentencing policy coming from the director of the Texas Office of Court Administration. Here is the set up:
In a nutshell, the [Texas] legislature confronts the first major decision between building additional prison capacity and other alternatives, since the building boom of over 100,000 beds culminated in 1995 and the state began to accept all "state ready" inmates from counties within 45 days. The legislature faces this decision after the demise of the Criminal Justice Policy Council in 2003, and in the absence of the unifying policy guidance that Dr. Fabelo provided.
In the first part of this report, I trace my own history of engagement with the issue of state sentencing, hopefully to inform today's debate from a historical perspective, but also to lay my own policy perspectives on the table. The other major themes in the report are (i) notable activity on state sentencing policy at the National Center for State Courts and elsewhere around the country, and (ii) constitutional issues to be aware of in the sentencing arena. For further background on the Texas situation, please see my recent summary, "Sentencing and Corrections: From Crowding to Equilibrium (and Back Again?)," in the March 2006 Texas Bar Journal, and other online resources listed in the final section below.
Harsh border agent sentences producing half-truths
The buzz over the border agent case (background here and here) continues to grow. CNN has a new segment about the case, entitled Border outrage, in which there are accusations that federal prosecutor Johnny Sutton has not been fully truthful about granting immunity to the Mexican drug smuggler shot by the border agents. The CNN piece also had various lawmakers suggesting that the government is covering up facts that might exonerate Agents Ignacio Ramos and Jose Alonso Compean.
Meanwhile, this news report from McClatchy Newspapers suggests President Bush in now misrepresenting his pardon power. According to the news report, in "an interview on the Fox television network Wednesday, Bush again said he is bound by strict federal guidelines on pardons and cannot immediately grant a pardon to the two agents." Though the Justice Department has its own internal pardon protocols, there are no legally binding restrictions on the President's pardon power and he can grant a pardon to any and all federal defendants at any time.
As I have said in post below, I think this case is fundamentally about the sad realities of mandatory minimums. I think there can be a very reasonable debate over whether the agents committed criminal acts justifying some punishment. Beyond debate, at least in my mind, is the notion that they deserve to be lcoked up for over a decade based on their behavior under these circumstances. But, as often happens, a clear sentencing problem is lost in an over-heated debate of other issues.
Related posts on border case injustices:
January 31, 2007
Important new Vera report on "Reconsidering Incarceration"
The always amazing Vera Institute of Justice has just released an important new study entitled "Reconsidering Incarceration: New Directions for Reducing Crime." It is available at this link, and here's a summary:
Little empirical study had been done to confirm or refute the effectiveness of incarceration in reducing crime rates when America began its historic reliance on prisons in the 1970s. Today, conversely, policymakers are faced with a large, complex, and sometimes contradictory body of research. This paper seeks to help officials make sense of this information and offers an up-to-date understanding of what works best. It also examines research on several of the other factors that might be developed as part of an expanded notion of public safety. Informed by this more inclusive understanding of current research, it suggests that effective public safety strategies should move away from an exclusive focus on incarceration to embrace other factors associated with low crime rates in a more comprehensive policy framework for safeguarding citizens.
Sounds like this report is speaking my language. I hope to have more commentary once I get to read it.
Just what does Cunningham mean for Claiborne and Rita?
In my first read of the Supreme Court's Cunningham decision (essentials here), I made particular note of this line: "Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless." As evidenced by my Boyd bemoaning (here and here) and my complaints about continued reliance on acquitted conduct (details here and here), I think most district courts and really all circuit courts applying Booker reasonableness review have essentially cooked up post-Booker doctrines that functionally produce a "recipe for rendering [the Court's] Sixth Amendment case law toothless."
For that reason, I read Cunningham as previewing big fireworks in Claiborne and Rita. (That's why I initially speculated that the SG might want a GVR after reading Cunninham.) But perhaps I am over-reading Cunningham, and so I ask informed readers: what do you think Cunningham means for Claiborne and Rita?
Why Americans (but not Europeans) should be troubled by Boyd, Faulks and huge "trial penalties"
A great chat with a colleague in the economics department about Judge Posner's work in Boyd (details here) help me see why that decision so troubles me. The reason links to my work seeking cert in US v. Faulks (details here) and my concern with huge "trial penalties" (details here), and take me back to my long-ago insights about what Blakely is really about: a battle between an adversarial and inquisitorial model of criminal justice.
As I discussed here way back in September 2004, in Blakely, five Justices champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt. The Blakely dissenters, in contrast, embrace an inquisitorial model of where, in Justice Scalia's words, "a lone employee of the State" makes all critical findings and determinations.
In Boyd, Judge Posner and the Seventh Circuit is doing all the investigation (about a state crime, no less) to justify the defendant's increased incarceration. Similarly, in Faulks, the federal district court does all the investigation and adjudication (again of a state crime) as the basis for an addition 3 years of federal imprisonment. The modern realities of the trial penalty (where defendants get 10+ more years for a crime because they go to trial), and the fact that 95% of all convictions are from pleas, shows in another way how our justice system has become a (prosecutor-controlled) inquisitorial system of criminal justice.
Understood in these terms, the endless sparring between Justices Scalia and Thomas and Justices Breyer and Kennedy makes so much more sense. Justices Scalia and Thomas are aguably our most American Justices, and so Justice Scalia in Blakely assails Justice Breyer's "esteem for non-adversarial truth-seeking processes." He also stresses that "Our Constitution and the common-law traditions it entrenches ... do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury." Of course Justices Breyer and Kennedy are aguably our most European Justices and they keep showing their affinity for judge-centered criminal justice procedures. But, I think Justice Scalia has the best last work in this concluding part of his Blakely opinion:
One can certainly argue that both these values [of efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.
More support for an exclusively federal death penalty
Howard Bashman has all the news coverage of yesterday's notable federal death sentence imposed in New York. Among other interesting details, this New York Times article about the case highlights that "[f]ederal prosecutors vigorously sought the death penalty against Mr. Wilson, taking the case from state prosecutors in Staten Island after the New York death penalty was largely invalidated in 2004."
These realities draw me again to the idea, discussed recently here, that states should rarely (if ever) bother to pursue capital cases and simply request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases. The federal government already tends to dominate the prosecution of the worst white-collar crimes and drug crimes, so why shouldn't they take on primary responsibility for the (much smaller universe) of terrible homicides?
Among other benefits, federal-focused death penalty would greatly reduce habeas headaches. Outside the war-on-terror setting, most legal habeas battles (in the Supreme Court and in lower federal courts) are about state capital cases. If the feds were to prosecute most capital cases, significant federalism issues and (confusing AEDPA doctrines) fade away.
Some recent related posts:
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- Ashcroft's death penalty "legacy"
- How could (and should) Congress clean up the lethal injection mess?
- A lethal hearing (in the wrong place?)
- Isn't it finally time for Congress to do something about lethal injection problems?