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?
Equal justice or just the realities of ratting out?
One can learn a lot about modern sentencing realities by reflecting upon yesterday's sentencing of Cosmo Corigliano, the former CFO of Cendant Corp. who was a "significant cog" in a massive accounting fraud that cost "119,000 investors more than $3 billion." As detailed in this AP account, Corigliano and two other executives, Anne Pember and Casper Sabatino, who cooperated with authorities all received probation. Meanwhile, by virtue of exercising their constitutional right to go to trial, Cendant's Chairman Walter Forbes "was sentenced to 12 years and seven months in prison, while Vice Chairman E. Kirk Shelton received a 10-year sentence."
This is just another example of why, under modern sentencing realities, a defendant may be much better off being and knowing he is very guilty rather than perhaps being and believing he is innocent. Very guilty defendants (like Corigliano and Andrew Fastow in Enron) quickly figure out they should cut a deal to cut their losses. But, defendants who may believe in their innocence, often opt to exercise their right to trial, a choice and a gamble that now can cost a defendant the rest of his life behind bars.
Of course, these dynamics are not just in play in white-collar cases. Consider again the extreme mandatory minimum punishments and prosecutorial choices in the Genarlow Wilson (background here and here) and border agent cases (background here and here).
Wilson's companions were clearly guilty of rape, so they pled guilty and got much shorter sentences. Wilson exercised his right to go to trial, was acquitted of the most serious charges against him, and yet was still sentenced to 10 years in state prison. Likewise, the border agents refuse a plea offer to a short sentence from the federal prosecutor because they believed their non-fatal shooting of a Mexican drug smuggler was justified. After losing at trial, they got hammered with sentences of 11 and 12 years of imprisonment.
So, to return to my rating of injustices, how do we rate the injustice of a "significant cog" in a massive accounting fraud that cost "119,000 investors more than $3 billion" only getting probation?
Daily dose of the death penalty
Also, at my class blog, I note this press release reporting that University of Illinois College of Law Professor Francis Boyle has nominated former Illinois Governor George Ryan for the 2007 Nobel Peace Prize. As I note in this post, the press release is notable not only for what it says, but also for what it does not say. There is no discussion of wrongful convictions or innocence issues, which is what first drew Ryan's attention to the death penalty. Also, the press release also does not mention that Ryan is now a convicted felon recently sentenced to more than six years in federal prison.
Watching for crime and punishment in PBS SCOTUS history
Howard Bashman has been covering very well (see here and here) all the coverage of the PBS mini-series "The Supreme Court." Though I have my DVR set to record this exciting program, I have a feeling I will be annoyed by how crime and punishment issues will be covered (or not covered).
Of course, I never expected Apprendi or Blakely to have a role in a quick review of Supreme Court history, the Court's impact on the operation of criminal justice systems should be a big part of any discussion of SCOTUS's impact. However, the PBS account landmark cases seems to have only two real criminal cases (Gideon and Miranda) among a list of more than 40 cases. I would have thought Furman and/or Gregg would make the list, not to mention Mapp and Katz and perhaps a few others.
January 30, 2007
A Cunningham fix in California
Kara Dansky, the executive director of the Stanford Criminal Justice Center, sent this dispatch about a developing Cunningham fix in California:
Thought you might like to know about SB 40, which has gotten very little press here. Introduced by Senate Majority Leader Romero on Jan. 25, it would temporarily amend the DSL to give sentencing judges the discretion to impose any of the three base terms within the triad (the bill includes a sunset provision of Jan. 1, 2009). Here's a link to the bill text. It got through the Senate Public Safety Committee today. Here's a little blurb about it in the Sacramento Bee, relegated to one of the back pages. Finally, here's [a snippet of an] op-ed of mine that appeared in today's San Francisco Daily Journal, suggesting the temporary fix that appears in SB 40:
Senate Majority Leader Gloria Romero has introduced SB 110, which would create an independent, balanced, nonpartisan Sentencing Commission to take effect on Jan. 1 2008. One of the Sentencing Commission's first tasks should be to devise and implement a coherent, transparent and fair sentencing system that complies with Cunningham and provides the proper amount of guided judicial discretion.
Perhaps, then, the thing for California to do in the short term is to take the approach most consistent with the sentencing policies we would like to implement in the long term. Perhaps in the short term, the Legislature should amend Section 1170(b) to give judges the discretion to impose one of three base terms, include a sunset provision, and delegate to Romero's Sentencing Commission the responsibility of devising a long-term solution that protects public safety, is based on principles of fairness, justice and accountability, and satisfies state and federal constitutional mandates.
The ball, as the Supreme Court unambiguously announced, is in California's court. It is no longer a question of whether sentencing reform is a good idea. It is now simply a question of how we do it.
UPDATE: Crime and Consequences has more on these legislative developments here.
Judge Posner assails federal lawyers for poor "trial" of state law
Today's challenge for readers: can anyone explain to me how Judge Posner's work for the Seventh Circuit in US v. Boyd, No. 06-2431 (7th Cir. Jan 30, 2007) (available here), does not undermine the principles of Blakely as well as numerous Bill of Rights provisions and the Framers' structural vision of liberty and limited federal government? I know the NRA and conservative libertarians do not like to come to the defense of convicted felons, but Boyd really strikes me as beyond the pale.
The facts set out in the Boyd opinion are very sketchy, so perhaps there is an ugly underbelly. But it seems that Artemus Boyd, at 3am in the morning, fired six bullets into the air while leaving an Indianapolis nightclub with his girlfriend. Though nobody was hurt in any way by this misguided act of revelry and male bravado, somehow the defendant ended up being federally indicted for being a felon in possession of a gun. Sensibly, it would seem, Artemus Boyd decided to plead guilty to this charge. That's when things get a bit kooky.
At sentencing, the federal district judge enhanced Boyd's sentence (
it is not clear how much [Update: apparently 4 guideline offense-levels]) based on her view "that the defendant had used the gun to commit another felony." That felony, apparently, is the Indiana state crime of criminal recklessness. Notably, there is no evidence that Indiana prosecutors ever thought to indict or try Boyd for the Indiana state crime of criminal recklessness. Nevertheless, despite an obviously sketchy factual record, the federal district judge essentially tried and sentenced Boyd to additional time for the Indiana state crime of criminal recklessness.
On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense. Instead, Judge Posner essentially conducts his own philosopher-king bench trial, complete with his own evidence ranging from "a satellite photo (available free of charge from Google)," a website called "The Arms Site" (that's where the picture above is from), and a dated criminology article (entitled "Stray Bullets and 'Mushrooms': Random Shootings of Bystanders in Four Cities, 1977-1988").
Along the way, Judge Posner complains about the "sloppiness with which the case has been handled by both sides." Judge Posner also laments that the record did not specify the type of gun involved, the type of ammunition, or what persons or buildings were in the vicinity of the shooting. So, how does the story end? So speak Judge Posner for the Seventh Circuit:
Despite these gaps, we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute. AFFIRMED.
Perhaps someone can get me a new copy of the Constitution, but I missed the section that authorizes a federal circuit court to assemble evidence to convict a federal defendant of a state crime as long as that circuit court is "reasonably confident" a state court would find that disputed conduct "within the meaning of [a state criminal] statute." Maybe the federal prosecutor and defense lawyer were "sloppy" because they do not know how they are supposed to try an Indiana state charge of criminal recklessness to a federal circuit court. YEESH.
UPDATE: Howard Bashman provides this link to the oral argument in Boyd, where you can hear the circuit judges asking lots of factual questions of counsel and debate whether there can be a "remote alley." And Kent in the comments rightly reminds me that conservative libertarians at the Cato Institute "come to the aid of convicted criminals all the time."
The practical persistence of an offense/offender distinction after Cunningham
When first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and most recently unpacked it (with Stephanos Bibas) in Making Sentencing Sensible. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
Consequently, I was very pleased to see Justice Kennedy's opinion in Cunningham espousing this "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not." But, of course, I was less pleased that Justice Kennedy was writing in dissent and that footnote 14 of Justice Ginsburg's majority opinion asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."
And yet, even though Cunningham seems to have rejected the offense/offender distinction as a formal part of Apprendi doctrine, I think the concept can and will persist as sentencing reform proposals and "second-generation" Blakely issues move forward. Here are some reasons why:
1. The "prior conviction" exception is still good law (and was repeated again in Cunningham). Prior convictions are the classic example of "sentencing enhancements based on the nature of the offender," and they are still free from the Apprendi-Blakely rule.
2. Many sentencing systems base enhancements on facts related to prior convictions (e.g., the defendant was on probation or parole), and most lower courts (though not all) have said that facts closely related to prior convictions are also not subject to the Apprendi-Blakely rule.
3. Most offender facts distinct from prior convictions (e.g., whether the defendant cooperated, shows remorse, contributes to the community) tend to be mitigating factors put forward by the defendant. Both formally (because they support sentence reductions) and practically (because they are admitted by the defendant), these sort of mitigating offender characteristics typically will not raise Blakely issues.
Thus, while Cunningham seems to have formally killed the offense/offender distinction as a part of Sixth Amendment doctrine, I expect the basic concept will have a phoenix-like revival in the practical application of most sentencing systems.
Sex offender news and notes
Corey Yung's blog Sex Crimes is looking great after a redesign and the additional of particularly a nice blog roll. Corey spotlights the blog Sex Offender Issues, where there are a lot of new interesting stories, and he inquires about other sex offender blogs or advocacy sites that should be on his blogroll. Help him out readers.
On the topic, Steven Erickson at Crime & Consequences has this strong post on the "Promise and Pitfalls of Sex Offender Research." Here is how it starts and ends:
[T]here's much talk about sex offenders but a lack of good science. One of the most discussed areas in terms of sex offenders is risk of recidivism. While some say recidivism risk is relatively low among sex offenders, others disagree and praise the severe civil restrictions mandated for many sex offenders. Where does the truth lie? Like so many things in life, it's a mixed bag....
Two [key] points: First, there's much heterogeneity within the sex offender population. What is true for offender A may not be true for offender B. It's easy to condemn all sex offenders -- their crimes are terrible -- but malice means being unrighteously spiteful. A just society is just in its judgments and punishments; not all sex offenders deserve the worst punishments. Second, we desperately need better studies that examine recidivism risk over the long haul and can give us truly some understanding of whether sex offender treatment is effective.
Capital news and notes
Capital Defense Weekly here collects lots of interesting news covering a busy death penalty Monday, and How Appealing has posts here and here with some of Tuesday's capital headlines from Florida and Texas.
In addition, this post at Abolish the Death Penalty spotlights "Death penalty demagoguery among Democrats" thanks to this notable passage from an op-ed in the Baltimore Sun:
When he was running for president in 1992, Clinton slipped back to Arkansas just long enough to oversee the execution of a brain-damaged killer named Rickey Ray Rector. It was the third execution during his tenure as Arkansas governor. Clinton scraped away the moral questions to score points with a public that might have regarded him as soft on crime.... In 1992, other so-called liberals, Paul Tsongas and Bob Kerrey, embraced the death penalty, hoping such a position would pull the Democratic Party to the political middle and win back voters who had marched off to join the Reagan Revolution in the previous 3 presidential elections.
The death penalty has been used for political gain across the land. Mike Miller, the Maryland Senate president and for way too long now a leading Democrat in this blue state, said this in 2004: "If there's a gallows, I'll pull the lever. If there's a gas chamber, I'll turn the valve. If it's lethal injection, I'll insert the needle."
In the hands of politicians, the death penalty has been used in this way -- to earn tough-on-crime bona fides -- or as an object of demagoguery.
Testimony on CVRA and FRCrP
On the site of the the National Crime Victim Law Institute, one can now find this webpage collecting testmony addressing federal criminal procedure rules (FRCrP) seeking to implement the federal Crime Victims Rights Act (CVRA). Here is the basics:
The Advisory Committee on Criminal Rules of the Federal Judiciary has published proposed amendments to the Federal Rules of Criminal Procedure, seeking to integrate the Crime Victims' Rights Act, 18 U.S.C. § 3771, into those rules. Numerous experts from across the country testified on Friday, January 26, 2006, on the Committee's lack of full integration of victims' rights into the rules....
The opinions/testimony of [these] individuals/organizations are linked here: Douglas E. Beloof; Judge Paul Cassell; Russell P. Butler; Sally H. Pym on behalf of the Ninth Circuit Judicial Council Pacific Islands Committee; Thomas W. Hillier, Jr; William N. Clark; Jon M. Sands; Tobin J. Romero on behalf of Williams & Connolly LLP; Hon. James F. Holderman; Peter Goldberger, Esq.
January 29, 2007
Interesting Ohio report on correctional faith-based initiatives
As explained in prior posts here and here, I am an (agnostic?) supporter of faith-based prison programs. Thus, I was please to discover a recent report from the Correctional Faith-Based Initiatives Task Force of the Ohio Department of Rehabilitation and Correction. The lengthy report, cleverly entitled "Report to the Ohio General Assembly from the Correctional Faith-Based Initiatives Task Force," is available at this link. The report has lots of analysis and recommendations, and here are the main themes:
The Correctional Faith-Based Initiatives Task Force considered the data and made recommendations for changes in the system in four major areas: (1) alternatives to incarceration, (2) prison programming, (3) reentry programming, and (4) infrastructure. It was clear there is an expanded role for the faith community in corrections, and that the departments of Rehabilitation and Correction and Youth Services need to work together with the faith community to increase volunteers working with offenders.
Still more government Booker wins around the circuits
Perhaps it is a cold dark winter that is making me feel cold and dark about the prospects for sensible sentencing reform. Though Supreme Court rulings like Cunningham help keep me warm, the all-too-common tales of extreme punishments are getting me down. Also getting me down, though this is not a new development, are circuit court Booker rulings. A set of rulings today from the Third and Eighth Circuits show, yet again, how reasonableness review in the circuit means "the government almost always wins."
The Third Circuit ruling, US v. Colon, No. 05-3684 (3d Cir. Jan. 29, 2007) (available here), affirms an upward varaiance of more 43 months, and in so doing stresses the relative unimportance of the guidelines when a district judge decides to sentence upward: " The fact is that when a court sentences post-Booker and views all of the section 3553(a) factors the guidelines range is simply one factor for it to consider in arriving at the sentence."
The Eighth Circuit rulings, in telling contrast, both reverse downward variances. See US v. Pool, No. 06-2096 (8th Cir. Jan. 29, 2007) (available here) and US v. Williams, No. 06-2532 (8th Cir. Jan. 29, 2007) (available here). In Pool, the Eighth Circuit concludes that the district court, by varying down 33 months, "gave too much weight to the effect of any potential incarceration on Pool's employees, Pool's charitable record, and his medical condition." In Williams, the Eighth Circuit reaches the (debatable) conclusion that, even after Booker, a district court is only authorized to rely on substantial assistance factors (and no other factors) when departing below a mandatory minimum based on a government's motion.
Another extreme mandatory sentence ... Update: is Wolf Blitzer next?
I am still trying to make sense of the extreme mandatory minimum punishments and prosecutorial choices in the Genarlow Wilson (background here and here) and border agent cases (background here and here). But now, thanks to this post at How Appealing, I now see another example of an extreme mandatory minimum punishment.
In this case, as detailed by Judge Richard Clifton in this concurring opinion, at issue are "mandatory sentences of life imprisonment [for] young people, aged 25 and 21 at the time of conviction" as a consequence of a "terrible death of the victim here was an unintended consequence of the defendants' act of burning down a house they viewed as theirs, in order to end a long-running family disagreement." Notably, Judge Clifton (an appointee of President George W. Bush), calls for the exercise of executive clemency at the end of his concurrence:
The President has the power to temper justice with mercy. I hope that the Executive Branch revisits this case and, if the facts truly are as they have been made to appear to us, will consider letting the defendants go after a more appropriate term of incarceration.
UPDATE: Turning back to the Wilson case, a commentor wonder if CNN, which apparently has a copy of the videotape showing minors engaging in a sex act, might be guilty of posessing child pornography.
A valuable (but disconcerting) perspective on the border case
Andrew C. McCarthy has this must-read article in today's National Review Online about the border patrol agent case (background here and here). The article includes lots of great insights, but also some troublesome rhetoric. Here's a taste:
Myopic border-enforcement activists seem unconcerned about any of these facts [which shows the border agents' misdeeds] — for them, much like anti-death penalty obsessives, the cause is a higher calling.this case rankles ordinary Americans, too. That's understandable given the severity, the equities, and the potential ramifications of the punishment.
There is broad recognition that bad agents should be weeded out of any police force. Compean and Ramos, however, have not just been terminated; they were socked with sentences of twelve and eleven years, respectively. This, in connection with an incident that arose out of a job which — their appalling conduct aside — is undeniably dangerous; an incident instigated by a drug dealer who was not prosecuted for crimes worth at least as much jail time as the agents received — an illegal alien felon who may end up with a big cash windfall premised on the absurdity that his purported American "civil rights" were violated....
[D]id the indictment really have to be this severe? After all, the sentences are extremely harsh. Here, the agents have mainly themselves to blame. The government offered them very generous plea deals. Compean and Ramos spurned them. If defendants decline to plead guilty and insist on proceeding to trial, it is standard operating procedure for the Justice Department to bring its best case — which includes charging the offense that carries the highest penalty among all readily provable crimes. Indeed, it is common for the government to insist on the most severe, readily-provable offense even at the plea-negotiation stage — something Sutton's office did not do.
Talk about an interesting example of blaming the victims (of overly harsh sentencing practices). The two border agents opted to exercise their constitutional rights to force the government to prove its case to a jury, and now the National Review's columnist says they have "mainly themselves to blame" for their harsh sentences. I wonder if anyone at the National Review is actively urging Lewis Libby to cop a plea, since he will have only himself to blame if he ultimately gets convicted and receives a tough sentence.
New article on residency restrictions
Corey Yung, who runs the great Sex Crimes blog, has an article on sex offender residency restrictions up at SSRN. The article, available here, is entitled "Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders." Corey has this blog post about the article, and here is the abstract:
Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Sixteen states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live. In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Internal exile is an uncommon practice in the West and within the United States. The advent of exclusion zones for sex offenders is a development that could fundamentally alter basic principles of the American criminal legal system.
Ultimately, I conclude that the best policy alternative for tailoring sex offender policy to the nature of the problem includes a move to individualization in sex offender sentencing; provisions for judges to have full access to relevant clinical, actuarial, and social science data about sex offenders; and allowing judges a full menu of sentencing options. These reforms will avoid the worst effects of residency restriction approaches while being substantially more effective in the fight against sex crimes.
As Larry Solum might say, "Download it while its hot!"
Notable new sex and death websites
Two notable websites on two hot issues have recently come to my attention:
- Sex Offender Issues is an interesting new blog that has this express mission: "While it is imperative that society and families avoid the denial and disbelief of the past in order to protect our children, it is likewise our task, as Christians and all people of faith, to protect these marked members of our society from becoming targets of violence and harassment or of legislation that would arbitrarily remove their civil rights in society once they have completed their sentences."
- Fair Trial Initiative is an organization funding various efforts in order to ensure that all capital defendants have "the assistance of a caring and competent defense team" and have "access to the resources necessary to investigate the case and the background of the accused." As detailed here, FTI has a fellowship open to third-year students interested in doing capital defense work.
Using the border agent case as a catalyst for federal sentencing reform
This year would seem to present a new opportunity for needed bipartisan federal sentencing reform. Democrats have slim majorities in both houses of Congress, Booker declared aspects of the old rules unconstitutional, and most everyone agrees that mandatory minimum and crack sentencing rules are unfair. The only snag would seem to be traditional "tough-on-crime" Republican opposition to moderating any federal sentencing rules.
But a new hot-button case — involving extreme sentences for two border agents due to the application of federal mandatory minimums — has lots of Republicans recognizing how federal sentencing can spin out of control. Indeed, as this article details, Republican members of Congress are busy proposing all sort of kooky bills to try to remedy this case of sentencing injustice:
Several members of the House are drafting legislation to cut off funding specifically for the incarceration of border agents Ignacio Ramos and Jose Alonso Compean, sentenced to 11 and 12 years respectively.
The case unleashed a storm of criticism. Lawmakers first called for hearings into why the Justice Department granted immunity to a suspected drug smuggler so he would testify against two agents who shot him. Two bills were later introduced in the House — one calling on President Bush to pardon to the two agents and the other to vacate the federal court's conviction.
Rep. Ted Poe (R-Texas) has signed on to both proposals but knows the power of Congress is limited in vacating a court ruling, given the constitutional separation of powers. "There are constitutional issues with that," Poe told Cybercast News Service Friday. "We do have the power of the purse. We can prohibit funds for the incarceration of the two border agents. That legislation was talked about last week. In the next week, it should be introduced." Poe said while it was not his idea, he would sign on to the bill and expects many other members to do so as well, considering 50 members urged the president to pardon the agents and 70 signed on to a bill to vacate the court ruling.
It is a sad and telling commentary that the Republican reaction to these unfair sentences is to propose novel — and probably unconstitutional — new laws rather than to try to fix the old laws that has produced the injustice. Though many may think the very prosecution of the border agents was unjust, the case is so troubling because of the sentences required by federal mandatory minimum sentencing law. Had the agents received only, say, 11 and 12 months (rather than 11 and 12 years), this case would likely look a lot different.
Rather than bemoan reactions to the border agent cases, I want to issue a challenge to leaders in Congress: Will anyone in the House or Senate have the courage to use the border agent case as an opportunity to discuss and move forward with needed federal sentencing reforms? I especially hope that Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein, who filed such a disappointing brief in Claiborne (details here and here), understand that the border agent case presents a unique and rare opportunity to start addressing the potential injustices of crude sentencing rules.
Some recent related posts:
January 28, 2007
The case against supermax
This week's Time magazine has this strong article entitled "Are Prisons Driving Prisoners Mad?". The article discuss the mental torture and negative consequences of how prisoner's are treated in Supermax prisons. Here are some snippets:
The U.S. holds about 2 million people under lock and key, and 20,000 of them are confined in the 31 supermaxes operated by the states and the Federal Government....
The origin of solitary confinement in the U.S. is actually benign. It was the Philadelphia Quakers of the 19th century who dreamed up the idea, establishing a program at the city's Walnut Street prison under which inmates were housed in isolation in the hope of providing them with an opportunity for quiet contemplation during which they would develop insight into their crimes. That's not what has happened....
By the 1830s, evidence began to accumulate that the extended solitude was leading to emotional disintegration, certainly in higher numbers than in communal prisons. In 1890 the U.S. Supreme Court weighed in, deploring solitary confinement for the "semi-fatuous condition" in which it left prisoners. The case was narrow enough that its effect was merely to overturn a single law in a single state, but the court's distaste for the idea of solitary was clear. "The justices saw it as a form of what some people now call no-touch torture," says Alfred W. McCoy, a professor of history at the University of Wisconsin at Madison and author of the book A Question of Torture. "It sends prisoners in one of two directions: catatonia or rage."
Modern science has confirmed this, with electroencephalograms showing that after a few days in solitary, prisoners' brain waves shift toward a pattern characteristic of stupor and delirium. When sensory deprivation is added ... the breakdown is even worse. As long ago as 1952, studies at Montreal's McGill University showed that when researchers eliminate sight, sound and, with the use of padded gloves, tactile stimulation, subjects can descend into a hallucinatory state in as little as 48 hours.
Though this article notes some lawsuits over Supermax conditions, I remain amazed that there is far more litigation about a few minutes of possible physical torture that might accompany lethal injection for a few convicted murderer than there is about the indefinite mental torture being suffered by thousands of prisoners in Supermax facilities.
Some related posts:
UPDATE: Steven K. Erickson at Crime and Consequences has this strong post discussing prison conditions and mental conditions. It ends with this notable observation: "What most inmates desperately need are good social peers. I think prison ministries are an excellent idea and have witnessed their positive outcomes. I'm perplexed at the tremendous opposition to them." I could not agree more.
Clinton and Obama, crime and punishment
This intriguing New York Times front-page article on Barack Obama's time at Harvard Law School (my alma mater) got me to thinking about how the two front-runners for the Democratic presidential nomination might approach crime and punishment issues. To my knowledge, neither Hillary Clinton nor Barack Obama has spoken directly and specifically on many crime and punishment issues (and I could not find much on their presidential sites here and here). But there are plenty of back stories to consider:
- For Hillary, of course, it is impossible not to look back on the record of her husband's presidency. Crime in America dropped throughout Bill Clinton's presidency, but prison populations and the use of the death penalty expanded dramatically. As President, Bill Clinton supported and signed legislation that increased the severity of federal and state sentencing terms, broadened the applicability of the federal death penalty, and sharply restricted habeas corpus rights for prisoners. It is unclear whether Hillary will seek to actively show off her toughness on crime (as Bill did), but I suspect she is one of many Democrats who have come to believe — mistakenly in my view — that political success depends on being perceived as extra "tough on crime."
- For Barack, of course, it is impossible not to look at this issue through the lens of race. Though many seem eager to look past the inevitable racial dynamics of crime and punishment in America, I strongly believe (as suggested here and here and here) that these issues run very deep. Especially if (when?) Barack is asked questions about hot-button issues like crack/powder sentencing disparity or the death penalty or racial profiling, his skin color will all but ensure that his answers get extra scrutiny.
Meanwhile, while everyone gear up for next year's primaries, there will likely be some notable crime and punishment debates in Congress. This recent NY Times article predicted hearings on federal mandatory minimum sentencing terms and on the crack/powder disparity. Also, there will surely be a new round of federal sentencing debate after the Supreme Court's decision Claiborne and Rita in June.
Will either Senator Clinton or Senator Obama be a leader in crime and punishment debates in the Senate this year? Or, as I tentatively predict, will they both avoid discussing crime and punishment issues for a long as possible? (Notably, neither Hillary or Barack signed the peculiar Senators' amicus brief in Claiborne and Rita. I wonder if they were asked?)
What should Ohio's new governor do about the death penalty?
The question of this post is the question being asked by the Cincinnati Enquirer along with these three articles covering Ohio's developing death penalty debate:
- Is death row slowing down?
- Lethal injection stirs death penalty debate
- Inmate's hope fades on death row
Of course, the Ohio Death Penalty Information blog is the place to go for ... information about the death penalty in Ohio.
Some recent related posts:
UPDATE: I see these notable article in other major national papers that perhaps can help Ohio Governor Ted Strickland understand the bizarre realities of the modern death penalty:
- From the Los Angeles Times here, "Convict's slow road to death"
- From the New York Times here, ""In the Penalty Phase, All One's Secrets Revealed"
Suggesting topics for capital commentary
I am trying an innovate approach to a final assignment in my Death Penalty Course this semester. In lieu of a final exam, each student is required to prepare a “white paper” directed to a specific (real) decision-making official in a specific (real) jurisdiction. As I explain here, my hope is that students will produce documents that not only justify blog posting, but also could be sent directly to officials in the jurisdiction being examined.
As noted in this post at my class blog, students this week have to decide select jurisdictions to examine. There are, of course, many obvious current choices; at least a dozen states are in the midst of active and robust death penalty debates. But I suspect readers of this blog might have some helpful and distinctive ideas about jurisdictions my students should examine. Student-friendly comments to this post (or at my class blog) would be greatly appreciated.