January 31, 2007
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.