December 22, 2007
Disparities, trial penalty and Gall in Skilling reply brief
Thanks to this post at White Collar Crime Prof Blog, I was able to access the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal. The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152:
Skilling’s 24.3-year sentence reflects a profound and unwarranted disparity compared to the (1) uniformly below-Guidelines sentences imposed on eight even more culpable high-ranking executives from major corporations; and (2) the 5.5 year sentence imposed on co-defendant Richard Causey.
In developing point (2), the reply brief makes these points (with some cites omitted) about the relevance of co-defendant disparity:
The [Enron] Task Force says the district court was prohibited from considering the sentence imposed on former Enron CAO Richard Causey because the Guidelines and sentencing statutes concern “nationwide” disparities rather than those among co-defendants. This is not the law. This Circuit has long recognized the district court’s ability to consider co-defendants’ sentences. Similarly, in the post-Booker, advisory-Guidelines regime, courts regularly consider the sentences imposed on co-defendants. Indeed, just this month, the Supreme Court expressly approved of a sentencing court’s giving “specific attention to the issue of disparity when [it] inquired about the sentences already imposed by a different judge on two…co-defendants.” Gall, slip op. at 9....
There is no rational and lawful basis for the 19-year disparity between Causey and Skilling’s sentences. The only ground offered by the district court [Skilling’s decision to exercise his right to trial] was contrary to the Constitution.
Though the Fifth Circuit might not reach sentencing issues in the Skilling appeal, this case is worth watching closely if they do because these kinds of disparity arguments seem especially important in the wake of Rita, Gall and Kimbrough.
Why is Huckabee now trying to seem tough rather than compassionate?
This piece from the Quad-City Times reveals that Mike Huckabee in trying to talk tough now that Mitt Romney has attacked him for his clemency record:
During an appearance Friday in Davenport, Republican presidential hopeful Mike Huckabee confronted criticisms he was soft on criminals while governor of Arkansas, pointing out he’s the only one in the race who’s put people to death.
“If somebody tries to tell you that I’m soft on crime, that would be real news to the 16 people whose executions I carried out,” Huckabee told a packed room during a campaign swing through eastern Iowa. “They didn’t think I was being very soft.”
I find this response extremely disappointing given that, as this new New York Times piece highlights, Baptist minister Huckabee has risen "to the first tier of Republican presidential candidates on the strength of his Christian bona fides." Wouldn't it be more fitting, given his campaign themes, for Huckabee to say that he genuinely believes in the human potential for redemption and that he used his clemency power to help those who seemed to achieve genuine rehabilitation after criminal transgressions?
As the faith-based prison and re-entry movement highlights, religion and progressive criminal justice policies can fit together quite well. Moreover, I believe a truly compassionate conservative would not only grant a lot of clemencies, but also look for ways to reduce spending on "big government" criminal punishments that may produce more human suffering than societal benefits.
Significantly, as this new Houston Chronicle article details, religious beliefs and concerns about fairness apparently were central to Huckabee's clemency record as Governor:
Driven by a religious belief in redemption and questions about the state's legal system, Huckabee paid close attention to clemency petitions, former aides said. He insisted on reviewing every single application, though they came in by the hundreds most months. "He would take these files home with him to the governor's mansion," recalled Rex Nelson, Huckabee's communications director for nine years. "He would read them, study them. He took it very seriously, the political consequences be damned."
Most of Huckabee's clemency decisions were unremarkable; in the vast majority of cases he simply followed the recommendation of the Arkansas Parole Board. But in a small though significant number of cases, he commuted prison sentences for murderers and other violent criminals over the pleas of victims' families, prosecutors and judges. As his reputation for granting clemency spread, applications surged. "We had tons of them," said Cory Cox, who worked for several years as Huckabee's aide in charge of clemency matters. "People, they'd call and say, 'Please, let the governor look at this. We don't know who the next governor is going to be.'"
By every account, Huckabee's approach to clemency was heavily influenced by his religious beliefs. As John Wesley Hall, a Little Rock defense lawyer who filed numerous clemency petitions with the Huckabee administration, put it: "He's a Baptist preacher who believes in redemption and second chances."
But it also reflected Huckabee's broader concerns about the criminal justice system in Arkansas, one of the few states where juries rather than judges impose sentences, which defense lawyers say can produce arbitrary results. Dana Reece, another defense lawyer, told of one client who received a life sentence for selling six grams of crack cocaine. "He'd still be in prison today if it weren't for Governor Huckabee," Reece said. "How many politicians, she asked, would stick their necks out for a crack dealer?"
"This was a political hot potato, and he knew it," Cox said of his former boss. "But he had a conviction that people could better themselves, and he was open-minded to the idea that a poor black man from east Arkansas convicted by an all-white jury just may have been a victim of injustice."
It is sad and ironic that Huckabee was willing to "walk the walk" as a compassionate conservative when Governor of Arkansas, but now he seems to be afraid to "talk the talk." Not only is this a shame for the broader political conversation, it might backfire on Huckabee. Remember how well it worked in 1988when Mike Dukakis tried to look tough by driving a tank.
Some related posts:
- State of the Union and modern sentencing politics
- Is there a "new right" on criminal sentencing issues?
December 21, 2007
Some fitting Eighth Amendment weekend reading
With folks gearing up for the Baze lethal injection case and with a fascinating new cert petition involving a challenge to a 12-year-old killer getting a 30-year mandatory sentence (details here and here), it is perhaps fitting than an Eighth Amendment article catches my eye before I call it a week. Now available here from the University of Pennsylvania Law Review is Youngjae Lee's article entitled "International Consensus as Persuasive Authority in the Eighth Amendment." Here is the abstract:
This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context. First, this Article examines whether meaningful conclusions about one’s desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals. Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral. This Article concludes from this discussion that so long as the Supreme Court stays with what this Article calls the “norm-centric analysis” in consulting foreign sources, the existence of an international consensus on a penal practice should not lead us to lean one way or the other about its constitutionality under the Eighth Amendment. This Article then argues that the Court, given its judicial minimalist tendencies, is unlikely to go beyond its norm-centric mode of analysis and also that abandoning the norm-centric analysis would counsel against consulting types of foreign legal materials, such as international human rights treaties, that do not reveal reasons behind the norms that they endorse. This Article ends by exploring both broader implications and limits of arguments made in this Article for the judicial borrowing debate.
Split Second Circuit decision on breached plea agreement
A split Second Circuit panel today issued a lengthy decision in US v. Griffin, No. 05-4016 (2d Cir. Dec. 21, 2007) (available here), dealing principally with the breach of a plea agreement surrounding an acceptance of responsibility adjustment. Here is how the majority opinion starts:
While there are aspects of this case that may implicate complicated and difficult issues at the unhappy intersection of computer technology and child pornography, we need not and therefore do not address them. The resolution of this appeal hinges on the narrow question of whether the government adhered to the terms of the plea agreement between it and the defendant during sentencing proceedings. Because we conclude that the government breached the plea agreement, we vacate the sentence and remand for resentencing by another district judge.
The dissent in Griffin by Judge Wesley starts this way:
The majority concludes that this case should be remanded to a new district court judge for specific performance of the government’s promise not to object to defendant’s request for an acceptance of responsibility adjustment. It does so in the name of preserving the integrity of the plea bargaining process and public confidence in the federal criminal justice system. I agree with my colleagues that courts must be vigilant in holding the government to its promises. I submit, however, that the majority’s analysis overlooks a crucial fact in this case – defendant’s own prior breach of the agreement. In my view, remand will seriously undercut the very policy concerns the majority seeks to protect. I therefore respectfully dissent and vote to affirm the judgment.
Inmate release plan may make Governor Schwarzenegger "Last Prison Hero"
As detailed in this article from The Sacramento Bee, California Governor Arnold Schwarzenegger appears to be proposing "the largest early release of inmates in U.S. history." Here are the particulars:
According to details of a budget proposal made available to The Sacramento Bee, the administration will ask the Legislature to authorize the release of certain nonserious, nonviolent, non-sex offenders who are in the final 20 months of their terms.
The proposal would cut the prison population by 22,159 inmates and save the cash-strapped state an estimated $256 million in the fiscal year that begins July 1 and more than $780 million through June 30, 2010. The proposal also calls for a reduction of more than 4,000 prison jobs, most of them involving correctional officers. A gubernatorial spokesman said no final decisions had been made.
The administration, which is looking at across-the-board budget cuts to stem a budget deficit pegged as high as $14 billion, is looking for more savings by shifting lower-risk parolees into what officials describe as a "summary" parole system. Such a shift also would require legislative approval.
This story is more evidence, of course, of how economic realities can serve as the most effective and urgent catalyst for sentencing reforms. Disconcertingly, had Schwarzenegger's administration done a better job managing prison growth since he became governor, this new extreme release solution would likely not be needed. This story also puts into perspective the over-wrought hand-wringing by some about the much small number of federal crack offenders that might be released nationwide each year as a result of the US Sentencing Commission's new crack guidelines.
Terrific Baze-ian analysis of lethal injection issues
Writing in the National Law Journal, Marcia Coyle has this very strong piece entitled "Supreme Court Asked to Set a Standard for Lethal Injection." The piece provides an extremely effective review of the issues and arguments facing the Justices as they consider the Baze lethal injection case (which will be argued January 7). Here are some excerpts:
[T]he justices are being asked to give judges a standard for evaluating challenges to lethal injection protocols under the Eighth Amendment. The need for one standard is obvious from the flow of litigation throughout the country that followed the high court's 2004 and 2006 rulings in Nelson v. Campbell and Hill v. McDonough, respectively.
Lower courts have used a variety of standards — "substantial risk of wanton and unnecessary pain," "wanton infliction of pain," "significant and unnecessary risk" of inflicting severe pain" — to decide whether the challenged protocols are "cruel and unusual." Not surprisingly, then, the results in this crucial matter of death procedures have been inconsistent and frustrating to judges, death row litigators and the state defendants....
The lethal injection case, say many scholars, presents difficult questions for the justices for a number of reasons: There is very little method-of-execution case law for them to examine, standards that do exist are vague and the issue involves not just law but medical expertise. There have been essentially three separate lines of analysis under the Eighth Amendment, they say. There is the principle in Gregg and earlier cases that asks whether the punishment inflicts unnecessary and wanton pain. Second, there is the more modern formulation of "evolving standards of decency." And finally, there is the "deliberate indifference" analysis applied only in cases challenging conditions of confinement....
But whatever the justices decide, lethal injection challenges are unlikely to end, said Berkeley's [Elisabeth] Semel. "It all depends on how big a window the Court leaves open."
California commission considering costs of sex offender laws
As detailed in this AP article, an "advisory panel created by Gov. Arnold Schwarzenegger considered Thursday how to fix the sex-offender law passed last year because it fails to say who is responsible for tracking offenders' whereabouts once they complete parole." Here are more details:
The initiative, known as Jessica's Law, was approved by 70 percent of voters in 2006. It stiffens penalties for sex offenders, prohibits released offenders from living within 2,000 feet of a school or park and requires that they wear satellite tracking devices for the rest of their lives.
But the law doesn't specify whether the state, counties or local police departments should have jurisdiction over offenders once they are off parole. It also does not include money to pay for lifetime GPS monitoring and has no penalty for ex-parolees who simply remove the ankle bracelets....
Representatives of county sheriff's and local police departments said they do not have enough money or staff to take over the monitoring program. The corrections department estimates it could cost about $7 per day to monitor each offender with a minimal GPS monitoring system. The state's more extensive GPS system costs about $33 per offender per day, but that includes the cost of the parole agents.
"We don't know what it's going to cost, and the conservative estimates are hundreds of millions of dollars" as more offenders complete parole, said Nancy O'Malley, chief assistant district attorney in Alameda County.
There are so many interesting and telling dimensions to this story: the public's broad support for GPS tracking without concern for the costly particulars; the inevitability of technocorrections being impeded by cost concerns; the willingness of Gov. Schwarzenegger to create a commission to study this issue while he opposed the creation of a much-needed sentencing commission for his state.
Some related posts on sex offender GPS tracking:
Interesting sentencing commentaries from Tennessee
For whatever reason, my Google news searches keep waltzing toward pieces from Tennessee. This morning, these two interesting op-eds from a Memphis paper caught my eye:
December 20, 2007
Tennessee state legislator calling for one-drug lethal injection protocol
In this op-ed a local paper, a prominent state representative in Tennessee calls for the state to move to a new lethal injection protocol in order to avoid having to wait for the Supreme Court's ruling in the Baze lethal injection case from Kentucky. The piece is headlined "Governor should start executions now," and here are excerpts:
The death penalty, when evenly applied, can and does serve as a means to deter horrific crimes from being committed and brings justice to the families of previous crime victims. Unfortunately, since Gov. Bredesen has been in office, the death penalty has been anything but evenly applied....
After U.S. District Judge Aleta Trauger ruled in September that Tennessee's method of lethal injection was unconstitutional, I, along with a colleague, sent two letters to the governor requesting that he not delay executions because of the ruling. We argued that in addition to other methods being available to the state, none other than Judge Trauger herself was also quoted as saying that the administration didn't give enough consideration to the possibility of moving to the one-drug method of lethal injection. In spite of this, the governor has decided to delay any executions pending the outcome of a U.S. Supreme Court case examining the death penalty.
As it stands now, this decision has stalled one execution and placed another in jeopardy.... By the time a criminal in this state reaches the point of execution, they have been afforded every opportunity — appeals, access to lawyers and judicial review — to ensure that their rights are properly carried out and protected. However, in typical style, these criminals have received even more opportunities under Gov. Bredesen's watch.
In light of Judge Trauger's ruling, it is time for Tennessee to explore other options, such as the one-drug method form of lethal injection that has not been challenged in any court. The governor has referred to the suggestion of examining the one-drug method of execution as a "red herring." This couldn't be further from the truth; rather, the one-drug method is a solution — and I believe it is one worth exploring.
The innocent and unfortunate victims of these heinous crimes deserve nothing less than for us to take a second look at the pain these heartless criminals have caused their families. So while Gov. Bredesen works to ensure a merry Christmas for death row inmates, my colleagues and I will continue to remember the victims' families as they suffer through another Christmas without their loved ones.
Bill introduced to overturn USSC's crack retroactivity decision
As detailed in this press release from House member Lamar Smith, there is now officially a bill in Congress to overturn the US Sentencing Commission's decision to make its new crack guidelines retroactive. Here are excerpts from the press release:
Ranking Member Lamar Smith (R-TX) [has] introduced legislation to protect American communities from convicted crack offenders. This bill ensures that an estimated 20,000 criminals will not be released before serving their full prison sentence.
“The American people have the right to know that their homes and communities are safe from dangerous criminals and convicted crack cocaine traffickers,” stated Ranking Member Smith. “The decision by the U.S. Sentencing Commission to apply lowered penalties for crack cocaine offenders retroactively undermines the efforts of law enforcement officials across the nation and raises serious public safety concerns.”...
“To protect the American people and combat the dangerous drug trade, we must ensure that convicted criminals remain behind bars,” concluded Smith. “This bill keeps communities safe from crack cocaine offenders by prohibiting the early release of 20,000 criminals.”
Additional members of the House Judiciary Committee joining Ranking Member Smith in sponsoring this bill include Crime Subcommittee Ranking Member Louie Gohmert (R-TX), Representatives Steve Chabot (R-OH), Howard Coble (R-NC), J. Randy Forbes (R-VA), Trent Franks (R-AZ), Elton Gallegly (R-CA), Jim Jordan (R-OH) and F. James Sensenbrenner, Jr. (R-WI).
As the press release highlights, the only supporters of this bill as of this writing are Republicans. Indeed, with Democrats now controlling both houses of Congress, I doubt that this bill will get passed. However, one notable Democratic Senator, Hillary Clinton, has expressed her opposition to making the new crack guidelines retroactive. So, this bill already has the tacit support of at least one prominent Democratic Senator. It will be interesting to see if she or someone else proposes a similar bill in the Senate and also whether this bill ever gets a hearing or serious traction in the legislative process. Stay tuned.
Here is an abridged account of some of my prior blog coverage on this issue and its politics:
Circuits continue to have no trouble finding within-guideline sentences reasonable
Though Gall and Kimbrough dealt with non-guideline sentences, they indirectly provide further support for the instinct of most circuit courts to affirm nearly every within-guideline sentence as reasonable. (Of course, Rita provides both direct and indirect support for this instinct.) Two more notable circuit court decisions this week bring home this message.
The most extended opinion on these matters is from from the Tenth Circuit in US v. McComb , No. 07-5003 (10th Cir. Dec. 18, 2007) (available here). McComb includes an extensive discussion of Rita and procedural reasonableness. In addition, a shorter treatment of these issues comes today from the Seventh Circuit in US v. Mendoza, No. 06-2999 (7th Cir. Dec. 20, 2007) (available here).
Capital news from SCOTUS (even as it enjoys its 4-week vacation)
The hardest-working court in law business is in the middle of its month-long holiday recess. But, as detailed in new SCOTUSblog posts, that does not mean there isn't any death penalty news coming from the Court. Specifically, check out these two new posts for interesting news on distinct capital fronts:
- US: No confrontation right at sentencing: "The Justice Department has urged the Supreme Court to allow the lower courts to continue to explore — without the Justices' involvement — whether to apply the Sixth Amendment right to confront one’s accusers to sentencing hearings, including those involving the death penalty...."
- Early release of Baze audiotape: "The Supreme Court announced Thursday that it will promptly release the audiotape of the oral argument on Monday, Jan. 7, in Baze v. Rees (07-5439) — the Kentucky case testing the constitutionality of the three-drug protocol for execution by lethal injection...."
After Blakely, the more things change, the more...
they seem to stay the same. Or at least that's what appears to be the reality in Tennessee. A helpful reader sent me this link to the latest careful research providing a post-Blakely analysis of Tennessee sentencing data. As the reader explained: "Nothing earth shattering. Just a little more confident that sentencing practices haven't changed that much with advisory guidelines."
Sixth Circuit affirms two above-guideline sentences
As many have noted, giving district courts broader discretion to go outside the guidelines will not always benefit defendants. Proof of this comes from the Sixth Circuit's pudding of criminal rulings today, in which these two decisions affirm above-guideline sentences:
- US v. Lane, No. 07-5129 (6th Cir. Dec. 20, 2007) (available here)
- US v. Bolds, No. 07-5062 (6th Cir. Dec. 20, 2007) (available here)
Evolving images of a killer and the evolving Eighth Amendment
There are so many interesting facets of the Pittman case (first discussed here), which has now been brought to the Supreme Court. This new National Law Journal article provides the basics and highlights the role of a law school clinic in bringing the case to the Supreme Court:
A group of University of Texas School of Law students has helped file a petition with the U.S. Supreme Court in hopes of getting a South Carolina teenager's sentence reviewed. The petition, filed on Monday, asks the court to review the case of Christopher Pittman, who is serving a 30-year sentence without parole for murdering his grandparents when he was 12. Five third-year law students from the school's Supreme Court Clinic in Austin teamed up with five public policy students and spent the semester working on the case.
In addition, as spotlighted in this post at Pharmalot, the Pittman case has already drawn plenty of attention from folks other than those concerned just with the operation of the criminal justice system:
[If the Supreme Court takes this case] another aspect is likely to get attention — Christopher Pittman was taking Zoloft at the time he used a shotgun to shoot his grandparents, and then set fire to their home in 2001. During his trial four years later, his attorneys argued, unsuccessfully, that the rampage was heavily influenced by the antidepressant, which Pfizer has always denied.... Meanwhile, a [recent] Fox News program, Hannity’s America, ran a segment linking recent mass shootings by teenagers with antidepressants. The episode had its flaws — the reporter failed to include comment from anyone in pharma or at the FDA, and suggested a connection to the recent shooting at the Omaha shopping mall without offering any evidence. Nonetheless, these two items suggest the debate over the proper use of antidepressants won’t go away and, in fact, is likely to remain polarized for the foreseeable future.
While others may be primarily interested in the human and medical stories that surround this case, I am focused on legal issues concerning the interpretation and application of the Eighth Amendment in this (non-capital) context. Of particular interest to me is how the Eighth Amendment is to be applied in non-capital cases in light of the Court's recent capital rulings in Roper and Atkins (and its forthcoming work in Baze). Specifically, I wonder whether and how the legal concept of an "evolving national consensus" that was central in Roper and Atkins should be unpacked here. Against this backdrop, I am especially intrigued by the different images of the defendant that can be in the mind's eye as one thinks about whether the sentence he received is unconstitutional because it would violate societal mores. As a few shrewd commentors have already noted (and as the pictures in this post highlight) the evolving nature of a young man perhaps has already played a role in his fate, and could continue to play a role in the debate over this case.
December 20, 2007 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack
NY Times editorial against mandatories
This morning's New York Times has this strong editorial, entitled "An Idea Whose Time Should Be Past," which calls for the elimination of all mandatory sentencing statutes. Here are excerpts:
The mandatory sentencing craze that began in the 1970s was a public-policy disaster. It drove up inmate populations and corrections costs and forced the states to choose between building prisons and building schools or funding medical care for the indigent. It filled the prisons to bursting with nonviolent drug offenders who would have been more cheaply and more appropriately dealt with through treatment. It tied the hands of judges and ruined countless young lives by mandating lengthy prison terms in cases where leniency was warranted. It undermined confidence in the fairness of the justice system by singling out poor and minority offenders while largely exempting the white and wealthy....
Nowhere is repeal of mandatory-sentencing policies more urgently needed than in New York, which sparked an unfortunate national trend when it passed its draconian Rockefeller drug laws in the 1970s. Local prosecutors tend to love this law because it allows them to bypass judges and decide unilaterally who goes to jail and for how long.
But the general public is increasingly skeptical of a system that railroads young, first-time offenders straight to prison with no hope of treatment or reprieve. In an often-cited 2002 poll by The New York Times, for example, 79 percent of respondents favored changing the law to give judges control over sentencing. And 83 percent said that judges should be allowed to send low-level drug offenders to treatment instead of prison.
As I have suggested before, repealing and even resisting mandatory minimum sentences requires politicians to show courage and leadership to help the public understand the complicated but compelling reasons why crude mandatory sentencing provisions often do more harm than good in a criminal justice system. I am hoping that, in the wake of the Supreme Court and the US Sentencing Commmission showing courage and leadership last week, some elected official will step up to the plate.
December 19, 2007
The intersection of crim law and dispute resolution
Michael O'Hear and Andrea Schneider have posted on SSRN this short and interesting piece entitled "Dispute Resolution in Criminal Law." Here is the abstract:
Although the study of plea bargaining would seem, by its nature, to invite interdisciplinary collaboration between criminal law and dispute resolution scholars, there has been remarkably little cross-fertilization between the fields. In this Essay, we discuss the suitability of conceptualizing plea bargaining as a form of dispute resolution and describe some of the useful things that criminal law scholars might learn from dispute resolution scholars, and vice versa. The Essay, which introduces a symposium issue of the Marquette Law Review devoted to plea bargaining, also briefly previews the other papers included in the symposium.
UPDATE: A helpful reader sent me a note detailing that others are working on the crim/ADR connection:
You may be interested to know that the winning entry in this year's ABA Section of Dispute Resolution essay contest for law students also focused on applying ADR to criminal cases; specifically, the article encourages adaptation of victim-offender mediation to the cases of those who have been exonerated after wrongful convictions. The article addresses, among other things, the anger that victims continue to feel toward those convicted of the crimes against them, even when the evidence of innocence is substantial, and suggests mediation as a tool to heal the anger for both victims and the wrongfully convicted.
Here is the link to the Section of Dispute Resolution website, which has a link to the winning entry.
Another death sentence for child rape in Louisiana
Though many are noting recent declines in the death penalty, there is one state experiencing capital growth in one notable context: as detailed in this news report, Louisiana last week secured another death sentence for aggravted child rape. Here are the particulars:
A man proscutors say used a 5-year-old girl as a sex toy for him and his girlfriend made history Wednesday by being sentenced to die. Richard Davis, a 35-year-old Ohio native, listened but did not make eye contact as each Caddo juror verbally confirmed his sentence. It was only two days ago that the same group of nine women and three men spent 1½ hours deliberating before convicting Davis of aggravated rape for repeatedly sexually assaulting the child from October 2004 to January 2005....
During closing arguments, Davis cried as prosecutors asked jurors to give him the death penalty. "Execute this man," Caddo Assistant District Attorney Lea Hall said as he pointed to Davis. "Justice has a sword, and this sword needs to swing today." Defense attorney Kurt Goines made an impassioned plea for his client's life.... Goines says Davis is not insane but struggles with mental illness, including borderline personality disorder....
Davis' mother, Shelia Davis, said he was physically, mentally and verbally abused as a child and ran away from home at age 15. She begged jurors not to kill him. "Please, he never felt loved." But prosecutors say that's no excuse for the crimes Richard Davis committed. To strengthen their appeal for the death penalty, prosecutors touted criminal behavior that includes the molestation of his son as well as the molestation of at least four teenage girls.
Louisiana's ability to obtain another death sentence for child rape should increase the chances that the Supreme Court will take up the appeal of Patrick Kennedy, the only other person on death row for child rape. Kennedy's petition for cert will be considered in a few weeks by the Justices and his constitutional attack on the death penalty for a non-homicide offense could be heard as early as this Spring.
Some related posts:
- Direct test of constitutionality of the death penalty for child rape
- A capital experiment spreading in the state laboratories
- Analysis of capital child rape laws
- Debating death for child rape
- Missouri Governor calls for child rape to be a capital offense
- Could there be symbolic and practical value in making repeat child rape a capital offense?
Is it gender bias, a good-looks discount, and/or the virtues (or vices?) of jury sentencing?
In this new post, Eugene Volokh flags an interesting case from Texas in which a jury convicted Traci Rhode (pictured here) of murdering her husband, but then sentenced her to probation. Here are the basic details of the crime and sentencing from this local article (with paragraphs reordered below):
[Traci Rhode] maintained her innocence throughout the trial, claiming Scott Rhode shot himself in their bedroom while she showered after a morning walk.
The prosecutors counter that Traci awoke at about 5 a.m. on Oct. 15, 2003, and shot her husband with a .45-caliber handgun while he slept....
The jury that convicted the Fort Madison, Iowa, native of killing her husband in their Brownsville home four years ago also set her free Thursday, to the delight of her lawyer and the dismay of local prosecutors. “I am ecstatic with the jury’s assessment of probation,” said her lawyer, Ernesto Gamez. “It literally legitimizes and justifies their verdict because deep down inside they had a very tough decision to make.”
It took jurors two days to deliver their guilty verdict and another three days to sentence Rhode to 10 years supervised release. Judge Ben Euresti tacked on a $10,000 fine to her punishment and she was released from the Carrizalez-Rucker Detention Center within a few hours.
Eugene comments: "This is pretty puzzling to me; the jury convicted, which means they didn't buy the defense's "husband shot himself" theory. But if the wife deliberately killed him, what's the basis for the probation sentence for a deliberate murderer?" And commentators respond with a variety of viable theories, though this related local article about evidence presented to the jury at the sentencing stage provides additional grist for the speculation mill:
Shane Rhode pleaded with jurors Monday to set his mother free. “I want my mom to come home,” he said and reminded the court that she is the only parent left to him and his two siblings. Shane’s mother, Traci Rhode was found guilty in the murder of the 15-year-old’s father, Scott Rhode. “I want her to come home because I love her,” a tearful Nicholas Rhode, 14, added during a dramatic sentencing phase that continued into the evening.
Of course, in the wake of Blakely, I wonder if readers of this blog think this case shows the virtues or the vices of having juries involved in non-capital sentencing determinations.
SCJC symposium on "The Victim in Criminal Justice"
As detailed on this webpage, the Stanford Criminal Justice Center is sponsoring an interesting looking symposium next month entitled "Rights, Needs, Power: The Victim in Criminal Justice."
According to the website, this "Symposium will explore emerging and evolving issues for victims of crime, including: Victims’ voices in mass violence prosecutions; The central role of victims’ needs in Restorative Justice practices; Victims’ Rights Amendments and the current state of Victims’ Rights Law." As detailed here, an impressive group of speakers are already confirmed for this conference.
Notable plea deal in controversial capital case
As detailed in this AP story, a controversial capital case from Ohio has now been resolved through a plea deal. Here are the specifics:
A man who spent 20 years on Ohio's death row before his sentence was overturned has agreed to a plea deal that will give him his freedom, his attorney said Wednesday. Ken Richey, a U.S. and British citizen, will enter a plea Thursday and return to his native Scotland on Friday, said the attorney, Ken Parsigian.
Richey was convicted of murder 20 years ago in a fire that killed a 2-year-old girl. Prosecutors said Richey set the northwest Ohio blaze to get even with his former girlfriend, who lived in the same apartment building as the toddler. A federal appeals court ruled in August that Richey's former lawyer mishandled his case and ordered prosecutors to try Richey again or release him. The state had been set to try him again in March.
Instead, he will plead no contest to attempted involuntary manslaughter, child endangering and breaking and entering, and be sentenced to time already served, Parsigian said.... Richey has drawn support from members of the British Parliament and the late Pope John Paul II. He was nearly out of appeals until the 6th U.S. Circuit Court of Appeals court ordered a new trial. The court said expert testimony could have contended that the fire wasn't intentionally set.
This article from the Times UK spotlights the international attention that this case has long garnered.
Time for the AFDA webcast
As detailed in this prior post, I am about start an audio webcast now (12noon ET Wednesday) in which I will discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings. Surf here to see how to listen in (free of charge)!
Is probation a fitting sentence for backdating convictions?
In this piece in the Wall Street Journal, Holman Jenkins makes the case for a lenient sentence for Gregory Reyes, who is today scheduled to be sentenced on 10 felony convictions related to options backdating at Brocade Communications. Here is the pitch:
Mr. Reyes didn't benefit from backdating; he didn't have any discernible motive to overpay his underlings who did.... Mr. Reyes's story is not different from those of hundreds of executives who have not been charged and probably never will be charged, including Apple's Steve Jobs. Mr. Reyes's case featured all the ordinary lineaments of backdating, however, plus one: a claim that he conspired with Brocade's human resources department to keep its finance department "in the dark" about the use of so-called lookbacks to price employee options....
As the National Law Journal notes with exemplary precision, "Stock-options backdating is not illegal. It is the failure to properly account for backdating as an expense to the company that got so many in trouble."...
Punishment should fit the crime; dozens of executives have lost jobs over backdating; a few have been asked to disgorge money and sign regulatory settlements that don't require acknowledgment of wrongdoing. Even the trial lawyers have been unable to make a meal out of this scandal, thanks to an absence of demonstrable shareholder harm.
The great flaw in the Reyes prosecution, which was the first of its kind, was the prosecution's attempt to fulfill the media image of backdating, rather than focusing on the venial offense it was. The government has suggested Mr. Reyes should face 10-20 years. Judge Charles Breyer, in a recommendation recently unsealed, proposed 15-21 months. Some law bloggers think it not impossible Mr. Reyes will receive a suspended sentence.
Let's hope so. Because unless we plan to send Steve Jobs and a hundred other executives to jail for backdating, it would be grossly disproportionate to inflict jail on Mr. Reyes.
I am not one of the "law bloggers" referenced in this post, and I am not sure there really is anything that can or should be called a "suspended sentence" under federal sentencing law. That said, I think this pitch is for a sentence of probation or maybe a very brief confinement term that could be satisfied entirely through home confinement.
Given the various intriguing dimensions of this particular case and white-collar sentencing more broadly, I wonder if readers agree that proportionate justice for Reyes means no prison time at all. Here are some questions to ponder in this context: Does the fact that DOJ apparently believes that justice demands decades in prison for Reyes a significant consideration in your analysis? Does the fact that the guidelines suggest more than a year in prison for Reyes a significant consideration in your analysis? Does the fact that the recent Gall decision calls probation a significant restriction on liberty a significant consideration in your analysis?
With this high-profile sentencing only hours away, I am eager to read both predictions and recommendations in the comments.
UPDATE: According to this Reuters article, the sentencing of Reyes was postponed today. The article explains that today "Judge Charles Breyer of U.S. District Court in San Francisco unsealed Reyes' pretrial statements after prosecutors said they needed them to prepare for Reyes' sentencing, which was postponed from Wednesday to an undetermined date."
All the data on death from BJS and DPIC
Now available here from DOJ's Bureau of Justice Statistics is "Capital Punishment, 2006 — Statistical Tables," which presents lots of table withlots and and lots of current and historical data on persons under sentence of death and executed in the United States. Also, this new CNN piece, headlined "Executions drop in '07 as states rethink death penalty," relies on information from the Death Penalty Information Center for this review of the year in death:
A day after New Jersey banned executions, newly released figures show that capital punishment dropped this year to a 13-year low. Forty-two people have been put to death this year, according to the Death Penalty Information Center (DPIC), a Washington-based group that opposes the practice. That figure is down 57 percent from what it was in 1999, when 98 inmates were executed.
Next year's figures are expected to drop further. The Supreme Court is to hold oral arguments January 7 about whether lethal injection protocols in 36 of the 37 states with the death penalty are constitutional.
How Appealing collects here coverage of these data in all the major papers.
UPDATE: The Death Penalty Information Center has now made available here its 13th annual Year-End Report, which has lots of data and other info about the state of the death penalty.
Drugged commentary on the sentencing week that was
Over at FindLaw, Mark Allenbaugh has this new piece titled "A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs." Here is how it starts:
Since the Nixon Administration, our nation has been engaging in a relentless, yet futile War on Drugs — not on crime, but specifically on drugs. This war has not only been costly, but also done virtually nothing to stem the influx of drugs into our nation or Americans' drug use. In fact, some have argued that the War on Drugs has actually created incentives for illicit drug manufacturers to develop new products such as methamphetamine and Ecstasy, as well as to develop better and more efficient distribution channels through Mexico, and perhaps even China.
And yet, despite clear indications that we long ago lost this war (at least as defined by the ways we are fighting it and the rhetoric we use), we mindlessly continue along the same path.
But despite all this despairing history, there now is a glimmer of hope for more sane drug sentencing — in the form of two December 10 decisions from the Supreme Court.
I do not view last week's amazing federal sentencing events as anything close to a referendum or even a significant turning point on the "war on drugs." That said, I do not think it is coincidental or inconsequential that Gall and Kimbrough involved drug offenses. And, as Mark's commentary notes at the end on this commentary, the critical question going forward is "What Will Congress Do?".
December 19, 2007 in Booker and Fanfan Commentary, Drug Offense Sentencing, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (0) | TrackBack
December 18, 2007
AFDA webcast on lastest federal sentencing developments
As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings and its possible aftermath.
Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone. The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:
- Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
- In the drop-down menu that appears, select "Attend A Webcast," then...
- Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907
Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.
December 18, 2007 in Booker and Fanfan Commentary, Booker in the Circuits, Claiborne and Rita reasonableness case, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (3) | TrackBack
A severe juve sentence seeking SCOTUS attention
Attorneys have asked the U.S. Supreme Court to hear the case of a teen sentenced to 30 years in prison for killing his grandparents when he was 12, arguing that the sentence is cruel.... In the brief submitted to the high court late Monday, attorneys from the University of Texas School of Law argued that the 30-year sentence violates Christopher Pittman's Eighth Amendment protection from cruel and unusual punishment.
The adverse ruling from the South Carolina's highest court, which can be found here, rejected the defendant's constitutional challenge by stating, inter alia, that "we do not believe that evolving standards of decency in our society dictate that it is cruel and unusual to sentence a twelve-year-old convicted of double murder to a thirty-year prison term."
The cert petition, which Howard Bashman has made available for downloading via this link, presents these three questions:
I. Is a sentence of 30 years without possibility of parole constitutionally disproportionate as applied to a 12-year-old child?
2. Are the mitigating qualities of youth relevant to whether a 12-year-old's non-capital sentence is constitutionally disproportionate?
3. Does the Eighth Amendment prohibit the imposition of a sentence of 30 years without possibility of parole on a 12-year-old child where the sentencer was absolutely precluded from considering youth as a mitigating factor justifying lesser punishment?
For lots and lots of reasons, I really hope the Supreme Court takes this case. In fact, I think Pittman is a much more important and consequential case than the child rape capital case from Louisiana (Kennedy) that many SCOTUS watchers are watching so closely. But, because capital cases always seem to drawn unique interest from the Justices, I'd probably bet Kennedy is a more likely grant than Pittman. (In my perfect (and very, very unlikely) world, these cases would be consolidated for one mega-argument about the modern scope and reach of the Eighth Amendment.)
Seventh Circuit tries to keep post-conviction attacks in order
Though a small per curiam opinion, the Seventh Circuit in Collins v. US, No. 07-1820 (7th Cir. Dec. 6, 2007) ("published" today and available here), makes many big points for defendants and litigants trying to sort through various avenues for seeking post-conviction relief following a federal conviction and sentence. Here are snippets:
[B]oth the Supreme Court in Felker and this court in several opinions have held that judges must respect the plaintiff’s choice of statute to invoke — whether §2241, §2255, or 42 U.S.C. §1983 — and give the action the treatment appropriate under that law....
A motion in a criminal case — whether nominally under Fed. R. Crim. P. 33, or bearing an ancient title such as coram vobis or audita querela — may be treated as one under §2255, because the caption on a document does not matter... [though] the district judge first must alert the prisoner to the consequences of this step and give him an opportunity to withdraw the request. But §2241 and for that matter §1983 authorize distinct forms of relief in specific courts. Persons who initiate independent litigation are entitled to have it resolved under the grant of authority they choose to invoke.
I have long believed that, in the wake of Blakely and Booker, enterprising lawyers (or even law students) can make a nice career out by figuring out (and helping others effective litigate) strategies for bringing appropriate collateral attacks to unlawful (but "final") federal sentences. This ruling in Collins, as well as the similar recent ruling from the Second Circuit in Richter concerning the writ of audita querela (details here), confirms my belief.
"Interview With an Executioner"
The title of thie post is the headline of this piece at ABC News based on the interview given by Jerry Givens, the former executioner for the Commonwealth of Virginia (hat tip: TalkLeft). Here is how the lengthy piece starts:
Jerry Givens spent 17 years as a professional killer. From 1982 to 1999, he killed 62 people. He was never punished. His work was paid for by the Commonwealth of Virginia.
As the state's chief executioner, Givens pushed the buttons that administered lethal doses of electricity to the condemned. He could even choose how many volts to administer. And he is the first to admit that it was largely guesswork. "If he was a small guy, I didn't give that much. You try not to cook the body, you know. I hate to sound gross,'' he told ABC News in a rare interview.
Only a handful of executioners in America have ever spoken publicly about their experiences, and fewer, if any, have revealed the emotional toll the job can take on a person or the mind-set of the man behind the proverbial mask. Givens told ABC News that his experiences in the death chamber have caused him to change course and oppose the death penalty.
Givens defies the stereotype of the cold-souled executioner. A deeply religious layman, Givens claimed he prayed with many of the condemned men he was about to execute, a bold gesture at odds with the grim, emotionless solemnity with which executions are often portrayed in the movies. He said he'd suggest to a condemned man that this was a last chance to repent and seek forgiveness from God. And he said he'd join the men in prayer. No one's tomorrow is guaranteed, he said.
It takes a (big) village ... to care for kids with incarcerated parents
Especially with crime and punishment issues becoming political issues (for both Ds and Rs), I hope everyone on the campaign trail will read this new commentary from the Christian Science Monitor. The piece is titled "Standing in for prison dads, moms: The number of kids whose parents are in prison has surged. They need caring adults to step in." Here are snippets:
This Christmas, more than 2 million children will not have a parent home for the holidays because that person is sitting in a state or federal prison. These children, whose ranks have grown with the rising prison population, need caring adults willing to mentor them.
In 1995, 500,000 kids had a parent in prison. But since then, as sentencing guidelines have taken effect and probation and parole officers have taken a harder line, more kids are suffering for the mistakes of their parents. That costs them and society, because children of incarcerated parents are much more likely to end up behind bars. (A congressional report in 2000 puts that likelihood at 70 percent)....
A national program called Amachi shows the possibilities of matching caring adults with children of inmates. The effort began in Philadelphia as a public-private partnership in 2000. It went national a few years later and is now in 48 states and 210 cities. It reaches 60,000 children of inmates.
Amachi trains other established volunteer organizations, such as Big Brothers Big Sisters, Boys & Girls Clubs, and Volunteers of America to carry out its program across the nation. These groups in turn tap mainly churches and other religious institutions for volunteers. ("Amachi" is a West African word that means: "Who knows what God has brought us through this child?") The program fits the White House emphasis on federal funding for faith groups that do social work, and Amachi relies heavily on $200 million from the Department of Health and Human Services....
Only results justify continued funding, and Amachi can point to studies to back its claims. A 1995 Big Brothers Big Sisters study shows that a child benefits generally when he or she meets weekly with a mentor over a year. Amachi's own surveys show that two-thirds of their kids improve their grades, behaviors, and school attendance.
Despite Amachi's growth, the need for volunteers is great. Girls are fairly easily matched to women mentors, but there's a long waiting list of boys. The program needs adult males, especially African-Americans.... Wilson Goode, who heads Amachi ..., is testament to the power of mentoring. His dad was in prison as he was growing up, and his high school counselor dismissed college as an option. But Goode's pastor took a special interest in him and helped him get to college. That Goode became Philadelphia's first black mayor, shows the difference a caring adult can make.
More information about Amachi can be found at its website and through its on-line newsletters. Thanks to this commentary, I have now added Amachi to my holiday donation list (details here). In addition, I will now be waiting and hoping for some presidential candidate(s) to pledge to double or triple the funding for Amachi. Even if we increased federal funding for Amachi by 1000 percent, the $2 billion spent on this program in a year would still be less than what we now spend in Iraq each week.
Should never granting a pardon be a point of political pride?
As documented here, now running in Iowa is a TV spot from the campaign of Mitt Romney that attacks Mike Huckabee for being soft on meth offenses and for granting over 1000 pardons and commutations while Governor of Arkansas. The ad also states, as an apparent point of pride, that former Governor Romney "never pardoned a single criminal." Interestingly, the Huckabee campaign has issued this official response to the ad, which includes this notable discussion of clemency issues:
Some Governors are content to simply deny the vast majority of clemency applications without bothering to consider their merit. Governor Huckabee, however, believed that respect for the legal process required that he give them the consideration for which they were entitled....
Very rarely does the public oppose a clemency because almost all are granted for minor offenses, involve reductions in fines, or reduced prison sentences that were longer than the average for a particular crime....
Before the mainstream use of background checks, most people could have some youthful arrest, change their lives and become good, tax-paying citizens without that earlier arrest coming back to haunt them. Governor Huckabee found during his time in office that each year the number of people needing clemency to clear their record increased. Denying their request prevented them from continuing to earn a good living and pay taxes. The majority of the clemency requests he granted were for this reason.
I find the effort of the Romney campaign to make political hay out of clemency issues especially interesting in light of the significant Republican call for pardons for Lewis Libby and for the Border Agents. Also, the ad indirectly suggests that Romney hopes to bring more attention to Huckabee's "Willie Horton" problem in the form of Wayne Dumond, the rapist paroled in Arkansas when Huckabee was governor who murdered a woman after being released (background here and here).
As I have suggested before, various crime and punishment issues will surely play some role in the heated 2008 Presidential campaign. I am hopeful (though not especially optimistic) that excessive tough-on-crime demagoguery by particular candidates will backfire as the general public becomes more informed and balanced in their understanding of a range of criminal justice issues.
Notable media coverage of victims' rights
In the wake of recent Federal Sentencing Reporter issues focused on victims' rights at sentencing (details here and here), I was intrigued to see this new piece from US News and World Report headlined "Giving Crime Victims More of Their Say: A federal law has created tensions in the legal system." Here are snippets from the piece:
Historically, the adversarial legal system has carved out roles in criminal cases only for the prosecutor and the accused. Victims have been relegated to the sidelines unless they were testifying. Although the interests of prosecutors usually align with those of victims, they are not always the same: for instance, when victims want tougher sentences than prosecutors do. Victims' rights advocates hope the changes are just the start and are pushing to put victims on an equal footing with defendants and prosecutors. "What our goal should be is to put the victim back into the position as if no crime had been committed," says Paul Cassell, a former federal judge who resigned this year to advocate for victims.
Crime victims began winning rights at the state level decades ago, but the 2004 legislation brought the protections to the federal level for the first time. Victims now must be notified about court developments. They must be allowed to speak during bail and sentencing hearings. And most important, the law gives them the ability to appeal rulings when they think their rights are being violated.... The Justice Department is even funding three legal clinics, in Maryland, Arizona, and South Carolina, to help victims assert these rights in court.
Some related posts focused mostly on victim input at sentencing:
- Ninth Circuit discusses victim's right to allocute at sentencing
- Interesting opinion on the right of victims to allocute at sentencing
- Shaming, remorse, apologies and victims
- Restitution, victim rights and judicial activism
- New article on "Plea Bargaining and Victims"
Congrats to a co-author
I was so pleased to hear, as detailed in this New York Law Journal article, that casebook co-author, FSR editor and dear friend Nora Demleitner has officially been named Dean of Hofstra University School of Law, effective Jan. 1.
December 17, 2007
Interesting allocution decision from the Ninth Circuit
The Ninth Circuit today in US v. Biagon, No. 06-10479 (9th Cir. Dec. 17, 2007) (available here), has an interesting little opinion on allocution rights. Here is how it begins:
In this appeal, we consider whether the district court violated the defendant’s right of allocution when it denied a motion to close the courtroom for sentencing. We conclude that the defendant’s rights were not violated, and affirm the judgment of the district court.
Judge Kleinfeld concurs in a separate opinion to express concerns about what the majority says and ends his opinion in this way:
We ought not use this case as a vehicle to develop a new rule unnecessary to a decision that may sacrifice other important public interests to the interest in press access.
New Jersey officially kills the state's death penalty
As detailed in this AP story, New Jersey's "Gov. Jon S. Corzine signed into law Monday a measure that abolishes the death penalty, making New Jersey the first state in more than four decades to reject capital punishment." As the article explains, the "measure spares eight men on the state's death row. On Sunday, Corzine signed orders commuting the sentences of those eight to life in prison without parole."
Notably, among those spared is "Jesse Timmendequas, a sex offender who murdered 7-year-old Megan Kanka in 1994. The case inspired Megan's Law, which requires law enforcement agencies to notify the public about convicted sex offenders living in their communities." The AP article also states that the state's action "is being hailed across the world as a historic victory against capital punishment. Rome plans to shine golden light on the Colosseum in support."
This CNN coverage includes quotes from Governor Corzine, which includes this comment: "Society must ask ... is it not morally superior to imprison 100 people for life than it is to execute all 100 when it's probable we execute an innocent?" In answering this question, it is probably appropriate also to wonder whether we are more likely to discover the one wrongfully convicted person when he is on death row with a few others or when he is serving life in prison with hundreds of others. Moreover, as I have stressed in prior posts, I am troubled that in eliminating the death penalty, New Jersey has expanded its use of the penalty of life without the possibility of parole.
Some related posts:
UPDATE: How Appealing here collects other major media coverage of New Jersey's move away from the death penalty.
A sentencing two-fer from the Sixth Circuit
Confirming the reality that last week's amazing events did not change the federal sentencing world too much, the Sixth Circuit this morning affirms two sentences over defense objections. Here are the basics from the start of each opinion:
US v. Carter, No. 07-5551 (6th Cir. Dec. 17, 2007) (available here), starts this way:
Defendant Vernon T. Carter appeals his sentence of 15 months’ imprisonment for filing false income tax returns. At the sentencing hearing, the district court denied Carter’s motion for a downward departure/variance and enhanced Carter’s sentence by two levels for obstruction of justice. Carter raises three arguments on appeal: (1) the district court erred when it denied his motion for a downward departure and/or variance based upon “exceptional family circumstances”; (2) the district court failed to consider adequately a sentence of probation and home detention based on the sentence given to Carter’s niece for similar conduct; and (3) the district court erred when it enhanced his sentence by two levels for obstruction of justice. Because the district court did not err in applying the obstruction enhancement, and because it imposed a reasonable sentence, we affirm.
US v. Smith, No. 06-6458 (6th Cir. Dec. 17, 2007) (available here), starts this way:
Carlton Victor Smith was convicted of bank robbery and sentenced to 405 months in prison following his participation in a scheme that was perpetrated by taking the family of a bank manager hostage and threatening to blow up the bank manager’s husband with a bomb unless the bank manager retrieved money from a bank vault. This court upheld Smith’s conviction and sentence in 2004, but the Supreme Court vacated his sentence in light of United States v. Booker, 543 U.S. 220 (2005). On remand, the district court sentenced him to 396 months in prison. Smith claims that his sentence is procedurally unreasonable because the district court failed to address an argument that Smith made with respect to reducing his Sentencing Guidelines range, and because the district court assertedly disregarded the Sentencing Guidelines and instead relied on the statutory maximum sentences for his crimes. He also argues that his sentence is substantively unreasonable because it is longer than the sentence received by an individual who played an identical role in a related bank robbery in the Eastern District of Tennessee. Because these arguments are without merit, we affirm.
Focus on the world's leader in juve offenders serving LWOP
This article in the Pittsburgh Tribune-Review, headlined "Pa. leads nation in sentencing minors to life," starts this way:
Pennsylvania has sent more juveniles to life in prison without the possibility of parole than any other state or foreign country, a recent study shows. According to "Sentencing Our Children to Die in Prison," a study released last month by the University of San Francisco's Center for Law and Global Justice, 433 Pennsylvania inmates were sentenced to life without parole for crimes they committed as minors.
That means nearly one-fifth of the country's 2,381 juvenile lifers were sentenced in Pennsylvania. The only other country with juvenile lifers is Israel, which has seven, according to the study.
Some related posts:
- Using Roper's focus on age in post-Booker sentencings
- California considering eliminating LWOP for juveniles
- More examination of juves serving LWOP terms
- Forthcoming PBS program "When Kids Get Life"
Reflections on crack sentencing reform realities
Articles today in the Chicago Tribune and the New York Times provide fitting accounts of why persons interested is significant sentencing reforms should not get too jazzed about last week's amazing federal sentencing events. James Oliphant's Tribune article is headlined "New drug rules won't crack many jail doors," and it starts this way:
When the U.S. Sentencing Commission last week reduced sentences for imprisoned crack cocaine offenders -- reversing years of policy that treated crack far differently from powder cocaine -- the Justice Department and police groups bitterly criticized the action, warning of a flood of criminals rushing out onto America's streets....
But many experts say the reality is not so dramatic. Fewer than 3,000 prisoners nationwide will be immediately eligible for the relief. All have already served considerable time. Each eligible prisoner will have to petition the court for freedom -- and the Justice Department can oppose those petitions. Few offenders with violent histories are likely to be released.
Adam Liptak's Times column is headlined "Whittling Away, but Leaving a Gap," and it starts this way:
There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.
The net effect: tinkering. The United States justice system remains, by international standards at least, exceptionally punitive. And nothing that happened last week will change that.
December 16, 2007
Seeking capital punishment predictions for 2008
As I may document in future posts, 2007 was quite a year for the death penalty. Notably, my prediction in early January that we would likely have less than 46 executions because of lethal injection litigation proved prophetic. But I did not expect that the year would end with New Jersey becoming the first state to legislatively abolish the death penalty in four decades. Building on these developments, this Reuters article tries to predict the capital future:
New Jersey's abolition vote this week highlights scrutiny of the death penalty in America, and analysts say it could be a small step in the direction of an eventual nationwide ban. But with capital punishment still on the books in 36 states, a conservative majority on the Supreme Court, and broad political support for putting the worst offenders to death, the road to abolition will be long.
"Ultimate abolition is indeed a long way off," said Stuart Banner, a professor at the UCLA School of Law and author of "The Death Penalty: An American History." "I'd be very surprised if the (Supreme) Court casts any doubt any time soon on the constitutionality of capital punishment in general."
New Jersey on Thursday became the first state legislature since the 1960s to abolish the death penalty. Coming on top of an unofficial moratorium on executions, some had questioned whether the move by New Jersey was a step toward national abolition. The unofficial moratorium has been in place since just after the Supreme Court said on September 25 that it would decide an appeal by two death row inmates from Kentucky arguing that the three-chemical cocktail used in lethal injections inflicted unnecessary pain and suffering. One convicted killer was executed in Texas hours later but none have been since then.
Though I am prepared to predict that the Baze litigation will ensure another year of relatively few executions, I am not sure what else we should expect in this arena in 2008. I'd be grateful if informed (or even uninformed) readers might share their predictions.
A sober (and caffeinated) look at GPS tracking realities
This week brought two strong pieces from Seattle ("where coffee reigns") that thoughtfully discuss the realities of the hottest development in technocorrections: GPS tracking. Here are links and excerpts from the pieces.
From the Seattle Post Intelligencer here, "GPS for state sex offenders gets split verdict":
More than 40 states use the Global Positioning System to track offenders. At least 15 require some kind of lifetime monitoring. In California, voters passed a punitive law last year requiring all felony sex offenders -- about 4,000 people -- to wear a tracker for life.
"We have so much business that we can hardly keep up with manufacturing. We're exploding," said David Segal, vice president of software development for Florida-based Pro Tech Monitoring, the country's main provider of GPS correctional trackers.
In Washington, tracking was a largely unfunded, little-used program until September, when Gov. Chris Gregoire ordered immediate funding for it.
From the Seattle Times here, "Are GPS devices for sex offenders worth it?":
More than 20 of the state's most violent sex offenders are tethered to tracking devices that document their locations within a half-block. The devices are at the heart of Gov. Christine Gregoire's promise to keep people safe from sex predators.
On Wednesday, the governor asked the state Legislature for $8.2 million to better monitor sex offenders. Nearly $1 million would go toward purchasing the tracking sets for the Department of Corrections (DOC); about $5 million would pay for in-person visits of sex offenders by law enforcement.
But community corrections officers doubt whether the $1,500 devices — ankle bracelets, locator boxes designed to be strapped on people's belts and charging units — would ensure that sex offenders are abiding by the terms of their parole.
Recapping a remarkable sentencing week
Though I still think the weeks surrounding the Supreme Court's 2004 Blakely decision may have been the most remarkable for sentencing developments in modern times, this past week certainly was remarkable for so many reasons. Here is a abridged review of what make this past week so noteworthy:
SUPREME COURT BOOKER RULINGS AND COMMENTARY
- SCOTUS rules for the defendants in Gall and Kimbrough!!
- A quick take on winners and losers in Gall and Kimbrough
- A quick Justice-by-Justice review of Gall and Kimbrough
- FSG are truly advisory (even in crack cases), but what about....
- Judicial reactions, formal and informal, to Gall and Kimbrough
- The weighty guidelines question after Gall
- One (of many) tough questions after Gall and Kimbrough
- Is Kimbrough as big as Brown v. Board of Ed?
SENTENCING COMMISSION CRACK RETROACTIVITY AND COMMENTARY
- A preview of USSC crack retroactivity vote
- USSC unanimously votes to make new crack guidelines retroactive...
- Official USSC press release on crack retroactivity
- USSC's "Reader-Friendly" version of retroactivity amendment
- Some legal particulars around crack retroactivity implementation
- Latest crack retroactivity FAQ from FAMM
- "Give them McDeath, not McLiberty"
NEW JERSEY DEATH PENALTY ABOLITION DECISION
- New Jersey on path to kill its moribund death penalty
- NJ legislature passes bill to abolish state's death penalty
- Media wonders "what if we can no longer obsess about the death penalty"
CLEMENCY DECISIONS AND COMMENTARY
- A new batch of Bush pardons and a crack commutation
- Another bipartisan call for President Bush to commute border agent sentences
- Republican Kentucky Gov. grants many pardons and commutations
NOTABLE INDIVIDUAL SENTENCING DECISIONS
- Michael Vick gets 23 months in prison
- Conrad Black gets 78 months (after a favorable guideline ruling)
- Scooter Libby drops appeal ... is a holiday pardon on the way?
- SCOTUS also rules for the defendant in Watson
- Sixth Circuit affirms 1,772-month over Eighth Amendment challenge