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.