December 29, 2007
Interesting commentary on 2008 politics of death
Writing at Slate, Niko Karvounis has this real interesting commentary entitled "Capital Opportunity: Democrats could safely champion death-penalty reform—why aren't they?". Here are excerpts:
This is the first election in 20 years in which the death penalty isn't a go-to issue for conservatives. For a generation, Republican candidates wielded their fondness for executions like a weapon, and Democrats either summoned their own righteous bloodlust and embraced capital punishment, or avoided the subject altogether. But the Bush years have witnessed a steady shift in how Americans perceive the death penalty, and this time around, it's the last thing Republicans want to talk about. And yet, faced with an opportunity to seize the high ground in a debate they've been losing for decades, the Democrats can't summon the nerve. So, 2008 could go down in history as the year the Democrats had the chance to confront the death penalty—and didn't....
Death-penalty skepticism is so widespread that Clinton, Obama, or Edwards would hardly be going out on a limb if they made it a platform. This year, executions reached a 13-year low, the Supreme Court geared up to examine lethal injection, and earlier this month New Jersey became the first state in 40 years to abolish the death penalty. And yet the candidates aren't biting. Part of the explanation is that Iraq and terrorism have become the new arena in which Democrats must prove their mettle. Another concern may be that so long as 47 percent of Americans support the death penalty, advocating reform is still too risky. But Democrats say that they represent moral leadership and a force for change. That doesn't square with staying quiet about the death penalty until it's universally loathed. And with the race in the primary so close, candidates should be eager to distinguish themselves from their opponents while playing to the base (Democrats are far more likely to oppose the death penalty than are Republicans).
Curiously, the best explanation for the Democrats' reticence on this issue may be the remarkable decrease in crime of recent decades. Only 3 percent of Americans think crime is one of the top two problems facing the nation today, and while that should make it an ideal time to do away with the death penalty — because scare tactics can't be easily exploited — it's actually having the opposite effect. Americans may know that the death penalty's not working. They just don't care enough to insist that something be done about it. And for all of their talk about new forms of leadership, the Democratic candidates aren't going to waste air time or political capital trying to change that. The stage is set for a Democratic candidate to do the right thing on the death penalty, but none of them has the nerve. They might just be wimps after all.
I am not sure I agree with all the analysis in the commentary, but it serves to highlight an issue that will be lurking around the campaigns in 2008. With the Baze lethal injection case to be argued in just over a week, and with a Supreme Court decision likely around convention time, the candidates on both sides are unlikely to be able to avoid death penalty talk throughout the election season.
More great holiday reading from SSRN
Just in time for ringing out 2007, a bunch of new papers are now up at SSRN and should make great holiday reading for criminal justice fans:
- Not Wiser after 35 Years of Contemplating the Death Penalty by Leigh Buchanan Bienen
- New Evidence on the Monetary Value of Saving a High Risk Youth by Mark A. Cohen & Alex R. Piquero
- Respect and Resistance in Punishment Theory by Alice Ristroph
- Dead Wrong by Ronald F. Wright & Marc L. Miller
Tech folks concerned about NJ law banning sex offenders from internet
It is intriguing, but perhaps not surprising, to see a number of tech-orieted website discussing — and mostly complaining about — a new New Jersey law that bans sex offenders from using the internet (noted here). Specifically, check out some of the commentary and comments in coverage from Slashdot and from E-Commerce Times and from Ars Technica (though I suppose you'd better just sign off if you are a sex offender in New Jersey).
Reports from drug war fronts
Despite federal sentencing developments that amount to a small de-escalation of the battle on one front, the war on drugs continues to rage on. This morning, various newspapers provide these reports and commentaries from various drug-war fronts:
- From the New York Times here, "Drug War, Minus Signs, Persists"
- From the Chattanooga Times Free Press here, "Jail more likely for black drug users, study finds"
- From the Atlanta Journal-Constitution here, "Decades later, war on drugs is still a loser"
December 28, 2007
Split Eleventh Circuit affirms below-guideline sentence in another post-Gall ruling
When it rains, it pours (at least when it comes to reasonableness review on a Friday afternoon). Not long after I saw the Fourth Circuit's Pauley decision upholding a below-guideline sentence as reasonable, I discovered a similar (though split) Eleventh Circuit ruling in US v. McBride, No. 06-16544 (11th Cir. Dec. 28, 2007) (available here). Here is how the majority opinion in McBride begins:
In this child pornography case, the government appeals Robert McBride (“Defendant”)’s 84-months’ sentence on the grounds that the district court committed clear error in weighing the § 3553(a) factors and imposed an unreasonable sentence. Because the district court did not commit a clear error in judgment in imposing the sentence, we affirm the sentence.
Here are snippets of the dissent in McBride:
Though I agree with the majority that the district court followed the proper procedures in calculating the Guidelines range and considering the 18 U.S.C. § 3553(a) factors, I disagree with the majority’s conclusion that the sentence imposed is substantively reasonable, and thus, I respectfully dissent....
Though the district court gave lip-service to other § 3553(a) factors, the district court’s downward departure was based largely, if not solely, on the defendant’s childhood, which it deemed to be one of the worst it had ever seen. Some reduction might have been appropriate based on the defendant’s childhood, but a downward departure of almost 50% from the bottom of the Guidelines range was unreasonable when the other § 3553(a) factors, such as reflecting the seriousness of the offense, the need for deterrence, and the need to protect the public, all support a more lengthy term of incarceration than the one given.
Fourth Circuit affirms below-guideline sentence in first big post-Gall ruling
A decision just released by the Fourth Circuit today in US v. Pauley, No. 07-4270 (4th Cir. Dec. 28, 2007) (available here), suggests that at least one circuit got the back-off message that the Supreme Court seemed eager to send to the courts of appeals in Gall and Kimbrough. Here is the opening paragraph in Pauley:
Larry Pauley pled guilty to one count of possessing photographs that contained images of child pornography, 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the district court determined that Pauley’s Guidelines range was 78 to 97 months’ imprisonment. After considering this range in conjunction with the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Pauley to forty-two months’ imprisonment. Finding no abuse of discretion, we affirm the sentence imposed by the district court.
The decision goes on to discuss sentencing review and Gall at some length. And this passage discussing the particulars of the district court's sentencing decision provides a sense of the overall tone of the opinion:
In its consideration of the § 3553(a) factors, the district court correctly found in the exercise of its discretion that other facts warranted a sentence lower than that recommended by the Guidelines range. The district court found that Pauley warranted a lower sentence because he was deeply remorseful and, besides the criminal conduct at issue, he was a good father and teacher. Such considerations were appropriate because they are directly tied to § 3553(a)(1)’s directive that the court consider the history and characteristics of the defendant. 18 U.S.C. § 3553(a)(1). The district court also found that Pauley warranted a lower sentence because he lost his teaching certificate and his state pension as a result of his conduct. Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for "just punishment," id. § 3553(a)(2)(A), and "adequate deterrence," id. § 3553(a)(2)(B). The district court further explained that a lower sentence would allow Pauley to be rehabilitated through the counseling he will receive during incarceration, and the court noted that a lifetime of supervised release would reduce the risk of Pauley becoming a repeat offender and would deter him from future criminal conduct. These are also valid considerations under § 3553(a). In sum, considering all of the factors that the district court viewed as mitigating in their totality, we hold that the thirty-six month downward variance was supported by the justifications necessary to uphold the sentence.
How Ohio executes
As detailed in this AP story, "Lorain County Common Pleas Judge James Burge on Thursday unsealed the 632-page binder of documents on how the state executes death row inmates, revealing everything from the qualifications of execution team members to how the warden signals for the lethal injection drugs to be administered." Here are some more interesting details from the story:
The state has been reluctant to say anything about who serves on the 16-member execution team and, particularly, the medical training received by the three members who prepare an inmate's veins and inject the drugs. The documents show that at least one medical team member is certified by the American Society of Clinical Pathologists' Board of Registry. That organization handles certifications for numerous jobs in pathology and laboratory work, including hematologists, phlebotomists and those who work in blood banks, according to the society's Web site....
Before they join the execution team, any would-be member must pass a rigorous screening process that includes a review of their record with the prison system, gain the approval of the warden and other prison officials and be confirmed by a vote of the current execution team members, according to the documents.... The team members — three of whom have participated in all 26 executions since Ohio resumed executing death row inmates in 1999 — undergo training at least four times a year, according to the documents.
In addition to regular and pre-execution training, medical personnel on the execution team must keep their certifications on injecting intravenous drugs current. The documents turned over by the state reveal several booklets on administering drugs, including finding suitable veins, and how to handle the equipment used in the process.
As the story explains, judge Burge is scheduled on January 8 to "consider whether lethal injection is unconstitutionally cruel and unusual punishment." However, the day before, Monday, Jan. 7, is whether the Supreme COurt is scheduled to hear arguments in its lethal injection case Baze. My first reaction to this story is that these new Ohio documents provide more support for defenders of lethal injection protocols than for opponents.
Some recent related posts:
More details and insights on Rodriguez case from Oregon
I discussed in this recent post the interesting decision in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here), in which a appellate court overruled a sentencing judge's conclusion that a mandatory minimum sentencing term was unconstitutionally severe. The case involving a female counselor convicted of unlawful heavy petting of an underage ward, and this local article reviews some of the case's interesting details:
A 27-year-old Beaverton woman who spent just under a year in prison for sexually abusing a 13-year-old boy at the Hillsboro Boys & Girls Club will have to serve another five years under an Oregon Appeals Court decision released Wednesday.... According to Oregon corrections records, she served from Oct. 13, 2005, until Oct. 3, 2006, and currently is on post-prison supervision....
In September 2005, a jury found Rodriguez guilty of one count of first-degree sexual abuse for pulling a boy's head into her breasts while rubbing his temples and running her fingers through his hair in the downtown Hillsboro club's snack room....
Rodriguez was 24 and the victim was 12 when they met. Rodriguez testified she broke club rules when she and the boy were alone in both of their apartments and on trips to Seattle. He sat on her lap in her office, kissed her on the cheek and they routinely hugged and wrote each other e-mails that professed their love. But Rodriguez emphasized there wasn't anything sexual about their relationship and denied any inappropriate touching.
Over at Sex Crimes, Corey Yung has this effective post discussing the Rodriguez decision. It ends this way:
I'm a bit troubled by the reasoning of the [appeals] court because the charged conduct was so minimal. However, with the many acquitted conduct and relevant conduct decisions around, I've probably become jaded to this sort of thing. Nonetheless, like the crazy child pornography sentences in Arizona, I think these sentences are hard to justify under any theory that includes a notion of marginal deterrence.
I suspect a further appeal to the Oregon Supreme Court by the defendant in this case is likely. I hope that court takes up Rodriguez, in part because the case raises many nettlesome issues surrounding judicial review of severe mandatory minimum sentencing terms.
A year-end perspective on various sentencing-related topics
paThough I have already provided this quickie sentencing year-in-review, I am pleased to see around the web more thorough year-end reviews on various sentencing-related topics:
- The Sentencing Project here has a review of 2007 developments in felon disenfranchisement reform.
- The Drug War Chronicle here has a review of the "Top Ten Drug War Stories of 2007"
- White Collar Crime Prof Blog here gives out "2007 White Collar Crime Awards"
- The Death Penalty Information Center (as previously discussed here) has made available here its 13th annual Year-End Report.
December 27, 2007
Sex offender laws as a "hot topic" for states in 2008
Lawmakers across the country continue to mete out harsh punishments to sex offenders — from satellite tracking to the death penalty — but a handful of states have eased up on penalties in cases of youths prosecuted for consensual sex.
Connecticut, Florida, Indiana and Texas enacted laws in 2007 that make a distinction between sexual predators and adolescents who do not pose a risk, such as those caught in so-called “Romeo and Juliet” relationships, in which one partner is of consenting age and the other is not. The case in Georgia of former high school football star and homecoming king Genarlow Wilson served as a rallying symbol for supporters of more nuanced state laws, and could have lasting repercussions in statehouses nationwide, criminal justice experts said.
Though not discussed in the Stateline piece, this AP article discusses a notable new New Jersey law that might become popular (and also might prompt some legal challenges) in 2008:
New Jersey enacted legislation on Thursday banning some convicted sex offenders from using the Internet. In signing the restrictions into law, Acting Gov. Richard J. Codey, who is filling in while Gov. Jon S. Corzine is vacationing, noted that sexual predators were as likely to lurk at a computer keyboard as in a park or playground. No federal law restricts sex offenders’ use of the Internet, and Florida and Nevada are the only other states to impose such restrictions.
The bill applies to anyone who used a computer to help commit the original sex crime. It also may be applied to paroled sex offenders under lifetime supervision, but it exempts work done as part of a job or search for employment.... Under the new law, convicted sex offenders will have to let the State Parole Board know about their access to computers; submit to periodic, unannounced examinations of their computer equipment; and install equipment on their computer so its use can be monitored.
Second Amendment challenge to felon-in-possession conviction
Current federal law prevents felons from keeping a firearm. [Damon] Lucky, already a felon twice over, was convicted this year of violating that law. His court motion seeks to have that conviction tossed out on the grounds that the law violates the Second Amendment.
At its essence, the question before the Supreme Court in an upcoming case is whether the Second Amendment gives individuals the right to own guns or grants only a collective right to form militias. Even some proponents of the individual rights position say the Second Amendment allows for some gun control, like laws that prevent felons from owning firearms.
[Lucky's lawyer Harry] Batchelder conceded that the motion is a long shot. Still, few defendants in gun possession cases in New York ever raise a Second Amendment argument. Except for Lucky, Mr. Batchelder said, "they all go away quietly."
It's possible, several lawyers say, that Lucky's case is the only challenge currently in court in New York City claiming that the Second Amendment provides for an individual right to own a gun. Mr. Batchelder, an ex-military man, described Lucky as "the recon scout for the Second Amendment."...
In Lucky's legal motion, Mr. Batchelder refers to the gun rights advocates as "Paineists," and the gun control advocates as "Stalinist collectivists." Yet the lawyer says he personally favors gun control. "But my personal views have nothing to do with what I advocate," Mr. Batchelder said. "Otherwise, I wouldn't be advocating for too many people."
Some related posts:
Notable sentencing commentaries
Thanks to How Appealing, I saw these two new notable commentaries on recent sentencing developments:
- From James Kilpatrick here discussing the Supreme Court's work in Gall, "The Score was Justice 7, Law 2"
- From the New York Times here discussing Texas's 2007 execution record, "State Without Pity"
NPR coverage of cocaine developments
NPR yesterday broadcast these two interesting pieces on All Things Considered about the war on cocaine:
Here is the set-up for the second piece, which has a sentencing focus:
Nerika Jenkins was working as a home health care nurse and raising her daughter when she was arrested. She had delivered crack for her drug-dealer boyfriend more than once and was paid for it. She was sentenced to 19 years in a federal penitentiary — twice the time of others in her boyfriend's drug circle. Why? She didn't plead guilty, and her lawyer told her not to cooperate.
December 26, 2007
Fascinating proportionality opinion from Oregon court
A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here). Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:
In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths.... The victim was a member of the club.... On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room. The victim, who had since turned 13, was sitting on a chair. Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....
Defendant was eventually charged with first-degree sexual abuse based on the incident. A jury found defendant guilty.... At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11"). Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive. Numerous family members, friends, and coworkers testified in support of defendant. The court agreed with defendant that a 75-month sentence would be cruel and unusual. The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged." The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person. It imposed a 16-month sentence. This appeal followed....
The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people.... We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people. It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices. By engaging in sexual conduct with the victim, defendant seriously abused that trust.
In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances. It follows that the trial court erred in refusing to impose that sentence.
December 26, 2007 in Examples of "over-punishment", Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Intriguing Tenth Circuit opinion involving victim impact letter
The Tenth Circuit has an interesting opinion today in US v. Rakes, No. 06-4208 (10th Cir. Dec. 26, 2007) (available here) covering a variety of plea and sentencing issues. Here is how it begins:
Joe Rakes challenges his conviction and resulting sentence arising from an alleged conspiracy to impede the investigation and prosecution of a white supremacy group, the Soldiers of Aryan Culture. Specifically, he argues that (1) the evidence presented at trial was insufficient to establish a conspiracy between him and another participant in the alleged scheme; (2) the district court improperly rejected his plea agreement based on an undisclosed victim impact letter; and (3) the district court applied the wrong provision of the United States Sentencing Guidelines (“Guidelines”) in calculating his sentence. While none of these arguments is without force, we ultimately conclude that none merits reversal under our governing standards of review.
Hunting, pardons and a Second Amendment claim?
This local article from North Carolina has me thinking again about whether a few felons might have a viable constitutional claim if (when?) the Supreme Court decides that the Second Amendment protects an individual right to keep and bear arms. Here are excerpts from the article:
As a boy, Gary Don Holt would roam the woods with his father and uncles, hunting for rabbits. It's been more than two decades since he had the chance. Arrested for marijuana possession in Onslow County in 1986, Holt is a convicted felon and must stay away from guns. When his father dies, he'll have to ask his sister to hold on to a family heirloom he has been promised: a shotgun passed from father to son for generations.
Holt's felony at the age of 21 has robbed him of much over the years: jobs, jury duty, promotions. Of all he's missed, not being able to hunt is one of the biggest sacrifices. Holt's father is getting old, and he'd like to shoot at critters in the woods with him once more. Holt, a supervisor at a furniture warehouse in High Point, turned to Gov. Mike Easley to make that happen. Twice, he's asked Easley for a pardon. Twice, Easley has turned him down.
"It was like a sledgehammer hitting me," Holt said. "I've turned out so good. I thought there was no way he could turn me down." Easley has heard pleas like Holt's before. Each year, a dozen or so would-be hunters beg Easley for pardons. Though a pardon wouldn't clean their records, it would give back certain privileges such as the ability to possess a firearm.
Among the recent requests: A Duplin County Boy Scout leader who sold marijuana in college wants the chance to hunt with his teenage son. A Dunn man who said he accidentally shot his girlfriend to death wants to hunt with his children. A 68-year-old homebuilder in Alamance County accused of taking indecent liberties with a girl wants to hunt one last time.
Easley has the power to forgive each one but is frugal with his pardons. Since he took office in 2001, he has pardoned five people, each one a man who had received prison time for crimes that another man committed....
"I feel like I'm still doing time for the crime, for 21 years," Holt said. "Don't you get to be done at some point?" When police arrested him in 1986, Holt said he was immature and smoked pot recreationally. He would give it away to friends. Holt said one of the friends informed on him to get a break on a pending criminal charge. Holt agreed to plead guilty and was put on probation. He said he had no idea the implications of a felony conviction. "I thought it was a slap on the wrist," Holt said. "I was just grateful I wasn't going to prison."
Since then, Holt has put himself through community college and has become a certified emergency medical technician. He teaches martial arts to police officers for free and coaches his 9-year-old daughter's basketball team. His sisters, a colleague, friends and even his ex-wife wrote letters to the governor vouching for his good character. "I feel I'm more than responsible to have a gun," he said.
Without a pardon, hunting is too big a risk. Federal law prohibits felons from owning, using or even handling any type of gun.
As I have suggested in some prior posts about the Second Amendment, I think a felon like Holt might have a viable constitutional defense to a criminal prosecution for going hunting if the Supreme Court ultimately holds that the Second Amendment protects an individual right to keep and bear arms subject only to reasonable regulation in the name of public safety.
In this context, consider the analogy to other Bill of Rights freedoms: does anyone dispute that Gary Don Holt still has a robust right to free speech and to the free exercise of his religion despite his status as a felon? Why should his Second Amendment right to keep and bear arms (assuming it is an individual right and not a collective right) be afforded so much less protection that his First Amendment right unless and until the government can reasonably show he poses a clear threat to public safety?
Some related posts:
Martha Stewart's prison productivity
In what seems like a story from The Onion (but apparently is true), the AP reports here that Martha Stewart on her television show showed off an ornate clay nativity scene she sculpted while serving time at a Federal Prison Camp in Alderson, West Virginia. Here's more:
"Even though every inmate was only allowed to do one a month, and I was only there for five months, I begged because I said I was an expert potter — ceramicist actually — and could I please make the entire nativity scene," she said. Her creations were all fired and glazed at the prison. She completed the effect with tiny artificial palm trees imported from Germany by a New Jersey distributor.
I cannot seem to find a picture of the nativity scene on-line, though I am sure it's classic Martha Stewart (and probably would fetch a tidy sum on E-Bay). Perhaps K-Mart will have some on sale soon for the next holiday season.
As noted in this holiday season post from when Martha was doing her "hard time," I had hopes that Stewart would have become an advocate for sentencing and prison reform after her time in the pen. Sadly, despite having so many varied abilities and being worth over $600 millions dollars and, I do not believe Martha has spent any significant energy, time or money on sentencing and prison reform projects over the last three years.
Thinking about the top sentencing stories for 2007
Over at TalkLeft, Jeralyn in this post rightly takes Time magazine to task for this extraordinarily lame list of the top 10 crime stories of 2007. Of course, this got me thinking about the top sentencing stories of 2007, and I am feeling a bit overwhelmed by all the possibilities. By any measure, 2007 has been an amazing sentencing year, and I am not sure how to rank the significance of all these events:
- New USSC reduced crack guidelines
- USSC decision to to make its new guidelines retroactive
- Supreme Court's post-Booker decisions in Rita and then Gall and Kimbrough
- The "celebrity" sentencings of Conrad Black, Paris Hilton, Lewis Libby and Michael Vick
- Commutation of Lewis Libby's sentence by President Bush
- Hub-bub and eventually striking down of Genarlow Wilson's mandatory sentence
- Continued hub-bub over the former border agent's mandatory sentences
- California and other states' on-going struggles with its prison over-crowding problems
- Sex offender GPS tracking become more common and thus more costly
- Georgia state supreme court striking down state's sex offender residency restriction
- Heightened debate over child rape as a death-eligible offense
- Abolition of the death penalty in New Jersey
- De facto moratorium on executions as a result of Baze case before the Supreme Court
I have listed the death penalty stories last because they likely impact the fewest defendants, even though they tend to get the most media attention. Readers are, of course, encouraged to note in the comments any other big stories I missed in this quick list.
December 25, 2007
Noticing Texas's domination of the death penalty in 2007
Writing in the New York Times, Adam Liptak has this new article headlined "At 60% of Total, Texas Is Bucking Execution Trend." Here is how it starts:
This year’s death penalty bombshells — a de facto national moratorium, a state abolition and the smallest number of executions in more than a decade — have masked what may be the most significant and lasting development. For the first time in the modern history of the death penalty, more than 60 percent of all American executions took place in Texas.
Over the past three decades, the proportion of executions nationwide performed in Texas has held relatively steady, averaging 37 percent. Only once before, in 1986, has the state accounted for even a slight majority of the executions, and that was in a year with 18 executions nationwide.
But enthusiasm for executions outside of Texas has dropped sharply. Of the 42 executions in the last year, 26 were in Texas. The remaining 16 were spread across nine other states, none of which executed more than three people. Many legal experts say the trend will probably continue.
As the Liptak article notes, lower court lethal injection litigation in many states partially explains why Texas dominated in 2007, as I noted in this May post when Texas had conducted 13 of the first 15 executions for the year. (Interestingly, as this execution list from DPIC details, from May through July, only 6 of 17 execution took place in Texas, but thereafter Texas had 7 of the last 10 executions before the Baze moratorium kicked in.)
A different story about a baseball player and drugs
Perhaps even sadder than the Mitchell Report is the story of Willie Mays Aikens's experience with a drug more troublesome than steroids. The Washington Post has this lengthy article telling Aikens's story and the possibility it will be altered by the new crack guidelines. Here is it begins:
Willie Mays Aikens is a part of baseball lore. As a member of the 1980 Kansas City Royals, he became the only man to hit more than one home run in two games of the same World Series. But 27 years after his feat, Aikens languishes in a federal prison in Jessup, Ga., brought low by cocaine addiction and a federal law that mandated long prison sentences for crack cocaine offenses.
From a face on a baseball card, Aikens is now a poster child for what some jurists and civil rights activists say is the absurdity of the difference between the way federal law treats people convicted of crack cocaine offenses and those found guilty of crimes involving powder cocaine. Aikens received more than 15 years for possession of 64 grams of crack -- about the same weight as a large Snickers bar. To receive an equivalent sentence, he would have had to possess nearly 6.5 kilos -- more than 14 pounds -- of powder cocaine.
"You can supply a whole neighborhood with 6.5 kilos," Aikens said by telephone from prison, where he is in the 13th year of his sentence. Activists, lawyers and many federal judges say cases such as Aikens's demonstrate the inequity of cocaine sentencing laws and validate the U.S. Sentencing Commission's recent decision to ease prison time guidelines for crack offenders. The new guidelines will apply retroactively to about 19,500 inmates.
Within hours of the decision, Aikens said he was on the telephone with his lawyers, asking them to request a sentence reduction. They calculated that the new guidelines could shave nearly 2 1/2 years off his sentence. "The disparity, as far as I'm concerned, is totally wrong," said Aikens, a nonviolent offender. "This took me away from my family. My girls were 4 and 5 years old when I was sentenced. Now they're 18 and 19."
The Bush administration fought the new guidelines, saying inmate petitions would overburden the federal court system, and hardened criminals, some violent, might go free. Thousands of cases will have to be litigated again in the courts where they were heard, and "those cases are going to detract from the many cases that are already pending in overworked, understaffed U.S. attorney's offices," said Steve Cook, vice president of the National Association of Assistant U.S. Attorneys. Commissioners said it was highly unlikely that judges would free inmates with a violent past.
Some recent related posts:
Reflecting on a legendary capital defendant
In a year in which New Jersey abolished its death penalty and the Supreme Court has blocked all executions for the last three months, it seems appropriate on this day to reflect on history's most famous capital defendant. Helpfully, Professor Mark Osler has done just this kind of reflecting in a series of papers available on SSRN (which I think are part of a forthcoming book). Here are the papers:
December 24, 2007
The unpaid costs of financial punishments
A helpful reader sent me this link to an effective AP article from the Pittsburgh Post-Gazette that highlights practical realities that surround financial punishments. Here are excerpts:
A young burglar accused of burning down the St. Paul United Methodist Church 13 years ago was ordered to make $2.4 million in restitution. It was, at best, wishful thinking on the part of the court. A new church was built, but no thanks to him. He coughed up a paltry $374.
Across the nation, billions of dollars in restitution, fines and court fees go unpaid, in part because the amounts are often symbolic -- so large that many defendants can't possibly pay up -- but also because many states and courts are ill-equipped to go after whatever money is available.
In Pennsylvania alone, the amount of unpaid fees, fines and restitution stands at a whopping $1.55 billion, including $187 million in Allegheny County, The Associated Press found. Pennsylvania came up with the figure -- its first-ever statewide estimate -- after the AP asked it to run a query through a new court computer network.
"When you have a billion dollars' worth of outstanding restitution orders, you can see that the system is in collapse," said Philadelphia District Attorney Lynne Abraham. "It's a system that's fraught with inadequacies, improper checks and balances, no procedures in place. It's sort of a haphazard little dance that everyone dances around."
That is changing in some places. Many states have begun taking steps to force defendants to pay up, in some cases turning to outside companies for help, or ratcheting up their own in-house collection efforts. In Arizona, the amount of unpaid court costs, fines, fees and restitution totaled $831 million at last count. But the state has managed to bring in close to $90 million since it contracted four years ago with Affiliated Computer Services of Dallas, said Michael DiMarco, consolidated collections manager for Arizona's courts. Missouri and Minnesota also use Affiliated....
The total amount of fines and restitution owed in all 50 states is unclear. A national court organization and the U.S. Justice Department have no comprehensive figures. The $1.55 billion in unpaid debt in Pennsylvania, accurate as of June 30, includes some orders that go back decades. The amount includes $638 million in restitution and $912 million in court costs, fees and fines.
About one-quarter of the total is owed by people who are in prison and generally can afford no more than token payments. Large amounts are owed by ex-cons and others who are struggling to make ends meet....
Prosecutors say collections would increase if judges would declare people who do not pay in violation of their probation, but that often falls behind other priorities, like trying to keep released criminals employed, drug-free and out of jail. To many judges, jailing people for nonpayment smacks too much of debtor's prison.
A bit of holiday campaigning
This post is a holiday pitch asking readers who've not already done so to go over to the ABA's Blawg 100 list and vote here for this blog as among your favorite criminal justice blogs. This is my second campaign post, precipitated by the fact that I have now fallen inthe voting behind a "blawg" that seems to be the product of the MSM.
Local perspective on implementing crack retroactivity
My home-town Columbus Dispatch has this article on Ohio federal courts gearing up for implementing the now retroactive crack guidelines. Here are some excerpts:
At least 224 federal prisoners who were convicted here of crack-cocaine crimes could be released early, according to an estimate by the U.S. Sentencing Commission. A Dec. 11 decision that allows sentences to be reduced won't take effect until March 3, but prisoners already are lining up to apply, officials said.
Phone lines have been ringing steadily with inquiries, said Steve Nolder, a federal public defender. And U.S. District Judge Gregory L. Frost said one inmate's request for early release has been on his desk since Dec. 17.
Last spring, the commission eased the sentencing guidelines for crack-cocaine offenses. On Dec. 11, it voted to make the reduction retroactive so that those already convicted could be eligible for early release.... Local judges said the change was long overdue. "It should have never been a 100-to-1" disparity, Frost said. Decisions on how the changes will be instituted are forthcoming, but it appears an inmate must petition the court for early release, U.S. District Judge Edmund A. Sargus said....
The federal court's Southern District of Ohio, which includes Columbus, Dayton and Cincinnati, has slightly more than the national average of eligible cases. The Northern District, which includes Cleveland, Akron, Mansfield and Toledo, has 396 eligible cases -- the 12th-highest among the federal court's 94 districts.
I was intrigued by the article's assertion, apparently paraphrasing Judge Sargus, that "decisions on how the changes will be instituted are forthcoming." Forthcoming from whom? From the US Sentencing Commission? From district courts through rules? Are there folks at the Justice Department and in defender offices working on protocols for processing these motions for sentencing reductions in these crack cases? In short, this inquiring blogger wants to know who has started working on a game plan for implementing the retroactive crack guidelines.
Some recent related posts:
December 23, 2007
Previewing forthcoming FSR issue on reentry issues
FSR editor Michael O'Hear is putting the finishing touches on the next issue of Federal Sentencing Reporter, which is focused on re-entry issues. Michael's introductory essay for this issue (FSR Volume 20, No. 2) is now available at SSRN here. This piece is entitled "The Second Chance Act and the Future of the Reentry Movement," and here is the abstract:
Recently passed by the House of Representatives with strong bipartisan support and currently awaiting action in the Senate, the Second Chance Act of 2007 (H.R. 1593) would authorize about $340 million in new spending on programs that support the reintegration of returning prisoners to their communities. If enacted, the SCA would represent a new milestone in the growing influence of the prisoner reentry movement, which has focused public attention on the daunting obstacles facing returning prisoners who seek to rebuild their lives as productive citizens. This essay, which introduces a forthcoming issue of the Federal Sentencing Reporter devoted to the SCA and the challenges of reentry, critiques aspects of the SCA, considers the implications of the reentry movement for sentencing, and argues that reentry-based reforms should not be conceptualized primarily as recidivism reduction measures, but as opportunities to fulfill ethical obligations to some of the most marginalized and disadvantaged members of society.
Other recent FSR issues:
- FSR Issue 20.1: Learning from Libby
- FSR Issue 19.5: Assessing Crack-Cocaine and Mandatory Minimum Sentencing Provisions
- FSR Issue 19.4: Information-based Sentencing Analysis
- FSR Issue 19.3: Claiborne & Rita: Reasonableness Review in the Supreme Court
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
Major papers calling for death penalty to be killed off
The Boston Globe and Washington Post have similar editorials today on the death penalty:
- From the Globe, "The Year in Death" ends this way: "The best crime policy isn't the one that sounds the toughest, but rather the one that keeps the most people safe. The death penalty isn't just arbitrary; it also eats up money better spent on deploying police and protecting witnesses. In recognizing this, New Jersey set an example that the 37 states that retain the death penalty would be wise to follow."
- From the Post, "Death Penalty in Review" ends this way: "States, especially those already debating the validity of capital punishment, should get ahead of the Supreme Court argument over whether lethal injection unnecessarily inflicts pain and suffering. The best and simplest way to do that is to abolish capital punishment."
"State prisons out of room"
The title of this post is the headline of this article which spotlights realities facing nearly every state in the Union. This article, however, is from the Cincinnati Enquirer and is focused on Ohio's prison overcrowding problems. Here are excerpts:
Southwest Ohio's two state prisons are crammed with inmates - each at nearly twice the number they were designed to hold. And with the state prison population increasing — it passed 50,000 this year for the first time — prison officials, corrections officers and even the governor wonder how many more people the prison system can handle....
All but six of the state's 32 prisons — including the two prisons in Warren County — are overcrowded. "It is a great concern of mine for reasons involving safety and cost," Gov. Ted Strickland said this month.... But with Ohio's prison population predicted to hit 70,000 in less than a decade, state officials say they need to figure out how to handle those numbers in a system built for 37,610.
The overcrowding is not just a problem for the convicts — killers and other violent criminals whose comfort is probably low on Ohioans' priorities. It matters because: Corrections officers watch more inmates. In 2001, the state's inmate-to-corrections officer ratio was 5.6 inmates to one officer. Today, it's 6.6 to one.
Rehabilitation programs such as sex offender counseling, anger management and GED classes are stretched and have waiting lists. As a result, some convicts are released — sent home to all 88 counties — with the same problems they arrived with, and are more likely to reoffend....
Whatever the solutions, they won't be easy or inexpensive, Ohio prison officials say.... Sentencing laws could be revamped. Sixty percent of the state's convicts are held for a year or less, most on low-level felonies, according to prison officials. Fewer prisoners mean less tax money spent. It costs about $70 a day to house an inmate. At 50,000, that's $3.5 million a day. If the population climbs, as expected, to 70,000, that daily cost climbs to $4.9 million.