March 3, 2007
The Sixth's sense on Booker issues and a notable revelation
I have previously praised the Sixth Circuit for its continuous and typically thoughtful efforts to make sense of the post-Booker world. And the Sixth's continued good sense about post-Booker realities is amply on display in their latest federal sentencing opus, US v. Husein, No. 05-2548 (6th Cir. Mar. 2, 2007) (available here).
Any and everyone closely following the post-Booker federal sentencing world — and especially my 1L students now working on these issues — should take the time to read the Sixth Circuit's extended analysis in Husein. There are important holdings and noteworthy dicta throughout the Husein opinion. And the penultimate substantive paragraph also has this interesting discussion of the pending SCOTUS reasonableness work (background here):
We pause briefly to comment on the status of this case in light of the Supreme Court's pending decision in United States v. Claiborne, 439 F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551 (2006), which will address, among other things, whether proportionality review of outside-the- Guidelines sentences is constitutional in light of Booker. Although this and numerous other courts have found that holding certain cases in abeyance pending Claiborne's resolution is appropriate, this is not one of those cases. Because we conclude that Husein's sentence survives the comparatively more stringent proportionality review ..., we would necessarily affirm even if Claiborne were to hold that form of review unconstitutional as an additional standard improperly grafted onto basic Booker-reasonableness review.
I have previously speculated that circuit courts might reasonably decide it was wise to be "holding certain cases in abeyance pending Claiborne's resolution," but I think this is the first on-the-record statement that a circuit court is exercising its discretion to delay consideration of some post-Booker appeals. Moreover, the flat assertion that "numerous other courts" are also holding cases in abeyance suggests to me that there might be some on-going (and inappropriate?) cross-circuit discussion about how to handle post-Booker appeals while Claiborne and Rita are pending.
Update on Arizona's copious capital craziness
As noted in prior posts here and here, an Arizona county attorney's decision to seek the penalty in nearly half of all first-degree murder cases in his jurisdiction has created a resource crisis that was supposed to spill into a court hearing yesterday. Though the hearing was canceled (details here), this latest article in the Arizona Republic shows that these matters merit continued attention by anyone studying the death penalty administration and/or prosecutorial discretion. Here are some details:
County agencies have until Wednesday to come up with a plan to provide lawyers for defendants who face the death penalty, a judge ruled Friday. The county must furnish lead attorneys for inmates who don't have one, provide lawyers for capital cases in the pipeline and craft a plan to avoid a future crisis, ruled Presiding Criminal Judge James Keppel of Maricopa County Superior Court.
The ruling brought prosecutors and legal-defense groups one step closer to resolving the record number of death-penalty cases in Maricopa County. There are more than 135 death-penalty cases in trial or awaiting trial. In February, about 10 inmates lacked a qualified "first chair" attorney to represent them. The judge praised recent talks among county leaders to fix the problem. "I applaud your efforts to resolve these issues," Keppel said, adding that he will order County Attorney Andrew Thomas and other officials back into court if they miss the deadline. "We need more of this to avoid litigation and its attendant cost to taxpayers."
Over the past two years, Maricopa County has nearly doubled what it spends on defending capital cases, court documents show. From fiscal 2005 to fiscal 2007, capital-case defense costs jumped to $8.5 million from $4.9 million. Most defendants who face the death penalty can't afford to pay for their own defense, leaving taxpayers with the bill.
Recent related posts:
Direct test of constitutionality of the death penalty for child rape
As detailed in this AP report, this past week the Louisiana Supreme Court heard oral argument on the constitutionality of the only death sentence that has to date actually been imposed for child rape. Here are some details:
The only inmate on any U.S. death row for rape contends that his conviction should be thrown out because the Louisiana law allowing the penalty for raping a child is unconstitutional. Chief Justice Pascal Calogero took arguments and briefs under advisement after a hearing Wednesday, and did not say when the high court will rule.
The 42-year-old Harvey man was convicted in 2003 of aggravated rape of his stepdaughter; his name has been withheld from news reports to protect the girl. She was 8 years old when she told Jefferson Parish sheriff's deputies in March 1998 that she had been raped by one of two men who had dragged her from her garage to a vacant house. Eighteen months later, she told her mother that it was her stepfather who had raped her.
The man is the only person convicted under the 1995 law, which allows the death penalty for aggravated rape of someone less than 12 years old. He also is the only person sentenced to death for a crime other than murder since the U.S. Supreme Court ruled in 1977 that murder was the only crime for which the death penalty was constitutional, Nick Trenticosta, a New Orleans attorney who has handled numerous death row appeals, said in 2003. Only three other states -- Montana, Oklahoma and South Carolina -- have passed laws allowing the death penalty for child rape, Martin Stern of the New Orleans law firm Adams & Reese, now representing the man, told the Louisiana Supreme court at a hearing Wednesday. The other states require "aggravating" circumstances, such as a prior rape conviction, for the death penalty to be invoked, but Louisiana does not, he said.
Jefferson Parish Assistant District Attorney Juliet Clark argued that the child's age is an aggravating factor. The appeal contends both that the law is unconstitutional and that the conviction should be tossed because during the trial and penalty phases, District Judge Ross LaDart and Jefferson Parish prosecutors committed numerous "harmful" errors.
As some may know, Louisiana over a decade ago upheld the facial constitutionality of the death penalty for child rapists in State v. Wilson, 685 So. 2d 1063 (1996). The Supreme Court denied cert, 520 U.S. 1259 (1997), but did so essentially on procedural grounds with Justices Stevens, Breyer and Ginsburg specifically noting that the denial did "not in any way constitute a ruling on the merits."
Great readings all around the blogosphere
After a great day at a great conference yesterday, I am in catch-up mode on both the work and home fronts. Thus, rather than try to collect a lot of the coverage of the many on-going sentencing stories, let me just point everyone to other blogs with lots of new goodies:
- Crime and Consequences
- Crime & Federalism
- Corrections Sentencing
- How Appealing
- Sex Crimes
- StandDown Texas Project
Also, everyone should check out this terrifically interesting post at blackprof about imprisonment. Here's a highlight:
A while back, Tocqueville and an associate of his Gustave de Beaumont obtained permission to travel to the United States to examine their newly developed prison system. In 1835, Tocqueville published his famous work Democracy in America, which a significant part spoke of the elucidation of his views on crime and punishment. From his observations, conditions have not altered much from the times of the mass storage of mostly males of color for industrial benefit and without some type of rehabilitation....
Prison in America has not changed since the travels of Tocqueville and still have no benefit to the incarcerated, the community other than generating a criminal and uneducated segment of society that tend to be male and African American. Although many in the so-called hip-hop generation promote a culture that places incarceration on a pedestal, such is far from the truth.
March 2, 2007
Does Lowe deserve a lower sentence?
Over at Volokh, Jonathan Alder has this effective account of State v. Lowe, the Ohio Supreme Court's recent decision upholding the constitutionality of the state's prohibition on incest as applied to consensual sexual relations between a step-father and his adult step-daughter. How Appealing has had a lot of prior coverage of the case here and here.
The case has understandibly garnered attention because of the conviction itself raises an interesting due process liberty issue. But, after reading the case, I could not help but wonder about whether the not-minor sentence imposed might ground a different kind of legal challenge. Defendant Lowe, after pleading no contest, received a sentence of "120 days of incarceration and three years of community control [and was also classified] as a sexually oriented offender." Though perhaps there were some unstated aggravating facts, this seems to me to be pretty harsh sentence for consensual sexual relations between two willing adults.
Live summary blogging from Missouri DP conference
As noted here and here, I am participating today in an exciting conference co-sponsored by Saint Louis University and Washington University School of Law entitled "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri." (This webpage provides more details including the schedule and participant list). I am due to speak on the last panel, and I am greatly enjoying all that is coming before. Here's a quick summary of what I have seen (and thought) through today:
Overview: The conference has assembled an amazing group of folks (including lots of important attendees) to discuss and examine an amazing academic study concerning the operation of prosecutorial discretion in intentional homicide cases over a five-year period in Missouri. I view both the study and the conference to be extraordinarily important for the ways in which it is framing and examining the exercise of prosecutorial discretion in intentional homicide cases in a capital jurisdiction.
Panel 1. Missouri death penalty study: Major findings and recommendations: This panel had the study authors discussing the methodology, findings, and recommendation of the ground-breaking study mentioned above. There are far too many amazing pieces of the study to summarize, but here are the official highlights:
Preliminary analysis indicates that approximately 850 to 900 of [1044 homicide] cases were death-eligible under the statute [but] prosecutors charged death in only 134 cases. Due to plea bargaining, juries were asked to choose between life and death in only 44 cases. Thus, statutory restrictions and jury deliberations explain a fairly small portion of the decisions affecting life and death. Local prosecutors made the majority of those decisions in the exercise of prosecutorial discretion. The data suggest that there are significant disparities across counties in the ways that prosecutors exercise their discretion
Panel 2. Critical evaluation of the Missouri death penalty study: This panel had four diverse law professors expressing various opinions about the methodology, findings, and recommendation of the study. All comments were quite insightful and thought-provoking; they reinforced my view that an the array of normative (and debatable) judgments are implicit in both the study's structure and recommendations. The comments also highlighted how many different "moving parts" there are in any potential capital case, and gave me lots of new thoughts about the possible ways to seek to regulate prosecutorial discretion.
Panel 3. Prosecutors discuss charging practices: This panel has three diverse county prosecutors expressing various opinions about the findings and recommendation of the study. This panel began with one prosecutor doing an amazing job cross-examining the study authors to raise questions about their authors' normative commitments of their ability to really understand all the variables that impact of capital prosecutorial discretion. The other prosecutors in their comments have been stressing not only how many different "moving parts" there are in any potential capital case, but also how dynamic these cases are from the time they get a homicide case from investigators to the time the case goes to trial (or is pled out).
Now what for Ohio's death penalty?
I predicted here March Madness concerning the death penalty in Ohio, and today's split Sixth Circuit ruling in the state's lethal injection litigation (noted here, covered best at ODPI) makes me feel like it is already Selection Sunday. By that I mean that now Ohio death-row defendants and their lawyers need to selection who to complain to about Ohio's lethal injection protocol.
As OPDI explains, the defendants can (and likely will) seek en banc review of today's decision before the full Sixth Circuit. But they also could (and likely should) make their case to Ohio's new Governor and Attorney General that the Sixth Circuit panel ruling denies defendants a chance to fully explore the particulars of Ohio's lethal injection protocol. Also, it seems possible that Ohio capital defendants might seek a means to challenge the state's revised protocol in state courts.
Of course, all of these avenues need to be explored quickly by Kenneth Biros and his lawyers, since Biros is scheduled to be executed in 18 days.
While the blogger is away... the Sixth Circuit shall say...
a whole lot about a lot of sentencing issues. As noted before, I am in the Eighth Circuit's backyard, talking about the death penalty in Missouri (more on that later). But, thanks to How Appealing, I see that my home-town Sixth Circuit released two major rulings today. Here are the reports courtesy of Howard:
Sixth Circuit decides when a death row inmate's federal civil rights claim challenging Ohio's method of implementing the lethal injection accrued: Today's ruling, by a divided three-judge panel, finds the inmate's claim to be time-barred. The dissenting opinion, by contrast, would have held that "the statute of limitations should not begin to run until an execution becomes imminent."
"[T]he plain import of Booker is that a 1-day, below-the-Guidelines sentence, no less than a 7,300-day, above-the-Guidelines sentence, is now a viable sentence for a district court to impose so long as it is authorized by statute and reasonable within the meaning of 18 U.S.C. sec. 3553(a)." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today, in a decision affirming a one-day prison sentence where the advisory Guidelines range produced a sentence of imprisonment of between 37 and 46 months. You can access today's ruling at this link.
WOW! I hope to have time tonight to discuss both of these notable developments after I return from my conference. In the meantime, I hope commentors will share insights.
Florida LI commission report
Thanks to ODPI, you can now access here the Florida Governor's Commission on Lethal Injection's "Final Report with Findings and Recommendations," delivered to Florida Governor Charlie Crist yesterday. As I suggested here yesterday, It will be interesting to see not only how folks in Florida respond to this significant report, but also whether the dozen other states actively struggling with lethal injection issues will look to this report for additional guidance.
March 1, 2007
Amazing resentencing opinion from Judge Presnell
US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame, sticks to his guns in a fascinating Booker resentencing opinion in US v. Williams, 6:04-cr-111(M.D. Fla. Mar. 1, 2007) (available for download below). As detailed in this latest opinion, Williams has a long history, but that does not keep Judge Presnell from explaining how he goes about doing sentencing justice after Booker.
Show me the prosecutorial capital discretion realities
As detailed in this post and this webpage, I have the honor of participating tomorrow in an exciting conference co-sponsored by Saint Louis University and Washington University School of Law entitled "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri." I am heading out to the airport shortly, and thus posting will may be lighter over the next few days while I am in the Show Me state.
If technology permits, I may try to live blog a little bit of the conference tomorrow. Relatedly, I am hoping someone might be live-blogging the other exciting criminal justice conference going on this weekend, the Columbia Law School's symposium on "Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp."
Plea Bargaining: Deal or No Deal
On the CrimProf listserve this morning, Wayne State Prof. David Moran had this great comment about plea bargaining that he graciously allowed me to post here:
After teaching a Crim Pro class this morning about plea bargaining, I was suddenly struck by the thought that for many defendants, the plea bargaining process is very much like the game show, "Deal or No Deal." (If you haven't seen the show, you can stop reading).
Like a contestant on the show, the defendant begins with a case with a highly uncertain value. As pretrial motions and discovery unfold, the defendant learns information that changes the expected value of her case. As the value of her case changes, the prosecutor makes offers whose values reflect those changes, and the defendant receives advice about whether to accept those offers from her family and friends (and that advice is often really, really bad). Ultimately, she almost always accepts an offer instead of going all the way and opening her own case (going to trial).
I really wish I had thought of this analogy before today's class because a telephone hidden under the podium rang in the middle of my class (it turned out to be a robocall from a home contractor). If I had thought of the analogy before, I could have pretended that the call was from The Banker.
Media, money and mayhem
Two very different, but similarly themed, pieces concerning the media and criminal justice issues have jumped to the top of my reading list:
- Here from the Columbia Journalism Review is an article entitled "The Shame Game" that discusses at length the ethical issues raised by Dateline's "To Catch a Predator" series.
- Here at SSRN is Professor Sara Sun Beale's recent piece entitled, "The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness."
The CJR piece is interesting in part because it is written from journalism perspective; Sara's piece is interesting in part because it highlights one of many economic realities that impact criminal justice realities.
Will there ever be an international get-rid-of-200-year-sentences day?
As detailed here by the folks at CUADP, today is International Death Penalty Abolition Day, as March 1 is the "anniversary of the date in 1847 in which the State of Michigan officially became the first English-speaking territory in the world to abolish capital punishment."
I suppose all the murderers sentenced to death in the United States will be heartened to know that there are folks all over the world eager to reduce their sentences. But I cannot help but mark the day by being disappointed that non-violent offenders like Morton Berger and Genarlow Wilson have to endure long prison sentences without having an international day committed to reducing their sentences.
How's my (sex) driving?
Thanks to this post at TalkLeft, I see that Ohio has a new bill to require the worst sex offenders "to drive cars with a special license plate denoting their offense." As this article details, the parents of a child victim are pushing the bill and have big aspirations: "'We want this to go national,' Mark Jackson said. 'They're not just in Ohio, they're everywhere.'"
As share Jeralyn's instinct that this is "just another shaming punishment and one that will have no effect on the number of sex offenses." Moreover, I would hope that any license pate scheme would start with drunk driving before sex offenses. Though I have not seen any detailed studies, my gut tells me that a drunk-diving license plate system could be much more effective in the promotion of public safety than a sex-offender license plate system.
Some related posts:
- Why do we worry so much more about sex offenders than drunk drivers?
- Intriguing reaction to sex offender panic
- Technology versus toughness to combat drunk driving
- Liberty versus security in the war on ... sex offenders
Florida's LI Commission has final recommendations
As details in news reports here and here, "Florida Gov. Charlie Crist will get a slate of recommendations today on improving the state's lethal injection process, ranging from labeling lethal chemicals to making sure the inmate is unconscious during the procedure." This article notes that the report coming today from the Commission on Administration of Lethal Injection, which was created by out-going Governor Jeb Bush back in December after a botched execution, "has more than a dozen other recommendations."
It will be interesting to see not only how folks in Florida respond to this significant report, but also whether the dozen other states actively struggling with lethal injection issues will look to this report for additional guidance. My sense is that both death penalty abolitionists and proponents are not happy with some aspects of the Florida commission's work, which leads me to believe it is probably a pretty good piece of work.
UPDATE: How Appealing has more coverage here.
Notable sentencing commentaries
I see this morning a number of notable sentencing commentaries:
- From Susan Estrich here, "Two Hundred Years For Kiddie Porn"
- From Dave Dayen here, "Prison woes deepen on Schwarzenegger's watch"
- From John Russo here, "Don't abolish death penalty, fix it"
Request for hearings on the border agent case
According to this (partisan?) news report, "[t]hirty-eight Republican congressmen have written to Speaker of the House Nancy Pelosi asking for hearings to investigate the prosecution of Border Patrol agents Ignacio Ramos and Jose Compean, who are in prison for their actions in the shooting of a drug smuggler given immunity to testify against them." Here are more details:
The sharply worded letter, sent Tuesday, is critical of the prosecutor, U.S. Attorney Johnny Sutton, and federal investigators. The congressmen say "serious questions remain unanswered by our federal government over the apparently misguided prosecution of two distinguished U.S. Border Patrol Agents, Ignacio Ramos and Jose Compean." The letter further charges that relevant federal agencies have "delayed or denied" congressional requests for information and that "certain federal investigators have even misled us about the case."...
The letter also was addressed to Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee; Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee; and Rep. Henry Waxman, D-Calif., chairman of the House Oversight & Government Reform Committee. Among the Republican signatories are Reps. Ted Poe and John Culberson of Texas; Duncan Hunter, Dana Rohrabacher and Mary Bono of California; Dan Burton of Indiana; Frank Wolf of Virginia; and Tom Tancredo of Colorado.
As WND reported, Sen. Patrick Leahy, D-Vt., has given Sen. Dianne Feinstein, D-Calif., permission to investigate the prosecution and sentencing of Compean and Ramos. Feinstein, who said she believes the sentences were "extreme," has postponed the Senate hearings, originally scheduled for Feb. 27.
Some recent related posts:
February 28, 2007
Can Bockting be read to support Apprendi and/or Blakely retroactivity?
As suggested here, and by commentors, it is not easy for sentencing fans to reader Bockting's discussion of Crawford's non-retroactivity under Teague and wonder what this all might mean for Apprendi and/or Blakely. My quick take is that I see nothing in Bockting that would seem to undermine the arguments that Blakely may at least be retroactive to Apprendi and that the burden-of-proof aspect of Apprendi might be "watershed" and thus fully retroactive. In fact, for reasons developed in some old posts linked below, I one might even mine passages in Bockting to try to enhance the argument for at least some measure of Apprendi and/or Blakely retroactivity.
Some related posts:
- Colorado Supreme Court says Blakely not retroactive
- Distinguishing finality interests between convictions and sentences
- What wrong with equitable Booker retroactivity in the Ninth Circuit?
- The human face of retroactivity
- Seeking retroactive Blakely "Justice for All"
- More academic arguments for Blakely retroactivity
A ugly amendment reality showcased in the USSC annual report
As noted here yesterday, the US Sentencing Commission has recently released its 2006 Annual Report and the 2006 Statistical Sourcebook. There are lots on lots of interesting Booker-related stories to be found within these materials, my first review led me to notice an ugly and telling reality about the FY 2006 guideline amendments discussed by the USSC in Chapter 2 of its Annual Report.
As shown though bullet points on pp. 7, 11-13 of the Annual Report, the USSC promulgated 17 sets of guideline amendments in FY 2006. And, based on a quick review, it appears that perhaps as many as 16 of those 17 amendment sets may functionally operate to increase federal sentences. Perhaps the USSC should be renamed the United States Sentencing-Increase Commission.