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.
Brewing Ohio (capital) March madness
ODPI here has set out some very pointed "questions for Ohio Attorney General Marc Dann." The questions show that those hoping Ohio's new administration would embark on a new capital course are getting frustrated by the lack of new developments. And the post leads me to spotlight that some serious March madness is brewing in Ohio in the arena of the death penalty.
As I recently noted here, Texas is the only state in the execution business these days, and the March 20 execution date for Kenneth Biros in Ohio may be the next serious execution date outside the Lone Star State. Of course, Biros was due to be executed in January, but new Ohio Gov. Ted Strickland granted a temporary reprieve to provide more time to review his clemency materials. And, meanwhile, the Sixth Circuit still needs to decide, a case that was argued nearly three months ago, whether and how Biros is permitted to challenge Ohio's lethal injection protocol in federal court.
I fear that, as March unfolds, the Sixth Circuit and Gov. Strickland might get trapped into a game of capital punishment chicken. I sense that Gov. Strickland (and AG Dann) would be eager to have the Sixth Circuit ruling in the lethal injection litigation before deciding to go forward with the scheduled execution. But I also have to think the Sixth Circuit is hoping that Gov. Strickland will do something bold about Ohio's death penalty system before it has to rule on the lethal injection litigation. All I know for sure it that something will have to happen before March 20.
Crawford not retroactive
SCOTUSblog is reporting here that the "Supreme Court ruled on Wednesday that its major ruling on the Confrontation Clause in Crawford v. Washington is not to be applied retroactively, to cases that were final before that ruling came down." I will comment on the opinion, and on what it might mean for Blakely retroactivity, later today. Commentors should feel free to get started ASAP.
UPDATE: Justice Sam Alito authored the Court's unanimous opinion in Whorton v. Bockting, and the Court's work can now be accessed at this link. Notably, there are no separate opinions, and so chack one up for the consensus-interested Chief Justices.
I am sure folks eager to seek Crawford wreck havoc with old convictions are disappointed with this outcome. But, with my sentencing blinders on, I am pleased to see the Court not use up too much of its limited political/legal/reputational capital by sending lots and lots of not-too-ugly old trials into a potential tailspin based on a confusing new rule about the application of the Confontation Clause. (Of course, I say this hoping the Court is prepared to use its political/legal/reputational capital by sending a few ugly old sentences into a potential tailspin.)
The sad (unchanged) politics of federal sentencing
Boston Globe columnist Derrick Jackson has this new strong commentary entitled, "The politics of drug sentencing." Responding to the Claiborne case, here are some highlights of a piece which rightly wonders why Senators filed a brief in support of the government:
Two years ago, the Supreme Court ruled that federal guidelines could be only advisory, not mandatory. But the 100-to-1 [crack-powder] ratio still stands. That may have been what Claiborne's judge in St. Louis was trying to acknowledge in the 15-month sentence.
One might have thought that such history would lead [Senator Edward] Kennedy to side with Claiborne. But [Senators] Kennedy, Hatch, and Feinstein wrote that while they "respect the thoughtfulness with which the court conducted the sentencing of Mr. Claiborne," and while "the court may indeed have been correct that a sentence of 15 months, not 37 or 46 months was warranted in light of the specific facts of the offense and the defendant's background," there is no guarantee "that another court applying the same factors considered by the court below would reach the same or a similar result."
In a phone interview, Christine Leonard, Kennedy's counsel on the Judiciary Committee, said that the senator is actually "comfortable" with Claiborne's 15-month sentence. Kennedy has long been a critic of the 100-to-1 ratio, citing its "massive racial discrimination." Leonard said the judge simply did not provide enough reasons to justify it, leaving the door open for a conservative judge to say, "I won't give him 15 months, I'll give him 15 years." The concern, Leonard said, was that you cannot throw out the baby of sentencing reform with the bathwater of this individual case. "We're not necessarily seeking to disturb the verdict," she said. "We want to maintain a system of fairness and accountability for how [the judge] got there."
That sounds reasonable. But there is also the danger of "fool me once, shame on you. " Kennedy has played ball with the Bush administration before on issues involving massive racial impacts, most notably No Child Left Behind. Kennedy worked with Bush to enact it only to see Bush fund it at a fraction of its needs.
There is also the question of how hard the new Democratic majority in Congress will fight the fear of being seen as soft on crime to end the 100-to-1 ratio. House Judiciary Committee member Marty Meehan of Massachusetts expects chairman John Conyers of Michigan to hold hearings in the spring. Conyers is a longtime opponent of the ratio. Republican Senator Jeff Sessions of Alabama has proposed a 20-to-1 ratio, but 20-to-1 is not grounded in facts , either. "I don't think we'll get it passed in this session," Meehan said. "I would hope that in the next session of Congress there would be the will to change. I wish I could tell you we'll have hearings, the American people would be outraged, and this would pass with bipartisan support. I can't tell you that. But we can start laying the foundation."
What is needed is less a foundation than a wrecking ball.
Some related posts:
Quick capital review
Among the notable news is that Texas had its sixth execution of 2007 yesterday, and this list suggests that Texas may hit 10 total executions before the end of next month. Meanwhile, there has only been a single execution in the 49 other states (in Oklahoma), mostly because of lethal injection debates stalling executions in more than a dozen states. It will be very interesting to see if this pattern persists through the entire year.
Speaking of lethal injection debates, my terrific students have assembled and debated at my DP class blog a lot of interesting materials about executions methods and the role of doctors in executions. Check it out.
Are we really a nation committed to liberty?
This new potent commentary, entitled "'Land of free' is a prison nation," by David Love has me wondering again if the United States really believes in its purported commitment to human liberty and freedom. Here are some highlights:
The land of the free is a nation of prisons. A recent study by the Pew Charitable Trusts has sounded the alarm on the high rate of prison growth in this country.... The United States, a mere 5 percent of the world's population, incarcerates a quarter of the world's prisoners.
What is fueling this prison boom? It boils down to policy choices. More and more people are being incarcerated with longer and longer sentences, particularly for nonviolent offenses. Prisons are overcrowding. Parole is a thing of the past in some places, mandatory minimum sentences are the rule of the day and the concept of rehabilitation has been abandoned. As state budgets tighten and prison spending goes out of control, education and badly needed social services fall by the wayside.
Sadly, opportunistic politicians pander to white America's fear of black and brown criminality. Lawmakers enact "get tough on crime" measures that provide catchy slogans and the appearance of action but do little to provide creative, effective solutions to society's ills. As a result, we have the war on drugs, which has really become a war on communities of color and the poor, with laws punishing crack cocaine users far more severely than those who use powdered cocaine. Prisons have become the new company towns....
Fortunately, there are signs of hope as people question the vast investment in incarceration and seek creative alternatives to the prison industrial complex. The Supreme Court is revisiting how much latitude federal judges should have in sentencing. Two years ago, the high court struck down the mandatory federal sentencing guidelines and made them advisory instead.... Some states are recognizing what a drain the prison craze has on their budgets and are looking for more sensible solutions.
This prison madness is not about serving justice or protecting the public. It is about warped public-policy priorities, a lack of leadership and protecting powerful interests. We cannot make society whole by locking millions of people up and expecting our problems to go away.
Some related posts:
February 27, 2007
Another round of white-collar wondering
Inspired by two new Yale Law Journal's Pocket Part pieces first noted here, the WSJ Law Blog here asks again whether sentences for high-profile white-collar sentences are too long. The comments and this follow-up at Ideoblog are worth reading, though more attention ought to be given to a variation on this question which recognizes the modern realities of the "trial penalty": are sentences for white-collar cooperators too short in light of the extreme sentences generally given to those defendants who are often less culpable but decide to exercise their rights to go to trial?
Some recent related posts:
- Yale LJ Pocket Part explores white-collar sentencing
- An informed suggestion that FSG for white-collar offenses are presumptively unreasonable
Perhaps if Justices Kennedy and Breyer realized the world cares a lot...
about the cert denial in Berger (details here and here), the outcome might have been different. Of course, notwithstanding Justice Kennedy's opinion in Roper and Justice Breyer's willingness to defend reliance on foreign precedents, it is unfair to assert that they would have voted for cert if they knew the cert denied would garner international attention. (Moreover, it is possible that both Justices voted for cert but that there weren't enough other votes.)
Nevertheless, I think it is notable that this afternoon I have been contacted by two members of the foreign press to talk about the Berger case. Specifically, I just finished a long interview with a reporter from Brazil's Vision magazine, and in a few hours I will have the honor of doing an interview with BBC Radio 5Live, which is part of national talk radio in the UK. (Perhaps this is a variation on the Greenhouse effect, since I believe Linda Greenhouse's kind use of my quote in her Berger story has led to my 15 seconds of international fame.)
Some related posts on the Berger case:
- Notable cert news from SCOTUS
- More on the cert denied in Berger
- CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
- Analogizing extreme punitive damages and extreme punitive sentences
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
Fourth Circuit reverses upward departure
The Fourth Circuit today in US v. Dalton, No. 05-5265 (4th Cir. Feb. 27, 2007) (available here), reverses an upward departure. This is a noteworthy event in part because it is a rare event. Here is the start of the opinion:
Thomas Dalton appeals the sentence arising from his conviction for credit card fraud in violation of 18 U.S.C. § 1029(a)(2) (2000). He argues that the district court acted unreasonably in imposing a 105-month sentence, an upward departure of nearly eighty-five percent from the top of the advisory guidelines range. While we decline defendant's invitation to hold any upward departure unreasonable, the degree of departure from the advisory guidelines range requires further explanation and we therefore vacate and remand for resentencing.
Waiting, waiting, waiting...
Lots of folks are apparently wondering what's taking the Libby jury so long. But today's news here of no new SCOTUS opinions has me wondering what's taking the Justices so long on a number of pending criminal justice cases.
With last week's batch of opinions, the Court has now resolved the majority of cases from its October 30 argument session. But the two I have had my eye on James v. US (dealing with criminal history predicates) and Whorton v. Bockting (dealing with Crawford retroactivity) are still in gestation. I assume the fact that these two cases have now taken nearly four months to resolve is a sign of some significant internal debate. But what else might it signify?
Coping with Cunningham
A helpful reader has sent me a recent California Court of Appeal case which, in order to help cope with the Cunningham fallout, holds that California judges may constitutionally find facts to select between concurrent and consecutive sentences. Here is the great start of People v. Hernandez, No. C053061 (Cal. Ct. App. Feb 26, 2007) (available for download below):
The sky is not completely falling in California after Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, __ L.Ed.2d __] (hereafter Cunningham) changed life as we knew it under the determinate sentencing law (DSL). Cunningham did not address consecutive sentences under the DSL, which, as we will explain, can be imposed based on facts found by the trial court, without violating the Sixth Amendment to the United States Constitution.
New (old) data from the USSC
I was very pleased to discover that federal sentencing data junkies have a new treasure trove of information from the US Sentencing Commission: the 2006 Annual Report and the 2006 Statistical Sourcebook. Here's the USSC's terse account of these two important new documents:
The 2006 Annual Report presents an overview of major Commission activities and accomplishments for fiscal year 2005. See the Commission's 2006 Sourcebook of Federal Sentencing Statistics for descriptive figures, tables, and charts, and selected district, circuit, and national sentencing data.
Though the data in the statistical sourcebook covers sentencing outcomes only through September 30, 2006, there are so many intriguing bits of data for anyone eager or able to mine data to really figure out what is happening post-Booker. I hope in the days ahead to have the time to mine some of these data for interesting stories.
A bunch more government Booker wins in the Circuits
Though defendants got a big safety valve win from the Ninth Circuit on Monday (details here), a number of other circuits had notable opinions rejecting Booker arguments raised on appeal by defendants. Here's a very quick review:
- From the Fifth Circuit, US v. Nikonova, No. 05-31093 (5th Cir. Feb. 26, 2007) (available here) (rejecting various intriguing reasonableness arguments including defendant's claim that she developed her "interest in child pornography only after watching an episode of the television show 'Law & Order SVU' and that her interest in the material was 80% motivated by a desire to conduct scientific research and 20% by personal gratification.")
- From the Eighth Circuit, US v. Gonzalez-Alvarado, No. 06-1613 (8th Cir. Feb. 26, 2007) (available here) (reversing below-guideline sentence) and US v. Lynch, No. 06-2894 (8th Cir. Feb. 26, 2007) (available here) (affirming long sentence as reasonable).
- From the Tenth Circuit, US v. Ruiz-Terrazas, No. 06-2138 (10th Cir. Feb. 26, 2007) (available here) (rejecting challenge to sentence when district judge entirely failed to "specifically address the Section 3553(a) arguments Mr. Ruiz-Terrazas pursued in his brief or at oral argument")
February 26, 2007
Shouldn't all executions now be recorded on video?
Tony Mauro has this new Legal Times article about today's SCOTUS oral argument in Scott v. Harris, entitled "Chase Video Steals Show as High Court Hears Case on Police Force." As the title suggests, the article details that, intricate legal doctrines notwithstanding, "what justices kept coming back to was the video of the six-minute chase, taken by dashboard cameras in the police cars involved."
Besides being a great reminder that facts and hard evidence is always important regardless of the court hearing a case, this article has me wondering why we do not expect jurisdictions to make video records of any and all executions. Federal judges in California and Missouri and Ohio and other states, not to mention the special commission working in Florida, must wonder about lethal injection realities and struggle to assess needed reforms without the important information and insights that videos of actual executions would surely provide.
I am not encouraging American execution videos be readily available on the web as is the uncut Saddam execution video (though I do think it strange that I can visually assess an Iraqi execution protocol but not any American execution protocols). Rather my point is simply that, now that so many state-citizen encounters are preserved on video to provide evidence of what transpired, shouldn't a video recording be a standard part of any modern execution protocol?
New DPIC page on religion and the death penalty
Thanks to this post at ODPI, I see that the Death Penalty Information Center has this interesting new web page devoted to "Religion and the Death Penalty" with lots of links to policy statements by religious denominations and all sorts of other goodies. Here is this page's introductory statement:
In recent years, a growing number of religious organizations have participated in the nation's death penalty debate. The purpose of this Web page is to provide access to information regarding the efforts of these faith groups and to highlight recent developments related to religion and the death penalty. The Death Penalty Information Center seeks to provide an overview of this topic and does not endorse any religious viewpoint on this issue.
Some related posts on religion and the death penalty:
- Sister Prejean powerful perspective
- New resource examining religion and the death penalty
- Virginia governor campaign spotlights death penalty and religion
- Remarkable circuit judge speech on capital punishment at mass
More on the cert denied in Berger
Thanks to How Appealing, I see that the AP has a short piece and Reuters has a longer piece on the Berger cert denial. (The case involves first-offender Morton Berger challenging his 200-year prison sentence for possessing child pornography (basics here, commentary here).)
In this earlier post I suggested that, though cert was denied today in the Berger case (recently discussed here), some Ninth Circuit precedents should perhaps give Morton Berger some hope for a federal habeas action. But Orin and Kent in the comments rightly note that Morton Berger's case faces additional hurdle in habeas: the statutory limits on granting relief set out in the AEDPA. (Of course, the Ninth Circuit has been know to find ways around AEDPA. But it was because of habeas headaches that I believed SCOTUS should take up Berger's case on direct review.)
So here is my question to Orin and Kent and anyone else interested in playing along:
What should Berger and his lawyer do now?
Since Berger has already lost in the Arizona Supreme Court, I doubt state collateral review is likely to be successful. I suppose Berger could and should seek a commutation from the Arizona governor or a retroactive change in the law from the Arizona legislature, but the Genarlow Wilson saga highlights that other branches are not so good at doing justice in cases of extreme sentencing. So, is the cert denial the end of the line for Berger?
Major safety-valve ruling from the Ninth Circuit
For some low-level federal drug offenders, the mandatory minimum safety-valve is probably the most important (and least examined) statutory story. Today a Ninth Circuit panel issues an important ruling concerning the safety valve in US v. Mejia-Pimental, No. 05-30604 (9th Cir. Feb 26, 2007) (available here). Here is the opening paragraph (with some cited omitted):
This case provides the occasion to explore the parameters of the statutory safety valve, which grants relief from certain mandatory minimum sentences when five criteria are met. We have previously decided that the fifth factor, which requires a defendant to "truthfully provide[ ]" all his knowledge about the crime to the Government before sentencing, see § 3553(f)(5), is aimed at defendants "who 'have made a good-faith effort to cooperate with the government.'" We have never, however, defined precisely what "good faith" means in this context. We now hold that to demonstrate "good faith," a defendant need only show what the statutory language directs: that by the time of sentencing, he has "truthfully provided to the Government all information and evidence [he] has concerning the offense or offenses." § 3553(f)(5). In this case, the district court construed good faith too broadly in determining that Mejia-Pimental was ineligible for relief. Because the court thus erred in its application of the safety valve and then sentenced Mejia-Pimental with reference to a mandatory minimum term, we vacate his sentence and remand for resentencing.
UPDATE: Though the legal issue in Mejia-Pimental is interesting, I also find the case to be another remarkable example of the federal trial penalty. The defendant in this case was indicted with four co-defendants for participating in a drug conspiracy. As the Ninth Circuit explains, "Mejia-Pimental's co-defendants all pled guilty and received sentences of two years or less." And the defendant's uncle, "whom both parties acknowledge as the 'true and ultimate leader' of the drug conspiracy, was later indicted separately" and received a sentence of 30 months.
So, with the ring-leader getting 30 months and all other co-defendants getting 24 months or less, what sentence did the similarly situated Mejia-Pimental get? 156 months! Making matters worse, Mejia-Pimental apparently tried to plead guilty, but went to trial only after the district court refused to accept his plea deal. Wow! Given this context, I am not surprised that the Ninth Circuit was sympathetic to Mejia-Pimental's legal claims.
Besides proving yet again that prosecutorial charging and bargaining discretion can dramatically undermine efforts to achieve sentencing uniformity, this case has me wondering if any academics or other researchers are trying to quantify the size of the trial penalty in the federal system. My sense is that the "sentencing price" of exercising the right to go to trial has grown even larger after Booker, but this is just a hunch based on a few anecdotal (mostly white-collar) cases. I hope anyone working on this sort of project will let me know of their efforts.
Notable cert news from SCOTUS
The Court also agreed to decide when a gun is "used" during a drug crime, leading to a mandatory five-year sentence. The specific issue in Watson v. U.S. (06-571) is whether a gun is "used" if an individual trades illegal drugs for a gun. The Circuit Courts are split deeply on the issue. The appeal by a Louisiana man, Michael A. Watson, relies primarily upon a 1995 Supreme Court ruling, Bailey v. U.S.
Perhaps as notable for sentencing fans is news that cert was denied in the Berger case (recently discussed here). Here is Lyle's report on this cert denied:
[T]he Court on Monday refused to hear [w]hether it is unconstitutional to impose a criminal sentence that runs for decades -- 200 years, in this instance -- because each count is sentenced separately and each sentence must be served consecutively. The case of Berger v. Arizona (06-349) involved a 200-year sentence based on 20 counts of possessing child pornography.
Of course, this completion of direct review is not the end of the road for the Berger case. I assume that a cert petition will soon be filed in federal court, and I believe there is some notable Ninth Circuit precedents that should perhaps give Morton Berger some hope on habeas. Indeed, I would put the odds at 50/50 on whether Berger gets habeas relief of some sort; if he does (or even if he doesn't) the Supreme Court will likely eventually get another bite at this particular sentencing apple.
Starting to smell the residency restriction coffee
According to this USA Today article, some (but not all) state officiasl are starting to realize that common sense needs to temper broad laws seeking to banish all sex offenders from communities. Here are snippets from an article entited, "Sex-offender residency laws get second look," which also has this accompanying table:
Oklahoma state Rep. Lucky Lamons was a police officer for 22 years. He calls himself a "lock-'em-up kind of guy." Yet Lamons wants to loosen his state's law that bans registered sex offenders from living within 2,000 feet of a school or day care center. He says it forces many offenders to live in rural areas where they are difficult for authorities to monitor. Also, he says, it does not differentiate between real predators and the type of men he recalls arresting for urinating in public, a sex offense in Oklahoma. "We need to focus on people we're afraid of, not mad at," says Lamons, a Tulsa Democrat who wants the rules to focus more on high-risk offenders.
Lamons is among a growing number of officials who want to ease the "not-in-my-backyard" policies that communities are using to try to control sex offenders. In the past decade, 27 states and hundreds of cities have reacted to public fear of sex crimes against children by passing residency restrictions that, in some cases, have the effect of barring sex offenders from large parts of cities. They can't live in most of downtown Tulsa, Atlanta or Des Moines, for example, because of overlapping exclusion zones around schools and day care centers. Now a backlash is brewing.
Several states, including Iowa, Oklahoma and Georgia, are considering changes in residency laws that have led some sex offenders to go underground. Such offenders either have not registered with local police as the laws require or they have given fake addresses. Many complain they cannot find a place to live legally. The push to ease residency restrictions has support from victims' advocates, prosecutors and police who say they spend too much time investigating potential violations.
They're battling a mountain of momentum, however, because residency restrictions remain popular. New or expanded ones have been proposed in 20 states this year. Some legislators are reluctant to pare back restrictions they passed only recently. "We ought to give it time to work," says state Rep. Jerry Keen, author of Georgia's law, passed last year, which bans sex offenders from living, working or loitering within 1,000 feet of where kids gather. Keen, Republican majority leader of the House, says Georgia's rules put children's safety before the convenience of sex offenders.
Some related posts:
- More on the pros and cons of GPS tracking
- The devil's in the details of GPS tracking of sex offenders
Is there a sentencing angle to federal prosecutor purging?
In today's New York Times, Adam Cohen has this Editorial Observer asking "Why Have So Many U.S. Attorneys Been Fired?". Cohen's tentative answer is politics, but I find more intriguing Jeralyn's speculation here at TalkLeft that "prosecutors' views on the death penalty may be a factor."
I feel bad personally for the former US Attorneys if their firing is simply the product of broad political dynamics, but then I cannot resist suggesting that these fired USAs now understand one aspects of being a defendant and defense attorney facing federal sentencing. I often spend time explaining to federal defendants and defense attorneys that sentencing judges and appellate panels may (sometimes? often?) be influenced by various political forces far beyond their control.
Great stuff around the blogosphere
There are lots of great new sentencing posts and links at many of my favorite blogs. Capital Defense Weekly and Sex Offender Issues both have long review posts up now, and many of the weekend links from How Appealing have to do with a variety of interesting criminal justice issues.
But Michael Connelly at Corrections Sentencing has the post of the weekend with this short entry, which quotes the "new speaker of the Oklahoma House of Representatives, a young Republican, a very proud conservative (very proud and very conservative)." As the quote and Michael both highlight:
Like several issues in the news right now, corrections sentencing policy isn't really liberal v. conservative anymore. It's realist v. denier. Broad public sense v. narrow professional (or advocacy) self-interest. There's a solid middle ground to be defined between realist conservatives and realist liberals on our critical needs. It's time to turn off the mikes of the deniers and get on with our business.
February 25, 2007
Questioning prosecutorial discretion ... when blogging
Ed Jagels launched a blog last year. Normally, yet another blog wouldn't attract any attention, much less a story in the local paper. Jagels, however, stands apart from the thousands of people who post their opinions online every day. He's the district attorney of Kern County, and he posted his discourse — a one-page column detailing what he called "shoddy journalism" by the Bakersfield Californian newspaper — on the publicly funded county Web site.
Jagels, the county's district attorney since 1983, isn't the only civic official taking his case to the blogosphere. Santa Clara County's recently retired head prosecutor, San Diego's city attorney and the lead prosecutor in Fayette County, Ky., are among those who also have waged online campaigns tackling issues ranging from news coverage and court decisions to politics and their own accomplishments.
The trend is raising questions about ethical impropriety and legality as well as plain common sense. Those concerns are particularly acute, experts say, if prosecutors are commenting on pending cases. They warn that these public officials may be opening themselves up to lawsuits and appeals — which taxpayers would end up paying for.
"Prosecutors are supposed to stay above the fray. They have to give the public the idea that they are impartial, unbiased," said attorney Diane Karpman, who writes an ethics column for the California Bar Journal. Blogging could impair their "ability to prosecute cases in a fair and objective manner," she said. "It's not seemly, and I don't think it's appropriate," Karpman said.
Some journalists, public relations experts and other attorneys counter that prosecutors have a First Amendment right to publish their opinions — but question the wisdom of their doing so.
Readers probably will not be surprised to hear I heartily endorse every professional use of this amazing medium.
Also wondering about defender caseloads
I think one of many reasons why sentencing doctrines are often under-developed is because overworked defense attorneys often have little time or energy to push overworked judges to explore fully various issues of sentencing law and procedure. To indirectly assess this theory, I would like to see more answers to these questions being posed by Gideon at a public defender:
Caseloads: I know some of you readers work in states other than Connecticut, so I want to conduct an informal poll. What are your average caseloads? How many cases do you carry at a time (on average) and how many cases a year (on average)? This is an exercise purely for me, not for any publication. I just want to get an idea of what PDs in other states are carrying (actually if I have any CT readers, you can leave a comment too!).
Lots of lethal injection inspection news
Lots of news nationwide about on-going reviews of lethal injection protocols:
- In Florida, as detailed in articles here and here and here, the commission reviewing the state's execution procedures has settled on the recommendations it will be making to the Governor.
- In California, as detailed in articles assembled here, a "federal judge Friday refused to guarantee state officials privacy in their discussions over revising the state's method of executing prisoners by lethal injection."
- In North Carolina, as detailed here, state officials "are now trying to work out a compromise with the [state] medical board [to permit a revised execution protocol] that satisfies a federal judge's ruling requiring a doctor to attend executions."
- In Delaware, as detailed here, "a federal judge granted class action status to a lawsuit charging the state's method of lethal injection amounts to unconstitutionally cruel and unusual punishment."
NJ commission endorsing expanding drug courts
According to this article in the Newark Star Ledger, the New Jersey Commission to Review Criminal Sentencing will soon be issuing a major report calling for expanded use of drug courts. Here are more details:
New Jersey should make it easier for drug offenders to get into a special probation program that allows them to avoid prison time by getting rehab and staying clean, a blue ribbon commission will recommend next month. The New Jersey Commission to Review Criminal Sentencing has concluded that expanding the drug courts program could help more offenders deal with the underlying addiction that prompted them to turn to crime in the first place....
More than 4,300 adults entered New Jersey's drug courts since they were expanded to every county in April 2002. They avoid jail by attending a six-month inpatient rehabilitation program and remaining drug-free for five years. The commission, which spent a year examining the effectiveness of drug courts, wants to open them to several hundred more offenders, including addicts who are facing mandatory jail time. It will make its recommendations in a report to the state Legislature....
Since 2001, only 10 percent of the 635 offenders who graduated from a drug court in New Jersey have been arrested again. Several national surveys have found the recidivism rates from offenders who went through drug courts is lower than that of addicted criminals who went to prison or were placed on regular probation. No comprehensive studies have been conducted in New Jersey.
One reason drug courts are gaining favor is because they help alleviate prison overcrowding and save money. The state Department of Correction spends about $36,000 a year to house a prisoner, compared with an average of $10,000 a year for offenders in drug court.
Some related posts about drug court programs and research: