January 1, 2008
Chief seeking more love and more money in the New Year
As all true law geeks know, the first few minutes of th new year always brings an end-of-year report on federal judiciary from the Chief Justice of the United States. The report from CJ Roberts this year, which is available here, urges appreciation for the work of the American judiciary, seeks more effective inter-branch communication, emphasizes the importance of judicial integrity, and calls for passage of pending legislation to increase judges' pay. Lyle Denniston provides a summary here at SCOTUSblog, and How Appealing assembles media coverage here.
Of course, I'm always interested in the Chief's report on caseload developments, which are still reflecting the impact of the Court's January 2005 Booker decision. Here are a few caseload details from the year-end report:
The number of appeals filed in the regional courts of appeals in fiscal year 2007 decreased by 12% to 58,410. All categories of appeals, except bankruptcy appeals, fell. The decline of the past two years was the result of a reduction in appeals from administrative agency decisions involving the Board of Immigration Appeals (BIA), as well as decreases in criminal appeals and federal prisoner petitions brought about by the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). The decline is the second successive drop after the record level set in fiscal year 2005.
Across the nation, the number of criminal appeals dropped by 14% to 13,167 filings, approaching levels that existed before criminal appeals soared in response to the decision in Booker....
The number of criminal cases filed in 2007 rose by 2% to 68,413 cases, and defendants in these cases increased 1% to 89,306. The median case disposition time for defendants declined slightly from 7.1 months in 2006 to 7.0 months in 2007, yet this disposition time remains 21 days longer than in 2004, an indication of the time that courts have needed to process post-Booker cases.
December 31, 2007
Intriguing Third Circuit sentencing loss closes out 2007
Though federal defendants had some big sentencing wins in the US Supreme Court with Gall and Kimbrough at the end of 2007, it is perhaps fitting that the year ends with a circuit loss for a defendant in US v. Williams, No. 05-4153 (3d Cir. Dec. 31, 2007) (available here). In Williams, a Third Circuit panel splits over whether the defendant breached his plea agreement by arguing for a criminal history departure: the majority holds that he did and remands for resentencing before a new sentencing judge; the dissent complains that "here there was no breach in arguing for a guideline departure on the criminal history and defendant presented his argument for a variance and mitigation under the guidelines with the permission of the District Court."
Both opinions in Williams make for interesting reading, and any circuit ruling about sentencing and plea agreements are consequential given the frequency of pleas with stipulated sentencing terms. In this context, I found especially notable the dissent's expression of concern by enforceability of certain plea terms in the wake of Booker:
I must also question whether a plea agreement to forgo argument on a crucial phase of sentencing, consideration of the § 3553(a) factors, should be enforceable. To deny the sentencing judge the ability to carry out his statutory duty and responsibility through consent of the parties seems to undermine the sentencing procedure Congress has mandated. The sentencing judge in this case chose to hear argument under § 3553(a), a ruling that was responsible and proper.
I have argued in a number of prior posts that Booker might cast new doubts on the validity of appeal waivers and other plea agreement terms that can undercut the policies reflected in the Sentencing Reform Act. To my knowledge, however, this dissent passage presents the first judicial suggestion that some plea terms might be unenforceable.
NY commentary assails "Ebenezer Spitzer"
Especially in the wake of the clemency debate between Republican candidates Romney and and Huckabee, I found interesting this local commentary assailing New York Governor Elliot Spitzer's early clemency record. Here is how the commentary starts:
A Quinnipiac University poll released before Christmas indicated that nearly half of New York voters—47 percent—believed that Gov. Eliot Spitzer could become a ‘kinder, gentler governor’ With Spitzer’s approval rating at it’s lowest level ever, almost two thirds of the populace dissatisfied with his job performance, Spitzer had a chance over the holidays to improve his position with the voters with the granting of executive clemencies.
But, as the scandal of Troopergate continues to dog him with allegations now surfacing that his office may have intentionally purged e-mails and subpoenas issued commanding his presence before a Senate investigations committee, Spitzer gained himself even more criticism with his failure to grant any executive clemencies this year.
Instead of improving his image and working to become a “kinder, gentler governor”, it’s was “Bah Humbug!” for Spitzer who apparently decided to be more like Ebenezer Scrooge and The Grinch Who Stole Christmas, supporting the poll findings that 30 percent of voters don’t think it’s possible for Spitzer to lighten up.
Some recent related posts:
scholarly bloggy insights
Writing at The Volokh Conspiracy, Orin Kerr has this terrific post about the Baze lethal injection case to be argued in the Supreme Court next week. Here is an excerpt:
I think that Baze is an unusual Supreme Court case for three different but related reasons: legal, factual, and strategic.
First, as a matter of law, there is relatively little legal precedent on point, and the precedent that exists can be interpreted in different ways. The Court has said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986). But how do you measure what is necessary — necessary compared to what alternative?
Second, because everyone agrees that the current method of execution is painless if the procedure is carried out without error, the litigation is largely over the somewhat novel question of risk of error — how much of a risk of error is too much for the Constitution, and how can judges tell how risky a particular proceeding may be?
Third, strategically, I think it's fair to assume that counsel for the petitioners have goals pretty different from what they're forced to argue. Presumably counsel's the goal is to end executions, not minimize the chances of pain during them.
Orin has many other strong insights throughout his extended post. (Indeed, I'd call the post great scholarship if Orin wasn't on record arguing "that the blogging format is not well-suited to advance scholarship.") Orin ends with this prediction:
What's going to happen in the case is anyone's guess. If I had to guess — and this is really just a wild guess — I would guess that (a) there will be no one majority opinion, but (b) the controlling opinion will allow this particular execution based on the details of the record and give lots of guidance to push other states to improve their practices. That won't really answer the constitutional question, but it will kick the ball down the road for a few years.
Though I share Orin's instinct that Baze is a hard case for a lot of Justices for a lot of reasons, I predict (or at least hope) that we will get a majority opinion in some form. The Justices have been dodging the hard issues here for a number of years, and the Hill decision from 2006 (which I analyzed here) reflected the Justices (last?) attempt to urge states and lower courts work this out without a clear constitutional standard. But jurisprudential vagueness has only produced more litigation and disparate outcomes over the last two years. I suspect that a majority of Justices recognize the need for a firm legal standard, and that Chief Justice Roberts (and/or Justice Stevens) will work especially hard to get five votes for some defined legal standard that lower courts can apply.
That said, even with a defined legal standard established by a majority opinion in Baze, I suspect there will be enough vagueness in the outcome and the standard to ensure, as Orin suggests, additional lower court litigation over specific execution protocols in different states.
Some recent related posts:
- Finding Bickel Gold in a Hill of Beans (my article about last lethal injection case)
NY litigation over the state of parole
Yesterday's New York Times had this interesting piece about disputes and litigation over the rights of state felons to be granted parole. Here is how it starts:
Last year, a group of violent felons sued the administration of Gov. George E. Pataki, charging that the state was ignoring the law by categorically denying them parole. They figured their chances would improve under his successor, Eliot Spitzer, even though Mr. Spitzer was a tough former prosecutor who supported the death penalty.
In the spring, they were heartened when Mr. Spitzer’s new chairman of the State Parole Board, George B. Alexander, reminded his fellow commissioners that they were obligated to consider the potential for rehabilitation, remorse and recidivism as well as the severity of the original crime.
By fall, lawyers for the plaintiffs and Attorney General Andrew M. Cuomo were on the verge of a legal settlement that would have granted 1,000 or so inmates new parole hearings. At the last minute, word of the settlement was leaked to the press, around the same time that the board approved parole for a man who had taken part in a holdup that led to a police officer’s death. Among the critics was Patrick J. Lynch, president of the Patrolmen’s Benevolent Association in New York City, who said, “Violent felons should not be eligible for parole, and cop killers should stay incarcerated for life.”
With Mr. Spitzer’s political capital depleted and the governor hardly eager to embark on another unpopular crusade, the Division of Parole, which reports to the governor, rejected the settlement in November.
December 30, 2007
Is gender bias in capital punishment a serious problem?
Though many justifiably express concerns about racial bias in the application of the death penalty, the potential gender bias in capital punishment systems get far less attention. But new horrific killings in Washington state bring up these interesting gendered issues, as this new article from the Seattle Times spotlights. Here are excerpts:
If precedent is an indication, prosecutors may face an additional challenge should they opt to seek the death penalty against Michele Kristen Anderson, 29, charged in the killing of six of her relatives near Carnation Christmas Eve: No woman has been sentenced to die in Washington state.
Of the 3,300 inmates on death row in the U.S. in the last complete count, only 49 were women — less than 1.5 percent. "I think jurors, in general, would have a tougher time imposing the death penalty on a woman," said Snohomish County Deputy Prosecutor Chris Dickinson, who in 2003 unsuccessfully sought the death penalty against a woman convicted of hiring a group of teens to kill her boss.... Since 1977, nearly 1,100 inmates have been executed in the U.S.; only 11 were women....
Washington state has executed 77 inmates — all men — since 1904. Officials Friday could find only two instances in more than a quarter-century in which Washington prosecutors even asked jurors to sentence a woman to death....
Death-penalty experts disagree over whether the small number of women sentenced to die in the U.S. indicates a bias favoring women. In a 2001 interview, Victor Streib, a law professor at Ohio Northern University who tracks death-penalty cases against women, said, "It's like there's something more valuable about women's lives ... Women are also treated differently when they're victims." But Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said, "It could be a bias operating or it could just be there are so few cases of women committing crimes like this. It's a hard thing to prove one way or another."
New sex offender realities in Ohio
The Cincinnati Enquirer has this effective article, headlined "Sex offenders face tougher rules," discussing the realities surrounding a new sex offender law in Ohio. Here are excerpts:
Ohio’s 25,000 sex offenders got a big surprise earlier this month when the state told them that starting Jan. 1 they will have to register longer than they previously thought, and in many cases they’ll have to register more often.
Nearly one third will go from registering addresses with the sheriff’s office in the county where they live annually for 10 years to having to register every 90 days for life. Most others will have five years tacked onto their 10-year reporting requirement, according to the Ohio Attorney General’s Office. The tougher requirements — although controversial — are designed to keep better tabs on sex offenders, a group that moves often and frequently crosses state lines.
The closer scrutiny comes at a price, because registrations will nearly double, creating more work for sheriff’s offices, which are charged with making sure the addresses are correct and tracking down those who don’t register.
In passing the Adam Walsh Child Protection Act, state lawmakers say they are making communities safer. But critics say it’s a false sense of security because most offenders are people the victim already knows.... David Singleton, executive director of the Ohio Justice & Policy Center who works to reform the criminal justice system, said the law is unconstitutional. Amelia Orr, executive director of Community Counseling & Crisis Center in Butler County, which handles that county’s rape crisis program, called the registry a scare tactic that gives people a “superficial sense of security.”...
Continued crack coverage ... but to what effect?
Valuably, the US Sentencing Commission recent work lowering the crack guidelines sentencing ranges and the Supreme Court's Kimbrough decision continue to generate media stories about the inequities in federal drug sentencing. This AP article, for example, spotlights the continued 100-to-1 ratio reflected in crack and powder cocaine mandatory minimum sentencing terms even though, according to Nora Volkow, director of the National Institute on Drug Abuse, there is "no scientific justification to support the current laws."
Similarly, this morning's Los Angeles Times has this lengthy article headlined "Chipping at tough crack sentencing: Laws were ineffective and the drug's ravages overblown, experts say." The piece does a very effective job documenting the history crack-powder sentencing disparities, but then note the political problems that have continued to impede significant reform:
"I thought, 10 years ago, as the [crack] issue lost its prominence, one would see more rational decision-making," said Peter Reuter, professor of public policy at the University of Maryland and co-director of the drug policy research center at RAND. Instead, he said, "the issue lost its saliency," and "politicians lost interest."...
Despite relaxation of the guidelines, people caught with crack cocaine still will face long prison terms. Congress so far has refused to retreat from the "mandatory minimum" laws that require prison terms of at least five years for possession of crack cocaine.
But some lawmakers have been pressing for change. Calling it "a terrible flaw in the criminal justice system," Sen. Joseph R. Biden Jr. (D-Del.), a Democratic presidential candidate, proposes eliminating the 100-to-1 disparity between powder and crack cocaine. Reps. Sheila Jackson-Lee (D-Texas) and Charles B. Rangel (D-N.Y.) have introduced similar bills in the House. Sens. Jeff Sessions (R-Ala.) and Orrin G. Hatch (R-Utah) -- have proposed raising the amount of crack cocaine that would trigger a mandatory prison term.
But none of these proposals has won approval from the judiciary committees of the House or Senate. Mark Kleiman, a UCLA professor of public policy and a drug policy expert, said: "Nobody [in Congress] wants to go home and explain why they let the crack dealers out of prison."