March 15, 2008
Yet another insightful ivory tower view of modern sentencing realities
The stack of important academic reading for Blakely and Booker fans gets even longer with this new piece now on SSRN authored by Professors Stephanos Bibas and Susan Klein. This article is simply titled "The Sixth Amendment and Criminal Sentencing," and here is the abstract:
This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally importantly, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.
Ninth Circuit (unpublished) reversal for procedural unreasonableness
Citing procedural error, a federal appeals panel has overturned the controversial sentence U.S. District Judge Manuel Real imposed on an admitted con man who bilked scores of people out of millions of dollars by offering investments in a sham TV series about the Department of Homeland Security.... Joseph Medawar, who was sentenced in December 2006 to serve a year and a day in prison, could face more time in custody.
Medawar, a onetime Hollywood producer, avoided trial by pleading guilty to income tax evasion and conspiracy to commit mail fraud. Federal prosecutors sought a sentence of 57 months; even Medawar's trial attorney requested 33 months. But when Medawar, 46, appeared for sentencing, the judge imposed his own, much shorter term. Though Medawar was also ordered to pay $2.6 million in restitution and to perform 3,000 hours of community service, his prison sentence outraged victims of the fraud.
Ruling this week on an appeal filed by the U.S. attorney's office in Los Angeles, the 9th Circuit panel concluded that Real erred by not calculating Medawar's term under federal sentencing guidelines and by failing to consider other sentencing factors established under federal law. Moreover, the panel said, Real did not provide a "significant justification" for imposing a sentence far below the range of 57 to 71 months set under the guidelines.
March 14, 2008
"The Political Economies of Criminal Justice"
The title of this post is the title of this interesting looking article on SSRN. Here is the abstract:
Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation. As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems. Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control.
This essay makes three arguments in response to the idea that society is governed through crime. First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter. Second, it analyzes the range of different political dynamics affecting criminal justice — including some beyond the scope of Simon's project — and considers their effects. Though aspects of the "governing through crime" phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation. The institutional realities identified with governing through crime — including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention — draw political support from multiple sources, not all problematic. This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role. Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration. That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state.
Great public radio series on prisoner reentry
In a week in which the Second Chance Act finally became a reality (details here and here), it is my pleasure to note a great public radio series on prisoner reentry. Here is the e-mail I received discussing the series:
I’m writing to let you know about a series we did here at Southern California Public Radio/KPCC this week on prison reentry, including a ton of great Web extras like photos, bonus Web audio, and links to additional web resources, as well as audio and transcripts of all the stories. Here are links to the whole series:
An interest in public interest at my alma mater
I am about to get on a plane for a quick trip to Boston to attend part of this Harvard Law School event, "A Celebration of Public Interest." As might be expected, there is a decidedly elite skew to the event (e.g., there are very few criminal lawyers speaking). Nevertheless, both the public interest lawyer and law professor in me thought this event was worth checking out.
UPDATE: An interesting day was concluded with an amazing speech by Bryan Stevenson (HLS '85), who may now be at the very top of my SCOTUS short list.
Louisiana's brief in Kennedy arguing for capital child rape
Thanks to Sex Crimes, I now see that Louisiana's merits brief in the Kennedy SCOTUS capital child rape is now available at this link. Here are excerpts from the brief's "summary of argument":
The death penalty is not cruel and unusual punishment for the rape of a child. It is evident that societal awareness of the prevalence of child sexual abuse has increased tremendously in the last few decades. Moreover, public outrage over the sexual violation of immature young children by predatory adults is extremely great due to the recognition that these offenders target and harm the most vulnerable members of our society.
While this Court in Coker found that the death penalty was excessive for the rape of an adult woman, it has not found the death penalty to be excessive for all non-homicide crimes, or for all rapes. Objective indicia reflect that there is currently a significant trend to provide the death penalty as punishment for at least some rapes where the victim is a child. Seven states have legislation providing the death penalty for child rape, and of those States, only Florida’s statute has been invalidated by its state supreme court. Three other states are presently considering legislation which would authorize the death penalty as punishment for the rape of a child committed under certain circumstances. Additionally relevant to a determination of societal consensus with regard to authorizing the death penalty for this non-homicide offense, are the fifteen capital jurisdictions (including the federal government) that authorize the death penalty for a variety of non-homicide offenses, and the recent widespread enactment of “Megan’s Laws,” which require sex offenders to register and provide notification to the community. Juries have returned death sentences in two of the five cases in Louisiana in which it is known that the issue was submitted to a jury. In other states, the laws are so recently enacted that the fact that no one has yet been capitally convicted in those states does not demonstrate that juries are unwilling to impose the death penalty for the rape of a child. Therefore, objective indicia confirm that a current trend strongly supports imposition of the death penalty for this exceedingly grave offense. The State respectfully submits that legislative consideration of this issue should not be prematurely foreclosed.
Some related posts on the Kennedy case and capital child rape legislation:
Brennan Lecture on a topic that the Justice surely would have cared about
As documented at this official site, Justice Michael Wolff focused on sentencing issues at NYU when giving the 14th Annual Justice Brennan Lecture on State Courts and Social Justice last month. Justice Wolff, who sits on the Missouri Supreme Court and is the Chairman of the state's Sentencing Advisory Commission, titled his lecture "Evidence-Based Judicial Discretion: Promoting Public Safety through State Sentencing Reform." Here is how his lecture began:
Americans put more people behind bars per capita than any country in the western world. But this rate of incarceration is not necessarily helping to reduce crime. In fact, when we put the wrong people in prison, we make them — and the problem of crime — worse. As we come to realize this, hopefully a new way of thinking about sentencing will emerge that will focus on sentencing outcomes as a way to ensure that public safety is a top national priority.
Sentencing is a complex topic that needs to be approached with humility, an open mind and common sense. I believe we have the analytical tools available to help create a system that minimizes recidivism and maximizes public safety.
March 13, 2008
Criminal mistakes in analysis of Heller hysteria
With the Supreme Court's oral argument in the Second Amendment Heller case now only a few days away, the lawyer talk about the case is heating up. Of particular note is this new column from Robert Novak suggesting that the Bush Administration is unsupportive of SG Paul Clement position in Heller. That column has, in turn, produced additional analysis over at SCOTUSblog and at Volokh.
Sadly, as is all too common in all the buzz to date over Heller and the Second Amendment, none of the analysis considers the criminal justice litigation that the Justice Department justifiably fears if the Supreme Court were to recognize a robust individual right to keep and bear arms. As I have suggested in a number of prior posts, a major pro-gun-rights ruling in Heller could mean a new (and viable?) constitutional claim raised in every felon-in-possession prosecution and also could mean additional challenges to gun-possession-based sentencing enhancements.
I believe that fear of defense litigation in federal gun prosecutions best explains why the SG has taken such a tepid position in Heller. It is also why I really, really, really hope the Justices ask counsel in Heller whether severe felon-in-possession criminal laws could be upheld if the Second Amendment is to be understood to secure an enforceable individual "right of the people to keep and bear Arms."
Some related recent Second Amendment posts:
Notable Kimbrough remand from the Eleventh Circuit
Anyone trying to track the aftermath of the Supreme Court's ruling in Kimbrough will want to give a close look to the Eleventh Circuit's work today in US v. Stratton, No. 06-10080 (11th Cir. Mar. 13, 2008) (available here). Here are excerpts:
[W]e reconsider our previous opinion to the extent it rejected Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining a reasonable sentence.... [We do so in part because] this is a case where the district court rejected Stratton’s claim that the court had authority to consider the crack/powder disparity as a sentencing factor and a basis for a sentence reduction. And this is not a case where the district court indicated that it would enter the same sentence even if the court had authority to consider the crack/powder disparity as a sentencing factor....
Therefore, we remand this case to the district court for the limited purpose of resentencing Stratton in light of Kimbrough. We do not suggest on remand that the district court must impose any particular sentence or that the district court is not free to impose the same sentence after considering the § 3553(a) factors. Furthermore, as this is a limited remand to permit the district court to reconsider the § 3553(a) factors in light of the Supreme Court’s holding in Kimbrough, Stratton may not re-argue other issues already decided or necessarily decided during his two prior sentencings that either were affirmed on direct appeal or could have been, but were not, raised by him during his direct appeals.... However, the district court may, if it wishes to do so, combine this resentencing proceeding on remand with any additional proceeding the district court may determine is appropriate in light of the retroactive application of Amendment 706 to the crack-cocaine guidelines effective March 3, 2008.
Good news for criminal defense lawyers who want to run for office?
In this post a few weeks ago, I linked to this Newsday article providing a long account of Senator Clinton's work as a criminal defense attorney three decades ago. The Newsday article seemed to be written to provide talking points against HRC because of her work on behalf of an accused rapist: it stressed that "a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas." Interestingly, though, this story did not end up having any legs in the heated 2008 campaign; I cannot even recall seeing any legal blogosphere discussion of this article.
But now I see this notable new article from the American Lawyer, which asks "Is Clinton's Corporate Law Background Hurting Her Candidacy?". Here are snippets from this very interesting article:
An inarguable fact — and lawyers love inarguable facts! — is that Hillary Clinton spent the longest stretch of her professional life working in a corporate law firm. From 1977 to 1992 she worked as a lawyer in the firm of Rose, Nash, Williamson, Carroll, Clay & Giroir (renamed Rose Law Firm in 1980) in Little Rock, Ark. She devotes a single sentence to these years on her campaign Web site: "She continued her legal career as a partner in a law firm." (And this, in a section called "Mother and Advocate.")...
The ability to argue all sides of an issue is a hallmark of the lawyerly mind. Hillary's ability to assert moral residency on different ideological sides of an issue showed itself soon after she joined the Rose firm....
Neither Hillary Clinton nor the average corporate law partner is likely to make anyone's blood jump or heart sing. When you are in trouble, however — real trouble — it may be that the person you want to see isn't the guy who wows you with his wit and charisma, but someone who has really done her homework, pored over all the boring details, and then gone back over them again, just for fun. It's pretty clear that the country is in real trouble. Bridges are falling down; the stock market is all over the place; and let's not even bring up Iraq or Sudan. This might or might not be the right time to look past Hillary Clinton's cool, corporate, bill-by-the-hour sensibility, her lawyerly inclination to avoid risk and run everything past the pollsters, to smile and keep a stiff upper lip because appearance and propriety matter more than most things — and certainly more than impropriety.
So, all you wanna-be lawyer-pols out there, it seems your political future could be hurt more by time in a corporate law firm than from time practicing criminal defense.
Cross-posted at PrawfsBlawg (under a different post title).
March 12, 2008
More on the passage of the Second Chance Act
Over in this post at a WSJ blog, Gary Fields reports on the passage of the Second Chance Act:
After three years of procedural and legislative delays, a prisoner re-entry bill first introduced in 2005 has cleared the Senate and is heading to the president’s desk.... The Second Chance Act passed Tuesday evening, and is now expected to be signed by President Bush. The measure provides about $180 million a year in 2009 and 2010 for prisoner re-entry services to curb a recidivism rate that has held steady at about 66%, meaning that two-thirds of all inmates released annually from state and federal prisons re-offend or violate the conditions of their release within three years and are locked back up.
Close to 700,000 people a year are released from prisons, according to Justice Department statistics. The recidivism rate is one of the reasons the nation’s prison population has grown to more than 2.2 million from 501,886 in 1980. As a result, corrections costs are among the fastest growing expenditures for states. Annual criminal-justice expenditures for police, prisons, probation and courts have risen to more than $200 billion from $36 billion in 1982.
The bill provides more than $360 million in 2009 and 2010 to help prisoners return to society....
One of the chief architects of the bill, Illinois Democrat, Rep. Danny Davis, said he hopes the bill, beyond the money, triggers a discussion at the state and local levels about incarceration and alternatives to imprisonment. “We add this up and the impact will be far greater than just the amount of money that gets appropriated. We know it’s not a panacea,” he said. “It’s not close to any kind of panacea but our hope is this becomes a sort of trigger for a great deal of additional action.”
The bill’s passage comes at a time when states are grappling with rising costs and looking for ways to reduce prison construction. States like Kansas and Texas have all undertaken programs that emphasize drug treatment and cutting the recidivism rates as a way to save hundreds of millions of dollars in the coming years.
The event brought a number of press releases from the likes of American Prison Consultants and FAMM and the NAACP and Representative Stephanie Tubbs Jones and Senator Sam Brownback. How is that for an eclectic and diverse mix of excited folks. And I bet Eiot Spitzer is now glad to hear this passed, too.
Media continues to cover juve lifers ... will reforms follow?
The Christian Science Monitor has this new article, headlined "States reconsider life behind bars for youth; With nearly 2,400 inmates sentenced to life as juveniles, the U.S. is the only nation imposing the mandate on children." Here are excerpts:
Here in Illinois, proposed legislation would give 103 people – most convicted of unusually brutal crimes – a chance at parole hearings, while outlawing the sentence for future young perpetrators. The proposal has victims' families up in arms, angry that killers they had been told were in prison for life might be given a shot at release and that they'd need to regularly attend hearings in the future, reliving old traumas, to try to ensure that these criminals remain behind bars.
Advocates of legislation, meanwhile, both in Illinois and elsewhere, note that the US is the only country in the world with anyone – nearly 2,400 across the nation – serving such a severe sentence for a crime committed as a juvenile. They criticize the fact that the sentence is often mandatory, part of a system devoid of leniency for a teenager's lack of judgment, or hope that youth can be reformed....
The current legislation in Illinois is unlikely to go anywhere, with its key sponsor backing away last week and saying more time is needed to dialogue with victims. Reform advocates hope to have new legislation introduced in the near future. Colorado outlawed juvenile life without parole in 2006, and legislation is pending in Michigan, Florida, Nebraska, and California, while a few other states are experiencing grass-roots efforts.
Some activists against the sentence say they hope they can work with victims' families to take their concerns into account even as they do away with the sentence. In Michigan, where a set of bills is before both the Senate and the House, activists have had some success building dialogue with victims, says Deborah LaBelle, a human rights attorney based in Ann Arbor and director of the ACLU's Juvenile Life Without Parole Initiative.
"We need to allow both voices to be heard," says Ms. LaBelle. But she feels strongly that the sentence is inappropriate for youth. "As every parent knows and as every social scientist understands, this is a time of ill-thought-out, impulsive lack of judgment, problematic years… To throw them away and say you're irredeemable as a child is a disturbing social concept."
Gov Spitzer resigns, though plea deal uncertain
CNN has this updated story on NY Gov. Eliot Spitzer's resignation today. Here is a passage from the story that should interest criminal justice fans:
Spitzer's lawyers were in discussions Wednesday with the U.S. attorney's office in New York, trying to negotiate a plea deal to avoid prosecution, a source with knowledge of the discussions said. However, U.S. Attorney Michael Garcia in New York issued a statement saying, "There is no agreement between this office and Gov. Eliot Spitzer relating to his resignation or any other matter."
Second Chance Act (finally!!) passed by Congress
I am pleased to report that, late last night, the Senate approved the Second Chance Act, a long-stalled piece of legislation that should provide significant resources for much-needed reentry services. This press release from the Council of State Governments provides more details:
The Council of State Governments Justice Center lauds the members of the U.S. Senate for their passage [Tuesday] of the Second Chance Act of 2007. This landmark bill, introduced by Senators Joseph Biden (D-DE), Sam Brownback (R-KS), Patrick Leahy (D-VT) and Arlen Specter (R-PA), provides critical resources designed to reduce recidivism and increase public safety. The legislation passed the Senate by unanimous consent and now proceeds to the President’s desk for signature....
The Second Chance Act includes key elements of President Bush’s Prisoner Reentry Initiative, announced in the 2004 State of the Union address, which provides for community and faith-based organizations to deliver mentoring and transitional services. The bill will also help connect people released from prison and jail to mental health and substance abuse treatment, expand job training and placement services, and facilitate transitional housing and case management services....
According to the U.S. Department of Justice, Bureau of Justice Statistics, an estimated 95 percent of all state prisoners will be released—with half of these individuals expected to return to prison within three years for the commission of a new crime or violation of their conditions of release. This cycle of recidivism not only compromises public safety, but also increases taxpayer spending. A February 2007 report from The Pew Charitable Trusts stated that if federal, state, and local policies and practices do not change, taxpayers are expected to pay as much as $27.5 billion on prisons alone from 2007 to 2011 on top of current corrections spending.
“The Second Chance Act will provide an opportunity for realistic rehabilitation for the more than 650,000 inmates who return to their communities each year,” said Senator Specter. “The bill’s focus on education, job training, and substance abuse treatment is essential to decreasing the nationwide recidivism rate of 66 percent.”
Some related posts discussing the Second Chance Act:
March 11, 2008
Yet another potent analysis of Booker's structural impact
A new piece now on SSRN creates a troika of must-reads about post-Booker sentencing realities (together with the works recently noted by Dan Richman and Michael Simons). This new piece comes from Kate Stith and is titled "The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion." Here is the abstract:
Early analyses of the federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; more recent analyses have noted the transfer of discretion from judges to prosecutors. Of equal significance are two other power struggles: between local federal prosecutors and officials in the Department of Justice, and between Congress and the Supreme Court. In its 2005 decision in United States v. Booker, and its recent decisions elaborating Booker, the Supreme Court made a high-stakes move that boldly asserted significant responsibility and authority in sentencing judges, local prosecutors, and the Supreme Court itself.
Although it was not the goal either of sentencing reformers, the actual result of the Guidelines regime that took effect in late 1987 was to transfer sentencing authority not to the United States Sentencing Commission, but to federal prosecutors and — particularly in recent years — to the Department of Justice in Washington. Congress' 2003 decision, in reaction to sentencing data that appeared to reveal that sentencing judges were willfully ignoring the Guidelines in a growing proportion of cases, to enact the Feeney Amendment represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to line-prosecutors. By design, this legislation, Feeney simultaneously empowered Congress' partner in the endeavor, the Justice Department in Washington.
Booker (as well as Booker's immediate predecessor, Blakely v. Washington, and Booker's progeny handed down in 2007) can be understood as a collective decision by the Supreme Court — which for more than a decade had been loathe to intervene or even seriously analyze constitutional and other issues raised by the Guidelines — that it was constitutionally and institutionally obliged to act in order to undo the Feeney Amendment, to constrain the leverage that inheres in prosecutors in a mandatory sentencing regime, and to counteract the centralizing impulse of the Department of Justice. By introducing the opportunity for judges openly to exercise judgment independent of the Guidelines, Booker and its progeny not only allow judges to provide a counterweight to prosecutorial leverage over defendants, but may also counteract the constraints that the Justice Department moved to impose (in the wake of the Feeney Amendment) on line-prosecutors. Once again, sentencing is primarily a local event. After Booker, the Department in Washington may be calling signals, but the decision-makers on the playing field — prosecutors and their judges — need not hear the calls or abide by them.
Should being a good tipper get Spitzer a sentencing break?
The blogosphere is buzzing about all thing Spitzer, with TalkLeft providing the latest news and Sex Crimes providing a great round-up of commentary. This ABC News story has an array of notable information and comment:
A 22-year-old escort found on another call-girl Web site claimed to ABC News in a phone interview that Gov. Eliot Spitzer had been one of her customers two years ago when he was New York attorney general and that he was a nice guy who tipped well....
Federal investigators say there is no evidence Spitzer used state money or campaign funds to pay the prostitutes, but that the way he moved an estimated $40,000 through various accounts violated federal money laundering laws. "These are serious laws and laws that given the amount of money involved here could mean a prison term of 10 to 18 months," Sean O'Shea, a former federal prosecutor specializing in financial crimes, said.
A prison term is one of the issues holding up the governor's resignation as well as whether or not he pleads guilty to criminal charges.
I wonder if being a good tipper would be considered a valid mitigating sentencing factor under 3553(a). Probably so in the Second Circuit, but maybe not if the feds figure out a way to charge him in the Fourth Circuit.
Meanwhile Harlan Protass looks at criminal justice realities a bit more seriously here at Slate, in a piece tiled "How To Prosecute Eliot Spitzer."
Research and data on prostitution, punishment and shaming sanctions
This NPR segment, titled "The Legality of Prostitution," got me wondering about research on prostitution and punishment. The NPR piece referenced this interesting recent paper, titled "An Empirical Analysis of Street-Level Prostitution," which is authored by Steven Levitt and Sudhir Alladi Venkatesh. The paper is focused on just the economics of prostitution in Chicago, and it has lots of interesting findings. This passage especially caught my eye:
We estimate that prostitutes are officially arrested only once per 450 tricks, with johns arrested even less frequently. Punishment conditional on arrest is limited — roughly 1 in 10 prostitute arrests leads to a prison sentence, with a mean sentence length of 1.2 years among that group. For many johns, perhaps the greatest risk is the stigma that comes with having a mug shot posted on the Chicago Police Department web page. There is a surprisingly high prevalence of police officers demanding sex from prostitutes in return for avoiding arrest. For prostitutes who do not work with pimps (and thus are working the streets), roughly three percent of all their tricks are freebies given to police.
For those interested in a very different type of perspective on the oldest profession, I also found this interesting website titled "Prostitution Research & Education." The website has a strong anti-prostitution message, and it includes this page which states:
In order to understand prostitution, it is necessary to understand:
- lethal gender inequality
- incest and other childhood sexual assault
- poverty and homelessness
- the ways in which racism and colonialism are inextricably connected with sexism in prostitution
- domestic violence, including rape
- post-traumatic stress disorder, depression, mood and dissociative disorders as consequences of prostitution
- drug and alcohol addiction
- the fact that prostitution is a global business which involves interstate and inter-country trafficking as a necessary part of its profitable operation
- in non-dominant states — the ways in which economic development programs erode traditional ways of living
- the need for culturally-relevant treatment
- the ways in which diverse cultures normalize and promote prostitution
- stripping, exotic dancing, nude dancing, table dancing, phone sex, trafficking, child and adult pornography, lap dancing, massage brothels, and peep shows as prostitution
Colorado moving forward with capital child rape bill
I see from this Denver Post story that the Colorado senate is moving forward with a bill to make child rape a capital offense. Here are excepts from the article:
Colorado could put child rapists to death under a bill that won a Senate committee's approval Monday and would put the state on par with just five others that allow the execution of such sex offenders. Prosecutors could try for the death penalty in cases in which rape victims are 12 or younger, where DNA evidence is present and where the perpetrator has been previously convicted of a sex offense against a child....
Colorado public defenders, who oppose the bill, originally estimated that it would make about 260 people a year eligible for the death penalty. It was unclear what an amendment, which limits the bill to repeat offenders, would do to that estimate.
In Louisiana, the one state that has sentenced child rapists to death, prosecutors have made capital cases of only two out of 180 eligible cases. Constitutional challenges immediately followed the first of those two sentences, and the U.S. Supreme Court is expected to rule by June whether death is cruel and unusual punishment for felons who have not taken a life.
Colorado joins Alabama, Missouri and Mississippi in seeking death for child rapists this year. Montana, Oklahoma and South Carolina have passed similar laws since 2006, and Louisiana and Texas both approved such legislation in the mid-1990s, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.
One of the many strange ironies of the Supreme Court's doctrines in this area is that the constitutionality of Colorado's proposed capital child rape law may depend upon whether Colorado (and Alabama and Missouri and Mississippi and other states) formally enact a capital child rape law. If a significant number of states were to make child rape a capital offense over the next few months, the Supreme Court in the Kennedy case from Louisiana would almost have to conclude that "evolving standards of decency" show that society does not regard capital child rape as a cruel and unusual punishment.
Some related posts on the Kennedy case and capital child rape legislation:
Reversing a hot Pepper in the Eighth Circuit
The Eighth Circuit today handed down an opinion in US v. Pepper, No. 06-2453 (8th Cir. Mar. 11, 2008) (available here), which highlights the enduring struggle of post-Booker appellate review of sentencing. Here is how the case starts:
In United States v. Pepper, 412 F.3d 995, 999 (8th Cir. 2005) (Pepper I), we held the district court erred by granting a 75% downward departure for Jason Pepper’s (Pepper) substantial assistance and imposing a sentence of 24 months imprisonment, because the district court erroneously based the extent of the departure on matters unrelated to Pepper’s assistance. On remand, the district court granted a 40% downward departure (five offense levels) for substantial assistance, followed by a 59% downward variance (eight offense levels), and again imposed a sentence of 24 months imprisonment. The government appealed. We reversed and remanded the case for resentencing by a different judge, pursuant to our authority under 28 U.S.C. § 2106. United States v. Pepper, 486 F.3d 408, 413 (8th Cir. 2007) (Pepper II). Pepper appealed. The Supreme Court vacated our judgment and remanded the case to us for further consideration in light of Gall v. United States, 522 U.S. ___ (2007). Having carefully considered Gall’s impact on Pepper’s case, we again reverse the sentence of the district court and remand for resentencing by a different judge.
Should Prez Bush (or would a Prez Clinton) consider a pardon for Gov Spitzer?
Over at Pardon Power, P.S. Ruckman already has this entertaining post talking about Governor Eliot Spitzer and clemency issues. Here is a snippet:
Should Gov. Spitzer be convicted (of anything), he stands a much-better-than-average chance of also benefiting from a presidential pardon — the irony being that, as governor, he has been notoriously stingy with the clemency power. Well, actually, there is another, even greater irony: Spitzer is on record as supporting a presidential pardon for long-since deceased boxing legend Jack Johnson, who was also convicted for ... violating the Mann Act! Kinda has that feel of Bill Clinton pardoning all of those individuals for lying under oath and making false statements to government agents, doesn't it?
Why might Spitzer be pardoned? Because 1) former governors in legal trouble have a pretty darn good record for such and 2) it appears likely to many that the next president will be a fellow Democrat. Spitzer is, after all, one of those ever-so-popular "Superdelegates." Either way, he will probably not be treated in the manner suggested by one South Carolina Senator who, back in the day, recommended that Diggs and Caminetti be "shot like dogs." So, it may be one more addition for our Presidential Pardon "Watch List".