March 22, 2008
Federal prisoner provides clemency test for a compassionate conservative
A federal inmate is asking President Bush for clemency so he can be with his daughter, who's dying of brain cancer in Lincoln. Jason Yaeger is in a federal prison in Yankton, South Dakota, serving four years on methamphetamine charges. He's scheduled to be released next year.
But that may be too late for 10-year-old Jayci, who is too weak to respond when her father talks to her on the phone. Yaeger says he's not trying to get out of his sentence. He says the request for clemency is a last resort after the warden refused to move him to a Council Bluffs halfway house, as well as Yaeger's request for a furlough.
He's also filed a court injunction, asking for an immediate transfer to the halfway house, where he's scheduled to be transfered in August.
Show me support for capital child rape laws
As detailed in this official press release, "Gov. Matt Blunt and members of the Missouri General Assembly filed a brief with the U.S Supreme Court today in support of a Louisiana law allowing the death penalty as an appropriate form of punishment for an individual convicted of child rape." Here are more specifics from the release:
“Violent sex offenses against children are unspeakable crimes, crimes so horrific that they defy comprehension and demand harsh punishment,” Gov. Blunt said. “Crimes like these deserve the most serious punishment we can possibly deliver. I strongly support legislation allowing the death penalty for convicted child rapists. As we seek legislation to allow this punishment in Missouri, we have filed a legal brief with the U.S. Supreme Court supporting Louisiana in their fight to better protect innocent children from deviant sexual predators.”
Gov. Blunt and members of the Missouri General Assembly filed an amici curiae, or “friends of the court” brief, asking the U.S. Supreme Court to clarify previous rulings that the Eighth Amendment does not prohibit the death penalty for child rapists. The brief also argues that the court should not preclude a national debate on this issue and allow states to form a consensus.
Too much great stuff around the blogosphere
Here are lots of posts (with lots of questions and food for weekend thought) from some of my regular reads:
- From Balkinization, "Strict Scrutiny for Second Amendment Rights?"
- From Concurring Opinions, "Is Baseball the Fairest Sport?"
- From Convictions, "Two Strikes and You're Violent?"
- From Grits for Breakfast, "Drug offenders dominate new prisoners from probation revocation"
- From Pardon Power, "Campaign 08: Mrs. Clinton and the Disown-Distance Dance"
- From PrawfsBlawg, "Retributive Damages: Some Recent Normative Scholarship"
- From Sex Offender Issues, "Former Jackson County deputy avoids prison time in teen’s sex abuse case"
- From TalkLeft, a bunch of notable criminal justice stories
- From WSJ Law Blog, "Zach Scruggs, Son of Dickie, Pleads Guilty to Misprision Charge"
I have an interest, but lack the time, to opine on all of these (very diverse) blogospheric insights. If readers in the comments report a particular interest in any of these posts, I'll be eager to chime in while keeping an eye on my brackets.
March 21, 2008
More great (NCAA) sentencing reading from SSRN
A bunch of new pieces on SSRN seem worthy of a weekend look, especially if (when?) your bracket blows up. Here are the titles and links:
- Against Judgment by Katherine Barnes
- Naïve Cynicism: Maintaining False Perceptions in Policy Debates by Adam Benforado & Jon D. Hanson
- Dialogic Allocution: Deliberative Democracy in Sentencing Law by Felix Valenzuela
How do sophisticated lawyers negotiate sentencing terms?
The WSJ Law Blog here and here provides effective coverage and links concerning famed lawyer Mel Weiss's decision to enter a deal to agree to plead guilty in a case alleging improper kickbacks. The plea deal can be accessed here, and it is an interesting read.
I was particularly interested in paragraph 15, which sets forth the agreed upon sentencing terms. And for some reason the parties came up with a range of 18 to 33 months imprisonment. I think they got these terms from the top and botton of a range of guideline ranges, but it is fun to just speculate about how the big-time lawyers on both sides approached this part of the plea negotiations.
Notable new journal with some innovative weekend reading
I just got an e-mail announcing an interesting new journal than would-be criminal justice reformers will want to be sure to check out. Here is the text of the e-mail with links:
I'm writing to announce the publication of the first issue of the Journal of Court Innovation, a new journal that we have created in collaboration with Pace Law School and the New York State Judicial Institute.
The goal of the Journal is simple: to spark new thinking about how courts work and the role they play in our society. Along the way, we hope to bridge the worlds of theory and practice. Like most scholarly journals, the Journal of Court Innovation will include in-depth examinations of complicated subjects. But it will also contain shorter pieces describing provocative experiments, interviews with leading thinkers and practitioners, and book reviews that highlight cutting-edge scholarship.
I think our first issue gives you a sense of the rich diversity of content that you can expect from the Journal going forward. The first issue includes articles about using the Internet to impanel jurors, how to smooth the transition of parolees from prison to the community, and the lessons that can be learned from failed criminal justice reforms. To subscribe to the Journal or to access articles from the first issue, visit http://www.courtinnovation.org/journal.html
Some (final?) thoughts on politics, prosecution and punishment
Reviewing today's headlines in the New York Times in my in-box, these two indirectly related items seemed to justify some criminal justice reflection and commentary:
- From the front page: U.S. Defends Tough Tactics With Spitzer: "The Justice Department used some of its most intrusive tactics against Eliot Spitzer, examining his financial records, eavesdropping on his phone calls and tailing him during its criminal investigation."
- From the op-ed page: After the End of the Affair: "Whatever Eliot Spitzer's and David Paterson's sins, just surviving infidelity in America may be punishment enough."
Especially in the wake of so many high-profile federal prosecutions for lying — ranging from Martha Stewart to Victor Rita to Scooter Libby to Barry Bonds — I found this passage from the op-ed intriguing:
We Americans are particularly preoccupied with honesty. We're the only country that peddles the idea that "It's not the sex, it's the lying." (In France, it's not the lying, it's the sex.) America is also the only place I found that has a one-strike rule on fidelity: if someone cheats, the marriage is kaput.
We might not strictly hold ourselves to this script, but we expect our politicians to follow it. That's why people doubted that Bill and Hillary Clinton could have a "real" marriage if she stayed with him after the Lewinsky affair....
In my view, I actually think it is combination of the sex and the lying that really troubles most Americans. Indeed, this combination proved deadly for Patrick Kennedy: he became the first person place on death row for a child rape offense in part because he refused to admit to his crime (Louisiana prosecutors likely would not have sought — and surely would not have secured — a death sentence had Kennedy admitted guilt). Then again, Bill Clinton was involved in the sex and in the lying under oath all while being the President of the United States, and his only formal punishment ended up being the loss of his law license. Hmmm.
March 20, 2008
Should dying child justify a federal sentencing break?
A helpful reader sent me this remarkable local story that has to make every sentencing theorist (not to mention ever federal prison official) think hard about modern notions of justice and mercy:
The story of a 10-year-old Lincoln girl who is dying of brain cancer's one dying wish spurred a lot of e-mail to KETV NewsWatch 7. Jayci Yaeger wants her father to be at her bedside, but that isn't likely to happen since Jason Yaeger is in a federal prison in Yankton, S.D.
Vonda Yaeger is pleading with the warden for compassion to grant her daughter's wish. "She wants her dad. She goes to her room crying because she wants her dad," Yaeger said.
Jason Yaeger was convicted of methamphetamine charges nearly five years ago and is scheduled to be released next year. "We've never asked them to release him early. Never asked them to change anything. We've asked them to just give him some time to be here," Vonda Yaeger said.
Several KETV NewsWatch 7 viewers said they've e-mailed the warden themselves after reading the story. Kevin Burton said he e-mailed a link of KETV's story to the warden, along with a note that said in part: "I feel heartbroken for this little girl. It sounds like a drug charge, and not a more serious crime. As a father of a young daughter myself, I hope that there is more to this story. I would hope in cases such as this some compassion can be shown and reasonable accommodations taken that safeguard the public, honor the judiciary, but still let this little girl see her father while she is still living."....
Another viewer suggested starting a nationwide petition to get Jason Yaeger to his daughter before she dies.
Jayci Yaeger has been allowed three escorted visits with her father, but each trip lasts only a couple of hours and costs the family hundreds of dollars. Requests for longer furloughs have been denied. "They say it doesn't constitute an extraordinary circumstance," Vonda Yaeger said.
The Federal Bureau of Prisons Web site states its policy -- that furloughs can be allowed for a family crisis and that decision is left to the warden. "We've asked them numerous times, 'What is an extraordinary circumstance?'" said Vonda Yaeger. "They danced around it. They don't give you a direct answer."
Jayci still gets calls when her father can manage. "He talks to her. We put the phone to her ear and she cries," Vonda Yaeger said. She said there have been several times she didn't think Jayci would make it through the night, but she somehow keeps fighting. "I feel she's hanging on for her dad," Vonda Yaeger said. The family said that what makes the situation even more difficult is that Jason Yaeger is scheduled to be transferred to a half-way house in Council Bluffs, Iowa, in August. That would make it possible to visit Jayci, but her mother said it will probably be too late.
Sentencing justice through collateral consequences?
I encourage readers to comment on whether they feel as though justice has now been (better?) served in light of this AP story:
Former top White House aide I. Lewis "Scooter" Libby was banned Thursday from practicing law in the nation's capital following his perjury conviction in the case of a CIA operative's leaked identity. The disbarment order of the U.S. Court of Appeals for the District of Columbia had been expected.
"When a member of the bar is convicted of an offense involving moral turpitude, disbarment is mandatory," the appeals court ruled. Last May, a court panel that oversees lawyer ethics recommended that Libby be stripped of his law license in Washington. The Board on Professional Responsibility then found that Libby's conviction for lying to the FBI about the case of former CIA operative Valerie Plame amounted to "crimes that involve moral turpitude."
"This action is required by the rules following a conviction regardless of the merits of the case, and for that reason Mr. Libby expected and did not oppose the court's order," said Libby attorney William Jeffress.
A tough sentence (but not tough enough?) for tenth DWI offense
Regular readers know that I am often complaining that repeat drunk drivers often do not seem to get tough enough sentences. So I was pleased to get this local story from Texas about one state sentencing judge finally getting really tough on a defendant for his TENTH conviction for DWI. Here are the details:
A Taylor man was sentenced to 60 years today for his 10th driving while intoxicated conviction. Anthony Lynn Falco, 54, was arrested in June for failing to use a turn signal while driving north on Mays Street in Round Rock.
He admitted that he’d been drinking beer at a Round Rock bar and failed field sobriety tests. Falco refused a breath sample, but a blood search warrant was obtained, according to a release by Williamson County District Attorney John Bradley. The sample showed that he had more than two times the legal limit of alcohol in his blood, Bradley said.
Falco has nine previous DWI convictions, the first of which came in 1979, Bradley said. On his last three DWI convictions, he also served prison terms. He will not be eligible for parole for 15 years.
Candidly, I am a bit troubled that this very dangerous repeat criminal will ever be eligible to be free to drive again, but maybe by 2023 we will have developed a technology that can truly ensure that this repeat offender is completely incapacitated and unable to put innocent lives at risk yet again. If not, I hope he does not get granted parole.
Some related posts about getting tougher on drunk drivers:
Some related posts:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Why do we worry so much more about sex offenders than drunk drivers?
- Is capital punishment for drunk driving morally required?
- Technology versus toughness to combat drunk driving
Important report from NC about (not) implementing new crack guidelines
This Charlotte Observer story, headlined "N.C. slow to cut crack sentences," provides a fascinating account of the challenges in implementing the new retroactive crack sentencing guidelines. Here are snippets from a must-read (with key points for commentary in bold):
Federal judges across the country have released hundreds of crack cocaine inmates or reduced their sentences under new guidelines that took effect this month. But in North Carolina, the courts have shortened sentences for just three people, public defenders say.
At least 14 other inmates prosecuted in the Charlotte region qualify for immediate release but remain incarcerated, according to Claire Rauscher, public defender for Western North Carolina. More prisoners statewide may be in the same situation, according to officials who are examining records to determine who is eligible....
Court officials say they are working as quickly as possible through caseloads among the largest in the nation. They said they would resolve more cases in coming weeks. "This is a new law and the first couple of weeks always take the longest," said Frank Johns, clerk of the U.S. District Court for Western North Carolina, which covers Charlotte....
Prisoners in other states have moved faster through the courts. As of Friday, the federal government said it had received about 1,900 court orders reducing prisoners' sentences.
At least 400 court orders were received the week of March 3, the day the new guidelines took effect, said Michael Nachmanoff, public defender for the U.S. District Court for Eastern Virginia. Nachmanoff said at least seven offenders from his district were immediately released from prison March 3 because the courts started working on the cases in February. "There are many districts that have had success," Nachmanoff said. "Unfortunately, North Carolina is behind the curve."...
Of the 14 remaining Western North Carolina cases where public defenders have pending requests for an inmate's immediate release, almost all have been delayed because the U.S. Attorney's Office has failed to file paperwork, said Rauscher, the public defender.... Rauscher said most of the inmates eligible for immediate release are nonviolent offenders. They live in halfway houses. "I'm very frustrated," she said....
A spokeswoman for Western North Carolina U.S. Attorney Gretchen Shappert declined to comment. Shappert has been an outspoken critic of the sentence reductions, testifying to the Sentencing Commission last year that it would put dangerous criminals back on the streets. Shappert testified that their release would harm law enforcement successes that help make neighborhoods in Charlotte and elsewhere less violent. "Crack dealing is not a victimless crime," she said. "It holds entire communities hostage."
Though I am not one to quickly throw around serious accusations, this press report suggests a kind of "prosecutorial nullification" might be keeping some NC defendants in federal prison longer than justice demands. As the article explains, the US Attorney in this key NC district is personally against allowing any crack defendants getting reduced sentences. She certainly can and perhaps eventually will make these arguments to the federal judges considering defendants' motions for reduced sentences. But rather than make her arguments in each case and letting a judge decide (as the law now requires), it appears the US Attorney in this key NC district may be indirectly blocking the consideration of these motions for reduced sentences by failing to file needed paperwork.
I hope anyone directly involved with or knowledgeable about what is going on in the Western District of NC might report on whether my concerns about "prosecutorial nullification" are founded. Of course, a recent case around Duke reminds us that some prosecutors in North Carolina can be motivated by concerns other than true justice. I hope the facts of what's going on in this new setting does not prove to be another case of an NC prosecutor gone wild.
March 20, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (30) | TrackBack
Around the blogosphere
Lots of good new stuff for sentencing fans at:
- Capital Defense Weekly
- Crime and Consequences
- Grits for Breakfast
- Pardon Power
- White Collar Crime Prof
March 19, 2008
Great new paper on prosecutorial choices in Mizzou
This new paper from SSRN provides fitting companion reading to today's Supreme Court work in Snyder (basics here). The piece is entitled "Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri," and here is the abstract:
This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser crimes; and defendants are sentenced to death, not lesser punishments.
The Missouri statute gives prosecutors very broad discretion. We estimate that at least 76 percent of the cases in the database are death-eligible under the statute. However, prosecutors pursued capital trials in only about five percent of the cases. Thus, death-eligible cases in which prosecutors chose not to pursue capital trials comprise at least 71 percent of the cases in the database. Prosecutors in different counties exercise their discretion differently, leading to substantial variation in charging and sentencing practices in different counties across the state. The analysis of cases by race of victim and race of defendant shows that there are racial disparities in charging and sentencing decisions, but the racial disparities are not as significant as the geographic disparities. The article presents measures of racial and geographic disparities without controlling for individual culpability; a follow-on study will introduce culpability measures as control variables.
SCOTUS overturns "OJ death sentence" in Snyder
As detailed here at SCOTUSblog, "Supreme Court ruled 7-2 on Wednesday that the trial judge in a Louisiana murder case — one that involved a prosecutor’s use of the O.J. Simpson case to try to help win a death sentence against a black man — was wrong in rejecting a challenge to the denial of a seat to one black juror." Thanks to SCOTUSblog, the decision in Snyder v. Louisiana can be downloaded here.
The voting pattern may be the most interesting aspect of this ruling: "ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined."
Especially at a time when we are having a national political dialogue about race, I will have a lot of reflections on this case (and on the complexion of the Supreme Court Justices) in future posts. For now let me make one notable observation: Senator Obama's speech yesterday mentioned O.J. (with a reference to the "OJ trial"), but did not mention Associate Justice Clarence Thomas. I wonder how that made both Justice Thomas and O.J. Simpson feel.
Is the editorial board of the Denver Post omniscient or just obtuse?
Commenting on a Colorado bill that proposes making a second offense of child rape a capital offense, this Denver Post editorial boldly asserts in its headline that "Death penalty for rape doesn't protect children." Tellingly, the text of the editorial is a little more nuanced on whether a capital child rape law could protect kids, and it also shows how opposition to the death penalty is a contributing factor to mass incarceration and extremely long prison sentences:
A bill pending in the Colorado Senate that would authorize a death sentence on a second conviction of raping a child could backfire by giving some of society's most vicious criminals a perverse incentive to kill their victims.
Senate Bill 195 by Sen. Steve Ward, R-Littleton, would authorize the death penalty for people who sexually assault a child 12 years or younger if DNA evidence links them to the crime. Ward's bill also could discourage victims from reporting abuse by relatives, fearing they'd get the death penalty. The Senate Judiciary Committee amended the bill to allow the death penalty only for rapists previously convicted of a similar attack on a child. It then sent the bill to the Appropriations Committee, where it should receive a quiet burial.
The Post has historically opposed the death penalty. But even supporters of capital punishment have strong reasons to oppose this bill. First, it endangers the very children it is designed to protect. If the penalty for rape alone is death, then a criminal vicious enough to make such a heinous attack in the first place may reason that he faces no further penalty for killing the victim. Granted, most rapists would not even think that far down the road, but why provide the incentive for those who might?
Whether or not the death penalty deters crime at all is a subject of endless debate. But what influence the law does have should always be aimed at shielding victims from even worse harm. Colorado law already allows a death penalty for a rapist who kills his victim. By executing for rape alone, Ward's bill strips victims of whatever protection they now receive under that law.
We share Ward's outrage at the kind of sick people who would rape children — but why wait for a second such heinous offense to crack down on these criminals? Current law allows sentencing child rapists to 20 or 30 years, depending on the circumstances of the crime. If the legislature wants to get tough, why not allow a life sentence on the first offense in the worst cases and thus preclude the possibility of a second offense? That's the best way to protect children.
This editorial, in my view, highlights everything wrong with modern death penalty abolitionist arguments:
- First, despite the usual denials by abolitionists that the death penalty could be an effective deterrent, the editorial uses a fuzzy and highly-suspect reverse-deterrence argument to contend that a capital child rape law could would hurt children.
- Then, in an effort to save repeat child rapists from even the possibility of capital punishment, the editorial argues that other offenders (first offenders) should be subject to longer terms of imprisonment.
- Throughout we get no real evidence or data, just false assertions and excessive confidence that life sentences (but not the possibility of death penalty) provide "the best way to protect children."
This stuff drives me crazy and, as I have tried to explain in some prior posts, may promote the worst of all possible criminal justice worlds for children and everyone else:
Effective reports on sex offending
As detailed here, the Deseret Morning News (in Utah) has published a four-part series on sex offending. Here is how they describe the series and links to the article:
Deseret Morning News reporters Lucinda Dillon Kinkead and Dennis Romboy spent three months investigating sex offenders in Utah. They spoke with 85 people whose lives have been affected by the pervasive and gut-wrenching issue of sexual abuse. This four-day series explores the widespread, growing problem that is exhausting the criminal justice system and traumatizing families.
March 18, 2008
Imagining post-Heller federal felon-in-possession litigation
I want to unpack a little more fully the basis for my post-Heller argument post, titled "Get ready for a Second Amendment rumble, defense attorneys." That post was largely inspired by the fact that, as Lyle Denniston puts it here, expected Heller swing voter "Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense." As I suggested here yesterday, the impact of Heller on federal felon-in-possession prosecutions could be significant if an enforceable Second Amendment right is conceptually premised on a robust right of domestic self-defense.
To explicate my instincts here, consider how this op-ed from Robert Levy, a catalyst for the Heller litigation, concludes:
At root, the Heller case is simple. It's about self-defense: individuals living in a dangerous community who want to protect themselves in their own homes when necessary. The Second Amendment to the Constitution was intended to safeguard that right. Banning handguns outright is unconstitutional.
As federal criminal law buffs know well, 18 U.S.C. 922(g) categorically prohibits any persons who has ever been "convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to ever at any time or for any reason "possess... any firearm or ammunition." In short, 922(g) makes it a federal crime for any person who has ever been convicted of any felony to ever possess any firearm (insider or outside homes), and this blanket federal ban on all felon gun possession is punishable with up to 10 years of imprisonment.
But when someone is convicted of a single non-violent felony — say someone named Libby convicted of lying under oath or named Snoop convicted on a drug charge or named Martha convicted of obstruction of justice — that person would not seem to completely and forever forfeit the (natural?) right of domestic self-defense. Thus, if we get a Kennedy-esque self-defense-focused ruling in Heller, at least some felons can and should hope to be covered by whatever individual rights get recognized in Heller. (Indeed, persons with a felony records are probably more likely than non-felons to live in dangerous communities and to get less-than-adequate police protection, and thus felons may genuinely need the protection of a Second Amendment right of domestic self-defense a lot more than non-felons.)
Does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a ruling that 18 U.S.C. 922(g) is categorically unconstitutional? Absolutely not. But does this mean that a Kennedy-esque self-defense-focused ruling in Heller will lead to a lot of new Second Amendment litigation in the context of felon-in-possession prosecutions. Absolutely. And that is the reason why, in my view, Solicitor General Paul Clement has been so unsolicitous of a broad Second Amendment ruling in Heller.
UPDATE: Kent writing here at C&C about Heller explains why the CJLF did not file a brief in the case. Reading between the lines of the post, I surmise that Kent agrees that a very broad Second Amendment ruling could raise new legal questions about "the authority of the government to punish more severely people who use guns to commit crimes and to bar possession of guns by convicted felons."
Busta Rhymes doesn't have to worry about bustin' out
As detailed in this AP report, a "judge sentenced Busta Rhymes to three years' probation Tuesday for assaulting his former driver and a fan, and warned the rapper to stay out of trouble." Here are more details:
The 35-year-old Rhymes, whose real name is Trevor Smith, was also ordered to perform 10 days of community service; pay a $1,250 fine, plus court costs; and enroll in a drunken driving program. After the sentencing, Rhymes said the terms of the plea deal won't be a problem. "I have no trouble being a good dude because that's what I am," he said.
Scott Leemon, Rhymes' lawyer, said a private agency called Rock Corp. will work out the community service program. He said he doesn't know yet what it will be. He also said Rhymes has paid most of the fines and surcharges he owed.
Manhattan Criminal Court Judge Larry Stephen put Rhymes on notice that he must abide by the conditions of his probation. "If you mess up, you're going to jail," he said. "I've given you a chance."
Rhymes said after the sentencing, "I couldn't feel better, and this couldn't have happened at a better time. I thank the judge for giving me a chance and I thank everybody for being supportive." The rapper said he wanted to get back to "having fun, making music, running around and showing love."
Looking at capital child rape's constitutionality through the Atkins/Roper lens
Over at CrimProf, Mike Mannheimer has this great extended post titled "Role Reversal in Kennedy v. Louisiana: Or What's Sauce for the Goose . . . ." Here are snippets from the start of the post:
Last night, the death penalty seminar I teach did a moot court of Kennedy v. Louisiana, presenting the question whether capital punishment is unconstitutionally disproportionate to the crime of the rape of a child.... The thing that struck me most after reading the briefs and participating in the moot was the sense of role reversal from Atkins v. Virginia and Roper v. Simmons. Kennedy is almost the mirror image of those cases in several respects.
As I have suggested in a number of prior posts (and will explain more fully as next month's oral argument approaches), there is an extraordinary potential richness to the Kennedy case. I am expecting — or at least hoping — that Kennedy ends up as one of the most consequential Eighth Amendment rulings in a long time. And that may be true no matter what the exact outcome in this case.
Some related posts on the Kennedy case and capital child rape legislation:
Get ready for a Second Amendment rumble, defense attorneys
In what I view to be good news for federal criminal defense attorneys, it appears from today's oral argument that the Supreme Court may be headed toward recognizing an individual right to armed self-defense protected by the Second Amendment. Here is how Lyle Denniston at SCOTUSblog sees matters after the Heller oral argument:
The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear was what kind of gun that would entail, and thus what kind of limitations government cut put on access or use of a weapon. In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense.
As I have highlighted in lots of prior posts (some of which are linked below), if individuals are recognized to have an enforceable right to have a gun for self-defense in their home, I think there could be real constitutional problems with broad federal laws that prohibit all felons from possessing any guns in any settings AND severe sentencing laws that might unduly chill an individual's efforts to keep guns safely in her home.
Some prior posts on Heller and the Second Amendment's potential impact on criminal justice realities:
Yet another analysis of Booker's real import
Now available on SSRN at this link is another piece of scholarship trying to give coherent shape and meaning to the Supreme Court's work in Booker and its progeny. This piece is titled "Re-Conceptualizing Booker: How to Stop Legislatures from Circumventing the Right to Jury Trial," and here is the abstract:
This essay offers a new, comprehensive account of the Supreme Court's recent Sixth Amendment sentencing doctrine and provides solutions to a number of well-recognized doctrinal puzzles. Existing theories lack a strong foothold in the Sixth Amendment's right to jury trial, fail to answer concerns that post-Booker appellate sentencing review might itself lead to Booker violations, and make no effort to explain how the Sixth Amendment might justify the Supreme Court's post-Booker decisions regulating federal sentencing practice.
The key to answering these dilemmas is to recognize how the Court's Sixth Amendment rule helps preserve the centrality of jury verdicts. As employed by the Court, the Blakely rule removes an incentive for legislatures to shift factfinding responsibilities away from juries and toward judges. This jury circumvention approach both respects the American legal system's dual traditions of jury trial and judicial sentencing and explains why appellate sentencing review after Booker should not raise constitutional problems. However, this novel approach also highlights the possibility that — despite the Blakely rule — Congress and the courts might implicitly collude so as to empower judges at juries' expense. This last possibility is what drives the Court's recent, otherwise inscrutable decisions in Rita, Gall, and Kimbrough.
Some new poll numbers on the death penalty
This press release reports on some new national poll numbers concerning American attitudes concerning the death penalty. Here are some of the interesting highlights:
Over the past few years there have been many high profile cases where those on death row have been found to be innocent and some states have halted executions. In the minds of Americans, this may have had an impact as the number of those who believe in the death penalty has declined since 2003. Currently, 63 percent of Americans believe in the death penalty while three in ten (30%) are opposed to it. Five years ago, almost seven in ten (69%) believed in it while 22 percent were opposed to it. In 1965, when The Harris Poll first started asking this question, just under half of Americans (47%) were opposed to the death penalty while 38 percent believed in it.
These are some of the results of a Harris Poll of 1,010 adults surveyed by telephone between February 5 and 11, 2008 by Harris Interactive....
One question with regard to the death penalty is whether or not it serves as a deterrent to others. Just over half (52%) of Americans believe that executing people who commit murder does not have much effect on deterring others from committing murder. Two in five (42%) say that executing people does deter others from committing murder....
When it comes to whether people would like to see an increase or decrease in the number of convicted criminals who are executed, there is a bit of a divide among Americans. Just over one-third (36%) believe there should be an increase while one-quarter (26%) say there should be a decrease and three in ten (31%) believe there should be no change....
There is one issue almost all Americans agree on — 95 percent of U.S. adults say that sometimes innocent people are convicted of murder while only 5 percent believe that this never occurs. This is a number that has held steady since 1999. Among those who believe innocent people are sometimes convicted of murder, when asked how many they believe are innocent, the average is 12 out of 100 or 12 percent. In looking at this by race and ethnicity, African Americans believe more innocent people are convicted than both Whites and Hispanics (25% versus 9% and 12% respectively). Democrats also believe more innocent people are convicted than Republicans (15% versus 6%).
March 17, 2008
Some questions I hope get asked in Heller
Regular readers know I find the Heller Second Amendment case really interesting, though mostly for sentencing reasons few (if any) of the pundits are even aware of. Specifically, because many link the right to keep and bear arms to a natural right of self-defense (example here), I think serious recognition of enforceable individual Second Amendment rights could impact the application of federal felon-in-possession laws and some severe federal gun sentencing enhancements. So, with these ideas in mind, here are two questions I would like to see asked in Heller:
- On what textual or conceptual basis can felons be completely excluded from the protections of the Second Amendment? (Potential follow-up: Do persons lose their natural right to self-defense by virtue of any felony conviction?)
- Given that the Third and Fourth Amendments make special mention of houses as a place where people have a special right to feel secure, should Second Amendment rights be considered more forceful when the keeping arms in the home is at issue? (Potential follow-up: Should the standard of review be different for gun laws that impact keeping guns in the home?)
Readers are, of course, highly encouraged to add other suggested Heller questions as we gear up for tomorrow's big argument.
Slate starts impressive (and confusing) new blog called "Convictions"
Ben Wittes, David Barron, Deb Pearlstein, Adam White, Dawn Johnson, Doug Kmiec, Diane Amann, Judge Nancy Gertner, Jack Balkin, Kenji Yoshino, Marty Lederman, Orin Kerr, Patrick Keefe, Eric Posner, Richard Ford, Tim Wu, Viet Dinh, Walter Dellinger, Dahlia Lithwick, Emily Bazelon, Phil Carter, and David Feige.
Though the content is already amazing, the blog's format and plans are quite confusing. Though I have seen two reports that the Convictions blog launched today, there are posts going back a week. In addition, what is right now the top post seems to just be "borrowed" from Jack Balkin's home blog, rather than "fresh" materials. And I cannot find any official list of contributors or any explanation of why Slate.com — which is already kind of bloggy — decided to start a group legal blog.
I have long been hoping that the "technological infrastructure" of blogs would improve and advance with new entrants, but Convictions seems to be a step back technologically. Still, this blog is clearly to be a must-read because of its participants. And, if the Slate folks ever decided to do a follow-up blog called Sentences, I hope I will be asked to join in the fun.
SCOTUS getting busy (though I doubt summer vacations are at risk)
Over at SCOTUSblog, Jason Harrow has this new post spotlighting that the Justices appear to be on pace for taking more cases next Term than in recent years. Here are snippets:
[T]he rate that the Court is granting cases [is] far higher in 2008 than it’s been in recent memory. Consider that since returning from Winter Recess on January 4, the Court has granted 31 cases in the first two-and-half-months of the year. If the Court continued on this pace — admittedly, this is perhaps an unrealistic assumption — they would hear roughly 150 cases next Term. That number is not unprecedented, as the modern record for oral arguments was set in the 1983 Term, when the Court heard 159 cases according to Oyez.org. But since then, the total cases heard each term has steadily declined, reaching the nadir with this term’s 70 arguments, a decline of more than 50% in 25 years. Given that trend, an immediate jump back to hearing 150 cases in a single term would be a stunning turnaround (and that’s an understatement). Yet that is precisely what the Court is now on pace to do....
It’s too soon to tell if this is a long-term trend or whether the grant rate will slow down once again for any number of reasons. For now, however, it appears that Court-watchers can look forward to an unusually full docket next Term.
Regular readers know that I have often critized the Court's recent docket dynamics. The apparent increase in grants — especially when it includes Blakely cases like today's grant in Ice — is pleasing to see. And, notwithstanding the extra work the Justices are giving themselves, I have a feeling that they will still be able to enjoy their summers off with the globe-trotting they often have done in the past.
Some related SCOTUS posts:
Corporate executives helping with reentry in New York
This article in today's Wall Street Journal, headlined "Executives Teach Inmates How to Be Employees," spotlights that the reentry movement can be aided by, and benefits from the involvement of, all types of people. Here is how the article starts:
Mark Goldsmith didn't expect to go to jail when he volunteered to be "principal for a day" at a New York City school. But after requesting a "tough school," he was assigned to Horizon Academy, a high school for inmates ages 18 to 24 at Rikers Island prison.
Mr. Goldsmith, a former executive at Revlon and Shiseido, was ushered through locked gates to the prison's classrooms. Standing in front of his new class, he looked at the young students and saw in them signs of his own difficult youth. He had never committed a crime; but he told the students he thought he was dumb, and graduated near the bottom of his high-school class....
Mr. Goldsmith felt the teaching experience was rewarding for both sides and volunteered again for the program. After, he decided he needed more than just one day a year with these inmates if he were to help them turn their lives around. In 2005, he launched his own nonprofit, Getting Out and Staying Out. GOSO, as it is called, now is working with 275 inmates serving sentences in upstate New York prisons and 150 at Rikers.
Mr. Goldsmith and 14 other current or retired executives who volunteer at GOSO, based in Harlem, plus a paid staff of six, are working to counter the familiar story of prisoners getting released without skills, jobs, money or a place to live, and then resorting to crime only to get locked up again. Fewer than 10% of the 400 released inmates GOSO has worked with have been arrested again since the group was formed three years ago. That figure compares with two-thirds of prisoners released annually nationwide who have been rearrested, according to the U.S. Department of Justice. In addition, three-quarters of the former prisoners counseled by GOSO, which receives private and public funding, are employed or attending school.
As former business executives, Mr. Goldsmith and other GOSO volunteers offer something else that's different: They understand who gets hired and promoted in a variety of industries and can teach inmates how to turn the entry-level jobs they typically get after prison into a career. "A lot of programs for prisoners are run by former prisoners or social workers, but Mark brings a business perspective, he's a role model of success and he tells kids who have never thought they can be successful that they're entitled to that," says Anthony Tassi, executive director of adult education in the mayor's office, New York.
Conviction of Qwest's Nacchio reversed on appeal, could Enron's Skilling be next?
Though technically not about sentencing, it is relevant to the white-collar sentencing world that (according to this WSJ report), "the U.S. Court of Appeals for the 10th Circuit in Denver has ordered a retrial of former Qwest head Joseph Nacchio [voting] 2-1 to overturn all 19 guilty counts ... saying that Judge Edward Nottingham had improperly excluded an expert witness ready to testify for Nacchio." As also reported by the WSJ Law Blog here, a different attack by defense counsel claiming government misconduct threatens to bring down the conviction of Enron's Jeff Skilling.
Good lawyers often can make white-collar trial convictions look questionable, especially when appearing before business-friendly appeal courts (just like good lawyers can often make capital convictions look questionable when appearing before abolition-friendly appeal courts). To add a sentencing spin, I think the severe sentences that white-collar defendants now often receive after going to trial can often play a role (albeit usually unspoken) in the willingness of appellate courts to reverse what they might consider iffy convictions.
Looooong Second Circuit ruling finds below-guideline sentences unreasonable
In a long opinion that discusses Booker and Gall at length, the Second Circuit today in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), reverses a pair of below-guideline sentences as both procedurally and substantively unreasonable. Here is how the majority opinion, per Judge Kearse, ends (on page 77!):
We have considered and found to be without merit the arguments of Cutler and Freedman in opposition to the government's appeal and cross-appeal, respectively, challenging the sentences imposed on them. Given the procedural errors, the clear factual errors, and the misinterpretations of the § 3553(a) factors discussed above — in particular of the needs to provide just punishment, to afford adequate deterrence of crimes by others, to avoid unwarranted disparities among similarly situated defendants, and to promote respect for the law — we conclude that the court's sentence on Cutler insofar as it ordered him to serve a relatively short term of imprisonment, and its sentence on Freedman insofar as it imposed no term of imprisonment, are substantively unreasonable and constituted an abuse of discretion. Accordingly, the sentences imposed on Cutler and Freedman are vacated, and the matters are remanded for further proceedings not inconsistent with this opinion.
Judge Pooler concurs — in a one-page opinion! — that includes these comments:
I agree with the majority that the two sentences about which we write today must be vacated and the cases remanded to the district court. My disagreement is, in part, with the breadth of the discussion.... Since we find that the district court has not, as yet, imposed a procedurally adequate sentence, my understanding of United States v. Booker, 543 U.S. 220 (2005), and [its progeny] is that it is premature for the appellate court to engage in substantive review....
By concluding that the sentences of Cutler and Freedman are substantively unreasonable, the majority is substituting its view of what their proper sentences are, for that of the district court, an exercise we are reminded is not within our province to accomplish.
Perhaps federal defendants should consider taking the name "64,695 pounds of skark fins" . . .
. . . because, as detailed in a case handed down today, US v Approximately 64,695 Pounds of Shark Fins, No. No. 05-56274 (9th Cir. Mar. 17, 2008) (available here), over 32 tons of shark fins managed to prevail with a due process claim in a civil forfeiture case in the Ninth Circuit. I wonder what David St. Hubbins might think about this ruling.
More on the cool Ice grant and consecutive sentencing Blakely issue
In the weeks and months ahead, I will surely blog a lot about the many interesting aspects of the consecutive sentencing Blakely issue that SCOTUS has now taken up in the new Ice case from Oregon (basics here). For now, i will be content to link to this post at SCOTUSblog which has all the Ice cert papers and also to some of my prior posts on this issue. (I must note that, when posting here about the Oregon Supreme Court decision last October, I commented that "the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court."
A few prior posts on Apprendi/Blakely and consecutive sentencing (with post date):
- Oregon Supreme Court applies Apprendi to consecutive sentences (Oct 2007)
- Will SCOTUS grant cert on Blakely consecutive sentencing issue? (May 2007)
- Washington Supreme Court addresses consecutive sentencing and Blakely (Nov 2006)
- Great Alaska opinion on Blakely and consecutive sentencing (Dec 2005)
- Is SCOTUS interested in the consecutive sentencing Blakely issue? (Aug 2005)
- Consecutive questions about consecutive sentencing (Aug 2004)
SCOTUS taking up Apprendi/Blakely consecutive sentencing issue
I am pleased to report that this morning the Supreme Court has announced that it is taking up another important Apprendi/Blakely issue. From today's SCOTUS order list (which also includes a few Gall and Kimbrough remands), here is the basic story:
07-901 OREGON V. ICE, THOMAS E.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.
Yo, Justices, Let's kick it!
Ice Ice Baby, Ice Ice Baby
All right stop, Collaborate and listen
Ice is back with a new Blakely invention
Sentencing grabs a hold of me tightly
Flow like a Justice daily and nightly
Will it ever stop? Yo I don't know...
If there is a problem, Yo, we'll solve it
Check out the issue while Berman revolves it
Ice Ice Baby Vanilla, Ice Ice Baby Apprendi
Ice Ice Baby Vanilla, Ice Ice Baby Apprendi
Another round of lawyers, guns and money
I cannot help thinking about the late great Warren Zevon and his great homage to the Cold War as I see all the media buzz over the Heller Second Amendment case to be argued in the Supreme Court tomorrow (lots of links thanks to How Appealing here and here).
It is especially interesting to think about the Heller case against the backdrop of yesterday's interesting NY Times article titled "Supreme Court Inc," which documents how the Justices' recent work has been "exceptionally good for American business." What sort of Second Amendment ruling would be good for business. Perhaps counter-intuitively, I actually think that a rejection of broad individual Second Amendment rights will be good for business because I suspect a broad individual rights ruling could (and likely would) increase pressure on gun manufacturers to accept regulation of their products and a greater number of tort suits brought against gun sellers.
Some of my prior posts on Heller and the Second Amendment:
Colorado's struggle with prison overcrowding
Here are excertps from another (all-too-common) story of a state struggling to figure out what to do about its growing prison population:
Colorado will be more than 4,600 prison beds short by 2014 if it does not start immediately on a nearly $800 million proposal to build or expand five correctional facilities, Department of Corrections Executive Director Ari Zavaras says....
Projections show the state getting by with existing facilities for two years. The system will add 1,010 beds in two projects in 2009, providing a projected 125-bed surplus. But because officials project a 4.6 percent annual growth in prisoners, the system could be short 900 beds by 2011....
[Governor] Ritter wants the state to build beds to meet the projected need. Said spokesman Evan Dreyer: "I would think that our need is immediate, so we do need to address today's prison-bed demand in an immediate fashion."
Assistant Senate Majority Leader Brandon Shaffer, D-Longmont, is more cautious, however. He said it would be preferable to save the $341 million needed to build a 2,500-bed facility and put it to health care reform or to higher education instead. And Shaffer, like others, suggested the state's greatest ally in this could be a group with which it recently has been feuding: private prisons.
Roughly 22 percent of the state's inmates are contracted to be in private prisons, a figure that Zavaras predicts could rise to 40 percent in the next few years if the state does not build more beds. But Corrections Corporation of America, which holds 90 percent of the state's private prisoners in its facilities, has requested at least a 4.25 percent increase in its per-day prisoner fees, while the state wants to give no more than 3 percent....
There also is the issue of sentencing reform, a concept pushed largely by Democrats as a way of reduce some nonviolent offenders' sentences and clear room in state facilities. No recommendations have come forward on that front, however. The matter is urgent and should be addressed in the coming months, legislators say.
March 16, 2008
Could tough three-strikes laws increase crime?
Thanks to this post at Volokh, I found this notable new paper from a Harvard researcher titled "I'd Rather Be Hanged for a Sheep than a Lamb: The Unintended Consequences of 'Three-Strikes' Laws." Here is the abstract:
Strong sentences are common "tough on crime" tool used to reduce the incentives for individuals to participate in criminal activity. However, the design of such policies often ignores other margins along which individuals interested in participating in crime may adjust. I use California's Three Strikes law to identify several effects of a large increase in the penalty for a broad set of crimes. Using criminal records data, I estimate that Three Strikes reduced participation in criminal activity by 20 percent for second-strike eligible offenders and a 28 percent decline for third-strike eligible offenders. However, I find two unintended consequences of the law. First, because Three Strikes flattened the penalty gradient with respect to severity, criminals were more likely to commit more violent crimes. Among third-strike eligible offenders, the probability of committing violent crimes increased by 9 percentage points. Second, because California's law was more harsh than the laws of other nearby states, Three Strikes had a "beggar-thy-neighbor" effect increasing the migration of criminals with second and third-strike eligibility to commit crimes in neighboring states. The high cost of incarceration combined with the high cost of violent crime relative to non-violent crime implies that Three Strikes may not be a cost-effective means of reducing crime.
AG Mukasey going through the sentencing looking glass
My last two posts have me really wondering whether being a inside-the-Beltway must be like being in Alice's mixed-up Wonderland. To date, United States Attorney General Michael Mukasey has expressed two notable sentencing viewpoints: (1) in a discussion concerning the sentencing of crack defendants, AG Mukasey has advocated to Congress against the U.S. Sentencing Commission's unanimous decision to make some prior drug defendants eligible for retroactive sentencing justice, and (2) in a discussion concerning the sentencing of 9/11 defendants, AG Mukasey has indicated to Europeans that he hopes leniency be shown to defendants who played a role in the murder of thousands of Americans.
Wow! The symbolic impact of these two notable sentencing viewpoints coming from the top US law enforcer is telling: apparently we should not be too concerned about really achieving sentencing justice in either the war on drugs or the war on terror. In both wars, it seems, the US Attorney General believe we should just lock everyone away in tiny cages for as long as possible and hope that this (very expensive) approach to crime will keep us safer.
Once again, I am surprised to discover that I am missing the "wisdom" of Attorney General Gonzales.
Some recent related posts:
- Guantánamo detainee cases now about sentencing issues
- Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?
- Is AG Mukasey going soft on the federal death penalty?
- More details on DOD seeking the death penalty in GTMO cases
Op-ed on "Crack-cocaine sentencing injustice"
Professor Mark Osler has this new op-ed titled "Crack-cocaine sentencing injustice." Here are snippets:
By 1995, hundreds of African-Americans had been prosecuted for crack offenses, but relatively few whites. In 1993, for instance, over 88 percent of the mandatory minimum sentences for crack were imposed on blacks. Aside from the obvious racial disparity, the law did not seem to be doing its job of deterring crime. The crack epidemic expanded at the same time as the prison population. Part of the problem with the 100:1 ratio was that it was an incentive to sweep up the members of a drug conspiracy who were most easily replaced....
For nearly two decades, the 100:1 ratio was part of mandatory minimum sentences and the federal sentencing guidelines. However, recently the 100:1 ratio finally was bent back toward reasonableness. First, the United States Sentencing Commission modified the federal sentencing guidelines. It reduced sentences for crack cocaine relative to powder, but still provided stiffer sentences for crack. Next, the Supreme Court ruled that judges could depart from the 100:1 ratio if they disagreed with it on policy grounds. Finally, the Sentencing Commission decided that the changes in the crack law would apply retroactively....
Even after these long-overdue changes, one voice cried out in support of maintaining the 100:1 ratio. That was Attorney General Michael Mukasey. Despite the near-uniform urging of experts that the ratio be changed, Mukasey urged Congress to reverse the Sentencing Commission’s decision.
Some recent related posts:
- A retroactive litmus test on leading Democratic candidates
- Is Senator Clinton to the right of Justice Scalia on sentencing issues?
- Race, class and criminal justice in campaign 2008
- Interesting new op-ed on crack sentencing and clemency
- Latest FSR issue covers crack sentencing
Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?
I have never quite figured out what's going on with the Justice Department under the leadership of AG Michael Mukasey, but this new piece from ABCNews has me really scratching my head. As reported in the piece, Mukasey is speaking out against the death penalty for terrorists accused of 9/11 involvement, even though DOJ is helping with the capital prosecution of these terrorists. Here are excerpts from this peculiar and very troubling story:
Attorney General Michael Mukasey suggested Friday that he believes the alleged 9/11 plotters held at Guantanamo Bay should not be executed if convicted. "I kind of hope they don't get it," Mukasey said after a speech at the London School of Economics. "Because many of them want to be martyrs, and it's kind of like the conversation ... between the sadist and the masochist." "The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it," he said.
In February, the Pentagon charged six of the 9/11 conspirators, including the alleged mastermind Khalid Sheik Mohammed. The others: Walid Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa al Hawsawi -- who the government claims is a key financier for the attacks -- and Mohammed al Kahtani, who is alleged to have been the 20th hijacker on United flight 93 but was denied entry into the United States at the Orlando International Airport....
Of those charged in connection with the Sept. 11 attacks, "one of them at least is proud enough of it to have written to his wife that he thinks he is innocent because it was only 3,000," Mukasey said. "If those are not poster children for the death penalty, I don't know who is."
Mukasey made clear the statements are his personal opinion, and heavily qualified them. "In a way, I kind of hope, from a personal standpoint, and I can say this because the military commissions will be run by the Department of Defense not by the Justice Department -- although we are participating with them, and helping them in the prosecution, but it will be run by the Department of Defense," he said.
Still, the statement seems at odds with Bush administration policy that broadly supports the death penalty. The record suggests the administration believes capital punishment is the most appropriate penalty for terrorists convicted of killing Americans. The administration spent years on a failed attempt to put low-level al Qaeda operative Zacarias Moussaoui to death for what critics call his murky, overstated role in the 9/11 conspiracy.
The decision on whether to pursue the death penalty against the Guantanamo Bay prisoners will ultimately be the military's, so Mukasey's comments will likely have little practical impact. Susan J. Crawford, a Military Appeals Court judge, is the convening authority for military commissions and will decide whether alleged terrorists should face a capital case and be eligible for the death penalty. But given that the White House likes to speak with one voice, the low-key Mukasey might prefer that his comments not draw much attention.
Correct me if I am wrong, but it seems, from this media report, that the Attorney General of the United States has suggested to a European audience that islamofacist terrorists involved in the 9/11 attacks are "masochists" and also suggested those involved in the American system trying to bring these terrorists to justice are "sadists."
For a number of reasons, I am deeply, deeply troubled that the current US attorney general would make these kind of statements to an international audience. I am sincerely hoping that this media report on the AG's comments are inaccurate, because if they are accurate I think the comments are truly scandalous and seriously risk undermining the US position in the war on terror. His comments cannot help me wonder whether AG Mukasey was secretly glad that his Justice Department failed to get the death penalty for Zacarias Moussaoui, and whether AG Mukasey is troubled that the Iraqi justice system executed Saddam Hussein and others who committed horrendous war crimes.
Perhaps as troubling as these comments is the lack of media attention they have drawn to date. On every channel, I see pundits complaining about provocative comments made by a man of the cloth, Reverend Jeremiah Wright. But the significance and potential impact of one preacher's comments to his own congregation seems to be minuscule compared to the significance and potential impact of America's top law enforcement agent suggesting to an international audience that vile islamofacist terrorists who helped kill thousands of Americans are "masochists" and that those involved in the American system trying to bring these terrorists to justice are "sadists."
Perhaps I am wrong to be so taken aback by AG Mukasey's comments. But, especially during a weekend in which so much venom is being directed toward a preacher, I cannot help but wonder why the AG's troublesome comments are not generating A LOT more attention and criticism.
UPDATE: Over at TalkLeft, Jeralyn has this long and effective post defending AG Mukasey's comments. Here is part of that post:
If you are a proponent of the death penalty, you'll read Mukasey's comments one way. If you oppose it, you'll be glad we have an Attorney General who at least has occasional qualms about the death penalty and isn't afraid to express them. I'm in the latter group. I also appreciate that Mukasey is concerned about our image in the world and how others see us.
I suppose I am pleased to that Jeralyn of TalkLeft and readers of Instapundit (via these comments) seem to agree that islamofacist terrorists who helped kill thousands of Americans should not get the death penalty. On this front, I am proud to disagree.
ANOTHER UPDATE: Steven Banbridge provides, on Palm Sunday no less, a distinctly Catholic response here. And I now see from this new news report that an attorney defending the suspected terrorists is not pleased that AG Mukasey is speaking out of turn:
US Attorney General Michael Mukasey said late on Friday he hoped Guantanamo prisoners charged in the Sept 11 attacks would not receive the death penalty, even though capital punishment would be fitting. His comments were swiftly denounced by a defence attorney for one of the accused and by Amnesty International, who said they could prejudice the case....
Army Lt Col Bryan Broyles, a military lawyer assigned to defend Mohammed al-Qahtani, one of the six current death penalty cases at Guantanamo, said the case was already tainted by suspected US abuse of Qahtani. He added that it was improper for Mukasey to comment. “I appreciate him being on my side on the death penalty thing, but I don’t need his help,” Broyles said. The Pentagon declined to comment.