March 18, 2008
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.