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April 16, 2008

Will the Baze decision (and the Kennedy argument) make the death penalty a hot political issue?

As regular readers know, I have been eagerly awaiting a time when the death penalty is a major political issue in the 2008 campaign.  Notably, Pennsylvania, North Carolina and Indiana — not no mention the federal government — all have very interesting death penalty practices and politics.  And, with the Baze lethal injection ruling today and the Kennedy child rape oral argument, the news cycle will surely be focused on death penalty issues over the next few days.

I am very hopeful and eager for reporters and pundits to ask all the major candidates a lot of hard questions about the death penalty, in part because I do not think any of them have good talking points on the intricate (and politically complicated) "culture of life" issues that the modern system of capital punishment raises.  I am not optimistic that we will have a sober or sensible political discussion of the modern death penalty, but at least we may have a sound-bite one that will provide grist for my blogging mill.

Some recent related posts:

April 16, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (5) | TrackBack

Now that Baze is out, when and where will there be the first "new" execution?

Before even having a chance to consume the nearly 100-page Baze lethal injection ruling from SCOTUS today, the basic outcome has me now wondering which state will be the first to get its execution chamber up and running again and when the current de facto moratorium on executions will be officially ended.

The easy guess is that Texas will be the first to have a post-Baze execution, but I might put money on the possibility that some other state will beat Texas to the death punch.  And, though I suspect we may see an execution before the end of the month, I would not be surprised at all if death penalty abolitionists find aspects of the Baze ruling that enable them to bring further challenges to execution protocols.

Insights and predictions on post-Baze realities are both welcome and encouraged in the comments.

Some related posts on Baze-ian execution realities:

April 16, 2008 in Baze lethal injection case | Permalink | Comments (9) | TrackBack

Baze is confused and other SCOTUS news

I had an inkling the Supreme Court might decide the Baze lethal injection case, and SCOTUSblog reports here that my inkling was right:

In a widely splintered decision, the Supreme Court cleared the way for executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. The final vote was 7-2 in Baze v. Rees, although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”

In addition, as reported here by SCOTUSblog, the Court also handed down two statutory interpretation sentencing cases, with notable results and votes:

The Supreme Court, in the first of its rulings on Wednesday, decided that druk driving is not a “violent felony,” at least for purposes of an enhanced prison sentence under the Armed Career Criminal Act.  The ruling, written by Justice Stephen G. Breyer, came on a 6-3 vote in Begay v. U.S. (06-11543). In a second decision on an enhanced sentencing law, the Court ruled that a drug crime that is punishable by more than one year in prison is a “felony drug offense” even if state law classifies it as a misdemeanor.  The unanimous ruling came in the case of Burgess v. U.S. (06-11429).

In short, there is a lot to talk about in the sentencing world today, and here are links to the raw material I will need to consume before being able to comment intelligently:

Today’s opinion by Justice Breyer in Begay v. United States (06-11543) is now available here. Justice Scalia filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justices Souter and Thomas joined.

Today’s unanimous opinion by Justice Ginsburg in Burgess v. United States (06-11429) is now available here.

Today’s opinion in Baze v. Rees (07-5439) is now available here. The Chief Justice announced the judgment of the Court and delivered an opinion in which Justices Kennedy and Alito joined. Justice Alito also filed a concurring opinion. Justice Stevens and Breyer each filed an opinion concurring in the judgment. Justice Scalia and Thomas each filed an opinion concurring in the judgment, in which the other joined. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

April 16, 2008 in Baze lethal injection case | Permalink | Comments (2) | TrackBack

Telling trio of reasonableness reversals in the circuits

Anyone who expected or hoped that the Supreme Court's rulings in Gall and Kimbrough would radically change the nature and nuances of circuit court reasonableness review should be sure to check out this trio of circuit sentencing reversals from Tuesday:

There is a lot of thoughtful nuance in all of these rulings, which defy simple summaries.  It can and should be readily noted, however, that the government prevails in its sentencing appeal in all three cases.

April 16, 2008 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

A quick round-up before Kennedy capital child rape argument

At 10am today, the Supreme Court is scheduled to hear argument in Kennedy v. Louisiana (07-343), the highly-anticipated case examining the constitutionality of imposing the death penalty for child rape. 

Both the mainstream media and bloggers have given the case considerable attention recently, with notable new pieces from CNN and Bloomberg and with new posts from Capital Defense Weekly and Concurring Opinions and The Faculty Lounge.  In the blogosphere, the most consistent and complete coverage of the Kennedy case has been over at Sex Crimes, which has a number of new posts on the case and has this fantastic resource page on the case.

For lots of reasons, I think that the Kennedy case could be very jurisprudentially consequential and that today's oral argument might well provide some insights into a case that I consider to be very challenging on the merits.  Some of my thoughts on the Kennedy case and the issues it raises can be found in these prior posts:

April 16, 2008 in Kennedy child rape case | Permalink | Comments (3) | TrackBack

"Punishing Family Status"

The title of this post is the title of this new paper available via SSRN.  Here is the abstract:

This Article spotlights two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status?  We address the first question in Part I by first revealing a variety of laws permeating the criminal justice system that together form a string of "family ties burdens" or penalties that impose punishment upon individuals on account of their familial status. The six burdens we train our attention on are omissions and vicarious liability, incest, bigamy, adultery, and failure to pay child support.

Part II then develops a framework for the normative assessment of these family ties burdens, asking in which ways can these laws be properly understood as "burdens."  By looking at these sites synthetically, we also uncover a latent rationale for these family ties burdens: namely, the promotion of voluntary care-giving relationships.  We explain the nature of this rationale and its implications for proper policy design¿particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

Dan Markel, one of the co-authors of this paper, discusses the work in this post at PrawfsBlawg.

April 16, 2008 in Offender Characteristics | Permalink | Comments (0) | TrackBack

Circuit in mile-high city dodges RFRA claim by high-times church

Though not dealing with a sentencing issue, I cannot help but spotlight this first paragraph of the background section in this new Tenth Circuit ruling:

The defendants were charged in a two-count indictment with conspiring to possess and actual possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.  In their motion to dismiss the indictment, the defendants argued they are members of the Church of Cognizance and sincerely believe cannabis is a deity and sacrament essential to the practice of their religion.  The defendants further argued that this enforcement of the Controlled Substances Act is contrary to RFRA because it substantially burdens their free exercise of religion, without furthering a compelling government interest.

Readers will have to click through to the opinion to get the full story of how the ganja gods faired in this case.

April 16, 2008 | Permalink | Comments (0) | TrackBack

April 15, 2008

Quick SCOTUS sentencing argument day report

I'm still on the road, but have long enough on-line to note this post at The BLT about today's two SCOTUS sentencing cases argued today and also to provide links to the transcripts thanks to SCOTUSblog:

The transcript of today’s argument in in Greenlaw v. United States (07-330) is now available here.

The transcript of today’s argument in in Irizarry v. United States (06-7517) is now available here.

I likely won't get a chance to process these transcripts and all the other day's sentencing developments until very late, but readers are encouraged to share their thoughts before I even get a chance to develop mine.

April 15, 2008 in Who Sentences? | Permalink | Comments (2) | TrackBack

On the road during SCOTUS sentencing day

SCOTUSblog has this effective preview of a Tuesday full of sentencing action in front of the Justices:

At 10 a.m., the Court is scheduled to hear argument in Greenlaw v. United States (07-330), involving appellate judges’ ability to increase sentences sua sponte....  At 11 a.m., the Court is scheduled to hear argument in Irizarry v. United States (06-7517), involving judges’ duty to notify parties before departing from the sentencing guidelines....

In advance of the arguments, the Justices may release one or more opinions.

Because I will be on the road most of today, readers should head over to How Appealing and SCOTUSblog for early reports on all the SCOTUS happenings.  If my travels go smoothly, I hope to be able to recap all the highlights this evening.

April 15, 2008 in Who Sentences? | Permalink | Comments (1) | TrackBack

Federal prosecutors want Wesley Snipes imprisoned for three years

As detailed in this Orlando Sentinel article, federal prosecutors are looking for a maximum statutory sentence for Wesley Snipes at his sentencing next week: "Actor Wesley Snipes should go to prison for three years and pay a fine of at least $5 million, prosecutors in his tax case said in a sentencing memo filed today."  Here are more details:

Snipes was convicted in February of willfully failing to file a tax return, but he was acquitted of felony conspiracy and tax-fraud charges.  "This case cries out for the statutory maximum term of imprisonment, as well as a substantial fine," prosecutors wrote in their sentencing memo filed in federal court in Ocala, "because of the seriousness of defendant Snipes' crimes and because of the singular opportunity this case presents to deter tax crime nationwide."

As I suggested in a prior post, given that the jury rejected all the felony charges brought against Snipes, this case could present a real interesting setting for a debate over acquitted conduct sentencing enhancements.

Some related posts:

UPDATE:  Thanks to White Collar Crime Prof Blog's post here, the government sentencing brief in US v. Snipes, filed in anticipation of the sentencing hearing set for April 24, can be accessed at this link.

April 15, 2008 in Celebrity sentencings | Permalink | Comments (18) | TrackBack

Tracking executions worldwide

This new AP article reports on the latest execution data from Amnesty International.  Here are the details:

China reduced the number of executions it carried out last year but still executed more people than any other country in the world, Amnesty International said Tuesday in its annual report on the death penalty worldwide.

Iran remains the country with the second-highest number of executions, with 377 killings that included a man stoned for adultery, the human rights group said.  The number of American executions fell to its lowest level in about 15 years, putting it fifth in the world with 42, Amnesty officials said.

Amnesty analysts said that early in 2007 China reformed the way capital cases are handled, leading to a substantial reduction in executions. They said at least 470 people were put to death, from 1010 in 2006. But they cautioned that the actual number is undoubtedly higher, and warned that any drop may be temporary....  Amnesty reported that three countries -- Iran, Yemen, and Saudi Arabia -- put people under the age of 18 to death, the youngest a 13-year-old executed in Iran in April.

April 15, 2008 in Death Penalty Reforms | Permalink | Comments (10) | TrackBack

SCOTUS denies cert in long juve sentence case

On Monday, as detailed in reports from SCOTUSblog and CNN and the New York Times, the Supreme Court denied cert in Pittman v. South Carolina, the juve sentencing case raising constitutional questions about a 30-year mandatory sentence for a 12-year-old killer.  Here is the start of the NYT report:

The Supreme Court declined on Monday to hear an appeal from a South Carolina teenager who was sentenced to 30 years in prison for killing his grandparents with a shotgun when he was 12 years old.

Without comment, the justices refused to review the sentence imposed on Christopher Pittman, whose case attracted wide attention not only because of his age and the sentence he received, but because his lawyers blamed the antidepressant Zoloft for his violent behavior.

Defense lawyers asked the Supreme Court to consider whether the 30-year term violated the constitutional ban on cruel and unusual punishment in light of the defendant’s age at the time of the crime.  The South Carolina Supreme Court ruled last June that the boy’s trial had been fair and the punishment was just.

This case will now likely head to a federal district court through a habeas action; it will be very interesting to see if any lower federal court might find merit in the constitutional claims made in Pittman.

UPDATE:  A commentor rightly notes that this case will have to go through the state post-conviction review process before heading into federal habeas.

April 15, 2008 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Michigan's struggles with bulging prisons

The Detroit News has this extended article on Michigan's over-crowded prisons, headlined "Bulging prisons drain Michigan's budget: State faces hard choices as get-tough laws put more behind bars."  Here is how it starts:

Michigan runs one of the nation's largest and most costly prison systems, a $2 billion-a-year expense that is crowding out other spending priorities at a rate many officials fear the state can no longer afford.  Yet despite near-unanimous agreement that Michigan can't pay ever-rising corrections bills during a period of economic decline, politicians and law enforcement professionals remain hesitant to spend less by changing sentencing guidelines or paroling more prisoners.

"Our efforts to grow Michigan's economy and keep our state competitive are threatened by the rising costs in the Department of Corrections," Gov. Jennifer Granholm told The Detroit News.  "We spend more on prisons than we do on higher education, and that has got to change."

The problem is reaching a crisis: Michigan's system is already the nation's sixth-largest overall, and ranks 15th among the states in the cost per inmate.  It could exceed capacity within two months, said Chief Deputy Corrections Director Dennis Schrantz, unless lawmakers approve stop-gap measures, such as doubling the number of inmates in the state boot camp program.

If the inmate population, now about 50,000, exceeds 51,800, the department will have to ask the Legislature for more money to house, feed, clothe, educate and guard the inmates.  "We could be in pretty dire shape for funded beds in May or June of this year," unless changes are made, Schrantz said.

The Corrections Department already devours 20 cents of every tax dollar in the state's general fund and employs nearly one in every three state government workers, compared with 9 percent of the work force 25 years ago.  "Because we're spending more state dollars in areas such as prisons, we're taking funding away from areas that are real priorities for citizens and for economic growth," said Dan Gilmartin, executive director of the Michigan Municipal League.

April 15, 2008 in Scope of Imprisonment | Permalink | Comments (9) | TrackBack

April 14, 2008

Notable DC Circuit ruling on Fifth and Sixth Amendment rights

A busy schedule kept me from noticing an interesting opinion by the DC Circuit late last week in US v. E-Gold, Ltd., No. 07-3074 (DC Cir. April 11, 2008) (available here).  Though focused on an array of issues in a civil forfeiture context, the conclusion highlights why the ruling might have broader implication than it might seem upon first look:

In short, we hold that where the government has obtained a seizure warrant depriving defendants of assets pending a trial upon the merits, the constitutional right to due process of law entitles defendants to an opportunity to be heard at least where access to the assets is necessary for an effective exercise of the Sixth Amendment right to counsel.  We need not determine, nor do we determine, whether the due process rights of the defendants compel such a hearing when the assets are not necessary to obtaining counsel of choice.

I am too distracted with other matters this week to figure out whether E-Gold might be a hidden nugget (or perhaps fool's gold) for those interested in expanded Fifth and Sixth Amendment rights.  Perhaps readers can do the hard work of talking through whether there are golden constitutional possibilities in the comments.

April 14, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

T-shirt approach to shaming sanctions

Thanks to this post at TalkLeft, I see that renown Arizona sheriff Joe Arpaio has a new shaming punishment in the works.  This AP story provides the details:

Female inmates in Maricopa County have been on chain gangs since 1996.  Now, 15 of them will be wearing T-shirts that say, "I was a drug addict," as they remove trash from a Phoenix street today.

The Maricopa County Sheriff's Office said the move is designed to discourage young people from using drugs.  Sheriff's spokesman Capt. Paul Chagolla said nearly half the women on the chain gang were addicted to crystal meth.

Sheriff Joe Arpaio said the women have sad stories about what drugs have done to their lives and that they want to help others make better choices than they did.

April 14, 2008 in Criminal Sentences Alternatives | Permalink | Comments (13) | TrackBack

April 13, 2008

Big SCOTUS sentencing week ahead

As previewed here at SCOTUSblog, this coming week brings some notable sentencing cases before the Justices:

On Tuesday, the Court is scheduled to hear argument in Greenlaw v. United States (07-330), involving appellate judges’ ability to increase sentences sua sponte, and Irizarry v. United States (06-7517), involving judges’ duty to notify parties before departing from the sentencing guidelines....

On Wednesday, the Court is scheduled to hear argument in Kennedy v. Louisiana (07-343), involving the constitutionality of imposing the death penalty for child rape....

In addition, there will be SCOTUS orders released on Monday and probably a few opinions released on Tuesday and Wednesday.  Many criminal justice cases are among those that have been pending before the Justices for the longest time since argument, so sentencing fans should gear up for what might be a very exciting week.  As evidenced by some media coverage assembled here at How Appealing, the Kennedy capital child rape case is likely to garner the most attention.  But I'll try to cover all the action, even though I am on the road much of this week.

UPDATE:  More proof today that Kennedy is the big SCOTUS case of the week comes from this front page article in the Washington Post, headlined "Child Rape Tests Limits Of Death Penalty: La. Law Spurs Review Of Eighth Amendment."

April 13, 2008 in Who Sentences? | Permalink | Comments (0) | TrackBack

Creative sentencing for T.I. creates concerns

As detailed in this Atlanta Journal-Constitution article, the creative sentence engineered for the rapper T.I. is creating a stir.  Here is the start of the article:

Both were felons caught with guns. Popular rapper T.I. was sentenced to a year and a day in prison after he pleaded guilty to possessing three machine guns and two silencers, all bought from an undercover federal agent and just a fraction of all the weapons taken from his house and car that day.

In comparison, James Harold Ingram, an unknown, got two years in prison when federal agents, investigating reports he had a moonshine operation, arrested him with four rifles and marijuana he had planned to sell.

T.I., whose legal name is Clifford Harris Jr., had something to offer beyond his cooperation and admission of guilt: his fame, his name and his potential influence over kids who might think guns and violence are cool. Ingram had nothing.

While some have suggested T.I.'s unusual deferred sentence is lenient, U.S. Attorney David Nahmias said it was negotiated because Harris and his attorneys offered a plan to prevent crime. His prison sentence of one year and a day begins only after he has spent at least 1,000 hours preaching the message that violence and guns are bad. With earned time off, his prison stint could be cut to just over 10 months.  But if he fails to meet conditions, he could be sent for prison for almost six years.

"It's not ... because he's a star he gets a lower sentence," Nahmias said.  "Being a star isn't a reason to be targeted or a reason for a lower sentence. If you help convict others, you get a lower sentence. What he proposed was to go out and help prevent crime.  If he's able to prevent a crime, that's something you should get a reduced sentence for."

It's his star quality that makes the plan workable, legal experts say.  "He got it because he's a celebrity and has a bigger impact and is able to offer more to offset the sentence," said defense attorney Michael Trost, a former prosecutor.  "Do I think he got it just because he's a celebrity? No."

April 13, 2008 in Celebrity sentencings | Permalink | Comments (9) | TrackBack

SCOTUS sentencing cases involve unusual advocates

Writing in the Legal Times, Tony Mauro has this interesting piece headlined, "Supreme Court Justices Turn to Ex-Clerks for Unusual Role: Former clerks tapped to make the arguments others have abandoned."  Here is how it starts:

On Jan. 7, Jay Jorgensen took an unusual call from his former boss, Supreme Court Justice Samuel Alito Jr.  Alito's request: Would Jorgensen have time to argue a Supreme Court case in April — a case Jorgensen had never heard of — for free?

In Greenlaw v. United States, it seems the government had decided that it agreed with plaintiff Michael Greenlaw on the main sentencing-related issue in the case.  So the Court needed someone else to argue against lawyers for Greenlaw, a Minneapolis drug dealer.

Jorgensen, a partner with Sidley Austin, eagerly agreed to the invitation, and on Tuesday he will make his debut before the high court. In doing so, he follows a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks.  Among them: John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins.

Even more rare is the fact that Jorgensen won't be the only lawyer arguing as an appointed counsel under these circumstances on Tuesday. In a separate sentencing case called Irizarry v. United States, Catholic University law professor Peter "Bo" Rutledge, a former Clarence Thomas clerk, will also be appearing as "amicus curiae in support of the judgment below," as the Court phrases it.  This will also be Rutledge's first time before the Court.

"I've been talking to Bo. We're both honored and both scared," says Jorgensen. Rutledge declines comment.

These once-in-a-lifetime opportunities to argue before the Court arise when, as in Greenlaw, the respondent abandons the lower court decision that the petitioner is challenging. That scrambles the usual adversary nature of Supreme Court cases, because it means, in essence, that both sides think the lower court decision was wrong or should be vacated.  In that circumstance, which has not arisen for five years before this term, the Court appoints a lawyer — almost always a former clerk — to make the orphaned argument.

April 13, 2008 in Who Sentences? | Permalink | Comments (6) | TrackBack