April 21, 2008
Missouri pols all calling for child rape to be a capital offense
As detailed in this two pieces from the St. Louis Post-Dispatch, top political rivals share the belief that child rape should be a death penalty eligible offense:
Of course, the constitutionality of capital child rape is being contemplated by the Supreme Court right now in the Kennedy case. And headlines like these might make it just a bit more likely that the Justices will not prevent from expanding the death penalty in this way.
Some recent related posts:
- Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence
- Will the FLDS case impact perceptions of child rape and sex offenders?
- The latest views of the Kennedy capital child rape case
- Focused analysis of distraction of Kennedy case
Interesting historical look at the length of prison sentencing
Recently appearing on SSRN is this interesting new piece providing a distinct window into a notable period in the history of prisons and prison sentences. The piece is titled "The Origin of Long Prison Sentences in America: A Case Study of Pennsylvania, 1829-1865," and here is the abstract:
Penal historian David J. Rothman has described early American prison sentences as "very long" while French emissaries Gustave de Beaumont and Alexis de Tocqueville, writing in 1833, described the American penitentiary system as "severe." Though there exists a rich body of literature interpreting the birth of the prison, few scholars have written on the length of prison sentences that accompanied this birth. Using the length of prison sentences assigned to 1,727 convicts sentenced to the Eastern State Penitentiary in Pennsylvania in a dozen years falling between 1829 and 1865, this study investigates how long prison sentences were in Pennsylvania, what factors (race, age, gender, nationality, state of origin, recidivist status) affected sentence length, and how sentence length changed over time. Additionally, it compares Pennsylvania‘s sentence lengths to other American states to determine how representative Pennsylvania‘s prison sentences were of American prison sentences generally. Finally, it compares Pennsylvania‘s sentence lengths to those of Great Britain. While acknowledging the difficulty in comparing prison sentence lengths of different penal regimes in different states or countries, this study determines that Pennsylvania generally distributed shorter sentences than most other American states, but longer sentences than those in Great Britain. These quantitative differences are then situated in the "American exceptionalism" debate regarding contemporary penality in the United States and abroad.
Can we thank Judge Posner for the latest ACCA cert grant?
I see now from this post at SCOTUSblog that the Supreme Court's new ACCA case on its docket comes from the Seventh Circuit in a case in which, as detailed here, Judge Posner was in fine form. The case is US v. Chambers, and SCOTUSblog as all the cert papers assembled here for those interested in seeing the back-story for the latest trip into ACCA-land.
Eleventh Circuit reverses sentence "impermissible factor"
The Eleventh Circuit has reversed a short probation revocation sentence US v. Velasquez, No. 06-16637 (11th Cir. Apr. 21, 2008) (available here) because the judge relied on an "impermissible factor." Here are the highlights:
Wilber Guillermo Velasquez Velasquez appeals his nine-month sentence for violation of his supervised release. Velasquez’s sole argument on appeal is that his sentence was based on the district court’s disapproval of the fact that immigration officials had released him on bond pending the outcome of his asylum proceedings. Velasquez argues that the district court exceeded its statutory sentencing authority by basing his sentence on this fact. We agree. Whether he should have been detained or released during the pendency of his immigration proceedings was a matter for an immigration judge to decide, and the district court lacks jurisdiction over immigration matters. We vacate his sentence and remand for resentencing....
In reviewing the reasonableness of a sentence imposed after conviction, we review de novo, as a question of law, whether a factor considered by the district court in sentencing a defendant is impermissible. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). “A sentence that is based entirely upon an impermissible factor is unreasonable because such a sentence does not achieve the purposes of § 3553(a).” United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006).
Here, the district court imposed Velasquez’s sentence as if it were reviewing (and overturning) the IJ’s decision to release Velasquez on bond pending his immigration proceedings. However, the district court lacks the authority to do so.
Another ACCA case and the Baze aftermath from SCOTUS
The Supreme Court agreed on Monday to rule on the government’s power to impose “anti-dumping” import fees on foreign goods that are re-manufactured from U.S. raw materials, and returned to the U.S. at a low price. The Court also granted a second case, testing whether a failure to report to prison that leads to a conviction for escaspe can be the basis for enhanced sentencing under the Armed Career Criminal Act.
In a series of orders following up its ruling last week allowing states to use the lethal injection method of capital punishment, the Court simply denied review of 11 appeals by death-row inmates. Justic e John Paul Stevens noted in two of the case that denial of review was not the same as a rejection of the inmates’ legal challenges on the merits. Although some inmates have claimed that the procedure in their states differs in some ways from the procedure upheld by the Court in Baze v. Rees, the Court did not order lower courts in any of the 11 cases to reconsider and take Baze into account.
Looking at the Justices' methods in Baze
At FindLaw, Michael Dorf has this new essay, titled "How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality." Here is how it starts:
Last week, in Baze v. Rees, the U.S. Supreme Court rejected a constitutional challenge to Kentucky's administration of the death penalty via lethal injection. To say that the case divided the Justices would be a gross understatement. There was no opinion for the Court as a whole, and the nine Justices wrote a total of seven separate opinions.
In the short term, the Baze decision will result in the resumption of executions, which had been subject to a de facto moratorium since the Court agreed to hear the case. In the long term, the decision's likely impact is unclear.
The controlling opinion of Chief Justice Roberts finds insufficient evidence in the record to support a conclusion that Kentucky's administration of its three-drug lethal injection poses a "substantial risk of serious harm," and thus to warrant the Court's ruling that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. However, the Chief Justice's opinion leaves open the possibility that such evidence might be found in a different case from a different state. For the next few years, therefore, we are likely to see challenges to the application of lethal injection in various states, and eventually the issue may return to the Supreme Court.
Whatever the ruling's ultimate practical impact may be, however, the Baze decision is important for the mode of reasoning the Court employs. The controlling opinion by Chief Justice Roberts — joined by Justices Kennedy and Alito — appears to endorse the proposition that the state can expose people to an increased risk of an excruciating death on what amount to merely aesthetic grounds.
April 20, 2008
"Retributive Justice in the Real World"
The title of this post is the title of an interesting-looking article by Professor Michael Cahill, available at this link. Here is the abstract:
In 2003, Attorney General John Ashcroft announced a set of Department of Justice (DOJ) policies designed to curtail federal prosecutors’ discretion to plea bargain. The new DOJ rules sought to ensure uniform criminal punishments and prevent criminal offenders from cutting deals to avoid deserved punishment. Yet the would-be ban on bargaining seems to have had little, if any, effect. Such a result is hardly surprising, as the policy’s spirit of pursuing justice at all costs, however noble, is unworkable if the pursuers cannot actually pay all costs. Limitations of budget, resources, or evidence inevitably demand some compromises, such as a tradeoff between seeking the maximum punishment for each offender and ensuring some punishment for all offenders. Because Ashcroft’s memorandum could not articulate clear rules for how or when prosecutors could take these practical constraints into account, the result was more business as usual: unguided and unreviewable exercises of prosecutorial discretion in individual cases.
Both the adoption and the failure of the DOJ antibargaining policy underscore a significant but often-ignored difference between the two major theories of criminal law, utilitarianism and retributivism. The policy reflected the aspirations of a retributive-justice agenda, seeking fair, uniform, and deserved punishment for all offenders. Yet the policy also reflected the limitations of such an agenda, highlighting its restricted scope relative to that of the rival utilitarian theory. In a meaningful way, utilitarianism provides a complete theory of criminal justice, while retributivism apparently does not.
Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence
"The Eighth Amendment is a jurisprudential train wreck" is how Benjamin Wittes justifiably started this terrific article, entitled, "What is cruel and unusual?", appearing in the December 2005-January 2006 issue of Policy Review. I basically agreed then, and still agree now, with this attack by Wittes on modern Eighth Amendment jurisprudence:
The Supreme Court's case law has left the amendment without coherent meaning. No principle guides its reach. No methodology solemnly pronounced in any case do the justices predictably follow in the next. A punishment upheld today can be, without alteration, struck down tomorrow with no justice even admitting that his or her mind has changed. The justices no longer even pretend to examine whether a punishment offends the amendment's textual prohibition. Instead they apply perhaps the single most impressionistic test ever devised by the court: whether the challenged practice has run afoul of "the evolving standards of decency that mark the progress of a maturing society." Unsurprisingly, nine judges of wildly different politics, temperaments, and backgrounds do not generally agree on the standards or the methodology for assessing society's maturation, much less its substance.
For this reason (and some others), I have been hoping (as suggested here) that Chief Justice Roberts might come to the Court with some fresh ideas for a stale and rotting jurisprudence. Consequently, I was very excited to read the oral argument transcript in the Kennedy child rape case to discover that the Chief was a very active questioner. From the transcript, I got the impression that the Chief is troubled by the Court's standard state-counting approach to "evolving standards of decency" most recently applied in Atkins and Roper.
In addition, because I believe it is valuable and important to distinguish between offense conduct and offender characteristics in all areas of sentencing jurisprudence (as explained in this Stanford L. Rev. article), I was especially excited to see the Chief exploring an offense/offender distinction for Eighth Amendment adjudication (see tr. at pp. 19-20). I very much like the idea that the Justices ought to be very deferential to legislatures concerning what offenses merit harsh punishments, but much less deferential as to what offenders merit harsh punishment. I am hoping (perhaps foolishly) that the Chief will use the Kennedy case as an opportunity to try to re-engineer Eighth Amendment jurisprudence along these lines.
District Judge finds AWA registration provision unconstitutional
Thanks to this piece from the Orlando Sentinel, I see that US District Judge Gregory Presnell late last week reach a notable constitutional conclusion about the Adam Walsh Act's sex offender registration provisions. From the news report:
An Orlando federal judge has ordered the release of two jailed, out-of-state sex offenders who moved to Florida, ruling that part of the Adam Walsh Act requiring their registration is unconstitutional. U.S. District Judge Gregory Presnell on Friday ruled that the 2006 federal law requiring state sex offenders to register with law-enforcement officials when they move across state lines was largely a local issue.
The ruling, made in two unrelated sex-offender cases pending in Orlando, led to the dismissal of charges against Robert D. Powers, 43, and Tommy William Buckius, 60, both of Orlando....
The ruling in US v. Powers, No. 6:07-cr-221-Orl-31(M.D. Fla. April 18, 2008), is available at this link. Here is Judge Presnell's concluding paragraph:
As the Government notes, the Adam Walsh Act was enacted with a commendable goal — to protect the public from sex offenders. However, a worthy cause is not enough to transform a state concern (sex offender registration) into a federal crime. If an individual’s mere unrelated travel in interstate commerce is sufficient to establish a Commerce Clause nexus with purely local conduct, then virtually all criminal activity would be subject to the power of the federal government. Surely our founding fathers did not contemplate such a broad view of federalism. Accordingly, the Court finds that the adoption of the statute under which Defendant is charged violates Congress’ power under the Commerce Clause and is, therefore, unconstitutional.
The government will surely appeal this ruling, and I know some other district courts have already upheld the constitutionality of these provisions of the AWA. It will only be a matter of time before we get some circuit law (and perhaps some circuit splits) on the reach and application of the AWA. Stay tuned.