May 3, 2008
The haze and litigation maze after Baze
The first few weeks after the US Supreme Court upheld the constitutionality of Kentucky's lethal injection protocol have been relatively calm. But, as documented by lots of new media stories, the post-Baze legal haze and litigation maze is about to kick into high gear.
First, as detailed in this long New York Times article, "[l]ess than three weeks after a United States Supreme Court ruling ended a seven-month moratorium on lethal injections, at least 14 execution dates have been set in six states between May 6 and October." This article provides the list of scheduled executions posted above, and it also details that "Texas leads the list with five people now set to die here in the Walls Unit, the state's death house, between June 3 and Aug. 20. Virginia is next with four. Louisiana, Oklahoma and South Dakota have also set execution dates."
But, as detailed in this new CNN.com story, the venerable NY Times apparently missed some of the lethal injection news that is fit to print. According to CNN, Mississippi is trying to be the first state to conduct a post-Baze execution: "state officials [are] pushing for an execution Monday" of Earl Wesley Berry, who "came within 21 minutes of dying at the hands of the state of Mississippi in October, before the Supreme Court issued a last-minute stay."
Meanwhile, Lyle Denniston has this report at SCOTUSblog about efforts to press a new type of lethal injection argument in the Fourth Circuit: "lawyers for a Virginia inmate on Friday asked a federal appeals court to allow review of a possible one-drug approach in place of the three drugs commonly used now." Lyle's report indicates that the Fourth Circuit "has scheduled a hearing for Wednesday, May 14."
Not to be overlooked, StandDown Texas has this effective round-up of lethal injection media stories from Virginia, Mississippi, and Arkansas. One of the Arkansas stories indicates that the state "Attorney General says he plans to send death warrants to the Governor within the next thirty days."
Though there are lots of fascinating aspects to all this news, I found especially telling and questionable these comments in the NY Times article from two well-known experts on the death penalty:
Experts say the resumption of executions is likely to throw a strong new spotlight on the divisive national — and international — issue of capital punishment. "When people confront a new wave of executions, they'll be questioning not only how people are executed but whether people should be executed," said James R. Acker, a historian of the death penalty and a criminal justice professor at the State University at Albany....
"There will be more executions than people have the stomach for, at least in many parts of the country," said Stephen B. Bright, president of the Southern Center for Human Rights in Atlanta, a leading anti-death-penalty litigation clinic.
Call me either a realist or a cynic, but I think Acker and Bright are wrong. Most of the executions will take place in states with a long-standing affinity for the death penalty, and thus I would be surprised if a "new wave of executions" changes dramatically any of the debates and perspectives folks have concerning the death penalty. Given that most national politicians have been actively avoiding serious discussion of the death penalty (both before and after Baze), I do not expect a serious change in capital conversations even if we end up see a few executions every week for the rest of 2008.
The latest news on California sentencing reform
The Sacremento Bee has this new piece, headlined "California lawmakers consider new sentencing laws," which provides an update on the seemingly endless debate in California over sentencing reforms. Here are excerpts:
Lawmakers have revived a pair of bills to overhaul California's criminal sentencing laws, but majority Democrats are still wrangling over which approach to push. Both measures would create a panel appointed by the executive, legislative and judicial branches that would be empowered to stiffen or reduce prison terms on its own, subject to a majority vote by the Legislature.
Gov. Arnold Schwarzenegger last year proposed an advisory panel that the Democrats viewed as toothless. Schwarzenegger spokeswoman Lisa Page said that the governor is open to negotiating a commission proposal with legislative leaders but that they have shown "little interest" in a deal....
Assembly Speaker-elect Karen Bass said that reconsideration is going to have to wait until the budget gets fixed. "I certainly think we need to have sentencing reform, but frankly, my focus as soon as I take over is going to be the budget, the budget, the budget," said the Los Angeles Democrat, who takes over as speaker on May 13.
No Republican in either house voted for either sentencing commission bill when they came up last year. "I'm not interested in abdicating the Legislature's responsibility" to set prison terms, said Assemblyman Todd Spitzer, R-Orange, the GOP point man on prisons.
My simple message to Assembly Speaker-elect Karen Bass: getting serious about sentencing reform and prison overcrowding/expenditures is a critical part of fixing the budget, the budget, the budget.
May 2, 2008
Should Michigan be willing to forgive and forget long-ago drug crime?
A southern California family is standing by the wife and mother who lived under a false name and with a colossal secret: Susan M. LeFevre escaped from a Plymouth prison 32 years ago. But Michigan authorities are painting a different picture from LeFevre's account that her drug involvement was minor and she jumped a barbed wire fence to escape from prison out of fear for her safety.
The former Thomas Township resident, arrested at 19 for taking $600 from an undercover officer during a heroin drug sting in 1974, served about one year of a 10- to 20-year sentence for violating drug laws and conspiring to commit that crime when she walked away from the Robert Scott Correctional Facility at 21. Her husband of 23 years, Alan Walsh, said his family was blindsided and grief-stricken by the revelation that Marie Day, the woman he fell in love with and who bore his three children, had hidden a criminal past....
LeFevre, a 1973 Arthur Hill High School graduate, received her sentence Feb. 27, 1975. On Feb. 2, 1976, she walked away from prison, saying she threw a coat over a barbed wire fence and climbed into a waiting vehicle where her grandfather and another relative were saying the rosary. LeFevre headed for California and used a Social Security number belonging to someone who died in 1981, a number she says she made up, said Steve Jurman, the federal Marshal who arrested her. She obtained a California driver's license using a false date of birth but didn't renew it after it expired in 1999.
Her 32 years of freedom ended April 24, when federal marshals acting on an anonymous tip from Michigan arrested her at her home in Del Mar. Police described her home as a mansion in Carmel Valley, where she lived with her husband, two daughters and a son -- 15, 20 and 22.
"I've heard her story that she just happened to be with a person who was selling heroin," said Russ Marlan, spokesman for the state Department of Corrections. "The file we have is very different." LeFevre's crimes likely caused many and serious ripples in the criminal underworld, he said. A state trooper testified LeFevre was a ringleader of a drug-trafficking operation, Marlan said.
"She had people working for her. She was making a large profit," Marlan said. "She wore nice clothing and rented an apartment. When she was arrested, she had $600 in cash, paraphernalia for cutting heroin, and photographs that proved she was acquainted with people higher up in the Saginaw drug world. When she was sentenced to do 10 to 20 years for a person with no prior history... those things don't mesh with someone (who was a small time drug dealer). The state police that did the investigation estimated she was making $2,000 a week when she was arrested. That's $104,000 a year. That's good money now, imagine what it was in 1974."
This related story has a corrections official suggesting that she would have to serve at least 5+ years on her original conviction and that a sentencing judge might tack on an additional prison term for escape. The piece also notes, however, that Michigan Governor "Jennifer M. Granholm has the power to grant clemency." This case should be an interesting one to watch in the days and weeks ahead.
UPDATE: This new article provides more details about LeFevre's life and crimes in the 1970s, and it concludes with this notable suggestion from the Michigan prosecutor in charge of a drug task force at the time she was originally sentenced:
If he were prosecutor today, said Denton [who was Saginaw County's prosecutor in charge during the 1970s], he wouldn't put LeFevre back in prison. Instead, he would allow her to withdraw her plea, have her replead to the same charges, then sentence her under the new Michigan guidelines, which would factor in a prior record, the severity of the crime and what she has done with her life. "I'd give her probation and let her go back and be with her family in California."
Examining prison costs in Michigan
This story from the Detroit News, headlined "Prison costs on agenda: Experts to discuss reforms to help state handle Corrections spending," highlights why Michigan and so many other states have to think seriously about prison costs (even if courts aren't supposed to give these issues any thought). Here are snippets:
Policymakers say continued growth of Michigan's sprawling, $2-billion-a-year prison system is unsustainable when the state is struggling to pay for such priorities as education, health care and police. Some of the top thinkers regarding Corrections strategies are convening in the capital today to discuss reforms that could help the state get a handle on prison spending without compromising public safety....
The conference comes on the heels of a Detroit News series that outlined the dramatic growth of the prison system and its impact on other government services. The two-part series, which ran April 14-15 found:
- The 50,200 inmates in Michigan prisons represent a four-fold increase in the number of prisoners over a quarter-century.
- It costs an average of $200 a year for each Michigan resident to support the prisons.
- The cost to house each inmate drains $31,325 annually from the state treasury.
- Michigan is one of four states that spend more on corrections than on higher education.
- One of every three state employees works in the Corrections Department, up from one in 10, 25 years ago.
- While prison costs soar, revenue sharing to local units of government has been slashed by $3 billion over the last six state budget years, resulting in 1,800 fewer police officers and 2,500 fewer firefighters.
- Without corrective action, the prison population will swell by another 12 percent and top 56,000 within five years.
"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 for its series.
Ohio getting tough on no-snack-sharing rules
I can sleep a little sounder after reading this local article about how tough my state is on its miscreants:
He slept through a fire drill, had loose tobacco in his possession and didn't show up for kitchen duty. Then Timothy E. Caudill shared a Little Debbie snack cake with another inmate at a correctional facility in southeastern Ohio. That was the last straw.
The 21-year-old was kicked out of the residential community corrections program that was a requirement of his probation. And he could go to prison. That is absurd, said Caudill's attorney, Claire "Buzz" Ball. "Everybody talks about prison overcrowding. My God, you have to send some guy to prison for sharing a snack?" Ball said.
Vinton County Prosecutor Timothy P. Gleeson has asked Common Pleas Judge Jeffrey Simmons to revoke Caudill's probation and put him in prison. Simmons is expected to rule soon on the request, which he considered at a hearing April 16. The prosecutor wants Caudill put in prison for nine months.
With credit for 105 days served at the SEPTA Correctional Facility, he would serve nearly six more months. Caudill's attorney has asked the judge to keep Caudill on probation or send him to the jail in Athens County, which costs $20 a day less than a state prison. Keeping Caudill out of prison would leave cell space for a more serious offender, Ball said. "My God, over a 50-cent cake, the state would spend $12,600 for six months," Ball said.
Caudill received a sentence of three years' probation Oct. 1, convicted last year of breaking and entering Krazy Katie's, a bar along Rt. 93 just south of McArthur, the Vinton County seat. He was placed in SEPTA, a community corrections residential program in Nelsonville, on Oct. 10. The 64-bed program, which offers drug treatment, work training and counseling, imposes strict rules.
Caudill bought the Little Debbie from the vending machine and then knowingly shared it with a fellow inmate who was on restriction and wasn't allowed access to the vending-machine snacks, said Bob Eaton, operations manager at SEPTA.
I wonder if Ohio parents and teachers realize that, when they encourage children to share at home and at school, they are preparing the kids for a life of crime.
May 1, 2008
DOJ criminal division needs a new top prosecutor
As detailed in this official press release, the head of the criminal division of the DOJ has announced her resignation: "Today, the Department of Justice announced that Assistant Attorney General of the Criminal Division Alice S. Fisher will end her current service to the Department on May 23, 2008."
Since a new administration is likely to bring in new people in 2009, a replacement for AAG Fisher will not have a long shelf-life. Still, President Bush might try to fill this important position, and I am sure he will read the comments of this blog if any readers have thoughtful candidates to propose.
Another sad story in the sex offender panic universe
This local story, headlined "Plan for sex offender center scuttled by death threat," spotlights the challenges of even providing treatment for low-level sex offenders:
A woman who planned to open a treatment center for sex offenders said she's decided not to open shop after receiving a death threat. Holly Chandler has been under fire since residents around 1401 Highland discovered she was remodeling a former mechanics shop at that address into a counseling center for sex offenders....
"I got an anonymous threat on my cell phone from a man who said if I stepped in that building, the building would burn with me in it," Chandler said. "I don't need to get hit in the head with a brick to realize the danger." The building has been a target for vandals. Chandler said it's been shot at, windows have been broken and obscenities have been spray painted on its exterior.
Chandler said her clients are afraid to attend classes there. "I never meant to cause a panic, but that's what this whole thing has turned into," Chandler said. "My mission has always been to treat sex offenders as a means of keeping a community safe," she said....
Chandler said the treatment sessions are for fewer that a dozen low-level sex offenders and last for one hour, once a week. She said she's been having the classes for about 10 years at various locations in Shawnee with no complaints. She has classes in 23 counties.
Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration
Providing a very valuable set of political insights during this political season, Bill Stuntz has this must-read post titled "Who is Responsible for America's Swollen Prison Population?". Here are excerpts:
Who is responsible for the now-famous "punitive turn" in American criminal justice?
The best answer is probably: everyone in a position of political or legal authority over the last thirty years. But I'm pretty sure one common answer — we have a huge, disproportionately black prison population primarily because of the policy choices made by conservative Republicans like Ronald Reagan and George W. Bush — is wrong. The political right plainly contributed, and contributed a lot, to the generation-long run-up in our prison population. But the political left probably contributed even more....
For Republicans to win votes on crime, all they need do is talk about it: the Willie Horton ad that helped turn the 1988 election is a prime example. No Clinton-style inoculation is needed. For Democrats to win those same votes, they need to take the kind of action that shows their toughness: hence Rector's execution. Rising imprisonment has been the price Democrats have had to pay in order to win power and enact the policy changes they really want. At least, that story seems to fit the scattered examples listed above.
There is a lot more great stuff in Bill's post (and also in comments appearing there and at Volokh), but I want to take issue with this one specific assertion: "Rising imprisonment has been the price Democrats have had to pay in order to win power and enact the policy changes they really want." I would change the phrase in bold to say "the price the Clinton wing of the Democratic party is always eager to pay to win power." Indeed, as Stuntz highlights in his post, elected Democratic officials (who are mostly white and rich) do not really pay any direct price from rising imprisonment; the real costs of rising imprisonment are borne mostly by poor and minority polulations and their families.
Though I may be politically naive, I strongly resist the conventional wisdom that being tough, tougher and even tougher with imprisonment terms is the only way for Democrats to win political power, especially in the context of non-violent crimes. Nevertheless, as Senator Hillary Clinton's expressed opposition to crack retroactivity highlights, the Clintonian (and perhaps broader Democratic) eagerness to sell out poor and minority populations and their families through criminal justice politicking is not likely to change anytime soon. Sigh...
Some related posts:
Deep thoughts about cost-benefit analysis in federal sentencing
The Ninth Circuit issued an interesting little sentencing decision today in US v. Tapia-Romero, No. 05-50121 (9th Cir. May 1, 2008) (available here). Here is how the decision starts and a key passage:
In this opinion, we hold that the district court correctly concluded that the cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment under 18 U.S.C. §§ 3553(a) and 3582(a)....
Neither of the provisions relied on by Tapia-Romero require or allow sentencing courts to consider the cost to society of imprisoning a defendant. And our review of the remaining provisions of § 3553(a) leads us to the same conclusion — § 3553(a) neither requires, nor allows, a court to consider the cost of imprisonment in determining the appropriate length of a defendant's term of imprisonment.
Though I think the Ninth Circuit panel is on solid ground when it asserts that the text of 3553(a) plainly does not require a district court to consider at sentencing the cost to society of imprisoning a defendant, I question whether it is accurate to read these provisions to prohibit the consideration of these costs. Indeed, some provisions of 3553(a) arguable support some cost-benefit analysis at sentencing:
1. The central mandate of 3553(a) calls for the court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." This phrasing demanding the avoidance of unnecessary punishment suggests that some type of incarceration cost-benefit analysis is appropriate, if not encouraged, under 3553(a).
2. A subsection of 3553(a)(2)(A) speaks of considering the need for sentences to "promote respect for the law" and section 3553(a)(7) speaks of considering the need for sentences to "the need to provide restitution to any victims of the offense." Though I do not think these provisions demand consideration of incarceration costs, I can think of settings in which such costs might be validly relevant to a sentencing judge's effort to craft an effective sentence in a particular case.
Putting the Tapia-Romero in some broader context, I cannot help but speculate whether this ruling creates new question about considering family "costs" at sentencing through departures (or variances) for family circumstances. As I detailed in this 2001 FSR article, titled "Addressing Why: Developing Principled Rationales for Family-Based Departures," the precise statutory basis for considering third-party harms or costs in light of the provisions of 3553(a) has never been perfectly clear. If the Ninth Circuit now reads 3553(a) to prohibit the consideration of incarceration costs to the government at sentencing, can't parties now assert that it also prohibits the consideration of certain other third-party costs not directly related to the offense.
Finally, the decision in Tapia-Romero reminds me yet again how disappointing it is that the law and economics movement has never seriously turned its attention to mass incarcerations. Whatever else one thinks about long prison terms, they rarely seem to be cost-effective (and often do not even appear to be cost-defensible). Any yet I rarely see any hard-core efforts by hard-core lawyer-economists to do a hard-cost cost/benefit analysis of lengthy terms of incarceration.
A (record-setting?) long white-collar sentence
This local report from Denver has me wondering whether a new record has been set for the longest white-collar federal sentence. Here are the basics:
U.S. District Court Judge Robert Blackburn sentenced a man to 330 years in prison Tuesday for his role in a $56 million investment scam from which proceeds were used to buy the Redstone Castle. At 72, it's unlikely Norman Schmidt, of Denver, will ever be released.
You gotta like the foresight of the reporter here, who thinks it "unlikely" that Schmidt will live until the year 2338 to get released. (Then again, with 15% good-time credit, Schmidt may be able to get out as early as the year 2289.) Silly numbers aside, here is what led to this extraordinary federal sentencing term:
Investigators believe Schmidt obtained tens of millions of dollars from hundreds of investors for his own personal gain. Schmidt was found guilty of conspiracy to commit mail fraud, wire fraud and securities fraud, plus other counts and a money laundering count. He and his wife, Jannice Schmidt, plus five others were indicted in 2004. Jannice Schmidt was recently sentenced to nine years in prison....
Schmidt worked with the others from 1999 to 2003 to defraud investors with a purportedly high-yield investment program. The group used "corporate alter-egos" named Reserve Foundation Trust, Smitty's Investments, Capital Holdings, Monarch Capital Holdings and Fast Track. They promised investors returns of 2 to 400 percent per month and even sent out false monthly statements, authorities believe.
This AP story indicates that a sentencing appeal is planned: "Schmidt's attorney, Thomas Hammond, said Wednesday he planned to appeal the conviction and sentence. 'To say that it is excessive is an understatement,' Hammond said."
New report on recidivism rates in the Bay State
A helpful reader pointed me to a new study released today by the Urban Institute looking at recidivism rates in Massachusetts. The study can be accessed at this link, and here is its abstract:
The Massachusetts Recidivism Study is a collaborative effort between the Urban Institute's Justice Policy Center and the Massachusetts Department of Correction (DOC) that aims to better understand the experiences of recidivists and how their previous incarceration and time in the community relate to their returns to prison. The study consists of three interrelated components: an analysis of DOC administrative data, interviews with recidivists as they return to prison, and parole officer focus groups. This report provides findings from the analysis of administrative data on the 2002 release cohort comparing recidivists with nonrecidivists. The report compares the two groups across demographics, criminal history, offense type, time served, release type, and in-prison reentry preparation.
Horrid case in Austria creates buzz over sentencing in Europe
The AP has this new piece, headlined "Austria case revives European debate on light prison terms," which highlights how one gruesome case has raised new questions about European sentencing attitudes and outcomes. Here are excerpts:
Police say Josef Fritzl left a lot of human wreckage in his wake: the daughter he imprisoned and raped for 24 years, the seven children he fathered with her and the wife whose life he shattered. Yet, for an atrocity that has stunned the world, he may wind up serving just 15 years in prison if charged, tried and convicted.
Practically speaking, that may translate into a life sentence for Fritzl, 73. But his case has revived a debate over Europe's lenient penal system — and whether harsher, U.S.-style sentencing guidelines might help deter such heinous crimes.
"Fifteen years for destroying human lives is unacceptable," said Harald Vilimsky, a public safety policy official with Austria's conservative Freedom Party. "Any punishment that falls a single day short of a life sentence is a mockery of the victims."
Many Europeans abhor the death penalty, and capital punishment is illegal across the 27-nation EU. But in many countries, even convicted murderers handed life sentences seldom serve more than 25 years.
Sweden has life imprisonment for murder, but the sentencing guidelines go as low as 10 years. That applies — in theory at least — even to serial killers. In Germany, convicted rapists are punished with sentences of six months to five years. Serial cases, and those involving weapons or death threats, can fetch up to 10 years in prison — but also as little as 12 months. Poland's maximum for rape is 15 years, and that would apply even for sexual assaults repeatedly carried out over two dozen years as alleged in the Austrian case. The standard time served? Two to 12 years.
"It's rare that anyone serves the full sentence in Europe," said James Whitman, a professor of comparative and foreign law at Yale. "It's expected that people are let out early."
In the U.S., by contrast, first-degree rape is punishable by up to life imprisonment in states ranging from Maryland to South Dakota. Experts say Europe's shorter sentences — and its reluctance to jail people for offenses considered minor, such as possessing small amounts of marijuana — help explain why its prisons are far less crowded than U.S. lockups.
April 30, 2008
The loss-culpability connection (or disconnect) in white-collar sentencing
Especially in the federal sentencing system, where the (now advisory) guidelines place so much emphasis on the concept of "loss," the relationship in white-collar sentencing cases between loss amounts and criminal culpability is an extremely important and largely under-examined topic in much of the caselaw and commentary. Fortunately, a soon-to-be-available new issue of the Federal Sentencing Reporter will be examining these issues at some length. And, even before this FSR issue becomes available, a new decision from the First Circuit, US v. Innarelli, No. 06-2400 (1st Cir. Apr. 29, 2008) (available here), addresses these matters briefly. As noted by AL&P, Innarelli covers lots of issues, but this passage struck me as especially notable:
[W]e focus our loss inquiry for purposes of determining a defendant's offense level on the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes. Moreover, as already noted, it is immaterial that many of the victims actually incurred no loss. As the district court aptly stated, "[l]oss in a fraud case is a yardstick for moral culpability." Where, as here, the defendant reasonably should have expected that loss would result, he can and generally should be punished more severely to account for his greater level of moral culpability, even where the victim has managed to make money in spite of the fraud.
I have no quibble with enhancing a sentence because of a "greater level of moral culpability" reflected in the defendant's "objectively reasonable expectation" of what loss would result from a fraud. The problem I have is that defendants rarely get the converse sentencing discount when they completely lack a "greater level of moral culpability" but there are large actual loss amounts that were never intended or even objectively reasonable to expect as a result of a questionable and perhaps fraudulent business decision.
Could an individually enforceable Second Amendment right impact debates over tort liability for guns?
The Second Circuit today issued a split opinion in City of New York v. Beretta, No. 05-6942 (2d Cir. April 30, 2008) (available here) concerning a civil suit against gun manufacturers. Though the ruling is far afield from core sentencing issues, the decision returns me to my speculation that a pro-gun ruling in the Heller Second Amendment case could change not just the law, but also the politics, surrounding a variety of gun issues, including manufacturer liability.
Notably, this issue came up during the Q&A in a presentation I gave a few nights ago as part of the wonderful Hoffinger Criminal Justice Colloquium at NYU School of Law. That presentation, which I titled "The Second Amendment and the Plate Tectonics of Constitutional Criminal Law," developed some of the Second Amendment and sentencing themes I have developed in a number of prior posts. I am not sure how this Beretta ruling fits into my thinking; it is notable that there is no Heller talk in the decision, though the dissent notably cites the Joseph Heller classic Catch-22. Also notable are a variety of federal/state and civil/criminal issues developed in all the Beretta opinion. I was stressing both the importance and volatility of these constitutional "fault lines" in my NYU talk.
Some related posts:
Examining what the Chief and Justice Ginsburg might do in Kennedy
Sherry Colb has this notable new essay at FindLaw, titled "Kennedy v. Louisiana and the Lessons of a Supreme Court Oral Argument." Here is how it starts and ends:
On April 16, the U.S. Supreme Court heard argument in Kennedy v. Louisiana, a case challenging the constitutional validity of a death sentence imposed for the rape of a child. In this column, I will take up some of the intriguing ideas that emerged from the questions that various Justices posed to the attorneys arguing before them. In particular, Justice Ruth Bader Ginsburg and Chief Justice John Roberts, in their efforts to understand the force and content of earlier Court precedents, revealed important clues to their respective views on a variety of issues....
[T]he Justices' inquiries in Kennedy do suggest a greater likelihood of the Court's upholding the death penalty for child rape than one might have predicted prior to arguments.
More specifically, Justice Ginsburg appeared open to drawing a line between execution for the rape of an adult woman and execution for the rape of a child, a line that she defended, quite poorly, on feminist grounds. She also seemed poised to announce a new approach to interpreting precedents about the death penalty — one that would discount the votes of those in the majority who categorically consider the penalty unconstitutional. Justice Scalia, too, apparently agreed that categorical anti-death-penalty votes should be ignored.
Finally, Chief Justice Roberts, by contrast to Justice Ginsburg, appeared to view the potential execution of rapists as evidencing moral progress toward an enlightened view of the harm of rape. In defending the State of Kentucky's right to execute child-rapists, moreover, he took the surprising position that courts have no reliable metric by which to determine which crimes are serious enough to call for execution. If the Chief Justice can assemble four additional votes for this view (and he surely can count on Justices Scalia's and Thomas's), then we might see a future in which a growing category of crimes are subject to the ultimate penalty. In a case involving the brutal rape of an eight-year-old by her stepfather, this could represent the most surprising development of all.
Some recent related posts:
- Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence
- Missouri pols all calling for child rape to be a capital offense
- 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
- Looking at capital child rape's constitutionality through the Atkins/Roper lens
- Resource page on Kennedy and the opaqueness of child rape statistics
Judge Walton expresses concerns about commutation for Scooter Libby
Reminding me of an issue that I wish would get a lot more play on the campaign trail, this article from the Milwaukee Journal-Sentinel makes clear than not everyone has forgotten the special sentencing justice that Scooter Libby received last summer. The article is headlined, "Libby judge says Bush sent wrong signal: Walton worries about perception of inequality in justice," and here is how it starts:
When President Bush erased the prison term of I. Lewis "Scooter" Libby, he reinforced some Americans' perception that status can affect justice, according to the judge who sentenced Libby.
In commuting the 2 1/2 -year prison term of Vice President Dick Cheney's former chief of staff, Bush called U.S. District Judge Reggie B. Walton's sentence excessive, given Libby's "exceptional public service" and lack of criminal history.
Walton, whom Bush nominated to the District of Columbia bench, acknowledged Tuesday that Bush's decision was part of the system, but he also said it fed some people's notion that justice isn't equal. "The president has that authority and exercised it, and that has to be respected," said Walton, who is to speak Thursday in Milwaukee at a literacy event. "The downside is there are a lot of people in America who think that justice is determined to a large degree by who you are and that what you have plays a large role in what kind of justice you receive. . . . It is crucial that the American public respect the rule of law, or people won't follow it."
Some related posts:
- Scooter Libby drops appeal ... is a holiday pardon on the way?
- Few giving the President sentencing thanks
- The sad (unpardonable) state of compassion in the Bush Administration
- Editorial on presidential pardon practices
- Pardon politics and the 2008 campaign
- ACS issue brief on the pardon power
- Latest FSR issue on "Learning from Libby"
April 29, 2008
This is why your brain, after being on drugs, cannot go to college
A federal appeals court has rejected a constitutional challenge to a federal law that restricts, and in some cases bars, students with drug convictions from participation in federal college aid programs.
A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in Students for Sensible Drug Policy Foundation v. Spellings that the controversial sanctions do not violate the double-jeopardy clause of the 5th Amendment.
The student group argued that the primary purpose of the law is deterrence of criminal action, so the secondary sanction on those convicted of drug crimes is form of double jeopardy. But the court noted that, under the law, a student may restore his or her eligibility for federal student aid by completing a drug-rehabilitation program.
The relatively brief ruling from the Eigth Circuit is available at this link.
Long Ninth Circuit opinion on variety of child porn sentencing issues
Through a long opinion that is not easily summarized, the Ninth Circuit speaks to a range of child porn federal sentencing issues today in in US v. Stoterau , No. 07-50124 (9th Cir. Apr. 30, 2008) (available here). Here is how the opinion starts:
Joseph Stoterau pleaded guilty to transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). In this appeal, he challenges several aspects of his sentence, including the length of his term of imprisonment and several special conditions of his supervised release. We affirm in part, vacate in part, and remand.
A quick skim while on the road makes it hard to tell whether the Ninth Circuit breaks any new ground here. I trust all the able lawyers on the coast will help me figure out if Stoterau is worthy of a close read.
More evidence that race infects the death penalty
The New York Times has this new piece from Adam Liptak titled "New Look at Race When Death Is Sought." Here is how it starts:
About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.
Yet Harris County’s capital justice system has not been the subject of intensive research — until now. A new study to be published in the Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.
The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.
But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.... [T]he author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.
His statistics have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, "five black defendants would be sentenced to the ultimate sanction because of race."
Wouldn't it be refreshing if the MSM and others would vigorously ask the presidential candidates what they think of this new study rather than what they think of whatever comes out of the mouth of Reverend Jeremiah Wright?
April 28, 2008
The state-specific realities of post-Baze execution timelines
This new local AP article from Ohio highlights that each death penalty state is going to move at its own pace concerning when and how to try to move forward with lethal injection executions after Baze. Here are some excerpts from the piece:
Ohio officials have been less swift and less aggressive than leaders from some other states at moving to restart executions after a U.S. Supreme Court decision ended a seven-month national pause to killing inmates.
Ohio, which not long ago had one of the nation's busiest death chambers, is led by a governor who has said he is not comfortable with the death penalty and top law enforcement officer who has said he thinks "we can do better" in applying it. Gov. Ted Strickland has the power to cancel or delay death sentences, and Attorney General Marc Dann's office fights against death row inmates' appeals.
Since the U.S. Supreme Court decided April 16 to allow Kentucky's lethal injection process that is similar to the one used in Ohio and many others, states including Texas and Mississippi already have scheduled executions. And governors in states such as Florida have said the execution process should now resume. Ohio has not set any execution dates yet, and top officials have made no public requests for quick action....
After the Supreme Court decision came out, this is what Strickland said about applying it to Ohio: "You would just think that because the methodology is quite similar that the legal outcome would be similar as well. But I just don't want to make that assumption without having a little deeper understanding about what they said."
Contrast that with what Charlie Crist, the Republican governor of Florida, said when praising the court's ruling: "Justice delayed is justice denied, and an awful lot of families of the victims have been waiting for justice to be done, and so that's certainly an important factor." Crist said he asked his lawyers to provide him with death warrants to consider signing, after which execution dates would follow.
Ohio has 184 inmates on death row, many of them exhausting their final appeals. Three death-row inmates are likely to be among the first set for execution: Clarence Carter, Kenneth Biros and Richard Cooey, who lost what may be his final appeal last week. Only Texas had more executions in 2006 and 2007 combined than Ohio, which tied with Oklahoma at seven. Ohio has executed 26 inmates since it resumed executions in 1999.
Some related post-Baze posts:
Another sound attack on Eighth Amendment jurisprudence
In this post last week, I noted Benjamin Wittes attack on modern Eighth Amendment jurisprudence this thoughtful article in the December 2005-January 2006 issue of Policy Review. Today, I see that Wittes is keeping up his justified attack with this new essay at the New Republic, titled "Unusual Nonsense: The Supreme Court's continued failure to rationalize its decisions about cruel and unusual punishment." Here is how it starts:
The Supreme Court last week gave the country an object lesson in the absurdity of the Eighth Amendment — at least, as it is currently understood by the justices. On a single day, it handed down a decision upholding as constitutional the specific mixture of drugs by which thirty states put condemned prisoners to death, and it then went on to hear oral arguments over the question of whether states may constitutionally execute child rapists. That may not sound absurd, and it wouldn't be if the court had any kind of coherent approach to cases alleging "cruel and unusual punishment." But it doesn't. So the one-two punch, like so most of the court's recent hand-wringing over the amendment, operated more as a kind of philosophical and — let's face it — political Rorschach test for the justices than anything else.
Some related posts: