May 10, 2008
Justice Stevens horsing around about lethal injections
I headed home early from the Sixth Circuit Judicial Conference, and so I missed Justice Stevens speaking at the big conference dinner. But this local report suggests Justice Stevens was his usual sharp commentor on the legal (and sporting) news of the day:
Supreme Court Justice John Paul Stevens drew a round of applause Friday night in Chattanooga when he suggested that the recently-euthanized Kentucky Derby horse Eight Bells had probably experienced a more humane death than those who die on death row.
“I had checked the procedure they used to kill the horse,” Justice Stevens said, expressing surprise to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many believe is cruel to humans.
Also, this companion MP3 link records Justice Stevens talking about having interviewed Ty Cobb in his pre-judiciary days.
Some related posts:
A telling headline for modern sentencing times
This local story from California, carrying the headline "Sex offender faces up to millenium in prison," tellingly reveals so much about modern American attitudes toward incarceration. Here are snippets:
A convicted sex offender could be sentenced to more than a millenium in prison for molesting two girls, a prosecutor said Thursday. Horace Mann Williams, 44, is facing a penalty of up to 1,330 years in prison when he is sentenced Friday at the Murrieta Courthouse, said Deputy District Attorney Burke Strunsky.
Williams previously spent six years in prison for sexual molestation in the early 1990s.... Outside court, jurors said they convicted Williams because he showed a pattern of behavior typical for child molesters. “After a first offense and after a parole violation, he couldn't stay away from girls,” one juror said.
According to a probation officer's sentencing memorandum filed with the court, Williams is not eligible for parole and should receive consecutive time for each count and enhanced sentences for having prior strike offenses, having multiple victims and committing multiple offenses against multiple victims.
I think it is worth speculating whether Williams, if he had been threatened with the death penalty for repeat child rape, might have been more deterred after his release for his first offense. Obviously, the prospect of being subject to imprisonment for over a millenium did not keep Williams from molesting kids again. Though I doubt the distant threat of the a distant execution would have deterred Williams, I also see the good arguments for states to continue to consider experimenting with alternatives to incarceration for repeat sex offenders. Perhaps if states get serious about new approach to preventing repeat sex offending, somebody might figure out a better way to deal with these crimes before the year 3308 when Williams could be scheduled for release.
"Racial Inequity and Drug Arrests"
The title of this post is the title of this editorial in today's New York Times. Here are snippets:
The United States prison system keeps marking shameful milestones. In late February, the Pew Center on the States released a report showing that more than 1 in 100 American adults are presently behind bars — an astonishingly high rate of incarceration notably skewed along racial lines. One in nine black men aged 20 to 34 are serving time, as are 1 in 36 adult Hispanic men.
Now, two new reports, by The Sentencing Project and Human Rights Watch, have turned a critical spotlight on law enforcement’s overwhelming focus on drug use in low-income urban areas. These reports show large disparities in the rate at which blacks and whites are arrested and imprisoned for drug offenses, despite roughly equal rates of illegal drug use....
The looming challenge, says Jeremy Travis, the president of John Jay College of Criminal Justice, is to have arrest and incarceration policies that are both effective for fighting crime and promoting racial justice and respect for the law. As the new findings attest, the nation has a long road to travel to attain that goal.
Some recent related posts:
May 9, 2008
Weekend SSRN reading (for mom?)
A large set of new articles just appeared on the SSRN Corrections and Sentencing list. If mom is a sentencing fanatic, consider printing her out some of these new pieces:
- Insanity is Smashing Up Against My Soul: Panetti v. Quarterman and Questions that Won't Go Away by Michael L. Perlin
- Ethical Exception: Capital Punishment in the Figure of Sovereignty by Adam Thurschwell
- The Harm Principle vs Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation by Dennis J. Baker
- Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors' Perceptions by Brenda V. Smith
- 'My Number One Priority': How Victims' Rights Advocates Derailed Rehabilitation's Potential Role in Prison Reform in California by Ashley T. Aubuchon
Spinning Baze for lower courts
Elisabeth Semel has this new piece in The National Law Journal, headlined "Fearing too much justice," which tries its darnedest to argue that Baze should be viewed by lower courts and state officials not as a green light for resuming lethal injection executions, but rather as a yellow light calling for additional caution and inquiry concerning modern execution realities:
Chief Justice John G. Roberts Jr.'s plurality opinion establishes that the court is primarily concerned with whether states are able to successfully administer the first drug in the three-drug formula — the anesthetic. Failure of that first drug results in a "constitutionally unacceptable" risk of suffocation and excruciating pain. On the limited facts before the court, Roberts took the view that delivery of the anesthetic is a relatively simple endeavor. But in other states, where courts have allowed full inquiry into lethal injection protocols, it has become apparent that getting the first dose "right" is not a simple matter.....
The plurality opinion in Baze may succeed — as Roberts intended — in precluding stays of execution when the demonstration of substantial risk is not greater than that presented by the Kentucky record.... [But] if courts allow discovery of execution records and depositions of executioners, outcomes will be different than they were in Baze. They may well resemble the result in Tennessee, where a federal district judge found that "due to lack of training and other issues," the state's "new protocol poses a substantial risk" that the inmate "will not be unconscious when the second and third drugs are administered." Or trial courts may find, as did a federal judge in California, that the record, "is replete with evidence that in actual practice the [state's protocol] does not function as intended."
Judicial fear of too much litigation, too much inquiry and too much truth about how the death penalty operates is a familiar one. In 1987, in McCleskey v. Kemp, the court held that a reliable statistical study showing the likelihood that racial prejudice influences Georgia capital sentencing decisions could not be used to establish race discrimination in the decision to sentence Warren McCleskey to death. The majority opinion, authored by Justice Lewis Powell, made much, as did Roberts' opinion, of the constitutional legitimacy of capital punishment and of federalism. Central to the ruling, however, was the concern that "McCleskey's claim, taken to its logical conclusion," would instigate challenges to discrimination at every level of the criminal justice system. Dissenting, Justice William J. Brennan Jr. responded that the fear of "apocalyptic consequences" was, rather, "a fear of too much justice," and the fact that the death penalty was the legislatively adopted norm in most states was unpersuasive given the issues at stake: "death and race."
It was scrutiny that the majority in McCleskey feared. It is scrutiny that some members of the current Supreme Court fear. It is certainly scrutiny that departments of corrections fear. In 1991, Powell stated that if he could change his vote in any case it would be the one he cast 14 years earlier in McCleskey. If trial courts allow discovery to go forward in lethal injection challenges, we will not have to wait 14 years for some justices to reconsider what went wrong in Baze.
Actually, I think that what some members of the current Supreme Court truly fear is what Semel and other death penalty opponents often seem eager to seek: the de facto elimination of the death penalty through persistent constitutional litigation rather than de jure reform through the democratic process. The fear is not of too much justice, but of too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box.
I do not begrudge sincere efforts by death penalty opponents to argue forcefully against state killing (just as I do not begrudge other sincere "culture of life" advocacy against abortion and doctor-assisted suicide). I am, however, consistently troubled when death penalty abolitionist advocacy is directed so forcefully toward courts rather than at politicians and the public.
Some related post-Baze posts:
Tea-leaf analysis of the likely Rodriquez ACCA case outcome
Writing over at CO, Anita Krishnakumar takes up my query about what her great ACCA analysis might mean for Rodriquez, the one last notable ACCA case still pending before the Justices. Her thoughtful post highlights the unexpected affiliations that these ACCA cases create and ends this way:
So, hazardous though this kind of speculation can be, I am predicting a 5-4 or 6-3 outcome in favor of the defendant in this case. Of course, if I am wrong about Justice Alito, the case could flip and the government could win.
May 8, 2008
Waltzing off to Sixth Circuit judicial conference
I am about to hit the road to attend in Tennessee the Sixth Circuit judicial conference, so blogging may be light over the next 48 hours. Tomorrow morning I am on a great panel talking about federal sentencing (though at the same time as another great panel on a different topic with SG Paul Clement)
If readers have ideas about what those in the Sixth Circuit MUST know about modern federal sentencing, feel free to give me lecture tips in the comments.
Another great read on the state of federal sentencing
The always interesting Mark Osler has this new piece up on SSRN, which goes by the engaging title "Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip." Here is the abstract:
The federal sentencing guidelines have been controversial and widely-criticized since they became effective in 1987. One core problem with the guidelines is that there are too many (at least 31) distinct policy mandates from Congress directed at the Sentencing Commission. Many of the principles embodied by these mandates are in direct conflict. Much like the Pointless Man in Harry Nilsson's The Point (a character created while Nilsson was on an acid trip, who has arrows pointing in every direction and thus no point at all), sentencing policy has so many directives that it has no moral basis at all.
This article argues for starting over with the sentencing guidelines from scratch, in a project that can take advantage of state and federal experience over the past 20 years, the scholarship that has developed around sentencing, and can begin with a few understandable directive principles. Though such a project would likely result in a system which allows more judicial discretion, it is our best hope for a federal sentencing system that can combine principle and action with real moral authority.
Great coverage of Fifth Circuit CVRA ruling in BP case
The Houston Chronicle has this terrific article covering yesterday's interesting ruling about the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (discussed here). Here are excerpts from the article:
A federal appeals court ruled Wednesday that the rights of victims of the 2005 BP explosion in Texas City were violated by Houston federal prosecutors and a judge, but the plea bargain they object to remains on the table. The 5th U.S. Circuit Court of Appeals said a 2004 law that gives crime victims a say in the process was violated when the prosecutors got U.S. District Judge Nancy Atlas, who was handling miscellaneous courthouse items, to allow a plea bargain to be reached with BP without letting the victims know about the plan.
"It's not really fair to say to the victims that your rights were violated and you get absolutely nothing," said Paul Cassell, a former federal judge and professor at the University of Utah College of Law who specializes in victims rights and is representing the victims in the BP case....
In October 2007, BP's North American products division agreed to plead guilty to a felony violation of the federal Clean Air Act, pay the $50 million fine and serve three years of probation for the blast, which killed 15 people and hurt many more. The plea agreement must be accepted by a judge to be final and that has not yet happened....
The appellate ruling Wednesday came after the victims asked the 5th Circuit Court to dissolve the plea deal according to the Crime Victims' Rights Act of 2004. They wanted the legal remedy provided in the act — that BP and prosecutors be forced to start all over, taking into account the views of the injured people and families of the dead....
Prosecutors have defended the plea bargain and noted that the $50 million fine was the harshest available under the Clean Air Act. "We are ... disappointed by the appellate court's criticism of the government's good faith reliance upon a court's order approving our approach to meet our CVRA obligations," U.S. Attorney Don DeGabrielle said in a prepared statement....
The appellate court said the reasons to keep the victims out did not "pass muster," and the victims had a right to be involved before a plea deal is reached. Though the appellate court said the victims should have been heard earlier, it said that since they were heard by Rosenthal, it will leave it in her hands to "carefully consider their objections." Victims' lawyer Perry said they will now ask the entire 5th Circuit Court, not just the three-judge panel, to consider the case. "There is a whole lot of difference hearing from somebody after you've made up your mind versus hearing early on in the process," Perry said. "What they wanted to do here was keep the fact that they were exploring a criminal case from the public and from the victims. Under the victims' rights act, that should not be the case."
Though not emphasized in the article, it should not be overlooked that the Dean ruling deepens a circuit split over the standard for review in CVRA appeals. In part because these issues are likely to come up again and again in a host of dynamic and interesting contexts, it is likely only a matter of time before the Supreme Court has to deal with what the CVRA means and how it should be enforced.
How might state-law-based challenges to lethal injection fare after Baze?
One of many interesting aspects of all the lethal injection litigation over the last few years has been the tendency of some state courts to take up challenges to modern execution protocols based primarily on state statutory or constitutional law. It is hard to predict how state-law-based challenges may fare in the wake of last month's Supreme Court decision in Baze finding no federal constitutional problems with Kentucky's lethal injection protocol.
Interestingly, as detailed in this media round-up at the blog StandDown Texas Project, a state court hearing about the Ohio's lethal injection protocol this week produced some notable fireworks. Here is an excerpt from this AP report on the Ohio court hearing:
A prosecutor accused a judge Tuesday of making arguments on behalf of two men challenging the state's method of executing prisoners.
Ruben Rivera and Ronald McCloud, who are accused of separate murders and could receive death sentences if convicted, are disputing the state's lethal injection process, saying it doesn't provide the quick and painless death required by Ohio law. Lorain County Common Pleas Judge James Burge, who intends to make a ruling before July, held a hearing Tuesday to discuss testimony from two anesthesiologists who took the stand last month.
When Burge began questioning language in Ohio's lethal injection statute, assistant county prosecutor Tony Cillo bristled, saying the judge was helping the American Civil Liberties Union make its case. "The court is now making arguments for the plaintiff and that is not the court's role," said Cillo, complaining that he could not prepare for arguments that the ACLU had not raised. "You're supposed to know all of them," Burge said.
The disagreement started over a highly technical question. Burge raised the issue of whether the words "quickly and painlessly cause death" in the statue should be applied not only to the dosage of the lethal injection drugs, but to how they are administered. In an earlier hearing, Cillo questioned whether Burge already had formed an opinion on the death penalty, noting that the ex-defense attorney has a photo of former client James Filiaggi in his office. Filiaggi was executed last year. "The court's role is to presume it's constitutional," Cillo said Tuesday. "I do," Burge said. Burge then held a long recess.
Some related post-Baze posts:
- Lots of praise for Baze and for capital punishment federalism
- Georgia poised to have first post-Baze lethal injection execution
Has quadriplegic been punished enough already?
A helpful reader altered me to this fascinating sentencing story out of California. These sad facts provide an extraordinary setting to debate the purposes of punishment (not to mention the purposes of a public trial and the concept of closure):
The sentencing of a quadriplegic accused of killing a 69-year-old woman in a car crash was postponed this morning because his attorney is withdrawing his plea.
Danny Espinoza, 25, had pleaded no contest to felony vehicular manslaughter in the death of Dorothy Anne Walter. Espinoza was driving west on Stockdale Highway on March 5, 2006 and went into the eastbound lane near Buena Vista Road and slammed into Walter’s car. Walter later died at Kern Medical Center. Espinoza was paralyzed from the accident.
Espinoza faces up to six years in prison. Judge Michael Lewis said this continuance is impeding closure and “this is a difficult sentence for all people.” Espinoza’s attorney, Bruce Blythe, did not say in the hearing why he chose to withdraw the plea.... Laurie Kolkman, Espinoza’s mother, said a trial will help bring the truth about what happened in the crash. “I think it will be good,” she said.
Prosecutor Michael Yraceburn said the withdrawal was a surprise and that the defendant is having “buyer’s remorse.”... Walter’s family were scheduled to speak at the sentencing. Espinoza’s next hearing is scheduled for June 5.
May 7, 2008
Bronx cheer for return of executions
As noted here, last night the state of Georgia brought the death penalty back to life in the US by carrying out the first post-Baze execution. The New York Times celebrated the news with this article, tellingly headlined "As Executions Resume, So Do Questions of Fairness," and this editorial entitled "The Death Penalty Returns." Here are snippets from the editorial:
Roughly 15 death row prisoners are scheduled to be put to death between now and October, according to the Death Penalty Information Center. This flood of executions is the result of the Supreme Court’s ruling that upheld the constitutionality of a troubling form of lethal injection. The next few months, as states put their machinery of death into overdrive, are an ideal time for the nation to rethink its commitment to capital punishment....
These scheduled executions come at a time when many Americans are, rightly, turning away from capital punishment. We believe that the taking of a life by the state is in all cases wrong, but it is particularly so with the deeply flawed system that exists today. Many defendants lack adequate legal representation at their trials, race distorts who is sentenced to death for what crimes and juries are “death qualified” — jurors with moral objections to the death penalty are removed. As the recent rash of DNA exonerations has shown, judges and juries too often sentence innocent people to death.
Another good test case for real fans of the Second Amendment
This local story from North Carolina provides more fodder for my view (and hope) that an individual and enforceable Second Amendment right could have lots of unexpected ripples if and when sympathetic felons start demanding that their rights get respected. Here is the story:
Barney Britt holds a state record for shooting the third largest deer in North Carolina history. Hunting is his passion. "It's the challenge of the hunt," Britt said. But by law, the 46-year-old man from Garner cannot take a shot anymore.
When Britt was 20 years old, he was convicted on a felony drug charge. He served four months in jail; and as a convicted felon, he was not allowed to carry a gun for five years.
He started hunting again in 1987, and for the next 18 years, he said, he was a law-abiding citizen. But in December of 2004, the state passed a law to conform with federal law, which states that a convicted felon can never again carry a gun. "I feel like I'm being violated and punished all over again," Britt said.
He said there was no appeals process, so he is suing the state to try to get the right back to hunt. The lawsuit is now in the hands of the N.C. Attorney General's Office....
"I think it's a public safety issue," Beth Froehling, public policy specialist with the N.C. Coalition Against Domestic Violence, which supported the change in state law. Despite Britt's nonviolent past, Froehling and other proponents of the law said it was just too difficult to pick and choose which convicted felons should carry a gun and which should not. "Do we want convicted felons to be allowed to have firearms?" Froehling said.
An irony of this story, among others, is that I believe Britt was violating federal law against felons in possession when he started hunting again in 1987 (unless there is some exception to 18 U.S.C. 922(g) that might apply). I think this also means that, even if Britt gets some relief in North Carolina, he still has to worry about the feds if he goes out hunting again unless he were to get his conviction expunged.
Some related Second Amendment posts:
- SCOTUS takes new gun case ... is this a Heller tea leaf?
- More thoughts about the scope of Second Amendment rights
- Thoughtful analysis of the realities of Second Amendment litigation
A notable and curious (and suspect?) sentence "correction"
As detailed in this South Florida Sun-Sentinel article, headlined "Judge resentences Iranian woman, gives her 2 years in prison," something seems a little hinky about a federal judge "correcting" a sentence to add two years' imprisonment to an original sentence of time-served. Here are the details:
Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family. The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.
But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months. Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."
In Gholikhan's case, prosecutor Michael Walleisa alerted Cohn last week that both sides had calculated Gholikhan's recommended sentence using the wrong federal sentencing guideline. The correct sentencing range should have been 30 to 37 months, Walleisa said. He asserted in a legal brief that a sentence of time served was far too light a punishment for "a national security offense that involved trade with a state sponsor of terror." "Her crime is serious and warrants an appropriately severe sentence," Walleisa wrote.
William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran. "I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.
Cohn agreed with Walleisa that the sentence should be recalculated using the correct guideline provision. He reduced the sentence from 30 months to 29 because Gholikhan spent one month in an Austrian prison on related charges....
Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider. "I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."
Writing here at the Southern District of Florida Blog, David Oscar Markus is also curious about this sentence correction.
Notable CVRA ruling from Fifth Circuit in BP case
Though apparently not yet posted on the Fifth Circuit website, a friendly reader sent me a copy of the Circuit notable decision today concerning the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (available for download below). Here is the start of the opinion:
In the related criminal proceeding, twelve of the victims asked the district court to reject the plea agreement, alleging violations of the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771. The district court denied the request. See United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 U.S. Dist. LEXIS 12893 (S.D. Tex. Feb. 21, 2008). The victims petition for writ of mandamus with the prayer that “[t]he decision of the district court should be reversed and the case remanded with instructions that the plea agreement [not be] accepted and the parties are permitted to proceed as they determine --- so long as it is in a way that respects crime victims’ rights.” We find a statutory violation but, for reasons we explain, we deny relief.
There is a lot packed into only eight pages in Dean, and thus I may need some times and future posts to comments on what this ruling could mean (and whether it might be SCOTUS material).
Speculating about SCOTUS sleeper cases
After this sleepy SCOTUS week, the Justices will be back in action with new opinions likely to be issued each and every week until the end of the Term next month. Constitutional law fans are focused, of course, on what the Justices will do with the Second Amendment in the Heller DC gun case and with the long-pending detainee cases. Death penalty followers, meanwhile, are focused of what the Justices will do with the Eighth Amendment in the Kennedy child rape case.
But there are a number of other cases still stewing at One First Street that could end up being very consequential: there is the porn case Williams, which could cover some notable First Amendment ground; I am thinking the ACCA case Rodriquez might include a little Sixth Amendment talk about criminal history; and the Irizarry case might say something very consequential about the departure/variance story after Booker.
What SCOTUS rulings are you eagerly awaiting, dear readers? Does anyone predict that some sleeper case will end up being a bigger story than some of the more anticipated cases?
May 6, 2008
Georgia poised to have first post-Baze lethal injection execution
In some future macabre capital punishment version of Trivial Pursuit, the question will surely be asked what state had the first execution after the Supreme Court's lethal injection decision in Baze. Though Texas might make for the best guess to most of the state questions in the capital punishment version of Trivial Pursuit, this AP story highlights that Georgia may be first out of the box (or should I say the first to put someone in a box) after Baze.
Of course, capital punishment trivia fans know that Utah was the first state to go forward with an execution after the last major SCOTUS-created moratorium in the 1970s. But can anyone name (without looking this up at DPIC) the four other states that had executions before Texas in the late 1970s and early 1980s? (Interestingly, Texas was the first state to conduct a lethal injection execution, but three electrocutions and a gassing took place after Utah used a firing squad to execute Gary Gilmore in January 1977 and before Texas executed Charlie Brooks through lethal injection in December 1982.)
UPDATE: As detailed in this Washington Post story, the US is back in the execution business with Georgia's execution of William Earl Lynd's execution at 7:51 pm.
Tenth Circuit rejects government appeal of below-guideline sentence
In a decision that talks a lot about post-Gall sentencing realities, the Tenth Circuit today affirms a below-guideline sentence in US v. Munoz-Nava, No. 06-2247 (10th Cir. May 6, 2008) (available here). The calculated guideline range in Munoz-Nava was 46-57 months and the district court imposed a sentence of one-year-and-one-day.
The Munoz-Nava decision has lots of pro-discretion language that should please both district judges and defense attorneys; prosecutors, not so much. Here is one of many notable paragraphs:
The government asks us to discount the district court’s imposition of a term of home confinement and supervised release. While not as severe as an equivalent custodial sentence, home confinement and supervised release substantially restrict the liberty of a defendant. Gall, 128 S. Ct. at 595. Here, Muñoz-Nava is also subject to special conditions imposed by the court. In considering the sentence as a whole we cannot ignore non-custodial components. See id. at 596. The imposition of home confinement and supervised release contributes to our conclusion that Muñoz-Nava’s sentence is reasonable. The lengthy term of supervised release requires Muñoz-Nava to continue his good behavior and ensures that he will suffer consequences if he departs from his current path. The district court chose to emphasize these non-custodial components of the sentence in response to the specific characteristics of Muñoz- Nava. This emphasis was not unreasonable.
Have pro-defendant rulings gotten Justices Scalia and Thomas thrown off the "Justices like..." list?
John McCain has this new statement on judicial selection on his official website. There is a lot of interesting stuff that merits comment, but I was particularly intrigued to see the discussion of the type of Justices he promises to nominate:
I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference.
My first reaction was what about Justices Scalia and Thomas, are they chopped liver? Or are they no longer part of the classic "Justices like..." list because of their votes in cases like Blakely and Booker? Have these two been thrown off (or should I say under) the Straight Talk Express because they are big fans of jury trial rights for criminal defendants?
A day to focus on an execution and politics
While most of the media and political world will be focused on voting in Indiana and North Carolina, this new AP article spotlights that death penalty observers will be focused on another state:
Georgia moved forward with preparations to execute a man convicted of killing his girlfriend, who on Tuesday night could become the first inmate put to death since the U.S. Supreme Court upheld the constitutionality of lethal injection. Barring a last-minute reprieve from the courts, William Earl Lynd will be put to death at 7 pm, making him the first prisoner executed since September, when the high court took up a challenge to lethal injection and effectively halted all executions nationwide for seven months.
For anyone who might be eager to combine their interests in politics and the death penalty, I noticed this new article in the April 2008 Virginia Law Review titled "The Supreme Court and the Politics of Death." Here is the abstract:
This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians — legislators, prosecutors, and governors — have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less reliable determinations of who truly deserves the ultimate sanction.
The Supreme Court has recently begun to chart a different — and more promising — approach to death penalty reform. In two key areas, the Court has recently reinterpreted prior constitutional doctrines in ways that seem designed to counteract death's politics. These rules determine the type of offenses for which death is a "cruel and unusual" sanction (the Eighth Amendment's capital proportionality standard) and the quality of representation defendants must receive in capital cases (the Sixth Amendment's guarantee of effective assistance of counsel). Each of these rules has been transformed from doctrines that had little effect on the administration of the death penalty into potent weapons for counteracting the politics of death and promoting the fairness and rationality of the capital sentencing process.
Cooperation discount leads to buzz about DOJ investigating Hill happenings
This item from Politico highlights how a massive criminal justice system that encourages cooperation can get a lot of persons nervous real fast, even on Capitol Hill:
The news was buried deep in a Page Two story in Saturday’s Washington Post, but it’s gotten the city’s lawyers chattering. The Department of Justice, according to a confidential source in the Post article, is investigating whether members of Congress have been improperly using staff and office resources.
The Justice Department declined to comment, but that hasn’t diminished the buzz on Capitol Hill. “Nobody’s heard anything,” said Andrew Herman, a congressional ethics attorney who by Monday morning had already fielded a number of calls from nervous lawyers. “There’s just concern that this could become another House banking investigation.” If Justice is, in fact, looking into the way that members of Congress use taxpayer dollars, Herman said the concern might be justified. “I’m sure that there are certainly times that staff is used inappropriately. How could there not be?” he said, though he added that he had no specific examples of irregularities.
It’s unclear how serious the investigation is or whether there actually is an investigation. In a story largely devoted to the sentencing of Laura I. Flores, a former staffer for Reps. Jane Harman (D-Calif.) and Neil Abercrombie (D-Hawaii), the Post reported that “prosecutors petitioned to reduce [Flores’] penalty in exchange for help with an inquiry into whether lawmakers used congressional staff members and resources to support their political campaigns, according to a source familiar with the case.” Flores was sentenced on Friday to six months in prison after pleading guilty in January to wire fraud.
May 5, 2008
Two potent new reports on race and the drug war
As detailed in this news article, "two studies published today conclude that the battle has been pitched largely in African American communities and that African Americans bear a disproportionate brunt of its collateral damage." The two new studies come from The Sentencing Project and from Human Rights Watch.
The Sentencing Project report, titled "Geography: The War on Drugs in America's Cities," is available at this link. The Human Rights Watch report, titled "Targeting Blacks Drug Law Enforcement and Race in the United States," is available at this link. These excerpts from the conclusion of the HRW report reminds me why I find it disappointing and shameful that these issues are overlooked in the media/political frenzy surrounding a presidential campaign that is supposedly all about race:
The racial disparities in incarceration generated by drug control strategies raise deeply troubling questions. Why are white drug users and sellers comparatively free of arrest and incarceration for their illegal activity? Why has the United States continued to address illicit drugs primarily with a punitive criminal justice approach, including harsh prison sentences? Why has the country been willing to impose the burden of incarceration for drug offenses primarily on those who by virtue of race and poverty are already among the most marginalized in society and the most politically powerless?
We cannot answer those questions. But we do know that the racial disparities we have documented in this report violate fundamental principles of justice and equal protection of the law. They undermine faith among all races and ethnic groups in the fairness and efficacy of the US criminal justice system. They are particularly intolerable because incarceration has such grave implications for the offenders' lives and those of their families and communities.
It is difficult to overstate the harshness of a prison sentence and its enduring consequences. Prisons are tense, overcrowded, dangerous, and barren places in which it may be difficult to maintain one’s emotional equilibrium and self-respect, much less turn a life around....
The United States can and must devise ways to make its drug control policies less destructive to black communities in general, and black males in particular. There is no justification for levying the burdens of incarceration and its aftermath disproportionately on black drug offenders. The statistics presented in this report reflect the persistent failure of the United States to ensure that its efforts to reduce illicit drug use and sales are conducted within a framework of respect for human rights.
Some related posts:
- Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities
- Politics and the war on drugs
Some execution news and notes
Two notable death penalty stories have developed this afternoon:
1. As this AP article details, a "Georgia board has denied condemned killer William Earl Lynd's clemency bid, paving the way for him to likely become the nation's first inmate put to death since the U.S. Supreme Court held that lethal injection is constitutional." The article notes that legal appeals are still in the works, so it is still possible a stay will come along before the planned lethal injection execution scheduled for Tuesday at 7 pm.
2. As this AP story details, a "Mexican-born Texas prisoner whose death sentence set off an international dispute and a U.S. Supreme Court rebuke of the White House received an execution date Monday." The article spotlights some of the legal issues that surely will be subject to further debate before Jose Medellin heads toward his now-scheduled the August 5 execution date.
Terrific analysis of Justices' wacka ACCA work
Writing over at CO, Anita Krishnakumar has this fantastic new post, titled "Dejá-Vu in Begay v. United States," examining the struggles that the Supreme Court has been having with application of the Armed Career Criminal Act. Here is the "upshot" of her analysis:
Justices Alito, Souter, and Thomas have proved the most committed to the statutory text in the context of this criminal sentencing enhancement, even when the resulting outcome is not-so-palatable to them. (Their Begay dissent openly expresses sympathy for the result produced by the majority, but laments the majority's construction as irreconcileable with the text). Justice Scalia has proved consistent, across cases, in applying the rather atextual, but Rule-of-Lenity-inspired, construction which he concocted to limit the reach of an ambiguous criminal statute. Justices Stevens and Ginsburg have proved somewhat mysterious, and arguably inconsistent, in their reasoning with respect to this particular sentencing enhancment. And Justices Breyer, Roberts, and Kennedy have proved rather common-law-judge-like in their willingness to tweak the applicable test for this sentencing enhancement (adding on a "similar in kind" requirement) in order to achieve their version of justice on a case-by-case, ad-hoc, basis.
The only think missing from Anita's analsyis is an assessment of what all this might mean for Rodriquez, the other notable ACCA case still pending before the Justices.
Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
I have largely given up my hope that the 2008 presidential campaign will even give sustained attention to crime and punishment issues. Nevertheless, this morning's front-page Washington Post article highlights how prison spending is not just a crime and punishment issue:
Between 1987 and last year, states increased their higher education spending by 21 percent, in inflation-adjusted dollars, according to the Pew Center on the States. During the same period, spending on corrections jumped by 127 percent. In the Northeastern states, according to the Pew report, prison spending over the past 20 years has risen 61 percent, while higher education spending has declined by 5.5 percent....
Michigan has become one of the few states that actually spend more on prisons than on higher education -- about $2 billion for prisons, and $1.9 billion in state aid to its 15 public universities and 28 community colleges. "It's insane," said Barbara Levine of the Citizens Alliance on Prisons and Public Spending in Lansing. "The governor is always talking about how we need to be high tech. But these days, the best career opportunity is to get a job as a prison guard."...
"You've got two decades of failed policies," said Laura Sager a consultant in Michigan for Families Against Mandatory Minimums. She said mandatory sentencing laws and tough penalties for drug offenses in the 1980s "bloated prisons and prison populations, and the taxpayer is paying a very high price." Now with states struggling with budget deficits, she said, "you have pressures that make it palatable to take a second look."
It is sad and telling that expensive mass incarceration realities, which have been building for years, are only now starting to get sustained major media attention. It is even sadder that the media and the pundits have consistently failed to ask the 2008 presidential candidates any serious (or even not-so-serious) questions about mass incarceration and whether anyone has a plan to cut taxes by effectively and strategically cutting prison populations.
Some related general posts on Campaign 2008:
Some related posts on specific candidates' positions and speeches:
Second Circuit rejects sundry challenges to CVRA
The Second Circuit this morning issues an intriguing little opinion in USA v. Eberhard, No. 05-3431 (2d Cir. May 5, 2008) (available here), which rejects a number of constitutional challenges to the Crime Victims Rights Act. Here is one sentence that highlights the to-the-point character of the opinion in Eberhard: "A law requiring that victims be reasonably heard (if they request) after the defendant has already been convicted does not implicate the Ex Post Facto clause."
"Fiscal Pressures Lead Some States to Free Inmates Early"
The title of this post is the title of this front-page Washington Post article in today's edition. Here is how the article starts:
Reversing decades of tough-on-crime policies, including mandatory minimum prison sentences for some drug offenders, many cash-strapped states are embracing a view once dismissed as dangerously naive: It costs far less to let some felons go free than to keep them locked up.
It is a theory that has long been pushed by criminal justice advocates and liberal politicians -- that some felons, particularly those convicted of minor drug offenses, would be better served by treatment, parole or early release for good behavior. But the states' conversion to that view has less to do with a change of heart on crime than with stark fiscal realities. At a time of shrinking resources, prisons are eating up an increasing share of many state budgets.
"It's the fiscal stuff that's driving it," said Marc Mauer, executive director of the Sentencing Project, a Washington-based group that advocates for more lenient sentencing. "Do you want to build prisons or do you want to build colleges? If you're a governor, it's kind of come to that choice right now." Mauer and other observers point to a number of recent actions, some from states facing huge budget shortfalls, some not, but still worried about exploding costs.
Victim rights amendments on Oregon ballot
This local AP article spotlights that criminal justice fans should be interested in the Oregon primary for reasons beyond the one that will be covered by most of the media:
Crime victims and their families could play a bigger role in trials and sentencing under two statewide measures on the May 20 ballot.
Measures 51 and 52 essentially make the same changes to two different sections of the Oregon Constitution, including the crime victims' right to be present at key stages in a case and to be consulted about plea negotiations in some cases and to be heard at sentencing. Many of those rights are already spelled out in Oregon law but lack enforcement provisions. The measures would also grant the right of appeal for victims who claim their rights are denied.
Some related posts:
May 4, 2008
Food for crime-fighting thought
These two recent notable article provide reasons to ponder the possibility that sentencing policies need not, and perhaps should not, be the primary way in which we try to fight crime:
- From The Economist, this piece describes success in the battle against meth by noting, inter alia, that "[w]hen Safe Streets, a community group, asked pupils to design their own anti-drug posters, many emphasised cosmetic hazards over chemical ones."
- From The New York Times Magazine, this piece describes efforts to deal with urban violent crime through a disease-treatment philosophy: "Zale Hoddenbach, who works for an organization called CeaseFire, is part of an unusual effort to apply the principles of public health to the brutality of the streets."