January 12, 2008
Should SCOTUS really be reviewing Missouri's lethal injection team?
One challenge for the death row inmates challenging a lethal injection protocol in the Baze case is that the execution record from Kentucky appears to be sound. But, thanks to this article in the St. Louis Post-Dispatch, we keep learning that the execution story from Missouri reads more like sensational fiction than fact. Here are snippets from the latest jaw-dropping discovery:
Before a Missouri executioner could go to Indiana in 2001 to help federal authorities put mass killer Timothy McVeigh to death, he had to take care of one detail: He needed permission from his probation officer to leave the state.
The request, by a licensed practical nurse from Farmington, set off alarms within the Missouri Division of Probation and Parole. At least one supervisor spoke out to an agency administrator. "As I stated to you previously, it seems bizarre to me that we would knowingly allow an offender, on active supervision, to participate in the execution process at any level," she wrote.
But that memo and others obtained by the Post-Dispatch show that high-level federal and state corrections officials did let the nurse make the trip — and continue to work on Missouri's lethal-injection team.
The use of someone with such legal troubles — two felonies plea-bargained down to misdemeanors for stalking and tampering with property — raises further questions about the expertise and backgrounds of the people the government entrusts to carry out the ultimate punishment.
Some related posts on Missouri's execution record:
Thoughtful Eighth Circuit ruling on commutation procedures and ex post facto claim
An interesting ruling came from the Eighth Circuit on Friday concerning legal claims surrounding cummutation procedures. The full opinion in Snodgrass v. Robinson, No. 07-1463 (8th Cir. Jan 11, 2008) (available here), has lots of nuance. Here is how it starts:
State prisoner Sherryl Ann Snodgrass filed suit alleging that the Iowa Board of Parole (“the Board”), the Board’s members, and the governor of Iowa violated her constitutional rights by applying laws and regulations governing sentence commutation requests even though the laws were passed after her conviction. She alleges these acts violated the ex post facto clause of the United States Constitution and caused a deprivation of her Fifth and Fourteenth Amendment due process rights. U.S. Const. Art. I, § 10, cl. 1; Amend. V; Amend. XIV, § 1. The district court1 granted a motion to dismiss, finding commutation by the governor in Iowa to be an act of grace unrestricted by substantive laws or rules. The district court concluded that the speculative possibility of a lost opportunity for a commutation could not serve as the basis for a state’s ex post facto violation and that Snodgrass had no liberty interest in an act of grace by the governor. Accordingly, the district court held Snodgrass had not stated a cause of action for any constitutional violations. We affirm.
Genarlow Wilson headed to college
I was pleased to see this news report from Atlanta providing an update on the state and fate of Genarlow Wilson. Here are highlights:
In his two years in prison, Genarlow Wilson did a lot of reading. One of his favorite books: Rick Warren's "The Purpose Driven Life." The title could not be more appropriate for the next chapter in Wilson's highly publicized young life.
Nearly three months out of prison for committing a sex act with a teenager, Wilson, 21, plans to move into a dormitory at Morehouse College this weekend. He will live and study for free, thanks to the Tom Joyner Foundation, an educational nonprofit founded by the nationally syndicated radio personality. The foundation announced Thursday that it will cover the cost of tuition, room and board and books....
"I've been wanting to go to college for so long," said Wilson, who wants to major in sociology or education, with a minor in history. "I want to study and learn so I can be a mentor for others. It was very generous for [Joyner] to do that for me. I won't let him down."...
Wilson was released from prison Oct. 26 after the Georgia Supreme Court ruled that his 10-year sentence for having consensual oral sex with a 15-year-old girl was "cruel and unusual punishment." Wilson, who was 17 at the time of the incident, was convicted of felony aggravated child molestation. At the time, state law mandated a minimum 10-year sentence for the crime. The Legislature eventually changed the law to make such cases misdemeanors when they involved teenagers close in age....
Despite his ordeal, Wilson said he has no regrets. "I'm not mad about anything that happened, really," said Wilson, who now lives in Cobb County. "It helped me grow as a person, made me stronger, made me more ambitious. "I was at my lowest point in life. Now everything I wanted to do can finally happen."
I could not be happier that the Wilson story now has this happy ending; of course, there can be a lot more to the story in the years ahead. I hope that Wilson might get seriously involved in sentencing reform movements because his name and his story alone can help a lot of politicians and voters understand the harms of — and the challenges to undo — extreme mandatory minimum sentencing provisions.
January 11, 2008
Tenth Circuit rejects CVRA claim in shooting case
Though I have not yet seen a copy of any opinion, the Salt Lake Tribune is reporting here that the Tenth Circuit today ruled that "the parents of a woman killed in the Trolley Square massacre cannot speak at the sentencing of a man who illegally sold a handgun to the shooter." Here is more on a Crime Victims' Rights Act case that I find fascinating (and discussed here and here earlier this week):
A three-judge panel at the Denver-based court described the case as "difficult." However, the trio said, U.S. District Judge Dale Kimball in Salt Lake City was not "clearly wrong" in his conclusion that Vanessa Quinn was not a victim of Mackenzie Glade Hunter's illegal sale of a .38-caliber Smith & Wesson to Sulejman Talovic, who used the gun to kill her about eight months later.
The designation under the federal Crime Victims' Rights Act (CVRA) would have allowed Sue and Ken Antrobus of Cincinnati, as representatives of their daughter, to urge Kimball to impose a stiff punishment at Hunter's sentencing on Monday. They want Hunter to spend 99 months behind bars for the sale, which was illegal because Talovic was a 17-year-old minor at the time.
Paul Cassell, a University of Utah law professor who represents the Antrobuses, said the ruling was disappointing. He pointed out that other courts in different cases have differed on what standards to apply in looking at CVRA matters. "The 10th Circuit applied the strictest possible standard of review to the Antrobuses' claim, differing from the holdings of the federal appeals courts in New York and California," Cassell said. "Sadly, it appears that the Antrobuses would have won if their case had been filed in New York or California. I intend to ask the full 10th Circuit or the U.S. Supreme Court to review this case and bring the law in this Circuit into conformity with the law of the other circuits."...
Although he joined in the unanimous decision, 10th Circuit Judge Timothy Tymkovich wrote that he believed Kimball and prosecutors erred in not allowing the Ambruses to have access to some of the evidence that could show that Talovic's crime was a "reasonably foreseeable result of the illegal gun sale."
In addition to flagging a notable circuit split, Paul Cassell's comments here raise some interesting statutory interpretation and fed court issues. As I noted in this prior post, the provisions of the CVRA, 18 U.S.C. § 3771(d)(3), that gave the Antrobuses authority to seek mandamus in the Tenth Circuit does not obvious provide direct authority for seeking cert. And since the Antrobuses are technically not parties to the underlying criminal litigation, their standing for pursuing relief in the Supreme Court is unclear (and yet may soon be litigated). Where are Hart or Wechsler when I really need them?
UPDATE: Thanks to Professor Paul Cassell, I can now provide the Tenth Circuit Antrobus ruling for downloading below.
Here also is a summary and comment from Prof. Cassell:
The ruling held that the Antrobuses had not shown an "extraordinary situation" justifying appellate court review. In doing so, the Tenth Circuit rejected earlier rulings from the Second Circuit and Ninth Circuit that give crime victims' the right to ordinary appellate review.
Professor Cassell also criticized the broader implications of the ruling today: "Unfortunately, the Tenth Circuit today has continued the sad legacy in this country of making crime victims' second-class citizens in the criminal justice process. The Circuit refused to give crime victims the ordinary appellate review that other litigants receive."
Marion Jones gets six-month federal prison term
As detailed in this Reuters article, "Disgraced Olympic sprinter Marion Jones was sentenced to six months in prison on Friday for lying to federal prosecutors about her steroid use." Here are more details:
U.S. District Court Judge Kenneth Karas imposed the sentence after Jones pleaded guilty to two charges last October, part of a stunning demise of the five-time medalist from the 2000 Sydney Olympics. Karas gave Jones six months for lying about steroid use and two months -- to run concurrently -- for a separate charge of misleading federal investigators about her knowledge of a check fraud case involving her ex-boyfriend, former 100 meters world record holder Tim Montgomery.
Jones, 32, became the biggest name in international sport to admit to using steroids with her guilty plea in October. She tearfully admitted to betraying the trust of her fans and country after years of vehemently denying she used performance enhancing drugs. She confessed to lying to federal investigators in 2003 when she denied knowing that she took the banned substance tetrahydrogestrinone (THG), known as "the clear," before the 2000 Olympics.
As part of her plea deal, prosecutors asked the judge to sentence her to between zero and six months in prison, and defense lawyers asked for mercy because she had suffered public humiliation.
Though I try to avoid injecting racial issues into matters that are clearly about a lot more than race, I cannot help but note that Barry Bonds and Marion Jones are the only two high-profile athletes to be formally prosecuted for lying about steroid use even though I have every reason to believe a number of other athletes have clearly lied or mislead federal investigators in the course of steriod investigations. I wonder what the astute folks at blackprof might think about this prosecutorial reality.
Graphic scholarship critiquing deterrence theory
A kind reader sent along this picture (and this link to a larger version) from the cartoonist Ted Rall, which provides a cogent critique of classic deterrence theory. Of course, deterrence theory has more to it than this cartoon suggests, but I am still moved to describe the cartoon as a great form of graphic scholarship on theories of punishment.
Great Sixth Circuit dissent laments “guidelinitis”
Describing a disease that likely puts more fear in the hearts of defendants than SARS or bird flu, Judge Merritt issues an amazing dissent today in US v. Sexton, No. 05-6412 (6th Cir. Jan. 11, 2008) (available here), that laments "the problem of guidelineism, or 'guidelinitis,' the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone." Here is the start of Judge Merritt's dissent from today's must-read case:
Except for those judges and lawyers who prefer to continue routine conformity to the old pre-Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened — continuing under the pretext that the guidelines are only “advisory” instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in § 3553(a), Title 18. This case is one more example of the continuing problem, the problem of guidelineism, or “guidelinitis,” the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.
By ratcheting up the sentence, as is typical under the guidelines, piling aggravator on aggravator, the District Court, (as though Booker had never been decided), simply restored its old guideline sentences of 20 years in prison for Sexton, 16 years in prison for Legg, and 12 years in prison for Romans — all for a victimless drug crime.
Such harsh sentences are par for the course under the guidelines. The sentencing court imposed a harsh sentence without seriously considering mitigating family and personal factors or rehabilitation possibilities — all in line with the U.S. Sentencing Commission rules against the consideration of such individual factors in Chapters 5H and 5K of the Guidelines.1 This refusal to seriously consider individual factors, including rehabilitation, has been the most important characteristic of the work of the Sentencing Commission. From the beginning, the guidelines have emphasized collectives, not individuals; and individualized sentencing by federal judges, the weighing of aggravators and mitigators through a process of dialectic reflection and reconciliation, has become a relic of the past. The creation of these guidelines involved the breakdown of behavior into smaller and smaller parts and categories of aggravators or enhancements without consideration of other important individual factors.
Nebraska working to reform juve LWOP sentences
A helpful reader sent me this encouraging article headlined "Bill would give youngsters sentenced to life in prison hope for parole." Here are excerpts:
Nebraska would join eight other states that have prohibited sentencing young murderers to life in prison without parole under a bill introduced Thursday in the Legislature. Nebraska currently has 30 people who were sent to prison for life before their 19th birthdays....
Under the bill introduced by State Sen. Dwite Pedersen of Omaha, those convicted of a murder that was committed before their 18th birthday could be considered for parole after 25 years. Those convicted of a murder committed before their 16th birthday could be considered for parole after 20 years.
In a recent report, Nebraska youth advocacy group Voices for Children, which supports Pedersen's bill, said "life without parole is contrary to the mission of juvenile justice."... Eight states and the District of Columbia now prohibit the sentencing of youth offenders to life without parole. Colorado is the most recent to ban the sentence, acting in 2006.
Some related posts:
- California considering eliminating LWOP for juveniles
- Forthcoming PBS program "When Kids Get Life"
- Does Roper suggest young juve LWOP is unconstitutional?
Review finds that California's capital system "is a mess"
Students of the death penalty will not be at all surprised to learn that many agree that California's capital punishment system is badly in need of reform. As previewed here, a commission in California has started reviewing the state's death penalty system. This article from San Jose Mercury News reports on what the commission is hearing:
Leading judges and scholars provided a grim verdict Thursday on how well the California justice system is carrying out the ultimate punishment as a state commission began an unprecedented review of the death penalty. From California Chief Justice Ronald George, a death penalty supporter, to law professors who oppose capital punishment, the theme was consistent: The state's death penalty system is a mess.
George and six other witnesses, including a federal appeals court judge and Florida's former chief justice, named a string of reforms to improve death penalty justice in California, where there are now nearly 670 inmates on death row who typically spend decades awaiting execution. But for the most part, many of the proposals called for spending more money — just as Gov. Arnold Schwarzenegger elsewhere in the building was proposing dramatic cuts in education and prisons to cope with a $14 billion budget shortfall.
"The current system is not functioning effectively," George told the California Commission on the Fair Administration of Justice. "We're at a point now where choices must be made."
The hearing in Sacramento was the first of three the state commission has scheduled to explore the death penalty system. Thursday's focus was on proposals to ease the nation's biggest backlog of death row appeals, as well as studies that show California has applied the death penalty inconsistently.
Former Attorney General John Van de Kamp, chair of the commission, stressed that the panel will not address the "morality of the death penalty," only issues related to the handling of capital trials and appeals. Two years ago, the Legislature established the commission, a cross-section of prosecutors, defense lawyers and other justice experts, to examine the state's death penalty and other criminal justice issues.
This article in the Los Angeles Times has this summary of what transpired before the commission: "A procession of legal experts declared Thursday that the state's manner of meting out the death penalty had become so bogged down and dogged by inequities that wholesale repair was needed. But during the first of three hearings by a state criminal justice commission there was little agreement on what would constitute the best fix."
Colorado now starting serious reform efforts
As detailed in this local article, the new " Colorado Commission on Criminal and Juvenile Justice will sit down Friday to begin tackling questions on sentencing, recidivism and other factors contributing to the state's fast-growing prison population." Here are more details about another state's efforts to deal with prison growth issues:
Gov. Bill Ritter, who set up the commission and appointed the 27 members, will speak at the first session.... The commission was an initiative of the governor, a former Denver district attorney, said Lance Clem, spokesman for the Department of Public Safety. "The governor is concerned about the impact of incarceration on the state budget and how to find cost-effective alternatives to incarceration," Clem said.
The state has 23,000 inmates housed in facilities throughout the state and 10,000 parolees. Criminal justice officials expect the state's prison population to rise nearly 25 percent in the next six years. The Department of Corrections budget is now more than $702 million. Statistics indicate 90-95 percent of prisoners will be released, but one of every two ex-cons will return to prison within three years. The commission will look at recidivism rates and prisoner re-entry, Weir said. It also will look at prevention and alternatives to incarceration, he said.
January 10, 2008
Judge Posner and sentencing the 30-year-old virgin
Writing on behalf of the Seventh Circuit, Judge Richard Posner is in fine form with his ruling in US v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (available here). Though McIlrath covers some notable and important post-Booker legal ground in the course of affirming a within-guideline sentence, it is the facts of the case and Judge Posner's prose that makes McIlrath a must-read. Here are just a few of many choice passages:
The defendant was 31 years old when he committed the crime and had no criminal record. He was a loner who had not had sex until the previous year, with a woman who then rejected him, breaking his heart and (he claimed) precipitating the incidents with the 12- and (supposed) 15-year-old girls....
The defendant’s history and characteristics were relevant in possibly suggesting both that imprisonment would be a more severe punishment for him than for the average Internet sexual predator, which would argue for a lower prison sentence, and that he is less likely to repeat his crime than the average such offender, which would also argue for a lower prison sentence. The first point goes to the retributive (“just punishment”) and general-deterrence factors in section 3553(a), the second to specific deterrence (to protect the public from further crimes by this defendant). But neither was very persuasive. As far as we know or the defendant’s lawyer or psychologist attempted to show, the average man who trolls for young girls in Internet chat rooms is no better adjusted than the defendant. It is true that a sexual interest in teenage girls is not abnormal in the sense that pedophilia is; any female of reproductive age is a natural object of desire on the part of a male, whether in our species or any other. But the 12-year-old girl whom the defendant propositioned may well have been prepubescent, and he seemed not to care; and given that sex with 12- and 15- year-olds is deemed a very serious crime in our society, especially when the man is much older, a 31-year-old man who tries to seduce these young teenagers in Internet chat rooms is unlikely to be well adjusted.
Supplemental brief in Sixth Circuit en banc case on acquitted conduct enhancements
As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker. Earlier this week, cousel for the defendant in White filed his supplemental brief (available below). This new brief make a number of nuanced arguments about the illegitimacy of sentences based on acquitted conduct in light of old and new Supreme Court decisions.
Especially for anyone involved in a case in which acquitted conduct enhancements may be involved, this supplemental brief is a must-read.
How many Booker pipeline cases are still in the system?
This Saturday, January 12, marks the three-year anniversary of the Supreme Court's Booker ruling, and the vast majority of legal issues now occupying lower courts are true post-Booker concerns. But, as evidenced by a ruling from the Ninth Circuit today in US v. Thornton, No. 06-50597 (9th Cir. Jan. 10, 2008) (available here), some courts and lawyers are still dealing with some Booker pipeline issues.
For folks still working on Booker pipeline cases, Thornton is a must-read. For others, not so much. In any event, here is the opinion's first paragraph:
David Thornton appeals from the district court’s decision to not re-sentence him after a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). He challenges both the ruling on remand and certain issues with respect to the original sentencing.
Sixth Circuit affirms above-guideline sentence based on Gall
More proof that the Gall decision will not always benefit defendants comes today in US v. Klups, No. 06-1931 (6th Cir. Jan. 10, 2008) (available here), which affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion ends (some cites tweaked):
Klups argues that because his sentence is “twice the high end of the advisory Guideline range” the district judge had to offer a “compelling justification” for the sentence. Prior to the Supreme Court’s opinion in Gall, we held “that the farther the sentencing court varies from the guidelines range one way or another, the more compelling the justification for that variance must be.” United States v. Funk, 477 F.3d 421, 426 (6th Cir. 2007). The majority opinion in Gall, however, “reject[ed] . . . an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range . . . [as well as] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” 128 S. Ct. at 595. The Court in Gall explained “why the Court of Appeals’ rule requiring ‘proportional’ justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U.S. 220 (2005).” Id. at 594. Certainly, in considering the § 3553(a) factors in the course of determining “that an outside-Guidelines sentence is warranted,” the district judge “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 597. Gall, however, further clarified the distinction between the role of the district courts and that of the courts of appeals. After Gall, “we no longer apply a form of proportionality review to outside-Guidelines sentences” ... United States v. Bolds, No. 07-5602, 2007 WL 4440403, at *10 (6th Cir. 2007). We conclude, in the words of the Supreme Court in Gall, that “[o]n abuse of discretion review, [we give] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 128 S. Ct. at 602.
Why is Senator Sessions really blocking the Second Chance Act?
I have only done occasional blogging on the federal Second Chance Act (see here and here), in part because I was waiting and hoping for this long-stalled legislation to finally become law. But now I see from this news article that "Sen. Jeff Sessions, in the final days of the congressional year, temporarily blocked legislation to help former prisoners re-enter society because of concerns that it would dramatically increase federal spending on untested programs." Here are more details from the article:
The Alabama Republican's staff asked for more time to review the Second Chance Act, which passed the House in November by a wide margin and has broad bipartisan support in the Senate. Sessions supports the goal of helping released prisoners become productive citizens and less likely to commit another crime, his spokesman Stephen Boyd said Wednesday. But the proposal increases spending on grants for state and local governments from $16 million to $55 million. Sessions argued that some of those programs have not been fully evaluated and may duplicate existing programs.
The grants can go toward helping the recently incarcerated find employment, housing, substance abuse treatment and other assistance. "We are looking at ways that we could improve the bill's language in those respects," Boyd said. Overall, the proposed legislation would spend about $165 million annually on grants, research, career training, family counseling and mentoring, according to the Council of State Governments Justice Center, which endorses the bill.
With about 1.7 million people in state and federal prisons and most of them serving less than a life sentence, advocates say the issue of recidivism has attracted liberals and conservatives who want to keep people from cycling back through, costing taxpayers money and causing prison crowding. Almost 68 percent of prisoners are rearrested within three years, according to Department of Justice statistics. "A modest expenditure to help transition offenders back into the community can save taxpayers thousands of dollars in the long run," Rep. Chris Cannon, R-Utah, said when the bill passed the House 347-62....
I have a hard time accepting at face value the claim by Senator Sessions that he is worried that the current version of the Second Chance Act might allocate some small amount of monies to "untested programs." Our nation is currently spending more than $200 million every single day on "untested programs" in Iraq, and there is little reason to have much faith that we are ever going to get a decent return on our investments there. In contrast, lots of research shows that monies spent up-front on re-entry programs is a terrific investment that, as Rep. Cannon noted, can save lots of money (and also prevent much non-economic suffering to potential crime victims) in the long run.
It bears remembering that the head of Senator Sessions' own political party is, in a sense, the chief sponsor of the Second Chance Act. The bill can be traced back to this wonderful passage in President George Bush's 2004 State of the Union address:
Tonight I ask you to consider another group of Americans in need of help. This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work, or a home, or help, they are much more likely to commit crime and return to prison. So tonight, I propose a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups. America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.
How sad that, a full four years after President Bush made this pitch, Senator Sessions is balking about the costs of a bill that only provides roughly half the funds that the President initially proposed. Not only am I disappointed with Senator Sessions, but I am also troubled that none of the prominent Senators running for President have made an active or vocal pitch for getting this legislation finally passed.
Some related posts discussing the Second Chance Act:
Federal prison population soon to exceed 200,000
As detailed in this page of quick facts about the federal prison population, as of December 29, 2007, the federal inmate population was 199,616. Because this population in recent years has tended to grow at least a few hundred persons each month, it seems very likely that very soon the federal inmate population will exceed 200,000 total persons.
Notably, according to this 1995 annual report from the federal Bureau of Prisons, it was only a little more than 10 years ago that the federal prison population surged past 100,000 total inmates. Moreover, the latest data indicate that more than half of the federal inmate population now are incarcerated for drug offenses. Thus, there are now more persons serving federal prison time just for drug offenses than comprised the entire federal prison population just over a decade ago.
I am not sure if I am troubled more by this basic data or by the fact that precious few public officials, media pundits or academics seem seriously interested in examining the remarkable modern growth in the federal prison population. While there seems to an endless obsession with the few thousand murderers who are on death row, stunningly little attention is paid to the hundreds of thousands of individuals subject to severe terms of incarceration for having committed far less serious crimes. I suppose I should just add a question about the federal prison population to this list of questions I wish the media would ask all the wannabe presidential candidates.
AP reports on high-profile federal sentencings
Two very different high-profile federal sentencings are in the news this week, and here are the latest AP reports on both:
I do not think I am going out on a limb when I predict that Jose Padilla is likely to get a much longer prison term than Marion Jones.
Concerns down under about extreme plea discounts
As detailed in this new article from Australia, a review of sentencing breaks for pleading guilty is underway down under. Here are details:
Community outrage over criminals getting lighter sentences for eleventh-hour guilty pleas to lesser charges has prompted a review of NSW guidelines. Attorney-General John Hatzistergos has asked the NSW Sentencing Council to review plea bargaining and a number of other issues relating to how reductions in sentences are determined.
"While reduced sentences for guilty pleas have a part to play in the justice system, it is important they are applied consistently and in accordance with clear principles," Mr Hatzistergos said in a statement today. "This review is in response to police and community expectations and concerns for greater accountability regarding sentence discounts."
Anger over sentence discounting reached boiling point last month when John Taufahema was sentenced to a minimum seven years jail over the 2002 shooting of Senior Constable Glenn McEnallay. Police and Senior Constable McEnallay's family argued Taufahema was essentially rewarded for pleading guilty to the lesser charge of manslaughter to save his own neck....
The NSW Sentencing Council is chaired by Justice James Wood and includes representatives from victims groups and the wider community.
This story is telling against the backdrop of debates over these issues in the US. Though plea discounts sometimes become an issue of controversy here, a related problem is the extreme sentences some offenders will receive principally as a result of exercising their constitutional right to a jury trial. Nevertheless, despite lots of high-profile examples of extreme "trial penalties" (e.g., the sentences imposed on Jeff Skilling and the border agents), to my knowledge no government review is afoot to assess whether some defendants are being punished to harshly simply for contesting evidence at a trial.
January 9, 2008
Additional filings in Tenth Circuit CVRA case
As discussed here, the Tenth Circuit has to rule this week on a petition from the parents of a slain woman based on the Crime Victims' Rights Act that seeks "to declare their daughter a victim in a crime that took place months before her death — the illegal sale of a handgun to the shooter." There were additional filings in this speedy CVRA matter, which can be downloaded here: (1) the defendant's opposition to the parents' petition, and (2) a "no response" letter from the government:
Notable (split-the-difference?) capital commutation in Ohio
As detailed in this news report, Ohio death row defendant "John Spirko will not be executed for the 1982 murder of Betty Jane Mottinger. But he'll never get out of prison, either." Here more from the news report:
Citing the lack of physical evidence in the 1982 murder and what he described as "slim residual doubt" about Spirko's guilt, Ohio Gov. Ted Strickland said today that executing the death-row inmate would be "inappropriate." Instead, Strickland commuted Spirko's sentence to life in prison without parole.
Spirko attorney Tom Hill said today that Spirko was relieved at the governor's decision to spare him from lethal injection. But Hill, who as Spirko's lawyer has described the evidence of Spirko's actual innocence as overwhelming, expressed disappointment that Strickland did not pardon his client outright, or commute his sentence to time already served and release him.
Governor Strickland's statement in support of this commutation is available at this link. Here are key passages from that statement:
John Spirko was convicted, by a jury, of a heinous murder. At times, when he wasn't denying having committed the murder, he appears to have admitted doing so. Ohio and federal trial, appellate and supreme courts reviewed his conviction and upheld it. Alibi claims and claims regarding evidentiary weaknesses, including more recently developed theories and interpretations of evidence, were considered by those courts and rejected. In addition, Governor Taft and I granted Mr. Spirko, collectively, seven reprieves to allow for the analysis of DNA related to the case. Once completed, these DNA tests neither exonerated Mr. Spirko nor implicated him or anyone else....
Nonetheless, I have concluded that the lack of physical evidence linking him to the murder, as well as the slim residual doubt about his responsibility for the murder that arises from careful scrutiny of the case record and revelations about the case over the past 20 years, makes the imposition of the death penalty inappropriate in this case....
Based on [my] review, I have decided to commute Mr. Spirko's sentence to life imprisonment without the possibility of parole.
So, apparently my state's Governor is not convinced Spirko was wrongly convicted. And yet, Gov. Strickland was concerned enough about his guilt that he does not want the state of Ohio to carry out the sentence a jury imposed and that numerous courts have affirmed. And yet, despite these concerns about guilt, the Governor believe he should sentence Spirko to spending the rest of his days on earth confined to a small cage.
For a host of political reasons, I understand Gov. Strickland's interest in splitting the difference here. If Spirko is in fact innocent, this commutation is a grave injustice to him; if Spirko is in fact guilty, this commutation is a grave injustice to the victims of his crime and the legal system. So, I am not sure if Solomon would be proud of embarrassed by such a baby-splitting decision.