January 9, 2008
What happened at today's USSC hearing?
As previewed here, this morning the US Sentencing Commission held a public meeting, and this official agenda indicated that the meeting was to include ""Possible Vote to Promulgate Temporary Emergency Amendment," Possible Votes to Publish Guideline Amendments and Issues for Comment" and "Possible Vote to Publish Amendment to Rules of Practice and Procedure."
Can anyone who was in attendence at this meeting provide a report on what happened have any info on what the USSC is up to?
How the media can do better: ask the candidates tough crime and punishment questions
I am quite pleased that the results in the first state primary Tuesday keeps the presidential nomination battles going strong and that, as Lou Dobbs asserts here, political pundits "took one in the teeth last night" and now the media can and should "summon courage to report on issues."
Of course, the issues I want to see covered a lot more are criminal justice issues. Here are just a few challenging questions that I would like to see posed to all the candidates:
1. What is your view on the faith-based prisons movement and will you increase federal funding for, and research on, faith-based prison and reentry programs?
2. Do you support the (stalled?) federal Second Chance Act and will you make its passage a priority in the first 100 days of your administration?
3. What is your perspective on the federal death penalty? Will you instruct your Attorney General to continue, or to reverse, the recent trend of increased federal capital prosecutions?
4. Do you support federal mandatory minimum sentences and will you make review and of these laws a priority in the first 100 days of your administration?
5. Are you troubled by the nationwide increase in incarceration levels at both the state and federal levels? If so, what might you do as President to reverse prison growth trends?
6. Can you name all of the Commissioners on the US Sentencing Commission? (This last one is a gotcha question, but I'd like to see how the candidates would deal with having a Cliff Claven Final Jeopardy moment.)
Readers are, of course, encouraged to suggest additional questions for the candidates in the comments.
Rapid appeal for victims' rights comes before Tenth Circuit
As detailed in this prior post, last week a federal district court rejected a claim, based on the Crime Victims' Rights Act (CVRA), made by the parents of a woman killed in a shooting spree that they be deemed victims of the crime of a defendant who illegally sold the handgun used by another to kill their daughter. The parents seek victim status in order to be able to speak at the sentencing of the gun sale defendant and so that they can seek restitution from this defendant. (Notably, the actual shooter was killed during his rampage, and the illegal gun sale took place quite some time before the shooting.)
Notably, the CVRA has specific provisions authorizing an immediate appeal (technically in the form of a petition for a writ of mandamus) and requiring an immediate ruling on these kinds of disputes over victims' rights. Thus, as this new Salt Lake Tribune article details, the parents have now asked the Tenth Circuit "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."
Intriguingly, former-judge, now-professor Paul Cassell is representing the parents in the Tenth Circuit, and he is arguing that the district judge (his former colleague) erred when concluding that the connection between the criminal sale of the firearm and the shooting was too attenuated to designate the daughter as a victim of the gun sale crime under the CVRA. The petition to the Tenth Circuit (which can be accessed here) makes a number of interesting points about both the CVRA and legal causation principles. Indeed, because this case turns principally on causation issues, the forthcoming ruling from the Tenth Circuit should be of great interest not only to victims' rights advocates, but also anyone interested in bringing tort suits against gun manufacturers and gun sellers from harms resulting from their guns.
Among the many fun aspects of this litigation is how quickly we will get a ruling from the Tenth Circuit. A provision of the CVRA, 18 U.S.C. § 3771(d)(3), the Tenth Circuit must rule in this matter within 72 hours. That provision also requires that, if relief is denied to the victim, the "reasons for the denial shall be clearly stated on the record in a written opinion" (although it is unclear whether this written opinion has to be handed down within the 72-hour period for a circuit ruling).
Because the CVRA is such a notable and distinctive piece of legislation, federal court and legislation gurus should also be very interested in this case. For example, here are just a few late-night structural questions that came to mind as gave pondered this speedy litigation:
- Does Congress clearly have the power to demand that a circuit court issue a decision within 72 hours? Does the SG's office have an obligation (or even a right) to raise this concern?
- Are the "rapid return" provisions of the CVRA even applicable when disputed legal question is whether a particular person is even covered by the CVRA? Does the SG's office have an obligation (or even a right) to raise this concern?
- If a Tenth Circuit panel denies relief and en banc review and/or cert review is sought, should courts continue to feel an obligation to "fast-track" this litigation?
- Why haven't these issues come up a lot more in the 3+ years since the CVRA's enactment?
January 8, 2008
Local conditions Cavera case going en banc in Second Circuit
A helpful reader alerted me to the fact that, late last year, the Second Circuit decided (apparently sua sponte) to consider en banc the case of US v. Cavera (05-4591). As some may recall (and as detailed in posts here and here), Cavera is the fascinating case in which Judge Sifton decided to enhance a sentence above the guideline range in a gun case because he viewed gun possession in urban spots like NYC to be especially bad. Such "local conditions" considerations would seem to undermine national sentencing consistency, but they also seem like a good idea. It will be fun to see what the always thoughtful Second Circuit does with this case en banc.
Here is the basic notice from Pacer about the circuit court's collective interest in this case:
12/20/07 Order filed stating On December 3, 2007, a majority of the active judges of the Court voted to hear this case in banc. On December 12, 2007, the Court entered the order that the case be heard in banc. See Fed. R. App. P. 35(a). The submissions should consider the effect of Gall v. United States, No. 06-7949, 552 U.S. --- (2007), and Kimbrough v. United States, No. 06-6330, 552 U.S. --- (2007).
The petitioner's brief and appendix shall be filed by January 25, 2008. The respondent's brief, and any briefs amicus curiae, shall be filed by February 22, 2008. The petitioner's reply brief shall be filed by March 7, 2008. While the briefing schedule of the parties is to be strictly observed, extensions of the time to file briefs amicus curiae will be considered on a case-by-case basis. Oral argument will be held on March 27, 2008 at 3 p.m. in the Ninth Floor Courtroom of the United States Courthouse, 500 Pearl Street, New York, New York. We invite briefs amicus curiae from interested parties.
Because the court asked so nicely, I am already thinking about what I might say in an amicus brief. I tend to support consideration of local conditions at sentencing, largely because I see the concept of "national sentencing uniformity" almost as a contradiction in terms given diverse federal caseloads and prosecutorial policies in the nation's 94 districts. But, that said, I do think there have to be some limits regarding how much local conditions can and should eclipse national sentencing norms in the sentencing of individual cases.
Effective review of Gall and Kimbrough basics
I was pleased to receive and now post en effective basic summary of the Supreme Court's work in Gall and Kimbrough. Here is the e-mail I received describing the effort:
Attached is a Summary by David Debold from Gibson, Dunn & Crutcher LLP Entitled: “Two Supreme Court Decisions in December 2007 Highlight the Advisory Nature of the Federal Sentencing Guidelines”. David Debold is the Editor of the Criminal Justice Section Publication Practice Under the Federal Sentencing Guidelines, click Practice Under the Federal Sentencing Guidelines for information on the publication.
What golf rule reform can teach everyone about sentencing reform
A colleague who is a fellow golf nut sent me an e-mail from the US Golf Association announcing rule changes for 2008. Here is the heart of the announcement:
2008/2009 Rules Of Golf: Learn about the modifications to the Rules effective Jan. 1, 2008. Changes to the Rules generally fall into two broad categories:
- those that improve the clarity of the Rules
- those that reduce the penalties in certain circumstances to ensure that they are proportionate.
Intriguingly, know that some of the most thoughtful persons working on sentencing issues are also golf nuts, and they are trying to improve the clarity of sentencing rules and trying to "reduce the penalties in certain circumstances to ensure that they are proportionate." Indeed, given the mess that the Supreme Court and others have made of sentencing rules lately, perhaps this is a cosmic sign that the Justices and others working on sentencing law and policy need to hit the links a lot more (and, of course, invite me along).
California debating death in a fitting forum
As suggested here, I generally view most arguments against the death penalty to be stronger policy arguments than constitutional claims. Consequently, I was pleased to see this article from the San Jose Mercury News, headlined "California to review use of death penalty in state," reporting on a broad examination of the operation of death penalty in the state with the largest death row in the country. Here is how the thoughtful piece begins:
Just a few weeks ago, an Alameda County judge sentenced an Oakland man to death for raping and killing an 11-year-old girl, the latest addition to what is by far the nation's longest roster of condemned inmates. The convicted killer, Alex Demolle, will now enter a legal twilight zone that has made California the most schizophrenic death penalty state in the country. Fewer juries are sending murderers to death row, but the state nevertheless now has nearly 670 of them awaiting execution, nearly double the number of Texas or Florida.
California would have to execute one inmate a day for nearly two years to clear its death row. And the past 20 years have made it clear the state has no appetite for that prospect — just 13 inmates have been executed since 1978. Meanwhile, many more — 39 inmates — have died of illness or old age, six of them last year. Fourteen have committed suicide.
Against that backdrop and concerns about the fairness of how counties across the state use the death penalty, a key state justice commission this week will begin to take the closest look in years at California's awkward approach to enforcing capital punishment. The state Commission on the Fair Administration of Justice, which was established two years ago with an eye toward examining the state's death penalty, on Thursday will hold the first of three hearings on the subject.
Padilla sentencing already creating headlines
As detailed in this AP article, Jose Padilla is in federal court today for the start of sentencing proceedings: "U.S. District Judge Marcia Cooke, an appointee of President Bush, has set aside three days beginning Tuesday to hear testimony and legal arguments before imposing sentences on Padilla, Adham Amin Hassoun, 45, and Kifah Wael Jayyousi, 46." Notably, as detailed in this New York Times article, the broader stories in the war on terror might get continued attention during these proceedings:
Citing disclosures that the federal government had concealed, and in some cases destroyed, videotaped interrogations of Al Qaeda operatives, a defense lawyer in the case of Jose Padilla, the Brooklyn-born convert to Islam who was convicted as a terrorism conspirator, asked a federal judge on Monday to disclose any recordings that might bear on Mr. Padilla’s recruitment into the terrorist organization. The judge rejected the request, saying she had reviewed relevant material and concluded that the government had handed over all the required evidence.
Recent related post:
January 7, 2008
More on Irizarry and notice requirements after Booker
Though lost in all the death penalty action, last Friday the Supreme Court granted cert on an important post-Booker issue in Irizarry v. United States (06-7517). SCOTUSblog here provides the opinion below and the cert papers, and this is the question presented as set forth by the government's brief in opposition:
Whether Federal Rule of Criminal Procedure 32 requires a district court to give the parties advance notice before imposing a sentence outside the applicable advisory Sentencing Guidelines range based on the criteria in 18 U.S.C. 3553(a), when the grounds for the non-Guidelines sentence are not identified in the presentence report or the parties’ prehearing submissions.
As regular readers know, this issue has sharply divided circuit courts and there are pretty sound arguments to be made on both sides of this issue in light of Booker's transformation of the guidelines from mandatory to advisory.
Intriguingly, though, it seems that both the defendant here and the government believe that Rule 32 should be read to require a district court to give advance notice to the parties about possible grounds for imposing a non-guideline sentence. Thus, it is unclear whether and how the Justices will get briefing in support of the position that no notice is required (though these arguments are pretty well developed in lower court opinions).
Some related posts on this issue in Irizarry:
ACLU urging candidates "to oppose mandatory minimum sentencing"
Perhaps in response to reports that the Clinton campaign team was criticizing Barack Obama's opposition to federal mandatory minimum sentences (details here), the ACLU has issued this new press release titled "ACLU Hopes Candidates Won’t Make Straw Man of Sensible Sentencing Reforms." Here is how the release begins:
The American Civil Liberties Union Washington Legislative Office, a non-partisan organization, believes Senator Hillary Clinton (D-NY) was mistaken when she called ending mandatory minimum sentences a controversial position. The organization urges all candidates, from all parties, to oppose mandatory minimum sentencing and support legislation to close the sentencing disparities between crack and powder cocaine. The policy of mandatory minimum sentencing has led to thousands of people serving longer jail sentences and has contributed to the unfair sentencing disparities between federal crack and powder cocaine offenses that disproportionately affect people of color.
Some parting(?) thoughts on Baze and the lethal injection debate
Though I doubt I will be able to resist posting on the Baze case in the weeks and months ahead, I am eager to stop blogging about lethal injection litigation and to focus on all the other great (mostly non-capital) sentencing issues that now abound. I have come to realize that this feeling results largely for my sense that the petitioners in Baze are making great policy arguments and terrible constitutional claims.
As I have said for quite some time and in various scholarly venues (see here and here and here), refining lethal injection protocols seems most properly a job for legislatures, not for courts. To their discredit, some states have been awfully cavalier and secretive about modern lethal injection protocols. But, as I said in this recent PENNumbra debate, even if everyone agrees as a policy matter that states should be more careful and conscientious in their execution methods, I find troubling the argument that all death penalty states, after having adopted an improved, but still perhaps imperfect execution method, now have a constitutional obligation to make their lethal injection protocols even more perfect in order to minimize any possible risk of pain to the murderer being executed.
I make this point and others with a lot words in this short podcast about the Baze oral argument that I did earlier this afternoon. And, for anyone interested in a review of the day in Baze posts and my prior scholarly writings on lethal injection protocols, here is a recap:
- The secret story behind the Baze case
- A great animal irony in the Baze oral argument
- Early reflections on the Baze oral argument
- Putting Baze et al. in perspective
- Finding Bickel Gold in a Hill of Beans (my article about last SCOTUS lethal injection case)
Georgia Supreme Court considers banishment as punishment
Georgia's judges are barred from banishing criminals from the state, but some use a legal maneuver to get around the ban: Restricting the offenders from all but one of the state's 159 counties. That often means confining selected offenders to remote counties in rural Georgia, or hard-to-reach spots near the Okefenokee Swamp....
[This issue arises] Monday in Georgia Supreme Court as justices hear the case of Gregory Mac Terry, who was banished from every county but one after pleading guilty to assault and stalking charges.... Terry was sentenced to 20 years in prison and 10 more years on probation — with the condition that he be banned from all Georgia's counties except Toombs County in southeast Georgia.
The banishment effectively blocked his release from prison in June 2001 when he was told he had a chance to be paroled if he completed a work release program. But he couldn't start the program because he was banned from living and working in Fulton County, a development that set his parole date back until June 2009, according to his lawsuit....
Terry's attorney, McNeill Stokes, said the [banishment] practice is an "unconstitutional outrage" that's aimed at getting his client — who has no family or job in Toombs County — to flee the state. "It's a throwback to the dark ages," said Stokes. "The whole point behind this is zealous prosecutors wanting to get rid of problems in their counties."
Eighth Circuit relies on Gall to affirm significant upward variance
As I have noted before, the fact that Gall seemed to loosen the stardards for appellate review of variances will not always benefit defendants. Proof comes today from the Eighth Circuit, which today in US v. Braggs, No. 07-1148 (8th Cir. Jan. 7, 2007) (available here), affirms an above-guidelines sentence by relying heavily on Gall. Here is how the opinion starts:
Keisha Braggs pled guilty to fraudulent use of an unauthorized access device, which carries a maximum term of 10 years of imprisonment. 18 U.S.C. § 1029(a)(2). Although the Sentencing Guidelines recommended a sentence of 15 to 21 months, the district court imposed a sentence of 48 months. Braggs challenges her sentence as unreasonable. Guided by the Supreme Court’s decision in Gall v. United States, 552 U.S. ___, No. 06-7949 (Dec. 10, 2007), we affirm.
Some related post on post-Gall circuit decisions:
Good news on the violent crime rate
As detailed in this AP report, crime "dipped slightly for the first half of 2007, the FBI reported Monday, signaling a stop to a 2-year increase in violence nationwide." Here are more details:
Violent crime — including murders, rapes and robberies — dropped by 1.8 percent between January and June last year, the FBI's preliminary data show. Property crimes also decreased, including a 7.4 percent drop in car thefts and arsons by nearly 10 percent. But violent crime appears to be rising, if slightly, in small cities and rural areas, the data show.
A lot more details are available here from the official FBI website. It has this great start to this new data: "It’s a good start: in the first six months of 2007, crime rates dropped for the first time in two years. Nationwide, violent crime fell 1.8 percent and property crime 2.6 percent compared to the same period last year."
Early reflections on the Baze oral argument
Though we don't agree on all issues, Orin Kerr and I seem to be sharing a lot of the same instincts about the Baze case. Specifically, I think Orin's analysis here of the Baze oral argument is spot-on, and I fully agree with these two statements in his strong post:
(1) On the whole I thought it went very well for the Respondents, the Commonwealth of Kentucky. The Justices were clearly frustrated with the lack of record supporting the Petitioners' side: they seemed to think that the issue of alternatives to the three-drug protocol hadn't really been raised below, and they thought the claims about the different risks associated with different protocols were speculative.
(2) Roy Englert was excellent as counsel for Kentucky. He came off as the reasonable man, avoided any grand claims, conceded arguments he didn't need, and stuck to the record. It seemed to work: even Justice Stevens seemed persuaded that the record in this case showed that Kentucky was actually pretty careful and that there wasn't much of a risk of error.
Similarly, Lyle Denniston writing here at SCOTUSblog had this fitting assessment: "Justice John Paul Stevens, the Court's most liberal member, suggested explicitly at one point that the state of Kentucky probably should win in this case, if the issue was solely how well it administers the protocol in order to assure that death occurs without great pain and with dignity. But, he said, that would leave open the issue of whether the protocol itself — the combination of three drugs — could pass constitutional muster."
A great animal irony in the Baze oral argument
Through a C-Span link, I am listening to a rebroadcast of this morning's Baze oral argument. During questioining of Kentucky's lawyer defending its lethal injection protocol, Justice Stevens made much of the fact that Kentucky state law prohibits vets from using a similar protocol for putting down animals. During the dialogue, an amazing irony hit me:
It seems that, purportedly to achieve a more humane lethal injection protocol, it seems that some are arguing that the Eighth Amendment requires that condemned defendants should be treated more like condemned animals. (Readers are now encouraged to think of a funny Michael Vick firing squad joke to add here.)
Lots of Gall and Kimbrough GVRs this morning from SCOTUS
The first 17 pages of this new order list released by the Supreme Court this morning are taken up a whole big bunch of Gall and Kimbrough GVRs — which means the Supreme Court Granted the petition for review, and then Vacated the circuit court's decision below, and then Remanded the case for further consideration by lower courts in light of the decisions in Gall and Kimbrough.
I quickly counted about 75 GVRs in those pages and same the names of many of the defendants in some of the better-known crack/powder circuit cases — e.g., Pho from the First Circuit, Eura from the Fourth Circuit, Jointer from the Seventh Circuit, Spears from the Eighth Circuit. These GVRs are not that surprising, but how the circuit courts deal with all these cases they got wrong the first time will be interesting to watch.
Relatedly, I would be grateful if readers could spotlight in the comments any other notable cases appearing on — or missing from — this long GVR list.
Putting Baze et al. in perspective
This morning, largely because of the Baze case to be argued in the Supreme Court, most of the morning posts at How Appealing link to death penalty articles or commentary. Among the best of the group is this new piece from Benjamin Wittes from The New Republic, titled "The Death Clock: Don't count out the death penalty yet." Here is how it starts:
These are heady days for anti-death penalty activists. New Jersey has taken the plunge and legislatively repealed capital punishment — becoming the first state in the modern era to do so. Today, the Court will hear arguments over whether the specific drug cocktail used in lethal injections constitutes cruel and unusual punishment by causing too much pain to the condemned. By taking up the issue, the Court has effectively frozen all executions in the nation. And no state other than Texas (a significant exception) executed more than three people last year. The news has the anti-capital punishment Death Penalty Information Center (DPIC) proclaiming the "execution chambers silent" as the Garden State charts a "new direction" and declaring both actions symbolic of the "broad changes that have been occurring in the death penalty around the country."
Curb your enthusiasm. The death penalty is, like the Iraqi insurgency, not quite yet in its death throes. While capital punishment appears on the wane right now, neither New Jersey's action nor the temporary national freeze — particularly the latter — may mean all that much in the long run.
The secret story behind the Baze case
In just a few hours, the Supreme Court will hear oral argument in the Baze lethal injection case, and this new Los Angeles Times article provide insights into an important back-story surrounding the case. Here is how the article starts:
The legal battle over lethal injection, which comes before the U.S. Supreme Court today, has been conducted in unusual secrecy, with courts permitting states across the country to keep from lawyers and the public precisely how death row inmates are executed.
In state after state, defense lawyers contending that the execution method inflicts unnecessary pain complain that judges have denied them access to crucial information, including the identity of executioners and details about the drug cocktail used in the fatal injections. State officials have successfully argued that releasing such information could compromise prison security and the safety of personnel. But lawyers for death row inmates say the restrictions have hampered their efforts to question not only the drugs, but how they are administered.
Among many great aspects of this article is that it quotes Alison Nathan from this recent PENNumbra debate in which I participated. The article also raises the serious question of whether this case would even be before SCOTUS if states had been more transparent about their lethal injection protocols.
Notably, as detailed here, on state has recently been forced to be very transparent about its execution protocols. Pursuant to a state judge's order, the Ohio Department of Rehabilitation and Correction has now produced extensive materials on its lethal injection protocol. (The ALCU has made available here the 632-page binder of Ohio documents showing how the state executes; I am hoping Ohio's good work in this arena will bring good karma in another big event taking place in another arena today.)
Some recent related posts on Baze:
- Strong Baze
- Finding Bickel Gold in a Hill of Beans (my article about last SCOTUS lethal injection case)
Important memo analyzing crack retroactivity issues
Thanks to the folks at the Office of Defender Services, this website now has made available this impressive and important 23-page memorandum that seeks to provide "a comprehensive analysis of issues that may arise in the retroactive application of the crack cocaine guideline amendments." The memo is dated January 2, 2008, and was authored by the National Federal Defender Sentencing Resource Counsel. Key topics covered in this memorandum include:
- the right to counsel
- the right to a hearing, and the right for the defendant to be present
- the right to a full resentencing in accord with Booker v. United States
- obtaining early release for defendants eligible for release before March 3, 2008
- retroactive application of the amendments in special cases, including career offender and Armed Career Criminal cases.