May 27, 2008
On Judge Nancy Gertner as blogger
Thanks to How Appealing, I discovered this Boston Globe article discussing federal judge Nancy Gertner's recent blogging Slate's Convictions blog. (Of course, regular readers know that Judge Gertner's many provocative and thoughtful sentencing opinions have long made great blog fodder.) Here are a few interesting snippets from the Globe article:
Gertner appears to be the only judge in Massachusetts who shares her unfiltered legal views in the blogosphere, according to officials in the federal and state judiciary. A favorite of the state's defense bar and plaintiffs' attorneys, and the bête noire of some in law enforcement, she is also the only jurist among nearly two dozen contributors to what Slate calls its "blogging destination for smart legal conversation and commentary."...
For the past nine years, she has also taught two courses on sentencing, one a semester, at Yale Law School, her alma mater, where she shares her insights in her characteristically chatty manner. So blogging, she says, is not a radical departure. "I saw this as the new media version of what I've always been doing," the former criminal defense lawyer said recently at her office at the John Joseph Moakley Courthouse. "If this is where people are getting information, this is where we have to be."
Not everyone agrees. Bruce M. Selya, a senior judge on the Court of Appeals for the First Circuit, which reviews cases from Gertner's court, said he respects her and is sure she has thought out the potential ramifications of blogging. But he would never do it. "I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me," said Selya....
Gertner says judges are too often silent on issues they should publicly address, such as how federal sentencing guidelines have led to what she and other jurists consider unreasonably long prison terms for nonviolent drug offenders. Judges must also do a better job explaining why the judicial code forbids them from discussing cases, she said, because their silence after controversial rulings is misread as arrogance or cowardice.
May 26, 2008
Can Congress help move the double-condemned to the front of the execution line?
A helpful reader pointed me to this interesting local story from the Washington Post, headlined "Two Death Sentences In '88 Fairfax Killings." Here are snippets:
A Fairfax County judge yesterday handed Alfredo R. Prieto two death sentences in the slayings of a young couple 20 years ago, saying he could not fathom "the desperation, horror and sheer terror" Prieto inflicted on them in a field near Reston. "On the night you executed them," Fairfax Circuit Court Judge Randy I. Bellows told Prieto, "you turned the final moments of their life into what could be described as a living hell."
Prieto, 42, was convicted in February of the rape and murder of Rachael A. Raver and the murder of Warren H. Fulton III, both 22, in December 1988.... Prieto is on death row in California for the 1990 rape and killing of 15-year-old Yvette Woodruff in Ontario, Calif. As a result of his incarceration there, his DNA was entered into a nationwide DNA data bank. In 2005, that data bank provided a hit out of the blue on the DNA left at the scene of Raver's and Fulton's slayings near Hunter Mill Road on Dec. 4, 1988. Prieto is suspected in two other slayings in Arlington and Prince William counties.
Former Fairfax commonwealth's attorney Robert F. Horan Jr., who retired in the fall but stayed with the Fairfax case, sought Prieto's extradition to Virginia, despite the California death sentence, because Prieto's appeals were moving slowly and in 2005 were expected to take 10 more years. Horan obtained two murder indictments against Prieto in November 2005, and California agreed to send him to Virginia in April 2006....
In addition, prosecutors in Arlington obtained a murder indictment against him, saying he was linked by DNA to a May 1988 rape-murder. The details of the slaying of Veronica "Tina" Jefferson, 24, were used in the sentencing phase of the Fairfax case to help persuade the jury to impose the death sentence. Arlington prosecutors said yesterday that they still are planning to try Prieto in September.
Prince William prosecutors said Prieto is a suspect in the September 1989 slaying of Manuel F. Sermeno, whose body was found in a burning car near Interstate 95. But with three death sentences imposed, prosecutors there are unlikely to try Prieto....
Prosecuting Prieto in Fairfax cost taxpayers about $700,000, court records show.... State law required Bellows to set an execution date, which he did for Oct. 3. But he immediately suspended that date pending post-trial motions, which will be followed by appeals to the Virginia Supreme Court and then to the federal courts. Horan said the process could be over in five years.
Two decades after Prieto's horrible murders and millions of tax dollars later, apparently it is still going to take another five years and a lot more tax-payer dollars before Prieto will be facing a serious execution date.
Many concerns and ideas might be taken away from this sad story, but I am wondering whether Congress could somehow devise a way to ensure that defendants like Prieto condemned to death by two states are subject to some form of expedited appeals process. Though I am not sure Congress could readily devise an efficient way to "consolidate and expedite" Prieto's various federal appeals, stories like this confirm my instinct (as set for in some prior posts set out below) that Congress should be mush more actively involved in helping states administer the death penalty.
Some related posts:
May 25, 2008
Japanese working on IT approach to sentencing consistency
Ahead of the introduction of the lay judge system, which will start in May 2009, the Supreme Court set up in April a database in which sentences handed down in past cases can be looked up using key words. Under the lay judge system, the opinion of members of the public will be reflected not only on the question of guilt, but also on the severity of sentences.
To avoid major sentencing discrepancies for similar cases, the Supreme Court has created a database of past criminal case rulings and developed a search system, providing lay judges with a means to refer to past cases. The Supreme Court has set up terminals linked to the database at district courts and their branches nationwide.
Under the system, a judge handing down a ruling in a case subject to the lay judge system will be able to enter information on the relevant case in more than 10 categories, such as the crime committed, the weapon used, the harm caused to the victim, whether there were accomplices, the extent to which the suspect expressed regret and the emotional aggrievement of the victim.
Currently, the details of more than 100 cases have been collected so far, and information on more than 3,000 cases is expected to have been inputted by May 2009. By entering several search terms on the terminal, it is possible to call up a list of sentences imposed in similar cases. For example, in the case of a street robbery resulting in injury, if a user enters the key words "street" and "robbery," a list of similar cases will appear on the terminal....
By looking through such a list, lay judges can easily compare the impact each kind of situation has had on sentencing. The sentences of similar cases in the past can also be presented in graphic form as a bar chart. Under the lay judge system, professional judges will print out such lists or charts and show them to lay judges, while the legal teams of both sides also will be allowed to use the search system, according to the Supreme Court.
Judging, politics, sentencing and elections
Adam Liptak has this effective piece in today's New York Times headlined "Rendering Justice, With One Eye on Re-Election." Here are some highlights that should especially interest sentencing fans:
The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.
“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.
Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts. In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals....
There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.
“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”
Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.
Since 2008 is an election year, the linked study perhaps ought to be foremost in the mind of state lawyers trying to figure out how quickly or slowly to move a case along. In addition, as suggested in this Linda Greenhouse NY Times article about the lack of 5-4 rulings by the Supreme Court so far this Term, there is reason to speculate that appointed judges also are impacted by election cycles:
The court’s modulated tone may also stem from the fact that this is an election year. Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term. “Of course, lots of things could explain this, but the pattern is pretty interesting,” Ms. Epstein said in an e-mail exchange, adding that the justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”