June 17, 2008
Interesting line of attack against the death penalty
This new Baltimore Sun article, headlined "Capital case lawyer pay called low: Defense attorneys say death penalty should not apply," reports on an interesting attack on the application of the death penalty in Maryland. Here is how the article starts:
The lawyers representing a man accused of killing a correctional officer at the Maryland House of Correction in 2006 argued yesterday that their client should not face the death penalty because they are not being adequately compensated for their work on the case.
Gary E. Proctor and co-counsel Michael E. Lawlor entered a motion yesterday to preclude the death penalty as a sentencing option in the murder trial of Lee Edward Stephens, one of two inmates accused in the killing, because the fees they are being paid by the state to mount a defense are "manifestly unreasonable."
Final version of "Engaging Capital Emotions"
The Supreme Court should soon hand down its opinion about the constitutionality of capital child rape laws. While we wait, readers are welcome to check out the finalized version of the commentary Stephanos Bibas and I put together, titled "Engaging Capital Emotions," which is already in print here as at the Northwestern University Law Review Colloquy. Helped by the Colloquy's terrific editorial team, we have refined a few points from our first drat and added this conclusion:
Emotions can evolve and be informed. Some opponents contend that capital-child-rape laws will harm child-rape victims and their families. If so, this harm will undercut the sympathy and empathy that drive these laws, leading legislators to pull back. As our discussion highlights, democratic processes engage capital emotions effectively in deciding which crimes are eligible for the death penalty. Thus, unelected judges should be wary of stifling a healthy, democratic national dialogue that can air and develop capital emotions.
Cool, somber courtrooms can seem hostile to emotional expression. But, especially in criminal justice, we must neither forget nor disdain seething passion. Especially where those passions are most intense, in capital cases, lawyers and scholars ought to combine doctrinal analysis with sensitivity to emotion.
State-wide residency restriction becomes law in South Carolina
As detailed in this AP article, South Carolina has joined the ranks of states with state-wide residency restrictions for sex offenders:
Sex offenders won't be able to live within 1,000 feet of schools, day care centers or playgrounds under legislation Gov. Mark Sanford signed into law Monday night....
Sex offenders won't be able to live within 1,000 feet of schools, day care centers or playgrounds under legislation Gov. Mark Sanford signed into law Monday night.
Some related posts on sex offender residency restrictions:
- Major Human Rights Watch report about sex offender sanctions
- Does the efficacy of sex offenders residency restrictions impact their constitutionality?
- The potential downsides of sex offender residency restrictions
- Exactly when and how will SCOTUS confront sex offender residency restrictions?
June 16, 2008
Upcoming JEC hearing on costs of US drug policy
According to this webpage at FAMM, later this week "Senator Jim Webb (D-Va.) will convene a hearing of the Joint Economic Committee (JEC) to examine the economic consequences of the United States' drug policy." Here are more details:
The hearing, entitled “U.S. Drug Policy: At What Cost?” will be held Thursday, June 19. The panel will discuss the illegal drug economy in the United States, assess the costs of U.S. policy responses to combatting drug use and address the need for policy reforms. The hearing is also likely to address, to some extent, mandatory minimums and sentencing issues.
This page at Stop the Drug War lists expected witnesses, though I cannot yet find any official notice of the scheduled hearing.
As noted in prior posts linked below, last year Senator Webb convened a JEC hearing on the costs of mass incarceration. It is principally for this reason that I have been excited by the prospect of Senator Webb being on a presidential ticket.
Primer on modern post-Booker realities for white-collar cases
Thanks to a friendly reader and West's copyright kindness, I can post a copy of a recent commentary by Ellen Brotman titled "From Jones to Rita, Gall and Kimbrough: The Supreme Court Gives Sentencing Back To the District Courts." In addition to discussing a number a post-Booker basics, the piece concludes with some interesting ideas and practice pointers directed toward white-collar practitioners. Here is a sample:
Beyond this support for below-guidelines sentences and judicial discretion, Gall and Kimbrough provide a significant tool for the white-collar practitioner at sentencing: the argument that an individual guideline does not itself reflect the factors listed in Section 3553(a) because the guideline has not been promulgated in accordance with the Sentencing Commission’s traditional role and expertise....
Use the Sentencing Commission’s own statistics and teachings to assist you in these arguments. For example, the commission’s 2004 publication “Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform” includes an interesting discussion of the evolution of the guidelines relating to economic crimes and the difficulty of calculating the effectiveness or fairness of the interplay of enhancements that often occur in white-collar cases.
Will Texas try to ensure record death-row stay gets longer?
As detailed here at SCOTUSblog, the Supreme Court's work today did not include any notable criminal justice decision. As detailed in this AP article, however, the Justices did make headlines with a notable cert denied in a capital case:
The longest-serving prisoner on Texas' death row won a U.S. Supreme Court ruling Monday that his case must go back to his trial court in Dallas. Ronald Chambers, 53, has been on death row for more than 32 years, sent there in 1976 for the abduction and fatal shooting of 22-year-old Mike McMahan, a Texas Tech University student from Washington state.
Without comment, the high court Monday declined to review a federal appeals court's decision to send back Chambers' case because questions used by jurors to decide his death sentence were improper. The Texas attorney general's office had appealed a ruling from the 5th U.S. Circuit Court of Appeals, which was based on a Supreme Court decision last year involving jury instructions given to three other condemned Texas prisoners.
"The 5th Circuit had reversed his death sentence," Jordan Steiker, one of Chambers' lawyers, said Monday. "The state appealed and the state lost. Now it goes back for resentencing. "This is very good for him." Dallas County prosecutors will have to decide whether to seek the death penalty at a new punishment trial.
I wonder how much time and Texas taxpayer money has been spent by the state trying to get Ronald Chambers executed. As the AP article details, Chambers has been tried three times for the abduction and shooting of McMahan, with each trial resulting in a death sentence:
His first conviction was overturned by the Texas Court of Criminal Appeals because a state-appointed psychiatrist who questioned him failed to warn Chambers his responses would be used against him. He was retried in 1985 and convicted again. The Supreme Court threw out that conviction four years later, ruling prosecutors improperly excluded three black people from his jury. Chambers is black. In January 2007, Chambers was set to die for the punishment reached at his third trial. The lethal injection, however, was stopped until the justices ruled on the cases of the three other inmates who were challenging the jury instructions.
Anyone want to predict whether Texas will finally give up trying to keep Chamber on death row or instead will use more time and taxpayer money to pursue his execution?
More on the Waybright decision finding federal SORNA provision unconstitutional
As first noted in this post, U.S. District Judge Donald Molloy last week found constitutional problems with provisions of the Adam Walsh Act in US v. Waybright, No. CR 08-16-M-DWM (D. Montana June 11, 2008). I just received from a friendly reader, and now have made available for download below, the full text of the opinion. Here is how it starts:
Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Section 2250(a) is part of the Sex Offender Registration and Notification Act (“SORNA” or the “Act”). The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register. Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.
Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal. He contends: (1) Congress exceeded its power under the Commerce Clause in enacting SORNA’s registration requirements and making it a federal crime to fail to register; (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA; (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state; (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively; (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment; (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and (7) Waybright’s conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA. Oral argument on Waybright’s motions took place on June 4, 2008.
No court of appeals has addressed Waybright’s arguments. It is evident that the same or similar arguments have been raised in district courts around the country. These courts have mostly rejected such challenges for varying reasons. In my view, those district courts have it right for the most part. I conclude that all of Waybright’s arguments, except one, lack merit. I agree with Waybright’s claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress’ power under the Constitution. I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.
The important project of "Deconstructing the Guidelines"
As detailed way down on this federal defender resource page, the federal defenders are starting an important new project entitled "Deconstructing the Guidelines." Here is how the project is described on the FD resource page:
Deconstructing the Guidelines is a special project undertaken by National Federal Defender Sentencing Resource Counsel. The papers in this section critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines. Judges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007). Judges "may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines," Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal quotation marks omitted), and when they do, the courts of appeals may not "grant greater factfinding leeway to [the Commission] than to [the] district judge." Rita, 127 S. Ct. at 2463. Whatever respect a guideline may deserve depends on whether the Commission acted in "the exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Rita, 127 S. Ct. at 2464-65. "Notably, not all of the Guidelines are tied to this empirical evidence." Gall v. United States, 128 S. Ct. 586, 594 n.2 (2007). When a guideline is not the product of "empirical data and national experience," it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in "a mine-run case." Kimbrough, 128 S. Ct. at 575.
The first paper of this project is available at this link, and it deals with the important and highly contentious issue of the child porn guidelines. The paper is by Troy Stabenowand is entitled "Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (June 10, 2008)."
"Kiwis take to the streets over crime"
Though the headline of this story may sound fruity, the piece reports on a growing controversy in New Zealand over parole policies. Here are the details (which explain the notable picture):
[A]bout 500 people marched to "take back" their suburb and support the family of Navtej Singh, who was shot in a holdup of his Manurewa liquor store a week ago. Yesterday, the Sensible Sentencing Trust joined families of victims outside Auckland's Mt Eden Prison and staged a demonstration for tougher parole laws. The protesters were dressed in black-and-white striped mock prison gear to underline the theme of the demonstration — "Victims get life, Criminals get parole".
Organiser Garth McVicar said the death of Mrs Yang "just reinforced why we were there". "There was a lot of emotion and people were talking about it and what is going on out there." The Sensible Sentencing Trust will also be involved in a hikoi, or march, this month organised by Hastings councillor Henare O'Keefe, whose daughter was the victim of a home invasion last week. The eight-kilometre walk on June 27 has been dubbed "Enough is Enough! We are taking our community back!"....
The march took place as police say they are considering putting armed patrols on Auckland streets to deal with the growing violence. The proposal, following a top level police review, involves a six- month trial of armed patrols 24 hours a day, seven days a week. For the trial, police will be armed with Bushmaster semi-automatic rifles and Glock 9mm pistols....
June 15, 2008
Is Jesus the answer to overcrowded prisons?
This local article, headlined "Jesus and drug court: Packed prisons lead to jail alternatives," provides a divine response to mass incarceraton Here are snippets:
One look at the members of Twin Falls' Because of Jesus Ministries makes its obvious these aren't your typical post-incarceration counselors. Nearly all of them have been involved at some point in illegal gangs. Most know the inside of our nation's drug culture. Some have killed people. The support group's style may be unorthodox. But it may also be part of a larger solution to problems stemming from Idaho's exploding prison population.
Anthony Lopez, 32, the founder of Because of Jesus, has been in and out of prison since age 8. After his 2006 release, he began his ministry to ex-convicts and prison inmates, reaching out to those who seemed least open to his message. But he knew many yearning to hear it. The group's mission, Lopez said, is to help any person find his way out of despair, crime and prison into a fruitful, Christ-centered life. In an era when Idaho's justice system can't handle more prisoners, the state needs all the help it can get.
Since 2000, the state has seen a nearly 50-percent increase in the number of inmates it houses. With little space in the state prisons, Idaho Department of Corrections routinely farms out prisoners to costly private prisons in other states. What's less apparent is just how much, if at all, prison overcrowding is affecting Idaho's legal system.
From prosecutors to judges to probation officers, no one will admit overcrowding impacts conscious decisions on prosecution, sentencing and management of convicts. But Minidoka County Prosecutor Nicole Cannon said Idaho's prison population has begun to factor into every facet of the legal system. She said prosecutors and judges may not consciously consider prison overcrowding when pushing sentences. But she suspects the state's lack of space has led to probation for some ill-qualified convicts and reduced charges for others.
In 2001, Idaho initiated its drug courts, widely hailed for reducing recidivism rates among drug-addicted convicts. Drug court is available to offenders who plead guilty to a drug or substance abuse-related charge. To qualify, prosecutors must recommend offenders into the program and judges must uphold that recommendation. If the drug court coordinator and private treatment providers agree an offender's central problem is addiction to drugs or alcohol, the offender enters a one-year treatment program governed by restrictions that gradually relax as it progresses. At the end of the year, charges that led to drug court are dismissed for offenders who have completed all the program's requirements.
"In my view, drug court is the single most successful program we have in diverting people away from drugs," said State Sen. Denton Darrington, R-Declo. Since drug court's inception, Roskelley said, 60 percent of its graduates have avoided further drug charges. Roskelley said state legislators have come to understand drug court's value in keeping drug users off a path to prison. Considering the most serious conviction for nearly one quarter of Idaho's inmates is drug-related, that's good news not just for the state's budget, but for public health and safety as well....
Anthony Lopez describes his friend Jesus Ortega as being so full of anger when the two men met that Ortega told Lopez he slept better knowing he was going to hell. Ortega was one of Lopez' first Soldiers in Christ - as Because of Jesus members are known - but the road wasn't easy. At the time, Ortega said, problems in his life stretched beyond anything any normal support group could touch. "For me it took the power of Christ," he said. "AA (Alcoholics Anonymous) wasn't going to help."...
The politics and practicalities of a post-Heller Second Amendment world
With two weeks to go in the Supreme Court term, the media and pundits are starting to gear up for what it might mean politically if (when?) the Justices hold in Heller that the Second Amendment protects an individual right to keep an bear arms. For example, this ABC News piece discusses how a leading gun control group views the state of the gun wars, with the headline "Gun Control Group Braces for Court Loss: 'We've Lost the Battle on What the 2nd Amendment Means,' Brady Campaign Head Says." Similarly, this Los Angeles Times article looks at matters from the NRA perspective, with the headline "NRA's political clout is waning: With 2nd Amendment rights expanded and Democrats reluctant to tackle the issue, gun control isn't the GOP weapon it used to be; The rifle group, in essence, is a victim of its own success."
Though I am not qualified to make bold predictions about the political landscape after the expected ruling in Heller, I expect that there will be unexpected legal (and political?) twists if (when?) federal defendants start aggressively asserting Second Amendment claims after Heller. As I have highlighted in a number of prior posts (linked below), if the Heller ruling has some significant "self-defense" dicta, the types of persons asserting Second Amendment rights in federal courts may create headaches for politicians of all stripes concerning their approaches to gun issues.
- More thoughts about the scope of Second Amendment rights
- Get ready for a Second Amendment rumble, defense attorneys
- More than six years in federal prison for (not quite) bearing arms