July 19, 2008
Will Prez Bush become merciful again as his term concludes?
This great new New York Times piece, headlined "Felons Seeking Bush Pardon Near a Record," raises the important question of whether Scooter Libby and lots of other felons will be the beneficiary of a final blast of compassionate conservativism from President George W. Bush. Here are snippets from today's must-read article:
Felons are asking President Bush for pardons and commutations at historic levels as he nears his final months in office, a time when many other presidents have granted a flurry of clemency requests. Among the petitioners is Michael Milken, the billionaire former junk bond king turned philanthropist, who is seeking a pardon for his 1990 conviction for securities fraud, the Justice Department said. Mr. Milken sought a pardon eight years ago from President Bill Clinton, and submitted a new petition in June.
In addition, prominent federal inmates are asking Mr. Bush to commute their sentences. Among them are Randy Cunningham, the former Republican congressman from California; Edwin W. Edwards, a former Democratic governor of Louisiana; John Walker Lindh, the so-called American Taliban; and Marion Jones, the former Olympic sprinter.
The requests are adding to a backlog of nearly 2,300 pending petitions, most from “ordinary people who committed garden-variety crimes,” said Margaret Colgate Love, a clemency lawyer. Ms. Love, who was the United States pardon attorney from 1990 to 1997, said the backlog was overwhelming the vetting system, meaning that many petitions might not reach Mr. Bush’s desk before he leaves office. “I have cases that date from the Clinton administration,” Ms. Love said. “I have cases that I filed in the last two or three years and have not even gotten any word about the first step of the investigation being authorized. It’s unbelievable.”...
As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?....
The Justice Department does not release a list of petitioners, but will say whether specific people have requested pardons or commutations. The New York Times submitted nearly two dozen names of prominent felons.
The department said it had not received petitions from several recently convicted political figures, including I. Lewis Libby Jr., Vice President Dick Cheney’s former chief of staff; Jack Abramoff, the former Republican lobbyist; Bob Ney, a Republican former congressman from Ohio; and George Ryan, a former Republican governor of Illinois. The department had also not received petitions from several people associated with major financial scandals in recent years, like at Enron, WorldCom and Adelphia, nor from Conrad M. Black, the conservative former newspaper publisher, nor Martha Stewart.
It also has no petition for Jose Compean and Ignacio Ramos, two former Border Patrol agents whose case has become a cause célèbre among some conservatives. They were convicted of shooting a fleeing drug smuggler along the border with Mexico and trying to cover it up. The pair are ineligible to apply for clemency through normal procedures because their cases are on appeal. But in January 2007, Mr. Bush told a Texas television interviewer that he would review the agents’ cases; presidents are free to give pardons and commutations to people who have not submitted a petition. In July 2007, for example, Mr. Bush eliminated Mr. Libby’s prison sentence even though he had not applied for a commutation.
Far more commutation petitions are being submitted than in the past, largely because of changes to federal sentencing in the 1980s: the abolition of parole and the institution of tough sentencing guidelines and mandatory minimum terms. One of the charges against the Border Patrol agents, for example, carried a mandatory 10-year sentence. Mr. Bush has received 7,146 petitions for a reduced sentence — more than five times as many as Mr. Reagan received.
But the pardon office has not grown in proportion to the workload. Ms. Love argued that the backlog and delays were “a major flaw in the justice system” because clemency is becoming more important. Sentences are longer, and the stigma of being a felon has increased because of added background checks for many things, including gaining employment and doing volunteer work, she said. “If we really want to give people a second chance,” Ms. Love said, “then we have to include a pardon which is reasonably available to them. It’s not, now.”
Another high-profile request for leniency based on offender characteristics
It has long been the practice at sentencing that prosecutors stress the awfulness of the offense and defense attorneys stress the not-so-awfulness of the offender. But after Booker, this dichotomy in sentencing perspective is so evident in so many high-profile cases involving prominent defendants without a criminal past. And as detailed in this Newark Star-Ledger article, this dichotomy is front and center again in the run up to the sentencing of former Mayor Sharpe James:
Citing his age, family and contributions to the city, attorneys for former Newark Mayor Sharpe James are asking a federal judge for leniency if and when he sentences James on corruption charges later this month.
According to prosecutors, federal sentencing guidelines suggest James deserves 10 to 15 years in prison for defrauding the city by arranging lucrative sales of city land to his former mistress. Defense attorneys Alan Zegas and Thomas Ashley dispute that calculation.
In court motions filed late Thursday, the defense lawyers did not ask for a specific sentence, but argued that the government's recommendation would amount to "a lifelong sentence" for James, 72, and leave his wife, Mary, unable to sustain their home. They asked that James be granted bail while he appeals the conviction and, if he must be incarcerated, be sent to a prison camp at Fort Dix.
The attorneys also submitted 100 letters from citizens, businessmen and community leaders, hoping to persuade U.S. District Judge William Martini in Newark to reject the government's recommendation....
July 18, 2008
Party night tip: Be sentencing safe when you surf and post
This new CBS/AP story, headlined "Drinking, Driving And Facebook Don't Mix: Web Networking Photos Come Back To Bite Defendants," provides another twist on our modern brave new world of sentencing technologies. Here are snippets from a story that provides a pre-party-night cautionary tale:
Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled "Jail Bird." In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook.
And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton's drunken-driving case. Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison....
Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment....
Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person's real name. But in cases where they've had reason to suspect incriminating pictures online, or have been tipped off to a particular person's MySpace or Facebook page, the sites have yielded critical character evidence.
Two circuits do ho-hum affirmances of acquitted gun sentencing enhancements
Thanks to two readers, I saw on my way out the door this afternoon that both the Fifth Circuit in US v. Casper, No. 06-11381 (5th Cir. July 18, 2008) (available here), and the Tenth Circuit in US v. Salis, No. 06-7111 (10th Cir. July 18, 2008) (available here), today affirmed sentences based on acquitted conduct enhancments. In both cases, these defendants were acquitted by a jury of a separate 924(c) count of possessing a firearm in relation to a drug trafficking crime, but then received a guideline enhancment based on a judge's finding that they possessed a firearm in relation to a drug trafficking crime.
Regular reader know that circuit affirmances of acquitted conduct enhancements are neither new nor surprising. Nevertheless, I continue to find it sad and telling that so many appellate courts seems to have no qualms at all about affirming sentencing in these situations. I wish the Supreme Court would get around to taking up one of these cases so that we could have a more robust public debate over whether acquitted conduct enhancements are really in keep with the spirit and the publi understanding of our constitutional commitment to jury trial rights.
En banc Third Circuit constitutionally distinguishes animal porn from child porn
In a ruling that surely will not please aminal rights activists (but provides great material for teachers of animal law), the en banc Third Circuit today found unconstitutional a federal law criminalizing the sale of creation, sale, or possession of depictions of animal cruelty in US v. Stevens, No. 05-2497 (3d Cir. July 18, 2008) (available here). Here is how the long opinion starts:
The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. § 48 and to affirm Robert Stevens’ conviction. For the reasons that follow, we decline the Government’s invitation. Moreover, because we agree with Stevens that 18 U.S.C. § 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.
Howard Bashman effectively covers the ruling in this new post, where he astutely suggests that the Stevens case is likely to get Supreme Court attention. The US Solicitor General likely will seek cert, and that fact alone drive up the odds of a grant significantly. (Plus, we may see some animal rights groups urging the Court to take up and reverse this ruling.)
UPDATE: Eugene Volokh has some thoughtful analysis of Stevens in this long post.
Predicting Heller's future
Effective and scholarly Heller analysis is coming fast and furious from various sources. Joyfully, lots of the best reads are also relatively brief like the effect piece by Glenn Reynolds and Brannon Denning on here at the Northwestern Law Review's Colloquy, and the series of commentaries over here at Cato Unbound. Of all the comments, this insight from Dennis Henigan at the Brady Center highlights some of the post-Heller criminal justice realities we are already seeing play out:
Although we will no doubt see an avalanche of Second Amendment claims (most by criminal defense lawyers on behalf of their clients seeking to avoid indictments and convictions for violations of gun laws), generally the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban. Regardless of whether the Heller majority’s newly discovered right eventually is incorporated as a restraint on the states, its significance may well prove more symbol than substance.
Some related post-Heller posts:
- Might the ACLU be a strong supporter of all persons' gun rights?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
- Firearm sentence enhancements, the nexus notion, and chilling effects
Breaking news: SCOTUS has powerful people constraining (the tyranny of?) the majority
I find intriguing (and a bit amusing) this review of the Supreme Court term by Edward Lazarus has this essay online at FindLaw. The piece is titled "What the Past Term Reveals About the Roberts Court: Evidence that the Court Is Disturbingly Elitist and Anti-Democratic," and here is the heart of the piece (with headings omitted):
[T]his is a Court with elitist, anti-democratic instincts, one more comfortable with the judgments of courts and bureaucratic experts than with those of the American people or their elected representatives.
A walk through the Court’s rulings in a variety of areas of law shows the pattern:
Who decides whether an alien detained at Guantanamo can be classified as an “enemy combatant” — the Executive Branch under a specific grant of authority from Congress (with minimal judicial oversight), or the federal courts through the traditional avenue of habeas corpus? According to this Court, the answer is the federal courts.
Who decides whether the death penalty for child rapists is so disproportionate as to be unconstitutional as an instance of cruel and unusual punishment — state legislatures, including the six who have imposed such a penalty, or the Supreme Court, making its own independent moral judgment? According to this Court, this Court decides.
If the Food and Drug Administration has approved a medical device, can the device-maker be held liable under state tort laws protecting consumer safety? According to this Court, the federal agency’s decision nullifies the state tort laws.
How much discretion do juries have to exact punishment for monumental damages caused by monumental companies in a maritime context? According to this Court, the jury’s authority to punish cannot exceed the amount of compensatory damages, even if that amount will not cause much economic pain to the company involved.
In electing state court judges, can the respective political parties choose their competing candidates through a system that gives overwhelming control to the party bosses, or must the processes be more open and democratic? According to this Court, in New York State Board of Elections v. Lopez-Torres, the parties and their bosses can control the process.
Can a state condition the right to vote on the ability of a voter to present a government-issued photo identification? In Crawford v. Marion County Election Board, the Court okayed this restriction on the right to vote, despite claims of discrimination against the poor and elderly.
Without wanting to overstate the point, there is a zeitgeist to these decisions. They reflect a Court instinctively averse to having policy made through the unpredictable populist vehicles of litigation and juries, unconcerned about enhancing small-d democracy, and loath to permit exercises of governmental power without the check of judicial review.
Though I like Lazarus's effort to develop a theme for this past Term, I find quite peculiar the notion the Court's decision to uphold a state law requiring voter ID in Crawford against challenges lodged by bureaucratic experts claiming discrimination. And, also peculiar is Lazarus's failure to discuss the biggest case of the Term, Heller, which would seem to fit his thesis in general, though perhaps he recognizes that the label "elitist" does not quite fit with a decision to protect gun rights. And, of course, other major constitutioanl rulings this Term like Baze and Medellin and Williams do not fit Lazarus's script in any way.
Beyond the particulars of the last Term, however, I find amusing and perhaps telling this effort to attack the Roberts Court for doing exactly what most sophisticated students of the Constitution think a Supreme COurt is supposed to do when considering constitutional claims. Based on their (elitist?) education and view on enduring constitutional principles, the Justices are supposed judicially review exercises of governmental power. At its core, Lazarus's concerns seem to be with the decision in Marbury v. Madison and the basic power of judicial review much more so than how the Roberts Court is exercising this power.
Minnesota community trying juve sentencing circles
This local story, headlined "Juvenile sentencing circles take aim at youth crime rates," describes at length a sentencing innovation being tried in Minnesota:
With the hope of solving high juvenile crime rates in Nobles County, Juvenile Restorative Justice Agent Erin Top believes she has found the answer — juvenile sentencing circles. The goal of juvenile sentencing circles, Top explained Tuesday, is to promote healing for all affected parties within the crime and include volunteer members from the community who stand as a mentor to the juvenile offender.
Sentencing circles will bring the juvenile, the parents, the victim, the support members and the community members all together at the same time to discuss the consequences of each individual involved in the crime, she said. Members of the circle will determine what the sentence and expectations will be for the juvenile offender. Cases will be handled outside the formal court setting, giving the offender an opportunity to correct the felony in a productive and natural manner....
By being a part of the sentencing circle process, juveniles will become more open to discussing their problems, feel more involved and contribute to the community. “The sentencing circles show improvement for the juvenile offender and have been a huge success in other communities,” Top said. “We in Nobles County hope to show the same success.”
As noted in this recent post, a new study from Austrailia indicates that sentencing circles have not there proven to be more effective at reducing recidivism than traditional sentencing processes. Perhaps localities in the US, however, will have more success in a program targeted at youthful offenders.
Senator Biden proposes "Justice Integrity Act" to study federal criminal justice disparities
Perhaps because the bill he introduced last week has gotten no press coverage, I only recently learned about Senator Joe Biden's encouraging efforts to examine racial and ethnic disparities in the federal criminal justice system. The basics of the bill are explained in this press release from Biden's office, which starts this way:
U.S. Senator Joseph R. Biden, Jr. (D-DE), Chairman of the Senate Judiciary Subcommittee on Crime and Drugs, along with Senators Arlen Specter (R-PA), Benjamin L. Cardin (D-MD) and John F. Kerry (D-MA), today introduced the Justice Integrity Act, legislation designed to increase public confidence in the justice system and address any unwarranted racial and ethnic disparities in the criminal process. The Justice Integrity Act will establish advisory groups in ten federal districts, under the supervision of the United States Attorney General, to study and determine the extent of racial and ethnic disparity in the various stages of the criminal justice system; make public reports on the results of their findings; and make specific recommendations to help to eliminate racial and ethnic discrimination and unjustified racial and ethnic disparities.
Thanks to a link from the Sentencing Project, the full text of the Biden bill is available here. Also, a Google search led me to this short letter from the ABA, which expressed strong support for the bill. The ABA letter starts this way:
[The American Bar Association and its members] express our strong support for the Justice Integrity Act, legislation to examine the cause and extent of racial and ethnic disparities in the criminal justice system and to facilitate the development of proposals for reducing or eliminating racial and ethnic bias where it is found. We applaud your leadership in introducing the Justice Integrity Act. It provides a thoughtful approach to addressing this issue of great importance to our justice system through supporting the gathering of facts and generation of proposals for reform at the federal district level.
Catching up with beneficiaries of crack retroactivity
The Boston Globe has this notable new piece headlined "Inequity's end means new start for 31: Crack offenders from Mass. see US sentences trimmed." Here are snippets:
In December, the Sentencing Commission reduced the sentencing range for certain crack offenses by two levels. For example, it lowered the maximum recommended sentence for selling 5 grams of cocaine from 78 months to 63 months.
Judges in Massachusetts have responded swiftly. By July 8, judges had trimmed the sentences of 79 of 109 inmates, including those who were freed, according to Chief US District Judge Mark L. Wolf. Some freed prisoners have been detained elsewhere for other legal proceedings, including deportation if they are not US citizens.
The commission had estimated that 25 prisoners from Massachusetts would be eligible for release by November and that a total of 91 prisoners could be freed through 2012. Nationwide, the commission has estimated that about 20,500 will eventually be freed early.
US Attorney General Michael B. Mukasey had opposed making the new guidelines retroactive, saying it could send violent criminals back to the streets en masse. But Wolf said the revised guidelines have safeguards. Judges consult prosecutors, defense lawyers, probation officers, and others about the conduct of imprisoned inmates and strive not to release anyone who might pose a danger, he said. Those sentenced as career offenders are ineligible. Prosecutors have agreed to most of the 79 shortened sentences, Wolf added.
US Attorney Michael J. Sullivan said that if defendants meet eligibility requirements and are not a danger to the community, prosecutors should not object. Lieutenant Jeffrey P. Silva — a spokesman for the New Bedford police, who have made numerous crack cocaine arrests — said he does not worry that crime will rise as a result of the releases. But he minimized the significance of the sentence disparities, saying, "I don't feel there's anybody who got arrested for crack cocaine who was a pillar of the community."
A report released by the commission last month, based on partial data, indicated that defendants whose sentences were shortened in Massachusetts had originally been sentenced to an average of nine years in prison and that their sentences were cut to about 7 1/2 years.
Some recent related posts:
July 18, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
July 17, 2008
Lots of Heller and a notable Ninth Circuit ruling
There's lots of interesting Heller discussion going on over at The Volokh Conspiracy, and one post from Eugene Volokh really caught me eye and has me concerned again that courts (and also Eugene) are not prepared to take the implication of the Heller decision seriously, especially in the context of the operation of the criminal justice system. This post, titled "Ninth Circuit's Sensible Response to a D.C. v. Heller Claim," reports on an unpublished ruling Ninth Circuit US v. Gilbert, No. 07-30153 (9th Cir. July 15, 2008) (available here), and after a long quote Eugene says "it seems to me the Ninth Circuit read and applied Heller quite correctly."
Gilbert is a very interesting read because it confirms my belief that Heller creates lots of potentially unexpected prosecutorial headaches. In Gilbert, the defendant sought to mount what might be called a Second Amendment defense to federal firearm charges (during a trial that clearly took place long before Heller was decided). Here is part of the Ninth Circuit's explanation of what happened at trial:
Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel’s objections and instructed the jury to disregard Gilbert’s answers.
The court also denied Gilbert’s request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government’s request, the following instruction:
A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.
In light of established Ninth Circuit law at the time of Gilbert's trial, everything that the trial judge did seems proper. But after Heller, in my view, much of what transpired seems legally problematic. We now know, thanks to Justice Scalia et al., that Gilbert was right when he asserted (and sought to tell the jury) that the Second Amendment provides an individual the right to bear arms. And, notwithstanding some dicta in Heller, we no longer can be sure that unregistered rifles or machineguns are not within the scope of protected Second Amendment rights.
Nevertheless, even though Heller would seem to change how Gilbert's defense could and should have been allowed to be presented at trial, the Ninth Circuit affirms Gilbert's convictions with this (unpublished) reasoning:
We conclude that the challenged instruction did not make the instructions as a whole misleading or inadequate to guide the jury’s deliberation. Garcia-Rivera, 353 F.3d at 792. The district court’s instructions were particularly appropriate to rebut inferences created by Gilbert’s counsel’s statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert’s stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law. The Supreme Court’s recent decision in District of Columbia v. Heller, 554 U.S. ___ (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., Slip. Op. at 27.
I find this last sentence from the panel decision especially troubling, because I believe after Heller is it an open and debatable question whether individuals now may sometimes have a Second Amendment right to possess machineguns or short-barreled rifles in their home for self-protection and/or to possess some firearms despite being a convicted felon when needed for self defense. I am not surprised that a Ninth Circuit panel is eager to curtail Second Amendment rights this way, but I am surprised that Eugene is so quick to bless the Ninth Circuit's hasty work here. I am pleased, though, to see that some commentors are questioning the embrace of this (under the radar and first?) circuit discussion of Heller.
Some related post-Heller posts:
- Might the ACLU be a strong supporter of all persons' gun rights?
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
- Firearm sentence enhancements, the nexus notion, and chilling effects
Another notable discussion of Booker ex post issues
When it rains, it pours -- at least as to ex post Booker decisions from the circuit courts. Hot on the heels of this week's DC Circuit discussion of this issue comes US v. Duane, No. 06-6536 (6th Cir. July 17, 2008) (available here). Duane covers a lot of ex post and reasonableness ground, and here is how the opinion starts:
John Joseph Duane appeals his sentence for receiving and possessing child pornography in violation of 18 U.S.C. § 2252(a)(2) and (a)(4). Duane contends that: (1) calculating his sentence using the 2005 Sentencing Guidelines violated the Ex Post Facto Clause; (2) the district court erred in enhancing Duane’s sentence pursuant to U.S.S.G. § 2G2.2(b)(4) for receiving and possessing sadistic images; and (3) his sentence is unreasonable. For the following reasons, we affirm.
Texas shrugs in response to World Court call for execution stays
Acting on a claim by Mexico’s government that the U.S. government has not done enough to assure the treaty rights of Mexican nationals facing execution for murders in the U.S., the World Court on Wednesday ordered the U.S. — by a 7-5 vote — to stop five imminent executions in Texas.
Leaving it up to the U.S. to choose the way to carry out the order, the international tribunal — formally, the International Court of Justice that sits in The Hague, Netherlands — told the U.S. only to “take all measures necessary to ensure” that Texas does not execute five individuals on its death row.
As reported this morning in this Houston Chronicle story, headlined "Texas still plans to execute killer despite U.N. order," state official seem not too troubled by the Wourt Court's order. Here are the details:
Texas will go ahead with the scheduled Aug. 5 execution of Houston rapist-killer Jose Medellin despite Wednesday's United Nations world court order for a stay, a spokesman for Gov. Rick Perry said....
"The world court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court," Perry spokesman Robert Black said. "It is easy to get caught up in discussions of international law and justice and treaties. It's very important to remember that these individuals are on death row for killing our citizens."
July 16, 2008
DC Circuit notes, then avoids, circuit split over ex post facto Booker issue
The DC Circuit yesterday in US v. Andrews, No. 07-3024 (DC Cir. July 15, 2008) (available here), had this notable discussion, and dodge, of ex post facto issues after Booker:
[I]n its 2005 opinion in United States v. Booker, the Supreme Court held that the Sentencing Guidelines must now be regarded as advisory rather than mandatory. 543 U.S. at 245. This circuit has not yet determined whether, after Booker, application of a later (than the date-of-offense) Guidelines Manual that yields a higher sentence continues to raise an ex post facto problem. Nor has the Supreme Court. The Seventh Circuit has concluded that use of a later Manual no longer presents such a problem, holding that “the ex post facto clause should apply only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). Some other courts have indicated their agreement. See United States v. Mathis, 239 F. App’x 513, 517 n.2 (11th Cir. 2007); United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006); see also United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th Cir. 2007) (Jones, C.J., concurring). The Eighth Circuit, however, disagrees. See United States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007). And several other circuits also appear to regard the ex post facto analysis as unchanged, continuing to apply Guidelines § 1B1.11(b)(1) in the same way they did before Booker. See United States v. Gilman, 478 F.3d 440, 449 (1st Cir. 2007); United States v. Wood, 486 F.3d 781, 791 (3d Cir. 2007); United States v. Austin, 479 F.3d 363, 367 (5th Cir. 2007); United States v. Stevens, 462 F.3d 1169, 1170 (9th Cir. 2006).
We do not need to decide which side of that circuit split we would join in order to resolve this case. “Even assuming the district court erred, . . . absent an opinion by this circuit or the Supreme Court on the issue in dispute, there is no plain error unless [the] district court failed to follow [an] ‘absolutely clear’ legal norm . . . .” United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000) (quoting United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)). And there is no such absolutely clear norm here.
I continue to be surprised that this issue has been under-litigated in all the circuits, though part of the reason surely involves the fact that defendants and prosecutors general agree that ex post facto principles still apply after Booker. At some point, this issue has to make it to SCOTUS, the the DC CIrcuit dodge in Andrews highlights one of many reasons why this issue has been under-developed even 3+ years after Booker.
Can too many child rapes be a constitutional argument against making this crime death-eligible?
I am intrigued but troubled by the arguments developed by John J. Donohue III and Daniel Schuker over at Balkanization, in this post titled "Dodging the Death Penalty Bullet for Child Rape." The post asserts that Supreme Court's decision in the Kennedy child capital rape case "managed to reach the correct result of saving the state and the country from a major, and almost certainly harmful, expansion in the use of capital punishment."
After discussing the military law error that might be the hook for the state of Louisiana to seek rehearing in Kennedy, this post runs some numbers and makes these interesting assertions:
Coupling [a Department of Justice victim-age] estimate to findings in the 2005 National Crime Victimization Survey implies that roughly 36,500 children under 12 were victims of rape. By comparison, 16,740 murders took place that year.
If we include both reported and unreported incidents, the annual number of child rapes may thus exceed Justice Kennedy’s estimate by at least a factor of six. The Court’s decision, consequently, forestalls the costly and ultimately ineffectual legal haggling that would take place over an immense new body of death-eligible cases.
Even if we executed as many child rapists as we did murderers — there were 98 executions in 1999, the most in any year in more than half a century — narrowing down some 36,000 incidents of child rape to the 100 most egregious would prove a taxing and largely ineffective gesture....
Conceivably, the concerns about discrimination, arbitrariness, and the waste of scarce judicial resources could be overcome if the death penalty lessened the incidence of child rape, but there is no reason to believe that capital punishment will be any more successful in reducing child rapes than it is in deterring murder....
Untold resources are spent deciding which vile crimes merit the death penalty, when equally serious crimes avoid this sanction. A wiser choice could be to invest those resources in providing aid to victims and working to prevent repetitions of these awful crimes.
Having avoided the legal mayhem of adding a new realm of death penalty prosecutions, the country can now focus its efforts on solving, instead of creating, vexing social problems. The Court’s ruling should encourage legislators to take serious steps to address the abuse of children in all its many tragic and damaging forms, rather than to grandstand with death penalty laws whose implementation will certainly be highly unusual if not cruel.
Though there are a lot of logical steps in this argument that might be subject to debate, I have a hard time at the outset understanding if the authors are really claiming that the Kennedy decision reached a "the correct result" as a constitutional matter or just a proper policy outcome. The final sentence of this long post almost concedes that it may not be cruel to execute certain child rapists. If the authors come to that conclusion, how exactly they defendant the constitutional conclusion that the policy choice by the Louisiana legislature is precluded by an amendment that only prohibits cruel and unusual punishments? (Notable, some state constitutions prohibit cruel or unusual punishments, but the Eighth Amendment uses the conjunctive.)
As a voter and a taxpayer, I share the authors' instinct as a policy matter that it is a poor use of limited state resources to apply the death penalty to child rape rather than to use these funds for other crime-prevention purposes. But, of course, the same argument can (and likely should) be made against almost all long prison sentences and many other aspects of the modern criminal justice system. I do not think most folks (even most anti-punishment scholars) seriously contend that the US Supreme Court ought to actively use the Eighth Amendment to regulate the efficacy of how states allocate their crime-fighting dollars. And yet, apparently when it comes to the death penalty, the authors of this post (and perhaps the Justices in the Kennedy majority) believe this is an appropriate way to apply the Constitution.
I have a lot more criticisms of this post --- e.g., the failure to recognize that all states but Louisiana had limited capital child rape to the smaller population of repeat rapists, the failure to acknowledge that deterrence realities for child rape may be VERY different than for murder, the failure to appreciate that the development of degrees of rape through the death penalty might produce collateral legal benefits (as it has in the context of the history of the death penalty) --- but it is the post's fundamental failure to distinguish (or desire to conflate?) policy arguments and constitutional claims that gets my legal-process goat more than anything else.
The title of this post is the title of this paper on SSRN from Paul Robertson. Here is the abstract:
It has long been assumed that the goals of doing justice and fighting crime necessarily conflict. Retributivists and utilitarian crime-control advocates commonly see their dispute as irreconcilable, and in a sense it is. It is argued here, however, that in another sense these two fundamental aims of criminal justice may not conflict. Doing justice may be the most effective means of fighting crime.
The extent of the criminal law's effectiveness in avoiding resistance and subversion of an unjust system, in bringing the power of stigmatization to bear, in facilitating, communicating, and maintaining societal consensus on what is and is not condemnable, and in gaining compliance in borderline cases through deference to its moral authority is to a great extent dependent on the degree to which the criminal law has earned moral credibility with the citizens governed by it. Thus, the criminal law's moral credibility is essential to effective crime control, and is enhanced if the distribution of criminal liability is perceived as "doing justice," that is, if it assigns liability and punishment in ways that the community perceives as consistent with their shared intuitions of justice. Conversely, the system's moral credibility, and therefore its crime control effectiveness, is undermined by a distribution of liability that deviates from community perceptions of just desert.
The hitch is that it is not moral philosophy's deontological notion of justice that has crime-control power but rather the community's notion of justice, what has been called "empirical desert." This turns out to be both good and bad for constructing a distributive principle for criminal liability and punishment. On the one hand, unlike moral philosophy's deontological desert, empirical desert can be readily operationalized - its rules and principles can be authoritatively determined through social science research into peoples' shared intuitions of justice. On the other hand, people's shared intuitions about justice are not justice, in a transcendent sense. People's shared intuitions can be wrong. In the end, however, the retributivist may find that an instrumentalist distributive principle of empirical desert will produce far more deontological desert than any other workable principle that could or would be adopted.
New Jersey court rejects municipal sex offender residency restriction
As detailed in this Newark Star Ledger article, a state intermediate appeals court ruled yesterday that local towns cannot enact their own sex offender restrictions within New Jersey. Here are details:
In a unanimous decision, the three-judge panel said Megan's Law is the exclusive law governing the treatment of sex offenders. Municipal ordinances restricting where they can live "interfere with and frustrate" statewide efforts to monitor offenders and reintegrate them into society, the judges said.
"The far-reaching scope of Megan's Law and its multilayered enforcement and monitoring mechanisms constitute a comprehensive system chosen by the Legislature to protect society from the risk of reoffense" by convicted sex offenders "and to provide for their rehabilitation and reintegration in the community," wrote Appellate Division Judge Joseph Lisa.
The ruling invalidated ordinances in Galloway and Cherry Hill that said sex offenders couldn't live within 2,500 feet of various places where "children might congregate." It is expected to nullify similar measures in roughly 100 other towns, including Sparta, Harmony and Cranford.
A lawyer for the American Center for Law and Justice, which represented Galloway, said it will appeal to the state Supreme Court, arguing there is no conflict with Megan's Law. Towns have the right to control where sex offenders live, said Vincent McCarthy, whose center is based in Washington. A spokesman for Cherry Hill Mayor Bernie Platt, Dan Keashen, said the township passed its ordinance "to provide extra protections to our families and children and to provide tighter restrictions to an existing state law."
Officials in towns with similar laws said they were disappointed. "I believe the state continues to have a greater interest in protecting the rights of the pedophiles than the victim," said Cranford Committeeman Michael Plick, who sponsored his township's ordinance two years ago.
The New Jersey League of Municipalities sent a letter to its members Tuesday advising that any such law on the books is now unenforceable. League officials said they will lobby legislators to adopt a statewide residency restriction such as the ones upheld by courts in Iowa and Illinois.
Austrailian study on restorative sentencing alternative
This brief story from Austrailia suggests that a restorative justice process, known as sentencing circles, have not proven to be more effective at reducing recidivism than traditional sentencing processes:
A new report has found circle sentencing does not reduce the risk of reoffending by Aboriginal offenders. Circle sentencing is an alternative method of sentencing that involves the offender's community in the process.
The director of the Bureau of Crime Research and Statistics, Don Weatherburn, says the program needs to be strengthened if it is going to be effective. "I think there was enormous hope that if Aboriginal offenders were brought before members of their own community, they would sit up and take more notice than if they were brought before a white magistrate or a white judge," he said. "As it has turned out, there hasn't been any effect of circle sentencing on the risk of reoffending. It makes no difference whether an Aboriginal offender comes before a circle sentence or before a court."
Of course, as many proponents of restorative justice might stress, the value of community involvement in the sentencing process may have benefits that cannot be measure just through recidivism rates.
July 15, 2008
AOL spammer gets 30-month federal prison term
Though the sentencing of the so-called "Spam King" is still on-going (background here, update here), there is other spam sentencing news coming from the courts today. As detailed in this piece, a "Brooklyn man was sentenced to more than two years in prison Tuesday after pleading guilty last year to sending unsolicited 'spam' emails to about 1.2 million subscribers of Time Warner Inc. America Online." Here are more particulars:
At a hearing Tuesday, U.S. District Judge Denny Chin in Manhattan sentenced Adam Vitale to 30 months in prison, to be followed by three years supervised release. He also was ordered to pay restitution of more than $183,000 to AOL. "The spamming is serious criminal conduct," the judge said. "This is not a teenager engaging in child's play."
Vitale, 27 years old, pleaded guilty last year to conspiracy and two counts of violating anti-spam laws. He has been in federal custody since he was arrested on separate narcotics charges in New Jersey in August while free on bail. "Given the opportunity, I will never do anything like this again," Vitale said prior to sentencing. "I really am sorry."
Vitale had faced 24 months to 30 months in prison on the charges under a stipulated sentencing guidelines range as part of his plea agreement. However, prosecutors argued in court papers that Vitale should be sentenced to at least 30 months in prison, if not to a longer sentence, because of continued criminal conduct following his guilty plea in June 2006.
A blog report on USSC alternatives symposium
I am please to see and report on this post from Kent Scheidegger at C&C reporting on the (now concluded) United States Sentencing Commission's symposium on alternatives to incarceration. According to Kent, the USSC will be making sure lots of that materials from the symposium (and transcripts) will be available to the public. I hope so, since I have not see a single word in the MSM about these event, and so only true criminal justice geeks who always check out ussc.gov may ever know that this importance conference even happened.
Notable new commentaries on law and justice
I may be off-line most of the day, but readers can reflect on these two new intriguing commentaries from law.com while I am away:
Should those on death row have personalized Web pages?
This Los Angeles Times article, headlined "Reaching out from death row," covers the interesing issue of the correspondence and web presence of prisoners on Califorinia's death row. Here are snippets:
Prisoners are barred from direct computer access that officials say could allow them to threaten witnesses or orchestrate crimes. Thanks to supporters and commercial services, however, many of the state's 673 condemned inmates now have pen-pal postings and personalized Web pages with their writings, artwork and photos of themselves -- often accompanied by declarations of innocence and pleas for friendship and funds.
Although some inmates utilize sites in the U.S., the nonprofit Canadian Coalition Against the Death Penalty has created Web pages or pen-pal ads for more than 100 California death row inmates. The site, unlike some others, is free. Prisoners' mail privileges "make it virtually impossible to stop stuff from going out . . ." said Lt. Eric Messick, litigation coordinator at San Quentin. "That is how things get posted."
Since the mid-1990s, when a condemned inmate's column called "Deadman Talkin' " appeared online, use of the Internet by prisoners has proliferated in California and elsewhere. While civil libertarians applaud the development as the exercise of free speech by isolated people, victims' rights activists decry it as an unnecessary affront to the loved ones of those whose suffering led society to lock up these prisoners.
July 14, 2008
More on status quo bias in federal sentencing realities
The Denver University Law Review last year allowed me to contribute quick thoughts about the Supreme Court's work in Rita v. United States its special speedy issue on Rita. My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change" and available at this link, emphasized the status quo biases we often see in efforts to reform sentencing structures and procedures. Now I see a new piece here on SSRN developing some similar themes in the wake of Gall and Kimbrough.
This new piece is titled "The More Things Change: A Psychological Case Against Allowing the Federal Sentencing Guidelines to Stay the Same in Light of Gall, Kimbrough, and New Understandings of Reasonableness Review." Here is the abstract:
This Article uses an analysis of the psychology of decision-making to argue that it is time to rethink the proper role of the Sentencing Guidelines. Psychology teaches that guidelines have an anchoring influence on an individual's decision-making capabilities. While this anchoring effect may be harmless when the Guidelines ranges truly reflect sentencing purposes, the same is not true when the Guidelines themselves are the product of bad sentencing policy. In Kimbrough, by allowing district courts to impose a sentence that results from the court's disagreement with the crack/powder cocaine disparity found in the Guidelines, the Court has acknowledged that the Guidelines ranges do not always reflect a sound adherence to the purposes of sentencing. In both Gall and Kimbrough, however, the Supreme Court continues to require district courts to calculate the proper Guidelines range and to consider that range before deciding on a reasonable sentence for a defendant. Circuit courts, then, must review a sentence for both procedural and substantive reasonableness. In light of the psychological anchoring aspects of the Guidelines, the procedural and substantive components of reasonableness review that are set forth in Gall and Kimbrough are at odds when placed within a system that requires potentially faulty Guidelines ranges to be calculated in order for a sentence to be deemed reasonable. This Article explores that tension and ultimately suggests that the Supreme Court do away with the requirement to calculate the Guidelines, and that Congress or the Supreme Court proscribe a new, truly advisory role for the Federal Sentencing Guidelines to play.
Split Ninth Circuit panel affirms below-guideline probation sentence as reasonable
Federal defense practitioners on the West Coast will be pleased to see the Ninth Circuit's latest reasonableness ruling today in US v. Whitehead, No. 05-50458 (9th Cir. July 14, 2008) (available here). Here is how the short per curiam opinion starts:
Thomas Michael Whitehead sold over $1 million worth of counterfeit “access cards” that allowed his customers to access DirecTV’s digital satellite feed without paying for it. The jury convicted him of breaking various federal laws, including the Digital Millennium Copyright Act, which forbids the sale of devices that are designed to “circumvent[ ] a technological measure” that protects copyrighted works. 17 U.S.C. § 1201(a)(2)(A). The district court calculated a Guidelines range of 41 to 51 months, but imposed a more lenient sentence of probation, community service and restitution.
The government appeals, arguing that this below- Guidelines sentence was unreasonable, and Whitehead crossappeals, claiming that the indictment and jury instructions omitted an element of the crime. Neither party disputes the district court’s Guidelines calculation. We deferred submission pending our en banc decision in United States v. Carty, 520 F.3d 984 (9th Cir. 2008), and now affirm.
Judge Bybee dissents in a lengthy opinion that starts this way:
Thomas Whitehead will do no jail time for pirating a million dollars worth of “access cards” and selling them on the internet to persons who used them to steal satellite television service from DirectTV. The advisory Guidelines, after taking into account Whitehead’s personal circumstances, called for a sentence of 41-51 months. Whitehead walked with probation, restitution, and community service.
This was not an exercise of discretion so much as an abdication of responsibility. Our substantive review of sentences may be limited after Gall, but being deferential does not mean turning a blind eye to an injustice. I respectfully dissent.
A deadly legislative deal in the works in NC
This local article from North Carolina, headlined "N.C. bias bill adds to death penalty debate: The push to enable a race-based defense may also bring a move to resume executions," spotlights the strange deals that can be made in death penalty debates. Here are the basics:
Anti-death penalty forces are pushing the legislature in its final days to pass a law that would allow murder defendants facing death to challenge prosecutors' decisions as racially biased. But to get that, death penalty foes may have to accept a move to start executions, which have been stalled for more than a year.
The House has already passed a bill that would allow murder defendants to use statistical evidence that race was a significant factor in prosecutors seeking the death penalty or in juries imposing it. The state NAACP president is prodding senators to approve the measure.
If Senate Democrats move forward with it, Republicans see a chance to get something they've been fighting for — a provision that may allow the state to resume executions. Executions have been stalled for more than a year, partly because the Department of Correction cannot find doctors who will take part in them, as the law requires.
Not surprisingly, partisans on various sides of these issues are not pleased with the possible deal in the works:
The Rev. William Barber, state NAACP president, doesn't want the two issues combined. “It should stand alone,” he said of the racial bias bill. “This is about death, and this is about people dying simply because of their race.”
The N.C. Conference of District Attorneys doesn't want statistics to play a role in death penalty cases. “The DAs really think it's an inappropriate element to put into the death penalty process,” said Peg Dorer, conference director. The measure would open the way for “statisticians to come in and testify and manipulate statistics,” Dorer said.
Another acquitted conduct sentencing affirmed
The Eighth Circuit today in US v. Canania, No. 07-1078 (8th Cir. July 14, 2008) (available here), affirms another long federal sentence than includes acquitted conduct enhancements. That fact alone does not make Canania especially notable, but the concurrence added by Judge Bright makes the ruling blogworthy. Here is how that concurrence begins:
Bound by Supreme Court and Circuit precedent, I reluctantly concur with my colleagues in affirming Canania’s and Robinson’s convictions and sentences. I write separately to express my strongly held view that the consideration of “acquitted conduct” to enhance a defendant’s sentence is unconstitutional.
Some related posts on acquitted conduct sentencing enhancements:
Seeking help covering USSC alternatives to incarceration symposium
Because of other work commitments, I am unable to attend the United States Sentencing Commission's two-day symposium on alternatives to incarceration which starts this morning in DC (details here and here). The official agenda looks amazing, and the topics covered should be of interest to lots folks both inside and outside the Beltway.
I have on good authority that the USSC will be posting written testimony from the event, and I am hopeful there will be some mainstream media coverage in the days ahead. But I would also be grateful for any reports from the event either through comments to this post or via e-mail.
Some recent related posts:
- US Sentencing Commission symposium on incarceration alternatives
- USSC press release about alternatives symposium
- Wash Post urges stop to "warehousing nonviolent offenders"
- Two potent commentaries assailing mass incarceration
- Potent pieces on prison nation from the Boston Review
- Why is Senator Jim Webb the only national figure focused on the prison economy?
Examining parole law and policy for killers in California
The Los Angeles Times yesterday had this interesting piece on parole law and policy in California. Here is how the article begins:
Sandra Davis Lawrence is grateful for the simple things she can do now, like pick up her grandniece from school. And she is anxious to make up for lost time, to find a career and start earning money again.
Lawrence spent 24 years in state prison for murdering her lover's wife with a gun and a potato peeler while in a jealous rage. A model inmate, she received a second chance at freedom last summer when a court ordered her released. Since then, she has reunited with family in Los Angeles and tried to re-integrate into society at age 61....
But Lawrence may have to return to prison instead, if Gov. Arnold Schwarzenegger can convince the California Supreme Court that she remains a threat to public safety. That she has had no problems with the law in a year of freedom is irrelevant, the governor's office said; she should not have been let out.
The court is poised in coming weeks to seal Lawrence's fate, along with that of nine other convicted murderers seeking freedom. The justices are expected to answer some difficult questions: When should a killer be set free? What are the limits, if any, on the governor's power to decide? Are such factors as an inmate's prison record and age ever more significant than a horrendous crime committed decades ago?
July 13, 2008
Media coverage of Second Amendment effort to dismiss felon-in-possession charges
Last week I posted here a copy of a notable motion to dismiss a federal criminal indictment for felon in possession based on Heller and the Second Amendment. Today the Pittsburgh Post-Gazette has this story on the motion. Here are snippets from the story, which notes that a hearing on the motion has been scheduled for later this month:
A Washington County man charged in federal court with being a felon in possession of a handgun has filed a motion asking that the charges be dismissed based on a recent Supreme Court decision. James F. Barton Jr. argues that the court's opinion lifting the ban on handguns in Washington, D.C. — and the assertion that the possession of guns in the home is an individual right — must be applied to all people.
Senior U.S. District Judge Alan N. Bloch has scheduled a July 31 hearing on the matter....
"Despite having a conviction history, Barton still has a right to free speech. He still has the right to exercise whatever religion he wants to," Mr. [Barton's lawyer] wrote. "Our Supreme Court has not even come close to saying that, once you are convicted of a federally defined felony, you can not assert a Fourth Amendment right. Heller holds that 'all Americans' have an 'individual right to use arms for self-defense.' This right is non existent, however, to Barton because a statute of Congress eliminates his ability to protect himself and his family through the possession and use of firearms in his home."...
Mr. Barton, 48, was convicted in 1995 of receiving stolen property — which was a firearm — and possession of a controlled substance with intent to deliver in Washington County. In May 2007, investigators searching his home found 15 firearms — seven pistols, three shotguns and five rifles -- as well as ammunition. Mr. [Barton's lawyer] concedes that his client may not be the most sympathetic defendant to use as a test subject, but his argument remains the same. "I firmly believe your home is your castle, and you should be allowed to defend yourself if an intruder comes in to do harm to you or your family," he said. "I think the key dividing line is the home. What you do in your home is far different from what you do in public."...
In the Western District of Pennsylvania, the number of felon-in-possession charges have gone from 19 in 2003 to 90 in 2007. US Attorney Mary Beth Buchanan said the people in this district who are charged with being a felon in possession are those who have significant and recent criminal histories. Though she said the federal law prohibiting felons from possessing firearms doesn't differentiate between offenders, significant and recent criminal histories are just two of the criteria her office uses when meeting with local and state law enforcement to see if a case should be prosecuted federally. "We've charged offenders with recent convictions or past convictions of a very serious and violent nature," she said.
Though I suppose I should be am pleased to learn that the US Attorney for the Western District of Pennsylvania does not seek to make a federal case out of any and every instance of felon in possession, her apparent concession that she does not bring federal prosecutions in every provable felin-in-possession case raises distinct concerns about disparate enforcement patterns in this broad (and potentially unconstitutional) law. It is as if the federal government is saying that persons with old, not-too-serious felonies are, though prosecutorial grace, allowed to keep exercising their constitutional gun rights, but more recent or serious felons are out of luck. Yeah, I think I see that in the text of the Second Amendment when I squint real hard.
Some related posts (written both pre- and post-Heller):
- More thoughts about the scope of Second Amendment rights
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
The international dogs that did not bark in Kennedy
As we await word on whether Governor Bobby Jindal will keep his word and ensure Louisiana seeks rehearing in the Kennedy child rape case (discussed here), a notable omission in the majority opinion dawned on me. As everyone surely will recall, when the Supreme Court struck down the death penalty for juve offender in Roper, Justice Kennedy's opinion for the Court devoted numerous pages to international laws and views. In sharp contrast, the Kennedy opinion says nary a word about international laws and views concerning the death penalty for non-homicide offenses.
This international omission is especially notable given that the Roper opinion suggested that at least some consideration of international laws and views is essential to modern Eighth Amendment analysis: "at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of 'cruel and unusual punishments.'" Roper, slip op. at 21. But in Kennedy, the exact same group of five Justices that comprised the Roper majority did not even once mention the laws of other countries or international authorities.
Of course, the lack of international discussion in Kennedy can be easily explained: the majority opinion in Kennedy did not reference international laws and views because they would undercut the Court's declaration that only intentional homicides can be death-eligible crimes. Indeed, according to this Amnesty International April 2008 review, few countries limit the application of the death penalty in the way that Kennedy now constitutionally commands. (According to AI, China applies the death penalty to 68 crimes, and Iran and Egypt recently executed persons for the crime of adultery. India, Malaysia, Singapore are just a few of the other countries in which non-homicide crimes other than treason are death-eligible.)
Consequently, it seems that, after Kennedy, we need to refine our understanding of the Supreme Court's the Eighth Amendment's jurisprudence: apparently "the laws of other countries and to international authorities [are] instructive" when interpreting the Eighth Amendment if and only when these laws and authorities support the result that the Court is trying to justify. Got it?
Some related recent posts:
Reflections on the politics of SCOTUS and personhood of its members
As one might expect, Linda Greenhouse's latest (and last?) New York Times column covering the Supreme Court is lovely and moving and insightful. And, as we look ahead to a new occupant in the White House (who might have a chance to appoint more Justices than any President since FDR), I found two passages from the piece especially significant. These two passages highlight the importance and impact of politics and personhood.
Concerning politics, consider these astute observations from (soon to be Professor) Greenhouse:
Watching the back-and-forth between a state legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle....
The court can only do so much. It can lead, but the country does not necessarily follow.
In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.
I consider these observations exactly right, and they help explain why the Supreme Court's work on many punishment and sentencing issues has been so dynamic and unpredictable and controversial in recent years. In some ways, a group of Justices want to lead (see Blakely) a country not ready to follow, in other ways the Court is still sorting through developing political or social consensus about modern sentencing realities (see Booker et al. and the Court's capital jurisprudence.)
Concerning personhood, consider these more personal recollections from Professor Greenhouse:
The court I began covering in 1978 was populated by men who were, for the most part, older than my father. Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures. Harry A. Blackmun had only a few years earlier been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion in Roe v. Wade. Nine new justices joined the court during my time there. Of the original group, only John Paul Stevens remains. Three members of the court are younger than I am.
Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor. I had never heard her name before President Ronald Reagan nominated her that summer to succeed Potter Stewart. Although I covered her confirmation hearing, she remained to me basically a blank slate. That didn’t matter. The first time I looked up from the press section and saw a woman sitting on the bench, I was thrilled in a way I would never have predicted. Her presence invaded my subconscious. I had recurring dreams about her. In one, she asked me my opinion on a pending case (something no justice ever did in real life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her presence signifying what it meant to me to know that there was no longer a position in the legal profession that a woman could not aspire to.
These comments and other passages in this great piece reinforce the importance and value of a distinctive focus on personhood and personal background when it comes to Supreme Court appointments. As I have suggested in prior posts urging a broader perspective on SCOTUS short lists, there is a symbolic importance and long-term impact in appointing Justices whom even savvy court-watchers have never previously considered. I hope that lots of people who've never before seen a Justice like themselves have an opportunity to have a new member of the Court invade their subconscious and signify "that there [is] no longer a position in the legal profession that a [certain type of person] could not aspire to."
Some related posts:
Two potent commentaries assailing mass incarceration
Two local Michigan papers have these two new potent commentaries assailing mass incarceration:
- From the Oakland Press here, "State prisons too expensive, ineffective at reform"
- From the Detroit Free Press here, "Get-tough policies cause more crime, deny inmates a future"
The start of the second piece sets out some data that reinforce my view that these topics ought to be much more prominent in year's election season:
U.S. taxpayers spend at least $60 billion a year on a growing body of state and federal prisons, county jails and local lockups. With jail and prison populations that have increased nearly eightfold over the past 35 years, the United States has become the world's leading jailer.
More than one in every 100 U.S. adults is locked up -- and 5 million more are on probation or parole. At any given time, one in 32 adults is under the supervision of the criminal justice system.
Tough-on-crime policies, not increases in crime, are mostly responsible. Mandatory drug sentences, three-strike and so-called truth-in-sentencing laws, as well as high recidivism rates, have created our Incarceration Nation. Even so, violent crime rates are higher than when the nation's prison building boom started more than three decades ago.
It's time to reverse failed sentencing policies, restore certain social and legal rights for ex-felons, and slow the revolving doors of the penal system with better re-entry, education and training programs. Fully funding the Second Chance Act, which provides money for state and federal re-entry programs, would keep more ex-inmates out of prison.
Criminal justice reforms are critical to the health of the nation's cities, and they must become part of the next president's urban agenda. Most of the more than 600,000 people a year leaving U.S. prisons and jails return to disadvantaged urban neighborhoods. They go home poorly educated, lacking job skills, and socially and legally disabled by felony records.
Going to prison has become a norm in certain big-city neighborhoods, even a rite of passage. While mass incarceration has aimed to reduce crime, it has actually increased it by breaking up social networks and removing financial and emotional support from families and communities. Nearly half of the 2.3 million adults locked up are African Americans, who make up less than 13% of the U.S. population. A stunning one in nine black males between the ages of 20-34 is behind bars.
Felony convictions, whether or not they carried prison sentences, attach lifetime penalities to tens of millions of Americans. Roughly 1.8 million people in Michigan, for example, have criminal records, or nearly one in four adults. Most are felony offenders, with all that entails for future prospects. These staggering statistics hold true for the nation as a whole, with more than 55 million people with criminal records.
"Resuscitating Proportionality in Noncapital Criminal Sentencing"
The title of this post is the title of this piece by Donna Lee just appearing here on SSRN. Here's the abstract:
Although the Eighth Amendment guarantees proportionality in noncapital criminal sentencing, federal and state courts have struggled when deciding individual cases, and the Supreme Court has failed to articulate legal rules that could promote the development of a coherent jurisprudence. Working within the governing law and building on the work already done by scholars who have focused on this problem, I propose three principles: transparency, limited deference, and a "felt sense of justice," that could guide the process of proportionality review and contribute to defining a retributivist touchstone for proportionality judgments. Focusing on the required threshold inquiry, I also outline an analytical framework for examining offense gravity and sentence severity, and determining gross disproportionality. My proposal identifies four analytical factors for assessing offense gravity: harm, culpability, violence, and magnitude; and two for evaluating sentence severity: the offender's "real sentence," and likely age and life opportunities upon release from prison.