October 18, 2008
If I had a billion dollars ... I'd buy some guideline reform
With apologies to BNL for tweaking their lyrics (an for linking to this version of their fun $$$ song), I find quite interesting this WSJ $$$ blog entry noting billionaires fundings various ballot initiatives this election season. Of course, what really caught my eye was some competing criminal justice efforts:
Billionaire George Soros spent $1.4 million to support California’s Proposition 5, which would expand drug-treatment programs and apply new restrictions on sending paroled drug offenders back to prison for parole violations....
Loren Parks has spent $3 million on this year’s [Oregon] election –- partly to fund ballot measures designed to get tougher on criminals and to shift a portion of the state’s lottery proceeds to law enforcement....
Is all this billionaire-backed politics democratic? Not initially, since ballot measures often are the creation of wealthy political donors. But come election day, it is up to the voters. Many of Mr. Parks’ previous measures, for instance, have failed. And since the millionaires and billionaires often fund opposing campaigns, they can cancel each other out. Money can buy you a spot on the ballot: but it doesn’t buy a win.
Hat tip: TalkLeft.
Making a case for juvenile imprisonment
The punitive turn in juvenile justice is often criticized, but not often rigorously evaluated. But this new piece available through SSRN, titled "Juvenile Jails: A Path to the Straight and Narrow or Hardened Criminality?," finds some notable good news when examing the move to incarcerate more juveniles. Here is the abstract:
Juvenile justice systems throughout the United States have become increasingly punitive since the 1970s. Most states have passed legislation making it easier to transfer juveniles to the criminal courts. Supporters of this 'get tough' movement argue, in part, that juvenile courts are ineffective in deterring young offenders. This claim, however, is primarily based on poorly designed evaluations that do not account for the non-random nature of sentencing. This paper demonstrates how the institutional features of the justice system can be exploited to identify causality when true random assignment is not feasible. In particular, I capitalize on discontinuities in punishment that arise in Washington State's juvenile sentencing guidelines to identify the effect of incarceration on the post-release criminal behavior of juveniles. The results indicate that incarcerated individuals have lower propensities to be reconvicted of a crime. This deterrent effect is also observed for older, criminally experienced, and/or violent youths.
Sixth Circuit vacates below-guideline sentence for lack of adequate explanation
The Sixth Circuit on Friday in US v. Henry, No. 05-0000 (6th Cir. Oct. 17, 2008) (available here), vacated a below-guideline sentence due to the district court's failure to explain adequately the basis for its sentencing decision. Here are the highlights from this sentencing ruling:
[T]he district court failed to explain how the § 3553(a) factors specifically applied to Henry’s non-Guidelines sentence or articulate why the sentence constituted an adequate punishment in Henry’s case....
Although the imposition of an appropriate sentence is the province of the district court, appellate courts must have sufficient information about the justifications offered for the sentence imposed in order to conduct a meaningful review.... In sum, there is no means for judges to avoid such disparities in the first instance, or correct them on review, without demanding that substantial variances be supported by substantial reasons.
The sentence in the present case may or may not be reasonable. We cannot tell because the district court failed to adequately explain its reasoning or to meaningfully articulate why Henry was entitled to the greatly reduced sentence that he received. We therefore vacate the sentence imposed below and remand the case for resentencing.
Legal wranglings over sentence in Hamdan case
Friday's Wall Street Journal had this interesting article headlined "New Sentence Is Sought for Bin Laden's Driver." Here is how it starts:
The Bush administration wants the military jury that sentenced Osama bin Laden's former driver to reconvene for new deliberations that could add five years to his scheduled release date of Dec. 31.
In August, a six-officer panel convicted Salim Hamdan of providing material support to terrorism. It acquitted him of a more serious conspiracy charge and sentenced him to four months and 22 days beyond the time he had already served -- far less than the 30 years prosecutors sought....
Prosecutor John Murphy, a Justice Department attorney, initially said the government accepted the decision and called it "a victory for the system." But on Sept. 24, prosecutors filed a motion asking that the sentence be reconsidered. The Defense Department released the document Thursday, after inquiries by The Wall Street Journal.
The motion contends that the military judge, Navy Capt. Keith Allred, lacked authority to credit Mr. Hamdan for the time he served in pretrial confinement. Without such credit, Mr. Hamdan, who was captured in November 2001, would face an extra five years.
October 17, 2008
Modern teenagers, society's sexuality and the internet
ABC News has this interesting new piece highlighting how today's teenagers may be pushed by societal influences into becoming unwitting sex offenders. The piece is headlined, "Inside the Minds of Teens Who Post Sexual Images of Themselves: Internet Facilitates Self-Nude Photos but Teens Miss the Implications," and here is how it starts:
Despite specific warnings from prosecutors, the 15-year-old Ohio girl who was arrested last week and accused of sending nude pictures of herself to classmates probably doubted that she could ultimately be forced to register as a sex offender under state law, psychologists and Internet experts say. More than likely, they suggest, she was only after a sliver of notoriety, the product of a culture where pornography has gone mainstream and fame can be had in an instant by simply distributing a sexually explicit video with a cell phone or on the Internet.
"They think they're going to get attention -- that it makes them stars of their own reality show," Internet privacy and piracy lawyer Parry Aftab said of the growing number of U.S. teenagers who publish sexual images of themselves online. "They don't understand the consequences," said Aftab, an ABC News consultant. "They don't think about where that video is going to go, or how long it's going to be on the Internet and the 50-year-old who is going to be drooling over it."
If convicted, the girl, whose identity has not been released, could face a sentence of anywhere from probation to several years in a juvenile detention center. The high school student in Newark, Ohio, denies the charges; authorities are also considering charges for the students who received her photos, which are considered child pornography under law....
There are other examples. Earlier this year, an Ohio boy reportedly made a sexual cell phone video of himself and sent it to female classmates, one of whom then forwarded the video to at least 30 other people. Similar incidents have been reported in Wyoming, New York and Pennsylvania.
Such incidents are a symptom of a culture where sexual imagery like the infamous photo of Britney Spears' exposed crotch or Vanity Fair's seminude photos of 15-year-old "Hannah Montana" star Miley Cyrus have become the norm, said Jean Kilbourne, author of "So Sexy, So Soon: The New Sexualized Childhood and What Parents Can Do to Protect Their Kids."
"Bold new idea: Make punishment fit the crime"
The title of this post is the title of this op-ed appearing in the the Seattle Post Intelligencer. Here is the start of a potent piece:
The U.S. Sentencing Commission sets the parameters federal judges are obliged to follow in sentencing convicted felons. It has long been, in effect, the hanging judge of the federal criminal justice system, backing long, inflexible sentences and making judicial discretion an oxymoron.
But, surprise, last year the commission defied the Bush administration by reducing crack-cocaine sentences to reflect those for powder cocaine, easing a disparity that was a major source of the wildly disproportionate incarceration of African-Americans. What's more, it boldly applied the new standard retroactively. And now the commission is studying possible sentencing alternatives to imprisonment, a move toward making recommendations to Congress.
About time. We have become the world's champion jailer, imprisoning a far higher percentage of our people than any other industrialized nation, as if Americans were somehow a uniquely criminal people. The national prison population is nearing 2.5 million, with some 200,000 of those in federal lock-ups. Another five million are under criminal-justice control -- probation, parole and so on. The roots of this ugly flowering are in the law-and-order politics that started in the 1970s and lasted into the '90s.
October 16, 2008
Final version of my article on the SCOTUS death docket
I am pleased to report that Ohio Northern University Law Review now has in print my recent article (from a lecture I gave at ONU) lamenting the Supreme Court's tendency to consider on the merits too many death penalty cases and too few other cases. (These complaints should be familiar to regular readers, but this piece has more footnotes, data and ideas than my blog grumbling.) The article is titled, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," and can be downloaded below. Here is part of the introduction:
My interest in modern sentencing jurisprudence has led me to follow closely the Supreme Court’s certiorari process and choices, and I now believe that more attention (and criticism) should be directed toward the Justices’ performance in their first job of deciding what to decide. To put my particular concerns bluntly, I have concluded that, at least in the arena of criminal justice, the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems. Specifically, the Supreme Court has become caught up in what I call a “culture of death:” the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants. As the title of this commentary suggests, I consider this phenomenon a “capital waste” of the Court’s time, which results in various problems for the administration of both capital and non-capital sentencing systems.
Beyond criticizing the Supreme Court’s troublesome affinity for obsessing over capital cases, I wish to explore agenda-creating and agendasetting realities that can influence the Supreme Court and its work. My goal is to spotlight some under-examined dynamics that shape the Court’s engagement with legal issues and its work-product, which in turn should facilitate broader reflection on the institution of the Supreme Court and the Justices’ modern efforts in discharging both of their important decisionmaking jobs. In addition, as a final coda to this commentary suggests, a change in personnel on the Court may prove as consequential for how the Court sets its docket as for how the Court resolves cases.
Some related posts:
- Justice Alito jumping out of the cert pool!!
- Roberts, the cert pool, and sentencing jurisprudence
- Why is the cert pool so beloved?
- More on the SCOTUS deadly, but still shrinking, docket
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- My (already dated) musings on the SCOTUS criminal docket
The quality of mercy is not strained, but its geography is notable
Over at Pardon Power, P.S. Ruckman has this interesting new post titled "The Geography of Bush's Pardons." Here is how it starts:
Here are some data on the distribution of President Bush's clemency decisions (157 pardons and 6 commutations of sentence) by state:
17 - Texas
14 - Florida
10 - Georgia
Ruckman also has an ever-helpful Watch List as we approach the upcoming traditional presidential pardon season in a few weeks.
ACS proposals for next administration's Justice Department
Though disappointingly light on criminal justice discussions, there are still a lot of interesting ideas to be found in a series of federal justice policy papers released today by the American Constitutional Society. The details and papers of this project, titled "A Fresh Start for a New Administration: Reforming Law and Justice Policies," can be found at this link. Here are some of the papers that should be of special interest to sentencing fans:
- Janet Reno and Geoffrey M. Klineberg, What Would Jackson Do? Some Old Advice for the New Attorney General
- Margaret Colgate Love, Reinventing the President's Pardon Power
Notable appeal waiver ruling from the Third Circuit
The Third Circuit today issued a long opinion addressing the enforceability of an appeal waiver in US v. Goodson, No. 06-4895 (3d Cir. Oct. 16, 2008) (available here). Here is how the opinion begins:
Daniel J. Goodson appeals from the sentence imposed by the United States District Court for the Western District of Pennsylvania, challenging a condition of supervised release requiring Goodson to consent to a search of his place of business. The government asserts that we are precluded from reviewing this issue because Goodson, pursuant to a plea agreement, waived his right to file a direct appeal under 18 U.S.C. § 3742(a). In his reply brief, Goodson acknowledges for the first time the existence of an appellate waiver. He contends, however, that the waiver does not preclude this particular appeal and that, in any event, the waiver is invalid because it was unknowing and involuntary.
We must determine whether Goodson’s failure to address the applicability of the appellate waiver in his opening brief effectively foreclosed him from subsequently challenging in his reply brief the enforceability of the appellate waiver. We hold that it does not. Nonetheless, we will enforce the appellate waiver and will affirm the judgment of the District Court.
Intriguing little habeas sentencing ruling from the Seventh Circuit
Yesterday the Seventh Circuit issued an interesting little decision in the habeas case, Burr v. Pollard, No. 07-4031 (7th Cir. Oct. 15, 2008) (available here). Here is the issue as described in the opinion:
Burr renews his claim here that his due process rights were violated when the judge considered the “bullying” allegation after striking it from the record and that his Fifth Amendment rights were infringed when the judge enhanced the confinement component of his sentence because he remained silent.
Folks familiar with the challenges of modern habeas claims by state prisoners can likely predict the outcome.
Is having an A-list, rich, beautiful girlfriend a mitigating sentencing factor?
I love being able to call People magazine professional reading, and I can now do that due to the upcoming sentencing of actress Anne Hathaway's former boyfriend. Here is People's coverage of the ex-beau's latest sentencing arguments:
Anne Hathaway's ex will definitely do hard time — the question is how much. Admitted con man Raffaello Follieri — who pleaded guilty last month to wire fraud, money laundering and conspiracy — is hoping to shave off some of his prison sentence, the Associated Press reports.
In papers submitted to a Manhattan federal court Tuesday, his attorney asked that the Italian-born businessman be sentenced to three years in prison, not the four-plus years he agreed to in his plea deal, the wire service reports. Attorney Flora Edwards says Follieri had good intentions when he started a business to buy property from the Catholic church. But he "became intoxicated with it all" when he began moving in A-list circles.
Follieri, 30, dated Hathaway for four years. They split in June just before his arrest.... He is scheduled to be sentenced on Oct. 23.
Thanks to the wonders of the world wide web, you can read the 13-page sentencing submission from the defense at this link. The conclusion encourages the sentencing to echo a "deeper public commitment to compassion."
October 15, 2008
A last chance for a debate to bring up crime and punishment issues
Everyone is suggesting that tonight's Presidential debate will look and feel a lot different than what has come before. I hope so, in part because a very different debate might lead finally to some national discussion of national crime and justice issues. I am not expecting any serious criminal justice talk tonight, but just maybe we will hear some mention of the death penalty or the Second Amendment or mass incarceration or federal drug sentences. I will be watching, just in case.
Some related posts:
- Hoping for a presidential town hall on crime and punishment
- Why is Senator Jim Webb the only national figure focused on the prison economy?
- "Real commander needed for the war on drugs"
- Politics and the war on drugs
- Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
Two very different takes on Ice
Two top-notch court watchers have two very different perspectives on what yesterday's oral argument in Oregon v. Ice might mean for the future of the Apprendi/Blakely line of Sixth Amendment cases. Lyle Denniston, in this long post at SCOTUSblog, starts his summary of the Ice argument this way:
With Justice Stephen G. Breyer waging, seemingly alone, a rear-guard effort to limit juries' fact-finding role in determining criminal sentences, the Supreme Court on Tuesday displayed a strong inclination to stay on course in the eight-year effort to add to the jury’s power.
In sharp contrast, Kent Scheidegger, in this long post at Crime and Consequences, ends his post with this radically different assessment:
This looks pretty good for the state. Justices Stevens and Ginsburg, both essential votes for the extension of Apprendi in Booker, seem to be reluctant to extend it this far.
My first read of the Ice transcript led me toward Lyle's assessment, but I have long given up making serious predictions about anything concerning what the Justices are going to be doing in the Apprendi/Blakely line of constitutional rulings. However, the fact that the traditional left/right divide does not hold in this Sixth Amendment setting perhaps explains why the Court's efforts even at oral argument are hard to assess (and also explain why I find this jurisprudence so interesting).
Some related Ice posts:
Notable NY Times piece on drug courts
The drug court movement continues to be getting a lot of good attention these days, and this article in the New York Times should further help the movement. The article is headlined "Courts Give Addicts a Chance to Straighten Out," and here are some extended excerpts:
In Seattle, as in drug courts across the country, the stern face of criminal justice is being redrawn, and emotions are often on the surface. Experts say drug courts have been the country’s fastest-spreading innovation in criminal justice, giving arrested addicts a chance to avoid prison by agreeing to stringent oversight and addiction treatment. Recent studies show drug courts are one of the few initiatives that reduce recidivism — on average by 8 percent to 10 percent nationally and as high as 26 percent in New York State — and save taxpayer money....
Since the first drug court began work, in Miami in 1989, the idea has spread to more than 2,100 courtrooms in every state, though they still take in only a small fraction of addicted criminals. Offenders, usually caught in low-level dealing or stealing to support their addictions, volunteer for 9 to 18 months or more of intrusive supervision by a judge, including random urine testing, group therapy and mandatory sobriety meetings. The intent is a personal transformation that many participants say is tougher than prison — and with the threat of prison if they drop out or are kicked out....
Nationwide, 70,000 offenders are in adult or juvenile drug courts at any given time, with the number growing, said C. West Huddleston III, director of the National Association of Drug Court Professionals. The concept has been supported by the Clinton and Bush administrations. "To find an intervention that works has generated great excitement in the criminal justice community," said Greg Berman, director of the Center for Court Innovation, a research group in New York, where Chief Judge Judith S. Kaye has been a strong advocate....
But some scholars say that, because of high up-front costs, the limited success of drug treatment and a shortage of judges with the required personal talents, drug courts are unlikely to make a significant dent in the prison population. Some lawyers also say the courts can infringe on the rights of defendants given that offenders usually must acknowledge guilt to enter the court, or in some places have already agreed to a plea bargain and sentence. Thus an addict might opt for drug court to avoid prison or with sincere intentions of going straight, but if treatment fails and he is expelled from the program, he must serve a sentence without having seriously fought the charges. His total time in court custody, between drug court and then prison, may be longer than it would have been otherwise. Advocates respond that such offenders are facing a plea-bargaining mill in any case, and are offered an invaluable chance for change.
Some related posts about drug court programs and research:
Around the criminal blogosphere
There is lots of interesting new stuff to be found at some of my favorite criminal cyber-stops:
- Capital Defense Weekly
- Crime and Consequences
- Grits for Breakfast
- Pardon Power
- Sex Crimes
- Simple Justice
- White Collar Crime Prof
New federal sex offender law (with Senator McCain's imprint?)
Earlier this week President Bush signed into law two new statutes aimed at sex offenders. This official press statement from the White House provides a summary of the new laws:
On Monday, October 13, 2008, the President signed the following bills into law:
S. 431, the "Keeping the Internet Devoid of Sexual Predators Act of 2008" or the "KIDS Act of 2008," which requires: sex offenders to provide Internet identifiers, including e-mail addresses, to State sex offender registries; and tasks the Justice Department to establish and maintain a system that allows social networking websites to compare Internet identifiers of its users with those provided to the National Sex Offender Registry;
S. 1738, the "PROTECT Our Children Act of 2008," which requires the Department of Justice to create and implement a National Strategy for Child Exploitation, Prevention, and Interdiction; statutorily establishes the existing Internet Crimes Against Children (ICAC) Task Force Program; and makes other amendments to Federal child pornography laws.
These new laws have not yet gotten much traditional media attention, but Corey Yung at Sex Crimes has some of the early coverage. Notably, this Wired article suggests that Senator John McCain can take some credit for the KIDS Act of 2008, but this Newsday article gives credit to Senator Charles Schumer. I am hopeful that this official press release from Senator Schumer's office is accurate when it provides this account of the background and particulars of the legislation:
The legislation, which is co-sponsored by Senators Barack Obama (D-IL), John McCain (R-AZ) and 18 other senators, passed the House without objection two weeks ago, and then cleared the Senate by unanimous consent on September 30. The new law will require sex offenders to register their online identifiers, such as email and instant messaging addresses, with the National Sex Offender Registry. This information will be released only to participating websites in a secure and protected form so that website operators can monitor their services and expel sex offenders from their pool of users if they choose. Failure to register or update registration of email information, like other required information, will subject violators to up to ten years’ imprisonment.
"On Justifying Punishment: The Discrepancy between Words and Actions"
The title of this post is the title of this interesting article from a social scientist that was recently posted on SSRN. Here is the abstract:
This article reveals a discrepancy between the actual and stated motives for punishment. Two studies conducted with nationally representative samples reveal that people support laws designed on the utilitarian principle of deterrence in the abstract, yet reject the consequences of these same laws when they are applied. Study 1 (N = 133) found that participants assigned punishment to criminals in a manner consistent with a retributive theory of justice rather than deterrence. The verbal justifications for punishment given by these same respondents, however, failed to correlate with their actual retributive behavior. Study 2 (N = 125) again found that people have favorable attitudes towards utilitarian laws and rate them as "fair" in the abstract, but frequently reject these same laws when they are instantiated in ways that support utilitarian theories. These studies reveal people's inability to know their own motivations, and show that one consequence of this ignorance is to generate support for laws that they ultimately find unjust.
I lack the social science background essential to assess carefully the empirical work and analysis found in this article. But the ultimate conclusions drawn by the author could have profound implications for sentencing structures and policies at both system-wide and case-specific level.
Yale LJ Pocket Part piece on Kennedy rehearing denial
I am intrigued to see that the Yale Law Journal Pocket Part already has this new piece on-line concerning the Supreme Court's denial of rehearing in the Kennedy child rape case. The piece is by Bidish Sarma and is titled "Still in Search of a Unifying Principle: What Kennedy v. Louisiana and the Supreme Court’s Denial of the State’s Petition for Rehearing Signal for the Future." Here is an excerpt from the piece's introduction: "
The State of Louisiana claimed that a recent change in military law invalidated the Court’s finding [in Kennedy] of a national consensus. It attempted to capitalize upon fresh media coverage and widespread confusion about the facts by filing a petition for rehearing with the Supreme Court. On October 1, 2008, the Court denied the request for a rehearing. This piece briefly explores: (I) the basis of the Court’s decision to reject the request for rehearing; and (II) the Kennedy decision’s implications for the Eighth Amendment’s future.
October 14, 2008
Ice oral argument transcript now available
I have not yet had a chance to review the Ice oral argument transcript, but it is now available at this link. As explained in this preview post, the Ice case has the potential to heat up or cool down lower court debates over the reach of Blakely and the limits of judicial fact-finding at sentencing.
I plan to post later on anything really significant that jumps out from the oral argument transcript. In the meantime, readers are encouraged to use the comments to give their views on whether the Ice argument proved to be hot or cold.
UPDATE: After a quick read of the transcript, I was surprised and somewhat disappointed that the jurisprudential discussion of Apprendi and Blakely has not become more advanced and sophisticated even a full decade into this modern Sixth Amendment debate. That said, I was surprised and somewhat pleased to see pro-Sixth Amendment instincts expressed by nearly every member of the Cunningham six during the Ice argument (though Justice Thomas remained his usual quiet self).
For a variety of reasons, I have been fearful that the six Justices who continued to champion Sixth Amendment principles in the Cunningham decision dealing with California's sentencing system (who are the five Justices in the Apprendi/Blakely majorities plus Chief Justice Roberts) are not eager to keep the modern Sixth Amendment sentencing revolution marching forward. But the transcript of the Ice argument suggested to me that Justice Breyer, who has always opposed the Apprendi/Blakely line of cases, may be the only Justice deeply and seriously concerned about the possible consequences of continued commitment to the principles of this line of cases.
I had expected that Justices Alito and Kennedy, who were part of the dissenting block in Cunningham, would be vocal in articulating concerns about the arguments put forward by the defendant in Ice. But Justice Alito was surprisingly quiet during argument — I do not think he asked a single question — and Justice Kennedy did not reveal any deep continuing hostility to Apprendi principles. I am now starting to wonder if every member of the current Court, save Justice Breyer, is ready to have their ticket stamped to Apprendi-land. If so, and especially if Ice ruling ends up reflecting this new reality in bold terms, it could end up being a sleeper case this Term.
Some post-Booker SCOTUS doings from a per curiam and a dissent
I thought the biggest sentencing news to come from the Supreme Court today would be either the denial of cert in the Troy Davis case (details here from the AP) or the oral argument in the Oregon v. Ice Sixth Amendment case (background here). But, thanks to this post from SCOTUSblog, I just discovered that the Court handed down a notable per curiam decision and Justice Scalia issued a significant dissent in cases involving post-Booker issues.
1. The per curiam opinion in Moore v. United States (07-10689) is available at this link, and here are the important paragraphs from the end of the very brief opinion:
Proceeding pro se, Moore again petitioned for certiorari, arguing that the Eighth Circuit’s new characterization of the transcript is wrong, and that it is “clear that the district court thought judges had no discre[t]ion to reject” the Guidelines ratio. Pet. for Cert. 7. The United States agrees that the Eighth Circuit erred, see Brief for United States 9, and so do we.
When the District Court said that “[i]t isn’t the judges” but Congress that “looks at the [G]uidelines and decides whether or not they should be put . . . in force,” the court showed that it did not think it had the discretion later upheld by Kimbrough. App. C to Pet. for Cert. 56. The Eighth Circuit’s first decision recognized this, describing the District Court as “concluding” (correctly under circuit precedent) that it was not “authorize[d] . . . to reject” the crack/powder disparity. Moore, 470 F.3d, at 770 (internal quotation marks omitted). In light of the District Court’s comments at sentencing, the Court of Appeals should have remanded the case to the District Court for resentencing under Kimbrough. We express no views on how the District Court should exercise its discretion at resentencing.
2. Justice Scalia’s (solo) dissent from denial of certiorari in Marlowe v. United States (07-1390) is available at this link, and here is a key passage:
On appeal, the Sixth Circuit applied a presumption of reasonableness to the sentence because, in light of the judge-found fact that Marlowe had possessed the state of mind required for second-degree murder, the sentence was consistent with the Guidelines. United States v. Conatser, 514 F.3d 508, 526–527 (2008). In other words, the Sixth Circuit found the life sentence lawful solely because of the judge-found fact that Marlowe had acted with malice aforethought. This falls short of what we have held the right to trial by jury demands: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U. S. 220, 244 (2005).
I would grant the petition for certiorari, so that we may either forthrightly apply Booker or announce that the case is overruled.
In praise of thoughtful judging on the Second Circuit
I clerked for two different judges who still serve on the Second Circuit. For that reason and perhaps others, I am always partial toward the work of that Court (especially when one of my old bosses is involved). But, personal prejudice notwithstanding, I think all would agree that the three opinions coming from the Second Circuit today in US v. Huezo, No. 07-0031 (2d Cir. Oct. 14, 2008) (available here), show that this Circuit remains in fine form.
Here is the start of the opinion authored by one of my old bosses, which provides a flavor for the Huezo case and all the thoughtful judging it has produced:
JON O. NEWMAN, Circuit Judge, with whom Judge Walker and Judge Sotomayor (although dissenting on the merits) join, concurring:
Whether evidence suffices to permit a reasonable jury to find guilt beyond a reasonable doubt is sometimes a close question, as this case illustrates. The four judges who have conscientiously reviewed the record are evenly divided, but the hierarchical structure of the appellate process results in a 2-1 affirmance of the conviction. I agree with that result and join the entirety of Judge Walker’s carefully reasoned opinion. I write separately, however, to take issue with one argument advanced by the Government. Although that argument accurately states a proposition that has often been repeated in the case law of this Court, I believe the proposition and a related formulation of it are incorrect, entered federal jurisprudence improvidently, have been routinely repeated without consideration of their infirmity, and should be discarded.
Ohio ready to return to execution business
As detailed in this AP article, many of the potential legal and practical roadblocks have been cleared in order to allow Ohio to conduct its first execution in nearly 18 months. Here are specifics:
A double murderer who says he's too fat to be executed humanely has passed a pre-execution exam and is cleared to receive a lethal injection Tuesday. Richard Cooey, 41, was given a visual examination by the state when he arrived at the death house on Monday, and officials found nothing that should cause a problem in delivering the deadly chemicals.
The 5-foot-7, 267-pound Cooey had tried to avoid execution by arguing that his obesity would prevent humane lethal injection because viable veins in his arms are hard to find. A more detailed examination was to be conducted Tuesday morning, when he is scheduled to die for killing two college students in 1986.
The U.S. Supreme Court on Monday denied one of two pending appeals to stop the execution. It turned down without comment Cooey's claim that his obesity was a bar to humane lethal injection. The argument also had been rejected by a federal appeals court in Cincinnati and the Ohio Supreme Court, with both courts ruling that he missed a deadline for filing appeals....
Cooey and a co-defendant were convicted in the sexual assaults and slayings of University of Akron students Dawn McCreery, 20, and Wendy Offredo, 21, in September 1986. His co-defendant was 17 and was sentenced to life in prison because of his age. The Ohio Board of Parole and Gov. Ted Strickland have refused Cooey's plea for clemency.
Cooey dined Monday evening on the special meal he ordered, including T-bone steak with A-1 sauce, onion rings, french fries, four eggs over easy, toast with butter, hash browns, a pint of rocky road ice cream, a Mountain Dew soft drink and bear claw pastries.
I suppose you have to give Cooey some credit for using his last meal to try to make his legal claims stronger (or should I say heftier). If the topic of last meals intrigues, the internet provides this (now dated) site, Dead Man Eating, for you macabre bemusement. I wonder if A-1 and Mountain Dew might be a bit concerned about their product placements thank to Cooey.
On a more serious note, though many do not tend to think of Ohio as an active death penalty state, Ohio has been second only to Texas in total of number of executions in recent years. In addition, as detailed here at DPIC, Ohio is right now the only state other than Texas with serious execution dates scheduled for the next couple months. Though it does not appear that Ohio is planning to make up for lost time because of the Baze-related lethal-injection hiatus, I view the simple fact that the state is now poised to get back into the execution business as an important development for the national landscape of the modern administration of capital punishment.
Some recent related posts:
UPDATE: As detailed in this local story, Cooey's execution went forward apparently without a hitch this morning:
Richard Wade Cooey III was executed this morning, forever silencing his personal argument that lethal injection is a cruel and flawed process that can cause an agonizing death. Cooey, 41, was pronounced dead at 10:28 a.m., only a few minutes after being injected with a lethal flow of three drugs at the Southern Ohio Correctional Facility.
October 13, 2008
The little Ice case that could (but probably won't)...
be a major Sixth Amendment ruling. As detailed here at SCOTUSblog, Tuesday afternoon the Supreme Court will hear argument in Oregon v. Ice, which explores whether the Apprendi/Blakely rule limiting judicial fact-finding at sentencing extends to determinations required under state law for the imposition of consecutive sentences. I did a preview of this case for the ABA, which can be downloaded below. Here is a snippet of my analysis from that preview:
Continued uncertainty about what the current Justices now think about the Sixth Amendment rule championed in Apprendi and Blakely increases the uncertainty over whether the Court’s decision in Ice will be bold and significant. If a group of five or more Justices remains eager to limit certain judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the defendant, but also suggests that lower courts should be applying the Sixth Amendment in an array of new sentencing settings. Conversely, if a group of five or more Justices is now eager to remove remaining constitutional uncertainty about what Blakely means for various forms of judicial fact-finding at sentencing, the Court could produce a broad and consequential decision that not only favors the state but also suggests that lower courts should not be too concerned about Sixth Amendment rights in various sentencing settings.
Tellingly, the Supreme Court has not taken up many post-Blakely issues in recent years, even though lower courts have frequently turned back arguments by defendants and defense counsels to apply and expand Blakely’s reach in a variety of new sentencing settings. This reality perhaps suggests that the Court may be more inclined to limit than to expand the reach of Blakely in this case....
Because Chief Justice Roberts has publicly suggested he favors narrow constitutional rulings that produce more consensus than dissension within the Court, one might expect a relatively narrow ruling in Ice garnering the votes of most or all Justices. The specific consecutive/concurrent sentencing issue in Ice could be resolved on relatively narrow grounds without requiring the Court to significantly expand or significantly limit the reach of the Sixth Amendment. But, then again, one hallmark of the Apprendi and Blakely line of cases has been unpredictability. Ice could be a sleeper case if a group of Justices prove eager to use the opinion in this case as an opportunity to champion again the importance of the jury in modern criminal justice settings.
Senator Webb continuing his important focus on US drug policy
I am pleased to see from Senator Jim Webb's website that he will be hosting this Wednesday morning at George Mason University a symposium entitled "Drugs in America: Trafficking, Policy and Sentencing." The symposium details are set out on this official flier, and the event is described on Senator Webb's webpage: "Moderated by Senator Webb, three panels of experts will examine drug distribution in the U.S; law enforcement practices; and punitive vs. public health responses to drug abuse."
As regular readers know, I have frequently praised Senator Jim Webb for being one of the few national politicians giving serious (and much-needed) attention to mass incarceration and criminal justice policies connected to the "war on drugs." And, after reading this interesting recent post from the TierneyLab titled "The Drug Czar's Report Card: F," I plan to step up my criticisms of other national policy-makers for failing to give these issues the serious attention they deserve. Here is the start of Jon Tierney's post:
In 2002, the Bush administration’s National Drug Control Strategy set a goal of reducing illegal drug use by 25 percent in five years. This was followed by an unprecedented campaign of persuasion (more than 100 different anti-drug advertisements and commercials) and law enforcement as the number of annual arrests for marijuana possession climbed above 700,000 — higher than ever before, and greater than the combined total for all violent crimes.
Now that the first five years’ results are available, the campaign can officially be called a failure, according to an analysis of federal drug-use surveys by Jon Gettman, a senior fellow at the George Mason University School of Public Policy. The prevalence of marijuana use (as measured by the portion of the population that reported using it in the previous month) declined by 6 percent, far short of the 25-percent goal, and that decline was partially offset by a slight increase in the use of other illicit drugs. As a result, the overall decline in drug use was less than 4 percent....
In 1991, [Dr. Gettman] noted, the official National Drug Control Strategy’s goal was to reduce number of illicit drug users in America to 7.25 million within a decade. But a decade later, in 2002, the number was actually 19.5 million, and by last year it had risen to 19.9 million, Dr. Gettman said.
Whatever else one might say about the "war on drugs," it clearly has been a very costly battle measured in either economic or human terms. And there seems to be little evidence that the considerable costs of this war are producing significant and lasting benefits. I continue to hope that the next president might try a different kind of surge in the drug war — a surge focused on public health realities rather than criminal justice rhetoric. I also hope that Senator Webb can and will be committed to leading a new battalion of troops in this seemingly never-ending war.
Some related posts:
Another example of the inevitability of technocorrections
This local article from California, headlined "Technology to track criminals will expand," shows yet again why the smart money, especially in tough economic times, is going to bet on the future of technocorrections. I think this little article provides a big window into the criminal justice future, and here is how it starts:
As the economy tightens the reins on the rest of us, San Bernardino County is shortening its leash even more on a special few. This is a group almost everyone is glad that someone is watching. It includes child molesters, wife beaters, drunken drivers and gang members.
The Board of Supervisors last week voted to expand the county's use of surveillance technology to track criminal offenders who are on probation or serving time on house arrest or weekends in jail. Some of the technology includes global positioning satellite surveillance, home-based electronic monitoring and alcohol monitoring....
And in these days when the taxpayers are taking a beating, this program is expected to pay its own way by requiring the offenders to pay for the equipment that tracks them. It's either agree to that or jail. Taxpayers get another break out of the deal. When the offender is out and about and being monitored, the county isn't forced to provide him with room and board, which is a big savings. It also helps alleviate overcrowding in the jails -- a chronic problem in San Bernardino County.
The county signed contracts with Total Court Services to provide alcohol monitoring and Sentinel Offender Services to provide GPS tracking and home-based monitoring.... The offenders will be charged $15 a day on a sliding scale according to ability to pay. It will cost the county nothing, and the contractors will collect the money.
Some related posts on technocorrections:
- Is the future parole with GPS and other techno-reentry devices?
- The inevitability of GPS tracking and cost-saving technocorrections
- Another reason to believe GPS technocorrections are inevitable
- Why tight budget times will speed path to technocorrections
- Are microchip implants for offenders inevitable?
- UK getting serious about GPS through microchip implants
- The practical challenges of sex offender tracking
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
October 12, 2008
Autumnal execution news and notes
As detailed in this AP article, the pace of executions in Texas is poised to speed up over the next few months. Here is how the piece starts:
The crowd on A-Wing A-Section at the Texas Department of Criminal Justice Polunsky Unit at Livingston is about to get thinned. A dozen condemned inmates in the so-called “death watch” cells on Texas death row are set for lethal injection over the next six weeks.
Two are scheduled for this week. Two next week. And two more the week after that. Then six more in November, adding to Texas’ standing as the nation’s most active death penalty state. “It’s just the way of Texas,” Alvin Kelly, who on Tuesday is the first of the 12 set to die, said last week from a tiny visiting cage at the prison. “Will crime stop? Will my death stop what’s going on in everyday society?” asked Kevin Watts, scheduled to die two days later. “They’re just killing people.”
Meanwhile, as detailed in this CNN story, the first person scheduled to be executed in Ohio since the Baze decision is asking the Supreme Court to block his execution:
An Ohio death row inmate who says he is too overweight to be executed took his plea to the Supreme Court on Friday....
The justices were expected to decide whether he should receive a stay of execution, and whether to address the larger constitutional claims over when a convicted person is medically unfit for capital punishment.
His lawyers have argued that the inmate -- at 5-foot-7 and 267 pounds -- is "morbidly obese," and has gained about 70 pounds since his incarceration at age 19. Prison food and confinement in his cell for 23 hours a day, limiting his opportunities for exercise, contributed to his weight problem, his legal team said in recent court filings.
Cooey also says regular medication he takes for migraines will weaken the effectiveness of an anesthetic used in the a three-drug cocktail administered during execution. He says his veins are weakened because of his health issues, and the lethal drugs would amount to cruel and unusual punishment.
Washington Post notices USSC's look into incarceration alternatives
The Washington Post had this notable article in its Sunday's paper headlined "Sentencing Panel Mulls Alternatives to Prison." Here are excerpts:
As the nation's inmate population climbs toward 2.5 million, the U.S. Sentencing Commission is considering alternatives to prison for some offenders, including treatment programs for nonviolent drug users and employment training for minor parole violators.
The commission's consideration of alternatives to incarceration reflects its determination to persuade Congress to ease federal mandatory minimum sentencing laws that contributed to explosive growth in the prison population.... If the commission moves ahead with recommending alternatives to Congress, it would send a strong signal to state sentencing commissions and legislatures, and could pave the way for a major expansion of drug courts and adult developmental programs for parolees, advocates said.
"We are leading the world in incarcerating adults, and that's something Americans need to understand," said Beryl Howell, one of six members of the commission, which drafts federal sentencing guidelines and advises the House and Senate on prison policy. "People should be aware that every tough-on-crime act comes with a price. The average cost [of incarceration] across the country is $24,000 a year per inmate. . . . It's going up far faster than state budgets can keep up."...
The commission held a symposium to discuss alternatives to incarceration in July after a study this year by the nonpartisan Pew Center on the States revealed that more than one in 100 American adults are in jail or prison. That study was followed by a Bureau of Justice Statistics report in June that showed that a record 7.2 million people are under supervision in the criminal justice system. The cost, about $45 billion a year, has forced states such as California to export inmates to private prisons as far away as Tennessee....
The commission's consideration of alternatives comes the year after it defied the Bush administration by relaxing tough sentencing guidelines for crack cocaine offenders and making its decision retroactive, so that thousands already in prison could seek release before the end of their terms. About 4,000 mostly nonviolent offenders have taken advantage of the policy so far, according to members of the commission and the federal Bureau of Prisons....
The Sentencing Commission's staff is drafting a proposal amending its guidelines that the panel could submit for public comment in late December. The commission could make a final decision by May 1. Congress would then have 180 days to reverse the decision.
The fact that the USSC is considering alternative is old news (as detailed in prior posts linked below), but the notion that it is drafting a specific incarceration alternatives proposal for its guidelines is big news. I'll believe it when I see it, but I like see this indication that the USSC's staff is working on a serious and concrete effort to incorporate more prison alternatives into the federal sentencing guidelines.
Some recent related posts:
- US Sentencing Commission symposium on incarceration alternatives
- USSC press release about alternatives symposium
- A blog report on USSC alternatives symposium
- Another report from the USSC alternatives symposium
- Report that USSC is working on incarceration alternatives
- What does the future hold for the US Sentencing Commission?
- USSC proposes latest priorities and requests public comments
- Acquitting and downloading some additional USSC priorities
- Developing AG and USSC short lists
- New developments or data from the USSC?
California's confusing efforts to do criminal justice by initiative
With only weeks until election day, I found interesting this article from the Sacramento Bee, headlined "Justice issues collide on ballot." As the article explains, a set of diverse criminal justice issues are coming directly before California voters this fall. Here is how the article starts:
Law and order activists, critics of California's drug laws and victims rights groups independently have loaded three separate crime measures onto the Nov. 4 ballot, and they're not making it easy for state voters to sort them out.
Together, Propositions 5, 6 and 9 cover 115 pages, would change scores of laws and would affect billions of dollars in state spending.
"My mom asked me if I have positions on all of them, and I told her I'm still working on it," said Assembly Public Safety Committee chairman Jose Solorio, D-Santa Ana, who presided over nine hours of hearings on the measures. "There's a lot to digest."
On Nov. 4, voters will decide whether to drastically change the way the state prosecutes drug addicts and the lower-level property crimes they commit, to the tune of diverting an estimated 18,000 offenders from prison into treatment programs. That's the basic thrust of Proposition 5.
They're also being asked to give local law enforcement more money, protect what funds they already get, and toughen laws aimed at street gang members, methamphetamine cookers and serious ex-cons who possess guns in public. Those are the basics of Proposition 6.
The third measure seeks to put victims at or near the center of the entire criminal justice process and give them a constitutional right to participate in plea bargaining and parole decisions. It also wants to make life-term inmates wait 15 years between parole hearings, stop early inmate releases and have counties build tent jails to handle inmate overflow. That's Proposition 9.