October 14, 2008
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.