November 4, 2008
Any speculations on what this Election Day could mean for the death penalty?
There are a number of state initiatives concerning sentencing and drug policy reforms that might provide a sense of some voters' current views on drug crime and punishment. But I cannot recall a single election story, either at the federal or state level, in which the death penalty has been a consequential issue. (This marks a significant contrast to 2006, when a death penalty ballot issue in Wisconsin and a heated race for Governor in Virginia partially revealed the political salience of, and current attitudes on, the modern death penalty.) But even though the capital punishment has been a very quiet issue this election cycle, election results at both the national and state level will surely impact the future of the death penalty in the United States.
At the national level, if Senator Obama wins the presidency and the Democrats make significant gains in the House and Senate, I would expect certain members of Congress (e.g., Senators Feingold and Leahy) to push for some anti-death-penalty legislation in 2009. In addition, I suspect an Obama administration is likely to appoint federal judges more inclined to rigorously question state capital convictions (although a heck of a lot of federal judges already do that). I do not expect that we will see the abolition of capital punishment anytime soon, but the expected national political outcomes should further contribute to the death penalty's slow death.
At the state level, the future of the death penalty may be influenced by economics even more than by politics. During tough times, many states may be unwilling and perhaps even unable to spend a lot of resources pursuing capital convictions and death sentences. Even when done "on the cheap" with inadequate funding of defense representation and court systems, operating and defending an active and robust system of capital punishment is a very costly enterprise for state official. Outside of Texas and perhaps one or two other states, I doubt many state officials will be eager to pay regularly the high price of capital cases. And, of course, the broader political environment will shape these funding priorities: a citizenry clamoring for more public works projects (and not clamoring for more executions) makes it much easier for politicians to direct monies toward different kinds of "capital" expenditures.
Some related posts:
- What might a new administration mean for the federal death penalty?
- Boston Globe noticing crime dogs not barking in 2008 campaign
- Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime
- More evidence that the death penalty is dying a slow death on the front lines
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
November 3, 2008
Insider trading leads to former UBS executive being inside prison for 78 months
As detailed in this Reuters story, a former UBS executive is going to have to deal with a whole different kind of insider trading for more than six years in federal prison:
A U.S. judge sentenced a former UBS AG executive to 6-1/2 years in prison on Monday for his role in what prosecutors called the most pervasive insider trading ring since the 1980s. Mitchel Guttenberg, a former institutional client manager in UBS' equity research department, admitted in a guilty plea in February to selling nonpublic information about the bank's stock recommendations.
In handing down the sentence, which includes three years of supervision after his release, Judge Deborah Batts of U.S. District Court in Manhattan said, "from the moment he joined the (UBS) investment review committee he planned to give that information to others to use illegally."
Batts did not fine Guttenberg, who expressed his remorse to his family, the court and his former employer. His lawyer Sean O'Shea described Guttenberg as "a broken man" whose wife had left him, and he was living in his sister's apartment.
Guttenberg was among 13 people, including former employees of Wall Street firms such as Bank of America Corp, Morgan Stanley and Bear Stearns Co Inc, who were criminally charged last year in an insider trading ring....
Guttenberg had pleaded guilty to two counts of conspiracy and four counts of securities fraud. He had faced 78 months to 97 months in prison under sentencing guidelines.
Ah... remember the '80s? Perhaps the decade is making a comeback...
Notable rulings on loss and other sentencing issues in AIG/Gen Re case
Thanks to a helpful reporter, I now have a copy of a notable sentencing ruling in a notable white-collar case out of Connecticut. This AP story provides the background:
A federal judge has ruled that shareholders of American International Group Inc. lost more than $500 million as a result of a scheme to manipulate the financial statements of the world's largest insurance company. The ruling Friday by Judge Christopher Droney means five former insurance executives convicted of the scheme could face up to life in prison under advisory sentencing guidelines.
Four former executives of General Re Corp. and a former executive of AIG were convicted in February of conspiracy, securities fraud, mail fraud and making false statements to the Securities and Exchange Commission. Prosecutors filed court papers citing a study by its expert, concluding the fraud-related losses to AIG shareholders totaled $1.2 billion to $1.4 billion. They cited another methodology by the expert that put the losses at $544 million to $597 million, but said either method is reasonable.
Droney rejected the higher estimate, but said the lower range was reasonable. That finding and a determination that the fraud affected more than 250 victims will increase the advisory guideline sentence range. The guideline range and a sentencing date have not been set yet.
The defendants challenged the estimate, saying there was no loss to investors....
A report by the probation department recommended sentences of 14 years to more than 17 years for each defendant.
The 21-page ruling in US v. Ferguson et al., No. 3:06CR137 (CFD) (D. Conn. Oct. 31, 2008), can be downloaded below:
Supreme Court takes up "right to DNA evidence" case
Though not dealing with a sentencing issue, the Supreme Court granted review today in a case that could have all sorts of ripples through prisoner rights' litigation. Here are the basics of the cert. grant from this SCOTUSblog post:
The Supreme Court agreed on Monday to decide whether a state prison inmate may seek access to DNA evidence for use in pursuing a claim of innocence, by filing a civil rights claim after his trial is over....
In the new DNA evidence case, District Attorney’s Office v. Osborne (08-6), an implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.
The Ninth Circuit Court relied upon Brady in ruling that an Alaska inmate may sue under the 19th Century civil rights law, so-called Section 1983, to discover evidence in the government’s possession in advance of filing a free-standing claim of innocence that would rely, at least in part, upon that evidence. The case involves William G. Osborne of Anchorage, who was convicted of kidnapping, first-degree sexual assault and first-degree assault, and sentenced to 25 years in prison with five years suspended. At Osborne’s trial, his defense lawyer made a strategic decision not to seek additional DNA testing of biological evidence found near the scene of the assault. After his conviction, he began pursuing a post-conviction plea for access to that evidence. If the results turned out to be favorable, he planned to file a claim of innocence in federal court.
The appeal by prosecutors contends that the Brady decision created a right of access to evidence only at the trial stage, not in a post-conviction proceeding, and contended that there is no right to pursue a free-standing claim of innocence following a trial that was free of errors.
Another appellate issue for Senator Stevens?
The latest legal news, as detailed in this CNN report, surrounding Senator Ted Stevens' trial and conviction is both comical and puzzling. Here are the basics:
A juror who vanished during Alaska Sen. Ted Stevens' corruption trial told the judge Monday she lied about her father dying and flew to California for a horse race.
Marian Hinnant was identified as juror No. 4 during the trial. She disappeared while the jury was trying to decide whether Stevens was guilty on seven felony counts.
U.S. District Judge Emmet Sullivan delayed deliberations because Hinnant told officials her father had died and she had to fly to California. Sullivan replaced her a few days later when she wouldn't return telephone calls. The jury convicted Stevens.
Hinnant admitted Monday that her father hadn't died and she was at the Breeders' Cup in Arcadia, California.
Though Senator Stevens clearly has no shortage of issues for raising in any appeal of his convictions, I cannot help but wonder if this quirky juror might present another opportunity for his defense team to develop arguments that might help prevent Senator Stevens from ever serving any time for his (alleged?) crimes.
More evidence that the death penalty is dying a slow death on the front lines
One datum showing the slow death of the modern American death penalty is the very low number of executions nationwide. (There has not been in more than a few executions in 2008 in any state other than Texas.) But an even clearer indication that the death penalty is dying a slow death comes from data showing the reduction of death penalty indictments brought by prosecutors and death sentences imposed by juries. These realities are reflected in this local article from my hometown paper, which is headlined "Death-penalty cases in Franklin County becoming rarer." Here is some data from the article:
Of 106 death-penalty indictments in Franklin County since 2000, only three have resulted in a death sentence. No defendant has been sent to Death Row from the county since 2003....
Death-penalty jurors in Franklin County have been far more inclined to give sentences of life in prison than death. Of 52 death-penalty cases heard by juries since 2000, 20 resulted in life in prison without parole for the defendants, three in a death sentence and the rest in other sentences.
The new USSC crack guidelines ... one year later
Maryland's legal newspaper today has this effective article, headlined "Crack cocaine sentences, one year later." The piece reminds us that the US Sentencing Commission's new crack guidelines have now been in place for a full year, and it also provides a terrific look at how the retroactive application of these new guidelines has played out in one jurisdiction.
Some related posts:
November 3, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack
November 2, 2008
Creating a (merit-based?) circuit court short list for the Prez candidates
In the closing days of the Presidential campaign lots of attention has been given to judicial appointments, including possible appointments to the circuit courts as well as to the Supreme Court. (Recent examples come from Politico and the National Review and the National Law Journal.) Though many have speculated about Supreme Court nominee short lists, I have not seen much buzz on exactly who could be on short lists for nominations to the federal circuit courts.
Of course, the results on Election Day and other national and local political forces will have a profound impact on who gets considered and nominated for openings on the US Courts of Appeals. And, if the Senate has nearly 60 Democrats, a President McCain would have to make bipartisan nominations, while a President Obama would not have to (but still might) worry about Republican opposition to his choices. But, even before this week's election results, perhaps we should start assembling a list of potential talent whom, based on substantive abilities, should be seriously considered for an appointment to the federal circuit courts in a new administration.
As a sentencing nut, my own short/wish list of potential circuit court nominees is comprised mostly of federal district judges and state court judges who have written thoughtful sentencing and criminal justice opinions. Moreover, I genuinely hope that the next president, whomever he may be, will consider nominating to the circuit courts thoughtful federal district and state judges aligned with both political parties. Especially in the arena of sentencing law, I believe perspective matters a lot more than politics. More generally, I have long thought that the work of federal circuit courts benefit from having smart and dedicated judges coming from a lot of diverse legal and social perspectives.
So, dear readers, I hope you will use the comments to help the candidates start putting together a circuit court short list.
Some related SCOTUS short-list posts (both recent and distant):
- Developing a SCOTUS short list of district court judges
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
- Great insights on SCOTUS and criminal justice
- Brave New Justice and sentencing issues
- Will the next SCOTUS nominee have any criminal law background?
Another notable criminal justice ballot proposition to watch in San Francisco
This New York Times article, headlined "San Francisco’s Prostitutes Support a Proposition," provides a thoughtful review of another ballot initiative dealing with an interesting set of criminal justice issues. Here are excerpts:
When Proposition K was added to Tuesday’s ballot, many people likely snickered at the possibility that San Francisco might take its place alongside such prostitute-friendly havens as Amsterdam and a few rural counties in nearby Nevada.
But this week, it became readily apparent that city officials are not laughing anymore about the measure, which would effectively decriminalize the world’s oldest profession in San Francisco. At a news conference on Wednesday, Mayor Gavin Newsom and other opponents seemed genuinely worried that Proposition K might pass....
Supporters of the measure say it is a long-overdue correction of a criminal approach toward prostitutes, which neither rehabilitates nor helps them, and often ignores their complaints of abuse....
The language in Proposition K is far-reaching. It would forbid the city police from using any resources to investigate or prosecute people who engage in prostitution. It would also bar financing for a “first offender” program for prostitutes and their clients or for mandatory “re-education programs.”
One of the measure’s broadest prohibitions would prevent the city from applying for federal or state grants that use “racial profiling” in anti-prostitution efforts, an apparent reference to raids seeking illegal immigrants....
Supporters of the measure accuse the city of profiting from prostitution through fines. They also imply that laws against prostitution are inherently racist because minorities are disproportionately arrested. Proposition K, they say, will increase safety for women, save taxpayer money, and cut down on the number of murders of prostitutes at the hands of serial killers....
Anti-Proposition K forces paint grim pictures of girls and women from across the country held against their will in dark and dangerous brothels here, forced into unsafe sexual behavior, and often beaten, intimidated and raped....
The measure seems particularly abhorrent to San Francisco’s district attorney, Kamala D. Harris, who has made fighting human trafficking a priority. “I think it’s completely ridiculous, just in case there’s any ambiguity about my position,” Ms. Harris said. “It would put a welcome mat out for pimps and prostitutes to come on into San Francisco.”
Central to Ms. Harris’s objections is the theory that prostitution is a victimless crime. Instead, she said, it exposes prostitutes to drug, gun and sexual crimes, and “compromises the quality of life in a community.” She also dismisses the argument that prostitutes would be more likely to come forward if their business were not illegal.
Some recent related posts:
- Sentencing and drug policy reform initiatives to watch on Election Day
- Dueling Oregon initiatives on drug sentencing reform
- California's confusing efforts to do criminal justice by initiative
- "America's Forgotten War"
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"