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February 20, 2008

Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?

This phrase in John McCain's speech last night really caught my attention as a sentencing geek: in his most-quoted line, Senator McCain cautions against "the false promises and failed policies of a tired philosophy that trusts in government more than people."  Though I know this is means as an attack on liberal social policies, it strikes me as an especially effective attack line against "tough-on-crime" political rhetoric that seeks to increase incarceration for any and all criminal offenses.

Consider this issue, for example, in the context of white-collar prosecutions and sentencing.  After the Enron scandal, sentences for white-collar crimes went up dramatically.  But this "tough-on-crime" approach did not prevent all the mortgage fraud and predatory practices that helped contribute to the current economic woes.

Of course, an even more obvious example is the seemingly endless "war on drugs."  As long sentences for all sorts of non-violent drug crimes continue to be imposed,  I cannot think of a more fitting setting in which we see, year-in and year-out, politicians promoting "false promises and failed policies of a tired philosophy that trusts in government more than people."

February 20, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (14) | TrackBack

Corrupt GOP contributor gets long below-guideline sentence

As detailed in this Washington Post story, a high-profile corruption sentencing took place yesterday in which the defendant got a dozen years in prison and should feel lucky he did not get a lot more:

Brent R. Wilkes, a California defense contractor and prominent GOP campaign contributor, was sentenced to 12 years in federal prison yesterday for lavishing a Republican congressman with money, prostitutes and other bribes in exchange for nearly $90 million in work from the Pentagon.  Wilkes, 53, was convicted in November of 13 felony crimes including bribery, conspiracy and fraud for giving the gifts to former representative Randy "Duke" Cunningham (R-Calif.), who is serving an eight-year prison term for accepting millions in bribes from Wilkes and others.

The sentence by U.S. District Judge Larry Burns in San Diego was far smaller than the 25-year term federal prosecutors had sought or the 60-year term urged by federal probation officers. U.S. Attorney Karen P. Hewitt said nonetheless that Wilkes "has earned every day of the sentence he received" and that the prison term "reflects the egregiousness of the corrupt conduct."

Wilkes has steadfastly maintained his innocence since being charged a year ago, saying his dealings with Cunningham were legitimate and blaming wrongdoing on others. "I am a man who cares deeply for this community, for my family, for my country," Wilkes said in a brief statement to the court, the Associated Press reported.

The judge said he was troubled by Wilkes's failure to accept responsibility for his crimes. "If you were to do the right thing about this, today is the day to own up," the judge told Wilkes, according to the AP.  "You have no sense of contrition.  You had this corrupt relationship with the congressman and you profited from it."

February 20, 2008 in Offender Characteristics | Permalink | Comments (0) | TrackBack

February 19, 2008

Add North Carolina to the list of states strugging with prison population problems

This AP story highlights yet another state dealing with the economic and policy challenges of an ever-expanding prison population.  Here are details:

The rapid growth in North Carolina's prison population may force lawmakers to spend more tens of millions of dollars to expand the state prison system, according to recent population projections. The growth has cooled but not enough to ward off the need for new construction, said Susan Katzenelson, executive director of the state Sentencing and Policy Advisory Commission. The commission has suggested shortening some prison sentences to address the problem, but lawmakers haven't acted on the advice.

Last year, prison expansion projects cost more than $32 million. Those projects included adding 504 beds at Scotland Correctional Institution, a 1,000-bed high security facility in Laurinburg, and 252 beds at Alexander Correctional Institution, a 1,000-cell close custody prison in Taylorsville. Despite the construction, the state's prison population is expected to outstrip capacity this year. Projections show a 6,000-bed shortfall by 2017....

Sen. Ellie Kinnaird, co-chairwoman of a committee that helps set the Department of Correction budget, said her colleagues must consider alternatives. The Sentencing and Policy Advisory Commission has suggested subtle changes be made to sentencing laws to shorten some prison sentences that Kinnaird, a Carrboro Democrat, said could reduce the prison population by up to 1,000 inmates.

Lawmakers have been unwilling to consider the recommendations. Committee member Rep. Carolyn Justus, a Hendersonville Republican, doesn't like the idea of shortening prison terms, though she said she may consider looking at sentencing alternatives for nonviolent criminals.

Recent coverage of other states' struggles with the various costs of large prison populations:

February 19, 2008 in Scope of Imprisonment | Permalink | Comments (31) | TrackBack

When might the USSC have some post-Gall/Kimbrough data to share?

It has now been more than two full months since the Supreme Court decisions in Gall and Kimbrough, and I am really wondering if these rulings have had a significant impact on district court sentencing outcomes.  From various conversations and news reports (and early judicial scholarship), Gall and Kimbrough have been viewed as dramatically important statements of the scope of post-Booker discretion that district judges now possess.  But the proof is in the data, and the US Sentencing Commission has not released any post-Gall/Kimbrough data (even though probably more than 10,000 sentences have now been imposed since Gall and Kimbrough came down).

I do not fault the USSC on this data front; the Commission has surely been busy dealing with crack retroactivity issues and other matters.  But, as regular readers know, I sure like my sentencing data, and I am starting to get an itch for up-to-date data concerning the latest sentencing work from the federal district courts.

February 19, 2008 in Gall reasonableness case | Permalink | Comments (2) | TrackBack

A must-read for all would-be sentencing reformers

Though the paper does not mention sentencing once, this new work soon to be published in the Cornell Law Review is a must-read for any and all would-be sentencing reformers. The piece is titled, "Blinking on the Bench: How Judges Decide Cases," and here are excerpts:

In this Article, we argue and attempt to demonstrate that neither the formalists nor the realists accurately describe the way judges make decisions, but that key insights from each form the core of a more accurate model. We propose a blend of the two that we call the "intuitive-override" model of judging.  Supported by contemporary psychological research on the human mind and by our own empirical evidence, this model posits that judges generally make intuitive decisions but sometimes override their intuition with deliberation.  Less idealistic than the formalist model and less cynical than the realist model, our model is best described as "realistic formalism." The model is "realist" in the sense that it recognizes the important role of the judicial hunch and "formalist" in the sense that it recognizes the importance of deliberation in constraining the inevitable, but often undesirable, influence of intuition....

As we demonstrate below, judges are predominantly intuitive decision makers, and intuitive judgments are often flawed.  To be sure, intuition can lead to accurate decisions, as Malcolm Gladwell documents in his bestseller, Blink, while deliberation can lead to error, as any court observer knows.  But intuition is generally more likely than deliberation to lead judges astray.  We suspect this happens with some frequency, but even if it is uncommon, millions of litigants each year might be adversely affected by judicial overreliance on intuition.  Therefore, the justice system should take steps to limit the impact of what we call "blinking on the bench."

Eliminating all intuition from judicial decision making is both impossible and undesirable because it is an essential part of how the human brain functions. Intuition is dangerous not because people rely on it but because they rely on it when it is inappropriate to do so. We propose that, where feasible, judges should use deliberation to check their intuition.

I suspect that anyone who has ever done any serious sentencing work can identify fully with the concept of an "intuitive-override" model of judging and also can report instances in which their clients (whether a defendant or the government) were "adversely affected by judicial overreliance on intuition."  What's especially interesting is that this article's proposed "solution" to "blinking on the bench" sounds a lot like the post-Booker sentencing model that has emerged after the Supreme Court's follow-up decisions in Rita and Gall and Kimbrough.

February 19, 2008 in Who Sentences? | Permalink | Comments (5) | TrackBack

Shouldn't we have tougher recidivism sentencing laws for DWI?

This Ohio story about an upcoming DUI sentencing has my blood boiling again about the failure of states to adopt tough recidivism sentencing laws to respond to the very risky behavior of repeat drunk driving.  Here are the basics:

Three decades of drunken driving have finally caught up with 19-time offender Stephen W. Wolf thanks largely to a pair of quick-acting young men.  Wolf, 50, of Hamilton, faces up to 10 years in prison when he is sentenced today on his 19th drunken-driving conviction....

Wolf's lawyer, Robert Qucsai, says Wolf should not be judged by his driving record alone. "He's a really personable guy. He's really easy to talk to.  He's not nearly as bad as his record would reflect," Qucsai said Monday.  Even Qucsai acknowledges that people ask him: How could Wolf still be driving? Qucsai's answer: "It's not like he has a valid license."

Plenty of people drive despite having a suspended or revoked license, authorities say, and locking them up is the only way to stop them from driving....  Authorities say Wolf likely would not even be in court if not for Alex Heher, 20, of Fairfield Township, and his passenger, Adam Trantham, 19.  They followed Wolf after seeing him in a hit-and-run crash July 13....

Assistant Prosecutor John Heinkel... said it would be an over-reaction to blame the court system for Wolf's lengthy record without long-term punishment. "My guess would be that, in some of the prior cases, there were probably issues as to the (alcohol) testing, and negotiated pleas were worked out," he said....

Back in the 1970s when Wolf first started drinking and driving all drunken-driving charges were misdemeanors.  Those charges carried little or no jail time, no matter how many times a drunken driver was snared, Heinkel said.  Now, repeat drunken drivers are slapped with feloniesand a 2004 Ohio law adds one to five years for offenders with at least five drunken-driving convictions during a 20-year span.

The article rightly notes that, over the past three decades, drunk driving sanctions have become more severe. And to good effect: as this 2002 report details, considerable research "over 40 years has shown conclusively that good laws that are strongly supported and enforced with meaningful penalties reduce drunk driving."  Unfortunately, as this report also details:

Every state has an elaborate system of drunk driving laws, enforcement, courts, and punishment, but these systems do not work as well as they should.  Arrest rates are low.  Complex laws allow some offenders to escape any punishment. Other offenders can avoid a drunk driving conviction through a plea bargain. Sanctions are not applied consistently.  Sentence requirements are not completed.  These problems are not well known because many states do not have good record systems.  Drunk drivers have little fear of being stopped, arrested, convicted, and punished — so they continue to drink and drive.

In California, a petty theft following two drug offenses can be enough to get someone a mandatory sentence 25-year-to-life, but even Ohio's "tougher" DWI law only adds a few years for having at least five drunken-driving convictions.  I guess we as a society are not really as concerned about the loss of life as some death penalty abolitionist folks might have one believe.

February 19, 2008 in Offender Characteristics | Permalink | Comments (13) | TrackBack

Questioning law school priorities in instruction and programming

164_programsanimallaw As Dan Filler notes in this post at The Faculty Lounge, at the terrific U Penn Eighth Amendment symposium last week I complained about the over-emphasis on capital punishment instruction and related programming in law schools.  Here is how Dan nicely summarizes my comments:

He argues (his stats, not mine) that about 150 law schools offer courses on the death penalty, while only about 30 offer general sentencing classes. And Sharon Dolovich and Margo Schlanger piped up that there are no more than 5 lecture-style courses on the constitutional law of incarceration and corrections.  Doug contends that this reflects the preferences of law facultywho find the death penalty a glossy and compelling issueand also serves to reproduce this view of the world on the part of students. He argues that those seeking real change in criminal justice policy should refocus students on the big picture issues like mass incarceration, oversentencing, prison conditions, and the like.

I am drawn back to these comments today upon tripping across this law school website that indicates that nearly 100 law schools have a course on animal law.  The website explains: "Nearly half of US law schools teach an overview course and a growing number of schools now offer clinical opportunities. Lewis & Clark Law School has the most developed animal law program offering six courses, including summer courses, moot court, and the Animal Law Clinic."  To my knowledge, though there are death penalty clinics at many law schools (including in states that do not have the death penalty), I am not aware of any established sentencing clinics or prisoner rights' moot courts. 

I suppose it is a sad and telling commentary that many law schools have devoted more resources toward having students question the legal treatment of animals than the legal treatment of criminal offenders.  Perhaps advocates for sentencing and corrections reform need to find some incarcerated people with sad puppy-dog eyes so that humans locked in cages will evoke as much sympathy in elite law schools as animals locked in cages.  Then again, if the human has committed a brutal murder and been sentenced to death row, the offender is then likely to get lots of attention no matter what his eyes look like.

February 19, 2008 in Who Sentences? | Permalink | Comments (18) | TrackBack

Sixth Circuit back in action with three sentencing rulings

Coming back strong after a long weekend, the Sixth Circuit today has handed down three opinions that all have significant sentencing discussions.  A very quick read of these three opinions suggests that none breaks significant new ground, but all three are worthy of attention for their continued elaboration of post-Booker and post-Gall appellate review realities:

February 19, 2008 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

One federal district trying a single judge approach to crack retroactivity

This new article in the Kansas City Star, headlined "Sentence corrections possible in crack cocaine cases," reveals that one federal district has adopted an interesting (and legally questionable?) approach to crack retroactivity matters:

Late last month, Chief U.S. District Judge Fernando Gaitan issued an order establishing the sentence-reduction procedure for western Missouri. Requests will be funneled to U.S. District Judge Ortrie Smith, who will make the final decisions after receiving input from a public defender, two prosecutors and several U.S. probation officers....

The [US Sentencing] Commission estimated last year that about 3,800 inmates nationwide could be released within a year after the decision takes effect March 3.  In western Missouri, about 60 inmates could be released in the first few years.

The sentence reductions are not automatic. A variety of factors, including public safety considerations, will play a role in whether an inmate qualifies, said Kevin Lyon, the chief probation officer in Kansas. Lyon said his office will notify Smith of any public safety questions that arose either at the offender’s initial arrest or since incarceration. Gregg Coonrod, an assistant U.S. attorney who is handling claims for the government, said his office also would watch for inmates who could present a problem on their release. “We’ll argue over the ones who are worth arguing over,” Coonrod said.

February 19, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack

More on technocorrections for sex offenders

This new article in the St. Louis Post-Dispatch, headlined "Technology keeps eye on sex offenders," provides a useful overview of various technocorrection issues surrounding sex offender tracking:

Nobody wants them.  But everyone wants to know where they are.  So cities and states are forging new laws and using the latest technologies to keep tabs on hundreds of thousands of convicted sex offenders.

Their home addresses are considered public information.  Some wear bracelets that can be tracked by satellite and cell phone towers. Others are forced to give their online identities and screen names to parole officers.  Some communities are limiting where offenders can live.

The ability to track them, safety advocates say, is one of the best ways to protect the public.  If you know where the bad people are, they say, it's easier to keep an eye on them. Or to avoid them altogether. Critics, however, say new laws and restrictions make it impossible for sex offenders to be anything more than social outcasts. And there are those who worry about putting so much emphasis on what they characterize as a small piece of the sexual crime problem....

What's changing is the ease of access and the options available. More than 600,000 registered sex offenders can be found in state and national databases, run both by government and private industry....

Sparked by the 2005 rape and murder of a 9-year-old Florida girl, many states are taking a more forceful approach, particularly against violent offenders or those who sexually assault children.  A hallmark of Florida's Jessica Lunsford Act is mandatory lifetime GPS tracking after an offender is released from prison.

The idea has caught on, with dozens of states enacting similar laws. Such monitoring costs around $20 a month for each offender. Generally using a mixture of GPS and cellular networks, offenders can be monitored passively or actively. Their movements might be checked only if there is a question about recent travels, or they might be watched constantly by someone at a computer screen....

It's also possible to declare certain areas, or even people, off-limits through the use of virtual fences and personal monitors. Previous victims, for example, could be notified whenever their attacker is nearby, said Daniel Graff-Radford, a vice president with Omnilink Systems, a Georgia company that monitors offenders for 100 agencies in 38 states....

And in what some characterize as an extreme variation of tracking technology, an Ohio company is promoting a device — which anyone could buy — that would vibrate whenever a bracelet-wearing sex offender comes within 50 yards.

Some related posts on sex offender GPS tracking:

February 19, 2008 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

February 18, 2008

Three brief queries about capital appellate briefing realities

Prior posts about the Penry case and death penalty costs have me again interested in doing some arm-chair empiricism about the time, money and energy that gets devoted to litigating capital cases.  Specifically, I'd like to estimate the number of appellate briefs that have been filed in three distinct death penalty settings.  So, here are my queries:

1.  How many appellate briefs were filed (in toto counting all parties and amici briefs filed in all direct and collateral appeals) in the Johnny Paul Penry case in Texas?

2.  How many appellate briefs have ever been filed, in toto, concerning lethal injection protocols in courts nationwide?

3.  How many appellate briefs have ever been filed, in toto, concerning death penalty cases in California?

I ask these related, but quite distinct, question for various reasons:

I would be grateful to anyone who takes a little time to do some real research to provide educated guesses for all these questions.  Without doing any research, I will throw out some ballpark numbers.  I would guess: 500 appellate briefs were filed in the Penry litigation; 1500 appellate briefs have been filed concerning lethal injection protocols; and 10,000 appellate briefs have been filed in capital cases in California.

I am sure these guesses are way off, but I'd love to hear other guestimates from readers in the comments.

February 18, 2008 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Examining realities of crack sentencing reform

USSC Commissioner John Steer and attorney Mark Allenbaugh have this new Findlaw piece, titled "The State of Federal Cocaine Sentencing Policy: Will Congress Soon Finish What the U.S. Sentencing Commission Started?".  Here is how it ends:

[T]he Justice Department is rightly concerned about public safety, and a greater emphasis on re-entry programs is welcome.  Congress, therefore, should carefully monitor developments.

The Sentencing Reform Act of 1984 envisioned a very limited, well-regulated remedial process in which judges make their sentence reduction decisions within parameters set by the Sentencing Commission. In the wake of U.S. Supreme Court decisions granting greater judicial sentencing discretion, there may be a tendency for some to exceed intended boundaries in these special, limited-purpose retroactivity proceedings. If that becomes a significant problem, Congress should determine if remedial legislation is warranted.

Finally, Congress also needs to fully understand that a more complete, just resolution of the entire crack/powder excessive disparity issue is now squarely in its hands and urgently needs prompt legislative action.  As Commission Chairman Judge Ricardo Hinojosa recently testified before the Senate Judiciary Committee, "[t]he Commission believes that there is no justification for the current statutory penalty scheme for powder and crack cocaine offenses," and "the Commission is of the opinion that any comprehensive solution to the problem of federal cocaine sentencing policy requires revision of the current statutory penalties and therefore must be legislated by Congress."

February 18, 2008 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

Wondering about death and dollars in Ohio and Texas

Some commentators are questioning my (inflated?) guess that Texas may have spent a billion dollars seeking the death penalty for Johnny Paul Penry over the past three decades.  Though I am not sure my economic guess is reasonable, I am sure that it is a serious problem that nobody has seriously investigated (or even seriously asked) how much money has been devoted to trying to have Texas execute Johnny Paul Penry for his 1979 crime.

I stress this issue now because the national spotlight is turning to Ohio and Texas in the campaign for the presidency.  Interestingly, these two states have had the most executions over the last three+ years: Ohio has had 18 executions from 2004 to the present; Texas has had 92 executions from 2004 to the present.  This fact alone justifies a serious examination of the death penalty's benefits and costs as the national political focus turns to the states that are modern national leaders in administering the death penalty.

Of particular concern to me, as the Penry discussion highlights, is how much money Ohio and Texas have spent on the social program of capital punishment since 2004.  Though I cannot speak for Texas, I know Ohio is facing very difficult economic times (as shown in this news report, noting that Governor Strickland recently announced having to "cut up to 2,700 state jobs and shutter two mental hospitals as part of belt-tightening plan to offset a projected $733 to $1.9 billion shortfall").  Disturbingly, I never hear any discussion about the significant costs of a capital punishment system or about the potential savings that a move away from the death penalty might bring in Ohio and elsewhere.  (Weirdly, the ABA's massive moratorium reports covered every death penalty issue except the two most practically important: costs and execution protocols.)

As regular readers know from prior posts, I tend to favor the death penalty in theory.  But I am always bothered by the lack of sober economic analysis concerning the death penalty's real costs, especially in states like Ohio and Texas that actually execute killers.  I wonder if any of the candidates or their staffs or public policy groups might start talking about these issues as Ohio and Texas become the hot political battleground states over the next two weeks.

February 18, 2008 in Death Penalty Reforms | Permalink | Comments (27) | TrackBack

February 17, 2008

More remembering of the Clinton pardon ugliness

Thanks to this post at Pardon Power, I see another commentary today recalling the pardon scandal that Bill Clinton created his last day as president.  Though this op-ed, titled "Remembering and then forgetting the Clintons," covers a range of issues, and these excerpts highlight the pardon story:

Before Bill and Hillary jetted to their new New York home following George W. Bush's inauguration, he told supporters and former administration officials at a crowded Andrews Air Force Base hangar, "We are not going anywhere!"... The thought at the time was that he who would be free of the White House's trappings and scandals and could help propel the Democrats back to power as the majority party in Congress. 

But, when presented with a fresh start, Clinton made no use of it.  The same clouds of scandal and controversy, which cast shadows over HIS entire presidency set in at the beginning of his post-presidency.  Clinton garnered unwanted publicity for a greedy duo of mini-scandals first, by lifting several thousands of dollars of White House furniture and his pursuance of a high-priced office in a palatial New York City high-rise. 

Then there was his pardon of fugitive-financier Marc Rich, who had been on the run for evading millions of dollars in taxes and doing business with the Iranian government while it held American hostages? There was an indissoluble link between the pardon and the millions of dollars given to the Clintons by Rich's ex-wife, Denise, through campaign contributions, donations to the presidential library and even personal gifts. Despite his assurances at the time to the contrary, the pardon had all the appearances of a quid pro quo.  Clinton was on his own, calling friendly reporters and opinion-makers trying to explain his pardon.

Democrats, who had defended all of Clinton's intolerable actions in office, openly castigated the former president. Daily, Democratic members of Congress made the rounds on the 24-hour cable news channels to express their disgust for Clintons' departing actions.  Even The New York Times reported at the time that the Clinton/Rich scandal had a dramatic impact on the Democratic Party's fund-raising efforts. Various donors, who were being hit up at the time for campaign cash, cited the "cash for pardons" scandal as a key factor in their decision not to give.

Shortly after he left office Democrats just wanted Clinton to go away, becausethey'd had enough.  Just last week, Hillary all but guaranteed that her husband wouldn't be the source of scandal in her White House if she was elected president. How could she be so confident?  She can't control him when he's out on the campaign trail.

Some recent related posts:

February 17, 2008 in Clemency and Pardons | Permalink | Comments (5) | TrackBack

After three decades (and a billion dollars wasted), Penry gets a life sentence

311xinlinegallery The AP here details remarkable final chapter to an infamous and telling Texas capital punishment story:

The state will not seek the death penalty against convicted killer Johnny Paul Penry in an agreement that will require Penry to serve three consecutive life sentences without the possibility of parole, officials said Friday.  Polk County Criminal District Attorney William Lee Hon reached the agreement with attorneys for Penry, who was convicted of raping and fatally stabbing a woman at her home in Livingston in 1979....

The agreement means Penry's case will not have to go back to a jury to consider his punishment for a fourth time. In 2006, the U.S. Supreme Court, acting on an appeal from the Texas Attorney General's Office, refused to reinstate Penry's death sentence, clearing the way for a new penalty phase....

Penry has spent more than half of his life on death row for the slaying of 22-year-old Pamela Moseley Carpenter, the sister of former Washington Redskins kicker Mark Moseley.  Penry confessed to attacking the woman and stabbing her with scissors....  Mark Moseley said that while Friday's agreement brought the tragedy back to the forefront and made him feel "almost like it just happened again," he was glad to get the legal situation behind him.

Penry's longtime attorney, John Wright, said he was pleased with the decision.  "They've finally come around to what should be done," Wright said. "I've been asking for a life sentence since November 1979."  Wright said, though, that "there aren't any winners in these cases. ... I'm not claiming a victory." 

Penry's attorneys had contended their client, who has said he believes in Santa Claus, has the reasoning capacity of a 7-year-old.  While psychological tests have put Penry's IQ between 50 and 60, at least five juries have found Penry to be legally competent to stand trial or have rejected defenses based on mental retardation.  The high court in 2002 ruled mentally retarded people, generally considered having an IQ below 70, may not be executed....

"Why don't they just lock me up and throw away the key?" Penry told The Associated Press in 2001. "That's all I want."   

The Supreme Court first agreed to hear Penry's case in 1988, and the following year overturned his death sentence on 5-4 vote.  In 2000, he got within about three hours of execution when the justices halted the punishment.  Penry was again sentenced to death, which was voided in 2001 by the Supreme Court on a 6-3 vote.  Both times the high court reasoned the jury was not allowed to properly weigh Penry's alleged retardation.  A new trial in 2002 led to a death sentence that was reversed in 2005 by the Court of Criminal Appeals, which ruled 5-4 to send Penry's death sentence back for another punishment hearing. It was that decision the attorney general's office appealed to the high court.

So, let's review: in Penry's case there was no question about guilt, only whether he would get a life sentence or the death penalty.  Because Texas prosecutors for 30 years were not content with anything less than a death penalty, they put three juries through the agonizing experience of having to condemn a person to death.  And, in part because prosecutors were so effective in getting many juries to return a death verdict, this case made its was to the US Supreme Court twice and was the subject of dozens of lower court rulings. 

I wonder how much time, money and energy was spent by Texas and US taxpayers trying to figure out Johnny Paul Penry's fate.   Given the estimate that over $2.3 million extra dollars are spent on an average capital case in Texas, I seems reasonable to guess that over $1,000,000,000 has been spent by US and Texas taxpayers to decide whether Johnny Paul Penry should be executed for his crime!  And, after all this time and money was devoted to this capital case, it ends with the LWOP sentence that the defense has been urging for nearly three decades.  I wonder how many underfunded local police forces or local schools or crime victim funds or roads construction crews could have been more productive than was the criminal justice system with this billion dollars wasted by Texas prosecutors trying to have the state kill Johnny Paul Penry for his admitted crime.

The particular irony in the Penry case is that prosecutors' pursuit of the death penalty lead to accomplishments, but mostly by those favoring death penalty abolition.  The time and money spent on the Penry case surely diverted some Texas prosecutors from spending time and money pursuing other capital cases.  Moreover, the two Supreme Court Penry decision were critical catalysts for the Court's ultimate ruling in 2002 that the Eighth Amendment demands a categorical ban on the execution of all persons who suffer from mental retardation.  So, to be accurate, the billion dollars invested by Texas prosecutors in the Penry case did have some positive pay-off — but really only for those who oppose capital punishment.

Some related posts on the extraordinary economic costs of capital punishment:

February 17, 2008 in Death Penalty Reforms | Permalink | Comments (15) | TrackBack