Sentencing Law and Policy

More details on the Huckabee clemency grant that aided suspected cop killer

PS Ruckman here at Pardon Power and CNN in this new story are adding details to what we now know about the form of clemency granted to Maurice Clemmons, the chief suspect in the fatal shooting of four police officers in Washington state.  Here is some of the new CNN coverage:

Nearly 10 years ago, Maurice Clemmons pledged to make a fresh start. "I come from a very good Christian family and I was raised much better than my actions speak," Clemmons said in a clemency application brief to then-Arkansas Gov. Mike Huckabee in 2000.  "I'm still ashamed to this day for the shame my stupid involvement in these crimes brought upon my family's name."

Clemmons was 27.  He'd spent the past 11 years in an Arkansas prison, convicted of offenses including robbery, burglary, theft and taking a gun to school.  He was facing a 95-year sentence.

A decade later, Clemmons is the subject of an intense manhunt in Washington state, suspected in the deaths of four Lakewood, Washington, police officers who were shot to death Sunday as they met in a coffee shop before starting their shifts.  Authorities have said Clemmons is believed to have entered the Forza Coffee Company and opened fire on the officers with no warning....

In 2000, Clemmons told Huckabee that the crimes occurred when he was 16, had just moved to Arkansas from Seattle and had fallen in with the wrong crowd.  "Where once stood a young 16-year-old misguided fool ... now stands a 27-year-old man, who has learned through the 'school of hard knocks' to appreciate and respect the rights of others," his petition to Huckabee said.

Huckabee commuted Clemmons' sentence in 2000, citing his young age at the time of sentencing, making him eligible for parole.  It was granted in July 2000, after he told Arkansas parole officials that he "just wants the opportunity" and "is not the same person he was when he came in," the documents said....

In his 2000 brief to Huckabee, Clemmons said his mother had died while he had been in prison, providing him with further motivation to turn his life around. "I have never done anything good for God, but I've prayed for him to grant me in his compassion the grace to make a start," he said. "Now, I'm humbly appealing to you for a brand new start."

But after receiving a second chance, Clemmons was apparently unable to stay on the right side of the law, according to documents and authorities in Arkansas and Washington. Arkansas parole board documents show that he was back in prison by September 2001.  The Arkansas Democrat-Gazette reported that he was arrested for aggravated robbery and theft and taken back to prison on a parole violation.  The paper said he was not served with the new arrest warrants for the robbery and theft charges until he was paroled three years later in 2004.  His attorney argued that the charges should be dismissed because too much time had passed, and prosecutors complied.

Huckabee went on to become a 2008 Republican presidential candidate and has not ruled out a second try for the White House in 2012.  In a statement Sunday night, his office said Clemmons' commutation was based on the recommendation of the parole board that determined that he met the conditions for early release.

"He was arrested later for parole violation and taken back to prison to serve his full term, but prosecutors dropped the charges that would have held him," the statement said.  "Should he be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state."

Clemmons is believed to have moved to Washington in 2004.  The Pierce County Sheriff's Department said in a statement that he was recently charged in the assault of a police officer and rape of a child.  County court records posted online show that he spent several months in jail and was released on $150,000 bail Tuesday, days before the shootings.

As these details highlight, this high-profile story could not only impact public and political opinions on clemency grants, but also public and judicial opinions on whether violent juvenile offenders generally should or even constitutionally must be given the opportunity for parole when sentenced to very long prison terms.  Though I doubt the Justices' views in the juve LWOP cases of Graham and Sullivan will be unduly influenced by a single tragic offense, I think many juve offenders who have turned their lives around while in prison will be cursing Maurice Clemmons for some time to come.

Significant Ninth Circuit ruling on guideline loss calculations in fraud sentencings

Today a Ninth Circuit panel has issued an important new ruling, and created a circuit split, concerning the calculation of loss under the federal sentencing guidelines for economic frauds.  The ruling comes in US v. Berger, No. 08-50171 (9th Cir. Nov. 30, 2009) (available here), which starts this way:

Defendant-Appellant Richard I. Berger appeals the sentence imposed by the district court following our affirmance of his conviction for twelve counts of bank and securities fraud. Berger argues that, in sentencing him on remand, the district court erred by: (1) not adhering to the civil loss causation principle in finding shareholder loss, as described by the Supreme Court in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 342-48 (2005); and (2) applying an erroneous standard of proof in determining total loss for sentencing enhancement purposes.  While we decline to extend the Dura Pharmaceuticals principle to criminal securities fraud, we conclude that the district court’s loss calculation approach was nevertheless flawed.  Thus, although we conclude that the district court used the correct standard of proof in determining the total loss, we vacate Berger’s sentence and remand to the district court for resentencing.

As the Ninth Circuit panel notes in Berger, the Second and Fifth Circuits have both expressly adopted the civil loss causation principle of Dura Pharmaceuticals in the context of calculating loss for guideline sentencing purposes.  In light of this new Berger ruling and the potential importance of this issue in many white-collar sentencing cases, it may be only a matter of time before the Supreme Court needs to get in the mix on this guideline-calculation federal sentencing matter.

SCOTUS finally grants cert on important "good time" federal sentence calculation issue

As detailed in this SCOTUSblog post, the Supreme Court this morning granted cert in three new cases, two of which involve criminal justice matters.  Though constitutional law fans may be most interested in Renico v. Lett (09-338), which examines double jeopardy limits after a state judge declared a mistrial on certain grounds, sentencing law and policy fans should be most excited by the grant in a long-running debate concerning the calculation of federal good time credits.  Here is SCOTUSblog's effective summary of this technical, but very important, new sentencing case:

In a second new case, the Court will spell out how the federal prison system is to calculate the credits that inmates receive for good conduct while behind bars.  The issue in Barber, et al., v. Thomas (09-5201) is how to interpret the federal law that provides up to 54 days “at the end of each year of the prisoner’s term of imprisonment.”  Bureau of Prisons officials interpret “term of imprisonment” to mean time served, not the sentence imposed — a policy that results in seven fewer days of available credit for each year of the actual sentence, the petition argued.  Lower courts are split on the question.

I know that some federal defenders and others have been buzzing about this issue for a very long time, in part because this matter impact every federal defendant sentenced to more than one year in prison.  And my first instinct is that a ruling for federal defendants could significantly move up release dates for some long-serving federal prisoners.

SCOTUS summarily reverses Eleventh Circuit's rejection of capital defendant's IAC claim

Continuing its recent trend of doing capital case error-correction through summary reversals, the Supreme Curt this morning issued this per curiam opinion in Porter v. McCollum (08-10537) reinstating a district court's habeas grant on the ground of ineffective assistance of cousel.  The grant had been reversed by the Eleventh Circuit, but here is how the SCOTUS opinion begins reversing the Eleventh Circuit's work:

Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man.  His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce that evidence violated his Sixth Amendment right to counsel and granted his application for a writ of habeas corpus.  The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984).  Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. 

How will Mike Huckabee clemency grant to suspected cop killer impact crime and justice debates?

As this CNN article explains in its morning coverage of a still-developing crime story, former Arkansas Governor Mike Huckabee has a notable place in backstory of a suspected cop-killer:

The suspect in the fatal shooting of four police officers kept authorities at bay early Monday -- seven hours after a massive manhunt tracked him to a house in an east Seattle neighborhood.

Authorities had been looking for Maurice Clemmons in connection with an "ambush" Sunday morning at a coffee shop near Tacoma in Pierce County. Four officers -- three males, one female -- died in the attack. Authorities early Monday started identifying Clemmons as a suspect, rather than as someone wanted for questioning, a change that they did not explain.

About 8 p.m. Sunday, police received word that Clemmons had holed up in a home in the Leschi neighborhood. Police blocked off streets and asked residents to stay inside with their doors locked.

Clemmons is a convicted criminal with a long rap sheet who had a 95-year prison sentence commuted in 2000 by then-Arkansas Gov. Mike Huckabee, said Pierce County sheriff's spokesman Ed Troyer. Huckabee, a Republican presidential candidate in 2008, is considering a run for president in 2012. "Should [Clemmons] be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state," Huckabee's office said in a statement Sunday night.

It perhaps goes without saying that this high-profile event, like the infamous Willie Horton ads two decades ago, could further contribute to giving all clemency grants a very bad name and likely will make governors and presidents even more skittish about how they use their clemency power. Of course, maybe this is how it should be if governors and presidents are seriously considering granting clemency regularly to defendants with a risk profile that seems as significant as the defendant's in this tragic case.

"Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too)"

The title of this post is the headline of this new article by Doug Keller now available via SSRN. Here is the abstract:

This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases—and only in illegal re-entry cases.  The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels.  In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years—costing taxpayers up to $200,000—because of a single prior conviction that could have occurred years or even decades ago. Indeed, a defendant who qualifies for the enhancement will often spend more time in federal prison for his prior conviction (under the guise of being punished for illegal re-entry) than he spent in prison originally for the prior conviction.  No other federal crime is punished based primarily on what the defendant previously did.  And the crimes that trigger the 16-level increase are not the worst of the worst, as simple assault (throwing a rock at a car), minor threats (“Give me $10 or I’ll key your car”), and petty property damage (causing $35 worth of damage to another’s property with a match) can trigger the 16-level increase.  That means that a rock thrower can receive the same enhancement as a terrorist, child molester, murderer, or rapist.

Despite the unusual nature of the enhancement, the Commission has never provided a justification for it, nor is one apparent.  Moreover, the enhancement undercuts Congress’s goal of reducing sentencing disparity and mandate sentences that are disproportionate to the crime of illegal re-entry.  This article argues that this regime must come to an end. While courts were previously powerless to do anything about the Commission’s indiscriminate decision making, that is no longer the case. Since the Supreme Court held that the Guidelines are not mandatory (fixing a constitutional defect), courts must now evaluate the reasonableness of the Guidelines themselves before imposing a sentence.  Even a cursory examination of the prior-conviction enhancements shows that they are unreasonable and should not be followed, even in the typical case.

Interesting California ruling on juries and medical marijuana

Thanks to How Appealing, I discovered this interesting ruling from one of California's Courts of Appeal concerning a state marijuana prosecution.  As this article in the San Diego Union-Tribune explains, this court "ruled that exactly how much marijuana a medical-marijuana user can legally possess is a question that jurors should decide, and using limits defined in state law is improper." Here's more:

Nathaniel Archer of San Diego was appealing his 2007 convictions for cultivating and possessing marijuana. Archer was a medical-marijuana patient who was arrested by San Diego police with 98 pot plants in his residence and an additional 1.72 pounds of dried marijuana.

He was convicted and sentenced to probation. The appeals court reversed his convictions for possession of the drug, concluding that it was wrong to use limits that the Legislature established in 2003 on the amount of marijuana a patient could have. That law amended the Compassionate Use Act, the voter-approved initiative in 1996 that allowed the medical use of marijuana. Under the state constitution, the Legislature can’t amend an initiative, unless doing so is specifically allowed in the initiative’s language that voters approve.

The Supreme Court heard arguments on that same issue Nov. 3 in an unrelated case, and a ruling is expected soon. Most observers expect the court to strike down the numerical limits as unconstitutional.

In Archer’s case, the Attorney General’s Office conceded that the numerical limits were indeed unconstitutional, the opinion says. It argued his possession conviction should stand because telling jurors to use the numerical limits, as Superior Court Judge Kerry Wells did at Archer’s trial, was not prejudicial.

Justice Patricia Benke, who wrote the opinion, disagreed. Benke said that with both sides conceding the numerical limits were unconstitutional, the only standard that could be applied was whether the amount of marijuana was “reasonably related” to a patient’s medical needs.

Archer testified that he used about half a pound of marijuana per month. It would be up to a jury to decide how much of the 1.7 pounds he possessed — about a three-month supply, Benke calculated — was reasonably related to his medical needs.

Russell Babcock, Archer’s lawyer, said the decision will have an impact on other cases. “This has real ramifications,” Babcock said. “It becomes a case-by-case basis for juries of reasonableness.” Some patients use large amounts of the drug, because they use it in baked products, lotions, oils or other applications.

Alex Kreit, a professor at the Thomas Jefferson School of Law and head of San Diego’s Medical Marijuana Task Force, said that the decision is important because it means people will not be automatically subject to prosecution if they exceed the limits.

Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?

As detailed in this prior post, just before Thanksgiving a Sixth Circuit panel removed a stay blocking Ohio's scheduled December 8 execution of Kenneth Biros.  That stay was based on challenges to Ohio's old three-drug lethal injection protocol, which the state has now abandoned in favor of a one-drug protocol.  As detailed in this AP article, Biros on Friday appealed this decision to the full Sixth Circuit, but it is unclear whether Biros is still objecting to the old protocol or whether he is asking the Sixth Circuit to look at Ohio's new one-drug protocol.

This litigation uncertainty in the Biroscase is just one part of the broader questions I have concerning the process and pace of litigation over Ohio's new and novel one-drug lethal injection protocol.  I would think that the change in the state's protocol could give Biros and other death row defendants a basis for bringing new legal challenges in Ohio state courts as well as in federal districtcourt.  And I would also think that litigation focused on the new protocol could take quite some time to resolve in all the different potential trial and appellate levels (including both the Ohio and US Supreme Courts) if any judges have any serious concerns about the development, adoption and implementation of the new protocol. 

And yet, the state seems eager to get its execution chamber humming again ASAP.  When adopting the new protocol, Ohio made clear that it could, and wanted to, move forward with the scheduled December 8 execution of Biros.  In addition, because Ohio has at least one execution scheduled for each of the next five months, I suspect the state will make a serious effort to avoid or reduce any litigation delays.  Even if some judges want to go slow in reviewing Ohio's new protocol, the state's lawyers could try to quickly press appeals to higher courts in an effort to keep pending execution dates.

Because I am not privy to all the legal papers being filed and/or contemplated on all sides, I am disinclined to predict the likely process and pace of litigation over Ohio's new one-drug lethal injection protocol.  But I am hopeful that readers might not be afraid to venture guesses or educated speculation concerning how this issue will play out in the courts in the weeks and months ahead.

Some related posts on Ohio lethal injection issues:

• Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
• Split Sixth Circuit panel stays next scheduled Ohio execution
• NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
• Ohio considering new (and novel) method of lethal injection
• "Ohio GOP lawmakers: Execution process can be fixed"
• Ohio adopting a new one-drug lethal injection protocol
• How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?
• Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"
• Ohio news about execution efforts past and execution efforts future

"Federal judges argue for reduced sentences for child-porn convicts"

The title of this post is the headline of this long front-page article in today's Denver Post.  Here are excerpts:

In a nationwide series of hearings, members of the U.S. Sentencing Commission have heard from federal judges seeking reduced sentences for a group of defendants one would think unlikely to get sympathy from the bench: possessors of child pornography.

From New York to Chicago, and recently in Denver, federal judges have testified before the commission, which sets federal punishments, that the current sentencing structure for possessing and viewing child pornography is too severe.

The commission has made reviewing child-pornography sentencing guidelines a priority of its work, which will end in May and could include a change to the guidelines to allow shorter sentences for future offenders.

Judges, for the most part, have based their argument on a belief that some of the defendants who view child pornography have never molested a child or posed a risk to the community and may be better served by treatment rather than prison.

As federal guidelines now stand, the number of images and the way the contraband is obtained enhance prison terms. A first-time offender with no criminal history can be sentenced to 10 years in federal prison....

In 1995, federal defendants convicted of possessing child pornography were sentenced to an average of 15 months in prison, Ilgen's attorney wrote in court documents. By 2007, first-time child-pornography offenders were receiving 102 months in federal prison....

Ernie Allen, president and chief executive of the National Center for Missing and Exploited Children, said some judges don't realize possessing the images revictimizes the children in the photographs and fuels a growing online business. "There are too many judges who continue to provide token sentences for what we consider to be serious crimes," Allen said. "These are images of prepubescent children, growing numbers of them infants and toddlers, and they trade with each other for purposes of arousal and breaking down the inhibitions of other children."

Allen said educating the judiciary about the impact of child pornography on victims is key. "We are not in favor of disproportionate sentencing or disparities, but the problem here is too many judges who simply do not recognize how serious these crimes are," he said.

A few related recent child porn sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• More examples of sentencing uncertainty surrounding federal child porn cases
• Effective review of federal uptick in child-porn prosecutions
• Documenting the uptick in child porn prosecutions
• "Does the punishment fit the crime for child porn?"

Should crimes and punishments be in the mix for Tareq and Michaele Salahi?

My first reaction to the story of Tareq and Michaele Salahi (allegedly?) crashing a White House state dinner was to be thankful they provided something fun to discuss during the holiday weekend.  But, as should be expected, the story has come with a fair share of media buzzing over whether the couple committed federal crimes through their high-society escapade.  Interestingly, this new Huffington Post commentary titled "What To Do About White House Gatecrashers?," laments the discussion of crime and punishment for the Salahis:

After hearing about Tareq and Michaele Salahi, the brazen pair who crashed the White House State Dinner, I was alternately intrigued and worried, especially the way the media reported it. In particular CNN, where Tom Foreman and Erica Hill, subbing for Anderson Cooper, kept harping at how horrible it was and that national security was clearly at stake.

Please, this is much ado about -- not exactly nothing, but not nearly as much as they were screaming about. And I say this as one who adores Erica Hill, in particular her eyebrow raised banter with Anderson Cooper.  But I guess when she's actually hosting the show, she's determined at all costs to prove she's a serious journalist.

Okay, but when she ominously suggests what these folks did might get them into prison, fueled by Bush Homeland Security Advisor Frances Fragos Townsend, who said it was a federal offense to lie to a federal officer, I have to say, enough!...

I think there's amazement at what the Salahis did, and the Secret Service should take note, but what the Salahis accomplished didn't make Obama particularly unsafe if the basic protections surrounding the immediate area of the president are in place.

Crashing a party, even at The White House, does not rise to the level of a federal crime, so much as indicate dismay that the officials in charge were not able to keep the riff raff out....

To suggest that the Salahis go to federal prison is nonsense.  They should be thanked for exposing some flaws in the Secret Service System, though the flaws themselves led to no real danger to the president, and isn't that the real story?

Because the author of this commentary is a screenwriter, my sense is that his view may be influenced by a professional affinity for noteworthy personal dramas.  In turn, I am wondering if readers of this blog, who generally have more of a professional affinity for sound administration of criminal justice systems, have a similar or different take on whether the Salahis ought to be facing some possible criminal charges.

Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"

I am very pleased to see that Molly Gill, who serves as director of the commutations project for Families Against Mandatory Minimums, and this op-ed in today's Washington Post headlined "Turkeys 2, humans 0."  Here are excerpts:

As his daughters and others watched on Wednesday, President Obama followed long-standing tradition and pardoned two turkeys in honor of Thanksgiving Day. The 40-pound Butterballs, Courage and Carolina, were flown to California and will live out their days at Disneyland. Unfortunately, Obama has failed to follow another tradition of sitting presidents: granting clemency to humans....

To be fair, it's not entirely Obama's fault.  The advent of "tough on crime" politics in the 1980s and a few controversial clemencies since then (think Marc Rich and I. Lewis "Scooter" Libby) have made pardoning a political minefield.  Guarding the entrance to that mine field is the Office of the Pardon Attorney.  It reviews clemency requests and sends recommendations to the attorney general, who helps the president make final decisions about which offenders are worthy of mercy. For nearly a century, this review-and-refer system ran smoothly, and presidents typically approved hundreds of petitions for clemency each year -- mostly to run-of-the-mill, politically unconnected people.

But the system has broken down.  The Office of the Pardon Attorney's small staff is overburdened -- this year alone it has received more than 1,200 clemency requests. Beginning with the Clinton administration, the number of clemency applications has soared and shows little sign of dwindling. Applicants report filing their clemency petitions and never receiving a reply.  Applications often sit in the pardon attorney's office for years before they are, inevitably, denied. George W. Bush granted a paltry 200 pardons and commutations -- more than twice the number granted by his father but less than half the number granted by Clinton. Forty years ago, by the end of Lyndon B. Johnson's administration, almost 1,200 people had received the benefit of clemency.  We've come a long way, but not in the right direction.

Obama may have the power to grant clemency, but he can't use that power effectively unless the Office of the Pardon Attorney gives applicants a meaningful review and recommends worthy cases to the White House.

Executive clemency has too many valid and important purposes to disappear through lack of use.  Clemency gives hard-earned second chances to those who have turned their lives around.  It can fix the errors that inevitably crop up in our imperfect criminal justice system. Clemency can show mercy to elderly, sick or dying prisoners who aren't a threat to public safety.  And clemency restores valuable rights to people still struggling to find jobs because of foolish mistakes they made years ago.

None of these praiseworthy objectives can be met until Obama takes a hard look at the pardon system and fixes it. This year, the clemency score is turkeys, 2; humans, zero.  By this time next year, I hope that the clemency score favors more humans than turkeys.

As regular readers know, I share this concern for the lack of use of the clemency power.  But I would say this is fair to call this matter entirely the fault of President Obama and whatever members of his staff advise him on criminal justice matters and related policy issues.  President Obama has found the time to make a number of hard criminal justice choices concerning the closing of GTMO and the trial of terror suspects.  It should take a lot less time, even without any help from the Office of the Pardon Attorney, to find a few cases worthy of some kind of clemency relief from within the thousands of petitions.

Some related posts on federal clemency realities:

• The true sentencing turkeys on this Thanksgiving eve
• Justified complaints that Obama's first pardon will be of a turkey
• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• "The Fall of the Presidential Pardon"
• What might 2009 have in store for . . . executive clemency?

Debating the likelihood of the death penalty for Khalid Sheikh Mohammed

The Chicago Tribune has this new piece discussing the death penalty realities surrounding the prosecution of suspected terrorists in federal court.  The piece is headlined "9/11 terror trial: Justice facing 'uphill battle' on death penalty?; Some legal experts say death penalty no sure bet in Khalid Sheikh Mohammed case," and here is an excerpt:

"It will be an uphill battle to get a death penalty in these cases," said Paul Butler, a former federal prosecutor in New York.  He helped win convictions for the four acolytes of Osama bin Laden who plotted the simultaneous bombings of U.S. embassies in Kenya and Tanzania in 1998. Jurors found the four men guilty as charged, but they were divided on the punishment in the summer of 2001.  As a result, all four were sentenced to life in prison.

Some jurors said afterward they opposed a death sentence because these followers of bin Laden said they wished to die as martyrs.   "Obviously, the 9/11 crimes are as serious as you can get," Butler said, "but it is difficult to get 12 people in Manhattan to agree on a death penalty."

This month's decision by Attorney General Eric Holder to try the alleged Sept. 11 plotters in a federal court rather than in a military commission set off a legal and political battle.

Critics of the decision said a Manhattan trial poses a grave security threat to the city and that they feared the defendants would be found not guilty or escape the death penalty.  They also said they feared the perpetrators of the worst mass murder in U.S. history would use the trial to spew propaganda.

Defenders of the decision said the nation's courts have shown themselves fully capable of trying and convicting the worst of criminals.  And they said trying the accused terrorists as ordinary criminals and murderers was more fitting than treating them as warriors in a "war on terror."

Still, despite the fierce disagreements, it is not obvious that the result in these cases would be different depending on which legal system was used.   Lawyers on both sides of this dispute say they fully expect that Mohammed and his co-conspirators will be found guilty of the charges of mass murders.  And while 12 military officers on a military commission at Guantanamo might be more likely to impose the ultimate sanction than 12 New York civilians, the very limited experience to date with such commissions does not make that a foregone conclusion.

Military commissions have surprised both civil libertarians and the Pentagon by dismissing charges against some accused terrorists and giving sentences considered lenient to others. Pentagon lawyers sought a 30-year prison term for Salim Hamdan, the former driver for bin Laden.  But last year, a military judge sentenced him to serve just six more months in prison, and he was subsequently released and sent home to Yemen.

As I have noted before, limits on the reach of double jeopardy rules might enable state prosecutors to go after Khalid Sheikh Mohammed if the results of his first trial are not to everyone's liking.  But I still have faith that a jury is likely to return a death sentence if it sees convincing evidence that 9/11 would not have happened without KSM's involvement.

Some recent related posts:

• Obama Administration making key decisions on how to prosecute key terror suspects
• "Obama suggests 9/11 suspect will get death penalty"
• "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"
• Couldn't (and shouldn't) prosecutors keep going after KSM until the "right" outcome is achieved?

What SCOTUS sentencing cases are you thankful for?

On this day for giving thanks, I thought my sole post could provide a forum for folks to say thanks to the Supreme Court for their favorite sentencing cases.  I am hopeful — but not completely optimistic — that by next Thanksgiving I will be giving thanks to the Justices for breathing new life into the Eighth Amendment in non-capital cases via thoughtful rulings in this Term's juve LWOP cases Graham and Sullivan.  But I can already give thanks for SCOTUS's modern sentencing jurisprudence, which has given me lots to write about in this space and elsewhere.  Of course, I am always most thankful for Blakely , in part because it has helped me have a whole new vision of modern constitutional criminal procedure.  But, as a federal sentencing nut, I must also give a special thankful shout-out to Booker and its progeny (especially Gall and Kimbrough).

In addition, especially since I taught a Second Amendment seminar this past term for the first time, I have to say thanks for the recent Heller ruling even though it is not really a pure sentencing case.  I have joyfully discovered from teaching this seminar — and also from reading lower court opinions limiting Heller's reach and briefs urging the Second Amendment's broad application to the states — that Heller can and should prompt a host of new and dynamic second (and third and fourth) thoughts about all sorts of interesting and important constitutional questions.

Ohio news about execution efforts past and execution efforts future

Getting into a Christmas Carol spirit, the AP provides these new stories from Ohio about execution efforts past and execution efforts future:

• Doctor's help sought in failed Ohio execution try
• Execution can proceed under new Ohio standards

While the first of these stories is mostly of historical interest, the second story all but ensures a lot of additional legal wrangling as Ohio starts to prepare to carry out a December 8 scheduled execution using its new one-drug lethal injection protocol.  Here are the details:

A federal court has ruled that an execution set for Dec. 8 can go forward because of a change in Ohio's execution policies.  The 6th U.S. Circuit Court of Appeals in Cincinnati said Wednesday that the change renders moot Kenneth Biros' argument that the state's former policy using a three-drug vein injection is unconstitutional....

Biros attorney Tim Sweeney says he will consider appealing Wednesday's decision, as well as a challenge to Ohio's new execution protocol.

The true sentencing turkeys on this Thanksgiving eve

As detailed in this FOXnews piece, President Obama showed his sense of humor when he issued his first turkey pardon this morning:

President Obama hammed it up on Wednesday, pardoning two turkeys Wednesday in a traditional White House ceremony that he joked didn't always end on a positive note. Accompanied by daughters Sasha and Malia, Obama honored a White House holiday tradition that dates to Harry Truman's time as president.

Looking at the turkeys -- Courage and Carolina presented by the National Turkey Federation -- Obama joked that he couldn't fault past presidents from eating turkeys. "That's a good looking bird," he said to laughter. Obama said the turkeys had the interventions of daughters to thank for this year's pardon "because I was planning to eat this sucker."...

Obama also noted that two other turkeys were donated to a D.C. charity. "So today, all told, I believe it's fair to say that we have saved or created four turkeys," he joked, alluding to his $787 billion economic stimulus package that has drawn criticism for the number of jobs the White House has claimed it has created.

Relatedly, as this NPR feature shows, the White House found the time to put together a funny video called "One Lone Turkey" that explains how a single turkey is going to get a second chance.  Though I am disinclined to be grumpy about this quaint new Presidential traditional, this AP article headline highlights why I cannot find this event too much of a laughing matter: "Obama's first pardon: A turkey named 'Courage'." 

I was hoping that President Obama and others in the White House would try to find a few real persons to make thankful this week with real-world clemency decisions.  As I have noted, in many prior posts President Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without one single clemency grant.  Moreover, as this official webpage reveals, it appears that President Obama has over 3,000 requests for pardons and commutations sitting unresolved on his Oval Office desk.

So, one true sentencing turkey on this Thanksgiving eve is President Obama and criminal justice members of his White House team, none of whom seem to concerned with the fact that the President has now shown more concern about justice for terrorists and mercy for turkeys than for any others impacted by harshness of the modern the federal criminal system.

But I also think that the media, public policy groups and the left side of the blogosphere also merit some turkey awards this Thanksgiving eve.  Save for an effective commentary noted here yesterday, I have seem precious little recent media discussion of the failure of President Obama to bring any hope or change to federal clemency stinginess.  And lots of criminal justice groups and bloggers, who I think should be making a big stink about Obama's first pardon being a turkey, all seem to be conspicuously silent on this matter so far.

Some related posts on federal clemency realities:

• Justified complaints that Obama's first pardon will be of a turkey
• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• "Judge urges Obama to cut coke dealer's sentence"
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• What might 2009 have in store for . . . executive clemency?

Kentucky Supreme Court declares de facto moratorium on executions

As detailed in this local article, "Kentucky may not execute anyone until it adopts regulations in compliance with the law, the Kentucky Supreme Court ruled Wednesday."  Here are more of the particulars:

The court ruling came in the case of three Death Row inmates — Thomas C. Bowling, Ralph Baze and Brian Keith Moore — who were challenging the state’s lethal injection protocol....

Earlier this week, Attorney General Jack Conway asked Gov. Steve Beshear to set an execution date for Baze and two other men on Death Row. Meanwhile, the state’s top public defenders, a leading anti-death-penalty group and a group of lawyers sought a moratorium on executions until a recently organized American Bar Association review of the implementation of the death penalty in Kentucky is completed in about 12 to 18 months.

In its 35-page ruling, the court said the state Department of Corrections must follow state-mandated administrative procedures before adopting the current lethal injection process of a three-drug cocktail. It also said the state should have held public hearings on the process.

The full ruling is available at this link.

"Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders"

The title of this post is the title of this new paper on SSRN from Stuart Green.  As the abstract reveals, this seems like a perfect paper to generate deep thoughts during a Thanksgiving holiday:

Criminological studies consistently indicate that a disproportionate percentage of crimes in our society, both violent and non-violent, are committed by those who are impoverished.  If we assume that at least some of the poor who commit crimes are poor because they fail to get from society what they “deserve” in terms of economic or political or social rights, the question arises whether this fact should affect the determination of what such people “deserve” from society in terms of punishment.  The question is all the more pressing given recent Census Bureau figures indicating that the economic recession that began in 2008 has resulted in a higher percentage of Americans living below the poverty line than at any point since 1997, with figures for 2009 certain to be even worse given rising unemployment rates.

Most scholars who have been concerned with this issue have assumed that there is one set of principles that will explain the proper relationship between distributive and retributive justice:  The fact that an offender has been denied the basic entitlements of a just society, however defined, is taken to have implications for criminal liability across the board, regardless of the offense charged.  The argument that I develop here suggests that a proper analysis of the relationship between distributive and retributive justice should proceed on a case-by-case basis.

Such an analysis would take account of three distinct factors:  First, it would look to the specific kind of offense with which the offender is charged.  The fact that an offender is deeply and unjustly disadvantaged might be relevant to determining his blameworthiness for committing one kind of criminal offense (say, an offense against the person) but not another kind of offense (say, an offense against property or an offense against the administration of justice).  Under this approach, we need to consider what it is that makes an offender blameworthy for committing a particular kind of offense in the first place, and then ask whether and how such blameworthiness is affected by his disadvantage.  Second, we need to look at the precise form that the offender’s disadvantage takes.  The fact that an offender has been denied any reasonable opportunity to obtain property, for example, might be relevant to determining his blameworthiness for committing a particular kind of offense in a way that his being denied the opportunity to participate in the political process or the right to certain kinds of basic police protection by the state might not.  Third, we need to consider the economic and social circumstances of the crime victim, if any.  For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not

Seeking help working though the Second Amendment amicus briefs filed in McDonald

As SCOTUSblog notes here, many amici briefs in support of applying the Second Amendment to state and local laws were filed yesterday in the McDonald case, and many of these amici filings are linked at via this Chicago Gun Case webpage (and many are also being noted and discussed at The Volokh Conspiracy).  Including the merits briefs, I now count 34 briefs filed in the McDonald case.

Especially because I consider Second Amendment incorporation pretty much a fait accompli (as explained here), I am checking out these McDonald briefs mostly to see what they might be saying for the really hard Second Amendment questions on the horizon, especially concerning traditional law enforcement and sentencing issues.  I am looking, for example, to see if any amici who call Second Amendment rights "fundamental" explain whether and why all felons and some misdemeanants can be severely criminally punished simply for seeking to exercise a fundamental right.  Similarly, I wonder if any amici arguments in McDonald might undermine the application of severe mandatory minimum sentencing terms for mere gun possession in certain settings.

Based on a quick scan of who submitted filings, the following briefs caught my eye as potentially worth a close read by those thinking about the possible criminal justice implications of McDonald:

• Amicus Brief by Texas and 37 other states
• Amicus Brief by Professors of Philosophy, Criminology and Law
• Amicus Brief by many California and Nevada DAs

In addition, I notice that at least these two amicus briefs directly engage with the all-important "standard of review" question that has already caused some problems in lower courts:

• Amicus Brief by the Nordyke Plaintiffs (urging SCOTUS to discuss review standards)
• Amicus Brief by the Brady Center(urging SCOTUS to declare "that regulations of firearms are not subject to strict scrutiny, but instead are subject to a deferential, reasonableness standard of review")

By flagging this set of amicus briefs, I do not mean to imply that all the others are not worthy of time and attention.  Indeed, as the title of this post is meant to indicate, I am eager to get assistance and insights from others concerning which (if any) of the filings in McDonald are worthy of extended attention.

A few related new and old Second Amendment posts:

• Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
• Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?
• What is the best argument that Heller should only impact the feds? Will it get any votes?
• What state and local issues will be litigated the most if (when?) Heller is incorporated?
• State AGs and the Second Amendment incorporation debate
• "In U.S., Record-Low Support for Stricter Gun Laws"
• What if no lower court judges participate in a "Second Amendment Revolution"?
• Has there been a single pro-gun-rights rulings in lower courts since Heller?
• "Does the Second Amendment Bind the States?"
• What might 2009 have in store for . . . Second Amendment jurisprudence?

Justified complaints that Obama's first pardon will be of a turkey

I am pleased to see that Debra Saunders has this new commentary in the San Francisco Chronicle lamenting the fact that the first use of the pardon power by President Obama will be for a turkey:

On Wednesday, President Obama will issue the White House's standard hokey pardon of a Thanksgiving turkey.  It goes with the job.  That's good news for the lucky turkey, but not much help for the many nonviolent first offenders languishing in federal prisons because, nine months into office, Obama has yet to exercise his presidential pardon power.

According to political science Professor P.S. Ruckman Jr. of Rock Valley College in Illinois, Obama, a former constitutional law professor, has taken longer to use the executive pardon and commutation power than all but four presidents -- George Washington, John Adams, Bill Clinton and George W. Bush.

Obama hasn't pardoned a single ex-offender, even though about 1,200 people have asked for pardons because they have turned their lives around, expressed remorse for their crimes and now want to wipe the criminal slate clean of long-past offenses for which they paid the penalty.

Nor has Obama commuted the sentence of any of the 2,000 or so federal inmates seeking sentence reductions -- many because of draconian federal mandatory minimum sentences. "We had certainly hoped that by now President Obama would have used the pardon power," said Molly Gill of the sentencing-reform group Families Against Mandatory Minimums. "We are a little bit surprised and a little bit disappointed."...

[T]he new president doesn't seem eager to use his unfettered pardon power to correct sentencing injustices for the politically unconnected. Look at Obama's choice for attorney general, Eric Holder. When Holder worked for the Clinton administration, Ruckman noted, "he wouldn't take the time, energy or effort to make it a regular feature of government."...

When you think about it, the pardon petition is the rare Washington exercise that encourages politically unconnected people to petition their president for relief. But like Bush and Clinton before him, Obama seems to be hoarding this power. It's as if Team Obama sees justice as perk, not an equal right.

As regular readers know, I am a lot more than a "little bit disappointed" about President Obama's failure to make any use of his historic clemency powers.  The Obama Administration has obvious spent a lot of time and a lot of political capital seeking to ensure that suspect terrorists at GITMO get treated fairly, but it has yet to find the time or the inclination to make even a single symbolic gesture toward justice or mercy for the thousands of low-level non-violent federal defendants who can make a strong case for clemency attention.  

Perhaps someone needs to start a new advocacy campaign with this slogan: "President Obama, justice and mercy should not only be for terrorists and turkeys."

Some related posts on federal clemency realities:

• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• "Judge urges Obama to cut coke dealer's sentence"
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• What might 2009 have in store for . . . executive clemency?

Governor receives competing death penalty requests in Kentucky

News articles this morning in The Courier-Journal report on competing requests being made of the Governor of Kentucky.  Here is one story's lead: "Gov. Steve Beshear has been asked to halt all executions until a 10-member team of state lawyers and former judges recently appointed by the American Bar Association can assess Kentucky’s flawed death-penalty system."  Here is another story's lead: "Attorney General Jack Conway on Monday asked Gov. Steve Beshear to set execution dates for three death-row inmates."

Though I am inclined to assume that the AG's request for execution dates will surely eclipse the ABA's request for a moratorium, Kentucky has a funny history with respect to executions.  Though many of its neighbors (especially Virginia and Ohio and Indiana) have executed a significant numbers of murderers, Kentucky has had only three executions in the modern era, and I believe two of those who were most recently executed were volunteers who had dropped some appeal opportunities.