March 3, 2009
Gumbo and guidelines in the Big Easy in June
I have already made my plans to attend this year's Annual National Seminar on the Federal Sentencing Guidelines presented by the US Sentencing Commission. This year's event, in addition to being free to attend, has the extra added benefit of taking place in New Orleans on June 10-12. The full agenda with all the seminar information is now available at this link.
I will have the pleasure of talking about departures and variances at the conference, and I am already looking forward to going to all the traditional plenary events and break-out sessions. I am also looking forward to discovering if the guidelines make even more sense while having a gumbo hangover.
Noticing the biggest bias in the federal judiciary
President Obama has not yet nominated aany federal judges (which, perhaps, is giving all the judicial wanna-bees a good chance to make sure their taxes are paid up). Nevertheless, the judicial appointment debates are heating up, with the Senate Republicans firing off this new letter urging the new guy in the White House to avoid an unduly partisan approach to nominations.
I tend in these debates to be more concerned about professional than partisan biases. And my concerns about professional biases were confirmed and heightened by an amazing statistic I saw in a new article in this great special issue of the Denver University Law Review on "The Election of President Barack Obama." An article by Scott Moss, titled "The Courts Under President Obama," is mostly focused on Supreme Court nominees, but the final few pages examine lower federal court picks by Presidents Clinton and GW Bush. And, while I was impressed to see that these presidents were pretty good (and pretty similar) on a variety of diversity criteria, I was amazed to see how many more persons with prosecuting/government experience were appointed to the bench compared to persons with public defense experience.
These specific statistics appear in a cool chart on p. 15 of the Moss article, and here are basic highlights: Presidents Clinton and GW Bush appointed nearly 400 lower court judges who had prior experience as a prosecutor or government attorney, but appointed fewer than 60 who had prior experience as a public defender. These numbers become even more unbalanced when one considers only circuit-level appointments: Presidents Clinton and GW Bush appointed 73 circuit court judges with experience as a prosecutor or government attorney, and only 4 with experience as a public defender.
Though I am sure at least a few attorneys who came to the bench with private practice experience had some exposure to criminal defense work, these stark numbers provide insight into why post-Blakely and post-Booker circuit jurisprudence has consistently tended to favor the government (until SCOTUS jumps in). It also highlights why, though the public often believes that the criminal justice system tilts in favor of defendants, there can often be a practical tilt that runs in the other direction.
Some related old and new posts on judicial appointments:
Effective Stateline coverage of new Pew report
In addition to all the effective local media coverage (noted here and here) generated by Pew Center's big report titled "One in 31: The Long Reach of America Corrections," the folks at Stateline.org have this effective article on the report and on related state developments. Here is a snippet on recent state reform efforts from the Stateline piece:
The Democratic governors of at least four states — Kentucky, New York, Virginia, Wisconsin — recently have sought to save tens of millions of dollars by reducing the amount of time some prisoners spend behind bars.
Other states have negotiated bipartisan agreements focused on preventing recidivism, a major cause of crowded prisons and rising costs. According to federal statistics, more than half of those released from prison are back behind bars within three years.
The Pew study said Arizona, Kansas and Texas are states “already well under way” to improving their supervision of community-based offenders and working to reduce recidivism. A new Arizona program, for instance, allows those on probation to trim their sentences by 20 days for each month they meet court-ordered conditions.
In addition, Stateline has this interesting related piece, titled "Govs’ Q & A: Rethinking prison time," that reports on comments about prison reforms from Kentucky Gov. Steve Beshear and Virginia Gov. Tim Kaine.
Could case on judicial bias standards impact criminal justice adjudication?
The Supreme Court heard argument today in the Caperton case involving judicial bias recusal and the constitutional safeguards of due process. Though the case arises in a civil setting, some commentors on this blog thought the case could have significant criminal justice implications. However, this report on the Caperton oral argument from SCOTUSblog suggests to me that any constitutional ruling in the case is going to be very narrow.
The full oral argument transcript is available now at this link. I welcome post-argument comments from anyone who believes this case could still be a blockbuster with ripples into the criminal justice universe.
Eleventh Circuit upholds large upward variance to statutory maximum as reasonable
There are some appellate opinions that, though the analysis is lengthy, the start of the discussion provides a clear signal as to how the analysis is likely to come out. The Eleventh Circuit's work today in US v. Shaw, No. 07-14693 (11th Cir. Mar. 3, 2009) (available here), is one of those opinions. Here is how Shaw starts:
When Robert Shaw was thirteen years old he hurled a rock through a car windshield, sending shards of glass into his victim’s face. Fifteen years later Shaw was speeding through Miami, with a cocked and loaded pistol and ski masks, on his way to burglarize a “drug hole.” His rap sheet during the intervening years is long enough to require extra postage. It shows 27 arrests involving 62 counts, and sentences totaling at least 105 months in spite of receiving one break after another from the system. Indeed, from Shaw’s criminal record it seems as though he is determined to serve a life sentence, albeit on the installment plan. The question this appeal presents is whether the current installment is a reasonable one.
Shaw, who pleaded guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), contends that it was unreasonable for the district court to vary upward from the guideline range of 30 to 37 months and impose the statutory maximum of 120 months. More specifically, he complains that the district court relied solely on its own ideas of “how sentencing purposes could best be achieved” instead of giving due weight to each factor outlined in 18 U.S.C. § 3553(a), and that it failed to provide a “significant” justification for the variance.
Oregon editorial complaining about criminal justice priorities in budget cuts
The Oregonian has this notable new editorial, headlined "On public safety, Oregon loses its balance: Lawmakers close courthouses, block state trooper hiring and cut police training while protecting prison spending." Here are excerpts:
Cutting beat cops and shutting down Oregon courts while insisting that inmates serve every last second of 70-month sentences doesn't seem like a promising public-safety strategy.
It isn't clear whether lawmakers and the powerful lobbies in Salem -- notably county prosecutors -- think these choices amount to good public safety, or just good politics. Whatever the rationale, it is discouraging how quickly and easily Oregon is moving to shutter its courts one day a week....
All these spending reductions [on courts and cops] may be inevitable at a time when the state budget is in a world of hurt, and legislators are cutting into bone. But Oregonians ought to understand what is going on: This state is making a policy decision to cut police officers, parole and probation and courts. But so far, corrections, in terms of inmate sentences, is off the table....
State Rep. Chip Shields has tried to draw the state's district attorneys and other top public safety officials into a discussion in Salem about how best to spread cuts among criminal justice priorities. Shields, D-Portland, and co-chairman of the Ways and Means Subcommittee on Public Safety, points to studies showing that putting more police on the streets is more effective at reducing crime than putting more people in prison.
Shields wants the state to explore ways to save more money in corrections. One way would be to expand what is known as "transitional leave," the final 30 days of an inmate's sentence. On any given day, about 900 inmates in Oregon are held on transitional leave. Shaving their prison time could save millions.
The state's very strong prison lobby will strongly attack this or any other effort to wring some savings out of the state prison system. But the people closest to Oregon's criminal justice system understand that it stands strong on three legs: police, courts and corrections. If Oregon persists in whacking away at just two of them, the whole thing might just topple over.
Some recent related posts on the modern economics of incarceration nation:
- Pew Center releases new report on scope of criminal justice control in US
- The state of cost problems in the states of prison nation
- Effective op-ed about dealing with prison costs coming due
- Wisconsin Governor proposing early prison releases in state budget
- An Ohio example of how the prison economy budget can mix up the usual political rhetoric
Split Sixth Circuit ruling breaks new ground in federal guidelines masturbation jurisprudence
Faithful readers might recall this post from a few years ago discussing the case of a Florida jail inmate convicted of indecent exposure after a guard complained that he had masturbated in his cell. I raise this bit of blog history because today brings a new Sixth Circuit case, US v. Shafer, No. 07-2574 (6th Cir. March 3, 2009) (available here), in which a split panel discusses at some length a novel federal sentencing issue:
Shafer contends that the district court erred when it imposed the two-level enhancement pursuant to § 2G2.1(b)(2)(A) because: (1) “sexual contact” does not include self-masturbation and (2) Shafer did not commit any “sexual contact” that can be considered “relevant conduct” for purposes of the enhancement. Although we disagree with Shafer’s assertion that “sexual contact” does not include self-masturbation, we conclude that the district court’s imposition of an enhancement under § 2G2.1(b)(2)(A) cannot be supported by either theory advanced by the district court....
Shafer contends that the term “sexual contact” does not include selfmasturbation. Neither party provided the court with any caselaw addressing whether self-masturbation is covered by 18 U.S.C. § 2246(3)’s definition of “sexual contact.” We also were unable to locate such a case in any circuit. Thus, this issue of statutory interpretation appears to be a question of first impression.
Though the underlying facts in Shafer should prevent anyone from turning this case into a tawdry joke, I cannot help being a bit amused that the federal sentencing guidelines have now helped engender a federal masturbation sentencing jurisprudence.
March 2, 2009
Still awaiting some hope and change on the clemency front
President Obama is about to begin his sixth week in office still without having made any use of his clemency powers. P.S. Ruckman in this post notes that this means the new guy "is already among the slowest presidents to tend to this constitutional duty." As Ruckman notes, the vast majority of Presidents have used their clemency power within their first month in office.
As I have said before and as I will surely say again, the failure of modern presidents to use their clemency power actively is especially troubling because the federal criminal justice system in now so much larger than during any other period in American history. Especially in light of the potent new Pew Center report documenting the scope and costs of modern criminal justice control throughout the United States (details here and here), it would be especially valuable and important for President Obama to get moving with at least a few symbolic clemencies to back up his oft-stated commitment to hope and change.
Some recent related posts:
- Is it too early to start demanding President Obama use his clemency power?
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- Washington Post urges Prez Obama to do better on clemency
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- Another public and potent call to reinvigorate the pardon power
- Inaugural rhetoric about freedom and liberty in prison nation
- Taking stock of President George W. Bush's clemency record
- What might 2009 have in store for . . . executive clemency?
Effective press coverage of effective messages in new Pew report
As noted here, the Pew Center on the States today released an important new report on criminal justice control in America titled "One in 31: The Long Reach of America Corrections." Among the virtues of the new Pew report is its emphasis on key comparative spending numbers and its state-by-state accounting of criminal justice control numbers, which in turn makes it easy for the press to provide effective stories about the report.
For example, the New York Times has this coverage of the Pew report headlined "Prison Spending Outpaces All but Medicaid." This kind of coverage should help everyone understand why prison spending and criminal justice reform issues must be high on everyone's agenda in these lean times. And, thanks to the state-by-state data, there are already too many local stories about the new Pew report to read. here are links to a few of the local stories that caught my eye:
- Louisiana's incarceration rate is No. 1 in nation
- Miss. corrections rate 2nd highest in nation
- Study: 1 in 25 adult Ohioans in prison, on parole or probation
- 1 in 30 Washingtonians is in Jail or on Parole
- Study: Fewer adults jailed in RI than in most states
- Study: Mass. fifth in nation for adults in prison, probation or parole
Looks like DNA access debate has the Justices back in their typecast roles
The resolution of little complicated criminal justice issues, especially concerning jury trial right or statutory interpretation, have a way of producing surprising and unusual combinations of Justices. But, when the death penalty or other high-profile criminal justice issues come to SCOTUS, the players all tend to assume their typecast left/right roles. Today's arguments concerning prisoner access to DNA evidence, according to this AP account, seem to fit into the old mold:
On the one hand, the court's four liberal justices seemed to be in general agreement that prosecutors should open their evidence lockers when they contain genetic material that could reveal whether someone has been wrongly imprisoned. The numbers wouldn't be very large, Justice John Paul Stevens said.
On the other hand, the four conservatives were wary of deciding to allow DNA testing so broadly that "it appears that the prisoner is gaming the system," as Justice Samuel Alito said. Convicts who pass up the chance to have genetic testing done at trial or who do not declare under oath that they are innocent could fall within Alito's description....
In the middle, as he often is, was Justice Anthony Kennedy. Kennedy seemed willing to accept that any right to a DNA test would have to follow a claim of innocence, made under penalty of perjury. Yet he also was frustrated by the refusal of Assistant Alaska Attorney General Kenneth Rosenstein to say that Osborne could get what he wants if he swears to his innocence.
The full oral argument transcript for this case, District Attorney’s Office for the Third Judicial District, et al. v. Osborne, is available at this link.
Change comes to medical marijuana raids and to the federal death penalty
I have been awaiting not too patiently for all the hope and change that was promised by the new administration to find its way to the federal criminal justice system. In recent days, Attorney General Eric Holder has started walking the walk rather than just talking the talk:
1. As detailed in this MSNBC piece, late last week AG Holder officially stated that the Drug Enforcement Administration would end federal raids on state-approved medical marijuana dispensaries. This is big news for supporters of medical marijuana, and could be the first step toward a strategic withdrawl from the worst battlefields in the war on drugs.
2. As detailed in this new piece from The Recorder, just today AG Holder "has authorized a deal that could abruptly end a rare San Francisco death penalty trial only days after it began." The piece rights notes the broad implications of this decision: "Not only does Holder's reversal likely spare defendant Emile Fort his life, but it may signal a less aggressive approach to the death penalty in federal court."
CNN now talking about the costs of the death penalty and state reforms
Continuing the trend of MSM outlets looking at capital punishment reform in tough times, CNN has this new piece headlined "Budget concerns force states to reconsider the death penalty." Here are excerpts:
Anti-death-penalty groups say longer jury selection, extra expert witnesses, jury consultants and an extended penalty phase tend to make death penalty trials more costly than non-death-penalty cases. Extra safeguards in place to ensure a fair verdict, including additional investigators and defense attorneys certified to handle death cases, who spend more time researching and litigating the case, also drive up costs.
A 2008 study by the Urban Institute, an economic and social policy research group based in Maryland, found that an average capital murder trial in the state resulting in a death sentence costs about $3 million, or $1.9 million more than a case where the death penalty is not sought. A similar 2008 study by the ACLU in Northern California found that a death-penalty trial costs about $1.1 million more than a non-death-penalty trial in California....
Kansas, New Mexico and Colorado, among the states where legislators are seeking to get rid of the death penalty, have carried out few or no executions since the U.S. Supreme Court reinstated capital punishment in 1976. On the other hand, Texas, Georgia and Virginia, which consistently lead the nation in executions each year, show no signs of changing course....
Harris County District Attorney Pat Lykos intends to proceed with 194 pending death penalty cases she has on the books. "We will spare no expense. We will go after them. Justice has no price tag," Lykos said. "We want to be as cost-effective as possible without compromising the administration of justice and public safety."
Nonetheless, budget concerns in those states still hamper some efforts to seek the death penalty. In Georgia, where Gov. Sonny Perdue has ordered all government agencies to trim their budgets by 6 percent, Jamie Ryan Weis, on trial for murder, has been sitting in a jail without a lawyer for more than a year.
Disappointingly, this new CNN piece does not mention Criminal Justice Legal Foundation's recent study (discussed here) suggesting that the death penalty's savings through plea bargaining may compensate for its extra costs for those cases that go to trial. The reality, as everyone knows, is that justice always comes with a price tag, but very few persons working in the criminal justice system (none of whom are really subject to market-based constraints) ever want or need to worry directly about the price tag or even care to see if agenda-driven estimates of the price tag by certain public policy groups are accurate.
Some recent related posts about death penalty costs:
- Great new (though still dated) examination of the death penalty and plea bargaining
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Death penalty abolition becoming more realistic in a few western states
- Interesting time for Time's discussion of death's demise
- DPIC releases year-end report on state of death penalty in 2008
- What might 2009 have in store for . . . the death penalty in the US?
Pew Center releases new report on scope of criminal justice control in US
This morning the Pew Center on the States released a follow-up report to last year's “One in 100: Behind Bars in America” (blogged here). This year's report on criminal justice control in America, which can be accessed at this link, is titled "One in 31: The Long Reach of America Corrections."
This latest Pew report expands the scope of its prior analysis beyond incarceration statistics to include criminal justice control in the form of probation and parole. The report discusses the relative costs of imprisonment and community supervision and the impact of incarceration on crime, and it seeks to provide a framework for states to achieve better public safety returns on taxpayer investments. This AP coverage provides the basic highlights from the report:
The number of offenders on parole and probation across the United States has surged past 5 million, complicating the challenges for fiscally ailing states as they try to curb corrections costs without jeopardizing public safety, according to a new report.
The Pew Center on the States report, released Monday, says the number of people on probation or parole nearly doubled to more than 5 million between 1982 and 2007. Including jail and prison inmates, the total population of the U.S. corrections system now exceeds 7.3 million — one of every 31 U.S. adults, it said.
The report also noted huge discrepancies among the states in regard to the total corrections population — one of every 13 adults in Georgia and one of every 18 in Idaho at one end of the scale, one of every 88 in New Hampshire at the other extreme. The racial gap also was stark — one of every 11 black adults is under correctional supervision, one of every 27 Hispanic adults, one of every 45 white adults.
Might sex offender (and former federal judge) Samuel Kent possibly avoid all jail time?
Thanks to law.com, everyone can access this terrific new piece from the Texas Lawyer, headlined "What's Next for Samuel Kent in Wake of Guilty Plea?". Though many parts of the article might merit commentary, this passage discussing Kent's sentencing prospects really got my attention:
Three criminal defense lawyers say that Kent most likely will receive at least some prison time. "Lying to Congress, lying to a judge, lying to the 5th Circuit, lying to the FBI -- they're all serious obstruction charges," says Mike Uhl, a former federal prosecutor who is now a partner in Dallas' Fitzpatrick Hagood Smith & Uhl. "I'll be surprised if he gets straight probation."
A look at the federal sentencing guidelines seems to indicate why Kent took a plea deal: It was the only chance he had at avoiding a lengthy prison sentence, Orwig says. If a jury had convicted Kent of obstruction "then he's looking at 15 to 20 months" minimum in prison, Orwig says. If he pleads and accepts responsibility, he's eligible for a federal sentencing guidelines reduction, putting Kent in range for a "split sentence" that would allow him to serve half of his sentence in alternative incarceration such as home confinement or a halfway house.
But Marlo P. Cadeddu of Dallas' Law Office of Marlo P. Cadeddu, who is an expert on federal sentencing issues, says there's a chance Kent could avoid prison. To do so, Kent would have to request that Vinson depart from the federal sentencing guidelines and give him an additional two-level sentence reduction beyond what is contemplated in the plea agreement. Kent could ask Vinson for a guideline departure on the ground his safety would be threatened in prison because he has sentenced thousands of criminals.
However Vinson may not want to give Kent a sentence he wouldn't give to someone who wasn't a federal judge who committed a similar crime. "They don't want it to look like he's getting a benefit that a regular person wouldn't get," Cadeddu says.
Am I the only one who feels that, in light of Kent's admission to repeated non-consensual sexual contact with his employees, it is problematic that one might work through the 3553(a) sentencing factors and still conclude "there's a chance Kent could avoid prison"? Kent's sex offenses have to be relevant conduct in his obstruction crime, and that fact should take non-prison sentences off the table.
As I indicated in my first post on this case, Kent already seems to be getting a huge break based on the fact that the feds were willing to accept a plea to just an obstruction charge and were willing to promise not to seek a sentence of more than three years in prison. Given all of Kent's admitted criminal conduct and the serious harms to the victims of his conduct, I think the 3553(a) sentencing factors have to call for some prison time for Kent. Indeed, given how tough sentencing has become for state and federal sex offenders, Kent should consider himself very lucky that he may be only looking at years rather than decades for his various crimes.
Related posts on the Kent proceedings:
- Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
- "Is Kent getting off easy?"
- More questions and fall-out following Judge Kent's guilty plea
- Latest notable news surrounding former judge (now felon) Samuel Kent
Might prosecutors keep New York from finally "dropping the rock"?
The New York Times yesterday had this long piece, headlined "Legislation to Overhaul Rockefeller Drug Laws Moves Ahead Swiftly," which discusses the history of New York's mandatory drug sentencing laws, as well as current reform efforts. Here are one notable excerpt:
As lawmakers debate changing the drug laws in the weeks ahead, restoring judicial discretion will be one of the thorniest issues in the discussions. The Assembly speaker, Sheldon Silver, said he thinks any plan that does not give judges authority to send drug offenders to treatment is doomed to fail.
“I think any bill that doesn’t provide that diversion option is really not something that’s significant reform, plain and simple,” Mr. Silver said in an interview. “There is nothing else at this point that would be meaningful in terms of reform.”
But the idea of restoring full judicial discretion is troubling to many prosecutors, who in a vast majority of drug crimes must give consent before a suspect is ordered to a treatment program.
“The district attorney’s input would be taken out of the equation,” said Bridget G. Brennan, the special narcotics prosecutor for New York City. “When I look at cases, I want to have the discretion as gatekeeper, to make sure that somebody I put back out in the community is not going to pose a public safety threat. A district attorney has a much clearer picture of a community’s concerns.” But under the plans favored by the governor, the Assembly and the Senate, prosecutors would lose that veto power.
This excerpt provides an effective window into why prosecutors tend to be fans of mandatory sentencing laws. Prosecutors rarely believe that any and all persons who commit a certain type of offense should be subject to the same mandatory sentencing term, rather they just appreciate being the initial and chief decision-maker concerning whether and when a particular offender should be able to avoid a sentencing mandate. Having that power in prosecutorial hands typically makes it much easier for prosecutors to secure cooperation and plea agreements on terms prosecutors find favorable.
March 1, 2009
Two terrific accounts of prosecutorial discretion in California capital cases
The week in my sentencing class I was stressing that the profound impact and import of prosecutorial discretion in capital cases is rarely discussed and even more rarely criticized. Then, as if on cue, I find in this weekend's papers these two terrific accounts of prosecutorial discretion in capital cases in California.
First, consider from the (Eureka) Times-Standard here comes "Death penalty: a DA's decision." Here are a few excerpts from a fascinating article:
When it comes to the death penalty in the state of California, there just isn't much consistency. ”It's like a patchwork quilt,” said Elisabeth Semel, a clinical professor of law at U.C. Berkeley who directs the school's death penalty clinic. “Someone once said, 'California has 58 counties and 58 death penalties,' and that's a very apt statement.”
Humboldt County District Attorney Paul Gallegos continues to consider whether to pursue capital punishment in the case of the Feb. 6 stabbing death of Andrew Pease, highlighting the discretion prosecutors are entrusted with in these cases. Some say that discretion leads to an unequal application of the law, but others counter it allows local officials to apply the law in a way that is in tune with the local community....
Gallegos said his office has no written policy as to when to pursue the death penalty, but that he has a procedure in place for making the decision.... ”Everyone will individually reach their own opinion,” Gallegos said, “then we will get together and discuss it.” Gallegos said his senior attorneys will then take a vote. If there's not a unanimous decision among his attorneys to pursue capital punishment, Gallegos said it's unlikely he would opt to pursue it.
Second, consider from the San Francisco Chronicle herecomes "S.F. grapples with 1st death trials in years." Here are a few excerpts from the start of this fascinating article:
For the first time since 1948, lives are at stake in a San Francisco federal courtroom. Two alleged gang members went on trial before separate juries last week, each accused of three murders as part of a racketeering enterprise to control local drug trafficking. The Justice Department is seeking the death penalty for both defendants, in one case over the objections of the U.S. attorney's office, which had agreed on a 40-year prison sentence. They are the first two federal death penalty trials in California's Northern District, based in San Francisco, since two Alcatraz inmates were convicted, sentenced to death and executed in the San Quentin gas chamber in 1948 for an escape attempt two years earlier in which two guards and three prisoners were killed. They're also the first life-or-death trials of any kind in San Francisco since 1991, when a convicted murderer was sentenced to death in Superior Court. That man, Clifford Bolden, is the only San Franciscan among 680 condemned prisoners in California. District Attorney Kamala Harris and her predecessor, Terence Hallinan, have refused to seek the death penalty. The Bush administration, on the other hand, believed the federal death penalty law should be enforced uniformly nationwide, regardless of local policies. President George W. Bush's attorneys general often sought death sentences in states without their own capital punishment laws. Though many have been critical of the tendency of Bush Administration AG's to over-rule local federal prosecutorial judgments about whether to pursue capital charges, I am inclined to be more critical of state DA's who categorically refuse to enforce an aspect of state law. But I sense I am a rare commentor who is just as concerned about (lawless?) discretionary decisions by prosecutors not to seek death sentences as about their (lawless?) discretionary decisions to seek death sentences.
For the first time since 1948, lives are at stake in a San Francisco federal courtroom. Two alleged gang members went on trial before separate juries last week, each accused of three murders as part of a racketeering enterprise to control local drug trafficking. The Justice Department is seeking the death penalty for both defendants, in one case over the objections of the U.S. attorney's office, which had agreed on a 40-year prison sentence.
They are the first two federal death penalty trials in California's Northern District, based in San Francisco, since two Alcatraz inmates were convicted, sentenced to death and executed in the San Quentin gas chamber in 1948 for an escape attempt two years earlier in which two guards and three prisoners were killed.
They're also the first life-or-death trials of any kind in San Francisco since 1991, when a convicted murderer was sentenced to death in Superior Court. That man, Clifford Bolden, is the only San Franciscan among 680 condemned prisoners in California. District Attorney Kamala Harris and her predecessor, Terence Hallinan, have refused to seek the death penalty.
The Bush administration, on the other hand, believed the federal death penalty law should be enforced uniformly nationwide, regardless of local policies. President George W. Bush's attorneys general often sought death sentences in states without their own capital punishment laws.
Though many have been critical of the tendency of Bush Administration AG's to over-rule local federal prosecutorial judgments about whether to pursue capital charges, I am inclined to be more critical of state DA's who categorically refuse to enforce an aspect of state law. But I sense I am a rare commentor who is just as concerned about (lawless?) discretionary decisions by prosecutors not to seek death sentences as about their (lawless?) discretionary decisions to seek death sentences.
Seeking "review" of sentence imposed on mom who battered sex offender
This ABC News account of the state sentence given to a mom who battered a sex offender with a baseball bat has me thinking hard about what kind of sentence I might have given to the defendant in the case. The ABC News story is headlined " Mother Who Beat Sex Offender: 'I'd Do It Again': Tacoma Woman Sentenced to Three Months in Jail for the Attack," and here are the details of the crime and punishment that got me to thinking:
Was Tammy Gibson protecting her young daughter or just beating up a neighbor, unprovoked? Either way, she will now spend three months behind bars for taking a baseball bat to a sex offender last summer who was talking with her daughter.
Gibson said she has no remorse for the June 19 assault but pleaded no contest Friday to assault charges. She could have received as much as eight months in jail, but the judge sentenced her to three. "No, I'd do it again if not better," she told ABC News Seattle affiliate KOMO-TV. "I don't care if it hurts me, I don't regret it. It got him away from my kids and all the other kids in the neighborhood."
According to police documents, Level-3 sex offender William A. Baldwin had moved into his uncle's home in Tacoma in early June. Following his move, county deputies distributed flyers around the neighborhood to alert residents of his presence. On June 19, Gibson went to the house in the trailer park and asked for Baldwin. When Baldwin stepped outside, she claimed she was going to kill him because Baldwin had molested her children. Gibson then proceeded to hit Baldwin repeatedly with her bat, the document said, leaving him with an injured arm. "I kept swingin' and swingin', and swingin'," Gibson told investigators.
Contrary to what she had said to Baldwin, Gibson later told investigators Baldwin had not molested her children. But she did say that she recognized Baldwin from the flyer as the man who had chatted up her then-10-year-old daughter during the previous summer. Baldwin is the memorable height of 7 feet, 3 inches tall. "For him to be right there, in front of my house and talking to my child -- made me crazy," she told KOMO. "And I told him I thought he was a piece of crap and I smacked him," she added. "I just didn't stop hitting him. I just told him that 'if it were up to me, I'd kill ya."'...
The daughter she was protecting was in tears during the sentencing on Friday. "He tried to give me fireworks and I wouldn't take it," the girl, Renee Maria Perez, said of Baldwin. Gibson's other daughter, Rachael Porter, added, "I think it's crap; that she was protecting her kids like she should have been. They locked her up for way too long."
Gibson said she hoped that the attention created by her case would lead to a change in the laws regarding released sex offenders. "I would hope that me doing this and going to jail would change something, change some kind of law, change something where people like him can't be standing around little kids you know what I mean?" Gibson said in her interview with KOMO-TV. "It's not right, it's not fair to the kids at all."
Because the defendant here shows no remorse for her vigilantism and seem eager to champion the right of this kind of violent behavior, I am more than a bit concerned that a three-month jail term is not a truly effective or sensible sentence. In my view, this case calls out for some kind of alternative sentencing/shaming scheme in which the defendant can be educated more fully about the reality of sex offending and existing sex offender laws and also have an opportunity to reflect on the risks to society if every individual citizen feels justified to act on their fears in violent ways.
I am very sympathetic to the concerns of parents who are eager to protect their kids from serious threats (this is why, for example, I am a vocal advocate for tougher drunk-driving sentences and a big supporter of the work of groups like MADD). But there is every reason to think that modern sex offender laws (including national registration and notification requirements) already do a pretty good job empowering parents to deal with real risks in responsible law-abiding ways. And, especially since I surely make my students crazy all the time in class, I am worried about a world in which persons feel justified violently attacking anyone who "makes them crazy" without first seeking to employ more socially valuable ways to express their concerns and fears.
UPDATE: Scott over at Simple Justice has lots of deep thoughts about this case in this long post.
Big interesting SCOTUS argument week ahead
Though few of the cases to be argued this week before the Supreme Court are certain criminal justice blockbusters, the entire week is filled with interesting and challenging cases that defy easy answers (and thus do not obviously turn on one particular swing Justice). Here, in the order they are to be argued and with text/links from SCOTUSwiki, are the cases I will be watching closely:
- District Attorney's Office for the Third Judicial District, et al. v. Osborne (08-6) - Defendant's access to biological evidence
- Caperton v. A.T. Massey Coal Company, Inc., et al. (08-22) - Judge's campaign donations
I could develop various arguments for why a broad opinion in any of these cases could end up having a big impact on the operation of criminal justice systems. But I also expect that there will be narrow rulings from the Court in all of these cases. So, sentencing fans, I would be grateful for comments about which of these cases seem most likely to be most consequential in a Term that has been pretty sleepy to date.