March 21, 2009
"Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"
The title of this post os the title of a new forthcoming article in the Stanford Law & Policy Review from Michael O'Hear. The piece is up at SSRN at this link, and here is the abstract:
Specialized drug treatment courts have become a popular alternative to more punitive approaches to the "war on drugs," with nearly 2,000 such courts now established across the United States. One source of their appeal is the belief that they will ameliorate the dramatic racial disparities in the nation's prison population -- disparities that result in large measure from the long sentences handed out for some drug crimes in conventional criminal courts. However, experience has shown that drug courts are not a "do-no-harm" innovation. Drug courts can produce both winners and losers when compared to conventional court processing, and there are good reasons to suspect that black defendants are considerably less likely to benefit from the implementation of a drug court than white defendants.
As a result, drug courts may actually exacerbate, rather than ameliorate, racial disparities in the incarceration rate for drug crimes. Thus, the concerns of inner-city minority communities with the war on drugs may be better addressed through a different sort of innovation: a specialized restorative justice program for drug offenders. Although treatment may be part of such a program, the real centerpiece is the "community conferencing" process, which involves mediated dialogue and collective problem-solving involving drug offenders and community representatives. Where the drug treatment court gives a dominant role to criminal justice and therapeutic professionals, the community conferencing approach empowers lay community representatives, and is thereby capable of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates.
March 21, 2009 in Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (12) | TrackBack
The latest news on Maryland's continuing debate over death penalty reform
The Baltimore Sun reports here on the latest development from Maryland on legislative reform of death penalty administration. Here are the particulars:
A House of Delegates committee approved the Senate's plan yesterday to restrict capital punishment to cases with specific kinds of evidence, a major step toward added limitations on Maryland's death penalty that could receive final legislative approval as soon as next week.
Gov. Martin O'Malley had called on the Senate to abolish the death penalty, and the House appeared poised to follow suit. But the governor urged delegates this week to abandon the repeal in favor of the Senate plan. In the view of some death penalty supporters, however, the limitations are tantamount to a repeal....
Under the Senate proposal, prosecutors could seek capital punishment only in murder cases in which the crime was caught on videotape, the defendant confesses on video tape, or DNA or biological evidence links the defendant to the crime. Maryland Attorney General Douglas F. Gansler, a former Montgomery County prosecutor and death penalty supporter, said this week that the legislature's proposal "significantly limits the death penalty so as to almost nullify it in the state of Maryland."
"Crime and Punishment in Japan: From Re-integrative Shaming to Popular Punitivism"
The title of this post is the title of this interesting piece from The Asian-Pacific Journal, which describes notable developments in criminal justice trends in Japan. The piece is a few years old, but just showed up on line and still seems timely. Here is how the piece begins and ends:
Since the Second World War, Japan has avoided the correlation between rising crime and increased affluence that has afflicted other comparable advanced democratic economies. This has prompted other countries to investigate to famous koban ‘community policing’ principle and to look at notions of re-integrative shaming, which were seen as prevalent in dealing with Japanese offenders. However, since the late 1990s, the Japanese press and public have lost confidence in their public safety and the effectiveness of the criminal justice system. Public opinion surveys show that fear of crime among the Japanese has risen. This perceived rise in crime, which is reflected in a 44% increase in recorded crime between 1995 and 2004, is generally associated in the Japanese press with the economic slump during this period, and a subsequent collapse of traditional community-based society. A major watershed was the way in which police investigative competence was questioned by the press at the end of the 1990s, and the early 2000s, also saw a heavy press focus on a rising tide of youth violence and mass killing sprees....
Western scholars have generally focused on the role of apology and forgiveness in everyday life and in criminal justice in Japan. However, the questions posed above beg further research into whether Japan has started to resemble other developed countries, such as the US and UK, in moving towards popular punitivism, or whether, at least to some extent, the Japanese public were always more punitive than they were perceived to be.
March 20, 2009
Notable Fourth Circuit (unpublished) vacating of downward variance
Thanks to this post at Fraud with Peril, I see that the Fourth Circuit has today vacated, via an unpublished per curiam opinion, a downward variance in US v. Gaskill, No. 04-4476 (4th Cir. March 20, 2009) (available here). Here is how this opinion begins:
Appellee Jerry Gaskill was convicted and sentenced in the Eastern District of North Carolina for making materially false statements in connection with a matter within the jurisdiction of the Army Corps of Engineers, in violation of 18 U.S.C. § 1001. At his sentencing hearing, the district court, over the Government’s objection, granted Gaskill a downward variance from the advisory Sentencing Guidelines range of fifteen to twenty-one months, and imposed a sentence of three years’ probation with six months’ home confinement. The Government has appealed Gaskill’s sentence, asserting that the court erred in granting the downward variance. As explained below, we agree with the Government, and thus vacate and remand.
Intriguingly, the opinion in Gaskill suggests that the panel has a substantive problem with the sentence imposed, though it ultimately asserts that it is vacating and remainding for procedural unreasonableness:
In the absence of some indication that the sentencing court considered all the § 3553(a) factors, we are unable to conclude that it complied with its § 3553 mandate.... The court’s implicit consideration of only a part of a single § 3553(a) factor ... is insufficient to support the implication that it considered each of the § 3553(a) factors.... Because a sentencing court should provide a more substantial justification for a probationary sentence when the Advisory Guidelines call for an active sentence of imprisonment, such as in this case, we are unable to conclude that the award of a downward variance was procedurally sound.
Another drunk driving sentencing story we can follow on the sports pages
I suppose I should be glad that during March Madness I can keep up with sentencing news in the sports pages. But, I am not glad to learn from this SI.com article, that a recent driving fatality caused by a famous athlete is more than just a terrible accident:
Miami television station and newspaper are reporting that blood tests show that Cleveland Brown wide receiver Donte Stallworth was driving drunk when he fatally struck a pedestrian last weekend.
WSVN-TV reported Thursday that unnamed sources with knowledge of the investigation say that Stallworth's blood-alcohol level was .12. The legal limit is .08. The Miami Herald also reported Thursday that an unnamed source says Stallworth's blood-alcohol level was above the legal limit.
Regular readers are probably tired of my posts complaining about the large number of fatalities caused by drunk driving and about my belief that we might deter some of these deaths if we were much tougher on drunk driving. Nevertheless, I cannot help but wonder if a much tougher sentence for Charles Barkey, the last prominent athlete convicted and slapped on the wrist from drunk driving, might have led Donte Stallworth to think a little harder before getting behind the wheel while drunk last weekend.
Notable new and helpful thoughts on the capital concept of closure
I just noticed this interesting-looking new piece on SSRN by Jody Lynee Madeira, titled "Why Rebottle the Genie?': Capitalizing on Closure in Death Penalty Proceedings." Here is the abstract:
Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what extent closure is an appropriate adjudicative goal, it is necessary to more thoroughly investigate the concept and develop a theory of closure.
This article provides an argument against rebottling the closure genie, a task not only seriously implausible but unsound under principles of communicative theory. Proposing that closure is an authentic cultural and communicative construct that has become indelibly linked to capital proceedings, this article advocates a shift in focus to more practical questions. This article first summarizes how legal scholarship has described closure up to this point, and then examines how courts utilize the rhetoric of closure to effect change for victims' families in a variety of contexts. It then reviews widespread scholarly opposition to utilizing criminal law to pursue therapeutic ends. Thereafter, this article seeks to broaden the contemporary understanding of closure by exploring how members of one victim population -- Oklahoma City Bombing victims' families and survivors - have described closure in intensive face-to-face interviews. These reflections provide the foundation for theorizing closure as a communicative concept composed of two interdependent behaviors: intervention and reflexivity. While intervention is an interpersonal component that urges victims' families to take action to effect change and pursue accountability, reflexivity is an intrapersonal component that nudges them to contemplate and work through grief, emotion, and trauma after a loved one's murder. Finally, this article considers the pragmatic ramifications of applying a communicative theory of closure.
Because I have long thought that the concept of closure has been over-used and under-examined in capital punishment debates, I am looking forward to finding time to read this piece closely. I suspect, however, that this important new foray will not give me closure on the concept of closure in capital cases.
Still waiting ... and waiting ... and waiting ... on the clemency front
President Obama is about to begin his third month in office still without having made any use (or any mention) of his clemency powers. As I spotlighted in a post here a few weeks ago, P.S. Ruckman in this post has documented that the new guy "is already among the slowest presidents to tend to this constitutional duty." As Ruckman has noted, the vast majority of Presidents have used their clemency power within their first month in office.
Disappointingly, President Obama is following the more recent trend of more recent presidents to wait a long time before getting serious about clemencies. But, as I have said before and will keep on saying, the failure of modern presidents to use their clemency powers actively is especially troubling because the federal criminal justice system in now so much larger (and also so much harsher) than during any other period in American history.
I am not holding my breath while hoping that President Obama will bring needed change to the modern presidential tendency to ignore clemency concerns. But I will keep bringing up this issue periodically. And I also will readily and repeatedly call out others for not calling out President Obama on this front. As detailed in some prior posts linked below, many were quick to condemn former President Bush for failing to use his clemency power robustly. These same voices can and should be raised to complain about President Obama's clemency record unless and until he starts doing better on this front.
Some 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
- Are the Border Agents the only federal offenders for whom President Bush feels compassion?
- "Compassionate Conservatism, My Ass"
- Few giving the President sentencing thanks
- The sad (unpardonable) state of compassion in the Bush Administration
- Latest FSR issue on "Learning from Libby"
- Taking stock of President George W. Bush's clemency record
- What might 2009 have in store for . . . executive clemency?
Local sheriff talking about trying referendum to undo New Mexico's death penalty repeal
Revealing that the death penalty is never easily killed, this AP story reports on comments from a sheriff in New Mexico about his desire to seek a means for reversing the repeal of the death penalty in New Mexico:
Bernalillo County Sheriff Darren White is looking into the possibility of petitioning to put the repeal of New Mexico's death penalty before the voters.
White said Thursday he's looking at a "reverse referendum" after the 2009 Legislature passed and Gov. Bill Richardson signed a measure that replaces lethal injection with life in prison without possibility of parole. The new law will apply to crimes committed as of July 1. "I think there's a lot of support out there" for an effort to reinstate the death penalty, the sheriff said.
New Mexico's constitution has a referendum provision that allows citizens to try to overrule laws approved by the Legislature. It's very difficult to get such a measure on the ballot. In fact, only three referendums have been on the ballot since statehood in 1912 — the most recent in 1964 — and only one passed, according to the Legislative Council Service.
White said he's been flooded by calls since Richardson signed the bill Wednesday. "Judging from the phone calls I've received, asking, 'What can I do, what can I do,' this is an option afforded to us by law," White said. "Let's look at it and see if it's feasible."...
If death penalty supporters decide to try for a referendum, White said they'd form a committee to follow through. "Let the voters decide," he said.
Some recent related posts:
- Abolitionists seem more motivated in New Mexico death penalty debate
- The death penalty officially killed off in New Mexico
- Can and will New Mexico go forward with executions even after its death penalty repeal?
- Effective coverage of death penalty reforms and realities
March 19, 2009
Feds seeking only sentence of probation for Miguel Tejada based on lying conviction
The United States Attorney's office has recommended that Houston Astros shortstop Miguel Tejada receive a sentence of probation for lying to congressional investigators in 2005, according to a memorandum filed on Thursday in Washington, D.C., federal court. The filing, which also calls for Tejada to pay a fine and participate in youth-based community service, is a suggested sentencing -- not a binding one -- for Washington magistrate judge Alan Kay.
Kay will issue Tejada's punishment next Thursday, when the 34-year-old shortstop is due back in court. Tejada pleaded guilty last month to a misdemeanor charge that he made "misrepresentations to Congress" when he told congressional aides at a Baltimore hotel on Aug. 26, 2005, that he was unaware of steroid use by other players....
Tejada struck a plea agreement with the U.S. attorney's office last month, pleading to the misdemeanor offense. Hours after his guilty plea last month, Tejada fought back tears at a press conference in Houston where he said, "I made a mistake and now I know how serious of a mistake I made for not answering a question about another teammate." He then apologized "to the whole United States, because this country gave me the opportunity to be who I am and the last thing I want to do is let this country down."
With Thursday's sentencing recommendations, it appears that the federal government is willing to give Tejada another chance. "Defendant has expressed appropriate remorse," the filing says, "[he] appears to have learned a difficult and important life lesson."
Some related posts:
- Another prominent (minority) athlete in trouble for lying about steriod use
- Marion Jones gets six-month federal prison term
- Feds get another conviction in steroid investigations
- Another federal sentence for another athlete lying about steroid use
Dean Elana Kagan is now officially SG Kagan
The BLT has this report, titled "Kagan Confirmed as First Female Solicitor General." As I have suggested in prior posts,new SG Elana Kagan can and will have some say (and perhaps a significant role) in the shape and direction of DOJ's post-Booker litigation positions and other federal sentencing issues.
Some related posts:
- HLS Dean Elena Kagan to be nominated for US Solicitor General
- How much can and will the "tenth justice" influence sentencing jurisprudence?
- How a new administration is likely to impact federal sentencing practice
- Why federal sentencing reformers must focus on the USSC and lower courts
- Will AG Holder really lead a "new birth of freedom" in prison nation?
- More evidence Obama's DOJ is just not that into change in the criminal justice arena
- Lots of big (though really little) congressional sentencing activity
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
Effective coverage of death penalty reforms and realities
Over at Stateline.org, John Gramlich has this effective review of recent capital punishment developments. The piece is headlined, "Death penalty rift in states continues," and here are some excerpts:
Gov. Bill Richardson’s decision Wednesday (March 18) to repeal New Mexico’s death penalty and replace it with a maximum sentence of life without parole is being hailed by supporters as a major victory in the decades-old debate over state-sanctioned executions.
But the decision — which follows New Jersey’s repeal in 2007 and brings to 15 the number of states that do not execute inmates — also underscores the nuanced modern landscape of capital punishment.
While a growing number of states are seriously considering eliminating the death penalty — whether for moral, fiscal or political reasons — others are trying to reinstate or expand it. At the same time, the United States is on track to put more inmates to death this year than in any year since 1999.
Recent political developments have highlighted the complex and highly regional approaches to the death penalty....
Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif., noted that the states in which repeal legislation has gained the most traction in recent years — or where it has passed — rarely execute prisoners in the first place.
New Mexico, for instance, has only two inmates on death row, and the state has not executed anyone since 2001. (In an unusual twist, Richardson said during a press conference last night that he will not commute the sentences of the state’s two death-row inmates. The decision potentially sets the stage for a future execution in a non-death penalty state.)
In New Jersey, Gov. Jon Corzine (D) repealed a death penalty the state had never used, and only eight inmates were on death row. In Kansas, Maryland, Montana, Nebraska and New Hampshire, where death-penalty repeal legislation has been seriously debated this year, a combined 29 inmates sit on death row.
In contrast, Scheidegger said, “I don’t see any serious chance of repeal in those states that are actually using the death penalty.”
Are any and all LWOP sentences inconsistent with international human rights law?
Over at The Volokh Conspiracy, Eugene Volokh in this post notes this New Zealand Herald article and wonders and worries about the prospect of international human rights law being used to bar sentencing murderers to life without the possibility parole. Here are snippets from the kiwi sentencing piece prompting Eugenes concerns:
Foreign Affairs officials are warning the Government that its hardline sentencing and non-parole policy risk damaging New Zealand's international reputation. They say National's "no parole for the worst murderers" policy and the proposed "three strikes and you're out" law could breach international obligations on torture and civil rights. The Ministry of Foreign Affairs and Trade says such breaches would affect New Zealand's ability to influence other countries.
The ministry's advice, obtained by the Herald under the Official Information Act, says passing the laws "would pose reputational risks to New Zealand by resulting in international criticism".
The ministry has told the Government that no parole for the worst murderers — a National election policy - would enable "indefinite detention without the possibility of release", and would probably violate two human rights conventions monitored by the United Nations.
Act's "three strikes" policy, which imposes a life sentence with a minimum non-parole period of 25 years on the third "strike" offence, "may result in disproportionate sentences that could also breach the human rights obligations assumed by New Zealand (and most other countries)"....
David Garrett, the Act MP who designed "three strikes", said he wanted to know what countries the Foreign Affairs officials believed would be offended. "They shoot people in China for much less and we have just concluded a free trade agreement with them. And we can't be offside with the Yanks because half their states have three strikes."
Though I am not a fan of rigid LWOP sentencing laws or too-broad three-strikes laws, I laregely share Eugene's view that domestic sentencing decision-makers should, as a general matter, "pretty strongly resist any attempt to have our laws on these subjects be governed by 'human rights conventions' that chiefly represent the views of elite lawyers in Western countries rather than of American voters, constitution-makers, or even judges (who at least have been appointed and confirmed by American elected officials and could in time be replaced by American elected officials)."
An interesting historical look at jury trial rights and the rise of pleas
I just noticed on SSRN this interesting piece providing a great historical perspective on jury trials and plea agreements. The article by Elizabeth Dale is titled "People v. Coughlin and Criticisms of the Criminal Jury in Late Nineteenth-Century Chicago," and here is the abstract:
The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for the State. They are based on the assumption that the rise of plea bargains caused the decline of criminal juries. Yet this explanation does not appear to fit the case of late nineteenth-, early twentieth-century Chicago. In that period the felony courts in Chicago, like felony courts in Los Angeles, Philadelphia, and Boston, did make increasing use of plea bargains and jury trials declined, as well. But the data suggests that the greater use of pleas did not lead to the decline of criminal juries, so much as result from efforts to avoid jury trials.
To explore this possibility, this article begins with a review of studies of plea bargaining in the Chicago and Cook County felony courts. The data in that scholarship suggests that the desire to avoid trials prompted the resort to plea agreements. Then, to consider why that might be so, this article explores the contemporary views of criminal juries by unpacking a trial from late nineteenth-century Chicago, People v. Coughlin, and the various objections to the jury that arose at different moments in that trial. These objections, made by new accounts, judges, lawyers, legal scholars and political figures, reveal the full range of ambivalence about criminal juries in Chicago at the end of the nineteenth century. Yet as deep as that unhappiness was, Illinois law failed to respond to those concerns, in part because they were challenges to fundamental aspects of the Anglo-American common law tradition. That resistance to reform may have reflected an abiding commitment to the ideal of the jury, but it made plea agreements an attractive alternative.
"Texas judge: Eye-plucking inmate 'crazy' but sane"
A condemned Texas inmate who removed his only eye and ate it in a bizarre outburst several months ago on death row is "crazy," yet sane under state law, a judge wrote in an appellate court ruling Wednesday that rejected his appeals.
Andre Thomas raised 44 claims in his petition to the state's highest criminal court, challenging his conviction and death sentence for the murder of his estranged wife's 13-month-old daughter five years ago in Grayson County in North Texas....
The nine-member Texas Court of Criminal Appeals unanimously upheld Thomas' conviction and punishment. Thomas "is clearly 'crazy,' but he is also 'sane' under Texas law," Judge Cathy Cochran wrote in a 14-page statement accompanying the court's brief order....
Cochran wrote that although "reasonable people might well differ on the questions of whether (Thomas) was sane at the time he committed these murders or competent at the time he was tried, those issues were appropriately addressed by the defense, the prosecution, trial judge, and the jury during the trial."
While in the Grayson County Jail five days after his arrest, Thomas plucked out his right eye. A judge subsequently ruled he was competent to stand trial. Last December, a death row officer at the Polunsky Unit of the Texas Department of Criminal Justice found Thomas in his cell with blood on his face and had him taken to the unit infirmary. Thomas told officials he had pulled out his remaining eye and ate it. He was taken to a hospital for treatment, then was transferred to a prison psychiatric unit.
There was no reference to the second eye removal in the court opinion.
Thomas was convicted of killing 13-month-old Leyha Marie Hughes. Also slain March 27, 2004, were his wife, Laura Christine Boren, 20, and their son, 4-year-old Andre Lee. "This is an extraordinarily tragic case," Cochran wrote, saying the deaths could have been avoided because Thomas twice went to hospitals for help but left voluntarily and couldn't be held without legal authority.
Can and will New Mexico go forward with executions even after its death penalty repeal?
I am pretty sure that New Jersey's legislative repeal of its death penalty included a provision for commuting the sentences for those Garden State defendants already sent to death row. But, according to this local article, folks in New Mexico are talking about still carrying out previously-imposed death sentences despite the abolition of capital punishment there:
Gov. Bill Richardson may have signed into law a repeal of the death penalty, but that doesn’t mean the two men on New Mexico’s death row will see their sentences converted to life without parole.
Richardson told news reporters Wednesday during a news conference,“I will not commute their sentences.” “Those are past legal issues. In fact, they would probably get off easier with life imprisonment,” Richardson added.
The law Richardson signed goes into effect in July 1 and doesn’t apply to crimes that occurred prior to that, meaning that New Mexico still technically has a death penalty. Richardson also surprised some reporters Wednesday when, moments after signing the repeal into law, he said he remained convinced of his initial statement when Michael Paul Astorga was arrested for killing Bernalillo County Sheriff’s deputy James McCrane Jr. McCrane’s parents pleaded with Richardson to not sign the repeal. “For the record, when this crime was committed I felt that Astorga was deserving of the death penalty and I still do,” Richardson said.
For a host of reasons, I think it is unlikely that New Mexico will ultimately execute the two men on its death row given that it has now abolished the death penalty. But perhaps it will try, and appellate courts will have to decide whether the state can go forward with executions after having taken this sentence off its books.
Another interesting legal issue could arise if New Mexico prosecutors want to still pursue death in response to a terrible murder committed over the next three months. As noted above, the law repealing the death penalty has an effective date of July 1, 2009. This would suggest that prosecutors still could (and arguably still should) seriously consider bringing capital charges against any and all terrible murderers who commits their crimes before the second half of this year.
Defendant seeking to turn sentence into Roman holiday
Though I do not expect Gregory Peck or Audrey Hepburn to turn up in this version tale, this local story details an interesting international sentencing dimension in a case from Connecticut:
Lawyers for Benedetto Cipriani, the Italian citizen convicted of hiring the hit man who killed three men in a Windsor Locks auto repair shop in 2003, are asking the Hartford Superior Court judge who will sentence him to order that he spend his entire prison term in Italy.
Cipriani, 53, returned to his native Italy shortly after the fatal shootings of Robert Stears, Barry Rossi, and Lorne Stevens at B&B Automotive on Spring Street in Windsor Locks on July 30, 2003. After a lengthy legal process in Italy, Cipriani was extradited to the U.S. on certain conditions, one of which was that he not be executed.
One of Cipriani’s lawyers, David Compagnone of Waterbury, says in a motion filed in Hartford Superior Court that another condition of the extradition was that Cipriani be returned to Italy to serve his prison time if he so requests. Compagnone made such a request on Cipriani’s behalf in a Jan. 7 letter to a Justice Department official at the U.S. embassy in Rome.
Prosecutors Dennis O’Connor and Robin Krawczyk have yet to file a formal response to the motion. But they said in a motion to postpone the sentencing, filed last week, that Cipriani “is contesting what the state of Connecticut understands to be the terms of Mr. Cipriani’s sentencing, specifically, the country in which he will serve his sentence.”
The prosecutors asked for more time to consult with U.S. Justice Department officials and prepare a response to Cipriani’s claims. Judge Julia DiCocco Dewey granted the motion, which is why Cipriani’s sentencing didn’t occur Tuesday, as originally scheduled.
March 18, 2009
The death penalty officially killed off in New Mexico
This local story reports that this evening Governor Bill Richardson signed a bill to abolish the death penalty in New Mexico. Here are a few details from the story:
Tonight, Gov. Bill Richardson signed his name to a law that abolishes the death penalty in New Mexico, saying “This has been the most difficult decision of my political career.”
With his signature, Richardson made the Land of Enchantment the 15th U.S. state to ban capital punishment and pushed it into the worldwide community of states and nations that have abolished the death penalty, including many countries in the European Union.
“I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime,” Richardson said. “If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong.”...
The law also creates a sentence of life without parole to replace the death penalty for the most heinous crimes.
The lead up to Richardson’s decision attracted attention across the country as well as beyond its borders. Viki Elkey of the New Mexico Coalition to Repeal the Death Penalty said Wednesday she had conducted more than 50 media interviews in recent days. And most of the reporters she spoke to hailed from European countries....
New Mexico has executed one prisoner since 1976 — Terry Clark in 2001.
This official page reprints Governor Bill Richardson's statement in conjunction with this decision to sign this bill. It is an interesting read that includes these assertions:
Even with advances in DNA and other forensic evidence technologies, we can’t be 100-percent sure that only the truly guilty are convicted of capital crimes. Evidence, including DNA evidence, can be manipulated. Prosecutors can still abuse their powers. We cannot ensure competent defense counsel for all defendants. The sad truth is the wrong person can still be convicted in this day and age, and in cases where that conviction carries with it the ultimate sanction, we must have ultimate confidence – I would say certitude – that the system is without flaw or prejudice. Unfortunately, this is demonstrably not the case.
And it bothers me greatly that minorities are overrepresented in the prison population and on death row.
I have to say that all of the law enforcement officers, and especially the parents and spouses of murder victims, made compelling arguments to keep the death penalty. I respect their opinions and have taken their experiences to heart -- which is why I struggled – even today – before making my final decision.
Yes, the death penalty is a tool for law enforcement. But it’s not the only tool. For some would-be criminals, the death penalty may be a deterrent. But it’s not, and never will be, for many, many others.
While today’s focus will be on the repeal of the death penalty, I want to make clear that this bill I’m signing actually makes New Mexico safer. With my signature, we now have the option of sentencing the worst criminals to life in prison without the possibility of parole. They will never get out of prison.
Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe.
An effort to use charging disparity to fend off death penalty in North Carolina
This story from North Carolina reports on a notable effort by capital defense attorneys to attack the way in which local prosecutors use their charging discretion in capital cases. Here are excerpts from the article:
A couple of defense lawyers are using a local death penalty study that mirrors the racial disparities highlighted in national analyses to try and keep their client from being prosecuted capitally.
An analysis of 177 murder cases over five years shows that prosecutors are six times more likely in Durham, one of the most diverse counties in the state, to seek capital punishment when a black suspect has been accused of killing a white person compared with when the victim is black.
Jay Ferguson and Lisa Williams, two Durham lawyers, plan to use the analysis in their defense of Keith Kidwell, a 24-year-old black man who has spent the past four years in jail awaiting trial on charges that he murdered Crayton Nelms, a white Kangaroo convenience store clerk found beaten to death at work in February 2005.
Ferguson and Williams will argue in court this week that the death penalty should be taken off the table because of the racial disparity issue...
The Durham analysis was conducted by Isaac Unah, a political scientist at UNC-Chapel Hill. The researcher looked at all murder cases indicted by the Durham grand jury and followed them from start to finish.
Of the 177 murder suspects indicted by a Durham County grand jury between 2003 and 2007, 50 could not be prosecuted as death penalty cases because the defendants were too young. Of the 127 other cases, only 20 were ever capital cases. None of those went to jury as a death penalty case because prosecutors often use the threat of capital punishment in bargaining for pleas....
The researchers considered more than race. They also analyzed the cases by the number of victims and the number of charges the suspects faced. "Of all the factors analyzed," Unah concluded in the affidavit attached to his study, "the race of the victim had the greatest effect on the decision to seek the death penalty."
Of the 107 cases where the suspect was black and the victim was black, prosecutors sought the death penalty nearly 10 percent of the time. Of the 20 cases where the suspects were black and the victims white, prosecutors sought the death penalty 35 percent of the time....
Kidwell, according to his attorneys, has been offered one plea deal that, had he accepted, would have put him behind bars for the rest of his life. "I believe they're using the death penalty to extract plea bargains," Ferguson said.
Disappointingly, this press account does not provide a link to the report with the basic data and analysis. I will post the report if I can find it.
The latest data on the ever-growing federal criminal caseload
The Administrative Office of the United States Courts has recently issued this news release, titled "Workload of the Federal Courts Grows in Fiscal Year 2008." Here are some details that should interest federal sentencing fans:
For FY 2008, the twelve-month period ending September 30, 2008, filings in the regional courts of appeals rose 5 percent to 61,104. The overall growth stemmed from increases in civil appeals of prisoner petitions, appeals of administrative agency decisions, involving the Board of Immigration Appeals (BIA), and criminal appeals of drug cases....
Criminal appeals rose 4 percent to 13,667. An amendment to the U.S. Sentencing Guidelines issued in 2007 reduced penalties for most crack cocaine offenses, and affected the number of appeals in non-marijuana drug cases.
More appeals were filed by pro se litigants in 2008, rising 12 percent to 28,055. The largest numeric increase was in pro se filings related to criminal appeals, which more than doubled. Pro se petitions filed by prisoners rose 9 percent to 14,993....
Criminal case filings in the U.S. district courts rose 4 percent in 2008 to 70,896, and the number of defendants climbed 3 percent to 92,355. Increases occurred in cases related to immigration and sex offenses.
Immigration case filings jumped 27 percent to 21,313, and defendants in those cases rose 26 percent to 22,685. The growth in immigration cases resulted mostly from filings addressing improper reentry by aliens and filings involving fraud and misuse of visa/permit. The charge of improper reentry by an alien accounted for 73 percent of all immigration cases and 69 percent of immigration defendants. Seventy-two percent of all immigration cases were filed in the five southwestern border districts — the District of Arizona, Southern District of California, District of New Mexico, and the Southern and Western Districts of Texas.
Sex offense case filings grew 9 percent to 2,674, and defendants in such cases climbed 7 percent to 2,760. Within this category, sexually explicit material cases rose 10 percent to 1,691, and defendants in these cases climbed 10 percent to 1,708.
Overall, drug cases dropped 7 percent to 15,784, and defendants charged with drug crimes fell 3 percent to 28,932. Fraud cases declined 4 percent to 7,746, and defendants in these cases dropped 1 percent to 10,680. Filings of firearms cases fell 3 percent to 8,045, and defendants declined 4 percent to 9,068.
Are a lot more new federal judgeships in the works?
Tony Mauro at The BLT has this important post, headlined "Judicial Conference Adopts New Ethics Code, Seeks New Judgeships." The specifics suggest that a number of new federal judgeships may soon be created:
The Judicial Conference ... agreed to ask Congress to create 63 new judgeships -- 12 appeals court judges and 51 at the district court level. As usual the conference, which is the policy-making body for the federal judiciary, met behind closed doors at the Supreme Court, with Chief Justice John Roberts Jr. presiding....
On the issue of creating judgeships,[conference executive committee chair Judge] Scirica said the conference "hopes the administration and Congress will move ahead on this." Sens. Patrick Leahy, (D-Vt.), and Arlen Specter, (R-Pa.), both addressed the conference and indicated their support for more judgeships, Scirica said. Congress has occasionally added district judgeships over the years, but no new appeals court seats have been created since 1990.
The recommendations made by the conference would add five judges to the 9th Circuit, two each to the 2nd and 3rd, and one each to the 1st, 6th and 8th. Some would be permanent seats and some would be temporary -- meaning that when the judge appointed retires or dies, it would not be refilled. Currently, there are 167 authorized appeals court judgeships. At the district court level, the conference recommends adding 51 judgeships to the existing 678.
Expanding the federal judiciary by nearly ten percent right now would, of course, provide President Obama with an ever greater opportunity to put his stamp on the lower federal courts. And with Congress right now controlled by Democrats, I have to this all the partisan forces are properly aligned to make this expansion a reality sooner rather than later.