April 11, 2009
"Killer who tore out own eyes fuels Texas debate on insanity defense"
The title of this post is the headline of this piece from the Dallas Morning News. Here are some excerpts from the piece:
Everyone agrees Andre Thomas is crazy. In 2004, he cut out the hearts of his wife and her two children and pocketed them. Before his murder trial, he plucked out his right eye. In January, while on death row, he ripped out his other eye and swallowed it.
Thus far, courts say Thomas is not insane. His case is a classic example of the complexities of Texas' insanity defense law – and why some mental health advocates are pushing to change it. Several bills pending in the Texas Legislature would do just that....
Thomas is "clearly 'crazy,' " a judge on the Texas Court of Criminal Appeals wrote in a concurring denial of his appeal last month, "but he is also 'sane' under Texas law."
Death penalty opponent Maurie Levin, an adjunct professor at the University of Texas School of Law, is appalled. "There is something just horribly wrong with a system that permits somebody as severely mentally ill as Andre Thomas to be found competent to stand trial or sane at the time of that crime," said Levin, who consulted with Thomas' defense attorney.
[Professor Bruce] Winick ... expects the U.S. Supreme Court eventually to weigh in on the issue. So far, the court has ruled only that an inmate must be competent to be executed. Last summer the high court also ruled a mentally ill defendant cannot represent himself in court. But the court has not ruled on whether an inmate may be forcibly medicated to render him competent – and therefore eligible for execution. That issue may be ripe for the Supreme Court to decide.
Winick thinks the court ultimately may have to rule whether it is unconstitutional to impose the death penalty on someone who is sane but mentally ill. That issue is a "natural extension," he said, of the court's decisions prohibiting execution for the mentally retarded and juveniles because they have less ability to understand the consequences of their crimes.
Some related posts:
- "Texas death row inmate pulls out eye, eats it"
- "Texas judge: Eye-plucking inmate 'crazy' but sane"
- Interesting coverage of mental illness and sentencing in Harvard Law Review
- Mental illness and the death penalty
- Clemency for mentally ill killer in Indiana
- Mental deficiencies and the death penalty
Lots of news and notes from the US Sentencing Commmission
There are lots of new items of interest appearing on the official website of the US Sentencing Commission. Here are the particulars:
Notice of Public Meeting of the United States Sentencing Commission: Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission is scheduled for Wednesday, April 15, 2009, at 3:00 p.m. The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in Suite 2-500 (South Lobby) as detailed in the agenda. Full Text Link
Public Comment on Proposed Amendments to the Sentencing Guidelines: The Commission received comment from the judiciary, the executive branch, members of the defense bar, and interested organizations in response to its request for public comment on proposed amendments to the sentencing guidelines (see 74 FR 4802-4823). The public comment is accessible through this link. Full Text Link
District, State, and Circuit Statistical Packets Released: Each packet contains a set of figures, tables, and charts comparing selected national sentencing data to data from cases sentenced in each judicial district. Data is also aggregated by circuit and by state (for states in which more than one judicial district is located). Full Text Link
A reality TV twist on federal supervised release
Thanks to How Appealing, I saw this local article headlined "Hatch asks if he can serve end of sentence in Argentina." Though political junkies might first think of Senator Hatch, TV junkies know that this article is about the first winner of Survivor, Richard Hatch. Here are some of the amusing particulars:
If Survivor star Richard Hatch can’t be a free man, he wants to be free to serve his time on supervised release in Buenos Aires, Argentina, and travel wherever he pleases to make guest appearances on the popular CBS reality show.
Hatch filed a motion in U.S. District Court this week asking for travel freedom and to live in Argentina during his term under supervision because he is married to an Argentine national whose family is unable to travel to the United States.
He has asked the court to let him visit Argentina and pursue income opportunities abroad, should it deny his request to live in Argentina. He repeats his contention that he was wrongfully convicted of tax evasion.
April 10, 2009
"Man with urine fetish to serve 60 days in jail"
I will flush a long week away with this local Ohio sentencing story that has the same headline as the title of this post. Here are the particulars:
A man with a urine fetish will begin serving a 60-day jail sentence on April 24, a Franklin County Municipal Court judge ruled today. Alan Patton, 57, was convicted of criminal mischief in September for placing plastic wrap on toilet seats and foam cups in the urinals of a men's room at SportsOhio in Dublin on June 14.
Judge Anne Taylor imposed the sentence on Sept. 9 but delayed sending Patton to jail while his attorneys appealed her right to order a psychological evaluation of their client. The Franklin County Court of Appeals upheld Taylor's decision two weeks ago....
Patton admitted to Dublin police that he placed the items in the restroom of the athletics complex to collect the urine of young boys.
As with all the weird and wacky sentencing stories reported on a friday, readers are encouraged to share a little levity in the comments. I'll start: "I wonder if the local jail should think about ordering an extra supply of urinal cakes for the next few months."
First Circuit finds plain error when sentence based on inaccurate facts
The First Circuit handed down a notable little sentencing opinion dealing with plain error yesterday in US v. Gonzalez-Castillo, No. 07-2134 (1st Cir. April 9, 2009) (available here). Here is how the opinion starts:
In this sentencing appeal, appellant, Ynocencio González-Castillo ("González") –- a Dominican national who pled guilty to unlawfully entering the United States after being previously deported –- challenges the sentence imposed on him by the district court. The only issue presented is whether the sentencing court committed plain error when it imposed a sentence based, in part, on a fact not supported by the record. After careful consideration, we conclude that the facts presented by this appeal require that appellant's sentence be vacated and that the case be remanded for resentencing.
The key inaccurate fact in Gonzalez-Castillo concerned the defendant having a prior unlawful entry conviction, which he did not in fact have. As the First Circuit opinion details, the record makes pretty clear that the sentencing court relied heavily on this inaccurate fact at sentencing. It is heartening to see the First Circuit recognize that the resulting sentencing was infected by plain error and had to be corrected; it is disheartening to discover that the Justice Department was sought to have affirmed an erroneous sentence based on inaccurate facts.
Illinois public defenders plead poverty to try to thwart capital prosecution
The Chicago Tribune has this notable article today, headined "Death penalty fund: Public defenders say they're out of money and can't defend man in death penalty case: State funds for this year have already run out." Here are some excerpts:
In a novel legal move, court-appointed attorneys for a man charged in a double murder want the state barred from seeking the death penalty because a state fund to pay for the defense of capital cases has run out of money.
Without the funds, Assistant Public Defender Marijane Placek said, her office would be unable to pay for the help of expert witnesses, depriving her client, Brian Gilbert, of an adequate defense. Gilbert is charged in the 2007 fatal stabbing of his girlfriend's two sons, Marquise, 12, and Quinton Jackson, 14, after a quarrel over housework....
In a motion filed Wednesday, Placek informed Circuit Judge Thomas Gainer Jr. that the public defender's annual allotment in the fund had been used up. She wrote that Gilbert has a long-standing, severe mental illness and that the case will require a massive amount of work to prepare for trial. "We have no money to defend the death penalty," Placek said Thursday in an interview. "And for this reason, our client can't get a fair trial."...
Placek's motion is the first of its kind for the public defender's office but probably not the last, said Assistant Public Defender Julie Harmon, the office's capital case coordinator. But she denied it's a new legal tactic to remove the threat of the death penalty for clients. "It's not a strategy. It's a response to a situation," Harmon said. "We may have to do it in multiple cases as the need arises. If there's a reason we can't do our job, we're going to file the motion."...
"We've never had this difficult of a situation before," Harmon said. "Last [year] it got ugly at about the end of April, but we were able to prevail on our witnesses and experts, saying, 'OK, we'll be able to get you paid in September or October.' But then they ... still aren't paid in full. They've just gotten fed up. They're telling us they're not going to take anymore cases or they're going to do the bare minimum."
Sally Daly, spokeswoman for the Cook County state's attorney's office, said prosecutors intend to oppose the motion.
April 9, 2009
Scholarly exploration of applying Apprendi to juve transfer decisions
I just noticed on SSRN this new paper by Jenny E. Carroll, titled "Rethinking the Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi, Adult Punishment and Adult Process." This looks like a must-read for not only for those who enjoy trips to Apprendi-land, but also for anyone who follows juvenile justice issues. Here is the abstract:
This article makes valuable new contributions to the burgeon-ing scholarly discourse on Apprendi v. New Jersey -- a landmark decision that celebrates its tenth anniversary this year. It builds on the author's experience as a public defender, during which she pioneered the surprising but straightforward argument that under Apprendi, findings that justify transferring a juvenile to adult court must be proven to a jury beyond a reasonable doubt.
Apprendi requires that any fact authorizing a sentence higher than the otherwise applicable statutory maximum must be found to a jury using a beyond a reasonable doubt standard. This tenet applies directly to juvenile transfer hearings, which rely on a consideration of facts to determine whether a juvenile should face trial and sentence in adult court. The facts that serve as a basis for transfer result in exposure to a higher sentence than could be imposed if the offender remained in juvenile court. Despite Apprendi's readily apparent application, juvenile courts have refused to apply Apprendi to juvenile transfer hearings. This article presents this argument and critiques the reasoning of courts that have refused to apply Apprendi in this context. It then explores the theoretical underpinnings of courts' reluctance to apply Apprendi, filling a scholarly void that exists at the intersection of Apprendi and the juvenile justice system.
Some of the latest "sexting" news and notes
It is now almost impossible to keep up with all the media coverage being given to "sexting" lately, but here a few notable stories on the topic I have seen recently:
- From CNN here, "'Sexting' lands teen on sex offender list"
- From the Providence Journal here, "‘Sexting’ poses perplexing legal thicket"
- From the Oxford Press here, "Legislators to introduce sexting law next week"
- And from a campus newspaper here, "Official: 'Sexting' possible breach of campus code of conduct"
Eighth Circuit formally rejects heightened burden of proof in modern federal sentencing
The Eighth Circuit today in US v. Villareal-Amarillas, No. 07-3616 (8th Cir. April 9, 2009) (availabe here), formally rejects a defendant's claim that a higher burden of proof should apply to fact-finding that significantly increase applicable guideline sentencing ranges. Here is the case's unofficial summary from the court's website:
Due process clause does not require the government to prove by clear and convincing evidence facts that produce a substantial increase in the advisory guidelines range, and such facts need only be proven by a preponderance of the evidence; prior cases which suggest that such facts need to be proven by clear and convincing evidence when they have an extremely disproportionate effect on a defendant's sentence rest on a misinterpretation of McMillian v. Pennsylvania, 477 U.S. 79 (1986), and the court joins with other circuits in specifically rejecting this interpretation; the district court properly considered the 3553(a) factors and was not required to mechanically recite each factor at sentencing.
Interestingly, this opinion goes out of its way to throw dirt on the circuit's pre-Booker rulings in this arena in the course of going on to hold that "[a]fter Booker, a due process challenge to findings of fact that impact the defendant’s advisory guidelines sentencing range 'is cognizable more properly as a challenge to the reasonableness of his sentence.'"
"6-year-old sentenced to traffic school"
The title of this post is the title of this local article I found via a link from CNN. Here are the notable particulars:
Even though mom got the ticket a Los Lunas magistrate judge isn't letting her child off the hook for refusing to buckle up. The child's mother, who was ticketed for failing to restrain her child, asked Judge John "Buddy" Sanchez if he could help discipline her 6-year-old.
The boy always took his seat belt off despite her pleas, the mother said. "He took off his seat belt, I pulled over again and put it on and he took it off right in front of the cop," said Jessica who did not want to release her full name.
In January Jessica was stopped and ticketed. She landed in front of Judge Sanchez last month and asked him to talk to her son. "She didn't want to plead guilty to it because it was her son that was actually not obeying her," Sanchez said.
He agreed that it was Jessica's son who needed to learn a lesson so he ordered ther to take her young son to traffic school. "But there was nothing because of his age," said Jessica.
That's when the judge reached out to a Los Lunas driver's education instructor Avilio Chavez. "I thought he was kidding," Chavez said. "He wanted to send him to defensive-driving class or driver-improvement class."
After some discussion Chavez and Sanchez agreed on a simpler solution to teach the young lawbreaker a lesson. "Full seat-belt school," Sanchez said. Jessica agreed to take her son to a seat-belt safety class, which is expected to start in a month. They'll attend together and also learn other traffic safety measures.
Notable Sixth Circuit reversal for procedural unreasonableness
The Sixth Circuit today has an interesting little reasonableness decision in US v. Garcia-Robles, No. 07-2209 (6th Cir. April 9, 2009) (available here). Here is how the decision starts, and a few key lines from the ruling:
In June 2007, Julio Cesar Garcia- Robles (“Garcia-Robles”) pleaded guilty to unlawful re-entry of an alien deported after an aggravated felony conviction. The district court and the parties agreed that Garcia- Robles’s sentencing guidelines range was 30 to 37 months of incarceration. At sentencing, Garcia-Robles asked for a downward variance to a sentence of 24 months of incarceration. The government asked that the court impose a sentence within the guidelines range. The district court determined that, because of the severity of the offense and the fact that Garcia-Robles had previously returned to the United States after deportation, an upward variance was necessary. The district court sentenced Garcia- Robles to 96 months of incarceration. Garcia-Robles appeals this sentence and argues that the district court failed to give proper notice of this upward variance and that the sentence imposed was procedurally and substantively unreasonable.
We VACATE Garcia-Robles’s sentence as procedurally unreasonable and REMAND for resentencing....
Given the unique circumstances of this case, we hold that the district court’s sentence was procedurally unreasonable because the district court failed to provide Garcia-Robles with an opportunity meaningfully to address the district court’s chosen sentence. Based on the PSR and the government’s position that the guideline range was reasonable, Garcia-Robles entered the sentencing hearing believing that he should be arguing against the backdrop of a 30-to-37-month sentence. Garcia-Robles was unaware that the district court was contemplating a significantly higher sentence and thus had no chance to argue against such a variance before the court announced its sentence.
A telling and troubling gubenatorial veto in New Mexico after death's repeal
This local story out of New Mexico, headlined "Governor vetoes teen sentencing change," provides further support for my enduring concerning that anti-death penalty advocacy and developments have a way of sapping political energy and interest in other progressive sentencing reforms. Here is the basic story, with my commentary to follow:
When Gov. Bill Richardson showed up at the Farm & Ranch Heritage Museum on March 27 to sign the veteran's museum bill and meet with constituents, he was greeted by District Attorney Susana Martinez and family members of slain teenager Ashley Wax, all of whom urged him to veto a bill that would have given judges more discretion in the sentencing of juvenile murderers.
Richardson conceded at the time that he wasn't aware of the legislation, Senate Bill 7, but he vowed that he would review it. On Wednesday, Richardson vetoed the bill. "While I understand the intent behind the bill, and still believe that many youthful offenders can and should be rehabilitated, I am concerned that signature of Senate Bill 7 will inadvertently cause harm to the public," Richardson said.
Richardson said in his veto message that the law currently gave a judge the discretion to sentence murderers aged 15-17 to less than the maximum adult prison term. "As such, the offenders' age and other factors can and should be considered by a judge in sentencing," Richardson said. "However, signature of Senate Bill 7 would, in essence, allow courts to treat serious youthful offenders who commit the most heinous of crimes in the same manner as youthful offenders who commit minor offenses; hence, any deterrence that the enhanced penalty might cause would be taken away."
The bill had been introduced by Sen. Cisco McSorley, an Albuquerque attorney who is chairman of the Senate Judiciary Committee. It passed 24-12 in the Senate, but by a much narrower 35-31 margin in the House. It would have allowed a juvenile aged 15 to 17 who is convicted of first-degree murder to be classified and treated as a "delinquent child" if the court determines that the child is amenable to treatment.
"Currently, if a child is accused of murder, a judge has no option to do a test on the child to see if he or she is a threat or if that child can be rehabilitated," McSorley said last month. "A judge's hands are tied."
Though I do not know all the specifics of New Mexico sentencing law, I am quite confident that, as a practical matter, this bill about how to deal with teenage killers is a lot more consequential to a lot more defendants and victims than New Mexico's death penalty laws. Nevertheless, while efforts to abolish the (rarely applied) death penalty in New Mexico received an extraordinary amount of attention from interest groups and the public, this effort to allow judges to have more discretion in dealing with juve killers gets virtually no public attention and does not get the kind of national support that it likely deserved. Indeed, as this press story highlights, Gov. Richardson was not even aware of the bill until opponents started urging him to veto it.
I tend to get a lot of push back from the well-meaning folks who seek death penalty abolition when I contend that abolitionist efforts can undercut other progressive criminal justice reform movements. But, stories like this one reinforces my worry that these abolitions often too busy fiddling (and celebrating minor and largely symbolic victories) while other more consequential aspects of modern criminal justice systems continue to burn.
Some related posts:
- My latest (academic?) musings about progressive punishment perspectives
- "Sentencing Children to Die in Prison"
- "Teens locked up for life without a second chance"
- EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender
- Two (long) reports on problems administering the death penalty
- Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?
- More on Supermax, human dignity, and public safety
- Why I obsess over courts and others obsessing about the death penalty
- Was the ABA's Ohio death penalty report just a big capital waste?
- Death slows in Ohio, bringing more LWOP sentences
"Disentangling the Sixth Amendment"
The title of this post is the title of this interesting-looking new piece by Sanjay Chhablani that I just noticed via SSRN. Here is the abstract:
The Sixth Amendment, framed in an atmosphere of deep mistrust of a potentially oppressive government, mandates that defendants in all criminal prosecutions be provided seven fundamental procedural protections. Despite the broad language of the Sixth Amendment, the scope and meaning of its protections have undergone significant development over the course of the two centuries, leading to the Court's adoption of a number of textually inconsistent constructions of the Sixth Amendment, ones that have rendered the Sixth Amendment far less protective of individual liberty.
After developing a historical account of the Court's Sixth Amendment jurisprudence, this Article provides a doctrinal framework for understanding the origins of the textually inconsistent, restrictive readings of the Sixth Amendment. Specifically, the Article claims that these constructions can be traced to the entanglement of the Sixth Amendment with the Fourteenth Amendment's Due Process Clause. While in some instances the Court has entangled the two constitutional provisions during the process of incorporating the Sixth Amendment, in other instances the Court has entangled them by using interpretative methodologies more properly applicable in the Due Process context to give meaning to the Sixth Amendment's provisions. The Court has also entangled the two constitutional provisions by locating expansive procedural protections in the Sixth Amendment instead of more properly deriving them from general Due Process principles, ironically opening the door to future restrictive readings of the Sixth Amendment.
In developing this doctrinal framework, the Article begins by discussing two recent seminal developments in the Court's criminal procedure jurisprudence. In particular, the Article argues that the Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Crawford v. Washington, 541 U.S. 36 (2004), can be seen as part of the same endeavor to return to more textually sound constructions of the Sixth Amendment. The Article then canvasses the various provisions of the Sixth Amendment, identifying those textually inconsistent readings that can be traced to the entanglement of the Sixth Amendment and proposing alternate, textually consistent constructions, ones that prove more faithful to the critical role of the Sixth Amendment in safeguarding individual liberty.
April 8, 2009
Should we blame bad apples or a bad culture for federal prosecutors gone wild?
In the wake of Judge Emmet Sullivan's strong rebuke of federal prosecutors when setting aside the conviction of former Senator Ted Stevens (basics here), the media are starting to talk more broadly about misconduct by federal prosecutors. For example, the Wall Street Journal has this piece, headlined "Justice Department Unit Is Again the Focus of Scrutiny," which includes this notable passage:
Todd Foster, a former federal prosecutor in Tampa and Houston and a former Federal Bureau of Investigation agent, questions whether the case would have been re-examined as closely if it hadn't involved a U.S. senator. "My question is what happens to the rest of us?" he asked. "What happens when the person doesn't have the resources Sen. Stevens had? What happens to those cases that don't reach the attorney general?"
And Politico has this lengthy and effective article by Josh Gerstein headlined "Fed judges are fed up." It includes these potent quotes:
One veteran trial lawyer who practices in Washington said long-serving judges like Judge Sullivan are often deeply outraged by government misconduct because they realize how many defendants have seen their fates sealed based on promises or assurances from prosecutors.
“Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,” said the longtime litigator, who asked not be named. “When their confidence is shaken because of something they’ve seen, suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes. It’s disconcerting.”
Others said the failings were likely to be more widespread than just the Public Integrity Section, at the heart of the Stevens prosecution. ““You would think if any section of the Department of Justice would know how to comply ... it would be that section,” said a lawyer who regularly faces off with DOJ attorneys.
Because I tend to view a lot of misconduct as the result of a bad culture rather and not just bad apples, I cannot help but also wonder and worry if we are now only seeing the tip of the prosecutorial misconduct iceberg. I want like to believe that ugly stories of federal prosecutorial misconduct are aberrations, but maybe I need to become even more cynical about whether the supposed "good guys" in the criminal justice system really are putting a commitment to justice ahead of a commitment to winning at all costs.
Interesting report on a Heller argument in the Seventh Circuit
I received today via e-mail this interesting report from a helpful federal public defender:
Some time ago, I advised you of a decision in the Western District of Wisconsin on my motion to dismiss in a 922(g)(9) case based on Heller. The case was United States v. Steven Skoien [and the SL&P blog coverage can be accessed here].
I just wanted to let you know that we had oral argument on the case in the 7th Circuit this Monday and, although it is clearly an uphill climb, the court seemed more receptive to the claim than I expected them to be. Judge Sykes, in particular, seemed very troubled by the fact that 922(g)(9) provides a lifetime ban that, in effect, treats misdemeanants worse than felons, because misdemeanants can not petition to have their rights restored. The panel seemed to be struggling with what standard of scrutiny to apply. As you know, if you are interested, you can listen to the argument on the court's website [via this link].
Some related Second Amendment posts:
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
Advice for prosecutors in an advisory guidelines world
A thoughtful readers sent me this BePress link to what seems to be a thoughtful article about post-Booker prosecutorial discretion. The article by Alex Whiting is titled, “How Prosecutors Should Exercise Their Discretion Now that the Sentencing Guidelines are Advisory,” and here is the abstract:
Since shortly after the implementation of the Sentencing Guidelines, the Department of Justice has sought to constrain the discretion of prosecutors at the charging, plea-bargain and sentencing phases in order to ensure the faithful application of the Guidelines. The latest manifestation of this policy is the so-called "Ashcroft Memorandum," which requires prosecutors to charge and pursue the most serious, readily provable offense and advocate a Guideline sentence in nearly all cases. Although this policy arguably made sense when the Guidelines were mandatory, it makes less sense now that they are advisory. This article argues that the Department should revisit this policy and return some limited discretion to line prosecutors, particularly at sentencing. Under an advisory Guidelines regime, the Department's current policy of strict adherence to the Guidelines takes prosecutors out of the sentencing process, perpetuates some of the failings of the mandatory Guidelines approach, and prevents line prosecutors from participating in the formulation of sentencing policy. If the Department departs from its current approach, however, the challenge is to determine how much discretion to grant prosecutors. This article suggests various substantive and procedural mechanisms to cabin the discretion exercised by line prosecutors and to ensure uniformity and transparency in sentencing.
"Teens locked up for life without a second chance"
The title of this post is the headline of this new extended CNN piece focused on juve LWOP sentences. Here are snippets:
[There are at] least 73 U.S. inmates — most of them minorities — who were sentenced to spend the rest of their lives in prison for crimes committed when they were 13 or 14, according to the Equal Justice Initiative, a nonprofit organization in Alabama that defends indigent defendants and prisoners. The 73 are just a fraction of the more than 2,000 offenders serving life sentences for crimes they committed as minors under the age of 18....
Numerous studies have shown that in the 1970s and 1980s, minors were rarely given life sentences, let alone life without parole, experts said. By the early 1990s, according to the Department of Justice, an alarming spike in juvenile homicides spawned a nationwide crackdown, including a movement to try kids in adult courts....
Today, there are only a handful of states — including Alaska, Colorado, Kansas, New Mexico and Oregon — that prohibit sentencing minors to life without parole, according to the National Conference of State Legislatures....
In the past three years, attorneys at the Equal Justice Initiative have appealed cases involving 13- and 14-year-old offenders in state and federal court. Attorneys argue that the sentences are "cruel and unusual punishment" given the tender years of the offenders.
Some related posts on juve LWOP:
- California considering eliminating LWOP for juveniles
- Nebraska working to reform juve LWOP sentences
Little Sixth Circuit ruling flags enduring question over Kimbrough's reach
The Sixth Circuit today has a seemingly minor ruling today in US v. Vandewege, No. 07-2250 (6th Cir. April 8, 2009) (available here), in which the court remands for resentencing in a crack case. The case is blog-worthy, howevere, because a concurrence by Judge Gibbons spotlights an enduring question about the Supreme Court's work in Kimbrough. Here are snippets from her opinion:
Succinctly stated, Kimbrough held that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears, 128 S. Ct. at 843-44. Neither Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests. See Maj. Op. at 3 (asserting that “[t]he Supreme Court has made it clear” that district judges may depart from the Guidelines based upon any policy disagreement and claiming that the Court has established a higher standard of review for such departures). Kimbrough instead expressly reserved the question as to whether a district court could categorically vary from the Guideline range based solely upon a policy disagreement with the Commission in an area other than the crack-cocaine disparity. Kimbrough, 128 S. Ct. at 575 (noting that the “crack cocaine Guidelines . . . present no occasion for elaborative discussion” of the larger question of district courts’ ability to categorically disagree with the Commission’s policy decisions). This was because the crack-cocaine Guidelines did “not exemplify the Commission’s exercise of its characteristic institutional role” of gathering “empirical data and national experience” and adjusting the Guideline range accordingly. Id. (internal quotation and citation omitted); see also Spears, 129 S. Ct. at 842-43 (noting that Kimbrough’s holding allowing for categorical departures based upon policy disagreements applied only as to sentences for crack or cocaine offenses). The Supreme Court only hinted that if a district court could categorically depart from the Guidelines range in an area where the Commission has exercised its “characteristic institutional role,” closer scrutiny of such a variance may be required. Kimbrough, 128 S. Ct. at 575 (“[C]loser review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range fails to properly reflect § 3553(a) considerations even in a mine-run case.” (internal quotation and citation omitted)). Kimbrough has thus not “made it clear” that district courts may vary from the Guidelines based solely upon any policy disagreement. Maj. Op. at 3.
Applied to the present case, this debate over Kimbrough and Spears’s portent is purely academic. Vandewege’s appeal presents us only with a defendant convicted of distributing cocaine, an area where the district courts’ authority to categorically depart from the Guidelines’ policy is clear. We therefore have no occasion or authority to issue any holding bestowing upon district courts the carte blanche power to reject all policy decisions made by the Sentencing Commission, the dicta of the majority notwithstanding. With these observations, I concur in the judgment of the court.
April 7, 2009
Iraqi shoe thrower gets prison sentence cut by appeals court
This BBC News article provides some additional evidence that crime and punishment in Iraq is very different than crime and punishment in the US:
The Iraqi journalist who hurled his shoes at former US President George W Bush has had his sentence cut from three years to one year on appeal. Muntadar al-Zaidi's lawyer argued that the charge should be changed from assault to insulting a foreign leader. The judge agreed and reduced the term in line with the less serious offence.
An official for the court said the presiding judge had also taken into account the fact that Zaidi had no prior criminal history. "The appeal court issued its decision today... taking into consideration that he [Zaidi] is still young and doesn't have any previous convictions," said Abdul Sattar al-Birqdar, the spokesman for the Iraqi judicial council.
Zaidi's lawyer, Yaha al-Ittabi, said the decision showed "the independence and the integrity of the Iraqi judiciary".
Though this case garners much attention because of the notoriety of the victim of the offense, I cannot help but note the novelty of an appeals court reducing a prison sentence by 2/3. I wish the independence and the integrity of the United States judiciary would sometimes lead an appellate court to rule that a young first-offender does not deserve as long a sentence as a sentencing court decided to impose.
Strong words and actions as Stevens conviction set aside
As detailed in this CNN report, the formal dismissal of former Senator Ted Stevens's prosecution came with some verbal fireworks today:
A federal judge Tuesday set aside the conviction of former Alaska Sen. Ted Stevens. He also initiated criminal contempt proceedings against the government lawyers who prosecuted Stevens. He appointed an independent, nongovernment attorney to investigate the matter.
"Until recently, my faith in the criminal justice system was unwavering. But what some members of this prosecution team did nearly destroyed my faith. Their conduct has consequences they must know can never be reversed," Stevens said in a statement read to the court. "But today ... my faith has been restored ... [I have] new hope that others may be spared from similar miscarriages of justice."
Stevens added that he would "encourage the enactment of legislation to reform laws relating to the responsibilities and duties of those entrusted with the solemn task of enforcing federal criminal laws."
In issuing his ruling, U.S. District Judge Emmet Sullivan noted that the Department of Justice's investigation into potential misconduct by government prosecutors had already gone on for six months with no result. "The silence is deafening," Sullivan said.
Regular readers may recall that I was hoping that Stevens might get reelected so that he could work on criminal justice reform from the Senate floor. Even though he now has to work from the outside, I hope he will still follow through on this pledge to push for legislation to regulate federal prosecutors.
Some related posts:
- DOJ seeking now to drop all charges against former Senator Ted Stevens
- Official AG Holder statement on DOJ's new position in Stevens case
- Prosecutorial misconduct or just standard operating procedures in Senator Stevens' prosecution?
- Plot thickens in allegations of prosecutorial misconduct in Senator Stevens' case
- More ugliness revealed in prosecution of former Senator Ted Stevens
- Senator Stevens convicted on all counts
- Some sentencing questions after Senator Stevens conviction
- How should (and will) Senator Stevens' political past and future impact his sentencing?
UPDATE: This Legal Times report suggests that Judge Sullivan has been troubled by prosecutorial misconduct in cases others than just Stevens's case:
At a hearing Tuesday morning in the U.S. District Court for the District of Columbia on the government's motion to dismiss, Sullivan said Stevens' case was symptomatic of a larger trend of misconduct. The judge urged his colleagues around the country to enter exculpatory evidence orders at the outset of every criminal case, and to require that exculpatory material be turned over in a usable form.
The judge said Attorney General Eric Holder Jr. should train new and veteran prosecutors on the rules of evidence. He further suggested that President Barack Obama obtain the commitment of prospective U.S. attorneys to abide by these rules, and that the Senate Judiciary Committee push nominees on this point during confirmation hearings.
"We must never forget the Supreme Court's directive that a criminal trial is a search for the truth. Yet in several cases recently, this court has seen troubling failures to produce exculpatory evidence in violation of the law and this court's orders," Sullivan said.
States looking to capture fees through criminal justice systems
The New York Times has this interesting piece on real-world economics in some state courts. The piece is headlined, "Pinched Courts Push to Collect Fees and Fines," and here is how it starts:
Valerie Gainous paid her debt to society, but almost went to jail because of a debt to Florida’s courts. In 1996, she was convicted of writing bad checks; she paid restitution, performed community service and thought she was finished with the criminal justice system. This year, however, she received a letter from Collections Court telling her that she was once again facing jail time — this time for failing to pay $240 in leftover court fees and fines, which she says she cannot afford.
Ms. Gainous has been caught up in the state’s exceptionally aggressive system to collect the court fines and fees that keep its judiciary system working. Judges themselves dun residents who have fallen behind in their payments, but unlike other creditors, they can throw debtors in jail — and they do, by the thousands.
As Florida’s budget has tightened with the economic crisis, efforts to step up the collections process have intensified, and court clerks say the pressure is on them to bring in every dollar. “I would say there is an even more dramatic focus on those funds now,” said Beth Allman, the spokeswoman for the Florida Association of Court Clerks.
Other states are intrigued by Florida’s success, and several, including Georgia and Michigan, have also cracked down on people who owe fines. John Dew, the executive director of the Florida Clerks of Court Operations Corporation, said that when he attended national conferences about fees collection, states were “really looking to what we’re doing in Florida.”
Seventh Circuit notes, but dodges, attacks on federal child porn guidelines
In a new per curiam ruling in US v. Huffstatler, No. 08-2622 (7th Cir. April 6, 2009) (available here), a Seventh Circuit panel discusses the attacks being made on federal child porn guidelines in the course of affirming an above-guideline sentence. Here is part of the discussion:
Huffstatler correctly submits that the child-pornography sentencing guidelines, U.S.S.G. §§ 2G2.1-.2, like the drug guidelines at issue in Kimbrough v. United States, 128 S. Ct. 558 (2007), are atypical in that they were not based on the Sentencing Commission’s nationwide empirical study of criminal sentencing....
Furthermore, since it was the Commission’s failure to exercise its “characteristic institutional role” that persuaded the Supreme Court that district courts possess the discretion to sentence below the crack guidelines based on policy disagreements, see Kimbrough, 128 S. Ct. at 575, Huffstatler contends that sentencing judges possess the same discretion when dealing with the child-exploitation guidelines. This argument was developed by federal defender Troy Stabenow in a 2008 paper, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines 27-32 (July 3, 2008), http://www.fd.org/pdf_lib/ child%20porn%20july%20revision.pdf. Over the past year, district courts have repeatedly cited Stabenow’s article for the proposition that the child-pornography guidelines’ lack of empirical support provides sentencing judges the discretion to sentence below those guidelines based on policy disagreements with them....
But we are confronted with a different question. Huffstatler ... attempts to invalidate the child-exploitation guidelines, arguing that district judges not only may impose below-guidelines sentences based on their policy disagreements with the child-exploitation guidelines, they must.... Even assuming that district courts may exercise their discretion based solely on policy disagreements with the child-exploitation guidelines (an issue we need not decide here), Huffstatler’s argument is without merit.
Those troubled by the federal child porn sentencing guidelines should not be troubled at all by how this issue gets dodged in Huffstatler. The defendant in Huffstatler was a producer, not merely a downloader, of kiddie porn and he had a long and ugly criminal history. In other words, Huffstatler is a terrible test case for the attacks on the child porn guidelines brought in other courts; in context, the per curiam opinion in Huffstatler is effective and sound for its cautious (and praiseworthy?) discussion of what lower courts have done in other contexts.
April 6, 2009
Should Atkins impact non-capital sentences for mentally retarded defendants?
This article in the Chicago Tribune, headlined "Mentally retarded Texas teen serving 100-year prison term for sex assault of boy: He admitted assaulting 7-year-old, but his retardation was not considered," raises interesting and important questions as to whether and how mental retardation ought to limit non-capital sentencing outcomes. Here is how the article starts:
The crime Aaron Hart confessed to was undeniably repellent. Last September, the 18-year-old man was charged with sexually assaulting a 7-year-old neighbor boy behind a tool shed in the small east Texas town of Paris. A relative of the victim said she walked outside and saw Hart with his pants pulled down, standing next to the boy.
Police read Hart his Miranda rights and he quickly admitted his guilt. On Feb. 11, Hart's court-appointed attorney entered guilty pleas to each of five related felony counts, a jury recommended multiple sentences and a judge then ruled that the prison terms be served consecutively, for a total of 100 years.
That might have been the end of Cause No. 22924 in the 6th Judicial District Court of Lamar County, Texas — just another dismal criminal case on the docket of an obscure town. Except that now, less than two months after Hart was sentenced, every court official who had a hand in the case seems to agree that he doesn't really belong in prison for what amounts to the rest of his life.
That's because Hart is profoundly mentally retarded. He has an IQ of 47, and his parents say he functions at the level of a 9-year-old. The boy he confessed to molesting is mentally retarded as well.
What's more, the judge and the jury never heard any expert testimony about Hart's diminished mental functioning, his capacity to understand his Miranda rights or his ability to assist in his own defense, because his defense attorney never subpoenaed any experts.
And since he has been in jail, Hart himself has been repeatedly raped, according to his parents. The first assault, allegedly by an inmate who is serving a far shorter sentence of just 8 years for sexual indecency with a child, so disturbed the alleged rapist's mother that she called Hart's parents to apologize.
As all Eighth Amendment fans know, the Supreme Court declared in Atkins that the Constitution prohibits states from seeking the death penalty against murderers who are mentally retarded. This case raises the interesting and important question of whether and how Atkins ought to cross over to the non-capital sentencing universe.
April 5, 2009
"States pull back after decades of get-tough laws"
The title of this post is the headline of this extended AP report from this weekend. Here are some excerpts from an effective piece that details legal reform developments in numerous states:
For the last four decades, the laws of the land were all about dropping the hammer on crime by locking away criminals for a very long time.... Nearly half the country and the federal government have adopted some kind of hardcore laws, while "get tough on crime" became the mantra of politicians running for everything from the local city council to the president of the United States....
But after cracking down and incarcerating hundreds of thousands, cash-strapped states including New York, Kentucky and Kansas are pulling back. They face an uncommon confluence of dire economics and prisons bursting at the seams and several have changed, in whole or in part, their stances on hard punishment.
Their reasons: the get-tough laws didn't always work, especially when it came to slowing recidivism, the revolving door of prisoners who get out, mess up again, and come back. There were legal challenges, and questions about whether the punishment always fit the crime.
And of course, there's the money. In tough economic times, the expensive laws are increasingly being deemed expendable.... "The rapid rise in prison populations over the past two decades has now collided with the fiscal crisis," said executive director Marc Mauer.
Two notable new papers on the death penalty
I never get tired of reading what Professor Deborah Denno has to say about the death penalty, and thus I was pleased to discover that she has two new papers posted on SSRN. Both appear to be chapters from new death penalty books, and here are the links:
Split Third Circuit debates crack guideline retroactivity following binding sentencing plea
In a complicated ruling on Friday, a divided Third Circuit in US v. Sanchez, No. 08-1847 (3d Cir. April 5, 2009) (available here), seemed to create a circuit split on whether a district court can reduce a previously imposed crack sentence based on a binding plea agreement. The first paragraph of Judge Roth's dissent from the Sanchez majority provides a flavor of the issues involved:
No good deed goes unpunished. The majority provides for resentencing under § 3582(c) for criminal defendants who go to trial – but not for those who enter into binding plea agreements. For the majority, the binding nature of such agreements justifies a difference in the treatment between the offenders who choose to go to trial and those who choose to plead guilty thus saving judicial and governmental resources. I find this distinction false because a jury verdict is also binding on the parties. Accordingly, I believe that the binding effect of the factors leading up to the judgment should not preclude the application of § 3582(c). For these reasons, I respectfully dissent from the majority opinion and suggest that defendants sentenced under binding plea agreements should be permitted to move for resentencing based on a change in the Guidelines that would affect the basic elements that led up to the final plea agreed upon.
For various reasons, Sanchez is not likely a good cert vehicle. But the ruling spotlights another challenging legal issue that has arisen in the retroactive implementation of the new crack guidelines. It will be interesting to see if the Supreme Court ever takes up any cases involving resentencings under § 3582(c).
April 5, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack