May 16, 2009
Seeking more number crunching and deep thoughts on the great writ
US District Judge Lynn Adelman's new article titled "The Great Writ Diminished" aspires to "stimulate a discussion about the current state of habeas corpus. Wonderfully, the article has already started such a discussion in these blog comments, and I want to keep the momentum going in this post.
Specifically, I would like to see a lot more number crunching concerning habeas appeals of state convictions in federal courts. Judge Adelman builds off the ground-breaking 2007 Vanderbilt study which, as discussed here, found that of 2384 non-capital filings examined, petitioners received relief a rate of 1 in every 341 cases filed, whereas of the 267 capital cases examined, about 1 in 8 petitioners received relief. These national numbers may obscure lots of significant state variations and also significant issue-specific variations that could and should tell us a lot more about how the great writ is really working.
I also would like to hear more thoughts about what might seem like the "right" number of habeas grants, especially in light of the inevitable need to triage federal resources. I share Judge Adelman's instinct that habeas relief is granted too infrequently in non-capital cases, but I also fear that habeas relied is grant too frequently in capital cases. And yet, maybe this is a healthy pattern of "habeas irregularity" on the theory that, given the stakes involved, it is generally sensible for federal courts to micro-manage state capital cases even though this might necessarily mean they will often show perhaps too much deference to state non-capital convictions. Indeed, arguably this is exactly what the Congress that passed AEDPA might want to be happening.
Some related posts:
- Ground-breaking empirical work on habeas actions under AEDPA
- "Rethinking the Federal Role in State Criminal Justice"
- "Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences"
- "The Great Writ Diminished"
Notable report on the impact of the prison economy in the Sunshine State
With the state short on cash and prison beds, Republicans in the Florida Legislature are being forced to reassess the tough-on-crime mentality that has permeated their politics for years. Florida's prison population cracked 100,000 this year, and state prison officials expect to need more and more prison beds during the next five years as the number of people incarcerated swells past 120,000.
Orange and Pinellas counties led the state in that growth rate in 2008, with Orange's new incarceration rate growing 15.2 percent to 1,868 new prisoners. The single largest category of growth in crimes was burglary, state records show. "Our prisons are growing faster than anything else in our state," said Senate criminal-justice budget chief Victor Crist, a Tampa Republican....
This year's money crunch also prompted lawmakers to abandon plans to bond out $300million in new prison construction in future years. Rather, to address its prison-population growth, lawmakers ended years of resistance and included plans in the state's $66.5billion budget passed Friday to beef up drug courts across the state. These courts are designed to find programs for drug users instead of dumping them into the state prison system.
Lawmakers also directed circuit judges to keep more nonviolent offenders who commit lower-level crimes out of prisons. The spending blueprint even lets the Corrections Department start negotiating with counties and other states to take state prisoners when the department is close to running out of beds....
Lawmakers shied from the normal bills stiffening sentences for sexual predators, drug crimes and other offenses. Another bill to crack down on smuggling illegal immigrants into the country passed only after the penalty was watered down from prison time to a fine.
It's a far cry from just two years ago, when lawmakers rushed to meet Crist's 2006 campaign demand that the first bill he signed be the "anti-murder" legislation that would deny bail to violent offenders and is expected to result in about 2,500 more incarcerations by mid-2011.
"These are tough times, and we can't operate in a vacuum," said Rep. Darren Soto, the Orlando Democrat who carried a failed bill this spring named after an Osceola teen killed by street racers. Because the bill could have led to prison sentences for three-time street racers, it was bottled up in the Senate. "If we're going to put more penalties into law, we have to be willing to house these folks. And this wasn't the year for it."
May 15, 2009
The latest SCOTUS nominee news and seeking some predictions (or dreams)
According to this AP article, the "White House says President Barack Obama has not started interviewing candidates for the upcoming Supreme Court vacancy." I had been thinking that President Obama was likely to name a nominee within the next few days, but perhaps this latest news suggest we have a lot longer to wait.
While we wait, I am eager to hear from readers about their latest predictions (or dream candidates). Over the last few weeks there has been a lot of chatter about the supposed front-runners. Does anyone have any new (or old) thoughts about who the President will pick or who he should pick?
Some prior posts on SCOTUS personnel:
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
Brave New Justice and sentencing issues
The latest briefing on fast-track disparity after Kimbrough
One of the most interesting and dynamic post-Booker issues still percolating in the lower courts concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early plea sentence reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts. Before Kimbrough, the circuits had generally ruled that district courts lack discretion to provide such reductions without the blessing of the government. After Kimbrough, this issue has divided the circuits.
A helpful reader sent me a copy of a thorough and thoughtful brief on this fast-track disparity issue that was filed in the Seventh Circuit earlier this week. Here is how the appellate issue is presented in this brief (which can be downloaded below):
Whether the district court committed reversible procedural error when it determined that Seventh Circuit precedent precluded it from considering the sentences given in fast-track districts as part of its 18 U.S.C. § 3553(a) analysis, despite intervening Supreme Court decisions that abrogated the Seventh Circuit’s precedent.
I am pleased to report that the Federal Sentencing Reporter is in the midst of putting together an issue reviewing the recent past and current debate over fast-track sentencing discounts. This FSRfast-track issue ought to be out early this summer, though I am wondering if DOJ's working group on sentencing issues will be suggesting some new fast-track policies even before that issue goes to press.
Some recent related posts:
- The persistent problems with fast-track disparity after Booker and Kimbrough
- First Circuit blesses a variance based on fast-track disparity
- Ninth Circuit rejects variance based on fast-track disparity
- Eleventh Circuit panel splits over whether Kimbrough now allows consideration of fast-track disparity
- Notable briefing on fast-track disparity issue after Kimbrough
"The Great Writ Diminished"
The title of this post is the title of this piece on SSRN by US District Judge Lynn Adelman. Here is the abstract:
In 2007, an empirical study of 2,384 randomly-selected habeas corpus petitions filed in United States District Courts by state prisoners in non-capital cases found that district courts granted relief in only seven. This amounts to one grant out of every 284 petitions, or a grant rate of approximately 0.35 percent. The author, himself a district judge, has granted habeas relief in 12 cases out of approximately 300, resulting in a grant rate that is much higher than the rate found by the empirical study. Thus, if the author’s experience is any indication, on average district courts are not granting habeas petitions as often as they should be. If this is so, the Great Writ has been diminished.
This article seeks to stimulate a discussion about the current state of habeas corpus. Relying on his own experience with habeas petitions, the author explains why habeas is an important component of our justice system and details the cost of a diminished writ. The article concludes by offering suggestions for making habeas corpus a more potent tool for protecting the constitutional rights of criminal defendants.
Is the Obama Administration starting a (too slow?) withdrawal in the war on drugs?
This article from the Wall Street Journal, headlined "White House Czar Calls for End to 'War on Drugs': Kerlikowske Says Analogy Is Counterproductive; Shift Aligns With Administration Preference for Treatment Over Incarceration," provides some encouraging news for those who are eager for an end to the drug war. Here is how the piece begins:
The Obama administration's new drug czar says he wants to banish the idea that the U.S. is fighting "a war on drugs," a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.
In his first interview since being confirmed to head the White House Office of National Drug Control Policy, Gil Kerlikowske said Wednesday the bellicose analogy was a barrier to dealing with the nation's drug issues. "Regardless of how you try to explain to people it's a 'war on drugs' or a 'war on a product,' people see a war as a war on them," he said. "We're not at war with people in this country."
Mr. Kerlikowske's comments are a signal that the Obama administration is set to follow a more moderate -- and likely more controversial -- stance on the nation's drug problems. Prior administrations talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.
The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment's role growing relative to incarceration, Mr. Kerlikowske said.
Valuably, Arianna Huffington has this potent follow-up commentary in which she stresses the need for the Obama Administration to walk as well as talk the talk in this arena. Her piece is titled "Ending the War on Drugs: The Moment is Now," and here are excerpts:
[W]hen it comes to putting its rhetoric into action, the Obama administration has faltered.
Just a week after the Attorney General said there would be no more medical marijuana raids, the DEA raided a licensed medical marijuana dispensary in California. Obama's '09-'10 budget proposes to continue the longstanding ban on federal funding of needle exchange programs.
The current budget is still overwhelmingly skewed in favor of the drug war approach -- indeed, it allocates more to drug enforcement and less to prevention than even George Bush did.
Testifying [Thursday] in front of the House Judiciary Committee, Holder, in his opening statement, called for a working group to examine federal cocaine sentencing policy: "Based on that review, we will determine what sentencing reforms are appropriate, including making recommendations to Congress on changes to crack and powder cocaine sentencing policy." A working group? Why? As a senator, Obama co-sponsored legislation (introduced by Joe Biden) to end the disparity. What further review is needed?...
So the question becomes: is the Obama administration really committed to a fundamental shift in America's approach to drug policy or is this about serving up a kinder, gentler drug war?
And this at a time when the tide is clearly turning. Inspired by the massive budget crises facing many states, and the increase in drug violence both at home and abroad -- leaders on all points across the political spectrum appear more willing to rethink our ruinous drug policies.
Gov. Arnold Schwarzenegger has called for "an open debate" and careful study of proposals to legalize, regulate, and tax marijuana. Former Mexican President Vicente Fox has also urged renewing the debate, saying that he isn't convinced taxing and regulating drugs is the answer but "why not discuss it?" Arizona Attorney General Terry Goddard, pointing to evidence that Mexican drug cartels draw 60 to 80 percent of their revenue from pot, suggested legalization might be an effective tool to combat Mexican drug traffickers and American gangs....
I understand that drugs continue to be a political hot potato, fueled by what the Latin American presidents described as "prejudices and fears that sometimes bear little relation to reality." And I can easily picture some on the president's team advising him to keep the issue on the backburner lest it turn into his "Don't Ask, Don't Tell."
But the cost of the drug war -- both human and financial -- is far too high to allow politics to dictate the administration's actions. Indeed, with all the budget cutting going on, how can anyone justify spending tens of billions of dollars a year on an unwinnable war against our own people?
Change won't be easy. The prison-industrial complex has a deeply vested interest in maintaining the status quo. Which is why we need to keep the pressure on the president and his team to follow through on their drug policy promises.
As with the regulation of Wall Street, real reform of our nation's drugs policies won't happen without someone in the administration making it a top priority.
As I have suggested in a number of prior posts, one symbolically important gesture that President Obama could and should make in this regard is to commute the sentences of a few non-violent drug offenders who have already served lots of time in prison. A particularly sensible group of potential candidates for some clemency relief might be the most sympathetic crack defendants who have not been able to get effective sentence reductions under the US Sentencing Commission's liimited reduction of its crack guidelines.
Some related posts on the drug war and clemency:
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- Republican governor signals openness to legalizing marijuana
- Thoughtful academic thoughts on ending marijuana prohibitions
- "Time For Marijuana Legalization?"
- Terrific commentary and assessment of the war on drugs
- More calls for an end to the drug war and legalization of marijuana
- With the new DOJ advocating completely eliminating crack/powder disparity, now what?
- Has there been any in-court impact from DOJ's new crack sentencing policy?
- New ACS brief urging a new approach to drug policy
- Another public and potent call to reinvigorate the pardon power
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- Still waiting ... and waiting ... and waiting ... on the clemency front
Scholarly concerns about the CVRA
Regular readers may sense that I am a fan of victim participation in sentencing, which in turn make me a fan of the federal Crime Victimsi Rights Act. But this new piece appearing on SSRN, titled "The Limits of Victims' Rights in a System of Public Prosecution," suggest the CVRA should be a cause for concern, not celebration. Here is the abstract:
The Crime Victims’ Rights Act (“CVRA”), enacted in 2004, potentially threatens our system of public prosecution enshrined in the Constitution. Although it does not confer party status to victims, the CVRA provides victims with expansive rights, which could often conflict with the interests of prosecutors and defendants. Most significantly, if a district court denies any of the victims’ participatory rights under the statute, the CVRA permits victims to petition the appellate court for a writ of mandamus to re-open a plea bargain or sentence. Consequently, given the expansive rights and remedies, victims theoretically have the ability to trump prosecutorial and judicial discretion regarding decisions made in a criminal case. Although the standard for granting a writ of mandamus is ordinarily very high, two circuits, the Second and the Ninth, have declined to use the traditional mandamus standard and have reviewed victims’ petitions for either an error of law or for an abuse of discretion. Using a more relaxed standard is problematic because victims’ interests may at times be opposed to those of the prosecutor, and for obvious reasons, are often at odds with those of the defendant. An appellate court reviewing a district court’s denial of a victim’s motion should apply the traditional mandamus standard of review because it promotes a narrow interpretation of the CRVA and respects prosecutorial and judicial discretion, which Congress explicitly built into the statute.
Lots of dynamic death penalty debates in Missouri, while other states execute
This new article from the St. Louis Post-Dispatch, headlined "Legal challenges over, Missouri plans to resume executions next week," provides details on the latest death penalty developments in the Show Me State. Here are a few of the interesting details:
After more than three years of wrangling over how Missouri's executioners should deliver the lethal injection — and who is qualified to do it — the state is gearing up for the death penalty again. With questions about the state's method of capital punishment settled, the debate has shifted to whether the first man in line should be spared.
Dennis Skillicorn, 49, is scheduled to die at 12:01 a.m. Wednesday for a role in the 1994 murder of Richard Drummond. With appeals running out, Skillicorn's last hope may be Gov. Jay Nixon, who holds the power to convert the death sentence to life in prison.
In an interview Tuesday at the prison in Bonne Terre, Skillicorn insisted that he did not kill Drummond. He said that his death would cause suffering for his wife and that society would benefit from letting him live. Many agree. Supporters and even a prominent legislator are asking Nixon to spare him. Some prison workers and volunteers plan a demonstration for him Monday in Jefferson City. They say there is substantial doubt that Skillicorn was responsible for the murder — and that he has transformed into a force for good.
But Skillicorn has been implicated in four murders over time, leading others to insist his recent deeds don't matter. State Rep. Bob Nance, a Republican from Excelsior Springs, Mo., Drummond's hometown, said Skillicorn is a career killer and represents the very reason Missouri has a death penalty....
Skillicorn runs one program to help strengthen prisoners' families and another to care for sick and dying inmates. He edits a national magazine, Compassion, that has awarded scholarships for relatives of crime victims. One prison guard calls him a "calming influence." A chaplain said Skillicorn made prison safer and said taking his life would be "counterproductive."
Skillicorn's lawyer has argued, unsuccessfully, in federal court that Nixon, as the former Missouri attorney general, could be biased against clemency. A spokesman for the governor said he would be thorough and fair.
Earlier this week, state Rep. Bill Deeken, R-Jefferson City, asked that the death penalty be put on hold for two years while a commission studies whether it is administered fairly and properly. That measure failed 95-64.
Majority Leader Steve Tilley, R-Perryville, urged Nixon to grant clemency, saying there was "reasonable doubt" about Skillicorn's role in Drummond's slaying. But before the Drummond killing, Skillicorn was already on parole for murder. In that case, in 1980, his partner in a burglary killed the occupant of a home. Skillicorn did more than 13 years in prison.
Meanwhile, as this new AP article reports, two other states went forward with executions yesterday:
A man convicted of battering his girlfriend's 8-year-old son and stuffing the body in a freezer was put to death Thursday in Oklahoma, while a man in Alabama was executed for fatally stabbing a mother of six.
May 14, 2009
Should we force offenders to pay for the costs of their punishments?
This local article, headlined "N.J. lawmakers want inmates to pay jail, monitoring costs," prompts the question in this title of this post. Here are some excerpts:
Some New Jersey lawmakers want convicted criminals to pay for their confinement or electronic monitoring. Two bills would pass the costs of state jails onto inmates and the expense of electronic monitoring devices onto sex offenders required to wear them.
A plan from State Sen. James Beach (D., Camden) would charge state prisoners for the cost of their incarceration, an average of $38,700 per year. Beach said he had gotten the idea from within his district, where the Camden County Correctional Facility assesses a user fee of $5 per day for room and board and $10 per day for use of the infirmary. The fees generate about $300,000 a year.
"There's a misperception that everyone in jail is poor, and that's just not true," Beach said. "Why should we as taxpayers foot the bill for someone that did something wrong and end up in jail?" With the cost of incarceration approaching $40,000 per year, Beach said, "I think we should be able to do pretty good."
A bill sponsored by State Sen. Joseph Pennacchio (R., Morris) and Senate Majority Leader Stephen Sweeney (D., Gloucester) would require those convicted sex offenders who must wear electronic monitoring devices to pay the costs of that equipment, or about $2,900 per year. "It can be quite an expense for the state, an expense that, in my view, the state shouldn't have to deal with," Pennacchio said at a hearing on the measure.
About 209 sex offenders in New Jersey must be monitored. They are generally those considered the highest threat to safety who can still be released from confinement. Pennsylvania charges all people who require electronic monitoring, including sex offenders, for the cost, said Leo Dunn, a spokesman for the state's parole board.
At least eight other states make sex offenders pay for monitoring devices, according to the National Conference of State Legislatures. There is also long-running movement among some county jails to charge inmates. Pennsylvania does not do it statewide, but several counties do.
"It is popping up across the country," said Rick Neimiller, director of administration and communications for the American Jail Association. "Especially now they're looking at it, with the economy."
Critics, however, said charging inmates would put a burden on both the prisoners and their families, who are often poor. "It discourages people trying to put their lives back together," said Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project. People heading to prison often owe fines, restitution, and child support, and have little income while incarcerated, said Ed Martone, director of public education and policy for the New Jersey Association on Correction.
Connecticut house votes to repeal state's death penalty
Here is the latest news from the latest state that does not really make serious use of the death penalty that is having a serious debate over whether to formally abolish the punishment:
The [Connecticut] state House of Representatives voted to abolish the death penalty on Wednesday — the fourth anniversary of the execution of serial killer Michael Ross — and instead impose life in prison without the possibility of release.
The historic vote, 90-56, came at about 7:45 p.m. after more than five hours of passionate debate. Lawmakers argued whether the death penalty is necessary for justice or is a punishment that should never be rendered by state government.
Despite the House vote, the chances of the death penalty being eliminated in Connecticut are slim. Republican Gov. M. Jodi Rell repeated her support for capital punishment this week as the House prepared for the debate.
"I have always said that I support the death penalty because I do believe that there are some crimes that are so heinous that the death penalty is the only option," Rell told reporters at the state Capitol complex. "I believe in the death penalty. I don't consider it revenge. It's justice."
Some related posts:
- The arrested development of the death penalty in Connecticut
- Effort to repeal death penalty in Colorado now faltering
- Scholarly examination of New Jersey's death penalty repeal
"Car breath tests for 1st-time DUI offenders?"
The title of this post is the headline of this article from my local Columbus Dispatch. As a few excerpt show, this short piece appeals to my affinity for technocorrections, for data-driven sentencing reforms, for alternatives to incarceration and for getting tougher on drunk driving:
Some Ohio lawmakers and Mothers Against Drunk Driving want the state to require anyone convicted of a drunken-driving offense to blow into an alcohol tester before his or her car can start -- the first step, opponents say, in requiring all drivers to submit to such a test.
MADD's national president, Laura Dean-Mooney, testified at the Ohio Statehouse yesterday in favor of a bill that would require ignition-interlock devices for first-time DUI offenders.
She said the 10 states that have such laws have had significant decreases in the number of drunken-driving accidents and deaths. DUI-related accidents have decreased 35 percent in New Mexico since that state required ignition interlocks in 2005, she said.
"Despite the fact that this life-saving technology exists, it's not used very often," Dean-Mooney told the Ohio House's Criminal Justice Committee. "Ignition interlocks would reduce recidivism and save some of the 13,000 lives that are lost in drunk-driving accidents every year."
Last year, 466 people died in Ohio in DUI-related accidents, according to the State Highway Patrol. About 9,000 others were injured.... Ohio law prescribes an ignition interlock for second-time offenders for whom judges restrict driving privileges.
In my view, unless and until there is empirical evidence indicating that ignition interlocks are ineffective, the answer to the question in the title of this post should be an emphatic YES. Even If Ohio might only get half the accident decrease in New Mexico, the data still suggests we could save perhaps as many as 100 lives and thousands of injuries from simply requiring those convicted of drunk driving to prove they are not repeating their offense when they again get behind the wheel. Unless one cares a lot more about some value other than innocent lives, I do not quite understand the basis for serious opposition to this proposal.
Of course, there was opposition expressed at the Ohio Statehouse yesterday, but those voicing the opposition is tellingly a group, the American Beverage Institute, that sees a loss of potential profits from this potentially life-saving bill:
A total of 27 states require repeat DUI offenders or first-timers with extremely high blood-alcohol concentrations to blow into the testers before their engines can start, said Sarah Longwell, managing director of the American Beverage Institute.
The trade group of alcohol-serving restaurants opposes efforts to require ignition interlocks for first-time offenders. "This bill mandates that people one sip away from 0.0799 receive a punishment normally reserved for high-(blood-alcohol-content), repeat offenders," Longwell told the House committee. "While both have committed a crime, they are very different types of criminals."
Some related posts on sentencing drunk drivers:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Is capital punishment for drunk driving morally required?
- More examples of undue leniency shown to repeat drunk drivers
- Another drunk driving sentencing story we can follow on the sports pages
- NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska
Exploring constitutional ineffectiveness at sentencing
Professor Carissa Byrne Hessick now has posted here on SSRN a great new paper on a sentencing topic I have always found very interesting (and underexplored in both caselaw and the academic literature). This piece is titled simply "Ineffective Assistance at Sentencing," and here is the abstract:
The legal standards for reviewing claims of ineffective assistance at sentencing are underdeveloped. In other contexts, defendants seeking to prove ineffective assistance must demonstrate that counsel's performance fell below appropriate professional standards and that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. The doctrinal uncertainty whether that standard applies to sentencing proceedings in non-capital cases, coupled with worries that ineffective assistance at sentencing claims will result in a flood of litigation, has led some courts to require defendants to satisfy stricter prejudice standards in discretionary non-capital sentencing regimes.
This Article analyzes the ineffective assistance jurisprudence and concludes that the sufficiency of counsel's performance is largely evaluated against a backdrop of relevant substantive law. The substantive law of non-capital sentencing is not well-developed, which may explain the underdeveloped state of ineffective assistance at sentencing standards. Drawing on several recent ineffective assistance cases in the death penalty context, this Article identifies legal principles and practices that may assist in making the legal assessments necessary to analyze ineffective assistance at sentencing claims. These principles and practices may provide a sufficient legal framework to render unnecessary the crude manipulation of the prejudice showing that some courts have employed.
Prosecutorial power, victims rights, sentencing judgments and judicial empathy
Two very different post by Orin Kerr at The Volokh Conspiracy have me thinking this morning about all the topics in the title of this post. Here are the links:
- Additional Sentencing Briefs in Lori Drew Case
The first post provides links to the fascinating supplemental sentencing briefs in the Lori Drew cyber-bullying case. There are lots of remarkable aspects to those briefs, perhaps the most notable being that federal prosecutors are seeking a statutory max of 3 years in prison for Drew for three misdemeanor convictions and that they are pressing a very broad interpretation of the CVRA (no doubt because a vocal "victim" is going to support their sentencing suggestions). In response, the defense's legal team (which includes Orin Kerr) quotes from Attorney General Robert Jackson's famed 1940 speech about abuses of prosecutorial power and complains repeatedly about the fact that "the goal of the government’s case has been to make Lori Drew the public face of cyberbullying."
I could go on and on about these two remarkable briefs in what is a truly remarkable case, but folks should just read them here and here. I would, of course, welcome comments on the legal specifics, as well as whether there is anything wrong with the government’s efforts "to make Lori Drew the public face of cyberbullying."
After I read these sentencing briefs and struggling with all the legal and policy issues they present, I then read the second post from Orin about legal ambiguity and the ways in which empathy is being discussed in connection with President Obama's SCOTUS nominee decision. Especially after having my mind swimming with all the fascinating and challenging questions raised by the up-coming sentencing of Lori Drew, I was quite surprised and troubled by what a simplistic account Orin gave to the concepts of legal ambiguity and judicial power.
Here is one part of a comment I added to the first of Orin's posts: "isn't a whole lot of sentencing debate about competing visions of empathy, with prosecutors urging empathy for the victims/society, and defense lawyers arguing for empathy for the defendant?". Indeed, the more I think about the concept of empathy, the more I am inclined to assert that the issue is not whether a judge should be empathetic, but rather to whom that empathy should be shown in legal rulings and discretionary judgments.
Interesting empirical examination of SCOTUS cert granting
Especially in the criminal justice arena, what the Supreme Court decides to decide is almost as important as what they decide. Thus, I am always excited to see a new analysis and assessment of how the Justices' pick their cases. This piece on SSRN, titled " An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General," looks worthy of review by both academics and practitioners. Here is the abstract:
The Supreme Court frequently uses two tools to gather information about which cases to hear following a petition for writ of certiorari: the call for response and the call for the views of the Solicitor General. To date, there has been no empirical analysis of how the Supreme Court deploys these tools and little qualitative study.
This Article fills in basic gaps in the literature by providing concrete answers to common questions regarding these two tools and offers detailed analysis of how and why states, private parties, and the United States (through the Solicitor General) respond to petitions. In addition, the Article provides much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court, and provides insight on how to react when the Court calls for a response or calls for the views of the Solicitor General. To reach these conclusions, the Article relies on detailed, quantitative analysis of a novel, 30,000-petition dataset, as well as interviews with top Supreme Court litigators, former Supreme Court clerks, and former staff of the Clerk’s office.
May 13, 2009
The latest SCOTUS nominee short-list news
This AP article has these new SCOTUS nominee short-list details:
Among those under consideration are Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood. California Supreme Court Justice Carlos Moreno is also under review by Obama.
Sources familiar with Obama's deliberations confirmed the names to The Associated Press on condition of anonymity because no candidates have been revealed by the White House. The confirmation amounts to the first time any name has been directly tied to Obama.
One official cautioned that Obama is considering other people who have not been publicly mentioned. And more names may be added as the administration considers a replacement for retiring Justice David Souter.
Some prior posts on SCOTUS personnel:
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
Brave New Justice and sentencing issues
Should we embrace or fear videoconferencing in corrections?
This fascintating article at Stateline.org, which is headlined "States expand videoconferencing in prisons," prompts the question in the title of this post. Here are snippets from the article:
Faced with the high costs of transporting and escorting sick inmates to the doctor, states are expanding their use of videoconferencing to provide health consultations to prisoners without resorting to costly — and sometimes dangerous — off-site trips.... Elsewhere, videoconferencing in prisons and jails is replacing inmates’ in-person trips to the courtroom or parole board, and even the way family members visit.
Supporters say the technology saves money when few states have funds to spare; Arizona, for instance, saved $237,000 in 2008 by using telemedicine at nine correctional facilities, according to the state Department of Corrections.
But some have criticized the expansion of videoconferencing. Relying on technology to keep inmates behind bars makes them “disappear more and more from the public consciousness, and I think there’s a (negative) long-term consequence of that,” said Nancy Stoller, a professor at the University of California-Santa Cruz and the coordinator of a jail and prison task force at the American Public Health Association....
Telemedicine and telepsychiatry work by letting inmates and doctors communicate with each other using interactive, real-time audio and video links. The practice — which has been praised by the U.S. Department of Justice and the National Commission on Correctional Health Care — is most often used for consultation, not treatment....
Many states also are using videoconferencing to avoid transporting prisoners to court for arraignments and other initial appearances, according to Greg Hurley, an analyst with the National Center for State Courts, which researches court trends across the nation. Parole hearings also can be conducted by videoconference.
Connecticut last year finished installing videoconferencing equipment at all 18 of its state correctional facilities and the state’s court system is studying ways to expand the practice. The state’s corrections commissioner, Theresa Lantz, noted that videoconferencing saves the state money it would otherwise have to spend on vehicles, gasoline, correctional officers and overtime.
Illinois and other states also are looking at videoconferencing to let prisoners talk with family members who might not be able to make the trip to visit them in person.... The Pennsylvania Prison Society, a nonprofit advocacy group, has partnered with the state Department of Corrections since 2001 to allow inmates’ families to come to the organization’s offices and speak on a video link with their loved ones serving time. A 55-minute session costs the family $20, according to the group’s Web site.
On these kinds of issues, I am always inclinded to embrace technology and innovation unless and until a strong argument can be made to preserve the status quo. Among other benefits, as this Stateline article hints, new technologies and innovation tends (at least initially) to avoid the usual (and usually destructive) left/right rhetorical divides that often can thwart useful reforms.
"Law students help free three-strikes offenders"
The title of this post is the headline of this interesting Los Angeles Times article. Here are excerpts:
Stanford law clinic ... students are devoted to reversing what they view as miscarriages of justice under the three-strikes law. Their work involves a new twist on a strategy employed by innocence projects nationwide in which students have helped overturn wrongful convictions and sparked debate over the death penalty. Rather than championing the innocent, the Stanford students are advocating for prisoners guilty of what they view as relatively minor offenses and raising the question of how much prison time is too much.
The effort touches a nerve. Fifteen years ago, California voters overwhelmingly approved the three-strikes sentencing law. The state rejected a reform initiative five years ago.
The Stanford clinic is taking aim at the most controversial part of the law, which imposes at least 25 years to life in prison even for a nonviolent felony, such as petty theft or drug possession, as long as an offender's criminal history includes at least two violent or serious crimes.
Students and their instructors hope to redress what they call grossly unfair sentences for minor crimes and spur changes in the law. Their clients, they say, illustrate how the justice system has unfairly ensnared low-level defendants whose crimes are often linked to mental illness, drug abuse or extreme poverty....
Mike Reynolds, who wrote the three-strikes law after his 18-year-old daughter's murder in Fresno, said many prisoners who have minor third strikes also have long, violent criminal records. He said voters knew exactly whom they were putting away when they approved the law and called the Stanford clinic's work misguided. "Do they understand that they could be turning someone loose who could get out and hurt somebody?" he asked.
Since September, students have persuaded judges to lessen the sentences of four prisoners, including Williams. Three have been released so far, having already served their reduced prison terms, which ranged from six to 10 years.
More than 8,400 inmates are serving possible life terms under the three-strikes law, according to the state Department of Corrections and Rehabilitation. Of those, more than 1,300 were sentenced for drug offenses and nearly 2,500 for property crimes. A department spokeswoman said the agency has not compiled data on what serious or violent felonies those inmates previously committed.
Since its launch in 2006, the Stanford Criminal Defense Clinic has been deluged with letters from inmates and their relatives pleading for help. None have attorneys to handle their appeals, the clinic says. Instructors at the clinic sift through the letters and review appeals records in search of clients who appear to be good candidates for their help. Most of the inmates they aid have nonviolent criminal records. "There's a huge number of people who fit into that category," said Michael S. Romano, a Stanford law school lecturer who launched the clinic.
Two significant sex offender rulings on constitutional issues from the Eighth Circuit
As noted on this official opinion page the Eighth Circuit has released two significant sex offender rulings today. Here are the basic detail (and links) from the unofficial summaries on that page:
United States v. Roger Dean Tom, No: 08-2345 -- District court erred in finding 18 U.S.C. Sec. 4248 (the "Adam Walsh Act") was an unconstitutional exercise of Congress's powers under the Commerce Clause; Congress, having been empowered by the Commerce Clause to criminalize and punish the conduct of which defendant is guilty, has the ancillary authority under the Necessary and Proper Clause to provide for his civil commitment so that he may be prevented from its commission in the first place; 18 U.S.C. Sec. 4248 does not upset the delicate federal state balance mandated by the Constitution.
United States v. Scott Hacker, No: 08-2427 -- SORNA's registration and penalty provisions are valid exercises of Congress' authority under the Commerce Clause; Hacker lacks standing to raise a Tenth Amendment challenge to SORNA; Hacker lacks standing to assert an argument that Congress impermissibly delegated to the Attorney General the authority to determine SORNA's retroactive effect; Hacker lacks standing to challenge the interim rule on APA grounds.
Unusual porn case leads to 33-month sentence after rejected deal for shorter term
As noted in this post from a few weeks ago, an unusual porn case from Indiana had prompted a federal district judge to reject a plea agreement that had called for a below-guideline sentence for a defendant who clearly has some mental issues. As this new local article highlights, the case has now produced a sentence:
A Hobart man who twice served time for killing animals now will spend nearly three years in federal prison for downloading images of people having sex with animals. Michael Bessigano likely will serve his sentence in a Boston-area facility for male offenders with mental problems.
U.S. Judge Philip Simon on Tuesday sentenced Bessigano to 33 months in prison and three years of supervised release, a term at the low end of federal guidelines. Simon two weeks ago threw out a plea agreement that would have seen Bessigano serve only 24 months, stating that Bessigano's history did not seem to make him a candidate for a below-guidelines sentence....
Assistant U.S. Attorney Bernard Van Wormer said the sentence was appropriate for Bessigano, who served time prison for killing a neighbor's rottweiler in St. John Township in 1993, and was jailed again in 2001 for killing a chicken, and having sex with it.
He was badly beaten in the Porter County Jail while awaiting sentencing in 2001, and has been in and out of psychological treatment for schizophrenia since childhood, his mother has said. Bessigano has told investigators in the past that he believes he is an animal trapped in a human's body.
I am starting to wonder if there is some weird Lost-like karma around the number 33 in the federal sentencing system. In addition to being the number of months given to Bessigano for downloading animal porn, it is also the term given to federal judge Samuel Kent earlier this week and the term that served by Victor Rita, the defendant whose within-guideline sentence was affirmed in the first big post-Booker federal sentencing ruling by SCOTUS.
Interesting post-DP repeal ruling from the New Jersey Supreme Court
As detailed in this local article from New Jersey, the "state Supreme Court ruled yesterday that a murderer whose case was proceeding as New Jersey abolished the death penalty can be sentenced to life without parole, even though the state had no such punishment when he was convicted." The ruling came in State v. Fortin, No. A-27-08 (NJ May 12, 2009) (available here), and here is a paragraph from the opinion's syllabus that summarizes the majority's holding:
Because defendant had prior notice of the former statute’s death penalty procedures, there is no impediment to proceeding to the penalty phase under the former statute. If the jury concludes that the State has proven beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors, rendering defendant subject to a death sentence under the former law, then imposing a life-without-parole sentence under the new law would not violate the Ex Post Facto Clause. If the jury finds in favor of a non-death sentence, defendant must be sentenced under the law as it existed at the time of the offense, to a term of thirty years to life with a thirty-year parole disqualifier.