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June 6, 2009

"Luck or Law? The Constitutional Case Against Indeterminate Sentencing"

The title of this post is the title of this provocative new abstract by Professor Dan Markel now up at at SSRN.  Here is the abstract:

In the majority of states indeterminate sentencing schemes prevail — under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge.  Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines “effectively advisory,” many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes.  Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

This Article examines the case for, and the implications of, a finding that indeterminate sentencing schemes are impermissible under the federal Constitution.  Looking at the history of the Framing Period and selected areas of the Supreme Court’s jurisprudence over the last forty years, this Article explicates the constitutional restraints on arbitrary and/or discriminatory distributions of penalties, and finds little persuasive basis for the continued survival of indeterminate sentencing schemes.  To the extent the Supreme Court is reluctant, as a matter of institutional competence, to make that finding explicit, the Article urges legislators at the federal and state levels to shoulder their co-equal burden of implementing the Constitution’s commitment to restraining the random, arbitrary, or discriminatory imposition of substantial punishment.

I look forward to getting a chance to read Dan's full article, though I am a bit troubled by his use of the term "indeterminate sentencing" for what I think ought to be called "discretionary sentencing."  Most (though not all) sentencing folks use the term "indeterminate sentencing" to describe sentences that include the possibility of later parole, but I do not think that is what Dan means to reference in his criticisms of what most describe as "discretionary sentencing." 

June 6, 2009 in Sentences Reconsidered | Permalink | Comments (13) | TrackBack

Manson family member still seeking parole 40 years later

This new report from CNN provides the latest interesting sentencing news concerning a defendant involved in one of the most famous crime sprees in history:

The woman who stabbed pregnant actress Sharon Tate to death will be considered for parole from prison a month after the 40th anniversary of the killings that cast a shadow of fear over southern California. Susan Atkins, 61, has been denied parole in 17 previous hearings, but the former "Manson Family" member now is terminally ill with brain cancer and is paralyzed.

Charles Manson used his hypnotic powers to direct Atkins and other "family" members to kill seven people, including the pregnant Tate, in a two-night rampage that terrorized the city of Los Angeles, California, in August 1969..... In July of last year, Atkins — California's longest-serving female inmate — was denied a compassionate release in a unanimous decision by the California Board of Parole Hearings. She has repeatedly been described as a model prisoner who has accepted responsibility for her role in the slayings, and she now shuns Manson.

By her own admission, Atkins held Tate down as she pleaded for mercy and stabbed the pregnant woman 16 times. In a 1993 parole board hearing, Atkins said Tate "asked me to let her baby live. ... I told her I didn't have any mercy on her." After stabbing Tate to death, according to historical accounts of the murders, Atkins scrawled the word "pig" in blood on the door of the home Tate shared with her husband, director Roman Polanski.  Polanski was not home at the time, but three of Tate's house guests were also slain by the killers, as was a teenager who was visiting the home's caretaker in his nearby cottage.

A Web site maintained by her husband and attorney, James Whitehouse, says Atkins is now paralyzed over 85 percent of her body and cannot sit up in bed or even be moved into a wheelchair.  However, despite her declining condition and her impressive prison record, the site says, "there is still a very real chance the Parole Board will nonetheless insist her release would be a danger to society."

Atkins' compassionate release was opposed by Tate's sister, Debra, Los Angeles County prosecutors and California Gov. Arnold Schwarzenegger, among others.  However, the former prosecutor who won her conviction, Vincent Bugliosi, said he supports Atkins' request for release. "She has paid substantially, though not completely, for her horrendous crimes," Bugliosi told the Los Angeles Times last year....

Debra Tate told CNN in an e-mail in March that she does not believe any Manson family member convicted of murder should ever be set free, saying the slayings were "so vicious, so inhumane, so depraved, that there is no turning back." "The 'Manson Family' murderers are sociopaths, and from that, they can never be rehabilitated," Debra Tate said. "They should all stay right where they are — in prison — until they die. There will never be true justice for my sister Sharon and the other victims of the 'Manson Family.'  Keeping the murderers in prison is the least we, as a society who values justice, can do."...

Manson and those convicted along with him in the murders — Atkins, Patricia Krenwinkel, Leslie Van Houten and Charles "Tex" Watson — have been in California prisons for more than three decades. All were initially sentenced to death, only to have their sentences commuted to life in prison when the Supreme Court struck down death penalty laws in 1972, establishing a four-year moratorium on executions. Van Houten was released for six months after her conviction was overturned, but was reconvicted.

June 6, 2009 in Sentences Reconsidered | Permalink | Comments (1) | TrackBack

"U.S. May Permit 9/11 Guilty Pleas in Capital Cases"

The title of this post is the headline of this article in today's New York Times. Here are a few highlights from an article that highlights the fascinating interplay of capital punishment and plea practicies:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques.  It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy.  People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to terrorism but whose cases present challenges.  Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons.  In any proceeding, the reliability of those statements would be challenged, making trials difficult and drawing new political pressure over detainee treatment.

Some experts on the commissions said such a proposal would raise new questions about the fairness of a system that has been criticized as permitting shortcuts to assure convictions.  David Glazier, an associate professor at Loyola Law School in Los Angeles who has written about the commission system, said: “This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed.  But I think it’s going to lack international credibility.”

The draft legislation includes other changes administration officials disclosed last month when President Obama said he would continue the controversial military commission system with changes that would increase detainees’ rights.  It is not known whether the White House has approved the proposed death penalty provision.  A White House spokesman declined to comment.

The provision would follow a recommendation of military prosecutors to clarify what they view as an oversight in the 2006 law that created the commissions.  The law did not make clear if guilty pleas would be permitted in capital cases.  Federal civilian courts and courts in most states with capital-punishment laws permit such pleas.

But American military justice law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.

June 6, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

June 5, 2009

Governor Rell officially vetoes effort to repeal Connecticut's death penalty

Living up to her promise, Connecticut's Gov. Jodi Rell vetoed legislation that would have abolished the death penalty.  This AP story provides the basics, and her statement on the veto is available at this link. Here are a few excerpts from her statement:

As I have stated previously, I understand and sympathize with the anguish and pain of those families who have lost a loved one due to a cruel and heinous crime. These are the crimes forever embedded in our minds, haunting us long after they have been committed. They cause us to lose our innocence relative to the world around us. The death penalty is, and ought to be, reserved for those who have committed crimes that are revolting to our humanity and civilized society.

The death penalty sends a clear message to those who may contemplate such cold, calculated crimes. We will not tolerate those who have murdered in the most vile, dehumanizing fashion. We should not, will not, abide those who have killed for the sake of killing; to those who have taken a precious life and shattered the lives of many more....

There is no doubt that the death penalty is a deterrent to those who contemplate such monstrous acts. The statistics supporting this fact, however, are not easily tabulated.  How do we count the person who considered the consequences of the crime and walked away?  We cannot, but we know that this occurs. We have a responsibility to act to prevent these heinous crimes and to ensure that criminals will not harm again.

I also take note of the concerns expressed by some regarding the tremendous financial cost to the state, the perception that the death penalty is inconsistently sought for certain crimes, the lengthy appellate process that is involved and the roles that race, gender and economics play when seeking the death penalty.

These very questions, and more, were the basis of a death penalty study commissioned by P.A. 01-151 and analyzed in a comprehensive report submitted to the Legislature on January 8, 2003. The report made significant and thoughtful recommendations that have been largely ignored by the Legislature, including training for public defenders and prosecutors. The goal of the report is to ensure that each decision to seek the death penalty is based upon the facts and law applicable to the case and is set within a framework of consistent and even-handed application of the sentencing laws, with no consideration of arbitrary or impermissible factors such as the defendant’s race, ethnicity or religion.

The co-chairmen of the legislature’s Judiciary Committee have asked that I submit a proposal for “fixing” the death penalty statute. I believe that the current law is workable and effective and I would propose that it not be changed. If the co-chairmen are seeking suggestions, however, I would urge them to review the above-referenced report, which has been largely ignored since its issuance.

June 5, 2009 | Permalink | Comments (10) | TrackBack

The challenging economics of death causing problems in Chicago

This local public radio segment from Chicago, headlined "State's Attorney Will Continue Seeking Death Penalty," provides a windy city perspective of the challenges of death penalty administration during tight economic times. Here is the lead in to the segment:

Prosecutors in Cook County say they will continue seeking the death penalty. That's in response to a request from the public defender's office to take the option of capital punishment off the table. The public defender says his office has run out of money used specifically to defend clients facing the death penalty. Sally Daly is with the state's attorney's office. She says a lack of money is no reason to change the judicial process.

Some recent related posts on the costs of capital punsihment:

June 5, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Noting differences in sentences for intra- and extra-family sex abuse

This local article from Minnesota, headlined "Justice is unequal in sex abuse: Those who molest family members get lighter sentences than outsiders, data show," documents a sentencing story that I suspect is not uncommon in most jurisdictions.  Here areis how the effective (and long) article starts:

A young woman in Hennepin County accuses her father of sexually abusing her since she was 12 and impregnating her at age 18. A 13-year-old Ramsey County girl tells a school counselor that her father had been touching her while her mother was in the hospital. A 15-year-old Anoka County boy reports to police that his stepfather, convicted of a sex offense years earlier, committed sex acts with him, once in exchange for help with a video game.

In each case, Minnesota sentencing guidelines called for a seven-year or 12-year prison sentence. Instead, each defendant pleaded guilty and was sentenced to a year or less in jail and a long probation.

Such lighter sentences are given more often to defendants abusing children in their own families or households than to those who abuse outside their families, a Star Tribune analysis of nearly 1,500 child sex abuse cases shows.

From 2001 to 2007, 33 percent of family or household child sex abuse defendants facing prison time ended up with probation, compared with 26 percent of those abusing outside their families. In the most serious cases where victims were between 13 and 15 years old, the difference was even greater: 37 percent versus 24 percent.

That sentencing disparity troubles some legislators and advocates for victims. "It's really unfortunate because ... girls and boys who have experienced incest are somehow valued less than girls and boys who have experienced abuse at the hands of neighbors and coaches and teachers and other people," said Elizabeth Saewyc, a nursing professor in Canada who studies abuse victims in research with Children's Hospital of St. Paul.

Even family members who initially agreed to lighter sentences for abusers -- to protect children from having to testify or to keep a family wage earner working -- sometimes come to feel probation sentences aren't enough as they watch the effect of abuse on the child victim play out for years.

But others in the justice system say family relationships make the cases extra difficult to prosecute. Sending a defendant to treatment with decades of probation is still a tough penalty and often right for the family in the long run, they say. "When you come down to trying to figure out what to do with these cases, you have to get realistic and you have to be pragmatic," said Pat Diamond, deputy Hennepin County attorney.

June 5, 2009 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Will Judge Sotomayor make SCOTUS less friendly to criminal defendants?

The question of this post is prompted by the this new article from the Wall Street Journal, which is headlined "Nominee's Criminal Rulings Tilt to Right of Souter."  Here are excerpts:

While Judge Sonia Sotomayor stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice. 

She "has contributed greatly to law enforcement in New York" as a judge, said Leroy Frazer Jr., first assistant district attorney in Manhattan and a former colleague of Judge Sotomayor.  After Yale Law School, Judge Sotomayor joined the Manhattan district attorney's office. She spent five years at the office, and handled high-profile murder and child-pornography cases.  New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee -- a byproduct, they believe, of her tenure as a prosecutor.

"The reputation of Sotomayor was that sentencing was not an easy ride," says Gerald Shargel, a criminal-defense attorney. In a 1997 trial, Mr. Shargel asked Judge Sotomayor to show leniency in sentencing William Duker, a prominent New York lawyer who had pleaded guilty to overbilling the government.  Mr. Shargel wanted Mr. Duker to be sent to an alcohol treatment program, in lieu of prison. The judge, however, sentenced the attorney to 33 months in prison, in line with the federal sentencing guidelines.

Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006.  On the trial bench, he says, "she was not viewed as a pro-defense judge."

To be sure, Judge Sotomayor has at times shown leniency toward criminal defendants. In 2001, after she had become an appellate-court judge, she agreed to preside over the drug-conspiracy trial of Sandra Carter.  The jury convicted Ms. Carter, but Judge Sotomayor sentenced her to six months in prison, far below the term that she could have drawn under the sentencing guidelines, says Edward O'Callaghan, the prosecutor in the case.  Judge Sotomayor, he says, took into account the fact that the defendant was a first-time offender who made far less money than other conspiracy participants.

Michael Bachner, a New York defense lawyer who has handled trials and appeals before Judge Sotomayor, senses a divide in her criminal jurisprudence. She can be "very tough" on white-collar defendants from privileged backgrounds, but is "more understanding of individuals who grew up in a tougher circumstance."

Prior posts on the SCOTUS nomination and record of Judge Sotomayor:

June 5, 2009 in Who Sentences? | Permalink | Comments (11) | TrackBack

June 4, 2009

Interesting materials from the hearing surrounding impeachment of Judge Kent

Anyone following the sad saga of the crimes and punishment of former federal Judge Sam Kent will want to check out some of the materials linked at this House Judiciary website relating to yesterday's "Hearing to Consider Impeachment of Samuel B. Kent of the Southern District of Texas." Of particular note are the statements from the victims of Kent's sexual misconduct here and here.

Based on the victim's accounts of the crimes they endured, I continue to believe that federal prosecutors and the federal sentencing judge went much too easy on this repeat sexual offender.

Related posts on the Kent proceedings:

June 4, 2009 | Permalink | Comments (0) | TrackBack

If you enjoy conversing about criminal law...

Clc be sure to get yourself a copy of this new publication from Oxford University Press, Criminal Law Conversations.  This book, to which I contributed a chapter and some additional commentary, was put together skillfully by Professors Paul Robinson, Stephen Garvey, and Kimberly Ferzan.  Here is the publisher's description of the effort:

Criminal Law Conversations provides an authoritative overview of contemporary criminal law debates in the United States.  This collection of high caliber scholarly papers was assembled using an innovative and interactive method of nominations and commentary by the nation's top legal scholars.  Virtually every leading scholar in the field has participated, resulting in a volume of interest to those both in and outside of the community.  Criminal Law Conversations showcases the most captivating of these essays, and provides insight into the most fundamental and provocative questions of modern criminal law.

June 4, 2009 | Permalink | Comments (10) | TrackBack

"Judge jails woman until baby is born"

A helpful reader pointed me to this fascinating article that bears the headline that is the title of this post.  Here are the particulars:

A woman from the African nation of Cameroon could give birth in a federal prison because she is HIV-positive. U.S. District Judge John Woodcock last month sentenced Quinta Layin Tuleh, 28, to 238 days in federal prison for having fake documents. Woodcock said the sentence would ensure that Tuleh’s baby, due Aug. 29, has a good chance of being born free of the AIDS virus.

Both the federal prosecutor and the defense attorney urged the judge to sentence Tuleh to 114 days, or time served, according to a transcript of the sentencing hearing. Woodcock instead ignored the federal sentencing guidelines and calculated her sentence to coincide with her due date.  Federal prosecutors have appealed the sentence to the 1st U.S. Circuit Court of Appeals in Boston. The court has agreed to deal with the case on an expedited schedule and could hear oral arguments in late July.

Woodcock told Tuleh at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child.  He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status.  If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

The Maine Civil Liberties Union criticized Woodcock’s decision when informed of it by the Bangor Daily News. “We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways.  Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy.  He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate.  But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

The reader who sent this story my way added these astute comments: "The judge's rationale for the extended sentence seems to fly in the face of 3553(a), as well as the statute that states that judges shouldn't incarcerate for the sake of rehabilitation. It is also striking that the government is appealing the sentence as too long." 

Because I am not familiar with all the facts, I am inclined to withhold judgment about whether this sentence flies in the face of 18 USC 3553(a).  After all, 3553(a)(2)(D) does require a judge the consider the need for the sentence imposed "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner."

June 4, 2009 in Offender Characteristics | Permalink | Comments (15) | TrackBack

NRA quickly petitions SCOTUS for Second Amendment incorporation

As detailed in this post at SCOTUSblog, only one day "after losing a major test case in an appeals court on the scope of the Second Amendment, the National Rifle Association — the nation’s leading advocate of personal gun rights — asked the Supreme Court on Wednesday to apply the Amendment to state, county and city government laws that seek to regulate firearms."  The NRA's cert. petition can be accessed at this link (via The Volokh Conspiracy), and here are a few notable snippets:

The First, Second, and Fourth Amendments all refer to “the right of the people” to do certain things or be free from certain governmental restraints.  The Second Amendment has a purpose clause clarifying that exercise of the right makes possible a well regulated militia, which is “necessary to the security of a free state.”

There is a strong presumption that an explicitly-guaranteed substantive right is fundamental....

Heller held as a matter of law that “the inherent right of self-defense has been central to the Second Amendment right.” 128 S. Ct. at 2817.  The right to have arms allows one to protect life itself, and the Second Amendment declares its purpose to be “the security of a free state.”...

“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” Duncan, 391 U.S. at 155-56.  The Second Amendment also prevents oppression: “when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Heller, 128 S. Ct. at 2801....

The Second Amendment does not represent an inferior right which a court may subjectively relegate as beneath the usual rules of incorporation.  “To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it.  This is to disrespect the Constitution.” Ullmann v. United States, 350 U.S. 422, 428-29 (1956).  No constitutional right is “less ‘fundamental’ than” others, and “we know of no principled basis on which to create a hierarchy of constitutional values . . . .”  Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982).

I am pleased to see the NRA move so quickly and aggressively to encourage the Supreme Court to take up and resolve whether the Second Amendment applies to the states.  But all this strong language in the cert petition makes my again annoyed and troubled that the NRA and other Second Amendment fans have been so slow and passive in response to post-Heller rulings that have rejected gun rights for nearly everyone ever convicted of a crime.

Obviously, one does not completely and permanently lost all their First or Fourth Amendment rights, or their rights to a jury trial, just because one is convicted of any felony or the wrong type of misdemeanor.  But, since Heller, courts have regularly upheld federal gun possession convictions for all felons and certain misdemeanants.  And, to my knowledge, neither the NRA nor other Second Amendment groups have expressed one bit of concern about these developments. 

The NRA in this cert petition asserts that the "Second Amendment does not represent an inferior right." But the NRA's own unwillingness to raise concerns about the denial of this right to those who are politically unpopular (i.e., those convicted of any crime, even non-violent crimes) reveals to me that even the NRA and other gun groups feel compelled to concede that the Second Amendment is an inferior right to other rights protected by the Constitution.

Some related Second Amendment posts:

June 4, 2009 in Second Amendment issues | Permalink | Comments (11) | TrackBack

"Fairness and the Willingness to Accept Plea Bargain Offers"

The title of this post is the title of this new article that is soon to be published in the Journal of Empirical Legal Studies.  Here is the abstract:

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair.  We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent.  The article concludes by briefly discussing the normative implications of these findings.

June 4, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Examining Judge Sotomayor's years as a New York state prosecutor

This morning's Washington Post has this interesting article on Judge Sotomayor's early work as a lawyer headlined "Gritty First Job Shaped Nominee; Years as N.Y. Prosecutor Gave Sotomayor Firsthand Look at Crime and Punishment." Here are snippets:

The five years Sotomayor spent in the Manhattan district attorney's office, say several friends and colleagues, shaped her as a criminal prosecutor and helped form her worldview as a judge. The experience, combined with her later years as a trial judge, would make her unique among her new colleagues at the Supreme Court should she be confirmed and would bring a firsthand exposure to the court's consideration of criminal procedure and sentencing.

As a federal judge for 17 years at the district and circuit court levels, Sotomayor has written thousands of opinions, which now are receiving renewed scrutiny. The early examinations tell little about her jurisprudence on capital punishment, because it is rarely imposed in the states covered by the Court of Appeals for the 2nd Circuit, but so far have shown her as a middle-of-the-road jurist who, like most judges, rules most often in favor of the prosecution.

"She toes the line in terms of following what the law is, and in that respect [her opinions] come out as more pro-government," said Ellen S. Podgor, a law professor at Stetson University who has reviewed about 100 of Sotomayor's appellate rulings in white-collar cases....

Over time, Sotomayor saw that both the victims and the defendants in her cases were coming from poor neighborhoods. "I had more problems during my first year in the office with the low-grade crimes -- the shoplifting, the prostitution, the minor assault cases," she told a writer for the New York Times in 1983. "In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty. Once I started doing felonies, it became less hard. No matter how liberal I am, I'm still outraged by crimes of violence."

Prior posts on the SCOTUS nomination and record of Judge Sotomayor:

June 4, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

June 3, 2009

Two notable new death penalty papers

These two new papers from SSRN concerning the death penalty look worthy of some attention:

Science and the Death Penalty: DNA, Innocence, and the Debate over Capital Punishment in the United States by Jay Aronson & Simon A. Cole

Abstract: The death penalty debate in the United States has recently undergone a fundamental shift. The possibility of executing the innocent has emerged as some abolitionists’ most salient argument, displacing debates over such issues as fairness, deterrence, and cost. Innocence has managed to move to the fore of the debate in part because of the epistemological certainty attached to one particular kind of postconviction exoneration, one vouched for by the authority of DNA evidence.  We suggest that such rhetorical moves draw upon the epistemic authority of science as lever with which to challenge law’s claims to truth-making authority.  A few abolitionists and other scholars have expressed misgivings about the abolitionist embrace of the innocence argument. We push this concern further, suggesting that both abolitionists and death penalty reformers, who seek to promote a “scientific” death penalty centered on DNA evidence, draw upon a mythologized notion of “science” as a producer of epistemic certainty. Paradoxically, this association of science with certainty is inconsistent with contemporary notions of science as characterized by efforts to measure, manage, but always acknowledge, uncertainty.

The Deterrent Effect of Expansions in Death Penalty Eligibility Criteria by Michael Frakes & Matthew Harding

Abstract: Homicides must possess certain characteristics before they become eligible for capital punishment. Over the last several decades, virtually every state has added to its list of possible eligibility criteria. We draw on this rich set of eligibility-law variation to identify the deterrent effects ensuing from expansions in the reach of capital punishment.  Eligibility expansions may deter future homicides through two channels: (1) by paving the way for more death sentences and executions and (2) by providing prosecutors with greater leverage to secure enhanced sentences (capital or non-capital). The former channel is only rarely implicated, confounding the ability to identify deterrent forces.  The latter channel, on the other hand, is likely to be triggered on a fairly common basis.  We focus on the provision most responsible for the within-state variation in eligibility laws and estimate that the adoption of a law making child murders specifically eligible for capital punishment is associated with an approximately 19% reduction in the rate of homicides of youth victims.  In two key falsification exercises, we find no evidence to suggest that this estimate is reflective of a differential trend between treatment and control states that originated in the period prior to the eligibility expansions and we estimate no corresponding association between child-murder eligibility laws and adult homicide rates.  We estimate deterrence findings of similar magnitude when we turn to the estimation of an empirical specification that draws on variations in the full set of eligibility criteria and that parameterizes general eligibility statutes using a simulated measure of the propensity of each state to extend capital eligibility to a given murder. However, the findings of this general deterrence investigation are relatively noisy and are not robust to the exclusion of the child-murder factor from the simulation analysis.

June 3, 2009 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

"Probation for Michigan official in sidewalk sex"

The title of this post is the headline of this local story. Here are the particulars:

A married Oakland County official who police say was caught having sex with another woman on a sidewalk in the Detroit suburb of Novi has been sentenced to two years' probation.

District Judge Dennis Powers on Wednesday also ordered 56-year-old Kim Capello to perform 50 hours of community service and undergo intensive outpatient substance-abuse counseling. Capello pleaded guilty to indecent exposure. The misdemeanor charge may be dismissed if he successfully completes his sentence.

Police say officers on April 18 found an unclothed man and woman apparently having sex against a wall. The couple said they'd been drinking.  The Republican county commissioner said Wednesday in court he was urinating and not having sex.

This additional local coverage provides even more of the explanation of how urinating and having sex might be confused in this sentencing setting.

June 3, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

A "bleg" for information about crazy-long prison sentences for white-collar criminals

A Forbes reporter contacted me in her effort to "compile a list of longest federal sentences for white-collar criminals, specifically financial criminals."  I told her that I was not aware of any such list, but that I was willing to ask around via this forum. So, here is how the reporter, who can be reached via this e-link, described what she is seeking:

Looking for information/stories on long federal prison sentences given those convicted of white collar crimes, specifically financial crimes. Time frame I'm looking at is 1985 to the present. And by long, I mean way beyond normal, like 330 years for a $56 million investment scam.

June 3, 2009 in White-collar sentencing | Permalink | Comments (10) | TrackBack

California appellate court upholds 27-year three-strikes sentence for DUI offense

A helpful reader, perhaps aware of my concern that many drunk drivers do not get harsh enough sentences, forward to me this local article from California reporting on the affirmance of a very harsh DUI sentence.  Here are some of the details:

A state appellate court has upheld a long sentence for a Lincoln man convicted of driving under the influence. Jeffrey Charles Wren, 38, of Lincoln, had appealed a 27-year sentence for DUI after his conviction in 2008 by a Placer County jury.

A Placer County prosecutor, however, says that though the sentence is severe, it is proper. Wren has a long record of criminal offenses and DUI convictions. He was given the long prison stretch under the state's "three-strikes" felony sentencing guidelines. "Based on his repeated criminal conduct, he posed a great danger to society with his drinking and driving," said Todd Kuhnen, Placer County deputy district attorney.

Wren argued that one of two previous strikes on his criminal record should not be counted and that the long prison sentence was unconstitutional because it represented cruel and unusual punishment for drunken driving.  But the Third District Court of Appeal stated in its opinion that Wren had three prior convictions for DUI, that he was out on bail when his last offense occurred and that he was convicted in 1991 on two felony counts of child molestation.

A news release from the Placer County District Attorney's Office recounted Wren's lengthy record, starting with a 1992 incident where he was found drunk in the restroom of a Folsom restaurant, a loaded gun in his pocket. While that case was pending, he violated probation by fleeing the state. Wren then was apprehended in 1995 in Montana for DUI and received an eight-year prison sentence. In 2000 he failed to register as a sex offender and in the next two years violated parole for alcohol-related reasons. He also was convicted of DUI in 2003, 2004 and 2006. In 2006 he was arrested on a felony charge of possessing methamphetamine. He was free on bail when he was arrested by the California Highway Patrol near Lincoln for driving under the influence.

With three prior DUI convictions within 10 years, the new charge was a felony.  Also, his prior strikes made him subject to the three-strikes law and a candidate for a 25-years-to-life prison sentence.

The full opinion from the Third District Court of Appeal, which discusses California's standards for "a defendant who wishes to showthat a sentence is cruel or unusual under the state Constitution," can be found at this link.

June 3, 2009 in Scope of Imprisonment | Permalink | Comments (10) | TrackBack

Fifth Circuit rebukes effort to give a lot more bite to reasonableness review

The Fifth Circuit has just released an important little opinion in in US v. Duarte, No. 08-50902 (5th Cir. June 1, 2009) (available here). The ruling covers a lot of important ground in only a few pages, and here are some of the most notable passages:

Citing language from the Supreme Court’s judgment in Kimbrough that highlighted a lack of empirical support for crack versus powder cocaine sentencing disparities as a factor supporting the district judge’s discretionary downward departure in that case, Duarte claims that an examination of a Sentencing Guideline’s empirical basis is now indispensable before appellate courts can apply a presumption of reasonableness to within-Guidelines sentences imposed by district judges.  In essence, Duarte asks us to remove the presumption of reasonableness as to this and other allegedly non-empirically-grounded provisions of the Guidelines....

Duarte argues with some force that the sixteen-level enhancement provided for illegal re-enterers who commit certain crimes can lead to excessive sentences for some defendants. He does not, however, point to any law suggesting how this possibility of unjust sentences  — a persistent possibility under any system of sentencing and, more to the point, under any form of appellate review of sentencing — gives us authority to overturn the presumption of reasonableness that this court applies to within-Guidelines sentences.

Intervening Supreme Court guidance, of course, could provide an avenue for our panel to revisit court precedent, but Duarte rests too much on the thin reed of Kimbrough, particularly reading Kimbrough in light of Rita, which expressly approves circuit courts’ presumption of reasonableness for Guidelines sentences.  It is true that the Kimbrough Court “recognized that certain Guidelines do not take account of empirical data and national experience,” but absent further instruction from the Court, we cannot read Kimbrough to mandate wholesale, appellate-level reconception of the role of the Guidelines and review of the methodologies of the Sentencing Commission.  Whatever appropriate deviations it may permit or encourage at the discretion of the district judge, Kimbrough does not force district or appellate courts into a piece-by-piece analysis of the empirical grounding behind each part of the sentencing guidelines.  To the contrary, rather than aggrandizing appellate courts and sanctioning analysis from on high, the thrust of recent Supreme Court decisions has been to affirm the traditional entrustment of sentencing to the discretion of district courts, close to the ground and more cognizant of the details of offender and offense that should be determinative of sentence.  Indeed, the very district court cases that Duarte cites in his critique of the re-entry sentencing guidelines are exemplary of how district courts use their discretion to apply guidelines to particular facts.

June 3, 2009 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

"Restorative Justice and Child Sex Offences: The Theory and the Practice"

The title of this posts is the title of this recent article from the British Journal of Criminology, which is now available here via SSRN.  Here is the abstract:

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm.  This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial.  It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice.

June 3, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Guest post: "The Uses of Revenge, Redux"

A colleague, W. David Ball, wrote me an interesting e-mail that I asked him to tweak into a guest post.  Here is what he sent my way:

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The Uses of Revenge, Redux

Last week, the ALI voted to withdraw Section 210.6 of the Model Penal Code — the section which provides a framework for the imposition of the death penalty — because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."  This decision gave me occasion to revisit Anders Walker's excellent article (posted here a few months ago) about Herbert Wechsler, the Reporter of the first Model Penal Code: American Oresteia: Herbert Wechsler, the Model Penal Code, and the Uses of Revenge.  What I found particularly fascinating was the idea that Wechsler, himself a utilitarian, nevertheless saw some benefit in retributivism: it satisfied the public's nature for revenge in a way that prevented the "degredation of criminal codes."  Wechsler specifically thought that keeping the death penalty in a criminal code "had utilitarian value for criminal law, if for no other reason then as a prophylactic against legislative backlash."

After a particularly heinous crime, the availability of the death penalty created a kind of safety valve for popular outrage.  But

"[I]n an abolition situation, what you have is an outraged populace turning to the Legislature and denouncing the law and a very real danger that you may end up worse off than you started.”  Wechsler’s allusion to being “worse off” alluded to the corruption of criminal codes that occurred when elected representatives got votes by promising to boost sentences and invent new crimes. To him, this degradation of criminal codes had little to do with the inherent nature of the legislative process, but a great deal to do with popular desires for revenge stoked by liberal attempts to cabin popular will (internal citations omitted).

It is interesting, then, that yesterday the California Supreme Court affirmed Richard Allen Davis's death sentence.  Davis — better known as Polly Klaas's killer — was responsible for the crime that "became the catalyst for California's "three strikes" law."  Wechsler's theory, then, fails to account for perhaps the most punitive response to a sensational crime in the last 50 years: even though Davis got the death penalty, the public demanded — and got — a much more punitive criminal code.  And yet I can't help but think that there's something to Wechsler's theory (or perhaps just Walker's writing). 

So was Wechsler just wrong?  Have times changed?  Are we that much more manipulable — or bloodthirsty — now?   Please share your thoughts in the comments.

June 3, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack