September 5, 2009
"Cash-strapped states revise laws to get inmates out"
The title of this post is the headline of this effective article from today's Los Angeles Times. Here is how it gets started:
After decades of pursuing lock-'em-up policies, states are scrambling to reduce their prison populations in the face of tight budgets, making fundamental changes to their criminal justice systems as they try to save money. Some states are revising mandatory-sentencing laws that locked up nonviolent offenders; others are recalculating the way prison time is counted.
California, with the nation's second-largest prison system, is considering perhaps the most dramatic proposal -- releasing 40,000 inmates to save money and comply with a court ruling that found the state's prisons overcrowded.
Colorado will accelerate parole for nearly one-sixth of its prison population. Kentucky has already granted early release to more than 3,000 inmates. Oregon has temporarily nullified a voter initiative calling for stiffer sentences for some crimes, and has increased by 10% the time inmates get off their sentences for good behavior.
The flurry of activity has led to an unusual phenomenon -- bureaucrats and politicians expressing relief at the tight times. "The budget has actually helped us," said Russ Marlan, a spokesman for the Corrections Department in Michigan, which increased its parole board by 50% this year to speed up releases. "When you're not having budget troubles, that's when we implemented many of these lengthy drug sentences and zero-tolerance policies [that] really didn't work," he said.
Some recent related posts:
- A pair of timely reports on state correction costs
- Federal judicial panel orders California to drastically cut prison population
- Economic necessity finally forcing long-needed reform in California
- "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
- Reviewing how tough times are resulting in prison releases
- "Prison spending still shackles state budget"
- The state of cost problems in the states of prison nation
- "To Cut Costs, States Relax Prison Policies"
- Will we invest in classrooms or cells in these tough times?
"Not Innocent Enough: The elusive search for the sufficiently innocent death-row victim"
The title of this post is the headline of this Slate article by Dahlia Lithwick, which connects the recent death penalty stories surrounding Troy Davis and Cameron Todd Willingham. Here is how it starts and ends:
For years, death-penalty opponents and supporters have been on what now looks to be an ethical snipe hunt. Everyone was looking for a moment at which everything would change: a case in which a clearly innocent defendant was wrongly put to death....
In June, by a 5-4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Thomas went even further than the chief justice following an extraordinary Supreme Court order instructing a federal court to hold a new hearing in Troy Davis' murder case, after seven of nine eyewitnesses recanted their testimony. Scalia, dissenting from that order, wrote for himself and Justice Clarence Thomas, "[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."
As a constitutional matter, Scalia is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence. Oddly enough, for at least some members of the current court that question is now seemingly irrelevant: In Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is today constitutionally immaterial. Having waited decades for an innocent victim of capital punishment, the fact that we have finally found one won't matter at all. In this new America we can execute a man for an accidental house fire, while the constitution stands silently by.
Recent related posts:
- SCOTUS orders innocence hearing in Troy Davis case
- How many justices decided death and innocence (and original habeas) are different in Davis?
- "Supreme Court's Davis Ruling Raises New Death-Penalty Questions"
- Will new evidence of Texas executing an innocent man alter modern death penalty debates?
- How will death penalty proponents respond to "Trial by Fire"?
September 4, 2009
Fascinating district court refusal to accept a (coercive?) plea deal
A helpful reader sent me copy of a fascinating five-page district court ruling from earlier this week in US v. Taliaferro, No. 08-cr-7-1-SM (D.N.H. Sept 1, 2009) (available for download below). The start and end of the order highlights why the full order is a must-read and why I look forward to hearing from commentors about the ruling:
In this case, the government has effectively removed the court from the sentencing process, and dictated the sentence to be imposed. Exercising its considerable charging discretion in the context of applicable statutory mandatory minimum sentences, the government extended an offer that the defendant could hardly refuse: be subjected to a mandatory minimum sentence of 20 years in prison, or accept a binding plea agreement providing for a sentence of 15 years (based upon a drug charge carrying a mandatory minimum of 10 years, with the government declining to file a notice of prior conviction under 21 U.S.C. § 851, which would trigger the mandatory sentence of at least 20 years)....
Based upon this record, ... the court would likely impose a sentence in the 8 to 10 year range, but for the applicable mandatory minimum, and certainly not more than 12 years. Therein lies the rub — if the court rejects the plea agreement without knowing whether the government will, in turn, withdraw from the plea agreement, imposition of a mandatory sentence even more severe than 15 years could result. That version of blind man’s bluff is inconsistent with fundamental notions of justice and fairness, and the court chooses not to play.
The Department of Justice is headed by a new Attorney General who, consistently with the position of the new Administration, has publicly declared a change in policy and approach both to the powder-crack cocaine disparity and mandatory minimum sentences....
This district also has a new United States Attorney. Given the publicly announced intent by the Department to take a new look at sentencing policy, particularly with respect to mandatory minimums and crack/powder disparities, and given the inflexible and seemingly out-of-step approach embodied in the plea agreement and underlying exercise of charging discretion in this case, I have directed that a copy of the sentencing hearing transcript be prepared and forwarded, along with this order, the presentence investigation report, and defendant’s sentencing memorandum, to the United States Attorney for his personal review and determination of the government’s intent to withdraw or not withdraw from the plea agreement should the court impose a sentence substantially below that called for in the agreement....
Sentencing in this case will be rescheduled after the United States Attorney has had an opportunity to review and consider the issue and advises the court whether the government intends to withdraw from the plea agreement should a sentence substantially below 15 years be imposed.
Split Seventh Circuit panel discusses importance of right to allocute
A split Seventh Circuit has an extended and interesting discussion of a defendant's right to allocute and lots of other notable issues in US v. Noel, No. 07-2468 (7th Cir. Sept. 4, 2009) (available here), which is yet another ugly federal child porn case. The start of the dissenting opinion from Judge Williams provides a good summary of all the issues discussed in the Noel opinions:
I join my colleagues wholeheartedly in affirming Noel’s conviction and agree that any errors that may have occurred during trial were harmless due to the overwhelming evidence of his egregious conduct. I write separately, however, because I disagree with the panel’s conclusion that the denial of his right to allocute did not undermine the fairness of the judicial proceedings. Instead, I would remand for resentencing. In light of Chief Judge Easterbrook’s concurrence, I also write to stress the importance of the presumption of prejudice afforded to a defendant who has been denied the opportunity to allocute, and to reiterate why the standard adopted in United States v. Luepke, 495 F.3d 443 (7th Cir. 2007), should remain the law of this circuit.
Eighth Circuit affirms stat-max sentence for false statement in bankruptcy proceeding
With a struggling ecomony perhaps leading more and more businesses and persons to consider declaring bankruptcy, a ruling today from the Eighth Circuit in US v. Waldner, No. 08-2606 (8th Cir. Sept. 4, 2009) (available here), provides a sharp reminder why one must be truthful in any bankruptcy proceeding. Here is the unofficial summary of the Waldner ruling from the Eighth Circuit's website:
District court did not err imposing a 16- level increase under Guidelines Sec. 2B1.1(b)(1)(I) as the court properly concluded the amount of loss exceeded $1 million; nor did the court err in imposing enhancements under Guidelines Sec. 2B1.1(b)(9)(c) for use of sophisticated means, Guidelines Sec. 3B1.2 for abuse of a position of private trust or Guidelines Sec. 3C1.1 for obstruction of justice; no error in denying request for reduction for acceptance of responsibility; even though the district court committed significant procedural error when it purported to use certain upward departures to calculate a new advisory guidelines range, the error did not require reversal or resentencing because the sentence was within the properly calculated advisory Guidelines range and was substantively reasonable; restitution order of $1.72 million affirmed. Judge Bright, concurring.
Judge Bright's concurrence, fully reprinted here, captures the heart of the reasonableness sentencing issue:
The district court imposed the maximum possible penalty under the law (ten years). I would note that Waldner is a first-time offender, a good wage earner in his earlier positions, and apparently a good father and husband. The sentence does appear heavy but it was within the discretion of the district court. Thus, I concur.
US Sentencing Commmission makes official its ambitious priorities
Back in June, as detailed in this post, the US Sentencing Commission released its "notice of proposed priorities and request for public comment ... for the amendment cycle ending May 1, 2010." As I noted back then, unlike in prior years in which the USSC seemed to be acting as if Booker never happened, this latest set of proposed priorities was much more modern and quite ambitious.
As detailed in this official statement, after "reviewing public comment received pursuant to the notice of proposed priorities," the USSC has now issued its "Notice of final Priorities" for its 2009-2010 amendment cycle. Among the many highlights in this document are the USSC's stated priority to:
- "study ... statutory mandatory minimum penalties, including a review of the operation of the 'safety valve' provision at 18 U.S.C. § 3553(e)"
- "study and report on the appellate standard of review applicable to post-Booker federal sentencing decisions"
- a "review of departures within the guidelines"
- a "study of, and a possible report on, alternatives to incarceration"; and
- a "[r]eview of child pornography offenses"
I am hopeful that the Senate will soon confirm President's pending nominations for the chair position and an open seat on the Commission. The USSC should be and probably needs to be working at full strength in order to be able to move forward effectively on all the priorities.
Interesting forfeiture ruling from split Washington Supreme Court
Thanks to this post at How Appealing, I saw this Seattle Times article, headlined "State Supreme Court: Parents can keep cars used by drug dealing son," which describes a notable forfeiture decision by a state high court. Here is how the article begins:
A note to oblivious parents from a sharply divided state Supreme Court Thursday: If your son borrows your cars, and uses them to get high and deal drugs, the fact that you "should have known" he was operating a mobile, illicit pharmacy isn't enough for the government to seize your vehicles. You actually have to know.
The 5-4 ruling by the state's high court Thursday means Alan and Stephne Roos, of Bothell, will get to keep their 2004 Nissan Sentra and 1970 Chevy Chevelle, which their adult son, Thomas, had been using to peddle drugs in 2005. But the dissenters on the court said the ruling lets the Rooses get away with "burying their heads in the sand" about their son's criminal behavior.
The full ruling of the Washington Supreme Court, which includes this majority opinion and this concurring and dissenting opinion, is an interesting read because the justices split on what type of "knowledge" was required under the applicable state statute to permit this forfeiture.
Lots of interesting criminology reading for a long weekend
I noticed via the SSRN criminology abstracts a lot of interesting-looking new papers:
Law, Legal Institutions, and the Criminalization of the Underclass by David Ray Papke
Thug Life: Hip Hop’s Curious Relationship with Criminal Justice by andre douglas pond cummings
The Myth of Big-Time Gun Trafficking and the Overinterpretation of Gun Tracing Data by Gary Kleck and Shun-Yung Keving Wang
The Unintended Side Effects of Increased DNA Capabilities by Brenda Velazquez
September 3, 2009
Three-judge panel refuses to stay order requiring California to reduce its prison population
As detailed in this Los Angeles Times piece, a "panel of federal judges today denied state officials’ request to delay an order that they produce a plan to reduce California's prison population by 40,000 inmates." Here is more:
Aides to Gov. Arnold Schwarzenegger have said they would take their request to the U.S. Supreme Court on Friday.
In denying the state’s request, the judges said they had been “more than patient with the state and its officials” and harshly criticized them for “conflicting representations” in court that have forced the cases to drag on. “Further delays and obstruction will not well serve the people of the state, and will not be tolerated by this court,” wrote U.S. District Judges Thelton Henderson and Lawrence Karlton, and U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt.
In their order last month, the judges said overcrowding is the primary cause of substandard healthcare and mental health care in state prisons. They required the state to produce a plan by Sept. 18 to relieve the overcrowding.
State officials, in requesting a delay, had said they would be wasting taxpayer resources putting together a plan that ultimately might be unnecessary after an appeal of the order. The appeal was filed separately today.
The judges noted that a proposal to reduce prison overcrowding has been approved in the state Senate and part of that plan passed the Assembly. “Indeed, the state has already completed much of the necessary work to develop a plan that could satisfy much or all of our order,” they wrote.
Some recent related posts:
- Federal judicial panel orders California to drastically cut prison population
- California begins SCOTUS appeal process for federal ruling ordering prisoner release
- Latest legislative twist suggests California won't have a sentencing commission anytime soon
- Possibility of California sentencing commission continues to generate controversy
- "Free 40,000 California inmates? Not so fast."
- Prison reforms and cuts left uncertain in final California budget deal
- Economic necessity finally forcing long-needed reform in California
"Pa. lifers seeking clemency in wake of US ruling"
The title of this post is the headline of this new AP article discussing litigation and other developments surrounding possible clemency grants for those serving life sentences in Pennsylvania. Here are excerpts:
Tyrone Werts earned a college degree, counseled at-risk teenagers, organized an anti-crime summit, sold Girl Scout cookies, and once prevented the rape of a teacher — all while serving a life sentence for second-degree murder and robbery.
Regarded as a model prisoner for nearly 35 years, Werts, 57, will appear before the state Board of Pardons on Thursday to ask for a commutation of his sentence. He and another inmate, William Fultz, also 57, are the first lifers to go before the board since a federal judge ruled in June that thousands of Pennsylvania inmates sentenced to life should have an easier path toward clemency....
Werts' backers are pinning their hopes on a June 11 ruling by U.S. District Judge A. Richard Caputo, who said the pardons board may not apply the tougher 1997 standard to inmates who committed their crimes before 1997 because the U.S. Constitution forbids ex post facto punishment. The decision — the latest ruling in a 12-year-old lawsuit filed by the Pennsylvania Prison Society — could affect more than 3,000 of the 4,868 lifers in the state's prisons. The pardons board has appealed.
The 1997 amendment requires that inmates sentenced to life must receive a unanimous vote of the five-member pardons board before the governor may consider their commutation request — giving a single board member the power to block any inmate's bid. Before then, lifers needed only a majority vote to get their case before the governor.
Opponents of the referendum argue it deprives lifers of any meaningful chance to win clemency. Pennsylvania leads the nation in the number of inmates serving life sentences who were juveniles when they committed their crimes. It's also one of only six states in which a life sentence automatically means life without parole — so commutation is the only way lifers who have already spent decades behind bars can get out of prison.
Might the ugly Garrido case result in needed changes to sex offender registries?
This new article in the Wall Street Journal, which is headlined "Sex-Registry Flaws Stand Out," has me wondering and hoping that the horrid Phillip Garrido case might prompt needed reforms to ever-expanding sex offender registries. Here are snippets:
The case of Phillip Garrido, who allegedly held Jaycee Dugard in his backyard for 18 years despite monthly law-enforcement visits, is forcing California officials to acknowledge a fundamental problem with the state's sex-offender registry: The list keeps expanding, while the number of officials who monitor sex offenders has grown at a much slower rate.
There are now so many people on the registry it's difficult for law enforcement to effectively track them all, and "it's more helpful for law enforcement to know...who the highest-risk offenders are," said Janet Neeley, a deputy California attorney general and member of the state's sex offender board.
A December study of roughly 20,000 registered sex offenders on parole in California found 9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk, said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.
California's sex-offender registry has ballooned to more than 90,000 people now from about 45,000 in 1994, according to the California attorney general's office. Not only has the number of law-enforcement officers failed to keep pace, but recent state budget cuts have forced some local agencies to cut officers assigned to sex offenders, according to the California Commission on Peace Officer Standards and Training.
The Santa Clara County Sheriff's Office, for example, said funding cuts have forced it to field only five officers dedicated to tracking sex offenders in the county, down from eight officers five years ago.
Last year, California's Sex Offender Management Board criticized the system as it stands in a 225-page assessment, highlighting failures in the collection and analysis of data on sex offenders. It's "difficult if not impossible" to track the effectiveness of registry laws, the report said....
California has been trying to sharpen its focus, but federal and state laws passed in 2006 offer conflicting rules for monitoring sex offenders, Ms. Neeley said.
Under its law, California has chosen to use a program called Static 99, which categorizes sex offenders based on their likelihood to reoffend.... Provisions in the federal Adam Walsh Act aim to move monitoring in the opposite direction, so that it's based solely on an offender's type of conviction, not on a complex assessment of risk.
That's problematic, said Jill Levenson, an associate professor at Lynn University in Florida who studies sex-offender registries, since it "overestimates risk for most people, and underestimates risk for people who pleaded down," or struck plea deals by admitting to lower-level crimes.
Now, the state Sex Offender Management Board is recommending that California forgo some federal funds and not adopt the law, which would add to the number of crimes requiring registration. "There is no available evidence to indicate that expanding California's list of registerable crimes would promote public safety," the board wrote in a recommendation, noting the federal law would create at least $32 million in costs to the attorney general's office and law-enforcement agencies without improving the system.
"Federal Judge Refuses To Take New Criminal Cases"
The title of this post is the headline of this NPR piece about a notable federal district judge's decision to reshape his docket. Here are the basics from the piece:
A federal judge in Milwaukee has taken the unusual step of refusing to accept new criminal cases and recusing himself from existing ones, in a move observers say is about politics, impropriety and, possibly, hurt feelings. Federal Court Clerk Jon Sanfilippo says the way he sees it, the reason Judge J.P. Stadtmueller is refusing criminal cases "really springs from one case."
Sanfilippo, the only person at the federal courthouse in downtown Milwaukee who was willing to talk about the situation, says it all started after a ruling in July by the 7th Circuit Court of Appeals. Prosecutors thought Stadtmueller showed bias in a gun case and took the rare move of asking the appeals court to remove him, which it did. Stadtmueller accused the U.S. attorney's office of judge-shopping.
The judge declined repeated requests for interviews; neither his colleagues on the federal bench nor the interim U.S. attorney for Milwaukee would comment.
Sanfilippo says since that ruling, Stadtmueller stopped taking new criminal cases from the government and recused himself from 22 existing ones. He is still taking civil cases, however. "He believes that he's acting appropriately under the circumstances, trying to provide a situation where there's no problem in terms of perception," Sanfilippo says, "and as this has been unfolding, he's been very adamant about making sure he has a full caseload."
My sense is that there is a lot to this (little?) story, and a lot of backstory to the story. Rather than comment or speculate about the particulars, perhaps I should just encourage dialogue on the general question of whether and when it seems appropriate for an active federal judge to refuse to hear certain types or all types of criminal cases.
US Sentencing Commission regional hearing in Chicago next week
As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for next week. This fourth regional public hearing is scheduled for Sept 9-10, 2009, in Chicago will be held in the Ceremonial Courtroom of the Everett M. Dirksen United States Courthouse.
As detailed in this official agenda, a fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy, including famed US Attorney Patrick J. Fitzgerald who is known well from his prosecution of Scooter Libby and Rod Blagojevich. The panel that seems especially worth attending is the one providing a "View from the Appellate Bench" and which has Judges Danny Boggs and Jeffrey Sutton of the Sixth Circuit and Chief Judge Frank Easterbrook of the Seventh Circuit testifying about their views on the post-Booker world.
Notably absent from this regional session is any "View from Academia," which I believe was part of each prior regional hearing. It seems the members of the US Sentencing Commission got tired of hearing how the federal sentencing system looks from the ivory tower.
Lots of interesting news and notes about parole
- From the Gainesville Sun here, "Editorial: Parole reform"
- From Reuters here, "Dying Manson follower Atkins denied parole"
- From the Richmond Times Dispatch here, "Some inmates eligible for parole held longer than guidelines suggest"
The item about Manson follower Susan Atkins being denied parole despite being terminally ill and paralyzed over most of her body is getting the most media attention, in part because of the visuals the even produced and in part because of the recent controversial decision by Scotland to grant compassionate release to the Lockerbie bomber. This article from across the pond, which is headlined "Scotland take note: 'Manson Family' killer Susan Atkins loses 18th bid for parole DESPITE being on her death bed," highlights this comparative dynamics surrounding this notable parole denial story.
But the other pieces linked above should not be overlooked. For example, the start of the piece from Virginia highlights the challenges of balancing competing concerns and pressures in modern parole decision-making:
Some 706 parole-eligible inmates are being been held longer in Virginia prisons, at $24,332 each per year, than recommended under the current no-parole sentencing guidelines.
In a report to the General Assembly on Tuesday, the Virginia Criminal Sentencing Commission also found that as of the end of last year, there were 575 prison inmates eligible for geriatric release.
However, the report also found that of the parole-eligible inmates still in prison, 88 percent were convicted of violent crimes and nearly 80 percent have not yet served longer than stipulated under the sentencing guidelines.
And this part of the editorial from Florida is especially interesting given that Florida's affinity for sentencing some juvenile offenders to life without the possibility of parole is the subject of a big Supreme Court case this coming Term:
Twenty-six years ago in Florida, the Legislature passed a landmark criminal-sentencing bill that called for the gradual elimination of parole. Since 1995, no one sentenced to life in prison is eligible for parole.
Today, no inmates sentenced to state prison are eligible for early release under the conditions and supervision of the parole system. The changes occurred in response to inconsistencies in the application of parole policies, recidivism by inmates granted release and widespread dissatisfaction with the criminal justice system.
Still, there are several reasons for Florida to reconsider its blanket policies against the use of parole. One of the most compelling reasons is Florida's status as the state having by far the most juveniles, 77, imprisoned for life for crimes that didn't involve homicide.
A bill filed by state Rep. Mike Weinstein, a Republican who works in a prosecutor's office, would make 68 of Florida's 100,000 inmates eligible for parole. Those inmates were convicted of "non-homicide" offenses committed when they were 15 or younger and have served at least eight years....
[A] state and society should also recognize that juveniles so young that they aren't permitted — for their own good — to drive a car, buy cigarettes or alcohol or enter into contracts, ought to be given some considerations in sentencing and have an opportunity for rehabilitation and redemption.
Weinstein's bill would provide, but not mandate, those opportunities and a chance at parole under strict conditions. A bill in Congress — HR 2289 — would do the same....
Whether or not the juveniles serving life terms for non-murder charges would be suited for parole and release from prison, no one knows. Weinstein's bill would at least let the Parole Commission make that determination.
September 2, 2009
My (now published) take on the MPC sentencing revisions
This past January, I was part of a panel at the 2009 AALS conference talking about the American Law Institute's on-going revision of the sentencing chapters of the Model Penal Code. As detailed here, the Florida Law Review has now published the terrific articles that emerged from that panel. My little article is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions." This article can be downloaded below, and here is how it gets started:
My favorite bit of folk wisdom is “if it ain’t broke, don’t fix it.” However, when considering the ongoing revisions to the Model Penal Code: Sentencing (MPCS) provisions, a corollary comes to mind: “fix what’s really broke, and don’t risk breaking what ain’t really broke.” Unfortunately, the MPCS revisions fail to address what is really broken in modern American sentencing systems, and they overlook enduring (and still timely) wisdom found in the original MPCS. Thus, I view the MPCS revision as at best, a missed opportunity; at worst, the codification of problematic modern sentencing dynamics.
Lots of great, and very different, new stuff at some blog favorites
Lots and lots of great new posts can be found at these often great crim law blogs:
"Race, Death and Disproportionality"
The title of this post is the title of this new piece I noticed on SSRN from Scott Howe. Here is the abstract:
Statistical studies showing unconscious racial bias in capital selection matter under the eighth amendment. In McCleskey v. Kemp, the Court appeared to shun such evidence as irrelevant to eighth amendment challenges to capital punishment. Yet, this kind of evidence has influenced many of the Justices’ views on the constitutionality of the death penalty and has sometimes caused the Court to restrict the use of that sanction under the eighth amendment. My goal, therefore, is to explain why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to 'cruel and unusual punishments.' Ultimately, I address how such studies, despite their limitations, might influence the Court in its regulation of the death penalty in the future.
My project proceeds in five parts. Part I contends that the eighth amendment regulates capital selection not, as is commonly asserted, through a consistency mandate but, instead, through a deserts limitation — a mandate that only a person who deserves the death penalty should receive that sanction. Part II shows how the capital selection process allows for multiple opportunities for reprieves of offenders who deserve the death penalty but also provides a two-phase trial to try to ensure that nobody receives a death sentence who does not deserve it. Part III briefly describes the statistical efforts to determine whether racial biases concerning defendants and victims influence decisions along the selection process. Part IV shows, however, why studies that do not focus on the capital sentencer have only limited eighth amendment meaning and why even studies that do have that focus cannot establish with much certainty that violations of the deserts limitation frequently occur. Statistical evidence of racial bias even at the sentencing trial might reflect mostly the effect of race in the dispensation of merciful reprieves. Yet, this Part also explains that such evidence can spur our intuitions that some sentencer findings of deserts underlying some death sentences, in addition to some reprieves, are racially influenced. In fact, Part V contends that, despite the Court’s general unwillingness to acknowledge that racial-bias studies reveal that death sentences are sometimes disproportional, the studies have influenced the Court — and will continue to influence it — to confine the use of the death penalty.
Justice Stevens' clerk hiring can start next round of SCOTUS speculation
Even though new Justice Sotomayor has not yet even heard her first case, this new AP article seems sure to start a new round of Supreme Court transition talk. Here's the lead: "Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court's liberals will retire next year." Because it makes sense for various reasons that Justice Stevens would decide to call it quits after the upcoming Term, I am sure this bit of news will prompt most everyone to begin to assume that President Obama will get another Supreme Court pick in 2010.
I think SCOTUS speculation might be especially dynamic and interesting this second time around because President Obama likely should and perhaps will feel less inclined to make a "safe" pick to replace Justice Stevens. The first time around, President Obama's "short list" understandably was filled almost exclusively with women and minorities, and it seems he was also keen on nominating someone a judicial record. With all those bases "covered" through his selection of Justice Sotomayor, and also with lots of notable academics working now in the Obama Administration, the realistic possibilities for a nomination this time around all but ensures that plausible "short lists" might grow to be very long.
Of course, all the big-time next justice speculation surely should wait until Justice Stevens actually indicates that he is going to retire. But I doubt that it will.
Some recent and older posts on SCOTUS short-lists:
- Thinking creatively about different SCOTUS short lists
- Insider myopia and the diverse benefits of a short bench
Good news on crime victimization rates in 2008
Various folks expressed concern that the down-turn in the economy in 2008 could and likely would lead to an increase in crimes. But, as this DOJ press release details, the latest, greatest statistics suggest that crime victimization decreased from 2007 to 2008. Here is the encouraging news from the start of the press release:
The violent crime rate in 2008 — 19.3 victimizations per 1,000 persons age 12 or older — was unchanged from the previous year, the Bureau of Justice Statistics (BJS) in the Office of Justice Programs, U.S. Department of Justice, announced today. The property crime rate declined during 2008 from 147 to 135 crimes per 1,000 households, primarily as a result of decreases in theft and motor vehicle theft.
In 2008, an estimated 4.9 million violent crimes (rapes or sexual assaults, robberies, aggravated assaults and simple assaults) occurred, as well as an estimated 16.3 million property crimes (burglaries, motor vehicle thefts and household thefts) and 137,000 personal thefts (picked pockets and snatched purses). These offenses included both crimes reported and unreported to police. With the exception of theft and motor vehicle theft, victimization rates for every type of crime measured were unchanged from the 2007 levels.
Violent and property crime rates in 2008 remain at the lowest levels recorded since 1973, the first year that such data were collected. The rate of every major violent and property crime measured by BJS fell between 1999 and 2008. The overall violent crime rate fell 41 percent and the property crime rate declined by 32 percent during the last 10 years.
The full statistical report is available in this new publication, which is titled "Criminal Victimization, 2008." Now we can begin the usual debate over who and what accounts for (1) the fact that crime is now at record low levels in the US, and (2) the fact that there are still, on average, tens of thousands of serious crimes every single day in the US.
California begins SCOTUS appeal process for federal ruling ordering prisoner release
This Sacramento Bee article details that California has begun the process for appealing the recent three-judge special panel ruling that called for a dramatic cut in California's prison population. Here are the basics:
State lawyers said Tuesday they will try to take the issue of prison overcrowding to the U.S. Supreme Court rather than obey a court order to come up with a plan to reduce inmate population. The lawyers, on behalf of Gov. Arnold Schwarzenegger and corrections officials, are asking the three judges who issued the order to put it on hold while the state seeks a high-court review. They say the state should not have to spend some of its precious few funds to create a plan that should never have been ordered in the first place.
Facing a $1.2 billion shortfall in the corrections budget, officials need to focus their limited resources "on safely implementing that budget reduction," the lawyers insist.
When a three-judge court like this one is appointed to hear a matter under the federal Prison Litigation Reform Act of 1995, any appeal goes directly to the Supreme Court. Both sides agree that, if the high court accepts jurisdiction, it would be the first time it considered a case involving prisoners ordered released under the act.
In a motion filed Tuesday with the three judges, the state said it will wait until noon Friday to hear from them on a stay pending appeal. If the stay is denied or if they have not acted by then, the state will seek a stay from the Supreme Court, the motion says.
On Aug. 4, the three-judge court ordered the state to provide them by Sept. 18 a plan to reduce the population of its 33 adult prisons by up to 46,000 inmates within two years. The system is operating at 190 percent of its 79,828 design capacity, and the judges found overcrowding is the primary reason care of sick and mentally ill inmates has descended to unconstitutional depths.
Tuesday's motion argues a stay should be granted on multiple grounds: The three-judge court was improperly convened; its finding regarding health care was erroneous; the order to reduce the population by more than 25 percent goes way beyond what is necessary, and since the order "is the first such prisoner release order to be issued under the PLRA," the Supreme Court should now have the opportunity to weigh in.
Thanks to Crime & Consequences, everyone can download at this link California's "Motion To Stay the Three-Judge Court’s August 4, 2009 Opinion And Order Pending Appeal and Memorandum Of Points And Authorities."