« September 6, 2009 - September 12, 2009 | Main | September 20, 2009 - September 26, 2009 »

September 19, 2009

Is Japan's death penalty now about to be killed?

When I teach the death penalty, I often urge student to note and reflect on the fact that Japan is like the US in being a modern industrialized democratic nation that has continued to use the death penalty.  But this new piece in The Times of UK, which is headlined "Japan’s death penalty effectively scrapped with arrival of Keiko Chiba," suggests I may soon have to update my teaching notes.  here is how the piece starts:

Capital punishment has been unofficially scrapped in Japan with the appointment of a left-wing justice minister who is an outspoken opponent of the country’s controversial system of secret executions.

Keiko Chiba, 61, a lawyer and former member of the Japan Socialist Party, has the final say in signing execution orders for the country’s 102 death-row inmates. Although she has declined to say explicitly whether or not she will authorise them, her 20-year record as an active death penalty abolitionist means that hangings will be put on hold after surging in the past three years....

Japan is the only industrialised democracy, apart from the United States, to maintain capital punishment. Campaigners opposed to the death penalty also say that it is carried out in a manner designed to avoid public scrutiny.

Once final appeals have been exhausted, death-row inmates can meet only their lawyers and immediate family members. Hangings are usually carried out during parliamentary holidays to prevent the subject from being raised in parliament. The condemned prisoner is told of his imminent execution only a few hours before it is carried out. His family are informed afterwards, when they are invited to collect his remains.

September 19, 2009 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (27) | TrackBack

Specifics and predictions concerning stay of Ohio's effort to re-execute Broom

This local article, headlined "Inmate's execution delayed for 10 days," provides more of the details and debate surrounding Ohio's efforts to try to execution again Romell Broom after its botched first attempt:

A second attempt to execute condemned killer Romell Broom, who says he endured "torture" and cried in pain during the first aborted try, was delayed yesterday under an agreement between Broom's attorneys and the state....

The order expires at 11:59 p.m. Sept. 28. U.S. District Judge Gregory L. Frost has set a hearing for 9 a.m. that day to consider a request by Broom's attorneys for a preliminary injunction against the execution. Broom attorney Timothy Sweeney of Cleveland said yesterday that he doesn't expect the execution will go forward "any time in the near future."...

The Ohio Association of Criminal Defense Attorneys sent a letter to Strickland on Thursday calling for a moratorium on the death penalty, and the governor's office said it has received 30 calls and 110 e-mails mentioning a moratorium....

Cuyahoga County Prosecutor Bill Mason opposed delaying Broom's execution, saying Broom has not been subjected to pain greater than any other prisoner who had problems with an IV. He also cited the need for finality for the victims.

As detailed by this postat Crime & Consequences, Kent Kent Scheidegger is troubled not only with the stay but with how the Ohio AG is handling this matter:

[The stay is] not a surprise, but the Ohio AG is going to get the stay lifted, by the Supreme Court if necessary, right? No! They actually consented to it! "Attorneys for the state consented to the request for a delay from Broom's attorneys, who will argue that the pain Broom experienced during the aborted attempt violates a constitutional ban on cruel and unusual punishment."

And what is this horrible torture? "Broom told his attorneys he was pricked as many as 18 times Tuesday as prison staff tried to find a suitable vein."

Poor baby! He suffered 18 pinpricks!  Remember what this guy did. "Broom was convicted in the 1984 rape and murder of a 14-year-old girl after abducting her at knifepoint while she was walking home from a football game with friends." Instead of calling the pinpricks the preposterous basis for further delay that it is, the Ohio AG consents?!  What are they smoking?

For anyone eager to keep up with all of the particulars, be sure to check out this great page at Lethal Injection.org, which has posted a lot of the legal papers and commentary surrounding the Broom case.

Related posts on botched Broom execution attempt:

September 19, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Details on California's not-quite-complete prison population reduction plan

This Los Angeles Times article, headlined "Governor's prison plan seeks more time to reduce inmate population: Schwarzenegger's proposal is submitted to federal judges Friday evening, only hours before the deadline," reports on the latest prison reform doings in California. Here are the basics from the start of the article:

Gov. Arnold Schwarzenegger on Friday evening gave federal judges a road map to reducing state prison overcrowding. But the proposal would take more than twice as long as the judges ordered to make the improvements they demanded and would fall short if state lawmakers did not approve certain provisions, administration officials said.

The plan appears to set up a confrontation between the governor and the judges, who made their impatience clear in ordering the state to forge a plan to reduce the number of inmates by 40,000 within two years. Schwarzenegger's plan would take five years -- if lawmakers sign off on it.

Under a second scenario, if lawmakers balk at more prison changes than they reluctantly approved last week on the final day of the legislative session, the state would retain nearly 23,000 more inmates after two years than the judges have said is reasonable.

There was no indication Friday that legislators were more inclined to approve the proposals the governor included than they were when they dismissed some of the same ideas in recent weeks under pressure from law enforcement groups.

The governor's proposal avoids anything that could be portrayed as a mass release of criminals or that would leave him on a ledge without lawmakers' support. A combination of prison construction and a variety of generally modest steps to reduce inmate numbers, it is limited to maneuvers for which he already has authority or might receive it.

If the judges find that the state's proposal violates the order they issued Aug. 4, they could hold officials in contempt. The judges could also ask inmates' attorneys to present their own plan to reduce overcrowding and order the state to implement it.

The court submission by the state of California can be accessed at this link.

Some recent related posts:

UPDATE How Appealing has links to other press coverage of the California plan in this post.

September 19, 2009 in Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Another prominent athlete presents another potential Second Amendment test case

Regular readers know that I was disappointed that Plaxico Buress did not assert a serious Second Amendment claim after being charged and prosecuted in New York with serious crimes based on his possession of a gun for personal self-defense (details here and here and here).  Now, as detailed in this Washington Post article, another prominent athlete present another potential Second Amendment test case:

A D.C. area native-turned-NBA player was arrested in Prince George's County on Thursday after a police officer who pulled him over on the Beltway found that he was carrying three loaded guns, authorities said.

Delonte West, 26, a graduate of Greenbelt's Eleanor Roosevelt High School and a guard for the Cleveland Cavaliers, was traveling north on the Beltway in a three-wheeled motorcycle called a Can-Am Spyder when he cut off a Prince George's canine officer near Route 214, authorities said. The officer pulled over West for making an "unsafe lane change," police said, and when the officer approached the motorcycle, West told him he had a handgun in his waistband.

That prompted the officer to call for backup and search West's vehicle. He found three guns -- a Beretta 9mm in West's waistband, a Ruger .357 magnum strapped to his leg and a shotgun in a guitar case slung over his back, said Maj. Andy Ellis, a spokesman for the Prince George's police.

Police charged West with two criminal counts of carrying a handgun for the Ruger and the Beretta, and issued him a traffic citation for driving "in excess of reasonable and prudent speed," court records show. Ellis said West was within his rights to carry the shotgun.

It is not clear why West was so heavily armed or why he was traveling alone in the Largo area at 10 p.m. on a Thursday, Ellis said. West's father, Dmitri West, said, "All I can say is Delonte was looking behind his back and protecting himself." He said his son was looking out for both specific people and because he was generally concerned about his well-being as a high-profile athlete. He declined to say who might be targeting the NBA star. "Bottom line is there's a lot of not-too-nice people out here," Dmitri West said....

Police arrested West and seized his guns and his motorcycle, Ellis said. He was released from jail early Friday on his personal recognizance, court records show. He is scheduled to appear in court Nov. 20.

Though I am not an expert on Maryland law, I think West may only be facing misdemeanor charges and thus West and his lawyers might not need to bring in Heller and the Second Amendment in order to ensure that these gun possession charges go away quickly.  Nevertheless, if Heller stands for the proposition that the Second Amendment protects a persons right to possess guns for self-defense, it seems that West's gun possession might arguably be constitutionally protected.

September 19, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (6) | TrackBack

Yet another noteworthy below-guideline federal child porn sentence

This local story from Washington state, which is headlined "2½-year sentence for man with 1,300 CDs of child porn," provides yet another example of the uncertainty and disparity surrounding federal sentencing for child porn offenses.  First the facts as reported:

A former Little League coach who was found to have over a thousand CDs full of child pornography images was sentenced to 32 months in prison Friday.  In addition, 60-year-old Benny L. Hill will be required to have 15 years of supervised release.

Agents were clued in to Hill's stash while investigating a Fairfield, Conn. man on child pornography charges. Investigators found Hill's email address, "Stoned_coach," and learned the Fairfield man had been trading child pornography with Hill over the Internet.  When agents searched Hill's Kelso home on March 12, 2008, they discovered 1,300 CDs full of child pornography images.

In fact, the collection was so large, "agents abandoned efforts to continue counting all the images and videos," said Assistant United States Attorney David Reese Jennings.  Hill was arrested and last August, pleaded guilty to possession of child pornography.

"I cannot overstate the revulsion in our community, nor the serious and insidious impact on our culture, or how these offenses raise levels of fear in our society," U.S. District Judge Ronald B. Leighton said in a statement released after sentencing Friday. "The joy of childhood is constrained by parents who are scared to death by the people who are inspired, motivated, and titillated by those who possess this material."

Prosecutors had asked for a sentence of just over 8 years.

Now, my questions and concerns:

  1. Why were federal prosecutors only asking for an 8-year sentence here for a guy with a huge (record-setting?) collection of child porn who seems to have been an active trader, when federal prosecutors in other cases have sought decade-long sentences for seemingly much less serious child porn offenders? 
  2. How does the judge's bold statement jibe with his significant downward variance?
  3. Will the government appeal this relatively low sentence for what seems to be an especially serious child porn offender?
  4. Am I the only one who thinks it is perversely funny that the defendant here is named Benny Hill?

Some related federal child porn prosecution and sentencing posts:

September 19, 2009 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Virginia Supreme Court rules that school boards decide whether sex offender can go on school property

This local article, which is headlined "Schools can ban sex offenders," reports on an interesting ruling yesterday from the Virginia Supreme Court:

School boards — not judges — have the final say about whether violent sex offenders or anyone else comes onto school property, according to a Supreme Court of Virginia opinion handed down Friday. The opinion, which was written by Justice Barbara Milano Keenan, reverses a decision from the Charlottesville Circuit Court allowing a sex offender to come onto Charlottesville public school property under certain conditions.

Stacy Haney, a Richmond-based lawyer who represents the city’s School Board, said school supervision is vested in local school boards under the state’s Constitution. Haney said the Supreme Court’s opinion would be far-reaching. “This case will have implications for every single public school division in Virginia,” Haney said....

The petitioner in the case, who filed under the pseudonym John Doe, was convicted in 1999 of two counts of taking indecent liberties with a child while in a custodial or supervisory relationship. They are considered sexually violent offenses, the opinion said, so Doe was required to register as a sex offender.

Under state code, sexually violent offenders are prohibited from entering public or private school or daycare center property unless they attend the school, vote there or have a court order.

Doe was released from incarceration in 2000 and completed his supervised probation uneventfully. He filed a petition seeking permission to go onto school grounds to pick up his stepson and attend activities involving the child. Circuit Judge Edward L. Hogshire granted the request over the School Board’s objections, Haney said, imposing conditions to limit Doe’s on-campus time and requiring him to give the principal notice before coming to school activities.

“As long as Doe did what the order said, he could come onto property and the School Board couldn’t prohibit it,” Haney said. “What this opinion says is that while the trial court can enter an order lifting the statutory ban on sex offenders going onto the school’s property, the School Board retains the ability to say who can and can’t come onto school property.”...

Dave Chapman, commonwealth’s attorney for Charlottesville, said he believes Doe’s request under the statute was the city’s first. The prosecutor said the General Assembly likely would further refine the statute in the future.

The full ruling in this matter Virginia v. Doe can be found at this link.  Here is how the court website summarizes the ruling:

A court order entered under Code § 18.2-370.5 granting a stepfather who is a convicted violent sex offender permission to enter public school property under certain specified conditions violates Article VIII, Section 7 of the Constitution of Virginia, which vests in school boards the supervisory authority over public schools. Code § 18.2-370.5 authorizes a circuit court to lift the statutory ban imposed by Code § 18.2-370.5(A), but allows the affected private entity or public school board to determine whether and under what circumstances an offender may enter onto school property. The judgment of the circuit court is reversed and the case is remanded for further proceedings.

September 19, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Lots of useful information in latest FAMMGram

The homepage of Families Against Mandatory Minimums has this annoucement: "The FAMMGram is here! It's packed with news on efforts to change federal mandatory minimums, FAMM project updates and more."   Among the features in this periodic newsletter that I found especially informative was (1) a piece on page 9 titled "State mandatory minimum reforms are far from rare," which details recent sentencing reforms in eleven states, and (2) a research update on page 12 that "highlights from the numerous reports that have been released so far in 2009" concerning various sentencing law and policy issues.

Check it out.

September 19, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

September 18, 2009

Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details)

This AP article provide the latest, but certainly not the last, update on the litigation surrounding Ohio's botched execution attempt this past Tuesday and its plans to try again this Tuesday.  Here are a few highlights:

An attorney for an Ohio inmate whose lethal injection failed this week asked the U.S. Supreme Court on Friday to halt an unprecedented second execution attempt, and cited in a separate affidavit the inmate's claims that executioners hit muscle and bone when they tried to find a vein suitable for injection.

Tim Sweeney, an attorney for Romell Broom, also filed lawsuits in federal district court and in the Ohio Supreme Court in Columbus on Friday arguing that a second execution attempt, scheduled for Tuesday, would violate Broom's civil rights. If unsuccessful in achieving clemency for Broom, Sweeney will argue that he shouldn't be executed until a new procedure can be put in place that ensures what happened on Tuesday won't be repeated. And trying again only a week later would be "unconscionable," Sweeney said....

In an affidavit from Broom that was to be submitted as evidence in the federal district court filing, Broom said officials first tried three separate times to access a suitable vein in the middle of both arms. He said nurses told him to take a break after those six attempts, after which the nurse tried twice to access veins in the left arm.

"She must have hit a muscle because the pain made me scream out loud," Broom said. "The male nurse attempted three times to access veins in my right arm. The first time the male nurse successfully accessed a vein in my right arm. He attempted to insert the IV, but he lost it and blood started to run down my right arm. The female nurse left the room. The correction officer asked her if she was OK. She responded, 'No' and walked out.

"The death squad lead made a statement to the effect that this was hard on everyone and suggested that they take another break."

Officials later moved to Broom's feet to find an accessible vein. "During this attempt, the needle hit my bone and was very painful. I screamed," Broom said in the affidavit....

On Friday, the American Civil Liberties Union of Ohio filed a public records request with the state in an attempt to learn information about the preparation for the first attempt, details about the attempt and information about preparations for the next scheduled attempt. The Ohio Association of Criminal Defense Lawyers sent Strickland a letter Thursday asking him to place a moratorium on Ohio executions given Tuesday's events.

A prisons spokeswoman said Thursday that officials at the Southern Ohio Corrections Facility where Broom is being kept in a cell in the infirmary in preparation for next week's attempt are monitoring how much he's drinking. Dehydration could make it more difficult to find veins, but the spokeswoman said there's no evidence that's what caused Tuesday's problems. In the affidavit, Broom said that on Monday, the day before the execution attempt, he drank seven cups of coffee, five cups of water and three cups of Kool-Aid.

Candidly, I will be a bit surprised if we make it though the weekend without some kind of stay ordered to prevent the state of Ohio from starting the execution process on Monday.  It is my understanding that an execution process gets started a day or so before the actual scheduled execution (including the ordering of a last meal and all), so I will be surprised if all state and federal courts wait until Monday to rule on a stay.  Though perhaps the state courts are hoping the federal courts will intervene first, and vice versa.  In short, as I like to say, stay tuned.

Related posts on botched Broom execution attempt:

UPDATE:  This new New York Times piece provides the latest news, including the details of a stay:

An Ohio prisoner whose execution was halted on Tuesday, and then immediately rescheduled for next week, because technicians were unable to inject him with lethal drugs won a stay of execution on Friday.

The stay, issued by Judge Gregory L. Frost of the Federal District Court in Columbus, expires at 11:59 p.m. on Sept. 28. A hearing on a further stay has been scheduled for that day.

September 18, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

"Athlete's sentence: No prison, no sports"

The title of this post is the headline of this local Ohio article that a helpful reader sent my way.  Here are the fascinating details:

Applause turned to gasps in a Butler County courtroom Thursday as a judge announced an unusual punishment for a Middletown track and football star: Dwayne "Deejay" Hunter is forbidden from playing organized sports during his five-year probation for a felonious assault conviction. "We're going to see who Dwayne Hunter the person is, not who Dwayne Hunter the star athlete is," declared Judge Andrew Nastoff, as he said Hunter still has a six-year prison sentence that would be imposed if he violates any conditions of his probation.

Nastoff had warned Hunter: "You're 19 years old. And you are standing right here, six inches away from a prison number and the potential to go away to prison for eight years - that's two presidential terms. You are right there," the judge said, drawing his index finger and thumb within an inch of each other. Then the judge announced, "You are not going to prison today."

When at least a dozen supporters applauded and cheered, Nastoff quieted the crowd and told anyone who couldn't control themselves to leave. Then he began outlining all the conditions of probation: no sports, not even intramurals; a $500 fine; 500 hours of community service, which can include his helping youngsters in Special Olympics, pee-wee football or other sports; plus 180 days in the Butler County Jail. With credit for time served, he will be released just before Thanksgiving.

An aunt, Rita Hunter, said the family would have a celebration that would be "beyond joyous - it will be awesome." Within 30 days of his release, Deejay Hunter must either obtain full-time employment or enroll in full-time schooling, Nastoff ordered, and also must attend counseling to address "personality and relationship issues" outlined in a mental-health evaluator's report.

Nastoff said Hunter must make abiding by these rules his top priority. If he messes up even once, the judge vowed to send Hunter to prison. Hunter's aunt wiped tears from her eyes and expressed gratitude that Nastoff kept her nephew out of prison, yet said she felt badly he's being kept away from sports. "I'm kind of happy and sad at the same time," she said. "It's kind of strict, but the judge had to do what he had to do."

Hunter, who pleaded guilty as charged in July, could have received up to eight years in prison for shooting a BB gun from a vehicle on a Middletown street in January, striking a 15-year-old boy in the face; one of the BB's struck the victim's eyelid. "You were probably an inch away from blinding someone," the judge told Hunter.

Nastoff said the victim's family wrote to him and said that Hunter had served enough jail time. Nastoff said he wasn't sure he agreed with that sentiment. "That's what kind of people they are. They're big people - big enough, in spite of what happened, to say maybe he's served enough punishment," Nastoff said.

Hunter, who wore No. 26 for the Middies at cornerback, attracted football scholarship offers from across the nation and had planned to sign a letter-of-intent with one of those colleges on national signing day, Feb. 4. Instead, he was sitting in jail. "Virtually every Division I school was interested in him," said Hunter's attorney, Frank Schiavone.

In track, Hunter ran the 100-yard dash in 10.2 seconds - but missed competing in the state finals because he was locked up for violating terms of his bond in the BB gun incident. Hunter, who graduated this spring, was also a good student, carrying a 3.4 grade-point average, Schiavone said.

Nastoff said the list of college scholarships meant nothing to him. "Do you know what I care about? How are you going to live - are you going to shoot people in the face?" Nastoff said.

Nastoff told Hunter he detected a possible "seed of empathy" because, among about a half-dozen speeches in court Thursday, "you were the only one that talked about what happened to the victim." Nastoff said the sentence was crafted to force Hunter to learn vital life lessons. "Find out who you really are without this whole aura of the athletics around you, because quite frankly in some ways it's made you a Frankenstein monster. It's made you think you're owed certain things," Nastoff said.

In addition to welcoming comments about whether this sentence is wise, I would also love to hear from anyone who thinks it might be constitutionally questionable.

September 18, 2009 in Criminal Sentences Alternatives, Offender Characteristics | Permalink | Comments (3) | TrackBack

Unpublished Sixth Circuit ruling addresses departure/variance distinction

The Sixth Circuit released an interesting unpublished ruling in US v. Simpson, No. 08-5293 (6th Cir. Sept. 16, 2009) (available here), which finds procedurally unreasonable a district court sentencing determination that failed to properly distinguish its departure authority and its post-Booker variance authority.  Here are some key sections of the ruling (with cites left out):

Both at sentencing and in the STR, the court followed the same model of (1) calculating the Guidelines range; (2) determining if any of the mitigating factors presented “extraordinary circumstances” sufficient to justify a Guidelines departure; and (3) determining what sentence within the relevant range was justified in light of the factors set forth in § 3553(a). This approach is impermissible for several reasons....

This mistake significantly affected the sentencing court’s understanding of its authority because variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U.S.C. § 3553(a) include a much broader range of discretionary decisionmaking than departures. The district court’s statements indicate that it felt  bound by the pre-Gall standard of review and the Guidelines’ restrictions on departures that require extraordinary or exceptional circumstances to justify a below-Guidelines sentence.  As a result, the court dismissed some of Simpson’s mitigation evidence as unworthy of consideration when, in fact, the court was required to consider that evidence.

I am not sure what bothers me more — the fact that these basic issues remain murky nearly five years after the Booker ruling or the fact that the Sixth Circuit did not think clarifying these issues justified publishing this seemingly important Simpson decision. 

September 18, 2009 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

California's court-ordered plan for prison population reductions to come up short

As detailed in this Sacramento Bee article, which is headlined "Schwarzenegger's prisons plan will fall short of judges' order," California's Governor will be filing today a plan to address overcrowding in the state's prisons, but the specifics might not make the special three-judge panel of federal judges too happy:

Schwarzenegger's Department of Corrections and Rehabilitation intends to file an inmate reduction plan with the court today, but the state's proposal will be well shy of the judges' inmate target, according to a legislative memo. The plan will incorporate the package approved last week by the Legislature to cut the population by 16,000 inmates, as well as proposals to send 2,500 inmates out of state and 1,000 inmates to private prisons. It also will propose constructing new buildings on existing prison sites to house an additional 7,600 inmates....

Senate Republicans objected to Schwarzenegger's proposed prison cuts this summer, but they applauded the governor's approach to stop short of the three-judge panel's demands in his plan. They saw it as a potential legal strategy to challenge the federal judges, eventually forcing the U.S. Supreme Court to settle whether the federal government can mandate a release of prisoners. "I assume the court is going to find this totally inadequate," said state Sen. George Runner, R-Lancaster. "I hope they find it inadequate, reject it and then we appeal to the Supreme Court."

Sen. Tom Harman, R-Huntington Beach, said his caucus believes the federal three-judge panel has overstepped its bounds. "The fundamental question is, do they have the jurisdiction and right to make these orders?"

The judges could respond by rejecting Schwarzenegger's plan and asking him to resubmit it. They could put the plan under a review process that ultimately results in a final order demanding greater inmate reductions. Or the judges could hold Schwarzenegger and Corrections Secretary Matthew Cate in contempt.

Even if they are cited for contempt, it is unlikely the governor and prison boss would wind up in jail. Inmates' attorneys have said in the past they would not seek such an extreme penalty. But they questioned Schwarzenegger's approach Thursday. "It is inexplicable to me why the governor would not submit to the court a modified version of the plan he submitted to the Legislature," said Donald Specter of the Prison Law Office, co-chief counsel for the inmates. "The governor said that that plan would not be a risk to public safety and, if enlarged slightly, would comply with the court's requirements."

He referred to a deal Schwarzenegger sought in July that called for a population reduction of 37,000 over two years. That plan would allow sick and elderly inmates or those in the final year of their sentences to finish serving time on home detention or in community hospitals wearing Global Positioning System tracking devices....

The plan Schwarzenegger intends to file today will not include the controversial alternative custody provisions, according to Runner. If the plan proves unsatisfactory to the federal judges, "the state's officials are correct that they may be facing contempt proceedings," Specter said. "We will decide whether to pursue contempt after reviewing the state's final plan."

The other chief counsel for the inmates, Michael Bien, sounded a similar note. He said he believes state officials are running the risk of contempt "if the state's 'strategy' is to set up a confrontation with the three-judge court by defying the court's lawful order."

Some recent related posts:

September 18, 2009 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

"Inmate Will Testify About Failed Execution"

The title of this post is the headline of this article from the New York Times concerning one of the ways in which Ohio's botched execution attempt has created some interesting legal action in on-going lethal injection litigation.  Here are the details:

Two days after the execution of a convicted rapist-murderer was halted when technicians were unable to inject him with lethal drugs, a federal judge ordered Thursday that the inmate be deposed for a federal lawsuit challenging the constitutionality of Ohio’s lethal injection procedure.

The deposition for the inmate, Romell Broom, is set for Monday, a day before he is scheduled to be executed. His lawyers said they planned to file appeals in state and federal courts on Friday seeking to cancel or at least postpone his execution....

On Thursday, federal public defenders argued before the judge, Gregory L. Frost of Federal District Court in Columbus, Ohio, that evidence supporting their case against lethal injection would be irretrievably lost if they were not able to interview Mr. Broom before his death.

“He has relevant evidence that needs to be preserved,” said David C. Stebbins, an assistant federal public defender in Columbus. “Mr. Broom has, of course, the most relevant testimony of what exactly they did to him and the amount of pain he was put in.” The deposition is for a case in the Federal District Court for the Southern District of Ohio.

“The core of the complaint,” Mr. Stebbins said, “is that there are insufficient protections built into the Ohio procedures that guarantee it will be a painless execution, that the protocols are not sufficient to guard against mistakes and that they don’t cover all issues like in Mr. Broom’s case.”

As detailed in this Columbus Dispatch article, headlined "Second-try execution is 'cruel,' suit to say," Broom's lawyers will be filing their 1983 suit seeking to block his "re-execution."  It is my understanding that this suit will be considered a related case to the on-going Ohio lethal injection lawsuit, which means that US District Judge Gregory Frost would get this case and make an initial ruling — perhaps as early as today? — about whether a stay is needed to consider the merits of Broom's new Eighth Amendment arguments.

Related posts on botched Broom execution attempt:

September 18, 2009 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Judge Gerard Lynch becomes first lower-court Obama nominee confirmed by Senate

As detailed in this pieceavailable at law.com, the "Senate on Thursday confirmed Gerard Lynch for the 2nd U.S. Circuit Court of Appeals, giving overwhelming approval to the Southern District of New York judge who presided over cases involving former basketball coach Isiah Thomas and recording artist Lil' Kim."  Though Judge Lynch was elevated by a vote of 94-3, few future nominees seem likely to generate so much consensus:

While the nomination generated no significant controversy, the two parties made clear that future confirmations will turn into ideological battles in the Democratic-controlled Senate.  The Judiciary Committee chairman, Patrick Leahy, said Republicans have been using Senate rules to block votes on judicial nominees while vacancies mount. There are 20 vacancies on the regionally based federal appeals courts and another 72 for the lower district courts.  "We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations," Leahy said. "It is imperative that we move to fill the growing number of vacancies throughout the federal courts."

Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, said that while he backed Lynch, "We're seeing a pattern of nominees who believe they have the power to amend the Constitution."  Sessions voted against Lynch in 2000 when he was confirmed as a U.S. District judge, but said he is now satisfied that Lynch is not a judicial activist.

Judge Lynch went down so smooth in part, no doubt, because of his history as a crime-fighter:  "He has served as a federal and New York state prosecutor, chief counsel for the New York State Commission on Government Integrity and an associate counsel in the Iran-Contra independent counsel's office."

Over at How Appealing, this post provides links to more press coverage of this notable first.  And, as detailed in this prior post, Judge Lynch has an interesting and impressive record on sentencing issues.  Moreover, as documented in lots of prior posts linked below, the broader issues surrounding Obama lower court nominees ought to be of great interest to sentencing fans:

September 18, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

September 17, 2009

Miami sex offender residency restriction upheld by state court

This Miami Herald story, headlined "Judge rules Miami-Dade sex-offender residency law is valid," reports on a new ruling in a high-profile case involving a local residency restriction in Florida.  Here are the basics:

The American Civil Liberties Union of Florida failed to persuade a Miami-Dade circuit court judge to undo strict local ordinances that forced a group of convicted sex offenders to live under the Julia Tuttle Causeway.

In the suit, filed against Miami-Dade County, the ACLU argued Thursday the county's ordinance banning sex predators from living within 2,500 feet of schools conflicts with a state statute that sets the boundary at 1,000 feet.  Essentially, the ACLU claimed there was an "implied preemption'' by the Legislature that local municipalities' ordinances would fall in line with the state's law.

But Miami-Dade Attorney Tom Logue countered that, if that were true, the Legislature would have clearly inserted the preemption into the statute.  In fact, Logue pointed out, over the past few years, various lawmakers have tried and failed to change the sex offender residency restrictions to make local ordinances more consistent with state law.

September 17, 2009 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?

This new AP article, headlined "Lawyers try to stop second Ohio execution try," reports on the latest legal news concerning Ohio's plan to try again to execute Romell Broom.  Here are highlights:

Lawyers plan state and federal lawsuits and a request to Ohio Gov. Ted Strickland to stop next week's unprecedented second execution attempt of a man whose lethal injection failed on Tuesday.

Cleveland attorney Tim Sweeney said Thursday that he expects lawsuits to be filed no later than Friday in an effort to halt the next attempt to put Romell Broom to death. Sweeney argues that a second try at an execution is unconstitutional. At the very least, he said, Strickland should further delay Tuesday's execution.

Broom "sustained both physical and mental injuries," Sweeney said. "It's going to take time for all the psychic trauma to dissipate. Even if it never goes away, I think it's wrong to try to do it again so quickly in these circumstances."

Strickland stopped Broom's execution after executioners tried unsuccessfully for two hours to find a usable vein. Broom, who at one point wiped his face with a tissue and appeared to be weeping, told his attorneys he was pricked as many as 18 times.

Broom, 53, was sentenced to die for the rape and stabbing death of a 14-year-old Tryna Middleton, a girl he kidnapped in Cleveland in 1984. Cuyahoga County Prosecutor Bill Mason said it was ironic that Broom was complaining about the execution given the nature of his crime. "I am absolutely certain that it was Tryna Middleton that suffered from cruel and unusual punishment," Mason said.

Broom remains at the Southern Ohio Correctional Facility, where the prison system is monitoring how much he's drinking, said prisons spokeswoman Julie Walburn. Officials want to make sure Broom is not dehydrated before the execution, but they can't force him to drink more, she said. Dehydration could make it more difficult to find veins, however, Walburn said there's no evidence that caused Tuesday's problems....

Also Thursday, two federal public defenders asked U.S. District Court Judge Gregory Frost to order that Broom be made available to them for a legal deposition.  The fact that Broom survived the execution "creates a singular opportunity to confirm that he, in fact, experienced serious pain in violation of his constitutional rights, not just a 'substantial risk' of serious pain," David Stebbins and Allen Bohnert argued in a court filing.

It was easy to predict that lots of litigation would ensure upon Ohio's indication that it wants to attempt to execute Broom again next week.  But, as the title of this post flags, it is hard to predict if and when and how the US Supreme Court will be brought into this fray (and, for that matter, whether the usual amici suspects will be eager to jump into this high-profile and high-speed and unique lethal injection litigation).  As I often have to say in these kinds of matters, stay tuned.

Related posts on botched Broom execution attempt:

September 17, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Seeking input on the most under-appreciated part of the US Constitution

220px-Constitution_Pg1of4_AC The BLT's Morning Wrapnotes that today is "Constitution Day."  Here's its celebratory note:

On this day in 1787, the Constitution was signed, and the anniversary is being marked by the National Archives, the Library of Congress, the Constitution Project, and the Cato Institute, all in D.C., in addition to the National Constitution Center in Philadelphia and, we are sure, many other venues as well.

In addition to encouraging everyone to take the time to read the full US Constitution today, I thought it might be fun to celebrate today by asking readers to note in the comments what part or provision of the Constitution seems under-appreciated.

For fans of personal liberty and limited government like me, it is perhaps a bit too easy point to the Ninth Amendment as the most jurisprudentially under-appreciated provision of the Constitution.  But, as I reflect on the modern document and also my affinity for modern American democracy, I am also a huge fan of the 15th, 19th and 26th Amendments, each of which extended and safeguarded voting rights.  One reason I am often troubled by broad felon disenfranchisement laws is because I view the ever broaden of voting rights to be one of the many hallmarks of the greatness of this country.

Moving to a slightly different front, I think the 18th and 21st Amendments also should get a lot more love and attention as we consider our founding charter.  Though a national prohibition on alcohol now seems quite foolish, at least the temperance movement used the constitutional amendment process to achieve its policy goals rather than simply declaring a "war on alcohol" and having the local police power used to this end. 

And, even more importantly, once we collectively realized how foolish the 18th Amendment proved to be, we had the gumption and good sense to repeal it via the 21st Amendments.  I like being able to point my kids to these amendments when I say that everyone makes mistakes, and that the truly wise are the ones who admit their mistakes and then seek to fix them. 

September 17, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (15) | TrackBack

Should President Obama be praised or assailed for his approach to judicial nominations so far?

Jeffrey Toobin has this really interesting article on President Obama's approach to judicial appointments in the New Yorker. Here are just a few notable snippets that ought to engage everyone:

Just eight months into his first term, Obama already has the chance to nominate judges for twenty-one seats on the federal appellate bench — more than ten per cent of the hundred and seventy-nine judges on those courts. At least half a dozen more seats should open in the next few months. There are five vacancies on the Fourth Circuit alone; just by filling those seats, Obama can convert the Fourth Circuit, which has long been known as one of the most conservative courts in the country, into one with a majority of Democratic appointees. On the federal district courts, there are seventy-two vacancies, also about ten per cent of the total; home-state senators of the President’s party generally take the lead in selecting nominees for these seats, but Obama will have influence in these choices as well. Seven appeals and ten district judges have been named so far. George W. Bush, in the first eight months of his Presidency, nominated fifty-two....

In recent years, the introduction of a Supreme Court nominee has become a major political undertaking. By the time the President announced his choice of Sotomayor, on May 26th, “there were two story tracks—‘eminently qualified’ and ‘an American story,’ ” an official who was involved with the rollout said. “The first part related to her judicial experience, which was more time as a federal judge than any nominee in a hundred years, but we also raised as a subtext her experience as a big-city prosecutor”—early in her career, Sotomayor was an assistant district attorney in Manhattan. “You always have to worry that a Democrat is going to be called soft on crime, but it’s harder to do that if people know she was a big-city prosecutor.”

Some related old and new posts on lower-court judicial appointments:

Some recent and older posts on SCOTUS short-lists:

September 17, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

Notable reactions in national and local papers in response to Ohio's "unexecuted"

Both the New York Times and the Columbus Dispatch have fascinating articles with lots of notable quotes concerning Ohio's difficulty on Tuesday trying to execute Romell Broom via lethal injection.  First, this NYT article under the headline "Ohio Plans to Try Again as Execution Goes Wrong," includes these notable quotes: 

[Broom's] lawyers described what happened Tuesday as torture and said they would try to block the execution. One of them, Adele Shank, said: “He survived this execution attempt, and they really can’t do it again. It was cruel and unusual punishment.” Ms. Shank watched Tuesday’s procedure on closed-circuit television. “I could see him on the screen,” she said, “and it was apparent to me that he was wincing with pain.”

The Ohio chapter of the American Civil Liberties Union said Wednesday that the state must abolish lethal injection. “This is the third screwed-up execution in three years,” said Jeffrey M. Gamso of the A.C.L.U. of Ohio. “They keep tweaking their protocol, but it takes more than tweaks. They don’t know how to do this competently, and they need to stop.”

In referring to two previous troubled executions in Ohio, Mr. Gamso was speaking of the death of Joseph Clark in 2006, delayed more than an hour because of problems with IV placement, and the 2007 execution of Christopher Newton, also delayed more than an hour while technicians tried at least 10 times to insert the IV.

The director of the state corrections department, Terry J. Collins, said he and his staff were seeking the advice of doctors and others to plan for a successful execution next Tuesday. “I won’t have discussions about ‘what if it doesn’t work next week’ at this point,” Mr. Collins said, “because I have confidence that my team will be able to do its job.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said problems with veins were inevitable in lethal injection by IV. Mr. Scheidegger said he favored execution methods involving intramuscular injection or a return to gas chambers, but with a poison other than cyanide, which was long under attack because of the suffering it can inflict.

Second, this front-page, above-the-fold Dispatch article under the headline "What's next for unexecuted inmate? Plan still is death," includes this discussion of some of the enduring medical, legal and practical issues: 

The state does have a few options on the injections, said Dr. Sean Collins, an assistant professor of emergency medicine at the University of Cincinnati. Radiology equipment could be used to locate a vein farther under the skin, or a line could be inserted into the vein in Broom's neck. However, those procedures are typically done at hospitals -- usually by physicians. Ohio's execution team is made up of emergency medical technicians.

State prisons spokeswoman Julie Walburn said officials are assessing what the EMTs are qualified to do -- including possible "additional access points" that could be used for lethal injection. They are not allowed to do most medical procedures and "will not work outside the scope of what they're trained to do," she said....

On the legal front, Broom's attorneys, S. Adele Shank of Columbus and Timothy Sweeney of Cleveland, said they almost certainly will file legal challenges to block round two. Sweeney said Broom needs time to heal from what Broom told his attorneys were 18 different needle sticks in his arms and legs.

The attorneys will consider filing an appeal based on the Eighth Amendment prohibition on cruel and unusual punishment. "Ohio has a special statutory provision that requires executions to be 'quick and painless,' " Sweeney said. "This execution team has demonstrated clearly they're incapable (of) providing a quick and painless execution to Mr. Broom."...

Strickland said yesterday that the Broom case presented a "very unusual set of circumstances" that does not warrant an overall review of capital punishment in Ohio. "The EMTs, my understanding is, are adequately trained," the governor said. " ... My understanding is that the problem is associated with the physical condition of the inmate, not the inability of the EMTs to perform as they were required to perform."

But like anything in medicine, it takes practice to get good at inserting an IV line. Nurses at Ohio State University Medical Center, for example, can insert at least two IV lines a day. And if they have trouble getting one in after two tries, they'll ask someone more experienced. "It's a thing you have to keep doing and doing, and over time you get a feel," said Shirley McCoy, nursing staff-development specialist at the OSU Medical Center. "You can decide by looking and feeling the vein; it's just really a skill that nurses build up over time."

The EMTs on the state's execution team are primarily corrections employees who may work part time on local fire departments.

Related posts on botched Broom execution attempt:

September 17, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

"Theorizing Fines"

The title of this post is the title of this new piece I just noticed on SSRN from Professor Pat O'Malley of the University of Sydney.  Here is the abstract:

Given their central place as a sanction in criminal justice, the virtual absence of a theoretical literature on them is a serious deficit. The paper reviews the principal contributions to date, and argues that they suffer from a misleading conviction that sanctions are driven by production relations. To begin with, this seriously underestimates the impact of penal discourses and practice, which can better account for variations in the rise, uneven distribution and recent decline in fines' dominance as a punishment. Equally important is the failure to consider the nexus between the rise of the modern regulatory fine (for example 'on the spot' fines) and the rise of consumer societies.

From my perspective, it is not all that surprising that there is a virtual absence of a theoretical literature on fines in American academic literature because fines here in the US do not have a central place as a sanction except for traffic offenses.  I sincerely wish and hope that one consequence of lean economic times and the high costs of imprisonment might lead some US jurisdictions to more seriously consider a great use of fines as a punishment for more serious offenses.

September 17, 2009 in Criminal Sentences Alternatives | Permalink | Comments (4) | TrackBack

Using GPS in California to track sex offenders at county fair

This local articlehighlights an interesting use of GPS technocorrections as a means to keep California sex offenders away from a notable public region:

Law enforcement officials will use global positioning system tracking technology to monitor sex offenders at the Tehama County Fair this year, the Tehama County Sheriff's Office announced this morning....

Parole agents will establish an exclusion zone around the perimeter of the fair grounds for the duration of the event.  The Redding GPS Parole Unit and Tehama County Sheriff's Office are teaming up to track and monitor the activities at the fair.

A sex offender parolee who enters the fair will set off an alert. Once a notification is received, on-site agents will track the offender's movement and investigate if any law, parole violation or any public safety issues exist and take appropriate action, said Tehama County Sheriff Clay Parker.

California is the nation's leader in using GPS technology to track sex offenders, Parker said.  Today, Tehama County has just under 280 registered sex offenders, 59 of whom are parolees on active supervision. Every sex offender on active parole has GPS monitoring as part of their supervision.

September 17, 2009 in Sex Offender Sentencing | Permalink | Comments (9) | TrackBack