September 16, 2009
UK advocate saying botched Ohio execution attempt should be US turning point on death penaltyI suspect that yesterday's botched execution attempt here in Ohio likely could become a big national and international story, and this new item from a UK paper confirms my suspicion. The piece is headlined "The American way of death:A botched execution in Ohio should quicken the end of capital punishment." Here are notable excerpts:
The botched attempted execution in Ohio this week of a murderer should prompt America to join the rest of the developed world in consigning judicial killing to history. There is inadequate evidence that it acts as a deterrent, it ignores the risk of miscarriages of justice and allows no room for repentance or correction. But above all it is a barbarity that stains civilised society....
A one-week reprieve granted by the Governor of Ohio may well be extended indefinitely, partly because it is half a century since any inmate was subjected to more than one execution, and partly because some justices of the US Supreme Court have now begun to wonder if botched lethal injections might not violate the eighth amendment ban on “cruel and unusual punishment”. Last year the court upheld the use of lethal injections. But Justice John Paul Stevens, while concurring, said that imposing the death penalty represented “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes”. Other justices are believed to share this view.
As this commentary notes, the Supreme Court back in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), actually signed off on the constitutionality of Louisiana making a second attempt at executing a capital defendant after a failed first electrocution effort. But, as Debby Denno notes in this StandDown post, Resweber can be distinguished in various ways. And, as we all know, the Eighth Amendment has always been said to evolve so that practices once constitutional (e.g., executing juves or those with retardation) can become unconstitutional.
Related posts on botched Broom execution attempt:
- Ohio struggling, legally and practically, with effort to execute offender
- More on Ohio's execution troubles and what could happen next
- Details on the botched Ohio execution, issue spotting, and seeking predictions
The grisly details surrounding Broom's failed execution — which read like an outtake from the movie "The Green Mile" or a transcript from a torture probe — remind us that the United States Supreme Court did not come remotely close last year to fixing the many problems that still surround lethal injection in America. It's true that the Justices upheld Kentucky's lethal injection procedures. But those measures are different from the procedures in place in Ohio, a state that consistently has had problems over the past few years ensuring that its executions are swift and humane.
[I]t would be surreal if Ohio now were able to argue (under Chief Justice Roberts' new standard in Baze) that because it can't find any "feasible" and "readily implementable" alternatives to the current protocols it shouldn't be required to fix its obvious problems. And I'm just waiting to see if anyone in the Ohio Attorney General's office has the gall to argue to a federal judge that because so many of its recent executions have been excruciatingly long and painful they no longer should be considered "unusual" under the Eighth Amendment.
In the meantime, Broom waits — sore arms and legs and all. If he is "re-executed" he will become the first man in America since at least 1946 to achieve the dubious distinction, says Richard Dieter of the Death Penalty Information Center. That's some trivia that neither Ohio nor the United States Supreme Court ought to ignore.
The extra re-entry challenges for sex offenders after the Garrido caseThe AP has this interesting new article headlined "California case casts harsh spotlight on sex offenders." Here is how it starts:
After being locked away for 25 years for sex crimes, Donald Robinson moved to a little block of unassuming homes in this city on the San Francisco Peninsula on Aug. 27. The timing couldn't have been worse. It was the day after Philip Garrido was arrested just 40 miles away on charges that he kidnapped 11-year-old Jaycee Lee Dugard and held her captive for 18 years despite his long criminal record as a sex offender.
Police distributed fliers in Robinson's new neighborhood, alerting residents that he was living there. He has been targeted by a protest rally organized by the mayor and daily picketing outside his house. And the state is paying two security guards $800 a day each to protect him.
Robinson's case underscores just how hard it is for the government to move sex offenders back into society, especially at a time there is widespread outrage over the Garrido case and the missed opportunities to catch him. It's an issue that communities around the country have faced in an era when community notification laws in all 50 states let residents know where sex offenders live.
Texas CCA finds procedural bar to considering amor-afflicted death sentenceThis AP article, which is headlined "No retrial for condemned man after judge-DA affair," reports on a notable ruling from the highest criminal court in Texas:
A Texas death row inmate won't be able to argue for a new trial, despite admissions of an affair between his trial judge and the prosecutor, a court announced Wednesday.
The Texas Court of Criminal Appeals ruled that convicted murderer Charles Dean Hood should have raised concerns about the affair between the now retired court officials in earlier appeals. The ruling overturned a lower court's recommendation that Hood be able to make his case for a new trial based on the affair.
How appealing has more, with links to the ruling, in this post.
Details on the botched Ohio execution attempt, issue spotting, and seeking predictionsThis story from the Cleveland Plain-Dealer has more details on Ohio's botched effort to execute Romell Broom yesterday and some reactions to it:
For more than two hours, the team attempted to insert two shunts into a vein of the compliant Broom, who tried several times to assist his executioners by shifting positions, rubbing his arm and pointing out possible usable veins. The delay will likely add to the debate about the death penalty in Ohio and what constitutes cruel and usual punishment.
"The sentence is death, not torture plus death," said Kathleen Soltis, chairwoman of the Cleveland Coalition Against the Death Penalty. "What does reprieve mean in this case? This is getting crazier than usual."
At one point, Broom, 53, lay back on his bed, covered his face with his hands, and cried. Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles.
A reprieve at this stage of an execution has never happened since the death penalty was reinstated in 1999, said Terry Collins, director of the Ohio Department of Rehabilitation and Correction. He said he called the governor and asked for the reprieve after it became clear the execution team was having trouble. "I could tell my team was becoming somewhat frustrated," Collins said. The reprieve extends only until Sept. 22.
The drama played out before the family of Tryna Middleton, the 14-year-old girl Broom was convicted of kidnapping, raping and killing 25 years ago. Tryna's mother and father, Bessye and David Middleton, were there to witness the execution, as was an aunt. They sat in front of a glass window through which they were expecting to see Broom die.
Instead, he never made it out of his nearby cell, where two shunts were to be installed in veins. The shunts allow three drugs to enter the veins and sedate, paralyze and kill the inmate. The family and others watched the preparation on closed-circuit monitors mounted in the witness area. A camera filmed Broom and captured much of the difficulty the execution team had, as well as Broom's frustration. Broom requested no witnesses initially, but about an hour into the process asked for his attorney, Adele Shank, to be present.
A visibly upset Shank appeared in the witness room not knowing of Broom's request but out of concern for the length of time for the execution. "The chief justice and the governor have been notified of what's going on," Shank said after the execution team spent 90 minutes trying to insert the shunts.
Collins said the execution team was able to access several veins but they collapsed once saline solution was administered. He defended the execution team and said: "They continued to do a job that most wouldn't do or couldn't do."...
Shank, Broom's lawyer, said she is considering additional appeals. "We don't want to see a repeat of this ever," she said.
I suspect that Broom's lawyer (whom I happen to know and respect greatly) will have little trouble developing a federal Eighth Amendment claim based on what's happened to her client so far. But I am wondering about other possible legal issues that might be raised in this setting.
Most obviously, Broom could make a state claim based in the Ohio Constitution's prohibition on cruel and unusual punishment. State provisions similar to the Eighth Amendment are often, but not always, interpreted in harmony with federal jurisprudence. Notably, the Ohio Constitution's Bill of Rights also has provisions securing Inalienable Rights and Redress in Court, which perhaps are other avenues Broom's lawyers might exploring in state court.
Moving beyond Broom, I am wondering if other defendants on death row in Ohio (or in other states that rely on lethal injection) might now have a due process right to access to any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration." I think that video would be relevant and important evidence for making constitutional claims surrounding lethal injection protocols in Ohio and perhaps in other states.
In the same spirit, might lawyers involve in other lethal injection litigation now seek to take Romell Broom's deposition? It seems that what Broom was experiencing physically (and perhaps also psychologically) would be relevant to claims surrounding lethal injection protocols. Could a federal court involved in some other lethal injection litigation order a stay of Broom's new September 22 execution date in order to preserve him as a possible witness in another proceeding?
And let's throw in a little First Amendment fun: does the media (and/or an interested and responsible blogger) have a right to access any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration"? Does the media have a right to access Broom himself to interview him about his experiences yesterday?
I could go on and on, but you all get the point of how much this real case now seems like a law school exam hypothetical. And, of course, what ultimately happens to Broom and broader debates over lethal injection in Ohio or elsewhere is much more important than being able to spot all the issues. Thus, I am interested in hearing predictions from any and everyone about what they expect to have happen next.
Related posts on botched Broom execution:
- Ohio struggling, legally and practically, with effort to execute offender
- More on Ohio's execution troubles and what could happen next
Some related posts on litigation in Ohio and elsewhere over lethal injection:
- Sixth Circuit splitting over challenges to Ohio's execution protocol
- "Sotomayor on losing end in Ohio man's death appeal"
- Split Sixth Circuit panel upholds Tennessee's lethal injection procedures
- Legal challenge to Washington's lethal injection methods turned away
- Notable new paper on doctor involvement in executions
UPDATE: This article from CBS News highlights that the aboitionist community is already calling for a moratorium on all executions in Ohio:
The problems prompted the American Civil Liberties Union of Ohio to ask state officials to immediately halt executions. "Ohio's execution system is fundamentally flawed. If the state is going to take a person's life, they must ensure that it is done as humanely as possible," ACLU Ohio counsel Carrie Davis said. "With three botched executions in as many years, it's clear that the state must stop and review the system entirely before another person is put to death."
Data bleg on gender, crime, victims and punishment
For various reasons, I have been thinking a lot lately about the gender realities in crime and punishment, and I am starting a new scholarly project that call for citing some historical and modern data relating to gender, crime, victims and punishment. Thus, I thought it useful and wise to make this data bleg:
Can folks cite/link for me — either in the comments below or via e-mail — the best-known and/or most accurate and reliable historical and modern data breaking down with particularity gender dynamics surrounding criminal offending and crime victims?
I would also be interesting in gendered data concerning sentencing and punishment for various crimes in various eras. Thanks!
"Why Did China Reform It’s Death Penalty?"The title of this post is the title of this interesting new paper by Kandis Scott that I just discovered on SSRN. Here is the abstract:
China recently reformed its death penalty procedures, and as a result the government has executed fewer prisoners. The author explores possible explanations for and policy concerns behind this change and evaluates their implications for the future of the death penalty in China. The influences for the change include international forces and domestic factors, such as academic criticism, the media, changed circumstances in society, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that China eventually may abolish capital punishment, perhaps before the United States does so. However, recent signals indicate that officials may be ending the 'lenient' period, suggesting that the reforms may mean much less than thought initially.
What can and should be done about prison staff sex abuse of prisoners?A helpful reader pointed me to this notable column by in the Washington Post, which is headlined "Chilling Findings in Report on Prison Sex Abuse." Here is how it starts:
Prisoners don't command much respect. Those who steal, rape and murder make life miserable for the rest of us and should pay for their actions. But when society puts them away, they must be treated decently, humanely and in accordance with the law.
So a report last week from the Justice Department's inspector general was particularly troubling because it detailed crimes by an unexpected group: federal employees who work in the prisons.
Inspector General Glenn A. Fine calls it "staff sexual abuse of federal inmates." The document paints a disgusting picture of federal employees who have disgraced themselves, shamed their professions and dishonored the federal service.
As my colleague Carrie Johnson reported Friday, the inspector general found that allegations of sexual abuse and misconduct had more than doubled from fiscal year 2001 through 2008. "These allegations increased at a faster rate than either the growth in the prisoner population or the number of BOP [Bureau of Prisons] staff," the IG's report says. "BOP officials told us they believe this increase is due to the BOP's efforts during this time period to educate and encourage staff and inmates to report abuse."
I suspect that this problem is not unique to federal prison facilities, and I wonder if this new report will lead to some positive developments on this front. I am not confident that persons involved in this kind of sex abuse are always effectively prosecuted and sentencing, though I am also not confident that a criminal justice response will be sufficient to address this problem that surely grows as prison populations grow.
"The Disutility of Injustice"The title of this post is the title of this interesting new article on SSRN by Paul Robinson, Geoffrey Goodwin, and Michael Reisig. (Hat tip: the new CrimProf.) Here is the avstract:
The retributivists and the crime-control instrumentalists have seen themselves as being in a irresolvable conflict for more than half a century. Social science increasingly suggests, however, that they need not be. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment.
That shift to desert has prompted concerns by two groups – ironically, two groups traditionally opposed to one another. The first group – those concerned with what they see as the over-punitiveness of current criminal law – worries that setting desert as the dominant distributive principle means continuing the punitive doctrines they find so objectionable, and perhaps will make things worse. The second group – those concerned with ensuring effective crime control – worries that a shift to desert will create many missed crime-control opportunities; it will increase avoidable crime.
The first group's concern about over-punitiveness rests upon an assumption that the current punitive crime-control doctrines of which they disapprove are a reflection of the community's naturally punitive intuitions of justice. However, as Study 1 makes clear, today's popular crime-control doctrines in fact seriously conflict with people's intuitions of justice by exaggerating the punishment deserved.
The second group's concern that a desert principle will increase avoidable crime exemplifies the common wisdom of the past half century that ignoring justice in pursuit of crime-control through deterrence, incapacitation of the dangerous, and other such coercive crime-control programs is cost free. However, Studies 2 and 3 suggest that doing injustice has real crime control costs. Deviating from the community's shared principles of justice undermines the system's moral credibility and thereby undermines its ability to gain cooperation and compliance and to harness the powerful forces of social influence and internalized norms.
The studies reported here give assurances to both groups. A shift to desert is not likely to either undermine the criminal justice system's crime-control effectiveness, and indeed may enhance it, nor is it likely to increase the system's punitiveness, and indeed may reduce it.
GenRe executive reaps the sentencing benefits of white-collar cooperationThis Reuters article, which is headlined "Former General Re exec gets probation in AIG fraud," spotlights the sentencing benefits that often flow from being a white-collar cooperator. Here is how it starts:
A former executive of reinsurer General Re Corp was sentenced to two years probation and fined $10,000 after pleading guilty to helping American International Group Inc cook its books.
U.S. District Judge Christopher Droney, imposing the relatively mild sentence on Richard Napier, said he was taking into account the defendant's extensive cooperation with prosectors. Napier's testimony helped convict four former General Re executives and one former AIG executive in February 2008, according to prosecutors.
Napier in 2005 pleaded guilty to a conspiracy charge, admitting that he agreed to deals between General Re and AIG that allowed the former insurance heavyweight to artificially inflate its profits. Napier served as senior vice president of General Re, a reinsurance unit of Warren Buffett's Berkshire Hathaway Inc....
He could have been sentenced to up to five years in prison and fined $250,000. "Mr. Napier's cooperation with the government ... was of exceptional assistance," Droney said. "His testimony showed the extent of the sham reinsurance conspiracy."
September 15, 2009
More on Ohio's execution troubles and what could happen nextThis new article at CNN now has a pretty full report on what happened today in Ohio when the state sought to execute a condemned murderer:
Ohio Gov. Ted Strickland on Tuesday gave a death-row inmate a one-week reprieve after authorities tried for hours to find a vein to administer his lethal injection. "Difficulties in administering the execution protocol necessitate a temporary reprieve," said Strickland's Warrant of Reprieve, filed in court Tuesday afternoon in the case of inmate Romell Broom.
Broom's defense attorney, Tim Sweeney, wrote Ohio Supreme Court Chief Justice Thomas Moyer on Tuesday that, "I am advised by my co-counsel, Adele Shank, who is at the prison in Lucasville, that the execution team has been attempting since approximately 1 p.m. this afternoon to obtain IV access to a site in Mr. Broom's body in order for the lethal injections to be administered, but without any success. "It appears ... that these efforts have been going on now for almost two hours, and that the execution team members have evidently now taken a 'break,' " Sweeney wrote....
"When such allegedly skilled professionals have taken this much time without successfully achieving IV access, there comes a point of diminishing returns, and a point when further attempts are cruel and counterproductive," Sweeney wrote to Moyer. "I believe we have reached that point here."...
Strickland's document directs the Ohio Department of Rehabilitation and Correction to carry out Broom's execution on September 22, "unless further reprieve or clemency is granted." Broom, 52, was convicted of abducting, raping and fatally stabbing a 14-year-old girl in East Cleveland in 1984, according to the Cleveland Plain Dealer newspaper.
Call me a cynic or a realist, but I think it is very unlikely that Broom's execution will go forward on September 22. As I noted in this prior post, the Sixth Circuit has recently been fighting over whether and how it can consider the merits of Ohio's lethal injection protocol, and I have to assume Broom's lawyers might get that court's full attention now. Also, Broom's lawyers might develop a new set of arguments to present to state courts based in state constitutional law contending that the state is not allowed try again to execute Broom after this failed attempt.
In modern times, a completely failed lethal injection execution is unchartered legal terrain, and Broom's lawyers are certainly going to urge state and federal courts to grant a stay so that have plenty of time to chart this terrain. Whether Broom avoids execution altogether is hard to predict, but I won't be at all surprised if Broom live a lot longer than just an extra week.
UPDATE: I just noticed this notable reaction from Kent Scheidegger at Crime & Consequences: "I have said from the beginning that the switch to lethal injection was a bad idea. All we needed to do to fix the gas chamber problem was use a different gas." I have an inkling that the Ohio legislature is unlikely to take this advice as the best response to its new lethal injection problem, but you never know.
Ohio struggling, legally and practically, with effort to execute offender todayOne would think that, with four executions completed in the last few months, Ohio would now have its modern system of state killing down to a science. However, as this new AP report details, the state is having a very hard time completing an execution that was scheduled for 10am this morning:
A lawyer for a condemned inmate in the state death chamber says execution team members have taken a break after struggling to access the inmate's veins. Attorney Tim Sweeney says the team is having trouble inserting IVs into the arms of Romell Broom, sentenced to die for raping and killing a 14-year-old girl.
It was the second delay of the Tuesday execution, originally scheduled for 10 a.m. Broom entered the death chamber shortly before 2 p.m. after losing a last-minute appeal request.
In 2005, an execution was delayed for more than an hour after the team failed to properly attach an IV, an incident that led to changes in Ohio's execution process.
Though I am about to head to class, this seems like a story worth watching closely for a variety of reasons. First, I think this might be the first significant examples of a difficult (botched?) execution since the Supreme Court approved the constitutionality of lethal injection protocols in Baze last year. Second, as detailed here, the Sixth Circuit has been fighting over whether it can even consider on the merits a post-Baze challenge to Ohio's lethal injection procedures. Third, Ohio has lots more execution scheduled for the next few months, and these difficulties might end up causing some notable political ripples.
Whether and how this story becomes a big deal might turn ultimately on whether and how Ohio finishes its attempts to execute Romell Broom today. If Ohio cannot complete this execution (or if it completed the execution and lawyers can claim it was badly botched) this could become a huge story. But if the execution is completed with little final fuss, not so much. Stay tuned.
UPDATE: This local story now indicates that Ohio's Governor has stepped in: "Strickland ordered a week-long reprieve this afternoon after executioners struggled for about two hours to locate suitable veins for inserting IVs into 53-year-old Romell Broom." As suggested above, this could become a big story if the abolitionist community seeks to jump on it. But I suspect that, in the wake of Baze, most of the abolitionist community has moved on to other battle-fronts.
The technical challenges posed by technocorrectionsI just discovered this local article out of Florida last week, which is headlined "Judge: Hairspray falsely triggered alcohol-monitoring device." For fans of technocorrections, this story is a bit sobering:
A 17-year-old girl’s alcohol-monitoring device was triggered by continued exposure to hairspray, not consumption to alcohol, a judge ruled Thursday. “Based on the evidentiary hearing today, the court would find that it appears that the detection made by (the alcohol-monitoring device) was a false positive and so, based upon that, I’m not going to revoke her pre-trial release,” Walton County Circuit Judge Kelvin Wells said.
Elyse Tirico, formerly Elyse Bushee, is charged with DUI manslaughter and DUI with serious bodily injury in connection with a Jan. 4 accident that killed 16-year-old Meghan Burkhart-Smith, a fellow student at South Walton High School. Her trial originally was scheduled to begin on Monday but has been continued to Jan. 11, 2010.... Tirico has been wearing the anklet since late March under a court order.
Jeff Hawthorne, who is the co-founder of Alcohol Monitoring Systems Inc. and who invented the SCRAM (Secure Continuous Remote Alcohol Monitor) anklet, testified at the hearing. He said SCRAM detects blood-alcohol levels through perspiration. The device takes readings every 30 minutes, Hawthorne said. It issued an alert July 15 after three separate readings showed that Tirico’s blood-alcohol level was above .02.
But under questioning by defense attorney Clay Adkinson, Hawthorne said an alert could have been issued even if Tirico had not consumed alcohol. He said wearers of the device are given a list of so-called “banned products” that contain alcohol — including certain toiletries, perfumes and cleaning supplies — in order to avoid false alerts. When Adkinson asked whether continual exposure to hair spray might trigger an alert, Hawthorne said it might.
The detection device showed that alcohol was in Tirico’s system from 9:38 a.m. to 6:48 p.m. July 15, but Hawthorne said he had no way of knowing where Tirico was during those hours. Tirico works as a receptionist at a hair salon in Miramar Beach. Adkinson said that the alert was triggered by hairspray, which she was exposed to July 15. He also presented several affidavits from people who said they were with her early that day and that she did not appear to be under the influence of alcohol.
Interestingly, the private company that produce the alcohol-monitoring device has this new press release concerning this case, which includes these statements:
The manufacturer of SCRAM alcohol bracelets is countering reports that their alcohol-sensing ankle bracelets falsely confirmed a drinking event because of exposure to hairspray for a Florida defendant out on bond for a DUI manslaughter and DUI with serious bodily injury case. The bracelets, worn 24/7, sample an offender's perspiration every 30 minutes in order to measure for alcohol consumption.
According to Colorado-based Alcohol Monitoring Systems (AMS), the confusion is based on the difference between an "alert" generated by a product like hairspray and an actual confirmed drinking event. The company reports that due to procedural issues at the hearing, the judge did not hear evidence to explain the difference between an environmental exposure to hairspray and actual consumption, resulting in confusion in the ruling and reports about the case. Notably, Judge Kevin Wells ordered the defendant to continue wearing the SCRAM Bracelet.
AMS President and CEO Mike Iiams says that alcohol-containing products like hairspray will oftentimes generate an alert, but that the SCRAM System can easily distinguish between exposure to environmental alcohol and actual consumption....
Launched to the corrections market in 2003, SCRAM has monitored 110,000 offenders in 47 states and more than 1,900 jurisdictions. AMS is the only electronic monitoring company in the criminal justice system to provide in-depth court support and expert testimony.
One hundred pot arrests every hour, though blogger Andrew Sullivan gets a federal break
TalkLeft has these two posts providing effective coverage of two interesting "drug war" stories concerning marijuana crimes that have developed in recent days:
- New FBI Report: A Pot Arrest Every 37 Seconds in 2008
- Judge Says Blogger Andrew Sullivan Got Preferential Treatment in Pot Case
There is a lot that could and should be said about both of these items, and I hope in future posts to blog more on both topics. Looking at the issues together, however, I quickly come to the view that it would be nice to see at least some of the pro-liberty and anti-government sentiments being expressed by "tea parties" focused on criticizing and dismantling modern marijuana policies.
Editorial suggests why federal judges have had to be involved in California prison reformThe Sacramento Bee has this effective new editorial reviewing all the latest California prison reform happenings, which is headlined "Assembly invites judges to intervene." Here are excerpts:
Gov. Arnold Schwarzenegger has until Friday to submit a prison population reduction plan to a three-judge panel of the 9th U.S. Circuit Court of Appeals. In a terse two-sentence order, the U.S. Supreme Court denied an attempt at delay.
Three years ago, Schwarzenegger declared a state of emergency in the prisons. Overcrowding, he said, "causes harm to people and property, leads to inmate unrest and misconduct, reduces or eliminates programs, and increases recidivism as shown within this state and in others."
He has presented countless proposals, backed by expert testimony, to reduce prison population. But he has been rebuffed time and again by legislators. So the three-judge panel finally stepped in, establishing a prison population cap on Aug. 4. Prisons designed for 80,000 prisoners hold more than 148,000 today. The cap, set at 137.5 percent of design capacity, would bring the population to 110,000 within two years.
The Legislature could have passed a feasible and timely proposal to reduce prison population before leaving town last Friday. Instead, driven by a cowering Assembly, the package finally sent to the governor's desk was watered down. The final bill would reduce the prison population by 7,500. While that helps, it does not come close to the 38,000 needed over two years.
The Assembly killed an item that would allow some lower-risk, older, ill prisoners to serve the last 12 months of their sentences under house arrest with GPS monitoring. All told, the Assembly killed reforms that would have reduced prison population by an additional 12,300. And it left out the key long-term reform: establishing an independent, professional sentencing commission. Those items will have to wait until January, when the Legislature returns to session. In the meantime, the state has to submit a plan to the court by Friday....
So the Assembly has tied the state's hands, making it all the more likely that the three-judge panel will have to lay down actual, feasible and timely ways to get to a prison population of 110,000. Lawmakers then will predictably whine about the intervention of the courts. But if they'd do their job, the courts wouldn't have to do it for them.
Relatedly, the Wall Street Journal ran this interesting piece this past weekend, which was headlined "Crime Makes a Comeback in California Politics: Early parole and prisoner releases could put an old issue back on the agenda." It puts all these recent political debates in modern historical contexts and looks forward to how all these issues might play out in the 2010 race for Governor in California.
Blogger being prosecuted for threatening judges gets transfer and restricted bailThis new article from the National Law Journal, which is headlined "Blogger Charged With Threatening 7th Circuit Judges Gets Home Confinement," reports on the latest developments in a notable federal criminal case:
U.S. District Judge Donald Walter has ordered the release of Internet blogger and Web talk show host Hal Turner, who was arrested in June for declaring in an online posting that three Chicago-based federal judges "deserve to be killed."
Turner is on his way back to his home state of New Jersey after Walter decided in a Wednesday conference call meeting with lawyers that Turner could be released under "strict conditions," including a prohibition on his speaking to the media, home confinement and electronic monitoring, said Michael Oroczo, who represents Turner. He said his client was currently in the U.S. Marshal Service's custody in Oklahoma City as he's being transferred to New Jersey....
The release order by Walter, a U.S. district judge from Western Louisiana who was assigned the case to avoid potential bias, runs counter to a decision made last month by Chicago-based U.S. Magistrate Judge Martin Ashman, who found that Turner should remain in custody until his trial. It's not clear if a bond amount was set for the release.
Turner was charged by the U.S. Attorney's Office in Chicago with threatening to assault and murder three judges in retaliation for a June 2 decision they made. In a Web posting the same day, Turner called the 7th Circuit ruling, which declined to overturn laws banning handguns in Chicago and a nearby suburb, an "outrage" and said that the judges behind the decision "deserve to be killed." The judges who decided the case were Chief Judge Frank Easterbrook, Judge Richard Posner and Judge William Bauer. In a second posting on June 3, Turner provided the names, work addresses, phone numbers and photos of the judges.
Walter last week also allowed Turner's case to be transferred to the Eastern District of New York, granting his request for a change of venue from Chicago to Brooklyn. Walter granted the venue change partly because he agreed the defendant would have a harder time getting a fair trial in Chicago where there was significant media coverage of the 2005 murder of U.S. District Judge Joan Lefkow's mother and husband.
Turner said in his postings that federal judges in Chicago hadn't gotten "the hint" from those killings. "Memories are not so short as to erase the event from the public mind," Walter wrote in a Sept. 8 decision. "On balance, it is this court's opinion that granting the motion would best serve, not only justice, but the appearance of justice.
Interesting empirical study of sentencing in NevadaI just came across this paper on SSRN, titled "Felony Sentencing in Rural and Urban Courts: Comparing Formal Legal and Substantive Political Models in the West." Here is the abstract:
This study explored two models of sentencing in urban and rural districts in Nevada (2007 felony sentencing data, N=10,873). It was hypothesized that sentence lengths and dispositions would differ between rural and urban districts. Furthermore, it was hypothesized that urban districts would follow a formal legal model – in which only legal variables (crime features, criminal history) act as predictors of sentencing outcomes, whereas rural districts would follow a substantive political model – in which extralegal factors (age, sex, race / ethnicity, etc.) also predict sentencing outcomes. The authors found that urban and rural districts in Nevada conformed to a substantive political model of sentencing (including both legal and extralegal factors), though legal factors were often the strongest predictors of sentencing outcomes.
I have long thought that a lot more could be learned from the careful study of modern state sentencing systems, and this helpful paper confirms my desire to see more researchers analyzing more state sentencing patterns.
September 14, 2009
Third Circuit approves of fast-track variances based on Kimbrough
In what looks to be a long and thoughtful opinion, the Third Circuit today in US v. Arrelucea-Zamudio, No. 08-4397 (3d Cir. Sept. 14, 2009) (available here), has ruled that federal sentencing judges in non-fast-track districts can grant fast-track variances. Here is the start of today's must-read federal sentencing opinion:
In certain federal judicial districts, “fast-track” programs allow qualifying immigrant defendants to plead guilty while waiving, among other things, their appellate and post-conviction rights. In turn, the Government agrees to request a departure from the relevant Sentencing Guidelines range. None of the districts in the Third Circuit is a fast-track district.
Pedro Manuel Arrelucea-Zamudio (“Arrelucea”) pled guilty to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). The District Court sentenced him to 48 months’ imprisonment. Arrelucea appeals his sentence, challenging, among other things, the Court’s rejection of his argument for a downward variance based on the disparity in sentencing among immigration defendants in fast-track districts and non-fast-track districts. The Sentencing Guidelines are advisory, and the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558 (2007), has rekindled discussion regarding fasttrack districts and sentencing. The question before us is whether, post-Kimbrough, it is an abuse of a sentencing judge’s discretion to consider varying from the Sentencing Guidelines in a non-fast-track jurisdiction based on the disparity created by lower immigration sentences in fast-track jurisdictions. Prior to Kimbrough we addressed this issue in United States v. Vargas, 477 F.3d 94 (3d Cir. 2007). We take this opportunity to clarify Vargas and expand on the issue in light of the Supreme Court’s recent guidance. We conclude that, under the logic of Kimbrough, it is within a sentencing judge’s discretion to consider a variance from the Guidelines on the basis of a fasttrack disparity.
UK gives life with parole for terrorists convicted of airline bomb plotThis new CNN article, which reports on three high-profile terror defendants getting sentenced in London, provides an interesting point of comparison concerning life sentences in the US and other parts of the world. First, here are the basics:
Three men convicted of plotting to bomb planes flying from London to North America with liquid explosives hidden in soft drink bottles were ordered imprisoned for life, a judge announced Monday.
The men were arrested in August 2006 on suspicion of plotting to blow up planes with liquid explosives hidden in soft-drink bottles. The plot led to immediate restrictions on liquids that passengers are allowed to carry onboard aircraft, resulting in today's rules that allow only small amounts to be carried in resealable clear plastic bags.
The judge, Justice Richard Henriques, called the plot "the most grave and wicked conspiracy ever proven within this jurisdiction." "The plot would have succeeded but for intervention of police and security services," he said, rejecting a defense argument that the men would have failed to get the chemistry right and actually blow up planes.
The ringleader, Abdulla Ahmed Ali, 28, must serve at least 40 years before he is eligible for parole, the judge said. He is "likely to remain a serious danger to the public for a long time," the judge, Justice Henriques, said. "You are a driven and determined extremist with boundless energy."...
A second plotter, Assad Sarwar, 29, must serve a minimum of 36 years before he is eligible for parole. Henriques gave him a lesser sentence on the grounds that he was not the ringleader of the plot and not involved in recruiting other people for it. The third man convicted of the plot, Tanvir Hussain, 28, must serve at least 32 years, the judge said, calling him "no mere footsoldier."...
British prosecutors called the plot "calculated and sophisticated" and said it could have killed hundreds or even thousands of people.
So, let's review the stories of life sentencing in the UK and the US in light of this case another set of high-profile cases:
In the UK today, a "driven and determined extremist with boundless energy," who was the ring-leader of "the most grave and wicked conspiracy ever proven," which could have killed thousands of people, is sentence to life with parole eligibility.
Meanwhile, in the US in two months, the Supreme Court will consider the constitutionality of Florida's decision to send two juvenile defendants, one of who was involve in a rape at age 13, the other committed armed robberies at 16 and 17, to life without parole eligibility.
Putting these stories together raises an important and controversial constitutional question: should the fact that even the most extreme terrorists do not get LWOP sentences in other parts of the world have any bearing on whether juve LWOP sentences for non-homicide crimes in the US constitutes "cruel and unusual punishment" prohibited by the Eighth Amendment?
"Citizens with Guns: Firearms & American Identity"The title of this post is the title of a new article from Pratheepan Gulasekaram, which seems especially timely in light of the recent presence of gun-toting folks at various health-care town halls last month. Also, as the abstract reveals, the article should also be of interest to anyone concerned with the Heller court's suggestion that all felons can be categorically excluded from the Second Amendment:
This article examines the relationship between firearms and American citizenship, both as a matter of legal status and as a matter of perceived American identity. To do so, this article will explore the link between guns and citizenship as textual matter, a historical and legal narrative, and a symbolic bond. First, this paper will examine Heller’s largely unnoticed contention that the Second Amendment benefits only citizens. Such an inquiry requires a comparative analysis of other provisions of the constitution that similarly enumerate the right of “the people.” In addition, this article analyzes the historical and legal connection between the right to bear arms and status citizenship, noting the relationship between arms-bearing, racialized conceptions of U.S. nationality, and increasing immigration throughout the country’s history. To complete the exploration, this paper will also consider the symbolic importance of gun-toting in the American legal and cultural landscape. Here, the article dissects the manner in which gun-related incidents have been used to code some individuals and circumstances as part of the American narrative, while others are coded as foreign and anathema to the American identity.
Michigan looking at its (many) juve life sentences
These two new articles in the Detroit News spotlight that "Michigan is among a growing number of states reconsidering whether juveniles should be sentenced to life behind bars with no chance of parole":
- Mich. to rethink teen life sentence: House committee considers bills amid 'emotional testimony'
- Teen lifers a burden for state's prisons: Mich. ranks second in number of young killers behind bars
Here are parts of the starts of each piece:
Teens can be sentenced to mandatory life in prison without parole in most states. But Colorado, Kansas, Kentucky, New Mexico, Oregon and Texas have outlawed such sentences.
The Michigan House Judiciary Committee is considering bills that would allow those serving such sentences to be considered for parole, or ban such sentences. Two hearings have been held so far, and the committee plans to propose a package of bills addressing the issue later this fall, according to Rep. Mark Meadows, D-East Lansing, the committee chairman. "It was very emotional testimony -- we had victims' families testify, prosecutors testify, relatives of children in prison testify," Meadows said.
Michigan's high number of teens sentenced to life in prison without parole has child advocates questioning laws that give judges that option. Behind bars are 346 teens who are serving life without parole for crimes they committed between the ages of 14 and 17, according to the Department of Corrections.
A study by the University of Texas says Michigan has the second most such inmates in the country. The report also says Michigan is among the harshest in the way it treats teens accused of major crimes.