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October 7, 2009

More details on Ohio's consideration of novel lethal injection protocols

This new article from the Columbus Dispatch, which is headlined "Ohio may overhaul execution policies," provides more details on Ohio's efforts to pioneer an improved lethal injection protocol:

Ohio prison officials are considering a major overhaul of death-penalty procedures that might include changing out such key elements as drugs and an execution team. Injecting deadly drugs into muscle and bone, using a single, more powerful drug, or using an entirely different combination of drugs are options being reviewed.

Prison officials are consulting with Dr. Mark Dershwitz, a University of Massachusetts professor of anesthesiology who testified for the state last year as a paid expert witness in a lethal-injection lawsuit in federal court. He has consulted with several states on lethal-injection litigation....

Ohio would become the first state to make major changes in a three-drug execution process that was essentially copied by 35 states from Oklahoma, where it was developed by an anesthesiologist in 1977....

The current execution team at the Southern Ohio Correctional Facility near Lucasville includes emergency medical technicians. However, they probably would not be qualified to perform some of the invasive methods being considered....

There is no time frame for developing the new protocol, Walburn said. The execution of Kenneth Biros, a convicted killer from Trumbull County, is scheduled for Dec. 8 but could be delayed by Strickland.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said it is "significant that they're looking at a major overhaul of the process. This has been a long time coming." California and Maryland are looking at protocol and procedures changes, but Dieter said no other state is considering the major revamp contemplated by Ohio officials. "It's a fresh start," he said. "Maybe there are alternatives that have less risks."

Those who follow the modern debates and litigation over lethal injection protocols likely know that many opponents of the standard three-drug protocol claim that they are not seeking complete abolition, but just a better and less-risky lethal injection process.  Ohio's serious (and urgent) desire to develop and adopt an improved protocol should provide an opportunity for these opponents to show their true colors. 

If opponents of lethal injection were primarily complaining just about problems with the traditional three-drug protocol, these folks should be seriously and actively involved in helping Ohio develop and adopt an improved execution protocol.  But I will be seriously (and pleasantly) surprised if anyone who assailed the old lethal injection protocol will now provide help or advice to Ohio in developing and adopting a new and improved execution method.  Call me a cynic, but I have always believed that debates and litigation over lethal injection protocols have been just a form of shadow-boxing against the backdrop of a debate over the death penalty more broadly.

Some recent related posts on Ohio lethal injection issues:

Some older posts on the and the broader lethal injection protocol debate:

October 7, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Pennsylvania town struggling with a "rash of sexting incidents"

Local stories here and here and here report that, in the Pennsylvania town of Chambersburg, "Borough Police and school officials facing a rash of 'sexting' incidents called a news conference Tuesday to share information about how parents can protect their children’s welfare."  The last of these local pieces provides this effective review of the challenging criminal justice issues raised by this disturbing rash:

Bret Beynon, Franklin County assistant district attorney who specializes in juvenile prosecution, said the only charges that would be applicable could be felony possession of child pornography, which could come with the classification of sex offender if found guilty. She said if the students involved were juveniles, the sentences would not have a minimum or maximum sentence if charges were filed and the students were found guilty.

However, they would remain on their public record for life and they would have to submit DNA to the Pennsylvania State Police database. "It would affect them for the rest of their lives," Beynon said.

Anyone older than 18 who was charged with the felony would have to register with the state's Megan's Law Web site for 10 years under current laws. Megan's Law alerts the public to the living and working arrangements of registered sex offenders.

Since the possible charge would be possession of child pornography, everyone involved could face the same charge whether they took the photograph, received it, or forwarded it. Beynon said a student who received a picture, immediately deleted it and notified authorities would not face charges. However, someone who received a photo and either saved or forwarded it to others could. "Everybody could be on the hook for a felony," Beynon said.

Some related "sexting" posts:

October 7, 2009 in Sex Offender Sentencing | Permalink | Comments (16) | TrackBack

Long obstruction sentence for executive who lied about terminal illness

This local Boston Herald story, which is headlined "Big lie lands executive in prison: Former Biopure officer gets 3 years," suggests that a federal judge impose an above-guideline sentence on a white-collar scoundral who told what some might consider one of the worst kinds or tall tales.  Here are the details:

An ex-biotech executive’s sick ploy to avoid a federal lawsuit by lying about having terminal cancer was slapped with a longer-than-expected stretch in the slammer.

Howard P. Richman, 57, the former head of regulatory affairs at Biopure Corp. in Cambridge, was sentenced to three years in prison and ordered to pay a $50,000 fine for obstruction of justice, federal prosecutors announced yesterday.

U.S. District Court Chief Judge Mark Wolf’s sentence was harsher than federal guidelines and went beyond prosecutors’ recommendation for a 21-month prison term.  Ian Gold, Richman’s defense attorney, had requested a 15-month prison term....

Richman pleaded guilty in March to lying to Judge Patti Saris, who presided over a Securities and Exchange Commission suit accusing Biopure of misleading investors about its synthetic blood product Hemopure.

The Texas resident deceived his own lawyers by posing on the phone as a doctor, and produced a phony affidavit that claimed his chance of surviving colon cancer was, at best, 15 percent.  “To any human who has experienced serious illness in their own life or family, Richman’s conduct is appalling,” Assistant U.S. Attorney James Dowden wrote in a sentencing memorandum. “Quite simply, his lies are deserving of society’s condemnation and of serious criminal punishment.”

Based on the cancer claims, Saris halted the SEC’s case against Richman in July 2007.  The ruse apparently unraveled two months later when his attorneys abruptly withdrew from the civil case.

October 7, 2009 in Offense Characteristics, White-collar sentencing | Permalink | Comments (2) | TrackBack

"Prison Population and Crime"

The title of this post is the title of this new criminology paper that I justice noticed via SSRN.  Here is the abstract of a paper that seems like a must-read for any and everyone who wants to make assertions about the relationship between incarceration rates and crime:
This is a critical review of the literature concerning the impact of prison populations on crime. It summarizes 44 time series studies that use prison population in the crime equation, emphasizing problems of simultaneity and disaggregation bias. It briefly reviews studies that estimate the incapacation impact of prisons by using criminals' individual crime rates, emphasizing problems caused by skewness of the crime rates and their relationship with arrest rates. Almost all the numerous problems with prior research bias results towards finding that prisons have limited impacts, and once the problems are addressed the best estimate of the elasticity of prison populations on crime is about 1.0.

October 7, 2009 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

October 6, 2009

Justice Scalia again seems to be the federal defendant's best friend in ACCA argument

Anyone who really follows the Supreme Court's criminal justice work should already know that the usual, knee-jerk labels and expectations concerning liberal/conservative voting patterns, though often holding true in capital cases and police practice cases, almost never hold true in the context of constitutional trial procedure and federal criminal statutory interpretation cases.  The latest data point on this front can be found in the full transcript of oral argument in Johnson v. US (08-6925), which is available at this link

Johnson is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA).  Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute.  In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

There are other tea leaves worth reading for real ACCA junkies in the Johnson transcript, though it is hard to come away from the transcript without agreeing with Justice Alito's well-articulated view in an earlier ACCA case that Congress need to fix via a new statute the very messy and opaque jurisprudence that the Supreme Court's ACCA decision have now produced.

October 6, 2009 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (28) | TrackBack

"Parents in prayer death get probation, some jail"

The title of this post is the headline of this AP article reporting on a notable sentencing decision in Wisconsin state court.  Here are the basics:

A judge has sentenced a Wisconsin couple to 10 years probation and 30 days a year in jail for the next six years for praying instead of seeking medical care for their dying 11-year-old daughter.

Marathon County Circuit Judge Vincent Howard sentenced Dale and Leilani Neumann on Tuesday. The jail terms were stayed pending appeals by the couple of their convictions for second-degree reckless homicide in March 2008 death of their daughter, Madeline Neumann.

The girl died of complications from undiagnosed diabetes on the floor of the family's home while people around her prayed. Someone called 911 after she stopped breathing.

Okay, all you wanna-be sentencing judges: is this outcome similar to the sentence you might have given?

October 6, 2009 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Justices troubled by constitutionality of "animal porn" federal criminal statute

This report from SCOTUSblog, titled "Analysis: Animal cruelty law in trouble," confirms my instinct that many Justices would have deep concerns about the federal criminal law that  prohibit what I like to call "animal porn."  Here is the start of Lyle Denniston's report on today's oral argument in US v. Stevens:

Congress’ attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed.  Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal.  Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.

The full transcript of oral argument in United States v. Stevens (08-769) is available here.

October 6, 2009 in Offense Characteristics | Permalink | Comments (6) | TrackBack

"A Smarter (and Cost-Efficient) Way to Fight Crime"

The title of this post is the headline of this recent piece in the New York Times by economist Robert Frank.  Here are snippets:

Law enforcement policy in the United States rests implicitly on the “rational actor” model of traditional economics, which holds that people take only those actions whose benefits exceed their costs.

This model says that crime will be deterred if the expected punishment is strong enough — a prediction that has not been borne out in practice. Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62.

Mark Kleiman, a professor of public policy at the University of California, Los Angeles, says there is a better way. In a new book, “When Brute Force Fails,” he argues that instead of making punishments more severe, the authorities should increase the odds that lawbreakers will be apprehended and punished quickly....

The evidence suggests that when hardened criminals are reasonably sure that they will be caught and punished swiftly, even mild sanctions deter them. But not even the prospect of severe punishment is effective if offenders think they can get away with their crimes. One way to make apprehension and punishment more likely is to spend substantially more money on law enforcement. In a time of chronic budget shortfalls, however, that won’t happen.

But Mr. Kleiman suggests that smarter enforcement strategies can make existing budgets go further. The important step, he says, is to view enforcement as a dynamic game in which strategically chosen deterrence policies become self-reinforcing. If offense rates fall enough, a tipping point is reached. And once that happens, even modest enforcement resources can hold offenders in check....

It is an ingenious idea that borrows from game theory and the economics of signaling behavior....

Considerable evidence supports Mr. Kleiman’s emphasis on the efficacy of immediate sanctions. Experimenters have found, for example, that even long-term alcoholics become much less likely to drink when they are required to receive a mild electric shock before drinking. Many of these same people were not deterred by their drinking’s devastating, but delayed, consequences for their careers and marriages....

Potential applications of dynamic deterrence extend well beyond street crime. For example, it could help rein in corporate scofflaws who now feel free to violate environmental and safety regulations because they know that regulators are stretched thin. The strategy won’t work in all situations. But when the circumstances are right, it’s a revolutionary idea.

October 6, 2009 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Ohio considering new (and novel) method of lethal injection

This new AP article, which is headlined "State might try new lethal-injection sites," suggests that Ohio is seriously talking about a whole new approach to lethal injection in the wake of its failed execution attempt last month.  Here are some of the particulars:

Ohio is considering administering lethal drugs into inmates' bone marrow or muscles as an alternative to -- or a backup for -- the traditional intravenous execution procedure, a prisons department spokeswoman said today. "Everything is on the table" as the state researches ways to adjust its death chamber procedure in the wake of a failed execution last month, when officials couldn't locate suitable veins on inmate Romell Broom, said Ohio Department of Rehabilitation and Correction spokeswoman Julie Walburn....

The changes could include a different procedure to access veins, the use of a device to inject lethal chemicals directly into an inmate's bone marrow, or injection into muscles....

Richard Dieter, director of the nonprofit Death Penalty Information Center, said he isn't aware of any other states that have considered, or currently use, injections into bone marrow or muscle as part of their protocol....

Ohio officials also are exploring whether to keep the state's three-drug regimen -- a sedative, a paralyzing agent and a chemical to stop the heart -- or to rely on a single drug, Walburn said. It could be used as a backup if officials encounter difficulty locating veins, or as a new procedure to replace the old one.

It would, of course, be very significant if Ohio were to start to pioneer a whole new approach to lethal injection protocols.  And such a new approach would, in all likelihood, prompt a whole new round of constitutional litigation of the protocol's constitutionality.

Some recent related posts on Ohio lethal injection issues:

October 6, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Notable (new?) First Circuit opinion on Heller and federal juve crimes and punishment

I just discovered today this notable opinion from the First Circuit concerning the Second Amendment and federal juvenile prosecution and punishment. Strangely, the opinion in US v. Rene E., Juvenile Male, is dated August 31, 2009, but perhaps there was some reason the ruling was not made public earlier. Whatever the backstory, anyone interested in the Second Amendment or federal prosecution of juveniles will want to check out the First Circuit's work in Rene E.  Here is how the opinion starts:

Juvenile Rene E. ("appellant") was charged with possessing a handgun in violation of 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, the charging provision of the Juvenile Delinquency Act. After his motions to dismiss and motion to suppress were denied, he entered a conditional guilty plea. On appeal, he raises constitutional challenges to 18 U.S.C. § 922(x)(2), arguing both that it violates his rights under the Second Amendment, as interpreted by the Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), and that it exceeds Congress's authority under the Commerce Clause. He also challenges the sentence he received under the Juvenile Delinquency Act, arguing that the district court erred in determining the maximum sentence to which a similarly situated adult would be subject under the United States Sentencing Guidelines.

We hold that 18 U.S.C. § 922(x)(2)(A) does not violate the Second Amendment, and we reaffirm our holding in United States v. Cardoza, 129 F.3d 6 (1st Cir. 1997), that section 922(x)(2)(A) does not exceed Congress's Commerce Clause authority.  Lastly, because appellant is no longer in detention or under juvenile supervision, we conclude that his sentencing challenge is moot.  Therefore, we affirm.

UPDATE:  Over at Crime & Consequences, Kent here has a notable (and amusing) reaction to the ruling in Rene E.:

Personally, I'd like to see the Commerce Clause challenge go up to the Supreme Court. The peoples of Arkansas and Massachusetts should be able to come to different conclusions regarding whether 17-year-olds can possess handguns.

Perhaps we should also have a limit on the length of statutes so that none will ever need a subdivision (x).

October 6, 2009 in Offender Characteristics, Second Amendment issues | Permalink | Comments (1) | TrackBack

Coverage of the mini-moratorium now in place in Ohio

Unsurprisingly, both old and new media are talking about Governor's Ted Strickland's decision to put a halt to executions in Ohio for the next few months.  Here is some of the coverage:

October 6, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

October 5, 2009

A Tuesday trio of criminal law cases for SCOTUS

As detailed in this SCOTUSblog post, the Supreme Court on Tuesday, October 6 will these hear three criminal justices cases:

The Stevens case, which concerns what I like to call "animal porn," will surely get the most media attention, but the Johnson case seems likely to have the most consequential impact on federal criminal law and punishment.

October 5, 2009 in Who Sentences? | Permalink | Comments (3) | TrackBack

"Appeals court in NYC upholds Rigas' sentencing"

The title of this post is the headline of this AP article, reporting on this sentencing ruling in a high-profile white-collar sentencing appeal handed down late today by the Second Circuit.  Here are the basics:

A federal appeals court in New York has upheld prison sentences given to a father and son who built Adelphia Communications into a cable television powerhouse.

The 2nd U.S. Circuit Court of Appeals in Manhattan on Monday agreed that prison terms given to 84-year-old Adelphia founder John Rigas and his son Timothy were appropriate. Defense lawyers had argued that the father's 12-year sentence and the son's 17-year prison term were more years in prison than some terrorists serve.

Because I filed an amicus brief arguing that the district court's sentencing work was procedurally unreasonable, I am disinclined to comment on the particulars of this panel ruling.  But readers, of course, should feel free to discuss the ruling (which address a number of notable white-collar sentencing issues).

October 5, 2009 in Sentences Reconsidered, White-collar sentencing | Permalink | Comments (2) | TrackBack

NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009

Responding to both the recent failed execution efforts in the Broom case and the stay entered by a federal court today in the Reynolds case, Ohio's Governor has put a halt to all executions in the state until at least 2010. These breaking details are reported in this local press report, which starts this way:

Gov. Ted Strickland issued reprieves Monday for two death row inmates scheduled for execution in coming weeks. Te move came after a federal court issued a stay in the case of Lawrence Reynolds, citing ongoing legal arguments following the failed execution of Romell Broom last month.

Under Strickland's reprieves, Reynolds would face a March 9 execution, while Darryl Durr's execution would be set for April 20. Reynolds was to face the death penalty on Thursday for murdering a Cuyahoga Falls woman in 1994. Durr, convicted in a Cuyahoga County rape and murder of a teen-ager in 1988, was scheduled for lethal injection in November.

"Since Sept. 15, the Department of Rehabilitation and Corrections has been working to establish a back-up or alternative lethal injection protocol in the unlikely event similar circumstances arise when implementing the death penalty in the future," Strickland said in a released statement. "While the department has made progress, additional time is needed to fully conduct a thorough and comprehensive review of an alternative or back-up lethal injection protocol that is in accordance with Ohio law.  Therefore, I have decided to issue two reprieves ... I have asked Director Collins to continue working to ensure the death penalty is administered fairly and effectively here in Ohio."

Strickland also left open the possibility of issuing additional reprieves, though the two issued Monday did not cover Kenneth Biros, scheduled for execution in December for a brutal 1991 murder in Trumbull County. "While I believe that the department will be able to complete its research and evaluation, select an appropriate back-up or alternative lethal injection procedure, and conduct any training or other preparation necessitated by that selection by the time of Mr. Biros; scheduled execution in December, I will issue any additional reprieves I deem necessary to the appropriate administration of executions under Ohio law," Strickland wrote.

The full statement by Governor Strickland can be found at this link.

Some recent related posts on Ohio lethal injection issues:

UPDATE:  I've tweked this post title to reflect the fact that Gov Strickland's statement leave open the possibility that Ohio will be able to get its execution protocol straightened out by Dec. 2009.  Realistically, though, especially given that the federal court hearing on the failed execution attempt is not scheduled until Nov. 30, I will be quite surprised if Ohio executes anyone before winter turns to spring in 2010.

October 5, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Some interesting snippets from the latest crime speech by Attorney General Holder

At the new Department of Justice website (which, personally, I do not find very aesthetically pleasing), one can now find the text of this new speech by Attorney General Eric Holder on crime issues.  This speech was today delivered to the International Association of Chiefs of Police Conference in Denver, and I found these passages especially notable:

But as important as it is to foster a stronger national dialogue between federal, state, and local law enforcement, talk alone is not enough.  Talk alone isn’t going to keep crime rates down.  Talk alone isn’t going to protect innocent victims.  Talk alone isn’t going to stop rival gangs from shooting up our streets, or drug dealers from peddling dope in our schools, or terrorists from attacking our cities.  Indeed, we all know that the best ideas in the world are worth little without the resources to implement them....

I want the Justice Department to be a partner with you as we develop the most up-to-date thinking about law enforcement strategies.  Therefore, I have directed our Office of Justice Programs to transform itself into an evidence-based agency that supports strong research, that shares scientifically-reliable findings that will ultimately help you do your jobs better and then provides the funds necessary to make sound theory into viable reality.  I am confident that this new direction will ultimately help you take advantage of new approaches that will greatly assist you in your efforts to further the cause of justice.

October 5, 2009 in Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (1) | TrackBack

If you build good guidelines, judges will follow

The title of this post seems to be the message of this local article discussing data on how frequently state judges in Pennsylvania sentence within applicable state sentencing guidelines.  Here are some of the details from an interesting (and all-too-rare) press discussion of state sentencing patterns:

There were 101,576 criminal sentences handed down in Pennsylvania courtrooms in 2008, and 1,530 of them were imposed by judges in the four Valley courts, according to the Pennsylvania Commission on Sentencing’s annual report.

Statewide, about 90 percent of the sentences meted out to convicted offenders conformed with the guidelines and 5 percent were shorter than suggested by the guidelines. In the Valley, the rate ranged from 92 percent conformity in Northumberland County to 98 percent in Montour County.

Judge William H. Wiest, one of three judges in Northumberland County, said he follows the state’s recommendations almost all the time because “they are well thought out, fair and reasonable.” Wiest said he’d like to see the guidelines broadened to allow judges the option of meting out harsher sentences.

After 11 years on the bench, he’d like to see the state increase its recommended sentencing for first-time drug sale offenders from a maximum of three months in jail to a maximum of seven months and allow more leeway in sentencing convicted drunken drivers. “I’d like a greater range of discretion,” he said....

Martin Wilson, assistant district attorney in Union County, said the creation of statewide sentencing guidelines helped level the playing field and ensured offenders in Philadelphia would face the same penalties as an offender who commits the same crime in the rural city of Sunbury. “They definitely served a valuable service in an effort to be consistent,” he said.

October 5, 2009 in Data on sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Noting some notable capital case cert denials

Both SCOTUSblog here and Crime & Consequences here have early post discussing some of the notable cases in which the Justices said "thanks, but no thanks" to requests for cert review.  One such case in which cert was denied, as noted by SCOTUSblog, was a "test of the constitutionality of the death penalty procedures in the state of Louisiana (Holmes v. Louisiana, 08-1358)."  And, as lamented by Kent here at C&C, some (but perhaps not all) Ninth Circuit capital rulings also evaded review:

"They can't reverse them all," the unofficial motto of the Ninth Circuit, is confirmed once again, as the Supreme Court denied certiorari of the Ninth's patently wrong reversal of yet another death sentence in Ryan v. Styers.  CJLF's amicus brief in that case is here.  Twenty years ago this December, James Styers told 5-year-old Christopher Milke, his girlfriend's son, that he would take him to a shopping mall to see Santa Claus.  Instead, he took little Christopher out into the Arizona desert and put three bullets in the back of his head.

On the brighter side, the Ninth's equally erroneous decision in the Belmontes case, a case in which its judgments have already been vacated twice by the Supreme Court (cites here), is not out of the woods yet.  Belmontes was on the conference list but is not on the orders list. That means (1) the state's petition will be considered again at another conference; or (2) the Court is preparing a summary reversal opinion.

Some related posts:

October 5, 2009 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Split Sixth Circuit panel stays next scheduled Ohio execution

As I predicted in this recent post after the Ohio Supreme Court refused a stay, this morning the Sixth Circuit has granted a stay of the scheduled October 8 execution date for Ohio death row inmate Lawrence Reynolds.  Not surprisingly, the opinions supporting the stay stress the failed execution attempt in Ohio last month.

The composition of the majority (Judges Cole and Martin) granting the stay in Reynolds v. Strickland, No. 08-4144 (6th Cir. Oct. 5, 2009) (available here), as well as the extended dissent by Judge Sutton, leads me to think that en banc consideration of this matter is a real possibility.  But whether there will be a en banc change of position or subsequent Supreme Court consideration is hard to predict.  Stay tuned.

Some recent related posts on Ohio lethal injection issues:

UPDATE:  The local AP now has this report on the ruling.  In future coverage, I will be interested to see and here how Ohio's Attorney General and other political players react to a ruling that could be, in effect, the imposition of a de facto moratorium on executions in Ohio in the forseeable future.

October 5, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

"The Prisoners’ (Plea Bargain) Dilemma"

The title of this post is the title of this important article in Summer 2009 issue of The Journal of Legal Analysis. Here is the abstract, where I have placed in bold the important conceptual contribution of this piece by Professors Oren Bar-Gill and Omri Ben-Shahar:

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences?  Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain.  Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination.  The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.  This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants.  Absent the plea bargain option, many defendants would not have been charged in the first place.  Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

October 5, 2009 in Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (25) | TrackBack

SCOTUS opening day discussion of juve LWOP cases

Though they are not scheduled to be argued until next month, the official start of the new Supreme Court Term today prompts some additional major media attention and commentary about Graham and Sullivan, the two juve LWOP cases on the docket.  The Wall Street Journal has this new piece, headlined "Life in Prison for Minors -- Cruel and Unusual?", which rightly notes that Justice Kennedy is likely again to be a key vote in this cases:

Since the 1970s, the court has been narrowing the scope of the death penalty to those people considered most reprehensible.  When it comes to prison terms, however, the court rarely has intervened.  Justice Anthony Kennedy often has cast the deciding vote, siding with liberal justices to limit the death penalty, but joining conservatives to uphold severe prison terms.

The court ordered separate arguments in the Sullivan and Graham cases, suggesting it could be inclined to distinguish the two based on their ages.  "The difference between 13 and 16 matters," says Frank Colucci, a professor at Purdue University Calumet in Hammond, Ind., and author of "Justice Kennedy's Jurisprudence," published in September.  Prof. Colucci predicted Justice Kennedy will write an opinion in this case that will stress "the capacity of juveniles to be morally responsible for their crimes."

The Los Angeles Times has this commentaryby lawprof Bernard Harcourt, which is headlined "Sending children to prison for life: Our laws make allowances for juveniles' immaturity; judges should too." Here is a snippet:

The tough-on-crime rhetoric of "lock 'em up and throw away the key" is entirely inappropriate in the case of children. Children's brains, bodies and personalities are still in the process of growing and changing.  And many experts in neuroscience and psychology believe that the same changeability that makes young people vulnerable to negative influences and peer pressure also makes them good candidates for reform and rehabilitation.

In all other areas, we recognize their vulnerabilities.  Because of the relative immaturity and irresponsibility of minors, every state in the nation restricts them from voting, serving on juries, purchasing alcohol or marrying without parental consent.  States further restrict young adolescents from activities that require more mature judgment, such as driving and consenting to sexual activity. In fact, the state of Florida, where Sullivan and Graham are incarcerated for life, does not even permit adolescents to get their ears pierced without parental consent.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

October 5, 2009 in Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack