October 16, 2009
Off to Temple to participate in great program on prosecutorial discretionA delayed flight has provided me with a chance to note that I am off to Philadelphia this afternoon in order to participate tomorrow in the Temple Political and Civil Rights Law Review's symposium, which is titled "Examining Modern Approaches to Prosecutorial Discretion."
I have the distinct honor of being one the keynote speaker's at this event, and I am very much looking forward to hearing all the terrific presenters who will be on four panels. More information about the event and all the top-flight participants is available at this website, which provides this basic description of some of the topics to be covered:
Symposium panels will focus on issues of prosecutorial discretion in juvenile cases, prosecutorial discretion in death eligible cases, sentencing guidelines and plea bargaining, and the necessity of ethical inquiries, including a comparison of prosecutor's ethical duties to the general public and crime victims with the ethical duties owed defendants.
Friday forum: What kind of sentence would you give to Roman Polanski?The question in the title of this post is inspired by this new FindLaw commentary, which is headlined "What Kind Of Sentence Is Roman Polanski Facing?". Here is how the commentary starts and ends:
This commentary does a solid job describing the basic issues likely to impact Polanski's eventual sentencing fate, but on a Friday afternoon I thought it might be fun for folks to use the comments to suggest the kind of sentence they would like to see given to Roman Polanski. Obviously, there are no right or wrong answers here, and my students know I always give extra points for creativity.
Film director Roman Polanski's fate has been much debated recently. Polanski, as readers are likely aware, was arrested in Switzerland and now faces extradition to California, where he pled guilty to having had sex with an underage woman in 1977, but fled before being sentenced. The most exceptional current reporting on this case has been in The Daily Beast, by former Los Angeles County prosecutor Marcia Clark. She revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing. And more recently, she has reported on the truly voluntary nature of the Polanski plea.
Facts, however, have had little impact on Polanski's supporters -- who include Ann Appelbaum at the Washington Post (whose husband is a Polish official lobbying for Polanski's release, a fact she failed to mention), Joan Shore at the Huffington Post (who is a friend of Polanski), and many in the Hollywood community. Others, like Kate Harding (who has no ties to Polanski) at Salon, believe that this captured fugitive should face the music for his admitted criminal behavior. I feel confident that Harding's view represents that of the overwhelming majority of those who have thought carefully about this subject.
A front-page story entitled "In Polanski Case, '70s Culture Collides with Today," which ran in the October 10, 2009 New York Times raised, but did not answer an interesting question: Assuming Polanski is finally sentenced, what sexual standard would the judge apply – the standard applicable at the time of the crime or today's tougher standard?...
Based on Professor [Lynn] Branham's analysis, not to mention his fugitive status, sentencing will no doubt be much worse for Polanski now than it would have been in 1977-1978, a fact that he and his attorneys surely appreciate. No doubt Polanski is looking for some way, any way, to get back to France, which refuses to extradite its citizens. Last time, Polanski escaped by simply jumping on a plane. This time, it will require all of the creative directing talents he can muster, given the script of this story.
"Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual?"The title of this post is the title of this revised article draft via SSRN from Professor Meghan J. Ryan. Here is the abstract:
There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional. Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice. The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. While attempting to maintain neutrality on the topic and thus relying almost exclusively on assessing the unusualness of a practice through a purportedly objective assessment of state legislative action, the Court seems to have covertly injected into the equation its subjective views as to what punishments are unconstitutionally cruel. This tension between an objective measure of unusualness and a subjective assessment of cruelty has led the Court to make inconsistent statements about whether the Punishments Clause prohibits only punishments that are both cruel and unusual, or rather prohibits both cruel punishments and unusual punishments.
This Article goes where no other has, identifying and exploring this important question. After tracing the history of the Eighth Amendment, analyzing the Court's early interpretations of the prohibition on "cruel and unusual punishments," and parsing the text of the Punishments Clause, the Article concludes that the Clause prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed. While this interpretation may narrow the scope of the Amendment, it allows for further innovations in humane methods of punishment and revives the federalist foundation of this nation that the Court's current jurisprudence has stifled.
The growing (and justified) complaints about Obama's approach to judicial nominationsThis new Washington Post article, which is headlined "Obama Criticized as Too Cautious, Slow on Judicial Posts," documents the growing complaints about the President's approach to judicial nominations. Here are excerpts:
President Obama has not made significant progress in his plan to infuse federal courts with a new cadre of judges, and liberal activists are beginning to blame his administration for moving too tentatively on what they consider a key priority.
During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.
But some Democrats attribute that GOP success partly to the administration's reluctance to fight, arguing that Obama's emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans. Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23....
The delays are having a ripple effect in federal courts, where caseloads continue to back up, said Senate Judiciary Chairman Patrick J. Leahy (D-Vt.). Currently, about 90 judicial seats -- about 10 percent of the total -- remain vacant in appeals and district courts.
The White House predicts that nominations and confirmations will pick up soon. "The administration has been working closely with members of Congress to identify a set of uniquely qualified judicial nominees with diverse professional experiences," said Ben LaBolt, an Obama spokesman. "This process has been bipartisan and we have made every effort to make confirmation wars a thing of the past."
But liberal activists argue that Obama needs to quicken the pace, partly for political reasons. "It is incumbent on the Democrats and the White House to push as hard as they can to confirm judicial nominees, given that next year Republicans will make an all-out effort to block candidates as a means to gin up their base before the election," said Nan Aron, president of the Alliance for Justice, an advocacy organization.
Analysts say that unlike Bush, who saw judicial appointments as a way to advance a strict view of the Constitution, Obama has not sharply defined his judicial philosophy. Eric Posner, a professor at the University of Chicago Law School, said that Republicans consider the federal courts crucial to furthering their policy aims by overturning current law, but that Obama is among Democrats who view court appointments mainly as a means of defending the legal status quo.
Some related new and old posts:
- Why federal sentencing reformers must focus on the USSC and lower courts
- Judging, politics, sentencing and elections
"Willingham juror no longer sure of his guilt in Texas case"The title of this post is the headline from this new CNN piece. Here are excerpts:
At least one member of the jury that sentenced Cameron Todd Willingham to death in the arson homicides of his three children says she is struggling with the idea that she might have convicted an innocent man.
It has been 17 years since Willingham was convicted in Texas of setting a house fire that killed his children, a crime Willingham vehemently denied right up until his execution in 2004. Since that time, three investigations have concluded arson was not the likely cause of the 1991 fire, including one that arrived in Texas Gov. Rick Perry's office 88 minutes before the scheduled execution....
The controversy has led juror Dorenda Brokofsky to think twice about the decision she made in a jury room in 1992. "I don't sleep at night because of a lot of this," Brokofsky said. "I have gone back and forth in my mind trying to think of anything that we missed. I don't like the fact that years later someone is saying maybe we made a mistake, that the facts aren't what they could've been."
Brokofsky spoke with CNN by phone from her Midwest home. She has long since moved away from tiny Corsicana, Texas, where the fire took place. "I do have doubts now," she said. "I mean, we can only go with what we knew at the time, but I don't like the fact now that maybe this man was executed by our word because of evidence that is not true. It may not be true now. And I don't like the fact that I may have to face my God and explain what I did."
Recent related posts:
- Will new evidence of Texas executing an innocent man alter modern death penalty debates?
- How will death penalty proponents respond to "Trial by Fire"?
- Texas Governor Perry disrupts panel looking into Willingham capital case
- Still more changes in Texas panel looking at potential wrongful execution
- Texas legislature to start looking into Willingham case
- Willingham case and Texas Gov continuing to make headlines
"State forced to free 20 violent criminals"The title of this post is the headline of this very interesting local article from North Carolina. Here are some of the notable particulars:
Twenty murderers, rapists and robbers sentenced to life in North Carolina prisons in the 1970s will be released at the end of October as a result of recent court rulings.
Most of the inmates are in their 50s and 60s, but many of them were convicted years ago of gruesome crimes that might have kept them locked up longer today. One of them successfully petitioned the courts to recognize that old laws defined a life sentence as 80 years, and that another law cut those sentences in half.
Ten of those scheduled to be released were sex offenders, including men who raped young girls. Seven have spent time on death row. The one woman in the group was convicted of murdering a state trooper while fleeing a bank robbery.
State officials said Thursday they have no choice but to release them. "I am appalled that the state of North Carolina is being forced to release prisoners who have committed the most heinous crimes, without any review of their cases," said Gov. Beverly Perdue.
Thomas Bennett, executive director of the N.C. Victim Assistance Network, worries about the victims' safety and stability. "This will open new wounds and retraumatize crime victims," Bennett said. "These are bad actors. These are not people we want on the streets."
Perdue's office said she was determined to find a way to keep the inmates in prison, but a spokesman for the state's attorney general said it is unlikely she will prevail. "Our lawyers have argued just about everything they can think of to keep this from happening," said Noelle Talley, a spokeswoman for Attorney General Roy Cooper. "The Supreme Court has the final say."
The inmates are scheduled to be released Oct. 29, just 20 days after the N.C. Supreme Court declined to overturn a state Court of Appeals decision that recalculated life sentences applied to crimes committed during the 1970s....
Since 1994, when North Carolina eliminated parole, a life sentence in North Carolina has meant the convict will die behind bars. But only first-degree murder can carry a life sentence, and now, the shortest sentence someone convicted now of first-degree forcible rape can serve is 12 years....
State correction officials have been working furiously to prepare the 20 inmates for their release and alert the victims and their families. Staff spent this week urging relatives of these inmates to take them in on Oct. 29. They have also been trying to track down victims, many of whom have long since lost touch with the court system. "In some cases, there's shock when we call," said Keith Acree, a DOC spokesman. "In other cases, there's uncertainty. In a lot of cases, the best we can do is leave a message on a machine."
In the meantime, Acree said, some local prosecutors and police are rifling through old court files, looking for crimes with which they never bothered to charge these defendants. Other officials are running the inmates' names in a national crime database to see if they are wanted on crimes outside North Carolina. "They are looking for any sort of issue that will allow these people to stay locked up," Acree said.
October 15, 2009
Are Republicans likely to return to the "soft-on-crime" playbook in 2010?This new local article out of New York, headlined "New Drug Law Stirs 2010 Election Battles," prompts the question in the title of this post. Here are the basics:
Queens Republicans and their Assembly colleagues signaled last week that they will make a major issue of the repealed Rockefeller drug laws in next year’s legislative elections.
Vincent Tabone, vice chairman of the Queens GOP county committee and Republican Assembly campaign committee issued blistering attacks on Governor David Paterson and state Democrats last week when Paterson hailed the start of the judicial diversion program, a key phase of the reformed drug law, at ceremonies in a Brooklyn courthouse.
Tabone, who doubles as 26th AD district leader in Bayside, also used his attack on Paterson to point out that his local Assembly representative, Ann Margaret Carrozza, a Democrat, had voted for the drug law reform which, he said, will clear the way for 1,500 drug felons now in jail to have their sentences reduced and some be let out of jail....
Tabone retorted that Republicans like Senator Frank Padavan and prosecutors and police officers opposed the changes, to no avail. As he and the Assembly GOP see it, more than 1,500 drug felons may be “hitting the streets soon.” Among those are criminals who “sold drugs to children or sold drugs on school grounds or operated meth labs.”
As regular readers may recall, I was surprised (and perhaps ultimately pleased) that crime and punishment issues were barely discussed in any major elections during the 2008 cycle. But as this local article suggests, during the 2010 cycle when Republicans may find other issues hard to turn into easy "sound bite," I would not be at all surprised if we start seeing a lot more "soft-on-crime" attack attempts.
I have reasons to hope that "soft-on-crime" attacks will not prove as effective in 2010 as it might have in decades past. But only time and lots of political parrying will reveal if we might see these criminal justice issues making an election cycle political return.
Some old posts on crime and politics in the 2008 season:
- Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
- Boston Globe noticing crime dogs not barking in 2008 campaign
- FAMM suggests sentencing questions for the candidates
- New FAMM report and poll data on reforming mandatory minimums
- "Real commander needed for the war on drugs"
- A dollars and sense criticism of Senator Obama's crime-fighting plans
- Politics and the war on drugs
- Important (though incomplete) op-ed on mass incarceration and mercy
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
New Senate bill introduced to eliminate crack/powder federal sentencing disparityAs detailed in this new Washington Post article, which is headlined "Senate Bill Would Eliminate Cocaine Sentencing Disparity," Senator Richard Durbin is championing a new bill to eliminate the crack/powder sentencing disparity in federal law. Here are some of the basics:
The Senate's second-ranking Democrat introduced a bill Thursday that would eliminate the sentencing disparity between crack and powdered cocaine, an issue that has frustrated judges, civil rights advocates and drug reform proponents for more than two decades. Under current law, it takes 100 times more powdered cocaine than crack to trigger the same mandatory minimum sentence. Activists say that disparity disproportionately impacts African Americans.
"The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarcerations," Majority Whip Richard J. Durbin (D-Ill.) said in a statement. "It's time for us to act."
Durbin's bill would also increase the volume of crack cocaine required to trigger a mandatory prison term, as well as stiffen penalties for large-scale drug traffickers and violent criminals. The Fair Sentencing Act is co-sponsored by Democrats including Judiciary Committee Chairman Patrick J. Leahy (Vt.), Russell Feingold (Wis.), Benjamin L. Cardin (Md.) and Sheldon Whitehouse (R.I.)....
Some law enforcement officials have advocated eliminating the disparity by increasing the penalties for possession of powder cocaine, rather than, as Durbin's bill does, lowering the sentence for crack. But those calling for a change in the law also cite economic reasons at a time when budgets are tight, noting that half of federal inmates are imprisoned for drug offenses. The U.S. Sentencing Commission has estimated that wiping away the sentencing disparity could save more than $510 million over 15 years, lawmakers said....
A companion bill in the House has passed the House Judiciary Committee and awaits action in the House Energy and Commerce Committee. The idea won support from President Obama and Vice President Biden on the campaign trail, and Attorney General Eric H. Holder Jr. has also been supportive, but the administration has yet to announce a formal position on the bills before Congress.
I am pleased to hear this news, but I will not start getting too excited about this bill unless and until some some Republican Senators get behind it or until at least the White House and the Attorney General start expressing support. In other words, I fear it is going to take a lot more than the usual political suspects to turn these kinds of (long-overdue) proposed reforms into a legal reality.
Time magazine asks "Should Sex Offenders Be Barred from Church?"In this new piece, headlined "Should Sex Offenders Be Barred from Church?," Time magazine asks a question that always seems certain to prompt lots of different reactions from lots of different people in and outside the criminal justice system. Here are some notable excerpts from this Time piece:
North Carolina is a proud member of the so-called Bible Belt of states that take their religion seriously. So some eyebrows were raised when James Nichols was arrested for attending church.
His offense? Nichols, a convicted sex offender, had chosen to worship at a church that has a nursery where kids play while their parents pray. Now Nichols, 31, who only recently got out of prison, is fighting back, challenging the legality of a new law that took effect in December prohibiting registered sex offenders from coming within 300 ft. — nearly a football field's length — of any facility devoted to the use, care or supervision of minors.
As more states have adopted laws regulating where sex offenders can go, it was only a matter of time before the noble goal of protecting children butted heads with the sacrosanct First Amendment right to worship where and when you choose. Which takes precedence?
"This law makes it illegal to do things that are not wrong, like go to church," says Glen Gerding, Nichols' attorney. "When does the state stop interfering with a church's business? Will pastors be charged as an accessory for letting a known sex offender sit in a front-row pew and worship?"...
As soon as North Carolina's law went into effect in December, Katy Parker, legal director for the state's American Civil Liberties Union (ACLU) chapter, started fielding calls. Offenders wanted to know if the law prevented them from going to church; pastors worried it would keep worshippers away.
Parker says the law was so vague that she couldn't offer advice, but she did put out the word to defense attorneys that should they wind up representing someone accused of breaking the law, the ACLU wanted to hear about it. Nichols' March apprehension is one of two religion-based arrests that Parker is aware of. "It's unbelievable that the N.C. state legislature and the people of North Carolina would not want someone to go to church for spiritual reasons and for rehabilitative reasons," says Parker.
But others think the ACLU is missing the point. The premise of the law is sound, says Laurence Tribe, a constitutional-law expert at Harvard. "If the moment you enter a church you don a cloak of immunity from the rule of law, then churches would become sanctuaries for crime," says Tribe....
Only time — and judges' decisions — will determine whether the new law bars offenders from attending any church (where children might attend) or just those with child-care facilities. What is clear is that those who hammered out the small print of the legislation are sticking by it.
David Hoyle, the state senator who sponsored the bill, says it took two years to pass, partly because legal advisers took care to word it to withstand legal challenges. The law is named for Jessica Lunsford, the Florida girl who was kidnapped and killed in 2005 by a convicted sex offender. Lunsford was born in Hoyle's district and attended school in the tiny town of Dallas, where Hoyle lives. He still talks to her father regularly; her cousin will serve as a senate page for Hoyle next year.
"I got e-mails calling me the anti-Christ and saying I'm going to hell, but we want to make the law just as strong as we can," says Hoyle. "We feel it is a good law. When a person takes advantage of a child, I don't worry about their constitutional rights."
I am not sure what I find more notable and remarkable in this Time piece: (1) the fact that one of the famous (supposedly liberal) constitutional scholars, Professor Larry Tribe, is quoted in this piece apparently defending the soundness of a law that seems to make it a crime for certain people to go to church, or (2) that a state senator seems to be proud about not having any worry about some persons' constitutional rights. I suppose I am not all that surprised by the state senator's quote, but I was certainly surprised to see Professor Tribe quoted in defense of the prosecution of James Nichols for attending church.
Some recent related posts:
- "Banned from churches, sex offenders go to court"
- Pastor and city leaders fighting over sex offender working at church in California
- WWJD about the conflict between religion and restrictions on sex offenders?
- "Should Freedom of Worship Apply to Sex Offenders?"
Willingham case and Texas Gov continuing to make headlines
I am getting the sense that the controversy over Texas's execution of Cameron Todd Willingham and subsequent investigation of the case will be going on for quite sometime. But today brings these especially notable headlines from various newspapers on the matter:
- "Texas execution: Gov Rick Perry calls Cameron Todd Willingham 'monster,' defends state's handling of execution"
- "Texas Gov. Perry labels forensics panel story a 'media sideshow'"
- "Execution controversy about more than 'bad man'"
- "Perry's general counsel benefited from experts in his own arson-related case"
The final linked story comes from the Dallas Morning News, and it links to this blog post from Glenn Smith while providing this remarkable report:
It turns out that Perry's general counsel when Perry denied a stay of execution for Cameron Todd Willingham subsequently benefited in his own arson case a few years later — by citing the same kind of forensic arson investigators that Perry has dismissed in the Willingham case....
The governor's general counsel, David Medina, was subsequently appointed to the Texas Supreme Court. In a bizarre turn, Medina and his wife were indicted in 2007 in their own arson-related case. They were accused of tampering with evidence in a fire at their home. The Medinas hired experts who found that the arson investigation was flawed — and they were cleared of all charges.
Says Smith: The parallel is incredible, really. The indictment against Francisca Medina was dismissed because independent experts said the fire could have been started by faulty wiring. Willingham was executed after Perry's office rejected an independent expert who said the fire that killed the Willingham children was probably not arson, but caused by faulty wiring.
If all this is all true — and a Justice now sitting on the Texas Supreme Court prevailed on the same basic arguments that he deemed insufficient to keep Texas from executing Willingham — all I can say is: Wowsa!?!
"Lethal Injection Draws Scrutiny in Some States"
The title of this post is the headline of this article from today's Wall Street Journal. Here are excerpts from an effective article:
Despite the many arguments over whether criminals should be put to death, states thought they had settled at least one matter: the best way to carry out an execution. Largely gone are the electric chairs, firing squads and hangman's nooses of yore. Most of the 35 states where capital punishment is legal require the use of lethal injection -- a combination of chemicals inserted intravenously. In a handful of states, condemned inmates can request that another method, in most cases electrocution, be used.
But a recent botched execution has triggered debate over whether alternative approaches to injections should be considered....
Some experts say states have bypassed the most reliable execution methods to save face with the public. Deborah Denno, a Fordham University law professor who has written articles on capital punishment, believes firing squads comprised of professional shooters could handle executions more quickly and flawlessly, though she concedes that cultural distaste with firing squads means it is unlikely to be widely adopted. "We've known for a long time that there are better methods, but states don't want to look bad and horrifying," she says. The last firing squad execution took place in Utah in 1996....
Maryland has suspended its use of the death penalty while a state commission reviews whether lethal injection causes undue pain and whether prison staff are sufficiently trained to carry out the process. Executions fall to correctional employees because physicians refuse to participate, citing their oath to "save lives, not take lives," says Democratic state Sen. Paul Pinsky, co-chairman of the commission and an opponent of the death penalty. Two other states, California and North Carolina, also have suspended lethal injection while the procedure is reviewed, effectively imposing a moratorium on the death penalty in those states.
Thoughtful reflections on juve LWOP from MinnesotaAs noted in this post, last week the Minnesota Supreme Court rejected constitutional arguments against an LWOP sentence for 17-year-old murderer. That ruling has prompted this thoughtful commentary, headlined "The kids are not alright: Minnesota minors who kill can go to jail for life with no chance of getting out." Here are snippets:
Last Thursday, the Minnesota Supreme Court upheld Martin’s sentence, saying it was not a violation of the federal or state constitution. Minnesota’s decision comes at a critical time for judicial consideration of juvenile sentences. On Nov. 9, the United States Supreme Court is scheduled to hear oral arguments on whether sentencing juveniles to life without parole for non-homicidal crimes is unconstitutional. To oversimplify things, the decision faced by the courts is whether life sentences meted out to offending minors violates the Eighth Amendment to the U.S. Constitution, which bans “cruel and unusual punishments.” Minnesota’s state constitution, which was also considered in Martin’s case, however, bans “cruel or unusual punishment.”
Before jumping to any conclusions, consider how important some of the issues involved are. These kids have been convicted of committing horrible crimes. You don’t get life without parole for vandalizing the neighbor’s garage....
I was talking about these cases with my friend and classmate Rob Crist, who I think summed things up perfectly with a question: “What do you do with a kid like that?” For some states, the solution is to lock the kids up for the rest of their lives. “The juvenile system has been utterly incapable of doing anything with Mr. Sullivan, even though Sullivan had been given opportunity after opportunity to upright himself and take advantage of the second and third chances he’s been given,” the prosecution’s brief states, quoting the trial judge.
Yet, despite the horror of the acts themselves, many argue that the kids deserve a second chance on account of their age. Sullivan’s defense team’s brief before the Supreme Court lists all the sociopsychological reasons against harsh sentences for children....
Any time a juvenile commits a violent crime, it’s already a tragedy. I can’t help but think that a child like Joseph Sullivan doesn’t do what he did unless a long line of adults — people like his teachers, parents or others in his surrounding community — had failed to teach him responsibility all along.
Somehow, the world has gotten to the point where kids are killers and rapists long before they can graduate from high school. As horrible as this is, I’m skeptical that the best way to deal with our youngest criminal offenders is to lock them up and throw away the key.
Some recent posts on juve LWOP and the Graham and Sullivan cases:
- Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer
- The (unpreserved?) procedural issues in Graham juve LWOP case
- Analyzing the cert grants in both Graham and Sullivan
- Does Roper suggest young juve LWOP is unconstitutional?
- Gearing up for the SCOTUS juve LWOP cases on the horizon
- New Heritage Foundation report defending juve LWOP sentences
- An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
- Should religious doctrines influence Eighth Amendment jurisprudence?
October 14, 2009
"Incarceration American-Style"The title of this post is the title of this new must-read piece from Professor Sharon Dolovich that is now available via SSRN. Here is the abstract:
In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating — that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens — disproportionately poor people of color — who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control. This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.
Effective coverage of SCOTUS criminal forfeiture case argued todayOver at The Volokh Conspiracy in this post, Ilya Somin has lots of effective coverage of Alvarez v. Smith, a criminal-justice-related forfeiture case heard by the Supreme Court. Here is part of his effective summary of the argument as it went off today:
Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented. Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit decision, which I feared might happen. The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits. They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing. At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly.
US Sentencing Commission regional hearing in Denver next week
As detailed in this brief public notice, the US Sentencing Commission has another one of its regional public hearings on tap for next week. This fifth regional public hearing is scheduled for October 20-21, 2009, in Denver, Colorado, in Mineral Hall at the Hyatt Regency Denver.
As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing. I suspect some of the written testimony will be available via the USSC's website next week, and I have found all the regional public hearing testimony worth reading.
Finally, I cannot help but note again that this regional session lacks any "View from Academia" (although I see that former District Judge and now Professor Paul Cassell is scheduled to testify on the "Community Impact" panel). The first three regional hearings (which were in Atlanta, Stanford and New York City) all included a panel of academics, but now the Sentencing Commissioners appears disinterested in hearing about how the federal sentencing system looks from various regions of the ivory tower.
"Slaw and Order: Hot-Dog Stand in Chicago Triggers a Frank Debate"The title of this post is the amusing headline of this serious article from the front-page of today's Wall Street Journal. Here is how the piece starts:
When James Andrews opened a hot-dog stand on this city's rough West Side, he thought he was doing a community service by hiring ex-convicts. But some in the neighborhood think the name he chose -- Felony Franks -- is a crime.
An alderman has refused Mr. Andrews permission to hang a new sign or build a drive-through lane. A pastor accused the restaurant owner, who is not an ex-convict, of "pimping out" the community. Members of a neighborhood association have vowed to stay away from Felony Franks until the name is changed and the décor -- including paintings of cartoon hot dogs in prison stripes -- is removed. "I don't understand it," Mr. Andrews says. "I really don't."
The 64-year-old businessman has long employed ex-convicts at his main business, a company that supplies paper goods to restaurants. He says he thinks people deserve a second chance and felons need stable jobs so they don't add to homelessness. He thought of opening a hot-dog stand three years ago while driving past one. The name "Felony Franks" just popped into his head, he says.
Major media coverage of yesterday's big SCOTUS action
Thanks to How Appealing, one can find at this linkmajor stories discussing the Supreme Court's grant of cert in Jeff Skilling's appeal and at links here and here stories discussing the oral argument in the Padilla plea case and the Spisak capital case.
The opening paragraph of Adam Liptak's New York Times story about the Padilla case capture effectively my reaction to the oral argument transcript:
Several Supreme Court justices on Tuesday appeared sympathetic to a criminal defendant who unwittingly agreed to be deported by pleading guilty to a drug crime. But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system.
Latest Gallup poll showing support for death penalty reamins strongAs detailed in this Gallup report, which is headlined "In U.S., Two-Thirds Continue to Support Death Penalty," the latest, greatest polling numbers show that "65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it -- continuing a trend that has shown little change over the last six years." Here are more of the highlights from the report:
Gallup's death-penalty data stretch back more than seven decades -- making attitudes toward the death penalty one of Gallup's oldest trends. Gallup's earliest reading, in 1936, found that 59% of Americans supported the use of the death penalty in cases of murder, compared to 38% who opposed it. The all-time high level of 80% support came in September 1994, just before the midterm elections that swept Democrats out of power and at a time when Americans most often cited crime as the most important problem facing the nation. The low points came in the period of time from the mid-1950s through the early 1970s. During some of this time, the death penalty was illegal, and support dropped as low as 42% in 1966.
This year's update also shows that nearly half (49%) of Americans say the death penalty is not imposed often enough, roughly in line with the trend on this measure since 2002. Twenty-four percent say it is imposed "about the right amount," while 20% say it is imposed too often -- a percentage that has been only as high as 23% in recent years....
Another argument [made by opponents] against the death penalty focuses on cases in which it has been shown that innocent people have been put to death. The finality of execution obviously precludes the possibility of redress if, at some later point, DNA or other evidence finds that the individual in question was wrongly convicted of his or her crime. The American public would appear to be somewhat sympathetic to this argument: this year's poll finds 59% of Americans agreeing that within the last five years, "a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with." A little less than a third disagree.
However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty. Looked at differently, the data show that 57% of those who believe an innocent person has been executed also support the death penalty. This is significantly higher than the 39% who hold this belief and (perhaps more consistently) oppose the death penalty.
October 13, 2009
Media takes and the transcripts of today's SCOTUS arguments
As noted in this prior post, the Supreme Court heard two criminal cases today with significant sentencing implications, Padilla and Spisak. Here are links to two AP reports on the arguments:
- "Court to decide constitutionality of bad advice"
- "Court considers death sentence for Ohio neo-Nazi"
These AP reports suggest that the arguments went as was to be expected: in Padilla, the Justices seemed concerned about the potential implications of a ruling on the defendant's behalf; in Spisak, the Justices seemed concerned about the Sixth Circuit's reasons for reversing another death sentence.
Interesting report on "Crack the Disparity" coalition of the Justice RoundtableVia e-mail I received an interesting report concerning legislative briefings that took place today in the House and Senate which were entitled, “Crack Cocaine Sentencing: Exploring & Examining the Issues.” Here are the basics:
The breakfast and luncheon briefings brought together Republicans and Democrats, the left and the right, faith-based, academic, agency, and impacted to address this 23 year long issue. Over 13 Senate offices were represented and 26 House offices, in addition to interested persons across the ideological spectrum. The Senate briefing room was full, and there was standing room only on the House side. Panelists included:
C-SPAN2 covered the briefing on the Senate side. You can view it at this link.
- Chris Byrnes, Author of The Federalist Society’s white paper, “Proposals to Eliminate Sentencing Disparities Between Crack and Powder Cocaine Offenses”
- Lisa Rich, Director of Legislative Affairs, U.S. Sentencing Commission
- Pat Nolan, Vice President, Prison Fellowship
- Paul Butler, former prosecutor & Professor, George Washington Law School
- Lawrence Garrison, impacted person
- Moderator – Hilary Shelton, Director Washington Bureau NAACP