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November 28, 2009

Should crimes and punishments be in the mix for Tareq and Michaele Salahi?

2009-11-28-SalahiswithObama My first reaction to the story of Tareq and Michaele Salahi (allegedly?) crashing a White House state dinner was to be thankful they provided something fun to discuss during the holiday weekend.  But, as should be expected, the story has come with a fair share of media buzzing over whether the couple committed federal crimes through their high-society escapade.  Interestingly, this new Huffington Post commentary titled "What To Do About White House Gatecrashers?," laments the discussion of crime and punishment for the Salahis:

After hearing about Tareq and Michaele Salahi, the brazen pair who crashed the White House State Dinner, I was alternately intrigued and worried, especially the way the media reported it. In particular CNN, where Tom Foreman and Erica Hill, subbing for Anderson Cooper, kept harping at how horrible it was and that national security was clearly at stake.

Please, this is much ado about -- not exactly nothing, but not nearly as much as they were screaming about. And I say this as one who adores Erica Hill, in particular her eyebrow raised banter with Anderson Cooper.  But I guess when she's actually hosting the show, she's determined at all costs to prove she's a serious journalist.

Okay, but when she ominously suggests what these folks did might get them into prison, fueled by Bush Homeland Security Advisor Frances Fragos Townsend, who said it was a federal offense to lie to a federal officer, I have to say, enough!...

I think there's amazement at what the Salahis did, and the Secret Service should take note, but what the Salahis accomplished didn't make Obama particularly unsafe if the basic protections surrounding the immediate area of the president are in place.

Crashing a party, even at The White House, does not rise to the level of a federal crime, so much as indicate dismay that the officials in charge were not able to keep the riff raff out....

To suggest that the Salahis go to federal prison is nonsense.  They should be thanked for exposing some flaws in the Secret Service System, though the flaws themselves led to no real danger to the president, and isn't that the real story?

Because the author of this commentary is a screenwriter, my sense is that his view may be influenced by a professional affinity for noteworthy personal dramas.  In turn, I am wondering if readers of this blog, who generally have more of a professional affinity for sound administration of criminal justice systems, have a similar or different take on whether the Salahis ought to be facing some possible criminal charges.

November 28, 2009 in Celebrity sentencings, Purposes of Punishment and Sentencing | Permalink | Comments (28) | TrackBack

November 27, 2009

Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"

I am very pleased to see that Molly Gill, who serves as director of the commutations project for Families Against Mandatory Minimums, and this op-ed in today's Washington Post headlined "Turkeys 2, humans 0."  Here are excerpts:

As his daughters and others watched on Wednesday, President Obama followed long-standing tradition and pardoned two turkeys in honor of Thanksgiving Day. The 40-pound Butterballs, Courage and Carolina, were flown to California and will live out their days at Disneyland. Unfortunately, Obama has failed to follow another tradition of sitting presidents: granting clemency to humans....

To be fair, it's not entirely Obama's fault.  The advent of "tough on crime" politics in the 1980s and a few controversial clemencies since then (think Marc Rich and I. Lewis "Scooter" Libby) have made pardoning a political minefield.  Guarding the entrance to that mine field is the Office of the Pardon Attorney.  It reviews clemency requests and sends recommendations to the attorney general, who helps the president make final decisions about which offenders are worthy of mercy. For nearly a century, this review-and-refer system ran smoothly, and presidents typically approved hundreds of petitions for clemency each year -- mostly to run-of-the-mill, politically unconnected people.

But the system has broken down.  The Office of the Pardon Attorney's small staff is overburdened -- this year alone it has received more than 1,200 clemency requests. Beginning with the Clinton administration, the number of clemency applications has soared and shows little sign of dwindling. Applicants report filing their clemency petitions and never receiving a reply.  Applications often sit in the pardon attorney's office for years before they are, inevitably, denied. George W. Bush granted a paltry 200 pardons and commutations -- more than twice the number granted by his father but less than half the number granted by Clinton. Forty years ago, by the end of Lyndon B. Johnson's administration, almost 1,200 people had received the benefit of clemency.  We've come a long way, but not in the right direction.

Obama may have the power to grant clemency, but he can't use that power effectively unless the Office of the Pardon Attorney gives applicants a meaningful review and recommends worthy cases to the White House.

Executive clemency has too many valid and important purposes to disappear through lack of use.  Clemency gives hard-earned second chances to those who have turned their lives around.  It can fix the errors that inevitably crop up in our imperfect criminal justice system. Clemency can show mercy to elderly, sick or dying prisoners who aren't a threat to public safety.  And clemency restores valuable rights to people still struggling to find jobs because of foolish mistakes they made years ago.

None of these praiseworthy objectives can be met until Obama takes a hard look at the pardon system and fixes it. This year, the clemency score is turkeys, 2; humans, zero.  By this time next year, I hope that the clemency score favors more humans than turkeys.

As regular readers know, I share this concern for the lack of use of the clemency power.  But I would say this is fair to call this matter entirely the fault of President Obama and whatever members of his staff advise him on criminal justice matters and related policy issues.  President Obama has found the time to make a number of hard criminal justice choices concerning the closing of GTMO and the trial of terror suspects.  It should take a lot less time, even without any help from the Office of the Pardon Attorney, to find a few cases worthy of some kind of clemency relief from within the thousands of petitions.

Some related posts on federal clemency realities:

November 27, 2009 in Clemency and Pardons | Permalink | Comments (14) | TrackBack

Debating the likelihood of the death penalty for Khalid Sheikh Mohammed

The Chicago Tribune has this new piece discussing the death penalty realities surrounding the prosecution of suspected terrorists in federal court.  The piece is headlined "9/11 terror trial: Justice facing 'uphill battle' on death penalty?; Some legal experts say death penalty no sure bet in Khalid Sheikh Mohammed case," and here is an excerpt:

"It will be an uphill battle to get a death penalty in these cases," said Paul Butler, a former federal prosecutor in New York.  He helped win convictions for the four acolytes of Osama bin Laden who plotted the simultaneous bombings of U.S. embassies in Kenya and Tanzania in 1998. Jurors found the four men guilty as charged, but they were divided on the punishment in the summer of 2001.  As a result, all four were sentenced to life in prison.

Some jurors said afterward they opposed a death sentence because these followers of bin Laden said they wished to die as martyrs.   "Obviously, the 9/11 crimes are as serious as you can get," Butler said, "but it is difficult to get 12 people in Manhattan to agree on a death penalty."

This month's decision by Attorney General Eric Holder to try the alleged Sept. 11 plotters in a federal court rather than in a military commission set off a legal and political battle.

Critics of the decision said a Manhattan trial poses a grave security threat to the city and that they feared the defendants would be found not guilty or escape the death penalty.  They also said they feared the perpetrators of the worst mass murder in U.S. history would use the trial to spew propaganda.

Defenders of the decision said the nation's courts have shown themselves fully capable of trying and convicting the worst of criminals.  And they said trying the accused terrorists as ordinary criminals and murderers was more fitting than treating them as warriors in a "war on terror."

Still, despite the fierce disagreements, it is not obvious that the result in these cases would be different depending on which legal system was used.   Lawyers on both sides of this dispute say they fully expect that Mohammed and his co-conspirators will be found guilty of the charges of mass murders.  And while 12 military officers on a military commission at Guantanamo might be more likely to impose the ultimate sanction than 12 New York civilians, the very limited experience to date with such commissions does not make that a foregone conclusion.

Military commissions have surprised both civil libertarians and the Pentagon by dismissing charges against some accused terrorists and giving sentences considered lenient to others. Pentagon lawyers sought a 30-year prison term for Salim Hamdan, the former driver for bin Laden.  But last year, a military judge sentenced him to serve just six more months in prison, and he was subsequently released and sent home to Yemen.

As I have noted before, limits on the reach of double jeopardy rules might enable state prosecutors to go after Khalid Sheikh Mohammed if the results of his first trial are not to everyone's liking.  But I still have faith that a jury is likely to return a death sentence if it sees convincing evidence that 9/11 would not have happened without KSM's involvement.

Some recent related posts:

November 27, 2009 in Celebrity sentencings, Death Penalty Reforms | Permalink | Comments (6) | TrackBack

November 26, 2009

What SCOTUS sentencing cases are you thankful for?

On this day for giving thanks, I thought my sole post could provide a forum for folks to say thanks to the Supreme Court for their favorite sentencing cases.  I am hopeful — but not completely optimistic — that by next Thanksgiving I will be giving thanks to the Justices for breathing new life into the Eighth Amendment in non-capital cases via thoughtful rulings in this Term's juve LWOP cases Graham and Sullivan.  But I can already give thanks for SCOTUS's modern sentencing jurisprudence, which has given me lots to write about in this space and elsewhere.  Of course, I am always most thankful for Blakely , in part because it has helped me have a whole new vision of modern constitutional criminal procedure.  But, as a federal sentencing nut, I must also give a special thankful shout-out to Booker and its progeny (especially Gall and Kimbrough).

In addition, especially since I taught a Second Amendment seminar this past term for the first time, I have to say thanks for the recent Heller ruling even though it is not really a pure sentencing case.  I have joyfully discovered from teaching this seminar — and also from reading lower court opinions limiting Heller's reach and briefs urging the Second Amendment's broad application to the states — that Heller can and should prompt a host of new and dynamic second (and third and fourth) thoughts about all sorts of interesting and important constitutional questions.

November 26, 2009 in Who Sentences? | Permalink | Comments (25) | TrackBack

November 25, 2009

Ohio news about execution efforts past and execution efforts future

Getting into a Christmas Carol spirit, the AP provides these new stories from Ohio about execution efforts past and execution efforts future:

While the first of these stories is mostly of historical interest, the second story all but ensures a lot of additional legal wrangling as Ohio starts to prepare to carry out a December 8 scheduled execution using its new one-drug lethal injection protocol.  Here are the details:

A federal court has ruled that an execution set for Dec. 8 can go forward because of a change in Ohio's execution policies.  The 6th U.S. Circuit Court of Appeals in Cincinnati said Wednesday that the change renders moot Kenneth Biros' argument that the state's former policy using a three-drug vein injection is unconstitutional....

Biros attorney Tim Sweeney says he will consider appealing Wednesday's decision, as well as a challenge to Ohio's new execution protocol.

November 25, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

The true sentencing turkeys on this Thanksgiving eve

Turkey_monster_397x224 As detailed in this FOXnews piece, President Obama showed his sense of humor when he issued his first turkey pardon this morning:

President Obama hammed it up on Wednesday, pardoning two turkeys Wednesday in a traditional White House ceremony that he joked didn't always end on a positive note. Accompanied by daughters Sasha and Malia, Obama honored a White House holiday tradition that dates to Harry Truman's time as president.

Looking at the turkeys -- Courage and Carolina presented by the National Turkey Federation -- Obama joked that he couldn't fault past presidents from eating turkeys. "That's a good looking bird," he said to laughter. Obama said the turkeys had the interventions of daughters to thank for this year's pardon "because I was planning to eat this sucker."...

Obama also noted that two other turkeys were donated to a D.C. charity. "So today, all told, I believe it's fair to say that we have saved or created four turkeys," he joked, alluding to his $787 billion economic stimulus package that has drawn criticism for the number of jobs the White House has claimed it has created.

Relatedly, as this NPR feature shows, the White House found the time to put together a funny video called "One Lone Turkey" that explains how a single turkey is going to get a second chance.  Though I am disinclined to be grumpy about this quaint new Presidential traditional, this AP article headline highlights why I cannot find this event too much of a laughing matter: "Obama's first pardon: A turkey named 'Courage'." 

I was hoping that President Obama and others in the White House would try to find a few real persons to make thankful this week with real-world clemency decisions.  As I have noted, in many prior posts President Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without one single clemency grant.  Moreover, as this official webpage reveals, it appears that President Obama has over 3,000 requests for pardons and commutations sitting unresolved on his Oval Office desk.

So, one true sentencing turkey on this Thanksgiving eve is President Obama and criminal justice members of his White House team, none of whom seem to concerned with the fact that the President has now shown more concern about justice for terrorists and mercy for turkeys than for any others impacted by harshness of the modern the federal criminal system.

But I also think that the media, public policy groups and the left side of the blogosphere also merit some turkey awards this Thanksgiving eve.  Save for an effective commentary noted here yesterday, I have seem precious little recent media discussion of the failure of President Obama to bring any hope or change to federal clemency stinginess.  And lots of criminal justice groups and bloggers, who I think should be making a big stink about Obama's first pardon being a turkey, all seem to be conspicuously silent on this matter so far.

Some related posts on federal clemency realities:

November 25, 2009 in Clemency and Pardons | Permalink | Comments (22) | TrackBack

Kentucky Supreme Court declares de facto moratorium on executions

As detailed in this local article, "Kentucky may not execute anyone until it adopts regulations in compliance with the law, the Kentucky Supreme Court ruled Wednesday."  Here are more of the particulars:

The court ruling came in the case of three Death Row inmates — Thomas C. Bowling, Ralph Baze and Brian Keith Moore — who were challenging the state’s lethal injection protocol....

Earlier this week, Attorney General Jack Conway asked Gov. Steve Beshear to set an execution date for Baze and two other men on Death Row. Meanwhile, the state’s top public defenders, a leading anti-death-penalty group and a group of lawyers sought a moratorium on executions until a recently organized American Bar Association review of the implementation of the death penalty in Kentucky is completed in about 12 to 18 months.

In its 35-page ruling, the court said the state Department of Corrections must follow state-mandated administrative procedures before adopting the current lethal injection process of a three-drug cocktail. It also said the state should have held public hearings on the process.

The full ruling is available at this link.

November 25, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

November 24, 2009

"Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders"

The title of this post is the title of this new paper on SSRN from Stuart Green.  As the abstract reveals, this seems like a perfect paper to generate deep thoughts during a Thanksgiving holiday:

Criminological studies consistently indicate that a disproportionate percentage of crimes in our society, both violent and non-violent, are committed by those who are impoverished.  If we assume that at least some of the poor who commit crimes are poor because they fail to get from society what they “deserve” in terms of economic or political or social rights, the question arises whether this fact should affect the determination of what such people “deserve” from society in terms of punishment.  The question is all the more pressing given recent Census Bureau figures indicating that the economic recession that began in 2008 has resulted in a higher percentage of Americans living below the poverty line than at any point since 1997, with figures for 2009 certain to be even worse given rising unemployment rates.

Most scholars who have been concerned with this issue have assumed that there is one set of principles that will explain the proper relationship between distributive and retributive justice:  The fact that an offender has been denied the basic entitlements of a just society, however defined, is taken to have implications for criminal liability across the board, regardless of the offense charged.  The argument that I develop here suggests that a proper analysis of the relationship between distributive and retributive justice should proceed on a case-by-case basis.

Such an analysis would take account of three distinct factors:  First, it would look to the specific kind of offense with which the offender is charged.  The fact that an offender is deeply and unjustly disadvantaged might be relevant to determining his blameworthiness for committing one kind of criminal offense (say, an offense against the person) but not another kind of offense (say, an offense against property or an offense against the administration of justice).  Under this approach, we need to consider what it is that makes an offender blameworthy for committing a particular kind of offense in the first place, and then ask whether and how such blameworthiness is affected by his disadvantage.  Second, we need to look at the precise form that the offender’s disadvantage takes.  The fact that an offender has been denied any reasonable opportunity to obtain property, for example, might be relevant to determining his blameworthiness for committing a particular kind of offense in a way that his being denied the opportunity to participate in the political process or the right to certain kinds of basic police protection by the state might not.  Third, we need to consider the economic and social circumstances of the crime victim, if any.  For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not

November 24, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (13) | TrackBack

Seeking help working though the Second Amendment amicus briefs filed in McDonald

As SCOTUSblog notes here, many amici briefs in support of applying the Second Amendment to state and local laws were filed yesterday in the McDonald case, and many of these amici filings are linked at via this Chicago Gun Case webpage (and many are also being noted and discussed at The Volokh Conspiracy).  Including the merits briefs, I now count 34 briefs filed in the McDonald case.

Especially because I consider Second Amendment incorporation pretty much a fait accompli (as explained here), I am checking out these McDonald briefs mostly to see what they might be saying for the really hard Second Amendment questions on the horizon, especially concerning traditional law enforcement and sentencing issues.  I am looking, for example, to see if any amici who call Second Amendment rights "fundamental" explain whether and why all felons and some misdemeanants can be severely criminally punished simply for seeking to exercise a fundamental right.  Similarly, I wonder if any amici arguments in McDonald might undermine the application of severe mandatory minimum sentencing terms for mere gun possession in certain settings.

Based on a quick scan of who submitted filings, the following briefs caught my eye as potentially worth a close read by those thinking about the possible criminal justice implications of McDonald:

In addition, I notice that at least these two amicus briefs directly engage with the all-important "standard of review" question that has already caused some problems in lower courts:

By flagging this set of amicus briefs, I do not mean to imply that all the others are not worthy of time and attention.  Indeed, as the title of this post is meant to indicate, I am eager to get assistance and insights from others concerning which (if any) of the filings in McDonald are worthy of extended attention.

A few related new and old Second Amendment posts:

November 24, 2009 in Second Amendment issues | Permalink | Comments (0) | TrackBack

Justified complaints that Obama's first pardon will be of a turkey

I am pleased to see that Debra Saunders has this new commentary in the San Francisco Chronicle lamenting the fact that the first use of the pardon power by President Obama will be for a turkey:

On Wednesday, President Obama will issue the White House's standard hokey pardon of a Thanksgiving turkey.  It goes with the job.  That's good news for the lucky turkey, but not much help for the many nonviolent first offenders languishing in federal prisons because, nine months into office, Obama has yet to exercise his presidential pardon power.

According to political science Professor P.S. Ruckman Jr. of Rock Valley College in Illinois, Obama, a former constitutional law professor, has taken longer to use the executive pardon and commutation power than all but four presidents -- George Washington, John Adams, Bill Clinton and George W. Bush.

Obama hasn't pardoned a single ex-offender, even though about 1,200 people have asked for pardons because they have turned their lives around, expressed remorse for their crimes and now want to wipe the criminal slate clean of long-past offenses for which they paid the penalty.

Nor has Obama commuted the sentence of any of the 2,000 or so federal inmates seeking sentence reductions -- many because of draconian federal mandatory minimum sentences. "We had certainly hoped that by now President Obama would have used the pardon power," said Molly Gill of the sentencing-reform group Families Against Mandatory Minimums. "We are a little bit surprised and a little bit disappointed."...

[T]he new president doesn't seem eager to use his unfettered pardon power to correct sentencing injustices for the politically unconnected. Look at Obama's choice for attorney general, Eric Holder. When Holder worked for the Clinton administration, Ruckman noted, "he wouldn't take the time, energy or effort to make it a regular feature of government."...

When you think about it, the pardon petition is the rare Washington exercise that encourages politically unconnected people to petition their president for relief. But like Bush and Clinton before him, Obama seems to be hoarding this power. It's as if Team Obama sees justice as perk, not an equal right.

As regular readers know, I am a lot more than a "little bit disappointed" about President Obama's failure to make any use of his historic clemency powers.  The Obama Administration has obvious spent a lot of time and a lot of political capital seeking to ensure that suspect terrorists at GITMO get treated fairly, but it has yet to find the time or the inclination to make even a single symbolic gesture toward justice or mercy for the thousands of low-level non-violent federal defendants who can make a strong case for clemency attention.  

Perhaps someone needs to start a new advocacy campaign with this slogan: "President Obama, justice and mercy should not only be for terrorists and turkeys."

Some related posts on federal clemency realities:

November 24, 2009 in Clemency and Pardons | Permalink | Comments (11) | TrackBack

Governor receives competing death penalty requests in Kentucky

News articles this morning in The Courier-Journal report on competing requests being made of the Governor of Kentucky.  Here is one story's lead: "Gov. Steve Beshear has been asked to halt all executions until a 10-member team of state lawyers and former judges recently appointed by the American Bar Association can assess Kentucky’s flawed death-penalty system."  Here is another story's lead: "Attorney General Jack Conway on Monday asked Gov. Steve Beshear to set execution dates for three death-row inmates."

Though I am inclined to assume that the AG's request for execution dates will surely eclipse the ABA's request for a moratorium, Kentucky has a funny history with respect to executions.  Though many of its neighbors (especially Virginia and Ohio and Indiana) have executed a significant numbers of murderers, Kentucky has had only three executions in the modern era, and I believe two of those who were most recently executed were volunteers who had dropped some appeal opportunities.

November 24, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

"Right and Left Join to Challenge U.S. on Criminal Justice"

The title of this post is the headline of this terrific (and heart-warming?) new article in the New York Times by Adam Liptak.  Here are excerpts:

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption.  Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups.  Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration. “It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers.  “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.  Mr. Meese once referred to the American Civil Liberties Union as part of the “criminals’ lobby.” These days, he said, “in terms of working with the A.C.L.U., if they want to join us, we’re happy to have them.”

Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July....

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)...

Several strands of conservatism have merged in objecting to aspects of the criminal justice system. Some conservatives are suspicious of all government power, while others insist that the federal government has been intruding into matters the Constitution reserves to the states.  In January, for instance, the Supreme Court will hear arguments in United States v. Comstock, about whether Congress has the constitutional power to authorize the continued confinement of people convicted of sex crimes after they have completed their criminal sentences.

Then there are conservatives who worry about government seizure of private property said to have been used to facilitate crimes, an issue raised in Alvarez v. Smith, which was argued in October....

Some religious groups object to prison policies that appear to ignore the possibility of rehabilitation and redemption, and fiscal conservatives are concerned about the cost of maintaining the world’s largest prison population....

The roots of the conservative re-examination of crime policy might also be found in the jurisprudence of Justices Antonin Scalia and Clarence Thomas.  The two justices, joined by liberal colleagues, have said the original meaning of the Constitution required them to rule against the government in, among other areas, the rights of criminal defendants to confront witnesses....

The conservative re-evaluation of crime policy is not universal, of course.  Two notable exceptions to the trend, said Timothy Lynch, director of the Cato Institute’s criminal justice project, are Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.  “Roberts and Alito are coming down consistently on the side of the government in these criminal justice cases,” Mr. Lynch said.

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.  “The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri.  “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

So, it seems that anyone inclined to complain about President Obama's failure to bring the left and the right together on important issues should be sure to acknowledge that at least partisan lawyers have recently been working in a bipartisan fashion to oppose Prez Obama's Justice Department.

Also, notably missing in this discussion is my favorite new arena for some right/left convergence: the Second Amendment.  Of course, many on the left and the right disagreed on the basic question of whether the Second Amendment protects an individual right.  But now that Hellerhas resolved this issue, I sense that folks on both sides generally agree that the Second Amendment should be incorporated against the states and that the scope of gun rights can and should be significantly restricted by lots and lots of reasonable regulations.

November 24, 2009 in Purposes of Punishment and Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (15) | TrackBack

November 23, 2009

Governor Ted Strickland grants clemency to 78 persons in Ohio

In this post a few weeks ago, I noted with great dismay and disappointment that Ohio Governor Ted Strickland had failed to act on any of a large number of clemency requests during his three years as the state's chief executive.  I am now pleased to report with excitement that Governor Strickland today made up for lost time by announcing decisions on hundreds of petitions today, and granted clemency to 78 persons.  This Columbus Dispatch article provides the basics: 

Gov. Ted Strickland approved clemency today in 78 criminal cases, including commuting the life sentence of Willie Knighten Jr., convicted for a 1996 murder in Lucas County.

Knighten, 37, is scheduled to be released Tuesday from the Allen County Correctional Institution, officials said.  "The trial and sentencing judge in Mr. Knighten's case determined that his original finding of guilt was in error and that Mr. Knighten has now served 12 years in prison for an offense he likely did not commit," Strickland said in a statement.

Knighten's clemency was among 296 requests decided by Strickland and released today. He approved 78 of them, or 26.3 percent.  Strickland OK'd 33 of 63 cases left over from 2005 and 2006, Gov. Bob Taft's last years in office, and 45 of 233 cases submitted to him in 2007.

In a conference call with reporters, Strickland said he and his legal staff spent more than 1,000 hours reviewing the cases.  "This responsibility to consider commutations is an awesome one," he said. "We take it very seriously. I have looked at every one of these cases early and many of them multiple times as I have asked questions and sought additional information."...

Strickland said in the cases in which he granted pardons after the person served their time, he considered their record outside prison.   "People have become nurses, successful business people, they have obtained master's degree's and bachelor's degrees," he said.  The vast majority of the favorable clemency decisions were pardons for minor, nonviolent offenses....

However, Strickland also approved clemency in a total of 10 cases because of what he called "fundamental injustice" or because the sentence was disproportionate to that of other inmates who committed similar crimes....

The governor has another 403 clemency requests pending from 2008 and this year.

For the true clemency junkies out there, Governor Strickland's office has provided a lot more information about the clemency decisions made today.  Specifically, this official press release describes the process and the particulars of Strickland's actions, and this huge excel spreadsheet goes into case-by-case specifics.

November 23, 2009 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Atkins, juves and rules versus standards in the Eighth Amendment jurisprudence

The latest Sidebar feature from Adam Liptak in the New York Times has an interesting little discussion of rules and standards in the development of the Eighth Amendment jurisprudence.  The piece is headlined "Bright Lines Blur in Juvenile Sentencing," though it discusses post-Atkins litigation concerning mental retardation as much as it discusses juve sentencing.  Here are excerpts from the piece:

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said.  “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”...

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper.  The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year....

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234.  That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.  North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test.  In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded.  But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim.  In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here. “If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said.  Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

November 23, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Support for legalizing marijuana grows rapidly around U.S."

The title of this post is the headline of this piece from today's Washington Post.  Here are a few excerpts:

At last week's International Drug Reform Conference, activists gamed specific proposals for taxing and regulating pot along the lines of cigarettes and alcohol, as a bill pending in the California Legislature would do. The measure is not expected to pass, but in urging its serious debate, Gov. Arnold Schwarzenegger (R) gave credence to a potential revenue source that the state's tax chief said could raise $1.3 billion in the recession, which advocates describe as a boon.

There were also tips on lobbying state legislatures, where measures decriminalizing possession of small amounts have passed in 14 states. Activists predict half of states will have laws allowing possession for medical purposes in the near future.

Interest in medical marijuana and easing other marijuana laws picked up markedly about 18 months ago, but advocates say the biggest surge came with the election of Barack Obama, the third straight president to acknowledge having smoked marijuana, and the first to regard it with anything like nonchalance. "As a kid, I inhaled," Barack Obama famously said on the campaign. "That was the whole point."

In office, Obama made good on a promise to halt federal prosecutions of medical marijuana use where permitted by state law. That has recalibrated the federal attitude, which had been consistently hostile to marijuana since the early 1970s, when President Richard Nixon cast aside the recommendations of a presidential commission arguing against lumping pot with hard drugs.

Some recent related posts:

November 23, 2009 in Drug Offense Sentencing | Permalink | Comments (1) | TrackBack

Is there a conflict-of-interest (and a real bias problem) when district judges help define a circuit's sentencing standards?

As noted in this post, today Sixth Circuit panels in two cases split over whether district judges had sentenced reasonably in two drug cases.  Beyond the specifics of the two rulings, I find especially noteworthy the fact that the "swing" voter helping to make up the two-judge majority opinions in these cases are district judges from within the Sixth Circuit sitting by designation.  Though I think there are practical benefits from district judges sitting by designation on circuit courts, I feel it is hinky for district judges in these kinds of cases to be key votes deciding the nature and application of reasonable review.

One might develop a general argument that district judges when sitting by designation are always likely to be inclined to affirm the work of fellow district court judges.  But whatever one thinks of this general notion, there can be little doubt that district judges will have a considerable personal/professional bias when considering an appellant's claim that the sentence imposed below was unreasonable.  Circuit reversals of sentences on reasonableness grounds (as opposed to guideline calculation errors) are relatively rare, and district judges know that any and every such reversal will be an important and consequential precedent that litigants will stress in future sentencing proceedings.  District judges, knowing that they have to impose reasonable sentences in all future cases, surely will be disinclined when sitting by designation to declare unreasonable any sentencing practice or result that seems anywhere close to any sentencing practice or result they have ever embraced in the past or might be inclined to embrace in the future.

I am sure that district judges when sitting by designation will always try to avoid being unduly influenced by their personal/professional bias to see circuit law develop in a manner that serves their own district court interest.  And, in legal settings where the daily work of district courts are not really at issue, this effort to avoid bias is probably good enough for government work.  But, in the sentencing universe after Booker, and especially when the circuit judges on the panel are split, having district judges as swing voters on reasonableness review just does not seem quite right.

November 23, 2009 in Who Sentences? | Permalink | Comments (9) | TrackBack

Sixth Circuit panels splitting over many aspects of reasonableness review

Anyone longing for some juicy federal circuit court opinions on reasonableness review to discuss over the long weekend now need look no further than a couple of split panel rulings — dare I say turkeys? — handed down by the Sixth Circuit this morning.  Specifically, via US v. Petrus, No. 08-1706 (6th Cir. Nov. 23, 2009) (available here), and US v. Simmons, No. 07-3449 (6th Cir. Nov. 23, 2009) (available here), two different Sixth Circuit panels talk lots of turkey concerning both substantive and procedural reasonableness review after Booker and its progeny. 

Neither Petrus (which runs 17 pages) or Simmons (which runs 76 pages!) can be easily summarized, and thus I will be content here to quote a key section from the start of Judge Clay's potent 50-page dissent in Simmons:

Even more troubling [than doctrinal errors] is just how fundamentally unbalanced and unjust the approach endorsed by the majority is.  On the one hand, the majority is willing to speculate as to what the district court “appears” to have “implicitly” considered, while on the other hand faulting defense counsel for not “specifically” identifying the procedural errors to which she was objecting.  The majority also insists that the procedural rule confirmed in Vonner somehow eliminates the need for a contextual inquiry when determining the sufficiency of a defendant’s objection, despite the fact that Vonner explicitly requires us to conduct such a contextual review when evaluating the sufficiency of the district court’s sentencing pronouncement. See Vonner, 516 F.3d at 387 (explaining that a “lengthy explanation” of the sentence chosen may not be required in all cases “because ‘circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence’” (quoting Rita v. United States, 551 U.S. 338, 357 (2007)); see also Rita, 551 U.S. at 356 (“The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.”).

In both respects, the majority’s decision typifies a troubling imbalance that plagues our case law in this area.  It also reveals that the majority’s professed concern for clarity in this area is disingenuous.  If the majority truly was interested in adopting rules that will lead to a clear record for appeal, then its first order of business obviously should be to hold the district court accountable for failing to address Simmons’ primary, repeated, and nonfrivolous argument in favor of downward departure.  Instead, the majority bends over backward to guess at whether the court considered Simmons’ argument.  It makes no sense, and is fundamentally unfair, to place the burden for creating an adequate record for appeal on criminal defendants rather than district court judges.

Let me be clear: I acknowledge that we are bound to apply the rule that the en banc majority announced in Vonner, but I emphatically reject the assertion that Vonner requires the outcome reached by the majority.  The narrow scope of the majority’s inquiry and its insistence on a rigid application of the plain-error standard is contrary to the “common-sense” approach required under Vonner, and repeatedly confirmed in subsequent reported decisions.  If the majority is right, however, and Vonner requires either the inquiry undertaken or the outcome reached by the majority, then the time has come for this Court to reconsider the wisdom of our decision in Vonner.  And if this Court is unwilling to acknowledge its mistake, then perhaps the Supreme Court should intervene to rectify this imbalance.

Notably, the "swing" voter helping to make up the majority opinions in Petrus and Simmons  — both of which declare procedurally reasonable a sentence imposed in a procedurally questionable manner — both happen to be district judges sitting by designation.  Though I do not generally have a problem with district judges sitting by designation, I think there is a worrisome sort of conflict-of-interest for district judges to be very involved in defining a circuit court's standards for when district judges are sentencing in a reasonable manner. 

November 23, 2009 in Booker in the Circuits, Rita reactions, Who Sentences? | Permalink | Comments (3) | TrackBack

The many new tech challenges surrounding the monitoring of old and new sex offenders

This morning's Washington Post has this fascinating and important new article headlined "Tracking sex-crime offenders gets trickier: Violator registry is growing as tech-savvy predators put a greater burden on officers." Here are excerpts:

The nationwide crackdown on child pornography and other sex offenses has created severe manpower shortages and technology challenges for probation officers, police and federal agents struggling to track offenders who are jumping online with cellphones and portable game systems and flocking to social networking and other sites, where children or pornography can easily be found.

There are more than 716,000 registered sex offenders nationwide, according to the National Center for Missing & Exploited Children, a 78 percent increase since 2001, and that does not include all offenders because some crimes do not require registration.  Sex-offender registries have grown even faster in the Washington area, with more than 24,000 people listed....

The focus on crimes against children that began in the Bush administration shows no sign of abating under President Obama. Federal child sexual exploitation prosecutions are up 147 percent since 2002, and the Justice Department is hiring 81 more prosecutors for these cases.  Funding for task forces that bring charges in state courts rose this year from $16 million to $75 million.

But many of those offenders are now leaving prison, even as revenue-strapped states are cutting the budgets of probation departments.  In Virginia, probation and parole cuts this year totaled nearly $10 million, including $500,000 for electronic monitoring of sexually violent predators.  Maryland also has cut its budget. "The burden on probation and parole officers is going to explode," said Ernie Allen, the national center's president.

The monitoring of virtually all sex offenders is required by law when they are on probation or parole. The problem has gained national attention with the discovery of 10 bodies and a skull at a registered sex offender's home in Cleveland and revelations that Jaycee Lee Dugard was kidnapped at age 11 in 1991 and allegedly held captive at a California sex offender's house until her reappearance in August.  Officers had visited both homes and noticed nothing wrong.

Those cases underscore a troubled registry system that has been the public face of sex-offender monitoring.  An estimated 100,000 offenders do not comply with registration requirements. Law enforcement doesn't know where many of them are.

But the most alarming development for officers is proliferating electronic gadgets and the temptations they pose to sex offenders.  A man on probation in Iowa for molesting a 9-year-old girl, for example, was recently caught downloading pornographic images of a young girl on his PlayStation Portable -- while walking to his probation appointment.

Sometimes, offenders cannot be monitored even while in custody.  David L. Franklin, a church deacon, pleaded guilty in federal court to sending child pornography to an undercover D.C. police detective.  While awaiting sentencing, Franklin struck up another online conversation with the same detective, who traced the defendant to an unusual address -- the D.C. Correctional Treatment Facility.  Franklin had smuggled a cellphone into his jail cell and was on his bunk, online, when guards grabbed it, sources familiar with the case said.

November 23, 2009 in Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack

November 22, 2009

"Do Defendants Get Enough Warning About a Guilty Plea's Consequences?"

The title of this post is the headline of this effective new article by Tony Mauro from The National Law Journal.  Here is the start of an effective piece that connects the Ballon Boy story to a pending Supreme Court case on this topic:

The attention-seeking parents of the Colorado "balloon boy" must not have had their thinking caps on last month when they told police their son was aboard a runaway hot air balloon.  But when their misadventure got them hauled into court, they suddenly smartened up.

On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement that on Nov. 13 had them confess to different crimes.  The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting.  Why?  Because she is a Japanese citizen, and if she had pleaded guilty to a felony, a collateral consequence would have been deportation.

The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not. Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky.  His lawyer told him the plea would not get him deported, because he had lived in the United States for decades.  The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside because of the bad advice he got.

Both cases, as different as they are, are casting new light on a legal issue that has been simmering for years: when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty.

November 22, 2009 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (26) | TrackBack

Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"

This local article, which is headlined "Lawyer: Ohio's lethal injection a human experiment," shows the argument that a death-row inmate is forced to using now that Ohio has adopted a new one-drug lethal injection protocol.  Here are the details:

The state's new lethal-injection plan is so untested that it would amount to human experimentation if used for the first time in December, an attorney for a condemned inmate said in a Friday court filing.

There is no reason for federal courts to allow the scheduled Dec. 8 execution of Kenneth Biros given the lack of details in the proposed system, which replaces a fatal three-drug cocktail with a single powerful dose of anesthetic, attorney Tim Sweeney said.

Ohio also has proposed a two-drug muscle injection as a backup, but Sweeney said in a filing with the 6th U.S. Circuit Court of Appeals in Cincinnati that there's no evidence of the backup's reliability.

"There is nothing in the record on which this Court can make any legitimate determination as to whether the 'back-up' they have selected is as or more constitutionally problematic than a gunshot to the head," Sweeney wrote. The proposal "is human experimentation, pure and simple," Sweeney said....

Biros killed 22-year-old Tami Engstrom near Warren in 1991. He had offered to drive her home from a bar, then dismembered her corpse and scattered her body parts in Ohio and Pennsylvania. He acknowledged killing her but said it was done during a drunken rage. Trumbull County prosecutor Dennis Watkins called Biros, 51, "a poster person for the death penalty."

Some related posts on Ohio lethal injection issues:

UPDATE:  Monday morning's issue of the Cleveland Plain Dealer has this effective new article on this topic.  The piece is headlined "New lethal injection policies put Ohio at center of legal and ethical debate over executions," and here are some key excerpts:

Death row inmates and advocates on both sides of the capital punishment debate across the country have had their eyes on Ohio since the recent announcement that this state will pioneer the use of a single drug to execute inmates....

However, Ty Alper, associate director of the Death Penalty Clinic at the University of California-Berkeley, which serves as a resource for defense attorneys suing states over lethal injection methods, said the one-drug method should cause less pain to the victim than the three-drug cocktail.  "I think this is something that is pretty well accepted," he said. "It's very similar to the way that animals are euthanized -- there's been a lot of testimony about it, and the effects of the anesthetic are pretty well known."

November 22, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (9) | TrackBack