December 4, 2009
American Amanda Knox sentenced to 26 year in Italian murder caseI know next to nothing about Italian criminal procedure and sentencing, but I am intrigued to learn that the high-profile murder prosecution of American Amanda Knox concluded today with a conviction and the imposition of a stiff sentence. Here are detailed from this CNN report:
An Italian jury has found American student Amanda Knox and her Italian boyfriend Raffaele Sollecito guilty in the stabbing death of British exchange student Meredith Kercher.
Knox was sentenced to 26 years in prison and Sollecito was sentenced to 25 years. Both were convicted on all charges except theft and together must pay 5 million euros ($7.4 million) to the victim's family. In addition, Knox must pay 40,000 euros ($60,000) to a man whom she falsely accused of the killing....
Knox and Sollecito will appeal the verdicts, attorneys said. After the verdict, Knox's lawyer, Carlo Della Vedova said his client was upset, but strong.
He would not speculate on the reason for the verdict. "We have to see the motivation," he said, referring to legal paperwork the judge must file within 90 days to explain the jury's reasoning....
Knox and Sollecito have been jailed for more than two years. The trial began in January in Perugia, a university town about 115 miles (185 kilometers) north of Rome.
"Pastor Offers Sex Offenders A 'Miracle': A New Start"The title of this post is the headline of this new NPR story about a pastor in Florida who ministers to a community of convicted sex offenders. Here is how the piece gets started:
More than 20 states, including Florida, limit where convicted sex offenders can live — keeping them away from schools, parks and other places where children congregate. In Miami, dozens of homeless sex offenders live under a bridge because there are few, if any, options nearby. But 90 miles away, there's a community dedicated to housing sex offenders.
Here is a segment of the piece providing part of the pastor's interesting back-story:
[Dick] Witherow believes people can change. At Miracle Park, those on probation attend weekly court-ordered sex therapy sessions. He also offers anger-management classes and sessions on relationships, inner healing and life skills.
Witherow has authored a book about sex offenders called The Modern Day Leper. He says he could have worn the same label as the men at Miracle Park. He was 18 years old when he met his first wife. She was just 14, and before long she was pregnant. A judge allowed them to get married but told Witherow he could have been charged with statutory rape.
"If that would have happened in today's society, I would have been charged with sexual battery on a minor, been given anywhere from 10 to 25 years in prison, plus extended probation time after that, and then been labeled a sex offender," he says. Witherow knows that there are those who argue that's what should have happened.
Sixth Circuit judges duel over Ohio defendant's old lethal injection challenge
This afternoon, the Sixth Circuit officially denied en banc review of a panel's ruling that Kenneth Biros challenge to Ohio's old three-drug lethal injection execution protocol is moot. That order is available here, and it is worth downloading because of concurring and dissenting opinions coming from Judge Sutton and Moore.
Perhaps not surprisingly, the concurring opinion from Judge Sutton suggests that Ohio's adoption of a new one-drug lethal injection protocol largely solves the asserted constitutional problems with Ohio's execution method. Judge Moore's dissent from denial of en banc review takes issue with much of what gets said by Judge Sutton, and she ends her dissent with this assertion: "The rush to execution in this case is totally unwarranted, and the panel’s justification is unsupportable."
Technically, none of this resolves Kenneth Biros' separate challenge to Ohio's new one-drug protocol, and I believe that challenge and a request for a stay is still before the district court. Nevertheless, this new ruling confirms my sense that the majority of the Sixth Circuit is prepared and perhaps eager to allow Ohio to go forward next week with its new one-drug execution protocol.
UPDATE: Another dissent by Judge Martin in this matter has now come down the pike and is available here at the very end of the order. These concluding sentences capture this dissent's basic spirit:
The merits of Ohio’s new protocol are certainly not before us — indeed, that is the fundamental basis for the panel’s decision that Biros’s claims based on the prior protocol are moot — but they inevitably will be, and the concurrence offers a sneak peek on the way that at least two of my colleagues view those merits. On the whole, I would rather that we all went home today having only made a hash of our mootness jurisprudence rather than having made a hash of our mootness jurisprudence and offering up views on an issue that is not currently, but soon will be, before us.
Interesting take on SCOTUS Porter and Van Hook rulings and "selective empathy"The New York Times' "Opinionator" blog today has this fascinating piece by Linda Greenhouse titled "Selective Empathy." Here is how it starts and ends:
In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents. But it also raised a question: Is selective empathy better than no empathy at all?...
Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.
I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.
Distinct headlines report on 50th execution in United States in 2009
Texas completed late yesterday the 50th execution in the US in 2009, and this morning's news headlines reveal the different ways in which local and international media describe this event:
- From the local AP here, "Texas executes killer of 11-year-old girl"
- From The Gaurdian in the UK here, "Texas executes man at centre of mental disability row"
- From the Sydney Morning News in Australia here, "Texas executes low-IQ convicted killer"
Repeat offender gets state sentence of 100 years for possessing child porn and potWhile closely following the debates and disparities in federal sentences for downloading child porn, I keep thinking and wondering about whether and how these offenses are being prosecuted and sentenced in state court. Thus this local article, headlined "Slidell man sentenced to 100 years in prison for possessing child porn," concerning a Louisiana sentencing caught my attention this morning. Here are the details:
A 43-year-old Slidell man on Thursday received 100 years in prison for possessing child pornography and about a pound of marijuana. State Judge William "Rusty" Knight sentenced Andrew Galatas under stiffer sentencing guidelines after Knight determined that St. Tammany Parish Assistant District Attorney Scott Gardner had sucessfully labeled Galatas a habitual offender.
None of the images was of local children and Galatas had not taken any of them himself, only downloaded them off the Web, authorities said. A 12-member St. Tammany jury had found him guilty on Nov. 10 as charged of the two possession charges.
Although pornography involving juveniles carries a maximum term of 10 years in prison, Galatas has other felony convictions on his record so could be considered a habitual offender. He has molestation of a juvenile and a sexual battery charges from 1997, a possession of stolen property over $500 charge in 1996 and an issuing worthless checks over $100 charge from 1995.
December 3, 2009
Biros seeking federal stay to prevent Ohio's use of new one-drug lethal injection protocolAs detailed in this new AP report,which is headlined "Ohio dismemberment killer files new delay request," Kenneth Biros has now "asked a federal judge for an emergency order to stop next week's planned execution, arguing the state is rushing too fast to use its new, one-drug lethal injection process." Here are the basics:
Kenneth Biros asked U.S. District Court Judge Gregory Frost for the delay in a filing Thursday. The 51-year-old Biros says the untested method announced last month could jeopardize his right to an execution that does not constitute cruel and unusual punishment. He has also challenged the one-drug method in federal court and also asked a federal appeals court in Cincinnati to delay Tuesday's execution.
The state opposes any delay, and Gov. Ted Strickland on Thursday denied Biros' request for clemency.
Some related posts on Ohio lethal injection issues:
- Ohio considering new (and novel) method of lethal injection
- "Ohio GOP lawmakers: Execution process can be fixed"
- Ohio adopting a new one-drug lethal injection protocol
- How quickly will Ohio be able to get back to executions after adopting one-drug lethal injection protocol?
- Ohio death row defendant claiming new lethal injection protocol involves "human experimentation"
- Ohio news about execution efforts past and execution efforts future
- Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?
Mike Huckabee continues to defend his clemency actions
As detailed in this new CNN piece, Mike Huckabee continues to aggressively defend his clemency decision-making in the Clemmons case despite the aggressive attacks in the wake of Clemmons horrible crimes last week. Here is one notable quote from Huckabee after a reporter got in his face about the decision:
"I read a stack this thick," Huckabee said, holding his hands several inches apart. "I looked at the file. Every bit of it. And here was a case where a guy had been given 108 years. Now, if you think a 108-year sentence is an appropriate sentence for a 16-year-old for the crimes he committed, then you should run for governor of Arkansas."
In addition, as reported here on Politico, in an interview on The View, Huckabee has essentially called out chief executives who fail to ever grant clemency and has rightfully invoked the Framers in support of his pro-clemency instincts:
“The easy thing to do, and frankly the politically expedient thing to do, is to say no to every last one of them. That’s the easy thing. And you’ll always cover your rear end if you do that. Because nobody will ever say, ‘Oh you should have let these people out.’
“But the reason we have executive clemency in our system of justice is because there are sentences that are disproportionate, there are times when the justice system failed. And our Founding Fathers were smart enough to create checks and balances, so that no one branch of government was able to act independently of the other two."
You go, Mike! It is great to hear Huckabee stick to his principles in discussing clemency even in the wake of the Clemmons tragedy. (Now I am just disappointed that the person who won the presidency in 2008 is not as vocal and passionate about these matters as this person who failed in his run for the presidency.)
Some recent related posts:
- How will Mike Huckabee clemency grant to suspected cop killer impact crime and justice debates?
- More details on the Huckabee clemency grant that aided suspected cop killer
- Mike Huckabee brings up race and class when defending clemency for Clemmons
- Might poor re-entry services and risk assessment tools be most to blame for the Clemmons tragedy?
- The true sentencing turkeys on this Thanksgiving eve
- Justified complaints that Obama's first pardon will be of a turkey
- Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
Deputy AG David Ogden announces resignation
Though I am not sure this is huge news or a huge surprise, criminal justice fans should take note of the fact that, as reported here at The BLT, the "U.S. Justice Department announced this morning that its No. 2 official, Deputy Attorney General David Ogden, is leaving in February after 11 months on the job." (The official DOJ release is available here.)
Traditionally, the person serving as Deputy AG has chief responsibility for federal criminal justice matters, though AG Holder's previous criminal justice experience entailed a somewhat modified role for Ogden. It will be interesting to see if Ogden's replacement is someone with a criminal or civil law background, especially since we are still awaiting any official word concerning the sentencing self-study that has been going on within DOJ for nearly a year now.
Poll finds that one-third of all youths may be involved in
This new Wired story, which is headlined "Survey: One-Third of Youths Engage in Sexting," provides the basis for my post title. Here are the details:
child porn . . . er, sexting
If you think the sexting phenomenon is growing, you’re not imagining it. According to a new survey, almost one-third of youths admit they’ve engaged in sexting-related activities that involved either e-mailing a photo or video of themselves in the nude or being the recipient of such images.
Of those who admitted to distributing suggestive images of themselves, about 61 percent report that they were pressured by someone to send the image. Girls were more likely to share a naked image of themselves than boys. Those who are already sexually active were much more likely to send an image than those who were not sexually active.
Most of the respondents sent the image to a significant other or a person of romantic interest to them. But 29 percent said they shared naked images of themselves with someone they knew only online.
These are some of the findings of a survey conducted by MTV and the Associated Press as part of a new multi-year campaign the youth-oriented television network launched on Thursday with numerous partners. The aim of the campaign, dubbed “A Thin Line,” is to educate teens and college-age students about safe and appropriate digital behavior. The campaign will include a half-hour MTV news special to be broadcast next Valentine’s Day that will focus on sexting as well as a series of public service announcements addressing sexting, harassment, digital prejudice and other topics.
The age group surveyed by MTV and the AP ranged from 14 to 24, so much of the "sexting" discussed in this new survey (which is available here) may not technically qualify as child porn. But, as is documented in prior posts linked below, in various setting, sexting by teenagers sometimes has generated talk of child porn prosecutions.
Some related "sexting" posts:
- The many fascinating legal and social issues swirling around "sexting"
- Federal district judge enjoins controversial state sexting prosecution
- Ohio ACLU writes to local lawmakers and prosecutors about sexting
- "Ohio judge sentences 2 teens for sexting"
- Some of the latest "sexting" news and notes
- Vermont legislature considering "sexting exception" to child porn prohibitions
- Pennsylvania town struggling with a "rash of sexting incidents"
Ninth Circuit clarifies limit on restitution award in illegal prostitution caseAn interesting little opinion today from the Ninth Circuit in US v. Kuo, No. 08-10314 (9th Cir. Dec. 3, 3009) (available here), documents a limit (and perhaps an unfortunate one) on a federal restitution sentence. Here is how the opinion starts and a key paragraph:
Defendants Fu Sheng Kuo and Shengji Wang appeal the imposition of restitution following their pleas of guilty to violating 18 U.S.C. § 241, Conspiracy to Violate Civil Rights. Defendants “knowingly and willfully conspired to injure, oppress, threaten, and intimidate [Chinese women] recruited for and engaged in prostitution, in the Territory of American Samoa.” As we explain below, restitution for “lost income,” 18 U.S.C. § 3663, is not the same as disgorgement of all of Defendants’ ill-gotten gains from the victims’ forced prostitution. Accordingly, we must vacate the restitution order and remand for further proceedings....
We understand the district court’s desire to make Defendants disgorge everything that they gained by cruelly exploiting these victims. But restitution for a violation of § 241 is limited by the provisions of § 3663; other means (such as fines) are available to accomplish disgorgement. The victims also may choose to sue Defendants civilly for damages, including but not limited to damages to help compensate them for their extreme pain and suffering. With regard to restitution, however, the court and the victims are bound to the government’s choice to pursue a civil rights prosecution rather than a human-trafficking prosecution.
"No Decrease In Death Penalty Approval Rate"The title of this post is the headline of this notable new NPR piece discussing the absence of significant change in the handling of the federal death penalty under the new Obama Administration. Here are excerpts:
During the Bush administration, opponents of capital punishment criticized the Justice Department for bringing federal death penalty cases too often and in states that have outlawed execution as a form of punishment.
With Attorney General Eric Holder running the department, many people expected to see a more limited use of the tactic. But so far, Holder is instructing prosecutors to seek the death penalty at roughly the same rate as President Bush's last attorney general.... Holder has authorized death penalty prosecutions at a pace comparable to that of his immediate predecessor, according to the Federal Death Penalty Resource Center. The center helps defense lawyers in capital cases, and it also tracks how often an attorney general authorizes prosecutors to seek the death penalty.
According to the Federal Death Penalty Resource Center, President Bush's first attorney general, John Ashcroft, greenlighted 139 federal death penalty prosecutions out of 641 cases that might have been eligible for capital punishment. That's a 22 percent approval rate. Ashcroft's successor, Alberto Gonzales, authorized prosecutors to seek the death penalty in 81 out of 423 possible cases, for a 19 percent approval rate.
Michael Mukasey approved 21 out of 159 cases, so his approval rate was 13 percent. Holder's approval rate is almost identical to Mukasey's. As of Oct. 3, capital defense lawyers say, Holder had authorized prosecutors to seek the death penalty in 7 cases out of 61 that might have been eligible for capital punishment. That's an 11 percent approval rate.
If you include the five alleged Sept. 11 conspirators headed to New York from Guantanamo for a federal death penalty trial, the rate climbs higher. And Thanksgiving week, Holder instructed prosecutors to seek the death penalty in another four cases....
There is also a question of local standards in death penalty enforcement. Many states have outlawed the death penalty, but even in those states, federal prosecutors can still bring capital charges....
Ashcroft brought federal death penalty cases in states that have outlawed capital punishment. When asked for his view on bringing federal death penalty cases in states that have outlawed capital punishment, Holder said, "I wouldn't say that there's a policy where we're doing it on a state-by-state basis. It really is a case-by-case basis."
Spotlighting that the Clemmons case could make clemencies even rarerThis new CNN piece, which is headlined "Seattle shootings may reduce pardons and commutations," discusses the likely impact of the the controversy over Mike Huckabee's clemency grant to cop killer Maurice Clemmons. Here are snippets:
The ambush-style shootings of four police officers in Seattle allegedly by a suspect whose prison sentence had been commuted likely will affect the way states approach clemency, according to professors, criminologists and attorneys. "For many governors, the quick response is, 'Huckabee is getting all this attention, so this is the last place I want to be'," said Marc Mauer, executive director of the Sentencing Project, a Washington-based research group that studies sentencing trends. "They are going to be much more reluctant."...
Clemency, the ability to mitigate a sentence, is a power held by the executive branch. The practice provides presidents and governors a final check on the judicial system. They can grant pardons, removing both punishment and guilt. Or they can commute sentences, reducing the time served but leaving the charges intact. Commutations are often granted to sick inmates or prisoners demonstrating good behavior....
After the 1980s, clemency became a target of the tough-on-crime movement, criminologists say. They say it resulted in a decline in pardons and commutations -- a contrast from earlier in the century when some governors were applauded for commuting hundreds of sentences during the Christmas holiday. "Politically, it's just too risky today to use your discretion to reduce someone's punishment, especially in commutation," said Jefferson Holcomb, a professor of government studies at Appalachian State University.
According to criminologists, one of the most infamous cases that steered some governors and presidents away from issuing commutations involved Willie Horton, a Massachusetts inmate who raped a woman after being released in a weekend furlough program supported by then-Gov. Michael Dukakis. In 1988, the Republican Party used Horton in ads opposing Dukakis, who was then the Democratic presidential nominee. Political scientists believe the perception that Dukakis was lenient on crime helped undermine his election bid.
In some media outlets -- online and on television -- Clemmons has been dubbed "Huckabee's Willie Horton," raising questions on how the Seattle shootings will affect Huckabee if he decides to run for president in 2012.
The Horton incident also resulted in policy changes in the corrections industry. Herbert Hoelter, co-founder of National Center on Institutions and Alternatives, a group that helps file petitions for clemencies, says furlough programs became unpopular after the Horton incident, even though studies have shown they can be effective in helping prisoners re-integrate into society. "Furloughs used to be popular, but trying to get a furlough now is like trying to avoid a root canal," Hoelter said. "It just doesn't happen."
As the prison population continues to grow, some advocacy organizations and experts argue appropriate clemencies can help manage overcrowding. But experts say the high-profile nature of the Seattle shootings will likely be a setback, just as the Horton case was a generation ago.
At the federal level, the Department of Justice's Office of Pardon Attorney shows a decline in federal clemencies. Experts say presidents and governors usually wait until the end of their terms to grant them because of potential controversy. "The incentive is not to do it if you want a political future," said Matthew Eshbaugh-Soha, assistant professor of political science at the University of North Texas.
Victim advocacy groups often criticize lawmakers and push for harsher sentences when a parolee commits a crime or when a clemency goes awry. David Davis, executive director at the Advocacy Center for Crime Victims and Children, says when sentences are shortened, some victims and communities fear the person will commit another offense.
"The Clemmons case underscores the importance of using risk assessment tools to inform release decisions at every point in the system from bail to clemency," said Margaret Love, a U.S. pardon attorney under George Bush and Bill Clinton.
December 2, 2009
New federal sentencing data from the US Sentencing CommissionI am pleased to discover that the US Sentencing Commission has some fresh new sentencing data now up on its website. Here are links to the new data runs, with descriptions from the USSC's website:
Fourth Quarter FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the fourth quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 2, 2009)
Data on Retroactive Application of the Crack Cocaine Amendment: A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data in this report represents those motions decided by the courts through November 10, 2009 and for which data was received, coded, and edited by the Commission as of November 17, 2009.
I hope to find the time and energy before too long to pour through this new data and report on anything special that catches my eye. Readers are welcomed and encouraged, of course, to use the comments to the same end.
A few Justices discussing time on death row again
As noted in this effective post at SCOTUSblog by Lyle Denniston, a few Justices took the time to discuss the time that Cecil Johnson spent on death row before he was executed early Wednesday in Tennessee. Here are the highlights of Lyle's effective reporting:
“This case deserves our full attention,” wrote Justice John Paul Stevens in an opinion joined by Justice Stephen G. Breyer as the full Court refused to hear a final plea on Johnson’s behalf. The Stevens opinion added that “this is as compelling a case as I have encountered for addressing the constitutional concerns” over holding an inmate for many years, awaiting execution....
Whatever the intensity of the verbal debate over the issue, it is clear that there are not four Justices on the Court who are ready to hear it. None of the other Justices has weighed in on the question.
The last sentence in this SCOTUSblog report is perhaps what's most noteworthy here, especially the fact that new Justice Sotomayor (as well as still sort-of-new CJ Roberts and Justice Alito) did not feel compelled to join on to either opinion.
Ninth Circuit rejects "en masse" plea process for illegal entry cases in ArizonaA Ninth Circuit panel today handed down an interesting ruling that seem to have the potential to upset a whole lot of federal criminal convictions in at least one district. The ruling comes in US v. Roblero-Solis, No. 08-10396 (9th Cir. Dec. 2, 2009) (available here), and here is how the opinion starts:
To accommodate the enormous number of prosecutions for illegal entry into the United States, the district court for the District of Arizona (Tucson) has adopted a procedure for the taking of pleas en masse intended to preserve the rudiments of Fed. R. Crim. P. 11 and the constitution. We were informed by the government in this case that one magistrate judge is assigned each week full time to the handling of these cases and that in twelve months’ time the court has handled 25,000. The procedure has been in practice for at least two years and is apparently followed in several other federal courts whose districts border on Mexico.
The problem generated by the massive caseload on the court understandably led the court to adopt a shortcut. Abstractly considered, the shortcut is not only understandable but reasonable. The shortcut, however, does not comply with Rule 11. We cannot permit this rule to be disregarded in the name of efficiency nor to be violated because it is too demanding for a district court to observe. We act within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure. Accordingly, on this challenge by an intrepid federal public defender to the Tucson court’s taking of pleas en masse, we hold the procedure to be contrary to Rule 11. We then assess the harm to the substantial rights of the six defendants before us on this appeal.
Latest news on Cameron Todd Willingham case and debate over his guilt
This new AP story provides the latest news on the Texas case which may provide an example of an innocent person who was executed. Here is how it begins:
David Martin is sickened by the suggestion that Texas executed an innocent man when Cameron Todd Willingham was put to death for setting a fire that killed his three children.
The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die. "I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies," Martin said. "I think that he was guilty, that he deserved death and that he got death."
The 2004 execution, however, didn't end questions about the case. Fire investigator experts hired first by The Innocence Project and later by the Texas Forensic Science Commission concluded the original finding of arson was seriously flawed. Without that finding, prosecutors have admitted it would have been hard to win a death sentence against Willingham.
But the reports have done nothing to change the minds of Martin and four jurors reached by The Associated Press in recent weeks, who all remain convinced Willingham set the blaze 18 years ago that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron. They never heard from Willingham, who declined to take the stand in his own defense.
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
- "Willingham juror no longer sure of his guilt in Texas case"
Might poor re-entry services and risk assessment tools be most to blame for the Clemmons tragedy?
It is not surprising that we all want to place blame somewhere for the horrific and tragic murderous acts by cop-killer Maurice Clemmons. And, as we have seen this week, plenty of folks are willing (and sometimes eager) to allocate blame in all sorts of direction. But the more I think about this case and hear details about Mike Huckabee's 2000 clemency decision, the more I want to be sure some blame gets directed toward the poor state of modern re-entry services and the inadequate use of sophisticated risk assessment tools.
This potent local articleabout Clemmons, which is headlined "Four days in May set stage for Sunday's tragedy," highlights the basic facts behind this part of the blame story. It begins this way:
Over four days in May, Maurice Clemmons' behavior and mental state deteriorated. Family members worried he had gone crazy, that he was verging on collapse. His conduct became so erratic — punching a sheriff's deputy, forcing relatives to strip naked, according to police reports — that authorities eventually charged him with eight felonies, including one count of child rape.
Still, at the end of those four days, Clemmons wound up on the loose — a delusional man with a propensity for violence, who had managed to escape the grip of authorities. What happened in those four days — and in the months that followed — reflects a system governed by formula and misguided incentives.
That legal system, both in Arkansas and Washington, failed to account for the entirety of Clemmons' violence and his disdain for the law. Individual crimes, viewed in isolation, trumped a long and disturbing pattern of warning signs. As a result, Clemmons walked out of jail Nov. 23. A week later, he was on the run again — this time accused of shooting and killing four Lakewood police officers in a Parkland coffee shop, in one of the most horrific crimes in Puget Sound history.
These realities reinforce my view that states and the federal government still needs to do a much better job with criminal justice resources and technology in a continuous effort to sort out and monitor which past offenders present the greatest risk to public safety (and which ones do not). Though we will never be perfect at figuring out who is most dangerous, we can and should do much better and we should respond to this tragedy by making a concerted effort to do better.
Against this backdrop, I think we also should not be too quick to lay blame principally on Huckabee for what seems to have been an understandable clemency call back in 2000. We should instead ask hard questions about whether improved re-entry services and risk-assessment tools could have helped ensure that releasing Clemmons back in 2000 still did not necessarily mean he would later have had a chance to commit his final horrific crimes.
Some recent related posts:
- How will Mike Huckabee clemency grant to suspected cop killer impact crime and justice debates?
- More details on the Huckabee clemency grant that aided suspected cop killer
- Mike Huckabee brings up race and class when defending clemency for Clemmons
Execution of possibly mentally retarded defendant in Texas could be 50th execution of 2009
As death penalty gurus know, the last decade has seen a pretty steep decline in the number of executions each year (data here from DPIC); we have gone from a modern high of 98 executions nationwide in 1999 to only 43 executions nationwide in 2008. But this trend is now shifting direction: with Tennessee having executed Cecil Jonson early this morning (details here), Texas is now in line to make the execution of Bobby Wayne Woods tomorrow the 50th execution of 2009. Interestingly, as well covered at StandDown Texas, there are reasons to worry that Woods may be mentally retarded and thus should be constitutionally protected from being executed based on the Supreme Court's Atkins ruling.
Though many commentors rightly assert that total national execution numbers are influenced my many factors, it remains notable and noteworthy that we are seeing this uptick in total executions during the first year of a Democratic administration in the White House. As I have noted in prior posts (see here and here), total executions ramped up significantly during the Clinton Administration, the nation averaged more than 85 executions each year during his second term. In contrast, total executions went down significantly during the Bush Administration, and the nation has averaged less than 50 executions each year during his the second term.
I will not make firm predictions concerning what all these numbers and current trends might mean as we move deeper into a new Administration, but I am sure that one could use this data to surprise folks in a death penalty trivia contest.
Orin Kerr gamely (and finally) admits that blogs can be legal scholarship
Way back in 2006, I had the joy of participating in an exciting conference at Harvard Law School entitled "Bloggership: How Blogs Are Transforming Legal Scholarship." The papers for the conference, which were all absolutely fascinating, can still be accessed here. In my contribution, which was titled "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs," I made the argument that blogs can be a new and useful form of legal scholarship. But Orin Kerr was part of a group of "traditionalists" who contended that, though valuable for other purposes, blogs were not (and should not be seen as) a form of legal scholarship.
I remind everyone of this history of blogs as scholarship debate as a prelude to linking to Orin's new post here titled "Rethinking Blogging-as-Scholarship." Here is part of Orin's game admission of a (partial?) change of heart:
Fast forward to the present, and I now think my old self was wrong. Or at least a bit off. I now think blogging actually does provide an effective way to present new scholarly ideas in many cases. In this post, I want to explain why my view has changed.
The main reason my view has changed is that I think the legal academic culture has changed. In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship. Exactly why is open to debate. It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles. Perhaps the new online journal supplements have blurred the traditional paper-vs-on-line distinction. Whatever the reason, there seems to be more of a convergence between scholarly blogging and “traditional” law review articles today than existed 4 or 5 years ago. That convergence encourages more scholarly blogging and recognizes its value.
Citations in the Westlaw JLR database are an imperfect metric, but they tend to confirm the change. Consider the number of times that the phrase “Volokh Conspiracy” and/or “volokh.com” appeared in the database. (Usually, although not always, these phrases reflect a citation to a particular post appearing in a law journal.) In 2005, the phrases appeared 24 times in the JLR database. The year 2009 isn’t over yet, with roughly 20–30% of issues schedule for a 2009 publication not yet out and on Westlaw. Still, the phrases have appeared 108 times so far in the JLR database. That’s a lot of cites. Out of curiosity, I did a quick check of my own citations — vain, sure, but at least to an interesting end — and I would estimate that about 25% of the citations to my own work in the last year have been to my blog posts rather than traditional journal articles.
In short, I think we’re seeing a shift in how law professors and legal journal editors view blogs. The old lines have blurred. Blogs have become a significant part of the scholarly conversation. I didn’t expect this to happen, at least so soon. And I don’t know whether the trend will continue. But I think the trend is a real one.
The commentors to Orin's post usefully note that it seems what has really changed is how blogs are perceived as much as whether this medium of expression has changed. Thus, I will stick to my view that thoughtful blogs always were (or could be) a form of scholarship, just like any other form of communication can be a form of scholarship if deployed effectively to that end.
Though I share Orin's sense that the perception of blogs have evolved in recent years, I have been largely disappointed that blog technology has not advanced much to better enable blogging to serve as a truly sophisticated and effective academic medium. In my "Scholarship in Action" article, I urged the development of new forms of on-line collaboration like wikis and other means to further improve on-line legal idea development, but such technologies have been slow to take hold. Instead, society has been drawn to short-attention-span on-line media like Facebook and Twitter, neither of which seem capable of supporting the thoughtful and in-depth development of ideas that are often an essential aspect of true scholarship.