February 18, 2009
More back-story on President Bush's resistance to concluding clemencies
The New York Times has this new story with more on Dick Cheney major (failed) final push to get President Bush to pardon Scooter Libby (basics here). Among the notable aspects of this Times coverage are indications that President Bush was "frustrated by a deluge of last-minute pardon requests from other quarters." Here is some of this reporting:
Two former White House officials familiar with the thinking of both men said that Mr. Bush had been generally overwhelmed and surprised by the last-minute lobbying for pardons, but that he had believed he owed it to Mr. Cheney to listen to him as he made one last case for Mr. Libby over the course of several long discussions.
Sharing details of the private talks on the condition of anonymity, the former officials said Mr. Bush had not been comfortable going further than his initial commutation of Mr. Libby’s prison sentence in 2007....
Former White House officials said that Mr. Bush had seriously weighed Mr. Cheney’s arguments but that it was always a long shot that Mr. Bush would pardon Mr. Libby. He was well known to avoid revisiting decisions, and did not grant pardons easily. “He was very stingy with pardons,” said Andrew H. Card Jr., his former chief of staff.
Kenneth L. Adelman, another Bush supporter turned critic who has called for a pardon for Mr. Libby, said he believed “Bush got it in his head that he did not want to leave office like Clinton did,” a reference to the disputed pardons that President Bill Clinton issued in his final hours.
February 17, 2009
"How Prosecutor Elections Fail Us"
The title of this post is the title of this new piece on SSRN from Professor Ron Wright. I heard Ron present this work at an early stage, and it mines so many interesting and important issues from fresh perspectives. Here is the abstract:
There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.
Does the electoral check on prosecutors work? There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent. The conditions, in some ways, are promising.
Yet the empirical reality of prosecutor elections is not so encouraging. A national sample of over 2000 outcomes in prosecutor elections-described here for the first time-reveals that incumbents do not lose often. The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections. Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.
Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections. Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.
Border agents, whose sentences were commuted by President Bush, released from prison
CNN provide this update on the latest development in an oft-blogged case involving two former federal border agents. Here are the basics:
Two former U.S. Border Patrol agents -- whose cases became flashpoints in the controversy over border security -- were released early from prison Tuesday, one of their attorneys and a congressman said. The agents were convicted in 2006 of shooting and wounding an unarmed illegal immigrant and then covering it up.
President George W. Bush issued commutations for both men during his final days in office last month. Ignacio Ramos and Jose Compean had received 11- and 12-year prison sentences, respectively.
Some prior posts about the Border Agents case and the clemency grant by President Bush:
Looking at the interaction of religious appeals and capital sentencing
Just yesterday I noted here the frequent intersection of religion and the death penalty, and last month I noted in this posta new cert petition concerning issues raised by juror consideration of biblical passages during the penalty phase of a capital trial. Readers engaged by these stories should check out this new short piece recently appearing on SSRN, titled "Book Review: Religion in Criminal Justice by Monica K. Miller." This review is authored by Geraldine Szott Moohr and Roger Sherman, and here is the abstract:
Do appeals to religious values during closing arguments of capital cases influence juror's decisions to impose the death penalty? Based on experiments with mock jurors, Monica K. Miller is willing to conclude that religious appeals do not interfere with jurors' sentencing decisions. But the religious appeals she presents to mock jurors are based on weak written summaries of cases rather than, say, dramatic presentations, so their failure will not support a general conclusion about the effect of religious appeals. More accurately, her studies show that religious appeals — as represented in written summaries — do not interfere with juror's sentencing decisions in death penalty cases. Miller's work provides preliminary results, and the main question about effects of appeals to religious values remains unanswered.
Seventh Circuit approves teaching felons a lesson about where they keep illegal firearms
The Seventh Circuit returns from a long weekend with three published sentencing opinions, and the most intriguing of the bunch is US v. Wise, No. 08-2794 (7th Cir. Feb. 17, 2009) (available here). Here is how the opinion starts:
It is an event almost too painful to recount: a four-year-old discharged a gun he found lying around the house, killing his two-year-old cousin. The inaptly named Anthony Wise is the person who left the loaded gun on a window ledge behind a computer. As it turns out, Wise was even extra unwise because he was a convicted felon who could not legally possess a gun. As a result of all this, Wise was charged and convicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced because the judge found that he had also violated an Illinois statute prohibiting child endangerment. Wise was sentenced above the guideline range to a term of 120 months in prison. He contends the enhancement was improper and that the sentence is unreasonable.
In light of this opening paragraph, few will be surprised to learn the word that ends the opinion: "AFFIRMED." A justification given by the sentencing judge for the statutory maximum sentence was that anything less "would not send the right signal in terms of deterrence," and the Seventh Circuit panel in turn decides it "cannot say there was an abuse of discretion."
Is career diversity a bad thing in the highest court in the land?
Adam Liptak has this great piece in today's New York Times, headlined " "Roberts Sets Off Debate on Judicial Experience." Here are snippets:
For the first time in its history, every member of the United States Supreme Court is a former federal appeals court judge. Chief Justice John G. Roberts Jr., in a lively and surprising talk a couple of weeks ago, said that development might be a good thing.
Over the life of the Supreme Court, its members were quite likely to be former governors, legislators, cabinet members, law professors and practicing lawyers. That mix of backgrounds and expertise might strike some as valuable, but the chief justice suggested that it tended to inject policy and politics into an area properly reserved for the law.
As late as 1972, when Chief Justice Roberts’s predecessor, William H. Rehnquist, joined the court as an associate justice, former federal judges were in the minority. As a consequence, Chief Justice Roberts said, “the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.”
Since then, Chief Justice Roberts continued, “the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?” That move, he said, has resulted in “a more legal perspective and less of a policy perspective.”...
But there are reasons to question the chief justice’s conclusions. The political scientists who study such things say there is no empirical support for the notion that former judges are more apt to feel constrained by earlier rulings or to suppress their political views. “Former appellate court judges are no more likely to follow precedent or to put aside their policy preferences than are justices lacking judicial experience,” according to a study to be published soon in the University of Pennsylvania Law Review.
If Chief Justice Roberts was implying that the court became less political as the number of former judges on it rose, said Lee Epstein, who teaches law and political science at Northwestern and is one of the authors of the study, “the data don’t support it.”
And not everyone supports the idea that members of the court should have uniform backgrounds. The psychological literature demonstrates that “the more homogenous the group, the worse the quality of the decisions they make,” said Tracey E. George, a law professor at Vanderbilt and the author of a law review article about the consequences of promoting former judges to the Supreme Court....
Chief Justice Roberts did say that the current justices’ limited trial court experience was “an unfortunate circumstance” and “a flaw.” Chief Justice Rehnquist tried to remedy that by once appointing himself to the trial bench in Virginia during a Supreme Court recess. “He heard a case and issued the opinion,” Chief Justice Roberts recalled, “and was promptly reversed by the Fourth Circuit.” He added, “Partly because of that, I can assure you that I am not going to appoint myself to the trial bench.”
As regular readers know, I have long complained about the absence of judges with trial court experience on the Supreme Court and I am a fan of a much more diverse SCOTUS bench. Though I am not fully sold on Professor Adrian Vermeule argument in this article argues that the Surpeme Court should have at least one "lay Justice," I am suspect of the Chief's essential assertion that more Justices should be like him (and I am also disappointed by his unwillignness to experience the unique challenges faced by trial judges).
Some related old and new posts on judicial appointments:
Death penalty abolition becoming more realistic in a few western states
Though 2009 has already brought a large number of executions, it also has brought a lot more serious talk of the elimination of the death penalty in various states. Today's abolition headlines come from states out west:
- From Montana, this local report details that after "a 90-minute, emotionally charged debate, the Republican-controlled state Senate [on Monday] endorsed a bill to abolish the death penalty in Montana."
- Fron New Mexico, this AP story reports that "Gov. Bill Richardson said Monday he has softened his stance on the death penalty and may sign a repeal bill if it reaches his desk."
Even VP Cheney couldn't convince President Bush to grant one more pardon
The New York Daily News has this notable new piece reporting that Dick Cheney made a major (but still failed) final push to get President Bush to pardon Scooter Libby. Here are some of the details:
In the waning days of the Bush administration, Vice President Dick Cheney launched a last-ditch campaign to persuade his boss to pardon Lewis (Scooter) Libby — and was furious when President George W. Bush wouldn't budge.
Sources close to Cheney told the Daily News the former vice president repeatedly pressed Bush to pardon Libby, arguing his ex-chief of staff and longtime alter ego deserved a full exoneration — even though Bush had already kept Libby out of jail by commuting his 30-month prison sentence. "He tried to make it happen right up until the very end," one Cheney associate said.
In multiple conversations, both in person and over the telephone, Cheney tried to get Bush to change his mind.... Several sources confirmed Cheney refused to take no for an answer. "He went to the mat and came back and back and back at Bush," a Cheney defender said. "He was still trying the day before Obama was sworn in."
After repeatedly telling Cheney his mind was made up, Bush became so exasperated with Cheney's persistence he told aides he didn't want to discuss the matter any further. The unsuccessful full-court press left Cheney bitter. "He's furious with Bush," a Cheney source told The News....
In July 2007, at Cheney's urging, Bush commuted Libby's 30-month prison sentence. But he also said, "I respect the jury's verdict" and noted that his decision "leaves in place a harsh punishment" for the man often described as "Cheney's Cheney." Libby was fined $250,000, and as a convicted felon, he has been disbarred from practicing law and cannot vote.
February 16, 2009
Notable briefing on fast-track disparity issue after Kimbrough
As I noted in this recent post, one (of many) persistent post-Booker jurisprudence hot-spots concerns whether defendants who are not within so-called "fast-track" districts should be eligible for comparable early-plea sentencing reductions when their cases are factually similar to those who get the benefit of such reductions in "fast-track" districts. A helpful reader has recently sent along two notable briefs that talk through this important issue with lots of sophistication and also provide lots of original information and documents concerning "fast-track" practices.
The first document is an effective amicus brief, which can be downloaded below, that has recently been filed in the Seventh Circuit on these issues. Here is the first paragraph of that brief:
The Supreme Court’s decision in Kimbroughgives sentencing courts discretion to correct for unwarranted disparities created by the Department of Justice’s (DOJ) selective use of fast-track plea bargaining in illegal reentry cases, whether implemented through U.S.S.G. § 5K3.1 or charge bargaining, for three reasons: (1) the disparities that result from U.S.S.G. § 5K3.1 are not mandated by Congress; (2) the Sentencing Commission did not act in its characteristic institutional role when promulgating § 5K3.1; and (3) Congress certainly never “warranted” the disparities created by charge-bargaining fast-track programs.
The second document is an effective cert petition, which can be downloaded below, that documents all the different ways these issues have been unpacked in the lower courts. Here is the first paragraph of the statement of the case from the cert petition:
This case raises an important question over which Circuit Courts of Appeals are split: whether a district court has sentencing discretion to consider punishment disparities among defendants guilty of similar conduct and with similar criminal histories, when the disparities are caused by the Government’s “early-disposition” or “fast-track” policy designed to serve the Government’s purported administrative interest, but are applied sporadically in only a small minority of districts around the country.
Making a plea to the faithful in an attempt to end the death penalty
Perhaps some First Amendment scholars can help me figure out whether I should have constitutional concerns about this new AP story from Maryland, headlined "O'Malley asks churches to help end death penalty." Here is how the article starts:
Gov. Martin O'Malley said today his effort to get the votes to repeal capital punishment in Maryland "is not done," and he asked the religious community to help by petitioning lawmakers facing a difficult decision. "I need your help. I really and truly do on this death penalty legislation," O'Malley told about 300 people attending the African Methodist Episcopal Church Legislative Day. "It is not done."
The governor also urged repeal supporters not to take any votes for granted on the issue. "I need your help writing letters. I need your help persuading. I need your help even talking to delegates and senators that you may think are probably already with us," O'Malley said. "You never really know."
I am not an expert on church-state issues, and (as detailed in lots of prior posts) there has long been a lot of interesting intersection of capital punishment issues and religious issues. But something just feels a little hinky about a sitting Governor making a full-throated appeal to church members to actively campaign to support his latest legislative initiative.
Some recent posts about the death debate in Maryland:
- Maryland commission urges abolition of state's death penalty
- As goes Maryland, so goes the nation on capital punishment?
- Dueling editorials about the death penalty debate in Maryland
- Gov pledges to do "everything" to abolish capital punishment in Maryland
Some related posts on religion, politics and the death penalty:
- Senator Brownback questions death penalty and culture of life
- Debating religion and the death penalty
- New DPIC page on religion and the death penalty
- New resource examining religion and the death penalty
- Remarkable circuit judge speech on capital punishment at mass
- Sister Prejean's powerful perspective
- "Religion and the Death Penalty: Can't have one without the other?"
Michael Phelps to avoid state prosecution according to local authorities
This just in from the news wire:
Michael Phelps will not be charged with marijuana possession, though the Olympic champion swimmer admitted to being pictured holding a marijuana pipe at a Columbia house party in November, Richland County Sheriff Leon Lott announced today.
Speaking now during a press conference at the Sheriff's Department headquarters, Lott said his investigators couldn't find enough evidence to charge anyone — including Phelps — who attended the party with any crime.
Lott had declined to say in recent days whether he would press charges, though legal observers interviewed by The State said charges were unlikely because Phelps was not caught by authorities committing a crime and that credible witness would be difficult to find, making a court case difficult to prove under South Carolina law.
Some related posts:
- Is golden boy Michael Phelps going to be charged with a state drug crime?
- "Michael Phelps, Hypocrisy, and American Drug Policy"
- Should those seeking drug policy reform hope that Michael Phelps get prosecuted?
- Michael Phelps punished by USA Swimming with suspension
An Ohio example of how the prison economy budget can mix up the usual political rhetoric
In my own home state of Ohio, a very tight budget and a growing prison population have created a fascinating and dynamic set of political and practical conversations about state sentencing reform. This local article today, headlined "Seitz offers plan for prison reform: Overcrowding strains budgets," details some of the on-going debate and reveals why we are not quite seeing politics as usual:
State Sen. Bill Seitz says sweeping prison reform is the only way to reduce overcrowding and ease strain on Ohio's incarceration budget. The conservative Green Township Republican last week introduced Senate Bill 22, which would allow more minor offenders to be sentenced to community programs, give more good-time credit to inmates, give the parole authority the ability to deal with parole violators and create sentencing alternatives for parents convicted of failing to pay child support.
"While it is important that the Legislature continues to pass strong laws to help keep our communities safe, this effort must be balanced with policies that work to responsibly reduce Ohio's prison population and its financial impact on taxpayers across the state," Seitz said....
Hamilton County Prosecutor Joe Deters stopped short of criticizing a fellow Republican, but said the bill would compromise safety and if the budget needs relief, cuts should be made elsewhere. "The problem with any of these laws is they are entirely budget driven, and not safety driven," Deters said.
"Bill is one of the best legislators I have ever met, he is very smart and he is looking for ways to get money out of the budget, but he is looking in the wrong place," Deters said. "The first job of government is to protect its citizens, and a viable prison system is critical to community safety."
Seitz, who served nearly eight years in the Ohio house before moving to the Senate in 2007, said reform has been needed for years. But the budget crisis means the legislature has to act now, he said.
Seitz's bill mirrors proposals by the [Democratic] Strickland administration. Gov. Ted Strickland's two-year budget, which must be passed by June 30, proposes spending $3.65 billion in fiscal years 2010 and 2011 to run prisons. Collins said there is about $10 million in the state budget for counties to fund community-correction programs, including halfway houses....
The Seitz bill varies slightly from Strickland's proposal, reducing earned credit to five days a month instead of seven. Violent offenders and sex offenders would not be eligible for good-time credits. "There are many things for Democrats and Republicans to fight about in this budget," Seitz said. "I hope this is not one of them."
Seitz said the reforms do not compromise safety. "We all want to increase the penalties for this and that," Seitz said. "And it might be warranted, but where is the money? The prison budget has been cut, cut, cut." Something has to give, he added....
Seitz said sentencing disparities for people convicted of crack cocaine versus powder cocaine crimes must be corrected, that judges need more authority over judicial release, and that inmates at the end of their sentences should transition into community-based correctional facilities....
Hearings could start as soon as next month, Seitz said. "Until people put their money where their mouth is on criminal sentences, there is no other choice," Seitz said.
Lots of AWA and SORNA news and notes
Over at Sex Crimes, Corey Yung has lots of new posts reporting on lots of new developments involving the Adam Walsh Act and the Sex Offender Registration and Notification Act (which was a part of the AWA). This local newspaper article from California, headlined "Judge rules against federal sex offender registration," discusses the federal district court ruling that Corey spotlighted in this post in which he concludes that "we have reached the point where a critical mass of courts have recognized that there are genuine Commerce Clause problems with" SORNA.
In Alabama, the Kennedy case did not end talk of the death penalty for child rape
Apparently, it takes a while for a SCOTUS decision about constitutional limits on the death penalty to make its way down to Alabama. That conclusion is the only way I can fully make sense of this local Alabama story, headlined "Capital Punishment for Certain Pedophiles?". Here are excerpts from the piece:
Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way. State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.
The death penalty is a punishment that — so far — has been reserved only for murderers. Should child molesters now be included?
With the growing number of child sex predators, Hurst says capital punishment is an appropriate sentence for adult rapists older than 21 who violate children 6 years old or younger. “You take a child who’s completely helpless. They have no way to defend themselves. And someone does something of this nature to them, you have literally destroyed that child for the rest of their life,“ says Hurst....
Introducing capital punishment for some might not be a fix all, but Hurst says, it’s at least a start. “You’ve got to keep knocking at the door, or you can’t never get in.“ Hurst is still waiting to schedule this bill’s first hearing before the Alabama Legislature.
Of course, last summer in the Kennedy case, the Supreme Court declared unconstitutional a Louisiana law making child rape a death-eligible crime. This Alabama story does not even mention the Kennedy case, and I cannot help but wonder if Representative Hurst and his staff realize that the Justices have already declared unconstitutional the bill he has proposed.
Then again, maybe Representative Hurst knows all about the Kennedy case and seeks to be at the forefront of a constitutional vanguard here. In the absence of a constitutional amendment, only way for capital child rape to become constitutional would be through a new evolving national consensus in favor of such a punishment. If Representative Hurst can get his bill passed in Alabama and then encourage a few dozen other states to pass similar bills, he might lay a foundation for the Supreme Court to revise its interpretation of the "evolving standards of decency" that serve as its jurisprudential touchstone for the Eighth Amendment.
February 15, 2009
Lots of interesting crime and punishment reading in the Sunday papers
A diverse array of interesting crime and punishment articles caught my eye in my review of the Sunday headlines. Here are links to some of what I am reading from various papers this morning:
- "White-collar defendants are given some slack in reporting to federal prison"
- "Wisconsin's juvenile justice system tested by child killers"
- "Spiritual Advisor To Mother Teresa Gets 25-Year Sentence For Sex Crimes"
- "Firing squads are more humane, experts say"
Latest official data on implementation of retroactive crack guidelines
The US Sentencing Commission has available here the latest updated data on the retroactive application of its revised crack sentencing guidelines. Here is how the data is described:
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 January 21, 2009 and for which data was received, coded, and edited by the Commission as of January 26, 2009.
As I have said before, I continue to be impressed and somewhat surprised by how few problems there have been applying the new crack guidelines retroactively, especially given what a huge fuss was made by the Justice Department about the idea before it became a reality back in March.
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