Sentencing Law and Policy

Significant IAC ruling from Tenth Circuit based on counsel’s failure to understand guidelines

A split panel of the Tenth Circuit today handed down an interesting and important Sixth Amendment ineffective assistance of counsel ruling today in US v. Washington, No. 08-3313 (10th Cir. Sept. 30, 2010) (available here).  Here is how the majority opinion starts:

Petitioner Patrick E. Washington requests reversal of the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence, claiming the district court erred in not holding his counsel’s performance constitutionally deficient.  We conclude that counsel’s failure to understand the basic mechanics of the sentencing guidelines and, in particular, his failure to advise Mr. Washington regarding the impact of relevant conduct on his potential sentence prior to meeting with the probation officer, amounted to constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668 (1984).  We also conclude that Mr. Washington was prejudiced as a result of the above failures because the facts he conceded at his presentence interview disqualified him from obtaining a two-level reduction pursuant to the 2007 Crack Cocaine Amendments, U.S.S.G. § 2D1.1(c), App. C, Amend. 706, 711 (2007) (Amendment 706). We therefore reverse.

The heart of the dissent by Judge Tacha is evident from this paragraph of her opinion:

In Gordon, we joined our sister circuit courts in holding that “the presentence interview is not a critical stage of the [criminal] proceeding within the meaning of the Sixth Amendment.” 4 F.3d at 1572.  We therefore denied the defendant’s claim for relief based on ineffective assistance of counsel. Id.  Although the majority recognizes that Gordon is still good law in this circuit, it attempts to limit Gordon’s holding to the precise moment of the presentence interview. See Maj. Op. at 11–12. I cannot agree with the majority’s position.  Besides standing contrary to our clear language in Gordon, the majority’s limited reading creates an arbitrary distinction under which a defendant has the constitutional right to the advice of and information from his attorney before the presentence interview but does not have the right to such advice and information once the interview has begun.  Gordon, of course, makes no such distinction.

If the feds decide to pursue an en banc appeal or a cert petition, I would not be surprised if a number of addition judges or Justices want to jump in on these important issues.

An effective (and telling) list of the "best blogs" discussing capital punishment

A criminal justice website has this effective and telling compilation of "The 50 Best Blogs Discussing Capital Punishment." I call the list effective because just about every blog I have ever tripped across in my capital punishment surfing gets linked (with a brief description). I call the list telling because only three of the linked blogs are listed as pro-death penalty, eight are listed as neutral (including this one), and 39 are anti-death penalty.

"Drugs and conservatives should go together"

The title of this post is the headline of this commentary in the Los Angeles Times by Jeffrey Miron, a senior fellow at the Cato Institute.  Here are excerpts:

For decades, the U.S. debate over drug legalization has pitted conservatives on one side against libertarians and some liberals on the other.  A few conservatives have publicly opposed the drug war (e.g., National Review founder William F. Buckley Jr.), but most conservatives either endorse it or sidestep the issue.

Yet vigorous opposition to the drug war should be a no-brainer for conservatives. Legalization would not only promote specific policy objectives that are near and dear to conservative hearts, it is also consistent with core principles that conservatives endorse in other contexts....

Prohibition is fiscally irresponsible.  Its key goal is reduced drug use, yet repeated studies find minimal impact on drug use.  My just-released Cato Institute study shows that prohibition entails government expenditure of more than $41 billion a year.  At the same time, the government misses out on about $47 billion in tax revenues that could be collected from legalized drugs.  The budgetary windfall from legalization would hardly solve the country's fiscal woes.  Nevertheless, losing $88 billion in a program that fails to attain its stated goal should be anathema to conservatives.

Drug prohibition is hard to reconcile with constitutionally limited government.  The Constitution gives the federal government a few expressly enumerated powers, with all others reserved to the states (or to the people) under the 10th Amendment.  None of the enumerated powers authorizes Congress to outlaw specific products, only to regulate interstate commerce.  Thus, laws regulating interstate trade in drugs might pass constitutional muster, but outright bans cannot.  Indeed, when the United States wanted to outlaw alcohol, it passed the 18th Amendment.  The country has never adopted such constitutional authorization for drug prohibition.

Drug prohibition is hopelessly inconsistent with allegiance to free markets, which should mean that businesses can sell whatever products they wish, even if the products could be dangerous.  Prohibition is similarly inconsistent with individual responsibility, which holds that individuals can consume what they want — even if such behavior seems unwise — so long as these actions do not harm others.

Yes, drugs can harm innocent third parties, but so can — and do — alcohol, cars and many other legal products. Consistency demands treating drugs like these other goods, which means keeping them legal while punishing irresponsible use, such as driving under the influence.

Legalization would take drug control out government's incompetent hands and place it with churches, medical professionals, coaches, friends and families. These are precisely the private institutions whose virtues conservatives extol in other areas.

By supporting the legalization of drugs, conservatives might even help themselves at the ballot box.  Many voters find the conservative combination of policies confusing at best, inconsistent and hypocritical at worst.  Because drug prohibition is utterly out of step with the rest of the conservative agenda, abandoning it is a natural way to win the hearts and minds of these voters.

Some related posts on pot policy and politics:

• Top House Republican complaining that Obama administration is not fighting drug war hard enough
• Would and should the feds sue California if it legalizes marijuana through Prop 19?
• American democracy getting a contact high from pot prohibition debate
• Making the conservative case for ending pot prohibition in California
• New "Just Say Now" campaign suggests growing marijuana legalization coalition
• Should and will California's voters legalize marijuana in that state this November?
• RAND study (foolishly?) tries to forecast impact of pot legalization in California
• Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
• Thoughtful academic thoughts on ending marijuana prohibitions
• Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
• How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?

"Calif execution try collapses after court setbacks"

The title of this post is the headline of this new AP article providing the latest death penalty news from California.  Here are excerpts:

California's first execution attempt in nearly five years collapsed Wednesday amid two adverse court rulings in as many days and an impending shortage of drugs that made the lethal injection of a convicted rapist-murderer impossible.

State officials called off the execution of Albert Greenwood Brown after a state Supreme Court ruling made Friday the earliest possible day that Brown could be given a lethal injection. But by then, the state's entire supply of a drug used during the process would have expired.

It was unclear when the state might try again to execute Brown, since it won't receive a new supply of sodium thiopental until early next year at the soonest. Brown's attorney and death penalty foes had accused the attorney general's office of rushing to execute the inmate before the drug supply expired....

The state high court ruling came a day after U.S. District Jeremy Fogel blocked the execution that had been scheduled for Thursday night. Fogel said he wanted more than a few days to determine whether California's new lethal injection process passes constitutional muster by avoiding cruel and unusual punishment.

The attorney general appealed that decision Wednesday morning to the 9th U.S. Circuit Court of Appeals only to withdraw it in the afternoon. Senior Assistant Attorney General Ronald Matthias told the appeals court that "in light of the order of the Supreme Court of California ... no execution of Albert Greenwood Brown can occur on Sept. 30, 2010, as a matter of state law."

New report from Pew on incarceration's collateral costs

As detailed in this press release, the folks at The Pew Chartiable Trusts have produced a notable new report titled "Collateral Costs: Incarceration’s Effect on Economic Mobility."  The full report is available at this link, and here are highlights from the press release:

Incarceration reduces former inmates’ earnings by 40 percent and limits their future economic mobility, according to a new Pew report, Collateral Costs: Incarceration’s Effect on Economic Mobility. This is a growing challenge now that 1 in every 28 children in America has a parent behind bars, up from 1 in 125 just 25 years ago....

“Pew’s past research shows a variety of factors influence economic mobility both within a person’s lifetime and across generations. This report finds that incarceration is a powerful determinant of mobility for both former inmates and their children,” said Scott Winship, research manager of the Economic Mobility Project of Pew’s Economic Policy Group.

Incarceration’s long-term economic repercussions are felt by increasing numbers of families and communities now that 2.3 million Americans are behind bars, equaling 1 in 100 adults. Up from 500,000 in 1980, this marks more than a 300 percent increase in the United States’ incarcerated population.

Collateral Costs details the concentration of incarceration among men, the young, the uneducated and African Americans. One in 87 working-aged white men is in prison or jail compared with 1 in 36 Hispanic men and 1 in 12 African American men. Today, more African American men aged 20 to 34 without a high school diploma or GED are behind bars (37 percent) than are employed (26 percent).

The report also shows more than 2.7 million minor children now have a parent behind bars, or 1 in every 28.  For African American children the number is 1 in 9, a rate that has more than quadrupled in the past 25 years.

According to the Washington State Institute for Public Policy, improving employment prospects can decrease the chances that ex-offenders will return to prison or jail.  In previous reports, Pew identified policies that research shows can reduce recidivism and minimize the intergenerational impact of incarceration by boosting the chances that ex-offenders will successfully rejoin the community and the labor market.

Seventh Circuit finds that sentencing speed kills procedural reasonableness

The Seventh Circuit has an interesting reasonableness ruling today in US v. Glosser, No. 08-4015 (7th Cir. Sept. 29, 2010) (available here), which gets started this way:

The government appeals from a 121-month sentence a defendant received for attempting to possess more than 500 grams of methamphetamine, arguing that the district court committed procedural error by announcing and promising that it would impose the mandatory minimum sentence during the change of plea hearing, before it knew the advisory guidelines range or had heard either party’s argument regarding the sentence. Although we recognize that the court’s references to the ten-year mandatory minimum stemmed from a desire to ensure the defendant understood the minimum time he faced (he had previously been incorrectly informed that he faced a statutory minimum of five years), we agree with the government that the premature announcement of sentence constitutes procedural error that requires we vacate the sentence and remand for further proceedings.

"Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency"

The title of this post is the title of this notable new note by Joanna Huang in the latest issue of the Duke Law Journal.  Here is the abstract:

P>In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines.  During this period, many judges were forced to impose sentences they viewed as unjust.  Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory.  Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Bookerdoes not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is insufficient because it is inflexible, time consuming, and generally nonretroactive. Executive clemency appears more promising due to a flexible and broad nature that allows the president and state governors to pardon or commute sentences at will.  But executives have become unwilling to use their clemency power, making it an inadequate remedy.

This Note proposes a solution that overcomes the limitations of the current system: judicial recommendation of executive clemency.  This solution produces three benefits.  First, it provides judges with a discretionary tool to reduce disproportionate mandatory sentences. Second, it revitalizes the exercise of clemency by giving it additional legitimacy.  Finally, it refocuses clemency grants on the defendant and the facts of the case rather than on political influences.  This Note provides eight illustrative criteria for judicial recommendation of executive clemency that, together, combine the characteristics of three modern cases in which the sentencing judges recommended clemency. This Note seeks to explain how and why each criterion might be important, taking into consideration the goals of judicial discretion, executive clemency, and the criminal justice system overall.

"The Role of Social Media in Sentencing Advocacy"

The title of this post is the headline of this new article from the New York Law Journal. Here is how it begins:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

While there seems to be an unending supply of negative and inculpatory postings in social networking profiles, there is also the potential for uncovering a humanizing portrait for the defense to present at sentencing.

Day-in-the-life videos are a staple of tort practice to support damage claims and in criminal prosecutions to showcase a victim's life and character. The multimedia diaries and correspondence that comprise Facebook and MySpace profiles have similar potential for the defense. Since many of the accused entering the criminal justice system will be accompanied by social media, defense counsel might need to review their social space, along with medical and school records and other background information.

A preliminary audit of a client's online profile serves two purposes: (1) to identify evidence that might show up in a probation department pre-sentence report; and (2) to provide an instrument for marshalling positive information about the client. Still, social media is a two-headed coin and the first toss is usually tails.

A couple of notable crime rate headlines and stories

The newspapers today have headlines that provide a good news/bad news account of some of the latest crime data.  

First the good news, via USA Today: "Technology helps property crime fall to 20-year low."

Now the bad news, via the New York Daily News: "Murder rising at alarming rate, sending waves of fear throughout NYC's most dangerous neighborhoods"

"Drug expiration date pushes CA execution to brink"

The title of this post is the headline of this new AP article which seeks to detail the latest execution news from California.  Here are highlights: 

Five years ago, the planned execution of Michael Morales became so chaotic and confused that California prison officials canceled it two hours before he was to die.  Now, the state's first lethal injection attempt since then is running dangerously close to another execution night mess.

The problem with Morales was a failure to find medical professionals to assist with the execution.  This time, Albert Greenwood Brown is scheduled to die at 9 p.m. Thursday — just three hours before the Friday expiration date of the state's entire supply of sodium thiopental, a sedative used to knock out inmates before they are fatally injected with two other drugs.

The issue was spotlighted late Monday, when the 9th U.S. Circuit Court of Appeals ordered U.S. District Court Judge Jeremy Fogel to reconsider his decision refusing to block the execution.  "After a four-year moratorium on executions in California, multiple proceedings in federal court, a state administrative law proceeding, and state court appeals, it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug," the appeals court said....

In an apparent rush to execute Brown, the attorney general's office sought a pre-emptive order Monday from the state Supreme Court that a state appeals court ruling clearing the way for the execution would become final at 5 p.m. Thursday.  Deputy Attorney General Michael Quinn acknowledged he was seeking extraordinary relief in asking the high court to take action. But he said the impending expiration of the sodium thiopental supply left him with no alternatives if Brown is to be executed on schedule....

Even if Brown is put to death, it's unlikely any more executions will be set until next year, when officials hope to receive a new batch of the sedative. Hospira, the company that makes the drug, said it has encountered production problems and can't deliver a fresh supply until early next year....

Judge Fogel, attorneys for Brown and death penalty watchers were caught by surprise when Riverside County prosecutors — assisted by lawyers from the attorney general's office — obtained an execution date during an Aug. 30 hearing.

Riverside County prosecutors had pushed the judge for a Sept. 29 execution date with no mention of the drug expiration issue. Riverside County District Attorney Rod Pacheco said Tuesday his office was first informed this week of the issue.  "How is this possible?  This is ridiculous," said Pacheco, still optimistic the execution would proceed. "I'm a little frustrated. The death penalty in California is becoming surreal." 

Some related posts:

• Governor Arnold Schwarzenegger pushes back California's execution plans slightly
• Federal ruling seems to push California toward one-drug execution protocol
• California lethal injection litigation continues as condemns refuses "unconstitutionally medieval" choice
• Latest California efforts to get back into the execution business
• Is California finally getting closer to bringing its death chamber back on line?
• "California has high hopes of reinstating death penalty"
• California legislator urging state to adopt one-drug execution protocol being used by Ohio

UPDATE:  As detailed in this new local story, headlined "San Quentin execution blocked by judge," it appears that Judge Fogel late Tuesday issued a stay that likely will prevent California from conducting any executions until 2011:

A federal judge blocked the execution of condemned murderer Albert Greenwood Brown late Tuesday, saying he needed months, not just a few days, to decide whether California's new lethal injection procedures remove the risk of a prolonged and painful death.

Brown, 56, was scheduled to be executed at 9 p.m. Thursday at San Quentin State Prison for raping and strangling 15-year-old Susan Jordan of Riverside in 1980. It was to be the state's first execution since 2006, when U.S. District Judge Jeremy Fogel of San Jose found numerous flaws in the prison's injection practices.

Gov. Arnold Schwarzenegger will ask a federal appeals court to lift the stay and allow the execution, spokeswoman Rachel Arrezola said....

After hurriedly ordering and reviewing written arguments from both sides, Fogel said Tuesday evening that Brown's lawyers had raised substantial questions about whether the state's execution practices would be better than the ones he had criticized....

Unless it is overruled by a higher court, Fogel's order will halt Brown's execution and prevent any further executions in California until at least early 2011. That is when the state is due to receive a new supply of the sedative Sodium Pentothal, the sedative injected first into condemned inmates. The prisons' current supply has an expiration date of Friday, and the manufacturer says it has no more available now.

Today's notable pot proposition commentary, news and notes

There are so many interesting angle to the still-developing debates and discussions surrounding the marijuana legalization initiative in California.  Here are just a few headlines that caught my eye this afternoon:

• From The Atlantic here, "California's Marijuana Initiative: A Problem for Obama?"
• From CNN here, "Sooner or later, marijuana will be legal" (commentary)
• From Reason here, "No-on-Prop. 19 Consensus Welcomes Arnold, L.A. Times, Modesto Bee"
• From The San Francisco Chronicle here, "Grass-roots support grows on both sides of cannabis act"

Lots of crime (and some punishment) in big pile of cert grants from SCOTUS long conference

As detailed in this post at SCOTUSblog, the Supreme Court this morning granted certiorari in fourteen new cases. The full orders list is here, and I think more than a third of the cases involve criminal justice issues:

• Kentucky v. King, concerning exigent circumstances (opinion below)

• US v. Tinklenberg, concerning speedy trial rights (opinion below)

• Bullcoming v. New Mexico, concerning Confrontation Clause rights (opinion below)

• Freeman v. US, concerning crack sentence reduction authority (opinion below)

• Sykes v. US, concerning application of Armed Career Criminal Act (opinion below)

Freedman and Sykes are the cases that should most interest sentencing fans. Neither is a blockbuster-in-waiting, but both should provide some of the new (and old) Justices to showcase their current thinking on various federal sentencing issues.

Effective new Vera report on decade of sentencing policy trends

The Vera Institute of Justice’s Center on Sentencing and Corrections has published this terrific new report titled "Criminal Justice Trends: Key Legislative Changes in Sentencing Policy, 2001-2010."  The report reviews key developments in sentencing legislation over the past decade, and here is how Vera summarizes its coverage:

Since 2001, many state legislatures have changed their criminal sentencing policies, increasingly emphasizing approaches that are “smart on crime.”  The three main areas of legislative reform involve redefining and reclassifying criminal offenses, strengthening alternatives to incarceration, and reducing prison terms.  This report is a reference for legislators, their staff, and other policy makers who may be considering or implementing similar changes in sentencing statutes and policies.

Georgia completes (eventful?) execution of suicidal triple murderer

As detailed in this AP story, after some more delays and difficulties, Georgia was finally able to complete the execution of a triple murderer late last night.  Here are some of the details:

A Georgia prisoner who tried to kill himself last week by slashing his arms and throat with a razor blade was executed Monday night amid heightened security for the 1998 murders of a trucking company owner and his two children.

Brandon Joseph Rhode, 31, was put to death by injection at the state prison in Jackson. He was pronounced dead at 10:16 p.m. Rhode declined to speak any last words or have a final prayer....

Rhode's execution had been set for 7 p.m. but was pushed back several hours as corrections officials waited for the U.S. Supreme Court to decide on his plea for a stay of execution. The court rejected appeals later that night.

Medics then tried for about 30 minutes to find a vein to inject the three-drug concoction. The prisoner's eyes darted around the room before the lethal mixture began coursing through his veins. Within minutes he was staring blankly at the ceiling of the death chamber. Moments before Rhode was pronounced dead he turned his head, exposing a bandage over the part of his neck he slashed....

Rhode had initially been scheduled to be put to death Sept. 21, but the Georgia Supreme Court postponed the execution after Rhode was rushed to the hospital that day following a suicide attempt.

Rhode was stabilized at a local hospital and placed in a restraining chair to prevent him from removing the sutures from his neck or doing any other harm to himself, state attorneys said. Defense attorney Brian Kammer countered that Rhode was put in a "torture chair" and subjected to cruel and unusual punishment.

"He has been subjected to the surreal and incomprehensible: Heroic measures taken to stabilize his life by the prison staff that would then execute him," Kammer said in one court filing.

Murder convictions for drunk driver with high-profile victim

As detailed in this AP article, which is headlined "Man convicted of murder in Angels pitcher's death," a California jury today returned murder convictions for a repeat drunk driver who cut short three young lives, one of which was high-profile.  Here are the particulars:

A jury convicted a construction worker of murder Monday for a drunken-driving crash that killed promising rookie Los Angeles Angels pitcher Nick Adenhart and two of his friends.  It was the second DUI conviction for Andrew Gallo, 23, who held white rosary beads and occasionally looked up at jurors as they returned their verdicts....

Gallo was convicted on three counts of second-degree murder and single counts of drunken driving, hit-and-run driving, and driving under the influence of alcohol and causing great bodily injury.  He faces 50 years to life in state prison at his scheduled sentencing on Dec. 10.

His attorney Jacqueline Goodman said Gallo would appeal. "I think it's tragic," she told reporters. "I think there's been a miscarriage of justice." She previously said her client did not intend to kill anyone.

Prosecutors said they charged the case as a second-degree murder instead of the lesser charge of manslaughter because Gallo had a previous DUI conviction, had specific knowledge of the dangers of drinking and driving from his own experience, and had signed a court form from the earlier case saying he understood he could be charged with murder if he drove drunk again and killed someone.

To win a murder conviction, prosecutors had to show Gallo acted with implied malice, intentionally drove drunk, acted with a conscious disregard for human life, and knew from his personal experience that he could kill someone....

Orange County District Attorney Tony Rackauckas said it was the 11th DUI-related murder conviction in the county since 2008.  "People are dying here," Rackauckas told reporters. "We want to get the message out there as well as we can that people will be prosecuted for murder when they engage in this type of conduct."...

Prosecutors alleged during the two-week trial that Gallo, whose blood-alcohol level was nearly three times the legal limit, spent hours drinking beers and shots with his stepbrother at three different bars before running a red light and T-boning the car driven by Stewart.   Prosecutor Susan Price told jurors that Gallo had been repeatedly warned by friends, family and court officials about the dangers of drinking and driving, but his arrogance and need to party prevented him from learning the lesson.

Goodman contended the district attorney's office had overstepped by charging Gallo with murder. She said her client believed his stepbrother was his designated driver and only drove after his stepbrother became too intoxicated and asked him to take the wheel.  By that point, she argued, Gallo was too drunk to realize the consequences of driving drunk.

During the trial, prosecutors played a videotaped interview in which Gallo told police he didn't remember driving and apologized to the families of the victims.

Governor Arnold Schwarzenegger pushes back California's execution plans slightly

As detailed in this new AP article, "California's first execution in nearly five years was pushed back almost two days Monday by Gov. Arnold Schwarzenegger to allow courts more time to consider the condemned inmate's appeals." Here are more of the particulars:

Brown is now scheduled to die by lethal injection at 9 p.m. Thursday, said Terry Thornton, spokeswoman for the state Department of Corrections and Rehabilitation. Brown initially was scheduled for execution at 12:01 a.m. Wednesday.

Brown's attorneys have filed simultaneous appeals in federal and state courts, claiming California improperly adopted its new lethal injection procedures. They also allege that execution under the new regulations would amount to cruel and unusual punishment.

The 45-hour reprieve pushes the execution to within hours of the Friday expiration date on the state's supply of sodium thiopental, one of the drugs used in the lethal injection process.

"California's idea of the death penalty is to bore them to death"

The title of this post is a quote from the father of a murder victim in this notable local story, which highlights that not much is likely to change for most California defendants on death row even if the state does manage to resume executions this week.  The effective piece is headlined "Local death row cases years from execution," and here are excerpts:

California's plan this week to carry out its first execution of a death row inmate since 2006 won't mean any local cases are closer to seeing a date set for lethal injection.  Of the 708 people on California's death row, seven men and one woman have been sent there by North County juries over the past two decades.

They probably will remain there a long time.  The process from sentencing to execution is cumbersome — and decades long.  "California's idea of the death penalty is to bore them to death," said Roy Coe, whose daughter was murdered when she interrupted a burglary in her Vista home in 2005.

Derlyn Ray Threats, the man convicted of killing Coe's daughter, Carolyn Neville, was sentenced to death last month and just moved onto death row at San Quentin State Prison.  Threats, 28, still faces "a ridiculous number of appeals," Coe said, adding that he knows it will be years before an execution date is set.  "There are guys in prison (on death row) for 30 years," Coe said. "I don't have that many years left in me."...

Since 1978, when California reinstituted the death penalty, 14 of the state's inmates have been executed — including one actually executed in Missouri for crimes committed in that state.  More than five times that number — 75 condemned inmates — have died of natural causes, suicide or other reasons, according to the state Department of Corrections and Rehabilitation.

The last five executions took place after condemned inmates had each spent more than 20 years on death row.  When Stanley "Tookie" Williams was put to death in December 2005, he had spent 24 years and eight months on death row.  Clarence Ray Allen, executed in January 2006, moved onto death row in 1982....  In the four years since the last execution, 20 death row inmates died of natural causes, and six committed suicide....

All death sentences are automatically appealed to the California Supreme Court.  But the process is greatly delayed because very few appellate attorneys are willing and qualified to handle death penalty cases.  It often takes more than five years to assign an attorney to handle the automatic appeal.  Even after the attorney is appointed, the process is slow and complicated, and it happens whether the inmate wants it or not.

Take the case of drifter Brandon Wilson, who was convicted of the 1998 slaying of 9-year-old Matthew Cecchi in an Oceanside Harbor public restroom.  Wilson, who asked the jury to "execute me," has been on death row since 1999.  Eleven years later, the opening brief of the mandatory appeal still has not been filed; his attorney has won the court's permission to delay the filing 27 times, most recently last week.

Repeated delays have been the story of the case of LaTwon Weaver, on death row since 1993. Weaver, the son of a Baptist minister, was found guilty of murder in the 1992 shooting death of Vista jeweler Michael Broome during a robbery.  Seventeen years after moving to San Quentin, his automatic appeal is not even far enough along that the state's Supreme Court has considered it or set a date for oral arguments.  Not all of the legal briefs necessary for the case have been filed.

California's handling of the death penalty really does give new meaning to the phrase "justice delayed is justice denied."  Consider this numerical spin on these realities: even if California were to resume executions this week and thereafter managed to conduct two executions in October and every single month thereafter, the state would not carry out the prescribed punishment of those currently on death row until roughly the year 2040!

Some related posts:

• Federal ruling seems to push California toward one-drug execution protocol
• California lethal injection litigation continues as condemns refuses "unconstitutionally medieval" choice
• Latest California efforts to get back into the execution business
• Is California finally getting closer to bringing its death chamber back on line?
• "California has high hopes of reinstating death penalty"
• California legislator urging state to adopt one-drug execution protocol being used by Ohio

Senator Jeff Sessions asks circuit nominee if she will "follow the federal sentencing guidelines"

Perhaps this is not news to those following the latest federal judicial confirmation battles closely, but I found notable this new report from the Connecticut Law Tribune concerning the Senate questioning of Second Circuit nominee Susan Carney earlier this month.   Specifically, this report on some back-and-forth with Senator Jeff Sesssion got my attention:

Sessions lectured about the importance of judges following higher courts’ dictates, and those of Congress. He told Carney that if she’d been a trial lawyer or a judge, she would know certain things from experience. “[A] lawyer who’s practiced a lot, or a judge who’s been on the bench for a while, I think understands that they’re not policy-setting officials,” said Sessions.

He then pointedly asked Carney if she would follow the federal sentencing guidelines.

Carney was agreeable, to a point.  She commended the guidelines for bringing “important consistency.”   She also told Sessions that she is familiar with the 2005 U.S. Supreme Court case of U.S. v. Booker, which held the sentencing guidelines interfered with the Sixth Amendment right to a fair trial, and were no longer mandatory.

Sessions, possibly hinting at her confirmation, responded, “I hope that as you wrestle with those issues before you, you realize there is a danger in deferring too readily to the unsupported views of a trial judge who just is not willing to be consistent.”

"Should sex offenders get GPS before leaving prison?"

The title of this post is the headline of this local California story.  Here is how it gets started:

At least twice in the past month, sex offenders prompted multi-agency manhunts in the North County when they refused to be monitored by GPS — a responsibility that falls on the offenders when they get out of prison. One man, who is accused of committing a sex crime the day after being paroled, was caught days later, while the second surrendered to authorities three weeks after going offline.

The cases beg the question: Why aren’t sex offenders strapped with GPS devices before leaving prison?

In San Diego County, which has roughly 500 sex offenders who are monitored by GPS, there are outstanding warrants for 10 who have either cut off their GPS bracelets or never obtained them, according to the regional Sexual Assault Felony Enforcement Task Force.

The topic has gotten the attention of local task force members, as well as state Assemblyman Nathan Fletcher, R-San Diego, who authored the recently signed bill that toughened sex offender laws. His office intends to write a letter to the state Department of Corrections and Rehabilitation asking for justification to the current policy, Fletcher said last week.

“It would seem to make sense if they have to wear GPS anyway, why not give it to them immediately? Why wait a day?” Fletcher said. “In some ways it’s indicative of how broken the system is.”

Some related posts on GPS tracking and related technocorrections:

• California struggling with new challenges posed by GPS technocorrections
• The technical challenges posed by technocorrections
• Is the future parole with GPS and other techno-reentry devices?
• The inevitability of GPS tracking and cost-saving technocorrections
• Another reason to believe GPS technocorrections are inevitable
• Why tight budget times will speed path to technocorrections
• Are microchip implants for offenders inevitable?
• Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?

Contrasting congressional hearings concerning federal criminalization

Tomorrow, September 28, 2010, brings two notable hearings in Congress for federal criminal justice fans. But the concerns driving the morning Senate hearing and the afternoon House hearing seem to be in (direct?) tension. 

In the Senate, as detailed here, the Committee on the Judiciary has scheduled a hearing entitled "Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court's Skilling Decision" for at 10am.  But in the House, as detailed here, the Subcommittee on Crime, Terrorism, and Homeland Security will having at 3pm a hearing entitled "Reining in Overcriminalization: Assessing the Problems, Proposing Solutions." 

The folks at the NACDL have put together this big press kitabout the House hearing.  The executive summary of that kit contends that "[m]any of the approximately 4,450 criminal offenses in the U.S. Code are poorly defined, lack criminal-intent requirements that are sufficient to protect the innocent, and are difficult or impossible to connect to notions of moral wrongdoing."   A great example of one such federal offense would seem to be the honest-services fraud statute that SCOTUS read narrowly in Skilling.  But apparently the Senate hearing is intended to devise a way for Congress to "restore" the (still too broad and vague?) law to its pre-Skilling state.

Though it is silly (and perhaps misguided) to expect the two houses of Congress to be on the same page concerning federal criminal law, it still seems telling that these two competing hearing are taking place on the same day.