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May 3, 2010

California legislator urging state to adopt one-drug execution protocol being used by Ohio

I was intrigued and pleased to see this news item in the Stockton Record from California, which is headlined "Lawmaker pushes for state to adopt execution method." Here are the basic detail:

A Southern California lawmaker is pushing California to follow Ohio's lead and adopt a single-drug method for carrying out executions.

Sen. Tom Harman, a Huntington Beach Republican, said Friday that lengthy delays to the execution of Stockton's Michael Angelo Morales prompted him to sponsor the bill. Harman is running for California attorney general. "This is one of the ways we could speed this up and let justice be done," he said. "Let's just get on with it."...

Harman said Ohio has adopted the single-drug method - relying solely on a lethal dose of the anesthetic sodium thiopental. Ohio has executed five men with the approach adopted in November. Washington adopted a similar method in March, but has yet to use it. Harman said he believes California will follow suit. In April, his bill passed the Senate Public Safety Committee, a sign that it will continue to gain support and become law, he said.

The single-drug approach is common sense, he said. "This sounds simple. It sounds easy," he said. "That's why we're pushing this one."

Harman is bound to confront opposition in a hotly debated fight over California's use of capital punishment.

Natasha Minsker, ACLU of Northern California's Death Penalty Policy program director, said no amount of changes will fix California's troubled capital punishment system. For starters, it costs the state a lot of money that could be better spent solving crimes. "Those kinds of problems can only be fixed by replacing the death penalty system with permanent imprisonment," she said. "We're investing in things that don't work."

Particularly because opponents of the three-drug lethal injection method have long promoted a one-drug protocol as more humane, I was pleased when Ohio adopted the one-drug execution method late last year.  And Ohio has now completed five executions with no apparent difficulties using this better execution protocol.  In light of thse developments, I have been a bit surprised and quite disappointed that few other states have made a serious effort to adopt a one-drug lethal injection protocol.  Thus, in the absence of any new claims that the three-drug approach is preferable to a one-drug execution protocol, it is good to see at least some folks in California talking about following Ohio's lead here.

Some related posts:

May 3, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

NY Gov Paterson creates special pardon panel for legal immigrants

Some helpful readers alerted me to this fascinating news out of New York's Governor's Office, as here reported by the New York Times:

In a major rebuke of federal immigration policy, Gov. David A. Paterson announced on Monday that he would create a special pardon panel to review cases involving legal immigrants who are at risk of deportation for minor or old convictions.

Mr. Paterson’s move will give many immigrants facing deportation renewed hope and places the governor into the middle of the country’s immigration debate.

The announcement comes as the federal government has taken an increasingly hard line in its interpretation of existing immigration law, leaving a growing number of legal immigrants who have criminal records facing deportation.

“Some of our immigration laws, particularly with respect to deportation, are embarrassingly and wrongly inflexible,” Mr. Paterson said in a speech on Monday at an annual gathering of the state’s top judges. “In New York we believe in renewal,” he added. “In New York we believe in rehabilitation.”

State officials say they believe thousands of legal immigrants could fall into the category of cases that they are interested in reviewing.  A new five-member panel made up of existing state employees, called the Special Immigration Board of Pardons, will review the cases.

Now, only a handful of such cases are pending before the Paterson administration, but they anticipate that the creation of the panel will prompt an influx of hundreds of new petitions for pardons.

This official press release from the Governor, which is titled "Governor Paterson Creates Panel to Review Cases of Legal Immigrants Facing Deportation," provides more information about this new pardon development.  Here is a snippet from the press release:

Due to retroactive changes in federal immigration laws in the mid-1990s, there may be thousands of individuals in New York State who entered the United States legally but are now facing deportation for crimes that did not, at the time of conviction, carry the consequence of deportation. In other cases, individuals may have been unaware of the immigration consequences of guilty pleas or convictions for certain crimes.  These individuals may have had convictions many years ago, and federal immigration authorities are seeking to deport them years later when, for instance, they apply for citizenship or to renew their permanent resident status.

In many of these cases, the individual's efforts towards rehabilitation, their years of living in the community without any contact with law enforcement, and the positive contributions they have made to society are not factored into whether the individual will be deported.  In addition, they may be deported to a country they left as a child, where they have no relatives and may not speak the language, and their deportation may tear them away from their United States citizen children or spouse.  As demonstrated by several recent examples, such deportation can cause a significant injustice in particular cases, which can only be remedied by the Governor's exercise of a pardon.

May 3, 2010 in Clemency and Pardons, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Intriguing Ninth Circuit ruling on post-mortem restitution obligations

The Ninth Circuit handed down an intriguing opinion today in US v. Rich, No. 08-30153 (9th Cir. May 3, 2010) (available here), concerning an order of restitution after a Ponzi scheme conviction.  Here is how the panel opinion describes its inquiry:

We consider whether the estate of a criminal defendant who dies pending appeal of his fraud conviction must continue to pay restitution to victims.

And here is the heart of the basic answer that the panel provides:

There is no doubt that “death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception.”  United States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983) (citing Durham v. United States, 401 U.S. 481 (1971) (per curiam)). This principle, called the rule of abatement ab initio, prevents, among other things, recovery against the estate of a fine imposed as part of the conviction and sentence and use of an abated conviction against the estate in related civil litigation.  The rationale for abatement ab initio is that “the interests of justice ordinarily require that [the deceased] not stand convicted without resolution of the merits of his appeal.” Oberlin, 718 F.2d at 896...

Just as it is inappropriate to impose restitution on a living individual who was never indicted or convicted, so it is inappropriate to impose restitution on the estate of a deceased individual who, in the eyes of the law, was never indicted or convicted.  Abatement ab initio means what it says.

May 3, 2010 in Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

"'Shifting positions' on medical pot cited in reduced sentence"

The title of this post is the headline of this new item from the "Weed Wars" section of the Sacramento Bee. Here are the details:

One of the most compelling cases pitting California's medical marijuana law vs. federal authority to prosecute medicinal pot unfolded in the coastal town of Morro Bay. There, Charles Lynch opened a marijuana dispensary called Central Coast Compassionate Caregivers in early 2006. The mayor, City Council members and officials from the local chamber of commerce came out for the ribbon-cutting.

But in 2007, at the behest of the San Luis Obispo County Sheriff's Department, federal drug agents raided the dispensary. Lynch was arrested on five felony counts, including conspiracy to distribute marijuana and providing marijuana to person under 21.

In 2008, Lynch was convicted on all counts and sentenced to five years in federal prison. But last week, in a sentencing memo affirming an his earlier decision to cut Lynch's sentence to one year and one day, U.S. District Judge George H. Wu signaled that federal attitudes have changed on medical marijuana. He wrote: "Individuals such as Lynch are caught in the middle of the shifting positions of governmental authority."

Notably, the judge also said he believed that marijuana should be downgraded from its current federal status as a Schedule 1 drug - an illegal substance with no accepted medical use....

In reducing Lynch's sentence, Judge Wu cited a less antagonistic approach toward state-allowed medical marijuana by the Obama administration and Attorney General Eric Holder than under the Bush administration and former Attorney General Alberto Gonzales.

He also said Lynch's case "falls outside of the heartland of typical marijuana distribution cases." He noted that the dispensary operator had no criminal record and "the objective of the distribution was...to provide the marijuana for therapeutic reasons to persons with diagnosed medical needs pursuant to California state laws."

The ruling was hailed by Joe Elford, chief counsel for Americans for Safe Access, who had argued for leniency for Lynch.  "Judge Wu's sentencing order...begs the question of why the federal government is still prosecuting medical marijuana cases," Elford said in a statement.

The full text of Judge Wu's sentencing ruling in Lynch runs 41 pages and is available at this link.  In addition, this press release from Americans for Safe Access provides more information and backstory concerning the ruling.

May 3, 2010 in Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Can, should and will district judges start giving effect to proposed amended guidelines ASAP?

This article from the Wall Street Journal, which is headlined "New Factors to Help Judges Determine Leniency," effectively the proposed new federal guideline amendments released on Friday by the US Sentencing Commission (basics here):

New rules will make it easier for federal judges to consider criminal defendants' military service, age, and mental and emotional conditions in determining more lenient prison sentences, a federal agency announced on Friday.

Defense lawyers and some judges cheered the move by the U.S. Sentencing Commission, which develops advisory guidelines that most federal judges use to calculate sentences. The commission had been considering updating the rules.

As a result of the changes, which takes effect on Nov. 1, some defendants could receive a reduction of several months or several years, said Mauro Wolfe, a former federal prosecutor who is now a defense attorney in New York.  "Judges will start paying more attention to this around the country," said John Kane, a federal judge in Denver. Mr. Kane recently gave a sentence of probation, rather than prison, to an Iraq war veteran. Previously the sentencing commission said factors such as age and military service "are not ordinarily relevant in determining" whether a lower sentence is warranted....

The new rules potentially reduce the prison sentence for some defendants with recent criminal history. Separately, they allow judges to send certain nonviolent drug offenders to treatment programs rather than prison.

There has been a judicial movement toward more-lenient sentencing for certain types of defendants in recent years. For example, a growing number of federal judges have given breaks to individuals convicted of viewing child pornography but who aren't themselves molesters, according to recent data.

As more military veterans return from Iraq and Afghanistan and have developed behavioral problems, some judges started taking their military service into account when deciding on prison time.

Some federal judges also give credit for charitable giving and other good deeds. However, the commission on Friday didn't budge on its stance that judges generally shouldn't take into consideration such acts.

As spotlighted by the question in the title to this post, these proposed guideline amendments set up one of the most interesting and intricate formal legal questions of the post Bookerera --- namely whether district judges can and/or should and/or will start giving effect to the substance of these new guidelines during sentencings over ne next six months while the proposed amendments are subject to congressional review. 

Formally, as the WSJ piece notes, the proposed amended guidelines do not become legally effective until November 1, 2010, and Congress has authority during this period to pass legislation to reject the Sentencing Commission's proposed changes.  But it seem very unlikely that Congress will reject these changes, and district courts right now have an on-going obligation to sentence in accord with the provisions of 3553(a).  And, given that the Commission has now formally and functionally indicated its view the provisions of 3553(a) are better served by sentencing in accord with its amended guidelines, a district court should probably feel free, and maybe even should feel and obligation, to sentence in accord with this new proposed guidelines ASAP.

I heard reports back when the USSC lowered the crack guidelines that a lot of sentencings were simply put on hold during this six-month interregnum when newly issued guidelines are formally still just proposed amendments.  But these new proposed amendments, especially the provisions concerning the consideration of age and mental/emotional conditions, could implicate almost every pending sentencing.  (For example, in the high-profile Rubashkin case (basics here and here), both the defendant's age and mental/emotional condition were stressed by the defense as a reason for a more lenient sentence.) 

Consequently, unless district courts are prepared to postpone all sentencings not controlled by mandatory minimum sentencing terms, judges will have to confront in some manner the question of whether and how to give effect to these new proposed guidelines in pending cases.  And, with luck, some of these judges will author thoughtful written opinions to perhaps get a real common-law dialogue started concerning precisely how best to give effect to military service, age, and mental and emotional conditions at sentencing.

Related posts on the new proposed sentencing guidelines :

May 3, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

SCOTUS keeps us waiting for Graham and Sullivan, though provides some news while we wait

Today was the last scheduled day for the Supreme Court to release opinions until the second half of May, and neither of the two opinions released this morning are blockbusters.  It has now been nearly six months since the oral argument in the two juve LWOP cases from Florida, Graham and Sullivan, and it now appears that May 17th is the earliest these decisions could arrive.

Meanwhile, the court did reverse another habeas grant from the Sixth Circuit today in Renico v. Lett, No. No. 09–338 (May 3, 2010) (available here).  Here is how the opinion for the Court (authored by the Chief Justice) gets started:

This case requires us to review the grant of a writ of habeas corpus to a state prisoner under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §2254(d). The District Court in this case issued the writ to respondent Reginald Lett on the ground that his Michigan murder conviction violated the Double Jeopardy Clause of the Constitution, and the U.S. Court of Appeals for the Sixth Circuit affirmed.  In doing so, however, these courts misapplied AEDPA’s deferential standard of review.  Because we conclude that the Michigan Supreme Court’s application of federal law was not unreasonable, we reverse.

In addition, SCOTUSblog reports that the Justices have "invited the views of the SG in 09-920, Simmons v. Galvin, a case involving the felon disenfranchisement law in Mass."  It will be interested to see what the Solicitor General's office has to say in response to this invitation because the case raises a host of interesting legal and social issues at the intersection of crime, race and politics.

May 3, 2010 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

May 2, 2010

"Group to censure physicians who play role in lethal injections"

The title of this post is the headline of this notable article from today's Washington Post, which reviews the latest effort by a group of doctors to prevent physician involvement in lethal injections.  Here are excerpts:

A national physicians organization has quietly decided to revoke the certification of any member who participates in executing a prisoner by lethal injection.

The mandate from the American Board of Anesthesiologists reflects its leaders' belief that "we are healers, not executioners," board secretary Mark A. Rockoff said. Although the American Medical Association has long opposed doctor involvement, the anesthesiologists' group is the first to say it will harshly penalize a health-care worker for abetting lethal injections. The loss of certification would prevent an anesthesiologist from working in most hospitals.

About half of the 35 states performing executions, including Virginia and North Carolina, require a doctor to be present. Other states have also recruited doctors, including anesthesiologists, to play a role in executions involving lethal injections. In some jurisdictions, anesthesiologists consult prison officials on dosages. In others, they insert catheters and infuse the three-drug cocktails.

While death penalty opponents welcome the move because it raises yet more questions about lethal injections, capital punishment supporters contend that doctors are not needed during the procedures, which can be administered by prison employees. But as questions mount about the types and combinations of drugs used and whether they cause undue suffering, states have been turning to doctors for advice and assistance. With 3,200 prisoners now on death rows across the country, most of the 50 executions performed each year since 2008 have used lethal injections....

Under the policy, which the group's 40,000 members learned about in February, any of these activities could lead to a loss of certification. Anesthesiologists can get state medical licenses without certification, but most hospitals require it.

Thus far, no doctors have been disciplined, Rockoff said, but several anesthesiologists, including some who have worked as execution consultants or testified in capital punishment litigation, said the step has had a chilling effect. "They are clearly drawing a line in the sand and saying, 'If you cross this, we'll come after you,' " said Bryan A. Liang, a law professor at California Western School of Law and a professor of anesthesiology at the University of California at San Diego.

"It sure will deter me. For the ABA to threaten to pull your board certification is a big deal," said one anesthesiologist who has consulted for prison officials in his state about drug dosages. Arguing that the decision should be left up to individual doctors' consciences, none of those who criticized the policy agreed to be named, saying they feared repercussions....

Some death penalty supporters said nurses or emergency medical technicians are well-equipped to perform executions.  "Some think it's an effective argument to say you need a doctor to do this," said Michael Rushford, president of the Criminal Justice Legal Foundation, which supports the death penalty.  "You don't need a doctor to do this.  It's a counterfeit argument."

This story further convinces me that it will only be a matter of time before most states that want to continue using the death penalty in a serious way will turn to the one-drug lethal injection protocol that has proved successful so far in Ohio.  The need for doctor involvement seems further diminished by the one-drug approach, and Ohio was able to engineer and has now been regularly utilizing this method of execution with only very limited help from medical authorities.

May 2, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (15) | TrackBack

Interesting review of the age of killers and those killed in Alabama

Homicide-defendantsjpg-5e7a6570ddce64ba_large This feature story from the Birmingham News, which is headlined "The killing years: Accused killers in the Birmingham area, and victims, often under age 25," provides an interesting review of the chronological dynamics surrounding those killed and those who are killers in one of Alabama's major urban regions. Here is how the piece starts:

When people are murdered in Jefferson County, chances are the killer was a male under 25 using a gun. More than half of the accused killers in the county were 24 or younger, according to a Birmingham News analysis of homicides from 2006 through 2009. Nine times out of 10, the victims were shot to death.

The percentage of homicides with defendants under age 25 who used guns in Jefferson County substantially exceeds the national average, statistics show.  In Birmingham, where nearly three-quarters of the county's murders occurred, the disparity was even worse from 2006-2009.

Ages 16 through 24 are the killing years here.  That age group comprised 56 percent of the accused killers in Birmingham and 54 percent across the county those four years.

Nationally, 42 percent of the homicide defendants were 17 through 24, according to FBI statistics, which do not break out separate numbers for 16-year-olds.  The 17-24 age group made up 52 percent of the homicide defendants in Birmingham and 50 percent across Jefferson County.

"We're seeing more violence from that age group, more kids with cold hearts," said A.C. Roper, Birmingham's police chief. "Quite often we've heard kids say, 'Well, the victim went to a better place,' and chalk it up as if they were doing God's will or something."

Ages 16 through 24 also are the dying years.  About 16 percent of Birmingham's population is in that age group, but 33 percent of its homicide victims die that young.

"The one issue that has caused me the greatest concern is seeing young men gunned down in the streets by other young men," said Roper, whose 19-year-old brother was murdered while holding his infant son during a 1992 robbery attempt.

May 2, 2010 in Offender Characteristics | Permalink | Comments (4) | TrackBack

"Legalizing marijuana not really a dopey idea"

The title of this post is the headline of this new commentary by Michael Stetz of the San Diego Union Tribune, which includes some notable and important data about prison populations and arrests in California. Here are excerpts:

Who knows, in the near future, on a Friday night after a tough week of work, those so inclined could legally fire up a joint. And who knows, by California allowing that, some of this might happen:

A) The tax base gets a much-needed bump.

B) Cops can chase real bad guys, not recreational pot smokers.

C) The medical marijuana farce goes up in smoke because the drug can be had legally. (A lot of bad backs? Mysteriously cured!)

D) And another possible consequence: Prisons would have more room to house society’s worst criminals, particularly violent sex offenders....

A referendum will be on the November ballot, permitting personal use of the drug for those 21 and over. Cities or counties could allow for its sale and tax it. (Or not, it’ll be up to them.) It’ll also be OK for people to grow small amounts of it. “It would free up prison spaces for really, really bad guys,” said Aaron Smith, California policy director for the Marijuana Policy Project.

Granted, California’s prisons are not overflowing with marijuana criminals. Only about 1,630 — or 1 percent — are serving time for either having significant amounts of marijuana, selling the drug or cultivating it. But 1,630 spaces are 1,630 spaces. (Enjoy one, John Gardner.) By comparison, there are 2,446 inmates — or 1.4 percent — serving time for rape....

In 2008, the most current year for statistics, 78,000 marijuana arrests were made statewide. About four-fifths were for small amounts of marijuana — less than an ounce. It’s a misdemeanor, so you don’t get jail time, but it’s on your record.

These misdemeanor arrests have been skyrocketing, jumping 127 percent from 1990 to 2008. While cops are going like gangbusters against pot smokers, they’re not doing so well when it comes to violent criminals. In 1999, the statewide clearance rate for violent crimes was 50 percent. In 2008, it was 43.5 percent.

“One of the best reasons for doing this is it allows for the reallocation of law enforcement,” said Quintin Mecke, spokesman for San Francisco Assemblyman Tom Ammiano, who has introduced legislation to legalize marijuana for those over 21.

May 2, 2010 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack