May 22, 2010
"After 18 years, a serial killer's day in court arrives"The title of this post is the headline of this sad and telling story from the Oakland Tribune, which highlights some of the dysfunction aspects of California's death penalty system. Here is how the piece begins:
The "Day Stalker" serial killer who preyed on elderly women and terrorized the East Bay in the summer of 1987 will appear before the California Supreme Court this week to plead for his life — 18 years after his death sentence.
As long a time as that may seem, it's neither an extreme in California's logjammed capital punishment system, nor much more than a first step.
But it has been a long time to wait for the families of the three women — Pearl Larson, 76; Adeline Figuerido, 89; and Anna Constantine, 73 — since Franklin Lynch was convicted of murdering while robbing their San Leandro homes in the summer of 1987. Lynch also was convicted of robbing two other Hayward-area women.
Though Lynch was sent to San Quentin State Prison's death row in April 1992, the opening brief in his automatic, direct appeal — bypassing the Court of Appeal, straight to the state's highest court — wasn't filed until 2004, with the state's response a year later and his reply in 2007.
Lynch, already suspected in a string of robberies and homicides, was the subject of a manhunt a month before the first of the three slayings for which he would eventually be convicted. FBI agents arrested him in Los Angeles in October 1987.
Pam Figuerido, of Fremont, wife of Adeline Figuerido's grandson, Gary, said the family had been told when Lynch was sentenced that it would probably be about 14 years until his execution.
"We thought, 'Fourteen years, what a waste of the taxpayers' money,'" she said. "And we're still paying for him to sit here after he has murdered? It was vicious, what he did to this woman, and we're letting him live his life?" "It angers us that justice hasn't been served — what is taking so long?"
Even Michael Ciraolo, one of Lynch's trial attorneys, thought it unusual: "Eighteen years, is that some kind of record?" It's not, according to the state Administrative Office of the Courts; other cases have waited longer.
Blogging's virture (and partisanship's vice) given the value of "ideas having sex"This terrific piece in the Wall Street Journal, which is headlined "Humans: Why They Triumphed," provides an enjoyable and stimulating read. The piece is full of fascinating ideas about human progress and intellectual evolution, while also coining my latest favorite term "ideas having sex." Here are snippets from the start and end of the piece that showcase its key ideas:
Human evolution presents a puzzle. Nothing seems to explain the sudden takeoff of the last 45,000 years — the conversion of just another rare predatory ape into a planet dominator with rapidly progressing technologies. Once "progress" started to produce new tools, different ways of life and burgeoning populations, it accelerated all over the world, culminating in agriculture, cities, literacy and all the rest. Yet all the ingredients of human success — tool making, big brains, culture, fire, even language — seem to have been in place half a million years before and nothing happened. Tools were made to the same monotonous design for hundreds of thousands of years and the ecological impact of people was minimal. Then suddenly — bang! — culture exploded, starting in Africa. Why then, why there?
The answer lies in a new idea, borrowed from economics, known as collective intelligence: the notion that what determines the inventiveness and rate of cultural change of a population is the amount of interaction between individuals. Even as it explains very old patterns in prehistory, this idea holds out hope that the human race will prosper mightily in the years ahead — because ideas are having sex with each other as never before....
There's a cheery modern lesson in this theory about ancient events. Given that progress is inexorable, cumulative and collective if human beings exchange and specialize, then globalization and the Internet are bound to ensure furious economic progress in the coming century — despite the usual setbacks from recessions, wars, spendthrift governments and natural disasters.
The process of cumulative innovation that has doubled life span, cut child mortality by three-quarters and multiplied per capita income ninefold — world-wide — in little more than a century is driven by ideas having sex. And things like the search engine, the mobile phone and container shipping just made ideas a whole lot more promiscuous still.
Though this WSJ piece can be assessed and explored in many ways, my first follow-up thoughts produced the title of this post. In light of this provocative article, I would contend that a chief virtue of sophisticated blogging (and maybe even unsophisticated blogging) is that it provides a convenient setting and cost-effective means for ideas having sex. Relatedly, I would contend that a chief vice of partisanship and group-think is that it can impede ideas from having sex (and can make it seem politically unsafe for ideas from warring factions to have sex). Continuing the sexual metaphor, I may start calling blogging Viagra for ideas (and start calling partisanship idea VD).
Damn you, you wonderful Google!
Though having nothing to do with sentencing, I have to use this blog space to praise the folks at Google for celebrating the the 30th anniversary of Pac Man, arguably the greatest video-game of all time and certainly an obsession of my childhood for much too long, with an extraordinarily fun new version of the game for free on its the Google homepage.
This tech article, headlined "Pac-man celebrates its 30th anniversary with free game from Google," provides details that will all but ensure that those of my generation spend more time than they should goofing off at the computer today. And please, blame the folks at Google, not me, if you do not get everything done today that you had planned.
UPDATE: I managed to score 64,880 in my first long play this afternoon. Anyone beat that?
May 21, 2010
"Judge Weinstein Takes On Child Pornography Laws"The title of this post is the headline of this effective new article in the New York Times, which gives special attention to Judge Jack Weinstein's handling of the Polizzi case. Here is the start of the must-read piece:
In his 43-year career as a federal judge, Jack B. Weinstein has come to be identified by his efforts to combat what he calls “the unnecessary cruelty of the law.” His most recent crusade is particularly striking because of the beneficiary: a man who has amassed a vast collection of child pornography.
Judge Weinstein, who sits in the United States District Court in Brooklyn, has twice thrown out convictions that would have ensured that the man spend at least five years behind bars. He has pledged to break protocol and inform the next jury about the mandatory prison sentence that the charges carry. And he recently declared that the man, who is awaiting a new trial, did not need an electronic ankle bracelet because he posed “no risk to society.”
There is little public sympathy for collectors of child pornography. Yet across the country, an increasing number of federal judges have come to their defense, criticizing changes to sentencing laws that have effectively quadrupled their average prison term over the last decade.
Last week, the United States Court of Appeals for the Second Circuit vacated a 20-year child pornography sentence by ruling that the sentencing guidelines for such cases, “unless applied with great care, can lead to unreasonable sentences.” The decision noted that the recommended sentences for looking at pictures of children being sexually abused sometimes eclipse those for actually sexually abusing a child.
Judge Weinstein has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography.
“I don’t approve of child pornography, obviously,” he said in an interview this week. But, he also said, he does not believe that those who view the images, as opposed to producing or selling them, present a threat to children. “We’re destroying lives unnecessarily,” he said. “At the most, they should be receiving treatment and supervision.”
The man he has spent three years trying to save from a long incarceration is Pietro Polizzi, a married father of five who collected more than 5,000 graphic pictures of children. If prosecuted in a New York State court, he would have faced a maximum prison sentence of four years. Instead, in federal court, he faced a minimum of five years and a recommended sentence of 11 to 14 years. Because of Judge Weinstein’s intervention, he remains free as he awaits another trial.
“I don’t see Judge Weinstein as a judge,” Mr. Polizzi said during an interview as tears rolled down his face. “I see him as my father. He helps people. He doesn’t destroy lives the way the prosecutor has. He’s the one who is going to set me free from the court.”
Interesting talk in Oklahoma about creating a "Christian Prison"I just came across this fascinating local story from Oklahoma headlined "Christian Prison Remains On Hold: Leaders Say They Need Commitment From Prisoners." (Hat tip: Prison Law Blog). Here are the basics:
A private firm proposing a prison in Wakita with all born-again Christian staff and programming does not yet have the commitments for prisoners it needs to begin construction.
Bill Robinson, the founder of Corrections Concepts Inc., a Dallas nonprofit prison ministry that is leading the proposal, said the bonding company that is financing the project will not release funds to begin construction until states or other jurisdictions have agreed to send 285 prisoners to the 624-bed facility. "We're still working to get the adult facility done," Robinson said.
He said California has expressed an interest in sending adult inmates to Wakita, and he is in discussion with Kansas about it. Talks with Oklahoma are "in limbo."
The project has the support of city leaders in Wakita, a town near the Kansas border, and some civic leaders in the area. "We'd be very supportive of it," said John Criner, the mayor of Enid, the largest nearby city. "We can't put any money into it, but I'd be more than happy to get him a resolution supporting the project."
Criner said Enid, which is 30 miles south of Wakita, was close enough to reap indirect economic benefit from the proposed prison. Mayor Arden Chaffee of nearby Alva said the prison would have a positive effect on the area economy. "It sounds like a great idea. I just don't know if they can finance something like that, which is a Christian concept, with public money," he said.
The concept of an all-Christian private prison has drawn the attention of a Washington, D.C., civil liberties group. The group, Americans United for the Separation of Church and State, sent a letter to the Oklahoma Department of Corrections asking it not to send prisoners to the proposed prison.
Alex Luchenitser, the group's senior litigation counsel, said its chief concern is that public funds would be used for religious worship and instruction. "We think this would be clearly unconstitutional," he said. The organization also is concerned about possible civil-rights violations of prisoners, and public subsidy of an organization that hires only Christians, he said.
Robinson countered that the prison would be constitutional because inmates would go there voluntarily. He said he has legal opinions that say the prison, as a religious organization, can legally hire only people of like faith.
If constitutional challenges arise, he said, the American Center for Law and Justice, a major Christian law firm in Washington, has agreed to represent the ministry without charge....
Robinson's concept is to put inmates into a Christian environment where they can learn, work and grow spiritually during the last year or so of their incarceration. They would work at businesses that are set up in the prison, where they would learn a marketable skill and earn money for their families, for restitution to their victims, and for a nest egg when they are released. "We want to turn criminals into citizens," he said.
I am generally a fan of faith-based prisons, especially because early research suggests they are more effective at rehabilitative programming. So I hope this project gets off the ground and does not get unduly thwarted by litigation that will use up state and other resources that would be better allocated to inmate programs.
Lots of good reading around the blogsphere
A busy week with travel and grading commitments has largely kept me from making the usual blog rounds this week. But here are a list of a few old faithfuls that have lots of good reading for criminal justice fans to catch up with over the weekend:
"Student's Privacy Rights Violated in Pa. 'Sexting' Case, ACLU Suit Says"The title of this post is the headline of this interesting piece by Shannon Duffy in the The Legal Intelligencer. Here is how it starts:
The hot-button issue of "sexting" is coming back to court and this time the ACLU is setting out to establish that high school students have a right to privacy that includes the contents of their cell phones.
A team of lawyers from Cozen O'Connor has partnered with the ACLU of Pennsylvania to sue on behalf of a student who claims her constitutional rights were violated when the principal confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.
ACLU legal director Witold Walczak said the issue is an important one because many school officials incorrectly believe they have the right to search through cell phones whenever a student is misusing one. "We try to explain to them that they have the right to confiscate it, but they don't have the right to look through it," Walczak said in an interview.
Once again, the case stems from the wave of sexting discovered among students at Tunkhannock junior and senior high schools in Wyoming County, Pa., and the reactions it sparked in school officials and prosecutors.
In a previous lawsuit that was aimed only at the Wyoming County prosecutors, three students won an injunction that barred any prosecutions of students on child pornography charges for the nude and semi-nude images found on their phones.
According to that suit, school officials turned over the students' phones to former Wyoming County District Attorney George Skumanick Jr., who responded by targeting 13 girls and three boys with threats of criminal charges if they did not agree to take a class he had designed on the dangers of sexting.
Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the ACLU to challenge the threatened prosecutions. Lawyers from the American Civil Liberties Union of Pennsylvania won an injunction from U.S. District Judge James Munley that was later upheld by the 3rd U.S. Circuit Court of Appeals.
Some related "sexting" posts:
- Third Circuit upholds bar on sexting prosecution threatened by state DA
- The many fascinating legal and social issues swirling around "sexting"
- Federal district judge enjoins controversial state sexting prosecution
- Ohio ACLU writes to local lawmakers and prosecutors about sexting
- "Ohio judge sentences 2 teens for sexting"
- Some of the latest "sexting" news and notes
- Vermont legislature considering "sexting exception" to child porn prohibitions
- Pennsylvania town struggling with a "rash of sexting incidents"
- Should sexting lead to sex offender registration?:
Detroit City Council to make a victim impact statement in sentencing of former mayor Kwame KilpatrickThis local article, which is headlined "City Council Writing Victim Statement: Council's Statement To Be Read At Ex-Mayor's Sentencing," reports on an intriguing example of victim input in a high-profile sentencing. Here are the basic details:
Members of the Detroit City Council want their voices heard next Tuesday in the form of a victim impact statement when former Detroit Mayor Kwame Kilpatrick is sentenced for probation violation.
Council members were meeting with attorney William Goodman Friday to draft the statement. Goodman represented the council when it tried to force Kilpatrick from office before he resigned.
Council members said they want the statement, which will spell out the damage they say Kilpatrick has caused the city, to be read before his sentencing in Wayne County Circuit Court next Tuesday morning.
The Michigan Department of Corrections has said it already has finished Kilpatrick's pre-sentencing report.
Last month, Groner ruled that Kilpatrick violated terms of his probation by failing to report assets and turn over tax refunds toward restitution owed the city. Kilpatrick pleaded guilty in 2008 to misconduct tied to his lying under oath about an affair with a staff member in a whistle-blowers' lawsuit. He served almost four months in jail, agreed to give up his law license and his political career and repay the city $1 million for settling an employment lawsuit related to his misdeeds.
He had been making monthly payments of $3,000 while living in the Dallas area and working as a salesman for information-technology company Covisint.
In February, Groner ordered the stepped-up payments of $79,000 within 30 days and another payment of $240,000 within 90 days after a contentious six-day hearing, spanning from October to December -- which was triggered by Kilpatrick’s claim that he had only $6 a month left after living and family expenses in his new home in Southlake, Texas.
During the hearings, prosecutors revealed Kilpatrick and his wife had hidden assets; put money in other accounts, including $240,000 in loans; live in a rented mansion; and drive fancy SUVs....
Kilpatrick's attorney Michael Allen Schwartz has said he doesn't believe Kilpatrick should serve jail time because that would impede his ability to work and pay back the city.
California Democrats making a push for repeal of state's death penalty
I am already keeping on eye on crime and justice politics in California because of the marijuana legalization ballot initiative going to the voters this fall. And this recent front-page article from the San Francisco Chronicle, which is headlined "Dems want to scrap death penalty in California," highlights that at least on major party is making capital punishment repeal another hot political topic on the left coast. Here are the basics from the start of the article:
The California Democratic Party is calling for abolition of the death penalty, defying conventional political wisdom and raising an issue that its candidate for governor might prefer to avoid.
Democratic leaders have previously passed resolutions opposing capital punishment, but the party says its records indicate it has never enshrined the position in its platform -- the formal statement of its principles -- until this year.
The platform, approved April 18 at the party's convention in Los Angeles, includes a declaration that Democrats will "replace the death penalty with a term of permanent incarceration, which will serve to protect the public, provide swift and certain justice for victims' families, and save the state an estimated $1 billion over the next five years."
The Democrats' action drew little attention until advocacy groups, who had pressed the party for years to oppose capital punishment, issued a release last week proclaiming victory.
I find it telling and somewhat troubling that the California Democratic Party is eager to make a big issue of an essentially dormant punishment option instead of being focused on the state's bulging prison population and the state's obvious need for effective general sentencing reform. But it is not really that surprising to see another setting in which the death penalty become a high-profile and symbolic distraction from more day-to-day consequential crime and punishment issues.
"First, They Came for the Sex Offenders"The title of this post is the heading of this interesting new commentary at Cato's @ Liberty blog by David Rittgers. Here is how it starts:
First, they came for the sex offenders. I am not a sex offender, but I opposed the civil commitment of sex offenders by the federal government because it is not an activity within the enumerated powers of Congress. The Supreme Court decided otherwise in Comstock, with the exception of Justices Thomas and Scalia.
Next, they will come for suspected terrorists. As Dahlia Lithwick (who I rarely agree with...) points out, the Supreme Court’s decision in Comstock may have some frightening implications for domestic preventive detention of terrorism suspects in lieu of criminal prosecution.
I saw this firsthand last summer when I attended a scholars meeting with the Obama administration’s Detention Policy Task Force (the same one that Andy McCarthy publicly refused to attend). I gave my views on where detention policy should go, as did a conference room full of experts on the laws of armed conflict and criminal justice (who shall remain anonymous, as this meeting was off the record). I was dismayed to hear a law professor from a prestigious university propose a system of preventive detention as the logical solution to countering terrorism. Worse yet, to make this law less provocative, the professor further proposed that preventive detention should be applied in other criminal contexts, so that the department of pre-crime would not be seen as unfairly targeting only enemy combatants overseas. This professor had taught many of the Department of Justice staffers in the room, and I looked around to see heads nodding at the suggestion.
May 20, 2010
Florida Supreme Court reverses death sentence on proportionality reviewAs detailed in this local AP story, Florida's "state Supreme Court has overturned the death sentence of a crack-bingeing killer who beat his girlfriend to death with a baseball bat in the Florida Panhandle." Here are more of the details of the ruling:
The justices, in a 5-2 opinion Thursday, ordered a life sentence for Kirk Douglas Williams for the 2006 murder of Susan Littrell Dykes in Walton County. They ruled Circuit Judge Kelvin Wells erred by rejecting drug impairment as a mitigating factor.
A psychologist testified Williams was unable to appreciate the criminality of his actions because he was strung out....
The dissenting justices agreed with reversing the death sentence but would have ordered a new sentencing hearing.
The full ruling is available at this link. Here is how it begins:
This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. This Court has mandatory jurisdiction. See art. V, § 3(b)(1), Fla. Const. The defendant raises issues related only to the penalty phase: specifically, the trial court‘s findings of multiple aggravating factors and the trial court‘s failure to find uncontroverted statutory mitigation.
Williams is unquestionably guilty of first-degree murder and does not challenge his conviction. As to the imposition of the death sentence, we conclude that this crime is not one of the most aggravated and least mitigated of murders to qualify for the ultimate penalty — death. Rather than a carefully planned murder, the evidence demonstrates that this murder occurred after an argument erupted with the victim, with whom Williams lived. For the reasons fully explained in this opinion, we vacate the death sentence and remand the case for the imposition of a sentence of life imprisonment without the possibility of parole.
"Fast-Track Sentencing Disparity: Rereading Congressional Intent to Resolve the Circuit Split"The title of this post is the title of an important new Comment by Thomas Gorman that now appears in the University of Chicago Law Review (and is available here via SSRN). This Comment throughtfully engages with what I view to be one of the most interesting and dynamic (and consequential) post-Booker issues. Here is the abstract:
Early Disposition Programs -- commonly referred to as "fast-track" sentencing - allow a federal prosecutor to offer a below-Guidelines sentence in exchange for a defendant's prompt guilty plea and waiver of certain pre-trial and post-conviction rights. Typically, fast-track sentencing is used to quickly process an overwhelming caseload of immigration offenses. Fast-track programs received official sanction when Congress, in the PROTECT Act, directed the Sentencing Commission to authorize them. This authorization requires both the local US Attorney and the Attorney General to approve the implementation of each program. As a result, fast-track sentencing is presently approved in just a fraction of judicial districts. Therefore, not all defendants are eligible for a reduced fast-track sentence, and eligibility is dependent on where they are found and prosecuted.
Defendants in non-fast-track districts argue that this geographic disparity triggers 18 USC § 3553(a)(6), which states that sentencing courts must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." These defendants argue that sentencing courts in non-fast-track districts have the discretion to grant below-Guidelines sentences to mitigate the disparity.
The circuit courts uniformly agreed that sentencing courts could not mitigate the fast-track disparity prior to the Supreme Court’s decision in United States v Kimbrough. In Kimbrough, the Court noted that the Sentencing Guidelines are advisory, and that sentencing courts have broad discretion to impose a below-Guidelines sentence if it is necessary to ensure that the sentence is “sufficient, but not greater than necessary.” Congress, if it wants to limit this discretion, must do so explicitly. In light of this decision, the circuits have begun to reconsider their precedent on fast-track sentencing and a split has developed. The First and Third Circuits now hold that "sentencing courts can consider items such as fast-track disparity" when deciding whether to grant a below-Guidelines sentence. The Fifth, Ninth and Eleventh Circuits continue to hold that sentencing courts may not mitigate the fast-track disparity.
This Comment attempts to resolve the split by arguing that circuit courts have erred by focusing on the one-sentence authorization of fast-track in the PROTECT Act. The statutory language is ambiguous, so it is not helpful in resolving the debate. Therefore, this Comment argues for an investigation of legislative intent.
An intent analysis requires a thorough examination of congressional efforts to reform sentencing, rather than a limited inquiry into the PROTECT Act’s one-sentence authorization of fast-track. The purpose of the fast-track authorization is clearer when the statute is considered in the context of Congress’ long campaign to reform sentencing. For the last 30 years, Congress has consistently prioritized two goals: promoting harsh sentences and reducing unwarranted sentencing disparities. These goals are also what drove Congress to authorize a limited form of fast-track sentencing.
This Comment argues that granting sentencing courts the discretion to mitigate the fast-track disparity is more supportive of Congress’ goals than any alternative. It is also more consistent with the Supreme Court’s recent rulings defending judicial discretion.
May 20, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack
Interesting Sixth Circuit decision on rehabilition as a federal sentencing factor
The Sixth Circuit handed down this morning an interesting little panel opinion in US v. Jimenez, No. 08-6435 (6th Cir. May 20, 2010) (available here), which discusses some interesting post-Booker sentencing issues. Here is how the opinion starts:
Defendant Blanca Jimenez, a citizen of Mexico, pleaded guilty to the charge of illegally re-entering the United States after having previously been deported following an aggravated felony conviction. The district court sentenced her at the low end of the advisory Sentencing Guidelines range to a prison term of 30 months. Defendant contends on appeal that the district court miscalculated the Guidelines range by relying on findings that were not supported by sufficient evidence. She also contends the sentence is substantively unreasonable because the district court relied on an impermissible purpose in imposing the prison sentence — namely, to promote rehabilitation. For the reasons that follow, we affirm the judgment of sentence.
Would Jean Valjean get a departure or variance in the federal sentencing system?The question in the title of this post with the reference to the fictional thief made famous in Victor Hugo’s classic Les Miserables is inspired by this local news story from the heartland. The piece is headlined "Hoosier says robbery was to help pay for wife's cancer treatment," and here are the basic details:
Sentencing will be in September for an Indiana man who federal authorities say helped rob a southern Illinois bank at Christmastime because he needed the loot to pay for his wife's cancer treatment.
Sixty-one-year-old Daniel Ravellette of Vincennes, Ind., pleaded guilty Tuesday in East St. Louis to aggravated bank robbery and a weapons count. Authorities say Ravellette and another masked suspect robbed a Regions Bank in Lebanon last Dec. 19, when Ravellette pointed the guns at tellers and threatened them. Ravellette later fired several shots at police before he was taken into custody with two other suspects.
Authorities have said Ravellette told investigators he masterminded the holdup because his wife has cancer and he needed money.
This additional local story indicates that the other two suspects also have tales of woe to explain their criminal behavior:
Ravelette's two accomplices said they were unemployed and needed money to buy Christmas presents for their kids. Donald C. Long, 31, of Vincennes, and Zacharay E. Richey, 23, of Lawrenceville, Ill., are charged in connection with the bank robbery. They are in custody pending trial. Ravelette and another male entered the bank at 11:59 a.m., one minute before closing, Dec. 19. They wore blue skeleton masks and black gloves and carried firearms. A third male waited outside as a lookout and get-away driver.
Ravelette pointed the guns at and threatened the bank tellers. He also fired several shots at the pursuing O'Fallon police officer....
Ravelette faces up to 35 years in prison. His sentencing is scheduled for Sept. 9.
May 19, 2010
Did the Chief initially have (but then lose) Justice Alito's vote in Graham?
As my prior posts highlight, I am intrigued and taken by many aspects of the substance of Chief Justice Roberts' concurrence in the Graham Eighth Amendment case. But, in re-reading this opinion today, I was also intrigued and taken by a surprising pronoun in this paragraph from page 6 of the Chief's opinion:
JUSTICE THOMAS disagrees with even our limited reliance on Roper on the ground that the present case does not involve capital punishment. Post, at 26 (dissenting opinion). That distinction is important — indeed, it underlies our rejection of the categorical rule declared by the Court. But Roper’s conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases, and rightly informs the case-specific inquiry I believe to be appropriate here.
The use of the pronoun "our" in the two spots highlighted here suggests to me that, at some point, Chief Justice Roberts may have believed he had a fellow-traveler prepared to sign on to his separate concurring opinion finding Graham's sentence's unconstitutional based on "traditional" case-by-case proportionality review. I suppose it is possible that one of the five Justices in the Graham majority was the expected fellow-traveler, but I think it much more likely that Chief Justice Roberts was writing with the expectation that Justice Alito would be willing to join his opinion. My speculation seems supported by the fact that Justice Alito ultimately did not sign on to Parts II and IV of Justice Thomas's dissent in Graham (as well as Justice Alito's separate little opinion saying he ultimately did not think defendant Graham had properly presented/preserved a case-by-case proportionality attack on his sentence).
Of course, all we know for sure is what is will in the US Reports, so maybe I am reading too much into a royal pronoun. But it strikes me as a very interesting and quite important story for the future of noncapital Eighth Amendment jurisprudence if Justice Alito is largely in agreement with the substance of Chief Justice Roberts' approach to proportionality review. Specifically, it means that (assuming a Justice Kagan follows in the path of Justice Stevens) now there may be as many as 7 Justices prepared (and even eager?) to breathe significant new life into Eighth Amendment review of noncapital sentences.
Some recent related posts with Graham analysis:
- Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
- Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
- Strong arguments for second-look sentencing reforms from SCOTUS concurrences
- Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
- Originalist Grahamcrackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?
Utah murderer who selected firing squad as execution method to get (high-profile) commutation hearingAs detailed in this local story, which is headlined "Board of Pardons agrees to hold hearing for Ronnie Lee Gardner," spotlights why the selection of a firing squad by a Utah killer might have been a shrewd strategic decision. Here are the basics:
Less than a week before his scheduled execution by firing squad, Ronnie Lee Gardner will appear before the Board of Pardons to ask to have his sentence changed to life in prison without the possibility of parole. A commutation hearing has been scheduled for Gardner, 49, for June 10 and 11, and filings in the case boil down to one question — whether the death row inmate deserves any mercy.
Gardner's attorneys believe his sentence is too harsh when compared to the others who have been executed in Utah, and the lawyers argue that the state should show "mercy" for Gardner, who they say is "no longer the same man who committed the crime for which he is sentenced to death."
The Utah Attorney General's Office responded by expressing an opposite view. "There is no question about Gardner's guilt," prosecutor Tom Brunker wrote. "Gardner has not shown that he is entitled to mercy or that the Board of Pardons should set aside a jury's sentence that the judiciary has found to be constitutionally sound, even after 25 years of review."
The decision by Gardner to select a firing squad as the method of execution likely ensures that his commutation hearing will get significantly more national and international attention than most such hearings. Though that may have not been a reason why he made this choice, it is going to be interesting to see whether and how that choice plays into Utah's commutation process.
"I'm a criminal and so are you"The title of this post is the headline of this terrific new commentary on CNN.com from my Moritz College of Law colleague Michelle Alexander. Here is part of the editorial set-up for the piece and some snippets of the piece itself:
Editor's note: America's 300 million-plus people are declaring their identity in the 2010 Census this year. This piece is part of a special series on CNN.com in which people describe how they see their own identity. Michelle Alexander is the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press, 2010). She is the former director of the Racial Justice Project of the ACLU of Northern California and of the Civil Rights Clinic at Stanford Law School. She holds a joint appointment with the Kirwan Institute for the Study of Race and Ethnicity and the Moritz College of Law at The Ohio State University.
Who am I? How do I identify?
Lately, I've been telling people that I'm a criminal. This shocks most people, since I don't "look like" one. I'm a fairly clean-cut, light-skinned black woman with fancy degrees from Vanderbilt University and Stanford Law School. I'm a law professor and I once clerked for a U.S. Supreme Court Justice -- not the sort of thing you'd expect a criminal to do.
What'd you get convicted of? people ask. Nothing, I say. Well, then why do you say you're a criminal? Because I am a criminal, I say, just like you. This is where the conversation gets interesting.
Most of my acquaintances don't think of themselves as criminals. No matter what their color, age or gender, most of the people in my neighborhood and in my workplace seem to think criminals exist somewhere else -- in ghettos, mainly.
They have an unspoken, but deeply rooted identity as "law-abiding citizens." I ask them, "Haven't you ever committed a crime?" Oddly, people often seem perplexed by this question. What do you mean? they say. I mean, haven't you ever smoked pot, didn't you ever drink underage, don't you sometimes speed on the freeway, haven't you gotten behind the wheel after having a couple of drinks? Haven't you broken the law?
Well, yeah, they say, but I'm not a criminal. Oh, really? What are you, then? As I see it, you're just somebody who hasn't been caught. You're still a criminal, no better than many of those who've been branded felons for life.
Perhaps there should be a box on the census form that says "I'm a criminal." Everyone who has ever committed a crime would be required to check it. If everyone were forced to acknowledge their own criminality, maybe we, as a nation, would second-guess our apparent zeal for denying full citizenship to those branded felons.
In this country, we force millions of people -- who are largely black and brown -- into a permanent second-class status, simply because they once committed a crime. Once labeled a felon, you are ushered into a parallel social universe. You can be denied the right to vote, automatically excluded from juries and legally discriminated against in employment, housing, access to education and public benefits -- forms of discrimination that we supposedly left behind. This kind of stigma, discrimination and social exclusion may befall you for no reason other than you were once caught with drugs.
I doubt Barack Obama thinks of himself as a criminal, though he should. He has admitted to using illegal drugs during his college years -- lots, in fact. What if he thought of himself as a criminal? What if he identified that way? Would it lead him to feel a bit more compassion for those who are branded drug felons for life, unable to find work or housing, and deemed ineligible even for food stamps?
Maybe if Obama thought of himself as a criminal he wouldn't have just endorsed spending even more money on prisons at a time when scarce resources would be much better spent on education or health care, or just about anything else.
As regular readers know, one needs also to add permanent denial of the Second Amendment right to armed self-defense in the home to the list of forms of discrimination that all felons now experience under current federal laws.
US Sentencing Commission announces big public hearing on mandatory minimumsAs detailed via this little notice, the United States Sentencing Commission has scheduled a public hearing for all day next Thursday at the Thurgood Marshall Federal Judiciary Building in Washington, D.C. As the notice explains, the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing." The list of invited witnesses scheduled to testify next week at the USSC can be found here, though who will testify on behalf of the United States Department of Justice is not indicated (and may not yet be known).
I suspect all the testimony at this hearing will be interesting, even though the positions likely to be taken by certain witnesses are obvious. (For example, I fully expect that Julie Stewart, the President of Families Against Mandatory Minimums, will be testifying against the use of statutory mandatory minimum penalties in federal sentencing.) But, except for coming out against crack/powder sentencing disparity, the Obama Justice Department has not yet had too much to say about mandatory minimums. It will not be able to dodge taking at least some positions in this USSC hearing, and so everyone should stay tuned.
This official press release from the USSC provides more backgrounds on this hearing and provides this explanation of how Congress has made it happen:
In October 2010 [sic; should be 2009], Congress directed the Commission to undertake a comprehensive review of these penalties as part of the Matthew Shepard and James Byrd Hate Crimes Prevention Act (Sec. 4713 of Pub. L. No. 111—84).... [A] report is due to Congress no later than October 28, 2010.
Congress provided a detailed list of topics it expects the Commission to cover in its report, including –
The Commission expects that these topics, as well as other issues associated with federal statutory mandatory minimum penalties and the federal sentencing system, will be addressed during the hearing.
- assessing the effects of mandatory minimum sentencing on the goal of eliminating unwarranted sentencing disparity, the other goals of sentencing, and the federal prison population;
- assessing the compatibility of mandatory minimum sentencing laws and the current federal guidelines system;
- describing the interaction between mandatory minimum sentencing and plea agreements; and
- discussing means other than mandatory minimums by which Congress can act in regard to sentencing policy.
Ponzi schemer suggests European losses should be excluded from sentencing calculationsThis local story about a federal hearing from Tennessee highlights some interesting sentencing arguments being made about a ponzi schemer. Here are highlights:
Convicted Gatlinburg swindler Dennis Bolze will testify today in a hearing to determine what factors should be considered in determining his sentence.... Bolze is seeking a reduction in a recommended sentence range of 27 years to 33 years and nine months.
Sentencing is set for June 22. Two of Bolze's local victims testified earlier today. "Dennis Bolze deserves the maximum penalty," said Don Cason, who was a close personal friend of Bolze.
Cason said he and his family have lost nearly everything in Bolze's Ponzi scheme. "He reached into our heart, grabbed it and threw it out," Cason said.
Bolze, hoping to reduce the recommended minimum prison sentence of 27 years, asked to have his dealings in Europe - where most of his victims live - to not be counted against him when his sentence is determined.
Federal prosecutors responded by describing Bolze as a man of "stunning audacity" who should serve close to 34 years in prison.
Documents filed in U.S. District court indicate that Bolze backed off his request to be excused from his European deals after he and his lawyer read letters from victims and reviewed the evidence against him. But he continues to seek a lesser sentence based on other grounds.
Bolze, 60, pleaded guilty in November to running a Ponzi scheme that raked in $21.5 million. Besides the Europeans, his victims include close personal friends in East Tennessee. "Bolze personally traveled to Europe to pitch his Ponzi scheme," Assistant U.S. Attorney Trey Hamilton said in court pleadings. "(His) scheme to defraud had no substantive difference between foreign and domestic investors."...
Hamilton describes as "outlandish" a plan Bolze submitted for making restitution to the victims. And he noted that the seizure and planned sale of Bolze's only known major asset, his 16,000-square-foot custom built home in Gatlinburg, will be of no benefit to his investors because it was used it as collateral to secure several loans.
In their push for a maximum sentence, prosecutors filed as exhibits letters from several devastated and angry investors, whose names were redacted. "I am now 58 years of age and have been in a wheelchair disabled by polio most of my life," one investor wrote. "My mother's money was to help me with my every day living, especially as I got older."
"I personally have lost all of my life savings and all of those of my 85-year-old father," another victim wrote. "Dennis Bolze has robbed me of a contented, financially secure retirement. He has caused my elderly parents great trauma and anxiety."
Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?
Having now had a chance to read and reflect on Justice Thomas's dissent in the Graham Eighth Amendment case, I am back to using the tasty term Graham crackers to flag what I view to be the really deep and really hard (and thus really tasty) intellectual questions that Graham raises. Specifically, as flagged by the title of this post, I am wondering if all originalists agree with Justice Thomas's seeming conclusion that the LWOP sentence at issue in Graham is obviously constitutionally sound. There are two aspect of this question I wish here to unpack.
1. Might an originalist see extreme incarceration as a worrisome "method" of punishment?: A key move in Part II of Justice Thomas's dissent is to assert that Eighth Amendment proportionality analysis is an improper jurisprudential creation by the modern Supreme Court. According to Justice Thomas, it is "now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted." Dissent at 3-5 (emphasis in original; cites omitted). In this discussion, via a parenthetical to a legal history cite, Justice Thomas thereafter notes that "crimes in the late 18th-century colonies generally were punished either by fines, whipping, or public 'shaming,' or by death, as intermediate sentencing options such as incarceration were not common." Id.
Significantly, Justice Thomas does not take a moment to connect these historical dots before launching into a (relatively effective) attack on aspects of the majority's proportionality work. That is, though he notes that the so-called "intermediate sentencing option" of incarceration was uncommon at the time of the Constitution was written, Justice Thomas never explains or explores whether the Framers and/or ratifiers of the Eighth Amendment might have considered permanently locking a person in a cage for his entire life to be a "torturous method of punishment" that is akin to punishment "considered cruel and unusual at the time the Bill of Rights was adopted."
In modern times, there is a broad tendency to assume that death is obviously a more extreme punishment then LWOP. Whether this is true as a modern reality, I do not think it would be so obviously true for the Framers and/or ratifiers of the Eighth Amendment. After all, Patrick Henry famously cried "Give me liberty or give me death!" Moreover, there is little doubt that certain forms of extreme incarceration could readily become a "torturous method of punishment." For example, imagine if a legislature as a cost-cutting measure ordered that prisoners who committed the certain crimes should receive only one serving of bread and water per day or that certain offenders should be kept permanently in a minuscule cell without any light or ventilation or toilet facilities. I suspect some (many? most?) originalists would think this kind of use of incarceration as method of punishment would be akin to what the Framers sought to prevent via the Eighth Amendment. Is it too mcuh of a stretch, then, for some originalists to view use of LWOP, which tells an offender he will never again have even a chance to live outside a cage and will only be able to leave prison via a coffin, as a potentially "torturous method of punishment"?
2. Might an originalist see LWOP as a structural constitutional problem?: Thinking about Justice Thomas's originalist instincts against the backdrop of the second-look ideas in the Graham concurrences leads me to another (originalist?) point. I have been lately thinking about the Eighth Amendment in light of the Constitution's obvious affinity for separating government powers and structural checks and balances. Of particular note, the Framers through the Reprieves and Pardons Clause, granted the U.S. President what might be called broad criminal justice second-look power. Indeed, this Clause has been interpreted to mean that Congress cannot pass a law that in any way restricts the President's clemency authority.
If an originalist were now to view parole boards as the modern loci for historic clemency powers --- and that is a big IF --- such an originalist might have structural concerns with any legislative efforts to entirely eliminate a parole board's authority to give relief to certain offenders. Stretching these concepts may bring one perhaps problematically close to claiming that the Constitution creates a kind of right to parole in all cases, and this would seem to be a hard (originalist?) argument to make truly compelling. But I do think there is something to the idea that the Framers would be uniquely troubled by the way LWOP sentences concentrate permanent power over certain types of offenses or offenders; in turn, I think some originalists could find especially appealing at least Chief Justice Roberts' sense that appellate judges must sometimes use the Eighth Amendment as a kind of constitutional backstop for extreme imprisonment punishments.
Because I am not a true originalist, I may be crazy to even try to unpack my instincts that there is more to say about originalism and the Eighth Amendment than what gets said by Justices Scalia and Thomas in this setting and others. But, perhaps because some true originalists may inclined to read and respond to my musings here, I hope that what I have said in this post could start a dialogue about originalism and modern punishment practices.
Some recent related posts with Graham analysis:
- Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
- Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
- Strong arguments for second-look sentencing reforms from SCOTUS concurrences
- Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
UPDATE: In the comments, Sara Mayeux points to this terrific post of hers from a few days ago at Prison Law Blog, where she makes these trenchant points (among others) that echo my musings in point 1 above:
Both Stevens and Thomas ... seem to assume that 18th century and 21st century beliefs about the hierarchy of punishments are basically the same, even if beliefs may change about where on that hierarchy punishment stops being “decent” and starts being “cruel and unusual” (and even if Stevens and Thomas disagree about whether that move matters for Eighth Amendment jurisprudence). That is, both justices seem to assume that, just like a 21st century person, an 18th century person would obviously have thought death was worse than LWOP....
Here’s the big problem: I suspect that late 18th century people would have had simply and utterly no way to conceive of LWOP, much less place it on a hierarchy with the death penalty. Some jurisdictions used prison terms as punishment by the late 18th century, but it wasn’t yet the default (not until about 1810 in Northern states and later in other regions), sentences weren’t nearly as long as they are today, there was no such thing as “parole,” prisons were very different sorts of institutions, etc., etc., etc. I actually wonder if a late 18th century person might not have thought LWOP crueler than a quick execution, or at any rate very bizarre (why not just end the child’s life if he is truly irredeemable, is what I expect an 18th century person might have thought), but I don’t study that period enough to be confident in that. I do know enough to be confident that to answer this question satisfactorily would take a lot more research into late 18th century beliefs about crime, punishment, the nature of life and death, etc., than just assuming that whatever we today think is a “harsher” punishment is also what a person in an entirely different time and place would think.
In another related originalist reference, a helpful reader reminded me that NYU's Center on the Administration of Criminal Law filed this amicus brief which sought to provide some originalist arguments in favor of Sullivan and Graham. The NYU amicus brief's principal histoircal point is that "the elimination of proportionality review in the noncapital context would be inconsistent with the Eighth Amendment's tect and original meaning."
"Why Care About Mass Incarceration?"The question in the title of this post is the title of this book review by James Forman, Jr. recently published by the Michigan Law Review. The piece reviews Paul Butler's recent work, Let's Get Free: A Hip-Hop Theory of Justice. Here is an excerpt from early in the review:
Paul Butler’s arrest and prosecution transformed his thinking about crime and punishment, and Let’s Get Free is his effort to cajole the nation into a similar transformation. He wants America to incarcerate fewer people, and almost no drug offenders. He explains why juries should consider nullifying in nonviolent cases and why prosecutors should rely less on informant testimony. In a chapter that should be required reading for every student considering a career in criminal law, he provocatively claims that no one who cares about justice should become a prosecutor (Chapter Six). And he argues that his proposals should be adopted because they will make all of us — including the law-abiding majority — better off.
This assertion — that punitive crime policy hurts not just criminals but the rest of us — is the heart of Let’s Get Free. Butler’s argument is fresh, provocative, and worth our attention.
Should sentencing fans be excited about voters "throwing the bums out" of DC?
The results of yesterday's various elections can and will be spun in many ways, though the essential anti-incumbent reality has to be part of any spin. And, given what I view as the extremely poor modern sentencing records of all the Congresses run by all the old guys inside the Beltway over the last 20+ years, my spin on yesterday's work of democracy is simply "Yea!".
Conventional wisdom in DC has long been that even a single legislative vote that seemed "soft on crime" in any way was a primary way (and perhaps the only way) that an incumbent could seriously risk re-election prospects. For this reason, for the last two decades, nearly everyone inside the Beltway (save Senator Jim Webb and a few rare others) has largely avoided any and all serious and frank discussion of the expensive failures of the drug war or of the modern social and economic consequences of mass incarceration.
But no longer can or should members of Congress consider their seats safe if they just avoid hard issues. Indeed, the optimist in me hopes that some inside DC see yesterday's results as a statement by voters that officials can and will get throw out for failing to tackle tough issues. (The cynic in me tells my optimist to keep dreaming, and the realist in me says a viable and enduring third party with a concern about these issues may be essential for there ever to be a real push for effective criminal justice reforms at the federal level.)
I would be even more excited about all these 2010 political realities if the tea party folks turned some of their anger and energy toward government waste and expense in the drug war and mass incarceration. But, I am hopeful that it is only a matter of time before big criminal justice government gets attacked by the tea party or others who are justifably skeptical about the ability for large government institutions to tackle problems effeciently and effectively.
May 19, 2010 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (7) | TrackBack
May 18, 2010
Split Ohio parole board recommends clemency for next murderer in line for Ohio death chamberAs detailed in this local article, the "Ohio Parole Board said today that a Cincinnati man who killed his long-time girlfriend in an alcohol-induced rage should not be executed." Here are the details:
By a 4-3 vote, the board recommended to Gov. Ted Strickland that he should grant clemency for Richard Nields, who turns 60 on Wednesday. Nields is scheduled to be lethally injected on June 10 at the Southern Ohio Correctional Facility near Lucasville.
The four members of the board who voted to recommended clemency said they were concerned about faulty medical evidence in the case and also about judicial opinions indicating the Nields may not deserve the death penalty.
The 6th U.S. Circuit Court of Appeals said the facts in the case "just barely get Nields over the death threshold." Ohio Supreme Court Justice Paul E. Pfeifer wrote a strong dissenting opinion when the case was decided in 2002.
"The type of crime Nields did is not the type of crime the General Assembly did contemplate or should have contemplated as a death penalty offense... It is about alcoholism, rage and rejection and about Nields' inability to cope with any of them. It is a crime of passion imbued with pathos and reeking of alcohol."
Parole board members who said Nields should be denied clemency cited his history of abuse against women, the fact robbery was part of the crime, and that Nields has not been "forthcoming about details of the offense and his prior history of violence."
Strickland will make the final life-or-death decision in Nields case.
As detailed in this press report, the local prosecutor who helped put Nields on Ohio's death row is not too pleased with the Ohio Parole Board's recommendation:
Prosecutor Deters commented, "The implication of the Parole Board's opinion is that a deliberate murder during an aggravated robbery does not merit the death penalty. This office rejects that notion and suggests that the Parole Board is bound by Ohio law in this regard. They are not free to disregard this judgment of the Ohio legislature as to what crimes are death eligible. In view of the lack of mitigation presented, their decision is unfathomable.
For this board, after thirteen years, to second guess jurors and numerous judges is both frustrating and disturbing. I just hope that Governor Strickland will reject this recommendation for clemency and let justice be carried out."
Notably, last year Governor Strickland (as urged by Ohio AG Richard Cordray) did reject a Parole Board recommendation for clemency for another condemned murderer. I have an inkling that Governor Strickland might follow the same course again, but only time will tell.
Somali pirate takes a federal plea to hijacking charge to limit sentencing exposureAs detailed in this USA Today article, the "Somali man who helped commandeer the cargo ship Maersk Alabama last year has pleaded guilty in federal court in New York." Here is why:
Abduwali Abdukhadir Muse avoided life in prison after prosecutors dropped piracy charges. He's facing 27 to 33 years in prison for pleading guilty to seizing a ship by force and kidnapping when he and three others attacked the ship as it passed off the coast of Somalia in April 2009. He was the only pirate to survive; his companions were killed by Navy Seals during the rescue of Capt. Richard Phillips and his crew.
He'll face a different fate from some of his countrymen. Earlier today in Yemen, six Somali pirates were sentenced to death for hijacking a Yemeni oil tanker, also in April 2009, Reuters reported. One Yemeni crewmember was killed and another is missing and presumed dead.
Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
As I indicated in my Graham crackers post yesterday, I see Chief Justice Roberts' concurrence in Graham to be fascinating on many levels (full Graham opinion is here). Let me explain a bit more, and then in essence give the last word to Justice Thomas to highlight why the Chief's work in Graham makes the potential future of the Eighth Amendment perhaps even more fascinating.
First and perhaps most important, Chief Justice Roberts' Graham concurrence shows, yet again, that he is an independent and unpredictable thinker (and thus a potential swing vote) on challenging sentencing issues that reach the Court. Serious sentencing fans already know that Justice Alito is almost always going to vote with the prosecution in criminal cases that divide the Court, and early evidence suggests that Justice Sotomayor will be a predictably consistent vote for criminal defendants in tough cases. But, the Chief Justice's votes in cases like Cunningham and Ice (not to mention Gall and Kimbrough) show a pro-defendant streak in sentencing settings that merits notice and reflection. Grahamtakes this SCOTUS sentencing story to a new level, and especially highlights that the Chief is not inclined to merely try to replicate the work of his old boss, the late Chief Justice Rehnquist, in these settings.
Second and perhaps most interesting, Chief Justice Roberts' Graham concurrence shows that, at least in in some criminal justice settings, he is willing to write for himself and just for himself. I am not sure if this is the only significant solo separate opinion that Chief Justice Roberts' has written in recent Terms, but it is the only one in the criminal justice arena that I can recall. That the Chief opted to take the time to author such an astute and interesting solo concurring opinion in Graham suggest to me (1) that he is really personally invested in improving Eighth Amendment jurisprudence, (2) that (as explained in my Graham crackers post) he is drawn more to flexible case-by-case standards than to firm categorical rules in this (and perhaps other?) constitutional criminal justice settings.
Third and perhaps most consequential, Chief Justice Roberts' Graham concurrence could readily be seen as an invitation to a more robust consideration by lower courts of the Eighth Amendment as a real limit on all sorts of non-capital sentences. Footnote 1 of the Graham dissent of Justice Thomas makes this point clear:
Both the Court and the concurrence do more than apply existing noncapital proportionality precedents to the particulars of Graham’s claim. The Court radically departs from the framework those precedents establish by applying to a noncapital sentence the categorical proportionality review its prior decisions have reserved for death penalty cases alone. The concurrence, meanwhile, breathes new life into the case-by-case proportionality approach that previously governed noncapital cases, from which the Court has steadily, and wisely, retreated since Solem v. Helm, 463 U.S. 277 (1983).
I do not see anything in the Chief's concurrence that suggests he is troubled with his concurrence being read to "breath new life into the case-by-case proportionality approach." In fact, I see the Chief's failure to take issue with Justice Thomas' characterization as evidence that he would like to breath new life into Eighth Amendment review of non-capital sentences. And if this is true, perhaps we may see the Justices taking up more and more Eighth Amendment challenges to non-capital sentences during the Roberts era.
"Some Reflections on Conservative Politics and the Limits of the Criminal Sanction"
The title of this post is the title of this interesting piece on SSRN from J. Richard Broughton, which I came across only last night (even though it was posted more than a month ago). Obviously, the piece was written well before yesterday's SCOTUS rulings in Comstock and Graham, but the abstract highlights why the piece is still timely and especially worth reading while the ink is still drying on yesterday's intriguing SCOTUS opinions:
This Article, written for the Charleston School of Law’s recent symposium on Crime & Punishment, briefly addresses the significance of popular forces and conservative political thought in an American criminal justice regime that has become too broad in its scope and sometimes unnecessarily harsh in its treatment of certain offenders. Although conservatives can plausibly embrace some judicially-enforceable limits on the criminal law, a conservative view of structural constitutional considerations would still constrain the judiciary’s authority to undermine popular decision-making as to criminal law and punishment. This Article cites the Supreme Court’s disparate approach to capital and non-capital proportionality issues under the Cruel and Unusual Punishments Clause as an example. Those same structural considerations that would credit popular forces in constitutional adjudication, however, necessarily require popular forces to act as the chief definers of the criminal sanction and enforcers of its limits outside the realm of judicial review.
If conservative politics is to lead a more sensible popular approach to crime and punishment, it cannot do so with unhelpful “soft on crime/tough on crime” rhetoric or mass appeals to popular sentiment about the criminal justice issue of the day. Rather, it must do so through a conservatism grounded in constitutional balance: an appreciation for the tension between the need for order and the claims of liberty, avoiding the vice of impotence in the face of socially harmful conduct but robustly affirming limits to ensure that the government controls itself as well as the people. Conservatives can adhere to their impulse for preserving civil order and controlling the governed through formal institutions and arrangements, yet also rely upon those same forms to limit the government’s prosecutorial and penal reach. Such an approach may require conflict between the political branches of government. But such conflict is actually a constitutional virtue, and its absence has helped to create many of the current distortions in crime policy. This Article therefore suggests a popular (i.e., non-judge-made) and constitutionalist -- but not a populist -- approach to creating a more limited and responsible crime and punishment regime.
Interesting ineffective assistance ruling from the Sixth CircuitA Sixth Circuit panel has an intriguing ruling on an ineffective assistance of counsel issue today in US v. Munoz, No. 09-5357 (6th Cir. May 18, 2010) (available here). Here is how it gets started:
This case reaches us in an unusual posture: the government appeals the district court’s grant of a new trial under Federal Rule of Criminal Procedure 33. In the underlying trial, defendant Richard Munoz was found guilty of conspiracy to distribute methamphetamine and aiding and abetting distribution of methamphetamine. Approximately two months after the verdict, but before sentencing, Munoz obtained new counsel. Thereafter, Munoz belatedly moved for a new trial, arguing that trial counsel had provided constitutionally ineffective assistance. After an evidentiary hearing, the district court granted the motion, specifically grounding its new-trial grant on the violation of Munoz’s Sixth Amendment right to effective assistance of counsel.
We hold that the district court did not abuse its discretion in determining that Munoz’s untimely filing of his Rule 33 motion was the result of excusable neglect. However, because we find that trial counsel’s assistance more than met the minimum standard required by the Sixth Amendment, we reverse the district court’s grant of a new trial. We leave for another day the question, addressed neither by the district court nor the parties on appeal, whether a district court may grant a new trial based on lackluster representation that does not fall below the constitutionally required standard.
I find the question that here gets left for another day -- namely whether "whether a district court may grant a new trial based on lackluster representation" --- to be especially fascinating.
Fasincating on-line discussion of Graham ruling from the New York TimesI am pleased and intrigued to see that the New York Times has this spectial on-line section with four astute criminal justice commentators providing their views on the Supreme Court's work yesterday in Graham. The heading for this section is "Redefining Cruel Punishment for Juveniles," and here is a list of the commentors with links to their pieces:
Marc Mauer, The Sentencing Project, "Juveniles Are Different"
Tracey L. Meares, deputy dean, Yale Law School, "What the Court Didn't Do"
Kent Scheidegger, Criminal Justice Legal Foundation, "Unaccountable Judicial Activism"
Paul Butler, George Washington Law School, "It's About Time"
All of these relatively short pieces are worthy of a close read, and there are astute insights (and turns of phrases) in all these commentaries. But I especially want to highlight these interesting comments from the end of Paul Butler's piece:
The breaking news is Chief Justice Roberts. He broke away from his usual conservative running buddies to agree with the more progressive justices that the sentence in this case was unconstitutionally harsh. For liberals who thought that the chief justice could never be rehabilitated, judicially speaking, now there’s a glimmer of hope.
All of this helps make the liberal case for nominee Elena Kagan. President Obama’s stated hope is that Ms. Kagan would bring to the Supreme Court the consensus-building skills she displayed as dean of Harvard Law School. Though Justices Alito, Thomas and Scalia remain lost causes, it might be worthwhile for Justice Kagan to treat John Roberts to a mocha frappuccino every now and then.
This case also sends a message that President Obama knows how to pick justices with his same progressive values. Liberals had some concern about where Justice Sotomayor, the former prosecutor, would be on criminal justice issues, but in this case she signed a separate opinion with the two most liberal members of the court. That opinion basically says “Clarence Thomas, shame on you!”
So maybe Ms. Kagan’s liberal critics should chill out some. The president, when he interviews prospective Supreme Court nominees, seems to be doing a fine job of either speaking persuasively or listening deeply.
"Death penalty kills the budget"
The title of this post is the headline of this effective commentary making the financial case against bringing the death penalty back to Massachusetts. Here are snippets:
Among the 869 sundry amendments to the Massachusetts House budget bill is a proposal, sponsored by Rep. James Miseli, to reinstate capital punishment in the Commonwealth.... A 32-year veteran of the Massachusetts House of Representatives, the Wilmington democrat is a rock-solid law and order guy, and proud of it. For years he has yearned to see the death penalty restored in Massachusetts, a state that has not executed anyone since 1947 when two men were electrocuted at Charlestown State Prison. Feeling thwarted by House leadership in getting a full hearing for a capital punishment bill, Miseli chose the unconventional route of a budget bill add-on. Ironically, if the proposal were to become law, the state budget would be severely strained.
Miselli’s amendment resurrects former Governor Mitt Romney's capital punishment bill from 2005. Romney's proposal attempted to eliminate the chance of error by constructing a foolproof system informed by science, such as DNA and other high-tech approaches, to achieve a “no-doubt” standard. The layers of safeguards, including a tandem of top-notch defense attorneys, wide latitude in hiring experts, appeals and post-conviction review by panels of specialists, would have made the state's capital punishment machinery the most expensive in the nation. When Romney called his proposal a "gold standard," he wasn't kidding, at least about the gold part.
Notwithstanding my reluctance to judge justice purely in terms of dollars and cents, there is one absolute truth about capital punishment: it costs a state millions to establish and manage the process. When a prosecutor decides to seek the death penalty, the government incurs tremendous expense, not so much related to the execution itself, but associated with the trial and appellate review. Capital murder cases tend to involve more legal motions, more expert witnesses, and longer trials, including a separate penalty phase for the jury to decide between life imprisonment and the death penalty. And if the sentence is to be death, the per inmate cost of incarceration on death row is substantially greater than that for the general prison population.
Study after study have confirmed the high price tag for capital punishment. For example, an analysis of capital trial costs in Maryland, published by the Urban Institute, estimated the average expense of a successful death penalty prosecution to be about $3 million, triple the lifetime cost of a capital-eligible case in which prosecutors does not seek death. A recent estimate in Florida of the aggregate cost of administering the state’s capital punishment process was projected at $51 million annually....
Gov. Romney didn’t get very far in his effort to reintroduce capital punishment in Massachusetts, nor did Miseli in his most recent attempt. The Miseli-sponsored add-on was quickly and strategically eclipsed by an overriding amendment to send the capital punishment proposal for further study, which is typically the death sentence for unwanted legislation.
Some recent related posts on the costs of capital punsihment:
- Georgia struggles to pay for a costly capital system
- The challenging economics of death causing problems in Chicago
- Great new (though still dated) examination of the death penalty and plea bargaining
- CNN now talking about the costs of the death penalty and state reforms
- States considering laying off the death penalty during tough economic times
- The economic case against the death penalty getting more and more attention
- More discussion of cost concerns in debates over the death penalty
- Capital case cost concerns continue to inform reform debate
- Still more discussion of the costs of the death penalty
- "Opponents Focus On Cost In Death Penalty Debate"
- NY Times editorial assails "High Cost of Death Row"
- New DPIC report assails costs (and opportunity costs) of death penalty administration
- Is it true that nobody's view on the death penalty can be influenced by its costs?
May 17, 2010
Recapping my coverage of today's significant SCOTUS action
Since I have done a lot of posts (too many?) on today's significant sentencing rulings by the Supreme Court, I thought it might be useful in this final post of the day to recap my coverage via these links:
On the Graham juve LWOP Eighth Amendment ruling:
- SCOTUS finds Eighth Amendment problem with juve LWOP in Graham
- Some notable quotables from the opinion of the Court in Graham
- Comments from EJI about the Graham decision and Joe Sullivan's case
- Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
- Strong arguments for second-look sentencing reforms from SCOTUS concurrences
- Grahamcrackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
On the Comstock federal sex offender civil commitment ruling:
- SCOTUS upholds broad federal power to commit sex offenders in Comstock
- The political and PR benefits for SCOTUS (and others) from Comstock and Graham coming down together
- Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?
Strong arguments for second-look sentencing reforms from SCOTUS concurrences
My chief gripe with all LWOP sentences as a policy matter, especially now that modern presidents and governors have largely refused to give serious consideration to nearly all prison commutation requests, is that these sentences essentially pronounce and encrust a final fate for a defendant at the time of initial sentencing. Though good arguments can and have been made for "truth-in-sentencing" reforms that restrict the authority of a parole board or other institution to change significantly a sentence initially imposed by a judge, I think it folly to assume or even expect that "first-look" sentencing determinations (by prosecutors and/or judges and/or juries) will always be correct and thus should always be final.
The opinion for the Court in Graham speaks to these concerns when it notes that an LWOP sentence is akin to a death sentence in that "the sentence alters the offender’s life by a forfeiture that is irrevocable." And, of course, the Court goes on not only to note that LWOP "is an especially harsh punishment for a juvenile," but also to hold that such a sentence is unconstitutional for all juveniles convicted only of nonhomicide offenses. But I found some of the "second look" ideas expressed by the Graham concurrences to speak more generally to my own affinity for second-look sentencing reforms.
The brief concurrence by Justice Stevens (which was joined by Justices Ginsburg and Sotomayor), for example, makes these points:
Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time....
Though articulated here principally to justify Justice Stevens' concept of an evolving Eighth Amendment, I am inclined to give these insights a policy spin in tough budget times by replacing the phrase "cruel and unusual" with "ineffectual and unduly expensive." Whatever one thinks about LWOP and constitutional interpretation, as a policy matter I just think it a bad idea for jurisdictions to preordain that certain offenders will always take up prison space given that our societal crime and punishment needs and knowledge is always changing.
Similarly, Chief Justice Roberts has these astute comments at the close of his Graham concurrence (my emphasis added):
The Court is of course correct that judges will never have perfect foresight — or perfect wisdom — in making sentencing decisions. But this is true when they sentence adults no less than when they sentence juveniles. It is also true when they sentence juveniles who commit murder no less than when they sentence juveniles who commit other crimes.
I have added the emphasis here because I read the Chief Justice to be asserting — rightly, in my view — that all judges are severely limited in their ability predict and prescribe just and effective outcomes during "first-look" sentencing determinations. In my view, recognizing that humans are necessarily imperfect in this context makes the the argument for second-look sentencing reforms especially compelling.
Comments from EJI about the Graham decision and Joe Sullivan's case
Among the folks who likely should get significant "credit" for today's landmark Eighth Amendment ruling in Graham are Bryan Stevenson and the other folks at the Equal Justice Initiative who have kept a bright spotlight on the juve LWOP issue ever since the Supreme Court's juve capital decision in Roper. EJI represented Joe Sullivan in his appeals up through the Supreme Court, and the folks there have done important legal and policy work on these issues that surely played a huge role in today's events. And though the Justices ended up DIGing Joe Sullivan's case, the majority opinion in Graham used the facts of Joe Sullivan's case to justify its holding; I feel confident that SCOTUS granted cert on this issue in the first instance in large part because of the extraordinary advocacy efforts of EJI and Bryan Stevenson.
On its website, EJI now has this press release about the decision, which describes the ruling as "historic." (Side questions for SCOTUS adjective mavens: is it more impressive for a SCOTUS opinion to be called landmark or historic? Which is a better label for Graham?) In addition, the folks at EJI sent me a note about Joe Sullivan's situation via e-mail which I reprint here:
A number of journalists have asked about how today's decision in Graham v. Florida applies to Joe Sullivan and the other juvenile offenders serving life in prison without parole sentences in non-homicide cases. Here is background information on that question from attorneys for Joe Sullivan at Equal Justice Initiative:
The Supreme Court’s decision today in Graham v. Floridacreates a categorical rule barring life imprisonment without parole for children under age 18 who commit a non-homicide offense. Joe Sullivan, and other juvenile offenders sentenced to life in prison without parole for nonhomicide crimes, are entitled to relief under today’s ruling. The Court “dismissed as improvidently granted” rather than issue a separate decision in Joe Sullivan’s case because it was unnecessary: the Court did not draw a line between young kids and older kids, and the ruling in Graham applies to Joe Sullivan. Joe’s case is discussed in the Graham decision as an example why the categorical rule created by the Court is necessary. Every categorical rule of the sort announced by the Court today has been held retroactive because it puts outside of governmental authority the ability to impose this punishment. There should be no confusion that Joe Sullivan’s life in prison without parole sentence has been invalidated by today’s decision.
The procedural issue involved in the Sullivan case was whether the Court’s decision in Roper v. Simmons, barring the death penalty for juveniles, applied to cases involving life in prison without parole as a “new rule” that would give more Joe time to appeal his sentence. Bryan Stevenson, counsel for Joe Sullivan, said the Court unquestionably held that it did, but even if it did not, Grahamitself is a new ruling that permits Joe and all other juveniles sentenced to life without parole for nonhomicides to appeal their sentences and entitles them to a “realistic opportunity to obtain release.”
Interesting data and discussion about guns in DC roughly two years after Heller
With Graham and Comstock now decided, I think the biggest constitutional law case still pending for con law and criminal justice fans is probably the McDonald Second Amendment incorporation case. (There are a bunch of other significant SCOTUS sentencing cases still pending --- Barber, Carr, Dillon, Dolan to name a few --- but I suspect most of these will be decided on relatively narrow grounds.) And with McDonald on the horizon, I found these data and discussions from this Wall Street Journal article about DC's post-Heller gun regulations quite interesting:
The U.S. Supreme Court overturned the District of Columbia's 32-year ban on handguns in 2008, a victory for the gun-rights lobby that seemed to promise a more permissive era in America's long tussle over gun ownership. Since then, the city has crafted rules that are proving a new, powerful deterrent to residents who want to buy firearms....
Eleanor Holmes Norton, the District of Columbia's non-voting representative in Congress, is blunt about the point of the city's laws: discouraging gun ownership. "To get them you have to go through a bureaucracy that makes it difficult," she said in an interview. Her constituents tend to oppose firearms because of gun violence, she said. "Nobody thinks we would have fewer shootings and fewer homicides if we had more relaxed gun laws."
Kenneth Barnes, 65, became a D.C. gun-law activist after his son was shot to death in his clothing store in 2001. He supports the city's current gun law. "I have no issue with the right to bear arms," but the Supreme Court's decision gave the city the right to set gun laws for its citizens, he said. "What we're talking about is self determination."
In 2009, the first full year the law was in effect, homicides in the city dropped to 143 from 186 in 2008. The 2009 total was the lowest since 1966....
Gun-control supporters say the District is acting within the Constitution, in that Heller didn't outlaw all gun control. "From our perspective, there's a broad range of gun-control steps that can be taken that would be constitutional post-Heller," said Chad Ramsey of the Brady Campaign to Prevent Gun Violence.
Wayne LaPierre, executive vice president of the National Rifle Association, said the city's new rules strike against the spirit of the Supreme Court's decision. "Can you go out and buy guns in D.C. and defend yourself as the Supreme Court said you should be able to? No. The citizens can't experience the freedom from a practical level. What good is winning it philosophically?"
In the months since the Heller decision through April, the city has registered 1,071 guns, including 756 handguns and 315 "long" guns, such as rifles. That's a rate of about 181 guns per 100,000 residents. Before the Supreme Court decision, the rate of registered guns in Washington was close to zero.
Across the U.S., federal law-enforcement agencies estimate the total number of guns is between 200 million and 350 million, which results in a rate between 65,000 to 114,000 guns per 100,000 people nationally. A 2006 survey by the University of Chicago's National Opinion Research Center found gun ownership in 34% of all homes.
Right now, the legal advantage lies with the District. In a federal District Court ruling in March, Judge Ricardo Urbina upheld the city's gun law, writing that the Supreme Court didn't rule gun registration "unconstitutional as a general matter." The judge concluded the city had the power to limit the kinds of firearms permissible and the size of ammunition magazines.
As regular readers know, I think many of the federal and state laws that categorically prohibit and threaten to severely punish any non-violent felon who takes possession of any kind of gun "strike[s] against the spirit of the Supreme Court's decision." But, because dicta in Heller suggests that these laws were not unconstitutional as a general matter, those federal laws continue to operate to prevent millions of persons from keeping and bearing arms. If (and when) the McDonald Second Amendment incorporation case opens up constitutional attacks on these laws at the state level, a cottage industry of gun regulation litigation is sure to ensue.
"The Death Penalty for Drug Offences: Global Overview 2010"The title of this post is the title of this interesting new report coming today from the International Harm Reduction Association. Here is how this report is summarized via the IHRA website:
The International Harm Reduction Association released a study on the death penalty for drug offences today on the opening day of the 19th session of the UN Commission on Crime Prevention and Criminal Justice, taking place in Vienna. The report, titled ‘The Death Penalty for Drug Offences: Global Overview 2010’, finds that hundreds of people are executed for drug offences each year around the world, a figure that very likely exceeds one thousand when taking into account those countries that keep their death penalty statistics secret.
The report is the first detailed country by country overview of the death penalty for drugs, monitoring both national legislation and state practice of enforcement. Of the states worldwide that retain the death penalty, 32 jurisdictions maintain laws that prescribe the death penalty for drug offences. The study also found that in some states, drug offenders make up a significant portion –- if not the outright majority –- of those sentenced to death and/or executed each year.
Neal Katyal now serving as Acting Solicitor General
This post from SCOTUSblog today provides a notable update to the always-important question of who is the US Government's litigator-in-chief:
U.S. Solicitor General Elena Kagan, awaiting Senate review of her nomination to the Supreme Court, notified the Court on Monday that she has stepped aside from her present job, and that her deputy, Neal K. Katyal, will run the office as Acting Solicitor General. She asked that the Court staff “address future correspondence” to Katyal, and show him as counsel-of-record on all of the government’s pleadings in the Court. She said the switch became effective with her nomination on May 10.
I have been a fan and a friend of Neal's since he interviewed for a clerkship the year after me when I was working for Second Circuit judge Guido Calabresi. For that reason and many others, I am very pleased to learn that Neal has taken over, at least for now, the job of Solicitor General. It will be interesting to see if he or someone else gets nominated to take over that position permanently in the months ahead.
Related recent posts:
- Any thoughts as to who will or should replace Elena Kagan as Solicitor General?
- The latest buzz on who might replace Kagan as Solicitor General
Some commentary from around the blogsphere on Comstock and Graham
Cruising around the blogsphere has reveals this array of early commentary on the Supreme Court's criminal justice work in Comstock and Graham today:
From Concurring Opinions, "Graham v. Florida – Collapse of Capital-Noncapital Distinction?"
From Crime & Consequences, "Graham: The Bad News and the Really Bad News"
From Gits for Breakfast, "For once, Texas Lege ahead of SCOTUS curve: Juvie LWOP abolished"
From Sex Crimes, "United States v. Comstock: Some Early Observations"
From WSJ Law Blog, "Scotus: The Kids Are Alright (So Let Them Have Parole)
And a bunch of different folks at The Volokh Conspiracy already have all this commentary to share on Comstock:
- Preliminary Thoughts on Comstock (from Randy Barnett)
- A Few Thoughts on the Comstock Case (from Eugene Volokh)
- Bad News for Federalism? Some Preliminary Reflections on Comstock (Ilya Somin)
Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
Having now had a chance to read and reflect on all the opinions in Graham, I have created a new topical archive entitled "Assessing Graham and its aftermath." Because there is so much to the opinions in Graham, and because there may be tens of thousands of defendants serving actual LWOP or functional LWOP sentences, I have a feeling that this new post archive will get filled up quickly. And for this first post in this archive, I have decided to use the tasty term Graham crackers to describe what I view to be the really deep and really hard (and thus really tasty) intellectual questions that necessarily follow the Court's landmark ruling in Graham.
1. Rules versus standards: Due in part to Chief Justice Roberts' especially interesting work in his concurrence, my first set of Graham cracker comments relate to the old law professor chestnut of "rules versus standard." The backstory here is that historically the Court's approach to the Eighth Amendment involved a lot of case-by-case standard setting for both capital and non-capital claims. But, in recent years, the Justices through rulings in Atkins and Roper and Kennedy have embraced bright-line rules for deciding which kinds of offenders and offenses cannot be subject to the death penalty.
The big jurisprudential move by the majority of the Court in Graham is the determination that, for some largely unexplained reason, "the categorical approach" here provides "the appropriate analysis." And that move in turn leads the Court to embrace a "categorical rule" that the Eighth Amendment "prohibits the imposition of a life with-out parole sentence on a juvenile offender who did not commit homicide." Especially interesting here for sentencing fans is that the majority's defense of a categorical approach to the Eighth Amendment in Part III-C of Grahamis quite reminiscent of Justice Scalia's defense of a "bright-line" approach to the Sixth Amendment in Blakely. (Put more directly, I read Part III-C of Grahamas Justice Kennedy (and Justice Breyer) saying to Justices Scalia and Thomas, "Ya want constitutional rules instead of standards, we'll give ya constitutional rules instead of standards."
Chief Justice Roberts' concurrence, which is fascinating on many levels, does not really take issue with the majority's central conclusion that the LWOP sentence given to Terrence Graham violates the Eighth Amendment's prohibition on cruel and unusual punishments. Rather, CJ Roberts is troubled that the majority has "fashion[ed] a categorical rule" rather than preserved a "case-by-case approach to proportionality review." As hinted above, I think of Justices Breyer and Kennedy as generally drawn to constitutional standards instead of rules; but CJ Roberts was unable to get any other Justice to embrace his affinity his chosen approach. (This leads to even deeper inside-baseball questions about whether CJ Roberts initially assigned the opinion to Justice Kennedy hoping to get a case-by-case ruling, or whether CJ Roberts initially wrote what was to be the opinion for the whole Court but then could not get anyone on board.)
The dissenters in Graham, of course, are not keen for either the rules or standards approach here, but the chief gripe seems to be who writes the law, not what the law says. Justices Scalia and Thomas have said or suggested in the past that they do not think the Eighth Amendment limits anything but the method of punishment, and the really big news out of the dissent seems to be Justice Alito's apparent agreement that the Supreme Court ought to view the Eighth Amendment as essentially non-justiciable in a large number of settings.
2. Subconstitutional Echoes: Whether and how lower courts and litigants apply and extend/limit Graham as a matter of Eighth Amendment doctrine will surely provide plenty of fodder for this blog and for broader debates over the role and important of appellate constitutional review of very long prison sentences. But I am always eager to think about the next set of ripples in the sentencing pond, and in this setting I find it especially useful to consider whether and how actors and advocates in the legislative and executive branches might be impacted by Graham.
For example, there has been some legislative talk in Congress about a federal law urging states to do away with juve LWOP sentences for all crimes, including homicides. Similarly, Texas last year banned LWOP for juves who commit murder and a number of states have bills pending along the same lines. Does Grahammake more likely or less likely the legislatures eliminate juve LWOP sentences across the board.
Similarly, how my sentencing commissions and/or state prosecutors and/or the US Justice Department and/or Governors respond to Graham? Advocates for rehabilitation-oriented justice systems will likely urge a number of policy-making bodies and players to take the logic and language of Grahambeyond nonhomicide offenses and beyond juve offenders. Opponents of rehabilitation-oriented justice systems wil resist such efforts. As of this writing, I think it is very hard to predict who will have the upper-hand in debates over the echoes of Graham outside of courtrooms.
The political and PR benefits for SCOTUS (and others) from Comstock and Graham coming down together
Anyone who thinks the Justices of the Supreme Court are not attuned to issues of politics and public relations needs to explain to me why the anti-sex-offender ruling in Comstock just happened to be handed down on the same day as the pro-defendant ruling in Graham. For a host of reasons, I suspect the Justices made a conscious effort to release these opinions together (and, to quote a famous Seinfeld episode, "Not that there's anything wrong with that!"). I am not sure there is any reason to lament this PR strategic decision). Consider how the Wall Street Journal announced today's SCOTUS work via my e-mail in-box as a "news alert":
The Supreme Court said the U.S. can keep "sexually dangerous" prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power. The ruling was 7-2, with Justices Antonin Scalia and Clarence Thomas in dissent.
In a separate case, the court ruled 5-4 that teenagers may not be locked up for life with no chance of parole if they haven't killed anyone. (Correction: A previous alert said the Supreme Court ruled 6-3 on the juvenile-parole case.)
For those who does not follow the Supreme Court and/or sentencing issues closely, I suspect the first reaction to this breaking "news alert" was "seems like the Supreme Court is being pretty sensible." Thanks to Comstock coming down with Graham, we learn that "sexually dangerous" prisoners can be kept locked up before we learn that teenagers cannot be "locked up for life with no chance of parole if they haven't killed anyone."
For those especially eager to reflect on the Justices' as PR and political strategists, one might also focus on the fact that the juve who committed a sexual offense, Joe Sullivan, got his case DIGed today. Thus, the Justices found a way not only to make their landmark Eighth Amendment ruling the "second" SCOTUS story of the day, they also made sure that individuals (and legislators) most focused on how we deal with sex offenders paid attention principally to the pro-government ruling in Comstock.
Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?
The opinion for the Court in Grahamstates at the outset and stresses in various settings that the ruling is directly applicable only to nonhomicide offenses. Nevertheless, the logic and language of the opinion puts special emphasis on the diminished culpability of juvenile offenders as a class and on the unique severity of a life without parole prison sentence. Consider, for example, this paragraph toward the end of the opinion for the Court in Graham:
Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.
Obviously, this paragraph mentions that the juvenile defendant's severe LWOP punishment was "based solely on a nonhomicide crime." Still, if we replace the word "nonhomicide" with, say, "less serious homicide," the paragraph retains all its force. Consequently, I suspect that lawyers for any and all juvenile offender sentenced to LWOP for a killing that was not first-degree murder may argue that the logic and language of Graham readily extended to cases involving lesser homicides.
I am not sure if there are many (or even any) juvenile killers who are serving LWOP sentences after conviction for homicides that did not qualify as first-degree murder under applicable state law. I am sure that, if such sentences are currently in place, lower courts are going to have to decide whether and how to give effect or to cabin some of the broader logic and language used by the Court in Graham.
Early posts on the Graham ruling:
- SCOTUS finds Eighth Amendment problem with juve LWOP in Graham
- Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?
- Some notable quotables from the opinion of the Court in Graham
- Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?
Some notable quotables from the opinion of the Court in Graham
Based on my first read of the Supreme Court's Graham opinion, I have a feeling I will be reading the opinion dozens, if not hundreds, of more times; in Graham, there is so much "there there." Here are just a few of the many lines from just Justice Kennedy's pinion for the Court that jumped out during my first read (with cites left out):
[Our] cases underscore the essential principle that, underthe Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes....
The concept of proportionality is central to the Eighth Amendment....
Actual sentencing practices are an important part of the Court’s inquiry into consen-sus. Here, an examination of actual sentencing practices in jurisdictions where the sentence in question ispermitted by statute discloses a consensus against its use....
The judicial exercise of independent judgment requires considerationof the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question....
Roper established that because juveniles have lessened culpability they are less deserving of the most severepunishments.... No recent data provide reason to reconsider the Court’sobservations in Roper about the nature of juveniles. As petitioner’s amici point out, developments in psychology and brain science continue to show fundamental differ-ences between juvenile and adult minds....
The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms ofpunishment than are murderers....
It follows that, when compared to an adult murderer, ajuvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the of-fender and the nature of the crime each bear on the analysis....
[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convictof the most basic liberties without giving hope of restora-tion, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence....
Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity....
A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society....
An offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.
Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?
I have barely skimmed the Graham and Comstock rulings, and already I have so many thoughts about the holdings and their potential consequences (especially regarding future non-capital Eighth Amendment litigation). But, before going too blog crazy, I am planning to head to a local coffee shop so I can read the full opinions without too many distractions and without getting my own views colored too much by what others start saying about these cases. Yet I wanted to do this quick post to encourage readers to opine on what they think are some of the biggest "stories" emerging from the Graham and Comstock rulings.
My first take concerns the votes and authorship of various opinions in Graham. First, that Justice Kennedy wrote the opinion for the Court is notable and important for various political reasons, and the fact that Chief Justice Roberts voted for the defendant (in order to make the head-count 6-3) seems to me to be especially notable and important for similar reasons. Second, that Justice Sotomayor (and not Justice Breyer) joined the separate opinion of Justice Stevens strikes me as notable and important for jurisprudential reasons.
I could go on and make some similar observations about Comstock (which was authored by Justice Breyer with a Justice Kennedy concurrence and a Justice Thomas dissent). But now I have to actually go read these opinions carefully (and then read whatever readers have to say in the comments) concerning what they think are the most important parts to what the Supreme Court did today.
Early posts on the Comstock and Graham rulings:
- SCOTUS finds Eighth Amendmetn problem with juve LWOP in Graham
- SCOTUS upholds broad federal power to commit sex offenders in Comstock
- Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?
May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?
I will have lots and lots of coming commentary of the Graham ruling ASAP, but I want to start the discussion with some debate over the likely and appropriate fate of Joe Sullivan's sentence. As this prior post briefly explains, due to procedural complications with his case, Sullivan may not be able to get relief from his LWOP sentence in Florida state courts. But, in light of the substance of the Supreme Court's Graham ruling, I have to think some folks in Florida should be a bit troubled keeping his sentence in place.
Consequently, I wonder if Florida's Governor has the authority and the good sense to get Joe Sullivan's case out of the courts by providing relief through clemency. This issue strikes me as interesting and important not only because of how it impact Sullivan's fate, but also concerning how other juveniles (or others) now serving LWOP sentences might look to use the Graham ruling to support a pitch for clemency in lieu of (or in addition to) making a formal legal Eighth Amendment argument in state or federal court.
UPDATE: A helpful reader sent me this note in response to my post here:
I wanted to point you to today's order in Sullivan [available here], which as you can see does not mention any procedural bar and is not a procedural ruling. There was no need to issue a separate decision in Sullivan because Joe Sullivan is entitled to relief under the categorical, retroactive ruling in Graham.
To the extent that it seems clear that Graham ensures that Joe Sullivan will get relief in the courts, my comments in this post about the PR benefits that SCOTUS gets from simply doing a DIG in Sullivan are even more important.
SCOTUS finds Eighth Amendment problem with juve LWOP in Graham
The Supreme Court has handed down its biggest Eighth Amendment ruling in non-capital cases in a long time, and it is a victory for the defendant. Here is what SCOTUSblog has to say so far:
The Court, in an opinion again written by Kennedy, rules that it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder. The opinion is based on the Eighth Amendment's ban on "cruel and unusual" punishment.
The vote is 6-3, reversing and remanding Graham v. Florida.
Justice Thomas dissents, joined by Scalia and in part by Alito. Alito dissents in an opinion for himself. Justice Stevens concurs, joined by Ginsburg and Sotomayor, even though the three of those Justices also joined the Kennedy majority opinion. Chief Justice Roberts joins in the judgment only. The decision does not cover the Sullivan case. [Here is] a link to the Graham opinion....
The Court has handed down a per curiam order in Sullivan v. Florida. The writ of cert. is dismissed as improvidently granted.... Presumably the young person involved in this case, who was 13 at the time he committed his crime, would benefit from the Court's ruling today in Graham....
It is not clear that the 13-year-old, Joe Harris Sullivan, can benefit from the ruling in the case involving Terrence Graham because Florida courts had turned aside Sullivan's Eighth Amendment challenge for procedural reasons. It will now be up to Florida courts to determine whether Sullivan can now make a new challenge based on the Graham decision.
May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack
SCOTUS upholds broad federal power to commit sex offenders in ComstockAs I had expected, this morning brings some criminal justice action from the Supreme Court. Here is an early SCOTUS report on one big case already handed down:
We have the first opinion: 08-1224, US v. Comstock....
The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released....
The vote is 7-2, with Justice Breyer writing the opinion for the Court. Justice Thomas dissents joined by Justice Scalia. Justice Kennedy concurs in the judgment only, joined by Alito. The opinion in Comstock is here.
Though I will need to read Comstock closely before commenting on the substance, it is already possible to assert that this ruling has to help the cause of SG Kagan, since she argued on the winning side for congressional/federal power.
May 16, 2010
Fascinating fight over victims' rights and defense representation in child porn sentencingThis piece in the Detroit News, which is headlined "Lawyer may face sanctions in child pornography case," reports on a fascinating conflict between a judge and a defense lawyer over the process surrounding the role of a victim in a child porn sentencing. Here are the interesting details:
A lawyer faces possible sanctions after filing a motion in a child pornography case that a federal judge described as "a blatant attempt to intimidate the minor victim's mother." But the National Association of Criminal Defense Lawyers has come to the attorney's defense.
U.S. District Judge Bernard A. Friedman said in a May 3 order that a motion from Troy attorney John Freeman seeking formal notice that the victim's mother wished to speak at a sentencing hearing was "unwarranted, baseless and worthy of contempt of court." Friedman said he will hold a hearing on whether and how Freeman -- a former federal prosecutor -- should be sanctioned. A date has not been set.
On April 15, Friedman sentenced former Walled Lake Schools official Craig Aleo to 60 years in prison -- more than double what prosecutors requested -- for crimes that included manufacturing child pornography in which a 4-year-old girl was victimized. Aleo, 64, of Davisburg, has filed a notice of appeal.
Prior to the sentencing, Freeman filed a motion citing the Crime Victims' Rights Act. In his motion, he said prosecutors were required to give advance notice of the contents of a victim impact statement from the child's mother so he could appropriately respond. Friedman said no such requirement exists, and the motion "serves as yet another indication ... of the incredible lack of remorse for the victim in this matter."
In a response filed last week by Freeman and his attorney Martin Crandall, Freeman said his motion was intended to "address a potential conflict between (Aleo's) due process rights and a victim's right to be heard at sentencing" and was "never intended to intimidate a witness, nor prevent a victim from being heard."
Detroit attorney James Feinberg signed on to the response in an amicus filing on behalf of the National Association of Criminal Defense Lawyers. "The possibility of someone being sanctioned or held in contempt for aggressively and properly representing their client is very scary," Feinberg said Friday. The association "needs to make sure lawyers are free to aggressively represent their clients."
As detailed here, the CVRA only provides a right of notice to victims, not a right of notice to a defendant about what victims are likely to say. Consequently, if Freeman cited only the CVRA to support his motion for defense notice, his motion was misguided. But, absent strong evidence that Freeman has some truly nefarious intent, even a misguided defense motion requesting notice hardly seem like a sanctionable action.
"More Mentally Ill Persons Are in Jails and Prisons Than Hospitals"The title of this post is the headline of a notable and important new report issued this week by the National Sheriffs' Association. (Hat tip to a helpful reader who forwarded me this item from the Houston Chronicle.) This press release about the report provides this effective summary:
The full report is available at this link.
Americans with severe mental illnesses are three times more likely to be in jail or prison than in a psychiatric hospital, according to "More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States," a new report by the Treatment Advocacy Center and the National Sheriffs' Association.
"America's jails and prisons have once again become our mental hospitals," said James Pavle, executive director of the Treatment Advocacy Center, a nonprofit dedicated to removing barriers to timely and effective treatment of severe mental illnesses. "With minimal exception, incarceration has replaced hospitalization for thousands of individuals in every single state."
The odds of a seriously mentally ill individual being imprisoned rather than hospitalized are 3.2 to 1, state data shows. The report compares statistics from the U.S. Department of Health and Human Services and the Bureau of Justice Statistics collected during 2004 and 2005, respectively. The report also found a very strong correlation between those states that have more mentally ill persons in jails and prisons and those states that are spending less money on mental health services.
Severely mentally ill individuals suffering from diseases of the brain, such as schizophrenia and bipolar disorder, often do not receive the treatment they need in a hospital or outpatient setting. The consequences can be devastating – homelessness, victimization, incarceration, repeated hospitalization, and death.
"The present situation, whereby individuals with serious mental illnesses are being put into jails and prisons rather than into hospitals, is a disgrace to American medicine and to common decency and fairness," said study author E. Fuller Torrey, M.D., a research psychiatrist and founder of the Treatment Advocacy Center. "If societies are judged by how they treat their most disabled members, our society will be judged harshly indeed."
Recent studies suggest that at least 16 percent of inmates in jails and prisons have a serious mental illness. According to author and National Sheriffs' Association Executive Director Aaron Kennard, "Jails and prisons are not designed for treating patients, and law enforcement officials are not trained to be mental health professionals."
Ratios of imprisonment versus hospitalization vary from state to state, as the report indicates. On the low end, North Dakota has an equal number of mentally ill individuals in hospitals as in jails or prisons. By contrast, Arizona and Nevada have 10 times as many mentally ill individuals in prisons and jails than in hospitals.
Among the study's recommended solutions are for states to adopt effective assisted outpatient treatment laws to keep individuals with untreated brain disorders out of the criminal justice system and in treatment. Assisted outpatient treatment is a viable alternative to inpatient hospitalization because it allows courts to order certain individuals with brain disorders to comply with treatment while living in the community. Studies show assisted outpatient treatment drastically reduces hospitalization, homelessness, arrest, and incarceration among people with severe psychiatric disorders, while increasing adherence to treatment and overall quality of life.