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."