May 19, 2010
"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.