May 25, 2010
Another notable dissent in Tenth Circuit habeas reversal of mass murderer's death sentences
Providing a notable case for comparing and contrasting to the Eighth Circuit work in Deegan today (basics here), the Tenth Circuit handed down its own fascinating split sentencing opinion in the capital habeas case of Hooks v. Workman, No. 07-6150 (10th Cir. May 25, 2010) (available here). The majority opinion affirms the convictions, but reverses five death sentences, that were handed down by an Oklahoma jury to mass murderer Danny Keith Hooks.
A nuanced partial dissent by Judge O'Brien focuses on the need for deference to the affirmance of these death sentences by the Oklahoma Court of Criminal Appeals (the OCCA), and it concludes this way:
In sum, the OCCA identified trial errors relating to Oklahoma law. It also identified and employed the proper federal law for assessing the impact of those errors of state law — whether, taken as a whole, the errors denied Hooks a fair sentencing hearing. At the end of the day it decided the errors, alone or in combination, did not entitle Hooks to relief. The OCCA also identified and applied the general Lowenfield requirement that a defendant is entitled to an uncoerced jury decision. It concluded the sentencing jury was not coerced. I am not sure it was correct in that assessment but I join the district court in concluding its decision was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, especially if its decision is afforded proper deference. It was not unreasonable for the OCCA to conclude the horrific facts of this case (multiple murders by a previously convicted kidnapper/rapist), rather than a possible misunderstanding of the law or the stresses of jury service, motivated the jury to recommend five death sentences.
We have an interesting circumstance here. If the opinion of the district judge who originally considered these habeas claims is included, two federal judges think the OCCA’s assessment of the federal Constitutional issues was not objectively unreasonable and two think it was objectively unreasonable. The State of Oklahoma is left with the resulting detritus. So much for applied federalism and comity.
And where does our decision leave the State? It can accept a federal court veto of the jury’s sentencing decision and settle for a life sentence. Or it can empanel a new jury, which will not have heard the guilt phase evidence, and hope to convince the new jury to ratify the trial jury’s sentences. And it will have to do so at least eighteen years after the murders were committed and time has scattered witnesses, eroded memories, rusted the community’s sense of outrage with this mass murder, dulled the voices of the victims’ families and turned the fire in the prosecutors’ bellies to ash (because the attention of new prosecutors has been diverted to more recent atrocities and the task of resurrecting and presenting a very old case to an uninformed jury is daunting, indeed).
Remarkable opinions in remarkable sentencing case from the Eighth Circuit
A helpful reader made sure I did not miss the remarkable sentencing work coming from the Eighth Circuit today in US v. Deegan, No. 08-2299 (8th Cir. May 25, 2010) (available here). The case is remarkable in part because of the criminal offense (second-degree murder of a newborn due to neglect) and the offender (the newborn's mother, a Native American who has suffered a long history of physical and sexual abuse). The district judge sentenced the defendant to 121 months, the bottom of the calculated guideline range. The majority of the Eighth Circuit panel in Deegan affirmed, rejecting claims that the sentence was procedural and substantively unreasonable.
Though the majority opinion in Deegan is an interesting read, the ruling is truly a must-read because of the remarkable 50+ page dissent by Judge Bright. That dissent starts and ends this way:
I respectfully dissent.
This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev’d and remanded to 327 F. App’x 93 (10th Cir. 2009).
In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen. [FN5] ....
[FN5] As a federal judge, I had never heard of the term “neonaticide” nor encountered a case of neonaticide until this case. From reading the record, I daresay the same lack of knowledge existed in the district court personnel until neonaticide was explained by Dr. Phillip Resnick. The defense counsel, William D. Schmidt of Bismarck, North Dakota, an assistant public defender, should be commended for his research on the subject and in bringing Dr. Resnick to testify about neonaticide.
This judge has read and reviewed several hundred federal sentencing cases. Of those, the procedure and sentence here is among the most grossly wrong and unfair that I have ever encountered. The result: a harsh, discriminate, and improper sentence upon an American Indian woman living on a reservation. The conduct of the district court in this case and the majority’s affirmance violates every sentencing principle enunciated by the Supreme Court after United States v. Booker, 543 U.S. 220 (2005).
This one of a kind sentence by a federal sentencing judge, not a state judge as would be the usual case, occurred only by reason of the defendant’s residence on an Indian reservation in North Dakota. I justify the length of this dissent on the basis that every aspect of the sentencing procedure and the substance of the sentence deserves careful examination. This federal court on appeal should not approve a prison sentence for this reservation crime which this judge believes is unfair and improper under the law and facts. ...
* * *
I conclude with this comment. The violence against women and children on Indian reservations is a national scandal. It must be addressed not only as a criminal matter but as a societal concern. If the violence against Ms. Deegan had been stopped, even as late as her association with Mr. Hale, and, if she had been given moral and societal assistance in raising the three children in her family, this crime of neonaticide might never have occurred. The deterrence to such a crime, as here, will not be attained by imposing a harsh punishment on Ms. Deegan. The problems of preventing assault and abuse against women and children in Indian country need illumination, and immediate steps must be taken to stop this terrible and wrongful conduct.
Former Detroit mayor Kwame Kilpatrick gets long prison sentence for probation violationAs detailed in this local article, which is headlined "Judge sentences Kilpatrick 18 months to 5 years in prison," former Detroit Mayor Kwame Kilpatrick got the book thrown at him this morning by a state judge at his sentencing for probation violation. Here are the basics:
An audible gasp erupted in the courtroom as Judge David Groner sentenced former Detroit Mayor Kwame Kilpatrick to 18 months to five years in state prison. Deputies rushed up to a row where Kilpatrick friends and relatives are sitting. They escorted one unidentified woman out.
"Your testimony in this court amounted to perjury," the judge told Kilpatrick. "Most compelling is that you lied to this court, continue to lie, after you pleaded guilty to lying.... "The initial 120 days incarceration did nothing to rehabilitate you."
After the gasp from the audience, Kilpatrick was ordered to sign papers. Some reporters saw his hands shaking. Groner asked Kilpatrick's lawyer, Schwartz, to assist the former mayor. As the courtroom began to buzz, Groner raised his voice and ordered Kilpatrick to be swift. "Sergeant could you secure the defendant please and put him in the back?" Groner said. A deputy then handcuffed Kilpatrick behind his back and led him to a side room. The former mayor kept looking over his shoulder, mouthing words toward his sister.
His attorneys vowed an immediate appeal of Groner's sentence.
Comment from Wayne County Assistant Prosecutor Athina Siringas: “We always felt a department of corrections sentence was appropriate. We are pleased.”
The judge’s order also raises questions about whether Kilpatrick will continue to have a job with a Compuware subsidiary in Texas. Compuware chief Peter Karmanos had given Kilpatrick a six-figure sales job with Covisint in an office just outside Dallas after the ex-mayor’s release from jail in February of last year. But Karmanos said at the time that Kilpatrick’s continued employment was contingent upon Kilpatrick staying out of further trouble.
DOJ resisting efforts to disinfect the federal celemency process with some sunlightSupreme Court Justice Louis Brandeis famously advocated for transparency and honesty in public policy with the wondrous aphorism "sunlight is the best disinfectant.” This bright idea came to my mind when I saw this fascinating new article in The National Law Journalconcerning federal celemncy policies and practices. The piece is headlined "Justice Department Wants to Keep Pardon Data Under Wraps: DOJ says release of information on applicants violates privacy law," and here are excerpts:
The Obama Justice Department is fighting to keep secret the names of more than 9,200 people whose applications for pardons and commutations were denied by President George W. Bush.
Last year, DOJ attorneys failed to persuade a judge in the U.S. District Court for the District of Columbia that the privacy interest of the unsuccessful applicants outweighs any public value of producing a list. The department has asked a federal appeals court in Washington to reverse the ruling.
The case is a politically sensitive one for the Justice Department, given Attorney General Eric Holder Jr.'s involvement in the decision to pardon fugitive Marc Rich at the end of the Clinton administration. The Rich pardon turned into a Washington scandal that compelled Holder to apologize for mistakes when it came up during his confirmation hearing last year.
Although the case applies only to pardon applicants during the Bush administration, a loss at the U.S. Court of Appeals for the D.C. Circuit would likely make public the names of those who sought pardons and clemency during other administrations.
Under the current policy, the Justice Department will confirm whether a specific convict received a pardon, but will not disclose a comprehensive list of all the denials.
Since October 2009, Obama has received 382 pardon petitions and 2,275 applications for commutation -- on top of more than 2,000 pending petitions. Obama has not granted or denied a single petition, according to Justice Department statistics. The outcome of the dispute has the potential to change the pardon process going forward, said several lawyers in Washington who represent clients seeking clemency. Routine disclosure of all names could deter some people from seeking a pardon in the first place.
"Pardon grants should be, and are, publicly disclosed because there should not be secret pardons," Hogan Lovells partner H. Christopher Bartolomucci said. "But pardon denials should not be disclosed as a general matter because of the applicant's privacy interest."
The case stems from a Freedom of Information Act request filed by a retired Washington Post reporter, George Lardner, who is writing a book on the history of clemency. Lardner's lawyers at the Public Citizen Litigation Group in Washington said that comparing clemency lists on file at the Office of the Pardon Attorney will help determine whether ethnic consideration played a role in Bush's rejection of thousands of applications.
Last July, Judge Colleen Kollar-Kotelly issued a 35-page opinion ordering the names to be publicly released. "Fundamentally, the disclosure of the requested information shines a light on the most basic information about the executive's exercise of his pardon power -- who is and who is not granted clemency by the President," Kollar-Kotelly wrote.DOJ officials declined to comment.
In the D.C. Circuit, the department continues to mount its privacy argument -- that many applicants have family members, friends and employers who may not know that the person has a criminal record. There's no way to put a favorable spin on the fact an applicant was deemed unworthy of clemency, wrote DOJ Civil Division lawyer John Koppel in court papers filed May 10. "At most, the public would learn the names of those denied clemency, but not the factors favoring or disfavoring the decision, nor whether there were weighty considerations supporting or opposing clemency in the OPA file," Koppel said in court papers. "Without knowing the reasons that factored in the decision, the public learns nothing about how the government works -- even as a significant privacy interest is sacrificed."
One lawyer in Washington whose practice is devoted to clemency said she supports shedding light on the pardon process but also expressed concern about the prospect of a wholesale release of names. "I think a lot of my clients would be really anxious to see their names on a list of applicants who were denied," said Margaret Colgate Love, the U.S. pardon attorney between 1990 and 1997....
Lardner's attorneys at the Public Citizen Litigation Group in Washington note that none of the unsuccessful applicants are participating in the case and that there are public databases -- the Bureau of Prisons has one -- where employers can check whether an employee has served time in the federal prison system. Public Citizen Litigation Group Director Allison Zieve said DOJ's argument "is speculation about worst-case scenarios" without necessary evidence to support the concern. "For an administration that seeks to pride itself on its openness and commitment to FOIA, it's disappointing they would [appeal]," Zieve said. "It's not really the government's interest at stake in this case."
Because I believe assertions of privacy interests and concerns are frequently overstated, and especially because I consider the federal clemency process very badly broken, I am deeply disappointed that Obama Justice Department is fighting so hard to prevent George Lardner and others from getting the most basic information about the operation of the federal clemency process. Given that President Obama has failed to act in any way on what is now a backlog of nearly 5,000 clemency petitions, I am a proponent of anyone who is eager in any way to shine more sunlight on a clemency process that seem to me to be teeming with infectants.
Some related posts:
- Effective USA Today coverage of President Obama's clemency stinginess
- "Obama should exercise the pardon power"
- Fascinating report on backstory behind presidential pardon problems
- Obama as Scrooge: no Christmas clemency grants
- Fitting complaints about an ugly clemency scoreboard: "Turkeys 2, humans 0"
- The true sentencing turkeys on this Thanksgiving eve
- Justified complaints that Obama's first pardon will be of a turkey
- "President Barack Obama proving stingy with his pardon power"
- Notable press stories noting Obama's lack of clemency action
- Historical evidence that it is NOT too early to start demanding clemencies from President Obama
- When will President Obama start acting like President Lincoln when it comes to the clemency power?
- A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
- "Grandmother Will Mark President's Day By Petitioning Obama To Commute Her 27-Year Prison Sentence For Non-Violent Crime"
I wonder what L. Ron Hubbard might think about a year-long prison sentence for a cyber attack on the Church of ScientologyAs detailed on this page of official website of the Church of Scientology, the religion created by L. Ron Hubbard is committed to "building a world free of crime." In light of that noble commitment, I wonder what the late L. Ron Hubbard might have tought about this AP sentencing story, which is headlined "Nebraska man sentenced in Scientology cyber attack." Here are the details:
Intriguingly, L. Ron Hubbard was born in Nebraska.... coincidence or proof of something?!?
A Nebraska man has been sentenced to a year in federal prison for his role in a cyber attack on the Church of Scientology's websites two years ago. Brian Thomas Mettenbrink, of Grand Island, Neb., was also ordered Monday to pay $20,000 in restitution and serve a year on supervised release after he gets out of prison.
The cyber attack was orchestrated by an underground group that calls itself "Anonymous" and protests the Church of Scientology, accusing it of Internet censorship.
Mettenbrink admitted being a member and pleaded guilty in February to a misdemeanor charge of unauthorized access of a protected computer. U.S. District Judge Gary Feess says the cyber attack had "a sense of hate crime."
"A B-Minus? The Shock! The Horror!"The title of this post is the headline of this amusing article in the New York Times concerning Solicitor General Elena Kagan's performance during her time as a student at Harvard Law School. The story is a must-read for anyone who did not as well as they had hoped at the hoped at the start of law school, and here is how it starts:
She went on to be the dean of Harvard Law School, the solicitor general of the United States, and now a nominee to the Supreme Court. But in the fall of 1983, Elena Kagan was just another first-year law student at Harvard.
And like many high achievers adjusting to an intensely competitive law school, the 23-year-old Ms. Kagan initially struggled — at least by the standards of the kind of student who arrived with a summa cum laude degree from Princeton and an Oxford master’s degree under her belt.
Ms. Kagan received two letter grades at the end of her first semester — and they were the worst of her law school career: a B in criminal law and a B-minus in torts.
It was a jarringly mediocre report card for Ms. Kagan, and the torts grade in particular came as a shock to her and to her friends, recalled Jeffrey Toobin, the legal affairs writer for The New Yorker and CNN, who was in Ms. Kagan’s study group. He attributed the result to a “bad day in the exam.”
“She was definitely upset about this torts grade — there was no doubt about it,” Mr. Toobin said. “I remember saying to her that in the larger scheme of things it will not loom very large, and I would say history has vindicated me on that matter.”
Ms. Kagan soon returned to her habitually high level of academic accomplishment: her spring semester report card in 1984 consisted of three A’s and an A-minus. She went on to become supervising editor of the law review, graduate magna cum laude, and clerk for an appeals court judge and a Supreme Court justice, Thurgood Marshall.
Indeed, a transcript she submitted with her application to Justice Marshall, which is included with his papers at the Library of Congress, shows she earned A’s in 17 of the 21 courses for which she received a letter grade. In two more — including an administrative law course, a field in which she would later focus as a scholar — she earned a B-plus.
Using SG Kagan as a role-model, I am pleased now to be able to tell both my law students and my own kids that how you improve and finish in school is clearly much more important than how you start. (I suspect I will also make sure to tell them that I did much better than a Supreme Court Justice during my first year at HLS in fall 1990 when I earned an a A in criminal procedure and an A-minus in criminal law.)
Thanks to the NYTimes, everyone can inspect SG Kagan's HLS transcript here. (Though this NYT link currently describes this document as "Kagan's 1983 Harvard Law Report Card," this version of her transcript appears to be from March 1986 when she had completed and received grades for all but her final 3L semester at HLS.) Especially given her recent win for the federal government in the Comstock case, I find fittingly ironic that Kagan's chosen elective in her 1L year was "Introduction to Federalism."
May 24, 2010
Colorado reducing penalties for certain drug possession crimesProviding an interesting sign of somewhat different sentencing times, this AP story reports on a new Colorado law that reduces some sentencing terms. The piece is headlined "CO Penalties For Some Drug Possession To Decrease," and here are the basics:
Penalties for some illegal drug use and possession will decrease in Colorado, with more focus placed on treatment and rehabilitation under a bill expected to be signed by Gov. Bill Ritter.
Under the bill, testing positive for drugs drops from a felony to a misdemeanor, while possessing drugs such as heroin, cocaine and Ecstasy for personal use would carry a maximum sentence of 18 months in prison instead of six years....
The bill also increases penalties for drug dealers and manufacturers. Ritter was expected to sign the bill Tuesday at a Lakewood law enforcement training center.
"It makes a distinction that there are those individuals that prey on the addictions of others — the distributors, the sellers, the makers — versus those who are addicts who are being driven by their addiction," said Department of Public Safety Executive Director Peter Weir.
The bill commits $1.5 million of expected savings in incarceration costs to treatment and rehabilitation. In coming years, the changes in sentencing, probation and parole were expected to save the state $3.6 million a year.
Under the bill, dealers and manufacturers of illegal drugs face a felony charge carrying a prison term of up to 12 years. Those who import drugs into the state or use guns face up to 48 years in prison.
The bill also increases penalties for dealing to minors and adds a minimum four-year prison sentence for adults who give any amount of marijuana to a child under the age of 15.
Ritter was also expected to sign legislation giving judges greater discretion in allowing nonviolent offenders to be put on probation; require minimum jail time for repeat drunken driving offenders; and create guidelines to determine which prisoners are eligible for parole.
Colorado Attorney General John Suthers called the changes "pragmatic."
"Lindsay Lohan New Spokeswoman for SCRAM Alcohol Testing Accessory"The title of this post is the headline of this new piece from SheWired.com, which provides a cheeky and gendered take on the celebrity technocorrections news coming from Hollywood this morning. Here are the details:
Following her weeks-long odyssey ditching court appearances, losing her passport and partying her ass off -- sorry, promoting her Linda Lovelace biopic -- in Cannes, Lindsay Lohan finally turned up for court Monday morning to face Judge Marsha Revel, who postponed her vacation a day in order to personally sentence Ms. Lohan, according to TMZ.
Judge Revel delivered a litany of conditions to Lohan, including sporting a SCRAM ankle bracelet that continually monitors blood alcohol, weekly random drug testing and attending mandatory drug and alcohol classes. This is a good thing, as Linds in her court appearance, could no longer hide the booze and drug bloat behind a pair of $400 toss-away Chloe sunglasses.
As Lindsay is due to start working in Texas, her lawyer Shawn Chapman Holley, attempted to extricate her from the bonds of wearing the glamorous SCRAM device, which will surely clash with Lindsay's leggings and Louboutins, as airbrushing the SCRAM out of the movie and photo shoots is unlikely. Furthermore, Lindsay is required to undergo weekly random drug testing in Los Angeles only, and not in Texas, whether it interferes with the first job she's had in ages or not.
Revel tossed out the terms of Lindsay's probation refusing to listen to excuses or requests for any type of leniency, as Lindsay had often blown the judge off, likely for sundry pointless shopping trips at her neighborhood 7/11 and for iced lattes on Robertson Blvd.
Should Lindsay test Revel -- not a good idea as she's acting judge, jury, mom and dad -- Linds may find herself tossed in the pokey ala Paris Hilton circa 2007.
Cause for celebration: FBI stats show crime rates dropping againThis new Reuters report provides the latest, greatest encouraging statistics about crime rates:
Murders and auto thefts fell sharply in the United States in 2009, extending the downward trend in violent and property crimes, according to preliminary statistics released by the FBI on Monday.
It was the third straight annual decline in violent crimes and seventh straight annual decline for property crimes, which occurred despite a weak economy, which is often linked to spikes in criminal activity.
Each region of the country experienced a drop in crime, with the southern United States experiencing the largest decline -- a 6.6 percent drop -- according to the FBI.
It did not provide a reason for the overall decline, which came as the economy started to show signs of growth after one of the worst recessions since the Great Depression. Experts and politicians often link a sour economy with higher crime.
Murders fell 7.2 percent, while forcible rapes decreased 3.1 percent. Cities with 500,000 to 999,999 inhabitants saw violent crime, which also includes manslaughter and robbery, drop the most among city groupings, down 7.5 percent.
There was an increase in the number of murders in cities with populations of 25,000 to 49,999, jumping 5.3 percent. Additionally nonmetropolitan counties experienced a small increase as well, up 1.8 percent, the statistics showed.
In the nonviolent crime category, motor vehicle theft dropped 17.2 percent, while burglaries fell 1.7 percent, according to the preliminary figures released by the FBI. Arson also fell 10.4 percent in 2009.
As I have said before and will say again, the continued decrease in crime rates in recent years is an extraordinarily great development that all serious criminal justice researchers should be trying mightily to assess and better understand. I am not sure if we are doing anything that much better in the sentencing and corrections arenas, but everyone should be very grateful for the continuing positive trends whether or not any causes or reasons can be identified and creditted.
UPDATE: I just received via e-mail a link to this notable press release which provides a notable spin on the new crime data:
For the third year in a row, violent crime has declined in the United States while increasing numbers of American citizens own firearms and are licensed to carry, a trend that belies predictions of anti-gunners that more guns will result in more crime, the Citizens Committee for the Right to Keep and Bear Arms said today.
Preliminary data from the FBI’s Uniform Crime Report shows that the violent crime rate went down 5.5 percent in 2009, compared to statistics from 2008. This covers all four categories of violent crime: murder, robbery, aggravated assault and forcible rape. Violent crime went down 4 percent in metropolitan counties and 3 percent elsewhere, according to the FBI.
At the same time, the agency’s National Instant Check System reports continued increases in the number of background check requests and the National Shooting Sports Foundation has reported increased federal firearms excise tax allocations to state wildlife agencies, an indication that more guns and ammunition are being purchased.
“This translates to one irrefutable fact,” said CCRKBA Chairman Alan Gottlieb. “There are more guns in private hands than ever before, yet crime rates have declined. In plain English, this means that gun prohibitionists have been consistently wrong. Higher rates of gun ownership have not resulted in more bloodshed, as the gun ban lobby has repeatedly forecast with its ‘sky-is-falling’ rhetoric."
Notable statutory interpretation embrace of a basic offense/offender distinction for elements and sentencing factorsAs long-time readers or hard-core sentencing fans may know, when I was first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a StanfordLaw Review article, and further unpacked it (with Stephanos Bibas) in Making Sentencing Sensible article in the Ohio State Journal of Criminal Law. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
As detailed in this post right after the Supreme Court's 2007 Sixth Amendment ruling in Cunningham v. California, Justice Kennedy's dissenting opinion in Cunningham praised an offense/offender distinction as providing a "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not." But Justice Kennedy was writing in dissent and footnote 14 of Justice Ginsburg's majority opinion in Cunningham asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."
Against this backdrop, I found especially interesting and notable this passage from the Court's opinion today in O'Brien (which just happens to be authored by Justice Kennedy):
Sentencing factors traditionally involve characteristics of the offender — such as recidivism, cooperation with law enforcement, or acceptance of responsibility. [Castillo, 530 U.S.] at 126. Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.” Id., at 127.
As the cites reveal, the Supreme Court made a somewhat similar set of statements a decade ago in its Castillo ruling. But this O'Brien articulation of an offense/offender distinction for statutory interpretation purposes seems especially crisp and clean here. Perhaps in the future Justice Kennedy might be able to get a few of the new Justices to give this distinction constitutional significance in some future elaborations of the Apprendi/Blakely line of decisions.
Is the biggest SCOTUS story this morning what the Justices decided not to decide?
Perhaps vindicating Chief Justice Roberts' vision of a more "minimalist" Supreme Court, the biggest story emerging from the sets of criminal justice opinions issued this morning (links here) seems to be what the Justices decided not to decide. That said, I suspect this morning's minimalist SCOTUS reality in criminal justice cases is just a short-term reality until the next set of criminal justice opinions get handed down.
Specifically, the Court dodged a bunch of interesting and challenging issues by DIGing Robertson v. US ex rel. Watson. (Interestingly, though, Chief Justice Roberts wrote the chief dissenting opinion complaining about the Court's decision to shake this challenging case off its docket.) Somewhat similarly, as explained here, the Justices opted to decide the latest case implicating Apprendi/Blakely issues on the narrowest possible statutory grounds.
But I have a feeling that all this minimalism today is just prelude to some big-time forthcoming opinions in the honest services fraud cases and perhaps also in lower-profile sentencing cases like Dillon and Barber. Relatedly, it bears recalling that the more minimal approaches to the issues decided last week in Graham and Comstock did not carry the day and ended up in the form of concurrences (by Chief Justice Roberts in Grahamand by Justice Alito in Comstock) complaining about how broad the opinion for the Court reached.
SCOTUS in O'Brien preserves (for now) McMillan precedent (to Justice Stevens' chagrin)Based on a quick review of all of today's SCOTUS action, the biggest news for hard-core sentencing fans seems to be the continued preservation of the McMillan/Harris mandatory minimum "exception" to Apprendi/Blakely Sixth Amendment rule by virtue of the Supreme Court's decision to decide the O'Brien case for the defendants on statutory grounds. Justice Stevens, in what may serve as his last word on the Apprendi/Blakely Sixth Amendment jurisprudence make this final statement at the end of his notable separate (and solo) concurrence:
In my view, the simplest, and most correct, solution to the case before us would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense. The unanimity of our decision today does not imply that McMillan is safe from a direct challenge to its foundation.
But the fact that nobody signed on to retiring Justice Stevens' separate opinion in the O'Brien case may, in fact, imply that McMillan is going to remain safeguarded from a direct challenge to its foundation for perhaps a long time.
Lots of SCOTUS sentencing action this morning
SCOTUSblog is already reporting five cert grants from the Supreme Court and these opinions:
US v. Marcus dealing with plain error review; government win
US v. O'Brien dealing with elements and sentencing factors; defense win
Jefferson v. Upton, a summary reversal of 11th Circuit ruling affirming a death sentence
Robertson v. US ex rel. Watson, dismissed as improvidently granted (with an intriguing foursome of CJ Roberts and Justices Scalia, Kennedy and Sotomayor dissenting)
Lots and lots of commentary soon to follow.
UPDATE: As detailed in this AP article, one of the cert grants, Skinner v. Switzer, 09-9000, will present the Justices with the question of "whether a Texas death row inmate should have access to evidence for DNA testing that he says could clear him of three murders."
May 23, 2010
Terrific examination of prosecutorial discretion, politics and other three-strikes realities in CaliforniaToday's New York Times magazine has this must-read article by Emily Bazelon headlined "Arguing Three Strikes." Here are just a few extended excerpts that make the piece so very interesting and effective and telling:
In 2000, ... Steve Cooley became the district attorney for Los Angeles County. Cooley is a Republican career prosecutor, but he campaigned against the excesses of three strikes. “Fix it or lose it,” he says of the law. In 2005, Cooley ordered a review of cases, to identify three-strikes inmates who had not committed violent crimes and whose life sentences a judge might deem worthy of second looks. His staff came up with a list of more than 60 names....
Twenty-five other states have passed three-strikes laws, but only California punishes minor crimes with the penalty of a life sentence. About 3,700 prisoners in the state are serving life for a third strike that was neither violent nor serious, according to the legal definition. That’s more than 40 percent of the total third-strike population of about 8,500. Technically, these offenders are eligible for parole after 20 years, but at the moment, the state parole board rarely releases any prisoner early....
Now California is in the midst of fiscal calamity. Supreme Court Justice Anthony Kennedy, who had been a judge in California, recently bemoaned state sentencing and spending on prisons. In an address at Pepperdine University, he said that “the three-strikes law sponsor is the correctional officers’ union, and that is sick!” And yet Schwarzenegger has vowed not to touch the law. Meg Whitman and Jerry Brown, the leading Republican and Democratic contenders to succeed him in November, are just as unbending....
Cooley ran for D.A. on a platform of restrained three-strikes enforcement, calling the law “a necessary weapon, one that must be used with precision and not in a scatter-gun fashion.” In office, he turned his critique into policy.... The presumption is that prosecutors ask for a life sentence only if a third-strike crime is violent or serious. Petty thieves and most drug offenders are presumed to merit a double sentence, the penalty for a second strike, unless their previous record includes a hard-core crime like murder, armed robbery, sexual assault or possession of large quantities of drugs. During Cooley’s first year in office, three-strikes convictions in Los Angeles County triggering life sentences dropped 39 percent. No other prosecutor’s office in California has a written policy like Cooley’s, though a couple of D.A.’s informally exercise similar discretion....
[I]n 2006, he offered up his own bill, which tracked his policy as D.A., taking minor drug crimes and petty theft off the list of three-strikes offenses unless one of the first two strikes involved a crime that Cooley considers hard-core. For staking out even this middle ground, Cooley became prosecutor non grata among his fellow D.A.’s. No district attorney, not even the most liberal, supported his bill, and it died in Senate committee.
Cooley could once again pay a price for his three-strikes record. This spring, he announced his candidacy for California attorney general. His Republican rivals have hammered him for his moderate stance. “He’s acting as an enabler for habitual offenders,” State Senator Tom Harman told me. “I think that’s wrong. I want to put them in prison.” The race has developed into a litmus test: for 15 years, no serious candidate for major statewide office has dared to criticize three strikes. If Cooley makes it through his party’s primary on June 8 — and especially if he goes on to win in November — the law will no longer seem untouchable. If he loses, three strikes will be all the more difficult to dislodge....
While 694 convicted murderers sit on the state’s death row, only 13 have been executed since the Supreme Court allowed for reinstatement of the death penalty in 1976. The 3,700 nonviolent, nonserious three-strikers serving life in California outnumber the 3,263 death-row inmates nationwide.
By working with three-strikers, [lawyer Michael] Romano is trying to highlight the plight of criminals he sees as more pathetic than heinous. “I think about explaining to my kids what I do, and I see no moral ambiguity,” Romano says about his work. Capital defendants, of course, deserve representation, he explains. “But there are other lives to be saved, of people who haven’t done horrible things, who haven’t actually hurt anyone.”
In practical terms, Romano points out, the difference between being convicted of capital murder and a small-time third strike is this: a murderer is entitled to a far greater share of legal resources. California spends at least $300,000 on the defense side of a capital murder trial. The courts give extra scrutiny to each capital appeal that comes before them. And it’s only in death-penalty cases that the state pays lawyers to file a writ of habeas corpus, the route to challenging a conviction once direct appeal has been exhausted.
A three-strikes case, by contrast, is just one more file in the stack on a public defender’s desk and a judge’s docket. Romano has a client whose appellate lawyer cut and pasted into her brief for him the more serious criminal history of another man — incorrectly telling the judges that her client was far more violent when he actually was.
If Steve Cooley wins the Republican primary for attorney general, on almost every issue — most visibly the death penalty — he’ll run to the right of his probable Democratic opponent, the San Francisco district attorney Kamala Harris. But on three strikes, Cooley will run to Harris’s left. (She didn’t support his 2006 proposal, though she is one of the prosecutors who, on a case-by-case basis, refrains from seeking a life sentence for some nonviolent three-strikers.)...
Cooley is couching his support for amending three strikes statewide more carefully during campaign season. “Any changes to the three-strikes law will have to be in the context of overall prison reform,” he told me in March. At the same time, Romano and Families to Amend California’s Three Strikes, the group that fought for Proposition 66, are increasingly interested in using Cooley’s Los Angeles policy as the basis for a new statewide reform effort in 2012, because it suggests a way to reserve life sentences for the three-strikers who have committed crimes of violence.
The statistic I have highlighted above, and the astute subsequent discussion of how many more legal resources are devoted to the most heinous murderers in California and elsewhere, reinforces my own strong belief (which I have expressed in this Harvard Law & Policy Review article and elsewhere) that progressives seriously interested in serious sentencing reforms must stop obsessing about the death penalty and should start obsessing about life sentences.
Put simply, in California and throughout the nation, there are lots of legal and social and political forces that now help ensure that few "lesser" murderers ever end up on death row. Indeed, as the plea deals for the Green River Killer and repeat sex offender killer John Allen Gardner highlight, all but the most ardent death penalty abolitionists should probably be most concerned about the worst murderers often being able to avoid ending up on death row.
In sharp contrast, there are lots of legal and social and political forces that now help ensure that many "lesser" offenders end up facing actual or functional life sentences. Consider these examples from just the last few weeks: Michelle Lyn Taylor recently got a life sentence in Nevada for forcing a teenage boy to touch her breasts; Sholom Rubashkin had federal prosecutors urging a life sentence for various fraud offenses; Enrique Prieto got a life sentence in Texas for assaulting an elderly man.
As this great NYTimes article spotlights, prosecutors always can and often will mitigate the harshest realities of life sentencing statutes through the exercise of their charging and bargaining discretion. But, for many reasons, I do not think the Framers of our Constitution would have been too pleased with the notion that the only protection that many lesser offenders may have from a lifetime loss of human liberty is merely the unregulated and unexplained discretionary judgment of an executive branch prosecutor.
Statutory ranges, guidelines, sentencing advocacy and the power of primingA notable new piece on legal advocacy by Kathryn Stanchi now available here on SSRN, "The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader," reminds me of what I consider to be a key failing by many in the defense bar in the aftermath of Booker. Before I turn to this failing, here is the abstract of this new priming article:
While legal advocates have long understood that first impressions can strongly influence the decision-maker’s view of their cases, so far legal scholars have not explored in any depth the growing body of research on the science of first impressions. This article remedies that by looking at the scientific studies of a psychological phenomenon called “priming.” These studies reveal the subtle and surprising ways in which first impressions can be shaped to the legal advocate’s advantage.
Priming is a phenomenon through which a person’s reaction to information is influenced by her exposure to prior material. For example, priming studies show that if a person reads about golf, her first thought will tend to be “golfer” if someone later mentions Tiger Woods to her. Her first thought is likely to be quite different if someone has previously spoken to her about marriage or adultery. Because priming can change a person’s reaction to information by exposing her to different introductory material, it has significant implications for legal advocacy.
This article examines the major studies on priming, with the goal of showing how legal advocates can use the lessons of the studies to make more persuasive arguments. The article also demonstrates how the psychological data on priming offers new and unique insights on how to use emotion in legal advocacy. Throughout the article, concrete examples show how legal advocates can use the science of priming to make strategic decisions. In sum, the article represents a first, serious step in studying this powerful tool that has potential application to all facets of legal advocacy.
As the title of this post hints, I think a key failing of many in the defense bar since Booker has been the tendency to allow prosecutors to prime sentencing judges to focus on (now advisory) guideline ranges rather than to prime a focus on (still mandatory) statutory sentencing ranges. Especially in cases in which there is no applicable mandatory minimum prison term set by statute, defense counsel could and should zero in on 3353(a)(3), which demands a focus on "the kinds of sentences available" and comes before 3353(a)(4) demands a focus on "the kinds of sentence and the sentencing range" set out in the guidelines.
Insiders reporting James Cole tapped to be next Deputy Attorney General
Sentencing fans know that, with the Justice Department's still on-going internal review of sentencing and corrections policy and with lots of important SCOTUS and USSC sentencing decisions in the works, the DOJ remains a critically important playing in helping to chart the short-term and long-term future of sentencing law and practice. Consequently, given this new story in The National Law Journal headlined "Source: Bryan Cave Partner Picked to Be Next Deputy Attorney General," I now am eager to hear what folks might know about likely future DAG James Cole.Here are the basic background details from the NLJ story:
President Barack Obama intends to nominate Bryan Cave partner James Cole as the next deputy attorney general, a source with knowledge of the plans confirms.
Cole, 57, comes to the nomination with a mix of experience in the Justice Department and in private practice. He spent 13 years at the department, rising to be chief of the Public Integrity Section. He's been at Bryan Cave since 1995, specializing in white-collar defense and corporate investigations, though he took time to serve as special counsel to the House Ethics Committee during its inquiry of then-Speaker Newt Gingrich, R-Ga.
Cole is also a friend of Attorney General Eric Holder Jr., and the two worked together at the Justice Department. "He's experienced, able, and a very fair-minded guy," said Irvin Nathan, general counsel to the U.S. House of Representatives, who worked with Cole as a partner at Arnold & Porter....
Arnold & Porter partner James Cooper, who led the embezzlement conspiracy prosecution of officials from the Washington Teachers Union in 2003, called Cole an excellent choice for deputy attorney general because he brings the perspective of an attorney who has worked on both sides of the courtroom.
"I am extremely pleased with the selection," said Cooper, who practices in white-collar criminal defense. "He has had the kind of distinguished career inside and outside of the government that suggests to me he has the right kind of judgment and temperament to be an effective manger."
As the Justice Department's No. 2 official, the deputy attorney general manages the day-to-day operations of its tens of thousands of employees nationwide. The deputy serves as the department's top official when the attorney general is unable to do so, and he can be one of the department's top public faces on Capitol Hill and elsewhere....
Gary Grindler of the department's Criminal Division has been acting deputy attorney general since February, when David Ogden stepped down to return to Wilmer Cutler Pickering Hale and Dorr. Cole's candidacy was first reported last month by ProPublica, and the plans to nominate him were reported Friday afternoon by The Wall Street Journal and The Washington Post.
I doubt Cole would be confirmed before the Supreme Court hands down its expected big rulings in the honest services fraud cases and other still pending big federal criminal law cases this Term. But he likely would have a hand in how DOJ responds to the Sentencing Commission's important new proposed sentencing guidelines and also its on-going work on mandatory minimum sentencing statutes. Thus, if anyone has a sense of Cole's sense of these issues, please consider leaving a comment here.