June 12, 2010
Scheduled firing squad execution renewing Utah's death penalty debateBarring some unexpected development, Ronnie Lee Gardner will be executed in Utah this coming Friday in the same manner in which the first modern US execution took place 33 years ago. This new Salt Lake Tribune article discusses this symetry and the persistent debate over capital punishment in the interim. Here are extended snippets:
Gary Gilmore earned Utah a special place in history when his 1977 execution by firing squad reopened the door to capital punishment in the United States. The practice has remained problematic ever since.
Otherwise, Ronnie Lee Gardner -- sentenced to die for the 1985 courthouse slaying of attorney Michael Burdell -- wouldn't have spent 25 years on Utah's death row awaiting his fate....
Now, as the nation again turns an eye toward Utah and its preparations for Gardner's Friday execution by firing squad, capital punishment proponents insist death is the only just penalty for the worst crimes. But for opponents, questions persist: Is the death penalty administered arbitrarily? Is justice served when inmates languish for decades on death row? Can states afford to spend the millions of dollars capital cases require? And does the death penalty deter crime and lead to a better society?...
"The law is not very good at specifying who should live and who should die," argues Franklin E. Zimring, a law professor at University of California at Berkeley. Zimring was among those who recently convinced the American Law Institute -- an association of about 4,000 lawyers, professors and judges -- to abandon its support of the death penalty based on arbitrary application....
In some cases, such as that of the mother and stepfather charged in the recent torture killing of 4-year-old Ethan Stacy, society demands execution, said Kent Scheidegger, director of Sacramento-based Criminal Justice Legal Fund.
"There are some crimes for which any lesser penalty is not justice," Scheidegger said. Although he contends there is no way to make capital punishment "completely consistent," Scheidegger said the system does "by and large only sentence the worst killers to death."
For capital punishment to be effective as a deterrent, Scheidegger said, states must streamline the appeals process. He pointed to Virginia, which limits the number of appeals in capital cases to an automatic appeal followed by a second review. An execution date is set immediately after the second review is denied, forcing inmates to turn the federal courts, according to the Office of the Virginia Attorney General.
Behind Texas, Virginia has executed more people since capital punishment was reinstated than any other state. It took seven years to execute the state's so-called "D.C. Sniper," John Allen Muhammad, believed to have killed up to 10 people in the 2002 Beltway shootings. Virginia's five-year average from sentencing to execution compares with a national average of 11 years, according to Northern Illinois University....
Like most death penalty proponents, Paul Cassell, a University of Utah law professor, would like the time between conviction and execution to be reduced. But otherwise, he contended, the death penalty works well in this country and is structured to be lenient, rather than barbaric. "We could make the death penalty apply evenly, but if it's applied evenly, everyone who commits murder gets the death penalty," he said. "The sorting is done by the jury."
Salt Lake City defense attorney Ken Brown, a death penalty opponent, argued capital punishment doesn't lead to a better society. Beyond that, Brown said it isn't fair to the victim's families, either -- particularly in an era where an execution, such as Gardner's, can be 20 years or more in coming. Prosecutors should tell the victim's families, 'Every time we deal with this case that wound will be reopened,' " he said. "Calmer minds need to be saying, 'Nothing we do can bring your [loved one] back. We can kill someone else, but at what cost?' "
That is borne out by the families of Gardner's victims, who say they relived the horrors of their loved-one's deaths every time Gardner has made headlines over the past quarter century. Gardner was appearing in court for slaying Melvyn Otterstrom when he fatally shot attorney Michael Burdell and wounded court bailiff Nick Kirk during an escape attempt.
But like the rest of the country, the families of Gardner's victims have mixed views on the death penalty. Kirk's widow and daughters say they can't rest until Gardner has been executed. Donna Nu, Burdell's fiance, says she would do anything to stop Gardner's execution.
Otterstrom's widow, Kathy Potter, and son, Jason Otterstrom, have not weighed in on Gardner's death sentence, although his son said Thursday he wants a final resolution in the case. "I don't know which path should be followed. But our family needs peace," he said. "I ask that whatever decision is reached, that it be permanent."
"Clarence Thomas in 2012!"The title of this post is the last line of this amusing Washington Post op-ed by Kashmir Hill and David Lat of Above the Law, which makes a lovely case for Justice Clarence Thomas running for President in 2012. The piece is titled, "Justice Clarence Thomas seems bored. Why doesn't he run for president in 2012?", and here are a few snippets:
The Republican Party is in disarray, with no clear message -- as shown in last week's primaries -- and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP's new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography "My Grandfather's Son." And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.
A Thomas candidacy would bring racial diversity and a moving personal story to the Republican ticket. Thomas was born into poverty in Pin Point, Ga. He didn't have indoor plumbing until he moved to Savannah to live with his grandparents at age 7....
Thomas is well suited for political office. On the nation's highest court, he has had to reflect and rule on the country's most divisive issues. He also has political experience predating the court. He worked as an assistant attorney general in Missouri and then for the Reagan administration in the Department of Education and as head of the EEOC....
Would it be insane for Thomas to leave a lifetime appointment to run for president? Well, he is a judge, so let's talk precedent. If elected, Thomas would not be the first person to serve as both president and justice: William Howard Taft was president from 1909 to 1913, then chief justice from 1921 to 1930. And Thomas wouldn't even be the first to attempt this in the reverse order: Charles Evans Hughes, appointed to the court in 1910, resigned in 1916 to run as the Republican nominee for president. He lost to Woodrow Wilson by a mere 23 electoral votes.
Of course, some sentencing fans will have kind spot in their heart for Justice Thomas because of his approach to the Sixth Amendment in Apprendi and Harris and Blakely. But I doubt his approach to jury rights would be a central aspect of any election campaign. Though this op-ed (and my comment, too) was obviously written with tongue firmly planted in cheek, it is truly intriguing to think about a modern Justice considering a run at the Presidency. And it is especially fun to imagine celebrating the sesquicentennial of the Emancipation Proclamation with a choice between two black men for US President.
Special JRP issue on "Sentencing and Corrections in the States"I am pleased to be able to report on and promote a the Special Issue on Sentencing and Corrections in the States that was just published by the Justice Research and Policy and it available via this link. Here is how this issue is summarized by the folks at JRP:
This special issue of JRP contains seven articles by leading researchers that examine sentencing and incarceration practices across the United States, with a focus on state issues and practices:
- A National Overview offer strategies for reducing the correctional population across the country as a whole.
- State Focus articles provide in-depth looks at corrections policies and practices in Florida, Pennsylvania, New York, Texas, and California.
- A final Commentary discusses the issues highlighted by these articles and offers insights into present and future U.S. sentencing and corrections practices.
Based on my own quick skim, it appears that every one of the seven articles in this special issue is a must read.
New release of Kagan papers includes a crack/powder memoThis new AP article discussing the "roughly 40,000-page trove of documents released by the William J. Clinton Presidential Library on Friday" includes this sentencing-related tid-bit:
In a July 1997 memo to Clinton on drug sentencing guidelines, Kagan and [her boss Bruce] Reed counseled a middle-ground policy to sharply reduce — but not eliminate — the disparity between crack and powder cocaine sentences. They said Clinton could expect criticism both from Republicans, who would call the position soft on drug users, and the Congressional Black Caucus, which would accuse the administration of "failing to go far enough to remove a racial injustice."
I do not think kind of memo should be viewed as providing a window into SG Kagan's sentencing soul, though it does show she has understood the basic politics of the long-standing debate over crack sentencing.
June 11, 2010
How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
Frequent blog commentor Bill Otis has a notable and curious post here at Crime & Consequences that references this new AP article in which "Montana Gov. Brian Schweitzer says legalization of medical marijuana has not worked out as voters planned, and agrees the state needs a legislative fix." This AP piece goes on to explain that Montana's "medical marijuana law has become one of the hottest topics facing lawmakers as the state deals with an explosion in the number of patients, caregivers and growers." According to Bill, this story demonstrates "[o]ne of the myths of pot legalization (first for so-called medical purposes, then for any purpose) ... that life gets better after it's done."
I was intrigued and troubled by Bill's quick conclusion that the AP report suggested that life was now worse in Montana because of the state's medical marijuana reforms. Especially if one sees pot use as comparable to alcohol use, an "explosion" of the number of persons legally using pot (and thereby creating a legitimate and taxable industry instead of a problematic black market) seems like evidence that life is getting better. Indeed, digging around a bit, I found some other media discussions of Montana's marijuana issues (see local editorial and pieces from NPR and Drug War Chronicle), and it seems that the big problem in Montana is not legalization, but very poor regulation under existing law.
Indeed, I spent some time checking out out the website of a Montana group called Safe Communities, Safe Kids that is seeking to repeal the state's medical marijuana law, and I had a very hard time finding any evidence that life is worse in Montana because of the state's medical marijuana reforms (unless one believes that having any "patients, caregivers and growers" of marijuana necessarily makes the state worse off). A key theme of the anti-pot forces seems to be that legalization allows kids to have a chance to access pot. But, again, if one sees pot use as comparable to alcohol use, I have a hard time seeing the big deal. All kids in Montana and elsewhere have a ample opportunity to access alcohol (and tobacco and guns and knives and rat poison lots of other dangerous legal stuff), but we generally seek to deal with these concern of access through sensible regulations, not through categorical prohibitions.
The deeper issue that goes beyond the debate in Montana, as suggested by the title of this post, is just how we can and should assess the "success" of medical marijuana and related pot reform and decrminalization efforts. If most people continue to consider the "wicked weed" truly wicked, then there will be persistent claims that pot reform has made life worse because more people will have legal and ready access to pot. But unless and until these same people can effectively assert and establish that the life has been worse in America since we repealed alcohol Prohibition, I think it is important to be a bit more thoughtful and critical when seeking to assess and/or criticize the consequences of on-going marijuana reform efforts.
Some related posts:
- Should and will California's voters legalize marijuana in that state this November?
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- "Sarah Palin, Marijuana Law Reformer?"
- Thoughtful academic thoughts on ending marijuana prohibitions
- "Legalizing marijuana not really a dopey idea"
- Did Sarah Palin or any others at the Tea Party Convention talk about pot prohibition or mass incarceration?
Split Sixth Circuit ruling spotlights split over who can get resentenced under new crack guidelines
Within the next few weeks, the Supreme Court will hand down a ruling in the Dillon case dealing with the extent of a district court's authority to reduce sentences when a defendant is eligible for a reduction under the Sentencing Commission new reduced crack guideline. But the Dillon case is unlikley to resolve or even address questions concerning just who is eligible for a reduction in the first instance, and this eligibility issue has lead to some circuit splits in a variety of contexts
An intriguing new split opinion today from the Sixth Circuit in US v. Pembrook, No. 08-6452 (6th Cir. Jun. 11, 2010) (available here), spotlights some aspects of this debate over this eligibility issue. Here is how the majority opinion in Pembrook starts:
In 1997, Daryl Marcus Pembrook pleaded guilty to possession with intent to distribute crack cocaine. Under U.S.S.G. § 4B1.1, Pembrook was a career offender. At sentencing, Pembrook prevailed upon the district court to depart downward from his career-offender guideline range to a sentence stated with reference to the analogous range for his crack-cocaine offenses. A decade later, Pembrook filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the crack-cocaine guidelines had lowered his applicable guideline range. The district court denied his motion, on the grounds that Pembrook’s applicable guideline range was his career-offender range–not his crack-cocaine range–and Amendment 706 did not affect that range. Pembrook now appeals. Because we conclude that Pembrook’s applicable guideline range was his career-offender range, and Amendment 706 did not have the effect of lowering that range, we affirm.
Here is how the dissent in Pembrook starts:
The Sentencing Guidelines should be interpreted, if the words can fairly be so read, to permit resentencing when a properly applied Guideline that affected the length of a sentence is later retroactively reduced. When two Guideline calculations were properly used at two different steps of the sentencing determination process to determine a defendant’s original sentence, no policy supports permitting resentencing only if the first, but not if the second, calculation would have been different under a retroactive amendment. It is hard to imagine why the Sentencing Commission would adopt such a policy. The syntax of the operative policy statement language does not require such a limit; indeed, it cuts the other way. Under the policy statement, there must have been a lowering of “the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). The words most naturally mean “a guideline range [properly] applied to the defendant.” The words do not require that there be only one such range. By analogy, if a sport rule provides for a penalty if “the player’s foot steps out of bounds,” English syntax does not require that the rule apply only to the right foot or the left foot. The clear meaning of “the player’s foot” is “a foot of the player.” In short, because the Sentencing Commission retroactively lowered the Guideline range that the district court properly applied to Pembrook so as to affect his sentence, the requirements of the statute and the operative policy statement were fulfilled, and the district court had the authority to resentence Pembrook.
I have not given much attention to these issues as we await a ruling from the Supreme Court in Dillon. But it will be interesting to see if SCOTUS will take up
Worth reading around the blogosphere
Also worth checking out are these notable sentencing posts from some other old-favorite blog settings:
- From Pardon Power, "More Mercy in Iran than in Obama Administration!"
- From Prawfsblawg, "Time delayed sentencing gets off the ground!"
- From The Volokh Conspiracy, "Recent Michigan Prosecutions for 'Seducing an Unmarried Woman'”
"Sentencing and Comparative Theory"The title of this post is the title of this notable new piece of scholarship from Professor Richard Frase available via SSRN. Here is the abstract:
Mirjan Damaska and other comparative criminal justice theorists have given very little attention to how comparative law models and theories might apply to sentencing. Although numerous scholars have studied the differences in sentencing alternatives and overall punishment severity across national boundaries, almost none have linked these differences to the models and theories used to describe, explain, and predict changes in criminal pretrial and guilt-determination procedures.
In the United States there have been significant recent changes in sentencing goals and procedures, in particular: 1) retributive and public safety goals have been given increased emphasis, while rehabilitation has been de-emphasized; 2) many U.S. jurisdictions now use some form of sentencing guidelines; 3) almost all jurisdictions apply mandatory or mandatory-minimum sentences to certain offenders; 4) the U.S. Supreme Court has held that certain facts permitting sentence-enhancement may no longer be informally determined by the trial judge at the sentencing hearing, but must be submitted to the jury and proven beyond a reasonable doubt; and 5) overall sentencing severity (as measured, for example, by prison populations relative to resident population and relative to criminal caseloads) has risen substantially in almost all U.S. jurisdictions. Do comparative law models help to explain any of these changes? This essay considers whether Damaska’s theories, some variation on his theories, or alternative comparative law theories might help to explain cross-national variations (as well as within-nation variations, across states and other jurisdictions) in sentencing goals, procedures, alternatives, and outcomes.
June 10, 2010
California regulators reject state's revised lethal injection planAs detailed in this new AP piece, which is headlined "Regulators reject new death penalty procedures," California's long-stalled efforts to get back in the business of executions has hit another snag. Here are the basics:
California regulators have rejected proposed new death penalty procedures, further delaying the resumption of executions stalled by court order since 2006.
The Office of Administrative Law on Tuesday rejected the proposed regulations drafted by prison officials, who have until Oct. 6 to submit revisions. The court cases challenging California's capital punishment law will remain on hold until the proposed regulations are approved.
The office identified several passages that conflicted with state law, were unclear or failed to properly state reasons for the new procedures....
The duty of the Office of Administrative Law is to ensure that state agencies follow proper procedures in drafting proposed regulations. Its approval of the lethal injections protocol was seen as a mere formality. But on Tuesday, the obscure state agency sent prison officials a blistering 21-page "decision of disapproval of regulatory action."...
The American Civil Liberties Union, which is challenging California's death penalty in federal court, called on Schwarzenegger to abolish the death sentence. "We believe the flaws are too fundamental and at some point we have to stop," said the ACLU's Natasha Minsker. "This really demonstrates that the CDCR has not really taken the process seriously."
An (amusing and telling) attack on Elena Kagan's potential to be "activist judge" who "will undermine Americans' gun rights"
One reason I have been a fan of the Supreme Court's Second Amendment work in Heller is because the ruling should help bring an end to simplistic (and, in my view, misguided) attacks on "activist judges" from the right. Because it was the so-called conservative wing of the Supreme Court that cast all the votes to strike down DC's handgun ban as unconstitutional, Heller seemed to make it impossible for those on the right to hurl the "activist" invective against any and every jurist who ever declared unconstitutional a duly-enacted piece of legislation.
Of course, I was wrong to assume that Heller itself would serve as an epitaph for the use of "judicial activist" as a vituperative accusation. And, as evidenced by these sections of this amusing Washington Times editorial attacking Elena Kagan's approach to the Second Amendment, it seems that the activist label can still be hurled at someone inclined to uphold gun regulations:
[Ms. Kagan's] memos to Justice Marshall foreshadow an activist judge who wouldn't hesitate to fall back on her own personal views to override policy decisions made by elected officials. She clearly counseled Justice Marshall on how he should rule based upon whether she thought policies made "sense."...
Ms. Kagan is Justice Sonia Sotomayor's soul sister when it comes to gun control. Last year, during her confirmation hearings, Ms. Sotomayor insisted the Supreme Court had never found that an individual right to self-defense exists. Two of Justice Sotomayor's own appeals court decisions came to the same conclusion. One ruling denied there is an individual right to self-defense. In another case, even after the Supreme Court struck down the District's gun ban, Judge Sotomayor opined that any restrictions on self-defense would pass constitutional muster so long as politicians who passed it said they had a good reason.
According to the Washington Times, Kagan is to be faulted as a potential "activist" judge because she apparently would "fall back on her own personal views to override policy decisions made by elected officials." And yet Justice Sonia Sotomayor, Kagan's "soul sister" is to be faulted for not being willing to override duly enacted laws just because "politicians who passed it said they had a good reason." Huh?
Indiana Supreme Court addresses use of risk assessment tools in state sentencingThe Indiana Supreme Court yesterday handed down an interesting and important decision concerning the use at sentencing of the kind of risk-assessment tools that are become increasingly more popular in those states adopting evidence-based sentencing practices. Here is how the Court's unanimous ruling in Malenchik v. Indiana, No. 79S02-0908-CR-365 (Ind. June 9, 2010) (available here), gets started:
Following his plea of guilty to Receiving Stolen Property, a class D felony, and his admission to being a Habitual Offender, the defendant was sentenced to a total of six years, with two years suspended. The defendant appeals his sentence and presents two claims: (1) the trial court erroneously considered as an aggravating circumstance the numerical scores reported by the Tippecanoe County Probation Department after it conducted evaluations of the defendant using certain offender risk evaluation and assessment instruments; and (2) his sentence was inappropriate and should be revised. The Court of Appeals rejected both claims and affirmed in a memorandum decision. Malenchik v. State, No. 79A02-0902-CR-133 (Ind. Ct. App. June 5, 2009). We granted transfer to address the first claim and invited supplemental briefs of the parties and amici curiae. As explained below, we hold that legitimate offender assessment instruments do not replace but may inform a trial court's sentencing determinations and that, because the trial court's consideration of the defendant's assessment model scores was only supplemental to other sentencing evidence that independently supported the sentence imposed, we affirm the sentence.
New CEPR report on "The High Budgetary Cost of Incarceration"I am intrigued and pleased to learn that the Center for Economic and Policy Research (CEPR) has released here a new report titled "The High Budgetary Cost of Incarceration." The full report is available at this link, and here is how CEPR describes its findings:
The United States currently incarcerates a higher share of its population than any other country in the world. We calculate that a reduction in incarceration rates just to the level we had in 1993 (which was already high by historical standards) would lower correctional expenditures by $16.9 billion per year, with the large majority of these savings accruing to financially squeezed state and local governments. As a group, state governments could save $7.6 billion, while local governments could save $7.2 billion.
These cost savings could be realized through a reduction by one-half in the incarceration rate of exclusively non-violent offenders, who now make up over 60 percent of the prison and jail population. A review of the extensive research on incarceration and crime suggests that these savings could be achieved without any appreciable deterioration in public safety.
This CEPR press release adds these comments and details about the report:
"State and local governments are under tremendous fiscal pressure,” said John Schmitt, a senior economist at CEPR and lead author of the report. “Shifting just half of the non-violent offenders from prison and jail to probation and parole could save state and local governments $15 billion per year."
The study points out that some of the main causes of the rise in incarceration rates are policies such as "mandatory minimums" and "three strikes" laws that often lead to long prison terms for non-violent offenders. Earlier research on the connection between crime and incarceration suggests that state and local governments could shift non-violent offenders from jail and prison to probation and parole with little or no deterioration in public safety.
Among the key findings are:
- In 2008, one of every 48 working-age men were in prison or jail
- Non-violent offenders make up over 60 percent of the prison and jail population; non-violent drug offenders account for one-fourth of all offenders behind bars
- The total number of violent crimes in the United States was only about three percent higher in 2008 than it was in 1980. Over the same period, the U.S. population increased by 33 percent while the prison and jail population skyrocketed by more than 350 percent.
Disgraced Detroit mayor apparently boot camp eligible despite getting significant state prison sentenceThis new Detroit Free Press article, which is headlined "State: Ex-mayor Kilpatrick qualifies for boot camp," provides an interesting update on a high-profile state sentencing case out of Michigan. Here is how the piece starts:
Two weeks after he was handcuffed in a Wayne County courtroom on live television and hustled off to prison, Kwame Kilpatrick is being proposed for boot camp with the prospect of parole in 90 days.
The Michigan Department of Corrections made the proposal in a Tuesday letter to Wayne County Circuit Judge David Groner, who sentenced the former Detroit mayor to 1 1/2 to five years in prison for probation violation.
Inmates who successfully complete the 90-day boot camp program are placed on parole for a minimum of 18 months, with the first 30 days under intense supervision. By law, Groner has veto power over the proposal. So the ultimate decision rests, again, with him.
Wayne County Prosecutor Kym Worthy said she learned of the proposal Wednesday. "We will certainly recommend to the judge that this not occur," Worthy said. The two weeks Kilpatrick has been imprisoned is not enough time to screen him for such placement, she said. Her other objections will be in her letter to Groner, she said.
Kilpatrick's former lawyer Michael Alan Schwartz welcomed the recommendation, saying it would redress an injustice.
In the letter to Groner, the Corrections Department said that Kilpatrick qualified as a carefully screened offender for placement in the Special Alternative Incarceration facility.
Worthy, who just two weeks ago completed a 10-month struggle to lock up Kilpatrick for probation violation, said she was not happy with the prospect. "I've never seen anything like this," she said Wednesday. Worthy said that 14 days is not enough time to determine whether Kilpatrick is suitable for boot camp, adding she will spell out her objections in a letter to Groner.
Groner, who chastised Kilpatrick for lying to the court and flaunting a lavish lifestyle in Texas while hiding assets, could not be reached for comment.
Kilpatrick's appellate attorney, Arnold Reed, said the former Detroit mayor isn't receiving special treatment while in custody and that the offer of boot camp is common for inmates like him. Nevertheless, Reed said he did not foresee Kilpatrick going into the program. "It's up to the judge," Reed said. "And based on what transpired ... in terms of him sentencing Mr. Kilpatrick beyond what the guidelines call for, I can only conclude that Judge Groner would not grant something like this."
Corrections spokesman Russ Marlan said that Kilpatrick was not being singled out or being specially selected for boot camp. "We didn't recommend him. It is standard procedure for those inmates who qualify," Marlan said.
The boot camp program has changed in recent years from the full-bore militaristic regimen of screaming drill sergeants of its early days, Marlan said. "It is more about re-entry than regimentation," Marlan said.
But it hasn't lost all of its military flavor. Inmates get their heads shaved and they are put through marching, physical fitness and tough work programs. However, counseling and re-entry strategies are now major components, Marlan said. Entry into the program is voluntary. The 440-prisoner program is located in Chelsea.
Prisoners who successfully complete the 90-day program are paroled for at least 18 months, with the first 30 days under strict supervision. The parolees can be assigned to halfway houses, required to wear electronic monitors or comply with other special conditions. Marlan said it is "a big incentive for prisoners" to earn early release though the challenging program.
Notable Canadian ruling on extreme prison confinement
A helpful reader from north of the border sent me this note about a notable and high-profile (and very lengthy) ruling about prisoners' constitutional rights in Canada:
I thought you may wish to write about this significant decision from a Canadian trial court about the meaning of cruel and unusual punishment in Canadian law. Your blog emphasizes American developments, but this case has an American emphasis as it relies upon expert opinion evidence provided by Craig Haney, and there is discussion as to the importation of American ‘supermax’ style imprisonment. The case is quite long [and can be found here]:
Media coverage can be found here. The media coverage is, of course, a bit sensational. From a prison lawyer perspective, the critical parts of the decision are at paragraphs 318–335 which indicate a new standard for interpreting long-term administrative segregation as constitutionally impermissible; as contrary to legitimate penological objectives.
June 9, 2010
"Executioner: Death by firing squad is '100 percent justice'"The title of this post is the headline of this interesting new piece at CNN based on an interview with a member of the last firing squad used in Utah in 1996 to execute a convicted murderer. Here is a snippet:
The former firing squad member asked not to be named, as he remains a law enforcement officer in the state. The man he helped execute, John Albert Taylor, was sentenced to death for killing an 11-year-old girl in 1989. Charla Nicole King had been sexually assaulted. A telephone cord was wrapped around her neck -- three times, her mother told authorities. She knew because she counted as she unwound it, trying to revive her daughter The officer agreed to recount his experience because he believes in the death penalty -- and thinks the firing squad method is plagued by misconceptions.
It is not like the scenes depicted in movies, with a condemned man tied to a stake and smoking a last cigarette before being riddled with bullets in a gruesome spectacle. Instead, he says over coffee, toast with grape jelly and an omelet, the process is instantaneous and carried out with the utmost professionalism. "It was anti-climactic," he says. "Another day at the office."
He has brought with him a stack of photos from Taylor's autopsy, including one of the man's heart, blown into three pieces.
Does he have any lingering effects from his role in the execution? "I've shot squirrels I've felt worse about," he says. He volunteered to participate, he said, and would do so again, given the opportunity. "There's just some people," he says, "we need to kick off the planet."
The officer remembers feeling a sense of responsibility that day, as he awaited the countdown to fire at Taylor, strapped into a chair 17 feet away with a target pinned to his chest. He remembers telling himself, "Don't (expletive) this up."
Recent related posts:
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?
- Utah murderer who selected firing squad as execution method to get (high-profile) commutation hearing
- Utah getting ready for an "old school" execution
Do "mama grizzlies" have a particular approach to crime and punishment issues?
As detailed in this NPR piece and this Politico piece, one theme emerging from yesterday's election results is the success of female Republican candidates that had Sarah Palin's backing — or, as Sarah Palin call them, "Mama Grizzlies." Though it is probably too soon to figure out the long-term political impact of the conservative feminism that Sarah Palin seeks to stir up with her "mama grizzly" themes, it is not too early for me to speculate about whether "mama grizzlies" may adopt a particular approach to crime and punishment issues.
This recent Facebook posting by Sarah Palin endorsing a congressional candidate in Arkansas suggests that a mama grizzly politician seeks to "protect our great country’s freedom [while being a] pro-family, pro-2nd Amendment, fiscal conservative." It is not clear that this description connotes any particular perspective on crime and punishment issues, especially with respect to controversial modern issues like whether sexting should be subject to criminal prosecution or whether non-violent felons should forever lose their gun rights. As regular readers know, I believe a true "fiscal conservative" should be very concerned about excessive government spending on the drug war and mass incarceration, but it is not clear that many politicians who stress fiscal conservatism are especially bothered by the high fiscal costs of America's criminal justice systems.
Whatever might prove to be the criminal justice profile of so-called mama grizzlies, yesterday's election at the very least shows yet again how potent a political force Sarah Palin has become. Thus, I continue to think those eager to engineer criminal justice reforms ought to be reaching out to Palin and trying to convince her that such reforms could be very beneficial for all of America's grizzly cubs.
Some related posts:
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Should sentencing fans be excited about voters "throwing the bums out" of DC?
- "Sarah Palin, Marijuana Law Reformer?"
- "Legalizing marijuana not really a dopey idea"
- Is Governor Palin a real fan of jury nullification and pot decriminalization?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
- Did Sarah Palin or any others at the Tea Party Convention talk about pot prohibition or mass incarceration?
June 9, 2010 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1) | TrackBack
Lindsay Lohan doing her best to become technocorrections poster childSentencing fans now have yet another reason to enjoy the guilty pleasures of the movie Mean Girls: it seems that its star, Lindsay Lohan, may next appear on either a wanted poster or on a poster advertising SCRAM, the alcohol-monitoring technocorrections device that she is helping to publicize. This ABC News report explains why:
Lindsay Lohan is in hot water again -- this time over her court-ordered alcohol-monitoring ankle braclet.
According to People magazine, Lohan's ankle monitor sounded an alarm Sunday night while she attended an after-party for the MTV Movie Awards. It's unclear why the alarm was triggered, but typically authorities are alerted when the device is either tampered with or the person wearing it consumes alcohol.
Whatever the reason, it was enough for Beverly Hills Judge Marsha Revel to issue a bench warrant late Tuesday for Lohan's arrest, claiming the 23-year-old actress was "in violation for conditions on bail," according to US Weekly.
Because of the violation, Lohan's previous $100,000 bail has been revoked. The Los Angeles Times reported that the actress posted new bail of $200,000 to avoid being detained.
On Wednesday, Lohan's attorney and the prosecutor were back in court for a closed-door session with Revel. Lohan, who is due back in court July 6, was not required to appear. After the hearing, Lohan's lawyer, Shawn Chapman Holley, told TMZ that Lohan's anklet device "indicated the presence of a small amount of alcohol on Sunday night."
"Having just received the report, I am not in a position to speak to its accuracy or validity; however, Ms. Lohan maintains that she has been in complete compliance with all of the terms of her probation and her bail," Holley said.
In messages posted on her Twitter account, Lohan also denied that she had done anything wrong and said the anklet, known as a SCRAM, or Secure Continuous Remote Alcohol Monitor, should have detected nothing. "I did not violate anything at all," she tweeted. "My SCRAM wasn't set off ... It's physically impossible considering I've [done] nothing for it to go off. All of these false [reports] are absolutely wrong."
Lohan was fitted for the device May 24 after she failed to show up for a mandatory hearing on her probation related to an earlier DUI case....
[A recent] report in US Weekly magazine [said] that the actress, who previously wore the bracelet in 2007, tried using a paper clip to jam the signal and perfume (which is high in alcohol content) to confuse the sensor. The magazine said Lohan denied attempting both tactics. But she wouldn't be the first to try to bypass the bracelet....
Vickers Cunningham, retired Texas District Court Judge and chief operating officer of Recovery Healthcare Corporation, a major SCRAM distributor, said that some offenders have attempted innovative strategies to bluff the booze detector.
Novices place cellophane or foil between the skin and the sensor. "The more creative people have tried to simulate human skin by using baloney or salami or ham," he said. One even stuck chicken skin to his ankle. But he said that the bracelets include several anti-tamper sensors....
He said tactics like Lohan's alleged perfume-spraying strategy are known as attempts at "spiking the bracelet." Offenders are told not to use perfume and other topical alcohol-based products around their ankles because it sends the reported alcohol level through the roof and masks any alcoholic beverages the person might have consumed.
But Cunningham said probation officers can tell when offenders spike the bracelets with gasoline, perfume and other substances and can send them before a judge to explain why they contaminated the sample.
Lawyer turned Ponzi schemer turned cooperator Rothstein gets federal prison term of 50 yearsAs detailed in this Reuters report, "South Florida Ponzi scheme mastermind Scott Rothstein was sentenced to 50 years in prison on Wednesday for an investment fraud that bilked clients out of more than $1 billion." Here's more:
The sentence was more than the 40 years federal prosecutors had recommended for Rothstein, a disbarred lawyer who pleaded guilty to racketeering and fraud conspiracy charges in January. He had faced up to 100 years in prison but his lawyer had asked U.S. District Judge James Cohn to give him no more than 30 years.
Notable new testimony from DPIC on the economic costs of the death penaltyA helpful reader pointed me to this new written testimony from the Death Penalty Information Center's executive director, Richard Dieter, concerning the death penalty's economic costs. Here is how DPIC's website explains the background and basics of this document:
On Monday, June 7, the Pennsylvania State Government Management and Cost Study Commission will hear from experts on proposals to cut the costs of various government programs. The Commission, established in 2009, is comprised of private and public sector cost-minded leaders in Pennsylvania and has been charged with studying the management of government operations and making recommendations for cost-cutting measures.
Among the experts who will testify at the hearing is Richard Dieter, Executive Director of the Death Penalty Information Center, who will provide information on the high costs of the death penalty. His testimony states: "[T]he death penalty is not an essential government function and, in fact, is probably one of the least effective and most costly programs, when measured in terms of the people it affects. What Pennsylvania calls the death penalty is in reality a very expensive form of life without parole. Despite having the fourth largest death row in the country, Pennsylvania has not had an execution in 11 years" and no "contested execution since 1962."
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?
- "Death penalty kills the budget"
US Sentencing Commission publishes fascinating new survey of district judges' views on sentencing
Just posted on the website of the US Sentencing Commission is this new document titled "Results of Survey of United States District Judges: January 2010 through March 2010." As the website explains, the "Sentencing Commission undertook to survey all United States district court judges concerning their views and opinions on a wide range of sentencing policy issues," and this publication presents the results of that survey. Here are a few snippets from the report about the survey:
The Commission’s 2010 survey asked questions grouped into five broad areas: (1) statutory and structural sentencing issues; (2) sentencing hearings; (3) guideline application issues; (4) departures; and (5) general assessments. Judges were provided an opportunity to offer written comments in addition to or to expand upon their answers to the survey questions....
Abt [the survey administrator] reported to the Commission that, of the 942 judges to whom the survey was sent and who did not ask to be excluded from the survey, 639 responded to Abt. This represents a 67.8 percent response rate to the survey. The judges who responded to the survey presided over a significant portion of the cases in which federal offenders were sentenced during fiscal years 2008 and 2009. During this two-year period, district court judges imposed original sentences on 146,511 individual federal criminal offenders. Based on an analysis performed by Abt, the 639 judges who responded to the survey sentenced 116,183, or 79 percent, of these offenders. Of the 50 judges who sentenced the most individual offenders during the two-year period from fiscal year 2008 to fiscal year 2009, the response rate was even higher. Of the judges in this group, 43 responded to the survey. This represents an 86 percent response rate by these judges. Together, these 43 judges account for 31 percent of all offenders sentenced nationally during that period.
The results are reported in detailed charts which are hard to summarize but are worth careful study by all post-Booker sentencing participants.
Will three strikes or other California sentencing issues become a hot political topic?I do not see too many huge sentencing stories emerging from yesterday's primary elections in a bunch of states. But this report from the Los Angeles Times on California's Attorney General race notes the place that the state's three-strikes law has already played in the run up to that state's primary yesterday:
Los Angeles County Dist. Atty. Steve Cooley convincingly won the GOP primary for attorney general on Tuesday, giving Republicans a strong chance at capturing the state's top law enforcement job in the November contest.
His San Francisco counterpart, Dist. Atty. Kamala Harris, appeared to overcome an aggressive — and expensive — challenge in the Democratic primary as she seeks to become the first woman, first Asian and first African American to serve as attorney general. Harris claimed victory late Tuesday, though her nearest rival had yet to concede. Former Los Angeles City Atty. Rocky Delgadillo was running well behind in a crowded field.
Cooley, a political moderate who has won three district attorney elections in heavily Democratic Los Angeles County, was leading despite a bruising primary battle in which his two GOP rivals unsuccessfully attempted to portray him as being too liberal for the Republican faithful.
Despite his numerous law enforcement endorsements, Cooley came under fire for his attempt four years ago to seek changes to the "three-strikes" law that would have — with some exceptions — limited the law's sentences of 25 years to life to criminals whose third strikes were violent or serious.
It seems unlikely that California Democrats will attack the GOP's candidate for Attorney General for being soft on applying the state's tough three-strikes law. Still, because DA Cooley has long staked out a notable position on California's most notable (and notorious?) sentencing law, it will be interesting to see if his sentencing record becomes a campaign issue this fall.
More generally, sentencing fans should be sure to keep an eye on all the big races in California this fall. Sentencing topics ranging from the death penalty, to prison crowding and costs, to marijuana prohibitions likely all will get some attention in the state campaigns. I am especially interested to watch how current AG Jerry Brown and former E-Bay CEO Meg Whitman stake out positions on these issues in the months ahead.
A notable district court opinion on the post-Booker ex post facto issueThanks to this piece in the New York Law Journal, which is headlined "Use of Current Sentencing Rules Barred for 2003 Confession," I see that a New York district court has issued a notable and quite thoughtful ruling addressing post-Booker ex post facto issues in the context of giving a relatively low sentence to a child porn downloader. Here is how the NYLJ piece describes the case and the ruling:
An admitted possessor of child pornography who was not prosecuted for more than four years following his confession in 2003 cannot be subjected to the longer prison sentences established in the interim under the federal sentencing guidelines, a federal judge has ruled.
Southern District of New York Judge Richard J. Holwell said the Constitution's ex post facto clause -- Article I, Section 9, Clause 3 -- would be violated if Brennan Sweeney were sentenced to a longer prison term than the guidelines called for in 2003 when the FBI raided his apartment. Holwell held that "retroactive application of the guidelines increases poses a 'significant risk of increased punishment,'" in United States v. Sweeney, 08-cr-212.
In October 2003, FBI agents found child pornography on Sweeney's computers. Sweeney consented to an interview and admitted to possessing more than 1,000 images of children. The FBI seized his computers but inexplicably did not arrest Sweeney until March 2008. He pleaded guilty in May 2009 to possessing and distributing child pornography.
The guidelines at the time of his confession called for a sentencing range of two years and three months to two years and nine months. But the current guidelines call for a much longer sentence -- a range of six years and six months to eight years and one month.
Holwell sentenced Sweeney on May 27 and followed with a written opinion explaining why it would be unconstitutional to subject the defendant to a term within the higher range even though the federal statute, 18 U.S.C. §3553(a)(4)(A)(ii), requires application of the current guidelines range.
The full opinion in Sweeney is available at this link.
Related posts on post-Booker ex post issues in the circuits:
- Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines
- DC Circuit produces crisp split on ex post issues after Booker (finally!!)
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
Utah getting ready for an "old school" executionThe AP has this lengthy new piece about a high-profile upcoming execution in Utah. The piece is headlined "At inmate's request, Utah prepares firing squad," and here is how it begins:
Barring a last-minute reprieve, Ronnie Lee Gardner will be strapped into a chair, a hood will be placed over his head and a small white target will be pinned over his heart. The order will come: "Ready, aim..."
The 49-year-old convicted killer will be executed by a team of five anonymous marksmen firing with a matched set of .30-caliber rifles. He is to be the third person executed by firing squad in Utah - or anywhere else in the U.S. - since the death penalty was reinstated in 1976.
Utah was a long holdout in keeping the method, which it has used in 40 of its 49 executions in the last 160 years. Utah lawmakers made lethal injection the default method of execution in 2004, but inmates condemned before then can still choose the firing squad. That's what Gardner did in April, politely telling a judge, "I would like the firing squad, please." Neither he nor his attorneys have said why.
Critics decry the firing squad as a barbaric method that should have been relegated to the dustbin of the frontier era. "The firing squad is archaic, it's violent, and it simply expands on the violence that we already experience from guns as a society," Bishop John C. Wester, of the Roman Catholic Diocese of Salt Lake City, said during an April protest. The diocese is part of a new coalition pushing for alternatives to capital punishment in Utah.
Even some death-penalty supporters would prefer not to see the method used. State Rep. Sheryl Allen, a Republican from Bountiful who pushed for the switch to lethal injection, said she's not happy to see the reprise of the firing squad because it shifts attention away from the victim to the convicted killer.
June 8, 2010
Might Elena Kagan be a fan of shaming sanctions?A helpful reader alerted me to this report on an interesting little sentencing tidbit to be found in the recently released papers from Elena Kagan time in the Clinton Administration:
The William J. Clinton Presidential Library provided 46,500 pages of records from Kagan's four years of working in the Clinton White House in the 1990s. The papers, released today by the National Archives in Washington, are the first installment in a 160,000-page file....
[In these papers] Kagan also expressed interest in the idea of "shaming" criminals after a 1997 Wall Street Journal editorial lauded efforts such as making convicted drunk drivers affix bright "DUI" stickers to their bumpers and requiring nonviolent sex offenders to post warning signs on their property. "Do you think there's a way of sensibly hooking into this trend?" Kagan wrote to two colleagues.
"Protecting Crime Victims in Federal Appellate Courts"The title of this post is the first part of the title of former-judge and now Professor Paul Cassell's latest article advocating for the federal Crime Victims' Rights Act to be given a broad reading. This article is available here via SSRN and its full title is "Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims' Rights Act's Mandamus Provisions." Here is the start of the piece's abstract:
In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . . The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.”
The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.
Federal prosecutors asking "only" for 40 years for now-cooperating lawyer Ponzi schemerAs detailed in this prior post, this week's scheduled federal sentencing of Scott Rothstein, Florida's answer to Bernie Madoff, is bringing up a host of interesting legal issues and sentencing recommendations. This new piece available at law.com, which is headlined "Prosecutors Recommend 40 Years for Rothstein; Defense Asks for 30," highlights that federal prosecutors are in part responsible for making this high-profile white-collar sentencing so interesting. Here is how the piece starts:
Federal prosecutors say Ponzi scheme purveyor Scott Rothstein deserves a break -- just not as much as his defense attorney wants.
The lawyer who turned his fast-growing Fort Lauderdale, Fla., firm into a vehicle for Florida's largest Ponzi scheme -- defrauding investors of $1.2 billion -- should spend 40 years in prison, federal prosecutors told U.S. District Judge James I. Cohn in a sentencing memorandum filed Monday.
Rothstein is scheduled to be sentenced Wednesday. Defense attorney, Marc Nurik has asked Cohn to sentence the one-time political power broker to 30 years. The federal probation office has proposed life, driven largely by the outsized dollar loss to victims. The statutory maximum is 100 years.
"While the defendant's criminal activity in this case can only be described as reprehensible, it is beyond dispute that his post-offense conduct has been extraordinary," Assistant U.S. Attorney Lawrence D. LaVecchio wrote, referring to Rothstein's cooperation explaining his fraud and working as an informant in a case related to organized crime.
In Missouri, it is the prosecutors complaining about sentencing guidelinesThis local story from Missouri, which is headlined "Prosecutors seek changes to sentencing guidelines," reports on complaints about the state sentencing guidelines that are tellingly similar to complaints we hear about federal sentencing guidelines. But, as highlighted in this excerpt, the source of the usual complaint is tellingly distinct:
Some Missouri prosecutors remain unhappy with the way convicted criminals are sentenced, especially since the state began using sentencing guidelines in November 2005 that are based on actual sentencing practices of Missouri's trial judges.
"Prosecutors continue to be unhappy with the one-size-fits-all recommendations in the Missouri Sentencing Advisory Commission's recommendations," said Eric Zahnd, Platte County prosecutor and a member of the Missouri Association of Prosecuting Attorneys' legislative committee. "There is, simply, no way to include enough variables in a recommended sentencing structure to provide a meaningful recommendation for any individual crime."
The association on Monday issued a news release thanking Supreme Court Judge Michael A. Wolff, who chairs the Missouri Sentencing Advisory Commission (MOSAC), for appointing a subcommittee to review the recommended sentences. During MOSAC's May 25th meeting, Wolff said prosecutors, public defenders and judges should be represented on that subcommittee.
Zahnd said prosecutors hope it will consider a "motion by prosecutors to abolish the recommended sentences, at least for violent and sexual offenses." He said prosecutors particularly are unhappy with the "Sentencing Advisory Report," or SAR, that often is ordered by a judge before imposing a final sentence in a criminal case. The prosecutors association said those "recommended sentences ... are unreasonably lenient, particularly for violent and sex crimes."
As serious sentencing fans know, in the federal system it is the defense attorneys who often lament "one-size-fits-all" sentencing rules and who often claim that unique individual sentencing factors make any guideline system inherently problematic. It is telling and somewhat amusing to now hear these classic complaints about sentencing guidelines coming from prosecutors in Missouri.
Because I seriously doubt that all the state prosecutors in Missouri are former federal defenders, this story is really just an example of how sentencing advocates will often "shoot the messenger" of sentencing guidelines rather than just focus on their fundamental concern with the substance of sentencing rules they consider either too harsh (in the federal system) or too lenient (in Missouri's system). Just as I am glad that the federal defense bar has failed to eliminate all guidelines in the federal system, I hope the Missouri prosecutors fail to bring down that their state's seemingly successful (and fully advisory) guideline system.
June 7, 2010
SCOTUS certification in Juvenile Male: a passive virture that only a Bickel fan could love?
The SCOTUS ruling today concerning the calculation of good-time credits in Bareber v. Thomas (basics here, comments here) is clearly the biggest sentencing story of the day. But I cannot help but be really intrigued by the Supreme Court's per curiam decision in in US v. Juvenile Male to deal with a complicated sex offender issue by certifying a question to the Montana Supreme Court (basics here).
Helpfully, Lyle Denniston has this post with a helpful explanation of the basic factual background of Juvenile Male and the Court's certification maneuver. Disappointingly, Lyle's post does not indicate when was the last time SCOTUS decided to deal with a cert petition by certifying a question to a state Supreme Court, nor does it speculate just why the Justices concluded why certification rather than a simple cert denied was the approach adopted here.
When I was clerking on the Second Circuit years ago, I became enamored with the authority of federal circuit courts to certify questions to state courts. Because I am generally a fan of federalism, the legal process jurisprudential school, and Bickelian second-look doctrines, the practice through which a federal court could dodge and/or clarify a tough state law issue by certifying questions to the highest court of a state seemed to me almost too cool to be true. Consequently, I could not help but be a bit giddy this morningn upon hearing that SCOTUS had dusted off this (arcane?) procedure to deal with the tough SORNA issues raised in Juvenile Male.
But, for a host of complicated reasons and especially in criminal justice settings, there do not seem to be too many modern fans of federalism, the legal process jurisprudential school, and Bickelian second-look doctrines. Thus, I cannot help but wonder if others are not as impressed with the SCOTUS certification move today as I am. More importantly, I wonder if the certification in Juvenile Male will prove to be a one-trick-pony or if we can and should expect to see some other examples of SCOTUS passive virture for us Bickel fans in forthcoming work by the Court.
Whatever else one thinks of this certification move, I must assert yet again that, at least in the arena of criminal justice adjudication, the early Roberts Court is already a heck of a lot more interesting and unpredictable than was the late Rehnquist Court.
"Bernie Madoff, Free at Last"The title of this post is the headline of this long new article in New York magazine about life in prison is like for everyone's favorite Ponzi-schemer scoundral. (Hat tip: The WSJ Blog.) This piece looks very buzz-worthy, as its start highlights:
Last August, shortly after his arrival at the federal correctional complex in Butner, North Carolina, Bernard L. Madoff was waiting on the evening pill line for his blood-pressure medication when he heard another inmate call his name. Madoff, then 71, author of the most devastating Ponzi scheme in history, was dressed like every other prisoner, in one of his three pairs of standard-issue khakis, his name and inmate number glued over the shirt pocket. Rec time, the best part of a prisoner’s day, was drawing to a close, and Madoff, who liked to walk the gravel track, sometimes with Carmine Persico, the former mob boss, or Jonathan Pollard, the spy, had hurried to the infirmary, passing the solitary housing unit — the hole — ducking through the gym and the twelve-foot-high fence and turning in the direction of Maryland, the unit where child molesters are confined after they’ve served their sentences. As usual, the med line was long and moved slowly. There were a hundred prisoners, some standing outside in the heat, waiting for one nurse.
Madoff was accustomed to hearing other inmates call his name. From July 14, the day he arrived, he’d been an object of fascination. Prisoners had assiduously followed his criminal career on the prison TVs. “Hey, Bernie,” an inmate would yell to him admiringly while he was at his job sweeping up the cafeteria, “I seen you on TV.” In return, Madoff nodded and waved, smiling that sphinxlike half-smile. “What did he say?” Madoff sometimes asked.
But that evening an inmate badgered Madoff about the victims of his $65 billion scheme, and kept at it. According to K. C. White, a bank robber and prison artist who escorted a sick friend that evening, Madoff stopped smiling and got angry. “Fuck my victims,” he said, loud enough for other inmates to hear. “I carried them for twenty years, and now I’m doing 150 years.”
Connecticut governor vetoes bill which would have created a state sentencing commissionThis local storyfrom Connecticut, which is headlined "Rell vetoes bill to create sentencing commission," reports on an interested sentencing development from the Nutmeg State. Here are the details:
Gov. M. Jodi Rell vetoed a bill today that would have created a new commission within the Office of Policy and Management to review state sentencing policies. The governor argued the legislature's Judiciary Committee already performs this function, and that the bill would have required an extra $130,000 in spending to provide salaries and benefits for commission staff.
"While I appreciate the need for review of our sentencing statutes and practices, given our state's ongoing economic challenges, this is simply the wrong time to create yet another state entity," Rell wrote in her veto message. "I have spent much of the last year examining our state budget to find ways to save money so that we would not have to increase the burden borne by our already struggling taxpayers. Some of the cuts we have made were painful. None were easy."
The bill passed overwhelmingly during the regular 2010 legislative session, which ended May 5, clearing the House unanimously and the Senate by a 34-1 margin. It would have created a 23-member Connecticut Sentencing Commission to review the existing criminal sentencing structure and any proposed changes to it. The panel would be funded, according to the bill, "within existing budgetary resources."
But the governor noted that the group would have to maintain a database and conduct trend analyses to identify areas of disparity, which would create new expenses. "I believe that the Judiciary Committee is the appropriate body to carry out these function, as they have done in the past," Rell added.
Sen. Andrew J, McDonald, D-Stamford, co-chairman of the Judiciary Committee, disagreed strongly though, arguing his panel has neither the staff nor the othe resources needed to conduct this research.
McDonald added the legislation not only enjoyed broad, bipartisan support in the legislature but had "universal backing" from the chief state's attorney's office, criminal defense lawyers and criminal justice advocates. "This legislation held the prospect of creating a more coherent and sustainable system for implementing fair and proportional sentences," he added. "We held a public hearing and nobody testified against it. And up until this veto, we've had no input from the governor's office."
The legislature is tentatively scheduled to meet in special session on June 21, and could attempt to override the governor's veto later this month. That would require a two-thirds' vote in both chambers. McDonald said he believes a veto override attempt would be appropriate, but he hasn't discussed that option yet with legislative leadership.
I tend to assume that a well-functioning state sentencing commission generally can and will produce criminal justice savings that help pay for its start-up costs. And this is the first time I have heard of a policy-maker using cost concerns to justify doing without a sentencing commission.
Consequently, I suspect there is more to this veto story than just an extra $130,000 in spending. Indeed, I feel pretty confident that a concern for dollars and cents is not what is driving Gov. Rell's veto given this news piece from last week, which reports that "Connecticut Comptroller Nancy Wyman says unexpectedly good job and tax revenue growth have swelled the 2010 state budget surplus to nearly $167 million." Seems to me that spending less than 0.1% of an unexpected state budget surplus is not too much to spend on a sentencing structure that could produce sentences that were more fair and proportional. But I am not the Governor of Connecticut, so I do not get to make that call.
New articles of note from The National Law Journal
Thanks to law.com, we can all freely access these two notable new pieces from the National Law Journal:
- "1st Circuit Expands Trial Courts' Discretion Over Resentencing"
Ninth Circuit allows for Bivens suit against operator of private federal prisonAddressing an issue that has the smell of a future cert grant, a Ninth Circuit panel today in Pollard v. Geo Group, Inc., No. 07-16112 (9th Cir. June 7, 2010) (available here) allows a Bivens action to go forward against the operators of a private prison. Here is how the majority opinion starts:
Plaintiff-Appellant Richard Lee Pollard, a federal inmate, appeals the district court’s order dismissing his Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons. This appeal presents the question of whether the implied damages action first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), allows a federal prisoner to recover for violations of his constitutional rights by employees of private corporations operating federal prisons. We conclude that it does.
A partial dissent, which flags why this ruling may be cert worthy, starts this way:
I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against such employees where adequate state law remedies exist. Until now, the federal circuits that have addressed the issue have held correctly that a prisoner may not maintain such an action. See Alba v. Montford, 517 F.3d 1249 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008); Holly v. Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168 (2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and aff’d by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam), cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063 (2006). The evolution of the U.S. Supreme Court’s Bivens jurisprudence confirms that this Court should follow their lead.
Fascinating sentencing dogs that did not end up barking in Barber
The fact that many folks went to law school in order to avoid math may itself ensure that the Supreme Court's decision today in Barber v. Thomas concerning the calculation of prisoner good-time credits (basics here) does not get all the attention it merits. More fundamentally, because the Barber ruling affirms the good-time calculation status quo, this Term's biggest sentencing sleeper case will probably go down in history as just another jurisprudential dog that could have, but in the end did not, bark in the face of modern mass incarceration.
But before sentencing fans move on, I recommend everyone — not just sentencign fans, but everyone — find the time to read and reflect on the opinions and the votes in Barber. Put simply, there is a lot of "there there" in both opinionsi n Barber, and in this post I can only just start scratching the surface of what should be noticed in the Court's work with this initial post.
Starting with the opinion of the Court authored by Justice Breyer, it is intriguing and notable how both the legislative purpose and legislative history of the Sentencing Reform Act is deftly operationalized to support the Court's anti-defendant interpretation of the good-time credit statute. Though I am not a statutory interpretation guru, I sense Justice Breyer worked extra hard to craft language that enabled Justice Scalia and others to be comfortable signing on to his opinion's non-textual elements. And, for truly hard-core statutory interpretation junkies, there are also some really interesting rule of lenity and Chevon deference moves in the Barber majority worth noticing as well.
Turning to the voting patterns, I suspect that long-time blog readers will not be too surprised to see a pro-government ruling coming from the pen of Justice Breyer. What is a bit more surprising, and certainly noteworthy, is that this ruling in Barber lost the vote of Justice Kennedy even though it retained the vote of Justice Sotomayor. I cannot recall another split opinion this term in which Justice Sotomayor went against the defendant while Justice Kennedy when against the government.
I stress the voting patter in Barber in part because I still recall all the debate over "empathy" in last year's confirmation battles concern then-Judge Sotomayor. As highlighted by this first paragraph from the dissent in Barber, it would seem that it is Justice Kennedy who really knows how to turn on judicial emphaty:
The Court has interpreted a federal sentencing statutein a manner that disadvantages almost 200,000 federal prisoners. See Pet. for Cert. 11, and n. 2. It adopts thisreading despite the existence of an alternative interpreta-tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to beread as the Court reads it. For the Court’s interpretation — an interpretation that in my submission is quite incorrect — imposes tens of thousands of years of additional prison time on federal prisoners according to a mathematical formula they will be unable to understand. And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See id., at 11. The interpretation the Court adopts, moreover, will bedevastating to the prisoners who have behaved the bestand will undermine the purpose of the statute. These considerations, and those stated below, require this respectful dissent.
Whatever else one makes of the legal debate in Barber, I am eager to give Justice Kennedy props for writing an opening paragraph that manages to pull on both heart-strings and purse-stings at the same time.
Interesting state certification "dodge" to deal with juve SORNA case from MontanaI am intrigued (and I think pleased) that the Supreme Court this morning in US v. Juvenile Male decided to deal with a complicated issue involving retroactive application of a federal sex offender notification provision for adjudicated juvenile delinquents by certifying a question to the Montana Supreme Court. The per curiam order in this case has the SCOTUS Justices asks this question of the Montana Justices:
Is respondent’s duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register asa sex offender, see Mont. Code Ann. §§46–23–502(6)(b), 41–5–1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138–140, 118 P. 3d 179, 181–182 (2005); see also §46–23–502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federaljuvenile-supervision conditions, see §46–23–502(10) (2009); 2007 Mont. Laws ch. 483, §31, p. 2185?
I am uncertain whether this "passive virtues" approach to dealing with the Solicitor General's cert request following Ninth Circuit's ruling in Juvenile Male is a clever or curious dodge of a complicated sex offender registration issue. But I am certain that this approach shows the SCOTUS Justices' continued concern with at least some aspects of the scope and operation of federal SORNA provisions.
SCOTUS upholds BOP's method for calculating good time credits in Barber v. ThomasSCOTUS watchers will likely be disappointed that the Justices did not hand down any of its big pending opinion this morning. But federal prisoners should be even more disappointed that the one criminal justice opinion in an argued case that was handed down this morning, Barber v. Thomas, has turned out to be a 6-3 loss for defendants. Barber could have been the most practically consequential sentencing case of the Term if it had come out the other way, but now it is perhaps most interesting for its (unprecedented) voting blocks. Here is how SCOTUSblog reports on the Barber ruling:
The third and last opinion is in 09-5201, Barber v. Thomas... The Court affirms the lower court, with Justice Breyer writing for the Court...
The vote is 6-3, with Kennedy dissenting joined by Stevens and Ginsburg...
The Court upholds the federal Bureau of Prison's method for calculating inmates' good-time credits.
The full opinion in Barber is available here, and I will have commentary on the ruling later in the day.
Charlie Sheen plea deal includes creative (and dramatic?) sentencing provisionsThis new CNN report, which is headlined "Charlie Sheen's sentence could include theater internship," details an interesting aspect of a high-profile celebrity sentencing taking place in Aspen today. Here are the details:
Charlie Sheen will stand before a judge Monday afternoon to plead guilty to charges stemming from a Christmas morning argument with his wife in Aspen, Colorado, a prosecutor said.
If the judge accepts the plea agreement, the television star would spend the next month as a theater intern by day and a jail inmate at night. Pitkin County, Colorado, District Attorney Arnold Mordkin would not confirm reports that Sheen would serve 30 days in jail, but the sheriff has already scheduled a news conference to answer questions about his jail.
The proposal includes a month of community service for Sheen, 44, working with Theater Aspen, according to Paige Price, the theater's artistic director. "We've often been in a position of helping people fulfill their community service, but he would be our highest profile intern," Price said.
Sheen's duties with the community theater haven't been outlined, but it would involve "some utilization of his skills as an actor," Price said. Sheen, who began acting professionally in 1974, may teach master classes for professional actors working during Theater Aspen's summer productions, Price said.
I sure hope I might get a chance to do community service as a lawyer and law professor if I ever get in trouble like Charlie Sheen.
"[M]ost law reviews are simply a waste of trees"The title of this post (which is cross-posted at LSI) comes from the last phrase of this amusing and effective commentary by Professor Gerald Uelmen in the June 2010 issue of the California Lawyer. (Hat tip: C&C.) The piece is titled "The Wit, Wisdom, and Worthlessness of Law Reviews," and here are a few snippets:
During California's legal "golden era" of the Gibson and Traynor Courts in the 1950s and '60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court's 1970 opinions, a "sharp increase" over previous years (Merryman, "Toward a Theory of Citations," 50 S. CAL. L. REV. 381 (1977)).
I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite — or perhaps because of — the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley's alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.
As Adam Liptak of the New York Times observed a few years ago, "Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them."...
Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril — particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon. After all, big law firms and elitist judges continue to demand "law review experience" as a prerequisite for hiring. The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students. But in terms of contributing to the profession, most law reviews are simply a waste of trees.
To put a little sentencing spin on this effective attack on modern law reviews, I wonder how many of the "20 ABA-accredited law schools in California [that] now publish a total of 82 law reviews" have produced articles discussing the dysfunctionality of California's state sentencing system or the profound legal issues that surround its long-lasting prison over-crowding problems. I know of a few strong "local" pieces on California's three strikes law and other local topics, but not as many as are justified or needed for the legislators, courts and practitioners struggling daily with these issues.
As readers of this blog know, there are an array of interesting and important (and theoretically sophisticated and challenging) issues surrounding California's sentencing law and policy that merit extended and repeated coverage in law reviews. And I am proud to note that one of the law reviews that I edit, the Federal Sentencing Reporter, has this new issue on "California's Corrections Crisis." I am thus glad that Professor Uelmen says only that "most" not "all" law reviews are a waste of trees. (And, of course, no trees were killed or even hurt in the production of this blog post.)
Will sixth time be the charm in capital trial(s) of Curtis Flowers?CNN has this interesting report on what appears to be a record-setting capital trial scheduled to start this week in Mississippi. Here is how the piece gets started:
Curtis Flowers has stood before five juries in the past 13 years on capital murder charges, accused of killing four people in a Mississippi furniture store. This week, prosecutors are hoping his sixth trial will be the last.
Flowers, 40, is believed to be the only person in recent U.S. history to be tried six times on the same capital murder charges.
Bertha Tardy, the owner of Tardy's Furniture in downtown Winona, and three employees were shot execution-style in the head the morning of July 16, 1996, inside the store, court records say.
The shootings rattled the sleepy central Mississippi town, with a population of about 5,500 that has declined in the 14 years since then.... After months of interviews and a $30,000 reward for information, Flowers was arrested in January 1997 on four counts of capital murder. He has been in custody ever since.
Flowers has been convicted three times and sentenced to death twice, but the Mississippi Supreme Court reversed those verdicts and ordered a new trial each time. His two most recent trials ended in hung juries, leading his supporters to question why the Montgomery County District Attorney's Office continues to seek a conviction.
The prosecution's case is based largely on circumstantial evidence. There is no DNA, the alleged murder weapon has not been found and eyewitnesses who say they saw Flowers the day of the shooting have provided conflicting accounts. Still, Montgomery County District Attorney Doug Evans says it's a straightforward case of a disgruntled worker taking out his anger against his former employer.
Others, who believe Flowers is innocent, say the case has turned into a crusade and suggest that race has played a major role in the prosecution and convictions of Flowers. "The fact they're trying this case for the sixth time suggests to me there's some racial motivation here, because there's no way in the world I can see a white guy accused of doing the same thing being tried six times to procure a conviction," said Jackson City Councilman Chokwe Lumumba, who represented Flowers in his second trial in 1999.
Flowers' supporters say it is a classic example of a case built upon weak circumstantial evidence and shaky eyewitness testimony intended to blame an easy target: a poor black man. "What does it say about the prosecution that they have chosen to ignore two jury verdicts?" said Alan Bean, executive director of Friends of Justice, a nonprofit organization that monitors due process violations in the criminal justice system.
"I really think the only way to save Winona from this nightmare is to force the Montgomery County district attorney to step aside and appoint the attorney general's office. If you did that, I am convinced you wouldn't see the prosecution of Curtis Flowers, because the evidence just isn't there."
To Evans, though, Flowers' prosecution is about seeking justice for the victims and bringing closure to the community. "Any time that we feel there is evidence to prove a case, we're going to pursue it," said Evans, who tried the five previous cases and will lead the prosecution this time.
Another notable Ponzi schemer up for federal sentencing this weekAs detailed in this local article from Florida, which is headlined "Rothstein’s abuse of legal system looms large in sentencing," another big federal sentencing of another big Ponzi schemer is on tap for this week. Here are the basics:
He ran the largest fraud in Florida history, laundered money and lied to clients, colleagues and investors. But, when it comes to sentencing Scott Rothstein for his crimes, legal experts agree that his biggest problem is his gross abuse of the legal system. The 47-year-old Ponzi schemer is facing up to 100 years in prison.
There are mitigating factors: Rothstein’s help in bringing down alleged mobsters will be noted, experts say. But, any benefit provided by his cooperation may be outweighed by the inescapable fact that he spent years undermining the state and federal justice system.
“The same judicial system that he desecrated will now pass judgment on him,” said Charles Intriago, a former prosecutor who founded the Association of Certified Anti-Money Laundering Specialists. “If I was a federal prosecutor, I’d be saying those things on behalf of the United States of America.”
The pinnacle of Rothstein’s abuse of the legal system came when he forged the signatures of two federal judges while trying to fleece one of his best-known clients, Ed Morse of the Ed Morse Automotive Group, which has dealerships throughout Florida, including Broward and Palm Beach counties, and in Mobile County, Ala.
Rothstein has already pleaded guilty and will appear before U.S. District Judge James Cohn on June 9 to learn his fate. He was charged with five criminal counts, including wire fraud, mail fraud, racketeering and money laundering. Speculating about his sentence has become a popular guessing game in legal and business circles....
Still, federal sentencing guidelines for financial fraud are driven by the amount of loss. The $1.2 billion take for Rothstein’s Ponzi scheme will set the bar high....
Rothstein pleaded guilty to using his law firm as a front for his Ponzi scheme and to selling interests in phony lawsuit settlements. He has admitted to fabricating plaintiff and defendant names for the bogus settlements, and also admitted to funneling illegal money through his firm’s attorneys for political donations.
In this post over at his Souther District of Florida Blog, David Oscar Markus has lots of coverage of the up-coming Rothstein sentencing (including this link to Rothstein's sentencing memo). Attorney Markus adds these comments:
Scott Rothstein asks Judge Cohn for 30 years, and I'm a bit surprised. I thought he'd ask for less. The PSI calls for life (a level 52), but the statutory maximum is 100 years. Rothstein will be 48 the day after his sentencing this week.
June 6, 2010
"California has high hopes of reinstating death penalty"The title of this post is the headline of this front-page story from the Sacramento Bee. Here is how the piece gets started (and click here for a larger version of the graphic that accompanies the piece):
When Caryl Chessman died in California's gas chamber 50 years ago – probably the state's most notorious execution – 18 inmates were left on death row. Today, there are 702. The last execution at San Quentin State Prison was that of Clarence Ray Allen on Jan. 17, 2006, the 13th in California since 1978.
Since that day, at least 205 convicts have been executed in other states, 24 death row inmates at San Quentin have died from natural causes or suicide, and 83 people have been sentenced to death in California courts.
But no one has been executed in California since Allen. That's largely because of two court challenges over the state's lethal injection methods and its attempt to short-circuit the procedure for revising those methods.
Now corrections officials hope they are on the verge of winning approval of their rewritten lethal injection rules, which will give the rules the force of law. That approval, due by Friday, will reignite a pending legal battle over whether California can rejoin 34 other states that have the death penalty, and whether it should.
Supporters and opponents say the likelihood of executions resuming anytime soon in California is slight. "I've just kind of lost faith in the system, that it's ever going to work," said Barbara Christian, a 72-year-old Wilton woman whose daughter, Terri Lynn Winchell, was savagely raped and murdered 29 years ago when she was 17. "I'd like to see justice for my daughter."
I think Ms. Christian's pessimism is justified, and I will be surprised if California gets back into the business of execution anytime soon. As this Bee article does on to spotlight, the new California protocol will surely be challenged vigorously in both state and federal courts, and there is little reason to for death penalty abolitionists to fear, or for death penalty proponents to hope, that the judges on the Ninth Circuit in particular will be in any big rush to make sure lethal injection litigation gets resolved quickly.
The extraordinary slow pace in which California has tried to improve its lethal injection protocol stands in remarkable contrast to Ohio's ability late last year to completely revise its execution protocol and resume executions within a matter of months. The Ohio lethal injection story highlights that where this is a true will, there is often a real way to improve the administration of capital punishment. But I do not think this will really exists in California, even though the state clearly enjoys putting more people on death row than any other state in country.
Some related posts:
- Is California finally getting closer to bringing its death chamber back on line?
- California legislator urging state to adopt one-drug execution protocol being used by Ohio
- California Democrats making a push for repeal of state's death penalty
- Might Ohio keep pace with Texas in the number of executions in 2010?
- Ohio completes third successful one-drug lethal injection
- "Ohio inmate to get 1-drug, slower, execution"
- A few early questions following Ohio's successful one-drug lethal injection execution
- Washington state following Ohio's lead to adopt a one-drug lethal injection protocol