June 14, 2010
No clemency grant for Utah killer due to be executed by firing squad
As detailed in this local story from Utah, "Ronnie Lee Gardner's firing squad execution became much more likely when a state board on Monday refused to commute his death sentence." I do not think this outcome is much of a surprise, and I predict that Gardner's few remaining court appeals will also be rejected. Thus, it now seems likely that the first firing squad execution in the US in 15 years will go forward later this week.
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
- "Executioner: Death by firing squad is '100 percent justice'"
SCOTUS confirmation that the prior conviction excpetion to Apprendi is here to stay
Sentencing and clemency guru Margaret Colgate Love wrote me today to suggest that the biggest sentencing news coming from all today's SCOTUS action (basics here) is to be found in the immigraion case Carachuri-Rosendo v. Holder (available here). In Carachuri-Rosendo, the Justices ruled that "that second or subsequent simple possession offenses are not aggravated felonies [requiring deportation] under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction." And here is what Margaret Colgate Love had to say about why this is a notable ruling for sentencing fans:
Biggest news this morning on sentencing front is in Carachuri-Rosendo [because the] Court unanimously backs away from constitutionalizing recidivist sentencing. It reaffirms Almendarez-Torres, both on 5th and 6th A grounds and nobody says a word in defense of overruling it. Thomas concurred apparently just to let us know rather gracefully, by not mentioning A-T, that he has given up hope of Court overruling it. (It seems that all the hype in circuits about A-T being on life support was just that.)
The Court also said that notice of intention to charge priors under 851 was not constitutionally compelled. Stevens was all business, no prose more purple than "counterintuitive and unorthodox." Though 851 has no constitutional underpinning, it is a way to limit recidivist enhancements in drug cases. As to other types of enhancements, I thought his note 12 was very significant for ACCA and other gun recidivist enhancements, in requiring that prior must appear as part of the judgment or formal charging document (a fairly substantial expansion/clarification of Shepard).
Restitution, victims' rights, and a classic battle of law versus equity with a twist
The more I reflect on the Justices' work today in the Dolan restitution ruling (available here), the more I think the myriad legal issues surrounding restitution and victims' rights at sentencing will be confounding lower courts and SCOTUS for years to come. I say this largely because, as Dolan shows, issues of restitution and victim's rights in the operation of modern criminal justice systems often present lots of hard questions concerning how to balance law and equity in criminal justice case processing.
As noted here in my first post on Dolan, what makes the ruling so interesting is the composition of the 5-4 ruling: Justice Breyer managed to get Justices Alito, Ginsburg, Sotomayor and Thomas to agree on a pro-victim approach to judicial authority to impose restitution outside statutory time limits, while Chief Justice Roberts authors a sharp dissent accusing the majority of undermining "a system of rules" which garners the votes of Justices Kennedy, Scalia and Stevens. I think the vote break-down is so notable and unusual largely because the equitable approach to the applicable restitution law adopted by the majority in this case helps a victim at the expense of a defendant (in contrast to the usual criminal case in which the defendant is urging a court to do equity and the state is urging fidelity to "a system of rules").
I predict that lots of future debates over restitution and victims' rights at sentencing — on issues ranging from who qualifies as a victim to how causation principles should limit restitution awards — will boil down to the same sort of fundamental debate over law and equity that plays out in Dolan. In this notable first round, it appears that an equitable outcome for victims has carried the day. But I suspect that, in the many brewing future battles, defendants will have some success arguing that fidelity to the rule of law has to generally carry the day.
What exactly happens now with the litigation over California's prison problems?I am a bit perplexed by what the Supreme Court did this morning in response to the appeal of the California prisoner litigation coming from the Ninth Circuit. Here is the full text of what SCOTUS said in its orders this morning:
09-1233 SCHWARZENEGGER, GOV. OF CA V. PLATA, MARCIANO, ET AL.: Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.
Here is how Lyle Denniston at SCOTUSblog explains this order:
The Supreme Court, having already shown it was interested in the controversy, on Monday finally agreed to rule on at least part of the state of California’s complaint about being forced by a federal court to release close to 40,000 inmates from its 33 state prisons, to relieve over-crowding and a serious health crisis. The Court will set the case for a hearing in the Term starting Oct. 4, but the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order. The Justices said they will consider that jurisdictional question when the case is called for a merits hearing on the case of Schwarzenegger, et al., v. Plata, et al. (09-1233). The case could produce a major ruling on federal judges’ power to order prison releases under the Prison Litigation Reform Act of 1996....
The Court’s order Monday in the California prison case grew out of prolonged litigation in federal court over threats to the health of both prisoners and prison staff members as a result of severe over-crowding in the state’s prisons. Two separate lawsuits by prison inmates ultimately were merged before a three-judge District Court, to consider whether a mandate to free prisoners would ultimately be necessary to meet the health threat. The state’s prisons were operating at close to twice their actual design capacity. The District Court in the end ordered California to reduce over-crowding from the peak of 196 percent of design capacity to 137.5 percent, and to do so in two years.
Earlier, the Supreme Court had declined to step into the controversy, but expressly noted that it had been assured that no prisoner release order would be ordered until the Supreme Court had had an opportunity to review it. The release order is now on hold pending final action by the Justices.
The question of jurisdiction that lingers in the case is whether the District Court satisfied the requirements specified under the 1996 federal act for any inmate release order. Under that act, a prisoner release order may be adopted only as a “last resort,” only if it has previously issued other, less-intrusive orders that had failed to remedy violations of inmates’ rights, and only if it found that state officials had had a reasonable time to comply with such prior orders. The state contends that the District Court did not have jurisdiction, because it did not give officials time enough to try to cure the over-crowding situation on their own.
Only if the Justices find that the District Court had jurisdiction would they move on to decide whether the specific order at issue was justified. The case is not likely to come up for a hearing until the winter.
So does this means there will be full SCOTUS briefing and a full "traditional" SCOTUS oral argument on both the jurisdiction issue and the merits issues over the next few months? Does this mean all efforts to reform California's prison over-crowding now can and should be put on hold while briefing and argument go forward? Does this mean these issues more likely or less likely to be a topic of political debate in California's many contested elections this Fall?
Put simply, I am confused and would be grateful for any reports from anyone in the know about what this seemingly cryptic SCOTUS order means both practically and politically.
- From the AP here, "Court to review Calif. plan to cut prison numbers"
- From Reuters here, "Top court to hear California prisoner release case"
AEDPA, equitable tolling, and SCOTUS "umpires" with empathyI may not get a chance until tonight to read closely the Supreme Court's opinions today in Holland v. Florida (available here). But I think it is worth an early comment that the Court's conclusion that the habeas corpus statute of limitations in AEDPA is subject to "equitable tolling" comes out as an 7-2 outcome AND that Chief Justice Roberts fully joins Justice Breyer's opinion for the Court. Moreover, this final paragraph of Justice Scalia's dissent in Holland prompts the title of this post:
The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears ajust result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19 (14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.
Were Justice Scalia to use terms that had become popular in the political debates over recent SCOTUS confirmation hearings, he might have ended this paragraph by complaining that the majority is failing to be a neutral umpire and is instead allowing its empathy for a capital defendant's plight color its call on balls and strikes. And, notably, Chief Justice Roberts happens to be one of the judicial umpires in Holland whom Justice Scalia claims is letting empathy for a criminal defendant get the better of him.
"Seriously ill sex offender may be electronically tagged"The title of this post is the headline of this notable story about a technocorrections sentence being considered in Ireland. Here are the details:
A Wicklow man who sexually assaulted a 10-year-old girl may become one of the first offenders to be electronically tagged as an alternative to prison.
The 62-year-old, who cannot be named to protect the identity of his victim, suffers from a serious medical condition and the Prison Service has told the court they may not be able to treat him in jail. He has been on bail since he was convicted last February while it was established if he could be imprisoned or not.
Today Judge Tony Hunt again adjourned sentencing at Dublin Circuit Criminal Court after hearing that the man was not in court. He had gone into hospital to have a procedure carried out last week but it had not gone well and he remained in hospital.
Judge Hunt said he would consider alternatives to prison on “humanitarian grounds” which may include curfews and electronic tagging. He said he would look at having the man tagged after noting there had been trials of the system.
“I regard this man as a very significant threat to the female half of the population, or at least he was before his illness,” the judge said. “If he’s not incarcerated, and he deserves to be for a lengthy period, there will be a lengthy curfew covering most of the day, save for medical appointments and some sort of exercise which he would be entitled to in prison.” He adjourned the case until the end of the month when he will finalise a sentence.
I am not sure if electronic tagging in Ireland involves simply GPS tracking with an electronic bracelet or if it involves a microchip implant. Whatever the particulars, this story reinforces my sense that technocorrection alternatives to incarcerations are likely to be a world-wide reality within a matters of years.
Lots of SCOTUS action for sentencing fans this morningIn addition to the Dolan ruling noted here, the Supreme Court handed down two more opinions this morning that should be of interest to sentencing fans. Here are the SCOTUSblog early accounts:
09-5327, Holland v. Florida, Breyer writes again for the Court, reversing and remanding on a 7-2 vote Alito concurs in part and in the judgment. Scalia dissents, joined in part by Thomas The Court permits equitable tolling of the habeas corpus filing deadline under the AEDPA
09-60, Carachuri-Rosendo v. Holder, Stevens writes for the Court, reversing. The result is unanimous, but Scalia and Thomas each file an opinion concurring in the judgment only. The Court rules that second or subsequent crimes of possession of drugs are not aggravated felonies under federal immigration law when the underlying state conviction is not based on the fact that there was a prior conviction.
The full opinion in Holland is available here, and the full opinion in Carachuri-Rosendo is available here. I will be reviewing these opinions to see if there are any big stories lurking in these potential sleeper cases.
In addition, the Supreme Court this morning granted cert in Collin v. Pinholster, which I believe is a capital habeas case coming from the Ninth Circuit. Indeed, I now see that this new AP article reports that the Ninth Circuit "threw out Pinholster's death sentence because his lawyer did not give a jury evidence of mental illness during the penalty phase of his murder trial. The San Francisco-based court said that evidence might have persuaded the jury to reject the death sentence."
UPDATE: This new SCOTUSblog post provides an effective summary of all the action from the Supreme Court today.
Interesting Justices' voting line-up in Dolan restitution caseThe Supreme Court has handed down its opinion this morning in the Dolan restitution case, and in doing so it has shown yet again that sentencing issues are so much more interesting than so many other SCOTUS matters because how the Justices will vote is so unpredictable. Here is the early SCOTUSblog report on Dolan:
We have the first opinion, 09-367, Dolan v. United States. Breyer writes for the Court, affirming the lower court. The vote is 5-4, with the Chief Justice dissenting joined by Stevens, Scalia, and Kennedy
The Court holds that a sentencing court that has missed the 90-day deadline may nevertheless order restitution, at least in some circumstances.
The Dolan opinion is available here, and I am excited to discover how Justice Breyer managed to get Justices Alito, Ginsburg, Sotomayor and Thomas all to agree on what he had to say.
Effective media coverage of the new proposed federal sentencing guidelinesThe Philadelphia Daily News has this effective new piece headlined "Defendants could benefit from new federal sentencing guidelines." Here are excerpts:
Current sentencing guidelines say that the age and medical condition of a defendant are "not ordinarily relevant" factors when deciding whether leniency is warranted at sentencing, but they soon could be.
After Nov. 1, these kinds of personal characteristics "may be relevant" provided they are "present to an unusual degree" under new guidelines recently adopted by the U.S. Sentencing Commission, if Congress doesn't disapprove them....
And the new rules also permit judges to send certain nonviolent drug offenders to drug- or alcohol-abuse treatment centers instead of prison.
All judges use the guidelines as the starting point in calculating sentences, and many typically sentence defendants within the guidelines - which often means prison time - unless prosecutors request leniency on behalf of cooperating witnesses. (In 2009, for example, 54 percent of defendants eligible for a nonprison sentence in the Eastern District of Pennsylvania were sent to prison anyway.)
Commission chairman William K. Sessions III said that nationally there was "a great need for alternatives to incarceration," based on feedback the commission received. If Congress approves them, the new guidelines are likely to mean that some white-collar defendants now sent to prison may receive nonprison sentences.
The new guidelines could double the number of offenders eligible for probation, said Jonathan Wroblewski, director of the Department of Justice's Office of Policy and Legislation, in a written submission to the commission prior to its adoption of the new guidelines. A Justice Department spokeswoman said the department had no further comment on the new guidelines.
Sessions said the proposed changes would help to lower recidivism, save taxpayers money and protect the public. For example, taxpayers now pay an average of $27,252 per year to house an inmate in federal prison as opposed to $3,808 to supervise a defendant sentenced to probation.
Wroblewski said that federal prosecutors were "extremely cautious" about revisions to the guidelines related to offender characteristics, adding that the changes could "exacerbate" unwarranted sentencing disparities and create a "new level of uncertainty and unpredictability" in sentencing.
Other observers suggested that some of the proposed new guidelines may make sentencing fairer. "It's good news because the commission seems to be looking more at the individual characteristics of the defendant," said Leigh M. Skipper, the chief federal defender in Philadelphia. "It's a shift in focus."
Related posts on the new proposed sentencing guidelines :
- New USSC amendments expanding prison alternatives and addressing certain offender characteristics
- US Sentencing Commission posts full text of its significant new guideline amendments
- Why the proposed new federal guideline amendments are symbolically important
- Can, should and will district judges start giving effect to proposed amended guidelines ASAP?
- Have the new (proposed) amended federal guidelines had any ripple effect yet?
June 13, 2010
"Who should control California's prison budget? U.S. Supreme Court may weigh in"
The title of this post is the headline of this new article in the Los Angeles Times. It gets started this way:
A legal battle over who gets to control California's massive spending on prisons — judges or corrections officials — may be headed to the U.S. Supreme Court, with overcrowding at the state's 33 prisons at the center of the debate.
Gov. Arnold Schwarzenegger and state officials have challenged an edict from three federal judges that the California Department of Corrections and Rehabilitation must cut the prison population by 40,000, or about a quarter of its 165,000 inmates. The judges' order, issued last August, cited overcrowding as the main cause of healthcare failures that amounted to cruel and unusual punishment and left inmates to die from treatable conditions at the rate of one per week.
The three-judge order brought to a head the tension over a decades-long judicial practice of intervening in prison management to correct what have been deemed unconstitutional deficiencies in state custody. Courts have empowered a phalanx of overseers and experts to mandate reforms on prisoners' healthcare, psychiatric treatment, parole rights, access to law libraries and other matters.
But as California's budget woes increasingly pit the jailers and judicial monitors in a struggle for scarce resources, the monitors have become a point of contention.
The U.S. Supreme Court is expected to decide as early as Monday whether to review the three-judge order to reduce overcrowding. Some observers of the legal tug of war over inmate treatment believe the conservative justices on the high court want to weigh in on what they may see as judicial activism. When the state appealed the reduction order, the justices suspended a two-year deadline for releasing inmates or building prisons to house them.
UPDATE on June 14: According to SCOTUSblog, the Supreme Court "