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October 2, 2010

Lots worth reading around the blogosphere...

at some of my favorite Criminal Law blog places:

October 2, 2010 | Permalink | Comments (2) | TrackBack

Noticing the many costs of California's capital craziness

California had quite a death penalty week, with lots of litigation and lots of stops and starts and stops again in its effort to finally execute Albert Brown three decades after he raped and murdered a teenage girl.  These two different follow-up articles highlight just some of the costs imposed by California's capital craziness:

From the California Progress Report, this piece headlined "California's $4 Million Rollercoaster Ride" starts and ends this way:

California’s death penalty has always been a bit of a head-scratcher, but the news over the last two weeks may have the record for furrowed brows and rolled eyes. The legal drama that has unfolded as the state tries to execute Albert Brown has shocked legal experts, but just confused everyone else....

Albert Brown could have been sentenced to die in prison 28 years ago and the people of California could have forgotten all about him. Instead, we’ve spent months in court and over $4 million to end up right back where we started, with Albert Brown in prison.

From the Los Angeles Times, this piece headlined "Execution delay has caused 'profound and unfathomable' distress to victim's family" starts this way:

This week's delay in the execution of Albert G. Brown Jr. has caused the family of the woman he raped and strangled "profound and unfathomable" distress.

In an e-mail Thursday to the Riverside Press-Enterprise, Karen Jordan Brown wrote that "the appeals process in California has proven to be nothing more than a never-ending war of attrition against justice and the rights of victims and their families."

Jordan Brown’s sister, Susan Jordan, 15, was abducted by Albert Brown, who is not related, in 1980 while she walked to Arlington High School in Riverside. Albert Brown then raped and strangled the girl. He has been on death row since his conviction in 1982 and was scheduled to be put to death Thursday in what would have been California’s first execution in five years.

The execution was put on hold Wednesday, after a week of legal wrangling between Albert Brown’s attorney and the state attorney general’s office over whether a lethal injection should be administered.

Some related posts:

October 2, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Effective review of the five new SCOTUS criminal justice cases

As noted in this prior post, this past week the US Supreme Court accepted five new criminal cases for its upcoming Term.  This article in the Wisconsin Law Journal, headlined "High court accepts five criminal cases," reviews the group.  Here is the article's coverage of the two sentencing cases:

[T]he court will decide whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission amended the Sentencing Guidelines for crack cocaine, if the judge had already accepted a plea deal with the defendant, in Freeman v. United States, No. 09-10245.  The U.S. Supreme Court has agreed to answer this question, reviewing a decision from the 6th Circuit which held that case law precluded modification of a sentence imposed pursuant to a plea deal.

In that case, the defendant was charged with one count of crack possession, among other charges. He entered a plea agreement that included a sentence of 106 months.  After his agreement was accepted by the trial judge and his sentence was entered, the U.S. Sentencing Commission amended the Sentencing Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive.  The defendant then sought to reduce his sentence accordingly.

But a U.S. District Court refused to do so, and the 6th Circuit affirmed.  “[T]he district court did not indicate that failing to resentence [the defendant] resulted in a miscarriage of justice. … [The defendant's] original 106-month sentence remained inside the guidelines range for his crime, even after the amendment,” the court said.  His 106-month sentence fell at the bottom of the range before the amendment and at the top of the range after the amendment, it noted....

[In another] case, arising within the Seventh Circuit, the court will decide whether a conviction for resisting arrest counts as a violent felony under the Armed Career Criminal Act, in Sykes v. U.S., No. 09-11311.  The Seventh Circuit concluded it was, finding that eluding a police officer is “purposeful, violent and aggressive.”  U.S. v. Sykes, No. 08-3624 (7th Cir., Mar. 12, 2010).

October 2, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

October 1, 2010

Eleventh Circuit summarily (in dicta?) asserts that FSA sentencing changes cannot impact pre-change crimes

A few weeks ago in this post, I noted that the Sixth Circuit at the end of a seemingly minor opinion in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addressed a major issue for any and all defendants hoping to get the an immediate benefit from the new crack sentencing provisions passed by Congress in the Fair Sentencing Act.  And I complained that the Sixth Circuit's analysis struck me as a bit too cursory.  Today, the Eleventh Circuit at the end of a seemingly minor opinion in US v. Gomes, No. 10-11225 (11th Cir. Oct. 1, 2010) (available here), seems to resolve a complex issue being litigated in district courts to a single sentence (of inaccurate? dicta?).

Specifically, here is the final sentence of a relatively short opinion in Gomes: "Moreover, because the FSA took effect in August 2010, after appellant committed his crimes, 1 U.S.C. § 109 bars the Act from affecting his punishment."   As my post title and mention above suggests, I am not sure if this sentence is part of the holding or just dicta in Gomes, and i am also not sure if it is accurate.  Nevertheless, I suspect all the folks litigating similar issues in district courts around the country will find this sentence important even if though it is opaque.

Related post:

October 1, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

California female juve killer serving LWOP seeks (and deserves?) clemency from Governor Schwarzenegger

As detailed in this local story, which is headlined "Sara Kruzan, Serving Life Without Parole, Petitions CA Governor for Release," a notable new state clemency request has been made by a female killer in California (whom, to me, seems like a much more sympathetic character than the recently executed Teresa Lewis):

Sara Kruzan, who was just two months past her 16th birthday when she shot her 36-year-old pimp in 1994, has filed a clemency petition asking California Gov. Schwarzenegger to commute her life without parole sentence to time served. Now 32, Sara has spent half her life in prison, where she is a model prisoner and working toward a college degree.

The petition, filed yesterday by attorneys from the law firm of Perkins Coie and the National Center for Youth Law, seeks Sara's release. Sara, the petition says, had no criminal record at the time of her crime and, in fact, had been an honor student who once served as student body president.

The man Sara shot, a pimp named "G.G.", sexually assaulted her when she was just 11 years old. He then turned her onto the street as a prostitute at age 13. In addition to the abuse suffered at the hands of her eventual victim, Sara's life was plagued with abuse from others: she was molested as a young child by other men, gang raped by men from her neighborhood at age 13, and endured physical and emotional abuse by her own mother.

In her clemency petition, Sara acknowledges that her past does not excuse what she did, and expresses deep remorse for her crime. "I feel a deep sorrow for taking [his] life. It is daily I experience a level of grief and sadness in my heart and in my thoughts," Sara writes.

At the time of her sentencing, the California Youth Authority evaluated Sara and determined that she could be rehabilitated in the juvenile system, which would have resulted in her release at age 25. Instead, Sara was sentenced to serve the rest of her life in adult prison....

Sara's clemency petition is based on the absence of expert testimony at trial explaining how Sara's actions were affected by the years of abuse she endured, as well as on her youth at the time of the crime and her subsequent rehabilitation in prison. The decision of whether to grant Sara clemency rests solely with the Governor.

A pdf copy of the clemency forms filed in this case can be accessed at this link.

As the headline of this post hints, I have a hard time thinking of a potentially more sympathetic case calling for the exercise of clemency in the context of a juvenile killer.  Sara age and background (not to mention her gender), as well as the nature of her victim, certainly suggests that she is perhaps the most "sympathetic" murderer that one can imagine.  Nevertheless, she is subject to the sentence of life without parole the most extreme sentence that is constitutionally permitted.  (Indeed, Sara seems like an ideal case for advocates to try to extend the reach of Graham (especially the Chief's concurrence in Graham) to cover some homicide crimes by juveniles in some settings.)

Perhaps there are other facts or factors in this case that make it not quite as sympathetic and as deserving of clemency as it initially seems.  Still, this case has me thinking of a lot of related questions concerning juve girls serving LWOP for murder:

1.  Just how many of the roughly 2000 juve murderers serving LWOP sentences in the United States are female?

2.  What is the youngest age at which a female killed and ended up sentenced to LWOP?

3.  Will all (or even most or many) of the the many folks who got all worked up about Virginia's decision to execute Teresa Lewis for her multiple (and less sympathic) murders come to Sara's aid by urging California Governor Arnold Schwarzenegger to simply commute her sentence to life with parole?

October 1, 2010 in Clemency and Pardons, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Death penalty discussion in Massachusetts AG debate

As Governor of Massachusetts, Mitt Romney tried and failed (some spectacularly) to bring the death penalty back to the Bay State.  Now, as detailed in this news report headlined "AG candidates debate renewing death penalty: Mattapan killings a hot-button topic," a high-profile murder has prompted yet again discussion of capital punishment in the state:

Injecting the Mattapan killings into the state attorney general’s race, Republican candidate James McKenna said yesterday that in light of the gruesome deaths it was time to revisit the death penalty in Massachusetts.

"We don’t know the facts here yet," McKenna said during his first debate yesterday with Martha Coakley, the Democratic incumbent. "But this case may put the death penalty back on the table." Four people were killed in the shootings early Tuesday, including a 2-year old child.

Coakley, who is seeking reelection after her defeat to Scott Brown in January’s special US Senate election, said she opposes capital punishment; in the past, she had supported it in certain instances. "I am against it," she said simply.

Massachusetts lawmakers have repeatedly turned aside efforts to reinstate the death penalty, citing a lack of evidence that it deters crime and the possibility of executing an innocent convict.

Although he raised the death penalty issue, McKenna’s stance on capital punishment appeared to be a work in progress. Last week, he said he favored the death penalty for killers of police officers, but implied in yesterday’s debate that he also supports executing murderers of children.

Asked to clarify his position, spokeswoman Laura Rigas said in a statement, "Jim McKenna does support it in extreme cases, such as those who are convicted of murdering children and public safety officials and those who commit acts of terrorism."

October 1, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Looking back playfully before looking forward to the new SCOTUS term

I have not spent too much time on Supreme Court previews recently (partially because Ryder Cup previews are more timely and somewhat more interesting these days).  But, especially with the new Term about to start, I had extra fun reading this great "revue" of last SCOTUS Term from the pen of Jon Elwood, which is titled "What Were They Thinking -- The Supreme Court in Revue, October Term 2009." Here are a couple of amusing paragraphs from the revue focused on the Court's Eighth Amendment work last Term:

If you noticed that society refilled the tank without being asked the last time it borrowed the car, you’re not alone in marking the progress of a maturing society.  Justice Kennedy has been sufficiently impressed that he’s recently voted (and sometimes written opinions) to render unconstitutional previously lawful sentencing practices under the Eighth Amendment’s Cruel and Unusual Punishments Clause — think Atkins v. Virginia (2002) (holding it unconstitutional to execute mentally retarded offenders); Roper v. Simmons (2005) (holding it unconstitutional to execute defendants who murdered while under age 18), and to a lesser extent (because the Court had already so held regarding rape of an adult), Kennedy v. Louisiana (2008) (holding capital punishment cannot be imposed for rape of a child).  Kennedy reprised his role as a one-man evolving standard of decency in Graham v. Florida, which is one of those opinions that people seem to forget when they’re bemoaning the arch-conservative Roberts Court.  The Court held 6-3 that the Cruel and Unusual Punishments Clause does not permit imposing a sentence of life without parole on a juvenile offender convicted of a nonhomicide offense.  The Court noted that while 37 states permit such sentences, only 11 impose them as a practical matter, and they were mostly states without a first-rate daily paper or bookstore.  Thus, there was a national consensus against imposing sentences of life parole on such offenders.

The sort of numerical analysis that is reserved for Eighth Amendment cases, movie-studio accounting, and the federal budget alone would have been enough to cause TMJ-aggravating tooth-gnashing on the right, but Kennedy was not done yet.  In a selfless effort to promote renewable energy, Kennedy ended his opinion by noting that the Court’s conclusion was supported by the fact that the sentencing practice was “rejected the world over.”  The resulting geysers of steam emanating from conservatives’ ears promises to be a significant source of thermal energy for years to come.

October 1, 2010 in Graham and Sullivan Eighth Amendment cases, Who Sentences? | Permalink | Comments (2) | TrackBack

September 30, 2010

Significant IAC ruling from Tenth Circuit based on counsel’s failure to understand guidelines

A split panel of the Tenth Circuit today handed down an interesting and important Sixth Amendment ineffective assistance of counsel ruling today in US v. Washington, No. 08-3313 (10th Cir. Sept. 30, 2010) (available here).  Here is how the majority opinion starts:

Petitioner Patrick E. Washington requests reversal of the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence, claiming the district court erred in not holding his counsel’s performance constitutionally deficient.  We conclude that counsel’s failure to understand the basic mechanics of the sentencing guidelines and, in particular, his failure to advise Mr. Washington regarding the impact of relevant conduct on his potential sentence prior to meeting with the probation officer, amounted to constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668 (1984).  We also conclude that Mr. Washington was prejudiced as a result of the above failures because the facts he conceded at his presentence interview disqualified him from obtaining a two-level reduction pursuant to the 2007 Crack Cocaine Amendments, U.S.S.G. § 2D1.1(c), App. C, Amend. 706, 711 (2007) (Amendment 706). We therefore reverse.

The heart of the dissent by Judge Tacha is evident from this paragraph of her opinion:

In Gordon, we joined our sister circuit courts in holding that “the presentence interview is not a critical stage of the [criminal] proceeding within the meaning of the Sixth Amendment.” 4 F.3d at 1572.  We therefore denied the defendant’s claim for relief based on ineffective assistance of counsel. Id.  Although the majority recognizes that Gordon is still good law in this circuit, it attempts to limit Gordon’s holding to the precise moment of the presentence interview. See Maj. Op. at 11–12. I cannot agree with the majority’s position.  Besides standing contrary to our clear language in Gordon, the majority’s limited reading creates an arbitrary distinction under which a defendant has the constitutional right to the advice of and information from his attorney before the presentence interview but does not have the right to such advice and information once the interview has begun.  Gordon, of course, makes no such distinction.

If the feds decide to pursue an en banc appeal or a cert petition, I would not be surprised if a number of addition judges or Justices want to jump in on these important issues.

September 30, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

An effective (and telling) list of the "best blogs" discussing capital punishment

A criminal justice website has this effective and telling compilation of "The 50 Best Blogs Discussing Capital Punishment." I call the list effective because just about every blog I have ever tripped across in my capital punishment surfing gets linked (with a brief description). I call the list telling because only three of the linked blogs are listed as pro-death penalty, eight are listed as neutral (including this one), and 39 are anti-death penalty.

September 30, 2010 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

September 29, 2010

"Drugs and conservatives should go together"

The title of this post is the headline of this commentary in the Los Angeles Times by Jeffrey Miron, a senior fellow at the Cato Institute.  Here are excerpts:

For decades, the U.S. debate over drug legalization has pitted conservatives on one side against libertarians and some liberals on the other.  A few conservatives have publicly opposed the drug war (e.g., National Review founder William F. Buckley Jr.), but most conservatives either endorse it or sidestep the issue.

Yet vigorous opposition to the drug war should be a no-brainer for conservatives. Legalization would not only promote specific policy objectives that are near and dear to conservative hearts, it is also consistent with core principles that conservatives endorse in other contexts....

Prohibition is fiscally irresponsible.  Its key goal is reduced drug use, yet repeated studies find minimal impact on drug use.  My just-released Cato Institute study shows that prohibition entails government expenditure of more than $41 billion a year.  At the same time, the government misses out on about $47 billion in tax revenues that could be collected from legalized drugs.  The budgetary windfall from legalization would hardly solve the country's fiscal woes.  Nevertheless, losing $88 billion in a program that fails to attain its stated goal should be anathema to conservatives.

Drug prohibition is hard to reconcile with constitutionally limited government.  The Constitution gives the federal government a few expressly enumerated powers, with all others reserved to the states (or to the people) under the 10th Amendment.  None of the enumerated powers authorizes Congress to outlaw specific products, only to regulate interstate commerce.  Thus, laws regulating interstate trade in drugs might pass constitutional muster, but outright bans cannot.  Indeed, when the United States wanted to outlaw alcohol, it passed the 18th Amendment.  The country has never adopted such constitutional authorization for drug prohibition.

Drug prohibition is hopelessly inconsistent with allegiance to free markets, which should mean that businesses can sell whatever products they wish, even if the products could be dangerous.  Prohibition is similarly inconsistent with individual responsibility, which holds that individuals can consume what they want — even if such behavior seems unwise — so long as these actions do not harm others.

Yes, drugs can harm innocent third parties, but so can — and do — alcohol, cars and many other legal products. Consistency demands treating drugs like these other goods, which means keeping them legal while punishing irresponsible use, such as driving under the influence.

Legalization would take drug control out government's incompetent hands and place it with churches, medical professionals, coaches, friends and families. These are precisely the private institutions whose virtues conservatives extol in other areas.

By supporting the legalization of drugs, conservatives might even help themselves at the ballot box.  Many voters find the conservative combination of policies confusing at best, inconsistent and hypocritical at worst.  Because drug prohibition is utterly out of step with the rest of the conservative agenda, abandoning it is a natural way to win the hearts and minds of these voters.

Some related posts on pot policy and politics:

September 29, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Calif execution try collapses after court setbacks"

The title of this post is the headline of this new AP article providing the latest death penalty news from California.  Here are excerpts:

California's first execution attempt in nearly five years collapsed Wednesday amid two adverse court rulings in as many days and an impending shortage of drugs that made the lethal injection of a convicted rapist-murderer impossible.

State officials called off the execution of Albert Greenwood Brown after a state Supreme Court ruling made Friday the earliest possible day that Brown could be given a lethal injection. But by then, the state's entire supply of a drug used during the process would have expired.

It was unclear when the state might try again to execute Brown, since it won't receive a new supply of sodium thiopental until early next year at the soonest. Brown's attorney and death penalty foes had accused the attorney general's office of rushing to execute the inmate before the drug supply expired....

The state high court ruling came a day after U.S. District Jeremy Fogel blocked the execution that had been scheduled for Thursday night. Fogel said he wanted more than a few days to determine whether California's new lethal injection process passes constitutional muster by avoiding cruel and unusual punishment.

The attorney general appealed that decision Wednesday morning to the 9th U.S. Circuit Court of Appeals only to withdraw it in the afternoon. Senior Assistant Attorney General Ronald Matthias told the appeals court that "in light of the order of the Supreme Court of California ... no execution of Albert Greenwood Brown can occur on Sept. 30, 2010, as a matter of state law."

September 29, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (7) | TrackBack

New report from Pew on incarceration's collateral costs

As detailed in this press release, the folks at The Pew Chartiable Trusts have produced a notable new report titled "Collateral Costs: Incarceration’s Effect on Economic Mobility."  The full report is available at this link, and here are highlights from the press release:

Incarceration reduces former inmates’ earnings by 40 percent and limits their future economic mobility, according to a new Pew report, Collateral Costs: Incarceration’s Effect on Economic Mobility. This is a growing challenge now that 1 in every 28 children in America has a parent behind bars, up from 1 in 125 just 25 years ago....

“Pew’s past research shows a variety of factors influence economic mobility both within a person’s lifetime and across generations. This report finds that incarceration is a powerful determinant of mobility for both former inmates and their children,” said Scott Winship, research manager of the Economic Mobility Project of Pew’s Economic Policy Group.

Incarceration’s long-term economic repercussions are felt by increasing numbers of families and communities now that 2.3 million Americans are behind bars, equaling 1 in 100 adults. Up from 500,000 in 1980, this marks more than a 300 percent increase in the United States’ incarcerated population.

Collateral Costs details the concentration of incarceration among men, the young, the uneducated and African Americans. One in 87 working-aged white men is in prison or jail compared with 1 in 36 Hispanic men and 1 in 12 African American men. Today, more African American men aged 20 to 34 without a high school diploma or GED are behind bars (37 percent) than are employed (26 percent).

The report also shows more than 2.7 million minor children now have a parent behind bars, or 1 in every 28.  For African American children the number is 1 in 9, a rate that has more than quadrupled in the past 25 years.

According to the Washington State Institute for Public Policy, improving employment prospects can decrease the chances that ex-offenders will return to prison or jail.  In previous reports, Pew identified policies that research shows can reduce recidivism and minimize the intergenerational impact of incarceration by boosting the chances that ex-offenders will successfully rejoin the community and the labor market.

September 29, 2010 in Collateral consequences, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Seventh Circuit finds that sentencing speed kills procedural reasonableness

The Seventh Circuit has an interesting reasonableness ruling today in US v. Glosser, No. 08-4015 (7th Cir. Sept. 29, 2010) (available here), which gets started this way:

The government appeals from a 121-month sentence a defendant received for attempting to possess more than 500 grams of methamphetamine, arguing that the district court committed procedural error by announcing and promising that it would impose the mandatory minimum sentence during the change of plea hearing, before it knew the advisory guidelines range or had heard either party’s argument regarding the sentence. Although we recognize that the court’s references to the ten-year mandatory minimum stemmed from a desire to ensure the defendant understood the minimum time he faced (he had previously been incorrectly informed that he faced a statutory minimum of five years), we agree with the government that the premature announcement of sentence constitutes procedural error that requires we vacate the sentence and remand for further proceedings.

September 29, 2010 in Booker in the Circuits, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

"Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency"

The title of this post is the title of this notable new note by Joanna Huang in the latest issue of the Duke Law Journal.  Here is the abstract:

P>In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines.  During this period, many judges were forced to impose sentences they viewed as unjust.  Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory.  Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Bookerdoes not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is insufficient because it is inflexible, time consuming, and generally nonretroactive. Executive clemency appears more promising due to a flexible and broad nature that allows the president and state governors to pardon or commute sentences at will.  But executives have become unwilling to use their clemency power, making it an inadequate remedy.

This Note proposes a solution that overcomes the limitations of the current system: judicial recommendation of executive clemency.  This solution produces three benefits.  First, it provides judges with a discretionary tool to reduce disproportionate mandatory sentences. Second, it revitalizes the exercise of clemency by giving it additional legitimacy.  Finally, it refocuses clemency grants on the defendant and the facts of the case rather than on political influences.  This Note provides eight illustrative criteria for judicial recommendation of executive clemency that, together, combine the characteristics of three modern cases in which the sentencing judges recommended clemency. This Note seeks to explain how and why each criterion might be important, taking into consideration the goals of judicial discretion, executive clemency, and the criminal justice system overall.

September 29, 2010 in Booker and Fanfan Commentary, Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

"The Role of Social Media in Sentencing Advocacy"

The title of this post is the headline of this new article from the New York Law Journal. Here is how it begins:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

While there seems to be an unending supply of negative and inculpatory postings in social networking profiles, there is also the potential for uncovering a humanizing portrait for the defense to present at sentencing.

Day-in-the-life videos are a staple of tort practice to support damage claims and in criminal prosecutions to showcase a victim's life and character. The multimedia diaries and correspondence that comprise Facebook and MySpace profiles have similar potential for the defense. Since many of the accused entering the criminal justice system will be accompanied by social media, defense counsel might need to review their social space, along with medical and school records and other background information.

A preliminary audit of a client's online profile serves two purposes: (1) to identify evidence that might show up in a probation department pre-sentence report; and (2) to provide an instrument for marshalling positive information about the client. Still, social media is a two-headed coin and the first toss is usually tails.

September 29, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

A couple of notable crime rate headlines and stories

The newspapers today have headlines that provide a good news/bad news account of some of the latest crime data.  

First the good news, via USA Today: "Technology helps property crime fall to 20-year low."

Now the bad news, via the New York Daily News: "Murder rising at alarming rate, sending waves of fear throughout NYC's most dangerous neighborhoods"

September 29, 2010 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

September 28, 2010

"Drug expiration date pushes CA execution to brink"

The title of this post is the headline of this new AP article which seeks to detail the latest execution news from California.  Here are highlights: 

Five years ago, the planned execution of Michael Morales became so chaotic and confused that California prison officials canceled it two hours before he was to die.  Now, the state's first lethal injection attempt since then is running dangerously close to another execution night mess.

The problem with Morales was a failure to find medical professionals to assist with the execution.  This time, Albert Greenwood Brown is scheduled to die at 9 p.m. Thursday — just three hours before the Friday expiration date of the state's entire supply of sodium thiopental, a sedative used to knock out inmates before they are fatally injected with two other drugs.

The issue was spotlighted late Monday, when the 9th U.S. Circuit Court of Appeals ordered U.S. District Court Judge Jeremy Fogel to reconsider his decision refusing to block the execution.  "After a four-year moratorium on executions in California, multiple proceedings in federal court, a state administrative law proceeding, and state court appeals, it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug," the appeals court said....

In an apparent rush to execute Brown, the attorney general's office sought a pre-emptive order Monday from the state Supreme Court that a state appeals court ruling clearing the way for the execution would become final at 5 p.m. Thursday.  Deputy Attorney General Michael Quinn acknowledged he was seeking extraordinary relief in asking the high court to take action. But he said the impending expiration of the sodium thiopental supply left him with no alternatives if Brown is to be executed on schedule....

Even if Brown is put to death, it's unlikely any more executions will be set until next year, when officials hope to receive a new batch of the sedative. Hospira, the company that makes the drug, said it has encountered production problems and can't deliver a fresh supply until early next year....

Judge Fogel, attorneys for Brown and death penalty watchers were caught by surprise when Riverside County prosecutors — assisted by lawyers from the attorney general's office — obtained an execution date during an Aug. 30 hearing.

Riverside County prosecutors had pushed the judge for a Sept. 29 execution date with no mention of the drug expiration issue. Riverside County District Attorney Rod Pacheco said Tuesday his office was first informed this week of the issue.  "How is this possible?  This is ridiculous," said Pacheco, still optimistic the execution would proceed. "I'm a little frustrated. The death penalty in California is becoming surreal." 

Some related posts:

UPDATEAs detailed in this new local story, headlined "San Quentin execution blocked by judge," it appears that Judge Fogel late Tuesday issued a stay that likely will prevent California from conducting any executions until 2011:

A federal judge blocked the execution of condemned murderer Albert Greenwood Brown late Tuesday, saying he needed months, not just a few days, to decide whether California's new lethal injection procedures remove the risk of a prolonged and painful death.

Brown, 56, was scheduled to be executed at 9 p.m. Thursday at San Quentin State Prison for raping and strangling 15-year-old Susan Jordan of Riverside in 1980. It was to be the state's first execution since 2006, when U.S. District Judge Jeremy Fogel of San Jose found numerous flaws in the prison's injection practices.

Gov. Arnold Schwarzenegger will ask a federal appeals court to lift the stay and allow the execution, spokeswoman Rachel Arrezola said....

After hurriedly ordering and reviewing written arguments from both sides, Fogel said Tuesday evening that Brown's lawyers had raised substantial questions about whether the state's execution practices would be better than the ones he had criticized....

Unless it is overruled by a higher court, Fogel's order will halt Brown's execution and prevent any further executions in California until at least early 2011. That is when the state is due to receive a new supply of the sedative Sodium Pentothal, the sedative injected first into condemned inmates. The prisons' current supply has an expiration date of Friday, and the manufacturer says it has no more available now.

September 28, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Today's notable pot proposition commentary, news and notes

There are so many interesting angle to the still-developing debates and discussions surrounding the marijuana legalization initiative in California.  Here are just a few headlines that caught my eye this afternoon:

September 28, 2010 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Lots of crime (and some punishment) in big pile of cert grants from SCOTUS long conference

As detailed in this post at SCOTUSblog, the Supreme Court this morning granted certiorari in fourteen new cases. The full orders list is here, and I think more than a third of the cases involve criminal justice issues:

Freedman and Sykes are the cases that should most interest sentencing fans. Neither is a blockbuster-in-waiting, but both should provide some of the new (and old) Justices to showcase their current thinking on various federal sentencing issues.

September 28, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Effective new Vera report on decade of sentencing policy trends

The Vera Institute of Justice’s Center on Sentencing and Corrections has published this terrific new report titled "Criminal Justice Trends: Key Legislative Changes in Sentencing Policy, 2001-2010."  The report reviews key developments in sentencing legislation over the past decade, and here is how Vera summarizes its coverage:

Since 2001, many state legislatures have changed their criminal sentencing policies, increasingly emphasizing approaches that are “smart on crime.”  The three main areas of legislative reform involve redefining and reclassifying criminal offenses, strengthening alternatives to incarceration, and reducing prison terms.  This report is a reference for legislators, their staff, and other policy makers who may be considering or implementing similar changes in sentencing statutes and policies.

September 28, 2010 in Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4) | TrackBack