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December 4, 2010

Some reactions to President Obama's first set of pardons

This article in the Politico, which reports on the first set of pardons issued by President Obama (basics here) includes some quotes from various pardon experts about what Obama has and still has not now done with his historic clemency powers.  Here are excerpt:

[C]lemency advocates say the pardons, while politically cautious, are an important first step. "I'm very happy that he's gotten the ball rolling. I hope this means he will start pardoning on a regular and generous basis," said Margaret Love, who ran the Justice Department's pardon office under presidents George H.W. Bush and Bill Clinton....

Molly Gill of Families Against Mandatory Minimums, said her organization is “thrilled” that the president has begun to use his power to impart justice. “He took a long time to do it, but the people who received these pardons, I’m sure, are thrilled," said Gill, whose group works to eliminate disproportionately harsh minimum sentences for crimes like drug possession.

However, Gill expressed some regret that Obama didn’t act boldly. “These were easy cases. These were not tough calls," she said. "I think that maybe reflects still a lot of political concerns involved with politicians' fear of looking soft on crime."...

Four of the pardons were for people found guilty of cocaine-related offenses — a crime that has become the focus of a campaign for equity in sentencing for those convicted of dealing crack cocaine as well as those found to have sold or possessed the drug’s powdered form. However, Obama did not grant any commutations to inmates serving lengthy sentences as a result of tough sentencing guidelines or mandatory minimum drug sentences.

"The lack of commutations, for one thing is disappointing," Gill said. "There are still some problems with the Office of the Pardon Attorney handling these cases. I find it hard to believe that with thousands of people getting mandatory minimum sentences on drug crimes every year the Office of the Pardon Attorney cannot find a handful of deserving people to send home early."

Back in August, Obama signed a bill that reduced the penalties for some crack cocaine offenses, but the reductions had no effect on those already serving time. Some opponents of tough drug laws have urged Obama to issue commutations to prisoners who are serving more time than they would if convicted today, but the White House has, so far, given a chilly response to that suggestion.

“Pardons don’t mean much anymore, except no doubt to the recipients. The crimes are long passed. Time served is long gone,” said George Lardner, author of a forthcoming book on executive clemency. “This does nothing to affirm the importance of the pardon power. It just gets him under the wire so he can claim that George W. Bush took more time than he did.”

In October, POLITICO reported that Obama began denying clemency requests for the first time, denying 605 commutation petitions and 71 pardon applications. Last month, Obama denied another 552 commutations and 60 pardon requests, a White House spokesman said.

One observer noted that the details on the time served by those Obama pardoned for drug offenses and the time served shows how the justice system has changed in recent decades. One pardon recipient got probation for conspiring to distribute cocaine. Another got 30 days in jail. Such offenses often bring a sentence of 10 years or more in the federal system these days.

December 4, 2010 in Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

"Are All Murderers Mentally Ill?"

The title of this post is the headline of this commentary from The Atlantic.  Here are excerpts:

Elaine Whitfield Sharp is a defense attorney who has worked on hundreds of murder cases over the past 20 years [who see a] fundamental problem with capital punishment....  "You see, I truly believe that murderers are mentally ill," she explains. "Their brains don't work like the rest of ours do.  To deliberately kill someone requires crossing a profound boundary.  Most of us couldn't do it. We couldn't even think about it.  But they can.  They do.  Why?  Because they're mentally ill.  And fundamentally, as a society, I believe it is barbaric to kill people who are ill."

That doesn't mean Sharp thinks murderers should be excused for their behavior or set free.  "Clearly, we need to lock these people up, and keep them away from the rest of us," she continues.  "Because they're not going to stay within acceptable bounds. They're a danger to others."  But she says most of us make the mistake, when we hear about a murderer, of projecting that they're like us and simply choosing to do this heinous crime. And so, imagining ourselves doing something so terrible, we feel they should be severely punished for that choice.  "But," Sharp argues, "they're not like us.  That's why they can do it."...

"Murderers seem to have no appreciation of boundaries," Sharp explains. "And it shows up in all aspects of their lives.  Most criminals I deal with are very narcissistic.  They're blame-shifters, manipulative, and can't feel anyone else's pain but their own.  A consistent hallmark, in fact, particularly of killers, is this extreme narcissism."  Sharp points to the book People of the Lie, by the late M. Scott Peck, as a good description of a killer's personality disorder.

"These people are always the victim, it's always someone else's fault, they have no sense of other people's boundaries, and they really can't see how twisted that view is," she says. "It's a disorder."...

Certainly the evidence, or perhaps just awareness, of how widespread mental illness is among criminals, and especially those incarcerated for violent crimes, seems to be growing.  In 1999, the Bureau of Justice Statistics (BJS) estimated the percentage of inmates suffering from a significant mental condition at 16 percent.  In a comparable report issued in 2006, the BJS revised that number upward to over 50 percent....

Again, Sharp and the others aren't arguing that violent criminals and murderers should be allowed to go free.  But if, in fact, murderers who commit grisly crimes do so because of warped minds -- perhaps because of trauma and abuse endured as children, or perhaps because of organic, biological deficits -- if, in fact, they are mentally ill in ways that make it impossible for them to see the world or appropriate boundaries and behaviors the way the rest of us do.  Is it appropriate, ethical, or right to kill them for their acts?  Or is it, as Sharp argues, a barbaric thing for a civilized society to do?

Even if one were to accept the premise that all or most murderers are mentally ill, I think such an assertion would provide greater support for life imprisonment without parole for all murderers than for categorical abolition of the death penalty.

December 4, 2010 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

December 3, 2010

President Obama finally grants first pardons of his presidency!!

At long last, and only 682 days into his presidency, President Barack Obama has finally made some use of his constitutional pardon authority.  Everyone should thanks PS Ruckman for providing in this post these specific details about the nine grants today:

Six out of the nine pardons were granted to individuals whose violations were so minor they were not even given prison sentences, only probation. Story developing!

James Bernard Banks (1972) UT, illegal possession of government property (2 years probation)
James Dixon (1960) GA, liquor violations (2 years probation)
Laurens Dorsey (1998) NY, false statements (5 years probation, restitution)
Ronald Lee Foster (1963) NC, coin mutilation (1 year probation. fine)
Timothy James Gallagher (1982) AZ, cocaine (3 years probation)
Roxanne Kay Hettinger (1986) IA, cocaine (30 days, 3 years probation)
Edgar Leopold Kranz, Jr. (1994) military (24 months)
Floretta Leavy (1984) IL, cocaine/marijuana (1 year and 1 day)
Scoey Lathaniel Morris (1999) TX, counterfeiting (3 years probation, fine)

I hope to blog more on this front after answering 1L question about their upcoming Crim Law exam. In the meantime, everyone should check out Pardon Power for coverage (and await surely forthcoming commentary from Margaret Colgate Love and other pardon pundits).

December 3, 2010 in Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (4) | TrackBack

Notable new sentencing opinion from Judge Gertner for low-level crack dealer

Long-time readers know that  and today US District Judge Nancy Gertner long ago earned her place in my Sentencing Judges Hall of Fame by effectively exploring a range of important issues through detailed sentencing opinion in the immediate wake of Blakely and Booker.  And I am pleased now to report that, though basic sentencing law is now more settled, Judge Gertner continues to write opinions that knock important sentencing issues out of the park. 

Earlier this week, for example, she produced a fascinating discussion of post-Booker sentencing issues through a 26-page decision in US v. Wigham, No. 06cr10328-NG (D. Mass. Nov. 30, 2010), which can be downloaded below.  Sentencing fans will want to read the opinion in full, and here is a snippet to whet the appetite:

Once I determine that a Guideline sentence does not apply, I must then decide what sentence is appropriate to meet the statutory sentencing purposes of 18 U.S.C. § 3553(a) as Booker directs. See 543 U.S. at 224.  In this regard, I will use the approach which I used in other drug sweep cases, described in United States v. Garrison, 560 F. Supp. 2d 83 (D. Mass. 2008).  In Garrison, I evaluated and compared the sentences imposed on men picked up in the same sweep, the same geographical area, with the same charges -- including sentences imposed by other judges -- to the case of the defendant before me.  In effect, Garrison makes the sentences of individuals imposed by other judicial officers function as precedent for my sentence, part of a common law of sentencing.

The government criticizes the Garrison approach, arguing that it will somehow exacerbate disparity in this jurisdiction and cites to a recent article by Professor Ryan Scott ("Scott"), Inter-Judge Sentencing Disparity After Booker: A First Look (Ind. Legal Studies Research, Paper No. 140, 2010), which reflected concerns about Massachusetts federal sentencing. As I describe below, Scott’s article defines disparity in terms of the extent to which District of Massachusetts judges are following the Sentencing Guidelines.  Following the Guidelines, it suggests, promotes the kind of sentencing consistency that the Sentencing Reform Act aimed for.

I disagree with the premise, as I describe below. S imilarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant’s actual role in the criminal endeavor or his real culpability.  Guideline categories (like career offender guidelines) are frequently over broad, giving the same "score" to individuals who are not remotely similar and ignoring critical differences between them (their role in the offense, their mens rea) that should bear on punishment. In any event, in this case, the government’s position touting the Scott article was ironic. It agreed that the Guideline sentence is far too high for Whigham.

To the extent that Scott's findings suggest differences in the approach to the Guidelines among the judges in Massachusetts, they should be carefully evaluated, which I do below. The critical question is what these disparities reflect -- whether they reflect the untutored preferences of particular judges, as often occurred pre-Guidelines, or real jurisprudential differences involving Guidelines that are problematic.  In my judgment, they reflect the latter; the good faith, reasoned evaluations of Guidelines and facts.  Even before Booker, the Guidelines contemplated that district court judges would depart from the Guidelines on occasion, that the Commission would consider these departures and amend the Guidelines, if appropriate, allowing for a collaborative evolution of Guideline law.  After Booker, more of the work of that evolution is to be done by the appeals courts than the Commission -- determining which approaches are "reasonable" and which are not.

In the short term, until there is precedent in the areas in which there are real issues, like the career offender and crack cocaine Guidelines, differences in approach across cases are unavoidable.  That is all the more reason for using the Garrison approach, at the very least, looking carefully at the sentences given to individuals in a given sweep, in the same geographic area, in roughly the same time period, having the same role in the offense.

Let me be clear -- in answer both to Professor Scott and the critics of advisory Guidelines: When I choose not to follow the Guidelines, it is not because I simply disagree with them and seek to substitute my own philosophy of sentencing.  It is because the Guideline at issue is wholly inconsistent to the purposes of sentencing under 18 U.S.C. § 3553(a).  And when I assign a non-Guidelines sentence, I am likewise not picking a number out of the air, but keying what I do, to the extent possible, with the sentences and reasoning of other judges, and the evidence that I have been given.  Finally, I write decisions so that my reasoning is clear and may usefully serve as precedent to others.

Download WhighamSentMemoNov30th2010AMENDED

December 3, 2010 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (21) | TrackBack

Misdemeanor defendants in NYC left in jail (and perhaps pleading guilty) when unable to make small bail

Though misdemeanor crimes and sentencing rarely make headlined, this notable new article in the New York Times highlights how many are impacted in one city by how such cases get processed.  The piece is headlined "N.Y.C. Misdemeanor Defendants Lack Bail Money," and here is how it starts:

Thousands of people arrested on low-level crimes in New York City spend days languishing in jail, not because they have been found guilty but because they are too poor to post bail, according to a report to be released on Friday.

The report, which examines the bail conditions for people charged with nonfelonies like smoking marijuana in public, jumping a subway turnstile or shoplifting, found that the overwhelming majority of defendants in cases in which bail was set at $1,000 or less were unable to pay and were sent to jail, where they remained, on average, for more than two weeks.  The report comes as the number of arrests for low-level misdemeanors, often referred to as quality-of-life crimes, is rising.

Human Rights Watch, an advocacy group that most often focuses on abuses abroad, obtained data on nonfelony defendants arrested in the city in 2008.  In more than three-quarters of the 117,064 cases, defendants were released on their own recognizance.

In 19,137 cases from that year, bail was set at $1,000 or less.  The report found that 87 percent of the defendants in those cases did not post bail and went to jail to await trial. They remained for an average of 15.7 days.

“Here we are locking people up for want of a couple of hundred dollars,” said Jamie Fellner, senior counsel with the domestic program of the advocacy group. “Pretrial liberty should not be conditioned on the size of your bank account,” Ms. Fellner said.

The report raised the possibility that many of the poorer defendants pleaded guilty at arraignment for sentences with no jail time, simply to avoid being behind bars while awaiting trial.  “The client is placed with a choice of staying out of jail and being on Rikers Island and fighting their case,” said Robin Steinberg, the director of the Bronx Defenders, a nonprofit group that provides legal representation to Bronx residents charged with crimes.  “Almost anybody would plead guilty.  It creates a pressure on poor people in the criminal justice system for them to plead guilty without regard to whether they were guilty or not guilty.”

December 3, 2010 in Data on sentencing, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

December 2, 2010

Ohio Supreme Court concludes state lacks post-conviction mechanism to challenge execution methods

As detailed in this local article, a divided Ohio Supreme Court ruled today ruled that there is "no basis under Ohio law to challenge the lethal injection method of execution."  Here's more of the basics of this ruling and a related dismissal of another appeal:

In a 5-2 decision, the court said the General Assembly "has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol."...

In another death penalty case, the court rejected a suit filed by attorneys representing convicted killer Romell Broom that be removed from Death Row because the state tried unsuccessfully to execute him 15 months ago.  Without comment, the court unanimously turned down the request by attorneys Timothy F. Sweeney of Cleveland S. Adele Shank of Columbus.

The full opinion for the Court in Scott v. Houk, No. 2010-Ohio-5805 (Dec. 2, 2010) (available here), is only a few paragraphs long.  But there are two notable concurrences and dissents that make great reading for folks interested in the relationship between rights and remedies and related federalism issues.  Here are excerpts from the order of the Court:

On July 29, 2009, Judge John Adams of the United States District Court, Northern District of Ohio, Eastern Division, certified the following question of state law to this court: “Is there a post-conviction or other forum to litigate the issue of whether Ohio’s lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio law?”  The district court recertified the question to us on September 3, 2009, due to an inadvertent failure to provide notice of the original order to the parties.  We accepted the question for review.  123 Ohio St.3d 1420, 2009-Ohio-5340, 914 N.E.2d 1062.  On September 14, 2010, we heard oral argument from the petitioner. The respondent forfeited his argument by not filing a merit brief....

The Ohio General Assembly has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol, and given the review available on this issue through Section 1983, Title 42, U.S.Code, for injunctive relief against appropriate officers or federal habeas corpus petitions, we need not judicially craft a separate method of review under Ohio law.  Accordingly, until the General Assembly explicitly expands state review of death penalty cases by creating a methodology for reviewing Ohio’s lethal-injection protocol, we must answer the certified question as follows:  There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law.

December 2, 2010 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"'Perfect Storm of Injustice'? N.J. Man Serving 7 Years for Guns He Legally Owned"

The title of this post is the headline of this notable story via ABC News.  Here are some of the details, which appears to involve yet another example of mandatory minimum sentencing terms producing another example of excessive over-punishment:

Brian Aitken, 25, a successful media consultant, had been in the process of selling his home in Colorado and moving to a suburban New Jersey apartment to be closer to his son, 2.   But on the afternoon of Jan. 3, 2009, the stress of a recent divorce and messy cross-country move caused him to crack.  Aitken stormed out of his parent's suburban home in Mount Laurel, N.J., hopped into his car filled with belongings and set out on a drive to cool off.

Aitken's mother, a social worker trained to be sensitive to suicidal indicators, instinctively dialed 911 but abruptly hung up, second-guessing her reaction.  But police tracked the call, came to the Aitken's home and greeted Brian when he returned to make sure he was OK. Then, they asked to search his car.

Buried in the trunk, beneath piles of clothes and boxes of dishes, was a black duffle bag holding a boot box containing two handguns; "unloaded, disassembled, cleaned and wrapped in a cloth," his father said.  There were also several large-capacity magazines and cartons of hollow-point bullets.

Aitken had legally purchased the guns at a Denver sporting goods store two years earlier, he said.  But transporting a gun without a special permit or in a handful of exempt situations is illegal in New Jersey, giving officers no choice but to arrest Aitken and charge him with a crime.  The magazines and bullets are also illegal in the state, experts said....

"For quite some time I was pretty confident as soon as intelligent people with logical minds took a look at what happened they might slap him with a fine or something," Aitken's father Larry said. "When the prosecutor came down with an indictment, I was dumbfounded."

But after a two and a half day trial in August, a jury convicted Aitken of the charges and a judge sentenced him to 7 years in prison.  So family and friends have launched a grassroots campaign to set him free, even appealing to New Jersey Gov. Chris Christie for a pardon or reprieve....

[T]he judge in the case did not allow the jury to consider the moving exemption during the trail, ruling that no evidence was presented that Aitken was actually moving at the time the guns were found.  Aitken did not testify in the trial.

"The defendant's attorneys presented evidence that his house was for sale and that at the time of arrest he was travelling from one residence in New Jersey to another," Joel Bewley, a spokesman for the Burlington County Prosecutor's Office, told ABC News.... "This sentence was entirely and statutorily mandated upon this conviction," Bewley said.

December 2, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes | Permalink | Comments (8) | TrackBack

Georgia federal prosecutor endorses resentencing of defendants sentenced by disgraced federal judge Jack Camp

This new AP story out of Atlanta provides heartening reminder that federal prosecutors will sometimes take proactively steps to ensure justice is served (especially when a federal judge goes bad).  Here are some of the details:

Federal prosecutors in Georgia are disclosing allegations that a federal judge in Atlanta, already convicted of drug possession, may have shown racial bias when sentencing defendants earlier this year.

U.S. Attorney Sally Yates says a woman who developed a personal relationship with former U.S. Senior Judge Jack Camp in May has told prosecutors he said he had a difficult time sentencing black men because they reminded him of someone he didn't like.

Yates says her office will comply with requests from defendants who want a review of their cases before Camp. For those sentenced by Camp from May through September, Yates says prosecutors will not oppose requests for re-sentencing.

The full statement today made by US Attorney Yates can be found in this link.  The statement is remarkable in various respects, and here are some legnthy excerpts:

The United States Attorney's Office has one responsibility -- to seek justice. To fulfill that responsibility, we are today disclosing information that we have recently discovered to the public as well as to defendants who may be affected by this information.

On November 19, 2010, former Senior District Judge Jack T. Camp ("Camp") pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs, and converting government property to private use. Our office is recused from the prosecution of Camp, which is being handled by the Public Integrity Section of the Department of Justice....

We have since reviewed the information provided by Public Integrity and interviewed individuals with close connections to the criminal allegations, including Camp.  We believe that the prompt disclosure of any arguably significant information is critical to our mission of fair and impartial justice.  Consequently, we are providing information beyond that which we are legally required to disclose [and] we have identified the following information that we believe should be disclosed immediately: ...

According to witnesses and Camp, from approximately May, 2010 until the end of September, 2010, on a roughly biweekly basis, Camp engaged in the illegal use of controlled substances.  During this approximately four-month period, Camp consumed marijuana, powder cocaine, Xanax, Roxicontin, and other unknown prescription painkillers....

A second area of inquiry pertains to witnesses' statements relating to potential racial bias. Witness 1, who became acquainted with and developed a personal relationship with Camp in approximately May of 2010, stated that Camp disliked a particular individual ("Individual A"), who was African-American and who also had a personal relationship with Witness 1.  According to Witness 1, Camp told her that when African-American men appeared before him, he had a difficult time adjudicating their cases and specifically determining their sentences because he could not differentiate them from Individual A in light of his feelings about Individual A....

Finally, Witness 1 said that Camp described a case where a female defendant reminded Camp of Witness 1, so he gave her a 12-month sentence instead of the suggested 60-month sentence.  We identified a case during this period where Camp sentenced a white female defendant to a 15-month prison term instead of the 30-37 months recommended by the Sentencing Guidelines.  There is also evidence that confirms that Camp consulted with Witness 1 during the relevant period regarding the sentences that he imposed....

When our office confronted Camp with the above allegations, he said that he did not make the statements attributed to him by either Witness 1 or Witness 2.  He further denied ever taking any judicial action based on racial bias....

Our only interest in any case that we have prosecuted before Camp is ensuring that justice is served. To that end, given these disturbing facts and allegations, this office will evaluate any criminal case adjudicated by Camp for impairment or bias that a defendant requests that we review.  Furthermore, from May of 2010 forward, there is evidence that Camp's judicial decision-making process may have been impacted by bias and/or impairment and it has been established that he was involved in criminal conduct during this period. Therefore, we will not object to a defendant's request for a resentencing in any case in which the defendant was sentenced during this time.

In addition to wondering how many defendants Judge Camp sentenced since May 2010, I am also wondering whether and how this information might come to impact Judge Camp's own upcoming sentencing.  I have suggested in prior posts that Judge Camp seemed to get a pretty sweet plea deal in light of his offense conduct, and now I am even more troubled by what this bad judge was doing. I think evidence of his perversion of a fair justice system he swore to uphold ought to be an aggravating factor in his ultimate sentencign pursuant to the purpose provisions set forth in 18 USC 3553(a)(2).

Related prior posts (which generated lots of notable comments):

December 2, 2010 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (8) | TrackBack

Should an inmate be able to use Facebook?

The question in the title of this post is prompted by this ABC News story which is headlined "Convicted Murderer Justin Walker Used a Blackberry to Talk to Friends on Facebook While in Prison."  Here is how it begins:

The mother of an Oklahoma man who was shot to death is furious that her son's killer was able to get a Blackberry in his cell and has been corresponding with friends and posting photos on Facebook.

Cathy Lawrence, the mother of slain Sheriff Dwight Woodrell Jr., told ABCNews.com that Justin Walker, the man serving a 30-year sentence for her son's murder, doesn't deserve to be alive, let alone to be updating his Facebook status.

December 2, 2010 in Prisons and prisoners, Technocorrections | Permalink | Comments (8) | TrackBack

Justice Stevens' consistent belief in the death penalty and a notable attack on this reality

I have now had a chance to read closely retired Justice John Paul Stevens's piece in the New York Review of Books reviewing David Garland's book "Peculiar Institution: America's Death Penalty in an Age of Abolition" (discussed here; available here).  I actually see the piece as supportive of a narrow, well-functioning death penalty based on these two paragraphs:

Under Justice Stewart’s approach, a jury composed of twelve local citizens selected with less regard to their death penalty views than occurs today — in that respect, a truer cross-section of the community—would determine individual defendants’ fates.  Once chosen, such jurors would not be inflamed by victim-impact statements; they would be insulated from race-based decisions by prosecutors; and they would weigh the offender’s culpability against relevant mitigating circumstances in determining his fate.  There are crimes for which such a jury would almost certainly impose a death sentence if so authorized.  A portion of the Baldus study that Professor Garland does not discuss found a significant category of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to race.

The Michigan statute [abolishing the death penalty for all regular crimes in 1846] assumed that treason was one such offense.  Timothy McVeigh’s bombing of the federal office building named after Judge Murragh in Oklahoma City is surely another.  I imagine that attempted assassination of the Pope would qualify, as could murder of a law enforcement officer or prison guard, and perhaps the kind of crime — serial killing of students —described in Garland’s prologue.  Garland does not tell us whether he would be an abolitionist in such cases.  Rather than treating the death penalty as an all-or-nothing issue, I wish he had commented on the narrower regime that Justice Stewart envisioned.

I read these passages as an endorsement by Justice Stevens of a narrow death penalty that seeks to ensure that the truly "worst of the worst," but only the worst of the worst, are executed for their crimes.  (Also interesting here is the suggestion by Justice Stevens that attempted murder of the Pope would qualify as a "worst of the worst" offense.)

To his credit, David Von Drehle sees the nuance in Justice Stevens' position and he assails this position in this long Time essay headlined "Stevens' Death Penalty Case Lets Himself Off Too Easily." Here is a passage from this interesting essay:

In his recent essay, Stevens writes trenchantly about the major twists and turns, rulings and reversals, that have helped to make a ruin of death penalty law in the years since the troika endorsed guided discretion.  He decries decisions, where he dissented, that have made it easier to screen out death penalty opponents from capital juries, and re-opened the door for accomplices — and not just murderers — to face death sentences.  But what he omits is the fact that these and other disputed cases were rooted in the underlying failure of the original architecture.  Guided discretion is a concept at war with itself: it tries to open the process of handing out death sentences to the light of human judgment, while at the same time fencing it off from the taint of human passion and individual differences.

Simply put, the death penalty seeks to separate the very worst of the worst for ultimate punishment.  But it fails to appreciate that individual prosecutors, judges and juries will have their own ideas about who is "worst." In his essay, Stevens suggests that the impulse of the troika's work was to greatly limit and rationalize the use of the death penalty, guiding lower courts away from arbitrary, excessive or racially discriminatory conclusions, but it didn't work that way.  Within a few years of their decision, America's death rows were twice as populous as they had been before Furman. Today, a single death row — California's — houses more condemned prisoners than lived in all the prisons in the United States combined, back when the death penalty was struck down.  And what is the chance of being executed in the Golden State today?  About the same as being struck by lightning.

Guided discretion was an idea or theory that looked pretty on paper but could not survive contact with the real world.  One man's "worst" was another man's not-quite-so-bad. Within a short time after the Stevens-approved architecture was in place, judges across America were literally arguing in opinions over issues like whether it is worse to be shot at close range, with the gun cold against your head, or at longer range, with the attendant chance of maiming or slow death.  Worse to have your throat cut or to be stabbed multiple times in the chest?  Worse to die at the hands of a stranger or a loved one?  Multiply such riddles by several thousand and you can begin to understand why the death penalty machine in the United States rarely comes to finality.

In short, Von Drehle is embracing Justice Blackmun's end-of-service view that the modern "guided discretion" approach to the death penalty is doomed to fail.  But, I find myself always draw to the more nuanced view suggested by Justice Stevens even though I agree that "individual prosecutors, judges and juries will have their own ideas about who is worst."

I am always drawn to fixing the modern US death penalty because, when operating properly (as it does in many states and in the federal system), it gives every individual prosecutor, trial judge and trial jury (as well as appellate courts and governors) the chance to veto a death sentence if and whenever not fully convinced a defendant is truly among the "worst of the worst."  At the same time, preserving this system allows society to condemn Tim McVeigh and DC sniper John Allen Muhammad and Steven Hayes and other mass murderers to a more serious punishment than the long prison terms we (too readily) give to lots of lesser criminals.

December 2, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

"Social Historical Studies of Women, Crime, and Courts"

The title of this post is the title of this notable article available via SSRN that provides an interesting perspective on some social and legal criminal justice history. Here is the abstract:

While traditional criminology has ignored the historical dimension of female crime, social historical literature has examined the interplay between gender and the criminal process in a variety of historical settings.  This review examines studies focusing on changes in crime, prosecution, conviction, and punishment patterns over time, as well as studies in particular settings.  From these studies we conclude that crime has not always been a predominantly male phenomenon and that female crime rates have changed over time.  We also conclude that, within the different categories, women defendants in particular were perceived through a gendered perspective, and their criminalization and punishment, as well as its representation in popular culture, reflected this special perspective.

December 2, 2010 in Race, Class, and Gender, Recommended reading | Permalink | Comments (0) | TrackBack

December 1, 2010

New charges against pardoned sex offender causing a stir in Minnesota

As detailed in this local article, which is headlined "Pawlenty seeking perjury investigation against sex offender he helped pardon," an ugly pardon story is in the works in Minnesota. Here are the basics:

Gov. Tim Pawlenty says the sex offender that he joined in pardoning two years ago may have committed perjury to get his criminal record wiped clean.  If so, the governor wants him prosecuted for that offense in addition to new molestation charges.

Pawlenty said he sent letters to prosecutors Wednesday urging them to investigate whether Jeremy Giefer of Vernon Center lied to the state pardon board to have his criminal record expunged.  Last month, Giefer was charged with sexually abusing a girl more than 250 times before and after he was pardoned in 2008.

"If the current allegations against him result in a conviction or any indications of criminal behavior, he perjured himself and lied to us and may have committed other forms of fraud or misrepresentation before a governmental agency or board," the governor said.  If that's the case, he said Giefer should be charged with lying under oath.

Pawlenty was a member of the three-person board that pardoned Giefer, now 36.  The other pardon board members were Attorney General Lori Swanson and then-Chief Justice Eric Magnuson of the Minnesota Supreme Court.

In 1993, Giefer was convicted of having sex with his 14-year-old girlfriend, whom he later married.  He served 45 days in jail and was free when the pardon was granted.

Last month, Giefer, now 36, was charged in Blue Earth County District Court with 12 felonies, including five of first-degree sexual conduct. The complaint says the victim told police the abuse began when she was 9 and continued until she was 16....

[Pawlenty] said the board would not have pardoned Giefer if it had been aware of the latest sexual abuse charges.  He noted that during his tenure the board has never released anyone from prison or jail early.  Pardons have been granted only after sentences were served.

December 1, 2010 in Clemency and Pardons, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

A few more thoughts on applying the FSA to not-yet-sentenced defendants

As regular readers know, I am troubled by the Justice Department's view that any defendant who committed a crack offense before the enactment of the Fair Sentencing Act should get no benefit from the the FSA's statutory provisions.  Because I think the argument for applying the FSA to defendants awaiting initial sentencing is especially strong, I have previously here posted an amicus letterthat I submitted in a New York case with my thoughts about why the FSA's provisions should be applied to cases in the pipeline that have not yet been sentenced.

Earlier this week, I submitted another letter in this case that is particularly focused on the Government's claim that, with regards to the FSA's applicability, there is no basis for distinguishing between already sentenced defendants and not yet sentenced defendants.  That full letter is available for download below, and here are two key paragraphs of my argument:

Critically, the Government seeks to obscure the important and sensible distinction between applying the FSA retrospectively to defendants who had been already sentencedas of its enactment date, and applying the FSA prospectively to defendants not yet sentenced as of its enactment date.  It is reasonable and sensible to suggest that Congress concluded that offenders who were sentenced before the FSA became law should not be able to demand a return to court for a complete “redo” — with all the added expense and uncertainty of the resentencing process — based on the FSA’s new sentencing provisions and its ordered revision of the federal sentencing guidelines.  But it is neither reasonable nor sensible to suggest that Congress concluded that only minor crack offenders who have not yet been sentenced should be subject to harsher (now-amended) sentencing laws while all major crack offenders who have not yet been sentenced should get the benefits of the amended sentencing provisions of the FSA.

Stated slightly differently, it is reasonable to assume and conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable already sentenceddefendants from reopening and relitigating the sentences they received before the FSA became law.  But it is not sensible to assume or conclude that concerns about finality and judicial economy may have kept Congress from wanting to enable not-yet-sentenceddefendants from being initially sentenced pursuant to the FSA’s new sentencing structure.  In fact, judicial economy is better served by making the terms of the FSA’s sentencing structure applicable to all not-yet-sentenced defendants: a simple, straight-forward rule applying the FSA to pending cases would prevent sentencing judges in many cases from having now to figure out (1) whether a defendant’s offense conduct took place before or after the FSA enactment, and/or (2) whether and how a defendant’s sentence should be governed by the new crack sentencing guidelines or the old crack sentencing statute.  Indeed, though it is easy to understand how Congress’s interest in sentencing fairness, consistency and judicial economy supports application of the FSA to all not-yet-sentenced defendants, it is hard to understand or even to identify any valid congressional interest that would be served by continuing to apply the older (and now amended) crack sentencing provisions to only not-yet-sentenced minor crack offenders.

Download FSA pipeline applicability follow-up letter

Some recent related posts:

December 1, 2010 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

"Multiple murder suspect had benefited from three-strikes leniency"

The title of this post is the headline of this remarkable story in today's Los Angeles Times.  Here is how the piece starts:

To hear him tell his story, John Wesley Ewell was the victim of an overly harsh criminal justice system.  The South Los Angeles hairstylist complained to journalists over the last decade about the unfairness of the state's tough three-strikes law, saying he lived in fear that even a small offense would land him back in prison for life.

He even appeared on the "The Montel Williams Show" to argue the case against three strikes.  A caption that flashed on the screen when Ewell spoke read: "Afraid to leave his house because he has 2 'Strikes.'"

But Ewell is now charged with murdering four people in a series of home invasion robberies that terrorized the South Bay this fall.  On Tuesday, he pleaded not guilty during a brief appearance at the Airport Courthouse.

Far from embodying the severity of the justice system, Ewell benefited from its lenience over the last 16 years, according to a Times review of court records and interviews.

Ewell has a lengthy criminal history that includes two robbery convictions from the 1980s. Nevertheless, the Los Angeles County district attorney's office decided on four occasions against seeking to use the full weight of the three-strikes law when he was charged with new crimes.

And this year, after Ewell was arrested three times for allegedly stealing from Home Depot stores, a judge agreed to delay sending Ewell to prison so he could take care of some medical problems.  It was during that delay, authorities say, that Ewell robbed three homes and killed the victims.

"He should have been in prison a long time ago," said Leamon "Kelly" Turnage, whose parents were among the victims.  "It is a shock to me that no one is willing to take responsibility for letting this killer go."

Ewell's case is likely to fuel more debate about the practice of many California prosecutors to seek less than the maximum sentence for some three-strikers. 

Under the law, offenders with two previous convictions for serious or violent crimes can be sentenced to prison for 25 years to life if they are convicted of another felony, no matter how minor. But most prosecutors use discretion in deciding when to seek life terms.  Since 2000, the L.A. County district attorney's office has generally prohibited prosecutors from seeking possible life sentences when a defendant's third strike is not serious or violent.

Prosecutors repeatedly exercised this discretion in Ewell's favor.  Critics argue that the district attorney's policy fails to adequately protect society.  The law, they say, deliberately counted minor crimes as third strikes to put away repeat offenders before they hurt other victims.

Prosecutors say it is unfair to suggest that they — or anyone else — could have predicted that Ewell would turn to such violence.  At 53, he appeared to be little more than a petty thief and hardly fit the profile of a killer.  "I really don't think anybody could pretend to anticipate that … this guy would suddenly go from stealing things from Home Depot to murdering old people," said Los Angeles County Head Deputy Dist. Atty. John Lynch.

The district attorney's policy has won widespread support as a just way of dealing with minor offenders who might have serious criminal pasts.  Although a handful of criminals have benefited from the policy only to later commit violent crimes, the vast majority of offenders prosecuted under the policy have not gone on to kill or carry out other serious crimes.

Detectives describe Ewell as a man who led a double life. Residents of his Harbor Gateway community of Los Angeles knew him as a friendly handyman willing to help others.  But investigators said he was a career criminal whose offenses stretched over more than 30 years.

December 1, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

US Sentencing Commission unveils pretty new website

Heading over to the US Sentencing Commission's official website today is even more exciting than usual because the site has a pretty new look.  Kudos to the USSC for the website face-lift.

December 1, 2010 in Who Sentences? | Permalink | Comments (2) | TrackBack

Will the Chief Justice seek consensus in the California prison overcrowding case?

I had a chance last night to read the full and lengthy transcript of the oral argument in Schwarzenegger v. Plata (which is available here), and the whole thing is fascinating.  Justice Alito's tough questions to the prisoner advocate continued to burnish his well-deserved reputation of being the most pro-government, pro-prosecution of the current Justices, while Justices Breyer, Ginsburg and Sotomayor posed some of the toughest questions to California's lawyer.  And not only old swing Justice Kennedy, but also new (swing?) Justice Kagan seemed to be trying to figure out how the potent prison crowding reduction order might be tweaked to engineer a resolution of Plata that everyone could live with.

Because the legal and factual issues in Plata are dynamic and uncertain, the Justice I am now thinking is most important to the resolution of this case is Chief Justice Roberts.  There is no crisp, plain right/wrong resolution in Plataand really no enduringly significant jurisprudential concerns, and yet the outcome of the case and also the reasoning (and rhetoric) used by the Court in reaching an outcome will still surely have lots of sentencing law and policy reverberations. 

For these reasons, the Chief's oft-stated interest in having more consensus on the Court could (and perhaps should) come to the fore in Plata.  And, as suggested above, it seems that both Justices Kennedy and Kagan may be especially interested and eager to find split-the-difference resolution to this case that all (or almost all) of the Justices can join.

Candidly, I am not sure if I would prefer to see a unanimous minimalist opinion in Plata that delicately balances all the competing issues, or would instead like the Justices to deliver a 5-4 opinion with lots of rhetoric flying.  But I am sure that the Chief Justice seems to me to be the key player in shaping just what becomes of Plata.

December 1, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack

An innocence-based pitch for California capital clemency for Kevin Cooper

The potent pair of Alan Dershowitz and David Rivkin have this new op-ed in the Los Angeles Times, which is headlined "A time for clemency: Kevin Cooper was sentenced to death. But there are enough flaws in his case that the governor should step in to save him." Here is how the op-ed starts and finishes:

"The state of California may be about to execute an innocent man." That is the warning of Judge William Fletcher of the U.S. 9th Circuit Court of Appeals in a 101-page dissent from the court's decision to uphold the murder conviction of Kevin Cooper. Although the courts lack the power to grant clemency, the governor has the responsibility to do so when justice requires it. Now Gov. Arnold Schwarzenegger is duty-bound to use that power to save a possibly innocent man from death....

Schwarzenegger now bears the responsibility to see that justice is not irreparably perverted by putting Cooper to death. We ask the governor to commute Cooper's sentence to lifetime imprisonment without a chance for parole. All citizens, no matter where they stand on the death penalty, should demand no less.

December 1, 2010 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

"Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma"

The title of this post is the title of this interesting book chapter by Professor Justin Holbrook. Here is the abstract:

In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court.  For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons.

First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat — rather than simply punish — those facing the liminal effects of military combat.  Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators.  Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma.  This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.

December 1, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

November 30, 2010

Early assessments of SCOTUS oral argument in California prison overcrowding case

This morning the Supreme Court heard extended oral arguments in the California prison overcrowding case Schwarzenegger v. Plata (basic SCOTUSblog review here).  How Appealing has effectively here collected linksto lots of early media coverage of the argument, and Lyle Denniston's reporting here on SCOTUSblog starts his account of the argument this way:

In an argument that at times came close to being rowdy, the Supreme Court’s members jousted on Monday over whether to take on themselves the management of the way California provides medical care for some 140,000 prison inmates, or to leave that chore to a lower court that some Justices thought had done it right and some thought had botched the job.  In the end, the final choice seemed likely to reside with Justice Anthony M. Kennedy, who insisted that the lower court be left with a lot of discretion but who just as plainly showed he was not entirely satisfied with how it had used that leeway.

An argument that ran just a few minutes over the already expanded schedule of 80 minutes found Justices raising their voices and interrupting each other with some frequency as Chief Justice John G. Roberts, Jr., tried only occasionally and gently to referee.  All of the Court’s members except Justice Clarence Thomas were warmly engaged, and seemed determined at times to drive the arguments of counsel in Schwarzenegger v. Plata, et al. (08-1233) — the first case to reach the Court on the power of the courts to order a release of thousands of inmates from over-crowded prisons under a 1996 federal law.

The full and lengthy transcript of the oral argument in Schwarzenegger v. Plata is now available here, and I hope to have my own (original?) comments on this argument if/when time permits.  In the meantime, I welcome reader perspectives and predictions.

November 30, 2010 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

"Indiana budget leaders target prison population reductions"

The title of this post is the headline of this local article from Indiana, which gets started this way:

State budget leaders appear ready to make big changes in Indiana’s criminal sentencing system to try to stymie or even reduce the growth in the prison population.

But members of the State Budget Committee said Monday the General Assembly will need more detailed data and lots of political courage to make changes that save money and better serve inmates and the public.

The data should come in December, when the Pew Center on the States and the Council of State Governments Justice Center finishes an intensive study of the state’s criminal justice system and makes recommendations for a sentencing overhaul.  The latter could be more difficult. State lawmakers have made a habit, in reacting to crimes, of passing laws that create new felonies or lengthen sentences.

“This is going to be a big issue in the 2011 session,” said Rep. Peggy Welch, D-Bloomington, a member of the State Budget Committee and the budget-writing House Ways and Means Committee. “I challenge all of us to have the courage to do what needs to be done.”

November 30, 2010 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack