November 30, 2010
"TN Supreme Court halts 4 executions over lethal injection questions"
The title of this post is the headline of this article in The Tennessean, which discusses a ruling coming late yesterday from the Tennessee Supreme Court. Here is how the article begins:
Just days after saying the execution of Stephen Michael West could go forward, the Tennessee Supreme Court changed its mind, saying there are unanswered questions about the way the state performs lethal injections.
The last-minute decision puts four executions indefinitely on hold and surprised even West's attorney, Assistant Federal Defender Stephen Ferrell.
"Reconsideration is something that traditionally doesn't happen all that often," Ferrell said. "But I'm glad to see they saw the lack of our opportunity to have any input. I'm pleased they were able to admit they may have made the first decision too hastily."
The court stayed the executions amid concern that inmates might be conscious and in pain during lethal injections, which could be considered "cruel and unusual punishment." Last week, the court approved checking for consciousness by having a warden shake the inmate and brush a hand across t he eyelashes. But the court reversed itself Monday, saying West's attorneys deserve a chance to challenge the new method's constitutionality.
The stay came just 30 hours before West was to be put to death. He had even made his last meal request: an extra-large Domino's pizza with everything on it except black olives and pineapple.
By Monday evening, West was taken off death watch at the Riverbend Maximum Security Institution. And he wouldn't be getting his pizza.
West was convicted in 1986 in the murder of Wanda Romines and her 15-year-old daughter, Sheila, in Union County. The state declined to comment on the ruling, but Romines' nephew, Eddie Campbell, was distressed by the court's decision.
"I just can't believe it's happening," Campbell said. "He had a trial, and he had a fair trial, and he's had every appeal that he could possibly have in the last 24 years and eight months. He was given the death penalty, and it should have been the death penalty two times over."
Split Illinois House committee vote moves forward death penalty abolition bill
As detailed in this local article, "Illinois’ death penalty would be abolished under a bill that cleared a House committee Tuesday on a 4-3 party-line vote." Here are more of the basics:
The bill still needs approval from the full House and the Senate before it would go to Gov. Pat Quinn for his OK.
The legislation is sponsored by Rep. Karen Yarbrough, D-Maywood, who said the death penalty is applied unequally and has no deterrent effect. The Illinois State Bar Association and the American Civil Liberties Union of Illinois both appeared at the hearing in support of the legislation.
But a number of prosecutors urged retaining the death penalty, and said the issue deserved more debate than could be provided during the Legislature’s six-day fall veto session.
Private prison in Idaho under investigation after inmate beating video discovered
As detailed in this pair of new AP articles, a private Idaho prison run by that Corrections Corporation of America is being investigated concerning allegations that guard rely on inmate-on-inmate violence to manage prisoners:
Second Circuit "emphatically" rejects white-collar defendant's complaints about loss calculations
Anyone involved in any federal white-collar sentencing disputes will want to be sure to check out the Second Circuit's work today in US v. Woolf Turk, No. 09-5091 (2d Cir. Nov. 30, 2010) (available here). The panel opinion gets started this way:
Defendant-appellant Ivy Woolf Turk appeals the sentence imposed on her by the United States District Court for the Southern District of New York (Buchwald, J.) after she pleaded guilty to a single count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1349. The district court sentenced Woolf Turk principally to 60 months’ imprisonment and ordered her to pay $29,660,192.36 in restitution to the victims of the mortgage fraud she perpetrated.
On appeal, Woolf Turk’s main argument is that the district court, in applying the United States Sentencing Guidelines, erred in calculating the amount of loss that Woolf Turk’s fraud caused. Specifically, she argues that the loss amount should be treated as zero because, at the time her fraud was discovered, there was still market value in the real property that purportedly collateralized the loans she had fraudulently obtained, and if that property had been sold before the collapse of the housing market, her victims could have been made whole. She also argues that the district court erred in: (1) finding that there were more than 50 victims; (2) failing to conduct an individualized assessment of the factors in 18 U.S.C. § 3553(a); and (3) imposing a substantively unreasonable sentence.
For the reasons that follow, we emphatically reject Woolf Turk’s principal argument. We also find no merit in her other claims of error, and thus affirm her sentence.
"Most federal judges not comfortable with tough guidelines"
The title of this post is the headline of this article about federal child porn sentencing realities appearing in today's Pittsburgh Post-Gazzette. Here is how it gets started:
Before Richard Leo Smith III could ask for leniency for possessing child pornography, a federal judge in Pittsburgh signaled he would grant it. The judge disagrees with guidelines that recommend a minimum of more than six years in prison. "The guideline is largely the product of congressional directives," U.S. District Judge Gary Lancaster said recently, before sentencing Smith, 28, of Indiana Township to 2-1/2 years in prison.
A survey this year suggests a similar scenario plays out frequently across the country. About 70 percent of federal judges think sentencing guidelines for possession or receipt of child pornography are unreasonable. The U.S. Sentencing Commission intends to review the guidelines. The stakes could hardly be higher: years of defendants' lives vs. the safety of children.
Public defender Penn Hackney, who represented Smith, told Lancaster that uncertainty about the guidelines put him in a bind. Some federal judges limit sentences to probation in such cases; others hand out 10 years or more in prison. "This landscape is so shifting, I don't know what to ask for anymore," Hackney said.
Some related prior federal child porn prosecution and sentencing posts:
- "More federal child porn prosecutions in Texas than bank robberies, mail fraud or wire fraud"
- Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling
- "The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?"
- Major reasonableness ruling from Second Circuit in child porn downloading case
- Fascinating data on recent trends and circuit specifics for federal child porn sentences
- Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?
- "Federal judges argue for reduced sentences for child-porn convicts"
- Thorough and thoughtful district court defense of federal child porn guidelines
- "Judge Weinstein Takes On Child Pornography Laws"
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- "Disentangling Child Pornography from Child Sex Abuse"
- Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
November 29, 2010
SL&P honored again by ABA Journal's list of Blawg 100
I am once again very pleased and very honored to report that this blog has once again been selected as one of the ABA Journal's Blawg 100. I am grateful that ABAJ's annual list of the best of the blawgosphere has included this blog every year now for four years running. Here is how the ABA Journal describes my blog this year in its Criminal Justice category: "Ohio State University law professor Douglas Berman posts several times a day, keeping 'sentencing fans' updated on the latest news stories, commentary, cert grants, rulings, argument transcripts, research and scholarship on criminal penalties." That sounds about right.
Here is how the ABA Journal, which again has devoted its December cover story to the blawgosphere, describes its latest listing of top law blogs:
In our 4th annual Blawg 100, we organized a bit differently and created some new categories. Yet we know that many blogs defy categories. We have a "lighter fare" grouping, but you can find witty and funny blogs in any category. More of our readers had a hand in the selections this time around: We received more than 1,250 blawg amici, or friend-of-the-blawg, nominations; you'll see some of the testimonials on the pages that follow. This year, more bloggers embraced Twitter, though law profs are trailing the pack.
In addition to thanking the ABA Journal for giving me this honor each year, I want to again thank all the readers and commentors who always (and in various ways) help me find the energy (and often the insights) to keep this blog going. I genuinely believe I remain energized to maintain this blog largely because I so greatly enjoy the engagement, and still learn so much, from readers and commentators concerning the array of topics I discuss.
Notable FSA application letter from large number of defense counsel to USA for SDNY
As regular readers know, I have been following closely the debates over the application of the new sentencing terms of the Fair Sentencing Act to pending cases. Indeed, through this amicus letter submitted in a pending case in the Southern District of New York, I have exaplained my view that there is "strong contextual support" for application of the FSA to all pending not-yet-sentenced cases. In addition, this post of mine from a few weeks ago wondered "Why is Obama's DOJ, after urging Congress to 'completely eliminate' any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?".
Against this brackdrop, I am pleased to be able to post a letter addressed to Preet Bharara, the United States Attorney of the Southern District of New Yorkset today, which asks about local FSA policy and it signed by a large group of criminal defense attorneys representing defendants in New York. Here is a snippet:
As you're undoubtedly aware, about two weeks ago, Senators Durbin and Leahy wrote Attorney General Holder to urge him to direct federal prosecutors to take the position that the Fair Sentencing Act of 2010 (the "FSA") should be applied to not-yet-sentenced defendants (a copy of their letter is enclosed). Consistent with legislative history we have canvassed in motions submitted in cases throughout this district, the two Senators explain that Congress intended the FSA to apply to all defendants who had not yet been sentenced when the law took effect.1 Judges are already starting to apply the FSA to pending cases over the Government's objection. See, e.g., United States v. Douglas, 2010 WL 4260221 (D. Me. 2010) (Hornby, J.). Included among them is the Honorable Shira A. Scheindlin, who recently applied the FSA to the sentencing of a defendant whose conduct predated its enactment. See United States v. Jeannette Garcia, 09 Cr. 1054 (SAS).
In light of the Senators' letter and what we believe will be an increasing number of decisions applying the FSA to pending cases, we write to inquire whether you plan to adopt a policy requiring (or at least allowing) prosecutors in this district to support defense motions to apply the FSA to such cases. Not only do we believe it would be consistent with congressional intent, the goal of sentencing consistency would be furthered by a uniform policy that accords with the decision of Judge Scheindlin and other district judges. Many of us have more than one client that would be affected by a change in policy. We note that the large number of dispositions that would undoubtedly follow would provide the added benefit of conserving prosecutorial and judicial resources that could be better applied to other cases.
Some recent related posts:
- Adding my two cents concerning application of the FSA to pending cases
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- Seeking ground reports on the FSA's application to not-yet-sentenced cases
- Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
- Does Abbott provide new and added support for applying the FSA to pending cases?
- Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
Defendant's post-plea rant on Craigslist costs him sentence reduction for accepting responsibility
The Eighth Circuit has an interesting little "new-media" sentencing opinion today in US v. Wineman, No. 10-1121 (8th Cir. Nov. 29, 2010) (available here). These two paragraphs from the opinion provide some of the particulars:
Wineman emphasizes that the Craigslist rant did not deny any aspect of his role in the conspiracy, did not identify any undercover law enforcement officers or informants, and did not request any retaliation against law enforcement. He characterizes the rant merely as an expression of frustration with his physical disability and the denial of disability benefits. Notwithstanding the rant, Wineman argues that his timely guilty plea, his timely admission of all relevant conduct (including drug quantity and possession of a firearm), and his assistance in helping authorities recover methamphetamine from his residence are sufficient to merit a reduction for acceptance of responsibility.
Wineman is correct that a timely guilty plea and admission of relevant conduct “constitute significant evidence of acceptance of responsibility,” but “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.” United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (quoting U.S.S.G. § 3E1.1 cmt. n.3). “The key issue is whether the defendant has shown ‘a recognition and affirmative responsibility for the offense and sincere remorse.’” Id. In this case, we agree with the district court that the Craigslist rant is inconsistent with any acceptance of responsibility by Wineman. In the rant, Wineman places responsibility for his offense on the “addicts” who bought his product and on the unnamed officials who denied him disability benefits. Wineman’s only regret appears to be that law enforcement officers and informants had the temerity to disrupt the methamphetamine “service” he provided to his community, a service he equates to the local “gas station or grocery store.” This is far removed from “a recognition and affirmative responsibility for the offense and sincere remorse.” Nguyen, 52 F.3d at 194.
California capital case prompts notable statement supporting denial of cert
In with orders and other matters coming from SCOTUS this morning is this statementrespecting the denial of the petition for writ of certiorari in Gamache v. California, No. 10-5196, authored Justice Sonia Sotomayor and joined by Justices Ginsburg, Breyer and Kagan. As these excerpts highlight (with most cites omitted), this (unusual?) statement provides still more evidence of the extra special attention given to capital cases by at least some Justices:
After a jury convicted Richard Gamache of first-degree murder and sentenced him to death, Gamache’s counsel and the trial court learned that during deliberations, court personnel inadvertently gave the jury a videotape that had not been admitted into evidence. During its deliberations, the jury watched the video twice in full and a third time inpart before reaching its verdict. The video showed a police interview of Gamache and his codefendants on the day ofthe murder in which Gamache confessed to the crime in graphic terms....
On appeal, the California Supreme Court held that the jury’s access to the tape was indisputably error, ... [but seemed to have improperly] allocat[ed] the burden to the defendant to demonstrate prejudice.... However, it appears from the court’s recitation of the evidence and its analysis that the court found that theerror at issue was harmless, regardless of the burden allocation....
I nonetheless write respecting the denial of certiorari because the allocation of the burden of proving harmlessness can be outcome determinative in some cases. With all that is at stake in capital cases, cf. Kyles v. Whitley, 514 U. S. 419, 422 (1995) (“‘[O]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case’” (quoting Burger v. Kemp, 483 U. S. 776, 785 (1987)),in future cases the California courts should take care to ensure that their burden allocation conforms to the commands of Chapman. In this case, however, because it seems that the burden allocation would not have altered the court’s prejudice analysis, I do not disagree with the denial of certiorari.
I cannot recall many instances in which a group of Justices have signed on to a statement supporting the denial of cert except when other Justices' have dissented from a cert denial. In this (unique?) setting, it appears that the three Justices who have been most vocal in expressing concerns with death penalty adminstration, with new Justice Kagan along for the ride, were eager to remind the California Supreme Court and other lower courts that they will be continuing to "search for constitutional error with painstaking care ... in [every] capital case."
Lots of criminal justice action as SCOTUS gets back into action
This morning, the Supreme Court begins hearing arguments in its December sitting with two habeas cases Wall v. Kholi, which concerns a statute of limitations issue, and Walker v. Martin, which concerns a state procedural default issue. These cases serve as a kind of prelude to these two big sentencing-related cases to be heard later in the sitting:
- On Tuesday, November 30, the Justices will hear the California prison overcrowding case Schwarzenegger v. Plata (SCOTUSblog review here). Here is a local press report about the case via the Mercury News. How Appealing also has links here to other Plata preview pieces.
- On Monday, December 6, the Justices will hear the federal resentencing case Pepper v. United States (SCOTUSblog review here). Here is a local press report about the case via the Des Moines Register.
Both Pepper and Plata have the potential to be blockbuster rulings. But in part because the defendants seem to have a good shot at victory in both cases, I will not be at all surprised if we get relatively "minimalist" rulings in Pepper and Plata.
"States ask Texas to supply ingredient for executions"
The title of this post is the headline of this article in today's USA Today. Here are excerpts:
As the supply of a key drug used in lethal injections dwindles, state officials are knocking on the door of the busiest execution chamber in the country for help.
Some states that have the death penalty have asked Texas for doses of sodium thiopental, the so-called knockout drug, used as part of the three-drug cocktail in executions by lethal injection, accordingto Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice. She would not identify the states that requested assistance.
The state has declined to make its supply available even though all of its 39 available doses are set to expire in March and there are only three executions scheduled in the state before then, Lyons said.
States — including Arizona, Oklahoma, Ohio, Tennessee and Kentucky — have scrambled to acquire the drug. Sodium thiopental renders the condemned inmate unconscious, so the prisoner does not feel pain. Hospira, the lone federally approved producer of the drug, has said new batches of the substance would not be available until next year.
Lyons said that despite the looming expiration of Texas' extra inventory, "we do not have plans to distribute the drug to other states. We have a responsibility to ensure we have an adequate supply of the drug on hand to carry out any executions scheduled in the state of Texas," Lyons said.
States with shortages are trying to find suppliers abroad or proposing radical changes in their execution protocols to deal with the lack of drugs.
- In Oklahoma last week, a federal judge approved the use of pentobarbital, a drug used in euthanizing animals, to replace sodium thiopental in lethal injections. Oklahoma Assistant Attorney General Stephen Krise said the state was "forced" to find an alternative when sodium thiopental became "unavailable."
- In Arizona last month, the U.S. Supreme Court allowed the execution of convicted murderer Jeffrey Landrigan after his attorneys challenged the state's acquisition of sodium thiopental from an undisclosed supplier in Britain.
- In Kentucky in August, Gov. Steve Beshear, a Democrat, postponed the signing of two death warrants because of the shortage of sodium thiopental. "The (state's) repeated attempts to obtain additional thiopental have so far been unsuccessful," Beshear said in written statement.
November 28, 2010
Justice John Paul Stevens continues his campaign against the modern death penalty
As detailed in this New York Times article, which is headlined "Ex-Justice Criticizes Death Penalty," the most recently retired Supreme Court Justice is continuing to assail the modern administration of the death penalty in the United States. Here is how the Times piece begins:
In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”
In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional. But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.
In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.
The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.
In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches. He will be on “60 Minutes” on Sunday night.
Retired Justice John Paul Stevens's piece in the New York Review of Books is a review of David Garland's book "Peculiar Institution: America's Death Penalty in an Age of Abolition." It is now available at this link, and here are a few paragraphs from the start of the lengthy review:
David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.” Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences....
[D]espite its ostensible amorality, his work makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.
His explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York. Some of his eminently readable prose reminds me of Alexis de Tocqueville’s nineteenth-century narrative about his visit to America; it has the objective, thought-provoking quality of an astute observer rather than that of an interested participant in American politics.
UPDATE: The 60 Minutes segment with JPS is now available at this link.
Editorial urges crack/powder parity even after FSA
Because I fear that the push for crack sentencing reforms will lose steam now that the Fair Sentencing Act became law, I was pleased to see this new editorial in the Grand Rapids Press headlined "Goverment should treat crack, powder cocaine offenders the same." Here are excerpts:
The same drug crime is being committed whether a person snorts powder cocaine in the suburbs or smokes crack cocaine in the ’hood.
One form of cocaine should not be sentenced harsher than another. A federal law took effect this month that finally eliminates much of the disparity in prison sentences that’s resulted in blacks disproportionately doing harder time.
Punishment for breaking the law should be tough but fair. The new guidelines are a strong step in the right direction — but “fairer” isn’t the same as “fair.” Congress should seek parity.
Crack is the cheaper form of cocaine, and it is used predominantly by low-income people in urban areas. Blacks represent roughly 80 percent of those sentenced to longer prison terms for crack cocaine crimes....
Last year, Lanny Breuer, assistant Attorney General for the Criminal Division of the Justice Department, testified before a Senate Committee that “we cannot ignore the mounting evidence that the current cocaine sentencing disparity is difficult to justify based on the facts and science, including evidence that crack is not an inherently more addictive substance than powder cocaine.”...
Everyone wants to keep communities safe and see the devastating impact illegal drugs have on families and communities decline. But laws must be smart, tough and fair. Just as federal officials said there was no definitive evidence behind the rationale for the adoption of the 100-to-1 ratio, there is none for 18-to-1. Congress should enact 1-to-1 parity.
Public trust and confidence are vital to an effective criminal justice system.
"More federal child porn prosecutions in Texas than bank robberies, mail fraud or wire fraud"
The title of this post is from this post at the always terrific "Grits for Breakfast." The Grits post spotlights this effective Dallas Morning News article, headlined "Texas inmate is part of growing child porn trend that has ruined lives," about a particular downloader of kiddie porn who received only a two-year federal prison term even though "typically, people who view child porn get more prison time than people who sexually abuse children." Here is more from the newspaper piece:
Child porn possession has been a federal crime since 1990. In the last decade, federal prosecutions more than doubled in Texas and nationwide. In Texas, the cases have grown faster than nearly any category of federal offense, according to Syracuse University's TRAC database. Since October 2007, more child porn cases have been filed in Texas than old-school federal prosecutions for bank robbery or bank fraud, mail fraud or wire fraud.
The cases often involve seemingly ordinary people with stable jobs and families. The nearly 1,000 Texans prosecuted since 2000 include band instructors and businessmen, physicians and pastors and prison guards, restaurant managers and retirees....
Researchers say understanding of offenders is in its infancy. There's little data to differentiate passive voyeurs from active predators, and no definitive way to assess future risks for offenders.... "Some people who don't necessarily want to get involved with kids do get hooked," said psychiatrist Fred Berlin, founder of Johns Hopkins University's sexual disorders clinic.
He and other experts say many offenders don't know how to stop. And the public remains largely unaware that, typically, people who view child porn get more prison time than people who sexually abuse children.
In the last decade, according to a federal public defender's 2009 analysis, the mean federal child porn sentence increased by nearly six years in the decade ending in 2007 to more than 7 ½ years in prison.
Some experts note that those increases came without any scientific data or rationale. Most offenders ... have no prior records –- let alone sex offenses.
The piece also has this notable chart spotlighing the significant the growth in federal child porn prosecutions both nationally and in Texas in recent years.