January 1, 2011
Laments about judicial vacancies and federal criminal justice stats in Chief's year-end report
As detailed in this New York Times piece, "Chief Justice John G. Roberts Jr. called on President Obama and the Senate on Friday to solve what he called 'the persistent problem of judicial vacancies.'" Here's more:
The plea, in the chief justice’s annual year-end report on the federal judiciary, was an echo of one from his predecessor, Chief Justice William H. Rehnquist, who made front-page news on New Year’s Day in 1998 by criticizing the Senate for failing to move more quickly on President Bill Clinton’s judicial nominees.
Both chief justices were appointed by Republican presidents, and both said that their interest was not in particular appointees but in a judiciary functioning at something like full strength.
“We do not comment on the merits of individual nominees,” Chief Justice Roberts wrote on Friday. “That is as it should be. The judiciary must respect the constitutional prerogatives of the president and Congress in the same way that the judiciary expects respect for its constitutional role.”
But he identified what he called a systemic problem. “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes,” he said. The upshot, he said, was “acute difficulties for some judicial districts.”
The full text of the "2010 Year-End Report on the Federal Judiciary" is available at this link, and it includes an Appendix with these notable federal criminal justice statistics:
Criminal case filings (including transfers) rose 2% to 78,428, and the number of defendants in those cases also grew 2% to reach an all-time high of 100,366. Immigration offenses accounted for much of the criminal caseload as filings of immigration cases increased 9% to 28,046 and the number of defendants in those cases increased 8% to 29,149. The majority of immigration cases — 73% — were filed in the five southwestern border districts. Most of the immigration cases — 83% — involved charges of improper reentry by aliens....
On September 30, 2010, the number of persons under post-conviction supervision was 127,324, an increase of 2.5% over the total one year earlier. The number of persons serving terms of supervised release after leaving correctional institutions rose more than 3% and accounted for 81% of all persons under supervision. Cases opened in the pretrial services system this year, including pretrial diversion cases, grew nearly 6% to 111,507.
December 31, 2010
Top 10 sentencing stories of 2010
Without too much reflection or enough sustained thought, I offer below my quick take on the Top 10 sentencing stories of 2010. I urge readers to question my choices (or to ask for clarifications for why some of these items make the list and why others were left off):
10. Congress's near-miss failure to pass the National Criminal Justice Commission Act of 2010
9. California's near-miss failure to legalize marijuana
8. US Sentencing Commission gets new members and a new chair after lots of notable guideline amendments all while the Booker federal sentencing system soldiers on
7. Republican take over of the US House of Representatives and many state governorship along with the emergence of a Right on Crime movement
6. The continued stable(?) state use of the death penalty with 9 or 10 death sentences and 4 to 5 executions per month nationwide all while lethal injection litigation soldiers on
5. SCOTUS transition with Justices Stevens being replaced by Justice Kagan
4. The leveling off of prison growth in the states with many looking to reduce prison populations mostly for budgetary reasons
3. The Supreme Court's landmark Sixth Amendment ruling in Padilla v. Kentucky
2. Congress's passage of the Fair Sentencing Act of 2010
1. The Supreme Court's landmark Eighth Amendment ruling in Graham v. Florida
Washington Post rightly assials "Mr. Obama's lackluster pardons"
Today's editorial page of the Washington Post includes this fitting attack on President Obama's pitiful clemency record. Here are excerpts:
[There were] nine people pardoned by President Obama this month. The pardoned offenses ranged from illegal possession of government property to felony liquor law violations to conspiracy to distribute cocaine. Six of the pardons were for offenses so minor that they did not warrant time behind bars; six offenses were committed three decades ago, according to Pardon Power, a Web site that follows pardon and clemency issues. In short, many who were pardoned are older and have lived productive lives relatively unhampered by their minor infractions.
We do not begrudge [these nine] their pardons. But we had hoped that Mr. Obama would reverse the regrettable trend of using this profound power so timidly.
Pardons are meant to correct mistakes left unaddressed by the legislative and judicial branches. They offer a second chance to those who have been wrongly convicted or disproportionately punished. They provide an opportunity to bestow real justice that could significantly alter someone's life for the better.
Mr. Obama did not have far to look to find suitable subjects. Thousands of people — most of them young, African American men — are serving inordinately long sentences for crack cocaine offenses. Mr. Obama earlier this year signed into law a bill that significantly reduces sentences for future crack offenses. Is the president not troubled that there are so many who continue to serve lengthy mandatory sentences under the old, draconian scheme?
Mr. Obama's skimpy use of the pardon follows President George W. Bush's eight years of neglect. Mr. Bush pardoned 189 individuals and commuted the sentences of 11 others — the stingiest record of any two-term president since World War II. Without a serious course adjustment, Mr. Obama is on track to underperform Mr. Bush. It is not a record to be proud of.
Illinois state prosecutors lobbying to preserve state's death penalty
As detailed in this local Illinois piece, "Tazewell County State’s Attorney Stewart Umholtz and Peoria County State’s Attorney Kevin Lyons are asking residents in their counties to call local legislators and 'tell them to not support this politically motivated effort to circumvent the will of the people.'" Here's more:
“As State’s Attorneys, we have a special duty to seek justice,” the letter stated. “Regardless of personal feelings about whether or not the death penalty is good or bad, the political efforts currently being used to abolish the state’s ultimate punishment are, without question, offensive to justice. This is a last second effort to cram an extremely sensitive issue through a tiny political hole without public input.”...
Umholtz and Lyons said that proponents claim that natural life without parole is an adequate punishment, “Yet they work to pass legislation allowing compassionate release parole to inmates, including murderers, even those given life sentences. Proponents falsely claim substantial savings will occur in abolishing the death penalty by reducing the cost for appeals, apparently believing that criminals facing a life behind bars won’t challenge their convictions.”
December 30, 2010
"Kidney parole condition raises ethical questions"
The title of this post is the (slightly erroneous) headline of this AP article discussing the most notable feature of Mississippi Gov. Haley Barbour's decision yesterday (first discussed here) to condition a prisoner's release on "her donating one of her kidneys to her sister, a procedure which should be scheduled with urgency." Here are excerpts from the AP report:
A debate is unfolding over an unusual offer from Mississippi's governor: He will free two sisters imprisoned for an armed robbery that netted $11, but one woman's release requires her to donate her kidney to the other.
The condition is alarming some experts, who have raised legal and ethical questions. Among them: If it turns out the sisters aren't a good tissue match, does that mean the healthy one goes back to jail?
Gov. Haley Barbour's decision to suspend the life sentences of Jamie and Gladys Scott was applauded by civil rights organizations and the women's attorney, who have long said the sentences were too harsh for the crime. The sisters are black, and their case has been a cause celebre in the state's African-American community.
The Scotts were convicted in 1994 of leading two men into an ambush in central Mississippi the year before. Three teenagers hit each man in the head with a shotgun and took their wallets — making off with only $11, court records said.
After 16 years in prison, Jamie Scott, 36, is on daily dialysis, which officials say costs the state about $200,000 a year. Barbour agreed to release her because of her medical condition, but 38-year-old Gladys Scott's release order says one of the conditions she must meet is to donate the kidney within one year.
The idea to donate the kidney was Gladys Scott's and she volunteered to do it in her petition for early release. National NAACP President and CEO Benjamin Todd Jealous thanked Barbour on Thursday after meeting him at the state capital in Jackson, calling his decision "a shining example" of the way a governor should use the power of clemency.
Others aren't so sure. Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania, has studied transplants and their legal and ethical ramifications for about 25 years. He said he's never heard of anything like this.
Even though Gladys Scott proposed the idea in her petition for an early release and volunteered to donate the organ, Caplan said, it is against the law to buy and sell organs or to force people to give one up. "When you volunteer to give a kidney, you're usually free and clear to change your mind right up to the last minute," he said. "When you put a condition on it that you could go back to prison, that's a pretty powerful incentive."...
Legally, there should be no problems since Gladys Scott volunteered to donate the kidney, said George Cochran, a professor at the University of Mississippi School of Law who specializes in constitutional matters. "You have a constitutional right to body integrity, but when you consent (to donate an organ) you waive that" right, he said....
Putting conditions on parole, however, is a long-standing practice. And governors granting clemency have sometimes imposed unusual ones, such as requiring people whose sentences are reduced to move elsewhere.
In 1986, South Dakota Gov. Bill Janklow commuted the sentences of 36 criminals, but only on the condition that they leave his state and never come back. In Florida, the governor and members of his cabinet voted in 1994 to reduce a convicted killer's sentence as long as he agreed to live in Maryland.
Recent related post:
Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)
The Fourth Circuit has added a final bit of Second Amendment fireworks to close out 2010 through a long decision today in US v. Chester, No. 09-4084 (4th Cir. Dec. 30, 2010) (available here). Here is how the majority opinion by Chief Judge Traxler starts and ends in Chester:
The sole issue presented in this appeal is whether William Samuel Chester’s conviction for illegal possession of a firearm under 18 U.S.C. § 922(g)(9) abridges his right to keep and bear arms under the Second Amendment in light of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We vacate the decision below and remand for further proceedings....
We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond. Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.
Here is how Judge Davis starts and ends a quite lengthy concurrence:
In light of the highly persuasive decision of the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc), pet. for cert. pending, sustaining the constitutionality of 18 U.S.C. § 922(g)(9), the district court should have no difficulty in concluding that the application of § 922(g)(9) to offenders such as Chester passes Second Amendment scrutiny, exactly as district courts have already concluded. See United States v. Smith, 2010 WL 3743842 (S.D.W. Va. Sept. 20, 2010) (applying Skoien and sustaining statute); United States v. Staten, 2010 WL 3476110 (S.D.W. Va. Sept. 2, 2010) (same)....
I can foresee no difficulty for the district court in sustaining the constitutional validity of the application of § 922(g)(9) in this case. Nevertheless, under the circumstances of the law’s understandably slow evolutionary course of development, I am content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.
A few related Second Amendment posts:
- Can dismissed domestic violence complaint justify revoking gun permit?
- Split en banc Seventh Circuit in Skoienupholds categorical exclusion of DV misdemeanant from Second Amendment
- Notable press account of Skoein Second Amendment ruling with partisan perspectives
- Skoien and the many challenges of Second Amendment jurisprudence
- Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- Assailing the unjustified Second Amendment limits in Heller
- "The Standardless Second Amendment"
UPDATE: Eugene Volokh has this effective new post discussing the Chester opinion, which has prompted an interesting comment dialogue about whether and how often minor matters get turned into domestic violence misdemeanor. And, like the thoughtful comments below, folks at Volokh are discussing whether William Samuel Chester’s makes an effective poster-child for Second Amendment rights.
Pennsylvania Governor Ed Rendell not a wuss when it comes to clemency for lifers
Though Pennsylvania's outgoing Governor Ed Rendell has been in the news of late primarily because of this notable commentary concerning the NFL's decision to postpone the Eagles game due to Sunday's snowfall:
"My biggest beef is that this is part of what's happened in this country," Rendell said in an interview on 97.5 radio in Philly. "I think we've become wussies. ... We've become a nation of wusses. The Chinese are kicking our butt in everything. If this was in China do you think the Chinese would have called off the game? People would have been marching down to the stadium, they would have walked and they would have been doing calculus on the way down."
Though I do not want to get too deep into a wussies debate, I do think the term wuss also serves as a fitting pejorative for chief executives who have been afraid to exercise their clemency powers. Consequently, I was pleased to see this new local story concerning the Governor, which is headlined "Rendell to commute life sentences for three." Here are the details:
Gov. Rendell is scheduled Thursday to commute the life sentences of three men convicted of slayings during the 1970s in Philadelphia, his spokesman said Wednesday night.
Tyrone A. Werts, William Fultz, and Kevin O. Smith will be released from prison into halfway houses after Rendell signs the orders, said spokesman Gary Tuma. Rendell, who is leaving office next month, previously commuted the life sentences of two men, Michael Anderson and George Orlowski.
The three new cases received 4-0 votes for recommendation by the Pennsylvania Board of Pardons on Dec. 14. Attorney General Tom Corbett, a board member who is now governor-elect, was absent.
Tuma said Rendell decided in favor of clemency because none of the candidates did the actual killing, they already had served many years in prison, and they were hailed by advocates as changed men and ideal cases for clemency. Once released, the men must maintain clean records or their commutations will be revoked, Tuma said.
Only six lifers have been recommended for commutation since a 1997 constitutional amendment went into effect that required a unanimous vote from the Pardons Board. Gov. Mark S. Schweiker approved one in 2002 as he was leaving office.
Werts, now 60, was convicted in 1975 for a murder of a man at a speakeasy. He was 24 when he served as the getaway driver in a robbery of a speakeasy that left William Bridgeman, 26, dead. As an inmate at Graterford Prison, he has earned a bachelor's degree and served as president of Lifers Inc., said William M. DiMascio, executive director of the Pennsylvania Prison Society....
DiMascio said that the power to grant clemency was put in the state constitution so that it would be used. "To show mercy is not a sign of weakness, it's a sign that the system works," he said.
Kudos to Governor Rendell for being willing to approve these lifers' grants of clemency. As for what the Chinese would have done in this situation, ... well ... perhaps it is better not to go there.
Ohio Supreme Court decides Ice did not freeze out part of its prior Blakely ruling
Yesterday, the Ohio Supreme Court issued an interesting decision that had the Ohio Justices debating a post-Blakely sentencing issue that would make a great paper topic in an advanced con law seminar. The start of the majority opinion in State v. Hodge, No. 2010-Ohio-6320 (Dec. 29, 2010) (available here), sets up the basic story:
In State v. Foster, 109 Ohio St.3d 1, this court held some sections and provisions of Ohio’s sentencing statutes unconstitutional based on the decisions of the United States Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, and Apprendi v. New Jersey (2000), 530 U.S. 466.
Among the provisions held unconstitutional in Foster were those requiring a trial judge to make certain findings prior to imposing consecutive sentences, R.C. 2929.14(E)(4), and creating presumptively concurrent terms, R.C. 2929.41(A). To remedy this constitutional defect, these provisions were severed from the remaining, valid portions of the statutory sentencing framework. After the decision in Foster, trial judges who imposed consecutive sentences did not need to apply the provisions severed by Foster but instead were to apply the law that was displaced by the enactment of the severed provisions. The trial court in this case, as allowed by our decision in Foster, imposed consecutive sentences without making factual findings under R.C. 2929.14(E)(4) or presuming that sentences were to run concurrently under R.C. 2929.41(A).
Subsequent to Foster, the United States Supreme Court, in Oregon v. Ice (2009), 129 S.Ct. 711, upheld the constitutional validity of an Oregon statute similar to Ohio’s pre-Foster sentencing statutes that requires Oregon’s trial judges to make factual findings prior to imposing consecutive sentences.
The defendant in the case now before us asks us to hold that Oregon v. Ice reinstated or revived the Ohio statutory provisions pertaining to consecutive sentences that were held unconstitutional in Foster. He also argues that certain defendants who were sentenced to consecutive terms after Foster must be resentenced pursuant to the provisions that were invalidated in Foster.
For the reasons that follow, we determine in the circumstances present here that Ice does not revive the disputed statutory provisions and that defendants who were sentenced by trial judges who did not apply those provisions are not entitled to resentencing. We accordingly affirm the judgment of the court of appeals.
Although we affirm the judgment below, we acknowledge that given the holding and reasoning of the United States Supreme Court in Ice, the General Assembly is no longer constrained by Foster’s holdings regarding the constitutionality of the consecutive-sentencing provisions invalidated in Foster, and may, if it chooses to do so, respond with enactment of a statutory provision in light of Ice’s holding.
The start of a dissent by Chief Justice Brown highlights the interesting constitutional issues that flow into this issue:
I agree with the majority that Oregon v. Ice (2009), 129 S.Ct. 711, does not overrule this court’s decision in State v. Foster, 109 Ohio St.3d 1, regarding Ohio’s consecutive-sentencing statutes, and that the issuance of Ice does not automatically revive or reinstate the consecutive-sentencing statutory provisions held unconstitutional in Foster. But Ice does demonstrate that the analysis used by this court in Foster regarding judicial fact-finding and consecutive sentences was incorrect. The majority all but concedes that it erred in holding in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences. Majority Opinion at ¶ 10. Despite this court’s error in Foster, however reasonable it may have been at the time it was issued, the majority essentially refuses to correct this error because it believes it is too inconvenient to do so. In so holding, the majority violates the fundamental principle of separation of powers and ignores the intent of the General Assembly. Therefore, I dissent.
Lots of (constitutional?) issues surrounding high-profile clemency grant in Mississippi
A helpful reader altered me to this effective Washington Post article noting all the intriguing stories surrounding a decision by Mississippi Governor Haley Barbour to grant clemency to two imprisoned sisters. Here are the basics:
Mississippi Gov. Haley Barbour (R) announced late Wednesday that he will grant an early release from prison to two sisters serving unusually long sentences for armed robbery.
Gladys and Jamie Scott have each served 16 years of a life sentence. Their case had become a cause celebre among civil rights groups, including the NAACP, which mounted a national campaign to free the women.
The Scotts were convicted in 1994 for an armed robbery in which they led two men into an ambush. The men were robbed of $11, and their supporters contend that the Scotts, who are black, received extraordinary punishment for the crime.
Barbour said he decided to suspend the sentences in light of the poor health of 38-year-old Jamie Scott, who requires regular dialysis. The governor asserted that 36-year-old Gladys Scott's release is contingent on her giving a kidney to her inmate sibling.
"The Mississippi Department of Corrections believes the sisters no longer pose a threat to society," Barbour said in a statement. "Their incarceration is no longer necessary for public safety or rehabilitation, and Jamie Scott's medical condition creates a substantial cost to the State of Mississippi."
NAACP President Benjamin Jealous will meet with Barbour on Thursday, and the two men have scheduled a joint news conference. "This is a shining example of how governors should use their commutation powers," Jealous said in an interview, praising Barbour's decision.
Jealous and the Mississippi NAACP had been working for much of the year to win the release of the Scotts, who would have come up for parole in 2014. NAACP members received e-mails asking them to sign a petition, and the association has pushed for news coverage of the case.
Barbour, who is weighing a run for president, announced his decision a week after he ran afoul of civil rights advocates. Last week, Barbour backtracked on comments he made about the civil rights era in Mississippi.
The governor, who came of age during the civil rights movement, told the Weekly Standard that he didn't remember the time "being that bad," and he spoke benignly of the white Citizens Council in his home town. The councils enforced segregationist policies. Barbour condemned such groups and policies in a later statement.
An official statement from Gov. Barbour can be found here. It expressly states "Gladys Scott's release is conditioned on her donating one of her kidneys to her sister, a procedure which should be scheduled with urgency."
Though clemency decisions are rarely ever subject to court scrutiny, the Supreme Court has indicated that they are subject to some constitutional limits. Requiring someone to donate a body part as a condition of a sentence commutation might get close to the constitutional line. (On that front, consider this new Gawker story, which is headlined "Mississippi Officially Begins Harvesting Organs of Prisoners.")
In addition, the 14th Amendment would arguably prohibit a clemency decision made solely on account of race, although Barbour's explanation for the grant would seem to undermine any assertion that his decision was made purely on racial grounds. And the notion of releasing a sick prisoner to enable a state to avoid having to cover her medical costs (or to help a potential political candidacy), though perhaps a bit unseemly, does not obviously create any constitutional concerns.
December 29, 2010
Any thoughts on top sentencing stories for 2010 ... and 2011?
If time, energy and family allow, I will likely do a post in the next few days in which I review my top 10 sentencing stories for 2010. A couple of the top 10 entries are pretty obvious, such as the passage of the Fair Sentencing Act by Congress and the Supreme Court's Eighth Amendment ruling in Graham v. Florida. But there are lots of other top possibilities, ranging from the near-miss pot legalization ballot initiative in California to the news of reductions in state prison populations to the emergence of Right on Crime.
As I look back and reflect on my own top 10 for 2010, I encourage readers to do the same and also to share their thoughts via the comments to this post. Relatedly, as the headline of this post hints, I am already starting to look ahead to what may be brewing as top stories for next year. Though I doubt I will make any crazy bold predictions about sentencing developments in 2011, readers are certainly encouraged to channel their inner Jeane Dixon to make forecasts in the comments.
"F-Word in Court Equals Six-Month Prison Term"
The title of this post come from the delicate headline of this entry at the WSJ Law Blog, which effectively reviews a recent little ruling from the DC Circuit. Here are the basics (with decorum preserved by the WSJ editors):
When does brusque behavior in court cross the line into criminal contempt? It was an issue explored yesterday in this D.C. Circuit Court of Appeals ruling, which either strikes a note for court decorum or hampers free speech, depending on your perspective.
At issue in the case is none other than the F-bomb. At a criminal sentencing hearing last year, a defendant (who was not identified in the opinion) evidently was displeased about the sentence he received, exclaiming in court: “F*** y’all.”
The trial judge immediately found the defendant guilty of contempt for “uttering a profanity at me in my presence, in my sight, and in a calculated way.” He handed down a one-year prison sentence for contempt, on top of the other sentences he had imposed for the defendant’s underlying criminal offenses.
The defendant appealed the contempt sentence, claiming he did not obstruct justice, since he uttered the colorful turn of phrase after the hearing had already concluded. But the D.C. Circuit held that verbal fireworks alone, even absent the “material” disruption of ongoing court proceedings, is enough to qualify for contempt. “An outburst of foul language directed at the court is intolerable misbehavior,” D.C. Circuit Judge Karen LeCraft Henderson wrote for the majority....
But the defendant won one concession: the D.C. Circuit reduced his contempt sentence to 6 months, on the grounds that a court can not not impose a sentence longer than that without a jury trial.
Because the blogosphere has a decorum standard much different than the courtroom, I am amused and a bit annoyed that the WSJ Law Blog was unwilling to spell out the work fuck in its report here. As the prior sentence reveals, however, I am not a big believer in word taboos. Sticks and stones and all that...
If I did not have a lot of exams to grad and other responsibilities, I would be tempted to use this new DC Circuit ruling as an excuse to start a new (sure to be popular) blog on Seven Dirty Words Sentencing Jurisprudence. (One of my Ohio State colleagues already has written a great article and a great book on fuck jurisprudence, which now may need to be updated.) Perhaps the spirits of Lenny Bruce and George Carlin will inspire someone to find out if any other infamous dirty words — which are shit, piss, cunt, cocksucker, motherfucker and tits, along with honorable metions ass and ball — have led to prison terms if/when a person has the temerity to utter one of them in a courtroom.
Personally, I am not nearly as troubled by the use of a naughty word in the courtroom as I am by the fact that my federal tax dollars are now going to be spent housing a guy for another six months simply because he said fuck in a courtroom. But I may be full of shit and commentors should feel free to tell me to piss off in the comments.
Might California have an ideal(?) dysfunctional(?) capital punishment scheme?
The many question marks in the title of this post is prompted by recent news of record low murder rates in Los Angeles (discussed here), together with this new piece in the Los Angeles Times headlined "California sentences more prisoners to die while executing none." Here are excerpts from this news report:
California continued to buck a nationwide trend away from costly and litigious death sentences in 2010, adding 28 new prisoners to the country's most populous death row, according to correction officials and a national database on capital punishment. Los Angeles County alone condemned eight defendants to death this year, the same number as Texas, and Riverside County sent six men to await execution, officials said.
The state's death chamber was idle for a fifth year, though, because of protracted legal challenges of lethal injection practices and a nationwide shortage of the key drug used in the three-injection procedure. Whether executions will resume in 2011 could be decided early in the new year, when a federal judge is expected to decide if the state's newly revised lethal injection procedures conform with a constitutional ban on cruel and unusual punishment.
But with 717 condemned inmates on California's death row, the legal tug-of-war over capital punishment is expected to intensify, experts say, especially with incoming Gov. Jerry Brown and Atty. Gen.-elect Kamala Harris known to personally oppose executions on moral grounds. Both politicians, however, have said they will uphold death sentences in their new jobs....
Still, in California, capital punishment enjoys majority support in public opinion polls, though its backing is down from 78% two decades ago to about 66% now. Nationally, an October Gallup poll recorded 64% of those surveyed in favor of the death penalty.
"What could be operating here is that the death penalty is not seen as real in California, as there hasn't been an execution in almost five years," said Richard Dieter, executive director of the Death Penalty Information Center. "In jurors' minds, they can vote for a death sentence without the worry that 10 years later some new evidence [of innocence] might emerge. In California, that inmate is not going to be executed in that time and probably is never going to be executed."
Death sentences have dropped markedly in other areas of the country, especially in smaller cities and counties that can't afford the legal costs of defending the verdicts through years of appeal, Dieter said.
Riverside County Dist. Atty. Rod Pacheco, a supporter of capital punishment, said cost shouldn't be a consideration, that district attorneys are "in the job of making sure justice gets done." His prosecutors pursue a death penalty when the circumstances of the crime warrant it, he said, calling the penalty not only morally justified but also necessary as a deterrent and a means of dealing with criminals "so unbelievably dangerous that they cannot even live in our society in a correctional facility."
The office of Los Angeles County Dist. Atty. Steve Cooley, who lost a close race for state attorney general to Harris, "is complying with established law when it fulfills its duty to seek the penalty in appropriate cases," said spokeswoman Sandi Gibbons. She said the office reviewed nearly 1,500 cases in the last decade in which the defendants were eligible for the death penalty because of aggravated circumstances and sought it in 113 instances, or fewer than 10% of cases where it could have been applied.
California has executed 13 inmates since capital punishment was restored in 1976, two in San Quentin State Prison's gas chamber and 11 by lethal injection. The last execution was in January 2006.
December 28, 2010
First Circuit discusses (and sort-of dodges) post-Booker ex post facto issue
Today through a notable opinion in US v. Rodriguez, No. 09-1429 (1st Cir. Dec. 28, 2010) (available here), a First Circuit panel thoughtfully discusses and then kind-of dodges the (circuit-splitting) issue of whether the Ex Post Facto clause limits application of the latest version of the federal sentencing guidelines in a post-Booker advisory sentencing world. Here are snippets of the Rodriguez opinion:
Congress tells them to use the Guidelines in force at the time of sentencing. See 18 U.S.C. § 3553(a)(4)(A). But if doing that would infract the Constitution's ex post facto clause, the Commission directs them to use the edition in effect on the day the defendant committed the crime. See USSG § 1B1.11(b)(1) (policy statement). We too tell judges to use the old version if the new one raises ex post facto concerns. Reduced to essentials, our set protocol runs this way: "[W]e ordinarily employ the [G]uidelines in effect at sentencing only where they are as lenient as those in effect at the time of the offense; when the [G]uidelines have been made more severe in the interim, the version in effect at the time of the crime is normally used . . . ." United States v. Maldonado, 242 F.3d 1, 5 (1st Cir. 2001)...; Created in a commonsense way, this firm practice has shaped the contours of our caselaw pre- and post-Booker, helping judges "avoid any hint of ex post facto increase in penalty." See Maldonado, 242 F.3d at 5. And avoiding even the slightest suggestion of an ex post facto problem in these circumstances makes eminently good sense regardless of whether the practice stems from a constitutional imperative.
But that does not mean that judges who start with old Guidelines cannot consult new ones in choosing suitable sentences. Quite the contrary. Exercising their Booker discretion, judges mulling over the multiple criteria in § 3553(a) can turn to post-offense Guidelines revisions to help select reasonable sentences that (among other things) capture the seriousness of the crimes and impose the right level of deterrence. See United States v. Gilmore, 599 F.3d 160, 166 (2d Cir. 2010) (holding that consulting later-amended Guidelines like this raises no ex post facto concerns).
We come full circle. Because we need not rest our commonsense protocol on a constitutional command -- a holding that squares with the general principle of steering clear of unnecessary constitutional decisions -- we do not have to take sides in the inter-circuit conflict highlighted above. And now we turn to Rodriguez's case
A few related posts on post-Booker ex post issues:
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
- DC Circuit produces crisp split on ex post issues after Booker (finally!!)
- Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines
- A notable district court opinion on the post-Booker ex post facto issue
- Sixth Circuit (sort of?) addresses post-Booker ex post facto issue
- Second Circuit weighs in thoughtfully on post-Booker ex post facto issues
Interesting review of judicial imposition and review of death recommendations in Florida
A helpful reader alerted me to this interesting article from a local Florida paper discussing the imposition and review of death sentences in the Sunshine State. The piece it headlined "Judge faced with difficult decision; A jury recommended death for Emilia Carr, but the vote's slim margin could make a difference on appeal," and here are excerpts:
Earlier this month, by a 7-5 vote, a jury recommended that Emilia Carr be sentenced to death. If Circuit Judge Willard Pope follows that recommendation, statistics suggest the narrow vote would help Carr persuade the Florida Supreme Court to reduce her sentence to life in prison.
Between 1972 and Dec. 31, 2000, there were 112 Florida death penalty cases in which juries voted 12-0 to recommend death. The state's high court affirmed the sentences 64 percent of the time.
During the same time period there were 117 death penalty cases in which the jury recommendation for death was 7-5. The Florida Supreme Court affirmed 47 percent of them. The percentage of affirmed death penalties gradually increased with each additional vote (8-4, 9-3 and so on) in favor of death.
“There is an inverse correlation: the more votes for death, the lower the chance it [the death sentence] is going to be reversed by the state Supreme Court,” said Michael L. Radelet, who provided the statistics. He's a criminologist at the University of Colorado at Boulder who monitors Florida death penalty cases.
Carr's court-appointed defense attorney plans to note this trend during her pre-sentencing pleas to the judge. “It's not a 6-6, but it's pretty close, so we [plan to] persuade the court that one vote should not weigh so significantly with him,” Candace Hawthorne said after the jury returned its recommendation.
By law, Pope must give the jury's recommendation “great weight.” But he is not bound by it, and Radelet's research has turned up several cases of Florida judges imposing life sentences despite death recommendations....
Florida is one of only two states among the 35 that impose the death penalty in which jury unanimity on sentencing is not required. While uncommon, trial judges' “overrides” of a jury's recommendation — either sentencing a defendant to death over a life recommendation or vice versa — are not unheard of.
Radelet has identified 36 cases in Florida between 1992 and Dec. 16, 2010 in which a trial judge overrode a jury's death recommendation and instead imposed life in prison. He said the overrides were directly correlated to the number of votes favoring death.
In other words: The death-to-life overrides occurred most frequently (13 times) in cases where a jury had recommended death 7-5. In only two cases were death-to-life overrides issued when the jury recommendation for death was a unanimous 12-0....
According to Radelet's research, the most common reasons for the death-to-life judicial overrides included mental illness of the defendant; questions about premeditation; proportionality of the death sentence; and evidence of an abusive childhood.
Notable Fifth Circuit ruling about review of guideline calculation errors
I have been remiss in not spotlighting a recent and throughtful panel ruling from the Fifth Circuit about the review of guideline calculation errors for harmlessness. The opinion was handed down last week in US v. Ibarra-Luna, No. 09-40768 (5th Cir. Dec. 22, 2010) (available here), and here is how it begins:
In United States v. Morales-Sanchez, we held that a district court must always “correctly calculat[e] the applicable Guidelines range” before imposing a sentence. Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless. We hold that under the discretionary sentencing regime of Booker and progeny, the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing. On the facts before us, we conclude that this high hurdle has not been cleared and remand for resentencing.
Obama praises giving Michael Vick a second chance (while failing himself to help the less prominent)
As reported in this new piece in the Washington Post, President Obama this week apparently has spoken out in support of one of the nation's most prominent felons (who is already having an especially successful experience with reentry):
On Monday, the buzz was about how the president had weighed in on the redemption of Michael Vick. Obama phoned the owner of the Philadelphia Eagles to praise the team for giving a second chance to the quarterback, who is again a National Football League star 19 months after leaving prison for his role in a horrific dogfighting ring that killed pit bulls by electrocution, hanging and drowning.
The president has not spoken publicly about the call, though aides acknowledged that it took place. But Eagles owner Jeffrey Lurie told Peter King of Sports Illustrated and NBC Sports that during their conversation Obama was passionate about Vick's comeback.
"He said, 'So many people who serve time never get a fair second chance,' " said Lurie, who did not indicate when the call occurred. "He said, 'It's never a level playing field for prisoners when they get out of jail.' And he was happy that we did something on such a national stage that showed our faith in giving someone a second chance after such a major downfall.''
Bill Burton, a White House spokesman, said Obama "of course condemns the crimes that Michael Vick was convicted of, but, as he's said previously, he does think that individuals who have paid for their crimes should have an opportunity to contribute to society again." Burton added that Obama called Lurie in part to discuss plans for the use of alternative energy at Lincoln Financial Field, where the Eagles play....
Obama's supporters welcome his interest in matters beyond the customary arenas of policy and politics. "He's not only leader of the government but also a role model and a moral voice for the country," said Neera Tanden, a former Obama adviser who is now chief operating officer for the Center for American Progress, a liberal Washington think tank. "And that is why he's discussed the role of parents as their children's first teachers, chastised absent fathers, as well as commented on issues that raise ethical concerns in the culture, outside of politics."
I am pleased and not really surprised that President Obama is happy to see Michael Vick getting a second chance and making the most of it following his federal conviction and sentence. But I remain deeply displeased and somewhat surprised that Obama is now talking this talk in a high-profile setting without walking the walk in the exercise of his clemency authority.
President Obama can (and should) help level the playing field via clemency grants for many former federal prisoners, and doing so would have great symbolic impact as a role model and a moral voice for the country. Too bad Obama has largely decided to stay mute in this arena for nearly all of his presidency.
Noting Justice Sotomayor's concern with some prisoner's cert. denied
Yesterday's USA Today had this interesting piece by Joan Biskupic headlined "Sotomayor protests court's refusal of appeals," which got started this way:
Supreme Court Justice Sonia Sotomayor has set herself apart from colleagues with her fervent statements protesting the majority's refusal to take some appeals, particularly involving prisoners.
Each month, the justices spurn hundreds of petitions from people who have lost in lower courts, and rarely does an individual justice go public with concern about the denial. In the seven times it has happened since the annual term opened in October, Justice Sotomayor has signed four of the opinions, more than any other justice. She was the lead author on three, again more than any other justice.
She forcefully dissented when the justices refused to hear the appeal of a Louisiana prisoner who claimed he was punished for not taking his HIV medication. He said prison officials subjected him to hard labor in 100-degree heat. Writing alone, she said the inmate had a persuasive claim of cruel and unusual punishment.
This emerging pattern of dissenting statements helps define a justice in her second term who is still — like newest justice Elena Kagan — fresh in the public eye.
On the law, Sotomayor has been in the liberal mold of her predecessor, David Souter, and her approach to writing opinions on cases heard has been fact-specific and free of rhetorical flourish. That was her style as a trial judge (1992-98) and appeals court judge (1998-2009).
Yet she has stood out as one of the most demanding questioners during oral arguments. She often breaks in as a fellow justice is questioning a lawyer, although she is not alone. Antonin Scalia also has an aggressive approach. Her tendency to protest when the justices pass up a case she believes is crucial may be another way of getting her voice heard.
Adam Abensohn, a law clerk to Sotomayor earlier in her career, said of the recent dissents, "If she has a viewpoint, she won't hesitate to assert herself. If she thinks it's a good idea to do something, she's not going to hold back simply because 'it's not the way things are done' or because she's relatively new."
Abensohn, who practices law in New York, said that although such dissenting opinions have no immediate legal consequence, they "may plant the seeds for the court to address an issue down the road.... In a sense, Justice Sotomayor is placing her stamp on issues that may be decided years from now."
December 27, 2010
Split Ninth Circuit affirms reversal of California Governor's reversal of state murderer's parole
Today brings a notable habeas ruling from a split Ninth Circuit panel in McCullough v. Kane, No. 07-16049 (9th Cir. Dec. 27, 2010) (available here). Here is how the majorioty's opinion begins:
In 1983, at the age of 21, Fred McCullough was convicted of murder and sentenced to 15 years to life in prison. While in prison, McCullough earned his GED, his associate’s degree, and his bachelor’s degree in social work. He participated in a juvenile offender deterrent program, helping to keep children out of trouble. He obtained job training and excelled in his employment placements. He successfully rehabilitated himself to the point where his most recent psychological evaluations indicate he is less likely to commit violence than the average community citizen. Twice, the California Board of Prison Terms recommended McCullough for parole, once in 2002 and again in 2004. Twice, the governor of California reversed that decision.
In 2007, the district court found that Governor Arnold Schwarzenegger’s 2004 reversal of McCullough’s parole recommendation was not supported by “some evidence” of future dangerousness and granted McCullough’s federal habeas petition. The state appealed and we ordered McCullough released pending his appeal while we awaited two California Supreme Court decisions concerning parole recommendations and reversals. During that time, our court agreed to rehear en banc Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008), to determine our ability to review such claims contained in a federal habeas corpus petition. See Hayward v. Marshall, 527 F.3d 797 (9th Cir. 2008). The en banc court issued an opinion in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). While the courts sorted out the law, McCullough began his life outside prison. Within two months of his release he obtained employment at a furniture manufacturing company in Gardena, California. McCullough’s manager at that store has reported to this court that, over the past two years, McCullough has made outstanding contributions to the company and been promoted to supervisor.
We now decide whether the governor’s 2004 reversal of McCullough’s parole recommendation violated due process; we hold that it did. Our decision is consistent with Hayward v. Marshall and other prior and subsequent cases holding that we have jurisdiction to review the “some evidence” determination under California law. Hayward, 603 F.3d at 562-63. We thus affirm the district court’s decision granting McCullough’s habeas corpus petition.
Despite dysfunctional death penalty (and due to dysfunctional prisons?) murder rates at record lows in LA
As detailed in this new piece in the Los Angeles Times, there is some good end-of-year crime news in LaLaLand. The piece is headlined "Killing in L.A. drops to 1967 levels," and it begins this way:
For the first time in more than four decades, Los Angeles is on track to end the year with fewer than 300 killings, a milestone in a steady decline of homicides that has changed the quality of life in many neighborhoods and defied predictions that a bad economy would inexorably lead to higher crime.
As of mid-afternoon on Sunday, the Los Angeles Police Department had tallied 291 homicides in 2010. The city is likely to record the fewest number of killings since 1967, when its population was almost 30% smaller.
Strikingly, homicides in the city have dropped by about one-third since 2007, the last full year before the economic downturn, according to a Times' analysis of coroner records. Throughout the rest of the county, which is patrolled by the L.A. County sheriff and individual cities' police departments, homicides during the same period tumbled by nearly 40%. The Times' analysis showed 159 homicides in areas patrolled by the Sheriff's Department and 164 in the rest of the county through mid-December.
The city's total translates into roughly 7.5 killings per 100,000 people and puts it in league with New York City and Phoenix as having among the lowest homicide rates among major U.S. cities. "I never thought we'd see these numbers," said Sal LaBarbera, a veteran homicide detective with the LAPD. "It is night and day compared to the old days. Night and day."
Longer-term declines are even more notable. The city's homicide rate this year marks a 75% drop from 1992, when 1,092 people were killed during a crack cocaine epidemic and gang wars. Homicides investigated by the Sheriff's Department have dropped by more than half since the mid-1990s.
The change, experts say, is not easily explained and is probably the result of several factors working together, including effective crime-fighting strategies, strict sentencing laws that have greatly increased the number of people in prison, demographic shifts and sociological influences.
As the title of this post stresses, California's sentencing and punishment system is dysfunctional in many ways: the state has a massive death row and no execution, overcrowded prisons with unconstitutional living conditions, and a three-strikes law that is uniquely harsh and not consistently applied throughout the state. Nevertheless, at least by one critical metric, something is being done right in when it comes to crime and punishment in Los Angeles. Go figure.
December 26, 2010
Noting the very high economic costs of sex offender civil commitment
This new local story out of New York, which is headlined "Civil confinement of sex offenders costs state $175,000 apiece," provides an effective review of the economic realities of sex offender civil confinement schemes. Here are excerpts from this lengthy piece:
In New York, the end of a criminal sentence for a sex offender doesn't mean he's going free. In 2007, state lawmakers took steps to protect the public from sexual predators. That year they approved a civil commitment program designed to route dangerous sex offenders whose sentences are ending into treatment in secure state psychiatric facilities.
However, little thought was given to long-term costs or the likelihood that space for treatment could one day become an expensive dilemma. That day has come. Only in its fourth year, civil commitment is already coping with cost and space strains. Since many offenders who are locked away are unlikely to be released for years, if ever, the costs will continue to escalate....
The program is far costlier than imprisoning criminals: a civilly detained offender costs four times the spending for an inmate jailed in a state prison. New York's average price tag to treat sex offenders in secured facilities — about $175,000 a person — makes it the costliest program of its kind in the country, slightly more than in California. Twenty states have civil commitment programs, but they vary in approach. Texas, for instance, only uses outpatient treatment.
Although only a small percentage of the pool of convicted sex offenders ends up civilly institutionalized in New York, the state still has one of the highest rates of civil confinement in the country, records show. For New York lawmakers, this will create a demand for tens of millions of tax dollars in coming years at the same time that officials face dire budgetary constraints. "We are facing capacity issues, census pressures," said Richard Miraglia, the OMH associate commissioner of forensic services.
The courtroom fights over civil commitment have their own costs, often outstripping the costs of criminal cases. Civil commitment hearings and trials can become a duel between psychiatric experts warring over whether the offender has a "mental abnormality" that makes him unable to control criminal impulses — a legal requirement for confinement....
New York lawmakers did provide extra funding for OMH when civil commitment started in 2007 but with little foresight on the escalating costs. Other states provided plenty of evidence for New York to recognize the budgetary strains of civil commitment programs. Minnesota's program has tripled in cost over the past six years and a $62 million facility that opened in Virginia in 2008 is nearing capacity.
In New York, funding was based on an assumption that most offenders would be routed into the cheaper parole-supervised program and not institutionalized. Instead, more than two of every three offenders found to have a mental disorder have been sent into the state facilities instead of the parole option....
At the current rate of growth — about 70 newly confined offenders annually — treatment costs alone will grow by about $12 million a year. OMH has already trimmed its costs by reducing staff at facilities; originally the average cost per offender was $225,000 a year....
Lawmakers will find answers because civil commitment is a vital part of the state's public safety measures, said state Sen. Michael Nozzolio, R-Fayette, Seneca County. Senate Republicans "supported it aggressively," he said. "We believed it was an alternative that needed to be pursued."
Assemblyman Joseph Lentol, D-Brooklyn, supported civil commitment but admits that the costs are a concern. "There is a real problem and 30 years from now we may be doing what we did with Rockefeller (drug laws) and repealing civil confinement because it's not working," Lentol said. "But we haven't reached that point yet."
Coincidentally, a local paper in Washington state is also covering these cost issues in a series of piece about state sex offender regulations. This piece about civil confirment is headlined "Confining State's Sex Predators: Is It Still a Cost-Effective Solution?", and here is one excerpt:
It costs about $177,000 a year to house each resident at the [Special Commitment Center for sexually violent predators], which adds up to about $48 million a year for all those committed. It costs $34,000 a year to house an inmate in a state prison.
Other costs include the roughly $350,000 to put a case before a jury and commit them there, according to the state’s Department of Social and Health Services. Each resident is also entitled to an annual review of their confinement.
State Attorney General Rob McKenna acknowledges that it’s expensive, but he says the center is “highly effective.” Given that many sex abuse victims never disclose the abuse to authorities, McKenna sees an even greater need for the facility. He says that those confined are likely to have many more victims than they were convicted for.
Regardless of how stark the budget outlook is for the state, McKenna insists the center must be prioritized and continue. “It’s so important given the high likelihood of these individuals to reoffend,” he said.