March 29, 2011
Lots of data and a cool graphic concerning international use of the death penalty
Amnesty International recently published death penalty information for all countries in the world, and the folks at The Guardian have assembled and summarized the information effectively in this piece. The piece includes the cool graphic spotlighted here, and this text:
Despite fewer countries executing prisoners than ever before, the death penalty is still alive and well around the world. The latest statistics show that China executes thousands, said Amnesty International in its report on the death penalty worldwide. Amnesty does not provide a precise figure of executions in China as Beijing keeps such figures secret.
China, together with Iran, North Korea, Yemen and the US carried out the most executions last year, the report says:
- Whilst 67 countries handed down sentences in 2010, only 23 countries actually carried out executions -- just over a third
- The number of official executions reported fell from at least 714 people in 2009 to at least 527 in 2010, excluding China.
- We have also seen fresh steps towards abolition in countries including Belarus and Mongolia...
Setting China aside, Amnesty said at least 527 executions were carried out last year. Almost half of those took place in Iran (252). North Korea executed 60, Yemen 53 and the US 46. The minimum number of executions was down from at least 714 in 2009.
Methods of execution included beheading, electrocution, hanging, lethal injection and various kinds of shooting (by firing squad, and at close range to the heart or the head). No stonings were recorded in 2010, but stoning sentences were reported in Nigeria, Pakistan and Iran, where at least 10 women and four men remain under stoning sentences. At least 2,024 new death sentences were imposed during 2010 in 67 countries, including 365 in Pakistan alone, meaning it has some 8,000 people currently on death row.
March 28, 2011
New NPR investigative series on private prisons
NPR has this interesting and notable new set of pieces on private prisions:
- Town Relies On Troubled Youth Prison For Profits
- Private Prison Promises Leave Texas Towns In Trouble
- What Is GEO Group?
Here is the start from one of the pieces:
The country with the highest incarceration rate in the world — the United States — is supporting a $3 billion private prison industry. In Texas, where free enterprise meets law and order, there are more for-profit prisons than any other state. But because of a growing inmate shortage, some private jails cannot fill empty cells, leaving some towns wishing they'd never gotten in the prison business.
It seemed like a good idea at the time when the west Texas farming town of Littlefield borrowed $10 million and built the Bill Clayton Detention Center in a cotton field south of town in 2000. The charmless steel-and-cement-block buildings ringed with razor wire would provide jobs to keep young people from moving to Lubbock or Dallas.
For eight years, the prison was a good employer. Idaho and Wyoming paid for prisoners to serve time there. But two years ago, Idaho pulled out all of its contract inmates because of a budget crunch at home. There was also a scandal surrounding the suicide of an inmate.
Shortly afterward, the for-profit operator, GEO Group, gave notice that it was leaving, too. One hundred prison jobs disappeared. The facility has been empty ever since.
Eleventh Circuit weighs in on ex post facto issues after Booker
Though Booker has been the law of the federal sentencing land for more than six years now, the impact of the decision on ex post facto doctrines concerning guideline application remains unresolved in most circuits (and, it seems, under-litigated in most settings). Today, the Eleventh Circuit weighs in on this issue in US v. Wetherald, No. 09-11687 (11th Cir. March 28, 2011) (available here). Here are passages from the opinion:
This court has yet to directly address the ex post facto implications of Booker on the Guidelines.... Nevertheless, while we have not addressed the question as presented in this case, we have affirmed the underlying principles that led to the application of the Ex Post Facto Clause in our pre-Booker opinions.
Our sister circuits have split on the impact of Booker in regards to the Ex Post Facto Clause. The Seventh Circuit has taken the view that the Ex Post Facto Clause no longer poses a problem, as it applies “only to laws and regulations that bind rather than advise.” United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)... The D.C. Circuit has squarely rejected this position, finding that the application of a harsher Guidelines range in place at sentencing presents a constitutional problem. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008)....
Because it is consistent both with our interpretation of Supreme Court precedent and this circuit’s jurisprudence, we find the approach taken by the D.C. Circuit more compelling than that of the Seventh Circuit. It is true that the Guidelines are no longer mandatory, but neither are they without force. The simple reality of sentencing is that a “sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines.” Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007). As the D.C. Circuit noted, “Practically speaking, applicable Sentencing Guidelines provide a starting point or ‘anchor’ for judges and are likely to influence the sentences judges impose.” Turner, 548 F.3d at 1099. This starting point serves to cabin the potential sentence that may be imposed, and the Supreme Court has recognized that the appeals courts may presume the reasonableness of a sentence that reflects the district court’s proper application of the Sentencing Guidelines. Rita, 551 U.S. at 347, 127 S. Ct. at 2462. We also have acknowledged that “ordinarily we would expect a sentence within the Guidelines range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although we have declined to find that a sentence within the Guidelines range is reasonable per se, we have noted that the Guidelines remain “central to the sentencing process” and that “our ordinary expectation still has to be measured against the record, and the party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both that record and the factors in section 3553(a).” Id. at 787, 788...
Thus, the application of the correct Guidelines range is of critical importance, and it cannot be said that the Ex Post Facto Clause is never implicated when a more recent, harsher, set of Guidelines is employed. But it is equally clear that we need not “invalidate every sentence imposed after a Guidelines range has been increased after the date of the offense.” Ortiz, 621 F.3d at 87. Rather, we will look to the sentence as applied to determine whether the change created “‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner, 529 U.S. at 250, 120 S. Ct. at 1367 (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 1603 (1995)). This standard is consistent with our precedent. As we said in Kapordelis, “While we have held that the district court must correctly calculate the Guidelines before imposing a sentence, we are not required to vacate a sentence if it is likely that, under the correctly calculated Guidelines, the district court would have imposed the same sentence.” 569 F.3d at 1314. Therefore, we will only find an Ex Post Facto Clause violation when a district judge’s selection of a Guidelines range in effect at the time of sentencing rather than that at the time of the offense results in a substantial risk of harsher punishment. This standard recognizes the ongoing importance of the Sentencing Guidelines while maintaining the district court’s broad discretion to consider relevant information in formulating an appropriate sentence.
A few related posts on post-Booker ex post issues (with ruling dates in parentheses):
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker (2006)
- DC Circuit produces crisp split on ex post issues after Booker (finally!!) (2008)
- Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines (2010)
- A notable district court opinion on the post-Booker ex post facto issue (2010)
Notable Enron insider trading sentencing outcome and reasoning
This Bloomberg report, headlined "Ex-Enron Broadband Executive Sentenced for Insider Trading," caught my attention for a number of reasons. Here are the details:
Former Enron Broadband Services executive Rex Shelby was sentenced today on an insider trading charge linked to the investment fraud that destroyed the world’s largest energy trader 10 years ago. Shelby, 59, pleaded guilty to one count of insider trading and was sentenced to three months in a federal halfway house and three months of house arrest. Shelby will also forfeit about $2.6 million in profits from the illicit trade.
Shelby’s lawyer Ed Tomko told a judge that Shelby has also agreed to forfeit another $1 million to resolve related Securities and Exchange Commission charges. He faced a maximum of 10 years and a fine of $1 million on the one count before reaching his plea deal. He’ll be in probation for two years, including the six months of combined confinement....
U.S. District Judge Vanessa Gilmore sentenced Shelby to half the number of months confinement that he’d agreed to in a plea deal. “Mr. Shelby’s actions ultimately did not cause the downfall of Enron,” she said. “Only a few individuals at the pinnacle of Enron knew of the fraud.”
Gilmore said she moderated the sentence to fit Shelby’s role and the punishments given to others in the Enron fraud scheme. She said the fact Shelby has for the last eight years devoted himself exclusively to working on his defense, in “self-imposed home confinement"”, was also a consideration in her decision....
Shelby and six other EBS executives were indicted in 2003 on charges they helped the parent company’s senior management, including Enron’s former Chairman Kenneth Lay and Chief Executive Officer Jeffrey Skilling, deceive analysts and investors about the unit’s capabilities and financial performance.
The executives were accused of misrepresenting EBS at a January 2000 analysts’ conference, where they portrayed it as one of Enron’s “core’’ units, worth about $50 billion. In reality, the division struggled to launch products and never earned a profit.
Enron’s stock soared from $54 a share the day of the analysts’ conference to $72 a share the following day. Shelby sold 150,000 shares on the price increase, reaping gross proceeds of just under $10.7 million, according to his plea.
Shelby had long maintained he sold the shares to diversify his portfolio and not based on any inside knowledge of an alleged conspiracy to inflate Enron’s stock price. To avoid a trial on broader conspiracy and fraud charges, which had been set to begin this past January, Shelby pleaded guilty to one count of insider trading in November....
Shelby’s sentencing marks the end of the Enron Broadband case, which yielded mixed results for the government. Two of the seven originally indicted EBS executives -- Kenneth Rice and Kevin Hannon, who each served as president of the division at one time -- pleaded guilty before trial and testified against former colleagues.
The remaining five executives, including Shelby, were tried together in Houston federal court in 2005. That trial ended with no convictions and a smattering of acquittals, as jurors failed to reach verdicts on scores of counts. None of the men were completely exonerated at that trial, and the government vowed to streamline its case and retry them all on narrower charges.
To avoid that retrial, former CEO Joseph Hirko pleaded guilty to a reduced charge in late 2008 and served about 16 months in prison, forfeiting $7 million. Ex-strategy chief F. Scott Yeager appealed the government’s retrial attempts and in 2009, the U.S. Supreme Court ruled he couldn’t be retried based on his partial acquittal by the first jury.
I have highlighted above one particular passage of this account of the sentencing because I cannot recall hearing of another case in which a judge expressly identified that the time/energy spent by the defendant defending himself as a mitigating sentencing factor. I do not mean to critique the use of this factor, as much as just to note it here and to welcome comments about whether others have a strong view, concerning in this case or others, as to whether the time/energy spent by a defendant defending himself ought to be viewed as a mitigating sentencing factor.
Georgia death row inmate Troy Davis now gets no review or relief from SCOTUS
As detailed in this AP report, which is headlined "High court rejects appeal from Troy Davis," this morning the US Supreme Court "has rejected an appeal from Georgia death row inmate Troy Davis, clearing the way for the state to resume planning for Davis' execution."
As regular readers may recall, SCOTUS in 2009 ordered a district judge to conduce hearings to consider Davis' evidence suggesting his innocence for the 1989 murder that got him placed on Georgia's death row. But the district judge was not convinced, and this order list from the Supreme Court shows that the Justices today rebuffed three different means by which Davis was seeking high court review.
Especially notable here, I think, is that it does not appear that there were any dissents from the decision to refuse Davis any more review. (I cannot help but speculate that Justice Stevens might have been a dissenting voice here if still on the Court.) Especially ironic here, I think, is that it does appear that Davis could continue avoid execution for quite some time because on new concerns about Georgia's execution drugs.
Prior posts discussing recent Davis case developments:
- SCOTUS orders innocence hearing in Troy Davis case
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start
- "Innocence claim rejected: Troy Davis loses challenge"
- Eleventh Circuit punts Troy Davis case up to SCOTUS
UPDATE: Over at SCOTUSblog, Lyle Denniston has an effective review and analysis of the Supreme Court's work today in the Davis matter in this post titled "Davis innocence plea rejected."
"Alternative sentencing programs show growing success in Oklahoma"
The title of this post is the headline of this local article which carries this sub-headline: "Oklahoma prosecutors today may choose from a variety of nontraditional sentencing options ranging from drug court assignments to mental health and anger management counseling." Here are excerpts:
Comanche County District Attorney Fred C. Smith spoke to a civic group recently about the ever-increasing role new technology and alternative sentencing will play in the criminal courts.... Prosecutors today may choose from a variety of nontraditional sentencing options ranging from drug court assignments to mental health and anger management counseling. GPS monitoring devices for sex offenders, alcohol monitoring bracelets and drug patches are some of the newer probation tools.
Alternative sentencing is a necessity borne from prison overcrowding and shrinking budgets, officials say. In Oklahoma — a conservative state that prides itself on tough talk and swift justice — being tough on crime comes with a price.... Oklahoma's prison population has swelled by nearly 9,000 inmates in [recent years]. Today, that population is some 26,600, including 1,300 held in county jails. Those totals account for 96.5 percent of the department's bed capacity....
“I'm a huge supporter of drug court,” said Jackson County District Attorney John Wampler. “I've seen a lot of success stories come out of it. The problem ... is a lot of legislators want to see immediate results, and so there is a reluctance to put money into certain programs. They're not looking at the long-range dividends. For instance, we always release someone from prison and watch them struggle to get back on their feet. We need to give them the tools so when they do get out, they have the skills to find a job and lead productive lives. That's how you make real change.”
March 27, 2011
"Mandatory Life and the Death of Equitable Discretion"
The title of this post is the title of this notable new book chapter by Professor Josh Bowers, which is now available via SSRN. Here is the abstract:
This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that the punishment — at least in its mandatory form — is not so much the new death penalty as the old one (but not quite). Specifically, contemporary capital punishment expressly admits — indeed requires — an equitable determination. That is, before imposing the death penalty, the capital-sentencing jury is called upon to exercise practical wisdom based on everyday experience to reach a commonsense determination of normative blameworthiness — to consider not only the particulars of the criminal incident but also the social and psychological circumstances of the defendant.
By contrast, LWOP is frequently a mandatory punishment over which a jury holds no equitable sway. In this way, mandatory LWOP bears a closer resemblance to the historical mandatory death penalty. But, significantly, the analogy between the historical death penalty and modern mandatory LWOP is imperfect. Although the pre-modern jury lacked power over the sentencing determination, it enjoyed considerable influence over the guilt determination, both because common-law liability rules were more flexible and because the pre-modern jury was arbiter of both law and fact. Thus, the pre-modern jury retained robust authority to circumvent mandatory penalties in equitably problematic cases. Comparatively, the modern LWOP jury is hamstrung by a more substantively and procedurally rigid and formalized criminal-justice system. Thus, the LWOP jury lacks the equitable safety valves that tempered application of both the historical death penalty and its modern capital corollary.
To the extent an opportunity for equitable discretion remains in mandatory LWOP regimes, it rests wholly with the professional prosecutor, who controls the charging decision, but who concurrently has an institutional incentive to charge high to maximize bargaining power. In such circumstances, the prime determinate of whether a defendant receives an LWOP sentence is not normative blameworthiness but willingness to plead guilty. Mandatory LWOP is, thus, a punishment that only the interested prosecutor can temper effectively, but that the prosecutor has the least interest in tempering for equitable reasons alone.
NY Times sees sexting news fit to print
Today's New York Times has a huge front-page story on teenage sexting, along with companion article looking at both the legal and social realities surrounding this modern technology issue. Here are links to the pieces:
- "Poisoned Web: A Girl’s Nude Photo, and Altered Lives"
- "States Struggle With Minors’ Sexting"
- "What They're Saying About Sexting"
The middle article about state laws starts this way:
In the last two years, legislators have been weighing graduated responses to sexting between minors. Some legal scholars refer to the images as “self-produced child pornography.”
Some states have amended their statutes on child pornography, obscenity or Internet crimes. Many allow juvenile offenders to be charged with a misdemeanor or a lesser offense, so they can qualify for diversion programs and have their records expunged. A few states have tried to define a sexting offense.
The laws have had a mixed response. While many experts, educators and parents applaud the lessening of sanctions for what is often seen as thoughtless adolescent risk-taking, others deplore the establishment of a new crime that could not only intrude on First Amendment rights but could also sweep more children into the court system.
The death penalty debate in the (bellwether?) capital state of Ohio
Because I consider my own Ohio as a political bellwether, this new local article about death penalty debates in the state seems of more than just local interest. The piece is headlined "While some push to end capital punishment in Ohio, others are fighting to keep it alive," and here are excerpts:
Even as the Geauga County Common Pleas Court recently sentenced a person to death for the first time since at least 1981, two Ohio Democrats are lobbying for a bill that would eliminate the death penalty throughout the state.... [I]f state Reps. Ted Celeste of Grandview Heights and Nickie Antonio of Lakewood get their wish, the death penalty will come to a complete halt in the Ohio for the first time since 1981 as part of House Bill 160, called the "Execute Justice Bill."...
If House Bill 160 were to pass, the death penalty would be banned. Celeste told The Columbus Dispatch earlier this month that the costs associated with litigation and multiple appeals for death row inmates can run tens of millions of dollars a year. "This should be a part of the overall budget conversation as it has the potential to provide major financial savings at a time when we are facing an enormous deficit."
Sixteen states have already banned the death penalty, with Illinois being the most recent. However, local legislatures and prosecutors don't think House Bill 160 will pick up enough steam.
Lake County Prosecutor Charles E. Coulson said he strongly opposes the bill. "There are certain cases where the death penalty is justified," he said, such as defendants who killed police officers or committed serious pre-meditated murder. Coulson agrees that the justice system could be tweaked in an effort to save the state money. "Unfortunately, the justice system is broken when it comes to the death penalty," he said. "It defies all common sense. It can take up to 15 to 20 years of repetitive appeals while delaying the process.
"The death penalty should be carried out within a reasonable amount of time, not 15 to 20 years of sitting in the bottom of piles of federal court judges' chambers waiting for review while no action is being taken for years at a time." The process could be fixed by fixing the justice system, where judges only have a certain amount of time to review cases as opposed to letting it sit or limit the amount of appeals, Coulson said.
In the past 20 years, Lake County has sentenced only two people to death, and Coulson said that since Ohio changed its law a few years ago so juries can now recommend life without the possibility of parole, the use of the death penalty has been greatly reduced. "Many cases are now handled that way," he said. "Jurors are more likely to sentence someone to life without possibility of parole rather than (the) death penalty."...
State Sen. Tim Grendell, R-Chester Township, and chairman of the Senate of Criminal Justice Committee, said he thinks the bill has no chance of passing. "I'm a proponent of the death penalty," he said. "If a jury finds a death penalty is appropriate then I believe that penalty should be administered."
If the state wants to save money, the appeals process should be shortened to not waste money through endless legal action, he said. "At some point, you can't put a price on justice. You just have to do what's right for the public," he said....
Coulson said in his 37 years of prosecuting, capital punishment has come up multiple times. "We go in waves where we want to eliminate it, then we want to bring it back," he said. "It's like the pendulum swinging back and forth."