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April 1, 2012

Huge thanks to Prof Bibas for his Machinery (and seeking feedback on guesting)

I am so very grateful  pleased that Professor Stephanos Bibas served as such a dynamic guest-blogger to discuss sentencing issues raised by his terrific new book, titled "The Machinery of Criminal Justice," which was just published by Oxford University Press and is available here.  I will in this post link below to my introduction and then to all seven of Stephanos's substantive posts:

I hope that readers enjoyed this series of posts as much as I did.  I also hope folks will take a moment to add thanks for Stephanos's efforts via the comments and that folks will let me know if I should try to make a habit of soliciting folks to guest-blog about a recent sentencing project or to develop a series of posts around a particular topic.

April 1, 2012 in Guest blogging by Professor Stephanos Bibas, On blogging | Permalink | Comments (2) | TrackBack

Interesting piece about jury sentencing without guidelines in Virginia

This local article, headlined "Virginia judges rarely question juries' sentencing recommendations," highlights how jury sentencing in some cases may create disparities in Virginia. Here are excerpts:

128 years. And a day.  That's how much time a Hampton Circuit Court jury recommended this week that a Poquoson man, Robert King Via Jr., should spend behind bars in a 2010 home invasion case.

The jury said Via, 21, should go to prison for a century, plus 28 years and a day, for forcing his way into a home along with two other people, holding four people at gunpoint, and making off with cash.   Via was found guilty of conspiracy, armed burglary, robbery, four counts of abduction — based on holding people at gunpoint — and firearms charges.

By contrast, Samual Goodwin Sanchez, 20, of Poquoson, a co-defendant who pleaded guilty to robbery, abduction and firearms charges in the same case, ended up with only 13 years to serve.  He could be out in 11 years.

It would be interesting to see if the jury would have slammed Via as hard as they did if they had access to state sentencing guidelines, which look a criminal backgrounds, injuries to the victims and other factors.  It's designed to help equalize sentences around the state.

In Virginia's sentencing system, judges — who handle lots of cases a year and can put things in context — get those guidelines when they're issuing the sentence.  But jury members, who are usually sitting for the first time and don't have that frame of reference, do not.  Make sense to you?  Not to us, either.

Moreover, juries sometimes ask if the sentence they're about to recommend will run concurrently or consecutively, which seems an important thing for them to know. But the juries are told "not to concern themselves" with such matters. They are kept in the dark about the fact that sentences run consecutively unless a judge intervenes.

All this wouldn't be a problem if the jury sentencing recommendations were treated as just that — recommendations — and judges had the fortitude to act as safeguards when decisions are out of line.  Instead, Virginia judges seem bizarrely averse to questioning the recommendations, treating them as some sort of divine command.

April 1, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Is undue "secrecy" in the execution process a constitutional problem?

The question in the title of this post is prompted by this lengthy new local article, headlined "Cruel and unusual?: Death row inmate challenges state execution procedure," discussing the on-going litigation over Alabama's execution process and protocol.  Here is how the piece starts:

A death row inmate who had his execution blocked by a federal court that cited Alabama’s “secrecy” concerning its execution procedure says that procedure could leave him conscious while drugs that stop his breathing and his heart flow through his body.

Attorneys for Thomas Arthur, who was convicted in a 1982 murder-for-hire scheme, argue that the use of pentobarbital to anesthetize a prisoner during an execution violates Arthur’s Eighth Amendment protections.

Suhana Han, Arthur’s attorney, claims the drug does not work fast enough to prevent the inmate from feeling the potentially painful effects of the two drugs that follow, and that the state’s secrecy surrounding its execution protocols makes it impossible to determine whether its use constitutes cruel and unusual punishment, or even if the state follows its own procedures during executions.... “What we’re asking the court to do is allow us the opportunity to prove our claim,” Han said. “Alabama has never had its lethal injection process challenged at trial on the merits.”

Arthur was scheduled to be executed March 29, but the 11th Circuit Court of Appeals on March 21 overturned a lower court’s dismissal of Arthur’s appeal on the use of pentobarbital, finding there was no evidence that Alabama was conducting executions in a constitutional manner. The situation, the court wrote, was “exacerbated by Alabama’s policy maintaining secrecy surrounding every aspect of its three-drug execution method. It is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution,” the court wrote.

Brian Corbett, a spokesman for the Alabama Department of Corrections, declined comment last week, saying he was not at liberty to discuss the state’s execution procedures. The Alabama Attorney General’s office also declined comment on the case.

April 1, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack