June 11, 2012
Judge Posner in fine form discussing federal guidelines' Aggravating Role enhancements
Though the decision by a Seventh Circuit panel today in US v. Figueroa, No. 11-2594 (7th Cir. June 11, 2012) (available here) does not break any new ground, Judge Richard Posner's opinion for the court makes it a must-read. Figueroa is concerned with how to interpret and apply the federal sentencing guidelines' Aggravating Role enhancements, and here is a taste of some of Judge Posner's prose to whet the appetite:
Economy of words is not a defining characteristic of lawyers, including the lawyers who drafted the sentencing guidelines and application notes and the lawyers and judges who have drawn on the seven factors in Application Note 4 to help determine who is a “supervisor.”...
In a tiny enterprise, neither extensive nor “otherwise extensive,” the four roles — organizer, leader, manager, supervisor — are unlikely to be differentiated. There is likely to be one boss, and it doesn’t matter what one calls him. But in a substantial enterprise, organized as substantial enterprises legal or criminal usually are — that is, hierarchically — there will be organizer-leaders (the guidelines do not distinguish between those two designations) and manager-supervisors (again not distinguished, and in fact not distinguishable on any ground that we can relate to sentencing policy) intermediate between the organizer-leaders and the rank and file. Application Note 4 relates only to the organizer-leaders; we cannot see what guidance it provides to determining whether a participant who is neither a boss nor a grunt is a manager or (the same thing, just a different word) a supervisor. When the question is not whether the defendant is a leader or organizer, but instead a manager or supervisor in a hierarchical organization (hence a “middle manager”), there is no need to sweat over the terms “manager” or “supervisor”....
If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a “manager” or “supervisor” is, Application Note 4 isn’t going to help him — especially since it’s about organizers and leaders and not middle managers and low-level supervisors, as the cases, hungry for text to hang a decision on, are reluctant to acknowledge. So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for “supervisor,” such as one who “oversees,” or unhelpful periphrases such as “to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish” some objective.
SCOTUS gives Sixth Circuit an AEDPA smack-down via per curiam opinion
This morning, I was again expecting (or at least hoping for) some notable criminal justice Supreme Court action this morning as the Justices returned to action. But it appear we must wait at least another week for the three big sentencing issue still pending (reviewed here).
The Justices did give criminal justice fans a little love this morning by granting cert on a new Double Jeopardy Clause case, Evans v. Michigan, which concerns an issue SCOTUSblog describes in this way: "Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact."
The Justices also gave the Sixth Circuit a little error-correction smack-down via a sharp per curiam summary reversal in Parker v. Matthews (available here). Here is how the unanimous Parker opinion gets started:
In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court’s decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12). We therefore grant the petition for certiorari and reverse.
Do death row suicides justify speeding up, or shutting down, California's execution process?
The question in the title of this post is prompted by this new AP article, which is headlined "Death Row suicide highlights executions' delays." Here are excerpts:
When James Lee Crummel hanged himself in his San Quentin Prison cell last month, he had been living on Death Row for almost eight years — and he was still years away from facing the executioner. California's automatic death penalty appeals take so long that the state's 723 condemned inmates are more likely to die of old age and infirmities — or kill themselves — than be put to death.
Since capital punishment was reinstated in 1978, California has executed 13 inmates, and none since 2006. But 20 have committed suicide, including Crummel, who abducted, sexually abused and killed a 13-year-old boy on his way to school in 1979. Another 57 inmates have died of natural causes. The ponderous pace of this process has helped make the state's death row the most populous in the nation, and it has generated critics from all quarters.
Victim rights groups say the delays amount to justice denied. Death penalty opponents say the process, like execution itself, amounts to cruel and unusual punishment. And now the state's voters will get an opportunity this November to vote on a measure that would abolish the death penalty, which critics deride as an inefficient and expensive system for a financially troubled state.
It took the Supreme Court four years to appoint Crummel a public defender, and it took his attorney almost that long to file his opening brief after several time extensions. Crummel's appeal was expected to consume a few more years before the high court decided the case.
While most condemned inmates welcome legal delays, even those seeking a speedy resolution are stymied. Scott Peterson, who was sentenced to death seven years ago for murdering his pregnant wife Laci, is attempting to get his case before the Supreme Court as soon as possible, because he says he was wrongly convicted. Peterson's parents hired a top-notch private appellate lawyer after sentencing, while other Death Row inmates wait an average of five years each for appointment of taxpayer-funded public defenders....
Despite the growing backlog, district attorneys continue to send murderers to death row. Five new inmates have arrived this year, and several more are expected, including Los Angeles gang member 24-year-old Pedro Espinoza who was convicted of shooting to death a high school football player. A jury recommended death for Espinoza, and a judge is scheduled formally sentence him in September.
Meantime, Los Angeles County District Attorney Steve Cooley is attempting to immediately resume executions of two longtime Death Row inmates Mitchell Carleton Sims, 52, and Tiequon Aundray Cox, 46, who have exhausted all of their appeals. Sims has been on Death Row since 1987, Cox since 1986. "It is time Sims and Cox pay for their crimes," said Cooley, who is asking that the inmates be executed with a single drug rather than the three-drug lethal cocktail now being challenged in federal and state courts. The California District Attorneys Association is backing Cooley's attempt to resume executions.
June 10, 2012
"Efforts to Relax Pot Rules Gaining Momentum in US"
The title of this post is the headline of this new AP article, which includes these excerpts:
Once consigned to the political fringe, marijuana policy is appearing on legislative agendas around the country thanks to an energized base of supporters and an increasingly open-minded public. Lawmakers from Rhode Island to Colorado are mulling medical marijuana programs, pot dispensaries, decriminalization and even legalization. Seventeen states and the District of Columbia now authorize medical marijuana and 14, including neighboring Connecticut and Massachusetts, have rolled back criminal penalties for possession of small amounts of pot.
Rhode Island is poised to become the 15th state to decriminalize marijuana possession. The state's General Assembly passed legislation last week that would eliminate the threat of big fines or even jail time for the possession of an ounce or less of pot. Instead, adults caught with small amounts of marijuana would face a $150 civil fine. Police would confiscate the marijuana, but the incident would not appear on a person's criminal record. Minors caught with pot would also have to complete a drug awareness program and community service....
Some supporters of decriminalization say they'd like to go even further. "America's 50-year war on drugs has been an abysmal failure," said Rep. John Savage, a retired school principal from East Providence. "Marijuana in this country should be legalized. It should be sold and taxed."
Opponents warned of dire consequences to the new policy. "What kind of message are we sending to our youth? We are more worried about soda — for health reasons — than we are about marijuana," said one opponent, Rhode Island state Rep. John Carnevale a Democrat from Providence....
Medical marijuana helped bring marijuana policy into the mainstream back in 1996, when California became the first state to authorize the use of cannabis for medicinal use. Other states followed suit. "It's now politically viable to talk about these things," said Robert Capecchi, legislative analyst with the Marijuana Policy Project, a Washington, D.C.-based group that supports the reduction or elimination of penalties for medical and recreational pot use. "The public understands that there are substances that are far more harmful — alcohol, tobacco — that we regulate. People are realizing just how much money is being wasted on prohibition."
Colorado and Washington state will hold fall referendums on legalizing marijuana. A ballot question on legalization failed in California in 2010. This month, Connecticut's governor signed legislation to allow medical marijuana there. Last week, New York Gov. Andrew Cuomo proposed cutting the penalty for public possession of small amounts of pot....
Robert DuPont, who served as the nation's drug czar under presidents Richard Nixon and Gerald Ford, said Americans should be wary of a slippery slope to legalization. While marijuana may not cause the life-threatening problems associated with heroin, cocaine or methamphetamine, it's far from harmless. "It is a major drug of abuse," he said. "People ask me what the most dangerous drug is, and I say marijuana. Other drugs have serious consequences that are easy to recognize. Marijuana saps people's motivation, their direction. It's a drug that makes people stupid and lazy. That's in a way more dangerous."
"Clemency in a Time of Crisis"
The title of this post is the title of this new paper available via SSRN authored by Professor Cara Drinan. Here is the abstract:
At the state level, the power to pardon or commute a criminal sentence — that is, to grant clemency — is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether.
In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at the state level today. Despite judicial and scholarly support for the role of clemency in our criminal justice system, state clemency practice fails to live up to its theoretical justifications. Part II of this Article makes the case for a policy of vigorous clemency on both theoretical and practical grounds. Not only was clemency designed, at least in part, to serve an error-correcting function, but also, today, there are several reasons why state executive actors may be able to use their clemency power robustly without suffering politically. In Part III, I address questions of implementation. If state executive actors are to pursue commutations of sentences or pardons, which inmates should be the subject of such pursuits? How can those executive actors best be insulated from political pressure? In sum, this Article argues that revitalizing state clemency is a valuable and viable component of broader criminal justice reform.
Golden anniversary of the greatest escape from the greatest prison
This morning's New York Times has this new article discussing an old mystery still surrounding a long-closed (but still justifiably famous) federal prison. The piece is headlined "Tale of 3 Inmates Who Vanished From Alcatraz Maintains Intrigue 50 Years Later," and here is how it begins:
Fifty years ago, on the night of June 11, 1962, the three convicts were locked down as usual. Guards walking the tier outside their cells saw them at 9:30 and checked on them periodically all night, looking in at the sleeping faces, hearing nothing strange. But by morning, the inmates had vanished, Houdini-like.
Guards found pillows under the bedclothes and lifelike papier-mâché heads with real hair and closed, painted eyes. Federal agents, state and local police officers, Coast Guard boats and military helicopters joined the largest manhunt since the Lindbergh baby kidnapping in 1932, scouring the prison complex on Alcatraz Island, the expanse of San Francisco Bay and the surrounding landscape of Northern California.
A crude raft made of rubber raincoats was found on a nearby island. But the fugitives were never seen again. Federal officials said they almost certainly drowned in the maelstrom of riptides, undertows and turbulent, frigid waters of the 10-mile-wide bay, their bodies probably swept out to sea under the Golden Gate Bridge.
But for aficionados of unsolved mysteries, the fantasy that Frank Lee Morris and the brothers Clarence and John Anglin had successfully escaped from the nation’s most forbidding maximum security prison and are still alive, hiding somewhere, has been a tantalizing if remote possibility for a half-century now.
It seemed wildly improbable. “The Rock” where Al Capone, Machine Gun Kelly and other infamous criminals were held was thought to be escape-proof. In its 29 years as a federal prison, from 1934 to 1963, no one is known to have made it out alive. Forty-one inmates tried. Of those, 26 were recaptured, 7 were shot dead, 3 drowned and 2 besides Mr. Morris and the Anglin brothers were never found.
Had they survived, the three men — all bank robbers serving long terms — would be in their 80s now. And while their names are all but forgotten, their breakout has been a subject of fascination to many Americans, analyzed in countless articles, four television documentaries, a 1963 book by J. Campbell Bruce, “Escape from Alcatraz,” and a 1979 movie of the same name starring Clint Eastwood as Mr. Morris.