« July 1, 2012 - July 7, 2012 | Main | July 15, 2012 - July 21, 2012 »

July 14, 2012

Fascinating Eighth Amendment ruling by Kansas appeals court about (uniquely?) extreme sex offender sentence

I have been slow to note a remarkable Eighth Amendment opinion handed down late last week by a Kansas appellate court in State v. Proctor, No. 104,697 (Kan. Ct. App. July 6, 2012) (available here). (Hat tip to Eugene Volokh.)  The lengthy opinion and its (limited?) import are hard to summarize, so I will quote in full the start of the opinion here:

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation.  Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation.  For Proctor, a man in his early 20′s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.  Given Proctor’s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.  The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system.  We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment — life in prison without parole is second only to a death sentence in its extremity — for persons convicted of designated sex offenses who then commit property crimes.  For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections.  The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies.  But the commission of those two offenses in that order may lead to life in prison with no prospect for release.  Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result.  The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor’s.  It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states.  Those are the ingredients of an unconstitutionally disproportionate punishment.

The analysis by this appellate panel to back up these conclusions is quite interesting and worth a close read by any and everyone interested in the development of modern Eighth Amendment jurisprudence.

July 14, 2012 in Assessing Graham and its aftermath, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

July 13, 2012

Split Florida Supreme Court upholds constitutionality of drug crimes place mens rea burden on defendants

As reported in this Reuters article, the Florida Supreme Court upheld the state's controversial drug possession law on Thursday, ruling that defendants must prove that they did not know they were carrying an illegal substance." Here is more:

In a 5-2 ruling, the state supreme court upheld a 2002 law which puts the burden of proof on defendants. At least 48 other states require the state to prove that defendants knew the substances they were carrying are illegal.

The opinion comes a year after federal judge in Orlando ruled the entire Florida law was unconstitutional, calling it a significant departure from the notion that defendants are innocent until proven guilty....

Justice Charles Canady, said the Florida legislature was clear in its intent to crack down on drug trafficking by specifically eliminating the need for state prosecutors to prove that defendants knew what they were carrying was illegal. Prosecutors must still prove that a defendant knew the drug was in their possession.

"In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under (the law) will preclude the conviction of the defendant," Canady wrote.

In dissent, Justice James Perry said the majority ruling relied on the flawed notion that it was "highly unusual" that innocent people would unknowingly carry around illegal drugs. "Common sense to me dictates that the potential for innocent possession is not so highly unusual as the majority makes it out to be," Perry wrote.

As it stands, a final word on which ruling stands would have to be made by the U.S. Supreme Court because federal district court rulings are not binding on the state supreme court.

The full Florida Supreme Court ruling is available at this link, and here is a passage from the majority opinion's conclusion:

In enacting section 893.101, the Legislature eliminated from the definitions of the offenses in chapter 893 the element that the defendant has knowledge of the illicit nature of the controlled substance and created the affirmative defense of lack of such knowledge. The statutory provisions do not violate any requirement of due process articulated by this Court or the Supreme Court.  In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under section 893.101 will preclude the conviction of the defendant.

July 13, 2012 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Shouldn't SCOTUS review Georgia's uniquely tough application of Atkins?

The question in the title of this post is promoted by this new lengthy AP article about the next scheduled lethal injection in Georgia.  The piece is headlined "Case highlights strict Ga. execution standard," and here are the basics:

Georgia was the first state to ban executing mentally disabled death row inmates, but the case of an inmate who is to be put to death next week has highlighted the state's strictest-in-the-nation standard for proving mental disability.

Former President Jimmy Carter is among those who have said the state pardons board should commute Warren Lee Hill's death sentence to life in prison without parole. However, the state argues defense attorneys have failed to meet their burden of proving beyond a reasonable doubt that Hill is mentally disabled.  Hill was convicted of the 1991 murder of a fellow inmate.

Most states that impose the death penalty have a lower threshold for defendants to prove they are mentally disabled, while some states don't set standards at all.  Hill's lawyer Brian Kammer said the high standard for proving mental disability is problematic because psychiatric diagnoses are subject to a degree of uncertainty that is virtually impossible to overcome.

Prosecutors have presented expert testimony and evidence that Hill is not disabled, while his attorneys have presented their own evidence to prove he is disabled.  That can make it difficult to determine anything beyond a reasonable doubt, said Kay Levine, an associate professor of law at Emory University.

"Beyond a reasonable doubt can never be met if you're simply not sure which side is unequivocally telling the truth and which side is not," said Levine, who has no connection to the Hill case.  "The issue with Georgia setting its mental health standard as high as it's set is that it requires such a high level of certainty that even scientists will rarely reach."

Nonetheless, Georgia's strict standard has repeatedly been upheld by state and federal courts.  Last year, the 11th U.S. Circuit Court of Appeals ruled in an appeal of Hill's case that it couldn't strike down Georgia's law because the U.S. Supreme Court allows states to create their own definitions for mentally disabled.  The decision, written by Judge Frank Hull, noted the justices were careful not to set their own rigid guidelines for such a definition.  Even if Georgia "somehow inappropriately struck the balance" when it adopted its standard, Hull wrote, only the U.S. Supreme Court can overturn the state's law.

The Supreme Court last month declined to hear Hill's case, but his lawyer has already submitted a new request to the high court....

The state has cited expert testimony and IQ tests that concluded Hill is not mentally disabled.  Before trial, Hill's family members described him as "the leader of the family" and "a father figure," the state notes.  He was not in special education classes and served in the Navy, where he received promotions, the state has said.

The defense has referenced a state court judge's assessment that Hill was mentally disabled and a test that shows his IQ to be about 70.  The defense has also cited expert testimony that it is not unusual for someone who is mildly mentally disabled to be able to function at a satisfactory level in an environment as structured as the military.  Attorneys also presented a letter from some of Hill's teachers saying that he could never read or write at the proper grade level, and that he was promoted to the next grade only so he would continue to be with children his own age.

The Georgia Board of Pardons and Paroles is set to hear Hill's case Friday.  His lawyer has asked the board to commute Hill's sentence to life in prison without parole or to grant him a 90-day delay to allow the U.S. Supreme Court to consider his case.

Included with the application to the board are letters from former President Carter and his wife, disability groups and the nephew of Joseph Handspike, the inmate Hill killed.  Richard Handspike, who says he is a representative for the family, says in the letter that they were not contacted by prosecutors but would have told authorities they did not want Hill to be executed.

"I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death," Handspike said.  "I believe that if the system had evidence of such disability in Mr. Hill, it should have taken steps to treat him accordingly and prevent his execution."

It has now been more than a decade since the Supreme Court ruled in Atkins that the Eighth Amendment prohibits the execution of mantally retarded defendants.  In Atkins, SCOTUS punted back to the states the hardest issue the case raised: how state are to procedurally administer this new substantive limit on the death penalty.  This procedural issue has been resolved in disparate ways throughout the nation, and Georgia's uniquely tough approach is arguably unconstitutional by virtue of being uniquely tough.  Also, I cannot think of any other matter of criminal procedure in which a defendant is expected to prove something beyond a reasonable doubt.

Perhaps five or more Justices of the current Supreme Court would find constitutionally permissible Georgia's approach to Atkins; perhaps five or more Justices would not.  Either way, this issue seems sufficiently important and ripe for SCOTUS to resolve this issue ASAP and the Hill case seems like a timely and appropriate means for doing so.

July 13, 2012 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (27) | TrackBack

Noting the notable racial dynamics in Chicago's spike in homicides

Chi homicideThis new Chicago Tribune article, headlined "Homicide numbers reveal stark contrast," spotlights that the recent increase in violent deaths in Chicago have a distinctive demographic dimension. Here are the details:

Violent crime has long afflicted minorities in Chicago at a much higher rate than the rest of the population, and the spike in homicides in the first half of this year provides an especially stark measure: 201 of the 259 homicide victims were African-American.

While blacks make up about 33 percent of the city's population, they accounted for nearly 78 percent of the homicide victims through the first six months of 2012. By comparison, just 11 homicide victims in the first six months of the year were white, and 44 were Hispanic, according to police data.

The pattern is a familiar one in Chicago, where most violent crime happens in impoverished, mostly black neighborhoods on the South and West sides. Annual Chicago police statistics show a majority of both homicide victims and offenders are young black men with criminal records. With one exception, African-Americans have made up more than 70 percent of homicide victims in Chicago every year for the last two decades.

The Tribune reported Monday that 143 of the homicide victims in the first half of the year were listed as being at least affiliated with a street gang. The data obtained by the paper represent the Police Department's preliminary assessment of crimes and are subject to revision as investigations progress.

A deeper review of the numbers shows males ages 15 to 35 made up nearly three-quarters of African-American homicide victims. Police data showed that 133 of those 145 victims had arrest histories. Of the 44 Hispanic victims, 27 were males ages 15 to 35 and had arrest histories, according to the data. Three of the 11 white victims were males in that age range with arrest histories.

As stress escalates in neighborhoods that are as dangerous as foreign war zones, African-American political leaders are expressing frustration with the policing strategies of police Superintendent Garry McCarthy and Mayor Rahm Emanuel as well as the systemic problems in their communities....

When Emanuel was running for mayor, violent crime was reaching lows not seen in decades, but the candidate made safety conditions in the city's poorest neighborhoods a centerpiece of his campaign. After his February 2011 election, he wrote in a transition paper: "Far too many Chicagoans still live in homes, neighborhoods, and communities where fear and violence persist. Despite progress in recent years, violence in Chicago, and gun violence in particular, exacts an enormous toll and exacerbates almost every other problem the city faces. As a city, we can and will do better."

Instead, the city has done much worse. Through the first six months of the year, homicides were up by nearly 38 percent over last year. Blacks made up 140 of the 188 victims in the first six months of 2011, according to police data.

Proportionally, there have been fewer children and young adults killed this year compared with last year, according to the data. In the first six months of this year, 45 homicide victims were between infancy and 19 years old, compared with 41 victims in that age range last year. At the other end of the age range, just a quarter of homicide victims were older than 40.

In communities where the cycle of violent crime — disputes, violence and retaliation — has become the norm, young people who have seen too much death develop hardened attitudes about violence startlingly early, Cochran said. After the gang-related killing of 13-year-old Tyquan Tyler last month, Cochran said he met with some of the boy's friends and came away unsettled.

"The most troubling thing I saw recently on the street was friends of the 13-year-old boy who was killed," he said. "Their exposure to this violence — and they are engagers of the violence — and their buy-in to have this prolonged."

July 13, 2012 in Data on sentencing, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (8) | TrackBack

July 12, 2012

Big new Sentencing Project report on felon disenfranchisement

The Sentencing Project has just published this new report titled "State-Level Estimates of Felon Disenfranchisement in the United States, 2010." The report provides comprehensive estimates of the extent of disenfranchisement in all 50 states, and here is how it gets started:

The United States is one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes.  A remarkable 5.85 million Americans are forbidden to vote because of “felon disenfranchisement,” or laws restricting voting rights for those convicted of felony-level crimes.  In this election year, the question of voting restrictions is once again receiving great public attention.  This report is intended to update and expand our previous work on the scope and distribution of felon disenfranchisement in the United States (see Uggen and Manza 2002; Manza and Uggen 2006).  The numbers presented here represent our best assessment of the state of felon disenfranchisement as of December 31, 2010, the most recent year for which complete data are available.  Our goal is to provide statistics that will help contextualize and anticipate the potential effects of felon disenfranchisement on elections in November 2012.

Our key findings include the following:

  • Approximately 2.5 percent of the total U.S. voting age population -- 1 of every 40 adults -- is disenfranchised due to a current or previous felony conviction.

  • Ex-felons in the eleven states that disenfranchise people after they have completed their sentences make up about 45 percent of the entire disenfranchised population, totaling over 2.6 million people.

  • The number of people disenfranchised due to a felony conviction has escalated dramatically in recent decades as the population under criminal justice supervision has increased.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and over 5.85 million in 2010.

  • Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions.  In six states -- Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia -- more than 7 percent of the adult population is disenfranchised.

  • 1 of every 13 African Americans of voting age is disenfranchised, a rate more than four times greater than non-African Americans. Nearly 7.7 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.

  • African American disenfranchisement rates also vary significantly by state. In three states -- Florida (23 percent), Kentucky (22 percent), and Virginia (20 percent) -- more than one in five African Americans is disenfranchised.

July 12, 2012 in Collateral consequences | Permalink | Comments (13) | TrackBack

Who should prosecute and what is a fitting "sentence" for Penn State officials after Freeh Report?

The question in the title of this post is prompted by this CNN report on the new investigative report just released about Penn State's poor (and surely criminally negligent) behaviors in the Sandusky affair.  Here is how the CNN report starts:

Penn State's most powerful leaders showed "total and consistent disregard" for victims of child sex abuse and failed to protect children, according to the findings of a long-awaited internal review over how the university handled a scandal involving its former defensive coordinator.

In fact, the report says several former officials "empowered" Jerry Sandusky to continue his abuse, and investigators say legendary head football coach Joe Paterno could have stopped the attacks had he done more.

In a statement released along with the 267-page report, Louis Freeh, the former FBI director and federal judge who spearheaded the review, blasted several top former officials at the school, accusing them of forging an agreement to conceal Sandusky's attacks. "There are more red flags here than you can count," said Freeh, who added that the abuse occurred just "steps away" from where Paterno worked in the university's Lasch Building.

"Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky's child victims by the most senior leaders at Penn State," Freeh wrote. "The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized."

He went on to name four former school officials -- former President Graham Spanier, former Vice President Gary Schultz, Paterno, and former athletic director Tim Curley -- saying they "never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky's victims until after Sandusky's arrest." Their failure "to protect against a child sexual predator harming children" lasted "more than a decade," the full report says.

"They exhibited a striking lack of empathy for Sandusky's victims by failing to inquire as to their safety and well-being, especially by not attempting to determine the identity of the child whom Sandusky assaulted in the Lasch Building in 2001. Further, they exposed this child to additional harm by alerting Sandusky, who was the only one who knew the child's identity, of what (Mike) McQueary saw in the shower on the night of February 9, 2001."

The full report, with all its exhibits, can be found at this link.

July 12, 2012 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Commentator laments "A Day in the Life of the Death Penalty: July 18, 2012"

The title of this post is drawn from the headline of this potent commentary by Andrew Cohen now posted at The Atlantic. It gets started this way:

Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America.  Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage.  And at 7 p.m., the state of Georgia plans to execute a convicted murderer named Warren Hill, who years ago was deemed by a veteran state judge to be mentally retarded.

These executions will take place, absent extraordinary Supreme Court or gubernatorial intervention, because federal and state judges at lower levels of our nation's justice system have perversely interpreted recent United States Supreme Court decisions. Whereas the Justices have tried in the past few years to give men like Hearn and Hill more access to meaningful appellate review, judicial obstructionists down below have refused to apply either the letter or the spirit of the new procedural rules.

In Texas, the perpetually rogue Fifth Circuit, in an opinion dripping with disdain for the justices in Washington, has just refused to apply the precedent established in Martinez v. Ryan, a Supreme Court decision issued in March that sought to expand appellate rights for defendants like Hearn.  In Georgia, meanwhile, the state supreme court has refused to designate Hill as mentally retarded, scoffing at the mandate of Atkins v. Virginia, the Supreme Court's ruling banning the execution of the mentally retarded.

Neither man claims to be innocent.  Neither man would ever set foot outside of a state prison even if he were to prevail on his claims.  In both instances, original fact-finders (the trial judge or jury) were deprived of material evidence that the Supreme Court has long expected of the "mitigating" phase of a capital case.  In both cases, incomplete and therefore inaccurate judgments were rendered.  Yet look at how hard all these jurists have fought, how much they have contorted controlling precedent, to block Hill and Hearn from fixing the record.

July 12, 2012 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

"The Unexonerated: Factually Innocent Defendants Who Plead Guilty"

The title of this post is the title of this new article now available via SSRN authored by John Blume and Rebecca Helm.  Here is the abstract:

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty.  And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered.  Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release.

There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead.  The second is the current draconian sentencing regime for criminal offenses.  And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry.  This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.

July 12, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (73) | TrackBack

July 11, 2012

Fourth Circuit panel talks through challenging restitution issues for child porn downloaders

In a long discussion (which includes a concurring opinion), a Fourth Circuit panel today has weighed in on various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader. Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Burgess, No. 09-4587 (4th Cir. July 11, 2012) (available here); here is the start and a notably snippet from the main opinion:

A jury convicted Albert C. Burgess, Jr., of two felonies involving the receipt and possession of materials depicting minors engaged in sexually explicit conduct. The district court sentenced Burgess to a term of 292 months’ imprisonment, and to supervised release for life.  The district court also ordered that Burgess pay, among other things, restitution of $305,219.86 under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259 (the restitution statute), for losses suffered by "Vicky," a child victim portrayed in pornographic material in Burgess’ possession.

Burgess challenges both his convictions and sentences on appeal.  We affirm his convictions and all aspects of his sentences, except the district court’s award of restitution to the victim.  Because the district court did not make specific findings regarding the elements of restitution, we vacate the restitution award and remand the case to the district court for a calculation of the loss Burgess proximately caused the victim....

We are confident in the skill of the district judges throughout this circuit to ascertain the appropriate amount of restitution in a given case.  Nevertheless, we are mindful of the challenges posed in the determination of damages under the restitution statute. Accordingly, we add our voice to that of the Ninth Circuit in Kennedy in requesting that Congress reevaluate the structure of the restitution statute in light of the challenges presented by the calculations of loss to victims in the internet age.  643 F.3d at 1266.

July 11, 2012 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Drug scarcity, not litigation, has Texas moving to one-drug execution protocol

The last decade has seen huge (and hugely expensive) constitutional litigation in state and federal courts throughout the nation concerning three-drug lethal injection execution protocols.  Capital defendants in these cases often claimed they hoped only to push states to adopt a one-drug protocol rather than give up executions altogether; rarely did they succeed in this mission, though often they did managed to achieve (their true goal of?) a delay in a scheduled execution.  This lethal injection litigation twice made it to the Supreme Court docket, though the SCOTUS rulings in Hill and Baze did relative little to clarify or conclude (still on-going) constitutional litigation over three-drug execution protocols.

Against the backdrop of this litigation history, I find more than a little irony in various aspects of this new AP story coming from the state with the most active death chamber.  The story is headlined "Texas switches to 1-drug execution due to shortage," and here are the basics:

Texas, the nation's most active death penalty state, announced Tuesday that it would become the latest to switch to single-drug executions amid a drug shortage that has left states scrambling for acceptable alternatives.

The Texas Department of Criminal Justice said it will begin using a single dose of the sedative pentobarbital to carry out death sentences. It had been using that drug in combination with two others, but its supply of one of the other drugs expired.

Texas began using pentobarbital last year after another drug, sodium thiopental, became unavailable when its European supplier bowed to pressure from death penalty opponents and stopped making it. But pentobarbital is now in short supply after its Danish manufacturer said it would try to prevent its use in executions.

An Oklahoma inmate asked a federal court on Tuesday to halt his upcoming execution because that state has only one dose of pentobarbital left. A lawyer for Michael Hooper said Oklahoma has no backup plan if the drug fails to render Hooper unconscious, and that creates a risk of cruel and unusual punishment.

Texas officials said in May that they have enough doses of pentobarbital to carry out 23 executions. No one has been executed in the state since....

Four other states - Arizona, Idaho, Ohio and Washington - have used a single drug to carry out executions, according to the Death Penalty Information Center. Ohio was the first to use just pentobarbital, during a March 2011 execution. Other states, such as Missouri, plan to use propofol, the anesthetic blamed for Michael Jackson's death, to do single-drug executions.

Death penalty opponents claim single-drug executions may be less humane. They point to an April execution in Arizona, where an inmate shook for several seconds after receiving a lethal dose of pentobarbital. The drug was used by itself in that case.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said three-drug cocktails kill quicker than a single anesthetic like pentobarbital. "The person still goes to sleep and gradually loses mental capacity and dies, but it may take a slightly longer time," Dieter said. "I think the idea originally was to cause death quickly, but you needed the anesthetic to make those next two drugs painless."

Texas has carried out more executions than any other state, 482 since the state reinstated capital punishment in 1982. Its next scheduled lethal injection is July 18, when Yokamon Hearn is set to die for killing a 23-year-old stockbroker from Plano, north of Dallas, in 1998.

Hearn's lawyer, Richard Burr, said he was studying the switch to a single drug and hadn't decided yet whether to file an objection to it. Texas has nine executions, including Hearn's, scheduled between now and mid-November. Clark said switching to a single-drug method now will ensure that all can be carried out as planned.

Dieter said Texas' switch might influence other states and provide more evidence for whether a one-drug procedure works better than previous methods. "Either way, it provides more evidence that this is or is not the way to go," Dieter said. "Everybody thinks of Texas as the leading execution state. It's a question of numbers."

July 11, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Fascinating video documenting challenges of securing compassionate release for dying federal prisoner

Federal public defender Steve Sady has an extraordinary record of litigating effectively (if not always successfully) a number of lower-profile, but highly-important, federal sentencing issues related to how the Bureau of Prisons runs federal prisons and applies various federal statutes.  And now, thanks to this post at the Ninth Circuit Blog, I see that Steve Sady has created an extraordinary video which documents his work on the issue of compassionate release on behalf of one terminally ill federal prisoner.  The blog post is titled "Second Look Resentencing: The Human Costs Of The BOP’s Restrictive Implementation Of Compassionate Release," and here is the introduction to the video which I have embedded below:

Phillip Smith contacted our office because, even though he had been diagnosed with a terminal illness, the Bureau of Prisons refused to allow his sentencing judge to decide whether to grant a motion to reduce his sentence and let him die at home.  After about two weeks of litigation, the BOP agreed to file the motion, which the judge immediately signed.  After release, Phillip sat down with us to describe his experience with a system that failed to even alert his judge to his terminal illness until he had almost no time left. The video with Phillip's story in his own words is available here.  Phillip died a week after the interview.

Legal arguments are one thing; the practical and human costs are another. Phillip hoped that by putting a human face on the problem, things would change for the hundreds of prisoners whose sentencing judges never even know of the extraordinary and compelling circumstances that warrant a second look resentencing.

July 11, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

July 10, 2012

"Is the Federal Pardon Process Racially Biased? It’s Time to Get Answers"

The title of this post is the title of this new commentary by Julie Stewart now up at The Crime Report.  Here are excerpts:

Dafna Linzer, the Pro Publica reporter whose dogged determination resulted in two front-page Washington Post stories on the OPA, ... concluded that whites are four times as likely as non-whites to receive a presidential pardon, even when the circumstances of their crimes are roughly the same.

Seven months have passed since Ms. Linzer’s first expose was published. Yet neither the OPA nor the DOJ has responded publicly to its serious allegations of racial bias. When asked at FAMM’s briefing if she was surprised by DOJ’s public silence, Ms. Linzer observed that if the type of racial discrimination produced by the current pardon process were found at the state or local government level, DOJ would probably get involved and initiate an investigation. “Yet here,” she said, “we have a case of contemporary race disparity happening within the Justice Department itself.”

It’s time to get some answers. This week, 15 leading constitutional and criminal law professors sent a letter to the U.S. Senate Judiciary Committee urging the committee to investigate the OPA. “While Congress properly plays no role in the actual consideration of clemency petitions,” the group wrote, “there is a duty of oversight relating to the operation of this office.“

The law professors’ letter is the fourth request for a review of OPA.... Concerns about OPA’s misconduct are bipartisan and cut across administrations. Former Maryland Gov. Bob Ehrlich, a Republican, co-authored an op-ed with me that called for a congressional investigation. Conservative columnist Debra Saunders has long championed clemency for Clarence Aaron and expressed outrage and surprise at the intentional torpedoing of his application, the evidence of which was reported by Ms. Linzer.

And Kenneth Lee, Associate White House Counsel to George W. Bush, told Ms. Linzer that Clarence Aaron’s petition was presented to him “in the least favorable light to the applicant".

The President’s constitutional authority to grant clemency is too important to be left in the hands of people who have their own agenda. Commutations can correct the excesses of harsh, mandatory minimum sentences. Pardons ensure that rehabilitated individuals get the clean slate they need to land a job or to get a line of credit to start a new business. More generally, the clemency power recognizes that our justice system is imperfect, and that prosecutors and police sometimes make mistakes....

The OPA’s only job is to assist the president by providing him with the unbiased information he needs to fulfill his constitutional clemency power fully and fairly. It is clear that the OPA is failing miserably. Since the OPA (and DOJ) will not even respond publicly to serious allegations of incompetence and corruption, Congress must investigate.

Related posts concerning federal clemency practices:

July 10, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Ohio Gov. Kasich commutes yet another murderer's death sentence

As reported here last month, a divided Ohio Parole Board urged Gov John Kasich to reject the clemency request of condemned killer John Eley who was scheduled to to be executed later this month.  I now say "was scheduled to to be executed" because, as reported in this new local article, "Gov. John Kasich today commuted the death sentence of a Mahoning County murderer to life in prison without parole [citing] the mental capacity of John Jeffrey Eley as his reason for offering the leniency."  Here is more on this notable commutation:

Eley was scheduled to die for lethal injection next year for the 1987 killing of a 28-year-ild Ihsan Aydah, which the governor called a "heinous act" but an act that Eley is not fully responsible.

"In participating in the murder, John Jeffrey Eley, who has limited mental capacity, acted under the direction of another man who was later acquitted," Kasich said in a press release. "Without those factors it is doubtful that Eley would have committed this crime."

Kasich also noted that the Mahoning County prosecutor who tried Eley's case has also called for clemency. "The combined weight of these facts leads me to commute Eley's sentence to life in prison without parole," Kasich said. "Murder under any circumstance is an atrocious act and this decisionin no way diminishes that or the actions of Eley. I pray that the family and friends of Ihsan Aydah can find peace."

The referenced press release (which says little more than what is reprinted in the article above) is available at this link.

Some recent related posts on Eley case and some earlier Kasich clemency grants:

July 10, 2012 in Clemency and Pardons, Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (23) | TrackBack

"Are Our Sex Crime Laws So Radical They Deter Reporting?"

The provocative question in the title of this post comes from Professor Dan Filler via this post at The Faculty Lounge, which in turn links to this extended op-ed also by Dan Filler appearing in today's Philadelphia Inquirer.  The op-ed carries the headline "Penn State scandal shows sex-abuse laws can backfire," and here are excerpts:

[T]here is another lesson to be learned from this horrible [Sandusky] story, and it's time we acknowledged it.  Penn State's administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it.  Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime....

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse.  The resulting panic has had serious consequences.  It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses.  In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification.  Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders.  Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is little evidence that all these measures reduce the incidence of sex crimes one whit.  They have, however, dramatically raised the stakes of reporting and charging such crimes.

There's no doubt that Penn State administrators were trying to protect the university and its football program.  But they were also trying to protect Sandusky and themselves from the tsunami that would follow.  I take [former Former Penn State president Graham] Spanier at his alleged word that he feared an inhumane result.  He isn't alone: Some recent research suggests that some prosecutors shape their charging and plea-bargaining decisions to moderate the effects of current laws.

And then there are the victims. If administrators and prosecutors are concerned about inhumane responses to sex offenses, think about the most common kind of victims: those who are abused by relatives.  There is already plenty of pressure on children to keep quiet about abuse within families; public shaming and residential restrictions compound the consequences, which in many ways may end up hurting victims by dissuading them from reporting abuse and excluding them from communities when an offending family member is released.

There is no question that society needs strong laws prohibiting and punishing sexual abuse.  But those laws must be well-reasoned and tailored to be both just and effective.

Over the past 20 years, society has approached sex crimes with unbridled passion and anger.  This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing.  But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws.

The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes.  When laws become so radical that they work against the protection of victims, they are inherently inhumane.

July 10, 2012 in Celebrity sentencings, Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (49) | TrackBack

Distinct headlines with distinct stories on modern intersections between Bible and jail

BH03The picture reprinted here is an overhead view of the historic Eastern State Penitentiary, and here below are a few passages from a lengthy discussion of the famed prison's early history:

Eastern State Penitentiary broke sharply with the prisons of its day, abandoning corporal punishment and ill treatment. This massive new structure, opened in 1829, became one of the most expensive American buildings of its day and soon the most famous prison in the world.  The Penitentiary would not simply punish, but move the criminal toward spiritual reflection and change....

Eastern's seven earliest cellblocks may represent the first modern building in the United States.  The concept plan, by the British-born architect John Haviland, reveals the purity of the vision.  Seven cellblocks radiate from a central surveillance rotunda.  Haviland’s ambitious mechanical innovations placed each prisoner in his or her own private cell, centrally heated, with running water, a flush toilet, and a skylight.  Adjacent to the cell was a private outdoor exercise yard contained by a ten-foot wall.  This was in an age when the White House, with its new occupant Andrew Jackson, had no running water and was heated with coal-burning stoves.

In the vaulted, skylit cell, the prisoner had only the light from heaven, the word of God (the Bible) and honest work (shoemaking, weaving, and the like) to lead to penitence.  In striking contrast to the Gothic exterior, Haviland used the grand architectural vocabulary of churches on the interior.  He employed 30-foot, barrel vaulted hallways, tall arched windows, and skylights throughout.  He wrote of the Penitentiary as a forced monastery, a machine for reform.

The historic and intricate links between incarceration, religious commitments and the Bible are on my mind today because of these two very different recent stories reporting on two very different modern intersections of Bible study and imprisonment:

July 10, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (2) | TrackBack

Another corrupt former governor gets another light federal sentence

The title of this post is meant to be (harmfully?) sensational, because the local story here about the former Missouri Gov. Roger Wilson being sentenced to probation in federal court reveals that he was not really very corrupt, that his misdeed was committed after he left office, and and he did not really get an unduly lenient sentence given that he was convicted only of a misdemeanor and his probation term was a within-guideline sentence. Here are the white-collar crime and punishment specifics in this case:

U.S. Magistrate Judge Mary Ann Medler's sentence was expected. Wilson faced probation to six months in prison under federal sentencing guidelines. His lawyer, Robert Haar, had asked for probation, citing his long public service record.

After a lengthy investigation, Wilson was indicted in April on a misdemeanor insurance charge for laundering a total $8,000 in campaign contributions from Missouri Employers Mutual Co., a state-created workers' compensation company based in Columbia, to the Missouri Democratic Party through a St. Louis law firm, Herzog Crebs. Former Herzog Crebs partner Ed Griesedieck III was also indicted.  Wilson was president and CEO of MEM at the time.

Medler sentenced Wilson to two years of probation and ordered him to pay a $5,000 fine and $5,000 in restitution. He will also complete 100 hours of community service. Griesedieck received one year of probation. The other aspects of his sentence were the same.

In court Wilson read a short statement in which he thanked his family and friends. He apologized and said he looks forward to a future in community service. "There are no excuses," he said. "I made a mistake." He read a similar statement outside the courthouse. He also said that he had already paid the fine and half of the restitution. Griesedieck presumably has or will pay the rest....

Wilson served two terms as lieutenant governor and nearly 14 years in the state senate. He also formerly chaired the Missouri Tourism Commission and the Missouri Rural Economic Development Council.  Wilson was sworn in as Missouri's 52nd governor following the death of Gov. Mel Carnahan in 2000 in a plane crash.  After leaving office, Wilson worked for a money management firm and served as the Missouri Democratic Party's chairman from 2004 to 2007.

July 10, 2012 in Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

July 9, 2012

"Singapore to relax, but not remove, death penalty"

The title of this post is part of the headline of this new Reuters article, which gets started this way:

Singapore's deputy prime minister on Monday said the country plans to ease its mandatory death penalty in some drug and murder cases but not abolish the ultimate punishment that human rights groups condemn as barbaric.

The wealthy Southeast Asian city-state, which has a zero-tolerance policy for illegal drugs and imposes long jail terms on convicted users, has hanged hundreds of people -- including dozens of foreigners -- for narcotics offences in the last two decades, Amnesty International and other groups say.  That approach prompted science fiction writer William Gibson to describe Singapore as "Disneyland with the death penalty".

But the government, reflecting changes in "our society's norms and expectations", will put forward a draft law by the end of this year to give judges more leeway to deal with certain drug and murder cases, Deputy Prime Minister Teo Chee Hean told parliament.  "While there is a broad acceptance that we should be tough on drugs and crime, there is also increased expectation that where appropriate, more sentencing discretion should be vested in the courts."

To avoid execution for drug trafficking, two specific conditions must be met, he said. First, the accused must have acted only as a courier, with no other part in the supply or distribution.  "We also propose to give the courts the discretion to spare a drug courier from the death penalty if he has a mental disability which substantially impairs his appreciation of the gravity of the act, and instead sentence him to life imprisonment with caning," Teo said.

This sure does not sound like a significant relaxation of the death penalty in Singapore.

July 9, 2012 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (5) | TrackBack

Appeal waiver prompts federal judge to reject child porn plea deal

The Denver Post has this effective article on a notable recent ruling by a federal district judge to reject a plea agreement in order to preserve appellate review. The piece is headlined "Rejected Colorado child porn plea deal puts light on appellate waivers," and here are excerpts:

When Timothy Vanderwerff, who is accused of possessing child pornography, went to the federal courthouse in Denver this year to plead guilty to the crime, the deal he struck with prosecutors looked like many others.

Vanderwerff, who faces up to 20 years in prison for the most serious of the three charges against him, would plead guilty to one of those charges and face no more than 10 years in prison.  He could receive as little as probation, though Vanderwerff agreed in the deal not to ask for a sentence of less than five years.   Lastly, Vanderwerff agreed to waive his right to appeal, so long as the judge didn't sentence him to more than the negotiated range.

It was that final detail that gave Senior U.S. District Judge John Kane pause. Writing in an unusually candid order rejecting the plea deal — a rare occurrence itself — Kane said such waivers can hurt the justice system.  "Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions," Kane wrote.

Vanderwerff's case has been set for trial in early August....

Kane's refusal of the deal has thrown a light on the practice of negotiating appellate waivers into plea agreements. According to a 2005 study in the Duke Law Journal, appellate waivers are common across the country, occurring in as many as 90 percent of plea deals in some jurisdictions.

They began appearing in federal criminal cases in Colorado after the state's current U.S. attorney, John Walsh, took office in 2010, said Jeff Dorschner, a spokesman for the office.  Walsh, Dorschner said, was concerned about wasting the court's and the government's resources when defendants appeal the sentences they received after initially agreeing to those sentences in plea deals. Such appeals are almost always denied....

In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.

Vanderwerff's attorney also urged Kane to accept the deal. "Both sides benefit from it," Assistant Federal Public Defender Edward Harris wrote.

Kane, though, viewed the waiver dimly. "[S]acrificing constitutional rights at the altar of efficiency," he wrote, "is of dubious legality."

I have long thought appeals waivers (and related collateral review waivers) are among the most important and least examined aspects of post-Booker modern federal sentencing practices, with huge disparities based on different federal prosecutorial policies and practices and different judicial attitudes and approaches to accepting deals with such waivers.  Right after Booker, as revealed by some posts linked below, I blogged a lot about such waivers and about my view that they are void as against the public policy reflected in Booker's embrace of reasonableness review.  It seems as though Judge Kane's opinion (which I will link if/when I can find it on-line) reflects some of these sentiments.

Some older and more recent appeal waiver posts:

UPDATE:  A helpful reader sent me a copy of Judge Kane's opinion in Vanderwerff, and I have provided the document for downloading below.  The opinion runs a to-the-point 11-pages, and it is today's must read.  Here is one of many notable passages:

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers.  Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment.  See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012).  Ethical and moral values inevitably infuse the decisionmaking process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such.

The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline.  That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly.  Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.  Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court’s recent history.  See Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and United States v. Booker, 543 U.S. 220 (2005)).  Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Download USA_v_Vanderwerff opinion

July 9, 2012 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Some notable recent commentary on judging and modern technology

The intersection of old-world judicial decision-making and new-world electronic technolgies has always been of interest to me as a blogger and a lawyer and a law professor.  Thus, I found these two new pieces in some older media (found via the godfather of legal blogs, How Appealing) especially notable:

Regular readers may not be surprised to hear that my biggest concern with these articles is that they are too much concerned with Supreme Court decision-making and not enough concerned with decision-making by state and lower federal courts.  When and how a state intermediate appeals judge or a federal district judges is engaging with Google and the blogosphere may be of even bigger concern than when SCOTUS Justices are doing this stuff because these other judges (a) rarely get the benefits of amicus briefs, (b) rarely write lengthy opinion which will repeatedly "fact-checked" while in production and thereafter, and (c) rarely have vocal dissenting colleagues who will highlight any questionable facts or factors relied upon in a ruling.  In other words, whether the concern is due process for the litigants, accuracy in decision-making, or transparency in the judicial branch, I think Google and the blogosphere are even bigger concerns for the work of judges more than for Justices.

July 9, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Did conservative affinity for the federal drug war save the Affordable Care Act?

Back in March around the time of the oral arguments in the health care cases, I blogged, in this post titled "Liberty, commerce, the federal drug war, health care reform and the Constitution," about the links I saw between the 2005 Commerce Clause challenge to federal marijuana possession laws in Raich and the 2012 challenge to the Affordable Care Act.  That post (which generated a lot of insightful comments) concluded with these sentiments:

Whether the constitutional concern is personal liberty or limits on federal power, I think it is much harder to justify the reach of the federal drug war in Raich than to justify the reach of federal health care reform and the individual mandate. But, sadly, while so many are energized and eager (mostly for political, not legal reasons) for SCOTUS to strike down all of federal health care reform, so few in 2005 were energized and eager for SCOTUS to strike down the most extreme application of the federal drug war. This is not only disappointing, in my view, but also another great example of the old aphorism "what comes around, goes around."

As evidenced by this post at The Volokh Conspiracy, titled "Who Lost the ACA Litigation?  Kennedy and Scalia in 2005," some post-game analysis of the SCOTUS heath care ruling is picking up on the reality that legal and social perspective on the limits of federal power would have been much different in 2012 if Justices Kennedy and Scalia had not voted against any limits on the federal drug war in Raich.  Here are snippets from a terrific exposition on this point authored by Professor Michael Ramsey:

[T]he most important date for the outcome in the challenge to the individual mandate may have been June 6, 2005, when the Court ruled 6-3 for the government in Gonzales v. Raich.

That is not because of the force of precedent.  Precedent, especially at the Supreme Court level, is overrated.  Justices can and do (and perhaps should) distinguish cases on flimsy grounds.  It’s also not because Raich was in itself an important case -- the ability to grow marijuana in one’s own backyard seems a minor freedom at best.  No one doubts that states can ban such activity, and most have for a long time.  But Raich was a lost opportunity to build incrementally a legal culture that would have supported a more constraining decision in the health care case. 

Consider the world we would have if Justices Kennedy and Scalia -- who now deplore the Court’s failure to check the national government in the health care challenge -- had joined Justice O’Connor’s Raich dissent.  That would have produced a 5-4 decision against the government (those three plus Justice Thomas and Chief Justice Rehnquist, who did join O’Connor).  Despite the closeness of the vote, it likely wouldn’t have met sustained opposition.  O’Connor was perceived as moderate and non-ideological, providing political cover.  The issue was narrow: whether the national government could prevent Ms. Raich from growing marijuana in her own backyard for her own medical use.  A ruling against the government posed no serious challenge to the national drug laws, and O’Connor’s dissent (which would have become the majority) is appropriately and characteristically narrow....[T]hough the decision would have been criticized, it would have been accepted into the legal culture, taught in law schools, cited in briefs, and become part of commentators’ vocabularies.

Would that have mattered? I think so. In this hypothetical world, the decision against the government in Raich would have extended the trend of the Lopez (1995) and Morrison (2000) cases, whose central message was that there were (some) federalism limits on the national government. It would have signaled that the longstanding and pivotal precedent Wickard v. Filburn didn’t mean everything it might be thought to mean....

Instead, the actual result in Raich (and especially Scalia’s and Kennedy’s agreement with it) signaled that the Court was not inclined to press the federalism project opened in Lopez and Morrison; a broad view of Wickard appeared secure, and it seemed plausible to assume that (absent political motivations) the Court wouldn’t take meaningful federalism-based actions against an important national law (since it could not even bring itself to take the insignificant action Ms. Raich wanted).  The decision in Raich became a weapon for the health care law’s defenders -- again, not because it bound the Court into a particular result, but because it promoted a legal culture in which federalism challenges weren’t expected to be taken seriously.

One may argue that something as abstract and ephemeral as “legal culture” can’t determine the views of life-tenured Justices.  That’s likely true of particular judges and in particular cases.  But in close cases there will be Justices who are uncertain and whose votes will be needed; and for them the legal culture will matter, both because they are products of it, and because they will hesitate to stand against it.  The closeness of the health care case despite a hostile legal culture, and the speculations regarding the Chief Justice’s concerns, suggest that a more accommodating legal culture might have made the difference.  If so, perhaps the challenge to the mandate was lost in 2005.

An extra bit of modern irony to this constitutional jurisprudence story comes from the fact that (1) Justice Kennedy has now become a regular vote for federal defendants in drug sentencing cases (see, e.g., Dorsey and Setser and Tapia recently), and (2) Justice Scalia has become a rather vocal critic of too many "local" drug cases being prosecuted in federal court (see, e.g., posts here and here).  Thus, in addition to being contrary to their strong views expressed in the ACA cases about the reach of federal power, their swing votes in the 2005 Raich case would now seems to be against their legal/policy views that the federal drug war has now led to too many little cases being brought into federal court and being subject to federal punishments that are too extreme.

July 9, 2012 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (31) | TrackBack