June 24, 2013
Are 12 Alleyne GVRs (including one from Kansas) a sign of big Sixth Amendment things to come?
Busy on various fronts, I have not yet had time to think through all the impacts that the Supreme Court's Sixth Amendment work last week in Alleyne might produce. But today, via this SCOTUS order list, I see that there are 12 cases in which certiorari is granted and the judgment vacated, so the case can be remanded "for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."
Some GVRs after a big SCOTUS sentencing ruling are not always a big deal, as there can often be a number of cases in the cert pipeline that are just like the case in which the Supreme Court announced its new doctrine. But, in addition to being intrigued that there were at least a dozen Alleyne-type claims already in the SCOTUS pipeline that now led to these GVRs, I find especially notable that one comes from Kansas (Astorga v. Kansas) and thus involves a remanded "to the Supreme Court of Kansas for further consideration in light of Alleyne v. United States, 570 U.S. ___ (2013)."
My sense has been that Alleyne could and would not end up being nearly as disruptive to any state sentencing systems as Blakely had been. But this Kansas remand, as well my own sense that at least a few states relied on Harris for a while to keep some parts of their sentencing systems in tact, prompts the question in the title of this post.
June 24, 2013 in Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
June 23, 2013
"Juries and the Criminal Constitution"The title of this post is the title of this new paper by Meghan Ryan now on SSRN. Here is the abstract:
Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal assessments of societal standards are likely not representative of society’s morals and values — because judges, themselves, are ordinarily not representative of the communities that they serve.
Juries, on the other hand, are constitutionally required to be drawn from a representative cross-section of the community. Further, because juries are composed of several different individuals, they may draw on a broader range of knowledge and expertise in making their decisions. The historically trusted body to protect defendants from an overbearing government, juries, rather than judges, should be the ones empowered to determine these criminal constitutional moral matters.
Notable condemned and notable execution milestone in Texas this weekAs reported in this international news piece from AFP, headlined "Texas prepares to execute 500th prisoner," a scheduled execution in Texas this coming week is drawing more than the usual attention for a number of reasons. Here is some context:
The US state of Texas is preparing to execute its 500th convict since the death penalty was restored in 1976, a record in a country where capital punishment is in decline elsewhere.
On Wednesday, in the absence of a last minute pardon, 52-year-old Kimberly McCarthy will receive a lethal injection in Huntsville Penitentiary for the 1997 murder of 71-year-old retired college professor Dorothy Booth. "What we do is we carry out court orders," said Jason Clark, spokesman for the Texas Department of Criminal Justice. "It's our obligation to carry this execution out."
Activists opposed to the death penalty are due to gather at the red brick state prison, known as the "Walls Unit," to mark the milestone with a protest against a punishment they regard as a holdover from another age.
In 1976, the US Supreme Court lifted a moratorium on the use of the death penalty and since that date 1,336 have been executed across the country, more than a third of them in Texas alone. "It is obviously still the leader of executions in the nation, but it is limited to a handful of counties," said Steve Hall of the StandDown Texas Project, which has campaigns for a new moratorium....
Richard Dieter of the Death Penalty Information Center, an academic watchdog, agreed. "Despite this major milestone, we expect the total number of executions to be less than last year and a new drop in death sentences," he said.
According to DPIC's figures, there are 3,125 convicts on death row in the United States and, if Wednesday's execution goes ahead, McCarthy will be the 17th prisoner put to death in the first six months of 2013.... American juries are also imposing capital punishment in fewer cases, with only 78 death sentences last year, down by around three-quarters since the 1990s -- although violent crime is also down.
And, while 32 of the 50 US states still have the death penalty on the books, many have imposed a de facto moratorium, with few or none of the executions carried out and convicts languishing on death row....
"By measurements like the number of executions, death sentences and states, the death penalty is in decline," admitted Robert Blecker, a professor at New York Law School. "But, in terms of the popular support, that is fairly constant. It is not in decline," he said, noting that the proportion of voters backing execution always increases in the wake of "egregious" crimes.
Opinion polls consistently show that between 60 and 65 percent of Americans back the death penalty, indicating that support goes beyond the roughly 50-50 left-right divide in US electoral politics.
This local piece from the Austin Chronicle discusses the specifics of the notable defendant now poised to be number 500 in Texas. Here is how it begins:
With the execution of Kimberly McCarthy slated for June 26, Texas is on the eve of a historic first: The first state to have executed 500 individuals since reinstatement of the death penalty — an event that also extends Gov. Rick Perry's record as the U.S. governor presiding over the most executions ever carried out. McCarthy is slated not only to be tagged with the infamous fate of 500, but will also become only the fifth woman — and the third black woman — executed in Texas since 1854.
McCarthy, who was previously married to New Black Panther Party founder Aaron Michaels, was sentenced to die for the 1997 robbery-murder of her 71-year-old neighbor, retired professor Dorothy Booth. According to the state, McCarthy's crack cocaine addiction led her to employ a ruse — she needed to borrow sugar, she told Booth — in order to get into Booth's house. Booth was repeatedly stabbed, and her finger, with ring on it, was cut off. Booth's car and credit cards were also stolen; McCarthy told police she pawned the items to get money for drugs.