Saturday, March 14, 2015
Oklahoma House passes safety valve to give judges more sentencing discretion
In the course of this lengthy discussion in the comments at Crime & Consequences, Bill Otis labelled the the federal bill known as the Justice Safety Valve Act as "radically pro-criminal" because it would give federal judges some limited authority to sentence defendants below statutory mandatory minimums. Though I disputed this label, I suspect Bill might be inclined to call most members of the Oklahoma House "radically pro-criminal" based on this recent news, headlined "Oklahoma House passes bills to give judges more discretion in sentencing." Here are the details:
The Oklahoma House on Wednesday approved a key piece of justice reform legislation intended to help reduce the state’s growing population of prison inmates.
Rep. Pam Peterson’s House Bill 1518 would give judges the authority to hand down shorter sentences for some crimes that now require mandatory minimum prison time. The judge would be allowed to do this if the longer sentence would be unjust or if the offender does not present a risk to public safety. There are more than 100 crimes in Oklahoma that carry requirements for incarceration for specified minimum durations.
Called the Justice Safety Valve Act, the Tulsa Republican’s measure was passed 76-16 and was sent to the Senate. It is modeled after similar legislation that has been approved in 17 other states. The bill would not allow judges to consider lesser sentences for violent or sexual offenses....
Rep. Scott Biggs, R-Chickasha, argued against the measure, saying it would minimize the role of district attorneys in the sentencing process and isn’t tough enough on repeat offenders.
“I’ve said I’m for reform, just not when it comes to violent offenders. Here we have repeat offenders,” he said. “This is a bad bill.”
Peterson said it’s time to reform the state’s justice system, noting Oklahoma’s prisons are overflowing due to the highest incarceration rate in the nation for women and one of the highest for men. The state’s prison population has doubled since 1990, but the crime rate has not declined as fast as that of other states, she said. “The definition of insanity is to do the same thing over and over again and expect a different result,” she said.
Gov. Mary Fallin has urged the Legislature to embrace justice reform efforts this session, including finding ways to offer more prison diversion programs that would provide treatment rather than incarceration for nonviolent offenders with drug and mental health problems.
Notable criminal justice commentary from Slate
Slate is already one of my regular daily reads for all sorts of topics, and Slate's regular writers on criminal justice issues (Dahlia Lithwick, Emily Bazelon, William Saletan) always have something interesting to say. And these recent Slate pieces seem like must-reads for criminal justice fans:
UPDATE: Just a few days since I first completed this post, here are some more must-read Slate pieces:
Friday, March 13, 2015
"Jones, Lackey, and Teague"
The title of this post is the title of this notable new article by J. Richard Broughton now available via SSRN. Here is the abstract:
In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane.
By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making the case for applying the bar, this paper adds to, and challenges, the existing literature on capital punishment, Lackey claims, and Teague doctrine. This paper dissects the Jones ruling on the application of Teague, examining the Supreme Court’s “new rule” case law and concluding that Lackey claims, when viewed at the appropriate level of generality, propose a new rule. It then addresses the more complicated aspect of applying Teague in this context, recognizing that the first Teague exception poses the most likely basis for avoiding the Teague bar on a Lackey claim. At a minimum, Lackey claims (like Miller v. Alabama claims, now the subject of substantial Eighth Amendment litigation on collateral review) sit at the intersection of procedural and substantive rules. Nonetheless, this paper makes the case for viewing the claim as procedural and therefore Teague-barred. Ultimately, then, this paper emphasizes a point that could substantially influence existing litigation: litigators and federal judges should take the Teague bar more seriously when considering Lackey claims on federal habeas review, particularly when viewed in light of modern habeas rules and doctrine that limit relief and protect the interests of the states. But the paper also emphasizes an important point about death penalty policy and politics: if the state is to have a death penalty at all, it should be prepared, and willing, to ensure that death sentences are actually carried out.
Utah establishes criminal registry for white-collar offenders
Via this New York Times piece, I see that Utah has extended the idea of a criminal registry to fraudsters. Though I have reservations about criminal registries for a variety of reasons, I think this particular kind of registry might make a lot of sense as a recidivism/crime prevention measure. Here is how this fascinating story gets started:
With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.
Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons. The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”
“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”
While some Utah lawmakers fear that the registry is overkill, the idea does tap into a vein of populist outrage over financial misdeeds. As much as sex offender registries spread state by state, so too could a white-collar crime registry find favor across the nation, say its supporters.
The legislation’s sponsor in the Utah Senate, Curtis S. Bramble, a Republican, plans to promote the idea through his role as president-elect of the National Conference of State Legislatures, an influential group, saying that “the registry could become a best practices for other states.”
March 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
Wednesday, March 11, 2015
"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"
The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:
The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”
The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense. These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.
These guidelines are premised on the following foundational principles:
children are constitutionally and developmentally different from adults;
children, by reason of their physical and mental immaturity, need special safeguards and care;
children must not be defined by a single act;
juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation;
juvenile life defense requires a qualified team trained in adolescent development;
juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner;
juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;
juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;
juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;
juvenile life defense counsel must litigate for a presumption against life sentences for children; and
juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.
Mizzou lawyers spotlight problems poised by rapid pace of executions
As reported in this Kansas City Star article, headlined "Attorneys struggle to keep up with Missouri’s execution pace," the Show Me State's recent pattern of showing condemned inmates to the execution chamber on a regular basis has prompted a notable expression of concern from lawyers. Here are the details:
[F]or the small group of lawyers who take on the burdens of defending inmates on the cusp of execution in Missouri, the sheer volume of cases is overwhelming their ability to do that work.
That’s the message four law professors and lawyers delivered to the Missouri Supreme Court this week as they called for execution procedure changes that would give lawyers more time for each client. “These amendments are necessary because the capital defense bar is in crisis because of its recent workload,” the group wrote.
Since November 2013, Missouri has executed 13 men. A handful of lawyers who specialize in capital litigation have represented most of them. They also represent most of Missouri’s other defendants with a pending execution date or who soon are expected to see one set.
The state’s fast execution pace — Missouri tied Texas for most in the country last year with 10 — has left those lawyers struggling to meet their legal obligations to multiple clients at the same time, according to the letter by members of an American Bar Association death penalty assessment team that recently studied Missouri’s execution system. “The legal proceedings in death penalty cases are notoriously lengthy and complex,” they wrote. “Establishing a detailed understanding of those proceedings is a time consuming task and a basic prerequisite to competent performance.”
In addition, the cases take an intense emotional toll on attorneys who get to know the clients intimately before watching them die, the letter said. “No matter how professional the relationship between a death-sentenced client and his counsel, having a client executed is a uniquely taxing professional experience,” the letter stated. One attorney has represented five of the last nine men executed and has two other clients with an “imminent risk of execution,” the letter noted....
The four members of the assessment team who sent the letter to the Supreme Court — University of Missouri law professor Paul Litton, St. Louis University law professor Stephen Thaman, retired Missouri Court of Appeals Judge Hal Lowenstein and Douglas Copeland, a partner in a St. Louis law firm — recommended three amendments to the state’s rules.
The first would limit any one lawyer from representing a client who has an execution date set within six months of any of the lawyer’s other clients. Second, they also ask that a minimum notice of six months be given before an execution can be carried out. The third proposal would allow lawyers to prioritize caseloads to concentrate on cases with pending execution dates while being granted more time to deal with other clients’ cases.
“These are common-sense solutions to a serious problem affecting virtually every scheduled execution,” according to the letter.
The problems have mounted only recently in Missouri, where the lawyers pointed out that only two executions took place in the seven years from 2006 through 2012. But this has been a long-term issue in other death penalty states. “For decades it has been widely recognized … that unreasonable workloads among capital litigators can severely challenge the effectiveness of their representation,” said national death penalty expert Deborah Denno, a professor at the Fordham University School of Law.
Though it will be up to the Missouri Supreme Court to adopt or reject the rule changes, the court has shown some flexibility in the past. Last July, it changed the rules to limit executions to no more than one per month.
And last August, the court withdrew an execution warrant it had issued the previous month after the inmates’ attorneys said they wouldn’t have enough time to do everything required in the case while balancing work they had in other pending cases. They were given additional months before that man’s execution was carried out in November....
Jennifer Herndon, a St. Louis-area lawyer who has represented several death row inmates, said the proposals are all good ideas that are badly needed. “People don’t understand the pressure, particularly in the last 30 to 45 days before an execution,” she said. “If you don’t work on it 24 hours a day, you’re thinking about it 24 hours a day.” Facing that same kind of pressure month after month makes it virtually impossible to operate at 100 percent “no matter how hard you try,” she said.
The helpful folks at The Marshall Project have uploaded a copy of the letter reference in this article at this link.
Monday, March 09, 2015
What is SCOTUS reviewing in Hurst as it considers Florida's capital sentencing process?
As noted in this post, this morning the US Supreme Court today finally decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring. But, as this new SCOTUSblog post about the cert grant spotlights, it actually is not entirely clear just what the Supreme Court has decided to decide:
The Florida death penalty case now up for review involves Timothy Lee Hurst of Pensacola, who faces a death sentence for the 1998 murder of a woman who was an assistant manager at a Popeye’s fast-food restaurant where Hurst also worked.
Hurst’s public-defender lawyers asked the Court to rule on two broad questions: one about the jury’s role when an accused individual claims a mental disability, and one about the jury’s role in the death-sentencing process, including an issue of whether its verdict must be unanimous. (His jury split seven to five in recommending death.) The second question was based on a claim that Florida courts fail to follow a 2002 Supreme Court decision on death sentencing, Ring v. Arizona.
In agreeing to rule on the case, the Court rewrote the question it will consider in an apparent attempt to simplify it: whether Florida’s approach to death sentencing violates either the Sixth Amendment or the Eighth Amendment “in light of this Court’s decision in Ring v. Arizona.”
Because the Ring decision is all about the Sixth Amendment, and the role of the jury in deciding whether a murder was committed in an “aggravated” form, it is not clear just what the Court had in mind in linking an Eighth Amendment issue to the Ring precedent. It could be, although this was not plain from the order, that the Court is looking at Hurst’s case on Eighth Amendment grounds on his claim of mental disability, on the lack of jury unanimity, and on the general fairness of a death sentence for this particular individual. Presumably, that will become clearer as the briefs are filed in the case in coming months.
Helpfully, this extended post at Crime & Consequences reviews some of the legal background and possible implication of the Hurst case, which includes these observations:
The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case. The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.
Because of the maelstrom of potential legal issues raised by this particular Florida case, I am not sure what to expect from the Justices. I am sure any and everyone who does not like how Florida does its capital sentencing (including the nearly 400 murderers currently on Florida's death row) may be inclined to present varied constitutional arguments to SCOTUS to urge a reversal of the death sentence in this intriguing new case.
SCOTUS finally takes up whether Florida's capital system is constitutional in light of Apprendi and Ring
One big question that arose way back in 2000 when the Supreme Court issued its landmark Apprendi decision was whether capital sentencing schemes that incorporated judicial death penalty determinations were still constitutional. In 2002, in Ring, the Supreme Court somewhat clarified matter when it found Arizona's capital sentencing scheme problematic in light of Apprendi. Now, finally and remarkably, the Supreme Court has decided to decide whether Florida's capital sentencing scheme is constitutional in light of Apprendi and Ring.
This new SCOTUS order list has just one new cert grant, and here it is:
HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).
Notably, according to the Death Penalty Information Center's data, Florida has carried out 39 executions since the Supreme Court handed down its ruling in Ring in 2002, and I suspect a good number of those Florida condemned (and now dead) murderers asserted that their death sentencing violated the Sixth Amendment and/or the Eighth Amendment in light of Ring. If there is some kind of afterlife for executed murderers, I expect there will now be some interesting SCOTUS talk in the Florida section of that netherworld.
Sunday, March 08, 2015
Can a sheriff prohibit sex offenders from a church that is sometimes a school?
The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:
A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....
"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.
Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.
"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.
Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....
Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.
In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.
Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.
The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.
Saturday, March 07, 2015
California voters through Prop 47 help fix prison crowding problems plaguing state for decades
Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s. Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues. But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.
I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way. The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:
California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.
The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday. Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.
But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47. “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview. “The thing we are grappling with is the tremendous rise in property crime.”
Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....
Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....
In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014. Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.
Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said. “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”
Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less. Prior to the measure, the threshold for misdemeanor property crimes was $450. Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.
Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”
Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure. Most of that money is slated for mental health and substance abuse programs.
I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.
Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).
Some prior related posts on California's Prop 47 and its early impact:
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Notable pitch for California Prop 47 based in mental health concerns
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
- Impact of California's Prop 47 already being felt ... by defense attorneys and police
- Intriguing review of early impact of California's Prop 47 reducing offense seriousness
- Early report on the early impact of Proposition 47 in California
March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, March 06, 2015
Examining some statistical realities behind federal death penalty administration
This intriguing Voactiv piece, headlined "Here Are The Odds The Boston Bomber Will Get The Death Penalty," draws on the Boston bomber federal capital trial as an opportunity to looks at some basic federal capital sentencing data. The piece is subheaded "Turns out, it's pretty hard to get a jury to vote for execution," and here are excerpts:
As the [Tsarnaev] trial wraps up its first week, we looked at how often the U.S. Attorney General has asked for the death penalty over the past two decades, and how often it has been able to get the jury to agree. Between 1989 and 2009, some 2,795 cases were eligible for the death penalty. Of those, the federal government brought 262 death- cases to trial and only 70, or about 25 percent, ended in a death sentence, according to the most recent statistics from the Federal Death Penalty Resource Counsel. In the vast majority of the 262 cases, the juries recommended a life sentence instead.
Many death-penalty cases, another 201, never saw the inside a courtroom because they were settled before the trial.... [And] the federal government rarely pursues it even in cases that are eligible. The U.S. Attorney General has approved death penalty prosecution for only 15 percent of all eligible cases over the past 20 years....
Even if Tsarnaev does get the death penalty, the execution isn’t likely to happen any time soon: Of the 70 people who have been sentenced to death in federal trials around the country in the last two decades, most are still waiting on death row. Only three people have been executed since 1977, the latest in 2001. Some defendants have been waiting on death row for over 20 years.
Fourth Circuit holds that Miller is not retroactive on collateral review under Teague
Like many who follow Eighth Amendment jurisprudence or care about juvenile justice, I had been hopeful that the Supreme Court was finally going to resolve this Term whether its Miller ruling barring mandatory LWOP sentences for juvenile offenders was to be applied retroactively. But Toca, the case on which cert had been granted a few months ago, got resolved on other grounds and now lower court rulings continue to be central to this issue for the time being. Consequently, I am grateful to a reader who alerted me that the Fourth Circuit yesterday, in Johnson v. Ponton, No. 13-7824 (4th Cir. March 5, 2015) (available here), formally addressed this matter. Here is how the panel's unanimous opinion starts and winds down:
Petitioner-Appellant Shermaine Ali Johnson appeals the district court’s dismissal of his habeas petition under 28 U.S.C. § 2254, challenging his sentence of life imprisonment without parole. He argues that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), is retroactively applicable to him on collateral review. Miller held that imposing mandatory life imprisonment without the possibility of parole for juvenile homicide offenders -- i.e., imposing that sentence without any individualized consideration of their status as juveniles -- violates the Eighth Amendment. For the reasons that follow, we conclude that the Miller rule is not retroactively applicable to cases on collateral review. We therefore affirm....
We therefore hold that the Supreme Court has not held the Miller rule retroactively applicable, and that the Court’s holdings do not dictate retroactivity because the rule is neither substantive nor a watershed rule of criminal procedure. In so deciding, we join the Eleventh Circuit. We also note that our holding is consistent with that of the only other circuit court panel to have answered the question of Miller’s retroactivity. See Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (unpublished).
Thursday, March 05, 2015
Despite spending many millions, Arizona prosecutors again fail to convince a sentencing jury to send Jodi Arias to death row
I have been interested in the Jodi Arias case from Arizona since she was found guilty of murder two years ago, not principally because of all the media attention her case generated, but because of the extraordinary efforts Arizona prosecutors were prepared to make AT TAXPAYER EXPENSE to try to get Arias on to the state's death row. Last year in this post, I guessed that Arizona prosecutors were spending more than $5,000,000 in taxpayer funds in their effort to have Jodi Arias sent and kept on death row rather than in another part of Arizona's prison system.
As this new AP report from Arizona highlights, all those taxpayer costs created by the prosecutors in this one state capital case have now officially achieved nothing:
Convicted murderer Jodi Arias was spared the death penalty Thursday after jurors deadlocked on whether she should be executed or sent to prison for life for killing her lover in 2008.
It marked the second time a jury was unable to reach a decision on her punishment — a disappointment for prosecutors who argued for the death penalty during a nearly seven-year legal battle. It means the judge will sentence Arias on April 13 to either life in prison or a life term with the possibility of release after 25 years.
Family members of victim Travis Alexander wept when the judge announced that jurors couldn't reach a decision after deliberating for about 26 hours over five days. The family sobbed as they left the courtroom, with one covering her eyes as she walked out. Arias' mother, Sandra, received a hug from a friend moments after the verdict was read....
Arias' 2013 trial became a sensation with its tawdry revelations about her relationship with Alexander and that she shot him in the head and slit his throat so deeply that he was nearly decapitated. It was broadcast live and TV audiences heard how Arias had stabbed and slashed Alexander nearly 30 times then left his body in his shower at his suburban Phoenix home, where friends found him about five days later.
The jury convicted her of first-degree murder but deadlocked on punishment, prompting the sentencing retrial that began in October. Prosecutors say they don't regret trying again to send Arias to death row. Maricopa County Attorney Bill Montgomery, who decided to seek the death penalty a second time, told reporters that "regret is a place in the past I can't afford to live in."
Arias initially courted the spotlight after her arrest, granting interviews to "48 Hours" and "Inside Edition." She testified for 18 days at her first trial, describing her abusive childhood, cheating boyfriends, relationship with Alexander and her contention that he was physically abusive. She did more media interviews after the jury convicted her of murder.
Spectators lined up in the middle of the night to get a coveted seat in the courtroom for the first trial. However, attention was dampened during the penalty retrial after the judge ruled cameras could record the proceedings but nothing could be broadcast until after the verdict.
The proceedings revealed few new details about the crime and dragged on months longer than expected amid a series of expert witnesses and a surprising late October decision by Judge Sherry Stephens to remove reporters and spectators from the courtroom so Arias could testify in private. A higher court halted the testimony on its second day after complaints from news organizations. At the end of the retrial, Arias passed up a chance to address the jury. She said she wanted to make such comments but refused to do so unless the courtroom was cleared. She cited potential personal safety threats in declining to speak in the open courtroom.
I am not at all surprised to hear the Arizona prosecutors now "say they don't regret trying again to send Arias to death row." After all, these prosecutors got the opportunity to work for two more years on a high-profile and exciting case and they likely will not suffer any professional consequences for wasting an extraordinary amount of taxpayer resources now twice failing to convince a jury that Jodi Arias ought to die for her crimes.
Especially because, as I said before in prior posts, it was extremely unlikely Arias would ever be executed even if she had been sentenced to death, this case is now for me exhibit #1 in the extraordinary misallocation of resources that the death penalty can often engender because prosecutors generally get all the political benefits and suffer none of the true economic costs of capital punishment systems. The folks who should really regret how this case has been handed are crime victims and others in need of social services and programming in Arizona. As I noted in a prior post, the Arizona Crime Victims Programs — which is under the authority of the Arizona Criminal Justice Commission and "provides support to all agencies that assist and compensate the victims of crime" — has an annual budget of around $5,000,000. I feel pretty confident a lot more good throughout Arizona could have been done if state tax resources were allocated to doubling the funds for crime victim programming rather than enabling prosecutors to keep seeking a death verdict for Jodi Arias (which itself was never likely to get carried out).
Some prior posts on the Arias case:
- After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
- Are there (and/or should there be) special death penalty rules for female murderers?
- Arizona jurors quickly make finding for Jodi Arias to be formally death eligible
- Jodi Arias now pleading for a life sentence before sentencing jury
- Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death
- Noting the high costs of seeking to give Jodi Arias death penalty fame rather than LWOP pain
- Arizona poised to take second (costly) run at death sentence for Jodi Arias
- Arizona prosecutors getting started at second (costly) run at death sentence for Jodi Arias
March 5, 2015 in Celebrity sentencings, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack
Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?
The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers. This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:
In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.
But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.
Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.
But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....
And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....
Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.
Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.
Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release. And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.
Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75. But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail." Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.
March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack
Wednesday, March 04, 2015
First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing
Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing. The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:
Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.
The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.
We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges. We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....
A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.
Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance. We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.
Some related prior posts:
P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post. It has been a long day.
March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
As reported in this local article, headlined "Pennsylvania Supreme Court to take death penalty moratorium case: Philadelphia DA calls governor’s actions lawless and unconstitutional," a fascinating case concerning state executive powers in the Keystone State is officially to be considered by the state Supreme Court. Here are the details:
The Pennsylvania Supreme Court on Tuesday agreed to take a case filed by the Philadelphia district attorney’s office challenging Gov. Tom Wolf’s moratorium implemented last month on capital punishment in the state. District Attorney R. Seth Williams asked the court to take up the matter involving a defendant named Terrance Williams, who was scheduled for lethal injection today.
Although Seth Williams asked that the court take the case on an expedited basis, the court refused, and it will be heard on a standard calendar, which means that both sides will file briefs and replies over the next several months, and oral argument will be scheduled at a date in the future.
It will probably be more than a year before any decision is reached, and University of Pittsburgh law professor John Burkoff said it could be even longer if the court decides it wants two new justices, who will be elected later this year, to consider the case as well.
Mr. Wolf announced on Feb. 13 that he was instituting a moratorium on the death penalty in Pennsylvania, saying that it was not an “expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes.” Instead, he continued, it was “based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust and expensive.” He cited nationwide statistics that show 150 people have been exonerated from death row, including six in Pennsylvania....
But in his filing, Seth Williams argues that Mr. Wolf’s action was lawless and unconstitutional. “Merely characterizing conduct by the governor as a reprieve does not make it so,” the prosecutor’s filing said.
Instead, it continued, “At all times in Pennsylvania history a reprieve has meant one thing and only one thing: a temporary stay of a criminal judgment for a defined period of time, for the purpose of allowing the defendant to pursue an available legal remedy. The current act of the governor is not a reprieve. Nor, indeed, could it be. There is no remaining legal remedy available to defendant. He received exhaustive state and federal review. He sought pardon or commutation and it was denied. There is nothing legitimate left to pursue and no remedy to wait for.”
To halt the imposition of the death penalty on a defendant, the district attorney’s office continued, the sentence must be commuted, which can be done only with unanimous agreement by the state Board of Pardons. Seth Williams accused the governor of usurping judicial function.
But in the governor’s response, his attorneys said what he was doing is temporary — a reprieve — and requires no input from the Board of Pardons. “The governor has ‘exclusive authority’ and ‘unfettered discretion to grant a reprieve after imposition of sentence and on a case by case basis,’ ” they wrote, quoting an earlier court case.
Prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
Tuesday, March 03, 2015
Jury seated and ready for opening arguments in Boston bombing trial
As reported in this AP article, to culminate "two months of jury selection, a panel of 12 jurors and six alternates was seated Tuesday for the federal death penalty trial of Boston Marathon bombing suspect Dzhokhar Tsarnaev." Here is more about a high-profile federal capital proceeding:
The all-white panel consists of eight men and 10 women. Jurors include a self-employed house painter, an air traffic controller, an executive assistant at a law firm and a former emergency room nurse. Opening statements in the case are scheduled for Wednesday.
Tsarnaev, 21, faces 30 charges in connection with twin bombings at the finish line of the marathon April 15, 2013. Three people were killed and more than 260 were injured. He is also charged in the killing of a Massachusetts Institute of Technology police officer days after the bombings.
If the jury convicts Tsarnaev, the trial will move on to a second phase to determine his punishment. The only two options available for the jury are life in prison or the death penalty....
During the jury selection process, Tsarnaev's lawyers tried repeatedly to get the trial moved out of Massachusetts, saying he could not find a fair and impartial jury because of the emotional impact the bombings had in the state. O'Toole rejected three change-of-venue motions, saying the process of carefully questioning jurors to detect bias was successful in finding impartial jurors. The 1st U.S. Circuit Court of Appeals twice refused to order the trial moved.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- "Death penalty for Boston bomber a complicated question"
- Gearing up (finally) for start of capital trial of Boston Marathon bomber
- "Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?
Student Guest Post: "Behind Bars In 140 Characters or Less"
I told students in my Sentencing Course this semester that they could earn extra credit in the class by providing me with blog-ready, cut-and-paste materials for this blog. One student did just that by providing me with this effective review of recent discussions of prison discipline in South Carolina:
"Behind Bars In 140 Characters or Less"
This February 19 article from the New York Times Magazine entitled “The Shame of Solitary Confinement” explores the abuse of solitary confinement sentencing for inmates of South Carolina prisons.
Dave Maass, an investigative researcher for the Electronic Frontier Foundation, used the 40-page South Carolina Department of Corrections Social Media Disciplinary Report to parse through punishments inmates receive for posting to Facebook or Twitter while behind bars. (His full report can be found here.) The distributed punishments range from loss of canteen privileges, good time, or visitation, to loss of property privileges or telephone rights.
On the record of some inmates, “disciplinary detention” for X number of days is listed. Disciplinary detention or “administrative segregation” are nicer terms for solitary confinement. Maass discovered that South Carolina inmates who made online posts were receiving seemingly disproportionate sentences of solitary confinement for their actions, a punishment typically received for “the worst of the worst” within prison. Now, simple rule violations, in South Carolina and (we have reason to believe) in other states, can land inmates in solitary. Could these disobedient actions not be equally, and perhaps more justly, punished by locating and confiscating the device, and sentencing the inmate to an overnight work shift, janitor duty, or a loss of other privileges short of years worth of solitary confinement?
The most troubling thing of all, Maass discovered, is that the undefined number of days could reach up to nearly thirty-eight years of solitary confinement for repeat offenders.
“In October 2013, for example, Tyheem Henry received a penalty of 37½ years in solitary confinement, for posting on Facebook on 38 different days. When Maass looked into the issue, he found that the agency was sending inmates caught posting on social-media sites to solitary confinement for an average of 512 days.”
In Tyheem Henry’s case, that’s nearly one year of solitary confinement per post on social media. In cases less egregious than Henry’s, where inmates posted only once or twice, the average length of solitary per post exceeded a year.
The policies behind prisons not wanting inmates to post to online sites is strong. The state is concerned that inmates may use the sites to intimidate witnesses or to plan the exchange of drugs or other contraband. Since prisoners generally are not allowed Internet access nor cell phones, presence of posts is also indicative of a possession of contraband and thereby an automatic rule violation.
Fortunately, Maass is hopeful that this punishment scheme is disappearing, thanks to South Carolina judges and Department of Corrections Director Bryan Stirling. On February 2, Stirling signed a new disciplinary mandate setting the maximum solitary punishment to sixty days per infraction/series of related infractions. Stirling reported that the new policy would prevent “stacking time,” the practice that allowed for the extended sentences discussed above.
“In January 2014, a few months after Stirling took office, a South Carolina state court judge, J. Michael Baxley, entered a hard-hitting directive in a long-running lawsuit on behalf of about 3,500 mentally ill prisoners. Baxley called the case “the most troubling” to come to the South Carolina courts, “far above all others,” in his 14 years on the bench. For mentally ill patients, isolation was “often used in lieu of treatment, with severe consequences,” Baxley found. Prisoners in South Carolina who suffered from depression, schizophrenia and other mental illnesses were almost twice as likely as other prisoners to go to solitary, for an average of 647 days.”
Citizens, taxpayers, and prison reformists should still be concerned, however. Is it going to take a Judge Baxley in each of the fifty states to add some structure to the punishment scheme for inmates? Shouldn’t there be at least some debate as to whether solitary confinement should be on the table at all for social media violations? After all, nearly 7% of South Carolina’s inmate population remains in solitary confinement.
“South Carolina’s record of abusing solitary may be particularly horrendous, but it’s not unique. California is being sued over prolonged solitary confinement — defined as lasting between 10 and 28 years (yes, again, years). In 2013, a county in New Mexico agreed to pay a settlement of $15.5 million to a man who, awaiting trial in jail on a drunken-driving charge, endured mental and physical suffering during 22 months of isolation. (He was never prosecuted.)”
Monday, March 02, 2015
California Supreme Court rules blanket sex-offender residency restriction fails rational basis review
In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds. As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."
As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:
In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b). As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....
The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole. We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.
March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack
Georgia scheduled to execute only female murderer on its death row
As reported in this AP piece, headlined "After weather delay, Georgia ready to perform rare execution of a woman," the Peach State appears poised this evening to end the life of a bad apple notable for her gender. Here are the details:
After getting a temporary reprieve when her execution was postponed because of winter weather conditions forecast to hit the state, the only woman on Georgia's death row is again set for execution Monday. Kelly Renee Gissendaner, 46, was scheduled to be executed Wednesday at the state prison in Jackson, but the Department of Corrections postponed it to Monday at 7 p.m., citing the weather and associated scheduling issues.
Gissendaner was convicted of murder in the February 1997 stabbing death of her husband, Douglas Gissendaner. Prosecutors said she plotted his death with her boyfriend, Gregory Owen.... Kelly Gissendaner repeatedly pushed Owen in late 1996 to kill her husband rather than just divorcing him as Owen suggested, prosecutors said. Acting on Kelly Gissendaner's instructions, Owen ambushed Douglas Gissendaner at the Gissendaners' home, forced him to drive to a remote area and stabbed him multiple times, prosecutors said
Owen pleaded guilty and received a life prison sentence with eligibility for parole after 25 years. He testified at Gissendaner's trial, and a jury convicted her and sentenced her to death in 1998.
The State Board of Pardons and Paroles, the only entity in Georgia authorized to commute a death sentence, on Wednesday denied Gissendaner clemency. A federal judge in Atlanta rejected a request to halt her execution, and her lawyers have appealed that decision to the 11th U.S. Circuit Court of Appeals.
If Gissendaner's execution happens, she will be the first woman executed in Georgia in 70 years. Lena Baker, a black maid, was executed in 1945 after being convicted in a one-day trial for killing her white employer. Georgia officials issued her a pardon in 2005 after six decades of lobbying and arguments by her family that she likely killed the man because he was holding her against her will. Baker was the only woman to die in the state's electric chair. P>Execution of female inmates is rare with only 15 women put to death nationwide since the Supreme Court in 1976 allowed the death penalty to resume. During that same time, about 1,400 men have been executed, according to the Death Penalty Information Center.
Prosecutors offered Gissendaner the same plea deal that was offered to Owen, but she turned it down. Post-conviction testimony from her trial lawyer, Edwin Wilson, gives some insight into why, Gissendaner's lawyers argued in a clemency petition. They quote Wilson as saying he didn't think a jury would sentence Gissendaner to death. "I guess I thought this because she was a woman and because she did not actually kill Doug," Wilson is quoted as saying, adding that he should have urged her to take the plea.
Victor Streib, a retired Ohio Northern University law professor and an expert on the death penalty for women, said it's clear that women are condemned to die far less frequently than men, but that there are so few cases that it's tough to draw any general conclusions. "Statistically, yes, if you've got two cases and everything about them is exactly the same and one case is a woman and the other case is a man, the man is more likely to be sentenced to death," Streib said, but added that he wouldn't count on that as a legal strategy.
One reason women aren't sentenced to death as often is that they don't commit as many murders and when they do they generally aren't the "worst of the worst" murders that lead to the death penalty, Streib said. Juries may also be more likely to believe a woman was emotionally distressed or not in her right mind at the time of a killing, which can spare them a death sentence, he said.