Sentencing Law and Policy

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Should religious doctrines influence Eighth Amendment jurisprudence?
• Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

"Sex With Informant Voids Prostitution Case"

The title of this post is the headline from this lengthy new report from The Legal Intelligencer.  Here is how the piece starts:

In a case of first impression, the Pennsylvania Superior Court ruled last week that state troopers committed "outrageous government conduct" when investigating alleged prostitution at a massage parlor in the Lehigh Valley by giving money to an undercover informant to have sex four times with two different women at the parlor.

On Thursday, the unanimous panel of Judges John T. Bender and Jack A. Panella and Senior Judge John T.J. Kelly Jr. upheld Lehigh County Common Pleas Judge Robert L. Steinberg's 2008 order dismissing charges of prostitution and promoting prostitution against defendant Sun Cha Chon.  Steinberg found the state police investigating alleged prostitution at Shiatsu Spa committed outrageous government conduct and violated Chon's constitutional rights to due process.

Though this ruling clearly hinges in part on the nature of the criminal activity which the government instigated, the notion that a criminal prosecution should be thwarted because of "outrageous government conduct" involving a confidential informant could have broad implications.  The press report indicates that the Lehigh County District Attorney's office plans to appeal the decision, and this case is worth watching if and when it gets to the Pennsylvania Supreme Court.

Virginia clears final big legal hurdle for executing DC sniper on Tuesday

As detailed in this new Washington Post piece, today the Supreme Court "denied John Allen Muhammad's request to stay his execution, clearing the way for Virginia to put to death the man who terrorized the Washington region as the Beltway Sniper."  Here's more: 

Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor objected to the court's haste, saying it "highlights once again the perversity of executing inmates before their appeals process have been fully concluded."  Stevens, writing for the three, said Virginia had short-circuited the process by scheduling Muhammad's execution for Tuesday night, earlier than the court would normally have reviewed his petition for the court to take his case.

I am not sure what I find most remarkable about this case: the fact that Virginia has been successful in getting Muhammad to the door of the death chamber "only" six years after he was sentenced to death for his horrific crimes is almost as remarkable as the fact that the capital review process is usually so cumbersome that we call a six-year appeal process hasty in a seemingly open-and-shut capital case.

SCOTUS argument transcripts for two criminal justice cases argued today

As noted in this prior post, the Supreme Court today heard arguments in Pottawattamie County v. McGhee, which concerns potential liability of prosecutors for arranging false testimony, and in Wood v. Allen, which concerns the scope of federal court review of facts in state criminal proceeding.  Now, via SCOTUSblog, the "oral argument transcripts for Pottawattamie County v. McGhee and Wood v. Allen are here and here."

With a faculty meeting and then a baseball game in my near future, I may not get a chance to comment on either of these arguments anytime soon.  But that should not stop others from noting anything especially noteworthy via the comments.

A Canadian perspective of appellate sentencing review

I just saw via SSRN this notable article about appellate sentencing review, which is titled "Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing." Here is the abstract:

This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921.  In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system of criminal justice.  We explore the important role that the BCCA has played in articulating a vision of what constitutes a just social response to criminal wrongdoing.

The court’s work in this area has been rich, its views on sentencing as mercurial as the practices of punishment.  At times the court has served quite directly as an institutional voice for dominant social views of punishment, whether they were of a more sternly retributive form or reflected an era of hope in rehabilitation.  Yet, in more recent years, the jurisprudence of the court has also included strong voices reflecting a critical posture towards traditional assumptions in our theories and practices of sentencing.  In the current political climate that finds a retributive ethos in the criminal law in ascendancy, this jurisprudence reminds us of the value of this posture — one that asks us to think more deeply, critically, and cautiously about the assumptions that tacitly guide our system of criminal justice.

DC Sniper makes (final?) appeal to SCOTUS before scheduled execution

As detailed in this Washington Post article and this SCOTUSblog post, lawyers for "sniper John Allen Muhammad, mastermind of the terrifying 2002 Washington area shooting spree, asked the U.S. Supreme Court on Tuesday to halt their client's execution, saying he was paranoid and delusional during his trial."  Here is how SCOTUSblog describes the legal particulars:

The new petition asked the Supreme Court to review two issues.  Paraphrased, they are: whether the Fourth Circuit was wrong in the standard it used to analyze the performance of his lawyers on the incompetency issue, and whether Congress has set a one-year filing period for the first habeas plea and thus that period cannot be shortened by federal judges.

The first question is a mixture of an inquiry into counsel’s performance, and a question of the scope of prejudice that may result from a flawed performance regarding competency.  Muhammad’s petition contends that, in judging whether Muhammad’s case was harmed when his lawyers failed to bring forth evidence of his incompetence, when the judge was considering whether to let Muhammad act as his own lawyer, the test is whether there was a reasonable chance the accused would have been found incompetent to waive his rights.  The Fourth Circuit, it adds, erred in focusing only on whether there was a reasonable prospect that the trial would have ended differently if Muhammad had not been his own lawyer (for two days of the trial)....

The second issue focuses on what the petition says is a truly novel practice, under which federal District Courts in Virginia routinely deny first-time habeas applicants a full year to prepare their habeas pleas.  Thus, the question raised is whether the one-year time provision in federal habeas law (enacted as part of the Antiterrorism and Effective Death Penalty Act) bars a federal judge from ordering an earlier filing.  Federal judges ordered Muhammad to proceed with plenty of time left in the one-year span, the petition says.

My gut instinct is that it is unlikely that the Justices will take up this high-profile capital case.  But, especially in death penalty settings, unexpected factors can sometimes lead to unexpected results. 

A SCOTUS week for criminal justice fans who like fed courts issues

As detailed in posts here and here from SCOTUSblog, the Supreme Court is not involved in many criminal justice issues that are likely to make huge headlines this week.  (The big SCOTUS headlines will be next week when the Court hears argument in the two juve LWOP cases of Graham and Sullivan.)  As these likes from SCOTUSblog spotlight, however, the Court is hearing argument in three cases this week that should be of great interesting to hard-core habeas and fed courts fans:

Mon., Nov. 2:

Beard v. Kindler (08-992) – enforcement of state procedural rule in federal habeas

Wed., Nov. 4:

Pottawattamie County v. McGhee (08-1065) – liability of prosecutors for arranging false testimony

Wood v. Allen (08-9156) – scope of federal court review of facts in state criminal proceeding

I suspect the Pottawattamie County will garner the most attention because it deals with the issue of wrongful convictions and prosecutorial misconduct.  But, as is often the reality, the case that gets the most media attention probably is not the one likely to have the most day-to-day impact on the operation of modern criminal justice systems.

Mississippi Supreme Court looking into capital case delays

As detailed in this local article, which is headlined "Death row case delays flagged," the Mississippi Supreme Court is trying to figure out why a number of state capital cases are stuck in the post-conviction appeal pipeline.  Here is how the piece begins:

The Mississippi Supreme Court has asked trial judges why they have not ruled on post-conviction claims of nine death row inmates.  At least four of the cases involve claims of mental disability.

The Supreme Court issued the orders Thursday. The justices said they want to know what is taking so long on the cases and if they should force on the trial judges a timetable to render decisions. In a post-conviction petition, an inmate argues he has found new evidence — or a possible constitutional issue — that could persuade a court to order a new trial.

"The Court has undertaken a systematic review of all pending post-conviction death penalty cases and has sought information on the status of cases for which there appears to be a lack of activity," Chief Justice Bill Waller Jr. said.  He said the reviews will continue. "We will systematically review the status of death penalty post-conviction cases ... to assure that the fair and efficient administration of justice is being carried out.

This story provides a useful reminder of the fact that capital case delays can often be the result of actions by foot-dragging lower courts (or even prosecutors); they are not produced soley by just death row defendants and their defense attorneys (though I suspect many defendants do not much mind such delays).

How should positive behavior in prison impact resentencings after Booker?

This local article about an interesting sentencing hearing spotlights a number of challenging conceptual issues that surround federal resentencings in the post-Booker world.  The piece caught my eye due to its headline, "Victim helps press for longer sentence for nurse in 'nude therapy' case," but these snippets spotlight the array of legal issues this case presents:

Linda Kaufman, a nurse convicted of defrauding and abusing the mentally ill residents of the Newton home she ran with her husband, Arlan, told a federal judge she has been a positive influence on fellow inmates during her four years in prison.   But a former resident of the home said Kaufman still needs to be held accountable for what happened there.

Not because she "married a monster," said Nancy Jensen, but because Kaufman was a registered nurse.   "She was to do no harm, and she was to advocate for the people that she was to help," Jensen said.

The statements came Tuesday in the courtroom of U.S. District Judge Monti Belot, who has been required by the 10th Circuit Court of Appeals to reconsider factors that could lengthen the seven-year prison sentence he originally imposed on Kaufman. After a two-hour hearing, Belot took the matter under advisement and said he'd make his ruling in a written memorandum. He didn't say when he'd issue it.

Linda Kaufman, 66, and Arlan Kaufman were convicted in November 2006 of enslaving the home's residents, forcing them to work naked and perform sex acts. Belot gave Arlan Kaufman a 30-year sentence and Linda Kaufman a seven-year sentence.

The appeals court said Belot should reconsider Linda Kaufman's sentence because she was alleged to have used a stun gun, which the government said was a dangerous weapon; because the offenses involved a large number of vulnerable victims; and because she obstructed justice by interfering with a federal audit and investigation of the home.

The government has recommended a sentence of at least 20 years. Kaufman's attorney, Steve Gradert, asked Belot to reimpose his original sentence. That sentence was below sentencing guidelines. Belot had shown her leniency, believing she was manipulated by her husband....

Jensen, in an emotional statement, said the Kaufmans "did horrible things to us in the name of mental health and in the name of taking care of clients." Linda Kaufman was a nurse who was responsible for taking care of people with mental illnesses, she said. "The harm that she did is not easily seen because it was emotional and affected our behavior and our belief systems," Jensen said. "She used our diagnosis to blame us and abuse us. So, therefore, Linda knew how to hide the harm she caused us and blamed us for."...

Linda Kaufman told Belot that during her confinement she had done a lot of volunteer and self-improvement activities.   She had coexisted peacefully with other inmates, had no disciplinary reports, worked faithfully at her prison jobs and received high scores for her job performance and cooperation, she said. She also participated in continuing education and religious classes. She said she won a humanitarian award last year for her work with inmates and for her quilting.

Kaufman said if she had another chance, she "would do many things differently," but she was looking to the future. "I long to join, and re-join, my grandchildren as soon as possible," she said.

Important sentencing issues ranging from co-defendant influence and disparity to the impact of the victim's testimony to the significance of the defendant's status as a nurse are all richly presented in this notable case.  But, as highlighted by the question in the title of this post, I am especially interested to hear views on whether readers think Linda Kaufman's positive behavior while incarcerated can (or should or must) be a significant consideration in her resentencing in light of Booker and the terms of 3553(a).

Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

I noticed this interesting recent piece on CNN headlined "'Lipstick Killer' behind bars since 1946."  The article is fascinating for various reasons, and here are a few highlights:

William Heirens, the "Lipstick Killer," is believed to be the longest-serving inmate in the United States. He turns 81 on November 15.  Diabetes has ravaged his body, but his mind is sharp.

"Bill's never allowed himself to be institutionalized," said Dolores Kennedy, his long-time friend and advocate. "He's kept himself focused on the positives." The days are spent mostly watching television and reading magazines.  Using a wheelchair and sharing a cell with a roommate in the health unit of Dixon Correctional Center, he still yearns for a chance at freedom.  It is something he has not tasted since 1946.

Heirens has been locked behind bars and walls for 63 years, making inmate C06103 the longest-serving prisoner in Illinois history, state officials say.  According to Steven Drizin, the legal director of the Center on Wrongful Convictions at Northwestern University, Heirens "has served longer than anyone in the U.S. that I can find."

He was put away a year after the end of World War II. It is a dubious record, but fitting for the man dubbed the Lipstick Killer, whose crime spree remains among the most infamous in the history of Chicago...  "Pray for my release," he wrote in a letter dated October 11. "There is no reason to keep this man behind bars," said Drizin. "He meets all the criteria for parole."

While Drizin, who has represented Heirens since 2001, and others passionately plead for his release and prepare to re-petition the state parole board that has consistently refused to free Heirens, others are convinced he is a manipulative murderer.  "He was the bogeyman," said Betty Finn of the man convicted of strangling her sister.  "I don't think you need to feel sorry for him. He chose his life and he chose his actions."...

He pleaded guilty to three counts of murder.  In exchange for the plea, Heirens was spared the death penalty and given three consecutive life sentences.

Heirens has distinguished himself in prison.  He was the first inmate in Illinois to receive a college degree . "He helped redesign the library system in the department of corrections," said Drizin, who also commended Heirens for becoming a "first-rate jailhouse lawyer."   Drizin said Heirens has been eligible for parole nearly every year since the 1970s. 

There are so many notable elements to this interesting story, ranging from claims that Heirens was tortured into a confession back in 1946 to the fact that he was able to avoid the death penalty by virtue of pleading guilty.  It is also interesting and notable that Heirens was only 17 at the time of his crimes; the Supreme Court's consideration of Eighth Amendment standards for juve sentencing in the upcoming Graham and Sullivan cases could arguably have some relevance to the "Lipstick Killer."  Then again, the issue in Graham and Sullivan concerns sentences of life without the possibility of parole for non-homicide crimes, whereas the "Lipstick Killer" is serving three life sentences with the possibility of parole for homicides.

Sixth Circuit officially joins bulk of other circuits declaring limits on 3582(c) sentence modifications

The Sixth Circuit today describes effectively the current state of the circuit law concerning sentence modifications pursuant to 18 U.S.C. § 3582(c)(2) in US v. Washington, No. 09-5110 (6th Cir. Oct. 27, 2009) (available here).  Here is how the majority opinion in Washington starts:

Defendant Errol Eugene Washington appeals the district court’s order denying, in part, his motion to reduce and modify his otherwise valid sentence pursuant to 18 U.S.C. § 3582(c)(2).  Washington’s appeal presents an issue of first impression in our circuit: whether the district court, in modifying a sentence pursuant to § 3582(c)(2), has authority under United States v. Booker, 543 U.S. 220 (2005), to reduce a sentence beyond the retroactive United States Sentencing Guidelines amendment range.  For the reasons explained below, we hold that the district court does not have such authority and therefore affirm the judgment of the district court.

For some reason that she fails to explain, Judge Moore does not join the majority opinion in Washington and just concurs separately.

"The Case Against Juvenile Life Without Parole: Good Policy and Good Law"

The title of this post is the title of this new Findlaw commentary by Kristin Henning, who is Co-Director of Juvenile Justice Clinic and Professor of Law at Georgetown University Law Center.   As the piece's title suggests, the author has a clear view of how the Graham and Sullivan juve LWOP cases ought to be resolved by the Supreme Court.  Here are snippets from the commentary:

In Sullivan and Graham, the Court is not considering whether juvenile offenders should be punished — or punished severely — for their crimes.  The Court is considering the narrow question of whether juvenile offenders should be afforded meaningful opportunities for parole.

Youth offenders, like all offenders, should be held accountable for their crimes — even by life imprisonment. Regardless of the Court's decisions in Sullivan and Graham, the very worst juvenile offenders still may spend the rest of their lives in prison. An opportunity for parole is just that: a chance for a prisoner to show strong evidence of rehabilitation.  If a juvenile offender does not demonstrate change and is deemed a threat to public safety, the parole board will not grant parole.  Victims' rights have long been protected through the parole hearing process, with victims retaining a right to participate and be heard before any decision on parole is granted....

When a child is robbed of the chance to reform, our country is robbed as well.  The overwhelming majority of juvenile offenders can and do become thriving, productive citizens.  This is not an unattainable ideal — it is an irrefutable truth, supported by the research of acclaimed scientists and the stories of inspiring youths like Kareem Watts.

This fall, the Supreme Court has the chance to follow the law — and ensure that Joe Sullivan's and Terrance Graham's path becomes the road not taken for other juvenile offenders.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?

"Prosecutors Turn Tables on Student Journalists"

The title of this post is the headline of this notable article in this morning's New York Times.  Though not quite a sentencing story, the piece provides an interesting object lesson in how some prosecutors respond when their work is closely scrutinized.  Here is how the piece begins:

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves.

The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas. Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge. Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

Northwestern University and David Protess, the professor who leads the students and directs the Medill Innocence Project, say the demands are ridiculously overreaching, irrelevant to Mr. McKinney’s case, in violation of the state’s protections for journalists and a breach of federal privacy statutes — not to mention insulting.

John Lavine, the dean of the Medill School of Journalism, said the suggestion that students might have thought their grades were linked to what witnesses said was “astonishing.” He said he believed that federal law barred him from providing the students grades, but that he had no intention of doing so in any case..

A spokeswoman for Anita Alvarez, the Cook County state’s attorney, who was elected last fall, said the prosecutors were simply trying to get to the bottom of the McKinney case.

"Court rejects governor's plan to solve prison overcrowding"

The title of this post is the headline of this report from the San Jose Mercury News.  Here are the basics on the latest twist and turn in the on-going saga of California prison reform:

A federal court Wednesday rejected Gov. Arnold Schwarzenegger's plan to solve California's prison overcrowding crisis, giving the state three weeks to devise an alternative or risk an order that seizes control of how more than 40,000 inmates are released from the prison system over the next two years.

In a seven-page ruling, a three-judge panel found the governor's plan for reducing prison overcrowding inadequate. The judges said it failed to comply with their August order requiring the state to come up with a proposal to remove about one-quarter of the more than 150,000 inmates now crammed into California's prisons.

Schwarzenegger and chief prison officials in September responded to the August order with a plan that would reduce the inmate population by only about 20,000 inmates over the next three years, less than half of what was sought by the judges. State officials maintain their plan balanced the need to reduce prison overcrowding with public safety concerns.

But 9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt, San Francisco U.S. District Judge Thelton Henderson and Sacramento U.S. District Judge Lawrence Karlton found otherwise, and ordered the state to come back with a fresh plan in 21 days. Otherwise, the judges said they would consider alternative plans from lawyers for California's inmates and issue an order that will meet their goal of getting the inmate population down to 137 percent of the prison system's capacity.

Thanks to this post at How Appealing, one can find lots of other major media coverage of this development, as well as  this link to yesterday's order of the three-judge U.S. District Court for the Eastern and Northern Districts of California.

Split Seventh Circuit declares that 3553(a) factors cannot be considered in Rule 35(b) reductions

Though the numerical provisions mentioned in the title of this post may only make sense to federal sentencing practitioners, the start of the majority and dissenting opinions in US v. Shelby, No. 08-2729 (7th Cir. Oct. 19, 2009) (available here), spotlights what's at issue in a split panel ruling handed down by the Seventh Circuit today.  Here is how Judge Posner's majority opinion gets started:

Rule 35(b)(2) of the federal criminal rules authorizes the district court, “upon the government’s motion made more than one year after sentencing,” to “reduce a sentence if the defendant’s substantial assistance” falls into specified categories.  The only question we are asked to decide is whether the rule allows the district judge to reduce the sentence on the basis of the factors that he would consider in initial sentencing under the Booker regime — namely the factors listed in 18 U.S.C. § 3553(a).

Here is how Judge Evans's dissent begins:

Judge Kocoras sentenced the then 26-year-old Gregory Shelby to serve 285 months back in 1996. At that time, the judge expressed regrets — the sentence was far too long, he lamented, but his hands were tied by mandatory guidelines that shackled his ability to impose a sentence that was fair and reasonable.  Today, the majority holds that Judge Kocoras overstepped his bounds when he recently reduced the now 40-year-old Shelby’s sentence to a term of 180 months.  Because I would affirm the judge’s well-reasoned decision, I respectfully dissent.

"Does the Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel and Unusual?"

The title of this post is the title of this revised article draft via SSRN from Professor Meghan J. Ryan.  Here is the abstract:

There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional.  Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice.  The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence.  While attempting to maintain neutrality on the topic and thus relying almost exclusively on assessing the unusualness of a practice through a purportedly objective assessment of state legislative action, the Court seems to have covertly injected into the equation its subjective views as to what punishments are unconstitutionally cruel. This tension between an objective measure of unusualness and a subjective assessment of cruelty has led the Court to make inconsistent statements about whether the Punishments Clause prohibits only punishments that are both cruel and unusual, or rather prohibits both cruel punishments and unusual punishments.

This Article goes where no other has, identifying and exploring this important question.  After tracing the history of the Eighth Amendment, analyzing the Court's early interpretations of the prohibition on "cruel and unusual punishments," and parsing the text of the Punishments Clause, the Article concludes that the Clause prohibits only punishments that are both cruel and unusual and that each of these components of the Clause should thus be independently assessed.  While this interpretation may narrow the scope of the Amendment, it allows for further innovations in humane methods of punishment and revives the federalist foundation of this nation that the Court's current jurisprudence has stifled.

"Willingham juror no longer sure of his guilt in Texas case"

The title of this post is the headline from this new CNN piece.  Here are excerpts:

At least one member of the jury that sentenced Cameron Todd Willingham to death in the arson homicides of his three children says she is struggling with the idea that she might have convicted an innocent man.

It has been 17 years since Willingham was convicted in Texas of setting a house fire that killed his children, a crime Willingham vehemently denied right up until his execution in 2004. Since that time, three investigations have concluded arson was not the likely cause of the 1991 fire, including one that arrived in Texas Gov. Rick Perry's office 88 minutes before the scheduled execution....

The controversy has led juror Dorenda Brokofsky to think twice about the decision she made in a jury room in 1992. "I don't sleep at night because of a lot of this," Brokofsky said. "I have gone back and forth in my mind trying to think of anything that we missed. I don't like the fact that years later someone is saying maybe we made a mistake, that the facts aren't what they could've been."

Brokofsky spoke with CNN by phone from her Midwest home. She has long since moved away from tiny Corsicana, Texas, where the fire took place. "I do have doubts now," she said. "I mean, we can only go with what we knew at the time, but I don't like the fact now that maybe this man was executed by our word because of evidence that is not true. It may not be true now. And I don't like the fact that I may have to face my God and explain what I did."

Recent related posts:

• Will new evidence of Texas executing an innocent man alter modern death penalty debates?
• How will death penalty proponents respond to "Trial by Fire"? 
• Texas Governor Perry disrupts panel looking into Willingham capital case
• Still more changes in Texas panel looking at potential wrongful execution
• Texas legislature to start looking into Willingham case
• Willingham case and Texas Gov continuing to make headlines

"State forced to free 20 violent criminals"

The title of this post is the headline of this very interesting local article from North Carolina.  Here are some of the notable particulars:

Twenty murderers, rapists and robbers sentenced to life in North Carolina prisons in the 1970s will be released at the end of October as a result of recent court rulings.

Most of the inmates are in their 50s and 60s, but many of them were convicted years ago of gruesome crimes that might have kept them locked up longer today. One of them successfully petitioned the courts to recognize that old laws defined a life sentence as 80 years, and that another law cut those sentences in half.

Ten of those scheduled to be released were sex offenders, including men who raped young girls. Seven have spent time on death row. The one woman in the group was convicted of murdering a state trooper while fleeing a bank robbery.

State officials said Thursday they have no choice but to release them. "I am appalled that the state of North Carolina is being forced to release prisoners who have committed the most heinous crimes, without any review of their cases," said Gov. Beverly Perdue.

Thomas Bennett, executive director of the N.C. Victim Assistance Network, worries about the victims' safety and stability. "This will open new wounds and retraumatize crime victims," Bennett said. "These are bad actors. These are not people we want on the streets."

Perdue's office said she was determined to find a way to keep the inmates in prison, but a spokesman for the state's attorney general said it is unlikely she will prevail. "Our lawyers have argued just about everything they can think of to keep this from happening," said Noelle Talley, a spokeswoman for Attorney General Roy Cooper. "The Supreme Court has the final say."

The inmates are scheduled to be released Oct. 29, just 20 days after the N.C. Supreme Court declined to overturn a state Court of Appeals decision that recalculated life sentences applied to crimes committed during the 1970s....

Since 1994, when North Carolina eliminated parole, a life sentence in North Carolina has meant the convict will die behind bars. But only first-degree murder can carry a life sentence, and now, the shortest sentence someone convicted now of first-degree forcible rape can serve is 12 years....

State correction officials have been working furiously to prepare the 20 inmates for their release and alert the victims and their families. Staff spent this week urging relatives of these inmates to take them in on Oct. 29. They have also been trying to track down victims, many of whom have long since lost touch with the court system. "In some cases, there's shock when we call," said Keith Acree, a DOC spokesman. "In other cases, there's uncertainty. In a lot of cases, the best we can do is leave a message on a machine."

In the meantime, Acree said, some local prosecutors and police are rifling through old court files, looking for crimes with which they never bothered to charge these defendants. Other officials are running the inmates' names in a national crime database to see if they are wanted on crimes outside North Carolina. "They are looking for any sort of issue that will allow these people to stay locked up," Acree said.

Should there special doctrines concerning "inflammatory" pre-sentencing publicity?

Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:

When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity."  And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.

Recent related post:

• SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive

Split Sixth Circuit reverses SORNA failure-to-register conviction and affirms other sex offender sentence

This morning in US v. Cain, No. 07-4535 (6th Cir. Oct. 13, 2009) (available here), a divided panel of the Sixth Circuit reverse a sex offender's federal conviction for failing to register under SORNA.  Here is how the majority opinion starts:

This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA.  The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law.  The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation.  Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA’s requirements during the period indicated in the indictment. Reversal is therefore required.

The Sixth Circuit today also split (in complicated ways) in affirming in another case the significant sentence given to "a decorated U.S. Air Force veteran in his mid-50’s" who pleaded guilty to one count of traveling with intent to engage in illicit sexual conduct with a teenager.  The ruling in US v. Lay, No. 07-4062 (6th Cir. Oct. 13, 2009) (available here), is perhaps another (lengthy) must-read for anyone dealing with federal sex offense cases these days.