Sentencing Law and Policy

Russia's highest court essentially abolishes death penalty in that nation

This new Reuters article, which is headlined "Russian court extends moratorium on death penalty," explains why Russia is now pretty close to officially being another European nation without capital punishment. Here are the details:

Russia's Constitutional Court on Thursday effectively abolished the death penalty, extending indefinitely a 13-year-old moratorium on capital punishment. Russia has not executed a criminal since 1996, though a myriad of contradictory legal decisions have helped stoke a heated debate about whether to return the punishment for especially barbarous crimes.

"The Constitutional Court of the Russian Federation recognised that after January 1, 2010 use of the death penalty in Russia is not possible," the court, which is based in Russia's former capital St Petersburg, said in a statement.

Valery Zorkin, the head of the court, announced the decision after 17 judges deliberated for 45 minutes in the 18th Century building that used to house the Tsar's senate and synod.  "I consider that this decision means the abolition of the death penalty," said court spokeswoman Anna Malysheva.

Kremlin chief Dmitry Medvedev, a former corporate lawyer, has pushed for the abolition of the death penalty which, despite the moratorium, is still part of Russia's criminal code.  Recent polls have shown that between 65 and 74 percent of Russians favour resuming executions, carried out before the moratorium by a pistol shot to the back of the head....

Concerns about the return of the death penalty were raised because of a legal loophole under which the punishment cannot be applied until the introduction of jury trials in all regions.  On Jan. 1, 2010, the volatile North Caucasus region of Chechnya will become Russia's last region where juries will replace traditional panels of judges, clearing the final formal obstacle to the death penalty's return.

But the Constitutional Court dismissed those concerns.  "The introduction of jurors over the entire territory of the Russian Federation does not create the possibility to apply the death penalty," it said in its statement.

Some notable death penalty headlines from across the pond

The start of a new week brings these interesting new pieces about the death penalty from our friends in the UK and Ireland:

• The Guardian has these new pieces discussing the death penalty in Texas: "Texas accounts for half of executions in US – but now has doubts over death row" and "Texas death row man claims inmates' numbered days are form of torture"

• The Irish Times, meanwhile, has this new piece striking different themes: "Death penalty should be revisited, says ex-judge"

"Lighter sentence for murderer with 'bad genes'"

The title of this post is the headline of this interesting sentencing story coming from the publication Nature, which reports on these sentencing developments in Italy:

An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court.  But researchers contacted by Nature have questioned whether the decision was based on sound science.

Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March.  Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing.  Bayout, a Muslim, claims he wore the make-up for religious reasons.

During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder.  After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.

But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.

For the new report, Pietro Pietrini, a molecular neuroscientist at Italy's University of Pisa, and Giuseppe Sartori, a cognitive neuroscientist at the University of Padova, conducted a series of tests and found abnormalities in brain-imaging scans and in five genes that have been linked to violent behaviour — including the gene encoding the neurotransmitter-metabolizing enzyme monoamine oxidase A (MAOA).  A 2002 study led by Terrie Moffitt, a geneticist at the Institute of Psychiatry, King's College, London, had found low levels of MAOA expression to be associated with aggressiveness and criminal conduct of young boys raised in abusive environments.

In the report, Pietrini and Sartori concluded that Bayout's genes would make him more prone to behaving violently if provoked.  "There's increasing evidence that some genes together with a particular environmental insult may predispose people to certain behaviour," says Pietrini.

On the basis of the genetic tests, Judge Reinotti docked a further year off the defendant's sentence, arguing that the defendant's genes "would make him particularly aggressive in stressful situations".  Giving his verdict, Reinotti said he had found the MAOA evidence particularly compelling....

But forensic scientists and geneticists contacted by Nature question whether the scientific evidence supports the conclusions reached in the psychiatric report presented to Judge Reinotti.  "We don't know how the whole genome functions and the [possible] protective effects of other genes," says Giuseppe Novelli, a forensic scientist and geneticist at the University Tor Vergata in Rome.  Tests for single genes such as MAOA are "useless and expensive", he adds.

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.

UK advocacy group urges motherhood as a sentencing consideration

This new BBC piece, which headlined "Courts 'should consider mothers'," reports on how an advocacy group across the pond is calling for consideration of family values at sentencing:

Magistrates and judges in Wales should take account of whether women are mothers when sentencing them, says a children's charity. Barnado's Cymru said courts "need to look at alternatives to custodial sentences" when dealing with mothers. They should know more about the impact of a sentence on a child, it says.

Laura Tranter said a woman should still face the full range of sentencing "but whether or not she needs to lose ties with her children is another issue". The children's charity said children in Wales who have a parent in prison need better support.

Its report, Every Night You Cry, says that failing to address their needs has a negative impact on their behaviour, claiming that "almost two-thirds of boys with a convicted father go on to offend" if no interventions are made. The charity says there are an estimated 160,000 children in the UK who have a parent in prison, more than twice the number of children in care and six times the number of children on the child protection register.

"South Koreans outraged over sentencing in child rape cases"

The title of this post is the headline of this notable article in the Los Angeles Times reporting upon a notable sex offender sentencing debate going on in another part of the world.  Here are the details:

A series of highly publicized child rape cases in which the defendants were widely seen as receiving lenient sentences has outraged South Koreans, who have called for tougher penalties for sex crimes, including the castration of repeat offenders....

Officials want to expand the sentencing limit for sex crimes, which is currently 15 years or less for most offenses. Lawmakers are exploring the legality of chemical castration and are reviewing ways to expand the offender database.

Sex crimes -- especially those against children -- are on the rise in South Korea, according to police statistics, leading many activists to question the government's commitment to punishing repeat offenders.

The number of sex abuse victims under age 6 alone has exceeded 150 a year for the last three years, according to data from the National Police Agency.

For the first seven months of this year, only 40% of the approximately 6,000 suspects investigated for child sex abuse were prosecuted. Of those convicted, less than 1% received life sentences. Nearly half got off with fines and 30% received suspended terms, according to government statistics....

Activists say the government needs to get tough on offenders. "It's sad that people take this issue seriously only when media coverage comes out," said Choi Da-eun, manager of Child Watch Korea in Seoul. "These crimes happen every day. The number of child sex crime cases is on the rise. Not only cases involving girls are rising, but those involving boys are increasing over the years."

Jang Se-yeon, a nurse at the Seoul Sunflower Children Center, which treats abused children, said many victims distrust a justice system in which so few reported child abuse cases end with charges being filed. "People aren't sure whether the offender will be punished or not," she said. "That just increases their anguish."

"Killing puts 'castration' on French agenda"

The title of this post is the headline of this article forwarded by a helpful reader that details an on-going sentencing debate in France after a high-profile crime by a sex offender with a criminal history.  Here are the details:

France is considering forcing some sex offenders to undergo chemical castration after a public outcry over the murder of a jogger by a rapist who had recently been released from prison. The prime minister, François Fillon, said the government was looking at legislation on hormonal treatment for offenders after the abduction and killing of Marie-Christine Hodeau.

The 42-year-old, who lived alone with her elderly mother, was snatched on Monday morning while out for her regular jog in a forest south of Paris. Just after 9am, she called police on her mobile phone from the boot of a car, saying she had been grabbed by a man with a knife. She gave the car's number plate, but the call was suddenly interrupted.

Police moved fast to trace the car and its owner, Manuel da Cruz. But for days the French public were gripped as searches did not find the woman. Hodeau's DNA was found under the fingernails of Cruz's left hand and eventually he led police to her naked body, hidden in undergrowth 12 miles from where she was abducted....

Public shock was compounded when it emerged that Cruz, a 47-year-old concierge and father of four, had served seven years of an 11-year-sentence for kidnapping and raping a 13-year-old girl in 2000.  Released from prison on parole, he had moved back to the neighbourhood where his teenage victim lived.

The case has reopened the heated debate on how to deal with reoffenders in France – a favourite subject of President Nicolas Sarkozy, who prides himself on his tough stance on law and order.  This week he met Hodeau's family at the Élysée palace.

When, in reaction to the case, a spokesman for Sarkozy's centre-right UMP party called for wider use of chemical castration, an outraged Socialist party spokesman called the idea "deplorable" and "indecent".  But several ministers have now suggested a discussion on broadening the use of chemical castration....

Chemical castration is a reversible process in which the administration of drugs or injections lowers the sex drive. France, along with a number of other European countries including Sweden and Denmark, already allows the procedure if offenders agree to it. Poland last month approved a law making chemical castration mandatory for some offenders convicted of sex crimes against children. Several US states enforce similar measures.

"Chemical castration exists today, it just depends on an agreement by the person concerned," Fillon said. "We have to look at how, as part of surveillance and control measures after someone leaves prison, we might make this more restrictive, if necessary. It's a subject we are working on and we will make proposals to parliament."

Sarkozy called for the closer supervision of paroled prisoners and a review of France's criminal psychiatry system. But magistrates unions protested after the interior minister blamed the jogger's murder on lenient judges and parole officers.

It is notable and telling, in a European kind of way, that this case is not leading to calls for the return of the death penalty.  It is also disappointing, as I have noted in many prior posts, that there seems to be little or no serious empirical evidence about the efficacy of chemical castration even though this alternative punishment seems to have a significant modern history.

Some related recent posts:

• Are there reliable data on the efficacy of chemical castration?
• "Europeans Debate Castration of Sex Offenders"
• Isn't chemical castration worth trying if it works?
• Alabama legislators discussing castration and other novel punishments for sex offenders

US remains a world leader in incarceration rate

Thanks to this post at Grits for Breakfast, I see that Kings College in London now has available here its latest, greatest "World Prison Population List."  As the list details, the United States, which President Lincoln called a nation "conceived in liberty," remains a world leader in incarceration rate (and by quite a large margin):

The United States has the highest prison population rate in the world, 756 per 100,000 of the national population, followed by Russia (629), Rwanda (604), St Kitts & Nevis (588), Cuba (c.531), U.S. Virgin Is. (512), British Virgin Is. (488), Palau (478), Belarus (468), Belize (455), Bahamas (422), Georgia (415), American Samoa (410), Grenada (408) and Anguilla (401).

Some related posts:

• Inaugural rhetoric about freedom and liberty in prison nation
• What to the American imprisoned is the Fourth of July?
• Appreciating the real American challenge in balancing liberty and security
• Potent new report on life sentences from The Sentencing Project
• Pew Center releases new report on scope of criminal justice control in US
• The state of cost problems in the states of prison nation
• "The Fiscal Crisis in Corrections: Rethinking Policies and Practices"
• Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
• A (too?) hopeful vision of the future for prison nation
• My latest (academic?) musings about progressive punishment perspectives

Is Japan's death penalty now about to be killed?

When I teach the death penalty, I often urge student to note and reflect on the fact that Japan is like the US in being a modern industrialized democratic nation that has continued to use the death penalty.  But this new piece in The Times of UK, which is headlined "Japan’s death penalty effectively scrapped with arrival of Keiko Chiba," suggests I may soon have to update my teaching notes.  here is how the piece starts:

Capital punishment has been unofficially scrapped in Japan with the appointment of a left-wing justice minister who is an outspoken opponent of the country’s controversial system of secret executions.

Keiko Chiba, 61, a lawyer and former member of the Japan Socialist Party, has the final say in signing execution orders for the country’s 102 death-row inmates. Although she has declined to say explicitly whether or not she will authorise them, her 20-year record as an active death penalty abolitionist means that hangings will be put on hold after surging in the past three years....

Japan is the only industrialised democracy, apart from the United States, to maintain capital punishment. Campaigners opposed to the death penalty also say that it is carried out in a manner designed to avoid public scrutiny.

Once final appeals have been exhausted, death-row inmates can meet only their lawyers and immediate family members. Hangings are usually carried out during parliamentary holidays to prevent the subject from being raised in parliament. The condemned prisoner is told of his imminent execution only a few hours before it is carried out. His family are informed afterwards, when they are invited to collect his remains.

"Why Did China Reform It’s Death Penalty?"

The title of this post is the title of this interesting new paper by Kandis Scott that I just discovered on SSRN.  Here is the abstract:

China recently reformed its death penalty procedures, and as a result the government has executed fewer prisoners.  The author explores possible explanations for and policy concerns behind this change and evaluates their implications for the future of the death penalty in China.  The influences for the change include international forces and domestic factors, such as academic criticism, the media, changed circumstances in society, compassion, and politics.  Although hardly transparent, the underlying motivations for the revisions suggest that China eventually may abolish capital punishment, perhaps before the United States does so. However, recent signals indicate that officials may be ending the 'lenient' period, suggesting that the reforms may mean much less than thought initially.

UK gives life with parole for terrorists convicted of airline bomb plot

This new CNN article, which reports on three high-profile terror defendants getting sentenced in London, provides an interesting point of comparison concerning life sentences in the US and other parts of the world.  First, here are the basics:

Three men convicted of plotting to bomb planes flying from London to North America with liquid explosives hidden in soft drink bottles were ordered imprisoned for life, a judge announced Monday.

The men were arrested in August 2006 on suspicion of plotting to blow up planes with liquid explosives hidden in soft-drink bottles. The plot led to immediate restrictions on liquids that passengers are allowed to carry onboard aircraft, resulting in today's rules that allow only small amounts to be carried in resealable clear plastic bags.

The judge, Justice Richard Henriques, called the plot "the most grave and wicked conspiracy ever proven within this jurisdiction." "The plot would have succeeded but for intervention of police and security services," he said, rejecting a defense argument that the men would have failed to get the chemistry right and actually blow up planes.

The ringleader, Abdulla Ahmed Ali, 28, must serve at least 40 years before he is eligible for parole, the judge said. He is "likely to remain a serious danger to the public for a long time," the judge, Justice Henriques, said. "You are a driven and determined extremist with boundless energy."...

A second plotter, Assad Sarwar, 29, must serve a minimum of 36 years before he is eligible for parole. Henriques gave him a lesser sentence on the grounds that he was not the ringleader of the plot and not involved in recruiting other people for it.  The third man convicted of the plot, Tanvir Hussain, 28, must serve at least 32 years, the judge said, calling him "no mere footsoldier."...

British prosecutors called the plot "calculated and sophisticated" and said it could have killed hundreds or even thousands of people.

So, let's review the stories of life sentencing in the UK and the US in light of this case another set of high-profile cases:

In the UK today, a "driven and determined extremist with boundless energy," who was the ring-leader of "the most grave and wicked conspiracy ever proven," which could have killed thousands of people, is sentence to life with parole eligibility.   

Meanwhile, in the US in two months, the Supreme Court will consider the constitutionality of Florida's decision to send two juvenile defendants, one of who was involve in a rape at age 13, the other committed armed robberies at 16 and 17, to life without parole eligibility.   

Putting these stories together raises an important and controversial constitutional question: should the fact that even the most extreme terrorists do not get LWOP sentences in other parts of the world have any bearing on whether juve LWOP sentences for non-homicide crimes in the US constitutes "cruel and unusual punishment" prohibited by the Eighth Amendment?

New Amnesty International report on the death penalty in Japan

As detailed in this new CNN piece, Amnesty International has issued a new report urging Japan's government "to establish a moratorium on executions and consider abolishing the death penalty." Here are more of the details from CNN:

Death row inmates in Japan spend decades in isolation and face inhuman conditions that can lead to mental illness, Amnesty International said Thursday.  Amnesty urged Japan's new government to improve death row conditions....

As many as 102 prisoners face execution in Japan -- many of them elderly inmates who have lived in isolation for decades, the human rights group said.  However, the number of death row prisoners suffering from mental illness is unknown.

"The secrecy around the death penalty and prisoners' health, combined with a lack of scrutiny by independent mental health experts, has led to reliance on secondary testimony and documentation to assess the mental state of those on death row," Amnesty said.

The report by the London-based human rights group comes as a new Japanese administration prepares to take over after ousting the long-ruling government in a landslide victory last month. Amnesty urged the new Democratic Party of Japan government, which will form in mid-September, to improve death row conditions.

China struggles with drunk driving sentencing

As one who is always concerned with the US approach to sentencing drunk driving, I was intrigued to see this AP story from China concerning that country's struggle with this crime and effective punishments.  Here are excerpts from the piece:

An appeals court in China overturned the death penalty Tuesday in a drunk driving case, sentencing the defendant instead to life imprisonment.  Sun Weiming, 30, was sentenced to death after being convicted for a fatal accident last December that killed four people and injured another in southwestern Chengdu.  It was reportedly the first time a death penalty had been given in a drunk driving case in China....

His original sentence was made amid a two-month nationwide crackdown against drink-driving launched in August following a series of fatal accidents involving pedestrians and drunk drivers.  Enforcement of laws against drunken driving has traditionally been lax and police easily bribed or otherwise persuaded to expunge convictions.

However, a recent spate of highly publicized drunken driving incidents has sparked outrage in the media and on the Internet.  The problem has tapped into disgust over China's yawning gap between the rich and poor after a young man driving his father's Porsche SUV killed a 16-year-old waitress earlier this month.

Drivers in Beijing can be cited as drunk if they have a blood alcohol level at or above 0.02, or 20 milligrams of alcohol per 100 milliliters of blood.  That is much lower than the U.S. limit of .08, making virtually any consumption of alcohol by drivers illegal.

"Executed prisoners are main source of Chinese organ donations"

The title of this post is the headline of this new piece from The Guardian.  Here are the basic details:

Two-thirds of organ donors in China are executed prisoners, state media reported today, as health officials launched a national donation system.  The authorities have previously acknowledged that corneas, kidneys and other body parts from criminals have been transplanted.  But the new figure offers a startling insight into the scale of the country's reliance on death-row inmates, despite laws supposed to curb the use of their organs.

Officials hope the new scheme will tackle the thriving black market in body parts, and encourage voluntary donation, which remains far below demand.  The state newspaper China Daily said that about one million people needed transplants each year — but only 1% received them....

Two years ago, China ruled that organs from executed prisoners would be given only to family members, and that living donors could give body parts only to relatives or those with an "emotional connection"....

A World Medical Association agreement — signed by China among others — asks countries not to use organs from death-row prisoners because of concerns about whether they have truly given informed consent. "The implementation of the death penalty is completely opaque in China — there is absolutely no transparency," said Phelim Kine, Asia researcher for Human Rights Watch. "Therefore, there is a complete lack of transparency with regard to transplantation and the disposal of the organs of death-row prisoners, whom we now know constitute the majority of donors in China."...

The number of people executed in China is a state secret, but Amnesty International said that at least 1,718 people were executed in 2008 — more than in any other country — based on recorded cases.  Human rights groups suggest the true number runs into several thousands, although officials say their "kill fewer, kill carefully" campaign has cut the numbers and have pledged to further reduce use of the death penalty.

"Iran Executions Increase Since Election"

The title of this post is the headline of this report from CBS News.  Here are the details of how politics and punishment mix in Iran:

An Iranian justice official has confirmed the execution of 24 convicted drug traffickers at the end of July, believed to be one of the largest mass-executions carried out by the Islamic Republic since the revolution brought the Ayatollahs to power 30 years ago.

The message of swift, decisive "justice" delivered by Iran's leaders is clear, and comes at a time when those leaders, both political and religious, are wrestling to overcome an image of internal dispute and reassert their authority following post-election violence that left at least 30 people dead and hundreds jailed.  Tehran's deputy prosecutor, Mahmoud Salarkia, said the 24 were hanged at the notorious Karaj prison on July 30th. "Their execution was approved by the supreme court," said Salarkia, without naming the prisoners.

Iran has killed at least 219 prisoners already this year, according to a tally from the French news agency AFP, and the pace of the executions seems to have increased amid the postelection turmoil....

Iran has executed at least 44 drug convicts, 19 Baluch minorities convicted of supporting a terrorist group, and possibly two young men sentenced for murders they allegedly committed before the age of 18.

Thus far, international outrage over the supposedly coincidental uptick in executions amid the postelection turmoil has been muted, at best.  The European Union condemned the July 30 executions and said in a statement that the 27-member bloc was "concerned about the continued large-scale use of the death penalty in Iran, including the repeated incidence of collective executions during the past month."...  The United States government has made no official remarks on the sanctioned killings.

Iran came second only to China in the number of prisoners executed during 2008, with a reported total of 246.  China is believed to have killed as many as 5,000 of its convicts, but that number is unconfirmed.  In the United States, by comparison, 37 people were executed in state death chambers, according to the Death Penalty Information Center.

Jury sentencing system in Japan has lay citizens and judges working together

I noted earlier this week that Japan was conducting its first criminal jury trial in decades and that its new jury system was to include sentencing responsibilities.  This BBC News piece provides a fascinating report on the result of the first trial:

Japan's first jury trial for more than 60 years has ended with a man in his 70s being sentenced to 15 years in prison for murder. The new jury system is the result of a major overhaul of Japan's legal system, aimed at speeding up trials and offering greater transparency.

In the landmark case, six men and women working with three judges convicted and sentenced Katsuyoshi Fujii, 72. Until now Japanese trials have been decided by a panel of judges.

The last time a citizen jury was part of a Japanese trial was in a short-lived experiment before World War II. Since then, the system has been prosecution-led, largely based on confessions and with little emphasis on court testimony....

Fewer people go to jail in Japan than in the West. But the conviction rate -- 99% of all cases -- is astronomic by Western standards, our correspondent adds. Critics say the old system was slow, lacked transparency and was out of touch.

The jury system has also come in for criticism, with some experts arguing that randomly selected members of the public are not fit to decide the outcome of serious criminal cases.

In the new system, the jurors -- who are considered lay judges -- must have the agreement of at least one of three professional judges for their decision to stand. They also decide on the sentencing.

During the four-day trial in Tokyo District Court, the citizen judges questioned the defendant over the fatal stabbing of a 66-year-old neighbour in May. Fujii had pleaded guilty but his lawyers sought leniency in the sentencing.  Murder can result in the death penalty in Japan, although it is rare in cases involving a single victim.

Presiding Judge Yasuhiro Akiba said the jury had sentenced the defendant to 15 years in jail -- one year short of what prosecutors had sought -- because the stabbing was not premeditated. The citizen judges later said it had been difficult to decide on the sentence, but they praised the professional judges, prosecutors and defence team for making their arguments easy to follow.

As I mentioned before, in my recent Sidebar commentary for the Columbia Law Review, I assert that the conceptual and constitutional principles behind the Apprendi-Blakely line of cases justify greater jury involvement in both capital and noncapital sentencing proceedings.  And I especially like the idea that Japan is now pioneering of lay jurors and professional judges working together to decide upon a sentence.

A few follow-up questions for SL&P readers: Should hybrid judge-jury sentencing be worth trying in some American jurisdictions for at least some crimes?  Need a state interested in this new Japanese model have to worry if it was constitutionally kosher in the US?

Kenya's leader commutes all death sentences

This new AP article, headlined "Kenyan leader reduces all death sentences to life," details an intriguing international death penalty development:

Kenya's president says all prisoners on death row will immediately have their sentences commuted to life imprisonment.

President Mwai Kibaki said in a statement Monday he made the decision because no death sentence has been carried out in the past 22 years, leading to more than 4,000 prisoners on death row.  The president says he has directed government officials to study whether the death penalty has any impact on fighting crime.

Snarky aside (which I fear will prompt off-topic comments):  Do we need to worry that the "birthers" and Lou Dobbs might suggest this news provides reason to believe that President Obama was really born in Kenya?

Japan's revival of jury trials to include jury sentencing

Fans of Blakely and jury involvement in criminal justice administration should be interested in this international news report, which is headlined "Japan holds 1st criminal jury trial since WWII."   In addition to discussing Japan's decision to start having jury trials, the report details that the first such trial came after a guilty plea so that the very first jury's role is all about making a sentencing judgment rather than doing basic guilt fact-finding.  Here are the interesting details:

Japan opened its first jury trial since World War II on Monday under a major overhaul of a legal system that has often been criticized as unfair and arduous. Six jurors are working with three judges to hand down a verdict for 72-year-old Katsuyoshi Fujii, who has been charged with murder in the fatal stabbing of a 66-year-old neighbor in May....

Japan launched a jury trial system in 1928, but dropped it in 1943 as the country headed into chaos with World War II. The system was never popular because legal professionals opposed allowing regular people as jurors, and defendants had to pay legal fees....

Fujii's lawyers say he is pleading guilty but that they are asking for leniency in sentencing because he has expressed remorse.  Murder carries a maximum penalty of death in Japan, although it's unlikely in a case involving one victim.

The son of the victim is expected to take the stand to plead with the jurors, according to the court. His mother was stabbed to death, allegedly after a quarrel, the court said. "This is a historic trial, and I feel I must do my best to be up to the job," prosecutor Tetsuo Maeda told reporters on NKH TV news, as he headed into the courtroom, where jury selection started in the morning.

Japan is set to hear about 2,000 to 3,000 jury trials per year, all involving serious crimes such as murder and kidnapping.  About 300,000 candidates are being randomly selected from eligible voters nationwide annually to serve jury duty each year.

Since 2004, when the nation decided on the new jury system, legal experts have held seminars to make trials easier to understand and have held about 300 mock trials. Some people are still reluctant to serve on a jury.  "It is such a heavy responsibility to cast judgment on other people," said Tomoe Obata, a 49-year-old office worker, who attended a mock trial earlier this year. "What if I'm assigned to a murder case and we are asked to consider the death penalty?"

With the arrival of a jury trial, Japanese will have a chance to play a bigger role in doling out justice, Bar Association President Makoto Miyazaki said in a recent interview with The Associated Press. "A more transparent and fair criminal justice system serves everyone's interests," he said.

As I discussed in my recent Sidebar commentary for the Columbia Law Review, I think anyone seriously committed to the conceptual and constitutional principles behind the Apprendi-Blakely line of cases ought to favor greater jury involvement in both capital and noncapital sentencing proceedings.  Though the particulars of Japan's new system are unclear, it will be quite ironic if the country's new jury trial program means the Japanese people end up having a lot more say in typical sentencing outcomes than do modern American jurors (outside the capital context).

China saying it will use death penalty less

This AP article, headlined "China says death penalty to be used more sparingly," reports on a planned cut back on capital punishment from the world's leader in executions.  Here are a few details:

The highest court in China, which executes more people than any other country, has called for the death penalty to be used less often and for only the most serious criminal cases, state media reported Wednesday.  The remarks indicate that the Supreme People's Court, which reviews all death sentences from lower courts before they are carried out, could overturn more of them.

Rights group Amnesty International reported earlier this year that China put at least 1,718 people to death in 2008. The penalty is used even for nonviolent crimes such as corruption or tax evasion.

The court will revise legislation to cut down the number of death sentences and will stress commuting sentences to life in prison for some criminals who show good behavior, a senior director in charge at the court told the Legal Daily newspaper.  "A policy of strictly controlling and being cautious to use the death penalty ... requires judicial departments to use as few death penalties as possible, meaning you don't kill those who you don't have to kill," the official was quoted as saying in an interview, a partial transcript of which was published on the Legal Daily Web site.

Japan continues its recent stepped-up pace for executions

As detailed in this news report, which is headlined "Japan executes three for multiple murders," the one other major industrial nation with the death penalty has been stepping up its pace of executions in recent years.  Here are details from the article:

Japan on Tuesday hanged three inmates convicted of multiple murders including a Chinese national and a middle-aged man who found his victims through an Internet suicide site, the justice minister said.

The government identified the condemned as Hiroshi Maeue, 40, Yukio Yamaji, 25, and Chinese national Chen Detong, 41, who had killed three of his compatriots and wounded three more Chinese people.

All three men had committed "grave and cruel" crimes and "taken precious lives with very selfish motives," Justice Minister Eisuke Mori said after the sentences were carried out in Tokyo and the western city of Osaka.

Maeue, executed in Osaka, killed three people including a 14-year-old in 2005 after he got to know them separately through an Internet website where people contemplating ending their lives meet to make suicide pacts. Maeue arranged to meet his victims under the pretense they would jointly commit suicide through carbon monoxide poisoning. He then lured them into a van in a parking lot, tied their hands and feet and choked them to death. He confessed to deriving sexual pleasure from watching people suffocate.

Yamaji, also executed in Osaka, raped and then stabbed to death two sisters, stole their money and set fire to their apartment in 2005. Chen, the Chinese national, was executed in Tokyo for killing three of his compatriots and injuring three more in Kawasaki, southwest of Tokyo, in 1999.

Japan, which executed four convicted murderers in January, is the only major industrial nation other than the United States to impose the death penalty.  Capital punishment is overwhelmingly supported by the public in Japan, which has one of the world's lowest crime rates.

But Japan has regularly come under fire from the European Union and campaigners over its use of the death penalty, especially its practice of hanging inmates without any prior warning for them or their families.... Despite the criticism, conservative governments have stepped up the pace of executions.  Last year Japan hanged 15 death-row inmates, the highest number since 1975, when the country executed 17 people.