Sentencing Law and Policy

SCOTUS adds a habeas case (with a sentencing spin) to its docket

As detailed in this new SCOTUSblog post, the Supreme Court has added yet another case to its docket that should interest sentencing fans.  The case is Magwood v. Culliver, and here is the question that the Court has taken up:

When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?

Though a habeas case arising in a death penalty context, it seems quite possible that Magwood (which is has sentencing's old friend Jeff Fisher as counsel of record) could address some legal issues that could impact lots of other types of cases in lots of types of sentencing settings.

Reflecting a bit more broadly on this newest cert grant, it is becoming easier and easier to conclude that the addition of Justice Sotomayor to the Court has continued the trend of the early Roberts Court to take up many criminal justice cases and issues with important day-to-day implications for many criminal practitioners. 

Some related old and new posts on SCOTUS docket issues:

• Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
• SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!
• Is the "culture of death" slowly dying at the Supreme Court?
• How exactly do transitions impact the SCOTUS docket and cert grant decisions?
• A big SCOTUS oral argument week on tap for sentencing fans
• The 10 biggest cases to watch for sentencing fans in the new SCOTUS term
• Reflections on the politics of SCOTUS and personhood of its members
• Will the next SCOTUS nominee have any criminal law background?
• Brave New Justice and sentencing issues
• Roberts, the cert pool, and sentencing jurisprudence
• Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
• Justice Alito jumping out of the cert pool!!
• Final version of my article on the SCOTUS death docket

Another US Sentencing Commission regional hearing on tap for this week in Austin

As detailed in this press release, the US Sentencing Commission has another one of its regional public hearings on tap for later this week.  This sixth regional public hearing is scheduled for November 19-20, and this one is taking place at the University of Texas School of Law.  Though I suspect former USSC Chair Judge Hinojosa had a hand in picking the Longhorn locale for this hearing, this event will be run by the recently confirmed new USSC Chair, Judge Sessions.

As detailed in this official agenda, another fascinating group of invited witnesses are scheduled to testify regarding federal sentencing policy in this regional hearing.  I suspect some of the written testimony will be available via the USSC's website next week.  I would bet that the challenges of child porn sentencing is again a topic of discussion as it has been in many prior regional hearings.

The shameful state of clemency in the Buckeye state (and in the United States)

This notable new article from my own Columbus Dispatch, which is headlined "Clemency requests piling up," documents the shameful state of clemency in the state of Ohio.  Here are some of the sorry details of what is going on (or, should I say, not going on) in the Buckeye state:

When her father went to prison nearly 10 years ago, Amberley Tapp was a precocious girl of 7 with hair of golden ringlets and a sunny disposition living in a nice home in Delaware, Ohio.  Fast forward to 2009, to an angst-ridden 16-year-old with deep, sad eyes who cries frequently and sometimes feels as if she can't breathe.

Meanwhile, a unanimous recommendation by the Ohio Parole Board that Bradley Tapp, Amberley's father, be granted executive clemency sits on Gov. Ted Strickland's desk.  It has company: 712 pending clemency applications in other cases, some dating to 2005.

In nearly three years in office, Strickland, a former congressman, prison psychologist and Methodist minister, has delayed executions several times and twice commuted the death penalty.  But he has not acted on any other clemency requests, a break with the practices of past governors....

Tapp, 45, who is serving a 14-year sentence for two second-degree felony counts of assault, has twice been recommended for clemency by the Ohio Parole Board. The charges resulted from a drunken encounter he had with two Delaware County homeowners in September 1999. Tapp's victims suffered serious but not life-threatening injuries.

Judge Henry S. Shaw of Delaware County Common Pleas Court threw the book at him. Now retired, Shaw has twice since said he regrets the harsh sentence, calling it "manifest injustice." Former Gov. Bob Taft rejected Tapp's clemency plea without comment in November 2005.

Strickland's predecessors, going back to Gov. James A. Rhodes, rejected the vast majority of clemency requests they received, but they usually handled several hundred cases each year to prevent a backlog like the one Strickland now faces.

Strickland spokeswoman Amanda Wurst said he is now reviewing requests submitted before 2008, including some carried over from the Taft administration.  "Once the governor has completed his review process he will begin reviewing 2008 clemency requests," she said.  "Mr. Tapp's request was made in 2008, so his request will be reviewed as a part of the 2008 clemency-request review process." Wurst said there is no "set time for an announcement."...

Amberley acknowledges that her father "did something stupid" and deserved punishment.  But she said he's done his time -- more time, in fact, than some murderers.  "All the governor has to do is look on his desk ... to take 30 seconds of his life to sign a piece of paper," she said.  "I don't think he even realizes how much a family is being tortured. I want him to care about Ohio's justice system.  Right now, he's showing he doesn't care."

This article captures the sorry state of disrepair into which the historic power of clemency has fallen. It would be bad enough if Governor Strickland was to denied all clemency requests during his nearly three years in office; the fact that these requests all sit upon his desk unaddressed is especially iniquitous.  Gov Strickland and his staff have surely had more than enough time to establish a general policy for dealing with clemency requests and to start applying that policy to the hundreds of cases that have been awaiting a decision for many years.  But rather than have the courage to grant or deny clemency requests, Gov Strickland is content to just let these requests (and the many humans impacted thereby) rot away from neglect.

Of course, Gov. Strickland might now say that he is just taking a cue from the current leader of his party and his country, President Barack Obama.  As I have previously noted, Prez Obama is already historically slow in using his clemency power as he approaches the end of a full year in office without a single clemency grant.  Indeed, as this official webpage reveals, it appears that Obama has over 3,000 requests for pardons and commutations siting unresolved on his Oval Office desk.

Some related posts on federal and state clemency realities:

• "President Barack Obama proving stingy with his pardon power"
• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• "Judge urges Obama to cut coke dealer's sentence"
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• The telling failure to make serious use of the clemency power in Maryland
• What might 2009 have in store for . . . executive clemency?

"Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away"

The title of this post is the headline of this story in today's New York Times.  Here is how it starts:

President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.

Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure.  By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts.

Theodore Shaw, a Columbia University law professor who until recently led the NAACP Legal Defense and Educational Fund Inc., said liberals feared that the White House was not taking advantage of its chance to fill vacancies while Democrats enjoy a razor-thin advantage in the Senate enabling them to cut off the threat of filibusters against nominees.  There are nearly 100 vacancies on federal courts.

“It’s not any secret that among the civil rights community and other folks there has been a growing concern about the pace of nominations and confirmations,” Mr. Shaw said.  “You have to move fairly quickly because things are going to shut down before you know it, given that next year is an election year and who knows what is going to happen in the midterm elections.  No one wants a blown opportunity.”

As I have noted before, the slow pace of judicial nominations from the Obama White House is especially significant for the development of sentencing law and practice.  Lower court sentencing outcomes in the wake of Blakely and Booker have tended to be pro-guideline in part because many federal judges appointed during the Bush years were eager to preserve the toughness of the guidelines and the power these guidelines provided prosecutors.  New blood in the lower federal courts might change these dynamics, but the Obama Administration needs to get cracking to make this a reality.

Some related new and old posts:

• Should President Obama be praised or assailed for his approach to judicial nominations so far?
• Seeking thoughts on a "professional judiciary" for sentencing law
• Judge Gerard Lynch becomes first lower-court Obama nominee confirmed by Senate
• "Obama moving slowly on judges"
• Should President Obama practice ageism when making judicial nominations?
• Noticing the biggest bias in the federal judiciary
• How a new administration is likely to impact federal sentencing practice
• Why federal sentencing reformers must focus on the USSC and lower courts
• Judging, politics, sentencing and elections
• A modest(?) proposal for filling the bench from the ivory tower
• Urging President-elect Obama to elevate district judges to the circuit courts
• A partially justified(?) celebration of "Diversity on the federal bench"
• The growing (and justified) complaints about Obama's approach to judicial nominations

California submits new plan for complying with federal prison-population order

As detailed in this Los Angeles Times article, which is headlined "Governor submits plan to cut prison population: But he also disavows the proposed solutions as being illegal," California's "Gov Arnold Schwarzenegger on Thursday gave federal judges a road map to reducing state prison overcrowding by waiving some state laws to allow sentences to be reduced and new private prisons to be built." Here are more of the particulars:

An initial plan that Schwarzenegger submitted in September was rejected three weeks ago by the three judges, who threatened him with contempt of court for failing to meet their demand for a proposal to reduce the inmate population by 40,000 prisoners over two years.

With his new proposal, the governor appeared to be trying to avoid open defiance of the judges without giving the impression that he is contradicting his opposition to their efforts in an appeal now pending before the U.S. Supreme Court. The state is arguing that it is improper for the federal courts to intrude into the state's affairs. "We're saying the court . . . doesn't have the authority to do any of this, but the court obviously disagrees with us," Matthew Cate, the governor's prisons chief, told reporters.

The governor said the new plan would open up a total of 42,000 prison beds by December 2011, some through new construction and some by sentencing changes to limit the number of inmates the state incarcerates. He heeded the judges' Oct. 21 order to identify state laws that they would need to suspend to meet their goal. But Schwarzenegger also told the judges he did not believe it would be legal for them to waive those laws....

Some of the governor's new plan echoes what he submitted previously: reduction in the inmate population through sentencing changes, which would need approval by lawmakers, and construction for which the state already has authority. But it also includes measures, accounting for more than 25,000 inmates, that the Legislature rejected during the budget fight last summer: home detention with satellite tracking devices for some inmates; permitting some felony offenders to serve time in county jails instead of state prisons; and reducing sentences for property crimes.

As I have noted before, the blog California Corrections Crisis is the must-read resource for keeping up with all the craziness in California.

Some related posts:

• Federal judicial panel orders California to drastically cut prison population
• California begins SCOTUS appeal process for federal ruling ordering prisoner release
• Updates on all the prison craziness in California
• Editorial suggests why federal judges have had to be involved in California prison reform
• California's court-ordered plan for prison population reductions to come up short
• Details on California's not-quite-complete prison population reduction plan
• "Court rejects governor's plan to solve prison overcrowding"

Noticing the mandate from Congress to the US Sentencing Commission on mandatory minimums

This new Wall Street Journal article, which is headlined "U.S. Commission to Assess Mandatory Sentences," discusses the recently-enacted legislation instructing the US Sentencing Commission to study mandatory sentencing statutes.  Here are excerpts:

Congress has ordered the panel that advises judges on prison terms to conduct a review of mandatory-minimum sentences, a move that could lead to a dramatic rethinking of how the U.S. incarcerates its criminals.

The review is a little-noticed element of the National Defense Authorization Act signed into law last month by President Barack Obama.  The defense-spending bill calls on the commission to perform several tasks, including an examination of the impact of mandatory-minimum sentencing laws and alternatives to the practice....

The U.S. Sentencing Commission, which advises judges on all other sentences, has now been charged with issuing recommendations on mandatory minimums.  Any final change in sentencing law would have to come from Congress. "It's going to be a massive undertaking," said the new chairman of the Sentencing Commission, William Sessions III.

Mr. Sessions, who is also the chief federal judge in Vermont, said the review would include everything from determining the effects of minimums on the size of the prison population, to spending and the social impact of the policies. "In my view," he said, "it's a very open-ended request."

The inmate population in federal prisons has risen from 24,000 in 1980 to 209,000 as of Nov. 5.  Over the same period, the federal Bureau of Prisons staff has grown from 10,000 to about 36,000 employees.

The commission has pushed for changes in mandatory minimums, such as ending the disparity in sentencing for crimes involving crack-cocaine and powder cocaine.  Several proposals are pending in Congress to address the crack-cocaine issue.  But the commission has not done a full-scale examination of federal sentencing laws since 1991.  At the time, there were only 60 mandatory-minimum laws on the books. Now there are about 170.

According to a limited review released by the commission in July, most mandatory-minimum cases in 2008 concerned drugs or weapons crimes.  The review found that 21,023 offenders were convicted of crimes that could have triggered the mandatory-minimum sentence.  Many got more lenient sentences for a variety of reasons, including cooperation with authorities.

The commission will examine the effects of mandatory minimums on plea agreements.  Critics of the system say the threat of such sentences is used to coerce plea bargains.  Members of the commission have been traveling the country to meet with judges, prosecutors and defense attorneys.  Many have pressed the commission to provide alternatives to imprisonment for nonviolent, low-level drug defendants.

Given that there has been no real movement on even crack-powder mandatory reform over the last three years while Democrats have been in control of both houses of Congress, I am not especially optimistic that this newly-ordered USSC review will lead to "a dramatic rethinking of how the U.S. incarcerates its criminals."  Still, it is encouraging to hear the new head of the USSC talking about this ordered review being done in a grand manner.

Some related recent posts:

• New hate crimes bill requires US Sentencing Commission to complete mandatory minimum study
• US Sentencing Commission's "Overview of Statutory Mandatory Minimum Sentencing"
• House hearing on "Mandatory Minimums and Unintended Consequences"
• Can concerns for dollars and cents finally bring sense to federal mandatory minimum sentencing statutes?

Texas jury sentences FLDS member to 10 years in prison for sexual assault

This local article, headlined "Jury gives Jessop 10 years for sexual assault," reports on the sentencing outcome in a high-profile sexual offense prosecuion.  Here are the details:

Jurors took about six hours before handing down the sentence of 10 years in prison and an $8,000 fine.  Jessop, who faced a maximum sentence of 20 years and a $10,000 fine, will have to serve at least five years before becoming eligible for parole.

[Raymond Merril] Jessop’s conviction of sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch and the punishment determined by a seven-man, five-woman jury mark a victory for prosecutors in the first of what may be many trials springing from the April 2008 raid on the ranch.

“Today, justice was served,” prosecutor Eric Nichols of the Texas Attorney General’s Office said, flanked by Texas Rangers, 51st District Attorney Stephen Lupton and other law-enforcement officials.

Besides Jessop, 11 other members of the Fundamentalist Church of Jesus Christ of Latter Day Saints face charges ranging from aggravated sexual assault to failure to report child abuse.  Another trial is set to start in about three weeks. Asked if he thinks the conviction sent a message to the FLDS church about underage marriage, Nichols said, “We try one case at a time.”

Big dissent from Ninth Circuit's denial of en banc review of reasonableness ruling

A helpful reader made sure that I did not miss the decision by the Ninth Circuit to deny en banc review in US v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009) (discussed here), a case decided this past June in which the panel had reversed a within-guidelines sentence as substantively unreasonable.  What makes this latest development especially blog-worthy is the dissent from the denial of en banc review, which is authored by Judge O'Scannlain and joined by six other Ninth Circuit judges.  Here is how this dissent gets started:

This is the first published opinion in this circuit reversing a within-Guidelines sentence as substantively unreasonable.  The panel reaches this unprecedented result by casting aside Supreme Court and Ninth Circuit precedent in three ways: first, by failing to apply the appropriate standard of review; second, by recognizing a brand-new category of sentencing factors whose consideration by the district court warrants virtually no deference; and finally, by assuming a policymaking role properly reserved to the district court.  I must respectfully dissent from our failure to rehear this case en banc.

The closing paragraph of the dissent also seems worth quoting:

This is not just another sentencing case.  Employing what amounts to a de novo standard of review, the panel becomes the first in our circuit to publish an opinion reversing a within-Guidelines sentence as substantively unreasonable.  In the process, the panel recognizes a brand-new category of sentencing considerations purportedly undeserving of deference, and usurps the policymaking role of the district court as well as the Sentencing Commission.  For these reasons, I respectfully dissent from the denial of rehearing en banc.

I doubt that the Supreme Court would take up this case even if the Solicitor General now considers an appeal to SCOTUS.  But this dissent sure suggests that at least a few Ninth Circuit judges are eager to have this case added to the Justices' future dance card.

Texas conviction of FLDS member resulting in fascinating jury sentencing experience

As detailed in this local report, which is headlined "Testimony in Sentencing for FLDS Member," the recent conviction in Texas of an FLDS member on sex charges has now led to a fascinating jury sentencing proceeding:

A jury that convicted a member of the Utah-based FLDS Church will begin deliberating his sentence. After a day-long hearing on Monday that included hours of testimony, a judge set closing arguments and deliberations on Tuesday in the case of Raymond Jessop. Jessop, 38, was convicted of child sex assault for fathering a child with a 16-year-old girl who was a polygamous wife. He faces up to 20 years in prison.

The jury is deciding the sentence. On Monday, testimony included an FBI agent, a pair of Texas Rangers who testified about documents, and two former members of the polygamous church.

Here are more details about the jury sentencing proceedings in this case from additional media accounts headlined "Talk of 'celestial wives,' long-term effects of assault," and "Sentence is expected Tuesday for FLDS man":

Jurors are to report back 9:30 a.m. today to the improvised 51st Judicial District Courtroom to hear closing statements from the defense and prosecution.  Then they will begin the task of deliberating on what his punishment should be for sexually assaulting a 16-year-old girl in November 2004 at the Yearning for Zion Ranch near Eldorado.

Jurors will have to choose between two portraits drawn in the courtroom of Jessop.  Is he the self-sacrificing, hardworking father who can cross the boundaries of religion and culture to form friendships and who can be trusted not to smoke, drink or cuss around someone’s family?

Or, as the prosecution would have jurors believe, is Jessop the powerful FLDS man who benefited from the church grooming underage girls to accept marriage with men twice their age, married eight “purported” wives in addition to his legal wife, helped hide now imprisoned Warren Jeffs and endangered his unborn child and the victim while she was in labor?

Jessop could receive two to 20 years in prison.  He could also receive community supervision.

Anyone inclined to make predictions about how the jury will sentence in this case?

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.

SCOTUS summary reversal of Sixth Circuit capital ineffective assistance ruling

As detailed in this SCOTUSblog post, the Supreme Court issued "no new cert. grants this morning ... [but there was a] summary disposition in the case Bobby v. Van Hook(09-144), which was granted and reversed."  The per curiam ruling in Van Hook can be accessed at this link, and here is how it starts:

The Court of Appeals for the Sixth Circuit granted habeas relief to Robert Van Hook on the ground that he did not receive effective assistance of counsel during the sentencing phase of his capital trial.  Because we think it clear that Van Hook’s attorneys met the constitutional minimum of competence under the correct standard, we grant the petition and reverse.

Justice Alito has an interesting one-paragraph concurrence to the ruling in Van Hook.  Here it is:

I join the Court’s per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s performance meets the standard required by the Sixth Amendment.  The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership.  The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole.  It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.

Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split.  I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.

I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year.  And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.

But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito.  In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito).  But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority.  Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings.  Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.

Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan.  The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues.  And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts.  Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.

I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy.  (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue).  But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.

A few different older and newer posts on issues related to the Graham and Sullivan cases:

• Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
•  Some very early, very brief sentencing reflections on Judge Sotomayor
• Notable background parallels between Judge Sotomayor and Justice Alito
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Does Roper suggest young juve LWOP is unconstitutional?
• 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
• Should religious doctrines influence Eighth Amendment jurisprudence?
• UK gives life with parole for terrorists convicted of airline bomb plot
• In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

Previewing tomorrow's big SCOTUS arguments in Graham and Sullivan juve LWOP cases

How Appealing has collected here lots of links to pieces discussing in the big Graham and Sullivan cases to be argued Monday, November 9 in the Supreme Court.  For all the essential case basics in a well presented form, I recommend Lyle Denniston's preview in this SCOTUSblog post titled "Inquiring into the juvenile mind," and Adam Liptak's preview in this New York Times article headlined "Justices Weigh Life in Prison for Youths Who Never Killed."  And, as detailed below, I have done a series of posts on these very important Eighth Amendment cases since cert was first granted earlier this year.

I have a lot of new thoughts about these cases and tomorrow's arguments, some of which I hope to share in future posts.  For now though, let me make one early prediction (which I reserve the right to change after argument): neither Graham or Sullivan will be resolved through 5-4 rulings.

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
• ABAJcoverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?
• "The Case Against Juvenile Life Without Parole: Good Policy and Good Law"
• A California perspective on the juve LWOP issues before the Supreme Court

UPDATE:  Howard Bashman here has another collections of press stories about the Graham and Sullivan cases.  Readers get bonus points and my gratitude for spotlighting any special or noteworthy details in all this media coverage of these important SCOTUS cases.

Might new Governors in New Jersey and Virginia pioneer "smart on crime" innovations?

As noted in this post, there were not any obviously significant crime and justice story lines during this year's local elections.  But, given that New Jersey and Virginia are both interesting sentencing states and both now have new governors with criminal justice backgrounds, I cannot help but wonder and hope that one or both of these states could become effective laboratories for new "smart-on-crime" developments.

Amicus filing in SCOTUS habeas cases creating controversy among death penalty crowd

This story from the Boston Globe, which is headlined "Death penalty foes rip Coakley for signing brief," highlights that the politics of the death penalty in Massachusetts in quite different than in other parts of the country.  Here is the start of the story:

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts.  Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed," said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty.  “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief."

Playing the "blame game" for increased sentencing disparities after Booker

With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities.  Here are some of my early thoughts:

1.  As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker.  With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2.  Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases.  Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3.  Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines.  As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4.  Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases.  Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:

A.  Congress --- for failing to seek to reform or revise the entire system after Booker

B.  US Sentencing Commission --- for failing to revise the most unsound guidelines

C.  SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content

D.  Justice Department --- for failing to urge Congress or the USSC to do better

Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years.  Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker.  These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day.  If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.

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.

Fascinating newspaper report on the impact of Ring in Idaho

This local article from Idaho suggests that the Supreme Court's 2002 Ring decision concerning jury trial rights in capital cases has had a profound impact on the operation of the death penalty in The Gem State.  The article is headlined "Idaho prosecutors opting not to seek death penalty: Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005," and here are excerpts:

[I]n death penalty cases in Idaho since 2003, the jury is the ultimate arbiter.  And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.  Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho — double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.  And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences.  Not one of Idaho's 42 other counties has taken a death penalty case to trial.  Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others — including one in a child-death case....

Recent experience has shown Ada County prosecutors how difficult it is to persuade jurors to hand out a death sentence.   In 2004, juries called for the execution of convicted killers Azad Abdullah and Erick Hall, but in 2005 spared the lives of Jason McDermott and Ignacio Sanchez even after finding both guilty of first-degree murder.

In McDermott's case, one juror out of 12 could not get past defense evidence that showed McDermott had a brain injury from being shot in the head, mitigating his execution-style slaying of 18-year-old Zachariah Street in May 2003.   After Sanchez was found guilty of beating his girlfriend's 2-year-old daughter to death over a period of weeks in 2003, defense attorneys showed he had been physically abused as a child, had battled with depression and other mental illnesses, and had used methamphetamine since he was 12....

Such uncertainty has helped lead to settlements in a number of death penalty cases in Idaho since the 2003 law change.  Former Canyon County Prosecutor Dave Young dropped pursuit of the death penalty against Alofa Time in 2007 in exchange for a guilty plea to first-degree murder.  Time is now serving life in prison, without the possibility of parole, for killing and beheading his ex-wife, Theresa, in 2006.  Young said he made the deal "to spare the family from a lengthy trial and being forced to relive this horrific crime."...

In 2006, Jim Junior Nice avoided the death penalty after cutting a deal with Twin Falls County Prosecutor Grant Loebs to plead guilty to murdering his three young children in Twin Falls the year before.  Prosecutors say Nice used rat poison and over-the-counter medication to kill 6-year-old twins Justin and Spencer and their 2-year-old sister, Raquel.

Loebs said he made the deal in the Nice case for a variety of reasons - including the fact that Nice's guilty plea means he will never leave prison.  But he did say Nice's attorneys would have put on mitigation evidence that their client suffered from mental illness.  Figuring out whether or not to seek the death penalty "is a tough, tough calculation to make," said Loebs. "It's one of the toughest things you have to do as a prosecutor."

Are there any crime and justice issues or stories to follow this election day?

I am about to head out to vote this morning, and here in Ohio we have three state-wide ballot issues that concern only non-criminal law matters (unless one considers an initiative to authorize casinos in four Ohio cities a criminal law matter).  I head out wondering if there are any notable crime and justice issues or stories worth following closely this odd-year election day.

I see from this helpful website that Mainers are today voting on a medical marijuana issue and that New Yorkers have a prisoner re-entry issue to consider.  Also, the New Jersey gubernatorial race arguably has a criminal justice angle due to the fact that the Republican candidate, Chris Christie, used to be the state's US Attorney.  But I do not sense that any aspects of today's voting patterns will provide any sense of the national mood on any major criminal justice issues.

I have noticed that some "classic" tough-on-crime rhetoric has been showing up a bit more on the campaign trail lately.  Still, I suspect in 2010 and probably also in 2012, as was the case in 2006 and 2008, that crime and justice issues will be taking a back seat to other local and national concerns.