Sentencing Law and Policy

Legislative and executive officials revving up Florida's machinery of death

As reported in this lengthy new local article, "Gov. Rick Scott has accelerated the pace of signing death warrants in Florida by lining up three executions over the next few weeks, the most in such a brief period of time in more than two decades."   Here is more about his actions and recent similar activity within his state's legislature:

Scott and his chief legal adviser say they are doing nothing unusual.  But legal experts who oppose the death penalty wonder whether other factors are at work — such as Scott’s desire to improve his standing with voters as he seeks re-election next year.

Not since 1989, when an unpopular Gov. Bob Martinez set a record by signing six death warrants in a single day, has a Florida governor been so eager to use the death penalty. “In the past, governors wouldn’t do multiple warrants at a time. It was a much more orderly process than this,” said Martin McClain, an attorney who has defended many Florida Death Row inmates. “If appears that every 10 days, Gov. Scott is signing a death warrant.”

Scott recently signed three death warrants in succession, for condemned murderers Elmer Leon Carroll, William Van Poyck and Marshall Lee Gore.  All three have been on Death Row for longer than 20 years.  Their executions, set over the next six weeks, will keep the death chamber at Florida State Prison in Starke unusually busy.  Two other recent death warrants have been blocked in federal court.

Scott had signed a total of six death warrants before the recent burst. “I go through them when people have exhausted their appeals and they’re finished with the clemency process,” Scott said. “Then I continue to move the process along.”...

Scott’s spurt of death warrant signings also parallels the Legislature’s recent passage of a bill aimed at speeding up the death penalty appeals process.  Dubbed the Timely Justice Act by legislators, the bill (HB 7083) passed both chambers by wide margins.  It has not yet been sent to Scott for action.  “We’ll review it and see what it does,” Scott said of the bill.  One provision of the bill would require the governor to sign a death warrant within 30 days of a Death Row inmate’s clemency review, a standard step in all death penalty cases.

Some legal experts have raised concerns that the bill could increase the possibility that an innocent person could be put to death.  Former state Supreme Court Justice Raoul Cantero recently co-authored an opinion column in which he said the Timely Justice Act should be viewed in a broader framework of Florida’s death penalty system, “to minimize the risk that Florida might execute innocent people or others who shouldn’t be subject to the death penalty.”....

Florida is one of 33 states that has the death penalty, and it has 405 inmates on Death Row, more than any other state except California.  The state has executed 75 people since 1976, when capital punishment was re-instituted after a long absence.

Noting distinct criminal sentencing responses to "hacktivism" in the US and the UK

This new piece from Salon highlights the severity of the US sentencing system relative to our friends across the pond.  The piece is headlined " U.K. hacker sentencing highlights U.S. overreach: LulzSec members in Britain receive maximum of 15 months, while hacktivist Jeremy Hammond faces life in prison here." Here is how it starts:

Hacktivist Jeremy Hammond has already spent 14 months in pretrial detention at federal prison in New York.  He awaits trial for his alleged involvement in the famed LulzSec Stratfor hack and faces up to 42 years in prison.  Meanwhile, across the Atlantic, sentencing of admitted LulzSec hackers in Britain highlights the severity of the U.S. approach to hacktivism.  Three young men in the U.K. pled guilty to activity attributed to the Anonymous offshoot; their charges mirror those facing Hammond, while the extent of punishment is wildly disparate.

As activist publicity organization Sparrow Media pointed out Thursday, “three English co-defendants who plead guilty to being members of the Lulzsec hacktivist group were today sentenced by a UK court.  Ryan Acroyd, the most technically experienced of the three, received the longest sentence -- he will spend 15 months in prison.”

"Crackheaded Ruling by Sixth Circuit"

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

• from the ACLU here, "Appeals Court Says Fair Sentencing Act Applies Retroactively"
• from the FAMM here, "Don't Appeal Crack Fairness Ruling, FAMM Tells DOJ"

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

Related post:

• On (wrong?) constitutional grounds, split Sixth Circuit panel gives full retroactive effect to new FSA crack sentences

A (dynamically?) dormant death penalty in Dorothy's domicile

The playfully alliterative headline for this post is spurred by this lengthy and effective local piece headlined "The Kansas death penalty has cobwebs." Here are excerpts:

It may be weeks before Kansans know if prosecutors will seek the death penalty for Kyle Flack, accused of killing four people in Franklin County this spring.   It will take far longer — 10 years or more — before anyone in the state is actually put to death for a crime.

And that time gap, advocates on both sides of the death penalty debate say, suggests the state remains deeply uneasy about the punishment — an ambivalence that muddies its value.  “When a law isn’t applied, it isn’t really a law,” said David Muhlhausen, a death penalty supporter and expert with the conservative Heritage Foundation.

Capital punishment opponents aren’t eager to speed up executions, of course.  But they say the state’s lengthy death penalty procedure is costing taxpayers millions of dollars in legal fees and other expenses without significantly improving public safety.  “Constituents have said to me, ‘We have a theoretical death penalty, but we don’t carry it out in practice,’” said Mary Sloan, executive director of the Kansas Coalition Against the Death Penalty.  “So if we’re not going to carry it out in practice, why do we pay all that cost?”

No one has been put to death in Kansas since 1965.  “Kansas is 10 years and $20 million away from its first execution,” predicted lawyer and capital punishment opponent Sean O’Brien of Kansas City.

But death penalty supporters say the state’s ultimate sanction shouldn’t be judged solely by the number of times it’s actually used.  The mere threat of death — or decades locked in isolation, waiting for death — plays an important role, they say, in the state’s justice system.

Kansas lawmakers reinstated the state’s death penalty in 1994.  Since then, 13 men have been condemned to death for murder.  All remain alive.  Only nine sit on the state’s death row, according to the Kansas Department of Corrections’ website.  The others’ sentences were reduced after appeals and plea agreements, or have been vacated pending a new trial.

Since 1976, when the U.S. Supreme Court validated rewritten capital punishment laws, only two states with death penalty statutes — Kansas and New Hampshire — have not executed a single inmate.

The long gap between capital crime and capital punishment in Kansas is the result of several interlocking factors, experts say.  The state’s death penalty law is narrow, providing a way for even the most brutal killers to escape the punishment.  Some prosecutors use the death penalty more as a negotiating tool than a criminal sanction, and some politicians remain ambivalent about executions, as do many residents in the state.

And the courts play a critical role.  All death sentences in Kansas are automatically reviewed by the state’s Supreme Court.  It’s uniquely allowed to “scour the record” for trial and sentencing errors in capital cases, even those not raised by defense lawyers.  That further raises the chances for delays....

This fall, the U.S. Supreme Court will consider Kansas death row inmate Scott Cheever’s case — he claims his Fifth Amendment protection against self-incrimination was violated during his trial and sentencing for killing a sheriff....

In 2003, a legislative audit examined the state’s death penalty expenses in the previous decade.  Kansas, the audit found, had spent or would spend almost $20 million on its 14 death penalty cases, including cases where the death penalty was sought but not granted. By contrast, taxpayers spent $6.3 million on eight cases where the prosecutors did not ask for death in a murder case.

The most expensive death penalty case involved Johnson County’s John E. Robinson Sr., convicted on two capital murder counts.  Ten years ago, the state said Robinson’s case would cost taxpayers $2.4 million, a bill that has continued to grow.  “Nobody in his right mind defends the death penalty because it saves money, anywhere, anytime, under any circumstances,” O’Brien said.  “Because it doesn’t.”...

Gov. Sam Brownback said last week that his view on capital punishment has changed in recent years, putting him to the left of most in his Republican Party.  He now believes it should be reserved for inmates who pose a future threat to society, using Osama bin Laden as an example. “You’re always looking to protect life,” he said.  “That’s a very narrow definition of the use of the death penalty.”

Brownback’s views on capital punishment in Kansas, though, may be less important than they appear.  Even if he is re-elected in 2014, it’s unlikely he would still be in office when any death row clemency requests might be filed.  But they do suggest many Kansans, even some conservatives, remain uncomfortable with the ultimate sanction....

Some prosecutors and supporters, though, say keeping the death penalty on the Kansas books remains important.  Studies show the death penalty is still a deterrent, Heritage’s Muhlhausen said, although the effect drops in states that don’t actually carry it out.

Other experts dispute his conclusion. The Kansas murder rate is 3.5 per 100,000 people, according to the Death Penalty Information Center.  In Missouri, it’s 7 murders per 100,000.  Both have the death penalty, but only Missouri has carried it out in recent years. Iowa has no death penalty.  Its murder rate is 1.3 per 100,000 people.

But even the threat of capital punishment can focus a defendant’s attention on plea agreements that spare victims’ families from long trials, some lawyers say.  In most agreements, almost all future appeals are waived, ending the trauma of court appearances and media stories about the crime.  Additionally, death penalty defendants have more to worry about than death.

Paul Cramm represented Edwin Hall, now serving a sentence of life without parole after pleading guilty to murdering Kelsey Smith. Clients, Cramm said, are often as worried about the conditions of death row as they are about the execution chamber itself, which encourages plea deals. Death row inmates are kept in El Dorado, Kan., in isolation from almost all other prisoners. Most defendants realize “the likelihood of an acquittal or a finding of not guilty is not real high,” Cramm said. “The likelihood of being executed in your lifetime is not real high. So I guess what we’re negotiating for is, what sort of life do you want to have while you’re incarcerated?”...

Asked if the gap between sentence and execution in Kansas is too long, Brownback hesitated for several seconds. “I’ve been at the chambers in Lansing, where the death penalty would have to be administered,” he said. “That’s a very sobering place to see.

“But I think it’s kind of actually worked for the state,” he added. “Most Kansans would look at it as wanting this to be very, very, very sparingly used.”

"Two Rights to Counsel"

The title of this post is the title of this notable new article by Josh Bowers now available via SSRN. Here is the abstract:

This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel.  The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. 

To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye.  An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law.  Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.”  In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle.

It does not follow, however, that the Court’s two-track jurisprudential approach is misguided.  Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.

"Is Marijuana Booming Among Boomers?"

The title of this post is the headline of this lengthy new Forbes article which gets started this way:

Like many of her peers, Zoe Helene, 48, smoked marijuana in her early 20s but gave it up as her career in the digital world took off in the 1990s.  Today the multidisciplinary artist and environmental activist lives in Amherst, Mass., and is building a global network of trailblazers called Cosmic Sister.  Since she married an ethnobotanist in 2007, she has returned to using cannabis occasionally — “as a tool for evolving and expanding my psyche.”

Helene is among a group of women that Marie Claire magazine has dubbed “Stiletto Stoners — card-carrying, type-A workaholics who just happen to prefer kicking back with a blunt instead of a bottle.”  She’s also one of a growing legion of boomers who are returning to marijuana now that the stigma and judgment (and laws) surrounding its use are becoming more lax.

Massachusetts, which decriminalized pot in 2008, became the 18th state to legalize medical marijuana, last year.  In the 2012 presidential election, which New York Times columnist Timothy Egan called America’s “cannabis spring,” Colorado and Washington voters legalized recreational use, launching weed into the national spotlight and spawning a flurry of marijuana initiatives.  Since then, decriminalization bills have been introduced in 10 additional states, and legalization is being considered in 11 states and Puerto Rico.

This trend, along with decriminalization in cities like Chicago, Boston, New York and Denver, has removed a major “barrier to entry” for law-abiding citizens who would use cannabis as medicine or a substitute for alcohol.  No longer worried about breaking the law or having their kids discovering their “dirty little secret,” many boomers are returning to a substance they once enjoyed.  Others, who never stopped smoking, are coming out of the closet (or the garage) about their use.

As notable new face joins Eighth Circuit, will court do better with SCOTUS on sentencing issues?

Thanks to How Appealing,I just saw this interesting new AP profile of the interesting new judge on the Eighth Circuit.  The article is headlined "Jane Kelly's experience rare on US appeals court," and here are excerpts:

Jane Kelly will become a federal appeals court judge Friday with an unusual background that supporters say makes her a perfect fit for the job and a potential U.S. Supreme Court candidate someday.

The 48-year-old attorney has spent her career as a public defender representing low-income criminal defendants, a rarity in the ranks of appeals court judges who are often former prosecutors and trial judges. She'll become just the second woman in the 122-year history of the 8th U.S. Circuit Court of Appeals, which handles cases in seven states from Arkansas to the Dakotas.

Kelly, who's worked at the federal public defender's office in Cedar Rapids since 1994, graduated from Harvard Law School in the same 1991 class as President Barack Obama. But her appointment was far from patronage. She had so much support that her confirmation received a 96-0 vote in the Senate less than three months after she was appointed, speedier than any other circuit judge nominated by Obama. She also is the survivor of a 2004 beating on a popular jogging trail that left her hospitalized for weeks and shook Cedar Rapids.

Associates say she is a smart legal thinker who has zealously defended the rights of even the most publicly despised clients, including a notorious mailbox bombing suspect and the biggest white-collar criminal in Iowa history. Even prosecutors who disagreed with her in court praise Kelly, who will take the oath of office privately.

"Her story is compelling all the way around," said Debra Fitzpatrick of the University of Minnesota-based Infinity Project, which advocates for more women on the 8th Circuit. "Her credentials and her background and her career sort of set her up to be the right candidate at the right time."

If a Supreme Court justice retires during Obama's second term, Kelly could get mentioned as a potential nominee. Her supporters say they expect her to shine on the circuit, which has 11 active judges and hears 3,500 appeals a year. The lifetime appointment pays $184,500 annually.

Iowa Sen. Tom Harkin, a Democrat, recommended Kelly to Obama to replace retiring Judge Michael Melloy after she rose above an "outstanding" pool. He said she would be the first career public defender on the circuit, bringing "a critically important perspective." Iowa's other senator, Republican Chuck Grassley, ranking member on the judiciary committee, helped convince colleagues to move Kelly's confirmation quickly. Grassley said he supported Kelly because she received a glowing endorsement from respected retired judge David Hansen of Iowa, appointed to the circuit by President George H.W. Bush.

Kelly, Hansen's clerk from 1992 to 1993, was a persuasive writer and debater who often argued opposing viewpoints to help him flesh out cases, Hansen said. "She's a delight to be around, and I predict a very bright future for her in the federal judiciary," Hansen said. "She isn't going to have any trouble intellectually with the work because she has a brilliant legal mind."

Kelly, who did not respond to an interview request, received friendly questions and praise at her confirmation hearing. She said her background gives her a "broader view" of the challenges facing defendants but that she'd need to get up to speed on civil matters. She introduced her partner, Tom Lidd, who has credited Kelly with helping inspire and edit his book about Iowa football legend Nile Kinnick.

A long-distance runner, Kelly's life almost ended when she went for a morning jog on the Cedar River Trail in June 2004. She was tackled and beaten by a male stranger, then dragged to a creek and left for dead. Passersby found Kelly in a pool of blood, in and out of consciousness and struggling to call for help. Speculation swirled that the attack was linked to Kelly's legal work, but no one ever was arrested.

Kelly quickly returned to representing criminal defendants after spending months in recovery. Her colleagues gave her the John Adams Award, which recognizes an Iowa lawyer's commitment to the constitutional right to criminal defense. And hundreds gathered one year later for a "Take Back the Trail" event, where Kelly jogged there again for the first time.

Kelly grew up in Newcastle, Ind., and graduated from Duke University in 1987. She earned a Fulbright scholarship to study in New Zealand before enrolling at Harvard, where she and Obama were acquaintances but not friends. She clerked for U.S. District Judge Donald Porter in South Dakota and then for Hansen.

She taught one year at University of Illinois law school before returning to Iowa as one of the first hires for the new public defender's office. She's been a fixture ever since, often representing "not the most popular person in the room," as she put it in her confirmation hearing, including drug dealers, pornographers and con artists.

As long-time readers and sentencing gurus likely know, many of the most notable modern SCOTUS sentencing rulings involved reversals of Eighth Circuit decisions.  In just last few years alone, the defendants in Pepper, Spears, Greenlaw, and Gall all lost on sentencing issues in the Eighth Circuit prior to reverals in the Supreme Court.  Indeed, I have long speculated that some Justices take an extra long look at some of the sentencing decisions that emerge from that circuit.  I suppose only time will tell if and how these federal sentencing law patterns, and the broader criminal justice jurisprudence of the Eighth Circuit, change at all in the months and years ahead now that a fresh new face with a fresh new perspective has joined that august court.

"Can ‘Smart Gun’ Technology Change the Stalemate Over Gun Violence?"

The title of this post is the headline of this new piece of reporting over at The Crime Report, which echoes some ideas that I have been raising on this blog for a number of years and that I have given extra attention to following the Newtown massacre.  Here are excerpts:

Philadelphia Mayor Michael Nutter issued a challenge to the gun industry yesterday, arguing that the application of “smart gun” technology, designed to program firearms so that only their owners can fire them, could not only save lives but neutralize the concerns of gun rights advocates.

"Why don't you at least try?” Nutter, who also serves as president of the U.S., Conference of Mayors, asked Joe Bartozzi, vice-president of the Connecticut-based firearms manufacturer O.F. Mossberg and Sons.  “Put one on the market and see what happens."

But Bartozzi, speaking at a roundtable for newsroom editors and columnists at John Jay College of Criminal Justice in New York, insisted it wouldn’t work.  Bartozzi said Mossberg had already surveyed focus groups about some of the cutting-edge technology already available, such as personalized rings that could be digitally programmed to recognize the legitimate owner of a weapon.

The response, he said, was overwhelmingly negative.  Customers who wanted guns to protect themselves and their families considered such technology too unreliable, he said. "What if I have to hand the gun to my spouse in an emergency?”  Bartozzi recalled a focus group member asking.

"It’s hard to understand that it represents more than just a piece of steel or plastic.  It represents personal security; it represents security when the police aren't there.  It represents even food when there's no supermarket. It represents self-defense.  It represents liberty and freedom for a lot of people," Bartozzi said....

Nutter and fellow panelist Minneapolis Mayor R.T. Rybak argued that finding technological solutions to the challenge of gun access represented a common sense approach to a problem both sides agreed was a key factor in reducing the kind of gun violence that has afflicted many U.S. cities: the easy access to guns — particularly those sold or trafficked on the black market — to youth gang members and others who otherwise could not get them legally....

The smart gun technology issue, ranging from biometrics to trigger locks, also reflects a wider challenge by gun safety advocates to treat guns as consumer products subject to national safety standards similar to seatbelts in cars or childproof medicine bottles.

Bartozzi, a member of the board of governors of the National Shooting Sports Foundation — the leading industry lobby group — insisted guns are unlike other consumer products subject to federal rules because they are protected by the Second Amendment.  “I think sometimes we confuse what our privileges and rights. Driving a car is a privilege.  You have the right to own a gun,” he said.

Rybak and other speakers at yesterday’s “Under the Gun” roundtable charged that leading gun rights lobbies such as the National rifle Association (NRA) and the NSSF made it harder to reach any compromise because of their objections to both technological solutions and efforts to modernize even the current system for tracking guns used during crimes.

Based in part on prior discussions on this blog (some of which are linked below), I understand fully the reservations that many gun owners and gun-rights activists have about using technology to try to prevent mis-use of firearms.  Nevertheless, I think the development of device that might at least enable one to eletronically disable a stolen or lost firearm could perhaps generate interest in the marketplace, especially if the federal government created tax incentives to encourage use of this kind of gun-safety technology.

More broadly, I think the development of a safer "smart gun" could and should be spurred by some kind of "Project X" private funding scheme through a university or think tank (see example here), especially now that it seems the private marketplace or governments are making much progress on this front.  I suspect just a few millions dollars as a "smart gun" prize (only a fraction of what is being poured into gun policy lobby shops and PACs) could go a very long way to moving forward and ultimately saving innocent lives.

A few recent and older related posts:

• Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
• "Smart Gun Technology Could Have Blocked Adam Lanza"
• Sentencing "highlights" in President Obama's new gun control push
• Technology, smart guns, GPS tracking and a better Second Amendment
• More on smart guns, dumb technologies and market realities
• Interesting developments in "smart gun" discussions and debate

When can and how should sex offenders be responsible for harming property values?

The provocative question in the title of this post is prompted by this recent local article from Pennsylvania headlined "Judge: Sex offender not required to buy victim's property."   Here are excerpts:

A Lehigh County couple who say a neighbor who admitted molesting their child should be forced to buy their property apparently won't get their wish.

County Judge Michele A. Varricchio has shot down the Upper Milford Township couple's unusual request that sex offender Oliver Larry Beck be required to purchase their $235,000 property, according to court records. Varricchio issued the order last week, explaining that forcing a sex offender to buy the home of a victim living in his neighborhood would "open the proverbial floodgates."

"This court finds it against public policy to require a defendant to purchase a plaintiff's property in a nuisance case," Varricchio wrote. The judge added that ordering the home purchase would "impose almost limitless liability on a property owner by every other neighbor who claims difficulty selling his or her property, regardless of the proximity to the alleged nuisance."

Varricchio was ruling on preliminary objections in a lawsuit filed against Beck, along with Beck's wife and mother. The couple whose daughter was molested by Beck filed the suit in December asking a judge to order Beck to buy their home and pay for the child's pain and suffering and for other damages. They claim the property is virtually unmarketable....

They still are eligible to seek damages for their child's suffering and for the loss in value of their property, although Varricchio said they are not entitled to be paid for the total value of the property. Varricchio's order says that that the victim's family should amend the lawsuit to provide details and proof of the loss in the value of their property.

"There is no doubt that the parents have a right to enjoy their own residence and property without the invasion and interference caused by [Beck]," Varricchio wrote. "Property rights are protected by the United States Constitution, but the equal protection clause affords both plaintiffs and defendants that protection."...

There is some scientific evidence that sex offenders lower property values. Two economics professors at Columbia Business School in 2008 studied the effect, finding that the value of homes within one-tenth of a mile of a sex offender dropped by an average of 4 percent.

The suit accuses Beck of sexual assault, infliction of emotional distress, fraud and negligence, among other claims. It also names as defendants Beck's wife and mother, claiming both knew or should have known of Beck's attraction to young children.

Beck, now 65, pleaded guilty in 2011 to indecent assault of a child under 13 and served time in prison. He is out of prison, but under Megan's Law must register as a sex offender for the rest of his life. Investigators said that in February 2011, Beck lured the victim, then 7 years old, into his house by saying he wanted to show her a bear's head mounted in his basement. After telling the girl to feel the bear, Beck told her to take off her shirt and pants and then assaulted her, according to court records.

Beck's attorney, Robert J. Magee of Allentown, wrote in a court brief that the demand for the home purchase was "not appropriate or authorized under a legal or equitable theory." He added that the victim's family is still able to use and enjoy the property. He added, "This is just a type of injury that allows for no recourse, an injury without a remedy."

Varricchio also dismissed the couple's request that Beck pay their attorneys' fees. In addition, she dismissed a claim against Beck's wife that she be held partly liable for their property value loss.

"Capital Prejudice"

The title of this post is the title of this new article on SSRN authored by J. Richard Broughton.  Here is the abstract:

This paper, published as part of a symposium devoted to cultural competency and the death penalty, considers the law of prejudice pursuant to Strickland v. Washington, with a focus on its application in capital cases.  It offers a rarity in the academic literature on Strickland’s prejudice prong: a modest defense of it.  Although this paper concedes the plausibility of an alternative to the existing standard, it argues that some form of harm analysis ought to remain part of basic ineffective assistance jurisprudence and that even the best articulated alternative suffers from some deficiencies that render the existing standard equally desirable.  Indeed, this paper acknowledges that the existing prejudice standard is unlikely to be replaced and therefore must be properly understood and applied. 

The paper gives special attention to the standard as applied in capital cases involving ineffective assistance claims after Strickland, as those cases have tended to dominate the Court’s attention in this area of constitutional criminal procedure.  It then argues that the prejudice standard must account not simply for the strength of the state’s case but also, in the special context of a Strickland challenge arising from the capital sentencing phase, for the unique capital sentencing procedures in place in the relevant jurisdiction and be understood as intersecting with the Eighth Amendment law of aggravation and mitigation law as applied during the jury’s selection decision.

The Court’s opinions in Terry Williams, Wiggins, and Rompilla, in particular, all represented an effort to give greater bite to the Strickland standard and demonstrate that the state need not necessarily prevail on ineffective assistance claims.  But, unlike others in the academic community, I argue that the Court wrongly decided each of those cases. It gave too much attention to the deficiency prong and inadequate attention to proper application of the prejudice prong, particularly in light of the nature of the crimes, the strength of aggravation, and the highly deferential portions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) that generally govern claims on federal habeas review.  The Court, however, has moved in a corrective direction, especially after its recent decision in Cullen v. Pinholster, which will likely have significant consequences for the litigation of ineffective assistance claims on collateral review.

Arizona jurors quickly make finding for Jodi Arias to be formally death eligible

As detailed in this new AP report, the "same jury that convicted Jodi Arias of murder one week ago took about three hours Wednesday to determine that the former waitress is eligible for the death penalty in the stabbing and shooting death of her one-time lover in his bathroom five years ago." Here is more about today's jury finding and what now follows in this high-profile capital case:

The decision came after a day of testimony in the "aggravation" phase of the trial, during which prosecutor Juan Martinez hoped to prove the June 2008 killing was committed in an especially cruel and heinous manner.

Family members of victim Travis Alexander sobbed in the front row as Martinez took the jury through the killing one more time. He described how blood gushed from Alexander's chest, hands and throat as the motivational speaker and businessman stood at the sink in his master bathroom and looked into the mirror with Arias behind him....

The trial now moves into the final phase, in which prosecutors will call Alexander's family and other witnesses in an effort to convince the panel Arias should face the ultimate punishment. Arias' attorneys also will call witnesses, likely members of her family, in an attempt to gain sympathy from jurors so they give her life in prison. That phase is scheduled to start Thursday morning.

The aggravation phase played out in quick fashion, with only one prosecution witness and none for the defense. The most dramatic moments occurred when Martinez displayed photos of the bloody crime scene for the jury and paused in silence for two minutes to describe how long he said it took for Alexander to die at Arias' hands on June 4, 2008....

Martinez told jurors Wednesday that Alexander "suffered immensely" at Arias' hands. "She made sure she killed him by stabbing him over and over and over again," he said.

The defense didn't have much of a case given how many times Alexander was stabbed, the defensive wounds on his hands, the length of the attack, and the sheer amount of blood found at the scene. Defense lawyers said Alexander would have had so much adrenaline rushing through his body that he might not have felt much pain.

The only witness was the medical examiner who performed the autopsy and explained to jurors how Alexander did not die calmly and fought for his life as evidenced by the numerous defensive wounds on his body.

Recent related posts:

• After high-profile state murder conviction, Jodi Arias claims she wants death penalty over LWOP
• Are there (and/or should there be) special death penalty rules for female murderers?

US Judicial Conference seeks emergency funding due to "an unprecedented financial crisis that could seriously compromise [its] Constitutional mission"

As reported in this new post at The BLT, the US Judicial Conference yesterday "asked the White House for emergency funding, saying the judiciary does not have the budget flexibility to absorb the large mandatory budget cuts that have caused furloughs in the nation's federal public defender and court offices."  Here is more:

In a letter sent Tuesday to the White House Office of Management and Budget [available here], the U.S. Judicial Conference said the courts need an emergency appropriation of $73 million — $41 million for federal public defenders and $32 million for court operations. The money would save 550 jobs in public defender and clerk offices, and prevent 24,000 furlough days for 5,000 employees, the letter states.

The judicial conference request also connected the emergency funding to the Boston Marathon bombing, saying $5 million for projected representation costs "for high-threat trials, including high-threat cases in New York and Boston" that federal public defenders would have been able to absorb had the sequester not happened.

The courts want to replace part of the $350 million overall cut to the federal courts budget as part of sequestration earlier this year, according to the letter from U.S. Circuit Judge Julia Gibbons, the chair of the judicial conference, and U.S. Circuit Judge Thomas Hogan, director of the Administrative Office of the U.S. Courts.

"The judiciary is confronting an unprecedented financial crisis that could seriously compromise the Constitutional mission of the United States courts," the letter states. "We believe our supplemental request meets the threshold for receiving an emergency designation."

The federal courts, the U.S. Department of Justice and other federal agencies have been sounding the alarm about the impact of sequestration cuts since last year. Since the cuts went into effect, federal public defenders offices and clerk of courts have announced furloughs for employees.

Congress has so far restored funding cuts that affected air travel, and allowed the Justice Department to transfer funds to avoid furloughs for the prison officers, Federal Bureau of Investigation agents, prosecutors and other officials. So far, the courts have gotten no such consideration. "Unlike some executive branch entities, the judiciary has little flexibility to move funds between appropriation accounts to lessen the effect of sequestration," the letter states.

The judicial conference says $13 million of the funding would go directly to restoring public safety, because it will bring back half of the sequestration cuts for drug testing, substance abuse and mental health treatment of federal defendants and offenders. The request includes $28 million to avoid deferring for three weeks payments to private attorneys representing indigent defendants.

Recent related posts:

• Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?
• Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)
• "How the Sequester Threatens the U.S. Legal System"
• "Can Constitutional Rights Be Sequestered?"
• Lots on sentencing, sequester and other stuff at "Hercules and the Umpire"
• Are sexy and jobless now the best adjectives to describe federal criminal justice in SD Ohio?

"Colorado corrections alerting judges of hundreds of sentencing flaws"

The title of this post is the headline of this Denver Post article, which gets started this way:

Corrections officials are alerting judges throughout Colorado that errors appear to have resulted in early, improper release dates from prison for hundreds of prisoners they sentenced.

The judges are reviewing the case files so they can decide which of those already released from incarceration should be returned to prison to serve out the longer sentences required by state law. Other cases involve prisoners who are on the verge of release who may now see their sentences extended.

These are the early results of an audit still underway by the Colorado Department of Corrections.  Gov. John Hickenlooper ordered the department to conduct the audit after it was disclosed that a parolee believed to have murdered corrections chief Tom Clements was released from prison early because of a clerical error.

The audit, so far, has found "serious questions" in the sentences of 349 individuals either already released from prison or scheduled for release, corrections officials said.  Of those, judges have amended sentences in 56 cases.

The errors occurred for a variety of reasons.  In some cases, judicial clerks may have given incorrect sentences to the corrections department.  In others, corrections officials may have interpreted sentences incorrectly.  A full breakdown is not yet available on how the errors occurred.

The audit still is in the preliminary stages and is not expected to be finished until July. The state has identified 8,415 individuals whose sentences need reviews, with at least 2,500 warranting a more intensive look.  About a fifth of the intensive reviews have been completed. If the current error rate continues, "serious" sentencing flaws could be detected in the cases of more than 1,000 individuals.

I guess this story brings new meaning to the label "Department of Corrections."

Judge Kopf weighs in on Rep. Sensenbrenner (and on comments to his comment)

I am pleased to see that Senior United States District Judge Richard Kopf has now discussed, through two recent posts on his blog "Hercules and The Umpire", some of the recent discussion generated by my post concerning Representative James Sensenbrenner's statement about "judge-shopping" and the need for mandatory minimum sentencing laws.  Here are the titles of the two posts by Judge Kopf, along with the heart of Judge Kopf's additional commentary in these posts:

Memo to Doug Berman: The answer is “yes.” (This is a direct answer to this post's title query: "Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping'?"):

I once had an audience with then Chairman Sensenbrenner in his Washington office. It was disconcerting for a variety of reasons.  Prime among the reasons for my disquiet was the fact that the Congressman sat very near to a portrait of himself that was so large and so lifelike that I could not figure out whether I was speaking to the portrait or the real guy. As it turned out, nothing I said to the portrait or the man made any difference.

More on Sensenbrenner:

Everyone who knows anything about the federal district courts understand that it is virtually impossible to judge-shop in the manner suggested by the Bucky Badger doppelgänger.  Everyone who knows anything about federal sentencing policy -- from the Sentencing Commission on down -- also knows that almost all mandatory minimum sentences radically distort and frustrate reasoned sentencing practices.  The current effort to address statutory minimums in Congress is really important and Doug’s effort to stimulate serious discussion on the subject was cheapened by the responses he received.

Good and smart people ought to act good and smart.  We have the Sensenbrenners of the world to provide us with the nasty and dumb.

Abortion doc cuts post-conviction deal to get formal LWOP rather than face (symbolic) death penalty

As reported in this ABC News story, "Philadelphia abortion doctor Kermit Gosnell agreed ... to serve two life sentences and waive his right to an appeal in order to avoid the possibility of being condemned to death." Here is more about the case and the deal cut:

Gosnell was convicted of first degree murder on Monday in the deaths of three babies who were born live and then killed by severing their spinal chords with scissors.

As part of the deal, Gosnell, 72, will serve two life sentences without the possibility of parole or the opportunity to appeal.  Prosecutors had sought the death penalty against Gosnell, but because of his advanced age it was deemed unlikely that he would live long enough for death penalty appeals which can last decades.

Gosnell is expected to be sentenced Wednesday.  He will also be sentenced on a conviction of involuntary manslaughter in the death of a female patient who was given a lethal dose of sedatives and pain killers in 2009.

The guilty verdicts came on Monday, the jury's 10th day of deliberations.  Gosnell was accused of performing late-term abortions on four babies who were born alive, but were then allegedly killed by Gosnell.  He was cleared in the death of one of the infants.

For two months, the jury heard often grisly testimony, including from members of Gosnell's staff.  Eight staffers have pleaded guilty to several crimes. Prosecutors said none of the staff were licensed nurses or doctors.

While there are many justifiable complaints about the high costs associated with the administration of the death penalty, this outcome provide a prime example of the cost savings that the death penalty can sometimes help generate.  Only the prospect of the death penalty made this post-conviction deal possible, and the cost to the Pennsylvania court systems from direct and collateral appeals could have been considerable absent this deal.

Recent related post:

• After three PA murder convictions, which form of LWOP will abortion doctor get?

"Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers"

The title of this post is the title of this notable new paper now up on SSRN by Kevin Bennardo. Here is the abstract:

A sentencing appellate waiver is a promise by a criminal defendant not to appeal her sentence.  These provisions routinely appear in federal defendants’ plea agreements.  With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the scope of the waiver.  Using previous models of judicial behavior and available empirical data, this article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process.  As a solution, the article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.

First, during the plea bargaining stage, both parties suffer from incomplete information about the true value of the defendant’s appellate rights because neither the procedure nor the outcome of the sentencing hearing is yet known.  With that information deficiency, the parties’ default valuation of the defendant’s sentencing appellate rights are often unaligned — the defendant overvalues her appellate rights out of fear of an unjust sentence and the government undervalues the same rights based on past experiences. This disparity is magnified by the disproportionate significance that a defendant places on an unfavorable sentencing outcome relative to an unfavorable outcome’s significance to the government.  As a result, the parties inefficiently bargain over sentencing appellate waivers at the pre-plea stage.

Second, the foreknowledge that a sentence is virtually unreviewable removes important incentives from the sentencing judge.  Past research and behavioral modeling have demonstrated that the “ordinary” district court judge labors under an aversion to reversal and that this reversal aversion influences sentencing outcomes and procedures.  By signaling to the court that the prospect of appellate review has been removed, the current system of including sentencing appellate waivers in plea agreements reduces the likelihood that district courts will adhere to statutorily-required sentencing practices.

Third, the inclusion of sentencing appellate waivers in plea agreements creates difficulties in imposing meaningful consequences on defendants for breach of the agreement.  Under the current system, a breaching defendant who notes an appeal in violation of her appellate waiver suffers the consequence of having her appeal dismissed.  In general, neither the government nor the court is willing to unravel the entire plea agreement as a result of the breach.  Thus, the defendant’s breach renders her no worse off than if she had adhered to her promise not to appeal.  The government’s impotence to impose meaningful additional sanctions beyond the prospect of dismissal fails to effectively deter defendants from breaching their sentencing appellate waivers.

This article proposes a post-sentencing appellate waiver system whereby the defendant and the government may bargain for a separate sentencing appellate waiver agreement after the completion of the sentencing hearing.  During this post-sentencing bargaining, both parties will be fully informed about the sentencing hearing’s procedure and outcome, and thus will be able to appropriately value the defendant’s appellate rights and bargain efficiently.  Because a sentencing appellate waiver will not be consummated (if at all) until after the sentencing hearing is complete, the sentencing judge will be incentivized to conduct a hearing that complies with all applicable sentencing law.  And, because the government can withdraw the incremental benefit bartered in exchange for the defendant’s promise not to appeal, defendants will be disincentivized from breaching their sentencing appellate waiver agreements.

A potent response to a prosecutor's perspective on Lafler, Frye and the future of plea bargaining

Via this post last month, I noted this interesting commentary appearing in the Houston Law Review’s online edition by Graham Polando, Deputy Prosecuting Attorney in Indiana, concerning the Lafler ruling and the future of plea bargaining. Today I received an e-mail from Darryl Brown telling me that this blog post with Polando's Lafler criticism compelled him "to crank out a four-page response on why he's wrong in every way, including the sentencing angle."  This response is available here at SSRN, and Darryl reports it is forthcoming in the same e-journal.  Darryl also says his piece includes a "key un-scholarly innovation": an offer to donate $100 to prosecutors if any one of them proves Darryl wrong. 

This piece is titled "Lafler's Remedial Uncertainty: Why Prosecutors Can Rest Easy," and here is its abstract:  

Some prosecutors are dismayed by the U.S. Supreme Court's decision in Lafler v. Cooper. This very brief (2,000 words) comment responds to a recent version of that concern. Lafler held that a defendant who declined a plea bargain offer due to his attorney's incompetent advice, and was later convicted at trial, must be reoffered the original bargain as the first step in a remedy for denial of his right to effective counsel. Some prosecutors worry that defendants will exploit Lafler to take a shot at trial while still keeping the plea bargain in reserve.  In four pages, I explain why they should not worry.

Lafler does not guarantee defendants a sentence based on the bargain, only a chance to present that bargain to a trial court that now knows (from the intervening trial) a great deal more about a defendant's case, and which has clear authority, after Lafler, not to vacate the post-trial conviction and sentence. Further, few defendants will find it as easy as Mr. Cooper did to prove that his lawyer provided ineffective representation. And in any case defendants will have to wait years, in prison, after a trial conviction to win a Lafler claim (usually in habeas litigation) and a chance to convince a judge to resentence on the bargain's terms.

Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping"?

This recent new article in CQ Weekly was especially notable, as I noted in this post, because it highlighted how many Republican members of Congress are now leading serious discussions of review and possible reform of the federal criminal justice system and severe federal sentencing laws.  But I needed to do this separate post to spotlight what seems to be a stunningly stupid comment from Wisconsin Republican Jim Sensenbrenner in his explanation for why he still supports federal mandatory minimum sentencing laws. Here is the passage from the CQ Weekly article that almost made my head explode:

While the dialogue may be changing, passing legislation, as always, is another story.  Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor.

Sensenbrenner said as much in an interview, arguing that without such sentences, prosecutors and defense attorneys would “shop” for judges based on their reputations for handing out tough or lenient penalties.  “If there isn’t a better way to stop judge-shopping, then I think we’re stuck with mandatory minimums,” he says.

Perhaps Sensenbrenner knows something magical about the operation of the federal criminal justice system that I do not know, but I am pretty sure there are no existing mechanisms for either prosecutors or defense attorneys to somehow "shop" for judges based on their sentencing reputations.  If there were, I am confident federal prosecutors would do their very darnedest to make sure they never had any sentencing cases before district judges like Jack Weinstein (who has a well-deserved reputation for abhorring any sentencing rules demanding long setences) and defense attorneys would do their very darnedest to make sure they never had any sentencing cases before district judges like Linda Reade (who has a well-deserved reputation for being eager to give long within-guideline sentences).

As regular readers should know, I think there are a few valid — but ultimately unconvincing — arguments to be made in support of some existing federal mandatory minimum sentencing laws.  And I heartily welcome supporters of existing federal mandatory minimum laws to make their very best arguments in support of the status quo, especially as Rand Paul and other notable new congressional voices urge statutory reforms.  But gosh, is it too much to ask that powerful members of Congress at least have the most basic understanding of how our existing sentencing laws and procedures actually work before they assert that we have to be "stuck with mandatory minimums"?

In my perfect sentencing law and policy world, a comment this idoitic from someone who has long played a central role in passage and reform of federal sentencing laws would be grounds for impeachment.  But, as my work on this blog so often highlights, we are very far — and, I fear, will always be very far — from my perfect sentencing law and policy world.

Some recent and older related posts:

• Noting some new GOP sentencing reform voices inside the Beltway
• Wall Street Journal pitch for the Prez to get behind the Justice Safety Valve Act of 2013
• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Justice Safety Valve Act gets bipartisan introduction in House of Representatives
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums
• Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)

Gov Brown bringing California prison fight back to SCOTUS

As reported in this local article, headlined "Gov. Jerry Brown on Monday followed through with his vow to turn to the U.S. Supreme Court in a bid to end years of judicial control over California's overcrowded prison system." Here is more about the latest legal development in a seemingly never-ending California corrections saga:

In a three-page filing, the governor and his top prison officials notified a three-judge panel the state is appealing an April order requiring California to shed at least 10,000 more inmates by the end of December.  The attorney general's office now has 60 days to file its full legal arguments with the Supreme Court....

In the recent order, the federal judges found that California prisons remain over capacity, and that the state has various ways to improve medical care and release inmates without jeopardizing public safety.

The governor responded to that order with a plan that would remove about 7,000 inmates by the end of this year, still thousands short of the judges' demands.  But state officials do not want to take those measures, arguing a reduction of more than 25,000 inmates over the past few years has solved the overcrowding issue.

Lawyers for the inmates contend the state must do more to end the legal battle.  The Supreme Court, in a 5-4 ruling, upheld the 2009 orders to reduce prison overcrowding.  The justices would likely decide next fall whether to review the issue again.

After three PA murder convictions, which form of LWOP will abortion doctor get?

The question in the title of this post is my reaction to the notable state criminal trial verdicts in a high-profile case reported in this new New York Times article.  Here are the conviction and sentencing basics:

Dr. Kermit Gosnell, a West Philadelphia doctor known for performing late-term abortions, was found guilty on Monday on three of four counts of first-degree murder.

The verdict came after a five-week trial in which the prosecution and the defense battled over whether the fetuses Dr. Gosnell was charged with killing were alive when they were removed from their mothers.  Prosecutors have said they will seek the death penalty when the trial moves into the sentencing phase on May 21....

The jury of eight women and four men acquitted Dr. Gosnell of one first-degree murder charge involving an aborted fetus.  He was also acquitted of third-degree murder in the death of a 41-year-old patient but was found guilty of a lesser charge of involuntary manslaughter in that case.

The gruesome nature of the crimes that Dr. Gosnell was accused of and the squalid conditions in his clinic had fueled arguments on both sides of the abortion debate. Anti-abortion campaigners used the case to reinforce their argument that the practice is immoral, while abortion rights advocates warned that it underlined the need to ensure the availability of properly regulated abortions....

Prosecutors had argued that Dr. Gosnell murdered seven late-term infants who would have survived if he or his assistants had not given them a drug designed to cause “fetal demise” and then plunged scissors into their necks to ensure that they were dead. But the prosecution suffered a setback last month when Judge Jeffrey P. Minehart threw out three of the seven first-degree murder charges without giving a reason.  That left Dr. Gosnell facing four charges of first-degree murder, as well as one charge of third-degree murder in connection with the death of the patient.

In defense arguments, Mr. McMahon argued that there was no evidence that any of the fetuses were born alive and that his client was therefore not guilty on any of the murder counts.  He also told jurors that the death of the patient, a refugee from Bhutan, was due to existing medical problems and not to an overdose of an anesthetic administered by Dr. Gosnell’s unlicensed assistants, as prosecutors had said....

Mr. McMahon declined to say whether he would appeal or how he intends to keep his client off death row....

Clinic workers who appeared as witnesses for the prosecution said some of the fetuses appeared to move or make noises.  One, known as Baby D, was delivered into a toilet and appeared to make swimming motions before one of Dr. Gosnell’s assistants cut its neck, according to a worker cited during closing arguments by Edward Cameron, an assistant district attorney.

Mr. Cameron and another assistant district attorney, Joanne Pescatore, also told the jury that Dr. Gosnell kept the severed feet of aborted fetuses in dozens of jars around his clinic, the Women’s Medical Society in West Philadelphia.

According to a January 2011 grand jury report, Dr. Gosnell’s patients were covered with bloodstained blankets, treated with unsterilized instruments and surrounded by cats that were allowed to defecate in the building.  To bolster their argument that Dr. Gosnell subjected his patients to filthy and dangerous conditions, prosecutors presented the jury with a dirty procedure table and a stained ultrasound probe.

The question in the title of this post reflects the current reality that all death sentences in Pennsylvania are functional LWOP sentences in the modern era. Through there are over 200 murderers now on Pennsylvania's death row, the state over the last 40+ years the state has only executed three defendants who waived all of their appeals.

Because Gosnell is already 72 years old, it seems very unlikely that all Gosnell's appeals of any death sentence would be completed and the PA execution back-log cleared before Gosnell dies in prison of "natural causes." (Indeed, even if Pennsylvania started ASAP to execute 10 condemned prisoners each year, it would take until 2034 to carry out just existing death sentences.)

So, whether formally or functionally, Gosnell is all but certain now to serve an LWOP sentence.  Still, apparently seeking a symbolic victory, PA prosecutors apparently plan to invest a lot of money and energy trying to ensure Gosnell serves this sentence on death row rather than elsewhere.