Monday, April 08, 2013

"Retribution and Revenge in the Context of Capital Punishment"

The title of this post is the title of this notable new paper I just saw via SSRN. The piece is authored by Robert Schopp, and here is the abstract:

Several Supreme Court opinions that reject capital punishment specifically or retributive punishment generally as inconsistent with the Eighth Amendment of the Constitution characterize those practices as vengeance or as revenge.  These opinions apparently reflect the premise that vengeance is self-evidently evil.  Non-judicial participants in the legal, political, and public debates regarding capital punishment specifically or retributive punishment generally sometimes demonstrate a similar tendency to repudiate capital punishment or retributive punishment as revenge without further justification, suggesting that the mere characterization of behavior or of an institution as revenge is sufficient to establish that it is illegitimate.

This Article examines the relevant passages in these opinions and the central notions at issue in order to distinguish several possible interpretations of the positions asserted.  It then evaluates the broader interpretations in the context of one traditional moral theory. Finally, it clarifies the significance of this analysis for the underlying debate regarding the justification (or lack thereof) of retributive punishment generally or of capital punishment specifically.

April 8, 2013 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Florida still trying to figure out its Miller fix

As reported in this local article, headlined "Lawmakers differ on how to fix juvenile sentencing laws," Florida is still not yet sure how it will change its laws to comply with the Supreme Court's ruling last year in Miller.   Here are the basics:

[W]ith the 2013 legislative session at its midpoint, it’s unclear if legislation will be passed fixing the problem. It’s also unclear if the legislation will allow judges to sentence minors to lesser sentences, or if some form of parole will return to Florida for the first time in a generation.

“It is something that needs to be fixed,” said state Sen. Darren Soto, D-Orlando, who has introduced one of the several bills that would amend Florida’s sentencing laws. “But there doesn’t seem to be much will to get anything done.”...

Florida law now mandates anyone convicted of first-degree murder gets life in prison without the possibility of parole, if they are not sentenced to death. There are no exceptions for people younger than 18....

State Sen. Rob Bradley, R-Fleming Island, has introduced a bill that would allow judges to sentence minors to less than life in prison. It requires any minor convicted of first-degree murder to go through a sentencing hearing where both sides would argue what the sentence should be.

Issues like a defendant’s background, remorse, education and family history could be introduced for a judge to consider. The family of the victim would also be allowed to testify. Parole was eliminated for anyone convicted after 1994, and Bradley’s bill still prohibits it.

“I am not comfortable with a hearing occurring every five years or so where a family shows up and argues about why the defendant who killed their loved one should stay in jail,” he said. “A parole-like system is not in the best interests of Florida.”

Soto’s bill does the opposite. Life sentences are still required, but juvenile defendants will be up for parole 15 to 25 years after the sentencing occurred. “I do think they need to go to jail for a long time,” Soto said. “But children that age do deserve an opportunity to get out.”

When they’re up for parole, whether they’ve educated themselves in prison and what their family life was like beforehand will be considered, Soto said. Soto’s legislation also permits parole for juveniles who get life sentences for lesser offenses like second-degree murder. Those people would be up for parole after 15 years while first-degree murderers would have to wait 25 years.

J.D. Moorehead, a professor at Florida Coastal School of Law, said Bradley’s legislation would likely survive a court challenge because it addresses the major concern the Supreme Court had. Soto’s plan to bring back the parole system might be more problematic, although it does make a certain amount of sense to bring back parole for juveniles, Moorehead said.

The most logical step might be to take a hybrid of both bills, give judges the option of life without parole but allow them to impose a lighter sentence, and also let judges decide whether the defendant should be eligible for parole at some point, Moorehead said. “Judges know the people in front of them best,” he said.

April 8, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, April 07, 2013

Federal judge decides California still cannot run its prison without monitoring

As reported in this article, which is headlined "Judge refuses to end prison monitoring," the California prison system appears not to be getting out of federal court monitoring anytime soon. Here is the story:

Treatment of 32,000 mentally ill inmates in California prisons remains seriously deficient, with staff and facilities shortages and a high number of preventable suicides, a federal judge declared Friday in rejecting Gov. Jerry Brown's request to end more than 17 years of court monitoring.

Brown's insistence that prison mental health care now exceeds constitutional standards, after billions of dollars of expenditures, conflicts with evidence from an ongoing series of prison inspections, said U.S. District Judge Lawrence Karlton of Sacramento.

"Systemic failures persist in the form of inadequate suicide-prevention measures, excessive administrative segregation of the mentally ill (in isolated lockups), lack of timely access to adequate care, insufficient treatment space and access to beds, and unmet staffing needs," Karlton said.

He said the inmate suicide rate, which had been declining for several years, has soared since 2009 to nearly 24 per 100,000 inmates, or 60 percent above the national average. More than 70 percent of the suicides might have been prevented with adequate treatment, Karlton said....

Friday's decision is a signal that the population-reduction order is still needed and will be upheld, said Michael Bien, a lawyer for mentally ill inmates who sued the state in 1991. After finding constitutional violations, Karlton appointed a monitor, called a special master, to inspect the prisons and report on mental health care in January 1996. The judge's refusal to end the monitoring "allows us to get back to the real work of fixing a dangerously flawed mental health care system that's shamed California for more than 20 years," Bien said....

Karlton said the evidence, from experts on both sides as well as the court-appointed monitor, showed that the prisons have not implemented their own suicide-prevention plans, keep too many mentally ill inmates in high-security lockups and are understaffed by more than 20 percent.

April 7, 2013 in Prisons and prisoners, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, April 06, 2013

"Toward a Right to Litigate Ineffective Assistance of Counsel"

The title of this post is the title of this timely new paper by Ty Alper. Here is the abstract:

The Supreme Court's decisions in Martinez v. Ryan and Maples v. Thomas have been hailed as evidence of the Court's increasing willingness to grant some relevance to the competence of postconviction counsel.  While this may be true, for the vast majority of defendants convicted of noncapital crimes, the rulings provide little in the way of immediate assistance because most such prisoners have no federal habeas counsel and therefore no means to take advantage of the procedural protections Martinez and Maples provide.

In this Article, I argue that, in these cases, the Court has taken a step closer to recognizing not necessarily a broad right to postconviction counsel but rather a narrower yet critical right to raise a claim of ineffective assistance of trial counsel in at least one forum.  At least with respect to claims of ineffective assistance of trial counsel, the Court appears to be moving toward recognition that the right to raise such claims is as important as the right to raise record-based claims typically brought by constitutionally required appellate counsel.  My view is that this development is both far more significant than any signals the Court has sent with respect to the provision of postconviction counsel generally, and more likely to eventually vindicate the bedrock principle embodied in Gideon v. Wainwright.

April 6, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, April 05, 2013

Rand Paul begins forceful pitch in campaign against federal mandatory minimums

Rand Paul

I suspect that US Attorney General Eric Holder and US Senator Rand Paul do not have the same position on a lot of different issues.  And yet, today in the post right after this post covering a big speech by AG Holder in which he suggests exploring ways "to give judges more flexibility in determining certain sentences," I get to highlight this new op-ed in the Washington Times by Senator Paul which assails federal minimum sentencing laws for taking sentencing authority "away from the jury and judge."

I urge everyone to read Senator Paul's op-ed in full, and here are just a few passages that prompted me to find and post the picture that accompanies this posting:

Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal. This approach leads to our second problem: Washington’s habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.

Last year in my community, a family lost one of their sons to an overdose. They almost lost their other son to a mandatory minimum sentencing. Federal law requires a mandatory 20-year sentence if a death occurs, even an accidental one. If prosecutors had charged the surviving brother in federal court, he would have received a mandatory 20-year sentence.

When a crime is committed, it should fall to the local prosecutor, judge and jury to determine the guilt or innocence, as well as determine the just punishment for the crime. In the current system of federal mandatory-minimum sentencing, the authority is taken away from the jury and judge, and given by the legislature to the executive. Prosecutors already have tremendous power because they collect the evidence and choose which crimes to charge. If a mandatory penalty is attached to that crime, the prosecutor then exerts much influence over the entire procedure, including the sentence.

Our Founding Fathers went to great lengths to prevent the executive and prosecutors from obtaining too much power. The Fourth Amendment was written to stop overzealous searches, and the Fifth and Sixth Amendments were written to establish full due process as an inalienable right.

Ignoring these rights comes with several tangible costs. In the last 30 years, the number of federal inmates has increased from 25,000 to nearly 219,000. That is nearly a 10-fold increase in federal prisoners, each of whom cost the taxpayers $29,027 a year to incarcerate. The federal prison budget has doubled in 10 years to more than $6 billion.

Half of the people sentenced to federal prison are drug offenders. Some are simply drug addicts, who would be better served in a treatment facility. Most are nonviolent and should be punished in ways that do not require spending decades in a federal prison, with meals and health care provided by the taxpayers.

For these reasons and others, last week I joined my colleague Sen. Patrick Leahy, Vermont Democrat, in introducing a bill that would authorize judges to disregard federal mandatory-minimum sentencing on a case-by-case basis.

Some might think it is unusual for a conservative Republican to join a liberal Democrat on such a bill, but contrary to popular belief, the protection of civil liberties and adherence to the Constitution should be a bipartisan effort....

I will speak more about this in a speech I am giving at Howard University on April 10.  I hope to engage conservatives and liberals in a discussion of how the federal government should handle mandatory minimums and the reforms needed to secure our Fourth, Fifth and Sixth Amendment rights.  How much of our liberty are we willing to yield to the government in the name of a false sense security?  This is a debate that crosses many issues, and deserves full and fair exploration.

Ever the sentencing geek, I am already giddy in anticipation concerning Senator Paul's upcoming speech on these issues at Howard University. The setting is notable in part because way back in 2007, as blogged here and here, then-Senator Obama gave a big speech about the need for federal criminal justice reforms.   I would be foolish to assert that talking the talk about criminal justice at Howard University is a key step toward becoming US President, but I do not think it is foolish to assert that Rand Paul has (in my view, wisely) perhaps figured out that it may be politically valuable to speak forcefully and in constitutional terms about the need for significant federal criminal justice reform.

Some recent and older related posts:

April 5, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

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"

I am very pleased to have seen from this new Politico article that Attorney General Eric Holder last night stressed the need for national criminal justice reform at the end of a major speech delivered at the 15th Annual National Action Network Convention. The full text of the lengthy speech is available at this link, and here is some of the context for the potent quotable stressed above:

[W]e must also move to improve our nation’s criminal justice system — and to promote public safety, deterrence, efficiency, and fairness at every level. We’re providing increased support for programs offering quality legal representation to those who cannot afford it, in accordance with the Supreme Court’s decision in Gideon v. Wainwright — a landmark ruling, handed down 50 years ago last month, which held that every defendant charged with a serious crime has the right to an attorney.

We’re also asking larger questions about the mechanisms of our criminal justice system as a whole – and, where appropriate, exploring ways to recalibrate this system and ensure that it’s as fair and effective as possible.

Already, this urgent need has driven the Administration to advocate — successfully — for the elimination of the unjust 100-to-1 sentencing disparity between crack and powder cocaine.  As we speak, it is propelling us to become both smarter and tougher on crime by facilitating more effective policing at the state and local levels; broadening the impact of innovative prevention, intervention, enforcement, and reentry programs; using intelligence-based strategies to target federal law enforcement resources and assistance to the areas where they’re most needed; and seeking new ways to help crime victims — especially victims of sexual assault — to make their lives whole again.

Our reform efforts are also driving us to engage allies like the Department of Education — and others — to confront the “school-to-prison pipeline” that transforms too many educational institutions from doorways of opportunity into gateways to the criminal justice system.  They are informing essential programs like the Department’s Defending Childhood Initiative and the National Forum on Youth Violence Prevention — which are helping to rally federal leaders, state officials, private organizations, and community groups to examine how we can better understand, address, and prevent youth exposure to violence — as victims or as witnesses.  And these efforts are inspiring us to forge new partnerships like the Federal Interagency Reentry Council — a group I first convened in 2011, which brings together leaders from 20 federal agencies to address barriers that formerly incarcerated individuals face in rejoining their communities, to promote best practices, and to confront these and related issues as more than just criminal justice problems.

The sheer number of Americans contending with these challenges is staggering. Well over two million people are currently behind bars in this country.  As a nation we are coldly efficient in our incarceration efforts. One in 28 children has a parent in prison.  For African American children, this ratio is roughly 1 in 9.  In total, approximately 700,000 people are released from state and federal prisons every year.  Nine to 10 million more cycle through local jails.  And 40 percent of former federal prisoners — along with more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release.

Now, there’s no question that incarceration has a role to play in our criminal justice system.  But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes a significant economic burden — totaling nearly $83 billion in 2009 alone — along with human and moral costs that are impossible to calculate.  As a nation — and as a people — we pay a high price whenever our criminal justice policies fall short of fairly delivering outcomes that deter and punish crime, keep the American people safe, and ensure that those who pay their debts to society have the chance to become productive, law-abiding citizens.

This is why — as we look toward the future — we must promote public safety and deterrence while at the same time ensuring efficiency and fairness. I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that — in recent years — black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes. The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups — like the American Bar Association — to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and — where appropriate — to explore ways to give judges more flexibility in determining certain sentences.  Too many people go to too many prisons for far too long for no good law enforcement reason.  It is time to ask ourselves some fundamental questions about our criminal justice system.  Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive. It is time to examine our systems and determine what truly works.  We need to ensure that incarceration is used to punish, to rehabilitate, and to deter — and not simply to warehouse and forget.

I am so excited to now see that our nation's top law enforcement officer is now expressly saying, without reservation and in no uncertaint terms, what I have long believed about the big government waste in our massive modern criminal justice systems: "Too many people go to too many prisons for far too long for no good law enforcement reason."  I hope that, in addition encouraging that "ask ourselves some fundamental questions about our criminal justice system," that he will actively take the many possible steps within his power to get some of the people in prison for too long to ensure those who are now being just warehoused are no longer forgotten.

April 5, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (42) | TrackBack

"Nearly three-quarters of Americans (72%) say that, in general, government efforts to enforce marijuana laws cost more than they are worth"

4-4-13-21The title of this post is the sentence and finding that struck me as the most notable and most interesting data point emerging from the just-released survey on marijuana law and policy by the Pew Research Center.  This extended press release from the folks at Pew, which carries the headline "Majority Now Supports Legalizing Marijuana," reports on all of the survey's main findings, and here are a few excerpts:

For the first time in more than four decades of polling on the issue, a majority of Americans favor legalizing the use of marijuana.  A national survey finds that 52% say that the use of marijuana should be made legal while 45% say it should not.

Support for legalizing marijuana has risen 11 points since 2010.  The change is even more dramatic since the late 1960s. A 1969 Gallup survey found that just 12% favored legalizing marijuana use, while 84% were opposed.

The survey by the Pew Research Center, conducted March 13-17 among 1,501 adults, finds that young people are the most supportive of marijuana legalization.  Fully 65% of Millennials — born since 1980 and now between 18 and 32 — favor legalizing the use of marijuana, up from just 36% in 2008.  Yet there also has been a striking change in long-term attitudes among older generations, particularly Baby Boomers.

Half (50%) of Boomers now favor legalizing marijuana, among the highest percentages ever.  In 1978, 47% of Boomers favored legalizing marijuana, but support plummeted during the 1980s, reaching a low of 17% in 1990.  Since 1994, however, the percentage of Boomers favoring marijuana legalization has doubled, from 24% to 50%....

The survey finds that an increasing percentage of Americans say they have tried marijuana.  Overall, 48% say they have ever tried marijuana, up from 38% a decade ago. Roughly half in all age groups, except for those 65 and older, say they have tried marijuana....

Among those who say they have used marijuana in the past year, 47% say they used it “just for fun,” while 30% say it was for a medical issue; 23% volunteer they used it for medical purposes and also just for fun....

More recently, there has been a major shift in attitudes on whether it is immoral to smoke marijuana.  Currently, 32% say that smoking marijuana is morally wrong, an 18-point decline since 2006 (50%).  Over this period, the percentage saying that smoking marijuana is not a moral issue has risen 15 points (from 35% then to 50% today).

Amid changing attitudes about marijuana, a sizable percentage of Americans (72%) say that government efforts to enforce marijuana laws cost more than they are worth.  And 60% say that the federal government should not enforce federal laws prohibiting the use of marijuana in states where it is legal....

While Americans increasingly support legalizing marijuana and fewer see its potential dangers, many still do not like the idea of people using marijuana around them.  About half (51%) say they would feel uncomfortable if people around them were using marijuana, while 48% would not feel uncomfortable.  As with nearly all attitudes about marijuana, there are substantial age differences in discomfort with others using marijuana — 74% of those 65 and older say they would be uncomfortable if people around them used marijuana, compared with 35% of those under 30.

I genuinely wonder if there is any other serious federal felony law for which 3 out of every 4 persons would say that government enforcement efforts "cost more than they are worth." I also wonder whether and how these public opinions will start to have a tangible impact on federal marijuana laws, policies and practices.

April 5, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

New ACLU of Ohio report documents "contemporary debtors’ prisons"

DebtorsPrisonAs reported in this local article, headlined "Poor unfairly jailed for failing to pay fines, report says," a new report by the ACLU of Ohio makes a set of provocative assertions about crime, punishment and modern economic realities. Here are the basics:

Courts in at least seven counties routinely jail Ohioans for owing court fines and fees, in violation of the state constitution and laws and against a 1983 U.S. Supreme Court ruling, according to a new study released by the American Civil Liberties Union of Ohio.

Ohio Supreme Court Chief Justice Maureen O’Connor says the report raises issues that “can and must receive further attention.”

While many defendants can pay their fines and walk away, for Ohio’s poor a fine “is just the beginning of a process that may involve contempt charges, mounting fees, arrest warrants, and even jail time,” the report says.

The ACLU documented debtors prison practices in Springboro mayor’s court and municipal courts in Hamilton County, Sandusky, Norwalk, Parma, Mansfield and Bryan....

Other courts, including Moraine mayor’s court, employ policies such as arresting defendants for not showing up for hearings where they’re supposed to explain why they haven’t paid their fines, said Mike Brickner, ACLU of Ohio communications director. The hearings are sometimes scheduled weekly, increasing the chances that the defendant will eventually miss one and face a bench warrant, he said....

The ACLU calls on the Ohio Supreme Court to issue administrative rules to require courts to hold hearings to determine whether a defendant is unable to pay fines owed or if they’re just unwilling.  Even if a defendant is just refusing to pay, he or she is supposed to be credited $50 per day spent in jail against the debt.

Jailing people costs between $58 and $65 per night, plus the time spent by officers and clerks to track the person down, arrest them, book them into the jail and file paperwork. Often the costs exceed the debts owed.  “It is not a good deal for the taxpayers.  (The defendants) aren’t not paying because they don’t feel like it.  They’re not paying because the literally have no money,” Brickner said.   Brickner said it creates a two-tier justice system for those who are able to pay fines and those who can’t.

The ACLU of Ohio's report is titled "The Outskirts of Hope" and is available at this link.  Here are a few paragraphs from the report's introduction:

The resurgence of contemporary debtors’ prisons sits squarely at this intersection of poverty and criminal justice. While this term conjures up images of Victorian England, the research and personal stories in this report illustrate that debtors’ prisons remain all too common in 21st century Ohio. In towns across the state, thousands of people face the looming specter of incarceration every day, simply because they are poor.

Taking care of a fine is straightforward for some Ohioans — having been convicted of a criminal or traffic offense and sentenced to pay a fine, an affluent defendant may simply pay it and go on with his or her life.  For Ohio’s poor and working poor, by contrast, an unaffordable fine is just the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants, and even jail time.  The stark reality is that, in 2013, Ohioans are being repeatedly jailed simply for being too poor to pay fines. The U.S. Constitution, the Ohio Constitution, and Ohio Revised Code all prohibit debtors’ prisons. The law requires that, before jailing anyone for unpaid fines, courts must determine whether an individual is too poor to pay.  Jailing a person who is unable to pay violates the law, and yet municipal courts and mayors’ courts across the state continue this draconian practice. Moreover, debtors’ prisons actually waste taxpayer dollars by arresting and incarcerating people who will simply never be able to pay their fines, which are in any event usually smaller than the amount it costs to arrest and jail them.

The Outskirts of Hope documents how contemporary debtors’ prisons work in Ohio and profiles some of the real people who have been impacted by this system.  The constant threat of incarceration has left an imprint on each of these individuals’ lives, interfering with their families, health, employment, and housing.  By shining a light on this dark practice in Ohio, this report hopes to move our state towards the promise of greater justice and fairness for those with the fewest resources.

April 5, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, April 04, 2013

Resentencing of Enron CEO Jeff Skilling perhaps on the verge of a resolution through a sentencing deal

This new CNBC report, which has a somewhat inaccurate headline and first sentence, provides an interesting update on a long-delayed high-profile resentencing.  The article is headlined "Enron's Jeff Skilling Could Get Early Release From Prison," and the first sentence reads as follows: "Former Enron CEO Jeffrey Skilling, who is serving a 24-year prison term for his role in the energy giant's epic collapse, could get out of prison early under an agreement being discussed by his attorneys and the Justice Department, CNBC has learned."  The rest of the story explain what is going on and reveals why I call the start of the piece inaccurate:

Skilling, who was convicted in 2006 of conspiracy, fraud and insider trading, has served just over six years. It is not clear how much his sentence would be shortened under the deal.

A federal appeals panel ruled in 2009 that the original sentence imposed by U.S. District Judge Sim Lake was too harsh, but a re-sentencing for the 59-year-old Skilling has repeatedly been delayed, first as the appeals process played out, and then as the negotiations for a deal progressed. Those talks had been a closely guarded secret, but Thursday the Justice Department quietly issued a notice to victims required under federal law:

"The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter," the notice reads. "Such a sentencing agreement could restrict the parties and the Court from recommending, arguing for, or imposing certain sentences or conditions of confinement. It could also restrict the parties from challenging certain issues on appeal, including the sentence ultimately imposed by the Court at a future sentencing hearing."

A Justice Department spokesman declined to comment. Skilling's longtime defense attorney, Daniel Petrocelli, could not immediately be reached for comment.

Lake, who imposed the original sentence, would have the final say in the sentence. The posting of the notice, however, suggests the parties have some indication he will go along. Lake held a private conference call with attorneys for both sides last month.

For Skilling, who has consistently maintained his innocence, an agreement would end a long ordeal, although his conviction on 19 criminal counts would likely stand. The government, meanwhile, would avoid a potentially messy court battle over alleged misconduct by the Justice Department's elite Enron Task Force appointed in the wake of the company's sudden failure in 2001.

Skilling's attorneys had planned to move for a new trial based on that alleged misconduct. Under a sentencing agreement, that motion would likely be dropped.

UPDATE: Thanks to a helpful reader, I discovered that the crime victim notice from DOJ referenced in this article is available at this link.

April 4, 2013 in Enron sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Perfect retributivism?: Saudi court orders paralysis as punishment for assault that resulted in paralysis

A colleague sent me this remarkable international sentencing story, headlined "Surgical Paralysis Ordered in Saudi Arabia as Punishment for Teenage Assault: Spine-for-a-spine punishment has mother 'frightened to death'."  Here are the basics:

Ali Al-Khawahir, 24, is awaiting court-ordered surgical paralysis in Saudi Arabia for an assault he committed when he was 14 years old, according to news reports.

Al-Khawahir has reportedly spent 10 years in prison since stabbing a friend in the spine during a fight. The wound left his friend paralyzed.  The Saudi legal system allows eye-for-an-eye punishments.

The convicted man's mother told Arabic-language newspaper Al-Hayat that the family is seeking help raising $270,000 in "blood money," which in Saudi Arabia can be requested by a crime's victim -- or victim's family in cases of murder -- in exchange for punishment. "We don't have even a tenth of this sum," she said, according to a translation by The Guardian....

Amnesty International condemned the sentence as "outrageous" in a statement released this week. "Paralysing someone as punishment for a crime would be torture," said Ann Harrison, the organization's Middle East and North Africa deputy director. "That such a punishment might be implemented is utterly shocking."  Tooth extractions, said Amnesty, have also been ordered in Saudi Arabia.

Israeli news website Ynet reports that 13 years ago a Saudi hospital gouged out an Egyptian man's eye as punishment for an acid attack that injured another man. A similar sentence for an Indian man six years later was set aside after international outrage.

If victims do not seek "blood money" or perpetrators cannot afford to pay the amount requested, the sentence is carried out.

Though I never want to be accused of defending this seemingly brutal form of retributivist punishment, I cannot help but note that a sentence of LWOP (especially if it involves extended confinement in a supermax-type prison) could and would in some cases be more limiting of a offender's freedom than being confined to a wheelchair for life.  And, of course, there are many (perhaps thousands) of folks serving LWOP sentences in US prisons for crimes less severe than aggravated assault leading to permanent paralysis. (Recall that Terrance Graham was serving an LWOP in Florida for robbery offenses committed while a teenager until the US Supreme Court decided the sentence was unconstitutional.)

As should be obvious, I am not trying to make the case for either paralysis or LWOP as justifiable punishments, but rather I am trying to suggest that some reasons we may find this court-ordered lifetime confinement to a wheelchair os horrific ought also give us reason to be deeply troubled by court-ordered lifetime confinement to a cage.  More broadly, I mean for this story and my headline to highlight that an aggressive commitment to the deontological punishment philosophy of retributivism may make it difficult to assail, at least in theory, the distinctive punishment ordered by the Saudi court in this case.

April 4, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (21) | TrackBack

"Pretrial Detention and the Right to Be Monitored"

The title of this post is the title of this notable new paper available via SSRN by Samuel Wiseman. Here is the abstract:

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it.  In the context of pretrial justice, however, we have the opposite problem.  Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system.  Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention.  But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.

This paper develops two related claims.  First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk.  In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense).  Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.

Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action.  The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts.  Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically.  To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them.  The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary.  Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.

Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint."  I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.

April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, April 03, 2013

Some notable headlines in wake of state prosecutors' decision to seek death penalty for James Holmes

I was intrigued to see this set of notable anti-death penalty headlines and commentaries in a bunch of major news sources this afternoon as a follow-up to the recent decision by Colorado state prosecutors to seek a death sentence in the Aurora mass shooting case:

From The Atlantic here, "In Aurora Shooting Case, a Public Pushback Against the Death Penalty"

From The Guardian here, "Even Aurora shooter James Holmes shouldn't get the death penalty"

From CNN here, "Why death penalty for Holmes wouldn't bring justice"

From the Daily Beast here, "Why My Mother Would Save Aurora Shooter James Holmes"

Also from the Daily Beast here, "Death Penalty Is the Wrong Punishment for James Holmes"

I think most of the authors of these pieces are committed abolitionists, so their positions on this high-profile case is not all that surprising.  But I still think it is notable and significant that so many commentators are quick to take up the challenge of seeking to explain and justify their opposition to the death penalty even in a case in which the crime is so horrific.

Recent and older related posts (with lots of comments):

April 3, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

For blogging about circuit sentencing opinions, three is a magic number

Schoolhouse_Rock_3_Number_Red_Juniors_POPBecause I have been on the road a lot lately (and will be on the road again starting tomorrow), I have had precious little time to keep up with or blog about notable recent circuit sentencing opinions.  And today I feel extra overwhlemed, in part because potentially blog-worthy opinions have been handed down in the last few days in nearly every federal circuit.  But, as the title of this post and the classic picture is meant to suggest, on this the third day of the month there are three new opinions from all three of the three-magical circuits that merit taking the time for a blog shout-out:

From the Third (3 x 1) Circuit, we get US v. Zabielski, No. 11-3288 (3d Cir. Apr. 3, 2013) (available here), which starts this way:

 

In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the United States Sentencing Guidelines could not constitutionally be applied as diktats.  Rather than scrap the Guidelines entirely, the Court left them intact as advisory and trial judges may vary from them, within reason, after applying the relevant provisions of 18 U.S.C. § 3553(a).  Before doing so, it is important that trial judges accurately calculate the Guidelines range and correctly rule on departure motions.  Failure to accomplish either of these tasks typically will cause us to vacate and remand for resentencing.  In some cases, however, the procedural error committed by the sentencing court is so insignificant or immaterial that prudence dictates that we hold such error harmless.  Because we view this appeal as one of those cases, we will affirm Appellant Mark Zabielski‘s judgment of sentence.

 

From the Sixth (3 x 2) Circuit, we get US v. Doyle, No. 12-5516 (6th Cir. Apr. 3, 2013) (available here), which starts this way:

After moving to Tennessee, Rashan Doyle was charged with failure to register as a sex offender, in violation of 18 U.S.C. section 2250(a), to which he pleaded guilty without a plea agreement.  The district court sentenced Doyle to three years and one month in prison followed by ten years of supervised release, upon which the district court imposed four special conditions, numbered three, four, six and eight.  Doyle appeals the district court’s imposition of these four special conditions of supervised release.  Because the district court erred procedurally by failing to explain its reasons for imposing the special conditions, and because the record does not otherwise illuminate the reasons for them, we VACATE the district court’s imposition of the special conditions of supervised release and REMAND for resentencing proceedings consistent with this opinion. 

From the Ninth (3 x 3) Circuit, we get US v. Augustine, No. 12-50061 (9th Cir. Apr. 3, 2013) (available here), which starts this way:

In the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111–220, 124 Stat. 2372, Congress addressed the inequitable disparity between the sentences prescribed for crack and powder cocaine offenses. The question in this case is whether a defendant sentenced for a crack cocaine offense before the FSA was enacted is eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2).  We hold, consistent with all circuits to have addressed the issue, that the FSA’s lowered mandatory minimums are not available to such individuals.

 

April 3, 2013 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Judge to retire after sending racist Obama email"

The title of this post is the headline of this notable new AP article following up on a federal judiciary story that generated some blog-worthy discussions around a year ago.  Here are the basics (followed by  back-story links to prior posts):

Montana's chief federal judge will retire following an investigation into an email he forwarded that included a racist joke involving President Barack Obama.

U.S. District Judge Richard Cebull had previously announced he would step down as chief circuit judge and take a reduced caseload, but he informed the 9th U.S. Circuit Court of Appeals that he now intends to fully retire May 3. The appellate court posted a statement by Chief Judge Alex Kozinski on its website Tuesday announcing Cebull had submitted the retirement letter.

The March 29 letter comes after the appellate court's Judicial Council issued a March 15 order on the investigation into the February 2012 email, but appellate court spokesman David Madden could not say whether Cebull resigned because of the order. "The misconduct process is confidential. I am not privy to what the order said nor do I know what Judge Cebull's motivations were," Madden said in Wednesday email.

The council's order will remain confidential during an appeal period, which concludes May 17, Madden said. The council will make an announcement after Cebull's retirement takes effect, he said, but added that he was unable to answer when the order or the letter will be released to the public.

A Cebull aide directed calls for comment to Clerk of Court Tyler Gilman, who said Wednesday that Cebull would not have any comment other than the court's statement. He declined to release the resignation letter or describe what it said.

Cebull wrote a letter of apology to Obama and filed a complaint against himself after The Great Falls Tribune published the contents of the email, which included a joke about bestiality and the president's mother.

The Billings judge forwarded the email from his chambers to six other people on Feb. 20, 2012, the newspaper reported.  Two other groups also demanded an investigation, with one, the Montana Human Rights Network, starting an online petition calling for Cebull's resignation.

Kim Abbott, the network's co-director, said Wednesday she was pleased with the announcement but hopes to see the results of the investigation.  "The email really called into question his ability to treat women and people of color fairly, so we're happy Montanans will get to appear before a different judge," Abbott said.

The complaints were referred to a special committee appointed by the appellate court to investigate whether Cebull's email constituted misconduct.  Kozinski's statement said the committee submitted a report to the Judicial Council in December after "a thorough and extensive investigation" that included interviews with witnesses and Cebull and going over related documents. The council issued its order based on that report....

Cebull previously said he would take senior status March 18, which would have allowed another judge to be appointed while he continued working with a reduced caseload. U.S. Sen. Max Baucus then formed a committee to replace Cebull and another judge taking senior status, with Baucus recently recommending that Obama appoint state District Judge Susan Watters of Billings to take Cebull's spot on the bench.

The new chief federal judge, U.S. District Judge Dana Christensen, plans to meet with other judges to discuss how to handle the Cebull's cases, Gilman said. Cebull was a Billings attorney for nearly 30 years before becoming a U.S. magistrate in Great Falls in 1998. He became a district judge in 2001 and has served as chief judge of the District of Montana since 2008.

Related prior posts (all from March 2012):

April 3, 2013 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 02, 2013

Guest post by Norm Pattis on his new book, "Juries and Justice"

Juries-and-Justice_Cover_thumbI was pleased to receive from noted criminal defense and civil rights lawyer Norm Pattis the following guest-post concerning the themes in his new book, "Juries and Justice: Saving a System Under Fire":

Juries, we like to tell ourselves, are one of the crown jewels of the American experiment in republicanism.  King George III’s interference with the right to jury trials was, after all, one of the reasons cited for rebellion in the Declaration of Independence. Yet today, a summons to jury duty is regarded by many as akin to a trip to the dentist’s office.  Attend jury selection some time and listen to the excuses people offer as to why they cannot serve.  It’s depressing.  Is it possible that one reason for the decline in interest in jury service is that we have transformed jurors into little more than assembly line workers?

At the time of the founding, jurors had the right to decide both facts and law.  In other words, juries could, and did, nullify the law when they thought the law was unfairly, or improperly, applied.  Thus, while John Peter Zenger was undoubtedly guilty in the 1730s of publishing seditious, unlawful comments about William Cosby, the governor of New York, his jury voted to acquit, expressing its sense that the law was wrong.  Today, Zenger would have been convicted by a jury told that it had to follow the law regardless of whether jurors agreed or disagreed with the law.

Jury nullification is prohibited in the federal courts.  In 1895, the Supreme Court ruled a defendant had no right to have a jury informed of its ability to nullify.  Sparf v. United States, 156 U.S. 51 (1895).  Only a handful of states permit lawyers to argue nullification to juries today.  New Hampshire, for example, passed legislation in 2012 permitting the practice.

What irony, then, to permit prosecutors to argue that a defendant must be held “accountable,” the favorite trope of prosecutors nationwide, while at the same time hobbling a jury’s ability to render a decision about whether the prosecution has responsibly used its power to charge a person with a crime.

Jury service offers ordinary people an opportunity to sit in judgment over the day-today conduct of government officials in a way that voting does not.  By the time a candidate for office has been vetted, funded, and groomed by the major parties and Political Action Committees, the candidates too often appear beholden to big money.  Is it any wonder that the stock market has “recovered,” creating great wealth for a few, while many remain out of work, apparently locked out of an economy that doesn’t work for them?

Why not give jurors the chance to express themselves by nullifying the law as a matter of political protest?  Why, for example, can’t jurors simply say “no” when the prosecution seeks to imprison a young man or woman for casual drug use, but decides not to prosecute a banker who engaged in what amounted to fraud by selling bad mortgages?

Jury nullification is risky.  Didn’t juries nullify in the deep South in the 1960s by refusing to convict southerners of acts of racially motivated violence?  In other words, isn’t the rule of law imperiled when it plays a subordinate role to a jury’s passion and prejudice?

That risk is real.  But, on balance, the greater risk seems to be a people adrift, without a real sense of efficacy.  If government were held accountable for the consequences of the day-to-day decisions it makes in jury rooms, a habit of participation might be fostered in a people consigned to playing the role of passive consumers every so often on polling day. Tweedledum and Tweedledee might be forced to listen if jurors were given choices in jury rooms about whether the law served purposes the people endorse.

I say empowering juries could empower communities, and make government more responsive to the felt necessity of the times.  We can increase a sense of the legitimacy of public institutions by getting jurors more involved in deciding not just whether a defendant is guilty of the crime charged, but whether the government has used our resources wisely in deciding to prosecute in the first instance.

I say it’s time to restore the right to nullify in courts throughout the land.  Will it yield chaos and unpredictability?  Perhaps.  Who said order for order’s sake is a good thing? Justice is too important to be left to judges and lawyers.  Ordinary people live with the consequences of what goes on in a courtroom; these people should have a greater role in deciding the cases they hear.

April 2, 2013 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Protests scuttle private prison group's plans to get name on university stadium

As reported in this prior post a few weeks back, the private prison corporation GEO Group Inc. had a deal in the works to give a huge check to a university in Florida and to get a stadium named after it in return.  But, as highlighted in this new Huffington Post piece, the deal is off:

It was a move that baffled sports marketing experts: Florida Atlantic University struck a deal in February to name its football stadium after a private prison company.

But after more than a month of backlash from students, faculty and human rights groups, the GEO Group Inc. pulled out of the $6 million deal with Florida Atlantic on Monday, citing the "distraction" it had caused for the company and the university.

"What was originally intended as a gesture of GEO's goodwill to financially assist the University's athletic scholarship program has surprisingly evolved into an ongoing distraction to both of our organizations," GEO Group chairman and chief executive George Zoley said in a statement released by the university on Monday.

Soon after the deal was announced in mid-February, it got attention in national news outlets and garnered a segment on the Colbert Report. Citing lawsuits against the company and federal reports detailing horrible conditions at a GEO-operated youth prison in Mississippi, host Stephen Colbert quipped: "This criticism is just one of the downsides of paying millions of dollars to have people pay attention to your company …. People start paying attention to your company."

The GEO Group is based in Boca Raton, Fla., just a few miles from Florida Atlantic University. Zoley, the company's chairman and chief executive, received bachelor's and master's degrees from the university and was a former chairman of the board of trustees. The university had been seeking a corporate sponsor for two years to pay down the debt on its newly built stadium, and the GEO Group pledged to pay $6 million over 10 years in exchange for the naming rights.

Student groups at Florida Atlantic quickly coalesced against the GEO Group Stadium deal, dubbing the facility "Owlcatraz" -- a play on the university's mascot, an owl. They staged a sit-in outside the university president's office in February and demanded that university leadership organize forums and discussions about GEO's human rights record.

The school's faculty senate overwhelmingly passed a resolution against the stadium name last month, noting that GEO Group's business practices "do not align with the missions of the university."...

The GEO Group's revenue has nearly tripled over the last decade, as the private prison company has captured greater shares of state and federal prison populations, including facilities that hold undocumented immigrants. GEO has also donated more than $1.2 million to the Florida Republican Party over the last three election cycles. Republicans in the state legislature last year came close to approving a massive expansion of private prisons in south Florida, an opportunity that the GEO Group mentioned frequently in calls with investors....

In a statement, Florida Atlantic President Mary Jane Saunders said Zoley and the company "have been loyal supporters of this university" and that she was thankful for all organizations that give to support "our mission, our pursuit of academic excellence and valuable contributions to this community."...

It is unclear where the university will get the money needed to pay off debt for its stadium. FAU had been searching for more than two years for a corporate sponsor before GEO Group agreed to pay $6 million over 10 years. The university built the $70 million football stadium in 2011, borrowing more than $45 million.

Some recent and older related posts: 

April 2, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

"Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Punishment"

The title of this post is the title of this notable new paper by SpearIt available via SSRN. Here is the abstract:

This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment.  The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution.  It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more to do with culture than crime.

This approach has been largely overlooked by legal scholars, yet ritual studies enhance understanding of law and legal institutions. A ritual perspective illuminates the religious history of criminal justice, challenges traditional dogmas that hold punishment as a rational response to crime, and explains why some people must suffer so that others may feel secure.

April 2, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, April 01, 2013

"James Holmes' Victims Applaud Death Penalty Plan: 'I Want Him Dead'"

The title of this post is the notable headline of this ABC News report on the (not-very-surprising) decision today by Colorado prosecutors to seek the death penalty for mass murderer James Holmes. Here are excerpts:

Friends of Aurora shooting victims applauded prosecutors' decision today to seek the death penalty for James Holmes, with one friend saying he wanted to be in the room if Holmes is executed.

"I don't know if it's painful. I want him dead. I just want to be there in the room when he dies," Bryan Beard said outside the Colorado courthouse. "He took one of my friends from this Earth. Death equals death." Beard's close friend Alex Sullivan was one of the 12 people killed in the shooting on July 20 last year. It was Sullivan's 27th birthday.

Prosecutors from the Arapahoe County District Attorney's Office said at a hearing today in Aurora, Colo., that they will seek execution for Holmes if he is convicted. "For James Eagan Holmes, justice is death," District Attorney George Brauchler said in court.

A couple of victims' relatives cried. Holmes' parents were also in court. He looked at them when he came in. After the announcement, Holmes' father nodded his head and put his arm around his wife.

Brauchler said his office has reached out to 800 victims and that he had personally spoken with relatives of 60 victims who died and were injured. Brauchler said he didn't speak to anyone about the decision.

"They are trying to execute our client and we will do what we need to do to save his life," public defender Tammy Brady said in a voice shaking with anger. "We are asking the court not to rush this."

Judge Carlos Samour, the case's new judge, set the trial date for Feb. 3, 2014, but the date could change if the defense finds it is not ready early next year. "I want to be aggressive in moving this case along, and at the same time I want to make sure it's done right," Samour said.

The decision follows several days of wrangling between the defense and prosecution over Holmes' offer to plead guilty in a bid to avoid the death penalty. Despite the announcement, experts predict a long road ahead for Holmes, 25, and the case....

Family members are divided on whether Holmes should get death, according to investigative sources. Some are philosophically opposed to the death penalty, others support it and still another group wants death for Holmes, but they don't want to endure a trial.

Recent and older related posts (with lots of comments):

April 1, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Unanimous SCOTUS summary reversal of Ninth Circuit on right-of-appoint-counsel

A long day of meetings has meant it has taken me nearly all day to note today's notable Sixth Amendment ruling from the Supreme Court in Marshall v. Rodgers, No. 12-382 (S. Ct. Apr. 1, 2013) (available here).  The Rodgers ruling is a unanimous, per curiam summary reversal of the Ninth Circuit, and the start and end of the short SCOTUS opinion highlights its nuances:

Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to ap- point an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent’s petition, and he appealed to the Court ofAppeals for the Ninth Circuit, which granted habeasrelief.  678 F. 3d 1149, 1163 (2012).  Because the Court of Appeals erred in concluding that respondent’s claim issupported by “clearly established Federal law, as determined by the Supreme Court of the United States,” U. S. C. §2254(d)(1), its judgment must be reversed....

The Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges.  And it does not suggest or imply that the underlying issue, if presented on direct review, would be insubstantial.  This opinion is instead confined to the determination that the conclusion of the California courts that there was no Sixth Amendment violation is not contrary to “clearly established Federal law, as determined by the Supreme Court of the United States.” §2254(d)(1).

The petition for a writ of certiorari and respondent’smotion to proceed in forma pauperis are granted.  The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

April 1, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 31, 2013

Two notable (and notably distinct) new capital punishment papers

I tend not to read most of the (voluminous) academic commentary about the death penalty because they usually build to the same type of abolition-oriented conclusions.  But appearing on SSRN in the the past few weeks are these two different kinds of discussions of the death penalty:

The Case Against the Case Against the Death Penalty by Chad Flanders:

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders.  This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment.  The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty.  Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general.

Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as “dignity,” “decency” or “civilization,” but so far, the death penalty's opponents have not met their burden of persuasion.

The Death Penalty Spectacle by Tung Yin:

The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject).

This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.” On the other hand, while abolition of the death penalty sounds pretty appealing, this inmate’s case raises a tricky question: he was already serving a life without parole sentence when he murdered another inmate. How should society punish someone like this? Another life sentence is meaningless, and even if one rejects retribution and deterrence as legitimate punishment rationales, incapacitation seems appropriate – executing him would prevent him from killing any other inmates (or guards).

There are, of course, other ways of protecting other inmates: maybe the murderous inmate could be kept in solitary confinement for the rest of his life. The direction of European courts, which have been ahead of our abolitionist movement, as well as the experience here with Ramzi Yousef, one of the deadliest terrorists in U.S. custody, suggests, however, that such conditions may become the new Eighth Amendment battleground. But how is society to protect other inmates if it can neither execute nor place in solitary confinement someone who murders other inmates?

March 31, 2013 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (14) | TrackBack