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February 1, 2006

Another notable death penalty report

Folks interested in the administration of the death penalty, in addition to the 500+ pages of reading coming from the ABA and AI earlier this week, now also have another nearly 200 pages courtesy of the Constitution Project's Death Penalty Initiative.  Here is how this official press release describes the latest effort:

Today in Washington, the members of the Constitution Project's bipartisan, blue-ribbon Death Penalty Initiative released an updated set of guiding principles for reform of death penalty systems in the United States. Timed to correspond with an important death penalty hearing in the Senate Judiciary Constitution, Civil Rights and Property Rights Subcommittee, Mandatory Justice: The Death Penalty Revisited examines problems and solutions relevant to all capital punishment systems in the United States.

The full report and an executive summary can both be accessed from this webpage, which also provides this additional helpful account of the report's coverage:

The latest report of the Constitution Project's Death Penalty Initiative, Mandatory Justice: The Death Penalty Revisited, provides a list of specific and innovative tactics for improving the fairness and reliability of capital punishment systems in the United States. Updating the Initiative’s first publication on this topic (issued in 2001), the report notes some improvements in recent years and identifies further steps that must still be taken in order to minimize mistakes and increase fairness and accuracy.

February 1, 2006 at 07:53 AM | Permalink


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If consulting the guidelines means judge-fact-finding, post verdict, then the Sixth Amendment has been violated and the error should cease, not be reviewed for reasonableness, “Defendant also argues that giving the Guidelines a high level of deferenceon remand would violate his Sixth Amendment rights by de facto making the
Guidelines mandatory. However, Booker instructs that trial courts, “while not
bound to apply the Guidelines, must consult those Guidelines and take them into
account when sentencing.” 125 S. Ct. at 767. Further, the opinion indicates that
trial courts must accord deference to the Guidelines: “These features of the
remaining system, while not the system Congress enacted, nonetheless continue to
move sentencing in Congress’ preferred direction, helping to avoid excessive
sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.” Id.” See US v. Crockett, No. 04-4204 (10th Cir. Jan. 31, 2006)
The Supreme Court did not agree with the government’s vision of what Congress enacted, “The Government thus contends that, whether or not the defendant chooses to submit to a jury the question of his guilt, the death penalty may be imposed if and only if both judge and jury concur in its imposition. On this understanding of the statute, the Government concludes that the death penalty provision of the Kidnaping Act does not operate to penalize the defendant who chooses to contest his guilt before a jury. It is unnecessary to decide here whether this conclusion would follow from the statutory scheme the Government envisions, for it is not, in fact, the scheme that Congress enacted.” United States v. Jackson, 390 U.S. 570 (1968)
And the Supreme Court would not allow “creat[ions] from whole cloth. “It is one thing to fill a minor gap in a statute to extrapolate from its general design details that were inadvertently omitted. It is quite another thing to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality. United States v. Jackson”, 390 U.S. 570 (1968)
But in Booker, Justice Breyer and a small majority judicially enacted what Congress explicitly rejected, “advisory guidelines”. It is unconstitutionality of replacing the fact-finder; the jury, which was not waived in Crockett’s case, the post verdict proceedings provided none of the structural framework of a fair trial, and no result from such a proceeding can be considered reasonable when entirely unconstitutional.

Posted by: Barry Ward | Feb 1, 2006 2:24:14 PM

Sorry, wrong comments section, I meant to comment under last post Tenth Circtuit, Crockett case post. Booker twosome from the Tenth Circuit.

Posted by: Barry Ward | Feb 1, 2006 2:33:34 PM

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