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July 8, 2006

Reviewing the lethal injection scrummages

The Baltimore Sun has this effective article reviewing all the litigation and uncertainty surrounding lethal injection protocols and this companion piece detailing the state of litigation in a number of states.

Some recent related posts:

UPDATE: The Kansas City Star has this effective piece discussing Missouri's lethal injection struggles.  Here are some notable aspects of the interesting article:

The state of Missouri has its marching orders, but the road back to its execution chamber is blocked by a daunting obstacle — medical ethics.  Missouri corrections officials have been unable to find an anesthesiologist willing to help put the state's condemned prisoners to death.  Until they do, they cannot comply with a federal judge's June 26 order that stopped all executions in the state....

Director Larry Crawford said the Corrections Department was working to comply with the judge's order [to improve the lethal injection protocol].  "We are continuing to look for a person or persons who would be willing to be there (when an execution occurs)," he said....

Last week the department mailed letters to nearly 300 anesthesiologists in Missouri and Illinois, and it has contacted other states to see whether any others use anesthesiologists in their executions. So far, no state has responded that it is using one, a department spokesman said.

July 8, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

July 7, 2006

Eleventh Circuit reverses below-guideline sentence

If you like crisp sentences of six words or less, you will enjoy the end of this introduction to the Eleventh Circuit's opinion today in US v. Crisp, No. 05-12304 (11th Cir. July 7, 2006) (available here):

As the comptroller of a corporation, Michael Crisp participated in a fraudulent scheme that bilked a bank out of nearly half a million dollars.  After being caught, he pleaded guilty to making false statements to a financial institution and helped the government prosecute a co-conspirator.  Grateful, the government moved for a substantial assistance departure.  The district court exceeded the limits of the government’s gratitude by departing to an offense level below the one that it had recommended.

The court then went even further, using its post-Booker authority to dip below the post-departure guidelines range, and sentenced Crisp to probation.  The government objected, pointing out that given the offense of conviction the law requires incarceration.  Persuaded of the legal correctness of the government's position, although not caught up in the spirit of it, the court modified the sentence to one of incarceration, or something meant to resemble it.  The court sentenced Crisp to five hours in custody of the Marshals.  Crisp had reason to be grateful. The government did not. This is its appeal.  We reverse.

Crisp is an interesting read, and it finishes with this intriguing conclusion:

Other courts have found that a district court's "unjustified reliance upon any one [§ 3553(a)] factor is a symptom of an unreasonable sentence." United States v. Rattoballi, __ F.3d __, __, 2006 WL 1699460, at *8 (2d Cir. June 21, 2006); accord [more cites].  That is what happened in this case.  The district court focused single-mindedly on the goal of restitution to the detriment of all of the other sentencing factors. An unreasonable approach produced an unreasonable sentence.

July 7, 2006 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

Intriguing parole decision from the DC Circuit

Providing a rare outcome in a rare kind of case, the DC Circuit today in Singletary v. US Parole Commission, No. 04-7013 (DC Cir. July 7, 2006) (available here), ruled that a defendant was entitled to a new parole revocation hearing. Here is how the opinion starts:

Charles Singletary's parole was revoked in 1996 based on his alleged participation in a murder. The evidence tying Singletary to this offense — for which he has been imprisoned for the last ten years — consisted solely of hearsay testimony relayed by a prosecutor and an investigating detective.  The reliability of the hearsay, most of it multilayered, was never established, and its accuracy remains open to serious questions.  A parole revocation hearing is not a criminal trial, and the same standards of proof and admissibility of evidence do not apply.  Yet though the government is not required to carry a heavy burden in such proceedings, it cannot return a parolee to prison based on a record as shoddy as this one.  We therefore conclude that Singletary is entitled to a new parole revocation hearing.

July 7, 2006 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

YLJ Pocket Part review of appellate review after Booker

The Yale Law Journal's terrific companion website, called The Pocket Part, has devoted its July issue to a discussion of appellate review of federal sentences after Booker.  Here is the introductory set-up for four commentaries on this great topic:

Justice Breyer's remedial opinion in United States v. Booker not only rendered the Federal Sentencing Guidelines advisory but also called on appellate judges to ensure that sentences are not "unreasonable."  Eighteen months after Booker, the appellate courts are still grappling with how to determine whether a sentence is reasonable or not.  This month, four authors — Judge Nancy Gertner, Professors Doug Berman and Steve Chanenson, and Yale Law Journal Editor Eric Citron — offer their perspectives on the definition and practical meaning of appellate review of sentencing.

My contribution to The Pocket Part, which is entitled "Reasoning Through Reasonableness" and can be accessed here, provides a distinct iteration of some points developed in my recent "Conceptualizing Booker" article.  And I highly encourage a close read of the other reasonable perspectives on reasonableness review appearing in the Pocket-worthy contributions by Judge Nancy Gertner, Professor Steve Chanenson, and YLJ Editor Eric Citron.

July 7, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

July 6, 2006

Ninth Circuit says CVRA does not give victim right to PSR

The Ninth Circuit, in a brief new per curiam opinion in Kenna v. US District Court for the Central District of California, No. 06-73352 (9th Cir. July 5, 2006) (available here), summarily rejects a crime victim's claim that the Crime Victims' Rights Act (CVRA) gives victims a right to obtain disclosure of a full presentence report.  (One sentence in the opinion hints that the victim's arguments on appeal would have been stronger if he was willing to consider partial disclosure of the PSR.)

Notably, in a prior Kenna ruling (discussed here), the Ninth Circuit spoke grandly about the rights conferred by the CVRA to crime victims at sentencing.  The Circuit boldly asserted that the "statute was enacted to make crime victims full participants in the criminal justice system."  But, to be a full participant in the sentencing process, a victim would need access to the PSR on the same terms that the prosecution and defense have access to it.  But, the second time around in Kenna, a broad vision of crime victim rights at sentencing do not carry the day.

Some recent related posts:

July 6, 2006 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Ninth Circuit reviews Booker pipeline rules

The Ninth Circuit today in US v. Beng-Salazar, No. 04-50518 (9th Cir. July 6, 2006) (available here), provides an extended and thoughtful review of a range of Booker appellate pipeline issues.  Here is the concluding paragraph:

We follow the lead of every other circuit to consider the issue and hold that a defendant who raised an objection in district court based on the Sixth Amendment holdings of the Apprendi line of cases preserved his claim that he is entitled to resentencing under the advisory Guidelines regime.  Because Beng's objections pass muster under this test, he is entitled to full vacatur of his sentence and a remand to the district court for resentencing unless the Government can show that the error was harmless.  In light of the district court's understandable silence on how it would have sentenced Beng under an advisory Guidelines system, the Government cannot meet its burden.

July 6, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Considering castration for certain sex offenders

Earlier this week, the AP and the Washington Post both had stories about sex offenders (one in California and on in Virginia) who voluntarily underwent physical castration to reduce their sex drives and are now seeking release from prison.  Here are some details from the AP story:

A convicted child molester who got surgically castrated to curb his urges wants to be released from custody.  Kevin Reilly won a court order and paid to have his testicles removed in 2003.  "He felt that this was the only way to stop his cravings and immoral conduct," said his attorney, Orange County Deputy Public Defender Dinah Granafei.

Reilly says he has completed a sex-offender treatment program, undergone castration and is no longer a threat to children. He wants to be freed from Atascadero Mental Hospital, where he has been locked up since 2000 when the Orange County District Attorney's Office filed a petition labeling him a Sexually Violent Predator.

The Washington Post story, which centers on an inmate who castrated himself while in prison, provides broader background on the emerging role of castration in sex offender debates:

High-profile pedophilia cases ... [and] public outrage has caused lawmakers in Virginia and other states to try to make castration part of the solution for high-risk sex offenders.  Eight states allow the use of drugs to castrate sex offenders, including California, Florida and Texas, where surgical castration is also an option.  Castration, however, is not a get-out-of-jail-free card.  In Florida, for instance, judges are required to order castration for certain repeat offenders.  Although many scientists and psychologists agree that castration can dramatically lower sexual drive, there is sharp disagreement about whether it is a cure-all....

Although such drugs as Depo-Provera and Depo-Lupron can help control some sexual disorders, they may not control, for example, a violent serial rapist who targets adult women out of anger and a need for control.  The drugs can also have serious side effects.  And there is concern that castrated sex offenders might replenish their testosterone by injecting hormones purchased illegally or over the Internet.

This year, state Sen. Emmett W. Hanger Jr. (R-Augusta) floated a bill in the legislature that would have allowed sex offenders to choose to be surgically castrated in exchange for their freedom at the end of their prison sentences.  Hanger withdrew the bill after questions arose about whether courts might deem castration cruel and unusual punishment.  But he said the fact that sex offenders would volunteer for the procedure should allay such concerns.  He hopes to introduce a revised version in the next session.

July 6, 2006 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

July 5, 2006

Great sentencing (beach?) reading

For some reason, I always think my "to-read" pile will get shorter in the summer, but it never does.  And now I am adding to the pile these interesting-looking papers I spotted on SSRN.  The true sentencing fan should have no shame taking any of these pieces to the beach:

July 5, 2006 in Recommended reading | Permalink | Comments (1) | TrackBack

Around the blogosphere

If you are in a surfing mood, here are items worth checking out:

July 5, 2006 | Permalink | Comments (1) | TrackBack

Notable little reasonableness opinion from the Ninth Circuit

The Ninth Circuit today in US v. Clark, No. 05-10480 (9th Cir. July 5, 2006) (available here), discusses reasonableness review and a few other issues in a little opinion that serves as a useful recap of the basic post-Booker landscape in the Circuit.  What perhaps makes Clark most interesting is a stinging concurrence by Judge Kozinski rebuking the government attorney's work on appeal.  Here is a taste of this concurrence:

I don't believe that quoting portions of a sentence while leaving out key qualifiers is reasonable conduct for an attorney of this court.  I don't believe that making assertions in a brief regarding disputed factual points, without providing a citation to the record, amounts to reasonable attorney conduct.  I don’' believe that ignoring the context of statements in the record — the timing, circumstances and purpose — amounts to reasonable conduct.  In short, I don't believe that it is appropriate or reasonable for a lawyer to pluck a few words from the middle of a sentence and pretend that they say something very different from what they mean in context. This is true of every lawyer who appears before us, but it goes doubly for lawyers who represent the government in criminal cases.

July 5, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Recapping a long weekend

As I recover from a great fireworks show last night, I found it useful to review blog coverage since the start of joyfully long holiday weekend:





July 5, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

July 4, 2006

Biggest SCOTUS non-capital sentencing developments

Continuing my end-of-term Supreme Court commentary (started here and here), let me follow up this review of death penalty developments of the just-completed Term with a list of what I consider the biggest non-capital sentencing stories.

1.  The calm before the storm.  After 2004 gave us Blakely and 2005 brought Booker and Roper, 2006 was a relative snoozer.  A Court in transition dodged any major sentencing cases, refusing to grant cert on Booker plain error or on other major sentencing issues dividing lower courts.  But next year is shaping up to be huge, with Blakely's applicability in California and Blakely retroactivity already on the SCOTUS docket.  I suspect the Court might also take up some post-Booker issues next term.

2.  Blakely errors can be harmless.  If Justice Scalia was as principled as he claims to be, he might have led the Blakely five to rule that Blakely errors cannot be harmless.  But prudence prevailed in Recuenco, and three of the Blakely five — Justices Scalia and Souter and Thomas — joined four others to rule that Blakely errors can be harmless.  As I explained here, by voting to limit the potential consequences of Blakely, after Recuenco perhaps the entire Court can feel more at ease expanding the reach of Blakely rights in future cases.

3.  The "prior conviction" exception lives on.  As detailed here and here, a seemingly routine denial of cert prompted remarkable dueling opinions from Justices Thomas and Stevens about whether the Court should reconsider the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule.  As suggested in this post, this duel not only suggests that stare decisis might keep the prior conviction exception alive indefinitely, but also suggests that the mandatory minimum exception from Harris might not get the same treatment.

4.  An evolution in the docket and case dispositions.  As discussed a bit here and here, I sense that the new Court may be slowly transforming its role in the regulation of the criminal justice system.  Fewer cert grants in death penalty cases and some error-correcting per curiams on sentencing and related issues suggest that the Court is moving away from its legal culture of death and may start taking a more active role regulating the work of lower courts in non-capital cases.

July 4, 2006 in Who Sentences | Permalink | Comments (0) | TrackBack

A holiday retrospective on Blakely fireworks

On the last two Independence Days, I have had Blakely on my blog brain.  So, to keep up tradition, today I will just link back to these prior July 4th Blakely discussions:

July 4, 2006 in Blakely Commentary and News | Permalink | Comments (0) | TrackBack

Should executions be more public?

There has long been a debate over whether modern executions, like those done long ago, ought to be more public events.  (See, e.g., this FindLaw commentary by Austin Sarat from five years ago.)  But this news story from Arkansas puts a new twist on this interesting issue:

A condemned killer who had been scheduled to die Wednesday before his execution was stayed by a federal judge says the process of putting a person to death should be open more to the public _ up to a point. Don Davis is asking Gov. Mike Huckabee to make executions more public in the hope that this might deter others from committing violent crimes.

The 43-year-old Davis, convicted of the 1990 slaying of a Rogers woman, said in an e-mail through a friend and anti-death penalty advocate that he has concerns about Arkansas' "hidden, almost secret, way executions are carried out" and he believes it would be sensible to make them more public....  In the e-mail, Davis also invited the governor for a visit to discuss these ideas.

July 4, 2006 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

July 3, 2006

A medical perspective on the lethal injection mess

As detailed in this Los Angeles Times article, Dr. Orin Guidry, the president of the 40,000-member American Society of Anesthesiologists (ASA), has posted a four-page "Message from the President" that advises members "to be well informed on the subject [of lethal injection] and steer clear."  This statement from the ASA president, which is entitled "Observations Regarding Lethal Injection" and can be accessed here, is an interesting read for anyone following the lethal injection scrummages.  I found this paragraph particularly interesting:

Even more troubling to me is the Missouri court's move [in a recent lethal injection ruling] to require an environment more like an "operating room". I am concerned because anesthesiologists actually have more of a reason not to be involved than other physicians.  The more the execution looks like an anesthetic, the less comfortable patients are likely to be with anesthesia.  Surgery is already a frightening time and one in which patients need to trust their anesthesiologist.  The last thing patients need is to equate the O.R. with a death chamber, to equate anesthetic drugs with death drugs, or to have in their subconscious the specter of the anesthesiologist as an executioner.

Some recent related posts:

July 3, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Liberty versus security in the war on ... sex offenders

Since September 11th, there have been many legal and political discussions about how to balance liberty and security concerns in the war on terror.  But, especially the day before Independence Day, we might also reflect on how these issues are playing out in the war on sexual offenders.  Some recent newspaper articles provide interesting food-for-thought:

Some recent related posts:

July 3, 2006 in Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

And the Booker beat goes on the in circuits

Though I am (sort of) taking today off, the circuit courts are at work and they continue to reject defendants' claims that certain sentences are unreasonable after Booker.  Here are two examples:

From the Sixth Circuit, US v. Hernandez-Fierros, No. 05-2206 (6th Cir. July 3, 2006) (available here), rejects a defendant's claim that the district court's failure to vary from the guidelines based on fast-track disparity made his sentence unreasonable. 

From the Eighth Circuit, US v. Chase, No. 05-2070 (8th Cir. July 3, 2006) (available here), rejects a defendant's claim that the district court's decision to impose and above-Guideline sentence made his sentence unreasonable.

July 3, 2006 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

July 2, 2006

Biggest SCOTUS death penalty developments

Though I have already done a little end-of-term Supreme Court commentary here and here, the holiday weekend allows for broader reflection on SCOTUS developments.  Below I have my take on the biggest death penalty developments of the just-completed Term.  (In a subsequent post, I will discuss the biggest non-capital sentencing developments.)

1.  The past and future scrummages over lethal injection protocols.  The cert. grant in Hill was alone enough to jump-start litigation over lethal injection protocols nationwide, and the case essentially produced a de facto moratorium on executions in most states.  The ruling in Hill, by approving the use of 1983 actions to challenge lethal injection protocols (while completely avoiding the merits of the substantive Eighth Amendment claims), ensures a lot more lower court lethal injection litigation in the weeks and months ahead.

2.  A deep division among the Justices persists.  The remarkable sparring between Justices Scalia and Souter over innocence issues in Marsh was just the most visible expression of the deep divide on the death penalty among the Justices.  Many death penalty rulings were resolved by a 5-4 vote this Term, and the new "unanimity movement" identified with the new Chief Justice had little or no impact in capital cases.

3.  Slight changes in the capital case fulcrum.  As in other doctrinal areas, Justice Kennedy has taken over Justice O'Connor's role as the key swing vote in capital cases.  Though Justices Alito and Roberts did not author any major capital opinions, their votes so far suggest they will not often be joining the liberal block in death penalty cases.  Consequently, the battle lines for a 4-1-4 split in future capital cases seem already well established.

4.  An evolution in the docket and case dispositions.  Though this may just be wishful thinking on my part, I sense the new Court may be moving away a bit from its legal culture of death.  Throughout 2005, I was regularly carping about cert grants in too many capital cases and the lack of grants on big non-capital sentencing issues.  But lately, SCOTUS seems comfortable dealing with some "minor" death cases via summary reversals, and they are taking up more non-capital sentencing cases.

July 2, 2006 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

The sad realities of the modern death penalty

The long and winding legal road for Johnny Paul Penry, which has included two stops at the Supreme Court, reflects so many sad realities surrounding the modern application of the death penalty.  This long article in the Dallas Morning News tells the full story, and it starts this way:

Nearly 27 years ago, Johnny Paul Penry shattered the peace of this small East Texas town by brutally raping and killing Pamela Moseley Carpenter in the bright light of morning.  Texas has been trying to put him to death ever since, spending millions of dollars in three different trials. Each time, appellate courts have thwarted the efforts, concerned that juries have not been instructed sufficiently to take Mr. Penry's alleged mental retardation into account....

Through the decades, the stage and the players in this tragedy have irrevocably changed. The victim's family has grown older and disillusioned, or died in despair.  Mr. Penry's once chiseled face has rounded into pasty middle age. Attorneys on both sides say the case has tested their faith in the system....

[T]he Penry case remains a focal point in the death penalty debate.  Advocates cite it as proof of the need for the ultimate punishment; Mr. Penry is a repeat offender, smart enough to plan a savage crime.  Opponents say it exposes the flaws and immorality of execution; Mr. Penry committed an awful act, but his limited mental capacity makes it wrong to kill him....  The two sides agree on one thing: "No matter what ending the story has, it's a sad one," said Ms. Carpenter's niece, Ellen May.

July 2, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack