Sentencing Law and Policy

An interesting perspective on the lethal injection mess

I received an intriguing anonymous e-mail today about all the lethal injection happenings.  Seems like states with large death rows have at least one person to whom then can turn; here's the text:

Lethal injection cruel?  Excuse me but this is just balderdash and fuel to gather votes re $ and to keep $ into a prison system that does not work.  All my life and the previous generations of my family have abided in the laws local, federal and the constitution.  Cruel to inject a good feeling drug to a murderer who tortured his victim(s)!

I volunteer to be the exeuctioner nationwaide, just pay me and let me choose the method. Did the murdered choose to "drug" his victim cuz it might be unconstituional. Why treat vicious people any better than they deserve? Please America get over yr endless guilt. Sure you would like to be papmered if it happens to u. That's the reason for CHOICE. Murderers CHOOSE their methods and after the age 5 that is the way it is!!

I volunteer to be burdened with the nations guilt over execution of death role imates. I certainly will be a busy full time employee. Give me an email, I can start Monday and have 45 to 50 executions over and done before Christmas unless of course I could get Holiday pay and double overtime.  BE done with the sorrowful pity for the killings of a death row inmate.

I suspect that this anonymous e-mailer is not the only one who feels this way about all the lethal injection hub-bub.

Who will demonstrate lethal injection leadership?

Florida Governor Jeb Bush's Executive Order 06-260 (available here) and Judge Fogel's ruling that California's administration of lethal injection is constitutionally problematic as available here are both fascinating reads.  Here are two quotes that particularly caught my attention:

• From Gov. Bush's Executive Order: "[A]s a matter of humanity, constitutional imperative, and common sense, if the State is going to execute persons convicted of capital crimes, it must do so in a manner that comports to its own protocols and the United States and Florida Constitutions." 
• From Judge Fogel's opinion: "This case ... presents an important opportunity for executive leadership."

These quotes are especially telling as one considers that federal litigation over California's lethal injection process has dragged on for nearly a year, and yet Judge Fogel says the case is "in virtually the same position today that it was in ... in February 2006."  Meanwhile, Gov. Bush's Executive Order demands from his Commission on Administration of Lethal Injection a "premilinary report" in roughly 45 days and a "final report" in roughly 75 days.  These reality reinforce points I made in this article about the importance of other branches playing a central role in cleaning up the lethal injection mess.

I stress these points because of the need for states other than Florida and California to be fixing lethal injection protocols.  The DPIC's year-end report details that Texas, Ohio, North Carolina, Oklahoma and Virginia all had active death chambers in 2006.  When will we see "executive leadership" in these states to head off problems that have made this situation so ugly in other states? 

As I have stressed before here and here, these issues of life-and-death are surely of national concern and have the federal court's tied up in knots.  Will we ever see "executive leadership" at the federal level to deal with these issues.   In the words of Governor Bush, isn't more work at the federal level "a matter of humanity, constitutional imperative, and common sense"?

Some recent and related posts:

• Major California ruling on lethal injection protocol
• Governor Jeb Bush orders moratorium after botched execution
• An ugly (and fitting?) end to the capital year
• Isn't it finally time for Congress to do something about lethal injection problems?
• The lethal mess in Ohio
• Uncovering lethal injection realities
• A bit of lethal injection history
• My lethal injection piece on SSRN

UPDATE:  How Appealing has all the news coverage on the California and Florida developments here.

Major California ruling on lethal injection protocol

Though I think the biggest news on Friday was Governor Jeb Bush's order of a moratorium after Florida's recent botched execution, the blogosphere is mostly buzzing about District Judge Jeremy Fogel's ruling today that the California's application of its lethal injection protocol violates the Eighth Amendment.  How Appealing has all the MSM coverage here, as well as this link to the opinion.  Blog commentary is available at TalkLeft, and at Crime & Consequences, and at Volokh.

Lethal injection guru Professor Debby Denno was kind enough to send me this insightful analysis of Judge Fogel's ruling:

Judge Fogel's decision is bold and incisive.  It is the most comprehensive decision in the country to determine that a state's lethal injection protocol, in its current form, is "intolerable" and unconstitutional under the Eighth Amendment.  The decision goes into impressive detail explaining the reasons for the court's conclusion, as well as all the evidence that the court reviewed to reach it.

To remedy California's intolerably flawed lethal injection process, Judge Fogel put the onus squarely on the Governor's office.  The Governor can meet that challenge in several ways.  The Governor could establish a commission on lethal injection like that ordered by Gov. Bush of Florida.  Or the Governor could order hearings of the type requested by Mr. Morales in his recently filed challenge to the California Department of Corrections' failure to conduct administrative hearings before promulgating the lethal injection procedures.

Whether the Governor's Office can respond to the challenge it has been given and promote the development of a protocol that rectifies the problems that have dogged lethal injection remains to be seen.  I credit Judge Fogel for a well-reasoned decision that takes the design of an execution protocol away from the Department of Corrections and encourages the Governor to institute a meaningful review that can address the currently grievously flawed system.

Governor Jeb Bush orders moratorium after botched execution

In the wake of Wednesday's ugly execution of Angel Diaz,  Florida Governor Jeb Bush issued Executive Order 06-260 (available here) and created the Commission on Administration of Lethal Injection.  The Commission is charged with reviewing the method in which lethal injection protocols are administered.  StandDown Texas Project continues its extraordinary coverage of the extraordinary events in Florida over the last 48 hours. 

If certain federal officials were really committed to a "culture of life," perhaps they might encourage Governor Bush's brother to create a similar Commission at the national level.  As I have noted before, the federal government has delayed its own scheduled executions because of lethal injection worries, and the litigation over lethal injection protocols are playing out in federal courtrooms nationwide.  The Supreme Court's cert grants suggests it views the administration of capital punishment as a matter of national concern.  Will the other federal branches ever follow suit?

Recent related posts:

• An ugly (and fitting?) end to the capital year
• Isn't it finally time for Congress to do something about lethal injection problems?

Another dog for the sentencing hall of shame

This AP story provides these details about another notable shaming sanction:

A man who shot his Great Dane in the head is allowed to reduce his sentence by dressing up as a dog. Municipal Judge Michael Cicconetti, known for his creative sentences for low-level crimes, offered to cut Robert M. Clark's sentence Thursday to 10 days in jail if he wears a Safety Pup costume and visits the five elementary schools in Painesville, about 30 miles northeast of Cleveland. The mascot educates children about issues ranging from traffic safety to drug abuse.

Clark, 38, who lives outside the city, pleaded no contest to an animal cruelty charge and was sentenced to 180 days in jail for shooting his dog Bill.  Cicconetti suspended all but 30 days of Clark's sentence if he pays the Lake County Human Society for the dog's veterinarian bills. Then the judge offered to cut an additional 20 days if Clark dresses up as Safety Pup.

He was arrested July 3 after neighbors reported hearing the dog's cries and police found the injured animal. The humane society took the dog to an emergency veterinary clinic, but he suffered brain damage and had to be euthanized, the group said.

Clark is appealing the sentence, court officials said Friday.

I wonder if PETA or other animal groups might need counsel for an amicus filing in Clark's appeal.  By my lights, Clark ought to be grateful he got some sentencing options.

Some recent related shaming posts:

• A Chinese shaming stirs controversy and debate
• More shame, shame on you
• Weekend reading on shaming punishments
• The state of shaming punishments (with lots of links)

More Kerr on Carrington and mandate recall discretion

I am very pleased to see that Orin Kerr here has jumped back into the debate over the Ninth Circuit panel's Carrington ruling, and his long post sharpens the issue effectively while also spotlighting key aspects of the Supreme Court's discussion of mandate recalls in Calderon v. Thompson, 523 U.S. 538 (1998) (available here).   Orin views Carrington "like a replay of Thompson," but I think Carrington is very different for some reasons I have already discussed here.

To begin, Thompson says "courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion."  Later on, after a review of the bizarre procedural history of the case, the ruling stresses that "Thompson's is not an ordinary case ... because he seeks relief from a criminal judgment entered in state court."  The ruling heavily stresses both federalism and habeas concerns in its discussion of finality, and yet still suggests that the Ninth Circuit's mandate recall might still have been proper to "avoid a miscarriage of justice" concerning the legality of the applicable sentence. 

Moreover, the dissent in Thompson (per Justice Souter garnering four votes) suggests the general principle of giving "a high degree of deference to the court exercising discretionary authority" to recall its mandate; it also suggests "that deference may be accorded to any reasonable selection of factors as relevant to the exercise of a court's discretion."  I do not think the majority in Thompson disputed these basic principles about reviewing a circuit's decision to recall its mandate, they just viewed the Ninth Circuit exercise of its discretion in Thompson as abusive.

Once again, I certainly can see why the full Ninth Circuit en banc might not agree with the Carrington panel's assessment of "extraordinary circumstances."  And I suspect the Justice Department will seek (and secure?) en banc review.   But, as Orin notes, the Justice Department apparently did not even appeal Carrington's precursor ruling from the Ninth Circuit.  Perhaps this is because DOJ properly feels it has more pressing tasks than trying every means to preserve a possibly unconstitutional sentence.

Related posts:

• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• Distinguishing finality interests between convictions and sentences

UPDATE:  A helpful reader suggested I clarify the reality that the huge Ninth Circuit "doesn't sit en banc. Instead, they create 11-judge panels. Circuit Rule 35-3."

A CORRECTION: Another reader has reminded me that the Ninth Circuit this year changed to 15-judge panels for its en banc hearings.

Distinguishing finality interests between convictions and sentences

As I await more responses to why the Ninth Circuit's Carrington ruling should be troubling (query here), let me spotlight key distinctions between finality interests regarding convictions (especially state convictions) and regarding sentences (especially federal sentences).  These distinctions are, in my view, critical to a complete understanding of the dynamics of retroactivity doctrines.

Teague, the 1989 SCOTUS case defining modern retroactivity doctrine, was about whether and when a new federal constitutional rule ought to disrupt final state convictions.  Structural concerns about finality are at their zenith here or else every long-ago convicted state defendant (even those who finished their sentence decades before) might run to federal court seeking to have a long-ago conviction wiped off the books.

Carrington, in sharp contrast, concerns whether a new federal constitutional rule ought to allow reconsideration of a federal sentence still being served.  One might argue that there are no finality concerns because the on-going sentence under challenge is not final.   Moreover, the result of the challenge won't wipe out a long-ago conviction, it will only (perhaps) alter an on-going sentence.

Some recent capital rulings help put the conviction/sentencing distinction in sharp relief.  After Atkins and Roper declared certain defendants ineligible for the death penalty, few asserted that we should still execute all the now-ineligible death row inmates that were sentenced to death before these rulings.  If "sentence finality" is so important, we should still be execute all the mentally retarded and juvenile capital defendants sentenced before Atkins and Roper.

Recapping the capital year

The Death Penalty Information Center has now released its 12th annual year-end report, available at this link.  As DPIC explains here:

[The report] reveals a broad decline in the use of the death penalty in the U.S. based on a number of factors: the public now favors life without parole over the death penalty; the number of executions has dropped to the fewest in a decade, in part because of challenges to the lethal injection process; and the annual number of death sentences is now at a 30-year low. The report notes that various states have put a hold on all executions, while others are reviewing problems in the capital punishment system. The report cites a number of new developments, including the challenges posed by the severe mental illness of many on death row, and quotes a series of law enforcement personnel, editorials, and public officials voicing serious concerns about the death penalty.

Articles today in the New York Times and Los Angeles Times discuss DPIC's findings and get reactions from the usual suspects.

What wrong with equitable Booker retroactivity in the Ninth Circuit?

Last year, after a Ninth Circuit panel in US v. Crawford, No. 03-30263 (9th Cir. Aug. 24, 2005) (available here), recalled its mandate to allow resentencing in a case that became final before Booker, I suggested that the court was essentially adopting "a policy of equitable Booker retroactivity."  And now, with the fascinating decision in Carrington v. US, No. 03-30263 (9th Cir. Dec. 13, 2006) (available here), that policy takes on new and broader life in the Ninth Circuit.

Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too.  But why?  Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful. 

What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?

Of course, finality is an important value, but this value is always balanced against other values.  If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?   

This issue would be a lot different if the Ninth Circuit were overturning long-ago state convictions based on its own questionable view of constitutional rules.  But, in Carrington, the Ninth Circuit is merely allowing reconsideration of on-going federal sentences based on the Supreme Court's constitutional rules.  Perhaps the Ninth Circuit en banc will seek to balance federal sentencing fairness and finality differently than the Carrington panel majority; but I do not see why the Supreme Court should be eagerly interested in keeping a federal district court from having a chance to reconsider an unconstitutional (and still on-going) federal sentence.

UPDATE: I fill out my perspective on Carrington in this post and in the comments, but I want to further address one commentor's concern that the Ninth Circuit has created a doctrine that unfairly turns on whether a "defendant [was] lucky enough to draw a vocal opponent of the Guidelines."  I share this worry, though it was not often expressed as a critique when this was the standard being used by most circuits when addressing Booker plain error.  In the 1st, 5th, 8th, 10th and 11th Circuits, defendants still on direct appeal would not get a chance to be resentenced right after Booker unless the district judge had been "a vocal opponent of the Guidelines."  (And, of course, the Supreme Court denied cert on all those defendants objecting to this rule.)

Why are folks worried about unequal justice when it might help some defendants, but not when it hurts them?  To paraphrase a famous quote from Justice Brennan, I wonder why we fear too much justice.

Isn't it finally time for Congress to do something about lethal injection problems?

Eight months ago in this post, I urged Congress to consider whether and how it could do something to address the lethal injection mess unfolding in state and federal courts.  (I expanded upon these points in this article in the annual Cato Supreme Court Review).   As recently detailed here and here, the mess continues to grow all over the country, and last night's botched Florida execution of Angel Diaz (basics here) is the latest disturbing development.

StandDown Texas Project & ODPI have great coverage of the Florida news over the last 24 hours.  In addition, a helpful reader has sent me this link to an Angel Diaz blog.  This post has a timeline of the execution with these chilling entries:

6:00 p.m.: The curtain opens.  Angel Diaz gives a short last statement claiming he is innocent.

6:02: Diaz begins grimacing and seems to speak, though a microphone is off and none of the witnesses can hear him.

6:06: Diaz squints his eyes and juts his chin as if in pain.  He continues this for several minutes.

6:12: Diaz's head slips to the right.  He coughs several times and appears to shudder.

6:15: His mouth has appeared to widen and his breathing is deep.

6:18: A member of the execution team hands a phone to another member of the team. What they say on the phone is not revealed.  Diaz's mouth and chin move as he breathes deeply.

6:24: Diaz's mouth and chin slowly stop moving.  His eyes appear fixed.

6:26: His body suddenly jolts.  His eyes appear to be opening more widely.  Again, a member of the execution team gets on the phone.

6:34: A doctor wearing a blue hood that covers his face enters the execution chamber and checks Diaz's vital signs.  The doctor returns a minute later, checks the vital signs again and nods to a member of the execution team.

6:36: A member of the execution team announces that the sentence of Angel Diaz has been carried out.  The curtain closes.

I am never a big fan of federal involvement in state matters.  But, recalling Congress's active role in last year's hub-bub over Terry Schiavo, I continue to wonder where we can find the vocal "culture of life" advocates when we need them?

UPDATE:  How Appealing here has collected lots of Friday morning news coverage of the problems with the Diaz execution.  Also, ODPI has a great round-up of latest developments.

Proof the guidelines are reasonable ... from David Lat

Over at Above the Law here, David Lat reports on a discussion between Justice Breyer and Professor Charles Fried at Georgetown Law.   Here's the best part:

The sentencing guidelines are discussed.... Professor Fried points this out: "I have very strong views on this [issue].  The operative sections of the federal sentencing guidelines were written on my dining room table -- by Justice Breyer."

Well, I think that should certainly confirm all the assertions by the Justice Department and judges that the guidelines are always reasonable.  I am sure Justice Scalia will be convinced.

I cannot help but think of the scene of Breyer writing guidelines in Fried's house in terms of that great 1970s Recees' television commercials:

FRIED: You got active liberty in my contract as promise!

BREYER: You got contract as promise in my active liberty!

FRIED & BREYER: Wow, two great tastes that taste great together!

Shouldn't express statutory text trump perceived policy?

I have now read the interesting opinions concurring and dissenting from the Eleventh Circuit's decision not to hear en banc a crack sentence ruling (available at this link).  Both opinions have lots of good insights, though I am troubled by Judge Black's complete failure (like so many other appellate rulings discussed here and here) to address the parsimony provision of section 3553(a).  (Notably, Judge Barkett stresses the statutory text of 3553(a) in her contrary opinion.)

Judge Black's opinion repeated assails what she perceives to be a "categorical rejection of congressional sentencing policy."  But her opinion, like so many others from circuits since Booker, categorically ignores the express statutory text of 3553(a).  My sense is that even proponents of "active liberty" interpretation would urge judges to attend first to express statutory text before making judgments based on perceived policy.

Tellingly, we are already seeing blogosphere complaints here and here about the Ninth Circuit's mandate recall yesterday that perhaps put policy concerns ahead of the letter of the law.  Will we soon see similar complaints about Judge Black's work from the same quarters?

Also, even if after Booker it is an error for a judge to "categorically reject" the perceived congressional policy, shouldn't such an error be considered harmless on review as long as the sentence imposed is still "not unreasonable"?

This is your brain, ... this is your brain after Roper

This newspaper article discusses new brain research to ask "Should teenage brain be a factor in sentencing?" Here are snippets from an interesting article:

Scientists are now seeing beyond the skull into an emerging debate over whether the differences between the brain of an adolescent and an adult should have different implications for each in the criminal justice system....  "We are interested in the broader question of whether juveniles should be punished to the same extent as adults who have committed comparable crimes," said psychologist Laurence Steinberg in his 2003 article, "Less Guilty by Reason of Adolescence."

Steinberg and others advocate that [an important] discrepancy in brain function should be taken into consideration when deciding to seek juvenile or adult sanctions. Childhood abuse and neglect further hampers normal brain development, researchers say.... 

A U.S. Supreme Court decision last year now prohibits sentencing a juvenile to death, a decision that took into consideration the incomplete brain development in juveniles. Court observers say that decision could have striking implications in cases where adult sanctions are being sought for juvenile offenders.

No one is saying, however, that an immature brain is an excuse for committing crime — nor does it exonerate a juvenile from the consequences of breaking the law. It "does not excuse violent criminal behavior, but it's an important factor for courts to consider," according to a statement from the American Psychiatric Association.

Some related items:

• Using Roper's focus on age in post-Booker sentencings
• The intersection of sex offenses and juvenile offenders
• Life without parole for juvenile may be cruel, but it is not unusual
• OSJCL symposium: "The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law."

An ugly (and fitting?) end to the capital year

The biggest death penalty story of 2006 has been the ups and downs of all the lethal injection litigation (which the Supreme Court fueled through its work in Hill, as I explain here).  Thus, it is perhaps fitting that the final execution of the year, which took place tonight in Florida, apparently involved lethal injection problems.  An AP report here provides these details:

Angel Nieves Diaz, who was convicted of murdering a Miami topless bar manager 27 years ago, was executed by lethal injection Wednesday, appearing to grimace before dying 34 minutes after receiving the first dose of chemicals.  The manner of his death will likely rekindle the argument that Florida's method of execution constitutes cruel and unusual punishment.

Diaz, 55, was pronounced dead at 6:36 p.m.... He appeared to move for 24 minutes after the first injection. His eyes were open, his mouth opened and closed and his chest rose and fell.

Already all over the story are Capital Defense Weekly and StandDown Texas Project.

Some recent related posts about lethal injection issues:

• The lethal mess in Ohio
• A new lethal injection twist in Kentucky
• California lethal injection protocol assailed
• Maryland lethal injection litigation update
• Missouri still struggling with its execution protocol
• Uncovering lethal injection realities
• My lethal injection piece on SSRN
• A bit of lethal injection history
• How could (and should) Congress clean up the lethal injection mess?
• Lethal injection litigation creates de facto moratorium in Ohio and...

Dr. Death gets a new lease on life

As detailed in this AP story, after 8+ years in prison "a frail Dr. Jack Kevorkian will be paroled in June with a promise that he won't assist in any more suicides, a prison spokesman said Wednesday."  Here's the basics for those who may not recall Dr. Death's exploits:

Kevorkian, once the nation's most vocal advocate of assisted suicide for the terminally ill, is serving a 10- to 25-year sentence for second-degree murder in the 1998 poisoning of Thomas Youk, 52, Oakland County man with Lou Gehrig's disease. Michigan banned assisted suicide in 1998.

Youk's death was videotaped and shown on CBS' "60 Minutes."  Kevorkian, who claimed to have assisted in at least 130 deaths in the 1990s, called it a mercy killing.  Mayer Morganroth, Kevorkian's attorney, said this summer that Kevorkian, now 78, was suffering from hepatitis C and diabetes, that his weight had dropped to 113 pounds and that he had less than a year to live....

Kevorkian has always been eligible for parole on June 1, 2007, and will now be released on that date, Lalonde said....  If Kevorkian is released on June 1, he will have spent close to 3,000 days in prison since being sentenced in April 1999.  He has promised he would not assist in a suicide if he was released from prison.

What one misses during faculty meetings

I have just emerged from a quite engaging 3+ hour faculty meeting.  While I was off-line, three very notable circuit rulings came to be.  Howard Bashman has all the basics, and I hope he won't mind my cut-and-paste efforts from his reports (with links to his coverage):

• From the Seventh Circuit, a rejection of a defendant's various challenges to having his DNA sampled under the federal DNA Analysis Backlog Elimination Act (available at this link).

• From the Ninth Circuit, a recall of mandates "in cases that became final over fifteen years ago and six years ago" to enable resentencing under Booker (available at this link). 

• From the Eleventh Circuit, interesting opinions concurring and dissenting opinion from the circuit's decision not to hear en banc the circuit's approach to crack sentencing after Booker(available at this link).

When I recover from my meetings, I hope to find time to read and comment on these latter two opinions.

Seventh Circuit upholds another large upward variance

Judge Posner yet again talks up district judge discretion after Booker through his opinion for the Seventh Circuit in US v. Johnson, No. 06-2156 (7th Cir. Dec. 13, 2006) (available here).  Apparently (though the opinion does not clearly state the guideline range) the defendant in Johnson was facing a guideline sentence of 12-18 months, but the district judge decided to impose a sentence of 77 months.  Clearly put off by the defendant's arguments on appeal, Judge Posner concludes the opinion affirming Johnson's sentence by stating that his "crimes would have justified on grounds of both retribution and deterrence an even longer sentence than he received. The statutory maximum of 108 months (9 years) would have been reasonable. The judge displayed lenity, not the reverse as Johnson argues."

On the facts, Judge Posner's opinion does not trouble me.  What does trouble me is that, after a case like Johnson, Judge Posner and others are still inclined to call the guidelines "presumptively reasonable."  If 108 months would have been reasonable for the criminal conduct in Johnson, why did the vaunted guidelines advise a sentence of only 12-18 months? 

If the district judge had imposed a sentence of only 12 months in Johnson, would Judge Posner have found that sentence reasonable had the government appealed?  Does reasonableness in a case like Johnson really extend from 1 to 9 years imprisoment?  If so, is post-Booker reasonableness review, which is supposedly to reduce disparities, any real substantive review at all?

A Chinese shaming stirs controversy and debate

A helpful reader pointed me to this fascinating article in today's New York Times regarding the recent shaming of prostitutes in Shenzhen, China. Here are snippets:

For people who saw the event on television earlier this month, the scene was like a chilling blast from a past that is 30 years distant: social outcasts and supposed criminals — in this case 100 or so prostitutes and a few pimps — paraded in front of a jeering crowd, their names revealed, and then driven away to jail without trial.

The act of public shaming was intended as the first step in a two-month campaign by the authorities in the southern city of Shenzhen to crack down on prostitution.  But the event has prompted an angry nationwide backlash, with many people making common cause with the prostitutes over the violation of their human rights and expressing outrage in one online forum after another....

That this event took place in Shenzhen, the birthplace of China's economic reforms and one of its richest and most open cities, seems to have added to its shock value. "Even people who commit crimes deserve dignity," one person wrote on the popular Internet forum 163.com....  While voices condemning the behavior of the city and its police force were the most energetic, some spoke up in support of the crackdown. "Perhaps you've never been to Shenzhen, or you've been there and you don't have a thorough understanding of the place," wrote one contributor to an Internet forum....

Instead of jumping on the bandwagon against prostitution, which is illegal but omnipresent in China, many commentators aimed their criticisms at the government for its hypocrisy in not acting against the rich underworld that operates the sex trade or even arresting the prostitutes' customers....

Whatever one might think about the specifics of this punishment in China, it is notable that a public shaming sanction has prompted an national and international debate about Chinese crime and punishment.  I doubt that the Chinese (or NY Times) buzz would have been as great if all these defendants were simply locked up or fined.

Some recent posts on shaming sentences:

• What punishments really undermine human dignity?
• Shaming punishments and communitarianism
• More shame, shame on you
• Weekend reading on shaming punishments
• The state of shaming punishments (with lots of links)

A sign of the sentencing times

For more evidence that sentencing for crime in the suites is catching up with sentencing for crime in the streets, today's New York Law Journal has this article entitled "Smoothing the Path From Corporate Life to Prison Life."  Here are snippets from its introduction:

The lengthy sentence imposed on former Enron CEO Jeffrey Skilling recently is a stark reminder that the U.S. Sentencing Guidelines have made federal prison a reality for many first-time offenders.  In fact, one third of all federal inmates are first-time, nonviolent offenders. Moreover, because of the length of their sentences, many of these individuals, like Skilling and WorldCom founder Bernie Ebbers, are denied placement in camp facilities.

But whether an inmate is assigned to a camp without wires and fences or a locked two-person cell, few would disagree that prison life is a profoundly dehumanizing experience. How then can a prospective inmate obtain the most favorable placement in federal prison?  Some hire sentencing consultants, the best of whom -- if hired early enough in the case -- can position and prepare their client for the least onerous experience the Bureau of Prisons (BOP) offers.

Tenth Circuit wraps up big day in the circuits

Tuesday was quite the busy sentencing day in the Circuits.  In addition to previously noted rulings from the Fifth Circuit and the Eighth Circuit, there were also significant sentencing decisions from the Third Circuit (on restitution awards), from the Sixth Circuit (on reasonableness review), and from the Seventh Circuit (on guideline calculations).  But, as noted here at How Appealing, the best read of the day might come from the Tenth Circuit's split decision in US vs. Begay, No. 05-2253 (10th Cir. Dec. 12, 2006) (available here) concerning whether drunk driving convictions should qualify as 'violent felonies' under the Armed Career Criminal Act.

Begay includes a nice little Booker section that clarifies that the guidelines "impose no rigid boundaries on what sentences are permissible."  But the heart of the opinion deals with statutory construction and congressional intent, and the start of Judge McConnell's dissent spotlights the central issue:

The majority holds that serial drunk driving is a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).  As a result, it finds that the defendant was properly sentenced to over fifteen years in prison for a crime that otherwise would entail a Guidelines range of 41-51 months. I respectfully dissent.

That was quick... Skilling to start serving sentence

The AP reports here that, less than 24 hours after staying the start of his sentence (news here), the Fifth Circuit "denied former Enron Chief Executive Officer Jeffrey Skilling's request to remain free during his appeal Tuesday and ordered him imprisoned immediately."  According to the AP story, the Fifth Circuit's "order notes 'serious frailties' in Skilling's convictions, [but] says those problems fail to raise a 'substantial question' likely to result in the overturning of all Skilling's convictions, as would be required to grant bail during appeal."

Nuanced federal discretion ... for prosecutors

As detailed here and here throughout the blogosphere, U.S. Deputy Attorney General Paul McNulty has announced that the Justice Department has revised its corporate charging guidelines for federal prosecutors.  The new "McNulty memo" can be accessed here, and I have already received this informed reaction from a reader:

When I got to the passage at the top of page 5, I couldn't help but be reminded of Section 3553(a). In deciding whether to prosecute a corporation, the AUSA must "consider[]" a list of 9 factors.  "Some or all of these factors may or may not apply to specific cases, and in some cases one factor may override all others." "In most cases, however, no single factor will be dispositive."  Policies in certain enforcement areas "may require that more or less weight be given to certain of these factors than to others." The need for a case-specific determination, without any factor carrying "presumptive weight," is driven home in the next sentence: "Of course, prosecutors must exercise their judgment in applying and balancing these factors and this process does not mandate a particular result." (Emphasis added). The next paragraph reminds the prosecutor to ensure that the "general purposes of the criminal law . . . are adequately met[.]"

Imagine what an improvement it would be if only the sentencing statute operated in this manner.  Oh, wait.  I think that is the way the sentencing statute reads.  Too bad DOJ does not trust sentencing judges to engage in the same sort of process it has devised for its own attorneys at the charging stage. (And AUSA's charging decisions aren't even reviewed for reasonableness.)

Around the blogosphere

Lots of goodies around the blogosphere worth a link:

• Criminal Background Checks Of Jurors at Concurring Opinions
• Musladin Coverage: Good, Bad, and Ugly at Crime & Consequences
• "Underenforcement" and "Executing the Innocent" at Grits for Breakfast
• The McNulty Memo - Attorney-Client Privilege Waivers & Attorney Fees at White Collar Crim Prof Blog
• Thompson Memo Out, McNulty Memo In at WSJ Law Blog

Major capital ruling from en banc Fifth Circuit

I just got word from a helpful reader that the Fifth Circuit has issued its en banc opinion in Nelson v. Quarterman, which addresses Penry issues in the wake of the Supreme Court's Tennard decision.  Unfortunately, the Nelson opinion is not yet on the Fifth Circuit's web site yet, but I'll provide a link (and commentary) once I see the opinion.

UPDATE:  Nelson is now available at this link.  The pdf of the opinion runs 161 pages, and there appears to be six opinions: one for the en banc court, one long concurrence and four different dissents.  Judge Edith Jones is the author of what appears to be the chief dissent, so perhaps that gives readers a clue as to the outcome.  Any commentary by any folks with the energy to read all the Fifth Circuit's wisdom will be greatly appreciated.  Here's how a helpful reader describes the ruling in an e-mail to me:

This is a major victory for capital habeas petitioners, a surprising about-face in the Fifth Circuit's Penry jurisprudence, and a fascinating decision in light of the Supreme Court's recent cert grants on cases raising similar issues.

MORE:  Capital Defense Weekly here calls Nelson "perhaps the most important Fifth Circuit decision since I started posting online a decade ago."

Eighth Circuit reverses another below-guideline sentence

So much for the Claiborne effect.  In this post, I speculated that Eighth Circuit's affirmance of a downward variance last week might be the echo effect of the Supreme Court's recent cert grant in Claiborne, the Eighth Circuit case involving a reversal of a downward variance.  But today, in US v. Grinbergs, No. 06-2369 (8th Cir. Dec. 12, 2006) (available here), the Eighth Circuit returns to its old ways when reversing a downward departure/variance. 

Grinbergs is a child-porn possession case in which a district judge imposed a 12-month sentence for a first offender facing a guideline range of 46 to 57 months.  Here are snippets from the panel's reasoning rejecting the reduced sentence:

Even when viewed through the lens of reasonableness, the district court's reliance on Grinbergs' mental capacity falls short of providing adequate justification for the large departure in this case....

[T]he district court found that Grinbergs was an atypical offender because he was making progress toward rehabilitation and because he was not likely to become an active sexual predator.  Neither of these circumstances was sufficient to take this case out of the heartland, however.... That Grinbergs had been regularly attending therapy sessions, had been avoiding the triggers of his pornography addiction, and had come to acknowledge the wrongfulness of his conduct are all commendable actions, but they are not the marks of extraordinary or atypical rehabilitation....

When measured against the factors in § 3553(a), the sentence was also unreasonable. Neither Grinbergs' reaction to his arrest and indictment nor the progress he has made in therapy set him apart from other offenders to any great degree.  There is also nothing unusual about the nature or circumstances of his offense. Even if the individually deficient reasons for the departure or variance are aggregated, they still fall short of providing the justification required for a departure of this degree.  Since there is nothing in the record that significantly differentiates this case from other cases of child pornography possession, the sentence imposed failed adequately to take account of Congress's stated desire to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."

Opposition to Iowa's residency restrictions

Among lots of interesting new posts at Sex Crimes is this item noting opposition to Iowa's sex offender residency restrictions from a "group of county prosecutors, county sheriffs and victim advocates."  As detailed in press reports here and here, this group is stressing that the residency restrictions are not working.  Here's more from this article in the Quad City Times:

A coalition of law-enforcement and victim-advocacy groups came together Monday to ask the Legislature to throw out the state’s 2,000-foot residency restriction on sex offenders. "Good public policy needs to protect children," Corwin Ritchie, executive director of the Iowa County Attorneys Association, said at a Statehouse news conference. "This residency requirement doesn’t do that."...

The problem with the current law, Ritchie said, is that it requires tremendous time and effort to enforce but does little to protect children from sexual abuse.  "We find no correlation between where an offender resides, or sleeps, and whether that offender might re-offend," he said.

Clay County Sheriff Randy Krukow, president of the sheriffs’ group, said the 2,000-foot law may make children less safe, because its restrictions force offenders to relocate, sometimes without telling law enforcement where they’ve gone.  "Before this law went into effect, I had 99 percent of (sex offenders) registered," Krukow said. Now he devotes three members of his 10-person staff to tracking where sex offenders are living. He said that takes resources away from other areas, such as drug enforcement.

The coalition cites figures from the Iowa Department of Public Safety showing that the number of unaccounted-for sex offenders has more than doubled since the law took effect, rising from 142 to 346.

Some related posts on residency restrictions:

• A potent and important prosecutorial statement against sex offender residency restrictions
• The scattered law of sex offender residency restrictions
• The unintended consequences of residency restrictions
• NPR (and more) on sex offender restrictions
• Is GPS tracking a better way?
• Liberty versus security in the war on ... sex offenders

Detailed report on Washington's death penalty system

Thanks to the Death Penalty Information Center, I have discovered an interesting new report on the administration of the death penalty in Washington.  DPIC provides this background on the report:

The Death Penalty Subcommittee of the Committee on Public Defense of the Washington State Bar has prepared a report on the state's death penalty that will be submitted to the Bar Association's Board of Governors in early 2007.  The Subcommittee was formed to examine the costs of the state's death penalty and to recommend whether the death penalty should be continued, given the expenses and the state's experience in carrying out death sentences.  The Death Penalty Subcommittee was made up of supporters and opponents of the death penalty, all with extensive experience with the criminal justice system.

The full 41-page report is available at this link, and DPIC provides a summary of its findings and recommendations here.

When will Skilling have to report to prison?

Lots of news folks were talking up the fact that Jeff Skilling was due to report to prison this week, as evidenced by articles here and here and here.  But, as the Houston Chronicle reports here, the Fifth Circuit has now stayed Skilling's prison report date so it could fully consider his motion for bail pending appeal:

The U.S. 5th Circuit Court of Appeals has delayed the start of former Enron CEO Jeff Skilling's prison sentence that was scheduled to begin here Tuesday.  The court said today he would not have to report to prison while it considers his motion for bail pending his appeal on his conviction. "This order is entered solely to allow this court to give careful consideration to the request for bail pending appeal," the court said.

The Washington Post has more coverage here.

A wiki list of Bush pardons

A helpful reader sent me this link to a recently updated list of President Bush's pardons at Wikipedia.  The e-mail came with this appropriate note:

The list is still missing about 30 people and a shout out to people who might be able to complete it would be appreciated.  I couldn't find any good comprehensive lists via Google.  It is around the time of year that a round of pardons is often made by a President.

Some related posts on Bush's clemency and pardon powers:

• Should Weldon Angelos get a rare commutation?
• A turkey story for Thanksgiving
• President Bush issues more minor pardons
• Troubling patterns in Bush's pardons
• Terrific article on the pardon power

At least another month until Cunningham

Lyle Denniston reports at SCOTUSblog that, after today's two rulings and new orders, the Supreme Court "completed its public sessions until after the holidays [and its] next scheduled public sitting is Monday, Jan. 8."  This means that sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.

Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring.  Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who know what we should expect from slow-poke SCOTUS these days. 

Of course, as the NY Times highlighted today, California has plenty of other things to worry about while it awaits new on the constitutionality of its sentencing system.

In support of indeterminate sentencing

In this recent post, I noted a Texas report touting the virtues of parole in a modern state sentencing system.  On a related front, thanks to the always terrific Corrections Sentencing, I see that the Utah Sentencing Commission has issued this fascinating statement in support of the state's indeterminate sentencing system.  Here is the statement's executive summary:

By avoiding precise and fixed sentencing and release determinations, Utah's primary sentencing interests are best protected. An offender's release from incarceration is contingent on the individual nature of the crime committed, mitigating and aggravating circumstances associated with the criminal offense, past criminal history, the offender's conduct in the prison system, and proven amenability to rehabilitation over time. Our indeterminate system preserves control over the offender and enables a careful evaluation of the offender prior to releasing him back into the community.

Perhaps Utah ought to be a model for Congress if it ever decides that a Booker fix is needed for the federal sentencing system.

Ninth Circuit reversed on button prejudice case

Over at SCOTUSblog here, Lyle Denniston is reporting that the Supreme Court has reversed the Ninth Circuit's decision in Carey v. Musladin (background here).  Here are details from Lyle's post:

The Supreme Court ruled Monday that a federal appeals court had no basis for overturning a state court ruling that allowed the family members of a murder victim to wear buttons with his picture during the trial. Six members of the Court said it remained an open question whether the conduct of spectators at a trial, as opposed to activities of the prosecution, could be so prejudicial as to deny a fair trial to the accused.

Justice Clarence Thomas wrote the main opinion in Carey v. Musladin (05-785), and had the full support of five other Justices. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.

After meetings I hope to have a chance to read and comment on this opinion (which appears to be the only major SCOTUS criminal law action today).

UPDATE:  The short majority opinion in Carey v. Musladin (decision here) is more about habeas standards than about button-wearing prejudice, though the three short concurrences get into the substantive issues a bit more.  For some additional blogosphere commentary, check out Crime & Consequences and Althouse.

California's desperate need for reform

The New York Times has this extended article detailing the sorry state of sentencing and corrections in California.  The pictures accompanying the story are stark and telling, and the text of the article really only provides the most basic details of California's woes.  Notably missing from the discussion is the possibility that Supreme Court in Cunningham might declare California's structured sentencing system unconstitutional (lots of background here).

The entire article spotlights the challenging politics of sentencing reform, even when a state's situation seems desperate.  Also, the second part of the article make a nice case for sentencing commissions.  Here is a long snippet from today's must-read:

By nearly every measure, the California prison system is the most troubled in the nation. Overcrowding, inmate violence, recidivism, parole absconders and the prison medical system are among its many festering problems....

"The November election is over, and that is critical in terms of the politics of prison reform," said the State Senate majority leader, Gloria Romero, Democrat of Los Angeles.  "The governor is particularly looking at his legacy, and I do not believe he can have a positive one if he does not solve the prison crisis."

Overcrowding is so severe that 16,000 inmates are assigned cots in hallways and gyms; last month, the state began asking for volunteers to be moved to prisons out of state. The system's medical program is in federal receivership and much of the rest of the system is under court monitoring. Cellblocks are teeming with violence.  Seven of 10 inmates released from prison return, one of the highest rates in the country....

Like so many things in California, the scope of the prison problem stems largely from its size. The system houses 173,000 inmates — second-place Texas has 152,500 — and has an $8 billion budget. Its population explosion is in large part an outgrowth of a general increase in the state's population, its unusual sentencing structure and parole system, a legislature historically enamored with increasing penalties, and ballot measures like the three-strikes initiative.

Further, most rehabilitation programs have been eliminated from the system in recent years, which some criminal justice experts believe has increased the rate of recidivism.  Some experts also argue that a legislature bound by term limits has created an expertise vacuum on the complex and emotional issue of prison sentencing....

[A] consensus has been building over the last six months, with union officials, the governor, public policy experts and many members of the legislature agreeing that a sentencing commission is in order.  Sentencing commissions, made up of a diverse group of experts including former judges and crime victim advocates, essentially treat prison beds as scarce resources that need to be properly allocated.

Some related posts on California's prison problems:

• California's state of (prison) emergency
• The challenging politics of reform
• The continuing crowding problems in California
• Great commentary on California's prison problems
• "Hasta la vista, prison overcrowding!"
• The sorry state of California's prisons

All the death data

Now available here from DOJ's Bureau of Justice Statistics is "Capital Punishment, 2005." This publication presents lots and lots of current and historical data on persons under sentence of death and executed in the United States.   

Some of the demographic highlights include the fact that, at year end 2005, of "those under sentence of death, 56% were white, 42% were black, and 2% were of other races."  Also, 52 women "were under sentence of death in 2005, up from 47 in 1995." 

Perhaps the data I found most interesting concerned the steep decline in the number of death sentences nationwide over the last decade.  In 1995, a total of 325 persons were sentenced to death; in 2000, only 236 persons were sentenced to death; and in 2005, only 128 persons were sentenced to death.  The numbers in part explain why, in each of the last five years, the total number of persons on death row has decreased.

UPDATE:  This Los Angeles Times article discusses the drop in annual death sentences in Texas, which declined from "40 in fiscal 1996 to 14 in 2006, according to statistics compiled by the Texas Office of Court Administration."

The virtues of faith-based prisons

The front page of today's New York Times has this lengthy article entitled "Religion for Captive Audiences, With Taxpayers Footing the Bill."  Though not solely about faith-based prisons, the article critically examines the fact that faith-based prison programs are proliferating.  The article spotlights that "Corrections Corporation of America, the nation's largest prison management company ... is substantially expanding its religion-based curriculum" and that "the federal Bureau of Prisons, which runs at least five multifaith programs at its facilities, is preparing to seek bids for a single-faith prison program."

Regular readers know I tend to support the faith-based prison movement.  Though I am agnostic on the constitutional issues such programs can present, I am a true believer in the beneficial resources and energies that get devoted to faith-based prison programs.  My instincts were recently confirmed by this report from the Florida ex-offender task force, which noted these virtues of faith-based prisons:

The transformation of the prison culture in faith and character-based prisons shows promise for prisons across the state. Much of the change in these prisons is due to leadership changes, increased mutual respect among staff, inmates and volunteers, the increased engagement of volunteers, and a focused emphasis on rehabilitation....

Faith and character-based institutional transformations are budget-neutral and appear to be achieving some good outcomes.  Although it is too soon to measure recidivism rates of the people leaving the transformed facilities, the disciplinary rates of these facilities are about half of similar profiles of inmates in other facilities.

Some related posts:

• Interesting examination of faith-based prison movement
• A thoughtful, but disappointing, attack on a faith-based prison program
• Religion, sentencing and corrections
• Sentencing and Religion
• Having faith in prisons

Sunday's death penalty headlines

Seems like every Sunday brings notable capital punishment newspaper articles.  Here is a selection:

• From the Washington Post here, "Witnessing Execution a Matter of Duty, Choice"

• From the Sarasota Herald-Tribune here, "Crist expected to continue Bush pace in executions"

• From the AP here, "Study: Fewer Inmates on Death Row in '05"