« Another Enron defendant sentenced | Main | A coming reasonableness clusterf#@k? Ruminations while waiting for Rita »

June 19, 2007

If you enjoy long split capital habeas circuit rulings...

you should be sure to check out today's work by the Sixth Circuit in Cone v. Bell, No. 99-5279 (6th Cir. June 19, 2007) (available here), and yesterday's work by the Seventh Circuit in Stevens v. McBride, No. 05-1442 (7th Cir. June 18, 2007) (available here).

As I have said before, when I read these long capital habeas opinions, I cannot help but wish that federal circuit judges would regularly give as much attention to federal drug offenders directly appealing their long imprisonment sentences as they give to state murderers appealing their death sentences.

June 19, 2007 at 10:35 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference If you enjoy long split capital habeas circuit rulings...:

» End of the Line for Gary Cone? from The Volokh Conspiracy
Today the U.S. Court of Appeals for the Sixth Circuit rule on Gary Bradford Cone's habeas corpus petition for the third time. Yet this time was not the charm for Cone as it was the first time he lost before the Si... [Read More]

Tracked on Jun 19, 2007 6:11:36 PM


The Stevens case is an appalling result. This guy told inmates that the next time he abused a child, he would eliminate the witness. Thus, this guy is not a person who, as a result of abuse, deserves pity. Rather, he is a calculating evil man who deserves a death sentence. He's every bit as cold and calculating as a hitman or a husband who kills his wife for the insurance. Sick that he likes to engage in sex with boys, and unimaginably evil because he acted on those desires and because he considered his freedom, in a cold and rational way, more important than the life of the little boy he victimized.

How did we get to a place in American jurisprudence where a death sentence on these facts gets tossed? This is not the intent of the Framers, nor is it something dictated by evolving standards of decency.

And why do some federal judges have a soft spot for child molesters/murderers?

Posted by: federalist | Jun 19, 2007 10:53:03 AM

I don't disagree, but what would said attention consist of? I do not mean the question rhetorically and am curious what areas of drug sentencing could be appropriately advanced by the circuits. Drug defendants frequently face mandatory minimums, and death for murderers by contrast cannot be automatic, thanks to the Supreme Court's past rulings. Looking at it from the perspective of a circuit court, there is indeed more room to effect real change through 2254 on murderers, even under AEDPA, than there is through direct appeal or 2255 on drug cases. It seems to me that the people who can alter this are in Congress (by changing the drug sentencing statutes), on the Supreme Court (by reconsidering its own attention to death), and in state legislatures (by writing better death penalty statutes, or, depending on one's policy preference, abolishing the death penalty) not the circuit courts of appeals, who are caught between deference to sentencing judges and adherence to statute.

I am curious, in the post-Booker era, about the frequency of 20-plus-year sentences in narcotics cases where there was no statutory mandatory minimum in play. Anyone know?

Posted by: | Jun 19, 2007 11:01:51 AM

To be clear, my "I don't disagree" was directed to Professor Berman and not to federalist.

Posted by: | Jun 19, 2007 11:02:38 AM

11:01:51: I believe only roughly 40% of federal drug sentences are controlled entirely by mandatory minimums, so the other 60% of the cases could be subject to more attention without the limit of the MM. And, after Booker, the concept of reasonableness and the import of the 3553(a) factors could/should get a lot more attention. In addition, issues like the scope of relevant conduct and the determination of drug quantities could benefit greatly from a fraction of the energy given to capital cases.

Posted by: Doug B. | Jun 19, 2007 11:19:58 AM

Good points, Professor, all of which I agree are worthy of attention. I was wondering about a specific subset of federal drug sentences, however: the extremely long ones. Those would seem to be the sentences in which extra attention is at its most important, and I wonder how many drug defendants serving more than two decades in prison could have been sentenced to less than 20 years, even if they in fact got more. If someone gets 22 years in prison, but had a mandatory minimum of 20 (or got 12 years, but had a mandatory minimum of 10 years), his sentence may not be "controlled entirely by mandatory minimums," but it is still controlled largely by mandatory minimums. This is a very different situation from that posed in a capital case, where the binary choice of life or death is never automatic and is beset by the numerous colorable arguments afforded by the Supreme Court's jurisprudence.

Posted by: | Jun 19, 2007 11:46:14 AM

I know it bugs you, federalist, but sickos have the right to the effective assistance of counsel just like the former chief of staff to the VP does. And if your lawyer was ineffective, you get relief. Doesn't really matter what the underlying facts of your case are, nor should not - there isn't a different set of rules for any you deem "evil," thank goodness.

Posted by: Anon | Jun 19, 2007 12:34:07 PM

Yeah, anon, but prejudice has to be proven, and someone who rationally thought out what he was doing and prepared for it in advance hardly can be reasonably found to be operating under an extreme emotional disturbance. Plus, the whole "ineffective rep" thing has gotten way out of hand.

Posted by: federalist | Jun 19, 2007 2:25:07 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB