Sentencing Law and Policy

Coverage of Ohio reprieves

ODPI has this terrific round-up of media coverage of Ohio Governor Ted Strickland's decision late Friday to delay the executions of three Ohio inmates who were scheduled to receive lethal injections in January or February (basics here).  I am already wondering what the editorial pages will be saying on Sunday.

Capital Defense Weekly rightly wonders here how "the reprieves will impact the current lethal injection litigation in the Sixth Circuit."  Also, Kent at Crime & Consequences has this supportive comment:

Personally, I consider it a positive development that the governor makes it a point to not only consider the cases carefully but to demonstrate to the public that he is doing so.  He should take enough time to do that.  The time actually stated in the order is more than required in my opinion, but not excessively so.  I will reserve further judgment until I see how he actually decides the petitions, and on what basis.

Also, I see DPIC now has this great new page covering executive clemency in capital cases.

Seeking information on state restrictions on clemency

In thinking about the sad Gerarlow Wilson case (background here), I learned that Georgia's legislature may have completely barred the state's governor from being able to grant clemency in this sort of sex offense case.  Similarly, one extraordinary aspect of the extraordinary Berger case (background here) is that the Arizona legislature has completely barred the state's governor from being able to grant clemency in certain cases.

Has anyone investigated or assembled information about substantive state restrictions on governors' clemency powers, particularly in non-capital cases?   I know many states have long set forth procedural regulations to regulate the clemency and pardon power, but I believe the complete elimination of that power in certain classes of cases is a relatively new (and uniquely questionable) development. 

UPDATE:  Thanks to commentors for noting some notable state clemency restrictions.  Keep up the great work.

Who will be supporting the government in Claiborne and Rita?

When cert was first granted in Claiborne and Rita, I wondered here how many amicus briefs might be filed.  When the top-side briefs were filed last month, as documented here, eight different amici briefs shared their insights with the Supreme Court.  And now that bottom-side briefs are due next week, I am wondering how many others will be giving SCOTUS friendly advice about post-Booker sentencing.

I suspect the US Sentencing Commission will file a brief supporting the government's emphasis on the guidelines in the post-Booker world.  (If USSC does file a brief, it will mark yet another ocassion in which it has opined about Booker while its guidelines chug along without even mentioning Booker.)  But I am quite uncertain about how many other briefs will be filed supporting the government's approach to the post-Booker world and the circuit outcomes in Claiborne and Rita.  I doubt there will be as many as were filed on the defense side, but one never knows.

Ohio's new governor signs three reprieves

I predicted to my students in my Death Penalty Course yesterday that this weekend might bring some interesting Ohio capital action because an execution was scheduled (though stayed) for next Tuesday.  And now I have just seen a report that Ohio's new Governor has not even waited for the weekend.  Here's the report I saw from a state news agency:

[On Friday], the governor signed warrants that delay the executions of three Death Row inmates who were scheduled to receive lethal injections in January or February.  The warrants provide the new governor additional time to review the sentences imposed on Kenneth Biros, James Filiaggi and Christopher Newton.

This brief AP report states that "Biros was granted a reprieve until March 20, Filiaggi to April 24, and Newton to May 24."   Among other interesting aspects of this development is that Christopher Newton is a so-called "volunteer" who has dropped his appeals.  Will the "right to die" crowd to come out and complain about Newton having his death wish delayed?

Of course, the place to go to get all the details (and the likely storm of new coverage) is the Ohio Death Penalty Information blog.

Since lethal injection isn't working out...

how about hanging?  Thanks to ODPI, I see that Dean Reynolds has this lengthy article on hanging over at the ABC News website.  The long piece is entitled "Sentenced to Hang: Executions by Hanging Still Happen in the U.S. — But is it 'Humane'?" and it almost reads like a how-to guide.  Here's one abridged portion of the article:

[H]anging is the oldest and still most widely used method of execution in the world today, according to a British study on executions.  The research goes on to say that at the very least, 315 men and 4 women were hanged in 10 countries during 2006, many in public.

There has not been a hanging execution in the United States since 1996, and only three overall since 1976 when the Supreme Court re-instated the death penalty.

From trees, to gallows, to stages with trap-doors, hanging continues to be an attempt at a highly visible deterrent.... Again, referring to the British study, there are four main forms of hanging:

1. Short or no-drop hanging, in which the condemned drops just a few inches and in struggling against the noose, strangles himself....
2. Suspension hanging, in which the condemned is slowly raised by the neck and asphyxiated....
3. Standard drop-hanging, in which the prisoner drops a distance of four to six feet. It may or may not break the neck, so asphyxiation is also a possibility with this method....
4. Measured or long-drop hanging, in which the person's height, weight and physique are calculated to ensure a quickly broken neck and subsequent death.

Former congressman Ney gets 30 months

As detailed press reports here and here, "Former Rep. Bob Ney was sentenced Friday to 30 months in federal prison for his role in a congressional bribery scandal."  The reports indicate that this sentence was three months higher than the term urged by prosecutors, which leads me to think that the sentence involved an upward variance.  Here's more details from this NBC article:

U.S. District Judge Ellen Segal Huvelle said that Ney would serve his time at a federal prison in Morgantown, West Virginia.  When he is released, the judge said, Ney will serve another two years on probation and pay a $6,000 fine.  She also ordered him into a prison alcohol rehabilitation program for treatment of a drinking problem he has acknowledged in recent months.

The sentence was harsher than recommended by prosecutors or Ney's lawyers, Huvelle said, because Ney had violated the trust place on him as a public official.  "Both your constituents and the public trusted you to represent them honestly," she said.

An fitting MLK-week race reminder

This morning, I happened across the website of the Equal Justice Initiative of Alabama and its page on race in the state's criminal justice system.  I thought it fitting to close the MLK work week with a review of the racial skew in Alabama's "modern" system of criminal justice:

Although black people in Alabama constitute 26% of the total population, none of the 19 appellate court judges and none of the 42 elected District Attorneys in Alabama are black.  Nearly 63% of the Alabama prison population is black.

Although only 6% of all murders in Alabama involve black defendants and white victims, over 60% of black death row prisoners have been sentenced for killing someone white.  Each year in Alabama, nearly 65% of all murders involve black victims.  However, 80% of the prisoners currently awaiting execution in the state were convicted of crimes in which the victims were white.

Between 1975 and 2001, there were 23 executions in Alabama.  Nearly 70% percent of those executed were black. In 21 out of the 23 cases, black people were significantly underrepresented in the juries that condemned the accused to death.  In 14 of those cases, the jury was either all-white or had only one black juror although the counties where the cases were tried were between 33% to 47% black.

Death and the SCOTUS docket

Yesterday the Washington Post ran this intriguing piece focused on one of my favorite topics for kvetching: the Supreme Court's criminal docket being consumed by death penalty cases.  Here is a snippet:

The cases of at least nine death row inmates nationwide -- who are not proclaiming innocence but are protesting their sentences -- are on the court's docket in this term. Just as the justices scrutinized Virginia's system for carrying out the death penalty several years ago, they are examining four cases from Texas this year, including the three heard [this week].

I am in the midst of finishing an article with some musings about why — and why its is bad — the Supreme Court's docket is so deadly.  The article (which I'll post when fully drafted) builds on some of my (excessive?) blog work on this topic.

Some related posts:

• Another SCOTUS capital case grant that has me wondering
• A capital waste of time?
• More death and habeas from SCOTUS
• Roberts, the cert pool, and sentencing jurisprudence

A push for a sentencing commission in California

As detailed by stories in the Los Angeles Times and the Sacramento Bee, the debate over sentencing reform in California is about to get real interesting.  Here are some particulars from the LA Times:

Launching what promises to be one of the year's fiercest debates in the Capitol, the Senate's top Democrats on Thursday moved toward reforming California's byzantine criminal sentencing system.  Unveiling legislation to create a sentencing review commission, Senate leader Don Perata of Oakland and Sen. Gloria Romero of Los Angeles said California should join 16 other states now revisiting the question of who goes to prison and for how long.

The lawmakers also urged Gov. Arnold Schwarzenegger to use his executive powers to create an interim working group that would begin collecting and analyzing sentencing data as early as February. "We can't wait," Romero said, noting that prison overcrowding is so severe that federal judges may impose a cap on the inmate population, now at 172,000. "Public safety is not served with a broken corrections system."

Last month, Schwarzenegger proposed a sentencing commission of his own, part of a sweeping $10.9-billion prison building and reform plan.  The Republican governor did not specify what changes in penalties he favored but called for a 17-member panel that would suggest improvements to the Legislature.  Romero and Perata said that model lacked teeth and would doom any significant reform to failure.  The Democrats want the commission to have the power to tweak sentencing guidelines or create new ones and say its ideas should automatically take effect unless legislation is introduced to block it.

A spokesman for the governor had no specific comment on the proposal but said Schwarzenegger was "thrilled" that legislators shared his commitment to tackling the prison crisis.  Republican lawmakers were far from thrilled, arguing that the responsibility for setting or changing sentences for felons must remain squarely with the Legislature. Assemblyman Todd Spitzer (R-Orange) said suggesting that lawmakers "punt to a commission that has no accountability is a nonstarter." "They want to take the politics out of it," said Spitzer, who was a prosecutor before becoming an elected official. "But in my opinion, the politics is critical to making sure a liberal Legislature does not become more soft on crime."

Does the Seventh Circuit know its own law?

As discussed here, last year the Seventh Circuit in Demaree decided that, after Booker, the ex post facto clause does not preclude a District Court from using the latest guidelines, which in turn raised a lot of questions about whether and when a district judge in the Seventh Circuit might appropriate "consider" only earlier versions of the guidelines. Today, the Seventh Circuit in US v. Jung, No. 05-3718 (7th Cir. Jan 18, 2007) (available here), without mentioning Demaree, affirms a sentence in which the district court, after Booker, "chose a sentence within the advisory range of the 1997 Guidelines." 

Question for folks practicing in the Seventh Circuit: is Demaree being faithfully applied or are old versions of guidelines still the coin of the realm?  Since the panel in Jung did not seem to be fully aware of the work in Demaree, I am wondering if district judges throughout the circuit are.

Report on USSC public hearing

A helpful reader who attended yesterday's US Sentencing Commission hearing has sent me this informative (and discouraging?) report:

Most of the proposed amendments are reactions to legislation (though not always to Congressional directives).  On crack, the Commissioners merely invited more comment without giving a clue as to what they have in mind in the way of Commission action....  Also of note are requests for further comment on the circumstances in which a motion from the Bureau of Prisons for reduced sentence are appropriate as well as possible changes to criminal history -- the treatment of so-called minor offenses and related cases.

The votes were unanimous to publish all of the proposed amendments and requests for comment, with a 60-day comment period.  There was no debate or discussion, which I believe is par for the course.

I have not had a chance to look carefully at the other proposals and requests for comment. I am told that the immigration package is largely identical to what they put out -- and then tabled -- last year. Notably absent is any proposal to make various updates to the Manual to recognize the impact of Booker on federal sentencing, despite the frequent recommendation that they make these changes to bring the Manual into the post-Booker world.

My effort to help with the SCOTUS docket problem

As noted here and here, one reason given for the Supreme Court's shrinking docket is a purported lack of cert-worthy cases.  As readers know, I think there are plenty of cert-worthy sentencing issues, especially in the wake of Blakely and Booker.  And, ever eager to help out the Justices, I have been a part of a team that yesterday filed a petition in US v. Faulks, which concerns the procedures for revoking supervised release in a case with extraordinary facts.  Here's the pitch from the petition (which can be downloaded below):

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years' supervised release. Seven years later, as Faulks's term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release.  Faulks denied the allegation.  At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof. Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment. This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year term of imprisonment based solely on the judge's disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).

Download faulks_cert_petition.pdf

First(?) test of the new federal crime for failing to register as a sex offender

A helpful reporter has sent me a copy of a recent district court opinion, US v. Madera, No. 6:06-cr-202-Orl-1SKRS (M.D. Fla. Jan. 16, 2007) (download below), which is the first ruling I have seen addressing constitutional challenges to certain provisions of the the Adam Walsh Child Protection and Safety Act enacted by Congress last summer.

The ruling in Madera covers a lot of constitutional ground in the course of rejecting a motion to dismiss brought by a defendant "charged in an indictmcnt with one count of failing to register as a sex offender in violation of 18 U.S.C. 2250(a) and the Walsh Act."  Based on my quick read, I am not convinced the Madera opinion properly unpacks all the complicated issues raised here, and it seems inevitable that many courts may have to struggle with these issues before long.

Download Madera.pdf

UPDATE: Sex Crimes now has this discussion of Madera that zeroes in on the defendant's Commerce Clause challenge, with I see as just one of a dozen complicated aspects of the ruling.

Recaps of all the capital action

Fittingly, there was lots of death penalty action (including an execution in Texas and a stay in Indiana) to celebrate yesterday's  killer anniversary.  As I have highlightedbefore, I find that regular stops at three great death penalty blogs — Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project — is the best way to keep up with all the current capital happenings.  In addition, Crime & Consequences has lots of capital coverage from a perspective distinct from these other DP blogs.

For anyone eager for some historical reflections, I have some links here at my Death Penalty Course blog to a few discussions of America's history with capital punishment.  Also, I just noticed this extended article at Stateline.org covering lots of historical ground while providing a modern update on recent developments.

Another day full of Booker circuit fireworks

As if Tuesday's action was not exciting enough, Wednesday brought another collection of noteworthy circuit opinions addressing a range of Booker issues.  And though the Eighth Circuit had a couple of notable remands (available here and here), the most interesting rulings came from neighboring circuits.  Here's a quick run-down:

Seventh Circuit: US v. Roberson, No. 06-1121 (7th Cir. Jan 17, 2007) (available here) (reversing as unreasonable a reduced guideline sentence because of concerns of the impact of 924(c) mandatory enhancement) (discussed by How Appealing here)

Ninth Circuit: US v. Pike, No. 05-30528 (9th Cir. Jan 17, 2007) (available here) (reversing sentence because judge applied clear-and-convincing proof standard when deciding not to apply guideline enhancement)

Tenth Circuit: US v. Atencio, No. 06-1333 (10th Cir. Jan 17, 2007) (available here) (reversing for lack of notice and as unreasonable an upward variance over the dissent of judges eager to hear the case en banc) (discussed by How Appealing here)

Though a lot could be said about all of these opinions, I find the Ninth Circuit's work in Pike to be the most disappointing.  Pike is written by Judge Reinhardt, who is rightly (in)famous for not letting doctrines he sees as questionable get in the way of achieving what he believes to be a just result.  Pike presented an interesting issue in a useful setting for breaking new ground in the name of procedural justice after Booker.  Yet Judge Reinhardt delivers an opinion that, while entirely ignoring Booker, fully embraces a civil standard of proof for guideline enhancements and does not ever mention that Booker changed the standards for appellate review of federal sentencing decisions.

Any reports from today's USSC meeting?

As first noted here, the US Sentencing Commission had a public meeting scheduled for today, January 17, 2007, and the agenda here included an item listed as "Possible Votes to Publish Guideline Amendments and Issues for Comment."   Can any readers in the know report on any noteworthy happenings.  Are there any guideline amendments in the works to address the ugliness of the current crack guidelines or the apparent reality that the Booker decision appears here to stay?

UPDATE: A helpful reader sent me USSC proposed amendments to implement the Adam Walsh Act and some immigration reforms.  I am unsure if this means there is nothing planned from the USSC this amendment cycle on crack and Booker.

NLJ coverage of Patrick Lett appeal

Though locked behind a subscription, Pamela MacLean has a terrific article in the National Law Journal about the upcoming Eleventh Circuit argument in the Patrick Lett case.  Here's a bit of the article about the case (in which, as detailed in posts linked below, I have been involved):

Reducing a five-year prison sentence to 11 days in a crack cocaine case gave a second chance to a veteran with an exemplary 17-year Army career, but also prompted prosecutors to challenge the crediting of military service in determining criminal sentences.  The question of whether, and to what extent, military service may be used to mitigate sentences will be the subject of arguments on Feb. 1 before the 11th U.S. Circuit Court of Appeals in the case of 38-year-old Sergeant Patrick Lett.

Some related posts:

• Should prior military service reduce a sentence?
• My amicus effort to support our troops
• Is the big bad government afraid of lil' ole me?

The wait for Cunningham continues

As detailed here at SCOTUSblog, the Supreme Court issued just one opinion today from a case that was argued only last month, Gonzales v. Duenas-Alvarez (05-1629).  I was hoping we might get a decision in Cunningham, the California Blakely cases, but now it appears this case is to take longer than Booker for SCOTUS to adjudicate (informed speculations here).

To justify my anticipation (and impatience), let me document reasons why I am so eager to see what the Court does in Cunningham:

1.  In the wake of Harris, the Blakely ruling was huge because it showed that five Justices were prepared to make the Apprendi doctrine truly revolutionary.  But Justice Ginsburg's flip in Booker helped a distinct group of five justices water-down the impact of Blakely through the Booker remedy.  Coming a full two years after Booker, the Cunningham case is likely to reveal whether a majority of the Court wants to continue to water-down, or now start to again liven up, the Apprendi-Blakely rule.

2.  It seems clear that Justice Kennedy still wants the Apprendi-Blakely rule watered down and that Justice Stevens likes the Apprendi-Blakely rule livened up.  But, after Recuenco and other intriguing post-Booker signals from oral arguments, it is hard to be certain about the views of any other Justices (especially now that we all have two full years' experience with the impact of the Blakely-Booker rulings).

3.  Particularly unclear is how the new Justices will get into the mix in Cunningham.  Many are assuming that the new Chief and Justice Alito are hostile to the Apprendi rule, but both Blakely and Booker revealed how conventionally thinking can be very wrong.  Especially given Justice Alito's keen understanding of criminal justice issues and CJ Roberts' avowed affinity for consensus, I think their votes (and who may be writing separate opinions) are hard to predict.

4.  Speaking of consensus, as I argued here, for the health of criminal justice systems nationwide, it is probably far more important to have a clear set of Sixth Amendment rules than to having a perfect set of rules. As detailed here and here, Stephanos Bibas and I authored this OSJCL article discussing consensus principles designed to help SCOTUS bring order to its sentencing jurisprudence.  I am hopeful, but not especially optimistic, that the Court will use Cunningham to make its shaky sentencing doctrines more stable, sensible and predictable.

I cannot quite figure out if the long wait for Cunningham is a good or bad sign.  Adding to the intrigue is the fact that, not long after the Cunningham oral argument, the Court granted cert on two Booker reasonableness cases (Claiborne and Rita).  I am now wondering if we won't see Cunningham before the SCOTUS arguments next month in Claiborne and Rita; perhaps will get all these decisions handed down together only sometime in June.

Another (ineffective?) sex offender restriction

I have not yet seen any evidence that sex offender restrictions are effective; many say, as detailed here, that they actually harm public safety.  Nevertheless, this article from my local paper details that a town in central Ohio is considering a new twist on sex offender restrictions:

Upper Arlington is proposing tough restrictions on sexual offenders that would limit not only where they can live, but also where they can work.  State law already forbids sex offenders from living within 1,000 feet of a school.  And several cities in Franklin County, including Hilliard and Reynoldsburg, have passed or are considering additional prohibitions. But none has restrictions on where offenders may work.

"I'm not aware of an employment restriction anywhere in the state. As far as I know this is a first," said David Singleton, executive director of the Ohio Justice and Policy Center, a nonprofit, public-interest law firm based in Cincinnati.

Some related posts:

• Strong editorial against residency restrictions
• Opposition to Iowa's 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
• A potent and important prosecutorial statement against sex offender residency restrictions

UPDATE:  Over here at Sex Crimes, Corey Yung has a thoughtful and nuanced post about work restrictions for sex offenders.  He also has a lot of other interesting new posts on topics ranging from the Duke case to criminal adultry laws.

A killer anniversary

As spotlighted by this press release from Amnesty International, the first "modern" US execution took place exactly 30 years ago today.  AI marks the anniversary with this long essay, entitled "The experiment that failed:  A reflection on 30 years of executions."

Meanwhile, the Supreme Court today fittingly has a day devoted to oral arguments in yet another round of review of Texas capital jury deliberations.  For effective previews, check out SCOTUSblog and Crime & Consequences.  And, as detailed here at How Appealing, California is busy trying to get its execution protocol worked out.

For my part, I'll try my hand at a macabre fractured song lyric:

It was thirty years ago today, that

Gary Gilmore told the state to slay

Death's been going in and out of style

But the killings will go on a while.

[pause]

So you just need to get used to

The act you've known for all these years...

A quick review of all the circuit action

I mentioned here that the circuits were going wild with sentencing rulings today. Here are the particulars:

Third Circuit: US v. Walker, No. 05-3792 (3d Cir. Jan 16, 2007) (available here) (affirming 65-year sentence; 55 based on mandatory-minimum gun specs)

Fourth Circuit: US v. Tucker, No. 06-4122 (4th Cir. Jan 16, 2007) (available here) (reversing (!) an upward variance because its extend was unreasonable)

Fifth Circuit: US v. Elizondo, No. 06-10131 (5th Cir. Jan 15, 2007) (available here) (reversing after an improper post-Booker resentencing)

Eighth Circuit: US v. Tjaden, No. 06-1333 (8th Cir. Jan 16, 2007) (available here) (affirming significant upward variance based on post-plea conduct)

Ninth Circuit: US v. Ressam, No. 05-30422 (9th Cir. Jan 16, 2007) (available here) (majority dodges sentencing issue while remanding because "the law applicable to sentencing is in flux")

Though the Ninth Circuit's work in Ressam will surely garner the most attention (mostly for non-sentencing reasons), the true fan of Booker should be most interested in the Fourth Circuit's work in Tucker and the true fan of Blakely should be most depressed by the Eighth Circuit's work in Tjaden. 

Of course, reader commentary on all these developments is highly encouraged!

UPDATE:  As a commentor highlights, the Fifth Circuit also decided US v. Rajwani, No. 06-10648 (5th Cir. Jan 16, 2007) (available here), which also reverses an upward variance as unreasonable and is similar factually and legally to Tucker.

Lots of circuit sentencing action

I am spending the day trying to wrap up a draft of a cert petition (more on this later in the week), but I keep hearing news of important circuit sentencing rulings. This AP report provides the basics on the decision likely to garner the most attention from folks other than sentencing fanatics:

A federal appeals court on Tuesday threw out the sentence of a man who was convicted of plotting to bomb Los Angeles International Airport at the turn of the millennium.  Ahmed Ressam was arrested near the U.S.-Canadian border in December 1999 after customs agents found 124 pounds of explosives in the trunk of his car....

Ressam was sentenced to 22 years in prison after being convicted off all nine charges.  On Tuesday, the 9th U.S. Circuit Court of Appeals in San Francisco reversed his conviction on one of the charges and sent the case back to a lower court to issue a new sentence and explain the rationale behind the original 22-year term.

As of this writing, the Ninth Circuit's website is down (suspiciously?), so I cannot yet comment on the opinion.  But I can and will note that I have seen Booker rulings of note (that I also haven't yet read) from at least three or four other circuits today.  I guess everyone took advantage of the long weekend to clean-up sentencing opinions.

CJ Roberts and sentencing law: the virtues (and vices?) of consensus

As explained here, Jeff Rosen's extraordinary article in the Atlantic Monthly has me thinking hard about what CJ Roberts' eagerness for greater consensus could mean for sentencing law.  This post provides a brief account of what I see as possible virtues and vices of CJ Roberts' emphasis on greater SCOTUS consensus for sentencing law.

Interestingly, Sandy Levinson has this long and critical post at Balkinization in which he seems to recast CJ Roberts' avowed affinity for consensus as an interest in "suppress[ing] the expression of independent thinking, also known as concurrences or dissents."  With Levinson's focus on Hamdi, I suppose I can see a law professor's concern.  But, with an eye on modern sentencing jurisprudence and its practical impact, I consider consensus to be a critical value in too short supply.

Consider the Apprendi line of cases, which has produced a set of doctrines (and puzzling exceptions to those doctrines) that are opaque and shaky because of 5-4 votes and flip-flopping Justices (ranging from Thomas in Apprendi to Scalia in Harris to Kennedy in Ring to Ginsburg in Booker).  Especially for legislatures eager to get on with modern sentencing reforms, having a clear set of constitutional ground rules is much more important than having a perfect set of rules.  Thus, I am encouraged that, as explained here, it appears that CJ Roberts has assigned Cunningham to Justice Breyer or Justice Ginsburg.  These two Justices seem most likely to be able to produce an opinion that could carry more than five votes.  (As detailed here and here, Stephanos Bibas and I have authored this recent OSJCL article discussing consensus principles designed to help SCOTUS bring some order to its sentencing jurisprudence as it considers Cunningham.)

These same dynamics and concerns are also in play in the Court's 30+ year struggle with capital sentencing jurisprudence, though I doubt CJ Roberts can expect much success in this arena.  Notably, I believe the bulk of the 5-4 opinions already issued during the Roberts era have been in capital cases.  And the 5-4 opinions we saw last Term in Marsh and this Term Belmontes reveal how much emotion (and bad blood?) is tied up with the current Justices' views in death penalty cases.  Intriguingly, a deep commitment to consensus might have CJ Roberts urging the denial of cert in nearly all capital cases.  But, though CJ Roberts may be urging such denials, at least some Justices are obviously still very interested (as evidenced by recent grants) in capital topics that are of very little consequence in most parts of the country.

That all said, it bears spotlighting that emphasis on consensus can be a vice when it allow the Court to duck sentencing issues that merit consideration sooner rather than later.  The Court spoke in one voice in Burton to dodge the issue of Blakely retroactivity, but that just ensures more litigation and uncertainty on this consequential issue until SCOTUS resolves it definitively.  Similarly, the Court spoke in one voice in Hill when explaining whether and how lethal injection challenges could be brought via a federal 1983 action.  But, in an obvious effort to get everyone on-board, Justice Kennedy's opinion in Hill has only fueled more lower federal court debate and uncertainty about how to litigate lethal injection protocols in federal courts.

UPDATE:  A reader sent me by e-mail this interesting comment that he was having trouble adding to the comments:

I am a jailhouse lawyer (no longer incarcerated).  I think that Justice Roberts' intention is good. However, I find it hard to square with his vote in United States v. Gonzalez-Lopez. The issue in that case was a very rare one in criminal law (there has been very little case law on it in the lower courts). Justice Scalia's majority opinion was eminently sensible. And yet the Court insisted on splitting 5-4, and Roberts went with the dissent. If there ever was a "minor" issue in which consensus could have been achieved, then this case would seem to have been one. Roberts could have produced the consensus, or at least put himself on record as not being obstructionist when it clearly was not needed.

Another problem I see with this consensus stuff is demonstrated by the Court's recent decision in the last month or so where it decided that an overt act need not be cited in an indictment charging "attempt" in a criminal case. This too was an (apparently) minor issue. But the decision illustrates the other side of the coin. That is, the majority decision better at least make sense and clearly carry the day when compared to the dissent. I am almost sure that this decision cannot be read as convincing when compared to Scalia's lone dissent. I am only an "amateur" lawyer, but I do have a degree in physics, and I was also an auto mechanic for ten years. Both fields are entirely unamenable to B.S. and sloppy thinking, and the majority decision clearly falls into these categories, whereas Scalia's dissent is strikingly clear and persuasive.

Another troubling aspect of Roberts' interview is that he says Justice Marshall was a great Chief Justice (agreed), but then he says some laudatory things about Justice Rehnquist (hmm....). Okay, perhaps Rehnquist wasn't bad as a Chief Justice.  Evidently he had some good qualities in the administrative aspects of that post, and everybody on the court says he was very fair etc.  But Jesus, in the field of criminal law, one can hardly find a single decision he wrote that is notable for clarity and breaking real ground that a judge would be proud of.  Rather, one never even needed to think about his vote in advance; if the issue was even marginally debatable then, bingo, he was going to go against the defendant (with but the one exception ? the decision about Miranda he wrote in the last year or so of his life).

In comparison to Rehnquist, the real gap in the article with Roberts is his failure to mention Earl Warren. I mean, Warren's achievement in gaining total consensus in Brown v. Board of Education is staring Roberts (and any other minimally knowledgeable person) in the face.  Now, that was great consensus building in one of the handful of most important cases ever decided by the Court (and on a very "hot" issue to boot).  Of course, Rehnquist's shoddy history on that issue (it is pretty much accepted that he outright lied about it in his confirmation hearings) is also staring Roberts in the face.

I get very uneasy by a guy like Roberts who has that big smile pasted on his face, wants to make history as a consensus builder, but then has glaring gaps when he talks about stuff on point.  What the heck does he have against saying Warren was a great Chief Justice who did exactly what Roberts professes to want to do?  I mean, the answer seems to have some ugly possibilities, doesn't it?

In sum, Roberts intention is good, but let's see him put his money where his mouth is.  And too, let's see if he can even write a brilliant opinion in a tough case (as Scalia and numerous members of the Warren Court clearly can).

Nuff said....

Do execution headaches impact where capital debates are headed?

These are heady times for botched executions: as detailed here, the recent ugly hanging in Iraq continues to make headlines; as detailed here, condemned prisoners in the US continue to make headway arguing that lethal injection protocols are unconstitutional.  But I continue to wonder whether all the execution headaches will in any way impact where debates over the death penalty may be headed.

Are heads of state influenced by these developments or are they too headstrong to be influenced by all the headlines?  Do botched executions shine a headlight on broader death penalty issues or do they provide little reason to stall a headlong pursuit of capital justice?

An early sentencing take on the Libby trial

As noted here at TalkLeft, plenty of bloggers will be covering the much-anticipated trial of Lewis "Scooter" Libby, which starts today in DC.  Helpfully, this New York Sun article provides a "comprehensive spectator's guide" to all the action, and it includes this quick an accurate take on sentencing issues:

In theory, Mr. Libby could be sentenced to up to 30 years in prison and fined up to $1.25 million, if convicted on all five counts.  However, judges generally observe federal sentencing guidelines, which would call for a much shorter sentence for a defendant like Mr. Libby, who has no criminal record.

I likely won't follow the trial closely unless and until there is a conviction.  At this point, I suppose I am rooting for Libby to be acquitted on most counts but convicted on one so that the issue of federal sentencing based on acquitted conduct might be spotlighted in this high-profile setting.

Some Libby posts around the time of his indictment:

• More on Lewis Libby's possible plea and sentencing dynamics
• Will having a "tough" sentencing judge impact Lewis Libby's plea considerations?
• Sentencing dynamics in CIA leak investigation
• Has Patrick Fitzgerald done guideline calculations?

Namibia exploring guideline reforms

As detailed below, I have sporadically reported on major sentencing reform news from other parts of the world.  Today, the news comes from Namibia, where this interesting article reports on a "plan to implement sentencing reforms in the Namibian justice system, according to remarks made by Justice Minister and Attorney General Pendukeni Iivula-Ithana yesterday at the official opening of the High Court for 2007."  Here are snippet from the article:

An area that needs serious attention is sentencing reform in the criminal justice system, [Attorney General] Iivula-Ithana continued.  The current system, with sentences for most crimes not prescribed and courts having the discretion to treat each case on its own merits when deciding what sentences would be appropriate for a convicted offender, in her opinion "frequently results in sentencing disparities in more or less similar cases and between sentences in crimes committed against the person as distinct from property and other crimes," Iivula-Ithana said.  "It may also result in the unsatisfactory situation whereby the nature of sentence a convicted offender receives depends on who the sentencing judge was," she added. "I hold the firm view that our system, based as it is on indeterminate sentencing, has serious shortcomings," she said.

She proposed that sentencing reforms, "aimed at reducing disparity and increasing sentence uniformity, proportionality and precision", and also "geared at achieving racial parity in sentencing", should be undertaken. This, she said, can be done through adopting sentencing guidelines — to be determined by an independent body.

Related posts about guideline developments around the world:

• New Zealand's new sentencing reforms
• An international perspective on sentencing disparity
• Israeli proposal for sentencing guidelines
• What Iran and Israel have in common

Another effect of extreme mandatory sentencing laws

A reader sent me this disconcerting story from ABC News discussing a recent case in which a 16-year-old Phoenix boy was arrested for possession of computer child porn and threatened with a minimum of 90 years in prison under Arizona's severe child porn laws.  As the story explains, according to an array of experts, the teenager was likely innocent, but he felt compelled to plead guilty to a (peculiar) lesser charge rather than face the risk of a unavoidably harsh mandatory sentence if he was wrongfully convicted at trial.

Many have long noted and justifiably lamented the extreme bargaining power that severe mandatory sentences can give to prosecutors.  This teenager's tale — and a similar case from Arizona in which a respected teacher received a 200-year prison sentence for possessing computer child pornography (basics here, commentary here) in part because he would not cut a deal — spotlight the particular injustices that can flow from extreme mandatory sentencing terms for an array of sex-related offenses.

Still more long weekend sentencing reading

If you have somehow made it through the articles noted here and here, then you are ready for a new Blakely piece now available SSRN here.  The piece is by Laura Appleman and entitled "Retributive Justice and Hidden Sentencing After Blakely." Here is the first part of the abstract:

Blakely and its recent progeny have focused attention on a broad swath of fact-finding in sentencing decisions. In doing so, however, they have raised a number of complex questions about how fact-finding operates in the front- and back-ends of sentencing — what I call ancillary, or hidden, sentencing proceedings.  These ancillary sentencing proceedings have been almost entirely neglected in post-Blakely case law and scholarship.

Accordingly, this Article re-evaluates a variety of ancillary sentencing proceedings (including pre-sentence reports, prior offender statutes, probation, parole, post-release supervision and restitution) under Blakely.  As part of this re-evaluation, I also locate a new paradigm of retributive justice underpinning the Court's recent sentencing decisions.  Specifically, I contend that a theory of limited expressive retribution best suits the Court's new sentencing jurisprudence, because it encompasses both the historical antecedents of the 6th Amendment jury right and modern ideals of punishment.

An ugly hanging in Iraq

In this post about death penalty aesthetics, I noted that, compared to what is shown at the local multiplex and in action video games and even in most episodes of CSI, I found even the uncut Saddam execution video to be quite tame.  But as detailed in this news report, the same likely could not be said about the video of the latest executions in Iraq:

Iraq hanged two of Saddam Hussein's aides early Monday, and one of the condemned was accidentally decapitated. The official video of the hangings shows Hussein's half-brother lying headless below the gallows, his severed head several yards away, the Associated Press reported.

The executioner's noose severed the head of Barzan Hassan, the former chief of Hussein's secret police, according to a spokesman for Iraqi Prime Minister Nuri al-Maliki's office.  "It was not like a very pretty scene," said Basam Ridha, who was one of the witnesses. Ridha said the executions were carried out with dignity and respect, and called the accidental decapitation "an act of God."

Honoring MLK by asking hard questions

In this post on MLK day last year, I asked whether criminal justice reform should be the new civil rights movement and made this observation:

From my sentencing-centric perspective, reflecting on a day honoring Martin Luther King leads me to the view that Dr. King, were he still alive, would be focused on criminal justice reforms. So many aspects of the criminal justice system — from racial profiling to jury selection, from drug sentencing to the administration of the death penalty — highlight that our system is not color-blind (or at least not color-neutral). And, because of felon disenfranchisement and other collateral consequences, the enduring impact of a racially skewed criminal justice system cannot be overstated.

This year, in addition to encouraging everyone to take 15 minutes to watch all of Dr. King's amazing "I Have a Dream" speech (available here), I also want to encourage everyone to continue asking hard questions about how race (and class) can infect the operation of our criminal justice system in light of some of the posts highlighted below:

• Noticing different legislative reactions to meth and crack
• Crack reasonableness review should be as easy as 1, 2, 3
• What is the Sentencing Commission fiddling while the crack guidelines burn?
• Westar reversals ... a sentencing (and class) story?
• Encouraging a critical race examination of post-Booker developments
• Sobering realities of race and the death penalty
• Race and reform
• Racial disparity and sentencing reform
• New (depressing) report on race and increased incarceration

More long weekend reading

If you have finished these articles, be sure to check out this new addition on SSRN during the extra federal day off:

Adam M. Gershowitz, Pay Now, Execute Later: Why Counties Should Be Required To Post a Bond To Seek the Death Penalty

Abstract: When death sentences are reversed – and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons – local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices. This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal. The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.

CJ Roberts and sentencing law: a series

Law professor Jeffrey Rosen has this extraordinary thought-provoking article in the Atlantic Monthly based on an interview with Chief Justice John Roberts.  As quoted by Rosen, CJ Roberts articulates his views on being an effective Chief and explains why he is eager to get his colleagues to work together better.  As Orin Kerr says, the piece is a must-read for anyone interested in the work of the Supreme Court.

As I explained here during Roberts' confirmation hearings, CJ Roberts may have an extraordinarily hard time bringing consensus to SCOTUS sentencing jurisprudence.  Indeed, read through the lens of the Court's work in Booker and recent capital cases (like Kansas v. Marsh), some of the quotes in the Atlantic Monthly piece could easily be read as a slam on many (if not all) of his colleagues. 

Because I found the Atlantic Monthly piece so thought-provoking, I am planning a series of posts about what CJ Roberts' eagerness for greater consensus could mean for sentencing law (in cases like Cunningham and Claiborne/Rita and capital cases).  In the meantime, I cannot help but spotlight a couple of quotes from the article that read like direct slams on the work of Warren Burger and William Rehnquist as chief justices (and perhaps compliment Chief Justice Earl Warren):

“If the Court in Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have,” he said. “That suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.”  Roberts added, “I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy as an institution.”

Because I believe he is a careful and thoughtful speaker, I find very significant that CJ Roberts says "over the past thirty years has been eroding" its capital, and not over the last 40 or 50 or 60 years.  A knock on the Warren Court was how its controversial rulings in the 1960s impacted the perception of the Court.  But CJ Roberts focuses on the modern period (well after the unanimous Brown and the 7-2 Roe) in which Burger and Rehnquist allowed deep divides over various hot-button issues to fester.

MSM figuring out death penalty is dying

Though I have been talking about the slow death of the death penalty for more than two years (see here and here for early buzzing), the mainstream media is now finally starting to cover the story extensively.  On Friday, ABC News had this piece focused mostly on lethal injection issues entitled, "Death Knell for the Death Penalty?"  And today, the Washington Post has this intriguing piece entitled "Dead End -- Capital Punishment: At a Crossroads, or Is This the Exit?"

The provocative Post piece provides a look at these issues in a way that should really appeal to law-and-literature types.  It also includes these notable insight:

Americans (including the president) do support the death penalty. They do so at 67 percent, though their betters -- newspaper editorial writers, the French -- tell them they shouldn't. The United States is one of four countries that account for about 95 percent of the world's executions (the others being China, Saudi Arabia and Iran).

Americans support it three decades after all of Western Europe stopped, calling it outdated, unfair and barbaric. Amnesty International, Human Rights Watch -- oh, you know. Opponents generally portray it as being on its way out, though that is hardly clear.

Two months ago, voters in Wisconsin asked to reinstate the death penalty -- 153 years after abolishing it. The non-binding referendum, which said the penalty would be used only for vicious crimes where DNA evidence proved guilt, passed at nearly 56 percent. "It passed in 71 of 72 counties, and in some counties the vote was at 68 percent," said state Sen. Alan Lasee (R), who pushed the bill.

This despite the patchwork nature of capital punishment, the fact that there is really little rhyme nor much reason as to who gets executed, and why.  (A man is executed in North Carolina for killing his stepdaughter, but the BTK Killer in Kansas and the Green River Killer in Washington get life in prison.) It is so seldom used (56 times last year) that it has long since stopped being a working part of the criminal justice system. In the past 20 years, prosecutors and supporters have begun saying it is needed because it "brings closure" to victims' families, but they can't possibly mean that, because that would imply that 99 percent of the families of victims never get closure.  The system is filled with what Supreme Court Justice Harry A. Blackmun once called "arbitrariness, discrimination, caprice and mistake."

A future law school exam question (or Law & Order episode)

This AP story is not (yet) about sentencing, but it caught my eye in part because I have been having Wii wants for weeks:

A woman who competed in a radio station's contest to see how much water she could drink without going to the bathroom died of water intoxication, the coroner's office said Saturday. Jennifer Strange, 28, was found dead Friday in her suburban Rancho Cordova home hours after taking part in the "Hold Your Wee for a Wii" contest in which KDND 107.9 promised a Nintendo Wii video game system for the winner.

"She said to one of our supervisors that she was on her way home and her head was hurting her real bad," said Laura Rios, one of Strange's co-workers at Radiological Associates of Sacramento. "She was crying, and that was the last that anyone had heard from her." It was not immediately known how much water Strange consumed....

Initially, contestants were handed 8-ounce bottles of water to drink every 15 minutes. "They were small little half-pint bottles, so we thought it was going to be easy," said fellow contestant James Ybarra of Woodland. "They told us if you don't feel like you can do this, don't put your health at risk." Ybarra said he quit after drinking five bottles. "My bladder couldn't handle it anymore," he added. After he quit, he said, the remaining contestants, including Strange, were given even bigger bottles to drink. "I was talking to her and she was a nice lady," Ybarra said. "She was telling me about her family and her three kids and how she was doing it for her kids."

So, would-be California prosecutors, would you start a criminal investigation on these facts or just trust tort law or other civil mechanism to deal with this sad death?