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November 3, 2007

Judicial Conference urges retroactivity of new crack guidelines

Adding a very significant voice in the debate over making the US Sentencing Commission's new crack guidelines retroactive, the Criminal Law Committee of the Judicial Conference has sent a thoughtful and powerful letter to the USSC supporting retroactivity.  This detailed letter (which was authored by Judge Paul Cassell on his last day as a judge) can be downloaded below.  Here is the opening paragraph:

I am writing on behalf of the Judicial Conference’s Criminal Law Committee to recommend to the Sentencing Commission that its amendment lowering cocaine base (i.e., “crack” cocaine) penalties apply retroactively.  While concerned about the impact that retroactivity may have on the safety of communities, a majority of the Committee believes that the Commission’s precedents, and a general sense of fairness, dictate retroactive application.  The Committee also believes that the burden to the courts and probation officers associated with resentencings is not a sufficiently countervailing consideration.  The Committee’s recommendation rests on the hope that the Commission will implement procedures to reduce the administrative burden on the federal judiciary associated with the resentencings that would attend retroactive application. The Committee is prepared to help develop and implement such procedures and respectfully suggests that the Commission do what it can to put them in place before applying its amendment retroactively.

Download clc_letter_re_crack_retroactivity.pdf

Some related guidelines retroactivity posts:

November 3, 2007 in New USSC crack guidelines and report | Permalink | Comments (1) | TrackBack

November 2, 2007

Some weekend reading from SSRN

For those looking for a bit of not-so-light weekend reading, now up on SSRN are these new pieces of interest for sentencing fans:

UPDATE:  Scott at Grits has this terrific review of Russell Covey's article on plea bargaining.  The full review is a must-read, and here is how it ends:

I think there needs to be a renewed debate over the ubiquitous role of plea bargains in modern criminal jurisprudence, and I applaud Covey for examining the absurdist legal and economic theories used to justify undermining defendants' constitutional right to trial.  Unfortunately, law review treatises filled with legalese and academic jargon won't be what sparks such a debate.  I'm glad to see folks in the academy examining such topics, but I wish they'd learn to communicate what they find in more publicly accessible ways. These topics are too important not to let the public in on the discussion.

November 2, 2007 in Recommended reading | Permalink | Comments (0) | TrackBack

More dialoging about Danforth

Ann Althouse with a new post here and Orin Kerr with a follow-up here have taken the discussion of the Danforth state retroactivity case to the next level.  Lots of good insights here, and yet I think both are only beginning to peel off some of the many layers to be found in this SCOTUS onion.

Some related posts:

November 2, 2007 in Who Sentences | Permalink | Comments (0) | TrackBack

A potent (and pernicious?) new claim in the death penalty deterrence debate

Thanks to this post at C&C, I see that Roy Adler and Michael Summers of Pepperdine University have this Wall Street Journal commentary discussing a potent new deterrence claim.  The piece is entitled "Capital Punishment Works," and here are excerpts:

Most commentators who oppose capital punishment assert that an execution has no deterrent effect on future crimes. Recent evidence, however, suggests that the death penalty, when carried out, has an enormous deterrent effect on the number of murders.  More precisely, our recent research shows that each execution carried out is correlated with about 74 fewer murders the following year.

For any society concerned about human life, that type of evidence is something that should be taken very seriously....  The conclusion that each execution carried out is associated with the saving of dozens of innocent lives creates an extraordinarily difficult moral dilemma for those who campaign against the death penalty.  Until now, those activists could look into the eyes of a convicted killer, hear his or her sad story, work tirelessly to set aside the execution and, with that goal accomplished, feel good about themselves for having "saved a life."  These data suggest that the moral equation is not nearly that simplistic.

It now seems that the proper question to ask goes far beyond the obvious one of "do we save the life of this convicted criminal?" The more proper question seems to be "do we save this particular life, at a cost of the lives of dozens of future murder victims?"  That is a much more difficult moral dilemma, which deserves wide discussion in a free society.

The remarkable assertion that each execution could be saving 74 lives creates a stunning new math as the current de facto moratorium unfolds.  Specifically, since cert was granted in Baze, roughly 15 executions have been stayed.  Are the authors of this commentary prepared to assert that the Supreme Court's handiwork may be costing the lives of over 1000 future murder victims?  Indeed, given that de facto moratorium seems likely to delay or prevent many dozens of executions, are the authors of this commentary prepared to suggest that the moratorium could end up costing more lives than the 9/11 tragedies?

As detailed here, I tend to be agnostic about the deterrence debate. But the suggestion in this commentary that every execution could be saving 74 lives seems bold to the point of recklessness.  (Before this commentary, the boldest assertion I saw in the literature was that each execution might save 18 lives.)   I don't know much about Professors Adler and Summers, but I would like to hear more about their study and how far they might be willing to push their conclusions.

Some related death penalty deterrence posts:

November 2, 2007 in Death Penalty Reforms | Permalink | Comments (18) | TrackBack

Are most 1/3 downward variances reasonable, while most larger ones aren't?

Two very interesting sentencing cases decided by the Eighth Circuit have me wondering this reasonableness rule of thumb may exist in the Eighth Circuit and elsewhere: most downward variances of 1/3 or less from the bottom of the applicable range are presumptively reasonable, while larger one presumptively are not.  Here are the unofficial summaries of the two Eighth Circuit decisions that have me thinking about this reasonableness rule of thumb:

Of course, these two cases alone do not indicate that the Eighth Circuit or other circuits have a 1/3 variance reasonableness rule of thumb.  However, I have a sense that most downward variances of 1/3 or less are not even appealed and most get upheld absent a real problematic rationale.  And, conversely, I sense that many appealed downward variances greater than 1/3 are reversed absent a real compelling rationale.

November 2, 2007 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

Debate over retroactive application of new crack guidelines

This New York Times article spotlights that the Department of Justice officially opposes making the US Sentencing Commission's new crack guidelines retroactive:

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy. “The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”

Meanwhile, Harlan Protass has this op-ed in the Los Angeles Times making the case for retroactivity.  Here is how it ends:

Opportunities to neatly turn back time on social injustices are rare. The new crack sentencing scheme presents one such chance.  The Sentencing Commission should take advantage of this opening. To do otherwise is to compound the mistakes made when Congress first introduced harsh penalties for crack offenses.

Some related guidelines retroactivity posts:

UPDATE:  The Drug War Chronicle now has this effective feature on the crack amendment and the debate over retroactivity.

November 2, 2007 in New USSC crack guidelines and report | Permalink | Comments (5) | TrackBack

November 1, 2007

Some media coverage of new crack guidelines

Here are some of the headlines I have noticed from media stories covering the US Sentencing Commission's now-effective new crack sentencing guidelines:

Of course, these stories provide only the basics of the guideline changes.  For a lot more angles on these issues — including the great retroactivity issue — I have lots of posts in this archive.

November 1, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Notable recent coverage of juvenile justice issues

This new AP piece from New York discusses a recent report about juvenile justice in New York and highlights the growing attention being given to these issues lately.  Here are snippets from the AP piece:

New York's juvenile justice system is costly and ineffective, says a statewide coalition that proposed a series of reforms Thursday.  It costs about $150,000 a year to keep a juvenile in a detention center, and yet three out of every four are arrested again within three years of release, according to "Fight Crime: Invest in Kids New York," a nonprofit, anti-crime organization led by more than 300 sheriffs, police chiefs, district attorneys, and victims of violence.

"The state's detention centers are a revolving door," said Skaneateles Police Chief Lloyd Perkins, president of the New York State Chiefs Association. "It's clear that our current system is putting too many juveniles on a path to becoming career criminals. It's expensive, it's not working, and it's time to change."

Too many of the state's most dangerous young offenders are not receiving the intensive interventions needed to address their aggression, substance abuse problems and anti-social behavior, according to the 29-page report titled "Getting Juvenile Justice Right in New York."

In a related vein, NPR has done this set of pieces recently about distinct juvenile justice systems in different states:

November 1, 2007 in Offender Characteristics | Permalink | Comments (1) | TrackBack

NPR segment on race and sentencing issues

I just had the honor and pleasure of doing a live segment on NPR's Talk of the Nation program to discuss race and sentencing issues.  The segment should be available on-line here soon, and this is NPR's teaser:

Recent high-profile cases, such as the case of the 'Jena Six' in Louisiana and Genarlow Wilson's case in Georgia, have brought attention to issues of equality in sentencing.  Guests and callers discuss racial and ethnic disparities in the criminal justice system.

Comments from callers during the program were very informative and insightful, and many rightly stressed that class may be an even more potent factor than race in criminal justices realities.  When I had the mic, I mentioned a number of statistics and recent reports , most of which can be found in these prior posts:

November 1, 2007 in Race, Class, and Gender | Permalink | Comments (0) | TrackBack

Florida Supreme Court upholds state's lethal injection protocol

As detailed in this AP article, Florida's state Supreme Court unanimously ruled today that "Florida's procedure for carrying out execution by lethal injection doesn't conflict with the U.S. Constitution's ban on cruel and unusual punishment."  I suppose what exactly this means in light of Baze will be for others to figure out in the days ahead.

The opinion in Schwab v. Florida can be accessed at this link.

UPDATE:  As a commentator notes, the Court's longer treatment of these issues is in this other opinion, Lightbourne v. McCollum, also released today.

November 1, 2007 in Baze and Glossip lethal injection cases | Permalink | Comments (5) | TrackBack

An arrest is worth a thousand words of legislative testimony

In case anyone wonders how and why state legislators get extra concerned about sex offenders, check out this notable story from my backyard:

What began as testimony on a bill requiring jail sentences for those who solicit sex from minors over the Internet ended in a Statehouse sting for Lt. Jeff Braley of the Warren County Cybercrimes Task Force. 

Though Braley came to Columbus yesterday as a star witness supporting Senate Bill 183, he portrayed himself as a 14-year-old girl on a field trip to the Statehouse in e-mails to Barry Mentser, a local lawyer who police said was trying to have sexual relations with the "girl" he met online. Braley went by the online name "ohiosoccergirl14."  And after Braley testified yesterday, he quickly went to assist Columbus officers in Mentser's arrest....

Braley said he had alerted Columbus police that Mentser likely would be there. Braley said that Mentser had sent him several pictures over the past year -- dressed and undressed -- so State Patrol troopers in the building were able to identify him soon after he entered the building....

Braley said the Statehouse, a busy public building with a host of security cameras and plenty of State Highway Patrol troopers patrolling the halls, is the most public place he's ever made a bust.  "If this guy is going to go to this level, come to the Statehouse where police and everyone are, why would you want him right back out on the street?" he said. "We have to have mandatory jail time for these kind of individuals."  Sen. Tim Schaffer, R-Lancaster, the sponsor of Senate Bill 183, agreed.  "I hope this demonstrates the importance of this issue," he said.

November 1, 2007 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Why all law professors should pay more attention to criminal justice issues

I have such a passion for criminal law issues because so many interesting, dynamic and transcendent philosophical, structural, procedural and practical legal issues arise in the operation of criminal justice systems.  My blogging recently about lethal injection issues (archive here) and about the new crack guidelines (archive here) seeks to reveal some of these issues, but I am really only able to scratch the surface in blog posts.  Relatedly, many of my recent law review articles about the Supreme Court's work in Blakely, and Booker and Rita and other sentencing issues aspire to locate the Court's modern constitutional jurisprudence in broader theoretical and structural contexts.

As I recently suggested here, I am sometimes disappointed and surprised that many high-profile law professor bloggers rarely discuss the transcendent issues that many criminal justice cases implicate.  But today I am pleased to see two thoughtful blog assessments of two cases that show why even seemingly small criminal cases can be so revealing for anyone really interested in legal ideas:

Kudos to Ann and Anita for spotlighting that there is a lot more to learn from and about the Supreme Court's work and the Justices than what a lot of the tired partisan commentary tends to suggest.

UPDATE:  I now see that Orin Kerr has this long new post on Danforth.

November 1, 2007 in Who Sentences | Permalink | Comments (2) | TrackBack

Wondering once more about the broader impact of a de facto execution moratorium

A few weeks ago I pondered here whether and how a de facto moratorium on executions would impact capital indictments and death sentences.  But that was when the very existence of a moratorium was still subject to robust debate.  Now, as this new USA Today article spotlights, after this week's stay of a Mississippi execution, everyone recognizes the de facto reality of a de facto moratorium:

The Supreme Court's orders in recent death penalty cases have been brief, cryptic and even contradictory.  But after Tuesday night's action stopping a Mississippi prisoner's execution, their consequences seem clear.

Imposition of the death penalty is unlikely to resume until next year, after the justices hear the Kentucky case of Baze v. Rees and rule on the constitutionality of the lethal injections. Most of the 38 states that permit capital punishment use that method.

"The court is sending signals that make it extraordinarily unlikely that there will be any executions before Baze comes out," said Deborah Denno, a law professor at Fordham University in New York. "I think this is unprecedented," added Denno, an expert on lethal-injection issues, referring to the court's decision to review a method of execution for the first time in more than a century and the far-reaching consequences of its orders prior to hearing the case. "It sure looks like that until they decide this issue, they don't want to see any more executions," Georgetown University criminal law professor Randy Barnett said.

So now I wonder again how this moratorium reality is going to impact other aspects of the modern administration of the death penalty.  The USA Today article notes that in "Oklahoma Attorney General Drew Edmonson on Oct. 3 asked state judges not to schedule any executions until the high court rules."  I suspect some other states will take the same approach.  But, the de facto moratorium would be really consequential if state prosecutors and/or judges become less eager to move forward with capital cases.

I am also now wondering about system-wide impacts as well as case-specific ones.  Will the momentum to eliminate the death penalty in a state like New Jersey speed up, or perhaps slow down, in light of the Baze moratorium?  Will some states, as I have wondered recently, start looking at other possible execution methods?  Might Congress, as I urged long ago, finally appreciate that this is an issue of national significance calling for the attention of the nation's legislature?

November 1, 2007 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

October 31, 2007

FAMM ready to roll on new crack guidelines

At its website, Families Against Mandatory Minimums has all this new content in conjunction with the effective date for the US Sentencing Commission's new reduced crack guidelines:

10/31/07 - Tomorrow heralds new day for crack cocaine sentencing.  Effective November 1st, nearly 80 percent of defendants convicted of federal crack cocaine offenses will face sentences 16 months shorter on average, thanks to sentencing guideline reforms approved by the U.S. Sentencing Commission.  However, if the amendment is not made retroactive, nearly 20,000 federal prisoners currently serving harsh sentences for crack cocaine offenses will not be eligible for relief. Read more

10/31/07 - Last day to tell the Sentencing Commission to make crack guideline changes retroactive!  October 31 is the last day to write the United States Sentencing Commission in support of making changes to the federal sentencing guidelines for crack cocaine “retroactive."  All letters must be postmarked by Oct. 31.  Click here to write a letter.

10/31/07 - Questions, answers on crack change.  Download answers to requently asked questions about the crack cocaine guideline amendment and possible retroactivity. Click here

Some recent related posts:

October 31, 2007 in New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Teague, state powers and retroactivity issues in Danforth

With the recent Wilson ruling from the US Supreme Court and the US Sentencing Commission debating the reach of new crack rules, the issue of retroactivity is coming up again and again.  Today, in a particularly interesting context, the issues was before the Supreme Court in the case of Danforth v. Minnesota.  As previously discussed here, Danforth concerns a state court's authority to apply retroactively Supreme Court criminal procedure rulings and it is a spooky cool case for true law geeks.

Lyle Denniston has this detailed report on the argument, which includes this snippet:

As if conducting an oral exam in basic constitutional law, the Justices explored whether a right that they announce was, in fact, always there though previously undiscovered, or whether it simply emerged as a brand-new product of the judicial imagination. Curiously, some of the Justices who believe that the Constitution means only what it did in the beginning (the “originalist” persuasion) were arguing that the Court certainly can and does creates new constitutional meaning, while some of those who believe in a “living Constitution” (it changes with the times) were suggesting that a new right is simply an old right that always was. It was, for a time, purely “metaphysical,” as Justice Stephen G. Breyer suggested unapologetically. But it could have real-world consequences for individuals accused or convicted of crime.

For those eager to have a first-hand experience with the metaphysical, the transcript of the argument is now available here.  After the goblins have their fun tonight and I get a chance to review the argument, I may have more to say about this interesting case.

October 31, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

First Circuit says Rule 32(h) notice applies to variances

As I noted here a few months ago, the federal circuits have been nearly evenly split on whether FRCrP 32(h) requires a district court to give advance notice before varying from the advisory guidelines range.  Thanks to this post at AL&P, I see that the First Circuit has weighed in today through US v. Vega-Santiago, No. 06-1558 (1st Cir. Oct. 31, 2007) (available here).  Helpfully, this opinion provides this effective account of the state of Rule 32(h) after Booker in the course of articulating the First Circuit's approach:

It appears that only the Seventh Circuit has held that Rule 32 no longer requires notice even for departures, having concluded that, after Booker, "the concept of departures [is] 'obsolete' and 'beside the point.'" United States v. Walker, 447 F.3d 999, 1006 (7th Cir. 2006).  Rule 32(h) remains in effect, however, and the government has in other cases accepted its continuing applicability....

The remaining nine circuits that have thus far addressed the issue have considered whether Rule 32(h) extends to sentencing variances, as well as departures, and they have split five to four.  The Third, Fifth, Eighth and Eleventh circuits hold that the Rule is limited to departures; the Second, Fourth, Sixth, Ninth and Tenth hold that it is not, and have applied the notice requirement to variances as well as departures.  For the reasons we elaborate below, we think the better view is that the notice requirement survives Booker and applies to any non-Guidelines sentence – whether imposed as a departure or as a variance.

October 31, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Notable state litigation over lethal injection issues

As I noted in this prior post, the Baze case could halt executions for as long as a year if the Supreme Court doesn't issue a ruling until summer 2008, and states thereafter have to figure out exactly what the ruling means for their execution protocols.   Indeed, today brings news that two states with sizeable death rows may be still be facing lots of state litigation after Baze:

As I have suggested before, a state like Texas likely will find a way to get back to executions relatively quickly after a decision in Baze.  But, I would expect de facto moratoriums to persist in some other states for quite a long time.

October 31, 2007 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Wondering about the ripples of the truly consequential crack sentencing news

Though the de facto execution moratorium created by SCOTUS continues to get lots of attention (archive here), the most consequential sentencing news this week actually concerns drug sentencing.  Specifically, as noted here at The BLT, tomorrow the US Sentencing Commission's new reduced crack guidelines become effective.  And though this change will have the biggest impact if the USSC decides to make it retroactive — which could reduce the sentence of 20,000 current federal prisoners — a lot of folks should be impacted by the new crack change right away.

I have heard that a number of crack sentences have been put off while the USSC's proposed amendments were pending.  If this is true, we ought to see a significant up-tick in drug sentencings over the next few months (and a blip in the USSC's drug sentencing data for the last fiscal year).  In addition, there surely are many — perhaps hundreds or even thousands — of crack sentences current on appeal.  I wonder how circuit courts will sort out reasonableness claims and other arguments once the new guidelines become effective.

Last but not least, I wonder if some defendants currently serving time under the old guidelines might bring new appeals even before the USSC decides on retroactivity.  Arguably, the recent Wilson ruling from the Georgia Supreme Court adds heft to claim that sentences under the old guidelines are constitutionally problematic.  Additional support for new constitutional arguments against the old crack sentence might come from commentary like this new Washington Times op-ed from J.C. Watts and Pat Nolan.  Consider these snippets from their piece:

We are both conservative Republicans who are convinced that this country needs a more rational approach to apprehending and prosecuting those who traffic in cocaine.... [The 100-1 sentencing] disparity was passed in 1986 and based largely on the assertion that crack cocaine was more dangerous than powder cocaine, that it was instantly addictive and that it caused violent behavior. Since then, copious scientific evidence and U.S. Sentencing Commission analysis have shown that these assertions, which were not supported by sound data, were exaggerated or even outright false.  The disparity has resulted in a hugely disproportionate number of black Americans sentenced under this mandatory-minimum law.  While the intent was not to single out one racial demographic over another, the impact of these laws amounted to discrimination....

Federal authorities are squandering huge amounts of resources on small cogs in the cocaine distribution network: One-third of all federal cocaine cases involve an average of 52 grams, the weight of a candy bar. This is a terrible misuse of the time and talent of federal law enforcement and prosecutors. Plus, it has clogged the federal courts with cases that can easily be handled by the states.

October 31, 2007 in New USSC crack guidelines and report | Permalink | Comments (3) | TrackBack

Judge complains of federal prosecutors making "illusory" promises in plea agreements

A helpful reader sent me this interesting local story about a federal district judge in Illinois making some interesting statements in the course of recusing himself from an on-going federal criminal case.  Here are the interesting details:

Judge J. Phil Gilbert took the extraordinary step of calling out the U.S. Attorney's Office for the Southern District of Illinois Tuesday before recusing himself from USA vs. Katie R. Heath, a case he said highlights serious problems within the federal prosecutor's office.  "For some prosecutors in the Southern District of Illinois, prosecutions are driven by statistics and a desire to prevent judges from exercising any control over the sentencing process without regard for the individual. Although not rising to the level of mean-spiritedness, the words arbitrary and capricious come to mind," Gilbert said Tuesday during a motion hearing on the case....

Heath was charged in federal court in April 2006 for conspiracy to manufacture, distribute and possess with intent to distribute methamphetamine, conduct related to the previous state prosecution, Gilbert said.  She was set to plead guilty as part of a plea agreement last May, but concerns he had prompted Gilbert to delay the acceptance of the plea and sentencing.  That decision was protested by the U.S. Attorney's office, which filed a motion to reconsider.  The case wound up in the 7th U.S. Court of Appeals, which earlier this month granted a Writ of Mandamus, ordering Gilbert to rule on a motion to reconsider the delay in accepting the plea and sentencing hearing.

Before granting that motion Tuesday, Gilbert said many of his concerns regarding the case involve plea agreements entered into by the prosecution and defendants. "In fact, the government frequently violates plea agreements where the mandatory minimum sentence applies and the defendant's guideline range is substantially below the mandatory minimum," he said.  Gilbert accused the prosecution of making "illusory" promises in the agreements and said, "At least in this district, these so-called plea agreements are one-way streets and are unenforceable at sentencing by either the defendant or the Court."

He went on to say that in Heath's case, where she was already punished by the state for her conduct, "I strongly believe our government has failed here in that they have not been objective, abused their discretion and are not treating (Heath) with a concern for fairness or justice.  In fact, sentencing (Heath) to prison for 20 years would be a miscarriage of justice."... Gilbert said he has never spoken out before, but "I feel strongly that the government has abused their discretion and not treated Katie Heath fairly."

UPDATE:  TalkLeft has more on this story in this post.

October 31, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Is an execution moratorium scary or sacred or silly or sound?

This piece by Linda Greenhouse at the New York Times notes the import of the Supreme Court's granting of an execution stay in Mississippi last night, calling the stay a "nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring."  Here's more:

Even without a written opinion, the Supreme Court’s action on Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be delayed.  State and lower federal courts are likely to interpret the Supreme Court’s action as a signal that they should postpone executions in their jurisdictions. As a result, the justices will probably not have to consider any more last-minute applications from inmates while the de facto moratorium is in effect.

Especially given that today is a day for spooky festivities — maybe I will dress up as a doctor who refuses to participate in a lethal injection — perhaps readers will share their thoughts about what to make of the suspended state of the death penalty.  Scary, sacred, silly or sound?

Some related posts:

October 31, 2007 in Baze and Glossip lethal injection cases | Permalink | Comments (7) | TrackBack

October 30, 2007

Thoughtful reasonableness review discussions from the circuits

This afternoon brought two interesting and thoughtful discussions of various federal sentencing issues from two well-regarded judges in two circuits:

From the First Circuit, in US v. Milo, No. 06-2185 (1st Cir. Oct. 30, 2007) (available here), Judge Boudin discusses at length arguments made by the government assailing a district court's decision to give only time served and probation to a major pot dealer who had shown contrition and had cooperated with the government.  The government ultimately prevails, but defense attorneys should like some of the discussion of pertinent sentencing considerations.

From the Tenth Circuit, in US v. Angel-Guzman, No. 06-4303 (10th Cir. Oct. 30, 2007) (available here), Judge McConnell discusses at length the standards for appellate review in light of Rita.  Judge McConnell's work provides a great review of post-Booker and Rita realities in the course of affirming a within-guideline sentence.

Both of these rulings show what fine work the circuits can do to help create a rich common law of sentencing, if and only when they take the time to examine seriously a litigant's arguments concerning a district court's sentencing choices.

UPDATE:  The Boston Globe has this piece on the Milo ruling.

October 30, 2007 in Booker in the Circuits | Permalink | Comments (3) | TrackBack

Down to the wire with execution still scheduled now stayed in Mississippi

30Along with Kent at Crime & Consequences, I am still awaiting word on whether the Supreme Court will block Mississippi's effort this evening to execute Earl Wesley Berry.  I am bad at reading tea leaves, so I am not sure what to make of the fact that the Supreme Court still has not yet resolved Berry's request for a stay coming from his lethal injection case in federal court.  Perhaps the delay is a sign that the Justices are putting together some sort of opinion to accompany whatever action (or non-action) they take.  Given that this Mississippi case has been on everyone's radar screen since last week, the Justices have had a bit more time than usual to adjudicate this matter with everyone is watching closely.

Some recent related posts:

UPDATE:  While I was spending the evening playing dad taxi, the Supreme Court continued the de facto moratorium on lethal injection executions by granting a stay for Berry.  This post from Lyle Denniston at SCOTUSblog provides all the peculiar details, including the court's stay order here.  Up-to-date media coverage includes this piece by Jan Crawford Greenburg at ABC News, this piece by Linda Greenhouse at the New York Times and similar articles from Bloomberg and Reuters.

Over at CDW, Karl Keys provides this nuanced assessment of where matters now seem to stand in the moratorium debate:

In light of the United States Supreme Court’s stay tonight of the Earl Berry execution in Mississippi, I strongly suspect the fluid situation that has marked the subject of lethal injection has now somewhat solidified. There will likely be no additional executions by lethal injection until at least after oral arguments & conference in Baze v. Rees, save for volunteers, and most likely until well in to 2008.  Note Nebraska does not use lethal injection, volunteers will still likely be executed, and states are free to abandon lethal injection for another method of execution; I still have difficulty calling it a “de facto national moratorium,” but without getting in to why it doesn’t work, as a general concept it aptly explains our current situation.  [I would prefer to  borrow a term from elsewhere, “a patch quilt moratorium” that is likely to show signs of fraying as it gets tested, pulled, and ages, however, nuance and clarity are, at least in this context, mutually exclusive].

October 30, 2007 in Baze and Glossip lethal injection cases | Permalink | Comments (19) | TrackBack

Rocky Rhode Island consequences in moving juve crime age line

A helpful reader alerted me to this very interesting article from the New York Times that highlights how tough on crime efforts to save a few bucks often can backfire and produce many unexpected consequences.  Here are snippets from an article that should be read in full:

It was conceived as a way to save money in the face of a $450 million deficit in Rhode Island’s current budget: making 17-year-olds adults in the eyes of the law, shifting their cases to criminal from juvenile court and putting offenders in the state prison rather than the youth correctional center.  The measure, which took effect July 1 and was expected to save $3.6 million a year, has ignited a firestorm, with children’s groups, the state public defender and others calling it bad policy that in any event is not a money-saver.

“It’s a gross failure of responsibility,” said the state’s attorney general, Patrick C. Lynch. “It’s not saving money. It’s creating enormous questions and problems in the system, never mind ruining lives” of young offenders who are left with criminal records.  Responding to the concerns, the legislature plans to take up a measure today that would essentially repeal the law....

The proposal to treat 17-year-olds as adults for criminal-justice purposes was the subject of a legislative hearing in March, where Attorney General Lynch, a Democrat whose office is elective, and others came out strongly against it.  Opponents took little action after that, as many thought it would be killed in the overwhelmingly Democratic legislature. But it survived, and before long it became apparent that the new law could well cost money rather than save it. 

The State Department of Children, Youth and Families, which had proposed the idea, had assumed that 17-year-olds would be held among the general prison population, where incarceration costs $39,000 an inmate per year, 60 percent less than the $98,000 in the juvenile-offender system.  But A. T. Wall II, director of the Rhode Island Department of Corrections, decided that for the sake of the young inmates’ protection, they would be held in maximum security, where the annual per-inmate cost is $104,000....

Beyond the fiscal issue are those involving public-records law, privacy and even bail.  Seventeen-year-olds are not legally authorized to sign a contract in Rhode Island, and as a result cannot sign a bail form or a plea agreement without a parent present. “How do you plea a kid, or how do you post bail, when you’re not old enough to contract?” said John J. Hardiman, the state’s public defender. The new law also now makes the records of 17-year-olds public, unlike all juvenile records in the state, which are sealed.

Attorney General Lynch believes the law unnecessary because he could previously elevate juvenile cases to the adult level if the suspect had committed prior offenses or the crime was particularly violent. He said he believed the measure was destroying the lives of young nonviolent offenders, as drug convictions make it harder to find jobs and housing and cause students to be ineligible for federal aid. “This isn’t about the murderers, rapists, robbers — they could all be waived,” Mr. Lynch said. “This is about if there’s one joint in a car with four kids and it’s not lit. Those charges aren’t what they used to be. The world has changed for 17-year-olds in Rhode Island.”

Ten other states try people under 18 as adults, said Mr. Griffin, the juvenile justice researcher. But in Illinois and Wisconsin, there is a push to raise it back, he said.  And Connecticut, which currently tries 16-year-olds as adults, is already set to raise the age to 18 as of 2010. In Rhode Island, Mr. Hardiman, the public defender, said judges’ concerns about the new law had caused many cases to be resolved before they even reach court. “They’re exercising discretion,” Mr. Hardiman said of the judges, “and I applaud them in trying to protect young people when the current sanctions are for someone much more mature than a 17-year-old kid.”

October 30, 2007 in Offender Characteristics | Permalink | Comments (0) | TrackBack

A guide to Apprendi issues for courtroom practitioners

Bruce Cunningham, Heather Rattelade and Amanda Zimmer have a new article (available here from SSRN) entitled "Apprendi/Blakely: A Primer for Practitioners." Here is the abstract:

The purpose of this article is to explore some of these complex Apprendi/Blakely issues in a manner which is useful for the courtroom practitioner.  The implications of Apprendi/Blakely are largely uncharted territory and some of the opinions expressed in this article have not been addressed by any appellate court. In some instances, there are North Carolina appellate decisions which the authors contend are inconsistent with the basic premise of the Sixth Amendment line of cases.  The article is intended to broaden the view of Apprendi/Blakely to include concepts that extend far beyond sentencing.

The article is divided into three parts and is geared toward the trial, appellate, and postconviction lawyer. Part I is devoted to a discussion of the historical context of Apprendi/Blakely and the basic conceptual underpinnings of the Supreme Court's Sixth Amendment line of cases.  Part II presents a framework for analyzing Apprendi/Blakely issues arising under the Structured Sentencing Act.  Part III, appearing in a later volume of the North Carolina Central University Law Journal, will deal exclusively with capital litigation and the Sixth Amendment line.

In an e-mail to me, one of the authors has said: "I hope some trial lawyers from the Blakely compliant states will comment."

October 30, 2007 in Blakely Commentary and News | Permalink | Comments (3) | TrackBack

Criminal porn and punishments today at the Supreme Court

If you are into criminal porn or criminal punishments, today is a day to keep an eye on the Supreme Court.  This post at SCOTUSblog details the two cases scheduled to be argued this morning:

At 10 a.m, the Court is scheduled to hear oral argument in United States v. Williams (06-694), asking whether a federal ban on pandering material believed to be child pornography is unconstitutional....

At 11 a.m, the Court is scheduled to hear oral argument in Logan v. United States (06-6911), asking whether the Armed Career Criminal Act exempts state convictions for which civil rights were not originally revoked.

In addition, at some point today we ought to get word on whether the Justices will block Mississippi from going forward with a scheduled lethal injection execution (background here and here).

October 30, 2007 in Who Sentences | Permalink | Comments (0) | TrackBack

October 29, 2007

Execution drama building in Mississippi case

This extended post at SCOTUSblog and this AP story provides the latest news on the capital case from Mississippi, which could result tomorrow in the first execution in over a month in the wake of the Baze lethal injection cert grant.  In short form, it appears that the Supreme Court refused to review a state action denying a stay, but a parallel case coming through the federal courts is still pending.

UPDATE: How Appealing has collected some additional media coverage here, including this thoughtful piece from Linda Greenhouse at the New York Times.

October 29, 2007 in Baze and Glossip lethal injection cases | Permalink | Comments (0) | TrackBack

Eighth Circuit opines on intricacies of post-Booker sentencing

The Eighth Circuit in US v. Coyle, No. 06-2296 (8th Cir. Oct. 29, 2007) (available here), gets a second chance to explain how post-Booker sentencing work in a case that has a district judge and the parties all worked up.  The panel's wotk in Coyle defies easy summary, but the Circuit's opinion page provides this unofficial account of the panel's work:

The court refuses to reconsider its decision in U.S. v. Coyle, 429 F.3d 1192 (8th Cir. 2005), that a substantial- assistance reduction from 135 months to 36 months' imprisonment was unreasonable; when the court remanded this case for resentencing, the district court was not prohibited from considering factors other than substantial assistance in fashioning Coyle's sentence, and the court could rely to some degree on both 18 U.S.C. Sec. 3553(a) and (e) factors in deciding upon a sentence; however, the court erred in relying on an impermissible factor — post-sentencing rehabilitation — when it applied Sec. 3553(a), and the case must be remanded for resentencing.

October 29, 2007 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

NPR piece on moratorium mayhem

Today on its Day to Day show, NPR started with this segment entitled "Future of Lethal Injection in Question."  The audio piece covers some of the uncertainty that has followed the Supreme Court's grant of cert in Baze; it also notes the ABA's call for a national moratorium on executions for reasons unrelated to lethal injection protocols.

Some recent related posts:

October 29, 2007 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

SCOTUS order list includes two Rita GVRs

As first noted in comments by Peter G, the Supreme Court returned from its summer break by denying cert in early October to a lot of federal criminal appeals that perhaps could have justified Rita GVRs.  That reality makes somewhat notable that today's Supreme Court order list, which is available here, includes two Rita GVRs in cases captioned Ibarra and Heavner from the Eighth Circuit.

I am not sure why Ibarra and Heavner get the benefit of Rita GVRs when so many other cases did not.  Anyone in the know about these cases or (any Rita-related) others are encouraged to offer enlightenment in the comments.

October 29, 2007 in Rita reactions | Permalink | Comments (7) | TrackBack

ABA sets out (incomplete) case against the modern administration of the death penalty

According to this Chicago Tribune article, the America Bar Association's Death Penalty Moratorium Implementation Project has, after "concluding its three-year study of capital punishment systems in eight states," discovered "so many inequities and shortfalls that the group is calling for a nationwide moratorium on executions."  I wonder if I will be the first to say that I am shocked — shocked — to learn that the ABA's Moratorium Project has now come to the shocking — shocking — conclusion that there should be a death penalty moratorium.  (In somewhat related news, the latest issue of the ABA's Human Rights magazine is dedicated to the death penalty, and all the articles appear to advocate against this punishment.)

In all seriousness, the ABA's moratorium research project has provided a thorough account of the operation of the death penalty in eight states: Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee.  And, though I suspect few working on this project are genuinely interested in creating a more effective and efficient system of capital punishment in the United States, the ABA deserves great praise for contributing an extraordinary amount of information and insight about the modern operation of capital justice systems and for making sounds suggestions about how capital justice might be improved.   And yet, there is a troublesome incompleteness in all of the ABA's copious work. 

First, consider the many notable jurisdictions left out of the ABA's research.  California has a death row nearly twice as large as any other state, and yet its capital system has not been subject to the ABA's analysis.  Even more glaring, the four states that have executed the largest number of defendants in the modern era — Texas, Virginia, Oklahoma and Missouri — also escaped the ABA's scrutiny.  Indeed, by also leaving out North Carolina, South Carolina, Arkansas and Louisiana, the ABA failed to examine the states responsible for roughly 3/4 of all executions in the last 30 years.  Any assessment of the death penalty that does not focus on Texas is like staging Hamlet without the prince, and the ABA has also left out Claudius, Gertrude, Horatio and Ophelia.

Second, consider key issues left out of the ABA's work.  Somewhat comically, the issue that has now created a de facto moratorium — problematic execution protocols — is not examined at all by the ABA in this work.  Also, some issues that might be most important to persons undecided about the death penalty — debates over deterrence and cost realities — are not addressed in the ABA's reports.  And, returning to a theme that I often stress, the ABA does not explore federal capital prosecutions or the broader idea of having the federal government take over administration of the death penalty.

In short, those persons wanting to feel good about their pre-existing opposition to the death penalty will enjoy reviewing the thousands of pages produced by the ABA's research.  But someone who is genuinely agnostic about capital punishment is likely to find the ABA's work more frustrating than enlightening.

October 29, 2007 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Remarkable Booker variance for "shameful" jail conditions in NJ

As detailed in this article from the Newark Star-Ledger , a district judge in New Jersey last week granted a variance in response to evidence that prison conditions in a county jail were horrid.  Here are the basics from the news account:

Ruling that overcrowding and poor conditions at the Passaic County Jail are "shameful" and have been ignored for too long, a federal judge has taken the dramatic step of cutting the sentence of a federal inmate being housed there by seven months.  The federal public defender's office in New Jersey has argued for such reductions for years, but the case marked the first time it has been successful, officials said.

U.S. District Judge Katharine Hayden issued her ruling Thursday after presiding over hearings in which the inmate complained of putrid air, mold and other problems and officials acknowledged a deteriorating structure that lacked fire sprinklers and reached 100 degrees on hot days. 

The half-century old jail, located in Paterson, was designed to hold 896 inmates, but houses more than 2,000. Hayden said "the mind boggles" at the living space: 64 are housed in each of the jail's 54-by-40-foot dorm-style units where they sleep, shower, and use toilets that lack ventilation and are six or seven feet away from dining tables.  Hayden said the reduction in the sentence was needed as "a statement that there is a law of reason and fairness behind detention."  The case, she said, "forces the question of how long we continue to turn a deaf ear, mine included.  It has become a tired fact of life in these courtrooms that Passaic County Jail is overcrowded, is breaking down, and is a very rough place to serve time."

A helpful reader sent me a copy of Judge Hayden's opinion, which in part connects this variance to the 3553(a) factor of needing to "promote respect for the law."  The opinion can be downloaded below, and here is a key snippet:

Respect for the moral law that makes the conditions in Passaic County Jail stick in the craw supports a variance, however big or small, as a statement that there is a law of reason and fairness behind detention. "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485 (1928)(Brandeis, J., dissenting).

Download sutton_opinion.pdf

October 29, 2007 in Booker in district courts, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Exploring our harsh approach to juve punishment

Over at FindLaw, Sherry Colb has this new piece entitled "Why Does the U.S. Sentence Adolescents To Life Without Parole?".  Here is how it starts:

Last year the United Nations voted on a resolution to abolish life imprisonment without the possibility of parole for children and young adolescent offenders.  The vote was 185 to 1 in favor of abolition, and the United States was the lone dissenter.  Until 2005, moreover, when the Supreme Court outlawed the juvenile death penalty under the Eighth Amendment in the case of Roper v. Simmons, twenty states had allowed the execution of murderers who committed their crimes before the age of 18.  In this column, I will explore ways of thinking about crime in the U.S. that might help explain this punitive approach to juvenile offenders.

Some related posts:

October 29, 2007 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

October 28, 2007

More intriguing plea bargaining scholarship

I continue to be pleased to continue to see interesting scholarship about plea bargaining appearing on SSRN.  This latest piece comes from Russell Covey and is entitled "Fixed Justice: Reforming Plea Bargaining With Plea-Based Ceilings." Here is the abstract:

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential.  As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination.  Because the doctrine of prosecutorial charging discretion is immune to challenge, conventional fixed discounts are doomed to failure.

This Article urges abandoning the effort to constrain prosecutors' discretion to make lenient plea offers and instead shifting regulatory focus to the creation of sentencing rules that prevent trial courts from imposing overly harsh trial sentences.  The Article makes an original contribution to the plea bargaining literature by demonstrating that effective enforcement of discount limits is possible through adoption of plea-based ceilings.  Ceilings would limit sentence differentials by ensuring that trial sentences do not exceed plea sentences by more than a modest amount. Because ceilings focus on limiting punitive trial penalties rather than preventing overly lenient plea offers, ceilings are practically enforceable in a way that conventional fixed discounts are not, and thus promise a method to improve the guilt/innocence sorting function of criminal procedure.

Some other interesting plea recent scholarship:

October 28, 2007 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

After Cunnigham remand, New Mexico gets with the Sixth Amendment program

Following the leads of the highest courts in Hawaii and Tennessee (which both recently recongized that they have to live in Apprendi-land), the New Mexico Supreme Court this week recognized that the US Supreme Court's ruling in Cunningham conclusively determined that its state's mandatory sentencing scheme creates Sixth Amendment problems.   The ruling, in State v. Frawley (available here), begins this way:

This case is before us for a second time, after remand from the United States Supreme Court for reconsideration in light of its recent opinion in Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856 (2007).  The issue we are asked to revisit is whether alteration of a defendant’s basic sentence upon a finding by the judge of aggravating circumstances surrounding the offense or concerning the offender, NMSA 1978, § 31-18-15.1(A) (1993), violates the federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution.  We conclude Cunningham requires that we declare Section 31-18-15.1 facially unconstitutional.

October 28, 2007 in Blakely in the States | Permalink | Comments (10) | TrackBack

Fascinating NY Times piece on victims, religion and the death penalty

On the front page of my Sunday New York Times is this fascinating article about the reactions of a Connecticut congregation to a brutal murder in its midst.  The article is entitled "Death Penalty Tests a Church as It Mourns," and here are some excerpts:

Two years ago, congregants attended midnight vigils outside the prison where Connecticut executed a prisoner for the first time in 45 years.  So it might have been expected that United Methodist congregants would speak out forcefully when a brutal triple murder here in July led to tough new policies against violent criminals across the state and a pledge from prosecutors to seek capital punishment against the defendants.

But the congregation has been largely quiet, not out of indifference, but anguish: the victims were popular and active members of the church — Jennifer Hawke-Petit, 48, and her two daughters, Hayley, 17, and Michaela, 11.  On July 23, two men broke into the family’s home.   Mrs. Hawke-Petit was strangled and her daughters died in a fire that the police say was set by the intruders. 

The killings have not just stunned the congregation, they have spurred quiet debate about how it should respond to the crime and whether it should publicly oppose the punishment that may follow.  It has also caused a few to reassess how they feel about the punishment....

At least two church members say they think that Mrs. Hawke-Petit endorsed an anti-death-penalty document known as a Declaration of Life.  The declaration states a person’s opposition to capital punishment and asks that prosecutors, in the event of the person’s own death in a capital crime, do not seek the death penalty.  The documents have been signed by thousands of people, including Mario M. Cuomo, the former governor of New York, and Martin Sheen, the actor....

Declarations of Life are often kept with a person’s will or other important papers; sometimes they are filed with registries.  But it could not be independently determined whether Mrs. Hawke-Petit had signed one.  Although the family’s home was heavily damaged in the fire and no independent copies have surfaced, death penalty opponents both inside and outside the church have kept trying to find one. A clear indication that Mrs. Hawke-Petit rejected capital punishment could help them mobilize, they say, not only in the Cheshire case but also on behalf of the nine people on Connecticut’s death row in Somers. The opponents also say that a signed declaration by Mrs. Hawke-Petit opposing capital punishment could help counter the public outrage to the killings — outrage that has pressured state officials to suspend parole for violent criminals.

Still, if proof of Mrs. Hawke-Petit’s sentiments did surface, it would have little standing in court, lawyers and prosecutors say.  “Our job is to enforce the law no matter who the victim is or what the victim’s religious beliefs are,” said John A. Connelly, a veteran prosecutor in Waterbury who is not involved in the Cheshire case. “If you started imposing the death penalty based on what the victim’s family felt, it would truly become arbitrary and capricious.”

Some related posts on victims, religion and the death penalty:

October 28, 2007 in Death Penalty Reforms | Permalink | Comments (15) | TrackBack