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December 4, 2009

American Amanda Knox sentenced to 26 year in Italian murder case

I know next to nothing about Italian criminal procedure and sentencing, but I am intrigued to learn that the high-profile murder prosecution of American Amanda Knox concluded today with a conviction and the imposition of a stiff sentence.  Here are detailed from this CNN report:

An Italian jury has found American student Amanda Knox and her Italian boyfriend Raffaele Sollecito guilty in the stabbing death of British exchange student Meredith Kercher.

Knox was sentenced to 26 years in prison and Sollecito was sentenced to 25 years. Both were convicted on all charges except theft and together must pay 5 million euros ($7.4 million) to the victim's family. In addition, Knox must pay 40,000 euros ($60,000) to a man whom she falsely accused of the killing....

Knox and Sollecito will appeal the verdicts, attorneys said. After the verdict, Knox's lawyer, Carlo Della Vedova said his client was upset, but strong.

He would not speculate on the reason for the verdict. "We have to see the motivation," he said, referring to legal paperwork the judge must file within 90 days to explain the jury's reasoning....

Knox and Sollecito have been jailed for more than two years. The trial began in January in Perugia, a university town about 115 miles (185 kilometers) north of Rome.

December 4, 2009 in Celebrity sentencings, Sentencing around the world | Permalink | Comments (35) | TrackBack

"Pastor Offers Sex Offenders A 'Miracle': A New Start"

The title of this post is the headline of this new NPR story about a pastor in Florida who ministers to a community of convicted sex offenders.  Here is how the piece gets started:

More than 20 states, including Florida, limit where convicted sex offenders can live — keeping them away from schools, parks and other places where children congregate.  In Miami, dozens of homeless sex offenders live under a bridge because there are few, if any, options nearby.  But 90 miles away, there's a community dedicated to housing sex offenders.

Here is a segment of the piece providing part of the pastor's interesting back-story:

[Dick] Witherow believes people can change.  At Miracle Park, those on probation attend weekly court-ordered sex therapy sessions.  He also offers anger-management classes and sessions on relationships, inner healing and life skills.

Witherow has authored a book about sex offenders called The Modern Day Leper.  He says he could have worn the same label as the men at Miracle Park.  He was 18 years old when he met his first wife.  She was just 14, and before long she was pregnant.  A judge allowed them to get married but told Witherow he could have been charged with statutory rape.

"If that would have happened in today's society, I would have been charged with sexual battery on a minor, been given anywhere from 10 to 25 years in prison, plus extended probation time after that, and then been labeled a sex offender," he says.   Witherow knows that there are those who argue that's what should have happened.

December 4, 2009 in Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (27) | TrackBack

Sixth Circuit judges duel over Ohio defendant's old lethal injection challenge

This afternoon, the Sixth Circuit officially denied en banc review of a panel's ruling that Kenneth Biros challenge to Ohio's old three-drug lethal injection execution protocol is moot.  That order is available here, and it is worth downloading because of concurring and dissenting opinions coming from Judge Sutton and Moore. 

Perhaps not surprisingly, the concurring opinion from Judge Sutton suggests that Ohio's adoption of a new one-drug lethal injection protocol largely solves the asserted constitutional problems with Ohio's execution method.  Judge Moore's dissent from denial of en banc review takes issue with much of what gets said by Judge Sutton, and she ends her dissent with this assertion: "The rush to execution in this case is totally unwarranted, and the panel’s justification is unsupportable."

Technically, none of this resolves Kenneth Biros' separate challenge to Ohio's new one-drug protocol, and I believe that challenge and a request for a stay is still before the district court.  Nevertheless, this new ruling confirms my sense that the majority of the Sixth Circuit is prepared and perhaps eager to allow Ohio to go forward next week with its new one-drug execution protocol.

UPDATE:  Another dissent by Judge Martin in this matter has now come down the pike and is available here at the very end of the order.  These concluding sentences capture this dissent's basic spirit:

The merits of Ohio’s new protocol are certainly not before us — indeed, that is the fundamental basis for the panel’s decision that Biros’s claims based on the prior protocol are moot — but they inevitably will be, and the concurrence offers a sneak peek on the way that at least two of my colleagues view those merits.  On the whole, I would rather that we all went home today having only made a hash of our mootness jurisprudence rather than having made a hash of our mootness jurisprudence and offering up views on an issue that is not currently, but soon will be, before us.

December 4, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (23) | TrackBack

Interesting take on SCOTUS Porter and Van Hook rulings and "selective empathy"

The New York Times' "Opinionator" blog today has this fascinating piece by Linda Greenhouse titled "Selective Empathy."  Here is how it starts and ends:

In overturning a death sentence this week of a Korean War veteran whose lawyer failed to inform the jury about the man’s combat-related traumatic stress disorder, the Supreme Court drew cheers from veterans’ groups and death-penalty opponents.  But it also raised a question: Is selective empathy better than no empathy at all?...

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today.  It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number.  Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida?  Yes, I am.  Am I concerned about a Supreme Court that dispenses empathy so selectively?  Also yes.

December 4, 2009 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (20) | TrackBack

Distinct headlines report on 50th execution in United States in 2009

Texas completed late yesterday the 50th execution in the US in 2009, and this morning's news headlines reveal the different ways in which local and international media describe this event:

December 4, 2009 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (4) | TrackBack

Repeat offender gets state sentence of 100 years for possessing child porn and pot

While closely following the debates and disparities in federal sentences for downloading child porn, I keep thinking and wondering about whether and how these offenses are being prosecuted and sentenced in state court.  Thus this local article, headlined "Slidell man sentenced to 100 years in prison for possessing child porn," concerning a Louisiana sentencing caught my attention this morning.  Here are the details:

A 43-year-old Slidell man on Thursday received 100 years in prison for possessing child pornography and about a pound of marijuana. State Judge William "Rusty" Knight sentenced Andrew Galatas under stiffer sentencing guidelines after Knight determined that St. Tammany Parish Assistant District Attorney Scott Gardner had sucessfully labeled Galatas a habitual offender.

None of the images was of local children and Galatas had not taken any of them himself, only downloaded them off the Web, authorities said. A 12-member St. Tammany jury had found him guilty on Nov. 10 as charged of the two possession charges.

Although pornography involving juveniles carries a maximum term of 10 years in prison, Galatas has other felony convictions on his record so could be considered a habitual offender. He has molestation of a juvenile and a sexual battery charges from 1997, a possession of stolen property over $500 charge in 1996 and an issuing worthless checks over $100 charge from 1995.

December 4, 2009 in Offender Characteristics, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (17) | TrackBack

December 3, 2009

Biros seeking federal stay to prevent Ohio's use of new one-drug lethal injection protocol

As detailed in this new AP report,which is headlined "Ohio dismemberment killer files new delay request," Kenneth Biros has now "asked a federal judge for an emergency order to stop next week's planned execution, arguing the state is rushing too fast to use its new, one-drug lethal injection process."  Here are the basics:

Kenneth Biros asked U.S. District Court Judge Gregory Frost for the delay in a filing Thursday. The 51-year-old Biros says the untested method announced last month could jeopardize his right to an execution that does not constitute cruel and unusual punishment.  He has also challenged the one-drug method in federal court and also asked a federal appeals court in Cincinnati to delay Tuesday's execution.

The state opposes any delay, and Gov. Ted Strickland on Thursday denied Biros' request for clemency.

Some related posts on Ohio lethal injection issues:

December 3, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (14) | TrackBack

Mike Huckabee continues to defend his clemency actions

As detailed in this new CNN piece, Mike Huckabee continues to aggressively defend his clemency decision-making in the Clemmons case despite the aggressive attacks in the wake of Clemmons horrible crimes last week.  Here is one notable quote from Huckabee after a reporter got in his face about the decision:

"I read a stack this thick," Huckabee said, holding his hands several inches apart. "I looked at the file. Every bit of it. And here was a case where a guy had been given 108 years. Now, if you think a 108-year sentence is an appropriate sentence for a 16-year-old for the crimes he committed, then you should run for governor of Arkansas."

In addition, as reported here on Politico, in an interview on The View, Huckabee has essentially called out chief executives who fail to ever grant clemency and has rightfully invoked the Framers in support of his pro-clemency instincts:

“The easy thing to do, and frankly the politically expedient thing to do, is to say no to every last one of them. That’s the easy thing. And you’ll always cover your rear end if you do that. Because nobody will ever say, ‘Oh you should have let these people out.’

“But the reason we have executive clemency in our system of justice is because there are sentences that are disproportionate, there are times when the justice system failed.  And our Founding Fathers were smart enough to create checks and balances, so that no one branch of government was able to act independently of the other two."

You go, Mike!  It is great to hear Huckabee stick to his principles in discussing clemency even in the wake of the Clemmons tragedy.  (Now I am just disappointed that the person who won the presidency in 2008 is not as vocal and passionate about these matters as this person who failed in his run for the presidency.)

Some recent related posts:

December 3, 2009 in Clemency and Pardons | Permalink | Comments (25) | TrackBack

Deputy AG David Ogden announces resignation

Though I am not sure this is huge news or a huge surprise, criminal justice fans should take note of the fact that, as reported here at The BLT, the "U.S. Justice Department announced this morning that its No. 2 official, Deputy Attorney General David Ogden, is leaving in February after 11 months on the job."  (The official DOJ release is available here.)

Traditionally, the person serving as Deputy AG has chief responsibility for federal criminal justice matters, though AG Holder's previous criminal justice experience entailed a somewhat modified role for Ogden.  It will be interesting to see if Ogden's replacement is someone with a criminal or civil law background, especially since we are still awaiting any official word concerning the sentencing self-study that has been going on within DOJ for nearly a year now.

December 3, 2009 in Who Sentences | Permalink | Comments (0) | TrackBack

Poll finds that one-third of all youths may be involved in child porn . . . er, sexting

This new Wired story, which is headlined "Survey: One-Third of Youths Engage in Sexting," provides the basis for my post title.  Here are the details:

If you think the sexting phenomenon is growing, you’re not imagining it.  According to a new survey, almost one-third of youths admit they’ve engaged in sexting-related activities that involved either e-mailing a photo or video of themselves in the nude or being the recipient of such images.

Of those who admitted to distributing suggestive images of themselves, about 61 percent report that they were pressured by someone to send the image.  Girls were more likely to share a naked image of themselves than boys.  Those who are already sexually active were much more likely to send an image than those who were not sexually active.

Most of the respondents sent the image to a significant other or a person of romantic interest to them.  But 29 percent said they shared naked images of themselves with someone they knew only online.

These are some of the findings of a survey conducted by MTV and the Associated Press as part of a new multi-year campaign the youth-oriented television network launched on Thursday with numerous partners.  The aim of the campaign, dubbed “A Thin Line,” is to educate teens and college-age students about safe and appropriate digital behavior.  The campaign will include a half-hour MTV news special to be broadcast next Valentine’s Day that will focus on sexting as well as a series of public service announcements addressing sexting, harassment, digital prejudice and other topics.

The age group surveyed by MTV and the AP ranged from 14 to 24, so much of the "sexting" discussed in this new survey (which is available here) may not technically qualify as child porn.  But, as is documented in prior posts linked below, in various setting, sexting by teenagers sometimes has generated talk of child porn prosecutions.

Some related "sexting" posts:

December 3, 2009 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Ninth Circuit clarifies limit on restitution award in illegal prostitution case

An interesting little opinion today from the Ninth Circuit in US v. Kuo, No. 08-10314 (9th Cir. Dec. 3, 3009) (available here), documents a limit (and perhaps an unfortunate one) on a federal restitution sentence. Here is how the opinion starts and a key paragraph:

Defendants Fu Sheng Kuo and Shengji Wang appeal the imposition of restitution following their pleas of guilty to violating 18 U.S.C. § 241, Conspiracy to Violate Civil Rights. Defendants “knowingly and willfully conspired to injure, oppress, threaten, and intimidate [Chinese women] recruited for and engaged in prostitution, in the Territory of American Samoa.”  As we explain below, restitution for “lost income,” 18 U.S.C. § 3663, is not the same as disgorgement of all of Defendants’ ill-gotten gains from the victims’ forced prostitution.  Accordingly, we must vacate the restitution order and remand for further proceedings....

We understand the district court’s desire to make Defendants disgorge everything that they gained by cruelly exploiting these victims.  But restitution for a violation of § 241 is limited by the provisions of § 3663; other means (such as fines) are available to accomplish disgorgement.  The victims also may choose to sue Defendants civilly for damages, including but not limited to damages to help compensate them for their extreme pain and suffering.  With regard to restitution, however, the court and the victims are bound to the government’s choice to pursue a civil rights prosecution rather than a human-trafficking prosecution.

December 3, 2009 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

"No Decrease In Death Penalty Approval Rate"

The title of this post is the headline of this notable new NPR piece discussing the absence of significant change in the handling of the federal death penalty under the new Obama Administration.  Here are excerpts:

During the Bush administration, opponents of capital punishment criticized the Justice Department for bringing federal death penalty cases too often and in states that have outlawed execution as a form of punishment.

With Attorney General Eric Holder running the department, many people expected to see a more limited use of the tactic. But so far, Holder is instructing prosecutors to seek the death penalty at roughly the same rate as President Bush's last attorney general.... Holder has authorized death penalty prosecutions at a pace comparable to that of his immediate predecessor, according to the Federal Death Penalty Resource Center. The center helps defense lawyers in capital cases, and it also tracks how often an attorney general authorizes prosecutors to seek the death penalty.

According to the Federal Death Penalty Resource Center, President Bush's first attorney general, John Ashcroft, greenlighted 139 federal death penalty prosecutions out of 641 cases that might have been eligible for capital punishment. That's a 22 percent approval rate. Ashcroft's successor, Alberto Gonzales, authorized prosecutors to seek the death penalty in 81 out of 423 possible cases, for a 19 percent approval rate.

Michael Mukasey approved 21 out of 159 cases, so his approval rate was 13 percent. Holder's approval rate is almost identical to Mukasey's. As of Oct. 3, capital defense lawyers say, Holder had authorized prosecutors to seek the death penalty in 7 cases out of 61 that might have been eligible for capital punishment. That's an 11 percent approval rate.

If you include the five alleged Sept. 11 conspirators headed to New York from Guantanamo for a federal death penalty trial, the rate climbs higher. And Thanksgiving week, Holder instructed prosecutors to seek the death penalty in another four cases....

There is also a question of local standards in death penalty enforcement. Many states have outlawed the death penalty, but even in those states, federal prosecutors can still bring capital charges....

Ashcroft brought federal death penalty cases in states that have outlawed capital punishment. When asked for his view on bringing federal death penalty cases in states that have outlawed capital punishment, Holder said, "I wouldn't say that there's a policy where we're doing it on a state-by-state basis. It really is a case-by-case basis."

December 3, 2009 in Criminal justice in the Obama Administration, Death Penalty Reforms, Who Sentences | Permalink | Comments (3) | TrackBack

Spotlighting that the Clemmons case could make clemencies even rarer

This new CNN piece, which is headlined "Seattle shootings may reduce pardons and commutations," discusses the likely impact of the the controversy over Mike Huckabee's clemency grant to cop killer Maurice Clemmons. Here are snippets:

The ambush-style shootings of four police officers in Seattle allegedly by a suspect whose prison sentence had been commuted likely will affect the way states approach clemency, according to professors, criminologists and attorneys.  "For many governors, the quick response is, 'Huckabee is getting all this attention, so this is the last place I want to be'," said Marc Mauer, executive director of the Sentencing Project, a Washington-based research group that studies sentencing trends. "They are going to be much more reluctant."...

Clemency, the ability to mitigate a sentence, is a power held by the executive branch. The practice provides presidents and governors a final check on the judicial system. They can grant pardons, removing both punishment and guilt. Or they can commute sentences, reducing the time served but leaving the charges intact. Commutations are often granted to sick inmates or prisoners demonstrating good behavior....

After the 1980s, clemency became a target of the tough-on-crime movement, criminologists say. They say it resulted in a decline in pardons and commutations -- a contrast from earlier in the century when some governors were applauded for commuting hundreds of sentences during the Christmas holiday.  "Politically, it's just too risky today to use your discretion to reduce someone's punishment, especially in commutation," said Jefferson Holcomb, a professor of government studies at Appalachian State University.

According to criminologists, one of the most infamous cases that steered some governors and presidents away from issuing commutations involved Willie Horton, a Massachusetts inmate who raped a woman after being released in a weekend furlough program supported by then-Gov. Michael Dukakis.  In 1988, the Republican Party used Horton in ads opposing Dukakis, who was then the Democratic presidential nominee. Political scientists believe the perception that Dukakis was lenient on crime helped undermine his election bid.

In some media outlets -- online and on television -- Clemmons has been dubbed "Huckabee's Willie Horton," raising questions on how the Seattle shootings will affect Huckabee if he decides to run for president in 2012.

The Horton incident also resulted in policy changes in the corrections industry.  Herbert Hoelter, co-founder of National Center on Institutions and Alternatives, a group that helps file petitions for clemencies, says furlough programs became unpopular after the Horton incident, even though studies have shown they can be effective in helping prisoners re-integrate into society.  "Furloughs used to be popular, but trying to get a furlough now is like trying to avoid a root canal," Hoelter said. "It just doesn't happen."

As the prison population continues to grow, some advocacy organizations and experts argue appropriate clemencies can help manage overcrowding. But experts say the high-profile nature of the Seattle shootings will likely be a setback, just as the Horton case was a generation ago.

At the federal level, the Department of Justice's Office of Pardon Attorney shows a decline in federal clemencies. Experts say presidents and governors usually wait until the end of their terms to grant them because of potential controversy. "The incentive is not to do it if you want a political future," said Matthew Eshbaugh-Soha, assistant professor of political science at the University of North Texas. 

Victim advocacy groups often criticize lawmakers and push for harsher sentences when a parolee commits a crime or when a clemency goes awry.  David Davis, executive director at the Advocacy Center for Crime Victims and Children, says when sentences are shortened, some victims and communities fear the person will commit another offense.

"The Clemmons case underscores the importance of using risk assessment tools to inform release decisions at every point in the system from bail to clemency," said Margaret Love, a U.S. pardon attorney under George Bush and Bill Clinton.  

December 3, 2009 in Clemency and Pardons, Who Sentences | Permalink | Comments (5) | TrackBack

December 2, 2009

New federal sentencing data from the US Sentencing Commission

I am pleased to discover that the US Sentencing Commission has some fresh new sentencing data now up on its website.  Here are links to the new data runs, with descriptions from the USSC's website:

Fourth Quarter FY09 Quarterly Sentencing Update:  An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced through the fourth quarter of fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 2, 2009)

Data on Retroactive Application of the Crack Cocaine Amendment:  A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2). These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008. The data in this report represents those motions decided by the courts through November 10, 2009 and for which data was received, coded, and edited by the Commission as of November 17, 2009.

I hope to find the time and energy before too long to pour through this new data and report on anything special that catches my eye.  Readers are welcomed and encouraged, of course, to use the comments to the same end.

December 2, 2009 in Detailed sentencing data, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

A few Justices discussing time on death row again

As noted in this effective post at SCOTUSblog by Lyle Denniston, a few Justices took the time to discuss the time that Cecil Johnson spent on death row before he was executed early Wednesday in Tennessee.   Here are the highlights of Lyle's effective reporting:

“This case deserves our full attention,” wrote Justice John Paul Stevens in an opinion joined by Justice Stephen G. Breyer as the full Court refused to hear a final plea on Johnson’s behalf.  The Stevens opinion added that “this is as compelling a case as I have encountered for addressing the constitutional concerns” over holding an inmate for many years, awaiting execution....

But, as has happened before, the Stevens complaint was met with a sharply worded retort from a colleague, Justice Clarence Thomas.  The Stevens-Breyer opinion is here, the Thomas opinion here....

Whatever the intensity of the verbal debate over the issue, it is clear that there are not four Justices on the Court who are ready to hear it.  None of the other Justices has weighed in on the question.

The last sentence in this SCOTUSblog report is perhaps what's most noteworthy here, especially the fact that new Justice Sotomayor (as well as still sort-of-new CJ Roberts and Justice Alito) did not feel compelled to join on to either opinion.

December 2, 2009 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6) | TrackBack

Ninth Circuit rejects "en masse" plea process for illegal entry cases in Arizona

A Ninth Circuit panel today handed down an interesting ruling that seem to have the potential to upset a whole lot of federal criminal convictions in at least one district. The ruling comes in US v. Roblero-Solis, No. 08-10396 (9th Cir. Dec. 2, 2009) (available here), and here is how the opinion starts:

To accommodate the enormous number of prosecutions for illegal entry into the United States, the district court for the District of Arizona (Tucson) has adopted a procedure for the taking of pleas en masse intended to preserve the rudiments of Fed. R. Crim. P. 11 and the constitution.  We were informed by the government in this case that one magistrate judge is assigned each week full time to the handling of these cases and that in twelve months’ time the court has handled 25,000.  The procedure has been in practice for at least two years and is apparently followed in several other federal courts whose districts border on Mexico.

The problem generated by the massive caseload on the court understandably led the court to adopt a shortcut. Abstractly considered, the shortcut is not only understandable but reasonable. The shortcut, however, does not comply with Rule 11.  We cannot permit this rule to be disregarded in the name of efficiency nor to be violated because it is too demanding for a district court to observe. We act within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure.  Accordingly, on this challenge by an intrepid federal public defender to the Tucson court’s taking of pleas en masse, we hold the procedure to be contrary to Rule 11.  We then assess the harm to the substantial rights of the six defendants before us on this appeal.

December 2, 2009 in Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Latest news on Cameron Todd Willingham case and debate over his guilt

This new AP story provides the latest news on the Texas case which may provide an example of an innocent person who was executed.  Here is how it begins:

David Martin is sickened by the suggestion that Texas executed an innocent man when Cameron Todd Willingham was put to death for setting a fire that killed his three children.

The veteran defense attorney represented Willingham at trial.  He looked at all the evidence.  And he has no doubt that his client deserved to die.  "I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies," Martin said. "I think that he was guilty, that he deserved death and that he got death."

The 2004 execution, however, didn't end questions about the case. Fire investigator experts hired first by The Innocence Project and later by the Texas Forensic Science Commission concluded the original finding of arson was seriously flawed.  Without that finding, prosecutors have admitted it would have been hard to win a death sentence against Willingham.

But the reports have done nothing to change the minds of Martin and four jurors reached by The Associated Press in recent weeks, who all remain convinced Willingham set the blaze 18 years ago that killed 2-year-old Amber and 1-year-old twins Karmon and Kameron.  They never heard from Willingham, who declined to take the stand in his own defense.

Recent related posts:

December 2, 2009 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Might poor re-entry services and risk assessment tools be most to blame for the Clemmons tragedy?

It is not surprising that we all want to place blame somewhere for the horrific and tragic murderous acts by cop-killer Maurice Clemmons.  And, as we have seen this week, plenty of folks are willing (and sometimes eager) to allocate blame in all sorts of direction.  But the more I think about this case and hear details about Mike Huckabee's 2000 clemency decision, the more I want to be sure some blame gets directed toward the poor state of modern re-entry services and the inadequate use of sophisticated risk assessment tools.

This potent local articleabout Clemmons, which is headlined "Four days in May set stage for Sunday's tragedy," highlights the basic facts behind this part of the blame story.  It begins this way:

Over four days in May, Maurice Clemmons' behavior and mental state deteriorated. Family members worried he had gone crazy, that he was verging on collapse.  His conduct became so erratic — punching a sheriff's deputy, forcing relatives to strip naked, according to police reports — that authorities eventually charged him with eight felonies, including one count of child rape.

Still, at the end of those four days, Clemmons wound up on the loose — a delusional man with a propensity for violence, who had managed to escape the grip of authorities.  What happened in those four days — and in the months that followed — reflects a system governed by formula and misguided incentives.

That legal system, both in Arkansas and Washington, failed to account for the entirety of Clemmons' violence and his disdain for the law.  Individual crimes, viewed in isolation, trumped a long and disturbing pattern of warning signs.  As a result, Clemmons walked out of jail Nov. 23.  A week later, he was on the run again — this time accused of shooting and killing four Lakewood police officers in a Parkland coffee shop, in one of the most horrific crimes in Puget Sound history.

These realities reinforce my view that states and the federal government still needs to do a much better job with criminal justice resources and technology in a continuous effort to sort out and monitor which past offenders present the greatest risk to public safety (and which ones do not).  Though we will never be perfect at figuring out who is most dangerous, we can and should do much better and we should respond to this tragedy by making a concerted effort to do better. 

Against this backdrop, I think we also should not be too quick to lay blame principally on Huckabee for what seems to have been an understandable clemency call back in 2000.  We should instead ask hard questions about whether improved re-entry services and risk-assessment tools could have helped ensure that releasing Clemmons back in 2000 still did not necessarily mean he would later have had a chance to commit his final horrific crimes.

Some recent related posts:

December 2, 2009 in Clemency and Pardons, Reentry and community supervision | Permalink | Comments (12) | TrackBack

Execution of possibly mentally retarded defendant in Texas could be 50th execution of 2009

As death penalty gurus know, the last decade has seen a pretty steep decline in the number of executions each year (data here from DPIC); we have gone from a modern high of 98 executions nationwide in 1999 to only 43 executions nationwide in 2008.  But this trend is now shifting direction: with Tennessee having executed Cecil Jonson early this morning (details here), Texas is now in line to make the execution of Bobby Wayne Woods tomorrow the 50th execution of 2009.  Interestingly, as well covered at StandDown Texas, there are reasons to worry that Woods may be mentally retarded and thus should be constitutionally protected from being executed based on the Supreme Court's Atkins ruling.

Though many commentors rightly assert that total national execution numbers are influenced my many factors, it remains notable and noteworthy that we are seeing this uptick in total executions during the first year of a Democratic administration in the White House.  As I have noted in prior posts (see here and here), total executions ramped up significantly during the Clinton Administration, the nation averaged more than 85 executions each year during his second term.  In contrast, total executions went down significantly during the Bush Administration, and the nation has averaged less than 50 executions each year during his the second term. 

I will not make firm predictions concerning what all these numbers and current trends might mean as we move deeper into a new Administration, but I am sure that one could use this data to surprise folks in a death penalty trivia contest.

December 2, 2009 in Death Penalty Reforms, Who Sentences | Permalink | Comments (14) | TrackBack

Orin Kerr gamely (and finally) admits that blogs can be legal scholarship

Way back in 2006, I had the joy of participating in an exciting conference at Harvard Law School entitled "Bloggership: How Blogs Are Transforming Legal Scholarship."  The papers for the conference, which were all absolutely fascinating, can still be accessed here.  In my contribution, which was titled "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs," I made the argument that blogs can be a new and useful form of legal scholarship.  But Orin Kerr was part of a group of "traditionalists" who contended that, though valuable for other purposes, blogs were not (and should not be seen as) a form of legal scholarship.

I remind everyone of this history of blogs as scholarship debate as a prelude to linking to Orin's new post here titled "Rethinking Blogging-as-Scholarship." Here is part of Orin's game admission of a (partial?) change of heart:

Fast forward to the present, and I now think my old self was wrong.  Or at least a bit off.  I now think blogging actually does provide an effective way to present new scholarly ideas in many cases.  In this post, I want to explain why my view has changed.

The main reason my view has changed is that I think the legal academic culture has changed.  In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship.  Exactly why is open to debate. It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles.  Perhaps the new online journal supplements have blurred the traditional paper-vs-on-line distinction.  Whatever the reason, there seems to be more of a convergence between scholarly blogging and “traditional” law review articles today than existed 4 or 5 years ago.  That convergence encourages more scholarly blogging and recognizes its value.

Citations in the Westlaw JLR database are an imperfect metric, but they tend to confirm the change.  Consider the number of times that the phrase “Volokh Conspiracy” and/or “volokh.com” appeared in the database.  (Usually, although not always, these phrases reflect a citation to a particular post appearing in a law journal.)   In 2005, the phrases appeared 24 times in the JLR database. The year 2009 isn’t over yet, with roughly 20–30% of issues schedule for a 2009 publication not yet out and on Westlaw.  Still, the phrases have appeared 108 times so far in the JLR database.  That’s a lot of cites.  Out of curiosity, I did a quick check of my own citations — vain, sure, but at least to an interesting end — and I would estimate that about 25% of the citations to my own work in the last year have been to my blog posts rather than traditional journal articles.

In short, I think we’re seeing a shift in how law professors and legal journal editors view blogs. The old lines have blurred.  Blogs have become a significant part of the scholarly conversation.  I didn’t expect this to happen, at least so soon. And I don’t know whether the trend will continue.  But I think the trend is a real one.

The commentors to Orin's post usefully note that it seems what has really changed is how blogs are perceived as much as whether this medium of expression has changed.  Thus, I will stick to my view that thoughtful blogs always were (or could be) a form of scholarship, just like any other form of communication can be a form of scholarship if deployed effectively to that end.

Though I share Orin's sense that the perception of blogs have evolved in recent years, I have been largely disappointed that blog technology has not advanced much to better enable blogging to serve as a truly sophisticated and effective academic medium.  In my "Scholarship in Action" article, I urged the development of new forms of on-line collaboration like wikis and other means to further improve on-line legal idea development, but such technologies have been slow to take hold.  Instead, society has been drawn to short-attention-span on-line media like Facebook and Twitter, neither of which seem capable of supporting the thoughtful and in-depth development of ideas that are often an essential aspect of true scholarship.

December 2, 2009 in On blogging | Permalink | Comments (11) | TrackBack

December 1, 2009

Child porn on murder victim's computer helps murderer reverse death sentence

A new ruling today from the Supreme Court of Missouri provides yet another bit of evidence concerning the profound significance and potential impact of downloading child porn.  This local news story, headlined "Death sentence overturned in 2002 Cape Girardeau murder," reports the basics:

The Missouri Supreme Court on Tuesday reversed the death sentence for Mark A. Gill, who was convicted of the 2002 murder of Ralph Lape of Cape Girardeau County.

In a unanimous ruling, the court found that Gill's trial attorneys failed to find out about and use information about child pornography on Lape's home computer to rebut testimony that Lape had a good character.  The ruling sends Gill's case back to the trial court, which could bring in a new jury to decide whether to re-impose the death penalty or sentence Gill to life in prison without possibility of parole.

Gill, 39, has been on death row since April 2004, when a New Madrid County jury found him guilty of abducting Lappe from his home, binding him with plastic ties and duct tape and murdering him in a corn field near Portageville, Mo.  A second man, Justin Brown, is serving life in prison without parole for his role in the crime.

The full opinion of the Missouri Supreme Court is available at this link, and here is a section from the start of the opinion:

Among the issues in this case is whether Gill’s counsel provided ineffective assistance of counsel by failing to review carefully the directory of the victim’s computer, which contained child pornography, or by not interviewing or deposing the investigator who prepared the directory.

Although a victim’s character is not typically an issue, when the State introduced evidence of the victim’s good character in the penalty phase, Gill’s counsel should have rebutted the State’s good character evidence with the sexually explicit contents of the victim’s computer. Because his counsel failed to discover the sexually explicit contents of the victim’s computer, Gill’s counsel were ineffective.  This Court affirms the denial of the Rule 29.15 motion as to the guilt phase of the trial, but reverses the denial of the motion as to the penalty phase insofar as Gill had ineffective assistance of counsel for failing to investigate the victim’s computer.  The case is remanded.

December 1, 2009 in Death Penalty Reforms, Who Sentences | Permalink | Comments (17) | TrackBack

"Symposium: Confronting the Costs of Incarceration"

The title of this post is the headliner of the latest issue of the Harvard Law & Policy Review.  Here are the contents (with links) of this very interesting symposium:

December 1, 2009 in Recommended reading, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tiger Woods gets citation, but will not face criminal charges

This updated report from Bloomberg news provides a criminal-justice update on the Tiger Woods car crash brouhaha:

Tiger Woods will be cited for careless driving in the one-car crash last week outside his home and faces no further charges, the Florida Highway Patrol said. Patrol spokeswoman Kim Montes said at a televised news conference that Woods, the world’s No. 1-ranked golfer, would be fined $164 and that there was insufficient evidence to get medical records in the case.  He was treated for facial cuts after the crash.

After issuing the citation to Woods, who will also receive four points on his driving record, the investigation will be closed and police will not pursue criminal charges against the golfer or his wife, Elin, police said.

There is no “testimony or other evidence to support additional charges of any kind,” police said in a statement. “We cannot speak to the existence of any blood evidence, nor are there claims of domestic violence by any individual.”

Though so much has and still will be said about this matter, I will focus on the fact that $164 to Tiger Woods is probably the equivalent of less than a penny to the average American. 

Tiger should consider himself lucky that his offense did not take place in the part of the world where his wife comes from, where a day-fine system is often used for punishing traffic offenses.  As noted in this prior post, Norway earlier this year imposed a fine of over $100,000 on a wealthy man for drunk driving.  Given that Tiger makes roughly $10 million each month, even a day-fine of only one day would mean a fine of over $300,000 rather than just a paltry $164. 

December 1, 2009 in Celebrity sentencings, Criminal Sentences Alternatives, Sentencing around the world | Permalink | Comments (9) | TrackBack

Mike Huckabee brings up race and class when defending clemency for Clemmons

A helpful reader pointed me to this fascinating new piece in Politicoin which Mike Huckabee is quoted defending his clemency decision regarding (now dead) suspected cop killer Maurice Clemmons.  Here are some lengthy excerpts:

Under fire for commuting the sentence of suspected cop-killer Maurice Clemmons, former Arkansas Gov. Mike Huckabee on Tuesday called some of the criticisms “disgusting” and suggested they were attempts to score political points.  “It really does show how sick our society has become that people are more concerned about a campaign three years from now than those grieving families in Washington,” Huckabee said during an interview on Joe Scarborough’s radio show. “It is disgusting, but people use anything as a political weapon.”

Huckabee granted Clemmons, a suspect in the killings of four police officers in Washington state over the weekend, clemency in 2001.  He had served 11 years in prison after being sentenced at the age of 18 to 60 years in prison for burglary and theft and was set to serve the 60 years, in addition to the 48 years he was already serving on five felony counts....

Huckabee has been thrashed in the right-wing blogosphere by leading online conservative voices who have criticized his commutation of Clemmons’ sentence.  In addition, Minnesota GOP Gov. Tim Pawlenty — one of Huckabee’s potential challengers for the GOP presidential nomination in 2012 — said Tuesday that he would not have granted Clemmons clemency if he had been in Huckabee’s position.

“I don't think I've ever voted for clemency,” Pawlenty told conservative radio host Laura Ingraham. “We’ve given out pardons for things after everybody has served out their term, but again, usually for more minor offenses.  But clemency?  Certainly not.  Commutation of sentence?  Certainly not.

Huckabee defended his choice to grant the Arkansas felon clemency by insisting that Clemmons original sentence went too far.  “If he were a white kid from an upper middle class family he would have gotten a lawyer and some counseling,” Huckabee said.  “But because he was a young black kid he got 108 years.”  Huckabee said the sentence was “far disproportionate from any other punishment in Arkansas at the time for a similar crime.”

“It’s a lot easier to be a pundit or a commentator or a blogger than to govern the state and have to make tough decisions,” he said. “People are talking about this from a political standpoint, but what they need to be asking is how did the system break down?”

I am pleased and impressed that Huckabee has brought up the issues of race and class concerning extremely long sentences for juvenile offenders.  Serious students of the criminal justice system know that race and class issues often simmer beneath the surface of many hot-button issues, and it is especially heartening to see a leading GOP figure bring these difficult issues to the surface.

Some recent related posts:

December 1, 2009 in Clemency and Pardons, Race, Class, and Gender, Who Sentences | Permalink | Comments (26) | TrackBack

SL&P honored again by ABA Journal

ABAJ I am pleased and honored to report that this blog has once again been selected as one of the ABA Journal's Blawg 100. The ABAJ's annual list of the best of the blawgosphere appears in the December issue of the magazine, and is available online at this link.  Here is how the ABA Journal kindly describes this blog: "A perennial favorite, Sentencing Law and Policy doesn’t disappoint. Ohio State law prof Douglas Berman offers daily sophisticated reviews of cases in the news and headed for the spotlight."

In addition to thanking the ABA Journal for giving me this honor now for the third year in a row, I also want to thanks all the readers and commentors who keep helping me find the energy (and often the insights) to keep this blog going.  I doubt I would have expected to still be blogging so much five years after Blakely and Booker first made this space so exciting; it is quite clear to me that I now maintain this blog largely because I greatly enjoy the engagement, and learn so much, from readers and commentators concerning the array of topics I discuss. 

December 1, 2009 in On blogging | Permalink | Comments (8) | TrackBack

Ohio gives tour of "death house" as new lethal injection protocol is put in place

As detailed in this local article, which is headlined "State gives tour of 'Death House'," official in Ohio are rolling out the red carpet for folks interested in seeing where and how it will be pioneering a new approach to executions:

State corrections officials gave a behind-the-walls tour of Ohio's Death House on Monday for the third time since executions resumed in 1999. Among those on the tour: Reporters and camera crews from 14 news outlets including West Virginia and the Agence France-Presse

The tour at Southern Ohio Correctional Facility coincided with the state's new plan to use one lethal drug — five grams of thiopental sodium, a powerful anesthetic used during surgery — instead of three different drugs, the most common execution process used nationwide.  Ohio also ditched its requirement to have two intravenous lines hooked to an inmate at once.  One working IV line will now suffice.

Also, Ohio has "a backup plan" in case intravenous drugs don't work — jabbing the thigh or hip muscle of the condemned killer with a shot of midazolam and hydromorphone.  If the inmate is still breathing after five minutes, one authorized executioner can jab him again.  A third time if five more minutes passes and he's still alive.

Ohio becomes the first place internationally to execute someone with a one-drug process of thiopental sodium next week when Kenneth Biros, 51, of Trumbull County is set to die by lethal injection.

Julie Walburn, spokeswoman for the state Department of Rehabilitation and Correction, said Ohio has one execution scheduled each month through June.  The state has executed 32 inmates since capital punishment resumed in 1999.  Walburn said that if a convicted killer is found to not have veins viable for lethal injection, the state will just go to its backup plan and inject him to death with the shot.  The state fully expects litigation over the new process, Walburn said.

As this article hints and as I have noted in this prior post, it is unclear whether the litigation over Ohio's new protocol will get in the way of Ohio's apparent eagerness to go forward with Kenneth Biros's execution next week.

Some related posts on Ohio lethal injection issues:

December 1, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

"Legalizing Drug Criminal Law"

The title of this post is the title of this interesting new piece from Markus Dubber.  Here is the abstract:

This paper investigates American drug criminal law, or rather the American drug penal regime, from the perspectives of two fundamental modes of governance, police and law.  In particular, it inquires into the possibility of drug criminal law as law, rather than as a police action designed to identify and eliminate threats to public welfare.  The topic of this paper thus is not “the legalization of drugs,” whatever that might mean, but the legalization of the drug penal regime.  It is concerned with the possibility of legitimate state action that brings the law power of the state in general, and its penal law power in particular, to bear on persons on account of their interaction, relationship, or association with drugs.

December 1, 2009 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Prior military service as a sentencing mitigator gets a big boost from SCOTUS

Long-time readers know that I have long discussed the notion that prior honorable military service could and perhaps should serve as a reason to reduce a sentence (see, for example, prior posts here and here).  As Lyle Denniston notes here at SCOTUSblog and as a bunch of major media articles also spotlight, the Supreme Court's summary reversal via this per curiam opinion in Porter v. McCollum (08-10537) gives considerable conceptual and constitutional heft to the idea of military service as a mitigating factor at sentence.  This passage from Porter in particular likely can and should be used by many veterans in many sentencing proceedings:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

Because Porter is a death penalty case, some will surely wish to contend that its discussion of "according leniency to veterans" ought only to be consequential in capital cases.  But I do not think the Supreme Court wants this pro-veteran sympathy to be confined only to capital cases, and I am certain that at least some veterans facing sentences other than death will be eager to cite Porter in many other settings.

December 1, 2009 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (12) | TrackBack

November 30, 2009

More details on the Huckabee clemency grant that aided suspected cop killer

PS Ruckman here at Pardon Power and CNN in this new story are adding details to what we now know about the form of clemency granted to Maurice Clemmons, the chief suspect in the fatal shooting of four police officers in Washington state.  Here is some of the new CNN coverage:

Nearly 10 years ago, Maurice Clemmons pledged to make a fresh start. "I come from a very good Christian family and I was raised much better than my actions speak," Clemmons said in a clemency application brief to then-Arkansas Gov. Mike Huckabee in 2000.  "I'm still ashamed to this day for the shame my stupid involvement in these crimes brought upon my family's name."

Clemmons was 27.  He'd spent the past 11 years in an Arkansas prison, convicted of offenses including robbery, burglary, theft and taking a gun to school.  He was facing a 95-year sentence.

A decade later, Clemmons is the subject of an intense manhunt in Washington state, suspected in the deaths of four Lakewood, Washington, police officers who were shot to death Sunday as they met in a coffee shop before starting their shifts.  Authorities have said Clemmons is believed to have entered the Forza Coffee Company and opened fire on the officers with no warning....

In 2000, Clemmons told Huckabee that the crimes occurred when he was 16, had just moved to Arkansas from Seattle and had fallen in with the wrong crowd.  "Where once stood a young 16-year-old misguided fool ... now stands a 27-year-old man, who has learned through the 'school of hard knocks' to appreciate and respect the rights of others," his petition to Huckabee said.

Huckabee commuted Clemmons' sentence in 2000, citing his young age at the time of sentencing, making him eligible for parole.  It was granted in July 2000, after he told Arkansas parole officials that he "just wants the opportunity" and "is not the same person he was when he came in," the documents said....

In his 2000 brief to Huckabee, Clemmons said his mother had died while he had been in prison, providing him with further motivation to turn his life around. "I have never done anything good for God, but I've prayed for him to grant me in his compassion the grace to make a start," he said. "Now, I'm humbly appealing to you for a brand new start."

But after receiving a second chance, Clemmons was apparently unable to stay on the right side of the law, according to documents and authorities in Arkansas and Washington. Arkansas parole board documents show that he was back in prison by September 2001.  The Arkansas Democrat-Gazette reported that he was arrested for aggravated robbery and theft and taken back to prison on a parole violation.  The paper said he was not served with the new arrest warrants for the robbery and theft charges until he was paroled three years later in 2004.  His attorney argued that the charges should be dismissed because too much time had passed, and prosecutors complied.

Huckabee went on to become a 2008 Republican presidential candidate and has not ruled out a second try for the White House in 2012.  In a statement Sunday night, his office said Clemmons' commutation was based on the recommendation of the parole board that determined that he met the conditions for early release.

"He was arrested later for parole violation and taken back to prison to serve his full term, but prosecutors dropped the charges that would have held him," the statement said.  "Should he be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state."

Clemmons is believed to have moved to Washington in 2004.  The Pierce County Sheriff's Department said in a statement that he was recently charged in the assault of a police officer and rape of a child.  County court records posted online show that he spent several months in jail and was released on $150,000 bail Tuesday, days before the shootings.

As these details highlight, this high-profile story could not only impact public and political opinions on clemency grants, but also public and judicial opinions on whether violent juvenile offenders generally should or even constitutionally must be given the opportunity for parole when sentenced to very long prison terms.  Though I doubt the Justices' views in the juve LWOP cases of Graham and Sullivan will be unduly influenced by a single tragic offense, I think many juve offenders who have turned their lives around while in prison will be cursing Maurice Clemmons for some time to come.

November 30, 2009 in Clemency and Pardons, Graham and Sullivan Eighth Amendment cases, Prisons and prisoners, Who Sentences | Permalink | Comments (33) | TrackBack

Significant Ninth Circuit ruling on guideline loss calculations in fraud sentencings

Today a Ninth Circuit panel has issued an important new ruling, and created a circuit split, concerning the calculation of loss under the federal sentencing guidelines for economic frauds.  The ruling comes in US v. Berger, No. 08-50171 (9th Cir. Nov. 30, 2009) (available here), which starts this way:

Defendant-Appellant Richard I. Berger appeals the sentence imposed by the district court following our affirmance of his conviction for twelve counts of bank and securities fraud. Berger argues that, in sentencing him on remand, the district court erred by: (1) not adhering to the civil loss causation principle in finding shareholder loss, as described by the Supreme Court in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 342-48 (2005); and (2) applying an erroneous standard of proof in determining total loss for sentencing enhancement purposes.  While we decline to extend the Dura Pharmaceuticals principle to criminal securities fraud, we conclude that the district court’s loss calculation approach was nevertheless flawed.  Thus, although we conclude that the district court used the correct standard of proof in determining the total loss, we vacate Berger’s sentence and remand to the district court for resentencing.

As the Ninth Circuit panel notes in Berger, the Second and Fifth Circuits have both expressly adopted the civil loss causation principle of Dura Pharmaceuticals in the context of calculating loss for guideline sentencing purposes.  In light of this new Berger ruling and the potential importance of this issue in many white-collar sentencing cases, it may be only a matter of time before the Supreme Court needs to get in the mix on this guideline-calculation federal sentencing matter.

November 30, 2009 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2) | TrackBack

SCOTUS finally grants cert on important "good time" federal sentence calculation issue

As detailed in this SCOTUSblog post, the Supreme Court this morning granted cert in three new cases, two of which involve criminal justice matters.  Though constitutional law fans may be most interested in Renico v. Lett (09-338), which examines double jeopardy limits after a state judge declared a mistrial on certain grounds, sentencing law and policy fans should be most excited by the grant in a long-running debate concerning the calculation of federal good time credits.  Here is SCOTUSblog's effective summary of this technical, but very important, new sentencing case:

In a second new case, the Court will spell out how the federal prison system is to calculate the credits that inmates receive for good conduct while behind bars.  The issue in Barber, et al., v. Thomas (09-5201) is how to interpret the federal law that provides up to 54 days “at the end of each year of the prisoner’s term of imprisonment.”  Bureau of Prisons officials interpret “term of imprisonment” to mean time served, not the sentence imposed — a policy that results in seven fewer days of available credit for each year of the actual sentence, the petition argued.  Lower courts are split on the question.

I know that some federal defenders and others have been buzzing about this issue for a very long time, in part because this matter impact every federal defendant sentenced to more than one year in prison.  And my first instinct is that a ruling for federal defendants could significantly move up release dates for some long-serving federal prisoners.

November 30, 2009 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (11) | TrackBack

SCOTUS summarily reverses Eleventh Circuit's rejection of capital defendant's IAC claim

Continuing its recent trend of doing capital case error-correction through summary reversals, the Supreme Curt this morning issued this per curiam opinion in Porter v. McCollum (08-10537) reinstating a district court's habeas grant on the ground of ineffective assistance of cousel.  The grant had been reversed by the Eleventh Circuit, but here is how the SCOTUS opinion begins reversing the Eleventh Circuit's work:

Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man.  His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce that evidence violated his Sixth Amendment right to counsel and granted his application for a writ of habeas corpus.  The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984).  Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. 

November 30, 2009 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (8) | TrackBack

How will Mike Huckabee clemency grant to suspected cop killer impact crime and justice debates?

As this CNN article explains in its morning coverage of a still-developing crime story, former Arkansas Governor Mike Huckabee has a notable place in backstory of a suspected cop-killer:

The suspect in the fatal shooting of four police officers kept authorities at bay early Monday -- seven hours after a massive manhunt tracked him to a house in an east Seattle neighborhood.

Authorities had been looking for Maurice Clemmons in connection with an "ambush" Sunday morning at a coffee shop near Tacoma in Pierce County. Four officers -- three males, one female -- died in the attack. Authorities early Monday started identifying Clemmons as a suspect, rather than as someone wanted for questioning, a change that they did not explain.

About 8 p.m. Sunday, police received word that Clemmons had holed up in a home in the Leschi neighborhood. Police blocked off streets and asked residents to stay inside with their doors locked.

Clemmons is a convicted criminal with a long rap sheet who had a 95-year prison sentence commuted in 2000 by then-Arkansas Gov. Mike Huckabee, said Pierce County sheriff's spokesman Ed Troyer. Huckabee, a Republican presidential candidate in 2008, is considering a run for president in 2012. "Should [Clemmons] be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state," Huckabee's office said in a statement Sunday night.

It perhaps goes without saying that this high-profile event, like the infamous Willie Horton ads two decades ago, could further contribute to giving all clemency grants a very bad name and likely will make governors and presidents even more skittish about how they use their clemency power. Of course, maybe this is how it should be if governors and presidents are seriously considering granting clemency regularly to defendants with a risk profile that seems as significant as the defendant's in this tragic case.

November 30, 2009 in Clemency and Pardons, Offender Characteristics, Who Sentences | Permalink | Comments (38) | TrackBack

"Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too)"

The title of this post is the headline of this new article by Doug Keller now available via SSRN. Here is the abstract:

This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases—and only in illegal re-entry cases.  The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels.  In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years—costing taxpayers up to $200,000—because of a single prior conviction that could have occurred years or even decades ago. Indeed, a defendant who qualifies for the enhancement will often spend more time in federal prison for his prior conviction (under the guise of being punished for illegal re-entry) than he spent in prison originally for the prior conviction.  No other federal crime is punished based primarily on what the defendant previously did.  And the crimes that trigger the 16-level increase are not the worst of the worst, as simple assault (throwing a rock at a car), minor threats (“Give me $10 or I’ll key your car”), and petty property damage (causing $35 worth of damage to another’s property with a match) can trigger the 16-level increase.  That means that a rock thrower can receive the same enhancement as a terrorist, child molester, murderer, or rapist.

Despite the unusual nature of the enhancement, the Commission has never provided a justification for it, nor is one apparent.  Moreover, the enhancement undercuts Congress’s goal of reducing sentencing disparity and mandate sentences that are disproportionate to the crime of illegal re-entry.  This article argues that this regime must come to an end. While courts were previously powerless to do anything about the Commission’s indiscriminate decision making, that is no longer the case. Since the Supreme Court held that the Guidelines are not mandatory (fixing a constitutional defect), courts must now evaluate the reasonableness of the Guidelines themselves before imposing a sentence.  Even a cursory examination of the prior-conviction enhancements shows that they are unreasonable and should not be followed, even in the typical case.

November 30, 2009 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (4) | TrackBack

Interesting California ruling on juries and medical marijuana

Thanks to How Appealing, I discovered this interesting ruling from one of California's Courts of Appeal concerning a state marijuana prosecution.  As this article in the San Diego Union-Tribune explains, this court "ruled that exactly how much marijuana a medical-marijuana user can legally possess is a question that jurors should decide, and using limits defined in state law is improper." Here's more:

Nathaniel Archer of San Diego was appealing his 2007 convictions for cultivating and possessing marijuana. Archer was a medical-marijuana patient who was arrested by San Diego police with 98 pot plants in his residence and an additional 1.72 pounds of dried marijuana.

He was convicted and sentenced to probation. The appeals court reversed his convictions for possession of the drug, concluding that it was wrong to use limits that the Legislature established in 2003 on the amount of marijuana a patient could have. That law amended the Compassionate Use Act, the voter-approved initiative in 1996 that allowed the medical use of marijuana. Under the state constitution, the Legislature can’t amend an initiative, unless doing so is specifically allowed in the initiative’s language that voters approve.

The Supreme Court heard arguments on that same issue Nov. 3 in an unrelated case, and a ruling is expected soon. Most observers expect the court to strike down the numerical limits as unconstitutional.

In Archer’s case, the Attorney General’s Office conceded that the numerical limits were indeed unconstitutional, the opinion says. It argued his possession conviction should stand because telling jurors to use the numerical limits, as Superior Court Judge Kerry Wells did at Archer’s trial, was not prejudicial.

Justice Patricia Benke, who wrote the opinion, disagreed. Benke said that with both sides conceding the numerical limits were unconstitutional, the only standard that could be applied was whether the amount of marijuana was “reasonably related” to a patient’s medical needs.

Archer testified that he used about half a pound of marijuana per month. It would be up to a jury to decide how much of the 1.7 pounds he possessed — about a three-month supply, Benke calculated — was reasonably related to his medical needs.

Russell Babcock, Archer’s lawyer, said the decision will have an impact on other cases. “This has real ramifications,” Babcock said. “It becomes a case-by-case basis for juries of reasonableness.” Some patients use large amounts of the drug, because they use it in baked products, lotions, oils or other applications.

Alex Kreit, a professor at the Thomas Jefferson School of Law and head of San Diego’s Medical Marijuana Task Force, said that the decision is important because it means people will not be automatically subject to prosecution if they exceed the limits.

November 30, 2009 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7) | TrackBack

November 29, 2009

Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?

As detailed in this prior post, just before Thanksgiving a Sixth Circuit panel removed a stay blocking Ohio's scheduled December 8 execution of Kenneth Biros.  That stay was based on challenges to Ohio's old three-drug lethal injection protocol, which the state has now abandoned in favor of a one-drug protocol.  As detailed in this AP article, Biros on Friday appealed this decision to the full Sixth Circuit, but it is unclear whether Biros is still objecting to the old protocol or whether he is asking the Sixth Circuit to look at Ohio's new one-drug protocol.

This litigation uncertainty in the Biroscase is just one part of the broader questions I have concerning the process and pace of litigation over Ohio's new and novel one-drug lethal injection protocol.  I would think that the change in the state's protocol could give Biros and other death row defendants a basis for bringing new legal challenges in Ohio state courts as well as in federal districtcourt.  And I would also think that litigation focused on the new protocol could take quite some time to resolve in all the different potential trial and appellate levels (including both the Ohio and US Supreme Courts) if any judges have any serious concerns about the development, adoption and implementation of the new protocol. 

And yet, the state seems eager to get its execution chamber humming again ASAP.  When adopting the new protocol, Ohio made clear that it could, and wanted to, move forward with the scheduled December 8 execution of Biros.  In addition, because Ohio has at least one execution scheduled for each of the next five months, I suspect the state will make a serious effort to avoid or reduce any litigation delays.  Even if some judges want to go slow in reviewing Ohio's new protocol, the state's lawyers could try to quickly press appeals to higher courts in an effort to keep pending execution dates.

Because I am not privy to all the legal papers being filed and/or contemplated on all sides, I am disinclined to predict the likely process and pace of litigation over Ohio's new one-drug lethal injection protocol.  But I am hopeful that readers might not be afraid to venture guesses or educated speculation concerning how this issue will play out in the courts in the weeks and months ahead.

Some related posts on Ohio lethal injection issues:

November 29, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (7) | TrackBack

"Federal judges argue for reduced sentences for child-porn convicts"

The title of this post is the headline of this long front-page article in today's Denver Post.  Here are excerpts:

In a nationwide series of hearings, members of the U.S. Sentencing Commission have heard from federal judges seeking reduced sentences for a group of defendants one would think unlikely to get sympathy from the bench: possessors of child pornography.

From New York to Chicago, and recently in Denver, federal judges have testified before the commission, which sets federal punishments, that the current sentencing structure for possessing and viewing child pornography is too severe.

The commission has made reviewing child-pornography sentencing guidelines a priority of its work, which will end in May and could include a change to the guidelines to allow shorter sentences for future offenders.

Judges, for the most part, have based their argument on a belief that some of the defendants who view child pornography have never molested a child or posed a risk to the community and may be better served by treatment rather than prison.

As federal guidelines now stand, the number of images and the way the contraband is obtained enhance prison terms. A first-time offender with no criminal history can be sentenced to 10 years in federal prison....

In 1995, federal defendants convicted of possessing child pornography were sentenced to an average of 15 months in prison, Ilgen's attorney wrote in court documents. By 2007, first-time child-pornography offenders were receiving 102 months in federal prison....

Ernie Allen, president and chief executive of the National Center for Missing and Exploited Children, said some judges don't realize possessing the images revictimizes the children in the photographs and fuels a growing online business. "There are too many judges who continue to provide token sentences for what we consider to be serious crimes," Allen said. "These are images of prepubescent children, growing numbers of them infants and toddlers, and they trade with each other for purposes of arousal and breaking down the inhibitions of other children."

Allen said educating the judiciary about the impact of child pornography on victims is key. "We are not in favor of disproportionate sentencing or disparities, but the problem here is too many judges who simply do not recognize how serious these crimes are," he said.

A few related recent child porn sentencing posts:

November 29, 2009 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack