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December 12, 2009

Crime and punishment debated in race for Illinois governor

This local article, which is headlined "IL governor hopefuls weigh in on crime, punishment," details that usual debates and common divides concerning crime and punishment  are in play in Illinois as candidates jockey to take over the state's top spot.  Here are excerpts from the article:

When it comes to punishing people for their crimes, there's little agreement among the candidates for Illinois governor. Some want to resume executions, while others support the state's decade-old moratorium on the death penalty.  Some think it's smart to save money by releasing nonviolent inmates from the state's overcrowded prisons; others see that as a threat to public safety.

The two major Democrats, Gov. Pat Quinn and Comptroller Dan Hynes say they support the death penalty but would maintain the moratorium that Republican Gov. George Ryan began in 2000 over concerns about innocent people being put to death, according to their answers on an Associated Press candidate questionnaire.  "It is not conscionable that an innocent person could be put to death in Illinois," Quinn said.  Neither offered details about what additional safeguards are needed.

Most of the seven Republican candidates favor lifting the moratorium, though some would want more safeguards in place first.  One wants the death penalty abolished....

Candidates for governor also differ on letting nonviolent offenders out of prison early to ease the state's growing budget problems.

Quinn defended his administration's plan to release about 1,000 inmates up to a year early to save about $5 million, saying they would be electronically monitored and weren't in prison for crimes against people.  Whitney backs Quinn's plan and said legalizing marijuana and decriminalizing possession of some other narcotics could help reduce jail overcrowding.

But nearly all the Republicans assailed early release, as did the Democratic Hynes, who called it "another example of a piecemeal budgeting" that doesn't consider the "safety and best interests of Illinois communities."

Brady said it's too risky, Ryan called it "inappropriate," and McKenna doesn't like it either. "I am especially troubled that this decision is driven by budget concerns, not public safety priorities," McKenna said....  "Public safety is one of the top priorities of government and not the place to cut spending," Schillerstrom said.

But Proft said he is open to early release programs as long as there are support services available for those the former inmates.  He also said the state needs to look at ways to deal with nonviolent drug offenders.  Walls said the state should reassign 15,000 nonviolent inmates to community-based programs where they can get counseling and skills training.

December 12, 2009 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1) | TrackBack

Eight years in state prison for failure to register as a sex offender

This local story from Ohio, headlined "Sex offender gets 8 years for not registering," reports on the longest prison terms I can recall seeing for merely failing to register as a sex offender.  The story provides only these sketchy details:

A 41-year-old Akron man was sentenced to eight years in prison late Thursday after being found guilty of failing to register as a sex offender. Summit County Common Pleas Judge Lynne Callahan found Clifford Godfrey guilty of failing to register as a sex offender and failing to register a change of address.

The Summit County Prosecutor's office said Godfrey was released from prison on May 14 after serving a term for corruption of a minor.  Upon release, he registered the address where he would be living with the department of corrections.

Under Ohio law, a sex offender must also register his address with the Sheriff's department office. Prosecutors said he did not do this.  A certified letter was sent to the address he provided the department of corrections, but the letter was returned because Godfrey did not live there, prosecutors said.

Godfrey was arrested and sent to Oriana House, but prosecutors said he left there as well. He was arrested a second time for not registering a change of address.

I suspect there may have been some additional aggravating factors involved in this case that might explain why such a long sentence was imposed for just the failure to register.  But I am also wondering whether the recently discovered crimes of long-registered sex offenders Phillip Garrido and Anthony Sowell may be influencing sentencing judges to go even tougher on sex offenders who do not keep up on their registration requirements.

December 12, 2009 in Sex Offender Sentencing | Permalink | Comments (20) | TrackBack

Can downloading of child porn be blamed on post-traumatic stress disorder?

This local story from Virginia, which is headlined "Navy officer gets 40 months for child porn," reflects recent debates over both the federal child porn sentencing guidelines and showing leniency for those who served our country in the military.  Here are the details:

A Navy lieutenant commander who served in Iraq with an elite Riverine unit was sentenced today to 40 months in prison after admitting he downloaded child pornography. John J. Hall blamed his actions in part on post traumatic stress disorder, a claim that the judge in the case took into account in granting leniency.

The U.S. Attorney’s Office asked for a 70-month prison term, but U.S. District Judge Mark S. Davis cited Hall unblemished record and achievements in uniform in sentencing Hall to well below federal recommended guidelines.

Hall pleaded guilty in July to one count of possessing child pornography. He admitted that he downloaded child pornography in the fall of 2006 and then again upon his return from Iraq in 2007. Authorities discovered 288 child porn images on his computer. Hall has just shy of 20 years of service.

Some recent related posts:

December 12, 2009 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (28) | TrackBack

December 11, 2009

Death penalty debate taking center stage in (in)famous Casey Anthony case

This new CNN story, which is headlined "Casey Anthony's lawyer argues against death penalty for client," reports on the notable sentencing issue taking center stage in a high-profile Florida murder case.  Here are excerpts:

A year after the remains of a Florida toddler were discovered, a lawyer for the slain child's mother asked a judge Friday to stop prosecutors from seeking the death penalty against her.

Lawyer Andrea Lyon told Orange County Circuit Court Judge Stan Strickland that the "real reason" prosecutors are seeking the death penalty against Casey Anthony is because they want to "get as biased a jury as they possibly can." Lyon said a jury that is qualified to serve in a death penalty case is more likely to convict defendants.

But prosecutor Jeff Ashton told the court that the state is not seeking the death penalty; rather, the jury and judge will decide whether it is appropriate. Anthony has pleaded not guilty to murder in the death of her 2-year-old daughter, Caylee....

Ashton said the death penalty question is not for the prosecution to answer. "Everyone who is indicted by a grand jury in the state of Florida for the crime of first-degree murder is eligible for the death penalty," he said. "The decision by the prosecutor is simply, should a jury, and ultimately, a judge, be allowed to make this decision?"

Further explaining why he believed the case was eligible for the death penalty, Ashton speculated what jurors might infer from the facts presented to them. He suggested that Caylee's killer may have either given the toddler a substance to knock her unconscious before applying duct tape to her mouth and nose, or had physically restrained her before doing so....

In her argument, the defense attorney noted the toddler's undetermined manner of death, saying that the death penalty infringes on Anthony's constitutional rights. "They cannot be seeking the death penalty in good faith because there is insufficient evidence ... to establish first-degree murder," she argued.

December 11, 2009 in Celebrity sentencings, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

More interesting details on the Vrdolyak appeal in the Seventh Circuit

I noted here yesterday the tough questions being asked by panel of the Seventh Circuit might concerning a lenient political corruption sentence. This new piece in The National Law Journal, which is headlined "Judge Posner Knocks Trial Judge's Judgment in Vrdolyak Appeal," provides more interesting details:

Judge Richard Posner of the 7th Circuit is not someone whom lower court judges want denigrating their rulings. But that's what the oft-cited judge did Thursday to Senior U.S. District Judge Milton Shadur.

The 7th U.S. Circuit Court of Appeals heard oral arguments on Wednesday in prosecutors' appeal of a sentence handed down to longtime (now retired) Chicago alderman Edward R. Vrdolyak. Shadur had sentenced Vrdolyak to five-years probation and a $50,000 fine for his role in an illegal kickback scheme. But the U.S. Attorney's Office in Chicago wanted the maximum 41 months jail time....

"I'm concerned also about a situation where the judge finds no loss -- on rather questionable reasoning -- and says, 'Well, if I'm wrong and there's a loss, it doesn't make any difference,' " Posner said. "Does that reflect a thoughtful sentencing process or just a determination to give a certain sentence regardless?"...

On the letters, Posner said it was "ridiculous" to give them so much weight. "I don't get the letters," Posner said. "Anyone who is prominent can gin up a lot of letters."

Newly seated Judge David Hamilton, who presided in the Southern District of Indiana before being confirmed by the U.S. Senate in November, asked if the sentence was "unreasonable" and wondered what good a remand would do, given the trial judge's flexibility in sentencing.

Posner predicted that Shadur, who took senior status in 1992, wouldn't change his mind. While the government didn't ask for a remand to a different judge, the appeals court can call for one.

The full oral argument is worth listening to, and it is available at this link.  There is one period of questioning by Judge Posner that reveal his limited understanding of usual sentencing procedures, and I think it is Judge Hamilton who jumps in to clarify matters.  Whether and how these issues will find expression in the panel ultimate opinion remains to be seen, but this is a case that is definitely worth watching.

December 11, 2009 in Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (9) | TrackBack

"Judge suggests more sentencing options for war veterans"

The title of this post is the headline of this new article in the Denver Post.  Here is how it starts:

John K. Brownfield Jr. returned from tours of duty in Iraq and Afghanistan abusing alcohol and suffering from mood swings, anxiety, depression and insomnia.  "He was exposed to children being blown to pieces by explosive devices," said his lawyer, Vaughn McClain.  "His job was to go pick up body parts."

Brownfield broke down in U.S. Senior District Judge John L. Kane's courtroom recently as he testified about the turmoil in his life during a hearing about his federal criminal court case.

Brownfield pleaded guilty to bribery of a public official in a case stemming from accusations that during his tenure as a correctional officer at the U.S. Penitentiary in Florence, which began in 2007, two years after his military service, he smuggled tobacco products to at least seven inmates in exchange for $3,500 in bribes.  He faces as much as a year and a day in prison for the crime, court records show.

Kane, who has not issued a sentence in Brownfield's case, in October testified before the U.S. Sentencing Commission, saying he would like to see alternative sentencing options for military veterans. "I presently have cases involving veterans, and I have to ask myself, is this the way we treat our heroes?" Kane said.

This piece does not mention the recent Supreme Court ruling in Porter, but it would seem to give Judge Kane's concerns even more heft.

Some old and new related posts:

December 11, 2009 in Offender Characteristics | Permalink | Comments (17) | TrackBack

Would elimination of elected judges be beneficial for criminal law and sentencing jurisprudence?

The question in the title of this post is prompted by this new piece in The National Law Journal, which is headlined "O'Connor Helps Launch New Initiative Against Judicial Elections." Here are excerpts from the piece:

Since retiring from the high bench, former U.S. Supreme Court Justice Sandra Day O'Connor has repeatedly advocated against the use of elections to pick state judges. Now she is teaming with a center at the University of Denver to try to add some political teeth to her efforts.

On Thursday, the Institute for the Advancement of the American Legal System announced the creation of the O'Connor Judicial Selection Initiative, a project that will assist state level efforts to move away from judicial elections.

The institute, founded in 2006 by former Colorado Supreme Court Justice Rebecca Love Kourlis, will devote a full-time director to the project, backed by the institute's 10-person staff. The judicial selection initiative will also be aided by an 11-member advisory commission, which O'Connor will chair.

O'Connor said the initiative would provide "information and useful support" to states considering a move away from judicial elections. "No other nation in the world elects their judges in popular elections," O'Connor said. "We are alone in that regard."

Calling the initiative a "think-do tank," Kourlis said the initiative was about moving beyond public education efforts. "This is all about, OK, in this particular state, what do we need to do to build a majority," said Kourlis, who is executive director of the institute.

Because I have a bit of a Jacksonian streak in me, I tend not to be quick to assail elected judges.  But I know many folks in the state defense bar point to elected judiciaries as a source of great mischief for the development of criminal justice jurisprudence.  And I suspect that state prosecutors might be among those most eager to see judicial elections retained.  Thus, I would like to hear what commentors think about Justice O'Connor campaign to get rid of judicial campaigns.

December 11, 2009 in Who Sentences | Permalink | Comments (13) | TrackBack

"A gun case or Pandora's box?: Ruling could trigger the unhinging of American culture"

The title of this post is the headline of this amusing commentary in The Washington Times, which makes for a good topic for conversation on a Friday.  Here is how the commentary starts and ends:

Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values. It could lead to anything from court-ordered Obamacare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it....

If the court overrules the Slaughterhouse Cases, the Privileges or Immunities Clause can mean anything courts say it means. The Supreme Court could declare a constitutional right to government-provided health care or "decent" housing, a free college education, a "living wage" or a clean environment, resulting in a court-ordered cap-and-trade system.

It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to abortion, same-sex marriage, obscene material or a child's "right" to a public-school education over his parents' objections. It's because of these social issues, in particular, that the Family Research Council has weighed in on this case.

Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could remake America's economy and culture. That's why several conservative groups have weighed in with a brief asking the court to incorporate the Second Amendment through the Privileges or Immunities Clause but to do so without overruling the Slaughterhouse Cases.

McDonald v. Chicago is as big as it gets. All eyes will be on the Supreme Court early next year.

A few related new and old Second Amendment posts:

December 11, 2009 in Second Amendment issues | Permalink | Comments (5) | TrackBack

New Jersey getting closer to repealing its school-zone mandatory minimums

This local article, which is headlined "Repeal of mandatory minimums in drug cases clears N.J. Senate," provides the latest update on legislative efforts in New Jersey to repeal certain mandatory minimum sentencing provisions. Here are some of the details:

The state Senate voted today to roll back mandatory minimum sentences for some drug offenses in school zones, a victory for supporters seeking treatment rather than jail time for nonviolent drug offenders. New Jersey has not loosened any mandatory minimum sentences in at least two decades, experts who studied the laws said.

"It’s going to save money, it’s going to save lives and it’s going to protect the public," said Sen. Raymond Lesniak (D-Union), the bill’s primary sponsor. "It’s not too often you get that combination." Since 1987, the state has imposed mandatory prison terms of one to three years for people caught dealing drugs within 1,000 feet of a school. Under the proposal approved by the Senate today, judges could reduce the required minimum sentence or impose probation, depending on whether the offense occurred when school was in session, its proximity to school grounds, and if children were present. Sentences could not be reduced if the offense took place on school grounds or if it involved violence or a gun.

Opponents of the bill said it would signal New Jersey is going soft on crime. Sen. Joseph Pennacchio (R-Morris) said it would allow criminals to "peddle their poison" to children. "It’s up to us to make these laws harsher," he said.

The bill’s supporters say mandatory minimums have not protected children and disproportionately punish minorities. New Jersey’s Commission to Review Criminal Sentencing reported that 96 percent of people incarcerated for violations in drug-free school zones are black or Hispanic.

Bennett Barlyn, who was the executive director of the commission, said the proposed law is good for the state. "It demonstrates a new approach by the Legislature in dealing with crime in a more nuanced way," he said. "It more appropriately tailors the punishment to the nature of the offense."

December 11, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

December 10, 2009

New study suggesting Texas executions might lower homicide rates

Thanks to this post at C&C, I saw this piece from USA Today reporting on this notable new study appearing in Criminology.  Here is how the USA Today piece captures the research:

Executions in Texas slightly lower homicide rates there, about five to 10 killings in the year afterwards, suggest criminologists.  The executions also may displace homicides to nearby states, however....

In the study, the team looked at Texas, where about one-third of all executions have occurred nationwide since 1973, and where past researchers have disagreed on deterrent effects.  Because legal decision led to greatly-increased executions in 1994, the researchers looked at cases starting with that year.

"We conclude that evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions," the study concludes.  Based on statistics, about 2.5 fewer murders than would have otherwise took place in Texas in the one to four months after an execution, where the state had 8,511 murders in 2005, according to the FBI.  But the analysis statistics suggest the executions also displaced murders to later months and to other states, lowering the deterrent effect of each execution to 0.5 fewer murders in the next year.

This new piece looks like a must-read for any and everyone seriously interested in arguments about whether the death penalty may save lives.

December 10, 2009 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (30) | TrackBack

Seventh Circuit questions probation sentence for political fraud

As detailed in this local report, which is headlined "Appeals judge rips Vrdolyak sentence: Posner says probation ‘depreciates the significance of the crime’," it sounds like a panel of the Seventh Circuit might be on the verge for finding a lenient sentence substantively unreasonable.  Here are the details:

An appellate judge ripped into the probation sentence of former Chicago Ald. Ed Vrdolyak at a hearing today, saying it “depreciates the significance of the crime.”  Appeals Judge Richard Posner extensively questioned why Vrdolyak got no prison time even though he pleaded guilty to fraud involving the sale of a Gold Coast medical school building.

When he sentenced Vrdolyak, U.S. District Judge Milton Shadur said he gave the 71-year-old probation in part because of an overwhelming number of letters the judge had received offering character references, including one from Bears linebacker Brian Urlacher.  “A sentence like that really depreciates the significance of the crime,” Posner said in court today.  “It just makes the crime seem trivial.”

The comments came during arguments before the Seventh U.S. Circuit Court of Appeals. Assistant U.S. Attorney Christopher Niewoehner, who initially asked that Vrdolyak receive up to 41 months in prison, appealed the sentence.  In court today, Niewoehner asked the appeals judges to send the case back to Shadur for resentencing....

Vrdolyak pleaded guilty to charges stemming from the $15 million sale of a Gold Coast building belonging to the former Chicago Medical School, now called the Rosalind Franklin University of Medicine and Science.

Vrdolyak schemed with school board member Levine to split a $1.5 million kickback from the sale of the building to Smithfield Properties Development. Levine became a cooperating witness in the government's probe of the deal and wore a wire on Vrdolyak. The sale went through, but the kickback never happened once Levine’s cooperation became public. 

December 10, 2009 in Booker in the Circuits, Offender Characteristics, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack

"Senators Express Foolish Belief That All Problem Have Criminal Justice Solution"

The title of this post is my alternative headline for this new article in The National Law Journal, which is actually headlined "Senators Express Impatience With Scope of Fraud Prosecutions."  Here is how it begins:

The federal government's highest-ranking officials for investigating financial fraud defended their work Wednesday, under questioning from U.S. senators who want them to do more about those who might have contributed to the credit crisis and the recession.

Senators of both parties expressed concern that some fraud continues to go unpunished, and Democrats wondered why more corporate executives and directors haven't been charged. "Why haven't we seen more boardroom cases?" asked Sen. Ted Kaufman, D-Del., who was chairing a hearing of the Senate Judiciary Committee.

Assistant Attorney General Lanny Breuer, head of the U.S. Justice Department's Criminal Division, replied that prosecutors need time to build them. The alleged crimes, he said, "took a long time in developing and hatching, and investigating them will take a long time, but they will be brought."

Breuer, testifying one month after a Brooklyn, N.Y., jury acquitted two former Bear Stearns hedge fund managers of fraud, said the case would not deter the Justice Department. "It shows, of course, these are tough cases, but we're going to continue to bring them," said Breuer, a former partner at Covington & Burling in Washington....

None of the officials said his agency needs more resources. In May, President Barack Obama signed legislation appropriating $330 million over two years to the Justice Department, largely for financial fraud. The SEC received $40 million over two years.

The officials were also reticent about supporting other changes in federal law.  Sen. Orrin Hatch, R-Utah, said he thinks some traders are abusing the rules for short-selling stock, but Khuzami, former general counsel for the Americas at Deutsche Bank, would say only that the SEC is studying the issue.  Sen. Al Franken, D-Minn., wondered why there hadn't been prosecutions of ratings agencies that have been accused of improperly valuing securities; Breuer and Khuzami said there are multiple challenges to such cases, including the agencies' claims of First Amendment protection.

This story provides, in my view, a window into many problems with how legislatures respond to societal challenges.  Rather than seriously seej to confront structural and systemic issues that contribute to social problems, legislature are often quick to look to attributed problems to a few bad apples and are eager to call for bad apples to subject to harsh criminal justice sanctions.  Though there certainly are bad apples out there (see, e.g., Bernie Madoff), the criminal justice system can often only deal with the worst symptoms of a broader societal disease.

December 10, 2009 in Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Another thoughtful and notable district court opinion on restitution in child porn sentencing

A helpful reader sent me a copy of a new opinion from the Eastern District of Texas addressing a request for restitution in a child porn downloading case.  The opinion in US v. Paroline, No. 6:08-CR-61 (E.D. Tex. Dec. 7, 2009) (available for download below), denies restitution on a causation theory as explained in its conclusion:

[T]he Court finds that Amy was harmed as a result of Paroline’s conduct and thus, is a “victim” for purposes of section 2259.  However, a restitution award under section 2259 requires that the Government prove by a preponderance of the evidence the amount of the victim’s losses proximately caused by the defendant’s conduct.  Having considered the parties’ oral arguments and written submissions, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images and thus, the Request for Restitution is DENIED.

The body of the Paroline opinion includes this paragraph noting the disparate treatment that this interesting issue has been given in various district courts over the last few months:

Restitution orders entered in possession cases have varied among the various district courts addressing the issue.  On July 9, 2009, a district court in the Northern District of Florida entered a restitution order against a possessor criminal defendant in favor of Amy in the amount of $3,263,758.  United States v. Freeman, No. 3:08-cr-22 (N.D. Fla. filed July 9, 2009).  Similarly, a district court in the Southern District of Florida ordered a possessor criminal defendant to pay $3,680,153 in restitution to Amy without addressing the proximate causation issue.  United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *3–4 (S.D. Fla. Sept. 2, 2009).  On the other hand, a district court in the Northern District of California declined to order restitution because restitution was precluded under the defendant’s plea agreement, but noted that “a restitution order in [an end-user possession] case must be based upon the identification of a specific injury to the victim that was caused by the specific conduct of the defendant.” United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. August 7, 2009).  The Central and Eastern Districts of California have taken a different approach, seemingly adopting a set amount of restitution per defendant convicted of possession of child pornography.  See United States v. Brown, No. 2:08-cr-1435 (C.D. Cal. filed Oct. 5, 2009) (awarding restitution in the amount of $5,000 to each victim); United States v. Ferenci, No. 1:08-cr- 0414, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009) (awarding restitution in the amount of $3,000 to the victim).  In another case, the Government and the defendant stipulated to the amount of restitution because it was “in the best interest of justice, judicial expedience[,] and economy in resolving this novel legal issue.”  United States v. Granato, No. 2:08-cr-198 (D. Nev. filed August 28, 2009).  Most recently, a district court in Maine declined to order restitution finding that the Government “failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction.”  United States v. Berk, — F. Supp. 2d —, No. 08-CR-212-P-S, 2009 WL 3451085, at *8 (D. Me. October 29, 2009).

Download Paroline Memorandum Opinion and Order

December 10, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Interesting sign of the modern high-tech sentencing times

I came across this interesting and telling press release, titled "Leading Strategic Litigation Communication Firm Now Producing Pre-Sentencing Video Biography," when scanning the news this morning. Here are snippets:

Colton Creative, the national leader in strategic litigation communication, announces that the firm is now offering pre-sentencing biography production. Recognized as the leading producer of "day in the life" and "video settlement brochures" in the United States, Colton Creative President Andrew Colton says pre-sentencing mitigation videos is a logical product offering of his company.

"We've been asked several times by clients if we could apply the broadcast network news magazine style we use for our litigation videos to documentaries showing the good things that people facing jail or prison time have accomplished in their lives."...

Colton Creative's pre-sentencing videos are custom made and can run anywhere from a few minutes to half an hour -- following rules set by the specific Judge running the case in question.  They feature interviews with family, friends, and provide an in-depth look at why incarceration is not appropriate.

I think it makes sense for me to file this post in my "white-collar sentencing" archive, as I doubt all that many defendants other than those involved in white-collar offenses are likely to have the resources to hire this firm. 

December 10, 2009 in Offender Characteristics, Technocorrections, White-collar sentencing | Permalink | Comments (2) | TrackBack

December 9, 2009

Can one make a unique constitutional argument against a second execution attempt?

This AP article, which is headlined "Judge: Ohio inmate's execution appeal has limits," reports on the federal hearing conducted today concerning Romell Broom's claim that Ohio should not get a chance to try again to execute him after its failed attempt in September:

An Ohio inmate fighting the state's second attempt to execute him will be limited to a simple argument, a federal judge said Wednesday: Does the state, having failed once, have the legal right to try again? 

Beyond that, a recent court ruling likely limits how much condemned inmate Romell Broom could say about pain he might suffer, said U.S. District Court Judge Gregory Frost.

The 6th U.S. Circuit Court of Appeals ruled Monday that death row inmate Kenneth Biros hadn't presented evidence that the state's new backup execution method could cause severe pain in violation of the U.S. Constitution.  Biros, 51, was executed Tuesday for killing a woman he met at a bar in 1991.  He was the first person put to death in the country with a single drug in a lethal injection.

"We all agree that Mr. Broom suffered some pain from that attempted execution process," Frost said.  "We all agree that the state of Ohio intends to proceed again on a second attempt."  But Frost said he doesn't know what Broom's lawyers could present about Broom's experience that would overcome the 6th Circuit's ruling.  Frost said the appeals court ruling appears to limit Broom to his argument over whether the state has the right to carry out a second execution attempt. Lawyers will submit written arguments and Frost will rule within several weeks....

Following Broom's execution try on Sept. 15, which Frost has called a "debacle," the state changed its execution methods to one intravenous drug with a backup method involving intramuscular injection.

Broom said he was stuck with needles at least 18 times, the pain so intense he cried and screamed out.  His attorneys say it would constitute cruel and unusual punishment for the state to try again and would violate Broom's double jeopardy rights, punishing him twice for the same crime....

The only case similar to the botched Broom execution happened in Louisiana in 1946, when a first attempt to execute Willie Francis did not work. Francis was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional. The court ultimately ruled 5-4 against Francis, and he was put to death in 1947.

I assume the Sixth Circuit ruling which Judge Frost is referencing is this 31-page opinion from the Sixth Circuitdated Monday that walks through and rejects all the claims made by Biros concerning Ohio's new one-drug lethal injection protocol.  Though Judge Frost seems wise to recognize that this Sixth Circuit opinion would make it hard for Broom to attack Ohio's new execution method, I cannot help but wonder if there is perhaps a unique constitutional argument that Broom can make to try to preclude a second execution attempt.  Of course, Willie Francis lost such an argument in the Supreme Court back in 1947, but constitutional doctrines have changed and the Eighth Amendment has evolved a lot over the last six decades.

UPDATE:  This local article about the Broom hearing provides more information about the hearing, suggesting that Judge Frost is focused on the issue set out in the question in the title of this post and also that litigation on this issue will likely drag deep into 2010:

"It seems to me that all that's left is a legal argument as to whether the state can attempt to execute Mr. Broom twice," Frost told attorneys for the state and Broom, who was in court wearing an orange prison jumpsuit and shackles on his wrists and ankles.  Broom's attorneys had suggested calling witnesses to testify about the suffering he endured in the first attempt, but Frost decided that written statements will be sufficient....

Broom's lawsuit argues that a second attempt to take his life would violate his Eighth Amendment protection against cruel and unusual punishment.  Frost gave Broom's attorneys until Jan. 8 to file an amended complaint, which would be followed by the state's response.  The judge could order a trial.

He extended a temporary restraining order that prevents the state from setting an execution date for Broom while the case is being considered.  Timothy Sweeney, one of Broom's attorneys, predicted that the next round of legal motions could take as long as four months.

December 9, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (22) | TrackBack

A reentry perspective on the latest official prisoner data

I received this morning a copy of this notable press release from the National Reentry Resource Center providing a reentry perspective on the latest official prison data.  Here are excerpts:

The new statistics reveal that the total prison population growth rate (.8 percent) was the slowest in eight years; however, "the numbers of state and federal prisoners reached all-time yearend highs in 2008."  BJS estimates that about 1 in every 198 U.S. residents was incarcerated in federal or state prison at the end of 2008.

Prisoners in 2008 reveals that the number of individuals released from federal and state prisons rose to 735,454 (an increase of 2 percent). The bulletin also reports that there was an 8 percent increase in the number of individuals released to the community without any conditions. These numbers underscore the need for reentry resources and technical assistance to state and local service providers.

Probation and Parole in the United States, 2008 provides useful information about the nearly 5.1 million adults under community supervision—about 1 in every 45 adults in the country. (The bulletin on prisoners indicates that although the number of parole violators admitted to state prison increased again in 2008, the rate of that increase was slower than in the previous two years.)

Both bulletins provide detailed appendixes with information about particular states, methodologies, and notes that describe how jurisdictions collect and report data.

Prisoners in 2008 (NCJ-228417), by William J. Sabol, Heather C. West, and Matthew Cooper, can be found here. Probation and Parole in the United States, 2008 (NCJ-228230), by Lauren E. Glaze and Thomas P. Bonczar, can be downloaded here.

December 9, 2009 in Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0) | TrackBack

Huge en banc ruling from Ninth Circuit reversing death sentence for ineffective assistance

I can only imaging what Kent Scheidegger at Crime & Consequences will think about today's en banc ruling from the Ninth Circuit in Pinholster v. Ayers, No. 03-99003 (9th Cir. Dec. 9, 2009) (available here). Here is how the majority opinion starts:

Scott Lynn Pinholster (Pinholster) was sentenced to death after a jury convicted him of double murder with a knife in the course of a home robbery and burglary.  After exhausting his state remedies, Pinholster sought a writ of habeas corpus in federal district court in which he alleged, among other claims, ineffective assistance of counsel at both the guilt and penalty phases of his trial.  Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, in its final ruling, the district court upheld Pinholster’s conviction, but granted habeas relief on his death sentence because the court found that trial counsel’s deficient performance at the penalty phase of the trial unconstitutionally prejudiced Pinholster’s defense.

A three-judge panel of this court affirmed the district court’s guilt phase determination but reversed its grant of habeas relief on the penalty phase.  Pinholster v. Ayers (Pinholster II), 525 F.3d 742 (9th Cir. 2008).  Sitting en banc, we affirm the district court.  Although the denial of Pinholster’s guilt phase ineffective assistance claim was appropriate, his penalty phase ineffective assistance claim warrants habeas relief even when considered under AEDPA’s deferential standards.

The majority then takes 50+ pages to explain its ruling.  In response, Chief Judge Kozinski writes nearly 75 pages of a dissent explaining why he thinks the majority is wrong.  Here is how that opinion concludes:

The trial in this case took place over a quarter century ago.  Pinholster’s lawyers are both dead.  Justice Mosk, who wrote the California Supreme Court’s unanimous opinion in Pinholster’s direct appeal and participated in both of his habeas petitions, is also dead. Pinholster’s two victims are long dead and forgotten; whatever hopes and aspirations they may have had were cut short because they had the misfortune of getting in the way of Pinholster’s greed and anger.

Meanwhile, prison has been good to Pinholster.  He sits in his cell reading Machiavelli, Voltaire “and all the philosophers”, drawing pictures to sell over the internet.  He enjoys the gravitas, authority and mentoring opportunities that come with being an elder in his prison gang, and has surgery performed on his knees at taxpayer expense.  He still stabs people whenever he can, without passion or regret; “it was just business,” he explains.  His conscience doesn’t trouble him about the fact that he took the lives of two fellow human beings; he has never expressed the least remorse for his killings.  The people of California are entitled to put an end to Pinholster’s paid vacation and insist that the punishment lawfully imposed on him be carried out.

I have no doubt that my colleagues sincerely believe they are following the Supreme Court’s directions. Admittedly, the Court has been less than clear in this area. See, e.g., Rompilla, 545 U.S. at 377 (majority), 395 (Kennedy, J., dissenting); Wiggins, 539 U.S. at 514 (majority), 538 (Scalia, J., dissenting); Terry Williams, 529 U.S. at 367 (majority), 416-17 (Rehnquist, J., dissenting).  But I believe it’s been clear enough, and Pinholster’s death sentence must be reinstated. If we do not do it ourselves, it will surely be done for us.

December 9, 2009 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (28) | TrackBack

"New execution method unlikely to gain traction in California"

The title of this post is the headline of this notable (and disappointing) article in today's Los Angeles Times.  Here is how it starts:

An Ohio murderer put to death with the nation's first single-drug lethal injection died swiftly Tuesday, inaugurating an execution method some analysts consider more humane than the three-drug procedure used in California and 33 other states.

But the method used in Ohio is unlikely to gain traction in California, experts say, because of procedural hurdles and persistent concerns about how the drugs -- whatever their number -- are administered to the condemned.

This is significant news because California has the nation's largest death row and because its current lethal injection protocol has been in constitutional purgatory for more than three years.

Some recent related posts about Ohio's new execution method:

December 9, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

The latest (encouraging?) official data on incarceration nation

As reported in this AP piece, the Bureau of Justice Statistics has released its official tally of incarceration numbers. Here is an effective summary of what the new data show:

The U.S. prison population edged up slightly last year, though the number of total inmates dropped in 20 states, including New York, Georgia and Michigan.

Justice Department figures released Tuesday show the overall state and federal prison population stands at a record 1.6 million and is still rising, but the rate of growth is slowing as state authorities look for cheaper ways to mete out justice. If you add in those people in jails — where some are held while they await trial — the total number of people behind bars comes to 2.3 million....

The statistics are the latest evidence that the rapid growth of prisons seen in the 1990s has cooled significantly in this decade. The prison population grew less than 1 percent last year. The previous decade saw the inmate population grow by an annual average of more than 6 percent.

Ram Cnaan, a professor at the University of Pennsylvania's School of Social Policy and Practice, said the slowing trend shows politicians are confronting a painful truth about prisons. "They simply cost too much," said Cnaan. "If you can prevent opening a new prison, you can save lots of money."

Both liberals and conservatives are increasingly searching for alternative sentencing programs, like treatment or monitoring, he said. "It's not ideological, it's pragmatic," said Cnaan. "This is the first time that we have alliances on the right and left on this issue, and it's the money that has forced the issue."

The states with the largest increases in prison population were Pennsylvania, Florida and Arizona, whose one-year increases were all greater than the federal prison system, which grew by 1,662 inmates. Of the three states that lost the most prisoners in 2008, New York shed 2,273, Georgia 1,537 and Michigan 1,495.

Prisoners in 2008 is the official title of the new BJS publication, and it can be accessed at this link.

December 9, 2009 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (18) | TrackBack

December 8, 2009

A few early questions following Ohio's successful one-drug lethal injection execution

As noted here, the state of Ohio today succeeded in completing an execution using a single-drug lethal injection  protocol.  Time will tell if this event proves to be a big turning point or just a blip in the dynamic story of the modern administration of capital punishment in the United States.  But, before we have the benefit of historical hindsight, let me pose a few early post-execution questions:

1.  Does this development prove the death penalty can be effectively improved or that it usually cannot?  In the copious litigation over three-drug lethal injection protocols during the past decade, opponents of this protocol have often suggested the one-drug alternative adopted in Ohio.  The fact that Ohio finally moved to this approach might provide support for the claim that some states are genuinely interested in improving their capital systems.  But the fact that it took so long for even a single state to change course, and the fact that all other states still currently have the three-drug protocol in place, perhaps reveals that Ohio is an exception to the usual death penalty administration rule.

 2.  Does this development really please any who complained vociferously about the old three-drug protocol?  If any of the strenuous opposition to three-drug protocols was really focused only on possible suffering by the condemned while being executed, these opponents should be going out to celebrate tonight.  But I have long suspected that most (if not all) vocal opponents of three-drug lethal injection protocols are categorical opponents of the death penalty more generally, and thus I suspect there will be little celebration within this crowd tonight.

3.  Will Ohio have to deal with any more litigation over its new lethal injection protocol? Ohio has roughly one execution scheduled for each of the next six months.  I suspect that the condemned defendants scheduled to go next to the death chamber in Lucasville will have a hard time getting a stay based on a lethal injection challenge.  But, then again, one should never discount what clever capital defense lawyers can achieve.

4.  Will Ohio now be able to try to "re-execute" Romell Broom?  Ironically, the troublesome veins of condemned inmate Romell Broom, which resulted in Ohio failing when trying its old execution protocol  on him in September, deserve credit for forcing Ohio to adopt its new one-drug approach.  It remains to be seen, however, if Ohio will get to "reward" Broom through another trip to the death chamber.  I believe a hearing is scheduled tomorrow in federal court to consider Broom's claim that it is unconstitutional to try to execute him again now, and I really am chary to predict how this matter might get resolved.

Some related posts on Ohio lethal injection issues:

December 8, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Interesting Heller ruling from intermediate NC appeals court

Though the Supreme Court's Heller ruling does not yet officially apply to the states, this legal reality has not prevented a North Carolina appeals court from handing down this interesting opinion rejecting a Heller-based Second Amendment challenge to a state prosection for felon in possession.  Here is how the ruling in North Carolina v. Whitaker gets started:

Defendant was convicted by a jury of eleven counts of possession of a firearm by a felon. Defendant appeals on various constitutional grounds, primarily arguing that the recent decision of the United States Supreme Court, District of Columbia v. Heller, 554 U.S. ___, 171 L.E. 2d 637 (2008), requires this Court to hold that North Carolina’s law prohibiting possession of firearms by convicted felons violates defendant’s individual right to keep and bear firearms under the Second Amendment of the United States Constitution and Article I, Section 30 of the North Carolina Constitution.  As we conclude that Heller has no effect upon the level of scrutiny which this Court has traditionally applied to regulations of the possession of firearms, we reject defendant’s claim that Heller requires us to hold that N.C. Gen. Stat. § 14- 415.1 is unconstitutional under either the Second Amendment or Article I, Section 30.  We further reject defendant’s contentions that N.C. Gen. Stat. § 14-415.1 is unconstitutional on any other grounds.

December 8, 2009 in Second Amendment issues | Permalink | Comments (6) | TrackBack

Eight former NJ Attorneys General sign open letter supporting repeal of drug mandatories

As detailed in this AP article (which now carries a skewed headline), eight former attorneys general in New Jersey "have put their names behind an effort to repeal mandatory minimum sentences in some nonviolent drug cases."  Here is more:

The eight signed a letter to Gov. Jon Corzine and members of the Legislature today urging passage of a bill giving judges the discretion to waive mandatory minimum sentences....  The ex-prosecutors said mandatory minimum sentences waste money, don't increase public safety and keep offenders from drug treatment.

A helpful reader sent me a copy of the former AGs' letter (which can be downloaded below), and here is a key potent paragraph:

Mandating sentences for nonviolent drug offenders regardless of individual circumstances wastes money and does not increase public safety.  A compelling body of evidence, including outcome data from New Jersey’s own drug courts, indicates that drug treatment can be effective in treating offenders’ addictions, enabling them to lead productive, law-abiding lives.  In short, drug treatment for carefully screened nonviolent offenders can save lives, cut crime and reduce costs.  When this happens we all win.

Download Former NJ AG Letter re drug mandatories

December 8, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (41) | TrackBack

SCOTUS seems prepared (and perhaps eager) to knock down "honest services" fraud

This report from the Los Angeles Times on today's SCOTUS oral arguments concerning "honest services" fraud suggests that some white-collar prosecutions may soon have to look very different:

The Supreme Court justices gave a highly skeptical hearing today to government lawyers defending the key anti-corruption law that makes it a crime to deprive an agency or employer of their "honest services."

The justices took turns suggesting the law is too vague and open-ended and fails to spell out what is a crime. Justice Antonin Scalia called the law a "mush." It is like, he said, a law that says, "Every bad act is a crime." It gives prosecutors and judges a free hand to decide what constitutes a crime but fails to warn ordinary citizens, he said.

During two hours of argument, most of the other justices sounded the same theme. Justices Stephen G. Breyer and Chief Justice John G. Roberts Jr. suggested several times the law might be unconstitutional because it is so vague. "A citizen is supposed to be able to understand the law," Breyer said, yet it is unclear what this law brands a crime.

In recent years, prosecutors have used the law against "honest services fraud" as their favorite weapon against public corruption and, sometimes, corporate fraud. It allows them to win convictions for allegedly corrupt schemes even when they cannot prove a public official stole money or took a bribe.

But the Supreme Court justices signaled today they are inclined to either sharply scale back the law or strike it down entirely. If so, the court's decision could upset or complicate a whole series of corruption cases, including the pending prosecution of former Illinois Gov. Rod Blagojevich for allegedly attempting to sell the Senate seat vacated by President Obama.

Defending the law, Deputy Solicitor General Michael R. Dreeben said it is crucial for prosecuting officials who use their public positions to scheme for their personal benefit. It would "devastate a core area of public corruption" law if the measure were thrown out, he said. Dreeben argued the law can be used fairly and properly to go after officials who take bribes and kickbacks or who profit from an "undisclosed conflict of interest."

With an assist from SCOTUSblog, here are the transcripts for folks who want to read the action for themselves:

Transcripts of oral argument in today’s cases, Black v. United States (08-876) and Weyhrauch v. United States (08-1196), can be found here and here.

December 8, 2009 in White-collar sentencing, Who Sentences | Permalink | Comments (0) | TrackBack

Still awaiting word Reports on Ohio's success with one-drug lethal injection protocol

Ohio was scheduled to go forward with its first execution using its new on-drug protocol this morning at 10am.  But as this AP article notes, one final appeal pushed the scheduled execution time to 11am.  But now the noon hour approaches, and I still await a report that the execution was completed.  And now I need to head off-line (and I think it would be tacky for me to complain about the delay). 

I suspect the AP article linked above will get updated, and I'll report on the reports from the execution chamber when I return on-line this afternoon.

UPDATE:  Here is a segment of this Columbus Dispatch report on the execution itself:

Ohio prisons director Terry Collins said there were "no problems whatsoever" with the new one-drug method. "The process worked as expected," he said.

John Parker, one of Biros' attorneys, said after witnessing the execution that he still has "major concerns" about the intravenous access issue. He said he counted nine times technicians tried before gaining acess for a single IV line in Biros' left arm....

Watching Biros' execution from a room about 10 feet away and separated by glass were Mary Jane Heiss, [the murder victim Tami] Engstrom's mother, and Tom and Debi Heiss, her brother and sister. Mary Jane Heiss was in a wheelchair and had a supply of oxygen. "It's my happy day that I was here to see this execution," she said.

Debi Heiss said Biros' death "went too smooth. I think he should have gone through some pain for what he did." Members of the Heiss family applauded briefly when the time of Biros' death was announced....

Biros was the fourth person to be executed in Ohio this year and the 33rd to die since the state resumed capital punishment in 1999.

December 8, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (28) | TrackBack

Interesting day on tap for SCOTUS

SCOTUSblog effectively reports here on today's big doings at One First Street:

One or more opinions are expected to be announced at 10 a.m.

Today is also “honest services fraud” day.  The Court will hear oral argument in two cases challenging that statute:

10 a.m. - Black v. United States (08-876), involving the application of the statute to private conduct.  Lyle Denniston previews the case here.

11 a.m. – Weyhrauch v. United States (08-1196), involving the proof needed in a state official’s trial for violating the statute. 

A number of folks are sensibly predicting that an opinion in the big campaign finance is likely to come from the Justices this morning.  Though there will surely be lots of (overwought) punditry concerning whatever the Supreme Court does on the campaign finance front, sentencing fans may want to think about whether whatever SCOTUS rules could impact how much crime-and-punishment election rhetoric we see in 2010 and beyond.

UPDATE:  As detailed here at SCOTUSblog, the Supreme Court handed down four opinions this morning, but the two criminal justice cases in the mix are not big deals unless one is a hard-core follower of mootness doctrine or intricate habeas review rules.

December 8, 2009 in White-collar sentencing, Who Sentences | Permalink | Comments (3) | TrackBack

Upstate New York struggling with 100-year-old "unrepentant pedophile"

Here is a local story that would seem like a bawdy joke if it was not so serious.  The piece from The Buffalo News is headlined "Oldest sex offender about to be freed here: 100-year-old pedophile unrepentant awaiting move to E. Side apartment," and here are the details:

Theodore A. Sypnier is a century old, but you wouldn't know it by looking at him or talking with him. He is highly alert, physically active and very capable of living alone and taking care of himself.

Theodore A. Sypnier also is a pedophile. He has been convicted at least twice of molesting children and suspected in other cases over the last six decades in the Town of Tonawanda and Buffalo, and psychologists, police and others say he is likely to molest children again. Therein lies a big problem.

Sypnier has been in prison for most of the last nine years and is soon to be released into a one-room apartment in Buffalo to live on his own.  If ever there was a person who should be permanently confined, even after serving out his prison term, police and experts say, it is Sypnier.

Sypnier, the oldest registered sex offender and parolee in New York State, is unrepentant.  "Those children crawled into bed with me because they were frightened, but there was never any sexual hanky-panky," Sypnier said of the two Town of Tonawanda sisters he was accused of molesting in 1999 while he was baby-sitting them.

He says he loves children and hopes to clear his name so that he can start up a relationship with several great-grandchildren he has never met.  Sypnier contends that he is the victim of a colossal miscarriage of justice, but authorities say he remains a threat to society and will be closely monitored once he leaves a Bailey Avenue halfway house.

Erie County District Attorney Frank A. Sedita III says he has no sympathy for Sypnier, who portrayed himself as a loving grandfather to children he met.  "Mr. Sypnier is the personification of evil and should be removed from civilized society permanently, until the day he dies," Sedita said. "He is an unrepentant child molester who has been doing this or trying to do this for 60 years. He can't be cured.  He's not sick.  He's evil.  He's not old.  He's evil."...

New York does have a civil confinement law that allows the state to confine a sex offender who has completed his sentence if he has an abnormality that makes him likely to commit more sex crimes. But Sypnier was ruled ineligible for lifetime civil confinement, state officials told The Buffalo News....

At 5-feet-5 and 145 pounds, with wisps of white hair and blue eyes, the bespectacled Sypnier brushes aside all of the criminal complaints against him from over the years.  "They were all single mothers with children and wanted my money," he said. "They were blackmailing me, threatening me with jail if I didn't give them money."

December 8, 2009 in Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

December 7, 2009

What would a fully originalist approach to sentencing entail?

The question in the title of this post is prompted by this interesting new piece available via SSRN by Will Tress titled "Unintended Collateral Consequences: Defining Felony in the Early American Republic."  Here is the abstract:

At common law a felony was a crime that led to forfeiture of the convict’s property. In contemporary American law, a felony is usually defined as a crime that is punished by death, or imprisonment in a specially designated place (prison or penitentiary) or for a designated period of time (more than one year).  The attached article examines how that change came about, and fixes the time and place of the re-definition: New York in 1828, during a revision of that state’s statutes.  The choice made by the revisors, a compromise between radical reform and adherence to the common law tradition, is placed in the context of two early 19th century reform movements: Codification of the common law, and the founding of the penitentiaries.

How felony is defined — creating more or fewer felonies — gains greater importance in light of the current concern over the collateral consequences of a felony conviction. Looking at how the line between felonies and lesser crimes was originally drawn can offer insight as to where it should be drawn today.

December 7, 2009 in Recommended reading | Permalink | Comments (6) | TrackBack

All systems go (for now) as Ohio prepares for first one-drug lethal injection

As detailed in this new ABC News story, Ohio is geared up "to execute a convicted killer on Tuesday using an untested method of lethal injection that no other state has ever employed." Here is more:

The planned execution of Kenneth Biros, who was convicted of killing and dismembering Tammy Engstrom in 1991, will mark the first time a lethal single-drug dose of an anesthetic has ever been used on a death row inmate.

On Monday morning, a federal judge denied a request from Biros to delay his execution until attorneys could conduct a review of the new protocol.  U.S. District Judge Gregory L. Frost said that Biros had not demonstrated "at this juncture" that the new protocol is unconstitutional.

But the judge added, "it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio's policies and practice rise to a constitutional error."  Lawyers for Biros are scrambling to appeal the decision.

For anyone who cannot get enough of lethal injection debates, the full 191-page ruling by Judge Frost denying Biros a stay is available at this link

Based on the recent work of the Sixth Circuit in Biros's mooted appeal of the prior injection method, I will be surprised if the Circuit is going to stay matters.  But, of course, then lawyers are likely to ask SCOTUS for a stay, and I am not prepared to predict with confidence what the Justices might do.  But, barring Supreme Court intervention, Ohio may be trail blazing a new chapter of death penalty administration tomorrow morning at 10am.

Some related posts on Ohio lethal injection issues:

UPDATE:  As this morning press report details, "

options have run out for convicted killer Kenneth Biros, who will become the first person in the United States to be executed using a single-drug protocol."  Here's why:

The United States Supreme Court refused to hear a last minute appeal from Biros, 51, who is scheduled to die in Lucasville Tuesday for the 1991 murder and dismemberment of Tami Engstrom of Hubbard.

Earlier, the Sixth Circuit Court of Appeals denied Biros argument that Ohio's new one-drug procedure for executions was untested and could be a violation of the United States Constitution.  In a dissenting opinion, Judge Griffin wrote that the court's denial of Biros' appeal "appears to be a classic rush to judgment."

December 7, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

"Why I commuted Maurice Clemmons's sentence"

The title of this post is the headline of this new commentary authored by former Arkansas Governor Mike Huckabee and published in the Washington Post.  Here are a few notable snippets:

Nine years ago, the name Maurice Clemmons crossed my desk. I commuted his sentence from 108 years to 47 years. I take full responsibility for my actions of nine years ago.  I acted on the facts presented to me in 2000.  If I could have possibly known what Clemmons would do nine years later, I obviously would have made a different decision.  If I only had the same information I had then, I would make the same decision....

If the decision is made to grant any form of clemency (the broad term for a commutation or a full pardon), the governor gives notice of intent, and the file is sent to the prosecutor, judge, law enforcement officials, the attorney general and the secretary of state, as well as to the news media. A period of 30 days is allotted for these officials and the public to weigh in, at which point the final decision is rendered.  Despite news reports, no objections were raised during the 30-day response period for this case.  In fact, only letters of support for Clemmons' commutation were received, including one from the circuit judge.

Between 1,000 and 1,200 requests for some form of clemency came to my desk each and every year of the 10 and a half years I was governor.  An overwhelming majority of the time, I denied the requests.  When I did grant them, it was based on the recommendations of all five of the members of the PPTB, with consideration given to input from public officials and my own personal review of each and every file.

Maurice Clemmons was 16 years old when he committed the crimes of burglary and robbery.  He was sentenced to a total of 108 years in prison, dramatically outside the norm for sentencing for the crimes he committed and the age at which he committed them.

In 2000, the PPTB unanimously recommended that his sentence be commuted after he had already served 11 years in prison.  As per the recommendation, I commuted his sentence to the term of 47 years (still a long sentence in comparison to others for the type of crime he had committed), making him parole eligible.  It did not parole him, as governors do not have that power in Arkansas.  He would have to separately apply for parole and meet the criteria for it.

Three months after the commutation, Clemmons met the criteria for parole and was paroled to supervision in late 2000.  When he violated the terms of his parole, he was returned to prison and should have remained behind bars.  For reasons only the prosecutor can explain, he ended up dropping the charges, allowing Clemmons to leave prison and return to supervised parole....

I take responsibility for my actions, but not for the actions of others, nor for the misinformed words of commentators.

The two professions I value most in our society are soldiers and police officers, with firemen and schoolteachers right behind.  The death of the four officers in Lakewood should never have happened.  I wish Maurice Clemmons' file had never crossed my desk.  But it did.  The decision I made is one I now wish could have been made with a view into the future.  That decision would have been different.

None of this is of any comfort to the families of these police officers, nor should it be.  Their loss is senseless.  No words or deeds by anyone will bring them back to their loved ones.  Our system is not perfect, and neither are those responsible for administering it.  The system and those of us who are supposed to make sure it works sometimes get it wrong.  In this case, we clearly did.

Some recent related posts:

December 7, 2009 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (19) | TrackBack

Supreme Court grants cert on applicability of Booker in sentencing modifications!

I am surprised and pleased to report that the Supreme Court today announced that it will be reviewing another important federal sentencing issue this term: whether and how Booker impacts a court's sentencing authority in sentence modification proceedings.  Here are the basics from this report at SCOTUSblog:

The Court also granted a second case — Dillon v. U.S. (09-6338). That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence. The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding.  Review was granted even though the Court had previously refused to hear the issue in a number of cases.  The U.S. Solicitor General recommended a denial in this case, too.

Other matters will now take me off-line for the next few hours, but I hope to comment on this surprising new sentencing grant later in the day.  In the meantime, I hope commentators will speculate about why SCOTUS took this particular case at this particular time.

UPDATE:  Here is the basic AP coverage of this grant in Dillon, and SCOTUSblog has helpfully posted the Third Circuit's opinion here and the cert petition here.  As DEJ notes in the comments, the defendant in Dillon has good, sypathetic facts, which perhaps explains why the Justices decided that he should get the golden ticket to come to the magical SCOTUS factory with an issue that has been pressed by perhaps hundreds of other defendants.

December 7, 2009 in Booker and Fanfan Commentary, Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (6) | TrackBack

Might modern white-collar sentencing realities impact debates over honest services fraud?

How Appealing links here to lots of major media coverage previewing SCOTUS oral arguments in the three big "honest services" fraud cases to be considered by the Supreme Court this term.  Though sentencing issues do not seem to be formally in play in these cases, I have been thinking lately about whether modern federal sentencing realities for white-collar offenders might be impacting, at least indirectly, how various Justices and commentators think about these matters.

In the old days — I'm not sure whether to call them the good old days or the bad old days — relatively few white-collar offenders could expect significant prison time following a fraud conviction.  (Consider that the most famous white-collar offenders from the end of the old era, Ivan Boesky and Mike Milken, both served less than two years in the federal pen.) 

But now, nearly all white-collar offenders can and should expect to serve some serious prison time, especially if they get convicted after a criminal trial (rather than after pleading guilty).  In the two highest-profile cases that SCOTUS is reviewing, Conrad Black and Jeff Skilling received federal prison terms in excess of 6 and 24 years, respectively.

I have not had a chance to review the submissions in the cases being argued on Tuesday, but I wonder if modern sentencing realities are stressed in any of the briefs.  I certainly will be reviewing the oral argument transcripts in these cases to see if any Justices mention sentencing matters.

December 7, 2009 in Sentences Reconsidered, White-collar sentencing | Permalink | Comments (2) | TrackBack

December 6, 2009

"Ohio inmate to get 1-drug, slower, execution"

The title of this post is the headline of this new AP report noting that Ohio is getting pretty close to trying out its new lethal injection protocol.  Here are some excerpts:

Condemned killer Kenneth Biros could become the first person in the country put to death with a single dose of an intravenous anesthetic instead of the usual — and faster-acting — three-drug process if his execution proceeds Tuesday.

The execution could propel other states to eventually consider the switch, which proponents say ends arguments over unnecessary suffering during injection.  California and Tennessee previously considered then rejected the one-drug approach.

Though the untested method has never been used on an inmate in the United States, one difference is clear: Biros will likely die more slowly than inmates put to death with the three-drug method, which includes a drug that stops the heart.  Lethal injection experts on both sides of the debate over injection say thiopental sodium, which kills by putting people so deeply asleep they stop breathing, will take longer....

Ohio officials contend the single-drug method should end a five-year-old lawsuit against the state that claims injection can cause inmates severe suffering. Lethal injection experts and defense attorneys for death row inmates have said the one-drug method, a single dose of an anesthetic, would not cause pain....

States with active death chambers are keeping an eye on Ohio's switch but have no immediate plans to switch.  Florida, South Carolina, Texas and Virginia are among those keeping the three-drug system for now.  "Virginia's method has been successfully used in over 75 executions and repeatedly been upheld as constitutionally acceptable," state prisons spokesman Larry Traylor said Friday.

States will likely watch Ohio's experience and the court challenges before making a decision, said Richard Dieter, executive director of the Death Penalty Information Center. The U.S. Supreme Court said last year that states would only have to change the three-drug process if an alternative method lessened the possibility of pain. Defense attorneys have also supported the one-drug option, reducing the possibility of legal challenges, Dieter said. If Ohio is successful "in making this transition, and if a few other states follow that lead, I think we will see the majority of states changing to this method of lethal injection," Dieter said.

Biros' attorneys want his execution delayed, saying the new untested method has never been used in "any other civilized country" and would amount to human experimentation.  But the same attorneys earlier advocated for the state to switch to the one-drug method.  The state "could and should shift to a one-drug protocol designed to cause death by means of an overdose of an anesthetic," John Parker, one of Biros' attorneys, said in a court filing last year.

Doctors conducting euthanasia in Europe administer thiopental sodium but also usually add pancuronium bromide.

Some related posts on Ohio lethal injection issues:

December 6, 2009 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Could commentor Supremacy Claus really be . . . Ralph Nader?

I am pretty sure the answer to the question in the title of this post is "no," though this new piece in The Connecticut Law Tribune perhaps suggests that a (too) frequent commentor on this blog and famed activist Ralph Nader have more views in common than one might readily assume.  The article is headlined "Ralph Nader Calls Out Legal Profession," and here is how it begins:

A University of Connecticut School of Law moot courtroom was a fitting setting last month, as consumer activist, politician and lawyer Ralph Nader sought to put the legal profession on trial.

Warrantless eavesdropping, the war in Iraq, corporate wrongdoing -- Nader is a man with quite a few bones to pick. But his chief complaint was that America's lawyers have done too little to stand in the way of government policies he labeled unconstitutional. He noted the strong reaction of Pakistan's lawyers last year when that country's leader threatened the integrity of its justice system. "Did you see our beloved profession up in arms here?" Nader asked. "Lawyers in Pakistan were marching. Where were our lawyers?"

The UConn law school chapters of the ACLU and the National Lawyers Guild brought Nader, a Winsted native, to Hartford. The event drew roughly 100 law students, as Nader urged future jurists to observe a duty beyond zealous representation of their clients. "A lawyer's role is to look out for the administration of justice," he said.

Nader placed much of the blame on America's system of legal education, which he said has spent too much time teaching substantive law and too little encouraging students to think critically about why the law is what it is.

This last sentiment which I have highlighted seems quite similar to a key theme in many of Supremacy Claus's (too) frequent rants.

December 6, 2009 in On blogging | Permalink | Comments (34) | TrackBack

Interesting report on review of capital costs in New Hampshire

This article from the Nashua Telegraph, which is headlined "Death penalty costs N.H. millions: Commission examines capital punishment," discussing an on-going capital study in the Granite State. Here are snippets:

The taxpayer cost to prosecute, defend and sentence William "Stix" Addison for the October 2007 murder of a Manchester police officer has reached nearly $3 million and will grow by half a million dollars a year while he appeals the verdict.  Meanwhile, state prosecutors spent $2.4 million to convict John Brooks of Londonderry for ordering the 2005 murder of a Derry handyman.  The jury turned down the state's bid to apply the death penalty and instead Brooks is now serving serve life in prison without the possibility of parole.

The Commission to Study the Death Penalty in New Hampshire spent Friday examining the costs to carry out capital punishment.  The state hasn't executed anyone since 1939 and it's rare event that two capital murder cases went all the way to the jury in the past two years.

Retired, Superior Court Chief Justice Walter Murphy said gauging the cost to execute someone versus life in prison without parole is a key charge the Legislature gave this commission.  "We appreciate the cost is not driving anything here but I think there is a public perception that somehow the prosecution of someone for a non-capital offense is cheaper," said Murphy who chairs the commission.

The commission learned Friday it will be difficult to come up with all those costs.  Deputy Attorney General Orville "Bud" Fitch said it has cost $1.6 million already for the prosecution in the Addison case.  This does not include costs spent by local and state police to investigate and testify in the matter.  Addison is indigent so the state paid for his defense.

N.H. Public Defender Executive Director Christopher Keating told commissioners that by next June 30 the state will have spent $1.3 million to defend Addison and appeal his verdict to the state Supreme Court. Keating estimates the defense will spend about $400,000 each year on Addison's appeal.  Fitch said the AG's office couldn't give an estimate on what their appeal expenses will be....

The state's death penalty law is narrowly drawn to cover premeditated murders against judges, court officers, members of law enforcement or if it's part of a murder-for-hire scheme or linked to a felony rape, kidnapping or major drug deal.  Murphy said the commission might not be able to answer the cost comparison issue completely.  "It may be that we will come to the conclusion that we can't tell," Murphy said.

December 6, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn

The Buffalo News has two effective new articles about the dynamics that surround the application of the federal sentencing guidelines for child porn offenses.  The start of this first article, which is headlined "Child porn suspect faces risk with trial: Brose case may be 1st to go before jury here," spotlights some of the plea and sentencing realities for child porn offenses in one federal district and nationwide:

If filmmaker Lawrence F. Brose goes to trial and wins an acquittal in his child pornography case, he will accomplish two firsts at Buffalo's federal court. He would be the first person ever arrested in a federal Internet child porn case to go to trial in Buffalo. He also would be the first person to emerge without a felony conviction.

Every other person charged with such crimes in the federal courts of Western New York — including at least 189 men since October 2005 — has either been convicted or still has charges pending, according to court records. A few men got breaks from federal judges, but authorities say most local defendants who admitted to possession of child porn got federal prison terms of at least four to 10 years. If a defendant chooses to go to trial and is convicted of the more serious charge of receiving child porn, he can get up to 20 years.

"We have never had a federal child pornography case go to trial here in Buffalo. Everyone has pleaded guilty," U.S. Attorney Kathleen M. Mehltretter said. "We did have three cases go to jury trials in Rochester, and all three were convicted."

On a national scale, federal trials in such cases are rare and acquittals exceedingly rare. According to the U.S. Justice Department, 7,234 people have been arrested on federal child porn charges since 2006. Of those, 292 defendants went to trial. All but 15 were convicted.

The start of this additional article, which is headlined "Sentencing guidelines may undergo revision," documents the broader on-going debate over the federal sentencing guidelines for child porn downloading:

Many Buffalo defense attorneys have complained for years that men convicted in federal court of looking at child pornography on their computers sometimes get longer prison terms than men convicted in state courts of actually molesting kids. Now, the issue is getting some national attention … from the federal judges who hand out the sentences.

Many federal judges throughout the nation have asked the U.S. Sentencing Commission to revise the advisory sentencing guidelines in cases of child pornography possession. Western New York's chief district judge, Richard J. Arcara, is one of them. "I'm not sure that the guidelines, as they are currently written, assist [judges] in identifying factors that distinguish a defendant who is a threat to the community and likely to re-offend from one who is not," Arcara said in July, while speaking at a public hearing on sentencing issues.

Officials of the Washington-based sentencing commission said they are looking at the suggestions from Arcara and other judges. The commission could propose some changes … which would have to be authorized by Congress … next year. "It is on our priority list for the forthcoming year to take a close look at the child pornography guidelines," Beryl Howell, a member of the sentencing commission, said during another public hearing in Chicago in September.

That word comes as very good news to Thomas J. Eoannou, Mark J. Mahoney and Marianne Mariano, Buffalo defense attorneys who have raised questions about the guidelines for years. "I believe possessing child pornography should be a felony crime, and it is," Eoannou said. "But I think the [federal] sentences for people who only possess it are way out of whack."

Mariano heads the federal public defenders office in Buffalo. She said she is thankful that judges are taking an interest in the issue because child porn offenders aren't a group likely to have many advocates before Congress.

Related issues concerning the debate over the federal guidelines for child porn offenses are also discussed in this local article from Virginia, which is headlined "Chesterfield man gets 17 years for 2nd child-porn conviction."  Among the interesting facets of that local story is the fact that  a member of the "Virginia attorney general's office [served] as a special assistant U.S. attorney" in the federal case.

Also, the Denver Post today has this notable editorial titled "Child porn laws do need review."

A few related recent child porn federal sentencing posts:

December 6, 2009 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack