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March 17, 2010

Notable split Fourth Circuit ruling rejects various challenges to federal death sentence

The majority of a Fourth Circuit panel today in US v. Caro, No. 07-5 (4th Cir. Mar. 17, 2010) (available here), rejects various challenges to a federal death sentence.  And, as detailed in this first paragraph of the dissent by Judge Gregory, at least one Eighth Amendment aspect of the ruling is controversial: 

Today the majority blesses with constitutional imprimatur a death sentence that could only have been imposed after the jury found that Carlos Caro had previously been convicted of relatively minor, nonviolent drug offenses. If his sentence is ultimately carried out, Caro might well be the first, and as yet only, defendant executed after a jury found him death-eligible solely due to this type of nonviolent conduct. To reach this result, the majority applies the wrong test for deciding whether eligibility factors sufficiently narrow the class of defendants who can be executed and renders an important step in capital jurisprudence virtually useless. In doing so, my colleagues uphold statutory provisions that distinguish those who live from those who die in a wholly arbitrary and capricious way. I respectfully dissent.

March 17, 2010 at 11:58 PM | Permalink


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Caro was serving a 30-year sentence for his 'relatively minor' prior offenses when he murdered his cellmate. How can any drug crime that draws a 30-year sentence be considered 'minor'?

Posted by: MikeinCT | Mar 18, 2010 2:45:46 AM

Because few drug "offenses" justify a 30 year sentence in the first place. Given the scale of drug offenses in the US, this judgment potentially opens the floodgate to both enormously costly expansion of the death penalty, and the abandonment of any pretense that the death penalty is reserved for the "worst of the worse"! Any sane system, even in a pro-death penalty state, would be looking for reasons NOT to execute, not the reverse.

Posted by: peter | Mar 18, 2010 5:09:45 AM

Doug, I'll read the opinion closely, but from your summary, this case illustrates the double jeopardy issue discussed in the soon to be released "Kicking Up Misdemeanors" article in FSR.

Capital Murder, following Ring, is a greater substantive offense than what Justice Scalia calls in Sattazahn "murder simpliciter."

The differentiating element between Capital Murder and First Degree murder in this case is a prior conviction. As I hope I explained persuasively in the article, in my view there is a long tradition in Supreme Court precedents that prior convictions can be used to enhance sentence but not to elevate a crime to a higher degree.

Look at Lowenfield v Phelps and see how Louisiana would have handled this case. Lousiana has two sets of aggravators, eligibility ags and death selection ags. Prior convictions are exclusively listed as selection ags.

In my opinion, Caro should not have even been tried for a capital crime because a prior conviction was used as an element of the crime.

I was going to include a discussion of this issue in the FSR article, but thought it was too complicated for the initial presentment of my discussion of the implications of Scalia and Stevens' questions in Johnson

Posted by: bruce cunningham | Mar 18, 2010 9:42:58 AM

I see committing a murder while incarcerated as a great death qualifier, no matter what the offense that landed the person in prison to begin with. Such an act demonstrates that the lessons of confinement are not taking. It will sound somewhat trite but I see it somewhat like video games where you can take one hit without losing but a second hit costs you a life.

Posted by: Soronel Haetir | Mar 18, 2010 11:05:26 AM

To Peter,
From the opinion:
"While still young, Caro began helping his uncles transport illegal drugs into the United States. He was later convicted of possession of marijuana with intent to distribute in April 1988, conspiracy to possess over one hundred kilograms of marijuana with intent to distribute in January 1994, and possession of cocaine with intent to distribute in November 2001.[ 1 ] Following his third conviction, Caro was sentenced to thirty years imprisonment."

These seem fairly serious. As for looking for reasons to not sentence him to death, what reason would be compelling enough to overcome the fact that he had already killed in a maximum security prison while serving a long sentence. What sentence, other than death, would keep him from killing again?

Posted by: MikeinCT | Mar 18, 2010 12:52:20 PM

that would depends on why the killing happened soronel...guy might have just got suck of keeeping the other off his tail for whatever sexual fantacy they had.

as for making the death penalty more used. SO WHAT. lawyers and politicians already set the rules in 2005 with the illegal AWA law that takes 90% of sex offenders from the lowest lvl to the highest without benefit of even a hearing let alone a new charge.

Posted by: rodsmith | Mar 18, 2010 3:17:46 PM

MikeinCT --

Good question. I'll be curious to see if you get an answer. One possible answer is "Better prison security" -- but the people who know that courts are not infallible also know that prisons aren't infallible. So "Better prison security" is just a smokescreen.

rodsmith --

"that would depends on why the killing happened soronel...guy might have just got suck of keeeping the other off his tail for whatever sexual fantacy they had."

Now THAT'S a good reason to kill someone.

Not that Caro even CLAIMED that there were unwanted sexual advances. The claim, I believe, was that the deceased showed disrespect.

What we have here is a lifelong criminal throwing his weight around, not by punching his cellmate in the mouth, but strangling him, from behind. Not that this behavior draws criticism from you. What it draws is excuse-making, even if the excuse goes beyond even the KILLER'S excuse.

Far out!

Posted by: Bill Otis | Mar 18, 2010 4:36:44 PM

Has Judge Gregory ever voted to uphold a death sentence? Anybody? He seems to be on the short end of 2-1 decisions since he joined the court.

Posted by: DaveP | Mar 18, 2010 5:04:31 PM

MikeinCT - you fall trap to vengeance. The question is whether a non-violent offense that on its own does not make someone eligible for the death penalty, should, in the circumstances of the later more serious crime, be used against him to ensure eligibility for the death penalty. If the death penalty has any credibility at all, it must surely be that its eligibility is sufficiently narrow to make it an exceptional punishment. By introducing a punishment enhancement to death eligibility on the basis of a prior, "relatively" minor crime, the basis of the ultimate punishment becomes detached from the principal crime. That cannot be good law. Whether he deserves the ultimate punishment should at least be judged on current legal practice, and not on the tweaking of the law in order to exact vengeance to satisfy the cravings of a DA (or conservative judges) for the death penalty in a particular case.

Posted by: peter | Mar 18, 2010 5:22:59 PM

To Peter,
Once again, the opinion states that he drew a 30 year sentence for three drug-related convictions. Among them was a conspiracy to import over 100 Kilograms of Marijuana and another for selling hard narcotics. This is not minor. Selling a few dime bags of weed or a few hundred dollars worth of cocaine is minor. That was my first point.

My second point was that no other punishment will deter him from killing again. Even LWOP is simply putting him back in the environment where he killed his cellmate. This point is not about vengeance but prevention.

Once again, what punishment do you think is reasonable with a long time criminal who has already killed behind bars?

Posted by: MikeinCT | Mar 18, 2010 6:42:16 PM

MikeinCT --

As you correctly imply, to take the DP off the table for a felon who has committed murder in prison is to give him a license to kill. Why SHOULDN'T he kill the next cellmate (or guard or infirmary worker or rival gang member, etc.) who "dissess" him? If a life sentence is the cap, and he's already serving life, what does he have to lose?

That is the question, or at least one question, abolitionists like peter don't answer.

Posted by: Bill Otis | Mar 19, 2010 2:37:47 AM

MikeinCT & Bill - the answer lies in the appropriate resources, training and management of penal institutions. This issue is not unique to the US; your questions are not new; the answers are not rocket science. It is true that where you have a prison system that is starved of funding because it is politically unpopular to address; is unnecessarily overcrowded because of draconian sentencing policies; where inmate mental health is ignored; etc, etc, it is difficult to have full confidence in the adequacy of control. However, it is that very system that should be central to the focus of your attention. You cannot have a fair and efficient criminal legal system in which the two crucial elements - sentencing and penal provision are improperly resourced and balanced. Look beyond the borders of the US for exemplars of best and appropriate practice.

Posted by: peter | Mar 19, 2010 4:02:06 AM

"Look beyond the borders of the US for exemplars of best and appropriate practice."

Kind of like health care, right?

Posted by: oh please | Mar 19, 2010 9:37:20 AM

peter --

You often point out that courts are not infallible. In this you are correct. What you overlook is that prisons also are not infallible, and will not become infallible no matter how much money is devoted to them. This is because fallibility is part of human life, and does not depend on this year's budget or next year's.

Because prisons will never be infallible, episodes like this Caro case are certain to happen again. So the question will remain: Why SHOULDN'T a guy like Caro kill the next cellmate (or guard or infirmary worker or rival gang member, etc.) who "dissess" him? If a life sentence is the cap, and he's already serving life, what does he have to lose?

If you won't allow for the DP even where the alternative is effectively to grant a particularly violent or clever inmate a license to kill, then the weight of your ideology has overtaken your intelligence.

Posted by: Bill Otis | Mar 19, 2010 4:12:39 PM

Bill - you describe "a potential to kill", and that, in certain circumstances, is within all of us. You should not, in law, transform a potential, into a bestowed verdict of assumed future guilt, to such a degree that death is decreed a necessity. Your criticism of life without the possibility of parole is accepted, but in the terms encompassed by this discussion on the prawfsblawg last year:

(also linked by my name)
This is a wider discussion, but very relevant.

Posted by: peter | Mar 19, 2010 5:10:22 PM

To peter,
It is not a lack of funding. There have been gang related murders by inmates under the highest security(at ADX), on death row(Thomas Knight) and in solitary confinement(Thomas Silverstein). Some people will simply never stop.

Posted by: MikeinCT | Mar 22, 2010 12:01:04 AM

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