Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Minimum penalties and maximum penalties

Today's man-bites-dog story comes from Delaware, where the state House, in a fit of rationality, has voted to repeal the minimum-mandatory sentences for drug offenses.  The pros and cons of doing that have been endlessly rehashed, and they're mostly re-rehashed in the article, but what caught my eye is one contention that I haven't seen raised in support of mandatory minimums:  According to Dover Police Chief Jeffrey Horvath, "Mandatory sentencing makes it fair for everyone who can't afford a (high-priced) attorney."  There's certainly an argument to be made that anything which minimizes the disparity in result that affluence plays in the justice system is a good thing, but I've never heard the argument couched in quite this fashion.  Plus, I don't think people doing time for drug offenses for no other reason than that the law requires a judge to give them time are going to draw much solace from the fact that their more well-heeled compatriots are suffering the same fate.

The other sentencing news is with regard to the maximum penalty that the law provides.  As Doug Berman at the Sentencing Law & Policy blog notes, Texas is about the only state in the Union which is still executing people:  it executed Roy Pippen the day that Berman's post appeared, bringing its total for the year to 11.  The total for the US so far in 2007 is 12, and only three other people have been executed anywhere else in the United States in the past five months.

Texas' achievement in this regard is by no means recent.  Since capital punishment was reinstated by Furman in 1976, there have been 1,069 executions in the United States.  Here's a breakdown by state:  Texas has been responsible for 390, or over one-third, of those, almost 300 more than the next closest state.  During the eight years he was governor of the state, George W. Bush signed off on 152 of those executions.

Bush protested during the 2000 debates that he was not "proud" of Texas' record on that score, and had contended earlier that whether to go ahead with an execution was one of the most "profound" decisions he had to make as a governor, and described his procedure for doing so as one where ''I get the facts, weigh them thoughtfully and carefully, and decide."  That description took a hit when the New York Times obtained a copy of his calendar for the years in question and discovered that he'd spent an average of 15 minutes reviewing each case before reaching his determination, which was, in all but one case, to go ahead with the execution.

And then back in 2003, journalist Alan Berlow obtained copies of 62 of the clemency memos submitted to Bush by the Texas attorney general, and wrote an article about it for the Atlantic Monthly.  That article (which you can read here, and a summary of it here) showed that the summaries, which were normally given to Bush the day of the execution, were cursory at best in describing the case, and concentrated almost exclusively on issues of guilt or innocence, rather than questions of mitigation which would be the more logical consideration for clemency.  For example, when Bush approved the death sentence for Terry Washington, the memo advised him of the details of the crime -- the victim had been stabbed 85 times -- but didn't note that Washington was so severely retarded that he had the communication skills of a 7-year-old, and that his counsel, although aware of substantial mitigating evidence, had never presented it at trial, nor even asked the court to appoint a mental health expert to examine Washington.

The attorney general who prepared those 62 memos was Alberto Gonzalez.

So it's more than a little interesting that, as Prof. Berman also notes, there have been so few Federal executions during the Bush presidency, and under the Department of Justice's recent stewardship by Attorney General Alberto GonzelezL only one execution in the past six years, and none in the past four, and with reports that the next one, in April, has been stayed.

Search

Recent Entries

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it