Crime and Consequences Blog

Death Penalty Poll Up North

2012-02-08T16:33:08Z

Among the countries whose legal system is based on English law, only the United States and a few Caribbean countries retain the death penalty. Opponents are fond of saying that the other countries have rejected the death penalty. Yet when you ask the people instead of the governments of those other countries, you get a very different picture. A poll by the Toronto Star and Angus Reid indicates that opinion north of the border is not much different from ours. Richard Brennan has this story in the Star. Angus Reid's summary is here and full report is here.

As with U.S. polls, responses vary greatly with the wording of the question. The most straightforward question asks the actual legislative issue: "As you may know, Canada eliminated the death penalty for murder in July 1976. All things considered, would you support or oppose reinstating the death penalty for murder in Canada?" The ayes swamp the nays, a bit under 2-to-1: 61% yes, 34% no, 5% not sure.

On a somewhat more general question, 8% say the death penalty is "always appropriate," 63% say sometimes, 23% say never, and 5% are not sure. The question does not specify that it is asking about punishment for murder, but presumably nearly all respondents would understand that. Comparing this question with the previous one, it appears that about 11% of people who think the death penalty is sometimes appropriate nonetheless oppose reinstatement, probably persuaded by practical arguments of cost or the possibility of executing an innocent person.

On the badly worded question that implies a single punishment choice for all murders, half of Canadians choose life in prison, as do about half of the people of the United States. "All things considered, which of these two approaches would you prefer as a punishment for convicted murderers in Canada?" LWOP: 50%; death 38%; not sure 12%. (See my prior criticisms of this question here and here.)

Another Reason to Reject International Law

2012-02-07T20:27:36Z

A number of entries on C&C have questioned the growing influence of international law in Supreme Court jurisprudence. This influence has been particularly noteworthy in the Court's criminal law decisions -- ones where outcomes favoring the criminal have been supported by reference to international law (as opposed, say, to the law adopted by the various states). See, e.g., Roper v. Simmons; Graham v. Florida; Atkins v. Virginia. The Court usually disclaims that it finds international law controlling -- while recurring to it again and again. This is not exactly a non-denial denial, but it has its similarities.

A New York Times article by Adam Liptak illustrates more vividly than I could one of the best reasons the Supreme Court -- the ultimate guardian of our Constitution -- should reject, rather than embrace, international law: The law of other nations increasingly and explicitly turns its back on our founding document. Our Constitution, we are told, is too parsimonious with individual rights and entitlements (e.g., education and health care); too hidebound; too old-fashioned and too -- well, just too darn nasty. Must be that pesky American exceptionalism.

One very conspicuous omission from the article is any reference to the death penalty. This is odd, because international law is a distressingly familiar referent in the Court's decisions limiting capital punishment. On the other hand, Mr. Liptak might be onto something the Court seems (or perhaps wants) to miss: That while European law disfavors the death penalty, the majority of the world's people, and its four largest nations (none of them European) all have, and use, capital punishment.

News Scan

2012-02-07T18:19:58Z

Washington Considers Collecting DNA Upon Arrest: Gene Johnson of the Associated Press reports Washington state's Legislature is considering requiring people to give DNA samples when they are arrested for serious crimes, instead of waiting until there is a conviction. Under bills in the Washington Legislature, DNA would be collected from people arrested for almost all felonies or for violating a domestic violence protection order. The State Patrol crime lab could test the DNA and enter the profile created in a nationwide database once a judicial officer declares the arrest supported by probable cause. If a person is not charged or exonerated, they could petition to have their sample and profile destroyed by the crime lab. The crime lab could run a check on the profile first before destroying it.

Arizona Inmates Sue Over Execution Protocol: Amanda Lee Meyers of the Associated Press reports three inmates on Arizona's death row filed a lawsuit in federal court in Arizona Monday against the governor, the state corrections director, and those who conduct executions. The inmates claim the state's new execution protocol violates their constitutional rights, and seek to have two of their upcoming executions delayed. The inmates suing are Robert Henry Moormann, Robert Charles Towery, and Pete Rogovich. Moormann is scheduled to be executed February 26 for killing and dismembering his adoptive mother while on a "compassionate" furlough from prison. Towery is scheduled to be executed March 8 for killing a man while robbing his home. Rogovich, whose executed has not be scheduled, was sentenced to death for a crime spree in which he robbed two business and killed four people.

Cop Killer Formally Sentenced to Death: Sam Cohen of FOX40 News reports Marco Topete was formally sentenced to death by a Yolo County judge Tuesday for killing a Yolo County sheriff's deputy in 2008. The judge also denied the defense's motion seeking a new trial. See previous posts about this case here and here.

Shootings by Sheriff's Deputies Already Surpass Previous Year's High: Kim Minugh of The Sacramento Bee reports Monday was the sixth time this year a Sacramento County sheriff's deputy has fired their gun during a confrontation with a suspect. With six officer-involved shootings just thirty-seven days into 2012, the Sheriff's Department has surpassed the total for 2011 - five - and has matched its average yearly total. Sheriff Scott Jones said he is most concerned that the spike in incidents suggests that "the streets and our community are becoming increasingly hostile and dangerous places for my officers to work."

Time to Reconsider

2012-02-07T02:32:48Z

In Roper v. Simmons, decided seven years ago, the Supreme Court held that the death penalty could never be imposed on a person under 18 years of age.

In doing so, it was in some ways merely ratifying the status quo: The number of juveniles sentenced to death in this country over the last generation was miniscule. Juries were and are more than aware of the reasons the law treats younger offenders more leniently than older ones. What the (bare) majority missed -- or more correctly, ducked -- is the fact that a one-size-fits-all rule for juveniles is no better than a one-size-fits-all rule for anyone else. Foreclosing any historically accepted punishment before one knows the facts of the case to which it is proposed to be applied is irrational. If law means anything, it means judging each case in light of the circumstances it presents.

Will the Court reconsider Roper? Probably not. Should it?

A Missouri teenager who admitted stabbing, strangling and slitting the throat of a young neighbor girl wrote in her journal on the night of the killing that it was an "ahmazing" and "pretty enjoyable" experience -- then headed off to church with a laugh....

"I just f------ killed someone. I strangled them and slit their throat and stabbed them now they're dead. I don't know how to feel atm. It was ahmazing. As soon as you get over the "ohmygawd I can't do this" feeling, it's pretty enjoyable. I'm kinda nervous and shaky though right now. Kay, I gotta go to church now...lol."

The whole appalling story is here. The victim was a nine year-old, Elizabeth Olten, whose mistake was living nearby.

News Scan

2012-02-06T18:00:54Z

Second Death Sentence in South Dakota Prison Guard Killing: The Associated Press reports Rodney Berget was sentenced to death Monday in South Dakota for killing prison guard Ronald "R.J." Johnson during a failed escape attempt. His accomplice, Eric Robert, was also sentenced to death in October for the killing. Berget is currently serving life sentences for attempted murder and kidnapping, and prosecutors said he had tried to escape several times before. Prosecutors said Berget and Robert bashed Johnson's head with a pipe and covered his mouth with plastic wrap. Robert then put on the guard's uniform and Berget hid inside a large box that Robert carted with him toward the prison gate before both inmates were apprehended. South Dakota Attorney General Marty Jackley said Berget's execution should take place in six to eight months. Robert's execution is scheduled for May.

Norway Mass Killer Says He Deserves Medal of Honor: Bjoern H. Amland of the Associated Press reports Anders Behring Breivik, who confessed to a bombing and mass shooting that killed 77 people in Norway last July, told a court Monday he deserves a medal of honor and demanded to be set free. This was his last scheduled detention hearing before the trial begins in April. Breivik will remain in custody until then. He faces up to 21 years in prison for terror charges. If he is found criminally insane, he will be sent to psychiatric care. His defense lawyer suggested Breivik's comments on Monday were a preview for what's to come in the trial.

Judge Temporarily Blocks Mississippi Execution: The Associated Press reports a federal judge on Monday temporarily blocked the execution of Edwin Hart Turner in Mississippi. Turner was scheduled to be executed Wednesday for killing two men during a gas station robbery spree in 1995. His attorney's asked for the order, arguing that Turner was prevented from getting medical tests that could prove he is mentally ill - a diagnosis they hope will sway the U.S. Supreme Court to block Turner's execution and the execution of others with mental illnesses. Turner's lawyers also want the tests done so the information could be included as part of a clemency petition to Mississippi Governor Phil Bryant. U.S. District Judge Carlton Reeves in Jackson blocked the execution until February 20. Turner's lawyers can seek a longer stay in the meantime.

Is This Protected by Heller and McDonald?

2012-02-05T23:20:48Z

OK, it's only slightly related to criminal law, but, by God, how I miss college life.

Felon Voting Podcast

2012-02-03T21:59:32Z

The Federalist Society's teleforum on felon voting from last August is now available as podcast here. Participants are Nancy Abudu of the ACLU and Hans von Spakovsky of the Heritage Foundation. Roger Clegg of the Center for Equal Opportunity moderates.

17-year-old Murderers

2012-02-03T19:42:52Z

A person who commits murder at the age of 17 years, 364 days is exempt from the death penalty, regardless of how horrible the crime or how many people he kills.

Should that one day further exempt the murderer from a true life-without-parole sentence, holding out the possibility of parole regardless of the crime? Should the 17-year-old get a double discount for murder compared to the 18-year-old? Some people think so. California State Senator Leland Yee is trying again. He has put cosmetic changes on his bill, SB9, but it still amounts to a possibility of parole.

Crime Victims Action Alliance has this update, with links to contact Assembly members.

Note: California already exempts under-16s, so people who say this bill is about "children" are using an ambiguous term in an intentionally deceptive way. [Try standing in front of a class of high school juniors and saying, "Good morning, children." See what kind of reaction you get.]

April SCOTUS Argument Calendar

2012-02-03T19:20:26Z

The calendar for April arguments in the US Supreme Court is available here. There are no state criminal cases or state-prisoner habeas cases on the docket. Should we be grateful for "salutary neglect"?

On Tuesday, April 17, the Court hears argument on the retroactivity of the rollback of the crack v. powder cocaine sentencing ratio. There are a number of prior posts on this blog on the subject, including

Obama Signs Reagan Version of Crack Sentencing

The Crack Ratio

Crack Retroactivity and Plata

Crack Sentencing

The big case in terms of press coverage will be the Arizona immigration case on Wednesday, April 25.

News Scan

2012-02-03T18:06:43Z

Loughner Still Not Competent to Stand Trial: Michael Kiefer of The Arizona Republic reports U.S. District Judge Larry Burns wrote in a court order Thursday that a psychologist says Jared Loughner is still not mentally competent to stand trial. Diagnosed as a schizophrenic, Loughner has been confined to the federal prison hospital in Missouri since March, where he will likely remain for four more months. Loughner's principal psychologist said she believes he has made progress and can eventually be restored to competence. Burns ordered a hearing take place Monday in San Diego to discuss the matter with the defense attorneys and federal prosecutors. Loughner, 23, is charged with 49 felonies stemming from the January 8, 2011 shooting rampage in Tuscon, where six people were killed and thirteen others wounded.

CA Supreme Court Overturns Death Sentence for Man Who Burned Woman Over $100: Maura Dolan of the Los Angeles Times reports the California Supreme Court Thursday voted unanimously to overturn the death sentence for Gary Galen Brents, ruling that Orange County Superior Court Judge John J. Ryan failed to properly instruct the jury. Brents was convicted of the 1995 murder of Kelly Gordon. Gordon had agreed to sell $100 worth of methamphetamine for Brents. When he went to collect and she didn't have the drugs or money, Brents tried to suffocate Gordon, and choked her. He then put her in the trunk of a car, drove to a remote location, poured gasoline on her and the outside of the car, and lit the gasoline on fire. Trapped in the trunk, Gordon burned to death. The Orange County district attorney's office is reviewing the ruling. The opinion is here.

30 Bales of Marijuana Found Floating in Pacific Ocean: Robert J. Lopez of the Los Angeles Times reports 30 bales of marijuana, estimated to be worth about $500,000 on the street, were found floating in the waters off Marina Del Rey, CA. The bales were spotted by a boater Wednesday and recovered by the Los Angeles County Sheriff's Department with the help of lifeguards. The bales were turned over to the U.S. Customs and Border Protection Agency.

A Sentence "Increase" in Cambodia

2012-02-03T17:14:09Z

Sopheng Cheang reports for AP:

A U.N.-backed tribunal's Supreme Court lengthened the sentence for the Khmer Rouge's chief jailer to life imprisonment on Friday because of his "shocking and heinous" crimes against the Cambodian people.
The surprise ruling increased a lower court's 19-year sentence for Kaing Guek Eav, known as Duch. Prosecutors had appealed the sentence as too lenient, and outraged survivors had feared the man who oversaw the torture and killing of thousands could one day walk free.

The latter possibility was actually quite remote, given that "Duch" is 69 years old and highly unlikely to survive 19 years in prison. Even so, I suppose the sentence increase is useful as a symbol.

The sentence remains inadequate, though. Due to the U.N.'s involvement, the tribunal is incapable of imposing the death penalty, the only punishment that comes close to sufficient for this man's unspeakable crimes.

The world's worst criminals can be adequately punished, as Saddam Hussein was, only when the Europeans, the U.N., and the International Criminal Court are kept out of the decision. That is regrettable, but that is the way it is.

News Scan

2012-02-02T17:13:12Z

After 44 Arrests and No Convictions, Man Now Faces 32 Years: Nathan Gorenstein from the Philadelphia Inquirer reports John Gassew, 25, who avoided any sort of a conviction in state courts despite having been arrested 44 times, will now serve at least 32 years in federal prison. The primary reason for the previous lack of convictions is that victims failed to appear in court to testify. In the first of two robberies he was convicted for, Gassew held up a 7-Eleven and beat a store clerk with a .45-caliber semiautomatic pistol. Gassew then proceeded to drive a stolen truck into a tree, drawing police attention, and fled the scene, leaving his gun behind in the vehicle. After two days of jury deliberation, Gassew was found guilty of two counts of robbery and two counts of violating the Hobbs Act by carrying a firearm during the commission of a violent crime. Federal prosecutors have used the Hobbs Act to charge robbers who hit gas stations, convenience stores, and other businesses that can be shown to be involved in interstate commerce. He will be formally sentenced in May.

Mississippi Supreme Court to Take Pardons Case: The Associated Press reports the Mississippi Supreme Court said Wednesday it will take up the legal challenge to the pardons issued by outgoing Governor Haley Barbour. State Attorney General Jim Hood wants to invalidate dozens of the 198 pardons Barbour handed out. Hood says only about two dozen of those pardoned followed the Mississippi Constitution's requirement to publish notice about their reprieve in their local newspapers for 30 days. Ten of the people who received full pardons were still incarcerated when they received the reprieves. "It's a core question of separation of powers between the branches of government. It's an important question that the Supreme Court has to answer," said Matt Steffey, a constitutional law professor at Mississippi College. The state Supreme Court set a hearing for February 9.

Teacher Charged With 23 Counts of Lewd Conduct in Classroom Keeps Benefits: Howard Blume of the Los Angeles Times reports former elementary school teacher Mark Berndt, who is charged with 23 counts of lewd conduct in his classroom including spoon-feeding his semen to blind-folded children, will retain his life-time health benefits from his school district in addition to his pension because he technically resigned and was never officially fired. Vivian Ekchian, chief human resources officer for L.A. Unified, says the district is looking at its options for trying to rescind those benefits if Berndt is convicted. His retirement benefits are not at issue, because "a teacher will receive their pension regardless of the reason for their termination" said Michelle Mussuto, a spokeswoman for CalSTRS.

Oregon Death Penalty Poll

2012-02-01T21:36:08Z

A poll by Oregon Public Broadcasting and DHM Research shows little change in public support -- still overwhelmingly in favor. Kristian Foden-Vencil has this story at OPB News. "The poll found that 57 percent favor the death penalty for some crimes; 39 percent oppose it. Four percent say they don't know." The story does not give the exact wording of the question, which we know from other polls matters a lot. DHM's website does not mention the poll at all.

News Scan

2012-02-01T21:28:40Z

New York Gov. Proposes More Flexible Probation Sentencing Laws: Reuters reports New York Governor Andrew Cuomo, as part of the state budget proposal, wants to make New York's probation sentencing laws more flexible. For most felony convictions, the sentence would be three to five years, instead of the current mandatory sentence of five years. For Class A and unclassified misdemeanors, the probation sentence would be two to three years, instead of the current mandatory three years. Cuomo's budget also includes the measure to expand the state's criminal DNA database, and a measure that would allow criminal courts to order the forfeiture of the money earned in the commission of a crime. Under current state law, those convicted of misdemeanors can keep the money they gain from their crimes, and prosecutors must sue those convicted of felonies to take back any criminal profits.

CA Assembly Passes Three-Strikes Reform: Jim Sanders of The Sacramento Bee reports the California Assembly Tuesday passed AB 327, which would alter California's existing three-strikes law, by a vote of 41-33. The legislation would provide that an offender be sentenced to a 25 year to life prison term for a third strike only if the third strike is for a violent or serious felony, with some exclusions for certain previous crimes.The bill would only become effective if approved by voters at the November 2014 statewide general election. The bill now goes to the state Senate.

New CrimePush App Available on iTunes Today: Anushay Hossain, a Forbes Woman contributor, reports the CrimePush App, which allows smartphone users to quickly and discreetly report crimes, is available on iTunes today. Users can take a photo, record video and audio, and provide the location of the crime and a text description of the incident. Users can also report the crimes anonymously.

Collective Tantrum Update -- Left Coast Edition

2012-02-01T16:46:48Z

SF Chrontrarian Debra Saunders has this column on the further degeneration of Occupy Oakland:

Occupy Oakland protesters broke into City Hall on Saturday, sprayed graffiti, toppled a historic model of City Hall and children's artwork, stole and then burned an American flag, sprayed graffiti and otherwise trashed the people's building. Police arrested about 400 people. Mayor Jean Quan likened the activists' behavior to "a tantrum," as she complained Occupy activists have been treating the city "like a playground."

Well, well, even a stopped clock is right twice a day. Welcome to reality, Mayor Quan. Hope your visit is longer this time, before you return to the flower-child alternate reality where you permanently reside.