[Deathpenalty] death penalty news----USA

[Rick Halperin]

Oct. 4


USA:

US: Executions Across Country On Hold


A sudden halt to executions in Texas, the United States's most active
death penalty state, may signal that there is now an unofficial national
moratorium in place across the nation, pending a ruling by the Supreme
Court on whether a specific lethal injection cocktail is legal.

On Tuesday, the Texas Court of Criminal Appeals granted a temporary
reprieve for a convicted killer, Heliberto Chi, giving the state 30 days
to explain why his execution should go ahead.

This came 5 days after the U.S. Supreme Court stepped in to prevent the
execution in Texas of Carlton Turner, Jr., only hours before he was due to
die by lethal injection for killing his adoptive parents. At the same
time, it also halted the execution of Thomas Arthur in Alabama.

"It is an unbelievable awakening to see Texas courts following the
national norms," said Rick Halperin, president of the Texas Coalition to
Abolish the Death Penalty, explaining that the Texas courts did not have a
history of following precedent set by the U.S. Supreme Court.

The 2 Supreme Court execution stays were interpreted by legal experts as a
signal to all U.S. states that they should now wait before carrying out
any further executions until the Court ruled on the constitutionality of
lethal injections as a method of execution in two separate cases from
Kentucky.

The 2, Ralph Baze and Thomas Clyde Bowling Jr., both convicted killers and
now on Kentucky's death row, have appealed to the Supreme Court to halt
their executions, arguing that the chemicals used in their state's lethal
injections amounted to "cruel and unusual punishment". This would make the
current cocktail a violation of the eighth amendment of the U.S.
constitution.

On Sep. 25, it was announced that the Supreme Court's ruling in the 2
cases would be handed down sometime during the court's current session,
which formally opened on Oct. 1. The ruling could be announced by June
2008.

Immediately following the Supreme Court's decision to review the two
lethal injection cases, Texas executed Michael Richard, its 405th inmate
since the Supreme Court re-instated the death penalty in 1976. Lawyers
were not able to file his appeal in time to take advantage of the Court's
decision and he was executed the same night. The Supreme Court's decision
led 10 other states to halt executions.

The U.S. federal government and all but one of the 38 states still with
the death penalty on their statute books, use lethal injections for their
executions. Most states use the same cocktail of the 3 the drugs
administered in Kentucky, an anaesthetic, pancuronium bromide which
paralyses muscles and potassium chloride which stops the heart. Nebraska
is the only state which still uses the electric chair.

The Supreme Court has not addressed the constitutionality of the method of
execution for more than 100 years. There are currently more than 3,500
people on death row in the U.S.

The 2 inmates in the Kentucky cases and many death penalty opponents argue
that if the drugs in the cocktail are not administered correctly, the
prisoner can suffer excruciating pain without being able to cry out before
death.

The current flurry of legal activity around the lethal injection issue in
the U.S. coincided with the 192-member U.N. General Assembly in New York.
It is here that the EU will soon table a resolution for a worldwide
moratorium on state executions. The moratorium will need a majority to
pass.

The U.S. is expected to strongly oppose this, but now with an unofficial
moratorium apparently in place as its highest court prepares to review the
legality of lethal injections, it may be more muted in the General
Assembly and outside before the final casting of votes.

This might leave China, Iran, Iraq and Pakistan, responsible for most of
the world's state killings, more isolated in the anti-moratorium camp.

Anti-death penalty activists in the U.S. remain cautious over whether the
Supreme Court will eventually rule that execution by lethal injection is
unconstitutional, fearing that the current unofficial moratorium may be
short-lived.

"The U.S. Supreme Court has never determined execution to be
unconstitutional, and it is not likely they will be any different with
lethal injection," Halperin told IPS.

"They may tinker with lethal injection but the U.S. Supreme Court is so
pro-death penalty that they are unlikely to eliminate the death penalty.
There may be a slight moratorium or delay in executions."

But he agreed that given the high rate of executions in Texas -- 26 so far
this year -- the Supreme Court's temporary stay on executions, followed by
the state's own stay of Chi's execution, "was very welcome".

"Texas is the lynchpin, the battleground," Halperin said. "It's the worst
place for judicial killings in the entire free world."

The current reassessment of lethal injections, as well as the upcoming
attempt to get the U.N. General Assembly to adopt a worldwide moratorium,
could pressure the U.S. to follow suit.

"It's a snowball effect," Deborah Denno, professor at the Fordham
University School of Law, told IPS, noting that recent developments were
incremental steps that had happened quickly, and the momentum against the
final abolition of the death penalty in the U.S. was building.

(source: IPS)

**********************

Call for lethal injection boycott


Amnesty International has urged doctors and nurses not to participate in
executions by lethal injection as it breaches their ethical oath. In a
report the group says the cocktail of drugs used is not always quick and
painless and can cause "excruciating pain and extreme mental suffering".

The execution method is common in the US and is on the rise in China.

However, the US Supreme Court last week agreed to hear a challenge that
lethal injections violate the constitution.

'Straitjacket'

Amnesty opposes the death penalty in all forms.

In its new report, "Execution by lethal injection - a quarter century of
state poisoning", it says governments should not put doctors and nurses in
the position of carrying out an action contrary to their ethical oath.

We don't have any idea about what's happening in Texas, because it's done
in secret Andrea Keilen, legal representative

Jim Welsh, the group's health and human rights co-ordinator, said:
"Medical professionals are trained to work for patients' well-being, not
to participate in executions ordered by the state."

The report also challenges the cocktail of 3 drugs commonly used in
executions.

It says that Texas, the biggest US user of lethal injections, has banned
the same drugs for dogs and cats on the grounds of the potential pain they
may suffer.

US LETHAL INJECTION

- Used in 37 of 38 death penalty states. Nebraska uses electric chair

- Almost all use same 3-drug combination:

- Sodium thiopental (sodium pentothal): Induces unconsciousness

- Pancuronium bromide (Pavulon): Causes muscle paralysis

- Potassium chloride: Stops the heart

[source: Amnesty/Death Penalty Information Center]

The group says the drug used to induce unconsciousness can wear off before
the prisoner's heart stops, causing extreme physical and mental strain.

The patients are, however, in a "chemical straitjacket" and cannot convey
their distress, it says.

Amnesty cites case studies of US prisoners suffering for about 30 minutes
in "botched" executions.

It says there are no exact official figures on executions in China but
that it is certain to carry out more than any other country.

Amnesty says lethal injections are on the rise in China, with mobile vans
increasingly being used.

Prisoners are executed on a metal bed in a windowless chamber in the back,
the group says.

The issue of lethal injection is a matter of huge debate in the US.

Last week the Supreme Court agreed to hear a case brought by 2 convicted
murderers in Kentucky who argue that the method violates the ban on cruel
and unusual punishment contained in the Eighth Amendment to the US
Constitution.

The court ruling may provide a broad guideline on the method of execution,
which some states have suspended after claims it was cruel and
ineffective.

Andrea Keilen, from a legal firm that represents about 150 death row
inmates in Texas, said there was no way of knowing the competency of those
carrying out the executions in the state.

"We don't have any idea about what's happening in Texas, because it's done
in secret."

Does administering lethal injections break the medical profession's
ethical oath? Should lethal injections be scrapped in the US? Leave us a
comment below.

(source: BBC News)

***********************************

Execution by lethal injection----A quarter century of state poisoning


According to one press report, Angel Diaz "appeared to be moving 24
minutes after the first injection, grimacing, blinking, licking his lips,
blowing and appearing to mouth words". A second [dose] was administered to
complete the execution. Over half an hour after the execution began, a
doctor wearing a blue hood to cover his face entered the execution chamber
to check Angel Diaz's vital signs. He returned a minute later, checked the
vital signs again and nodded to a member of the execution team. It was
then announced to the witnesses that the execution had been carried
out.(1)<>P> Read the report here:
http://web.amnesty.org/library/index/ENGACT500072007

****<>P> Death Penalty: New report calls for doctors to stop doing lethal
injections


Amnesty International

Paralysed prisoners in 'chemical straitjackets' unable to move or cry out
during execution

Amnesty International has called for doctors and other medical personnel
to stop taking part in lethal injection executions as it published a new
report today showing the extent and cruelty of death by lethal injection.

Professional medical bodies have expressed strong ethical opposition to
the involvement of medical professionals in lethal injections but, as
Amnesty International's report shows, numerous doctors and other
specialists have continued to carry out executions in breach of their own
ethical standards.

Amnesty International's Health and Human Rights Coordinator Dr James Welsh
said:

'Medical professionals are trained to work for patients' well-being, not
to participate in executions ordered by the state.

'Governments are putting doctors and nurses in an impossible position by
asking them to do something that goes against their ethical oath.

'The simplest way of resolving the ethical dilemmas posed by using doctors
and nurses to kill is by abolishing the death penalty.'

Amnesty International is totally opposed to the death penalty in all
instances regardless of execution method, and its 41-page report,
'Execution by lethal injection: a quarter century of state poisoning'
challenges the claim that lethal injections are a 'humane' alternative to
'traditional' execution methods like hanging, beheading, shooting, gassing
or electrocution.

In fact the report lists a series of botched executions carried out by
lethal injection (see cases studies below). Some prisoners have enduring
prolonged deaths of over an hour, others have gone into convulsions or
suffered skin burns or bloody 'cut-down' operations to find veins.

In addition, the medical 'efficiency' of lethal injection has recently
been called into serious question, with grave concerns that its cocktail
of drugs can result in a prisoner being put into a 'chemical straitjacket'
- conscious but totally paralysed and unable to move or cry out while
suffering excruciating pain and extreme mental suffering before death. For
this reason the chemicals are not used by veterinary surgeons on animals
for euthanasia. Texas, for example, has executed more than 400 people by
lethal injection in the last 25 years, but since September 2003 has banned
similar injections in animal euthanasia.

Amnesty International's report also charts the growth of lethal injections
around the world. Since the world's first lethal injection was carried out
in the state of Texas, USA in 1982, over 900 such executions have occurred
in the US alone. In China, where executions numbers are an official
secret, it is possible that thousands of people have been executed this
way since 1997. Lethal injections now account for 85% of US executions in
the United States and a growing proportion of judicial killings carried
out in China (the world's biggest user of the death penalty).

In recent years China has introduced 'mobile execution chambers' -
converted 24-seater buses with windowless execution chambers at their
rear. Prisoners are strapped down to metal beds in these bus chambers, a
needle is then attached to the prisoner by a doctor before a police
officer presses a button activating an automatic syringe which inserts the
lethal drug into the prisoner's vein. Executions are watched on a monitor
next to the driver's seat and can be videotaped.

As Amnesty International's report shows, besides the USA and China lethal
injection killings have also taken place in Guatemala, the Philippines and
Thailand, while legal systems in Taiwan and Papua New Guinea allow for
lethal injection, and India and Vietnam have discussed its introduction.

According to even minimum figures, 1,591 people were executed in 25
countries in 2006 and Amnesty International is calling on the current
session of the United Nations General Assembly to vote for an
international moratorium on the death penalty.

Amnesty International has long campaigned for total global abolition of
the death penalty and the organisation points out that claims about the
relative 'efficiency' of lethal injections compared to other methods of
killing fail to even consider other vital issues regarding the death
penalty.

Dr Welsh added:

'The use of lethal injection does not resolve the problems inherent to the
death penalty: its cruelty; its irreversibility; the risk of executing the
innocent; its discriminatory and arbitrary application; and its
irrelevance to effective crime control.'

Sample of botched executions:

Bennie Demps, Florida, USA, 8 June 2000: execution personnel took 33
minutes to find a vein for the injection; among Demps' last words were
'They cut me in the groin; they cut me in the leg. They butchered me back
there.'

Joseph Clark, Ohio, USA, 2 May 2006: execution personnel took 22 minutes
to find a vein, only for the vein then to collapse and Clark's arm to
swell. Clark repeatedly raised his head to say 'It don't work, it don't
work', before the curtain around the gurney was closed. It was a further
half an hour before a vein was eventually found.

Angel Diaz, Florida, USA, 13 December 2006: injection missed the vein and
Diaz was seen moving - grimacing, blinking, blowing, mouthing words - for
some 24 minutes before a second injection was administered. After half an
hour a doctor wearing a hood to cover his face entered the chamber and
Diaz was pronounced dead.

Manuel Martinez Coronado, Guatemala, 10 February 1999: the execution was
televised; viewers saw medical personnel in green surgical gowns and face
masks taking 18 minutes to find a vein, while Martinez's wife, who was
present with her three children, was heard wailing in the background. The
executioners could be seen shaking, apparently with nerves.

Note on chemicals

Lethal injection generally involves the intravenous introduction of 3
chemicals into the body: (1) sodium thiopental (also know by the trade
name Pentothal), which induces general anaesthesia; (2) pancuronium
bromide, which causes muscle paralysis, and hence respiratory failure; (3)
potassium chloride, which leads to cardiac arrest. If the anaesthetic is
inadequate or causes an unexpected reaction, the pain caused by potassium
chloride in the blood system and subsequent heart attack could be intense,
while paralysis may mean the victim is unable to even signal their
distress.

(source: Amnesty International)

*****************

Amnesty lists execution horrors


The use of lethal injections in the US has led to at least 9 bungled
executions, including one in which the prisoner took 69 minutes to die and
another in which the condemned man complained 5 times: "It don't work," a
report by Amnesty International says today.

The report contains a catalogue of botched executions dating from 2000,
when lethal injection was adopted by 37 of the 38 US states with the death
penalty.

In an execution in Ohio in May last year it took technicians 22 minutes to
find a suitable vein in which to inject the lethal combination of 3 drugs.
When the condemned man, Joseph Clark, raised his head to complain that the
process was not working, the technicians closed the curtains around his
trolley and spent an additional 30 minutes looking for a suitable vein. An
autopsy discovered 19 puncture marks on Clark's corpse.

In a celebrated case in Florida in December last year the condemned man,
Angel Nieves Dias, suffered chemical burns along his arms after
technicians struggled to find a vein. Reports at the time described Diaz
as grimacing in pain.

Such horrific instances have destroyed the main argument for lethal
injection - that it offers a relatively painless and humane death, Amnesty
says. "A number of executions in the USA have been botched and caused
suffering, sometimes prolonged, to the victim."

Amnesty notes that Texas, which operates America's busiest execution
chamber, has banned one of the chemicals involved for use in euthanising
pets, because it does not effectively mask pain.

The report comes days after an unofficial halt to executions following a
supreme court decision to review the lethal injection method. On Tuesday
night the appeals court of Texas stayed the impending execution of a
Honduran man pending the supreme court's decision.

(source: The Guardian (UK) )

******************************************

Supreme Court to Hear Lethal Injection Case


Noting that it is "one of the most common issues" facing the court, the
U.S. Supreme Court will hear oral arguments in January on whether lethal
injections are cruel and unusual punishment.

"Considering that at least half the death row inmates facing an imminent
execution in the last 2 years have filed suit challenging the chemicals
used in lethal injections ... it is important for the Court to determine
the appropriate legal standard, particularly because the difference
between the standards being used is the difference between prevailing and
not," the Supreme Court docket stated.

Of the 38 states that allow capital punishment, 37 and the federal
government use lethal injections.

Human Rights Watch, which opposes the death penalty, noted that there have
been at least 41 cases before state and federal courts challenging the
constitutionality of lethal injection protocols but that no court has ever
ruled lethal injection executions unconstitutional.

Kentucky death row inmates Ralph Baze and Thomas Bowling are suing the
state, claiming that the use of an anesthetic (sodium thiopental),
followed by a paralytic agent (pancuronium bromide) and, finally, a drug
that causes the heart to stop beating (potassium chloride) causes
unnecessary risk of inflicting pain.

Baze was convicted of murder in 1993 for shooting two law-enforcement
officers when the officers attempted to serve him with 5 felony fugitive
warrants from Ohio. Bowling was convicted in 1994 of murdering a couple in
a parking lot in Lexington, Ky.

The Kentucky Supreme Court ruled against the men in 2005, saying lethal
injections "did not violate the constitutional standards prohibiting cruel
and unusual punishment."

According to the court, "Baze and Bowling have not demonstrated by a
preponderance of evidence that the method of execution by lethal injection
in Kentucky inflicts unnecessary physical pain."

"Evidence was considered that other drugs were available that may decrease
the possibility of pain but the constitutional provisions do not provide
protection against all pain, only cruel and unusual punishment," the court
stated. "The prohibition is against cruel punishment and does not require
a complete absence of pain."

Virginia Sloan, president of the Constitution Project, noted that it is
possible that the Supreme Court will not address whether lethal injections
meet the Eighth Amendment challenge directly but instead determine the
"standard which courts should use to decide these lethal injection
challenges."

She said the Supreme Court may have decided to take the case to provide
uniformity.

"If you have a different process in each state, and different chemicals
being used or in different amounts, then it's pretty hard to have any kind
of uniform evaluation of what's going on," Sloan told Cybercast News
Service.

She added that "the state officials have often ignored the medical
protocols or are incapable of imposing them or requiring them. There have
been all sorts of errors made, and the possibility of horrific pain being
imposed on these people can be pretty great, and these kinds of risks are
very foreseeable."

The Supreme Court has not decided a case on the constitutionality of a
method of execution in over 100 years - ruling that Utah could use a
firing squad - "leaving lower courts with no guidance on the law to apply
to the many lethal injection challenges," according to the docket.

But Jeff Middendorf, general counsel for the Kentucky Justice and Public
Safety Cabinet, who is representing the state, told Cybercast News
Service: "We are confident the United States Supreme Court will affirm the
unanimous decision of the Kentucky Supreme Court, which upheld Kentucky's
lethal injection protocol as constitutional."

Middendorf noted that most states use the same 3-drug combination that
Kentucky uses, so the case could affect how executions by lethal injection
are carried out in the future. Alabama has decided to stay executions
while the case is pending, and other states are considering the same.

He also said that while other drugs might be available, the drugs used are
still useful drugs and are still used in hospitals today.

(source: CNS News)

*****************************

New report calls for doctors to stop doing lethal injections


Paralysed prisoners in 'chemical straitjackets' unable to move or cry out
during execution

Amnesty International has called for doctors and other medical personnel
to stop taking part in lethal injection executions as it published a new
report today showing the extent and cruelty of death by lethal injection.

Professional medical bodies have expressed strong ethical opposition to
the involvement of medical professionals in lethal injections but, as
Amnesty International's report shows, numerous doctors and other
specialists have continued to carry out executions in breach of their own
ethical standards.

Amnesty International's Health and Human Rights Coordinator Dr James Welsh
said:

'Medical professionals are trained to work for patients' well-being, not
to participate in executions ordered by the state.

'Governments are putting doctors and nurses in an impossible position by
asking them to do something that goes against their ethical oath.

'The simplest way of resolving the ethical dilemmas posed by using doctors
and nurses to kill is by abolishing the death penalty.'

Amnesty International is totally opposed to the death penalty in all
instances regardless of execution method, and its 41-page report,
'Execution by lethal injection: a quarter century of state poisoning'
challenges the claim that lethal injections are a 'humane' alternative to
'traditional' execution methods like hanging, beheading, shooting, gassing
or electrocution.

In fact the report lists a series of botched executions carried out by
lethal injection (see cases studies below). Some prisoners have enduring
prolonged deaths of over an hour, others have gone into convulsions or
suffered skin burns or bloody 'cut-down' operations to find veins.

In addition, the medical 'efficiency' of lethal injection has recently
been called into serious question, with grave concerns that its cocktail
of drugs can result in a prisoner being put into a 'chemical straitjacket'
- conscious but totally paralysed and unable to move or cry out while
suffering excruciating pain and extreme mental suffering before death. For
this reason the chemicals are not used by veterinary surgeons on animals
for euthanasia. Texas, for example, has executed more than 400 people by
lethal injection in the last 25 years, but since September 2003 has banned
similar injections in animal euthanasia.

Amnesty International's report also charts the growth of lethal injections
around the world. Since the world's first lethal injection was carried out
in the state of Texas, USA in 1982, over 900 such executions have occurred
in the US alone. In China, where executions numbers are an official
secret, it is possible that thousands of people have been executed this
way since 1997. Lethal injections now account for 85% of US executions in
the United States and a growing proportion of judicial killings carried
out in China (the world's biggest user of the death penalty).

In recent years China has introduced 'mobile execution chambers' -
converted 24-seater buses with windowless execution chambers at their
rear. Prisoners are strapped down to metal beds in these bus chambers, a
needle is then attached to the prisoner by a doctor before a police
officer presses a button activating an automatic syringe which inserts the
lethal drug into the prisoner's vein. Executions are watched on a monitor
next to the driver's seat and can be videotaped.

As Amnesty International's report shows, besides the USA and China lethal
injection killings have also taken place in Guatemala, the Philippines and
Thailand, while legal systems in Taiwan and Papua New Guinea allow for
lethal injection, and India and Vietnam have discussed its introduction.

According to even minimum figures, 1,591 people were executed in 25
countries in 2006 and Amnesty International is calling on the current
session of the United Nations General Assembly to vote for an
international moratorium on the death penalty.

Amnesty International has long campaigned for total global abolition of
the death penalty and the organisation points out that claims about the
relative 'efficiency' of lethal injections compared to other methods of
killing fail to even consider other vital issues regarding the death
penalty.

Dr Welsh added:

'The use of lethal injection does not resolve the problems inherent to the
death penalty: its cruelty; its irreversibility; the risk of executing the
innocent; its discriminatory and arbitrary application; and its
irrelevance to effective crime control.'

Sample of botched executions:

Bennie Demps, Florida, USA, 8 June 2000: execution personnel took 33
minutes to find a vein for the injection; among Demps' last words were
'They cut me in the groin; they cut me in the leg. They butchered me back
there.'

Joseph Clark, Ohio, USA, 2 May 2006: execution personnel took 22 minutes
to find a vein, only for the vein then to collapse and Clark's arm to
swell. Clark repeatedly raised his head to say 'It don't work, it don't
work', before the curtain around the gurney was closed. It was a further
half an hour before a vein was eventually found.

Angel Diaz, Florida, USA, 13 December 2006: injection missed the vein and
Diaz was seen moving - grimacing, blinking, blowing, mouthing words - for
some 24 minutes before a second injection was administered. After half an
hour a doctor wearing a hood to cover his face entered the chamber and
Diaz was pronounced dead.

Manuel Martinez Coronado, Guatemala, 10 February 1999: the execution was
televised; viewers saw medical personnel in green surgical gowns and face
masks taking 18 minutes to find a vein, while Martinez's wife, who was
present with her 3 children, was heard wailing in the background. The
executioners could be seen shaking, apparently with nerves.

Note on chemicals

Lethal injection generally involves the intravenous introduction of 3
chemicals into the body: (1) sodium thiopental (also know by the trade
name Pentothal), which induces general anaesthesia; (2) pancuronium
bromide, which causes muscle paralysis, and hence respiratory failure; (3)
potassium chloride, which leads to cardiac arrest. If the anaesthetic is
inadequate or causes an unexpected reaction, the pain caused by potassium
chloride in the blood system and subsequent heart attack could be intense,
while paralysis may mean the victim is unable to even signal their
distress.

(source: Amnesty International)

**********************

Supreme Court Argument Report: Justices Tackle Sentencing, Again


Another Supreme Court term, another chapter in the sentencing saga. The
justices heard argument Tuesday in two cases that test how much discretion
federal district court judges have in sentencing defendants and examine
the standard federal circuit court panels should apply in reviewing those
sentences on appeal. At issue in one of the cases: the controversial 100:1
ratio used in calculating sentences for trafficking crack as opposed to
powder cocaine.

After the Court's 2005 decision in United States v. Booker made the U.S.
Sentencing Guidelines advisory rather than mandatory and held that appeals
courts should review sentences for "reasonableness," the circuits adopted
various standards for that review. Most fall under the general category of
proportionality review, whereby the more the district court deviates from
the guidelines range, the stronger the justification needed for the
variance.

Tuesday's cases, Gall v. United States and Kimbrough v. United States,
pick up where the Court left off last term, when the justices ruled in
Rita v. United States that circuit courts could presume a within-guideline
sentence to be reasonable. A 2nd sentencing case last term, Claiborne v.
United States, concerning circuit court standards for judging
reasonableness of below-guidelines sentences, was vacated after oral
argument due to the death of the petitioner.

In both cases argued Tuesday, district court judges imposed
below-guidelines sentences for drug offenses. In Gall, the defendant was
sentenced to probation instead of approximately three years of jail time
after pleading guilty in a conspiracy to distribute Ecstasy, due to
mitigating factors such as his voluntary withdrawal from the conspiracy
and the fact that he committed the offense when he was 21 and in college.
The 8th U.S. Circuit Court of Appeals found the sentence unreasonable on
appeal.

In Kimbrough, the defendant pleaded guilty to drug offenses involving both
powder and crack cocaine, as well as a firearms offense. The district
court judge cited the impact of the 100:1 crack/powder ratio, adopted by
Congress and implemented by the sentencing guidelines, that treats 1 gram
of crack cocaine as equivalent to 100 grams of powder cocaine for
sentencing purposes. Stating that applying the ratio and imposing a 19- to
22-year sentence in the case was "ridiculous," the judge sentenced the
defendant to 15 years. On appeal, the 4th Circuit found the disparity
based on the disagreement with the 100:1 ratio "per se unreasonable."

Throughout the argument, some of the justices expressed what seemed to be
their desire to craft a workable set of rules to guide circuit courts'
reasonableness review of district court sentencing that would accommodate
both sentencing judges' discretion and appellate courts' oversight --
while maintaining some sense of uniformity in sentencing.

Justice Stephen Breyer laid out his objectives early on in the first
argument: "[W]hat I want to figure out here by the end of today is what
are the words that should be written in your opinion by this Court that
will lead to considerable discretion on [the] part of the district judge
but not totally, not to the point where the uniformity goal is easily
destroyed."

Breyer talked about what he called the "murky curtain" that is "something
of a presumption" of unreasonableness for sentences outside of the
guidelines range. This "murky curtain," or uncertain standard, he said,
"will lead to lawyers making endless arguments about whether ... they're
on one side of it or the other. So let's sweep it aside."

Deputy Solicitor General Michael R. Dreeben, who argued for the government
in both cases, said the Court would be "sweeping aside the approach that 9
circuits have taken."

"That's correct," Breyer said.

The argument returned again and again to the problem of defining
reasonableness in evaluating sentencing factors and results.

Dreeben stated that the district court judge in Kimbrough "thought it was
crazy for Congress to treat crack and powder [cocaine] differently. For a
judge to say Congress is crazy, I think, is a sort of textbook example of
an unreasonable sentencing factor."

Justice Antonin Scalia repeatedly expressed what seemed to be frustration
at the contradiction between the advisory nature of the guidelines and the
reality that a judge's deviation from them often results in strict
examination on appeal.

Scalia said that though the Court has "made it clear" that the guidelines
are advisory, the government's approach to appellate review in some
circumstances makes them "pretty much mandatory." At one point he told
Dreeben, "you're just blowing smoke when you say that the guidelines are
advisory."

Quote of the Day:

Scalia: "Indeed, it might be quite impossible to achieve uniformity
through advisory [sentencing] guidelines, which is why Congress made them
mandatory."

Runner-Up Quote of the Day -- Also From Scalia:

Justice Ruth Bader Ginsburg, responding to attorney Jeffrey T. Green, who
argued for the petitioner in Gall, pointed out the difference between an
offender who leaves a conspiracy and lets it continue, and one who blows
the whistle on a conspiracy.

Green: "Justice Ginsburg, when someone leaves the conspiracy and blows the
whistle, typically, that individual is not charged ..."

Roberts: "Well, I'm sure that's not always true. I mean, if the leader of
some vast conspiracy is the one who blows the whistle, I suspect he may
well be charged anyway."

Green: "That's true, Your Honor. There are instances in which --"

Scalia: "Lex Luthor might."

(source: Law.com -- Laurel Newby is a senior editor with Law.com)