Sentencing Law and Policy

New(?) Eleventh Circuit ruling affirms two above-guideline sentences

As now reported by the local press and in the blogosphere, the Eleventh Circuit in US v. Williams, No. 07-12526 (11th Cir. Mar. 20, 2008) (available here), has "upheld the conviction and eight-year prison sentence of a former Coca-Cola Co. secretary found guilty of conspiring to steal trade secrets from the world's biggest beverage company."  Ellen Podgor's post summarizes sentencing highlights from Williams:

Williams received [an above guidelines] 96-month sentence, in sharp contrast to a sentence given to an individual who plead guilty and received a 24-month sentence.  The 11th Circuit held that giving enormous weight to one factor — in this case the seriousness of the offense — does not mean the sentence is unreasonable.

One interesting curiosity from this opinion is that it is dated March 20, but was only released this week.  There must be an interesting story as to why this high-profile ruling languished behind a virtual Eleventh Circuit file cabinet somewhere, but Howard Bashman is surely more qualified than me to figure out this appealing mystery.

A potent SCOTUS tag-team on the rule of lenity

This post at SCOTUSblog reporting on the filing of two new amicus briefs in support of cert in a rule of lenity case had me recalling some famed pro-wrestling tag teams.  Here are the details: "[T]wo cert.-stage amicus briefs were filed [in support of the defendants in Kay v. US, No. 07-1281]: this one on behalf of the U.S. Chamber of Commerce, and this one on behalf of the National Association of Criminal Defense Lawyers." 

As this prior SCOTUSblog post details, Kay raises these two notable issues in the context of a federal criminal prosecution under the Foreign Corrupt Practices Act:

First, is the omission of an element of an offense structural error or instead subject to harmless error review?...

Second, what degree of statutory ambiguity triggers the rule of lenity, and when will legislative history suffice to avoid application of lenity?

With the gruesome twosome of the Chamber of Commerce and the NACDL fighting for the defendants here, the feds may be in some serious trouble if the Justices decide that this case should be resolved through a SCOTUS cage match.

Some more crazy sentencing stories

In addition to the angry coach case, here are some more local sentencing stories that have to be read to be believed:

• From the AP here, "Man jailed when daughter fails to get diploma"

• From the Detroit News here, "Jurist regrets telling offender to kill himself"

Here is the first line from the second story: "A magistrate who told a repeat underage drinker that he should slit his wrists or jump to his death is having second thoughts about her comments from the bench."

More than six years in federal prison for (not quite) bearing arms

Here is an interesting sentencing case for those who claim to be strong supporters of gun rights, as reported in this Baltimore Sun article:

Aaron McCown, a youth football coach embraced by his team despite a criminal past, was sentenced yesterday to 6 1/2 years in prison for using a loaded pistol to intimidate a referee.

Like many others, U.S. District Judge Deborah K. Chasanow seemed to consider McCown an enigma: a man with a lengthy record — including heroin dealing and assault — who earned a community service award from the Johns Hopkins University five years ago for volunteering to help coach the Old Town Gators, a Pop Warner team in East Baltimore, each fall.

"This, I think, is your last chance," the judge told McCown. "You need to figure out what prompted you to do all this back in September 2007 when otherwise you were doing the right things."

Prosecutors portrayed McCown, 32, as a failed role model who betrayed the faith his players had in him.  "This is somebody with a history of aggressive behavior who is bringing a gun to a football field at a youth game," Assistant U.S. Attorney Michele W. Sartori told the judge....

McCown was an assistant coach on one of six Gators teams — the youngest is for 5- to 7-year-olds, the oldest for youths up to age 15 — that played the White Oak Warriors in Montgomery County on Sept. 22.  A referee ended the game early after the team's fans and coaches complained about the officiating.  A police report said an enraged McCown told a referee, "I have something for your [expletive]" before running to a pickup truck to grab a bag containing a gun.  According to the plea agreement, McCown "walked back onto the field toward the referee while holding the bag containing the weapon."  No shots were fired.

Prosecutors asked Chasanow to sentence McCown to seven-and a quarter years, the high end of sentencing guidelines.  McCown was originally accused of possessing a firearm as a convicted felon, a charge that could have sent him to prison for more than 20 years.  He pleaded guilty in March to a lesser charge of knowingly receiving an explosive, a .45-caliber pistol that authorities said contained four rounds of ammunition....

The judge's sentence was between the recommendations of the prosecution and the defense.  His voice quivering, McCown, his hair in dreadlocks and wearing jeans and a black T-shirt, rose before the judge's sentence and acknowledged the emotional harm — and the good — that he had done to the players.  "In some ways I built up the community, and in some ways I destroyed a community," said McCown, who turned 32 on Sunday....

Many on his team and in his neighborhood continue to support him.  About 70 letters, notes and signatures were delivered to the judge on his behalf.  McCown coached in an East Baltimore neighborhood where community leaders say male role models are lacking. Most of the Gators come from single-parent homes. "His players looked upon him as a friend, not just their coach," said a letter to the judge from Andre'a Miles, a family friend. "Mr. McCown made himself available to his players or anyone else who needed help or just needed someone to talk to."...

McCown told the judge he understood that he might not be permitted to coach again in Baltimore, but he said he hopes to work with youths when released.  "What I tried to do was help my kids learn from the mistakes I made," he said.

So McCown will now spend most of his 30s in federal prison because he committed the "crime" of walking toward someone with a gun inside a bag.  Does this really seems just?  Is a sentencing term of 6.5 years necessary as a punishment for this crime of (not quite) bearing arms?  Is this sentencing term consistent with the principles of American society, which professes a commitment to individual liberty and a Second Amendment right to keep and bear arms? 

UPDATE:  The more I think about this case, the more I wonder what libertarians like presidential candidate Bob Barr thinks about this kind of exercise of extreme power by the federal government.  And speaking of extreme government power, it is important to appreciate the impact of the Armed Career Criminal Act (ACCA) in this context.

Based on the newspaper report, it seems Aaron McCown could have — arguably should have — faced a mandatory 15 years of federal imprisonment based on ACCA.  But the the federal prosecutor here apparently was comfortable "nullifying" this congressional mandatory sentencing statute and allowed McCown to plea down to lesser charges (which McCown sensibly accepted to avoid a mandatory term that would have kept him in federal prison until he was nearly 50). 

For those who favor strong enforcement of severe gun laws, this case may justify criticism directed toward federal prosecutors for pushing a plea that nullifies ACCA in this case.  For those who favor strong enforcement of individual rights, this case highlights that the federal government can use extreme federal sentencing provisions to undermine not only gun rights, but also trial rights and liberty rights.

Some related Second Amendment posts:

• Another good test case for real fans of the Second Amendment
• Hunting, pardons and a Second Amendment claim?
• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Get ready for a Second Amendment rumble, defense attorneys
• Imagining post-Heller federal felon-in-possession litigation
• More thoughts about the scope of Second Amendment rights
• What might Second Amendment strict scrutiny mean for strict gun laws?
• After 220 years, should the Second Amendment stay minimalist?

Georgia spending more than a billion dollars on its prisons

As detailed in this interesting local article, the state of Georgia is continuing to spend more than a billion taxpayer dollars on its prison system every year.  Here are the particulars:

The $21 billion budget currently awaiting Gov. Sonny Perdue's signature devotes $1.2 billion to the state's prison system. If signed as is, 2009 will mark the third consecutive year taxpayers have footed a billion-dollar bill to fund the Georgia Department of Corrections, now the fifth-largest prison system in the nation with nearly 60,000 inmates and more than 140,000 probationers.

One in 15 Georgians is under correctional supervision, be it prison, parole or probation, which is far higher than the national average of one in 35, according to the Department of Corrections. And prison costs in the state show few signs of slowing, observers say, increasing the likelihood that prisons will soon face increasing competition for state funding alongside education, transportation and social services.

The Georgia Budget and Policy Institute predicts offenders sentenced between now and 2015 may add about $10.8 billion in capital and operating costs to the prison system's budget in that time. That would push the prison budget past the $9.8 million the state currently spends on education. While the rising costs have forced new approaches to the way the state punishes and rehabilitates inmates, corrections officials face the task of juggling the financial effects of longer sentences with the graying of the prison population, both of which push expenditures higher.

The situation is tricky for taxpayers. Like many people, Bobby Parker, 71, of Augusta wants stiffer penalties for criminals. But he said he is already taxed too much for a system he believes is too lenient. The state's 27 percent recidivism rate is evidence of that, he said. "A lot going on in this world nowadays -- our justice system has allowed," Parker said. Parker said prisoners should work off their debt to society, rather than fill prisons. "I think they ought to be put on a chain gang and work it off," Parker said.

The advent of mandatory minimum sentences, an accompanying "two strikes and you're out" policy and more stringent parole guidelines enacted since the mid-1990s have created a surge in the state's prison population, with more convicts being put behind bars and remaining there longer.  The effect is that for every 18,000 prisoners headed out of prison each year, 20,000 take their place, Czachowski said.  The population behind bars is forecast to continue that trend in coming years, he said.

Increases in the number of inmates puts direct pressure on the cost of housing them. State prisons have expanded capacity by more than 150 percent since 1990, according to the Department of Corrections.

One factor behind the mounting costs, and perhaps one of the greatest challenges in the future, is that baby boomers commit crimes, too. Inmates age 50 and above -- the threshold for counting older prisoners -- numbered less than 600 in 1979.  By 2007 their ranks had ballooned just shy of 6,500, according to the department. Each year since has seen an increase in the number of inmates 50 or older.

The swelling population of older inmates has helped drive up the amount spent on health care, to which all inmates have a constitutional right.  From 1997 to 2007 prison health care costs soared 160 percent to $180 million, according to a Georgia Budget and Policy Institute analysis.  The prison system considers inmates above 50 part of its geriatric population because their past lifestyles generally cause them to show the same physical aging signs of someone 60.

I had a feeling that the baby boomers were somehow responsible for all these crime and punishment problems.

SCOTUS does a little spring crim law cleaning

As detailed over at SCOTUSblog, the Supreme Court was back in action today issuing one little opinion about jury selection procedures and an order list that included one cert grant in a capital habeas case and some Gall GVRs.  This AP story provides background on the new cert grant, and SCOTUSblog has the cert papers linked here.

Though all this SCOTUS action is involves crim law, it still feels as though the Justices are still mostly clearing away docket debris in anticipation for the big rulings to come in this Term's more high-profile cases.

Recent related post:

• Speculating about SCOTUS sleeper cases

Judge Young's latest take on modern federal sentencing dynamics

Last week, US District Judge William Young of the District of Massachusetts issued another interesting (and lengthy) opinion about the modern state of federal sentencing in United States v. West, No. 06-10281 (D. Mass. May 7, 2008) (available here).  Judge Young's sentencing work always merits attention, and West does not disappoint.  There is too much ground covered in West to allow a simple summary, but here is a starting paragraph to provide a flavor of what follows:

Here, the derivation of the particular sentence imposed is fairly straight forward.  Nevertheless, as the consequences of disparagement and delay evident in this case so well demonstrate two particularly unfortunate and persistent artifacts of that now thoroughly discredited oxymoron — mandatory guidelines — a decent respect for sentencing consistency requires that I frankly admit my own complicity in such unfortunate persistence and explain how my institutional approach to criminal sentencing has evolved.

What will the new libertarian presidential candidate say about mass incarceration and the drug war?

CNN is reporting here that former Republican Representative Bob Barr "formally jumped into the White House race Monday as a candidate for the Libertarian Party's presidential nomination."  Here's more:

Barr, the onetime darling of conservatives who led the impeachment fight against former President Bill Clinton, said he is running because voters want a choice beyond the two political parties. "They believe that America has more and better to offer than what the current political situation is serving up to us," he said Monday at the National Press Club in Washington. "The reason for that is very simple, they believe in America as I believe in America.  We believe in an America that is not and should not be and should never be driven by fear as current policies on behalf of both parties are in this country."

I consider mass incarceration and the drug war to be two great examples of policies embraced by both parties which are "driven by fear," and I sincerely believe that "America has more and better to offer" on these fronts.  Notably, this Atlantic.com post notes that Barr's campaign slogan is "Liberty for America."  This slogan could certainly foreshadow opposition to mass incarceration and the drug war in modern America.

Disappointingly, what appears to be Barr's official website has very little discussion of criminal justice issues.  However, these quotes from this "Issues" page on the website hint that Barr might now be the presidential candidate most likely to complain about extreme government power in the criminal justice system:

"The nation’s founders drafted the Constitution to sharply limit the federal government’s powers. The horrors perpetrated by the many collectivist tyrannies of the 20th Century demonstrate that the danger of government, any government, violating individual liberty is greater today than when America was founded."...

"The sustained government attack on the sanctity of the rights of the individual, including their right to be secure in their privacy and property, has created a moral and Constitutional crisis. America’s elected officials at all levels must renew their respect for the law and work to protect the rights of individuals."...

"Finally, an increasingly intrusive Nanny State is watching over our nation, meddling in the lives of its citizens.  New measures, often rushed through legislatures and regulatory agencies with little consideration or thought, seek to control ever more aspects of people's lives....  It is time to again trust individuals to make their own decisions. At the core of libertarianism is a trust in and respect for the personal choices of every individual. All Americans should be free to decide what is best for themselves and their families." 

Some related general posts on Campaign 2008:

• Will the 2008 Prez candidates ever seriously discuss modern incarceration realities?
• How the media can do better: ask the candidates tough crime and punishment questions
• Is ignorance bliss as Campaign 2008 ignores crime and punishment issues?
• Stuntz nails (some) reasons why Democrats are perhaps most responsible for modern mass incarceration
• Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
• Politics and the war on drugs
• Is there growing public concern with sentencing and prison reform?
• FAMM suggests sentencing questions for the candidates

How many have sought off death row using Atkins?

Thanks to How Appealing I saw this intriguing article in the Cleveland Plain Dealer headlined, "Six felons ruled retarded are spared execution."  Here are snippets:

Six men are likely to die in prison, but not at the hands of an executioner.  They were removed from Ohio's death row because they are mentally retarded and judges ruled they qualified under a 2002 U.S. Supreme Court ruling that it is cruel and unusual punishment to execute retarded inmates....

Five other men on death row say they are mentally retarded, including James Were, 51, who was sentenced to death for killing guard Robert Vallandingham in the 1993 Lucasville prison riot.  The Ohio Supreme Court heard Were's arguments in February....

It is not known how many death row inmates nationwide have filed claims....

The DPIC's page on mental retardation does not have any statistics concerning the number of inmate bringing or succeeding with Atkins claims.  I would guess that hundreds of defendants have brought claims based on Atkins, but I would also guess that only some of those claimants have made it off the row.  I wonder if anyone is trying to track these matters: it would make a very interesting case-study in the practical implementation of a notable constitutional holding concerning the administration of capital punishment.

Examining the efficacy of sex offender residency restriction

A helpful reader pointed me to this new research article, titled "Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism," appearing in the April 2008 issue of Criminal Justice and Behavior.  Here is the abstract:

In an effort to reduce sex offense recidivism, local and state governments have recently passed legislation prohibiting sex offenders from living within a certain distance (500 to 2,500 feet) of child congregation locations such as schools, parks, and daycare centers.  Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006.  Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.

Will pro-gun commentators assail politicians who dis the Second Amendment rights of former felons?

In the wake of pro-gun talk on the campaign trail, commentators are noting the new eagerness of Democratic candidates to embrace the Second Amendment.  For example, John McCormack has this Weekly Standard piece titled "We're All Gun Nuts Now: The Democrats sidle up to the Second Amendment," and David Kopel has this Townhall piece titled "Gun Owners For Hillary?". 

Both commentators are justifiably suspect about the Democrats candidates true views on the Second Amendment: McCormick notes that "both contenders for the Democratic presidential nomination [are] evading the gun control issue [before the Supreme Court in Heller] as if it were sniper fire"; Kopel asserts that "Senator Clinton no more deserves gun-owner votes than Lord Voldemort deserves the Muggle vote."  Both McCormack and Kopel rightly note that the Democratic candidates have not seriously spoken or voted in support of individual gun rights until the Heller case and modern politics made the Second Amendment a hot constitutional provision.

But as I have noted in prior posts, Second Amendment debates and politics could change dramatically if (when?) the Supreme Court rules in Heller that the Second Amendment protects an individual right to keep and bear arms, especially if (when?) sympathetic nonviolent ex-cons challenge broad federal laws prohibiting all felons (and domestic violence misdemeanants) from any and all gun ownership.  I suspect and fear that even consistently pro-gun politicians will dis efforts by felons to assert Second Amendment rights.

I wonder if McCormick and Kopel and other commentators will then take these politicians to task for not having the courage of their pro-gun convictions when the persons asserting gun rights are not quite as politically popular.

Some related Second Amendment posts:

• Another good test case for real fans of the Second Amendment
• Hunting, pardons and a Second Amendment claim?
• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Get ready for a Second Amendment rumble, defense attorneys
• Imagining post-Heller federal felon-in-possession litigation
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• What might Second Amendment strict scrutiny mean for strict gun laws?
• After 220 years, should the Second Amendment stay minimalist?
• Thoughtful analysis of the realities of Second Amendment litigation

Developing a SCOTUS short list of district court judges

With this Newsweek essay, headlined "The 2008 Bench Press: The most important decision a president ever makes?  It's choosing a Supreme Court nominee," Anna Quindlen reminds us that it is not too early to start obsessing over who might be on the presidential candidates' SCOTUS short list.  Though I have (and others have) blogged this topic before, my recent great experience at the Sixth Circuit Judicial Conference reminded me how many federal district judges would make great Justice material.

In this post from 2005 during the last round of nomination debates, I argued that the Supreme Court could really benefit from having a Justice with trial court experience.  Remarkably, it has been nearly half a century since the Supreme Court has even a single Justice with experience as a federal district court judge, and I think the Justices' confusing work in various arenas (especially sentencing) reflects a lack of practical district court wisdom.

With all these thoughts in mind, I hope readers might use the comments to suggest great federal district judges for the next Supreme Court vacancy.  On this day of honoring moms, perhaps female district judges should be placed at the top of the list.  More generally, all shrewd SCOTUS watchers know that various matters of personal demographics — age, race, gender, religion, geography — may be of considerable concern to those selecting the next nominee to the Supreme Court.

Some related SCOTUS short-list posts:

• Insider myopia and the diverse benefits of a short bench
• Does SCOTUS need a trial judge?
• Great insights on SCOTUS and criminal justice
• Brave New Justice and sentencing issues
• Will the next SCOTUS nominee have any criminal law background?

A prison celebration of Mothers' Day

This AP article, headlined "Nursery programs allow imprisoned moms, newborns to bond," is fitting for the day. Here is an excerpt:

New York has had prison nurseries for more than a century; Washington, Ohio, California and Nebraska started ones in recent years, and West Virginia is preparing to launch one, too. The programs come at a time when the nation’s female inmate population is rising.

The Bureau of Justice Statistics shows the number of women in prisons and jails jumped from more than 163,000 in 2000 to nearly 210,000 in mid-2006, fueled largely by an increase in drug convictions that carry mandatory sentences. Many of those inmates are mothers who experts say benefit from staying with their children, even if it’s behind bars.

The Ohio Reformatory for Women in Marysville, whose nursery program Indiana modeled, has seen 14 of its 128 participants re-offend, an 11 percent recidivism rate compared with the institution’s rate among all inmates of about 30 percent, spokeswoman Elizabeth Wright said. New York also has seen a dropoff, said Linda Foglia, spokeswoman for that state’s Department of Correctional Services.

Indiana hopes for similar results with its program, funded through a $122,000 grant from the U.S. Department of Health and Human Services. The Wee Ones Nursery at the 136-year-old Women’s Prison is open to up to 10 imprisoned mothers who are the legal guardians of their children, have never been convicted of violent crimes, and have less than 18 months left on their sentences.

The nursery staff includes a pediatrician and a nurse. Inmates who serve as nannies must have nonviolent offenses and reading levels of eighth grade or higher; they also must complete a parenting class. The mothers receive courses on postpartum care, child development, shaken baby syndrome and other topics. “We hope that we’ll continue to make the family the unit that it should be and strengthen those that are going back out into the community,” prison Superintendent Zettie Cotton said.

Justice Stevens horsing around about lethal injections

I headed home early from the Sixth Circuit Judicial Conference, and so I missed Justice Stevens speaking at the big conference dinner.  But this local report suggests Justice Stevens was his usual sharp commentor on the legal (and sporting) news of the day:

Supreme Court Justice John Paul Stevens drew a round of applause Friday night in Chattanooga when he suggested that the recently-euthanized Kentucky Derby horse Eight Bells had probably experienced a more humane death than those who die on death row.

“I had checked the procedure they used to kill the horse,” Justice Stevens said, expressing surprise to learn it is against the law in Kentucky to kill animals using one of the drugs in a three-drug lethal injection cocktail that many believe is cruel to humans.

Also, this companion MP3 link records Justice Stevens talking about having interviewed Ty Cobb in his pre-judiciary days.

Some related posts:

• Spinning Baze for lower courts
• Bronx cheer for return of executions
• How might state-law-based challenges to lethal injection fare after Baze?
• The state-specific realities of post-Baze execution timelines
• New study confirms we do not treat murderers like dogs
• Lethal injection complaints going to the dogs
• A great animal irony in the Baze oral argument

A telling headline for modern sentencing times

This local story from California, carrying the headline "Sex offender faces up to millenium in prison," tellingly reveals so much about modern American attitudes toward incarceration. Here are snippets:

A convicted sex offender could be sentenced to more than a millenium in prison for molesting two girls, a prosecutor said Thursday. Horace Mann Williams, 44, is facing a penalty of up to 1,330 years in prison when he is sentenced Friday at the Murrieta Courthouse, said Deputy District Attorney Burke Strunsky.

Williams previously spent six years in prison for sexual molestation in the early 1990s.... Outside court, jurors said they convicted Williams because he showed a pattern of behavior typical for child molesters. “After a first offense and after a parole violation, he couldn't stay away from girls,” one juror said.

According to a probation officer's sentencing memorandum filed with the court, Williams is not eligible for parole and should receive consecutive time for each count and enhanced sentences for having prior strike offenses, having multiple victims and committing multiple offenses against multiple victims.

I think it is worth speculating whether Williams, if he had been threatened with the death penalty for repeat child rape, might have been more deterred after his release for his first offense.  Obviously, the prospect of being subject to imprisonment for over a millenium did not keep Williams from molesting kids again.  Though I doubt the distant threat of the a distant execution would have deterred Williams, I also see the good arguments for states to continue to consider experimenting with alternatives to incarceration for repeat sex offenders.  Perhaps if states get serious about new approach to preventing repeat sex offending, somebody might figure out a better way to deal with these crimes before the year 3308 when Williams could be scheduled for release.

"Racial Inequity and Drug Arrests"

The title of this post is the title of this editorial in today's New York Times.  Here are snippets:

The United States prison system keeps marking shameful milestones. In late February, the Pew Center on the States released a report showing that more than 1 in 100 American adults are presently behind bars — an astonishingly high rate of incarceration notably skewed along racial lines. One in nine black men aged 20 to 34 are serving time, as are 1 in 36 adult Hispanic men.

Now, two new reports, by The Sentencing Project and Human Rights Watch, have turned a critical spotlight on law enforcement’s overwhelming focus on drug use in low-income urban areas. These reports show large disparities in the rate at which blacks and whites are arrested and imprisoned for drug offenses, despite roughly equal rates of illegal drug use....

The looming challenge, says Jeremy Travis, the president of John Jay College of Criminal Justice, is to have arrest and incarceration policies that are both effective for fighting crime and promoting racial justice and respect for the law. As the new findings attest, the nation has a long road to travel to attain that goal.

Some recent related posts:

• Two potent new reports on race and the drug war
• Another strong piece about race and justice
• New JPI report on racial disparities in incarceration
• Can and will Iowa's "Minority Impact Statement" legislation help with criminal justice disparities
• How the media can do better: ask the candidates tough crime and punishment questions
• FAMM suggests sentencing questions for the candidates

Weekend SSRN reading (for mom?)

A large set of new articles just appeared on the SSRN Corrections and Sentencing list.  If mom is a sentencing fanatic, consider printing her out some of these new pieces:

• Insanity is Smashing Up Against My Soul: Panetti v. Quarterman and Questions that Won't Go Away by Michael L. Perlin

• Ethical Exception: Capital Punishment in the Figure of Sovereignty by Adam Thurschwell

• The Harm Principle vs Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation by Dennis J. Baker

• Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors' Perceptions by Brenda V. Smith

• 'My Number One Priority': How Victims' Rights Advocates Derailed Rehabilitation's Potential Role in Prison Reform in California by Ashley T. Aubuchon

Spinning Baze for lower courts

Elisabeth Semel has this new piece in The National Law Journal, headlined "Fearing too much justice," which tries its darnedest to argue that Baze should be viewed by lower courts and state officials not as a green light for resuming lethal injection executions, but rather as a yellow light calling for additional caution and inquiry concerning modern execution realities:

Chief Justice John G. Roberts Jr.'s plurality opinion establishes that the court is primarily concerned with whether states are able to successfully administer the first drug in the three-drug formula — the anesthetic.  Failure of that first drug results in a "constitutionally unacceptable" risk of suffocation and excruciating pain.   On the limited facts before the court, Roberts took the view that delivery of the anesthetic is a relatively simple endeavor.  But in other states, where courts have allowed full inquiry into lethal injection protocols, it has become apparent that getting the first dose "right" is not a simple matter.....

The plurality opinion in Baze may succeed — as Roberts intended — in precluding stays of execution when the demonstration of substantial risk is not greater than that presented by the Kentucky record.... [But] if courts allow discovery of execution records and depositions of executioners, outcomes will be different than they were in Baze.  They may well resemble the result in Tennessee, where a federal district judge found that "due to lack of training and other issues," the state's "new protocol poses a substantial risk" that the inmate "will not be unconscious when the second and third drugs are administered."  Or trial courts may find, as did a federal judge in California, that the record, "is replete with evidence that in actual practice the [state's protocol] does not function as intended."

Judicial fear of too much litigation, too much inquiry and too much truth about how the death penalty operates is a familiar one.  In 1987, in McCleskey v. Kemp, the court held that a reliable statistical study showing the likelihood that racial prejudice influences Georgia capital sentencing decisions could not be used to establish race discrimination in the decision to sentence Warren McCleskey to death. The majority opinion, authored by Justice Lewis Powell, made much, as did Roberts' opinion, of the constitutional legitimacy of capital punishment and of federalism. Central to the ruling, however, was the concern that "McCleskey's claim, taken to its logical conclusion," would instigate challenges to discrimination at every level of the criminal justice system. Dissenting, Justice William J. Brennan Jr. responded that the fear of "apocalyptic consequences" was, rather, "a fear of too much justice," and the fact that the death penalty was the legislatively adopted norm in most states was unpersuasive given the issues at stake: "death and race."

It was scrutiny that the majority in McCleskey feared. It is scrutiny that some members of the current Supreme Court fear. It is certainly scrutiny that departments of corrections fear. In 1991, Powell stated that if he could change his vote in any case it would be the one he cast 14 years earlier in McCleskey.  If trial courts allow discovery to go forward in lethal injection challenges, we will not have to wait 14 years for some justices to reconsider what went wrong in Baze.

Actually, I think that what some members of the current Supreme Court truly fear is what Semel and other death penalty opponents often seem eager to seek: the de facto elimination of the death penalty through persistent constitutional litigation rather than de jure reform through the democratic process.  The fear is not of too much justice, but of too much persistent effort by death penalty abolitionists to achieve through the courts what they have not been achieve through the ballot box.

I do not begrudge sincere efforts by death penalty opponents to argue forcefully against state killing (just as I do not begrudge other sincere "culture of life" advocacy against abortion and doctor-assisted suicide).  I am, however, consistently troubled when death penalty abolitionist advocacy is directed so forcefully toward courts rather than at politicians and the public.

Some related post-Baze posts:

• Bronx cheer for return of executions
• How might state-law-based challenges to lethal injection fare after Baze?
• The state-specific realities of post-Baze execution timelines
• Looking at post-Baze realities in Florida
• Lots of praise for Baze and for capital punishment federalism
• The post-Baze uncertainty and litigation begins
• Georgia poised to have first post-Baze lethal injection execution

Tea-leaf analysis of the likely Rodriquez ACCA case outcome

Writing over at CO, Anita Krishnakumar takes up my query about what her great ACCA analysis might mean for Rodriquez, the one last notable ACCA case still pending before the Justices.  Her thoughtful post highlights the unexpected affiliations that these ACCA cases create and ends this way:

So, hazardous though this kind of speculation can be, I am predicting a 5-4 or 6-3 outcome in favor of the defendant in this case.  Of course, if I am wrong about Justice Alito, the case could flip and the government could win.

Waltzing off to Sixth Circuit judicial conference

I am about to hit the road to attend in Tennessee the Sixth Circuit judicial conference, so blogging may be light over the next 48 hours.  Tomorrow morning I am on a great panel talking about federal sentencing (though at the same time as another great panel on a different topic with SG Paul Clement)

If readers have ideas about what those in the Sixth Circuit MUST know about modern federal sentencing, feel free to give me lecture tips in the comments.

Another great read on the state of federal sentencing

The always interesting Mark Osler has this new piece up on SSRN, which goes by the engaging title "Policy, Uniformity, Discretion, and Congress's Sentencing Acid Trip." Here is the abstract:

The federal sentencing guidelines have been controversial and widely-criticized since they became effective in 1987.  One core problem with the guidelines is that there are too many (at least 31) distinct policy mandates from Congress directed at the Sentencing Commission.  Many of the principles embodied by these mandates are in direct conflict.  Much like the Pointless Man in Harry Nilsson's The Point (a character created while Nilsson was on an acid trip, who has arrows pointing in every direction and thus no point at all), sentencing policy has so many directives that it has no moral basis at all.

This article argues for starting over with the sentencing guidelines from scratch, in a project that can take advantage of state and federal experience over the past 20 years, the scholarship that has developed around sentencing, and can begin with a few understandable directive principles. Though such a project would likely result in a system which allows more judicial discretion, it is our best hope for a federal sentencing system that can combine principle and action with real moral authority.

Great coverage of Fifth Circuit CVRA ruling in BP case

The Houston Chronicle has this terrific article covering yesterday's interesting ruling about the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (discussed here).  Here are excerpts from the article:

A federal appeals court ruled Wednesday that the rights of victims of the 2005 BP explosion in Texas City were violated by Houston federal prosecutors and a judge, but the plea bargain they object to remains on the table.  The 5th U.S. Circuit Court of Appeals said a 2004 law that gives crime victims a say in the process was violated when the prosecutors got U.S. District Judge Nancy Atlas, who was handling miscellaneous courthouse items, to allow a plea bargain to be reached with BP without letting the victims know about the plan.

"It's not really fair to say to the victims that your rights were violated and you get absolutely nothing," said Paul Cassell, a former federal judge and professor at the University of Utah College of Law who specializes in victims rights and is representing the victims in the BP case....

In October 2007, BP's North American products division agreed to plead guilty to a felony violation of the federal Clean Air Act, pay the $50 million fine and serve three years of probation for the blast, which killed 15 people and hurt many more.  The plea agreement must be accepted by a judge to be final and that has not yet happened....

The appellate ruling Wednesday came after the victims asked the 5th Circuit Court to dissolve the plea deal according to the Crime Victims' Rights Act of 2004.  They wanted the legal remedy provided in the act — that BP and prosecutors be forced to start all over, taking into account the views of the injured people and families of the dead....

Prosecutors have defended the plea bargain and noted that the $50 million fine was the harshest available under the Clean Air Act.  "We are ... disappointed by the appellate court's criticism of the government's good faith reliance upon a court's order approving our approach to meet our CVRA obligations," U.S. Attorney Don DeGabrielle said in a prepared statement....

The appellate court said the reasons to keep the victims out did not "pass muster," and the victims had a right to be involved before a plea deal is reached. Though the appellate court said the victims should have been heard earlier, it said that since they were heard by Rosenthal, it will leave it in her hands to "carefully consider their objections." Victims' lawyer Perry said they will now ask the entire 5th Circuit Court, not just the three-judge panel, to consider the case. "There is a whole lot of difference hearing from somebody after you've made up your mind versus hearing early on in the process," Perry said.  "What they wanted to do here was keep the fact that they were exploring a criminal case from the public and from the victims. Under the victims' rights act, that should not be the case."

Though not emphasized in the article, it should not be overlooked that the Dean ruling deepens a circuit split over the standard for review in CVRA appeals.  In part because these issues are likely to come up again and again in a host of dynamic and interesting contexts, it is likely only a matter of time before the Supreme Court has to deal with what the CVRA means and how it should be enforced.

How might state-law-based challenges to lethal injection fare after Baze?

One of many interesting aspects of all the lethal injection litigation over the last few years has been the tendency of some state courts to take up challenges to modern execution protocols based primarily on state statutory or constitutional law.  It is hard to predict how state-law-based challenges may fare in the wake of last month's Supreme Court decision in Baze finding no federal constitutional problems with Kentucky's lethal injection protocol.

Interestingly, as detailed in this media round-up at the blog StandDown Texas Project, a state court hearing about the Ohio's lethal injection protocol this week produced some notable fireworks.  Here is an excerpt from this AP report on the Ohio court hearing:

A prosecutor accused a judge Tuesday of making arguments on behalf of two men challenging the state's method of executing prisoners.

Ruben Rivera and Ronald McCloud, who are accused of separate murders and could receive death sentences if convicted, are disputing the state's lethal injection process, saying it doesn't provide the quick and painless death required by Ohio law. Lorain County Common Pleas Judge James Burge, who intends to make a ruling before July, held a hearing Tuesday to discuss testimony from two anesthesiologists who took the stand last month.

When Burge began questioning language in Ohio's lethal injection statute, assistant county prosecutor Tony Cillo bristled, saying the judge was helping the American Civil Liberties Union make its case. "The court is now making arguments for the plaintiff and that is not the court's role," said Cillo, complaining that he could not prepare for arguments that the ACLU had not raised. "You're supposed to know all of them," Burge said.

The disagreement started over a highly technical question. Burge raised the issue of whether the words "quickly and painlessly cause death" in the statue should be applied not only to the dosage of the lethal injection drugs, but to how they are administered.  In an earlier hearing, Cillo questioned whether Burge already had formed an opinion on the death penalty, noting that the ex-defense attorney has a photo of former client James Filiaggi in his office. Filiaggi was executed last year.  "The court's role is to presume it's constitutional," Cillo said Tuesday. "I do," Burge said. Burge then held a long recess.

Some related post-Baze posts:

• The state-specific realities of post-Baze execution timelines
• Looking at post-Baze realities in Florida
• Media round-up in wake of Baze
• Lots of praise for Baze and for capital punishment federalism
• The post-Baze uncertainty and litigation begins
• Now that Baze is out, when and where will there be the first "new" execution?
• Georgia poised to have first post-Baze lethal injection execution

Has quadriplegic been punished enough already?

A helpful reader altered me to this fascinating sentencing story out of California.  These sad facts provide an extraordinary setting to debate the purposes of punishment (not to mention the purposes of a public trial and the concept of closure):

The sentencing of a quadriplegic accused of killing a 69-year-old woman in a car crash was postponed this morning because his attorney is withdrawing his plea.

Danny Espinoza, 25, had pleaded no contest to felony vehicular manslaughter in the death of Dorothy Anne Walter. Espinoza was driving west on Stockdale Highway on March 5, 2006 and went into the eastbound lane near Buena Vista Road and slammed into Walter’s car. Walter later died at Kern Medical Center.  Espinoza was paralyzed from the accident.

Espinoza faces up to six years in prison. Judge Michael Lewis said this continuance is impeding closure and “this is a difficult sentence for all people.”  Espinoza’s attorney, Bruce Blythe, did not say in the hearing why he chose to withdraw the plea.... Laurie Kolkman, Espinoza’s mother, said a trial will help bring the truth about what happened in the crash. “I think it will be good,” she said.

Prosecutor Michael Yraceburn said the withdrawal was a surprise and that the defendant is having “buyer’s remorse.”... Walter’s family were scheduled to speak at the sentencing. Espinoza’s next hearing is scheduled for June 5.

Bronx cheer for return of executions

As noted here, last night the state of Georgia brought the death penalty back to life in the US by carrying out the first post-Baze execution.  The New York Times celebrated the news with this article, tellingly headlined "As Executions Resume, So Do Questions of Fairness," and this editorial entitled "The Death Penalty Returns."  Here are snippets from the editorial:

Roughly 15 death row prisoners are scheduled to be put to death between now and October, according to the Death Penalty Information Center.  This flood of executions is the result of the Supreme Court’s ruling that upheld the constitutionality of a troubling form of lethal injection.  The next few months, as states put their machinery of death into overdrive, are an ideal time for the nation to rethink its commitment to capital punishment....

These scheduled executions come at a time when many Americans are, rightly, turning away from capital punishment.  We believe that the taking of a life by the state is in all cases wrong, but it is particularly so with the deeply flawed system that exists today.  Many defendants lack adequate legal representation at their trials, race distorts who is sentenced to death for what crimes and juries are “death qualified” — jurors with moral objections to the death penalty are removed. As the recent rash of DNA exonerations has shown, judges and juries too often sentence innocent people to death.

Another good test case for real fans of the Second Amendment

This local story from North Carolina provides more fodder for my view (and hope) that an individual and enforceable Second Amendment right could have lots of unexpected ripples if and when sympathetic felons start demanding that their rights get respected.  Here is the story:

Barney Britt holds a state record for shooting the third largest deer in North Carolina history. Hunting is his passion. "It's the challenge of the hunt," Britt said. But by law, the 46-year-old man from Garner cannot take a shot anymore.

When Britt was 20 years old, he was convicted on a felony drug charge.  He served four months in jail; and as a convicted felon, he was not allowed to carry a gun for five years.

He started hunting again in 1987, and for the next 18 years, he said, he was a law-abiding citizen. But in December of 2004, the state passed a law to conform with federal law, which states that a convicted felon can never again carry a gun. "I feel like I'm being violated and punished all over again," Britt said.

He said there was no appeals process, so he is suing the state to try to get the right back to hunt. The lawsuit is now in the hands of the N.C. Attorney General's Office....

"I think it's a public safety issue," Beth Froehling, public policy specialist with the N.C. Coalition Against Domestic Violence, which supported the change in state law. Despite Britt's nonviolent past, Froehling and other proponents of the law said it was just too difficult to pick and choose which convicted felons should carry a gun and which should not.  "Do we want convicted felons to be allowed to have firearms?" Froehling said.

An irony of this story, among others, is that I believe Britt was violating federal law against felons in possession when he started hunting again in 1987 (unless there is some exception to 18 U.S.C. 922(g) that might apply).  I think this also means that, even if Britt gets some relief in North Carolina, he still has to worry about the feds if he goes out hunting again unless he were to get his conviction expunged.

Some related Second Amendment posts:

• SCOTUS takes new gun case ... is this a Heller tea leaf?
• Get ready for a Second Amendment rumble, defense attorneys
• Imagining post-Heller federal felon-in-possession litigation
• More thoughts about the scope of Second Amendment rights
• Are Scooter Libby and Martha Stewart and millions of others not among the Constitution's "people"?
• Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
• What might Second Amendment strict scrutiny mean for strict gun laws?
• After 220 years, should the Second Amendment stay minimalist?
• Thoughtful analysis of the realities of Second Amendment litigation

A notable and curious (and suspect?) sentence "correction"

As detailed in this South Florida Sun-Sentinel article, headlined "Judge resentences Iranian woman, gives her 2 years in prison," something seems a little hinky about a federal judge "correcting" a sentence to add two years' imprisonment to an original sentence of time-served.  Here are the details:

Shahrazad Mir Gholikhan, an Iranian woman accused of trying to export night vision goggles, thought her guilty plea last month would be her ticket back to her family. The federal prosecutor had recommended a term of time served for the 30-year-old mother's role in the illegal plot to trade with Iran, a U.S.-designated terrorist nation. U.S. District Judge James Cohn imposed the sentence at an April 25 hearing in Fort Lauderdale federal court.

But on Tuesday that smooth resolution unraveled. Determining the sentence had been a mistake, Cohn extended Gholikhan's prison term from time served to two years and five months. Under the law, federal judges can amend sentences within seven business days that result from "arithmetic, technical, or other clear error."

In Gholikhan's case, prosecutor Michael Walleisa alerted Cohn last week that both sides had calculated Gholikhan's recommended sentence using the wrong federal sentencing guideline. The correct sentencing range should have been 30 to 37 months, Walleisa said. He asserted in a legal brief that a sentence of time served was far too light a punishment for "a national security offense that involved trade with a state sponsor of terror." "Her crime is serious and warrants an appropriately severe sentence," Walleisa wrote.

William Barzee, Gholikhan's attorney, called the resentencing unfair and un-American, saying after the hearing that his client feels like she's back in Iran. "I don't think it's fair to [agree on a sentence] and have someone plead guilty and then come back and ask the court for a do-over," Barzee said in court Tuesday.

Cohn agreed with Walleisa that the sentence should be recalculated using the correct guideline provision. He reduced the sentence from 30 months to 29 because Gholikhan spent one month in an Austrian prison on related charges....

Jonathan Rosenthal, a Fort Lauderdale defense lawyer who teaches sentencing at Nova Southeastern University, said he found a description of Gholikhan's resentencing "troubling" because the guidelines are only one factor judges should consider. "I don't understand how on Monday a sentence of four-and-a-half months is reasonable, but on Tuesday, all of a sudden, that sentence is no longer reasonable," Rosenthal said. "Judges are not supposed to give guidelines any undue weight."

Writing here at the Southern District of Florida Blog, David Oscar Markus is also curious about this sentence correction.