Sentencing Law and Policy

Transcripts now available for oral arguments in Graham and Sullivan

Based on the early reports (discussed here), I am really excited to find time to review the transcripts from the oral arguments in the two juve LWOP cases heard today by the Supreme Court.  Everyone can now access the transcript from Graham here and from Sullivan here, and I hope by late tonight to be able to provide some early commentary on these big Eighth Amendment cases.

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Should religious doctrines influence Eighth Amendment jurisprudence?
• Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

"Sex With Informant Voids Prostitution Case"

The title of this post is the headline from this lengthy new report from The Legal Intelligencer.  Here is how the piece starts:

In a case of first impression, the Pennsylvania Superior Court ruled last week that state troopers committed "outrageous government conduct" when investigating alleged prostitution at a massage parlor in the Lehigh Valley by giving money to an undercover informant to have sex four times with two different women at the parlor.

On Thursday, the unanimous panel of Judges John T. Bender and Jack A. Panella and Senior Judge John T.J. Kelly Jr. upheld Lehigh County Common Pleas Judge Robert L. Steinberg's 2008 order dismissing charges of prostitution and promoting prostitution against defendant Sun Cha Chon.  Steinberg found the state police investigating alleged prostitution at Shiatsu Spa committed outrageous government conduct and violated Chon's constitutional rights to due process.

Though this ruling clearly hinges in part on the nature of the criminal activity which the government instigated, the notion that a criminal prosecution should be thwarted because of "outrageous government conduct" involving a confidential informant could have broad implications.  The press report indicates that the Lehigh County District Attorney's office plans to appeal the decision, and this case is worth watching if and when it gets to the Pennsylvania Supreme Court.

Virginia clears final big legal hurdle for executing DC sniper on Tuesday

As detailed in this new Washington Post piece, today the Supreme Court "denied John Allen Muhammad's request to stay his execution, clearing the way for Virginia to put to death the man who terrorized the Washington region as the Beltway Sniper."  Here's more: 

Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor objected to the court's haste, saying it "highlights once again the perversity of executing inmates before their appeals process have been fully concluded."  Stevens, writing for the three, said Virginia had short-circuited the process by scheduling Muhammad's execution for Tuesday night, earlier than the court would normally have reviewed his petition for the court to take his case.

I am not sure what I find most remarkable about this case: the fact that Virginia has been successful in getting Muhammad to the door of the death chamber "only" six years after he was sentenced to death for his horrific crimes is almost as remarkable as the fact that the capital review process is usually so cumbersome that we call a six-year appeal process hasty in a seemingly open-and-shut capital case.

SCOTUS summary reversal of Sixth Circuit capital ineffective assistance ruling

As detailed in this SCOTUSblog post, the Supreme Court issued "no new cert. grants this morning ... [but there was a] summary disposition in the case Bobby v. Van Hook(09-144), which was granted and reversed."  The per curiam ruling in Van Hook can be accessed at this link, and here is how it starts:

The Court of Appeals for the Sixth Circuit granted habeas relief to Robert Van Hook on the ground that he did not receive effective assistance of counsel during the sentencing phase of his capital trial.  Because we think it clear that Van Hook’s attorneys met the constitutional minimum of competence under the correct standard, we grant the petition and reverse.

Justice Alito has an interesting one-paragraph concurrence to the ruling in Van Hook.  Here it is:

I join the Court’s per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney’s performance meets the standard required by the Sixth Amendment.  The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership.  The views of the association’s members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole.  It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination.

Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split.  I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.

I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year.  And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.

But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito.  In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito).  But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority.  Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings.  Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.

Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan.  The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues.  And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts.  Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.

I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy.  (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue).  But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.

A few different older and newer posts on issues related to the Graham and Sullivan cases:

• Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
•  Some very early, very brief sentencing reflections on Judge Sotomayor
• Notable background parallels between Judge Sotomayor and Justice Alito
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Does Roper suggest young juve LWOP is unconstitutional?
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• Should religious doctrines influence Eighth Amendment jurisprudence?
• UK gives life with parole for terrorists convicted of airline bomb plot
• In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

"President Barack Obama proving stingy with his pardon power"

The title of this post is the headline of this little piece today in the Chicago Tribune.  These basics about President Obama's poor clemency track record to date should be familiar to regular readers of this blog:

A lot of things have moved pretty quickly in the Obama administration. Presidential pardons are not among them.  In two and a quarter centuries, only four presidents have been slower than President Barack Obama in exercising their authority of executive clemency -- granting either pardons or commutations of sentences to the convicted -- with thousands of applications pending at the Justice Department.

Some related posts on federal clemency:

• Notable press stories noting Obama's lack of clemency action
• A simple plea for Prez Obama: grant at least a single clemency in your first 100 days
• Historical evidence that it is NOT too early to start demanding clemencies from President Obama
• Still waiting ... and waiting ... and waiting ... on the clemency front
• Another public and potent call to reinvigorate the pardon power
• "Judge urges Obama to cut coke dealer's sentence"
• ACS issue brief on the pardon power
• Latest FSR issue on "Learning from Libby"
• "The Fall of the Presidential Pardon"
• When will President Obama start acting like President Lincoln when it comes to the clemency power?
• What might 2009 have in store for . . . executive clemency?

Documenting the uptick in child porn prosecutions

My local paper has this article this morning, headlined "Authorities crack down on child-porn offenders," which documents the uptick in federal prosecutions of child porn offenses in one district and nationwide. Here are excerpts:

The recent arrest of a Hilliard middle-school teacher and coach on child-pornography charges shocked a community, but it was no surprise to members of law enforcement.

"There is no profile for these individuals," said Westerville Police Chief Joe Morbitzer. "There are so many different types, from all walks of life."  Among those prosecuted by federal authorities in the southern district of Ohio in the past year were a 42-year-old minister from Chillicothe, a 50-year-old information-technology worker for Ohio State University and a 56-year-old pediatrician from Troy.

Prosecutions have surged as investigators grapple with the increasing availability of child pornography on the Internet.  The U.S. attorney's office in Columbus prosecuted 44 people on child-pornography charges in the past 12 months, more than double the caseload during the previous year. Similar efforts are taking place nationwide.  Agents from federal, state and local agencies are forming more than 60 regional task forces, including one in Franklin County, to combat Internet crimes against children....

Two decades ago, law enforcement had all but eliminated child pornography, which then consisted of printed material and videos offered in adult book stores or through the mail.  But the advent of the Internet caused an explosion in the availability and graphic nature of the material....  The number of images sent to the National Center for Missing & Exploited Children after being intercepted by Internet-service providers and law-enforcement agencies has grown from 551,528 in 2004 to 8.6 million in 2008.

Interestingly, my paper also has this important new AP piece this morning, which is headlined "Framed for child porn _ by a PC virus."  Here are its main points: 

Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography....  Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they'll get caught.  Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites....

An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus.  It can cost victims hundreds of thousands of dollars to prove their innocence.  Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.

A few related recent federal child porn prosecution and sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• More examples of sentencing uncertainty surrounding federal child porn cases
• Effective review of federal uptick in child-porn prosecutions

Capital justice greatly delayed (and very costly) in Kentucky

Thanks to How Appealing, I saw this long article from the Louisville Courier-Journal, which is headlined "Kentucky's troubled death-penalty system lets cases languish for decades."  This companion article, headlined "Killer's appeals drag on 29 years," explains how long capital justice gets delayed in the Blue Grass State.  Here are how the main article starts:

Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed. Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed.

In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.

In addition, 30 other inmates whom Kentucky circuit judges sent to death row over the past 33 years ultimately have seen their sentences reduced as the result of appeals, suggesting widespread flaws at the trial level.

The state Department of Public Advocacy estimates that Kentucky spends as much as $8million a year prosecuting, defending and incarcerating death-row inmates, even as state-ordered budget cuts impair other aspects of the judicial branch of government.

Critics of the capital-punishment system question whether Kentucky can afford to litigate death-penalty cases that drag on interminably and rarely end with an execution, especially when convicted murderers can be sentenced to life in prison without the possibility of parole.

Previewing tomorrow's big SCOTUS arguments in Graham and Sullivan juve LWOP cases

How Appealing has collected here lots of links to pieces discussing in the big Graham and Sullivan cases to be argued Monday, November 9 in the Supreme Court.  For all the essential case basics in a well presented form, I recommend Lyle Denniston's preview in this SCOTUSblog post titled "Inquiring into the juvenile mind," and Adam Liptak's preview in this New York Times article headlined "Justices Weigh Life in Prison for Youths Who Never Killed."  And, as detailed below, I have done a series of posts on these very important Eighth Amendment cases since cert was first granted earlier this year.

I have a lot of new thoughts about these cases and tomorrow's arguments, some of which I hope to share in future posts.  For now though, let me make one early prediction (which I reserve the right to change after argument): neither Graham or Sullivan will be resolved through 5-4 rulings.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• ABAJcoverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?
• "The Case Against Juvenile Life Without Parole: Good Policy and Good Law"
• A California perspective on the juve LWOP issues before the Supreme Court

UPDATE:  Howard Bashman here has another collections of press stories about the Graham and Sullivan cases.  Readers get bonus points and my gratitude for spotlighting any special or noteworthy details in all this media coverage of these important SCOTUS cases.

"Suspect Could Face Death Penalty in Fort Hood Shooting"

The title of this post is the headline of this FoxNews piece, which spotlights that the death penalty has entered conversations in the aftermath of the horrible events at Fort Hood earlier this week.  Here is the start of the article:

The Army psychiatrist suspected in Thursday's deadly Fort Hood rampage in Texas could get the death penalty if he is convicted of multiple counts of first-degree murder — and military law experts say the evidence against him will be substantial.

American-born Maj. Nidal Malik Hasan has yet to be charged but is expected to face at least 13 counts of murder, one for each of the victims who died, as well as numerous assault and weapons charges in a court-martial.

"Obviously, we're all guessing, but it's reasonable to believe that he will be convicted and sentenced to death," said retired Navy lawyer Philip Cave, now a military crimes defense attorney.

Cave estimated that Hasan, 39, would spend between five and 15 years in the military's court martial system. "It will be a long charge sheet," military law scholar Richard Rosen told KCBD.com, "one longer than I've ever seen in my life time in the Army."

Might new Governors in New Jersey and Virginia pioneer "smart on crime" innovations?

As noted in this post, there were not any obviously significant crime and justice story lines during this year's local elections.  But, given that New Jersey and Virginia are both interesting sentencing states and both now have new governors with criminal justice backgrounds, I cannot help but wonder and hope that one or both of these states could become effective laboratories for new "smart-on-crime" developments.

"Lighter sentence for murderer with 'bad genes'"

The title of this post is the headline of this interesting sentencing story coming from the publication Nature, which reports on these sentencing developments in Italy:

An Italian court has cut the sentence given to a convicted murderer by a year because he has genes linked to violent behaviour — the first time that behavioural genetics has affected a sentence passed by a European court.  But researchers contacted by Nature have questioned whether the decision was based on sound science.

Abdelmalek Bayout, an Algerian citizen who has lived in Italy since 1993, admitted in 2007 to stabbing and killing Walter Felipe Novoa Perez on 10 March.  Perez, a Colombian living in Italy, had, according to Bayout's testimony, insulted him over the kohl eye make-up the Algerian was wearing.  Bayout, a Muslim, claims he wore the make-up for religious reasons.

During the trial, Bayout's lawyer, Tania Cattarossi, asked the court to take into account that her client may have been mentally ill at the time of the murder.  After considering three psychiatric reports, the judge, Paolo Alessio Vernì, partially agreed that Bayout's psychiatric illness was a mitigating factor and sentenced him to 9 years and 2 months in prison — around three years less than Bayout would have received had he been deemed to be of sound mind.

But at an appeal hearing in May this year, Pier Valerio Reinotti, a judge of the Court of Appeal in Trieste, asked forensic scientists for a new independent psychiatric report to decide whether he should commute the sentence further.

For the new report, Pietro Pietrini, a molecular neuroscientist at Italy's University of Pisa, and Giuseppe Sartori, a cognitive neuroscientist at the University of Padova, conducted a series of tests and found abnormalities in brain-imaging scans and in five genes that have been linked to violent behaviour — including the gene encoding the neurotransmitter-metabolizing enzyme monoamine oxidase A (MAOA).  A 2002 study led by Terrie Moffitt, a geneticist at the Institute of Psychiatry, King's College, London, had found low levels of MAOA expression to be associated with aggressiveness and criminal conduct of young boys raised in abusive environments.

In the report, Pietrini and Sartori concluded that Bayout's genes would make him more prone to behaving violently if provoked.  "There's increasing evidence that some genes together with a particular environmental insult may predispose people to certain behaviour," says Pietrini.

On the basis of the genetic tests, Judge Reinotti docked a further year off the defendant's sentence, arguing that the defendant's genes "would make him particularly aggressive in stressful situations".  Giving his verdict, Reinotti said he had found the MAOA evidence particularly compelling....

But forensic scientists and geneticists contacted by Nature question whether the scientific evidence supports the conclusions reached in the psychiatric report presented to Judge Reinotti.  "We don't know how the whole genome functions and the [possible] protective effects of other genes," says Giuseppe Novelli, a forensic scientist and geneticist at the University Tor Vergata in Rome.  Tests for single genes such as MAOA are "useless and expensive", he adds.

Trying out the Droid

I got a new toy today: the new Droid phone. And this post is a test of Droid-blogging.

Amicus filing in SCOTUS habeas cases creating controversy among death penalty crowd

This story from the Boston Globe, which is headlined "Death penalty foes rip Coakley for signing brief," highlights that the politics of the death penalty in Massachusetts in quite different than in other parts of the country.  Here is the start of the story:

Attorney General Martha Coakley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the US Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other attorneys general, signed a friend-of-the-court brief in September asking that the nation’s highest court maintain restrictions on intervention by federal courts.  Death penalty opponents, who are watching the case closely, say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishments, handed down in state courts.

The case, which comes as Coakley is battling for votes in the Democratic Senate primary, involves a convicted murderer from Alabama who has appealed his case to the Supreme Court, on the grounds that his state-assigned lawyer failed to introduce crucial evidence that he is mentally retarded.

“There’s no way this kid should be killed," said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, an organization that opposes the death penalty.  “It’s old-fashioned Southern states’ rights. I was shocked to see that she and the state of Massachusetts had joined that brief."

Fourth Circuit affirms reliance on uncharged conduct in sex offender sentencing

The Fourth Circuit today in US v. Grubbs, No. 07-5040 (4th Cir. Nov. 6, 2009) (available here), considers and rejects a number of procedural challenges to a federal sex offense sentence. Here is how the opinion begins:

Jimmie Vance Grubbs pled guilty to six counts of knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C. § 2423(a), and six counts of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C. § 2423(b).  The district court sentenced Grubbs to 240 months of imprisonment and a life term of supervised release.  On appeal, Grubbs does not contest his convictions, but contends the district court erred in imposing his sentence for three reasons: (1) the district court violated his Sixth Amendment rights by considering uncharged conduct when deciding an appropriate sentence; (2) the district court violated his Fifth Amendment rights by failing to require the Government to prove uncharged conduct by more than a preponderance of the evidence standard; and (3) the district court committed procedural errors in calculating his United States Sentencing Guidelines ("Guidelines") range.  For the reasons that follow, we disagree with Grubbs and affirm the judgment of the district court.

Florida state judge reduces homicide sentence based on "battered spouse syndrome"

This notable local sentencing story, which is headlined "Davie woman gets five-year sentence for fatal shooting: Woman gets 5 years for killing man who abused her," reports on a sentencing reduction a judge granted based on "battered spouse syndrome."  Here are the details:

Physically, sexually and emotionally dominated by a hulking man who gave her drugs in exchange for sex, Lisa Marie Romero's breaking point came when he threatened her three children's safety.

Romero, 39, shot Frank Don Alvarez, 61, in the back of the head with a rifle and left him dead, face down in an industrial area north of Davie Boulevard near Interstate 95, on Nov. 17, 2006.

Finding that Romero suffered from battered spouse syndrome, Broward Circuit Judge Ilona Holmes on Thursday cast aside sentencing guidelines that called for a 10- to 30-year sentence and sent Romero to prison for five years.

Incensed by the light sentence, Alvarez's son, John, 44, stormed out of the courtroom. "Put it this way, I will get my justice when she gets out of prison," he said, pacing in the courthouse hallway. "She will find out."

He had not yet heard that the judge also gave Romero credit for the nearly three years she had spent in jail awaiting trial. Prison will be followed by 10 years of probation.

Influenced by opinions from two psychologists who found that Alvarez abused Romero, state prosecutor Al Ribas downgraded a charge of first-degree murder to manslaughter with a firearm. In September, Romero pleaded guilty to that charge.

Bernie Kerik enters plea deal providing him a different perspective on homeland secutiry

As detailed in this New York Times article, Bernard Kerik today pleaded guilty to eight charges including tax fraud and lying to White House officials. Kerik, who lead the NYPD through the 9/11 attack and was taped in 2004 to head the Department of Homeland Security, was able to secure a plea deal with a specific sentencing recommendation:

The prosecution and the defense recommended that the judge, Stephen C. Robinson, sentence Mr. Kerik, who faced up to 30 years in prison on the most serious charge, to 27 to 33 months. The judge, who is not bound by the recommendation, set sentencing for Feb. 18. Mr. Kerik was also ordered to pay restitution of nearly $188,000.

The tax fraud charges stemmed in part from Mr. Kerik’s acceptance of $250,000 in renovations to his Bronx apartment, provided by a company accused of having ties to organized crime. He also admitted lying to White House officials, denying improprieties, while he was being interviewed to be head of the Department of Homeland Security.

Playing the "blame game" for increased sentencing disparities after Booker

With the upcoming five-year anniversary of the Supreme Court's decision in Booker and a new Wall Street Journal piece discussing the enduring challenge of balancing individual and equal justice, I have been thinking lately about increased federal sentencing disparities.  Here are some of my early thoughts:

1.  As was rightly expected, there seems to be increased disparity in sentencing outcomes after Booker.  With the guidelines advisory (but with the open-ended 3553(a) standards mandatory), it was all but inevitable that a diverse set of district judges nationwide, who are imposing sentences while subject to a diverse sets of legal, cultural and practical influences in diverse settings, were likely to impose a more diverse set of sentencing outcomes.

2.  Increased sentencing disparities after Booker seem most evident where the now-advisory sentencing guidelines are least sound, such as in low-level crack cases, child porn downloading cases and high-loss, white-collar fraud cases.  Especially when first offenders in these cases are facing very high guideline ranges, many sentencing judges (though still not most) believe that 3553(a) demands imposing non-guideline sentences.

3.  Increased sentencing disparities after Booker might be reducing overall sentencing injustice in the federal sentencing system given the injustice of certain guidelines.  As the US Sentencing Commission's own studies suggest, having all crack offenders sentenced to often unjust sentences before Booker may be much worse that having some (but not all) crack offenders now getting different and sometimes more just sentences after Booker.

4.  Federal district judges probably merit the least blame for increased sentencing disparities after Booker, as they must in each case try to balance the mandates of the open-ended 3553(a) standards without the help of sound sentencing guidelines in many cases.  Indeed, playing the "blame game," here is how I would roughly prioritize who merits the most "blame" for increased sentencing disparities after Booker:

A.  Congress --- for failing to seek to reform or revise the entire system after Booker

B.  US Sentencing Commission --- for failing to revise the most unsound guidelines

C.  SCOTUS and the Circuits --- for failing to give reasonableness review any substantive content

D.  Justice Department --- for failing to urge Congress or the USSC to do better

Of course, there is additional "blame" to go around for increased sentencing disparities after Booker, as individual prosecutors and defense attorney have surely been "disparate" in their sentencing advocacy over the past five years.  Similarly, there is surely increased post-Booker disparity in sentencing procedures adopted by individual US Attorneys' offices and probation offices, and differing procedures surely contributes to disparate outcomes.

But as suggested above, I think it unfair (and not especially productive) to blame sentencing actors with case-specific sentencing responsibilities for increased sentencing disparities after Booker.  These actors will (and necessarily should) principally focus on achieving individualized justice in the individual cases they address each day.  If there is a broad concern that system-wide justice is not being well-served as we approach Booker's five-year anniversary, the blame should be principally placed on the system-wide actors who've mostly produced and perpetuated the post-Booker system-wide framework.

"[A]mong those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior"

The title of this post is the key take-away from the abstract of this new criminology paper on SSRN from Donald Green and Daniel Winik. The paper is titled "Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism Among Drug Offenders," and here is the abstract:

Most prior studies of recidivism have used observational data to estimate the causal effect of imprisonment or probation on the probability that a convicted individual is re-arrested after release. Very few studies have taken advantage of the fact that in some jurisdictions, defendants are randomly assigned to judges who vary in sentencing tendencies.  The present study investigates whether defendants who are randomly assigned to more punitive judges have different recidivism probabilities than defendants who are assigned to relatively lenient judges.

We track 1,003 defendants charged with drug-related offenses (and no non-drug-related offenses) who were randomly assigned to nine judicial calendars between June 1, 2002 and May 9, 2003. Judges on these calendars meted out sentences that varied substantially in terms of prison and probation time. We tracked defendants using court records over a four-year period following the disposition of their cases in order to determine whether they were subsequently re-arrested.  Our results indicate that randomly-assigned variations in prison and probation time have no detectable effect on rates of re-arrest.  The findings suggest that, at least among those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior.