Sentencing Law and Policy

House hearing on "Mandatory Minimums and Unintended Consequences"

Though nearly all eyes this week will be on the Senate Judiciary Committee as the confirmation hearings for Judge Sotomayor get started, sentencing fans should be sure to take note of a hearing scheduled for Tuesday in the House. Specifically, as detailed here, on Tuesday morning the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on "Mandatory Minimums and Unintended Consequences."

Though no official witness list has yet been posted, this item from FAMM indicates that FAMM president Julie Stewart is scheduled to testify.  I hope and expect that some representative from the Department of Justice will also be testifying, though I am not quite sure what to hope and expect to hear from DOJ on mandatory minimums. 

Though AG Holder recently gave a fairly progressive speech on criminal justice issues (details here), he has previously express at least modest support for some mandatory minimum sentencing laws.  And, though President Obama has expressed concerns about mandatory minimums, his Administration has to date largely avoided expressly condemning or condoning such laws.  Perhaps something consequential might get said by the DOJ rep at this upcoming hearing.

A few confirmation questions for criminal justice fans from Senator Cornyn

As explained here, in the run up to Judge Sotomayor's confirmation hearing, Texas Senator John Cornyn for the last few weeks has been posting questions about Judge Sotomayor's record and her views on the law and the Constitution  The full list of questions can be found at this link, and here are a few of Senator Cornyn's 20 questions that might be of special interest to criminal justice fans:

Question 9: Are judges supposed to update the law to reflect changing social policy?

Question 10: What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?

Question 14: Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?

Question 16: Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?

Obviously, only Question 16 is a "pure" criminal justice question.  But Question 9 seems especially relevant to modern Eighth Amendment doctrine, which is implicated by the big juve LWOP cases on the Supreme Court's docket.  And, as regular readers know, I think a declaration that the Second Amendment protects a fundamental right could have profound implications for criminal justice administration.  And I could imagine lawyers and judges of all political stripes coming up with criminal-justice-related answers for Question 14 (which is the most intriguing question of this bunch).

Noticing some gendered realities of death penalty administration

This local article from Alabama, headlined " Death row-worthy crimes largely committed by men," spotlights a couple of issues about death penalty administration that I always find notable.  Here are snippets:

If a Franklin County judge overrides a jury's recommendation and sentences Christie Michelle Scott to die by lethal injection, she would be the first woman in the county to receive the death penalty.

Franklin Circuit Court Judge Terry Dempsey will impose her sentence Aug. 5. The jury who convicted her of killing her 6-year-old son, Mason, recommended Friday that she be sentenced to life in prison without parole.  Dempsey is not obligated to accept the jury's recommendation and could instead sentence her to death.

A death sentence for Scott, who was convicted of three counts of capital murder Wednesday, would also make her one of a few women in Alabama ever to be sentenced to die for a crime.

Since 1973, only 10 women have received death sentences in Alabama, said Richard Dieter, director of the Washington, D.C.-based Death Penalty Information Center, a nonprofit that tracks capital punishment in the United States. Only one of those women, Lynda L. Block, who was convicted in 1994 for killing an Opelika policeman, has been executed. She was executed May, 10, 2002, and since then no other woman has been executed in Alabama, according the Alabama Department of Corrections.

Only four women have been executed in Alabama since 1927, according to state corrections statistics. During that same period, 192 men have been executed. There are 199 men and four women on Alabama's death row.

Bryan K. Fair, a professor of law at the University of Alabama, said the wide margin between the number of men and women being sentenced to death is not a result of courts being more lenient on women. Instead, it's a result of fewer women committing crimes that meet the criteria for capital punishment, such as a homicide committed during a robbery or rape. "The kinds of offenses that can be punished by death are typically committed by men," Fair said. "In our society in general, violent crimes are committed most often by men."

Dieter said Alabama is not alone in having far fewer women than men on death row.  "Most of the women who are on death row were convicted of killing their husband or someone they knew," Dieter said. "Women rarely kill a stranger, such as during a robbery, because women do not typically commit violent crimes."

Franklin County District Attorney Joey Rushing calls the crime Scott committed the most heinous ever in the county. "There's nothing worse than a mother murdering a child for insurance and because they didn't want him," Rushing said at trial....

Because of the heinous nature of the child's death, Rushing said he will ask Dempsey to consider the death penalty at Scott's Aug. 5 sentencing hearing.  He said five of the 12 jurors supported sending Scott to death row.

This article not only raises issues of gender, but also the role of judicial overrides to correct biases in the administration of the death penalty.  Should Franklin Circuit Court Judge Terry Dempsey feel a special obligation to impose a sentence of death if he believes that the jury recommended a life sentence only or primarily because the defendant here was a woman?

Constitutional rejection of severe mandatory minimum sentence getting attention for circuit nominee

This effective new article in today's Atlanta Journal-Constitution , which is headlined "Appeals nominee set sentence rule aside," reviews a notable ruling in a federal sex offense case by one of President Obama's latest circuit court nominees. Here are a few details:

Kelly Brenton Farley had it all planned out: fly into Atlanta for business, hook up with a woman he met on the Internet and have sex with her and her 10-year-old daughter.  But Farley never got the chance. When his plane landed in Atlanta, he was ensnared in an undercover FBI sting, arrested and later convicted at trial.

For crossing state lines to engage in sex with a child under 12, Farley faced a 30-year minimum mandatory prison sentence set by Congress.  But U.S. District Judge Beverly Martin — President Barack Obama’s nominee for the federal appeals court in Atlanta — declined to impose it.

In a ruling federal prosecutors call “unprecedented,” Martin found unconstitutional the minimum mandatory term. In an order, she said the punishment was disproportionately severe when compared to penalties for similar and more aggravated crimes.... The ruling has already drawn sharp criticism by top House Republican lawmakers who say Martin ignored Congress’ authority to decide the appropriate punishment for those who try to sexually abuse a child.  Nine members are asking the 11th U.S. Circuit Court of Appeals — where Martin would sit if she is confirmed — to overturn her decision....

Last week, Rep. Lamar Smith (R-Texas), ranking minority member of the House Judiciary Committee, said Martin improperly lopped 10 years off Congress’ mandatory minimum sentence for pedophiles. “If we’re serious about protecting children from sexual predators, we must make sure that our laws are effectively enforced and that judges do not stray from Congress’ intent,” he said....

Last month, when Obama sought to elevate Martin to the appeals court, he called her a first-rate jurist with “unflagging integrity and evenhandedness.”  The 12-member 11th Circuit, hears appeals out of Georgia, Alabama and Florida.  Martin, 53, is a former U.S. attorney in Macon. She was put on the U.S. District Court in Atlanta by President Bill Clinton in 2000.

Former state Attorney General Mike Bowers, a Republican who recommends judicial appointments to Gov. Sonny Perdue, called Martin a straight shooter who “really believes in the rule of law and doing what’s right.” No one should give her a hard time at her confirmation hearing, Bowers said. “She’s a gift.”  One of Georgia’s two GOP senators, Saxby Chambliss, gave Martin a ringing endorsement, saying Obama “could not have chosen a more qualified individual” for the 11th Circuit.

Atlanta criminal defense attorney Don Samuel, an expert on federal sentencing law, noted that Martin did not declare the 30-year minimum mandatory sentence unconstitutional in every case — only as it applied to Farley. “[It] reflects her thoughtful consideration of whether the Constitution permits Congress to set a minimum sentence that bars a judge from considering any facts about the case that might make a sentence unreasonable,” he said.

In her Sept. 2, 2008, order, Martin said she had “tremendous respect and deference” for Congress. But to simply assume a statute is constitutional without substantive review would violate the principle of separation of powers, she said.  At Farley’s sentencing hearing, Martin sent him away for 19 years and seven months in prison. “I have never intended to imply that I don’t consider this a serious offense,” she told him.

During eight years as a federal judge, Martin said, the only statute she had struck down was a local sign ordinance.  She also said that when she set out to decide the constitutional challenge to the mandatory prison sentence, she intended to uphold it. But when reviewing other statutes imposing penalties for similar or more severe conduct, “I just couldn’t form the words to say that it wasn’t … disproportionately harsh,” she said. Martin noted that crossing state lines with the intent to kill someone carries a maximum penalty of 10 years in prison; if the victim is physically harmed, the maximum is 20 years.

Farley, a father of six from McKinney, Texas, once earned $140,000 as a regional vice president for a financial services company. On Oct. 3, 2006, he entered a Yahoo chat room called “Fetish Number 14,” devoted to the topic of incest. In the chat, Farley met “Stephanie,” who said she was a nurse and a single mother with a 10-year-old daughter named Sydney. But Stephanie was actually Joanne Southerland, a Clayton County detective assigned to the FBI task force....

Congress requires the same minimum mandatory 30-year term for someone who actually engages in sex with a child, Martin wrote.  She noted that no harm was suffered in Farley’s case, “because the child was a creation of law enforcement and no real child exists.”... “While Mr. Farley’s crime is deplorable,”  Martin concluded, “it is far less grave than crimes committed by perpetual offenders that remain a demonstrated threat to the public, or crimes that result in loss of or emotional devastation to a person’s life.”

Related posts:

• District Court finds AWA mandatory sentence unconstitutional under the Eighth Amendment

• House Republicans file brief in support of 30-year mandatory minimum sentence in Farley

Execution chambers starting to heat up for the dog days of summer

The nation's execution chambers were pretty quiet through the month of June: after a single execution in Ohio and another in Texas at the very start of the month, there was only one more execution (in Alabama) before the calender turned to July.  This past Thursday, however, Oklahoma executed a double murderer (details here from the AP), and five more executions are on tap for the next two weeks (schedule here via DPIC).

If all five of the executions scheduled for the next two weeks take place, there will have already been more executions in 2009 than took place in all of 2008.  That notable fact is mostly the result of the Baze litigation, which blocked all executions through May of 2008.  Nevertheless, if the pace of roughly six executions per month continues through the end of 2009, it is possible that the first year of the Obama Administration could end up having more executions nationwide than did any single year during the two term served by President Bush.

Some related posts:

• What might 2009 have in store for . . . the death penalty in the US?
• Noting the quicker pace of executions in Texas 
• DPIC releases year-end report on state of death penalty in 2008
• Notable second-term Presidential execution realities

"Prolonged Solitary Confinement and the Constitution"

The title of this post is te title of this new piece by Jules Lobel now available via SSRN.  Here is the abstract:

This Article will address whether the increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined. It will not only look at United States case law, but at the jurisprudence of international human rights courts, commissions, and institutions. As the U.S. Supreme Court has noted, international jurisprudence can be helpful in determining the scope and meaning of broad terms in our Constitution such as “cruel and unusual punishments” or “due process,” as those terms ought to be understood in the context of what has been deemed unacceptable by the world community. This practice of long-term solitary confinement constitutes cruel and unusual punishment and violates the due process rights of prisoners, yet the unfortunate trend in the United States has been to downplay and ignore the cruel and inhuman effects of psychological abuse to prisoners where there is no long-term physical injury.

Some related posts:

• Why isn't there more constitutional litigation over the "hellhole" that is extended solitary confinement?
• Great NPR series on solitary confinement
• More on Supermax, human dignity, and public safety
• Seventh Circuit ruling spotlighting Supermax realities
• The case against supermax
• Effective NPR coverage of supermax prisons and solitary confinement
• Inaugural rhetoric about freedom and liberty in prison nation
• My latest (academic?) musings about progressive punishment perspectives

What questions should Judge Sotomayor be asked in her confirmation hearing?

The WSJ Law Blog has this timely new entry, titled "Sotomayor: A Guest’s Perspective On What Senators Should Ask The Judge."  In what appears to be part of a developing series, Professor Heather Gerken in this post suggests that Senators look beyond headline-making cases to probe methodology:

If you really want to know what a judge is like, don’t ask about highly visible decisions; ask about the invisible work habits that produce them.  Ask Judge Sotomayor simple, even mundane questions about daily life on the bench.  Ask her how she prepares for a case.

How much time a judge spends on preparation is a pretty good proxy for identifying judges who care only about outcomes.  A judge who spends a lot of time reading the briefs and reviewing the case law is the kind of judge who decides one case at a time. 

I hope Senators go beyond the headline-making cases in their questions to Judge Sotomayor, though I doubt we would get too many surprising answers from truly mundane questions about preparation methods.  That said, the kinds of simple questions a child might ask – e.g., "What is your favorite part of being a judge?" or "What cases to you find most difficult (or most fun)?" – would be kind of cool to hear.

Returning to matters of substance, I am of course hoping that criminal justice and sentencing issues get some extended play during next week's Senate hearings.  But, I am hoping Senators do much more than ask the inevitable questions about the death penalty and the Second Amendment.  For example, it might be interesting and useful to ask Judge Sotomayor to compare and contrast her experiences with state and federal criminal justice systems.  Or maybe she should be asked about Justice Kennedy's 2003 speech to the ABA in which he asserted boldly that now America's "resources are misspent, our punishments too severe, our sentences too long."

Any weekend thoughts and ideas for the Senators, dear readers?  (One never knows what blogs a staffer might be reading, so let's try to keep it real – and, yes, I am talking to you, Supremecy Claus.)

Is real fundamental, structural change on the horizon for the federal sentencing system?

As detailed in this report about the US Sentencing Commission regional hearing in New York this week, a number of federal judges are urging the USSC to work on big, structural sentencing reform.  In the words of Judge Dearie: "It is not a time to tinker ... it is time for fundamental reform....  If necessary, start all over.  The truth is, you may be our only hope.  Raise your voice or voices.  We must rely on each of you to think outside the box."

Of course, federal judges (as well as academics) have been urging fundamental, structural changes to the federal sentencing system for quite some time.  But, now a passage this recent speech by Attorney General Eric Holder suggests that the Justice Department may soon be urging some big changes:

Although this Administration is still young, we have already started to put into practice what I believe is a data-driven, non-ideological, post-partisan approach to crime.  For example, I have asked attorneys throughout the Department to conduct a comprehensive, evidence-based review of federal sentencing and corrections policy.  Specifically, the group is examining the federal sentencing guidelines, the Department’s charging and sentencing advocacy practices, mandatory minimums, crack/powder cocaine sentencing disparities, and other racial and ethnic disparities in sentencing.  The group is also studying alternatives to incarceration and strategies that help reduce recidivism when former offenders reenter society.  We intend to use the group’s findings as a springboard for recommending new legislation that will reform the structure of federal sentencing.

I have added the emphasis and bold to the end of this passage because I think AG Holder's reference to reforming the structure of federal sentencing is quite significant and could portend big changes on the horizon.  (Or, maybe I am just a bit giddy on hope-and-change talk on a sunny Friday afternoon.)

"21-month sentence for man who beat fellow golfer with 6-iron"

The title of this post is the headline from this local sentencing story that seems to provide a great setting for a little friday frivolity.  First, here are the basics:

A Puyallup man who assaulted a fellow golfer with a 6-iron last summer was sentenced this morning to 21 months in prison.

Nicholas Shampine, 34, was found guilty of second-degree assault during a jury trial in May.  King County Superior Court Judge Deborah Fleck sentenced Shampine, who has no prior criminal convictions, to a high-end sentence at the Maleng Regional Justice Center this morning.

Shampine attacked James Compton at the Auburn Golf Course last July 13 after Compton's golf party complained to the greens marshal that Shampine's party was taking too long at each hole, according to court charging paperwork.  Members of Shampine's group were also upset at Compton's group for being too noisy, authorities said.

A shoving match broke out and Shampine struck Compton in the left temple with the golf club, prosecutors said. Compton fell to the turf in convulsions, bleeding heavily and was taken to Harborview Medical Center.  Shampine told Auburn police that he attacked Compton, 46, to protect his brother, who was golfing with him.

King County Senior Deputy Prosecutor Dan Soukup said that Compton still suffers memory loss and confusion. Compton and his wife spoke at the sentencing today and asked Fleck to give Shampine the maximum sentence.

Now, golf fans, it is time for the frviloity: though this story is sad and serious, it also seems like the set-up for some possible golf and/or sentencing jokes.   Let's see if I can get the (golf) ball rolling:  "Maybe the defendant should have asked the judge for a mulligan."   Lame, I know, which is why I hope readers can do better while I sit at my computer and wish I was golfing.

Cross-posted at The Golf Blog.

Legal challenge to Washington's lethal injection methods turned away

This new AP story, headlined  "Judge affirms Wash. lethal injection method," provides details on another failed challenge to a state execution protocol.  Here are th basics:

A judge has affirmed Washington state's procedures for executing prisoners by lethal injection, turning aside complaints that condemned inmates could be partially conscious when fatal drugs flow into their veins.

In a ruling released Friday, Thurston County Superior Court Judge Chris Wickham said that the inmates presented no evidence that the state "intended to impose punishment that was 'cruel.'" "The procedure to be used by defendants, although not fail-safe, appears to have been designed to administer the death penalty in a way that is humane for the inmate and the observers,"  Wickham wrote. "It is an attempt to provide some dignity to this most grave event."

The inmates are likely to appeal the ruling.... The lawsuit [turned away here] argued that Washington's lethal injection procedures are so sloppy and inconsistent that inmates might be partially conscious when fatal drugs flow into their veins.... The lawsuit alleged a long list of shortcomings in the state's lethal injection methods: No supervision by doctors or nurses, inadequate training and rehearsals for the execution team, and lack of medical qualifications for everyone involved.

Important and heartening new speech from AG Eric Holder

Attorney General Eric Holder delivered this speech at the Vera Institute of Justice last night. There are too many notable sections of this long speech to cover here, so I will just call the whole speech a must-read.  Here is an excerpt highlights key themes from the start of the speech:

The Vera Institute of Justice has been an extraordinary partner to government in the administration of justice.... Your practical, rational, data-driven, results-oriented approach can best be described as post-partisan. In the five months that I have served as Attorney General, I have tried to take that same approach, and that is what I would like to talk about this evening: how we can move past politics and ideology in order to get smart on crime.

Getting smart on crime requires talking honestly about which policies have worked and which have not, without fear of being labeled as too hard or, more likely, as too soft on crime. Getting smart on crime means moving beyond useless labels and instead embracing science and data, and relying on them to shape policy. And it means thinking about crime in context – not just reacting to the criminal act, but developing the government’s ability to enhance public safety before the crime is committed and after the former offender is returned to society.

It is imperative that we get smart on crime now, for much has changed since some of our basic, governing assumptions about criminal law enforcement were developed. In the middle years of the twentieth century, America went through an historic increase in crime and illegal drug use. In the 1960s and 70s, the overall crime rate increased more than five-fold. Violent crime nearly quadrupled. The murder rate doubled. And heroin, cocaine and other illegal drug use surged.

Many lawmakers in the 1980s responded by declaring, in rhetoric and in legislation, that we needed to get tough on crime. States passed truth-in-sentencing and three strikes and you’re out laws. Some state parole boards became more cautious, while other states eliminated discretionary parole altogether. The federal government adopted severe mandatory minimum sentencing laws, eliminated parole, and developed the federal sentencing guidelines.

The federal government and states spent billions of dollars in new prison construction. The result was dramatic: the number of inmates in American prisons has increased seven-fold since 1970. Today, one out of every 100 adults in America is incarcerated – the highest incarceration rate in the world.

Few would dispute that public safety requires incarceration, and that imprisonment is at least partially responsible for the dramatic drop in crime rates nationwide in recent decades. By 2007, the nation’s violent crime rate had dropped by almost 40% from its peak in 1991. But just as everyone should concede that incarceration is part of the answer, everyone should also concede that it is not the whole answer. Simply stated, imprisonment is not a complete strategy for criminal law enforcement.

To begin with, high rates of incarceration have tremendous social costs. And, of course, there also is the matter of simple dollars and cents, and the principle of diminishing marginal returns. Every state in the union is trying to trim budgets. States and localities are laying off teachers and canceling sanitation department shifts, but in almost all cases, spending on prisons continues to increase. Not only is this unsustainable economically, but it is also not proving to be effective at fighting crime. For while prison building and prison spending continue to increase, public safety is not improving. Since 2003, spending on incarceration has continued to rise, but crime rates have flattened. Indeed, crime rates appear to have reached a plateau, and no longer respond to increases in incarceration.

So what can we do to lower the crime rate further, to make American communities safer, to get smarter on crime?  We need new tools – and one way to develop new tools is to look several steps past getting people into prison, and to consider what happens to people after they leave prison and reenter society.

HUZZAH!

Some related old and new posts:

• My latest (academic?) musings about progressive punishment perspectives
• Are we on the verge of a new changed era concerning federal sentencing law and policy?
• Why I fear change will not come quickly to federal sentencing policy and practice
• Will AG Holder really lead a "new birth of freedom" in prison nation?
• Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
• Senator Jim Webb takes his concerns about prison nation to the next level
• Making an economic case for cost-oriented sentencing and prison reforms
• Important (though incomplete) op-ed on mass incarceration and mercy
• Senator Jim Webb continues his important campaign for serious sentencing and prison reforms
• The state of cost problems in the states of prison nation
• How many states are being forced by economic realities to consider releasing prisoners?
• Will we invest in classrooms or cells in these tough times?
• "Tough sentencing harder on budgets than on crime"
• FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
• What might 2009 have in store for . . . punishment theory and incarceration rates?

Of note and interest around the blogosphere

As is often the case, a quick tour of the blogosphere reveals lots of interesting and notable reading from some of my favorite blogs:

• From Crime & Consequences here, "Sex Offender Assessment Tool Held Inadmissible"

• From Grits for Breakfast here, "Oversight: Why so little MSM coverage after Texas abolished LWOP for juveniles?"

• From PrawfsBlawg here, "Reconsidering the Punishment of Violent Crime"

• From Simple Justice here, "Dreier and The Bernie Scale"

• From TalkLeft here, "Justice Ginsberg on Judicial Diversity"

Effective and fascinating report on USSC regional hearing in NYC

I was pleased to see this report from Bloomberg news, headlined "Judges Call on U.S. to Simplify Sentencing Guidelines," covering yesterday's first day of the US Sentencing Commission's regional hearing in New York City.  Here are extended excerpts from an effective and interesting article:

The U.S. Sentencing Commission should work to simplify federal guidelines and keep them advisory, rather than return to a mandatory system, a group of federal judges said.  The judges spoke today at the U.S. Court of International Trade in New York, where the commission is holding the third in a series of public hearings on policy issues.

The seven-member commission should work with Congress to create a “politically viable” plan to simplify the sentencing rules, which are “ridiculed” in other countries, said Jon Newman, who sits on the appeals court in New York. Several other judges said they agreed with him.... 

Denny Chin, a district judge in Manhattan, praised the Supreme Court for its Booker decision. “Most if not all of my colleagues in the Southern District of New York would agree the system is better post-Booker,” Chin testified today. “We have more flexibility to do what we are supposed to do -- to judge -- and we are not limited to merely applying mechanical rules and doing mathematical calculations.” Last month, Chin sentenced Bernard Madoff to 150 years in prison for a decades-long fraud that cheated investors of billions of dollars.

Richard Arcara, a district judge in Buffalo, New York, also praised the Booker decision for returning sentencing discretion to judges. “Booker has improved the quality of the sentencing jurisprudence,” Arcara testified.  However, the new system is even more time-consuming for judges, Arcara said. In addition to performing guideline calculations, resolving objections and addressing motions for a reduced sentence, they must also now address motions for a sentence outside the advisory range, elaborately justifying each sentence, he said. 

The lone dissenter was Judge Brett Kavanaugh, who serves on the appeals court in Washington.... Acknowledging that Booker is “here to stay,” Kavanaugh argued that the Supreme Court’s Booker decision has increased disparities and that it invites judges to improperly apply personal and policy views when imposing a sentence.

William Carr, a vice chair of the Sentencing Commission, singled Kavanaugh out. “Judge Kavanaugh, you are unusual in longing for a return to the mandatory system,” Carr said. “Most district judges are happy with the advisory system.”  Kavanaugh proposed a remedy that would be a hybrid of the mandatory and advisory systems.  Newman said that he could live with that, as long as the proposed Congressional reform reduced the infinite calculations in the current system.

The reporter filing this story, Cynthia Cotts, kindly just  provides me via e-mail "some new material that you are free to post on your blog."  Specifically, "Raymond Dearie, a district judge in the Eastern District of New York, gave an impassioned speech this morning."  Here are excerpts from that speech by Judge Dearie:

"The post-Booker era presents a magnificent opportunity for the commission and Congress, and I urge you to take the lead.

We have created -- all of us -- a culture of incarceration.  We incarcerate more people for longer periods than any country in the world, at a cost of $50 billion annually.  One out of every 9 black men between the age of 20 and 34 in this land of the free is in jail.  The number of drug offenders in prison has increased by 1100 percent since 1980, the vast majority of whom are small-time, non-violent offenders.

There are other ways to address this problem.  It is not a time to tinker.  I agree with Judge Newman and others that it is time for fundamental reform.  We have not achieved truth in sentencing.  I do not agree that the commission is powerless to do anything about mandatory sentencing.  Simplify the guidelines.  Give us broad, empirically-based ranges with limited review if the sentence falls outside the range.  Give us more tools to fashion sentences that work for everyone. If necessary, start all over.  The truth is, you may be our only hope.  Raise your voice or voices.  We must rely on each of you to think outside the box."

According to this new report, "Judge Dearie said that he is confident his sentiments are shared by most, if not all of his colleagues in the Eastern District."  I am confident that I share his sentitment 100% and I am really pleased and gratified that the US Sentencing Commission is hearing these potent points.

"Prosecutors Resort to Wealth Porn in Dreier Case"

The title of this post is the title of this entry at the WSJ Law Blog discussing the latest filings from the parties in the upcoming sentencing of Marc Dreier (basics here).  Here is the setting which a grand new term gets coined:

We turn back to Marc Dreier, who yesterday filed a motion asking that he be sentenced to no more than 12 ½ years for running a Ponzi scheme.  Now we return to the government’s response, also filed yesterday, in which asks New York federal judge Jed Rakoff to sentence Dreier to 145 years, in line with the federal sentencing guidelines.

The most interesting thing about the government’s filing was its inclusion of what we’ll call, for a lack of a better term, wealth porn: glossy photos of Dreier’s lavish lifestyle, including images of his yacht, beach front house in the Hamptons, and his $207,043.29 Aston Martin DB-9 convertible....

Our personal favorite is the image of the bedroom in his yacht, which features replete with wood and leather that appears mighty soft to the touch.  Obviously, the government is using the power of the image to try to claim Dreier was consumed by greed ─ a point Dreier virtually conceded in yesterday’s court filing ─ and deserving of no leniency in sentencing.

All of the filings in the Dreier case are really interesting, and I thought the arguments by Dreier's lawyers in this memorandum for a relatively "moderate" sentence (in the range of 10 to 12 years in prison) were especially thoughtful.  In light of nature and scope of  Dreier's crimes, however, I think the over/under on his sentence has to be in the range of 20 years.

The audacity of having hope and dreams inside the Supermax walls

Here is a new AP report that seems likely to make Shawn Hannity, Rush Limbaugh and Michael Savage all smile. The piece is headine "Supermax prison: Obama's books objectionable," and here are snippets:

The federal government's most secure prison has determined that two books written by President Barack Obama contain material "potentially detrimental to national security" and rejected an inmate's request to read them.

Ahmed Omar Abu Ali is serving a 30-year sentence at the federal supermax prison in Florence, Colo., for joining al-Qaida and plotting to assassinate then-President George W. Bush. Last year, Abu Ali requested two books written by Obama: "Dreams from My Father" and "The Audacity of Hope."

But prison officials, citing guidance from the FBI, determined that passages in both books contain information that could damage national security.  A prison spokeswoman referred questions to the FBI, where a spokeswoman was looking into the matter Thursday evening.

The documents detailing the prison's rejection of Obama's books are included in court papers for a resentencing hearing scheduled later this month for Abu Ali, a U.S. citizen.... Abu Ali requested the books in August, before Obama was elected. In a short, handwritten note on a prison complaint form, Abu Ali argues that the two rejections "violate my 1st amend. rights."...

Prison officials cite specific pages -- but not specific passages -- in the books that they deem objectionable. They include one page in Obama's 1995 book, "Dreams from My Father," and 22 separate pages in his policy-oriented 2006 book, "The Audacity of Hope." It was not immediately obvious what passages might have been deemed problematic, though nearly half of the pages cited are in a chapter devoted to foreign affairs....

Abu Ali will be resentenced July 27, following an appellate court ruling that U.S. District Judge Gerald Bruce Lee improperly deviated from sentencing guidelines that recommended a term of life in prison.

"Madoff won't appeal 150-year sentence, attorney says"

The title of this post is the headline of this new story from CNN.  Here are a few more details:

"We are not going to appeal," Madoff attorney Ira Lee Sorkin told CNN on Thursday.  Sorkin said he met with Madoff this week at the Metropolitan Correctional Center in Lower Manhattan.  "Even if the Court of Appeals sends it back, certainly a guidelines sentence under the circumstances would give him a life sentence," he added.

Citing crimes that were "extraordinarily evil," U.S. District Judge Denny Chin on June 29 sentenced Madoff to the maximum 150-year term for the 11 criminal counts to which Madoff pleaded guilty, including securities fraud, investment adviser fraud, mail fraud, wire fraud and money laundering.

The official estimate of investor losses suffered from Madoff's scheme stands at more than $13 billion, but that amount ultimately may be more.  Chin said the severity of the sentence would be symbolic, important in a case where the "fraud was staggering" and the "breach of trust was massive."

Sorkin said he differs with Chin's focus on symbolism.  "I don't think the guidelines talk about symbolism.  People are not symbols.  They are sentenced under a reasonable standard," the attorney said. But Sorkin added, "The judge made the decision.  We respect his decision."

Split Ninth Circuit ruling reversing a jury verdict in a prisoner lawsuit

A Ninth Circuit panel splits today in the prisoner litigation case of Norwood v. Vance, No. 07-17322 (9th Cir. July 9, 2009) (available here).  The dispute at issue is summarized in the first sentence of the majority opinion: "We consider when prison officials may be held liable for depriving inmates of outdoor exercise." 

Because of the reputation of the Ninth Circuit, readers may be surprised at who prevails in this opinion.  And, because of the reputation of the Ninth Circuit, I would not be too surprised if this case goes on to get en banc consideration.

Fascinating new TRAC report on Judge Sotomayor's sentencing record

The folks at the Transactional Records Access Clearinghouse (TRAC) hav produced a fascintaing report on the sentencing patterns of Judge Sotomayor when she was a district judge.  This TRAC press release describes the report as a "first-of-its kind analysis of the sentences imposed by Judge Sonia Sotomayor during her six years as a federal trial judge," which was developed based on "records concerning more than 7,000 cases handled by the 52 federal judges who served in the Southern District of New York (Manhattan) from FY 1993 to FY 1998." 

The full report is available at this link, and here is how it starts:

A case-by-case examination of the sentences imposed by Judge Sonia Sotomayor during her six years as a trial judge in the Southern District of New York has determined that she was more likely than her colleagues to send a person to prison.  As shown in Figure 1, this was particularly true for convicted white-collar criminals.

This chart provides more of the statistical particulars, and it confirms my sense that the relatively leniency of all white-collar sentences from FY1993 to FY1998 is even more notable than the fact that Judge Sotomayor was, on average, slightly tougher at sentencing than her Southern District colleagues. 

Specifically, the TRAC data indicate that during this period, the median white-collar sentence was no prison time(!) and roughly 90% of all white-collar offenders in the Southern District of New York got a sentence of less than two-years imprisonment.  In contrast, the median drug sentence during this period was four years in prison and nearly 70% of all drug offenders in this district got a sentence of more than two-years imprisonment.

Interesting split Tenth Circuit ruling on ineffectiveness assistance at plea stage

Yesterday the Tenth Circuit handed down an interesting little ruling in Williams vs. Jones, No. 06-7103 (10th Cir, July 8, 2009) (available here), concerning the rules and remedies surrounding ineffective assistance of counsel at the plea stage of a criminal case.  Here is how the per curiam majority opinion starts:

Petitioner-Appellant Michael Williams appeals from the district court’s denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. The only issue before us is whether, having determined that Mr. Williams received ineffective assistance of counsel in rejecting a plea offer, the Oklahoma Court of Criminal Appeals (“OCCA”) fashioned a constitutionally permissible remedy.  Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse and remand.  On remand, the district court should impose a remedy that comes as close as possible to remedying the constitutional violation, and is not limited by state law.

Here is how the lengthy dissent from Judge Gorsuch gets started:

The Sixth Amendment right to effective assistance of counsel is an instrumental right designed to ensure a fair trial.  By his own admission, Michael Williams received just such a trial, at the end of which he was convicted of first degree murder by a jury of his peers.  We have no authority to disturb this outcome.  The majority says that counsel’s deficient performance in the plea bargain process denied Mr. Williams a lesser second degree murder conviction, and that this justifies voiding the result of Mr. Williams’s fair trial.  But the due process clauses of the Constitution’s Fifth and Fourteenth Amendments do not encompass a right to receive or accept plea offers.  As the Supreme Court has repeatedly held, plea bargains are matters of executive discretion, not judicially enforceable entitlement; due process guarantees a fair trial, not a good bargain.

Without challenging any of this, the majority nonetheless recognizes a constitutional right to accept a plea offer grounded in the Sixth Amendment’s guarantee of effective assistance of counsel, creating indirectly what the Supreme Court’s precedents preclude it from recognizing directly as a matter of due process under the Fifth and Fourteenth Amendments.  The practical upshot?  So long as a defendant can claim his lawyer mishandled a plea offer, he can take his chances at a fair trial and, if dissatisfied with the result, still demand and receive the benefit of the forgone plea.  The majority’s holding has already been rejected by a number of other courts and been the subject of a grant of certiorari (later dismissed when the parties mooted the question). See Hoffman v. Arave, 455 F.3d 926, 942-43 (9th Cir. 2006), cert. granted, 128 S.Ct. 532, 532-33 (2007), vacated as moot, 128 S.Ct. 749 (2008).  Respectfully, I dissent.

Seeking reports from today's NYC regional Sentencing Commission hearing

As noted in this recent post and as detailed in this brief public notice, the US Sentencing Commission starts today another of its terrific regional public hearings.  This third regional public hearing is in New York City; this official agenda now not only details the fascinating and diverse group of invited witnesses, but also links fomr of the witnesses' written testimony.

As I said before, I am hopeful (though not really optimistic) that this regional hearing might get a little extra press because it is taking place in New York.  Moreover, because I am eager to provide whatever coverage I can from afar in this forum, I hope that any and everyone involved with the hearing might send me information or reports on the event (or use the comments to talk about what's happening).