January 10, 2005
Who is in federal prison: the debate continues
Late last month here I noted and questioned some recent representations about sentencing and prison populations being made by the US Justice Department. Valuably, both FAMM and The Sentencing Project have recently weighed in on this important topic.
First, FAMM president Julie Stewart responded to some DOJ claims about sentencing and crime rates in a letter to the editor published by the Washington Post, the text of which can be accessed here. Second, and of enormous value, The Sentencing Project has just produced this brief report entitled "The Federal Prison Population: A Statistical Analysis."
As detailed more fully in its report, The Sentencing Project finds that the Justice Department's representation that "two-thirds of all federal prisoners are in prison for violent crimes or had a prior criminal record before being incarcerated" distorts the composition of the federal prison system by conflating categories of offenders. According to The Sentencing Project, "nearly three-fourths (72.1%) of federal prisoners are non-violent offenders with no history of violence."
This report is a must read for its overview of the federal prison population — including growth trends, racial disparities, drug offense sentencing — especially because there will surely be a robust debate over federal sentencing policies and practices in the wake of Booker and Fanfan.
January 10, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (45) | TrackBack
News from the Nutmeg State
After a day of travel, I am back on east coast time and trying to get ready for what might be a big week. But while we wait for Booker and Fanfan, there are interesting capital and noncapital sentencing stories from Connecticut.
In the capital arena, the planned execution of serial killer Michael Ross continues to garner much attention in Connecticut. How Appealing has assembled some of yesterday's stories here, and this morning there are stories on the costs the case has generated, "on the street" reactions, and USA Today has drawn on the case in this article discussing broader death penalty developments.
In the noncapital arena, this New York Times article provides an interesting analysis of former Connecticut Governor John Rowland's federal plea deal (previously discussed here and here). Many passages from the article seem to undermine the notion that the federal sentencing guidelines make offense conduct, rather than discretionary decisions by prosecutors or sentencing judges, the key determinate of sentences imposed:
Lawyers said the timing [of his plea deal] increased Mr. Rowland's chance of being sentenced by a senior Federal District Court judge [Peter Dorsey]who has been challenged by prosecutors in the past for leniency.... Judge Dorsey "would appear to be a great draw for Rowland," said Eugene Riccio, a Bridgeport lawyer who represents individuals in the investigation....
Lawyers familiar with the case said the end result had more to do with federal sentencing guidelines ... than with the sum of his transgressions.
They said prosecutors wanted Mr. Rowland to admit to taking gifts worth at least $70,000, to bolster their case that the 15- to 21-month recommended sentence he faced as a public official under the guidelines was warranted. As long as that figure was reached, the lawyers said, prosecutors were willing to give Mr. Rowland leeway on which gifts to acknowledge as improper. At the same time, Mr. Dow sought to keep the figure below $120,000; even a tad more would have added three months to the recommended prison time.
In the end, the $107,000 compromise paved the way for the recommendation that Mr. Rowland receive a 15- to 21-month sentence, which Judge Dorsey can accept or increase or decrease.
January 9, 2005
Important reading as we prepare for a new sentencing era
For me, my working time at this conference concluded with a great informal Blakely chat this morning with nearly two dozen colleagues. I learned a lot from the dialogue and got excited (yet again) for the possibility we may see Booker and Fanfan as early as this coming week.
Helpfully, just in time as we gear up for the opinion, Villanova Professor (and FSR editor) Steve Chanenson has finalized a terrific article fittingly entitled "The Next Era of Sentencing Reform." The full article can be downloaded below and here is a portion of the abstract:
This article charts a path for criminal sentencing in the wake of the Supreme Court's recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O'Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that "Over 20 years of sentencing reform are all but lost." All is most assuredly not lost. Blakely, properly viewed, is an opportunity - albeit a disruptive one - to re-think and improve our sentencing systems....
The Supreme Court will soon decide whether [Blakely] applies to the Federal Sentencing Guidelines. Regardless of what the Court chooses to do, Congress and the state legislatures are re-evaluating their sentencing systems and looking for Blakely-compliant options.
This article does not seek to shape the Court's opinion, or to predict its decision. Instead, it charts a path for legislatures, sentencing commissions, and sentencing scholars. In this article, I set the groundwork for understanding fundamental elements of sentencing, and show the pieces moved by Blakely. I then examine several popular systemic responses to Blakely. Ultimately, I find their various strengths outweighed by their substantial weaknesses.
In the final section, I propose a new approach that would not only survive Blakely's constitutional commands but can lead us into the next era of sentencing reform. This proposal is not merely a Blakely "fix," but a proposal that retains fidelity to the concerns and principles that led, over the past 30 years, to the modern sentencing reform revolution, and to structured sentencing systems. I propose a system of Indeterminate Structured Sentencing ("ISS"). ISS is an indeterminate sentencing system (that is, a system that includes parole release authority) in which a Super Commission guides both the sentencing and release functions. An ISS system honors judicial discretion but acknowledges the value of structural checks and balances. It permits high sentences in cases where a judge believes them appropriate while limiting the pressure to increase sentences across the board. ISS offers a balanced approach to sentencing that satisfies Blakely while simultaneously being sensible, just, and grounded in sentencing history, theory and practice.
And, after you have read this terrific article, if you still need more to feed your Blakely fix, I am happy to help. Actually, my research assistant deserves the credit for having completed another easy-to-print Word version (with embedded links and a TOC) of the text of this blog covering the last six weeks' posts in 2004. This document can be downloaded below, and prior installments of Word versions of the blog, organized by date, can be found here and here and here.
January 9, 2005 in Blakely Commentary and News, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack