July 30, 2005
New report on "Race and Incarceration in Delaware"
A new study entitled "Race and Incarceration in Delaware: A Preliminary Consideration" (available here) provides a sobering view of the scope of imprisonment and its racial dynamics in the First State. This article provides a summary of the report, and here are some passages from the report's preface:
The United States has world’s highest incarceration rate. Delaware, the second smallest state, enjoys the dubious distinction of having one of the highest incarceration rates of any of the 50 states in America. More important, the scales of justice in Delaware weigh far more heavily on African Americans than similarly situated Whites....
In Delaware, Blacks represent:
- 20% of the general population;
- 42% of those arrested for criminal offenses;
- 64% of the prison population; and
- 86.8% of those incarcerated for drug offenses.
This is not, as many assume, attributable to a higher incidence of criminal behavior among Blacks. The national data shows that Non-whites are statistically more likely to be imprisoned because they are more likely to be arrested than Whites. Much of this appears to be attributable to the "war on drugs." Studies have consistently shown that Whites use drugs at rates comparable to Blacks, which makes them the vast majority of illicit drug users. White drug dealers far outnumber Black dealers. Yet, of those incarcerated for drug charges in Delaware, Blacks represent 86.8 percent of those sentenced to prison terms for drug offenses.
State investigation into Sensenbrenner's letters
This story from the Chicago Tribune reports that the "state agency that oversees lawyer conduct in Wisconsin has been asked to investigate Rep. James Sensenbrenner for sending a private letter to the U.S. Court of Appeals in Chicago demanding a longer prison sentence for a drug courier." As noted previously in this post, the Alliance for Justice has recently urged an ethics investigation into the Sensenbrenner letter criticizing the Seventh Circuit's decision in US v. Rivera. Background on this flap is available here, with commentary here and here and collected here.
UPDATE: A helpful reader has sent me a copy of the letter sent to the Wisconsin Office of Lawyer Regulation regarding Sensenbrenner. It can now be downloaded below. Also, TChris at TalkLeft has some commentary on this latest development here.
This article from the Washington Post reports on a high-profile post-Booker resentencing of three members of a "Virginia jihad network" in which "U.S. District Judge Leonie M. Brinkema was pleased that she had the chance to lessen sentences she had criticized as excessive." Interestingly, though in absolute terms, the post-Booker sentence reductions were significant — "Brinkema reduced defendant Seifullah Chapman's sentence from 85 years in prison to 65 years and shaved 20 years off Masoud Khan's sentence" — the defendants are still to serve lengthy terms of imprisonment. This article provides additional details on this case.
Though the terrorism component of this resentencing is likely to capture the most attention, this case has me thinking more generally about post-Booker resentencings. I continue to wonder about exactly how many resentencings have been ordered in the wake of Booker and also about the evidence being considered and the ultimate outcomes at these resentencings. I suspect the US Sentencing Commission will ultimately produce helpful data on resentencings, but probably not for quite some time. I also suspect the Justice Department has data on these matters, but unfortunately DOJ seems disinclined to share its data.
July 29, 2005
Judge Kaplan addresses fast-track disparity
As detailed in this post last month, the fascinating post-Booker debate over fast-track programs and sentencing disparities, which has already triggered fascinating opinions from Judge Adelman and Judge Cassell and Judge Presnell and others, became the subject of a fascinating set of briefs before SDNY Judge Lewis Kaplan in US v. Krukowski. The Government in its filing raised a number of interesting arguments in an effort to dissuade Judge Kaplan from mitigating a sentence based on fast-track realities.
As detailed the transcript of the sentencing I just received (and make available for download below), Judge Kaplan found each of the Government's arguments against a mitigated sentence based on fast-track realities "quite unpersuasive." But Judge Kaplan ultimately imposed a sentence at the bottom of the Guidelines range, in part because in many other fast-track districts, the defendant would have been in an overlapping range. As the helpful reader who sent me this transcript put matters, while the fast-track debate "gave Mr. Krukowski no benefit, it should be good fodder for future cases, perhaps ones where the Guidelines range is higher (and the resulting disparity greater)."
Notable 3d Circuit footnote on constitutionality of SRA
An astute reader has highlighted to me this very interesting closing footnote from the Third Circuit's decision earlier this week in US v. Pojilenko, No. 03-4446 (3d Cir. July 27, 2005) (available here):
Relying on United States v. Detweiler, 338 F.Supp.2d 1166 (D.Or., 2004), Pojilenko also challenges on separation of powers grounds the constitutionality of the Sentencing Reform Act as amended by the "Feeney Amendment," Pub.L. No. 10821, § 401, 117 Stat. 650 (2003). He asks us to direct that only the Sentencing Guidelines in effect before the Feeney Amendment be applied on remand in an advisory capacity. We decline to do so. This argument was not advanced in the District Court, and our review is confined to plain error. The Supreme Court rejected a separation of powers challenge to the Act in Mistretta v. United States, 488 U.S. 361 (1989). While the Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta, the District Court clearly did not commit plain error in applying the post-Feeney Amendment guidelines in this case. Even if an argument is "plausible," any error is not "plain" when it was not "clear under current law." United States v. Clark, 237 F.3d 293, 298-99 (3d Cir. 2001) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
It should be recalled that Judge Panner's dramatic decision in US v. Detwiler (basics here, commentary here) found separation of powers problems with the federal sentencing structure as a result of the passage of the Feeney Amendment. The declaration in Detwiler of the SRA's unconstitutionality is distinct from the Sixth Amendment issues addressed in Booker and, as explained here, the Detwiler ruling could have consequences even more far reaching than Booker. Thus, I view the Third Circuit's acknowledgment that the "Feeney Amendment's change in the composition of the Sentencing Commission may provide an arguable basis for distinguishing Mistretta" to be quite significant.
UPDATE: The Third Circuit Blog discusses Pojilenko here.
Iowa Supreme Court upholds broad sex offender residency restrictions
Today the Iowa Supreme Court in State v. Seering, No. 34 / 03-0776 (Iowa July 29, 2005) (available here) upheld the state's broad residency restriction on sex offenders. Here is the introduction and conclusion from the opinion, which insubstance echoes the Eighth Circuit's similar ruling about the same law in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (discussed here):
In this appeal, we consider the constitutionality of Iowa's statutory prohibition against convicted sex offenders living within two thousand feet of an elementary or secondary school or child care facility. The appellee, a convicted sex offender, brought a successful constitutional challenge to the statute in the district court. The State appeals from the district court’s ruling. For the reasons that follow, we reverse and remand this case for further proceedings consistent with this opinion....
We conclude Seering has suffered no deprivation of his federal or state constitutional rights related to substantive and procedural due process, ex post facto laws, self-incrimination, or cruel and unusual punishment. We also observe that the United States Eighth Circuit Court of Appeals recently rejected similar challenges to section 692A.2A under the Constitution of the United States. See Doe, 405 F.3d at 723. This opinion is consistent with our approach and supports the conclusion we reach today.
This is an interesting and important opinion that seems likely to just add fuel to the on-going sex-offender panic. Indeed, just earlier this morning, this story from New Jersey noted that a local township lawyer cited to the Eighth Circuit's Doe v. Miller ruling to support his township's decision to extend its residency restriction "to prohibit convicted sex offenders from living near roller rinks, movie theaters and amusement parks."
More sex offender laws and restrictions in the works
The on-going social panic over sex offenders finds expression these days in dozens of newspaper articles each day discussing new "get-tough" sex offender legislation and proposals emerging at federal, state and local levels. Among the articles catching my eye this morning:
- from New Jersey, this story reporting that a local township has "extended its restricted zones to prohibit convicted sex offenders from living near roller rinks, movie theaters and amusement parks."
- from Pennsylvania, this story reporting on a state bill that "would increase penalties for convicted sex offenders and require live tracking when they are released from prison."
- from Maryland, this article detailing that a state senator "is calling for tougher sentences, including a possible death penalty, for convicted sex offenders in the aftermath of a highly publicized kidnapping and sex abuse case in Idaho."
Every one of these articles provides still more evidence how the laws and restrictions being developed during the current social panic over sex offenders are driven far more by headline-making anecdotes of horrible individual cases rather than by refined data-driven policy analysis.
Fascinating sentencing day around the circuits
I was away from the computer most of Thursday, and so I am only now catching up on the day's sentencing developments. And what an interesting day Thursday turned out to be in the circuit courts. In addition to the usual panoply of sentencing rulings from the Eighth Circuit (reported here), the day brought noteworthy sentencing decisions from the Sixth, Seventh and Eleventh Circuits. Here is a (too quick) run-down:
In US v. Christopher No. 04-3946 (6th Cir. July 28, 2005) (available here), the Sixth Circuit concludes that the annoucement of alternative sentences by the district court rendered any Booker error harmless, and along the way provides a helpful recap of other circuit court rulings to a similar effect.
In US v. Krueger, No. 04-2539 (7th Cir. July 28, 2005) (available here), the Seventh Circuit discusses but ultimately ducks an interesting claim about whether a statement was obtained illegally by holding that sentencing judges "may consider reliable evidence that was obtained illegally in fashioning an appropriate sentence."
In US v. Searcy, No. 03-16282 (11th Cir. July 28, 2005) (available here), the Eleventh Circuit concludes that the offense of "inducement, enticement or coercion of a minor to engage in unlawful sexual activity carries an inherent risk of physical injury to the minor" and thus "should be classified as a crime of violence for the purpose of career offender classification."
July 28, 2005
DOJ seeking rehearing on consideration of state/federal disparity
As noted in this post last month, the First Circuit in US v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) (available here), at the end of a lengthy opinion, seemed to endorse post-Booker consideration of disparities between state and federal sentencing. Thanks to a helpful FOB ("friend of blog"), I can now provide for downloading below a copy of the government's petition for panel rehearing in Wilkerson. The petition asks for the First Circuit to amend its Wilkerson opinion "to eliminate any suggestion that federal-state sentencing disparity is a proper consideration in federal sentencing proceedings."
The petition's assertions about post-Booker consideration of disparities between federal and state sentences are fascinating (and, notably, a footnote cites to this blog and to this post at Appellate Law & Practice and to this post at the PRACDL blog). And the petition argues that "federal-state sentencing disparity is never an appropriate consideration in federal sentencing, even in a post-Booker setting" (emphasis in original).
This is an important post-Booker issue, though it comes now before the First Circuit in a somewhat unusual procedural posture. I will be intrigued to see what the First Circuit makes of this matter.
UPDATE: AL&P is excited by the cite and then asks a bunch questions about what the cite means for law blogging. My added question is what this tells us about the pros and cons of the Bluebook's new (and flawed) rules for citing blogs.
Great opinion on local variations and other post-Booker issues
When it rains, it pours fine sentencing opinions from the federal district courts. Yesterday I received, and posted here, Judge Stewart Dalzell's thoughtful opinion in US v. Schwartz (which a reader declared "one of the most finely crafted trial court sentencing opinions" he had ever read). And today I received more great district court work in the form of Judge Charles Sifton's opinion in US v. Luciana & Cavero, No. 04-410 (E.D.N.Y. July 28, 2005) (available for download below).
The Luciana & Cavero decision covers lots of post-Booker ground in astute ways, and Judge Sifton's discussion of the appropriateness of local sentencing variations within a national system is especially thorough and thoughtful. Here is one of many highlights from this discussion:
[A]lthough subjective considerations such as "local mores" or feelings about a particular type of crime may not be an appropriate basis for granting a Guidelines departure or a non-Guidelines sentence, that the crime will have a greater or lesser impact given the locality of its commission is appropriately considered in crafting a reasonable sentence post-Booker.
The Luciana & Cavero opinion also covers important post-Booker ex post facto/due process issues and a number of other matters that should be of interest to everyone operating in the post-Booker universe.
Alliance for Justice urges ethics investigation over Sensenbrenner letters
Thanks to this post at How Appealing, I see that the Alliance for Justice has sent this letter urging an ethics investigation into the actions of House Judiciary Chair James Sensenbrenner relating to the letter he sent to the Chief Judge of the Seventh Circuit criticizing that court's decision in US v. Rivera (background here, commentary here and here and collected here). Here are snippets:
From the facts at hand, it appears that the Chairman may have violated the ethical rules of the House of Representatives. Accordingly, I urge the committee to open an investigation to determine whether or not such rules have been violated....
[I]t is clear that, through the letter, the Chairman "attempt[ed] to influence the outcome of a pending case." Indeed, he specifically asked the court to increase the defendant's sentence. Yet in so doing, the Chairman did not avail himself of the designated "options" for conveying the "relevant information" he believed he had. The Chairman did not provide the information to any counsel in the proceeding without notifying the court directly, did not file an amicus brief, and did not seek to intervene or make public statements in the House. Instead, by writing to the judge, the Chairman elected the one option considered unethical.
UPDATE: This newspaper story discusses this letter and provides more background on the entire Sensenbrenner flap.
Intriguing reaction to sex offender panic
This letter, headlined "Drunken drivers vs. sex offenders" and appearing in the Sarasota Herald-Tribune, makes a number of interesting points in response to the sex offender panic which is producing "get-tough" sex offender legislation at the federal, state and local levels. Here's the lead paragraph:
There are many more unmonitored, lethal, habitually drunken drivers in our midst than there are unmonitored, lethal sex offenders. Drunken drivers maim and kill more children, adolescents and adults than do all of Florida's sex offenders.
July 27, 2005
Latest sex offender idea: five-year minimum federal sentence for failing to register
As detailed in this earlier post, a federal bill entitled the Children's Safety Act of 2005 (HR 3132; available here), a package of previously separate bills aimed at cracking down on sex offenders, was slated to receive consideration by the full House Judiciary Committee on Wednesday. This press release from the Committee provides the details on the Committee's approval of the bill by a vote of 22-4 today, and this AP report indicates that highly debated "was a provision that calls for a minimum five-year prison sentence for convicted sex offenders who fail to register with authorities." Here are some highlights from the AP article:
Democrats called that provision too harsh, noting it could apply to a person convicted of a misdemeanor sex offense. "Failing to register should not have a minimum sentence," said Rep. Jerrold Nadler, D-N.Y. "A judge can make that determination." Under the provision, Nadler said, a person could serve more time in prison for failing to report than for the actual crime committed. "That doesn't make any sense at all," he said.
But Rep. Mark Green, a Wisconsin Republican who is running for governor, said failing to register undermines a key weapon against sex offenders — knowledge of where they're residing. The bill includes Green legislation to add juvenile sex offenders to state registration lists. "It is, in my view, a very serious offense," he said of failing to register. And he defended taking the decision away from judges. "We're here because unfortunately judges have failed us in some of these cases," Green said.
The committee defeated [an] amendment by Rep. Bobby Scott, D-Va., to eliminate the minimum sentences for failing to register, 17-16.... John Conyers of Michigan, the ranking Democrat on the committee [said]: "We need to move past the emotional side of this issue," [and he called the] new mandatory minimum sentences "over the top.... We need to invest in solutions of a preventive nature."
Millennium bomber gets 22 years
Thanks to this post at TalkLeft, I see that Ahmed Ressam, who plotted to bomb Los Angeles International Airport on the eve of the millennium, received a 22-year federal sentence today. This article provides the basics, and this longer account quotes at length the interesting remarks of US District Judge John C. Coughenour at sentencing.
Interesting district court read (and evidence of post-Booker toughness)
Because I have not received many noteworthy district court opinions lately, I was especially grateful that a reader sent me today Judge Stewart Dalzell's opinion in US v. Schwartz, No. 03-35-1 (E.D. Pa. July 26, 2005) (available for download below). The opinion is perhaps jurisprudentially significant because Judge Dalzell declares a government motion for an upward departure moot after he justifies an above-guideline sentence on Booker grounds. And the opinion is factually significant because it shows that trial judges are hardly "soft" on fraud in the post-Booker world: Schwartz involved a defendant who is a relatively minor swindler getting a sentence over 20 years. But what makes the decision most engaging is that it includes references and cites to Santa Claus, St. Augustine, A Clockwork Orange and the recent book "On Bullshit" by Harry G. Frankfurt.
Proposing a distinctive response to Booker and Blakely
Oregon trial judge Michael Marcus, who is according to his website "determined to aim the sentencing process at crime reduction," has submitted this interesting testimony to the US Sentencing Commission in response to its request for public comment on guideline priorities. Judge Marcus has written a series of provocative articles (linked here) advocating that sentencing decision-making be based on empirical data about what sorts of sanctions and programs work on different sorts of offenders.
Judge Marcus continues to emphasize the themes of public safety and a focus on data in his interesting submission to the USSC. Here are some passages:
I write to urge that those of us responding to Booker and Blakely seize this opportunity to revise sentencing guidelines so that they promote sentences that best serve public safety within the available range of just and available sanctions. Virginia is unique in having made substantial strides in this direction; Oregon has begun officially to consider the mere possibility of doing so; but state and federal guidelines otherwise have nothing intentionally to do with crime reduction. We invest the resources of public agencies and private "think tanks" across the spectrum of penal philosophy, yet exclude their accumulated data from any role in sentencing. We need to fix that, because the result is irresponsible cruelty to victims whose crimes smarter sentencing would have prevented. Avoiding accountability for crime reduction is also irresponsible to the taxpayers who pay for a criminal justice system that yields unacceptable recidivism while squandering correctional resources....
I am not suggesting that we must be more severe or more lenient. I submit that we must be far smarter in our approach to sentencing — we must accept the challenge that science posed by finding so much treatment ineffective.... Criminologists have learned a great deal, and can now identify program characteristics that correlate with substantial reductions in recidivism, but we generally ignore such matters in sentencing....
I submit that the highest calling of sentencing commissions is to promote sentencing laws and practices that pursue best efforts at crime reduction with at least the same vigor that they pursue adherence to a matrix of expected severity. Few have taken that route — after all, merely publishing a matrix and monitoring how well judges adhere to it is far, far less challenging than the task I propose. It is also far, far less valuable for public safety or even fiscal responsibility — recidivism is not just cruel; it is also inefficient, as recidivists repeatedly tax our resources as they victimize our citizens.
More on Ohio's Blakely cases
This AP story provides information about the argument in the Ohio Supreme Court yesterday in two big Blakely cases, as well as some broader background on how states have responded to Blakely. The oral arguments are archived on-line and can be watched here at the Ohio Supreme Court's website. I watched one of the arguments late last night and found the quality of the advocacy very high, which only served to make the issue of how Blakely should be applied in Ohio that much more confusing and challenging. (Background on Ohio's sentencing laws and Blakely's potential impact can be found here and here, and some of the interesting lower courts developments are discussed here and here.)
July 26, 2005
Sex offenders bills moving forward
In Alabama, the national panic over sex offender recently found expression last week, as discussed here and here, in a proposal for a mandatory sentence of castration and amazingly heated rhetoric. (A Public Defender has a thoughtful discussion of these developments in this recent post.) As detailed in this story, today the Alabama legislature passed a sex offender bill with many tough terms but without the mandatory castration provision:"We don't want to pass something that will be declared unconstitutional, although I personally think these people who do this to little kids should be shot on the spot," said Rep. Alvin Holmes, D-Montgomery.
At the federal level, as detailed in articles from the AP and local papers, a sex offender bill is also moving forward in the House of Representatives. A bill entitled the Children's Safety Act of 2005 (HR 3132; available here), which is actually a package of separate bills aimed at cracking down on sex offenders, is slated for full committee mark up on Wednesday. Here's a description of the bill from one of the press accounts:
[The Children's Safety Act of 2005] collects numerous previously proposed bills targeting sex offenders under a single proposal. Among them is a bill introduced earlier this year and co-sponsored by Rep. Mark Kennedy, R-Minn., dubbed "Dru's Law" in honor of Sjodin, a 22-year-old Minnesota woman who was abducted, raped and murdered in Grand Forks, N.D. in November 2003. Dru's Law would create a national database of registered sex offenders that would be searchable via the Internet by the general public and would ease the transfer of sex offender records across state lines.
In addition to the Dru's Law provisions, the bill would broaden the legal definition of "sex offender" to include anyone guilty of a felony or misdemeanor sex offense, increase the level of monitoring sex offenders receive after their release, and increase mandatory minimum sentences for sex crimes against children. "America's Most Wanted" host and longtime child safety advocate John Walsh, speaking at the press conference, called it "the most important piece of child protection legislation in the history of the United States."
Opaque 11th Circuit sentence remand
Thanks to law.com, I see this article about an intriguing sentencing case from the Eleventh Circuit. The case, US v. Ellis, No. 05-10150 (11th Cir. July 21, 2005), concerns the sentence given to a former Georgia district attorney for lying to federal agents about an improper sexual relationship with a drug suspect. As the article explains, a panel of the Eleventh Circuit issued this opaque unpublished opinion which says an opinion will follow to explain why the original sentence was vacated and remanded.
Fallout from Sensenbrenner's letters
Editorials, as detailed here and here, have come out strongly against House Judiciary Chairman James Sensenbrenner for the remarkable letters he sent to the Chief Judge of the Seventh Circuit and to AG Alberto Gonzales concerning the decision in US v. Rivera (background here, commentary here and here and collected here). And now, according to this Chicago Tribune story, as a result of the flap, "a congressional aide closely tied to the controversy has been dismissed."
Here are some details from the article:
Jay Apperson, chief counsel of a House Judiciary subcommittee, was the staffer who brought the case to Sensenbrenner's attention, and he has publicly defended Sensenbrenner's unusual intervention. Apperson quietly and suddenly left the subcommittee last week. A spokesman for Sensenbrenner, who chairs the House Judiciary Committee, did not return calls seeking comment.
But a Capitol Hill official familiar with the matter said Apperson's departure "had everything to do" with his role in the controversy, in which Sensenbrenner directly contacted the chief judge of the 7th Circuit Court of Appeals in Chicago to demand an increased sentence for Lissett Rivera, a drug courier.
Sensenbrenner could face a complaint before the House ethics committee, because House rules prohibit communicating privately with judges on legal matters. In addition, general rules of litigation prohibit contacting judges on a case without notifying all parties, which Sensenbrenner did not do.
As the article notes, Jay Apperson previously played a role in the harsh treatment that US District Court James Rosenbaum received before a House Judiciary subcommittee a few years ago. Also, I believe that Apperson had a hand in the development and passage of the Feeney Amendment and may have drafted the terrible "Booker fix" provision of Section 12 of HR 1528. Thus, Apperson's abrupt dismissal is quite a significant development in the on-going tussle between Congress and the judiciary over sentencing.