August 30, 2005
The death penalty for doctors?
This AP report from Texas (where else?) indicates that a group of Texas prosecutors believe that "Texas doctors who perform abortions without parental approval or after the third trimester could face capital murder charges because of a new law that takes effect this week." Here are some more details from the article:
The Texas District and County Attorneys Association has outlined that scenario in its new book updating the Texas penal code and in public presentations around the state. The group says such charges could occur under the new law because of the 2003 fetal protection law.
Key legislators said Monday that wasn't their intent.... [A] doctor performing a prohibited abortion could be accused of capital murder because the capital murder law covers the death of a child under age 6, according to the prosecutors association.
"I think it's a little bit of a stretch," said Elizabeth Graham, director of Texas Right To Life. "The legislative intent clearly was not to incarcerate doctors or execute doctors who are performing abortions, illegal or otherwise." The chances are "very slim" that a district attorney would try such prosecution, she said. Sarah Wheat, executive director of NARAL Pro-choice Texas, said it can't be ruled out. "I think, when it comes to this issue, there is always someone who is looking for a political win," Wheat said.
August 29, 2005
The USSC's finalized priorities
Back in June, as detailed in this post, US Sentencing Commission on its website posted its "Federal Register Notice of proposed priorities and request for public comment." And now, after "reviewing public comment received pursuant to the notice of proposed priorities," the USSC has issued this Notice of Final Priorities for its 2005-2006 amendment cycle. It is an interesting read, which reveals that, inter alia, that the USSC is planning a "report on the effects of Booker on federal sentencing, including an analysis of sentencing data collected within the first year of that decision."
More on mandate recalls in the Ninth Circuit
Over at the Ninth Circuit Blog, Steve Kalar has this post discussing the recent important decision in US v. Crawford in which a panel of the Ninth Circuit recalled the mandate and order resentencing in a case that apparently became final before Booker. As I explained in this post, the Crawford decision seems to adopt what I would describe as a policy of equitable Booker retroactivity. Here's a bit of Steve's take:
Does Crawford stand for the proposition that a defendant can seek relief through recalling the mandate even when there is a habeas timing bar? The order doesn't say so, but that's a fair between-the-line reading....
This order may signal a habeas loophole for the right case. Has a client blown ADEPA time limits? Doesn't seem to have bothered the Crawford panel — and the client who will be resentenced doesn't care if his relief came from habeas review or a recall of the mandate.
Steve also notes that the "recall the mandate" approach "has a colorful history" in the Ninth Circuit: "The last time the Ninth tried this approach it pitted the Circuit against the Supreme Court, and sparked a legendary intellectual battle between Judge Reinhardt and Judge Kozinski."
A record-long white-collar sentence in Atlanta
A helpful reader sent me this article from the Atlanta Journal-Constitution reporting on the imposition last week of what "federal authorities are calling the longest sentence ever handed down for mortgage fraud in the nation." The defendant, Chalana McFarland, received a 30-year federal sentence for her role in skimming "more than $20 million in inflated mortgages on more than 100 homes throughout metro Atlanta." Here are more details from the news article:
McFarland's mortgage fraud ring operated from mid-1999 through late 2002, preying on banks and other mortgage lenders. All 19 of McFarland's co-defendants plead guilty and all but two testified when she was convicted in February. McFarland's gang stole identities and falsified Social Security numbers, employment and income documents to qualify for loans.... McFarland was convicted [at trial] on 170 counts including conspiracy, bank fraud, wire fraud, mail fraud, identity theft, fraudulent use of Social Security numbers, money laundering, obstruction of justice and perjury.
McFarland denied any role in the crimes at Wednesday's sentencing and told U.S. District Judge Thomas W. Thrash Jr. that she was an inexperienced lawyer who was duped by her more experienced co-defendants. The judge chided McFarland for her lack of remorse for the loss and distress her schemes caused her victims and thousands of homeowners whose neighborhoods were harmed. "Mortgage fraud is not a victimless crime. . . . Whole neighborhoods are affected," Thrash said before sentencing McFarland to 30 years in prison followed by five years supervised release. Thrash also ordered McFarland to repay $11,588,465.45 lost by companies and individuals.
"This is the longest sentence ever obtained in a mortgage fraud case," [U.S. Attorney David] Nahmias said after McFarland's hearing Wednesday. "It's certainly an enormously long sentence for a first-time, white-collar crime defendant."
District court tonic for the Booker blues
As suggested in recent posts here and here and here covering notable circuit court opinions, I am finding the Booker jurisprudence coming from most circuits to be uninspired, to say the least. Many circuits seem eager to seize Justice Breyer's remedial opinion (and to ignore Justice Stevens' merits opinion) in order to maintain the old sentencing order as much as possible. In my view, very few circuit rulings grapple fully with the true impact that Booker should (or at least could) have on federal sentencing realities.
But, as I make a habit of scanning (and getting disappointed by) circuit court sentencing opinions, I should remember that the most important post-Booker action takes place in the district courts, since only a small percentage of all federal sentencing decisions are appealed. I should also remember that the sentencing opinions coming from the district courts provide a needed and satisfying tonic whenever I am suffering from the Booker blues.
I was heartened this weekend when I found some time to explore some notable district court sentencing rulings handed down this month. I have previously noted a few noteworthy decisions from early August, such as Judge Adelman assailing mandatory minimums in Alexander and Judge Weinstein exploring rehabilitation in Hawkins. And anyone looking to see (and be encouraged) by additional Booker action should be sure to check out these more recent district court rulings:
- US v. Roach, 2005 WL 2035653 (N.D. Ill. Aug. 22, 2005)
- US v. Iles, 2005 WL 2043521 (E.D. Va. Aug. 17, 2005)
- US v. Peralta-Espinoza, 2005 WL 1963009 (E.D. Wis. Aug. 16, 2005)
- US v. Garey, 2005 WL 2000629 (M.D.Ga. Aug. 10, 2005)
The recent decision that excites me the most comes from Judge Joseph Bataillon in US v. Okai, 2005 WL 2042301 (D.Neb. Aug. 22, 2005). In Okai, Judge Joseph Bataillon continues the strong work on due process and burdens of proof that he started in US v. Huerta-Rodriguez right after Booker (details here). Here is a brief selection from the extended opinion in Okai (which is full of Booker insight and nuance):
Under the circumstances, the court finds that it should err on the side of caution in protecting a criminal defendant's constitutional rights. The principal of constitutional avoidance mandates that the federal sentencing statutes should be construed to avoid the difficult constitutional question of whether the imposition of a harsher sentence — whether characterized as a Guidelines sentence, a departure, or a deviance — violates due process when the greater punishment is based on facts found under a standard lower than proof beyond a reasonable doubt. Moreover, whatever the constitutional limitations on the advisory sentencing scheme, the court finds that it is not "reasonable" to base any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt.
August 28, 2005
Brave New Justice and sentencing issues
Professor Jeffrey Rosen has this thought-provoking cover story in today's New York Times Magazine, which considers "a Brave New World of constitutional disputes" and the role of "a Supreme Court of the future [as it faces] cases arising from the technological and social changes of the coming decades." Rosen's article is a fascinating read as we gear up for "the first new justice of the 21st century," but sentencing issues unfortunately do not find their way into his discussion.
Inspired by Rosen's forward-looking perspective, my mind raced to sentencing issues as we prepare for a Brave New Justice. Below I have briefly outlined just some of the sentencing issues I expect SCOTUS to face in the coming years and decades.
1. Continued Blakely/Booker fall-out. I outlined in this post just some of the post-Blakely and post-Booker questions that need immediate Supreme Court attention; the Supreme Court may have to (and certainly should) take up a number of post-Blakely/Booker cases each Term for the foreseeable future. (Some prior posts exploring how a Justice Roberts might impact the Supreme Court's Blakely/Booker jurisprudence are linked here.)
2. Continued capital sentencing issues. The Supreme Court has been struggling with an array of death penalty issues for more than three decades, and the Court's work and cert. choices the last few terms suggest the current Justices remain eager to continue pursuing the constitutional regulation of capital punishment. Especially given Justice Stevens' recent speech to the ABA and the Court's cert. grant in four capital cases already for the coming term, the Court seems likely to be actively involved in death penalty litigation for the foreseeable future. (Prior posts exploring how a Justice Roberts might impact the Supreme Court's work in the death penalty arena are assembled here, and some of my previous kvetching about the Supreme Court's expenditure of so much time and energy on death penalty cases can be found here and here and here and here and here.)
3. "Risk assessment" approaches to sentencing. Turning from current controversies to future issues, I think that continued development of data mining technologies and increased use of risk assessment instruments at sentencing could present interesting and challenging constitutional issues. A host of constitutional questions may arise when judges extend sentence lengths or otherwise impose different sentencing terms by relying solely on statistical data indicating that persons of a certain gender or race are more likely to re-offend.
4. Use of new technologies to monitor (and alter?) offenders. Electronic monitoring of offenders or alteration of criminal tendencies through drugs (e.g., chemical castration) are no longer only the stuff of science fiction novels. As such technologies advance, and especially if they prove less costly and less intrusive than traditional incarceration, we should expect to see more and more jurisdictions experimenting with new technological responses to crime. A host of constitutional challenges are likely to work their way through the courts if (when?) such technologies become a common component of the criminal justice system.
UPDATE: A helpful reader has followed up by pointing me to this fascinating National Institute of Justice paper entitled "Technocorrections": The Promises, the Uncertain Threats. Though written five years ago, the paper remains very timely, especially because it includes a long vignette exploring the use of new technologies for dealing with released sex offenders. Here is an opening paragraph:
Emerging technologies in three areas — electronic tracking and location systems, pharmacological treatments, and genetic and neurobiologic risk assessments — may be used in technocorrections. Diverse, converging cultural forces are promoting them. While these technologies may significantly increase public safety, we must also anticipate the threats they pose to democracy. The technocorrectional apparatus may provide the infrastructure for increased intrusiveness by the state and its abusive control of both offenders and law-abiding citizens.
Sunday stroll around the blogosphere
A morning blogosphere stroll leads to a number of notable items:
- Ellen Podgor at the White Collar Crime Prof Blog have celebrity defendant updates with posts on the coming freedom of Martha Stewart and the prison digs for Bernie Ebbers.
- The Federal Defender Blogs, and especially those from the Second Circuit and Ninth Circuit, have a number of new posts (although I am surprised and a bit disappointed to see no discussion of the Ninth Circuit's Crawford recent decision which, as I explained here, seems to be endorsing a policy of equitable Booker retroactivity).
- Over at PrawfsBlawg, I have this post explaining why I think most or all law schools need to have a course (or two) on sentencing.
- And, bringing joy to the entire legal blogosphere, Howard Bashman is back from vacation at How Appealing.
Immigration offenses and fast-track disparity
This morning's Milwaukee Journal Sentinel has this interesting article discussing and questioning the long sentences that are sometimes given to immigrants who enter the United States illegally. Here are a few highlights:
Nationwide and in the Eastern District of Wisconsin, the number of people charged with the federal crime known as "illegal re-entry after deportation" has increased exponentially since 2001.... Proponents say sending offenders to federal prison before forcing them out of the country again makes them think twice about coming back once they're released.... Critics question the effectiveness of the approach, since recidivism rates are impossible to track. They point out that many illegal re-entrants who get long sentences because of past criminal records aren't dangerous.
Some Wisconsin-based federal judges have criticized the process in their rulings. It isn't right for Wisconsin defendants to be sentenced more harshly than illegal immigrants discovered in states bordering Mexico, simply because the sheer number of cases there would overwhelm the courts otherwise, the judges say. The "fast-track" plea bargains used in border states minimize deterrence just where it's needed most, they say....
By a conservative estimate, U.S. taxpayers are spending some $200 million a year to keep illegal re-entrants in prison, according to a Journal Sentinel analysis.... Robert J. McWhirter, an assistant federal defender in Arizona and author of a book on immigration law, questions whether it's worth it. "The penalty structure is far too expensive of a way to get the amount of deterrence you get," he said. "You get all the deterrence you're going to get with two years in prison."
The story also includes a discussion of two notable immigration cases and thoughtful quotes from a number of persons involved in federal sentencing decision-making.