April 22, 2006
Troubling patterns in Bush's pardons
Earlier this week, as noted here, President Bush issued another small batch of executive pardons. Margy Love has already commented hat the "latest round of grants are predictably unexceptionable: none of the offenses is particularly serious (the longest prison term was three years) and most are quited dated." The full list of the pardoned persons and their crimes is available in this news release.
In an astute post at White Collar Crime Prof Blog, Peter Henning here has some interesting (and troubling) observations about Bush's latest batch of pardons:
[A] a substantial number of [those pardoned] fall into the white collar crime category.... Three involved tax offenses, and a fourth was convicted of a tax crime along with mail fraud. It is interesting that the pardons for those offenses would come so close to the annual tax filing day, amid a crackdown by the IRS and DOJ on tax evasion schemes....
The [pardoned] defendant who [had] received the greatest punishment was Mark Hale, sentenced to three years for his role in a bank fraud involving the savings and loan at which he was CEO. Back in the early 1990s, the so-called "S&L Crooks" were the functional equivalent of Ken Lay, Bernie Ebbers, and the like — CEOs and senior managers accused of serious misconduct that had a substantial deleterious effect on the economy.
I suppose it is not surprising that white-collar offenders seem to get more than their fair share of presidential pardons. But, especially in the midst of the Enron trial and the Justice Department's continued emphasis on the need to battle corporate fraud, it is troubling to see a crooked former corporate CEO getting one of the President's very few pardons.
Some recent related posts:
- Another uninspired round of Bush pardons
- A new round of Bush pardons
- A thorough review of GWB's pardon work
- Thoughtful clemency commentary
- Pardon and clemency archive
Reading is fundamental ... for criminals
A local Ohio public radio reporter recently made me aware of a rural county's interesting alternative sentencing program — one that sounds a bit like an initiative that might be suggested by the conductor of Conjunction Junction if he became a judge. The program is discussed in an audio segment available here — which is entitled, "Sentenced to Read: Book Club is Court's Unique Approach."
In a nutshell, some judges in Wayne County, Ohio have sentenced certain persons convicted of non-violent offenses to participate in a weekly book club as part of a court-ordered program of community service. According to the report on the program, the recidivism rate for persons participating in the book club is virtually zero.
Conjunction Junction, what's your function?
Hooking up offenders with texts and reading.
Conjunction Junction, how's that function?
I got three favorite books
That get most of my job done.
An interesting pair of Newsweek treatment articles
This week's edition of Newsweek has two interesting pieces about renewed interest in criminal justice treatment programs both within and after prison:
- This short piece discusses the recent development in many states of "meth prisons" that are dedicated exclusively to inmates addicted to methamphetamine. The article indicated that this innovation of the laboratories of the states has shown some notable early promise: "In Indiana, where corrections officials have set up meth units within four regular prisons in the past year, 66 members of the first graduating class were released about six months ago; so far, none have committed another offense. In Illinois, recidivism among inmates released from the drug prison is 50 percent less than among a comparable group in the regular prisons."
- This longer piece discusses prisoner re-entry issues under a headline entitled "The Dawn of a New Movement." The article spotlights that "re-entry" is a modern term that can be discussed more openly than for "rehabilitation" because it lacks a soft-on-crime connotation. begins with this sobering reality: "On any given day, America locks down some 2.3 million people. And almost all eventually get out. Some 656,000 or so emerge every year; about two thirds of them end up behind bars again."
April 21, 2006
Notable Booker rulings in the Fourth and Ninth Circuits
For some unexplained reason, I cannot access pdf circuit court rulings today from my office. So, I will have to rely for now others' accounts of some notable circuit Booker and sentencing rulings:
From the Fourth Circuit, US v. Davenport, No. 05-4304 (4th Cir., Apr. 21, 2006), has captured the attention of both Decision of the Day and the Fourth Circuit Blog because it appears to be a rare case of a circuit finding unreasonable an above-guideline sentence. Here's on brief account of the ruling: "The district court sentenced Donald Davenport to 120 months for picking a woman's pocket. On appeal, the Court vacates the sentence and remands, instructing the district court to follow the Guidelines in making an upward departure and to do a better job of explaining why a departure is warranted in the first place."
From the Ninth Circuit, two rulings of note were described to me this way via e-mail:
USA v. Plouffe is an order amending opinion and amended order of a case filed January 18, 2006, the entire order today is to be inserted into the opinion and concerns whether the court has jurisdiction to review a sentence in the guidelines range. The Ninth Circuit notes that under its old law it does not have jurisdiction to review a sentence within the guidelines, and while ordinarily , a panel cannot overrule an en banc decision, it can disregard it here because an intervening higher authority has issued an opinion that is clearly irreconcilable, i.e., Booker. Plouffee significantly notes that the reasonableness of a sentence is informed by all of the 3553(a) factors, and so a sentence within the guidelines may be unreasonable. The order ends with the instruction that no petitions for rehearing or for rehearing en banc may be filed.
USA v. Littlesun starts by stating: "We publish this opinion to resolve whether, after Crawford v. Washington, it is appropriate to use hearsay testimony during sentencing. We join each of our sister circuits who have considered the issue in concluding that it is." The court discusses the Supreme Court case of Williams v. New York (use of hearsay at sentencing does not violate due process) and rejects Littlesun's argument that it has been implicitly overruled by Crawford, holding that it is bound by the controlling Supreme Court precedent.
I hope to provide links to these cases whenever I make it to a pdf friendly computer.
Blogging about scholarship about blogging and scholarship
Marking a true high-tech Seinfeldian moment, this post is to note that all the scholarship being developed for this exciting conference at Harvard Law School on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship" — can now be accessed at this special SSRN page. (I suppose a true Seinfeldian blog moment would be a post about nothing, but I'll leave that for Larry David to do.)
As law professor who thinks a lot about blogging and legal scholarship, I am finding all the papers for the conference absolutely fascinating. My own contribution, which can be accessed here and has the working title of "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs," starts with this abstract:
At the heart of the debate over law blogs as legal scholarship are bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about what exactly legal scholarship is and why legal scholarship should be considered an essential part of a law professor's vocation. And the key follow-up question is whether blogging should be part of that vocation. In this paper, I set out a few initial observations about the evolution and value of legal scholarship, and then share some thoughts on the power, possibilities, and pitfalls of law professors blogging to explain why I hope blogging will become an accepted part of a law professor's vocation.
Of course, comments from readers on my paper (or any others by conference participants) would be most welcome.
Over at SCOTUSblog, Lyle Denniston has this fascinating post, titled "A new challenge to Roper," which reports on a cert petition in which the State Alabama asks the Supreme Court to reverse its decision in Roper v. Simmons, declaring unconstitutional imposition of the death penalty on an defendant who committed a murder under age 18. Here are the basics:
The state of Alabama has begun a new effort to try to get [Roper] overturned. In a new petition for review filed last month, Alabama v. Adams, the state presents this simple question: "Whether this Could should reconsider its decision in Roper v. Simmons, 543 U.S. 551 (1005)." The petition for cert. (docket 05-1309), including the brief Alabama Supreme Court decision at issue, can be found here.
The SCOTUSblog post has already generate a fantastic debate in these comments. In addition, as the new-look How Appealing notes here, the Alabama Supreme Court's Alabama v. Adams decision was the "ruling that led recused Justice Tom Parker, in an op-ed published in The Birmingham News, to harshly criticize his non-recused colleagues for the decision they reached."
Some related posts:
North Carolina conducts execution with brain monitor
As detailed in this Reuters story, which is headlined "North Carolina executes man despite injection doubts," early this morning a "North Carolina man was executed by lethal injection ... by officials using a machine to ensure he did not suffer undue pain, a procedure that raised ethical questions about medical staff monitoring the death." This local news account of the execution details that the Fourth Circuit and the Supreme Court late yesterday rejected the defendant's challenges to this novel lethal injection protocol.
Some recent related posts:
Of note (on notice and fast-track) from the defender blogs
As I have mentioned before, Booker fanatics what to make a habit of checking out the collection of federal public defender blogs assembled at this link. Two recent items at two of these blogs seem especially noteworthy:
1. The Second Circuit Blog here notes a recent letter filed in a First Circuit case in which "the Government adopts the position — directly contrary to its earlier view — that Fed. R. Crim. P. 32 requires prior notice to the parties if a court intends to exceed the Guidelines range at sentencing, whether via a traditional departure or via a consideration of the § 3553(a) factors pursuant to Booker."
2. The Fourth Circuit Blog here discusses "early disposition or 'fast-track' programs in which the government agrees to a reduced sentence in exchange for a quick plea and a pledge not to contest deportation" and notes that the Fourth Circuit will soon consider the reasonableness of some district court decisions to "ameliorate the sentencing disparities caused by these fast-track programs pursuant to their authority under 18 U.S.C. Sec. 3553(a)." The blog post also provides a link to this interesting brief filed in the Fourth Circuit defending a district court's decision to consider fast-track disparity at sentencing.
A bit of Booker around the circuits
Finishing up a few articles and the end of classes has kept me from keeping up with the Booker circuit action of late. Fortunately, other bloggers are helping to take up the slack:
- As detailed here at Appellate Law & Practice, the First Circuit on Thursday issued a notable per curiam opinion in US v. Sagendorf, No. 05-1991 (1st Cir. Apr. 20, 2006) (available here) that includes some important comments about post-Booker sentencing.
- As detailed here at Second Circuit Blog, the Second Circuit on Tuesday in US v. Reifler, No. 03-1244 (2d Cir. Apr. 18, 2006) (available here), officially joined the cavalcade of circuits ruling that Blakely does not apply to orders of restitution.
In addition, the Tenth Circuit issued an important decision yesterday in US v. Terrell, No. 05-1521 (10th Cir. Apr. 20, 2006)(available here), in which the panel explains why it considers appropriate a presumption of reasonableness for a within-guideline sentence in the course of holding it is proper for a district court to give "a high degree of weight to the Guidelines in its sentencing decisions."
April 20, 2006
A great question about legal scholarship
In preparation for this exciting conference at Harvard Law School on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship" — I have been thinking a lot lately about the evolution and value of legal scholarship. (In fact, I have a draft paper nearly complete that I hope to post soon.)
Orin Kerr, who will also be speaking at the conference, is also clearly thinking about these topics. He not only already has his paper drafted (and has this follow-up post), but he now has posted a fantastic question about "practical" legal scholarship in this post entitled "A Question for Judges and Law Clerks (Both Current and Former)." Here is Orin's question that I am eager to have everyone thinking about:
If you're a legal scholar who wants to help the courts work through difficult problems, what topics should you write about? It's one thing to say that scholars should be "practical," but this isn't necessarily helpful; it's hard for outsiders to know what kinds of problems judges need help figuring out. More specific advice would be really helpful. I imagine judges and law clerks (both current and recent) are best suited to answer this question, as they're the ones who have had to work on cases in which they might have used some scholarly assistance.
Of course, my one word answer is "sentencing," but there is surely a lot more to be said on this great topic.
Fascinating Forbes series on alternatives to prison
The magazine Forbes, as part of its interesting "Blank Slate" series, has a series of fascinating articles exploring alternatives to prison. Here is the set up for the articles:
Jails and prisons don't work. They're meant to protect the community, but two-thirds of all inmates released from prison are rearrested within three years. Prisons are meant to punish criminals, but do so with excessive and unintended cruelty. We need to institute a "No Prisoner Left Behind" program and explore alternatives to simply locking people up.
Here are the articles in the terrific series:
Around the blogosphere
Once again, because I am so busy on many fronts, I have not had time to spotlight a number of great criminal justice posts around the blogosphere. And, once again, to make up for a lot of missed items, I'll just point to a few blogs with many posts worth reading:
Law review citations to blogs
Continuing his great meta-blogging work, Ian Best at 3L Epiphany now has this post collecting law review articles citing legal blogs. The diverse array of blogs that have been cited in law reviews is very interesting.
Some recent related posts:
- Judges on blogs and blogging
- Blogging news and notes
- The power of legal blogs
- Amazing taxonomy of legal blogs
April 19, 2006
A happy ending to a mandatory sentencing story
On May 6, Serena Nunn, 36, will graduate the University of Michigan Law School. Armed with a law degree, she will be in a better position to challenge draconian federal drug laws that six years ago had her serving a 15-year, eight-month sentence for a first-time nonviolent drug offense committed when she was 19....
Be clear on this: Nunn broke the law. After she dropped out of college, she took up with the wrong boyfriend, a drug dealer -- known as Monte -- whose father (Plukey Duke) was believed to be the leader of the biggest cocaine ring in Minnesota. After Monte tried to buy cocaine from a government informant, the feds charged 24 people involved in the ring, including Serena, on felony charges involving cocaine distribution.
At trial, prosecutors established that Nunn drove Monte to drug deals and phoned people who owed Monte money. They found 6.5 grams of cocaine and 4 grams of crack stashed in her bedroom. A jury found Nunn guilty on all three counts. Meanwhile, prosecutors had offered sweet deals to repeat offenders who testified against others.
Mandatory-minimum sentences were supposed to guarantee that drug kingpins serve hard time. Yet the feds allowed the co-leader of this drug ring, Marvin McCaleb, to serve just seven years -- despite prior convictions for major drug dealing, rape and manslaughter.... [The] system routinely sacrifices small fish of the drug trade -- who don't have much information to trade -- while enabling the big fish to re-offend. The system too frequently offers a get-out-of-jail-early card to the worst criminals....
President Clinton commuted Nunn's sentence in July 2000. It helped that one of Nunn's prosecutors and then-Gov. Jesse Ventura of Minnesota wrote letters.... The most breathtaking argument came from the sentencing judge, David A. Doty, who wrote an eight-page letter that ripped the mandatory-minimum system to shreds....
On the phone Monday, Nunn told me of the frustration she faced after spending more than a decade behind bars -- and wanting just one chance to turn her life around -- while watching "someone who gets those opportunities, not once, not twice, but even three times" re-offend and return to prison.... [W]hen societies overpunish small-change offenders and underpunish kingpins -- when 19-year-old kids serve sentences that exceed a decade, while career thugs do shorter time -- you end up with expensive injustice.
Another uninspired round of Bush pardons
As detailed in this AP story, President Bush has granted a new set of executive pardons. Some details about the eleven individuals receiving the pardons and their crimes and sentences are available in the story, which also notes that now "Bush has issued 82 pardons and sentence commutations during 63 months in office, mainly to allow people who committed relatively minor offenses and served their sentences long ago to clear their names."
I have done a lot of coverage of Bush's pardon practices, some of which can be found in the links below:
UPDATE: Margaret Colgate Love, who served for twenty years in the US Department of Justice, including seven as US Pardon Attorney under the first President Bush and President Clinton, had this to say about the latest round of GWB pardons:
Federal pardons continue to dribble out of the White House, at fairly regular intervals but at a snail's pace. The latest round of grants are predictably unexceptionable: none of the offenses is particularly serious (the longest prison term was three years) and most are quited dated.
This makes 80 pardons that Bush has granted in five years -- which may seem like quite a lot until you consider that over a thousand pardon applications have been filed during his presidency, and over 900 pardon cases remain to be acted upon. He has commuted only two sentences (these two token grants were both to old sick people within six months of release in the ordinary course), and has received 4,552 applications.
It will be interesting to see, as the end of his term approaches, whether he will begin to pick up the pace a bit. If he doesn't, he will face an enormous backlog of cases at the end of his term, which he will either have to deny (sending his grant rate into the cellar) or leave for his successor (like Clinton did). I understand that the Bush administration did not appreciate inheriting President Clinton's unfinished business (923 undecided pardon cases and over two thousand commutation cases), but it appears that Bush is on track to leave his successor with the same heap of undecided cases.
It has been a long time since the federal pardon program was administered in a responsible way -- indeed since President Bush's father's tenure. One would have hoped that President Bush had learned from the fiasco at the end of the Clinton administration that a president ignores at his peril what President Reagan's White House Counsel Fred Fielding called "the housekeeping business of the presidency." If he were to initiate now a serious regime of pardoning, making 15 to 20 grants every couple of months and denying cases that are not meritorious, he could both arrive at the end of his term with a reasonable pardoning record and leave his successor a tidy room.
The commutation cases are of course another matter -- I continue to hope that he will make a few grants in some of the sympathetic cases that I know are in the system, at least to signal his humanity if not encourage some reform in the legal system.
MORE: T Chris at TalkLeft adds some additional commentary here.
Interesting Third Circuit case on supervised release conditions
In a case that seems to be fertile ground for lawyer jokes, the Third Circuit issued an interesting ruling about conditions of supervised release today in US v. Smith, No. 05-2697 (3d Cir. Apr. 19, 2006) (available here). In Smith, the defendant fails in his effort to reverse an "occupational restriction imposed on Smith after sentencing which barred him from employment with an attorney or law firm for the three-year duration of his supervised release."
As the facts detail, Smith's crime of conviction was wire fraud after he "started a business named Litigation Support Services" and orchestrated a number of fraudulent business deals. Despite this history, upon his "release from the federal correctional institution and transfer to the community corrections center, local attorneys who knew Smith offered to hire him during his period of supervised release." But Smith's "program review team" objected, and litigation ensued.
The Third Circuit upholds Smith's occupational restriction, though a lawyer joke punchline might be that the court forced the defendant to work with attorneys (and the follow-up line, of course, would be something about cruel and unusual punishment).
More on sentencing of former Gov Ryan
This AP story includes some predictions and explores issues for the sentencing of former Illinois Gov George Ryan following his conviction earlier this week on racketeering, fraud and other charges. Here are highlights:
Prosecutors declined to say what sentence they might ask for, saying they needed time to study the federal sentencing guidelines, which the U.S. Supreme Court ruled last year are advisory rather than mandatory. Assistant U.S. Attorney Patrick M. Collins referred reporters to the 6-1/2 years now being served by Ryan's one-time top aide Scott Fawell as an example of a racketeering sentence in a related political case but stressed that prosecutors do not yet know if something similar would be appropriate for the former governor. "I would think that (6 1/2 years) would be the lower limit," Allen said. "After all, Ryan is more responsible for this than Fawell is."...
Several attorneys said the defense is likely to raise Ryan's age and any possible health ailments at sentencing, which could be delayed by post-trial motions and sentencing issues, along with testimonials from community leaders and death penalty activists.
Defense attorney William F. Dow III... believes high-profile defendants often receive tougher sentences. "Someone like a governor who has inevitably done a number of good things might not have them weigh as heavily in his or her favor because the sentencing judge might not want to look like a pushover," he said. "Whereas a man on the street who had coached Little League, worked at church suppers, taken care of the elderly ... those things tend to mean a lot more," Dow said.
Still, Dow said if he were representing Ryan, he would emphasize his role as one of the nation's most outspoken critics of the death penalty. "I'd say, 'Look at the fresh perspective he brought to the death penalty. Look at the healthy debate that all flowed from this man ... Look at the person in front of you,'" Dow said. "'Look at what they claim he did and what else (good) he has done. Weigh that all in the mix for a 72-year-old man.'"
Recent related posts:
April 18, 2006
Missouri lethal injection litigation update
As detailed in this AP article, the litigation of Missouri's lethal injection protocols moved forward today with oral argument in the Eighth Circuit. Here's a snippet of the article:
Lawyers for a Death Row inmate said Tuesday they want to depose a doctor and nurse involved in Missouri executions so they can argue their case that a drug combination used to kill condemned prisoners is unconstitutionally cruel punishment. But the state has blocked it -- in part over concerns medical personnel would be harassed. The defense said it has agreed to shield their identity.
Interestingly, the article also reports that attorneys "for four other condemned prisoners were expected to file suit Wednesday in federal court in St. Louis challenging Missouri's lethal injection method."
Recent related posts:
An Introduction to Federal Sentencing (9th ed. 2006)
Federal public defender Lucien Campbell was kind enough to send me a copy (and allow me to post) the new (and ninth) edition of the paper he co-authors with fellow defender Henry Bemporad entitled "An Introduction to Federal Sentencing." Here is the introduction to the 32-page document:
Despite the fundamental policy change that Booker represents, the decision so far has had relatively little practical effect on federal sentencing. Judges are now vested with far more sentencing discretion, but they have used that discretion sparingly, continuing as before to impose sentences within the guideline range in the majority of cases. Nevertheless, the fact that the guidelines are now advisory rather than mandatory can have a tremendous effect on a particular defendant's case. The effect can be either positive or negative, and defense counsel must be prepared to gauge the potential benefits and risks of the advisory guidelines at every stage of a federal criminal case. The starting point is a thorough understanding of the federal sentencing process.
This paper begins by describing the statutory basis of guideline sentencing, as altered by the Supreme Court in Booker. It then reviews the structure of the guidelines, explains how they are calculated in a typical case, discusses plea bargaining, and warns of traps for the unwary. The treatment is far from exhaustive; this paper provides no more than an overview to facilitate gaining a working knowledge of the federal sentencing system as it now stands.
Judges on blogs and blogging
As first noted in this post, Ian Best at 3L Epiphany has impressively assembled here a (comprehensive?) collection of cases that cite legal blogs. In addition, Ian apparently sent the judges who have cited blogs a series of interesting follow-up questions. At least two judges have already thoughtfully responded:
- The thoughtful answers from Ohio Supreme Court Justice Judith Ann Lanzinger to Ian's questions can be found here.
- The thoughtful and humorous answers from Nebraska U.S. District Judge Richard G. Kopf can be found here.
For anyone interesting in judging, blogging or just the future of legal ideas and practices, these two blog interviews (blogerviews?) are must reading.