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.
Insightful commentary on state sentencing realities
A kind reader forwarded this thoughtful commentary about Colorado's "prison spending crisis" that ran in last week's Denver Post. Anyone interested in sentencing reform issues ought to give the whole piece a read. Here are just a few highlights:
After several decades of an ambitious incarceration campaign, Colorado's booming prison population has run headlong into the fact that the state can spend only so much on corrections. Simply put, Colorado faces a prison spending meltdown. This leaves taxpayers with the option of either paying for a hugely expensive long-term prison expansion project, or demanding that lawmakers make sentencing changes to slow the growth of the prison population a main public policy goal....
It now costs roughly $83,000 to build one new prison bed and another $28,000 in annual operations costs. So, the state is looking at a $100 million per year commitment. Corrections spending is already more than 8.5 percent of state expenditures.
Of the more than 5,500 court commitments to Colorado prisons in 2004, more than 72 percent were classified as non-violent crimes.... Drug incarceration has quadrupled over 20 years to more than 20 percent of the prison population, at an annual cost of $100 million (or one new prison per year). In 2004, more than 1,300, or greater than 22 percent, of commitments were for drug offenses. For women it is worse: female drug offenders were a full 30 percent of female commitments.
Lawmakers may also want to consider spending even a fraction of the money on treatment as we do on incarceration. The RAND Corporation study "Controlling Cocaine: Supply Versus Demand Programs" concludes each dollar spent on treatment reduces the cost of crime and lost productivity by $7.46. By contrast, enforcement (arrest, seizure and incarceration) returns just 52 cents. The RAND researchers can be off the mark by half and the result remains that treatment for drug-addicted offenders who commit other crimes to support a habit is more cost-effective strategy than a prison bed....
Parole costs less than $4,000 per offender, while community corrections are a little over $6,000. Compare that to $28,000 for a state prison bed, and every offender who goes from prison to working and paying taxes is a net gain for the rest of us.... Colorado taxpayers [may be] just fine with a prison system crammed full of drug offenders, other non-violent offenders serving long sentences, and potential parolees. But in the near future they might have to decide how much their taxes will go up, or what state functions they are willing to give up, in order to keep it this way.
If a Blakely case is argued in the woods...
and no one reports on it, does it make precedent?
Sorry for the silly metaphysical question, but I am a bit stunned that I cannot find a single press account or any other kind of coverage of the Supreme Court oral argument yesterday in Washington v. Recuenco (No. 05-83). Even the folks at SCOTUSblog did not even bother to provide a preview of the case (as seems to be their custom for all SCOTUS cases) the time to mention Recuenco.
Because the issues in Recuenco concerning the nature of Blakely errors are opaque and perhaps of limited significance, I did not expect the Recuenco oral argument to get a lot of attention. But now I am thinking Recuenco might set some sort of record for least-discussed Supreme Court case.
Recent related Recuenco coverage:
- Recuenco oral argument report
- Recuenco basics
- Why Recuenco is a big little Blakely case
- O Recuenco, Recuenco, wherefore art thou granted Recuenco?
More reflections on Gov Ryan conviction and sentencing
This initial post on the sentencing of former Illinois Gov George Ryan following his conviction on racketeering, fraud and other charges has already generated some interesting comments. In addition, Ellen Podgor has some broader reflections on the verdict here at White Collar Crime Prof Blog.
This news story quotes a local legal analyst making a rough guess at Ryan's likely sentence: "Based upon all the factors that are in the federal sentencing guidelines, a guess would be somewhere between nine and 12 years would be a fair estimate of what his sentence would be." I suppose that's a reasonable guess given all the charges and potential relevant conduct, althoughthere will surely be a lot of dickering over guideline calculations and Booker issues as Ryan's August sentencing approaches.
For the 72-year-old Ryan, perhaps the most critical personal issue might be whether he will be free on bail while pursuing an appeal of his conviction. The complications of the case mean his appeals might take a number of years to resolve, and I am sure Ryan would like to spend that time on the outside.
UPDATE: I had a chance to do a segment discussing some of the complications raised by Ryan's upcoming sentencing with Chicago Public Radio on Tuesday morning, and the audio of the interview can now be accessed at this link.
MORE: How Appealing now has much of the media coverage of the Ryan conviction here.
Another important notice opinion from the Tenth Circuit
As discussed here, earlier this month the Tenth Circuit issued a potentially important decision concerning notice before the imposition of a non-guideline sentence in US v. Dozier, No. 05-6259 (10th Cir. Apr. 5, 2006). On Monday, the Tenth Circuit expanded its discussion of these important issues with a thoughtful and thorough opinion in US v. Calzada-Maravillas, No. 05-5029 (10th Cir. Apr. 17, 2006) (available here).
Calzada-Maravillas covers a lot of important ground in the course of reversing an above-guideline sentence imposed without the defendant having notice of such a possibility. The most significant part of the ruling may be the emphatic rejection by the Tenth Circuit panel of all the government's arguments for why the notice error should be deemed harmless.
April 17, 2006
Executions on track for NC and Virginia
Though lethal injection litigation has disrupted execution plans in California and Florida and Missouri and in the federal system, legal developments in North Carolina and Virginia today keep those states on track to go forward with executions scheduled for later this month.
- In North Carolina, as detailed in this AP story, the federal judge that had questioned the state's lethal injection protocol has now ruled that the "state of North Carolina has taken sufficient precautions to ensure that an inmate scheduled to die this week will remain asleep during his execution."
- In Virginia, as detailed in this article, a "federal judge on Monday refused to stay the execution of Dexter Lee Vinson, who challenged Virginia's method of lethal injection.... After a 45-minute hearing, U.S. District Judge Henry E. Hudson ruled that nothing has changed since he upheld the state's lethal injection procedures in the case of James Edward Reid, who was the last Virginia inmate executed in September 2004."
UPDATE: Thanks to a helpful reader, I can now link to this 7-page order from Judge Howard approving North Carolina's tweaked execution protocol. Here is the key concluding paragraph:
The State's use of the BIS monitor, the execulion team's resulting awareness of the level of consciousness of the plaintiff, and the administration, if necessary, of additional quantities of sodium pentothal to ensure that plaintiff is unconscious prior to the administration of lethal drugs, together satisfies this court that defendants have substantially complied with the terms of the court's April 7, 2006 order, and that the balance of hardships under Blackwelder now favors the State and counsels against issuance of a preliminary injunction and stay in this case.
SCOTUS taking another
capital quirky case
Regular readers know I kvetch a lot about the excessive energy that the Supreme Court and others devote to death penalty (and other "small impact") cases when there are so many other sentencing issues that ought to garner attention (consider, for example, posts here and here and here and here). But it is hard to get off this topic when I learn, as detailed by SCOTUSblog here, that the Supreme Court on Monday announced it will give its very limited time and docket to Carey v. Musladin (05-785) to address the far-reaching and critically important question of "whether it is unconstitutional for a judge in a criminal trial to allow family members of a murder victim to wear buttons depicting the victim, when they are spectators in the courtroom."
[CORRECTION: This in-the-know commentor indicates that Musladin is not a capital case and reasonably suggests that this cert. grant serves as a judicial recognition of recent victim rights' concerns. Such good points reminds me why I am so thankful for the comments of thoughtful readers.]
Of course, as Orin Kerr details here, this case has already garnered a lot of judicial attention and covers all the usual cert-worthy bases. But stepping back from the doctrinal particular, and especially reflecting on the on-going national mess the Supreme Court has helped produced concerning lethal injection protocols, I continue to be greatly troubled by how the Court sets its criminal justice agenda.
Some related prior posts about the cert process:
- Roberts, the cert pool, and sentencing jurisprudence
- Justice Alito jumps into the pool
- The Chief goes swimming
- Pondering a (cert.) pool with much splashing about
- Cert. pool filling up with Blakely cases
Former Illinois Gov Ryan convicted on all charges
As detailed in this article, another high-profile post-Booker sentencing is on the horizon after a "federal jury convicted former Gov. George Ryan today on all charges that as secretary of state he steered state business to cronies in return for vacations, gifts and other benefits for himself and his family." The article notes that Ryan's "racketeering conspiracy charge carries a maximum sentence of 20 years in federal prison," but the story of the guidelines calculation and Booker issues make the sentencing realities nuanced and complicated.
In fact, Eric Zorn at the Chicago Tribune was ahead of the curve on this story when he blogged here that Ryan's conviction would not mark "an ending," but rather serve as "[j]ust the beginning of a whole new process." I would recommend White Collar Crime Prof Blog as the go-to source for commentary and analysis of all the past and future Ryan action.
For now, I'll just pose one question for reader comment: What sentence should a 72-year-old former state governor (who, by the way, commuted all of Illinois' death row at the end of his term) get for his conviction "on 18 counts of racketeering, mail fraud, false statements and tax violations"?
The Ninth Circuit on the need to explain
The Ninth Circuit today in US v. Miqbel, No. 05-10033 (9th Cir. Aprl. 17, 2006) (available here), vacated a pre-Booker sentence imposed upon revocation of supervised release because the district judge failed to adequately state the reasons for a sentence outside the recommended range. In addition to making a great (but illegal) Scrabble word, Miqbel is a lengthy ruling with lots of post-Booker-relevant dicta about sentencing outside an advisory range and the dynamics of reasonableness review.
Telling twosome from Eighth Circuit
The Eighth Circuit today has two notable published sentencing opinions today:
- US v. Bueno, No. 04-2289 (8th Cir. Apr. 17, 2006) (available here), continues the circuit's trend of reversing as unreasonable nearly every below-guideline sentence it reviews. The court in Bueno reverses all of the district court's pre-Booker guideline determinations that favored the defendant, and then simply summarily asserts that the 18-month sentence given below "does not adequately reflect the seriousness of Bueno's offense, afford adequate deterrence, or adequately avoid sentencing disparities among similarly situated defendants."
- US v. Fowler, No. 05-2532 (8th Cir. Apr. 17, 2006) (available here), in contrast, is a win for the defendant. In Fowler, the panel holds that "the government materially breached its plea agreement by advocating for the imposition of the career-offender enhancement, in spite of its promise to recommend that the district court calculate Fowler's sentence based on an offense level that did not include that enhancement."
Sixth Circuit squabble over reasonableness
In US v. Jones, No. 05-5657 (6th Cir. Apr. 17, 2006) (available here), a squabble breaks out within a Sixth Circuit panel as the judges debate the particulars of reasonableness review in the course of affirming a within-guideline sentence. Both the majority opinion (by District Judge Dan Polster sitting by designation) and the dissent (by Judge Karen Nelson Moore) have a lot to say about reasonableness review. Here is the heart of the majority's view of matters:
The sentencing regime that the U.S. Supreme Court created in United States v. Booker, 543 U.S. 220 (2005), places the responsibility for sentencing in the hands of the district judge, who must consult the Guidelines and adhere to the factors set forth in 18 U.S.C. § 3553(a). While this Court reviews a sentence for both procedural and substantive reasonableness, McBride, 434 F.3d at 476 n.3; Webb, 403 F.3d at 383, a sentence within the applicable Guidelines range should not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence. Otherwise, the procedural reasonableness review will become appellate micromanaging of the sentencing process.
I think it is interesting that, by virtue of sitting by designation, Judge Polster had a chance to author an opinion for the Sixth Circuit that essentially demands that his reviewing court be sure not to engage in "appellate micromanaging of the sentencing process" of his sentencing decisions and those of his district court colleagues.
Recuenco oral argument report
Thanks to a number of helpful attendees, I have heard a few reports concerning this morning's oral argument in Washington v. Recuenco (No. 05-83). Based on these reports, I no longer think Recuenco is likely to turn out to be a big little Blakely case. Apparently, the Justices spent a lot of time trying to sort through the particulars of Washington state law, and that fact alone might suggest that the Court could possibly decide to DIG the case.
Even if the case is not sent packing through a DIG, the peculiar case facts in Recuenco may entail a relatively narrow (and thus relatively unimportant?) ruling. When not debating Washington law, the Justices were apparently concerned with indictment and notice issues; they did not cleanly focus on the big issue of whether clear Blakely sentencing errors ought to be subject to harmless error treatment.
Of course, these are second-hand reports of the argument, and I may have more tea leaves to read once I have a chance to review the official transcript in the days ahead.
As detailed in this recent post, the Supreme Court today starts a criminal-case-heavy session with arguments this morning in Washington v. Recuenco (No. 05-83). Recuenco will explore whether Blakely errors can be subject to harmless-error analysis or instead are structural errors. I have here described Recuenco as a big little Blakely case, and my numerous prior posts about the case are assembled in this archive.
For more basic background on the facts and issues in Recuenco (as well as links to the parties' briefs), check out this account of the case from the Medill folks at Northwestern. In addition, the folks at Cornell Law School have this effective write-up of the Recuenco case that also includes a discussion and analysis section.
Examining mandatory minimum sentences
Two distinct newspaper articles this morning both end up putting a critical spotlight on mandatory minimum sentencing:
- This article from Utah discusses at length Judge Paul Cassell's testimony last month in the House hearing on Booker (background here and here and here), and it begins by noting that "Cassell told a House Judiciary subcommittee that repealing 'irrational mandatory minimum sentences' is one way Congress could improve the sentencing process."
- This article from Pennsylvania explains that a recent sentencing memorandum from U.S. District Judge Jan E. DuBois "has rekindled a debate among jurists, legal scholars, criminal defense attorneys and prosecutors about the wisdom of mandatory minimums." The article canvasses the traditional arguments given for and against mandatory sentencing terms in the federal system.
April 16, 2006
Will Atkins ultimately prevail with his Atkins claim?
As detailed in posts here and here, a jury last year concluded that Daryl Atkins — the defendant at the center of the Supreme Court's ruling in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits executing mentally retarded offenders — was not mentally retarded. As a result of this ruling, Atkins was still constitutionally eligible to have his death sentence carried out.
Later this week, as detailed in this article, the Virginia Supreme Court will consider Daryl Atkins' Atkins claim. The article discusses the conflicting evidence concerning Daryl Atkins' mental status, though I am also intrigued by whether it was appropriate for Virginia to require him to prove his mental retardation by a preponderance of the evidence.
Some prior related posts:
- Will Atkins get the benefit of Atkins?
- Atkins does not get the benefit of Atkins
- When Atkins meets Blakely in Apprendi-land
- SCOTUS speaks to Atkins capital procedures
A criminal closing act for SCOTUS
Folks interested in a range of criminal justice issues should be getting excited about the last set of Supreme Court oral arguments this Term. As detailed in this SCOTUS argument calender, more than half of the oral arguments scheduled for the next two weeks involve criminal cases. (Also, I suspect we might see some criminal case opinions issued over the next few weeks as well.)
The sessions starts with arguments Monday in Washington v. Recuenco (No. 05-83) exploring whether Blakely errors can be subject to harmless-error analysis or instead are structural errors. I have here described Recuenco as a big little Blakely case, and my numerous prior posts about the case are assembled in this archive.
On a related theme, Tuesday brings oral argument in United States v. Gonzalez-Lopez (No. 05-352) exploring whether the denial of a criminal defendant's right to counsel of choice requires automatic reversal on appeal. SCOTUSblog here has a good review of the Gonzalez-Lopez basics, and Tony Mauro also has a great discussion of the case in Legal Times available here.
Also on tap for the next two weeks is the re-argument in the capital case of Kansas v. Marsh (some background here and here and here) and oral argument in the lethal injection case of Hill v. McDonough (some background here and here). And, another pair of cases will be exploring interesting issues relating to the traditional criminal law defenses of duress and insanity.
UPDATE: Thanks to How Appealing, I can note this detailed AP article about the insanity issue to be before the Supreme Court this Wednesday in the case of Clark v. Arizona.