May 23, 2006
Great student note about IAC and sentencing length
I often find that student notes in law journals do a terrific job covering important sentencing issues that are not regularly addressed by full-time academics. Another example of this reality comes from this month's Harvard Law Review, which just published a note entitled "Prejudice and Remedies: Establishing a Comprehensive Framework for Ineffective Assistance Length-of-Sentence Claims" (available here).
I thought the nexus of sentencing and ineffective assistance claims was an important issue well before Blakely and Booker came along, and these issues may now be even more important. Though I've not yet read this note closely, I like the insights in this concluding paragraph:
This Note identifies a variety of situations in which convicted defendants might bring ineffective assistance claims challenging the length of their sentences. Given the number of different scenarios and the relatively few Supreme Court cases governing these types of claims, one can expect further development of ineffective assistance length-of-sentence doctrine in the future. Going forward, litigants will have to decide how best to frame their arguments in this developing area of law. Judges, for their part, will have to draw difficult lines between deserving and undeserving claims. One can only hope that both groups, acting in concert, will advance and protect the meaning of the constitutional right to effective counsel.
Substantial discussions of substantial assistance
Two recent rulings from the Fifth and DC Circuits have extended discussions of reductions based on substantial assistance under the federal sentencing guidelines. In US v. Desselle, No. 05-30401 (5th Cir. May 22, 2006) (available here), the government objected to the sizable sentence reduction the defendant received from the district court based on his cooperation, whereas in In re: Sealed Case, No. 04-3015 (D.C. Cir. May 23, 2006) (available here), the defendant complained that did not receive a sufficient reduction for his cooperation.
Regular followers of circuit sentencing jurisprudence will not be surprised to learn that the government prevails in both cases: the Fifth Circuit reverses the district court's decision to grant a sizable reduction for substantial assistance in Desselle, whereas the DC Circuit affirms the district court's decision to grant a spartan reduction for substantial assistance in Sealed Case. Both opinions are interesting reads for anyone dealing with cooperation issues and 5K1.1, though I find Desselle a bit troubling for its failure to integrate post-Booker realities into its analysis.
The district court in Desselle addressed 3553(a) factors at some length to justify the sentence imposed, but the Fifth Circuit panel reverses because of the district court's failure to discuss expressly the factors listed in 5K1.1. Beyond the fact that the provisions of 5k1.1 are now only advisory, it would seem the district court could (and perhaps should and will?) now impose the same sentence upon remand simply by explaining that part of the reduction was due to cooperation and part was due to 3553(a) factors. Put another way, in light of Booker, the Desselle court might have readily decided that any error below was harmless, but instead it gives the government another bite at the harsh sentencing apple.
A window into Alabama sentencing (and politics)
The Birmingham News has this interesting piece with extended quotes following interviews about sentencing issues with the four major candidates for Alabama governor. Tellingly, all the quotes discuss rehabilitation efforts and the need to provide certain non-capital offenders with second chances, and they also all express strong support for capital punishment.
May 22, 2006
Olis loses appeal of denial of bail pending resentencing
Adding another minor chapter in the sad saga of the sentencing dynamics surrounding Jamie Olis, this evening the Fifth Circuit rejected Olis's appeal of his denial of bail pending resentencing. In US v. Olis, No. 06-20103 (5th Cir. May 22, 2006) (available here), the Fifth Circuit ultimately concludes that "Olis fails to overcome the presumption against release pending resentencing."
Some Olis background:
- Resentencing for Jamie Olis (but not for his co-conspirators) postponed
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
- Jamie Olis sentence overturned by the 5th Circuit!
- Media coverage of reversal of Olis sentence
- Interesting Olis developments
- Potent commentary on Olis case
- Are the federal guidelines too tough on white-collar offenders?
Trust fund kids gone wild in Connecticut?
As I noted here when discussing the latest BJS incarceration data, state-to-state variation in imprisonment always intrigues me. And, when I had a chance today to review the latest BJS stats, I was struck by Connecticut's imprisonment of persons under the age of 18.
Connecticut has a relatively low total prison population and its prison incarceration rate is relatively low compared to the rest of the nation (although its leads the northeast region). But Connecticut had, by far, the largest number of prisoners under the age of 18 as of midyear 2005. Consider, for example, that Texas has nearly 10 times as many total persons imprisoned than Connecticut, but little Connecticut has more than twice as many minors in prison than Texas. In Connecticut, nearly 2% of the entire state prison population as of midyear 2005 was under 18, but minors do not comprise more than 0.5% of all prisoners in any other state.
Do readers have ideas or background on why Connecticut has so many minors in state prison?
Noting the SCOTUS lethal injection dodge
The Supreme Court's decision today not to take on a Tennessee case that directly addresses the constitutionality of lethal injection protocols (basics here) has drawn the attention of a number of media outlets:
I am a bit surprised by the somewhat tepid nature of many quotes in these article. As I have suggested in a series of posts (such as here and here and here), the lethal injection litigation over the last four months has to be considered a national disgrace, and I think SCOTUS deserves much of the blame for the ugliness. But while the Supreme Court apparently has enough time and energy to consider a "odd flyspeck" Fourth Amendment case with only misdemeanor charges hanging in the balance (details here), the Court will not yet spend its precious time on a truly life-and-death Eighth Amendment issue. Hmmm...
Another disturbing facet of Texas justice
Thanks to this tip from Grits for Breakfast, we can hear about another ugly facet of Texas justice from this article discussing the state's parole system. The article, entitled "Parole system shrouds frauds: Poor enforcement of disclosure law hides 'consultants' who rip off inmates, families," is focused mostly on fraud within a secretive parole system. Here are a few notable passages:
The enigmatic process that determines which Texas prison inmates should be set free on parole has long been prone to eruptions of scandal and corruption. Shrouded in secrecy and buffeted by politics, the system is largely ignored by the public until it boils over and brings down a governor or spawns criminal charges.... [A]n Austin American-Statesman analysis shows that state parole officials appear to have little control over the network of attorneys — and hucksters — who ply the secret byways of the parole process trying to affect which murderers, rapists, drug dealers or embezzlers get out of jail early....
The Board of Pardons and Paroles — its seven members appointed by the governor — and 12 parole commissioners hired by the board considered more than 70,000 of the state's 148,000 inmates for parole in fiscal year 2005 and granted parole to 19,582 — just under 28 percent. Under state law, every scrap of paper filed and every record of parole deliberations save for the final vote is secret, so there is no way to know how decisions are made.
Given the enormous flow of cases, board members may spend less than a minute considering each one when they deliberate individually, in offices around the state. So many inmates, or their families, hire consultants, who claim a higher success rate for their clients than inmates navigating the process by themselves. The consultants file briefs or argue before the board.... Parole consulting is a tight-knit business where it is not unusual for officials to switch sides, from making decisions to trying to influence them.
Justice Stevens asking all the right questions
Today the Supreme Court issued only one opinion in Brigham City v. Stuart, No. 05-502 (S. Ct. May 22, 2006) (available here), a little criminal case involving police entering a home without a warrant to break up a fight. And I am pleased to see, from this report by Marty Lederman at SCOTUSblog, that Justice Stevens in a concurrence is asking all the right questions about the expenditure of time and energy in this case:
This is an odd flyspeck of a case. The charges that have been pending against respondents for the past six years are minor offenses — intoxication, contributing to the delinquency of a minor, and disorderly conduct — two of which could have been proved by evidence that was gathered by the responding officers before they entered the home. The maximum punishment for these crimes ranges between 90 days and 6 months in jail. And the Court's unanimous opinion restating well-settled rules of federal law is so clearly persuasive that it is hard to imagine the outcome was ever in doubt.
Under these circumstances, the only difficult question is which of the following is the most peculiar: (1) that the Utah trial judge, the intermediate state appellate court, and the Utah Supreme Court all found a Fourth Amendment violation on these facts; (2) that the prosecution chose to pursue this matter all the way to the United States Supreme Court; or (3) that this Court voted to grant the petition for a writ of certiorari.
Some related posts about the Supreme Court's curious cert choices:
UPDATE: Justice Stevens' brief concurrence (available here) is a great read which makes a pitch for the development of state constitutional law. Here's a key quote, follwed by links to posts in which I've championed the development of state constitutional law:
Federal interests are not offended when a single State elects to provide greater protection for its citizens than the Federal Constitution requires. Indeed, I continue to believe that a policy of judicial restraint — one that allows other decisional bodies to have the last word in legal interpretation until it is truly necessary for this Court to intervene — enables this Court to make its most effective contribution to our federal system of government.
Some related posts about state constitutional law:
SCOTUS denies cert on direct challenge to lethal injection
As noted here at SCOTUSblog, today the Supreme Court decided not to decide a Tennessee case (Abdur'Rahman v. Bredesen, No. 05-1036) that directly addresses the constitutionality of lethal injection protocols. My first reaction is to lament the Court's decision to avoid resolving this critical issue on the merits ASAP. But, upon reflection, I wonder if the denial of cert in Abdur'Rahman is a sign that we will get some substantive discussion of lethal injection protocols through the Court's work on the Hill case.
Coincidentally, the National Law Journal today has this article entitled "Lethal injection stays not consistent in U.S.: Awaiting high court review, courts are divided and attorneys unnerved." Here's a taste:
The situation around the country is unnerving for defense lawyers where stays may be handed out in one circuit but denied in the circuit next door. "The problem is we have no guidance from the court on how to defend our clients," said Kelley Henry, one of [Tennessee death row defendant Sedley] Alley's lawyers. "It is very discouraging when your client's life is on the line."...
[A]ccording to Richard Dieter, executive director of the Death Penalty Information Center in Washington ... the "death penalty is basically grinding to a halt, but that means in the meantime some people are executed and some are not."
Some recent related posts:
- Recapping a lethal week for lethal injection scrummages
- Shouldn't Hill be the very first priority for SCOTUS?
- How could (and should) Congress clean up the lethal injection mess?
- The partial de facto moratorium created by Hill
- Tennessee lethal injection litigation splits Sixth Circuit
- Lethal injection litigation leads to a stay in Texas(!)
- Texas executions back on track
- A must-read for those following lethal injection scrummages
The inevitable drug sentencing trade-offs
This interesting article from the Huntington (WV) Herald Dispatch, entitled "Costs a factor in drug enforcement," spotlights some of the trade-offs that are inevitable in the prosecution and sentencing of drug offenses. Here are some snippets:
Tougher punishment for drug dealers is an idea that many — from police to politicians to the public — agree on. But a variety of economic pressures and investigators' need for information often mean lesser charges, shorter sentences and failed attempts to send drug dealers back to the jurisdictions where they are wanted....
The Herald-Dispatch earlier this year reviewed Cabell County court records from 2004 and found that less than 15 percent of the felony drug trafficking cases actually resulted in a year or more in prison. Officials hope that the rising number of arrests this year and better strategies will result in more drug dealers behind bars for longer periods, but it's too early to tell. Most of those cases are still working their way through the system, and there are many challenges — from mounting prison costs to crowded court dockets....
Joe Ciccarelli, the state's supervisory senior resident agent for the FBI, said it is just an unfortunate example of how economics can affect drug enforcement. He said the decision is ultimately up to the voters. "I think it all boils down to economics," he said. "From soup to nuts. Whether you are a drug dealer or a public official trying to find the money to fight the drug dealers. It's all about money.
"It's up to the people of this state to decide where we want our money to go. Do we want to pay more tax dollars to have more judges, more prosecutors, more jails and more policemen? Where is the balancing point? Where does our safety and the safety in our communities come into play? Are we willing to put our money where our mouth is?" Ciccarelli added....
May 21, 2006
US incarceration rate hits another new high
Thanks to this tip from TalkLeft, I see that the Bureau of Justice Statistics has released this report, "Prison and Jail Inmates at Midyear 2005," which documents yet another increase in the overall incarceration rate in the United States. Highlights from the report can be found in this press release, in this preview page, and in this AP article about the report.
As is often the case, the remarkable state-to-state variation in incarceration rates always intrigues me (especially when the federal Justice Department rails about the importance of national sentencing uniformity). Consider, for instance, this factoid:
Louisiana and Georgia led the nation in percentage of their state residents incarcerated (with more than 1 percent of their state residents in prison or jail at midyear 2005). Maine and Minnesota had the lowest rates of incarceration (with 0.3 percent or less of their state residents incarcerated).
Some recent additional posts about incarceration rates:
A non-lethal weekly recap
As detailed in this post, the most intriguing sentencing action this week flowed from the lethal injection litigation. Nevertheless, as the non-lethal list below documents, there was also plenty of other notable sentencing developments:
SCOTUS DEVELOPMENTS AND COMMENTARY
- The criminal justice test for Roberts' rules of order
- Minimal mid-May SCOTUS action in the criminal justice arena
BOOKER DEVELOPMENTS AND COMMENTARY
- Seventh Circuit deepens splits over post-Booker sentencing
- A revised draft of "Conceptualizing Booker"
- What is the USSC doing on the Booker front now?
- New ACS issue brief on crack sentencing disparity
- More friendly advice on crack sentencing for Third Circuit
- Ninth Circuit emphasizes importance of 3553(a)
- Lots of intriguing reasonableness action in the circuits
STATE SENTENCING DEVELOPMENTS AND COMMENTARY
- Major report on women in prison
- Intriguing sex offender collateral consequence
- Interesting piece on California capital politics
- Informative articles on parole realities
OTHER SENTENCING DEVELOPMENTS AND COMMENTARY
- Latest issue of FSR off to press
- Spotlight on victim impact testimony at sentencing
- Notable conference on race and criminal justice
- A long time to survive federal prison for first Survivor
Major report on women in prison
As detailed in this AP article, a new report from the Women's Prison Association provides a "comprehensive state-by-state breakdown of the huge increase in incarceration of women over the past 30 years." As the article explains, this new "report concurred with previous analyses attributing much of the nationwide increase in women's imprisonment to the war on drugs."
Over the past three decades, as the United States has experienced explosive prison growth, women have been hard hit. Although women have the dubious distinction of being the fastest growing segment of the prison population, scant attention has been paid to their involvement in the criminal justice system. Indeed, even most official sources of criminal justice data do not distinguish between men and women in their analyses, leaving it only to speculation on whether there are any distinctions between the two groups that make a difference.
HARD HIT: The Growth in the Imprisonment of Women, 1977 - 2004 is the first study of its kind, analyzing the striking growth in the numbers of women in prison, state-by-state over nearly three decades. The report provides context to the alarming growth trends and reviews what is understood about the phenomena by researchers who study women in the criminal justice system....
- Across the board, the growth has been dramatic....
- Tremendous state and regional variances exist....
- At the beginning of this century, interesting shifts occur....
- Women, families, and communities are devastated by imprisonment.