July 29, 2006
Super sentencing commission soiree
Anyone with an interest in sentencing, and especially the work of sentencing commissions, ought to make haste to Philadelphia for the 2006 Conference of the National Association of Sentencing Commissions (NASC). Starting next Sunday, the Conference is entitled "Keystone of Sentencing: Balancing Fairness and Costs," and the particulars are detailed in this schedule. The latest NASC newsletter, available here, has more information about the conference (and also discusses recent work of some state sentencing commissions).
Though Blakely and Booker talk will surely arise during the NASC conference, the structure and agenda of the event ensures that a broad range of other important sentencing reform issues take center stage. I am planning to attend the entire NASC conference, and I have the honor of moderating a Monday panel on Federalism & Sentencing. I am looking forward to every part of the terrific event, and I might even try to do a little live blogging if the tech gods are friendly.
Weekend reading from SSRN
Here are some more interesting-looking new papers I spotted on SSRN for the "to read" pile:
- The Futile Debate Over the Morality of the Death Penalty: A Critical Commentary on the Steiker And Sunstein-Vermueule Debate by Daniel R. Williams
- Law and Economics of Plea-Bargaining by Nuno Garoupa and Frank Stephen
- Incapacitation through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity by John F. Stinneford
- Rethinking Punishment by Thom Brooks
July 28, 2006
Not a happy weekend for Bernie Ebbers
A long drive to give a lecture today has me very ready for the weekend. But Bernie Ebbers, the former CEO of WorldCom, will not be enjoying the weekend as much as I hope to: the Second Circuit has affirmed his conviction and 25-year prison sentence. The opinion in US v. Ebbers, No. 05-4059 (2d Cir. July 28, 2006) (available here), is authored by Judge Ralph Winter.
I will update this post when I get a chance to read the full opinion. But I can whet everyone's appetite by relaying that, according to an FOB, the opinion includes "some interesting discussion of loss causation and reasonableness in white collar cases."
UPDATE: All the sentencing issues, and especially post-Booker reasonableness concepts based in the provisions of 3353(a), get short shrift in the Ebbers opinion. Conviction issues are covered for 35+ pages, sentencing issues occupy less than 10. And most of the sentencing pages discuss loss calculations, with co-defendant disparity and reasonableness review getting just a few paragraphs. But this allocation of energies apparently reflects choices made by the defense team: the Ebbers opinions suggests that the defense did not argue that the 25-year sentence was unreasonable, even though one might readily imagine an elaborate argument that such a lengthy term of imprisonment is "greater than necessary" under 3553(a).
News on the Booker fix front
At the start of this week, I returned from my "vacation" by jumping deep into the post-Booker world at the 2006 National Sentencing Policy Institute in Washington DC. Though not an event open to the public, I think I can report publicly discussed news.
Of particular interest was a panel with congressional counsel talking about legislative reactions to Booker and a speech by Deputy AG Paul McNulty about DOJ's continued support for Booker fix legislation. Here are a few highlights on Booker fixes and other sentencing legislation:
1. A Sensenbrenner "topless guidelines" Booker fix proposal is likely to be introduced in the House in September, though serious action on the bill before the November elections seems unlikely.
2. The Senate Judiciary Committee is likely to hold some sort of hearings on Booker in September, although serious action on any legislation seems unlikely this fall.
3. The Justice Department continues to support a "minimum guideline system" (which they do not like having called topless guidelines), and DOJ seems likely to start pushing hard for such a system in the months ahead.
4. We can and should expect to see continued interest in mandatory minimums from some members of Congress as long as the guidelines are advisory; the latest notable example of mandatory minimums appears in the new child safety legislation (noted here and here) that became law yesterday.
5. The Second Chance Act is a fascinating bipartisan bill that sounds as though it has a lot of really good provisions to help on a range of important re-entry issues.
Some related Booker fix posts:
- Full draft of Tweaking Booker
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 17.5: Is a Booker Fix Needed?
The extraordinary price of going to trial in white-collar cases
Ellen Podgor at White Collar Crime Prof blog has this strong post discussing a recent bank fraud sentencing in Miami: it appears the defendant's decision to go to trial rather than plead out like co-defendants cost him perhaps 25 or more years in prison! I can fully understand and even justify a small sentencing disparity between co-defendants who plead guilty and those who put the government to its burden of proof. But are we really respecting the right to a jury trial when defendants have every reason to fear that exercising this right could cost them decades more of their life behind bars?
On a related point, this article details that, in the sentencing for Qwest chief financial officer Robin Szeliga for insider trading, federal prosecutors have recommended a sentence of only six months "in return for her cooperation in their case against her old boss." The government is, of course, eager to send the message to white-collar defendants that going to trial could cost you the rest of your life, but pleading guilty and cooperating will likely only lead to a slap on the wrist.
Hoping for more buzz on Senate crack sentencing bill
The Senate bill introduced this week to reduce the notorious 100:1 crack/powder sentencing ratio (background here) is starting to generate a little buzz. This piece from the Drug War Chronicle provides nice background on the issue, and today's Montgomery Advertiser has this editorial supporting the bill with these insights:
Alabama Sen. Jeff Sessions ... has ample law-and-order credentials and plenty of credibility when proposing reforms in the glaringly unbalanced sentencing for cocaine offenses. This is not a question of coddling criminals, but rather a move toward a more equitable sentencing structure for offenses involving the different forms of the drug.... A 100:1 disparity is hard to defend under any circumstances....
A great friend of the blog has sent me a copy of the Senate bill, which can be downloaded here: Download senate_cocaine_bill.pdf
The Senate bill, by adopting a 20:1 crack/powder ratio for triggering statutory sentencing minimums, follows the latest advice from the US Sentencing Commission as reflected in its 2002 report to Congress. Consequently, it would seem appropriate for the USSC to issue press releases and author letters to key persons in Congress expressing robust support for this important bill and urging Congress to move forward quickly. But, given the USSC's recent track record on this issue, I am not holding my breath.
July 27, 2006
More on Supermax, human dignity, and public safety
I have had time this afternoon to take in some of NPR's great work on solitary confinement (blogged here, series here). For those concerned about human dignity and modern punishments, consider this lengthy snippet:
Everything is gray concrete: the bed, the walls, the unmovable stool. Everything except the combination stainless-steel sink and toilet. You can't move more than eight feet in one direction.... The cell is one of eight in a long hallway. From inside, you can't see anyone or any of the other cells. This is where the inmate eats, sleeps and exists for 22 1/2 hours a day. He spends the other 1 1/2 hours alone in a small concrete yard....
One inmate known as Wino is standing on just behind the door of his cell. It's difficult to make eye contact, because you can only see one eye at a time.... Wino fears he'll get in trouble for talking; he asks that NPR not use his real name. Wino is a 40-something man from San Fernando, Calif. He was sent to prison for robbery. He was sent to the SHU for being involved in prison gangs. He's been in this cell for six years. "The only contact that you have with individuals is what they call a pinky shake," he says, sticking his pinky through one of the little holes in the door. That's the only personal contact Wino has had in six years....
Inside the SHU, there's a skylight two stories up. But on an overcast day, it's dark, and so are the cells. There are no windows here. Inmates will not see the moon, stars, trees or grass. They will rarely, if ever, see the giant, gray building they live in. Their world -- 24 hours a day, seven days a week, every day of the year -- is this hallway.... There are 132 hallways at Pelican Bay just like this one. They are all full....
Each month, officers squeeze soap, shampoo and toothpaste into paper cups for the inmates. They are issued a jumpsuit, but in two days at the facility, there doesn't seem to be a single prisoner wearing one. All of them are wearing their underwear, white boxer shorts, t-shirts and flip-flops....
When inmates do go crazy, there is another part of the prison for them -- the psychiatric SHU... In the psychiatric SHU at Pelican Bay, one inmate stands in the middle of his cell, hollering at no one in particular. Another bangs his head against the cell door. Many of the inmates are naked, some exposing themselves. The psychiatric SHU is full -- all 128 beds. One in 10 inmates in segregation is housed here. There's even a waiting list....
Almost 95 percent of the inmates in Pelican Bay's SHU are scheduled to be released back into the public at some point. They'll spend a few weeks in a local prison before rejoining society, with little, if any, preparation for how to live around people on the outside. And for every inmate that leaves, there is another one waiting to take his place.
My review of the NPR series confirms my assertions here that persons concerned about human dignity ought to focus more on the tens of thousands of humans in Supermax facilities than on the many fewer humans on (much nicer) death rows. And the final paragraph quoted above suggests that persons concerned about public safety also ought to be giving a lot more attention to the all-too-secretive Supermax world.
Intriguing Ninth Circuit Booker pipeline case
The Ninth Circuit today in US v. Lence, No. 05-30236 (9th Cir. July 27, 2006) (available here) discusses this question: "whether a criminal defendant has a right to be resentenced by his original sentencing judge on remand following Booker error." Here is the money quote:
We believe the proper course is for the original sentencing judge to conduct the resentencing, particularly where the judge felt strongly enough to make on-the-record statements about the propriety of the sentence he was required to impose under the Guidelines.
The lethal injection litigation rages on and on and...
This morning, Reuters has this story asserting that lethal injection litigation is "contributing to a broad reexamination of the death penalty across the country." In my view, all the legal wrangling over lethal injection protocols is not changing any opinions on the death penalty, even though it is dramatically impacting execution practices. (As detailed here, Missouri now has a de facto moratorium on executions because a federal district judge refuses to approve its revised lethal injection protocol.)
These discussions, along with the just noted NPR series on solitary confinement, gets me revved up again about the harmful and distracting obsession everyone has with the death penalty. There is now nationwide constitutional litigation disrupting the imposition of lawful capital punishments because there is a chance that a few murders might suffer pain right before being executed. Meanwhile, more than 25,000 prisoners are subject to the extreme mental and physical suffering that is known to accompany confinement in Supermax or control-unit prisons. And yet, there is little or no litigation or even attention paid to this issue.
Why don't persons who claim to be so concerned about human dignity focus more on the tens of thousands of humans suffering every day from extreme prison confinement rather than on the few humans who might suffer pain on the way to being executed?
Great NPR series on solitary confinement
With thanks to How Appealing for this tip, I see that National Public Radio has started an interesting series on solitary confinement. This article, entitled "In U.S. Prisons, Thousands Spend Years in Isolation," provides background and links for the series' audio segments. Also, this addition piece, providing an "overview of key moments in the history of solitary confinement" in the United States, is a fascinating read. Here is how the NPR timeline starts and ends:
1829 - The first experiment in solitary confinement in the United States begins at the Eastern State Penitentiary in Philadelphia. It is based on a Quaker belief that prisoners isolated in stone cells with only a Bible would use the time to repent, pray and find introspection. But many of the inmates go insane, commit suicide, or are no longer able to function in society, and the practice is slowly abandoned during the following decades....
2005 - Daniel P. Mears, an associate professor at Florida State University, conducts a nationwide study and finds there are now 40 states operating Supermax or control-unit prisons, which collectively hold more than 25,000 U.S. prisoners.
July 26, 2006
Fascinating First Circuit reasonableness opinion
In a decision with a little something for everyone (including folks who think appellate judges should be tasked with sentencing), the First Circuit in US v. Thurston, No. 05-2271 (1st Cir. July 26, 2006) (available here) today reversed as substantively unreasonable a below-guideline sentence in a Medicare fraud case. As noted by AL&P here and DotD here, there are many interesting facets of Thurston, and even though the case finds a large variance unreasonable it has a good bit of pro-variance statements. What makes the case more interesting and notable interesting is the panels decision to not merely remand for resentencing, but also to declare that a sentence of at least 36 months (in light of a guideline minimum of 60 month) is likely needed to survive reasonableness review.
Sex offender bills becoming law
As detailed in this USAToday story, the Adam Walsh Child Protection and Safety Act is all set to become federal law tomorrow. This local story explains that the Act is "designed to track sex offenders nationwide and toughen penalties against those who prowl the Internet to find young victims." I discussed more features of this law in this recent post, but I am still looking for a thoughtful and balanced summary of its key sentencing provisions.
On the state front, this article notes that Delaware's governor "today signed a law that will mandate prison terms of 25 years to life for people convicted of a felony sex offense against a child under the age of 14. It will also impose the same sentence on people convicted of a second felony sex offense against older teens."
A Senate bill to reduce crack/powder disparity
The Washington Times is reporting this exciting news from the Senate:
A bipartisan group of four U.S. senators, all former state attorneys general, presented legislation yesterday to reduce the disparity in prison sentences for those caught with crack cocaine and those caught with powdered cocaine. That disparity in federal sentencing guidelines is currently 100-to-1. It would be reduced to 20-to-1 under a measure introduced yesterday by Republican Sens. Jeff Sessions of Alabama and John Cornyn of Texas and Democratic Sens. Mark Pryor of Arkansas and Ken Salazar of Colorado.
The Drug Sentencing Reform Act of 2006 would reduce the disparity by decreasing the amount of crack cocaine necessary to trigger the mandatory minimum sentencing and introducing a "modest increase on powders," said Mr. Sessions, who presented a similar Senate bill in 2001. Currently, possession of 500 grams of powdered cocaine results in a five-year mandatory minimum sentencing. It takes only 5 grams of crack cocaine to warrant a similar sentence. The senators propose shifting the sentencing amounts to 400 grams of powder and 20 grams of crack cocaine.
The bill would bring about "tougher sentences on the worst and most violent drug offenders and less severe sentences on lower-level, nonviolent offenders," said Mr. Sessions, adding that the measure would shift the emphasis in sentencing from drug quantity to the type of criminal act committed in distributing drugs. "This does not signal that we are going soft on crime," Mr. Sessions told reporters yesterday. He said that "much crime is driven by drug use," but that as a former federal prosecutor, he has "valid concerns in the disparity between crack and powder." Mr. Cornyn said his prior experience as attorney general of Texas showed him that "laws should be firm but fair. We not only need just laws, but they need the appearance and reality of fairness."
The crack/powder sentencing disparity -- which has resulted in higher incarceration rates for blacks convicted of drug crimes -- long has been targeted by groups such as the Leadership Conference on Civil Rights and the American Civil Liberties Union. In 2000, more than 84 percent of those sentenced for crack cocaine distribution were black, while 9 percent were Hispanic and 5 percent were white. By contrast, 30 percent of those sentenced for powdered cocaine were black, 50 percent were Hispanic and 15 percent were white.
This local story from an Alabama paper on the bill provides some more perspectives on the issue.
Many critics of current federal sentencing laws are surely eager for drug sentencing reform that goes beyond this relatively minor tinkering in the cocaine area (such as the elimination of all statutory mandatory minimums). However, just the introduction of this bill marks a significant step forward inthe crack/powder debate. It would be especially exciting and valuable if the Senate were to hold hearings on this bill to give these issues a wider airing and if the US Sentencing Commission were to follow-up the introduction of this bill by (finally) doing something bold in this arena.
Some related posts:
UPDATE: The folks at FAMM has this reaction to the new bill. Here is a snippet:
Instead of tinkering with drug weights, the senators should reform mandatory minimum sentencing laws so that drug weights alone don't determine sentence length. Sentences should be based on traditional factors such as culpability, role in the offense, and the use of weapons or violence. Congress needs to allow the Courts to consider all factors of the offense and the offender to insure a fair and proportionate sentencing system.
More discussion of leniency for drunk drivers
In this post a few months ago, I pondered why so much more attention is paid to sex offender sentencing than to sentencing for drunk drivers. In Minnesota, however, the Pioneer Press is taking a close look at drunk driving sentences in this article, entitled "State easy on drunk drivers." Here is a snippet:
In a majority of cases, judges across Minnesota break with state sentencing guidelines when it comes time to lock up drunken drivers convicted of criminal vehicular homicide. Five years after a Pioneer Press investigative report highlighted the pattern, courts continue to give most defendants hefty breaks from their presumptive prison terms. The courts opt instead for shorter jail or workhouse sentences and lengthier periods of probation. That trend holds true even in some cases where the defendant fled the scene of a fatal accident or has a history of drunken driving.
Some related posts:
July 25, 2006
Keeping up with the capital times
For various reasons (some to be discussed in future posts), Booker and federal sentencing have captured most of my attention lately. Fortunately, a number of other bloggers continue to do a great job keeping up with capital sentencing news:
- The StandDown Texas Project blog has lots of new stuff on the death penalty in Texas.
- Capital Defense Weekly and Ohio Death Penalty Information both have a lot of interesting new posts on a number of interesting topics, such as the latest federal death penalty developments discussed here and the latest lethal injection stay in Delaware discussed here.
Great commentary on California's prison problems
Professors Joan Petersilia and Robert Weisberg this past weekend had this great commentary discussing how California should respond to its prison overcrowding problems. Here is a taste:
Virginia and North Carolina have proved exemplary in recent years in creating sentencing commissions, composed of representatives of the different parts of state government and criminological experts, to devise more rational sentencing and parole guidelines, tempered by budgetary realism. They have done so while enjoying at least as great a crime rate drop as the rest of the United States in the past decade. These states have succeeded because somehow their politicians have found a way to avoid the nuclear-arms-race-like ratcheting up of sentences to appear tough on crime to the voters. But the officials in these states also have managed to make the economics of criminal justice part of the civic discourse among officials, the media and voters.
None of this is happening in California. After a promising start two years ago, the governor, weakening under incessant attack from the Legislature and the prison guards' union, seems to have lost the will to subject the corrections system to rational policy analysis. And the response to his new proposal from his new Democratic rival, Phil Angelides, has been loud but amounts to vacuous hot air. It's now a cliché that modern politicians are terrified of appearing soft on crime. But we've reached the point where politicians are too bizarrely worried about the soft-on-crime label even to suggest that some reform in the corrections system -- or even rational analysis of it -- is necessary. Apparently they fear that any suggestion that some criminals might be imprisoned unnecessarily or for too long risks political attack, even when the suggestion is part of a plan to increase the sentences for the truly dangerous inmates who threaten public safety.
So as we approach this special session, the public should demand that in the area of criminal justice and corrections, "rational policymaking in California" must cease to be an oxymoron.
Some related posts on California's prison woes:
July 24, 2006
Downloadable copy of defender letter
In this post last week, I noted the intriguing (and long) submission from the Federal Public and Community Defenders to the Sentencing Commission concerning the USSC's priorities for the coming amendment cycle. I now have access to a fast internet connection, which allows me to finally post the must-read letter as promised here:
Sincere questions about acquitted conduct sentencing
On Friday, the DC Circuit in Dorcely (discussed here) and the 11h Circuit in Faust (discussed here) both approved of district courts relying on acquitted conduct to enhance a sentence. I understand the legal argument that the Supreme Court's work in the 1949 Williams case and the 1997 Watts case suggests that the Constitution permits judges enhancing sentences based on conduct that the jury rejected as a basis for a conviction. But I do not fully understand why this issue does not generate more attention and scrutiny.
Significantly, Congress has never made a formal policy decision that federal judges should base sentence increases on acquitted conduct. Indeed, provisions of 18 U.S.C. § 3553(a) suggest acquitted conduct should not be considered. For example, 3553(a)(6), by requiring consideration of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," suggests judges should not consider conduct for which a defendant has been found not guilty. Also, 3553(a)(2)(A) speaks of a sentence "promot[ing] respect for the law." Does reliance on acquitted conduct promote respect for the law?
Related, here are some other (non-constitutional) questions that I often think about when acquitted conduct is used in federal sentencing:
1. When passing the Sentencing Reform Act in 1984, did members of Congress desire or even expect that acquitted conduct would be used to enhance sentences?
2. Would Congress today pass a new law expressly calling for acquitted conduct to enhance sentences if the SRA was now to be interpreted not to permit such enhancements?
3. In light of constitutional history and the role of juries, why should the burden be on defendants to show that acquitted conduct enhancements are improper? Don't rule of lenity and/or constitutional doubt doctrines suggest that the SRA should now be interpreted to disallow such enhancements?
4. Is anyone really proud of a legal system that relies on acquitted conduct to enhance federal sentences? Put another way, is anyone endorsing this rule for Iraq's new legal system?
UPDATE: This recent comment to a prior post captures my feelings on this issue effectively:
Now I understand why parole boards can rely upon unproven allegations when making decisions against the granting of parole. As a chaplain, I never understood the fairness of this. As a student of this blog, I am amazed that all you lawyers who express justice permit this to happen.
DC Circuit embraces acquitted conduct and a presumption of reasonableness
Filling in another piece of the reasonableness puzzle, the DC Circuit on Friday adopted the (widely debated) presumption of reasonableness for within-guideline sentences after Booker. The decision in US v. Dorcely, No. 3130 (D.C. Cir. July, 21, 2006) (available here) is not especially thorough and is worrisome for many of the reasons I discuss in my recent Yale Law Journal Pocket Part article.
Even more troubling than the presumption work in Dorcely is the decision's eagerness to embrace reliance on acquitted conduct after Booker. I continue to be amazed at the unwillingness of circuit courts to grapple fully with the implications of Blakely and Booker for consideration of acquitted conduct. I also continue to wonder whether anyone could claim to be proud of a federal sentencing system that makes a jury acquittal essentially irrelevant at sentencing. I also continue to wonder whether the Supreme Court might take this issue up in the near future.
July 23, 2006
On blogs, clinics and court advocacy
Thanks to law.com, here are two interesting piece about modern developments in court advocacy:
- From Tony Mauro, this piece highlights that a number of highly-regarded law schools "are launching Supreme Court litigation clinics this fall and others, we hear, are not far behind."
- From Howard Bashman, this piece suggests that blogs help make the internet "a vast amicus brief through which legal experts who are otherwise unconnected to pending court cases may potentially influence their outcomes."
Combining the ideas from both these intriguing pieces, I wonder if any law school has thought about launching a legal blogging clinic with an emphasis on court advocacy.