August 12, 2006
NYT coverage of reentry issues
This morning's New York Times includes this article about prisoner reentry issues. Here's a snippet:
The 1980's and 90's were an era of get-tough, no-frills punishment; inmate populations climbed to record levels while education and training withered. Prisoners with little chance of getting a job and histories of substance abuse were sent home without help.
Now a countertrend is gathering force, part of an unfolding transformation in the way the criminal justice system deals with repeat offenders. After punishment has been meted out and time has been served, political leaders, police officers, corrections officials, churches and community groups are working together to offer so-called re-entry programs, many modest in scope but remarkable nonetheless....
The flood of more than 600,000 inmates emerging from the nation's prisons each year, and the dismal fact that more than half of those will return, plays out relentlessly [in many communities]. Even with the new programs, the odds against staying straight are formidable.
(Too many?) witnesses to an execution
beThis AP article spotlights a novel legal issue arising in a North Carolina capital case:
More than 40 relatives of a death row inmate have filed a lawsuit asking that all of them be allowed to attend the execution scheduled for next week, lawyers said. The Central Prison warden has told Samuel Flippen that only his parents can attend the execution, which defense attorneys say violates a state law that allows any relatives to attend an execution of a family member....
In a written statement, Flippen's attorneys said they will ask a judge for a temporary restraining order Monday to stall the execution unless all relatives are allowed to attend. The room where witnesses usually watch an execution is small and typically must accommodate reporters, law enforcement, and family members of both the victim and death row inmate.
The article notes that Flippen's attorneys also have pending challenges to North Carolina's lethal injection protocol. Ah ... the joys of last-minute capital litigation.
August 11, 2006
What a Booker month in the circuits
Just when I thought the Booker story in the circuits was getting boring (fatigue shown here), August has been rocking my nerdy world. There have been so many notable circuit rulings this month, many of which I have not even had a chance to discuss because I have been chasing this action:
- Major split Second Circuit ruling on reasonableness
- Third Circuit specifies issues for Grier en banc
- More strong Sixth Circuit reasonableness work
- Seventh Circuit issues another cracked opinion on the crack ratio
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
- Ninth Circuit on reasonableness review and "anachronistic" departures after Booker
- Eleventh Circuit thoughtfully explores post-Booker sentencing while rejecting presumptions
Related August Booker developments and commentary:
- Who will be most sorry about Demaree?
- When and how should SCOTUS take up reasonableness review?
- Another extraordinary magnum opus from Judge Young
- Hot sentencing start to the dog days
Who will be most sorry about Demaree?
Though seemingly involving a technical ex post facto issue, the Seventh Circuit's ruling in Demaree could (and will?) have a profound impact on post-Booker sentencing (basics here). At first blush, Demaree may seem like bad news for defendants: it says district courts may (and should?) apply the most recent version of the now-advisory guidelines even when they call for a longer sentence than the guidelines in place when the defendant committed his crime. But, upon reflection, Demaree might also make judges, prosecutors and probation officers miserable because of the intricate questions the ruling raises.
Here are just a few questions swirling around my brain after Demaree:
1. Though Demaree says the ex post facto clause does not preclude a District Court from using the latest guidelines, it doesn't say whether a court should or must use the latest (harsher) guidelines. May a district judge in the Seventh Circuit still decide, as a matter of policy, to "consider" only an earlier version of the guidelines? If a judge does rely on an earlier version of the guidelines, does a within-guideline sentence still garner a presumption of reasonableness? Or, is reliance on any old version of the guidelines per se unreasonable?
2. For counsel and probation departments, Demaree issues arise well before the day of sentencing. Should PSRs throughout the Seventh Circuit now only calculate ranges based on the current version of the guidelines even if they are much harsher (e.g., in fraud cases) than the version in place at the time of the crime? Can prosecutors and defendants stipulate in a plea agreement that only an earlier version of the guidelines should apply?
3. Will Main Justice, which has argued against the Demaree rule, seek en banc or Supreme Court review ASAP? In the meantime, must prosecutors in the Seventh Circuit only argue in favor of the current guidelines? Will prosecutors contend on appeal that only the current guidelines should garner the presumption of reasonableness? How will main Justice handle this issue when it comes up in other circuits?
4. Isn't the Seventh Circuit's recent ugly Jointer ruling mandating that the crack guidelines be followed (details here) wildly inconsistent with Demaree? Demaree stresses that a sentencing judge after Booker need only "consider the guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a)." It also says that a district court's freedom to impose a non-guideline sentence is "unfettered" and subject "to only light appellate review." Finally, Demaree says a sentencing judge "is certainly entitled to take advice from the Sentencing Commission."
In Jointer, the district judge considered the crack guidelines, followed the USSC's advice that those guidelines are too harsh for low-level dealers, and then exercised his supposedly "unfettered" freedom to impose a (non-guideline) sentence of 7+ years for minor drug sales. Yet, even though that sentence seems entirely "consistent with the sentencing factors listed in 18 U.S.C. § 3553(a)," the application of purportedly "light appellate review" in the Seventh Circuit resulted in reversal. Looking at Demaree and Jointer, which were decided only days apart, I must quote an early era computer: "Does not compute, does not compute, does not compute......"
Ninth Circuit on reasonableness review and "anachronistic" departures after Booker
Today in US v. Mohamed, No. 05-50253 (9th Cir. Aug. 11, 2006) (available here), the Ninth Circuit, in the course of affirming a sentence way above the applicable guideline range, discusses at length its "approach to reviewing post-Booker sentences." Here are a few highlights:
Consistent with the Supreme Court's remedial holding, we review post-Booker criminal sentences in two steps. First, we determine whether the district court properly calculated the applicable range under the advisory guidelines.... Second, whether the district court imposed a sentence inside or outside the applicable advisory range, we determine whether the sentence is reasonable....
We think ... the scheme of downward and upward "departures" [is] essentially replaced by the requirement that judges impose a "reasonable" sentence. The discretion that the district court judge employs in determining a reasonable sentence will necessarily take into consideration many of the factors enumerated in Section 5K of the Sentencing Guidelines, but to require two exercises — one to calculate what departure would be allowable under the old mandatory scheme and then to go through much the same exercise to arrive at a reasonable sentence — is redundant. In addition, the use and review of post-Booker departures would result in wasted time and resources in the courts of appeal, with little or no effect on sentencing decisions....
For these reasons, we side with the Seventh Circuit and we elect to review the district court's application of the advisory sentencing guidelines only insofar as they do not involve departures. To the extent that a district court has framed its analysis in terms of a downward or upward departure, we will treat such so-called departures as an exercise of post-Booker discretion to sentence a defendant outside of the applicable guidelines range. In other words, any post-Booker decision to sentence outside of the applicable guidelines range is subject to a unitary review for reasonableness, no matter how the district court styles its sentencing decision.
We do not mean to suggest, however, that the pre-Booker system of departures should be ignored. That system reflected the Sentencing Commission's judgment about what types of considerations should or should not take a case out of the "heartland of typical cases" such that an extraguidelines sentence would be justified. Koon v. United States, 518 U.S. 81, 94 (1996). If a district court's reasons for exercising its post-Booker discretion coincide with the factors allowed or encouraged under the pre-Booker system of departures, such overlap may suggest that the sentencing decision was reasonable. Our holding today does not preclude consultation of the system of departures that existed under the mandatory regime, either by the district court or by this court. Rather, out of a recognition that the concept of formal departures has become anachronistic, we hold that any deviation from the applicable advisory guidelines range will be viewed as an exercise of the district court's post-Booker discretion and reviewed only for reasonableness.
Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker
In what could be an extraordinarily important ruling, the Seventh Circuit today in US v. Demaree, No. 05-4213 (7th Cir. Aug. 11, 2006) (available here) essentially holds that pre-Booker ex post facto limits on the application of the most recent guidelines are no longer applicable now that the guidelines are advisory. This issue, which I raised in this post a few months ago, has not been thoroughly considered by any other circuit. But the Demaree ruling seems to cut against what nearly all district and circuit courts have been doing after Booker.
All 8 pages of Demaree are packed with highlights for sentencing geeks, and Judge Posner's opinion also has flourishes that will intrigue constitutional scholars. Here's the final paragraph:
We conclude that the ex post facto clause should apply only to laws and regulations that bind rather than advise, a principle well established with reference to parole guidelines whose retroactive application is challenged under the ex post facto clause. [Lots of cites] As for the confession of error that the government makes in its brief, the assistant U.S. attorney who argued the appeal acknowledged that the government is waging a rearguard action against Booker and wants the guidelines to bind as tightly as possible because it believes that judges are more likely to use their Booker-conferred discretion to sentence below than above the guidelines sentencing ranges. This produces the paradox that while the ex post facto clause is intended to protect criminal defendants, it is here invoked by the government in the hope that it will lead to longer sentences. It is not an attractive argument.
Seeking surveys of sentencing attitudes
As detailed here, the National Center for State Court (NCSC) will soon be publishing the results of two intriguing surveys about attitudes concerning sentencing reform. One survey posed a series of pointed questions to state chief justices and court administrators; the other posed a series of general questions to members of the public. At the great new blog Corrections Sentencing, Mike Connelly's has this post on sentencing commissions that draws on the results of the "insiders" survey, and this post discussing the results of the "outsider" survey.
Steve Chanenson and I are organizing a forthcoming issue of the Federal Sentencing Reporter around these surveys and what should be taken away from them (especially during an election season). And we thought it might be useful to compare the recent NCSC surveys with major prior works on insider and outsider perceptions and attitudes about sentencing and modern reforms.
The US Sentencing Commission has completed some interesting survey work about the federal sentencing system. For example, this report discusses the results of a 2002 survey of Article III judges, and this report discusses the results of a 1994 national sample survey of public opinions on sentences for federal crimes. But I am sure there have been other surveys of attitudes about sentencing trends (or sentencing in particular jurisdictions) that I have not seen or have forgotten.
So, here's a Friday bleg: can folks through comments to this post (or via e-mail here) let me know about any sound and/or interesting surveys of attitudes concerning sentencing and modern reforms? Thanks.
Another plug for a new blog
I want to urge readers again to check out Michael Connelly's new (group?) blog called Corrections Sentencing. Mike is doing great work right out of the gate, and I found especially intriguing this latest post on the work of, and perceptions of, sentencing commissions.
Notable Fifth Circuit redo
Though not a major sentencing case, I was intrigued by a new opinion from the Fifth Circuit in US v. Yi, No. 05-20144 (6th Cir. Aug 10, 2006) (available here), which starts with these sentences:
We previously issued an opinion that was predicated, in part, on a misrepresentation by the government. See United States v. Yi, 451 F.3d 362 (5th Cir. 2006). Upon reconsideration, we withdraw the prior opinion in its entirety and replace it with the following.
A later footnote in the Yi opinion explains the particulars:
On the first go-around, the government misrepresented a fact material to our decision to uphold Zheng's conviction for trafficking in the counterfeit Nike sandals.... Though the government now concedes its misrepresentation, it nonetheless tries to salvage the conviction ... [but its] argument plainly is meritless and solidifies our view that the evidence does not support Zheng's conviction on this count.
August 10, 2006
When and how should SCOTUS take up reasonableness review?
With the Eleventh Circuit today in Hunt thoughtfully rejecting a presumption of reasonableness for within-guideline sentences (details here), I am wondering when and how the Supreme Court will take up a case addressing post-Booker reasonableness review. The circuits are split not only on this presumption issue, but also on a range of other large and small aspects of the standards and nature of appellate review after Booker.
Because I think the circuits are very wrong when forcing district courts to follow the crack guidelines (as discussed here and here), I am hoping SCOTUS might explore reasonableness through review of a cracked-up crack ruling like Jointer from the Seventh Circuit or Eura from the Fourth Circuit. But these cases raise so many hot button issues, perhaps the Court would be wise to take a lower profile case. (Of course, the Court did use the high-profile Rodney King case a decade ago to consider departure authority in Koon.)
Given that a legislative Booker fix does not seem likely in the short term (as discussed here), the Supreme Court should no longer resist exploring reasonableness review on the assumption that the Booker remedy may not last. Of course, the Court might indirectly address these issues in the Cunningham case from California to be argued in October. Nevertheless, the federal sentencing world could be much more orderly (and less disparate) if the Supreme Court were to directly address reasonableness review ASAP.
Capital justice delayed is...
I have chimed in recently here about my concerns about efforts to block the execution of capital "volunteers," death row defendants who no longer wish to prevent the state from executing them. An interesting twist on these issues comes from the Ninth Circuit today in an order emerging from Comer v. Schriro, No. 98-99003 (9th Cir. Aug. 10, 2006) (available here).
Apparently, today's order response to defendant's motion again to dismiss his long-pending habeas appeal in order to allow the state of Arizona to proceed with his execution. Here are excerpts from the denial of the defendant's motion:
The case creates an issue that denigrates constitutional rights, thus the delay in reaching a decision. Comer wants to be executed. I maintain that the right to die is not synonymous with the right to kill. Comer's appointed habeas corpus counsel demonstrated serious due process violations by the judicial system against Comer that must be answered. The most troubling incident being that at his sentencing hearing in state court, Comer was brought into the courtroom battered, shackled, and naked except for a towel over his genitals.
Here is a portion of Judge Rymer's dissent:
We are now mid-way through 2006 without a ruling on the motions on which we reserved judgment on June 6, 2000. More than a year has gone by since oral argument. Not surprisingly, Comer has filed papers complaining about this court's inaction....
Comer asks that this panel either rule or turn the case over to another panel. The state agrees that the court should expeditiously rule on the matter before it. So do I. There is no reason for not ruling; we have had plenty of time to give full and fair consideration to all sides of all issues. Comer and the people of Arizona are entitled to a decision, and we have a duty to render one.
I have an inkling that we may be hearing more about this case in the days ahead.
Fascincating new blog for law professor baseball fans
Inspired by Michael Lewis's book, Moneyball: The Art of Winning an Unfair Game, many law professors have pondered the extent to which this profession can learn from Billy Beane's approach to winning baseball games for the Oakland Athletics. Four of those professors — Jim Chen, Tom W. Bell, Paul Caron, and Ronen Perry — will now discuss the ways in which Moneyball's emphasis on quantitative assessment of baseball-related performance can inform law school governance, academic rankings, and the overall mission of legal academia.
The second post is a long one by Tom Bell on "Reforming the USN&WR Law School Rankings."
Eleventh Circuit thoughtfully explores post-Booker sentencing while rejecting presumptions
This morning in US v. Hunt, No. 05-11671 (11th Cir. Aug. 10, 2006) (available here), the Eleventh Circuit has a lot of really interesting and important things to say about post-Booker sentencing. Here are some extended highlights (with lots of useful cites omitted):
Much has been written about the amount of weight to accord the Guidelines in light of Booker, and virtually every position has been adopted by one court or another....
We do not believe that any across-the-board prescription regarding the appropriate deference to give the Guidelines is in order. Booker restored to district courts a measure of discretion that the mandatory Guidelines had removed. This discretion is bounded, of course, by Congress's mandate to consider the factors in section 3553(a), one of which, subsection four, is the Sentencing Guidelines. There are many reasons a district court may choose to follow the Guidelines in a particular case — namely that the Guidelines are an accumulation of knowledge and experience and were promulgated over time by the Sentencing Commission, an agency instructed to consider the section 3553(a) factors. The Guidelines, moreover, are an indispensable tool in helping courts achieve Congress's mandate to consider "the need to avoid unwarranted sentence disparities" among similarly situated defendants. 18 U.S.C. § 3553(a)(6).
There are, however, many instances were the Guidelines range will not yield a reasonable sentence. If Booker is to mean anything, it must be that district courts are obligated to impose a reasonable sentence, regardless of the Guidelines range, so long as the Guidelines have been considered. Thus, a district court's determination that the Guidelines range fashions a reasonable sentence necessarily must be a case-by-case determination. In some cases it may be appropriate to defer to the Guidelines; in others, not. So long as the district court considers the Guidelines, we do not believe it is appropriate to dictate a "strength" of consideration applicable in every case.
Nor do we find a presumption to be useful in this context. Presumptions are burden-shifting tools, and operate effectively where the party against whom the presumption operates is better situated to come forward with evidence. To say that the Guidelines are "presumptively" reasonable is to charge the defendant with the responsibility of establishing that the Guidelines range does not fulfill the remaining section 3553(a) factors in a particular case. We agree that, in this context, there is some evidence the defendant is more likely to possess. Other evidence, however, might better be asked of the Government — a repeat player in the criminal justice arena. We therefore see no basis for ascribing a presumption one way or the other. Rather, the Guidelines are to serve as a starting point for consideration as to whether a given sentence is "reasonable" in view of the entirety of section 3553(a). Whether, after consideration of section 3553(a) in its entirety, a court finds the Guidelines to be compelling is a fact-specific judgment that we neither mandate nor foreclose.
In sum, we hold that a district court may determine, on a case-by-case basis, the weight to give the Guidelines, so long as that determination is made with reference to the remaining section 3553(a) factors that the court must also consider in calculating the defendant's sentence.
August 9, 2006
Seventh Circuit issues another cracked opinion on the crack ratio
Perhaps courts ignore statutory text all the time while claiming to be faithful to legislative choices. But I will never get accustom to the way circuit courts are fabricating stories about federal sentencing law to justify reversing district judge decisions not to follow the crack guidelines after Booker. Today, the action is in the Seventh Circuit through its ruling in US v. Jointer, No. 05-4632 (7th Cir. Aug. 9th 2006) (available here).
In Jointer, the defendant pleaded guilty to a few minor crack sales in which apparently no serious violence was involved. Then, after a thoughtful sentencing hearing in which the district court considered general and individual considerations, the judge imposed a sentence of more than seven years (87 months to be exact). BY my lights, a sentence of 7+ years for minor drug sales seems pretty reasonable and compliant with Congress' instruction to sentencing judges in 18 U.S.C. § 3553(a) to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."
But, tellingly, the Jointer court never considers directly whether 7+ years was a reasonable sentence for the defendant's crimes, nor does it one address the text of 3553(a) or the purposes set forth in 3553(a)(2) that are to guide sentencing. Instead, because the district court drew guidance from the US Sentencing Commission's suggestion that a 20:1 ratio would better serve congressional goals than the guidelines' current 100:1 ratio, the Jointer court decided the sentencing judge erred "as a matter of law." According to Jointer, the district court "followed neither the statutory language set out by Congress nor the applicable guidelines sections."
HUH??? What statutory language did the district court not follow? I have identified above the "statutory language set out by Congress" that the Seventh Circuit has ignored in Jointer, but I cannot for the life of me figure out what "statutory language set out by Congress" that the district court failed to follow.
Of course, if we were in a pre-Booker world, I could find point to 3553(b) which required the guidelines to be followed. But that provision has been struck down as unconstitutional! I just don't get it, and I sincerely hope that someone in the comments might help me understand.
The jury is still out on Justice Kennedy
I am not a big fan of Justice bashing, but sometimes they ask for it. Specifically, Justice Kennedy latest speech to the ABA has me irked. As discussed joyfully by Dahlia Lithwick in this essay at Slate, the speech was about "the essentiality of the rule of law." And Justice Kennedy's money line was "Make no mistake, there's a jury that's out. In half the world, the verdict is not yet in."
This line should rankle anyone familiar with Justice Kennedy's work in the Apprendi line of cases. Justice Kennedy draws on jury rhetoric, but he consistently votes to deny jury rights: he dissented in Apprendi and Blakely; in Harris, he authored the plurality opinion denying jury rights in mandatory minimum sentencing; in Booker, he was a key vote for a remedy that eviscerates jury rights in the federal system. And just two months ago in Recuenco, Justice Kennedy penned an opaque (and obnoxious) concurrence suggesting he still does not accept Apprendi and Blakely. To promote the "essentiality of the rule of law," Justice Kennedy ought to get his own house in order before lecturing others.
What I find particularly galling is that Justice Kennedy now will go to extraordinary (and improper?) lengths to protect the rights of convicted murderers, as shown by his recent votes in House v. Bell and Roper. He even accepted Apprendi in order to extended jury rights to capital defendants in Ring. But while Justice Kennedy works hard to ensure killers have their rights protected (and extended), low-level drug dealers and thieves have to listen to his pro-jury rhetoric while suffering the fate of his anti-jury rulings.
More strong Sixth Circuit reasonableness work
Though the Sixth Circuit's recent in-fighting over death penalty cases has been ugly, the Circuit merits considerable credit for its very strong work on post-Booker reasonableness review. To my knowledge, the Sixth Circuit has been the only circuit to take seriously the key parsimony provision of 3553(a), and I can think of numerous of Sixth Circuit judges who have written very thoughtful post-Booker sentencing opinions.
Today Judge Gilman contributes to the Sixth Circuit's reasonableness common law in US v. Ferguson, No. 05-3998 (6th Cir. Aug. 9, 2006) (available here). Ferguson upholds an above-guideline sentence, though along the way (1) stresses the parsimony provision, (2) emphasizes the importance of reasoned judgment by the district court, (3) exercises its own reasoned review of the procedures and substance of the decision below, and (4) cites my recent piece in the Yale Law Journal Pocket Part has been cited by the Sixth Circuit. This last facet of the opinion might make me a bit biased about the Ferguson opinion, but I am not too biased to urge other circuits to follow the lead on the Sixth Circuit's approach to reasonableness review.
Of particular note in Ferguson is the court's thoughtful decision to focus on reasonableness instead of a guideline calculation issue raised by the government. I wish all circuits would prioritize reasonableness considerations focused around 3553(a) over the minutae of particular guideline provisions. I read Booker as requiring this change of focus, and it is nice to see one circuit getting with the program.
UPDATE: The Sixth Circuit Blog has this extended post on Ferguson, including a visual aid.
New blog for sentencing and corrections information
I learned at the NASC conference earlier this week that Michael Connelly, who is now the Administrator of the Evaluation & Analysis Unit of the Oklahoma Department of Corrections and previously served as executive director of sentencing commissions in Maryland and Wisconsin, has a new (group?) blog up-and-running called Corrections Sentencing.
Though only started last week, CS already has a lot of interesting posts, including a series of posts at this archive with lots of links to resources and reports on corrections and sentencing. Michael also has this recent post about the NASC conference. A post here effectively explains the noble motivations for this new blogosphere entrant:
As participants in corrections and/or sentencing policy for over a decade now, we've found the lack of constant, consistent forums for practitioners, policymakers, and the public to seriously review and discuss what's happening a problem. I've regularly gotten questions from people in other states wanting to know about sentencing commissions and treatment research and cost-effectiveness and on and on. The same is true, I'm sure, for a lot of you regarding sentencing or questions in corrections....
There should be a place for corrections/sentencing policy readers seeking latest information and research, answers to questions and concerns, or just general conversation on shared worlds. That's what this blog will try to be. We'll try to keep "politics" to a minimum (good luck to us on that, we realize, but Berman has pretty much pulled it off). But we will not shy away from relevant discussions of what both reality and illusion tell us about getting sentencing done with corrections in mind. We encourage you to help us make a community here of people who can support each other in making their corrections and sentencing policy the best informed and organized they can be. We want to hear your experiences and to share your knowledge with others. We want you to find answers to specific questions here and to provide answers to others. We want to be a place you want to visit regularly, for the info, for the ideas, for the company. We'll post open threads so you can let us know in your comments what we need to do to get all this done. And if it turns out people don't really need this very much, at least someone will have made the effort. We don't think that will be the case.
Angelos appeals to Supreme Court
As detailed in this AP story, attorneys for Weldon Angelos, who was "convicted of carrying a handgun during three marijuana deals," have now asked the Supreme Court to overturn his 55-year mandatory federal prison sentence. My previous blogging on this case, set out below, provides a lot of background on the facts and issues.
Intriguing gamble on federal resentencing
Reporting on a case that might make for a great in-class problem a sentencing course, the Knoxville News Sentinel has this interesting article about dynamic developments in the sentencing of a federal defendant convicted of running on on-line gambling operation. Here is a snippet:
Eight days after ordering the head of a multimillion-dollar gambling ring to prison, a federal judge did an about-face that prosecutors contend was unfair and wrong. Senior U.S. District Judge James H. Jarvis on July 19 ordered James E. "Slim" Houston, 58, of Knoxville to spend a year and a day in federal prison for heading up an illegal numbers game and laundering millions in illegal profits. Eight days later, Jarvis issued a written order vacating the prison term and instead put Houston on probation for two years.
The reversal came after defense attorney David Eldridge filed a motion asking Jarvis to reconsider. In that motion, Eldridge contended that Jarvis failed to consider the "culture" that Houston, a black man from East Knoxville, grew up in. "Mr. Houston grew up as a part of a community where playing the numbers was culturally accepted - that people from all walks of life played the numbers," Eldridge wrote....
Houston's game, played via the Internet and offered to players in several states, was based on winning numbers in legal state lotteries. The difference is that Houston served as the "bank" and gamblers in his illegal lottery stood a much better chance of actually winning than in legal state lotteries like Tennessee's game. Houston was raking in millions and wound up forfeiting some $4 million in cash and property as part of his plea deal.
Eldridge also insisted that Houston was the only gambling mastermind in East Tennessee to be sent to prison in the nearly two decades the attorney has practiced law here. It was that argument that Jarvis used as the basis for his sentencing change of heart. The judge made no mention of Eldridge's "culturally accepted" defense. "The court has now independently researched this area and concludes that defense counsel is indeed correct," Jarvis wrote.
Not so, responded Assistant U.S. Attorney John P. MacCoon. MacCoon has filed a motion to strike down the change in Houston's sentence. MacCoon said Jarvis had no authority to change Houston's sentence.... Finally, MacCoon said Eldridge and Jarvis are flat-out wrong when they say no gamblers have found themselves in federal prison. He listed six cases "from the Chattanooga area alone in which a cooperating gambling defendant was sentenced to active prison time." "We would further note that Mr. Houston's gambling operation was far larger than that of any of these gambling defendants," MacCoon wrote.
August 8, 2006
Lots of interesting capital news
While I was busy the last two days learning a lot at the NASC conference (which concluded with a terrific tour of the historic Eastern State Penitentiary) and also making fast-track mischief,there have been a number of notable death penalty developments. As is always the case, these developments are well covered (in different ways) at these (great and different) blogs:
IMPORTANT DOJ fast-track policy clarification!!
Well, I have now learned that my fast-track information was not quite right. I suppose I should know better than to trust Karl Rove as a source ... or I should at least get Dick Cheney to confirm my information before blogging. (Just kidding about my sources, folks.)
Here is an important update on DOJ's latest fast-track work from my (now less reliable) source:
I was misinformed. Apparently on Friday the Justice Department re-authorized all existing "fast track" programs (through something like December 31, 2006) and authorized an additional 4 to 5 new programs in various districts.... Sorry for the overstatement -- but in those 4 to 5 new districts, defense attorneys need to take quick action to protect the interests of their clients.
I will add my own sorry for reprinting the overstatement. The broader problem is that the Justice Department is not especially forthcoming about exactly how and where fast-track programs are authorized and how they operate.
In the hope of avoiding further false alarms, perhaps DOJ will be a little more transparent and public about its fast-track policies. I would be eager to post here any official (or even unofficial) DOJ materials about fast-track programsn. In the meantime, I suppose I will have to keep blogging --- and the folks on the ground will have to keep litigating --- without a complete understanding of how fast-track policies are developed and operate.
Will DOJ make public is new fast-track policy?
As first noted here, I heard yesterday from a trusted source that the Justice Department last week authorized a nationwide fast-track program for illegal re-entry cases (subject to approval by the local US Attorney). This strikes me as huge news for a huge component of the federal criminal justice system, but I cannot find any official word on DOJ's website.
Interestingly, the DOJ website just posted this short speech from AG Gonzales, which details that the AG has "approved the allocation of 23 new Assistant U.S. Attorneys to U.S. Attorney’s Offices nationwide ... [to] be dedicated to the Organized Crime Drug Enforcement Task Force (OCDETF)." Though this addition of prosecutorial resources is noteworthy, its impact on federal criminal justice case processing is likely to be paltry compared to any new fast-track policies.
Shouldn't DOJ feel some obligation to make public and also explain the basis for any significant shift in its sentencing policies and practices? At the very least, I hope someone might confirm or deny this reported policy change so that false hopes or problematic rumors do not grow.
IMPORTANT UPDATE HERE!
Interesting NCSC survey projects
I have learned at this morning's NASC session that the National Center for State Court (NCSC), which already has this great sentencing resource page, will soon be publishing the results of two intriguing survey about attitudes concerning sentencing reform. One survey posed a series of pointed questions to state chief justices and court administrators; the other posed a series of general questions to members of the public.
I will blog more about these surveys once they are available on-line (which should be soon). In the meantime, anyone interested in this research should know that Steve Chanenson and I may try to organize a forthcoming issue of the Federal Sentencing Reporter around these surveys and what should be taken away from them (especially during an election season).
Challenging lethal injection where it started
The Los Angeles Times has this article discussion the developing challenge to Oklahoma's lethal injection protocol. Here is a snippet:
Death by lethal injection faces a significant challenge in federal court today in Oklahoma City, with doctors contending that the state's method creates an unnecessary risk that a condemned inmate will suffer excruciating pain, in violation of the constitutional prohibition of cruel and unusual punishment. Nearly 30 years ago, Oklahoma became the first state to develop a procedure for lethal injection — leading three dozen other states to develop similar methods.
Like challenges to lethal injection in several other states — including California — the one in Oklahoma contends that although lethal injection is supposed to be more humane than earlier execution methods, it often masks a painful death. In sworn statements in the case, anesthesiologists Dr. Mark Heath and Dr. Thomas K. Henthorn say Oklahoma's method shows state corrections officials have a "fundamental misunderstanding" of the role of the three drugs they use in lethal injections.
And, in other lethal injection news, this story from Montana details that a "federal judge in Missoula has denied the appeals of Montana civil liberties and church groups fighting to stall the Aug. 11 execution of three-time murderer David Dawson."
Some recent related posts:
- Big efforts to halt Big Sky execution
- Lethal injection litigation creates de facto moratorium in Ohio and...
- The lethal injection litigation rages on and on and...
August 7, 2006
NASC conference theme: evidence-based sentencing decision-making
Kudos to the folks involved with the NASC conference (basics here and here). A consistent theme throughout the presentations was the opportunities for, and values of, an informed "evidence-based" approach to sentencing and corrections. And, after a terrifically thoughtful day with all sort of interesting sentencing dialogues, today finished with a terrific dinner at the impressive National Constitution Center.
Along with all the revelry, a dinner highlight was a presentation from folks involved with The Pew Charitable Trust's new initiative on public safety and corrections. As detailed here, the Pew project has noble goals:
The project has three main objectives. First, it helps states collect and analyze data about who is admitted to their prisons, how long they stay, who returns, and the implications of those practices for public safety and state budgets. Second, the initiative aids states in understanding how their existing sentencing, release and community-supervision policies compare to those of other states. Finally, the initiative encourages states to use all of this information and the best available research to explore policy changes that will increase public safety and deliver a solid return on taxpayers’ investment.
And this concluding sentiment from the Pew folks resonates with my own vision of blogging: "A wide range of perspectives and interests is pivotal to developing smart, effective sentencing and corrections policy, and we will seek to collaborate with and learn from many different constituencies who share an interest in advancing positive change on these issues."
Major federal fast-track sentencing news
While in the NASC conference world of state sentencing this afternoon, I received via e-mail an extraordinary piece of news about the operation of fast-track programs in the federal sentencing system. Here is the text of the e-mail I received:
Apparently on Friday, the DOJ authorized a nationwide fast track program for illegal re-entry cases (subject to approval by the local US Attorney). Defense attorneys need to be alerted to this immediately, as the new program MAY apply to "pipeline" cases. So, before let one of their clients plead guilty, they need to know about this implication.
I hope anyone and everyone in the know about this important development can use the comments to confirm this major shift in the Justice Department's approach to federal sentencing in certain immigration cases.
CRITICAL: IMPORTANT UPDATE HERE!
Considering sex offender options
A lack of wireless networking in the ballrooms is keeping me from live-blogging at the on-going NASC conference (conference details here and here), but a lunch break allows me to note that sex offender sentencing is a big topic of conversation. And, on that front, check out this notable article with this notable title: "Castration or civil commitment? His testicles or life in prison? Virginia's worst sex offenders might soon grapple with the same decision." Here is part of its first section:
Across America, some states are embracing castration - mostly through chemicals that lower testosterone - as a means of controlling convicted pedophiles. The mental disorder is treatable through therapy by drastically lowering testosterone, which has been shown to stem the urges that lead to sexual assaults. But treatment doesn't guarantee a pedophile won't offend again.
Virginia isn't a state that castrates its most violent sex offenders. Virginia has, however, embarked on a relatively new program to commit the worst of its sexual predators to a maximum-security institution in Petersburg in hopes of reforming the behaviors that lead to the outbursts of sex-driven violence.
Follow-up on victim impact testimony at sentencing
As detailed in this post, a Minnesota public policy group known as WATCH recently released an interesting new study about the impact of victim impact statements on sentencing decisions and acceptance of plea negotiations in domestic violence and sexual assault cases. Today, the Pioneer Press has this notable follow-up article, which includes this important insight from a local judge:
Hennepin County District Judge Kevin Burke did not take part in the study, but he said he would like to see it expanded to include other cases and examples where victim impact statements actually led to more lenient terms. "It's almost always a good thing," Burke said. "For some victims, it is an opportunity to bring emotional closure to the wound. In some instances, it has a positive effect in how a judge determines sentencing, but it doesn't necessarily end in something more punitive."
August 6, 2006
Updated list of cases citing blogs
Over at 3L Epiphany, Ian Best has here updated his terrific list of cases citing legal blogs. Ian now chronicles, with helpful annotations, the particulars of "32 citations of legal blogs from 27 different cases."
Hot sentencing start to the dog days
August is the month with the dog days of summer, but this review of recent sentencing highlights shows that it is not just the temperature that's hot:
BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY
- Major split Second Circuit ruling on reasonableness
- Third Circuit specifies issues for Grier en banc
- Eleventh Circuit deepens Rule 32(h) circuit split
- Tracking reasonableness review outcomes ... final update?
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Another extraordinary magnum opus from Judge Young
- Dual prosecution, federalism and sentencing
- More buzz about record variance in Adelson
- USSC releases notice of proposed priorities
- News on the Booker fix front
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Lethal injection litigation creates de facto moratorium in Ohio and...
- Big day for Ohio death row defendants
- Some lethal injection headlines
OTHER DEVELOPMENTS AND COMMENTARY
- New study on victim impact testimony
- Great new FSR issue for SCOTUS followers
- New Harvard CR-CL issue on prison litigation
- Hoping for more buzz on Senate crack sentencing bill
- More on Supermax, human dignity, and public safety