September 9, 2006
Indiana sorting through its Blakely fix
As detailed here, well over a year ago Indiana enacted a legislative Blakely fix that essentially adopted a Booker-type advisory guideline approach. Left uncertain in the fix was the place of the advisory rules and appellate review in the new system.
Thanks to posts from Marcia Oddi at the Indiana Law Blog here and here, you can catch up with the arguments over these issues, which has just come before the Indiana Supreme Court. The Fort Wayne Journal Gazette has this effective coverage of the Indiana Supreme Court arguments. Here is a snippet:
Indiana's Supreme Court justices wrestled Thursday with the state's new sentencing plan, which was put in place to avoid a violation of the U.S. Constitution but could lead to inconsistent prison terms for Hoosiers....
[T]he question before the court Thursday was whether judges are bound to provide any sentencing statement explaining the reasons behind a sentence, as three decades of court precedent has required.
Compilation of sex offender residency/movement restrictions?
One of the many interesting aspects of the new federal sex offender legislation, the Adam Walsh Child Protection and Safety Act of 2006 (discussed here and here), is the notable lack of an provisions concerning sex offender residency and movement restrictions. As previously discussed here and here, laws restricting where sex offenders can live and go have become very popular with states and localities.
This past week I asked a research assistant to see if anyone have produced a comprehensive compilation of state and local laws creating sex offender residency and movement restrictions. It now dawns on me that I should also try blegging. So can anyone send me compiled information about these laws?
September 8, 2006
Ideas for starting a SCOTUS fantasy league?
I am having a down fantasy baseball season, and I pass on fantasy football because I don't want another reason to watch even more football. So I am feeling a bit fantasy deprived, which leads me to start thinking about developing some kind of (low-key?) fantasy SCOTUS game.
A fantasy SCOTUS league could be structured in many ways; here is one (simple?) approach:
- Players draft particular Justices for particular months during the nine-month SCOTUS season (October to June); nine Justices over nine months create 81 possible "justice/month draft choices."
- Points are earned for decisions authored by selected Justices during particular months, with bonus points for (a) writing the opinion of the Court, (b) the number of votes an opinion garners, and perhaps (c) the length of the opinion.
First picks in such a SCOTUS fantasy league would surely be justices for June, when most of the major decisions are issued. But split decisions are far more likely in June, and giving lots of bonus points to unanimous opinions might lead to earlier picks of earlier justice/months. Also, though Justices Breyer and Kennedy seem likely to write opinions longer than the Chief, we might predict that the Chief's opinions are likely to garner more votes.
I am driven to this fun distraction because September seems to be the official Supreme Court preview season. The Cato Institute, for example, is hosting next week this event entitled "The Supreme Court: Past and Prologue." And, for the SCOTUS equivalent of a fantasy magazine, Peter Rutledge has already posted on SSRN this thoughtful and interesting paper entitled "Looking Ahead: October Term 2006."
So who wants to help me start such a league? At the very least, I hope some commentors will help me flesh out the point system (or suggest alternative approaches).
Ebbers soon to be off to prison
As noted and discussed at the WSJ Law Blog and at the White Collar Crime Prof Blog, U.S. District Judge Barbara Jones ordered former WorldCom CEO Bernie Ebbers to the Bureau of Prisons on September 26, 2006. For those keeping track of such matters, this will be 18-month since he was convicted at trial in March 2005.
Marilyn vos Savant for the next SCOTUS seat!
I have finally discovered whom Blakely fans should support to fill the Supreme Court opening: Marilyn vos Savant. As noted in her personal website and in this Wikipedia entry, Marilyn vos Savant's main claim to fame comes from being listing in the Guinness Book of World Records under "Highest IQ". But, more importantly for Blakely fans, check out this Q&A from a recent Parade column:
Q: If I'm guilty, I want a trial by jury; if I'm innocent, I want only an intelligent, impartial judge. I served on a jury once and hope never to repeat the experience. What is your opinion of the jury system?
A: You compared an average jury to an excellent judge! Instead, you must compare an average jury to an average judge. My choice would depend on the case, but I know what I’d wish for: a trial by an intelligent, impartial jury. I’d feel much safer with six or 12 excellent jurors than with one excellent judge.
More on the latest ugly reasonableness work by the Seventh Circuit
In this post I noted an ugly feature of the Seventh Circuit's reasonableness opinion yesterday in Hankton. A helpful reader followed up by spotlighting that Hankton "appears to conflict directly with Demaree," a Seventh Circuit opinion by authored by Judge Posner last month. Here is the reader's astute insight:
At page 4 of Hankton, the Court body-slams the defendant's argument that the presumption of reasonableness applies only on appeal, not at the sentencing court level, concluding essentially that district judges should presume that the guidelines are reasonable, unless the defendant "provides cogent reasons for a non-Guidelines sentence."
But in Demaree, Judge Posner said the opposite: "The judge is not required―or indeed permitted―to 'presume' that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why it's not correct. All he has to do is 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)." United States v. Demaree, 2006 WL 2328665, *3 (7th Cir. Aug. 11, 2006) (Posner, J.) (internal citations omitted).
The golden rule in criticism of federal policies
The cynic's version of the golden rule says "he who has the gold makes the rules." This reality came to mind as I read news accounts, such as this Legal Times piece and this New York Times piece, that a "bipartisan group of 11 former senior Justice Department officials has written Attorney General Alberto Gonzales to protest the government's tactics in investigating corporate wrongdoing." The three-page letter to AG Gonzales sent earlier this week, which can be accessed here, is signed by three former AGs, four former SGs and three other top former DOJ officials. Sadly, I do not recall many of these folks writing to complain about prosecutorial policies and tactics outside the corporate realm.
The letter, which complains primarily about the so-called Thompson Memo that urges waiver of privilege and work-product protections in corporate investigations, ends with this line: "Thank you for considering our views on this subject, which is of such vital importance to our adversarial system of justice." Though I won't dispute this claim of importance, I would suggest that folks genuinely concerned about "our adversarial system of justice" also should be speaking out against sentencing doctrines that allow enhancements based on acquitted conduct and based on, in Justice Scalia's words, "bureaucratically prepared, hearsay-riddled presentence reports."
Anyone interested in the Thompson Memo and corporate concerns should check out this press release from the Association of Corporate Counsel, which includes links to lots of materials. Especially intriguing is this written testimony, submitted to the Senate Judiciary Committee for its Sept. 12, 2006 hearing on these matters, from a group calling itself the Coalition to Preserve the Attorney-Client Privilege.
September 7, 2006
The pervasive problem of mental health problems
As detailed in this press release and this New York Times article, the Department's Bureau of Justice Statistics has released this new report entitled "Mental Health Problems of Prison and Jail Inmates." Here are some of the major findings as detailed in this press release:
More than half of all prison and jail inmates, including 56 percent of state prisoners, 45 percent of federal prisoners and 64 percent of local jail inmates, were found to have a mental health problem.... Among the inmates who reported symptoms of a mental disorder:
- 54 percent of local jail inmates had symptoms of mania, 30 percent major depression and 24 percent psychotic disorder, such as delusions or hallucinations.
- 43 percent of state prisoners had symptoms of mania, 23 percent major depression and 15 percent psychotic disorder.
- 35 percent of federal prisoners had symptoms of mania, 16 percent major depression and 10 percent psychotic disorder.
Still more interesting journal reading
In the course of doing edits on an article, I tripped across a number of recent sentencing-related article that I did not previously spot. Here are titles and available links:
- Punishment and Accountability: Understanding and Reforming Criminal Sanctions in America by Donald Braman
- "Consulting" the Federal Sentencing Guidelines After Booker by Gilles R. Bissonnette
- A Matter of Life and Death: The Effect of Life-Without-Parole Statutes on Capital Punishment, unsigned Harvard Law Review note.
- The Case for Treating Ex-Offenders as a Suspect Class by Ben Geiger
- Swilling Hemlock: The Legal Ethics of Defending a Client Who Wishes to Volunteer for Execution by J.C. Oleson
- Wishing Petitioners to Death: Factual Misrepresentations in Fourth Circuit Capital Cases by Sheri Lynn Johnson
Is a presumption rebuttable if it is never rebutted?
The Seventh Circuit today yet again affirms yet another within-guideline sentence as reasonable in US v. Hankton, No. 03-2345 (7th Cir. Sept. 7, 2006) (available here). The opinion is intriguing mostly because of the exasperated tone it seems to take in response to a defendant's claims that his within-guideline sentence might be unreasonable. This line in one footnote of Hankton really caught my attention:
[W]e dismiss out of hand Davis's assertion in his brief that Mykytiuk "sends the message that a sentence within the Guidelines will never be reversed...." Our holding in Mykytiuk [which announced a presumption of reasonableness for within-guideline sentences] implies no such thing. A "rebuttable presumption" is just that, "rebuttable."
I suppose it is accurate to say that announcing a presumption of reasonableness does not itself send the message that a sentence within the Guidelines will never be reversed. Rather, it is the fact that, in the Seventh Circuit and in nearly every other circuit, a sentence within the Guidelines has never been reversed as unreasonably long that "sends the message that a sentence within the Guidelines will never be reversed."
Will the fall bring any Booker fix action?
As detailed in this post, in July at the 2006 National Sentencing Policy Institute, there was much talk that September would bring congressional hearings on Booker and perhaps the introduction of Booker fix legislation. However, continuing a recent trend noted here and here, talk of a legislative response to Booker remains surprisingly muted; lately I have not heard any serious buzz about planned congressional hearings on Booker.
Of course, primarily as a result of interesting court rulings, the summer has been full of Booker action (highlights here). And, with fascinating en banc hearings in the works in the Third Circuit on burdens of proof (basics here) and in the Ninth Circuit on reasonableness review (basics here), we should expect more of the same this fall. The Supreme Court will also be back in the mix through its Blakely work in Cunningham and Burton (although decisions in those cases likely won't arrive until the winter months).
Last September in this post, I set out a few political and legal reasons why I thought the Booker remedy might endure. I am intrigued and surprised to discover that these insights from last year remain quite timely. Consequently, for exciting action this fall, think baseball finales and Buckeye football, not Booker fixes.
YLJ Pocket Part on the future of legal scholarship
The Yale Law Journal Pocket Part has just published this on-line symposium entitled the "Future of Legal Scholarship." The symposium includes an eclectic set of pieces from an eclectic set of law professors, most of whom are well-known bloggers.
Folks interested in the "blog as scholarship" debate will be drawn to this piece from Jack Balkin, entitled "Online Legal Scholarship: The Medium and the Message." Jack's closing paragraphs echo themes I developed in my article "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs" (available here) presented at last April's Harvard Law School symposium. Here is Jack's astute concluding sentiment:
The wrong question to focus on is whether hiring committees should count blogging as legal scholarship. The right question is how we should re-imagine our vocation as professors of law in light of new online media. Should we continue to speak mostly to ourselves and our students, or should we spend more time trying to teach and influence the outside world? That choice will determine whether we increasingly value blogging or stick with traditional forms of scholarship. There are many possible paths to choose from, but if you don't know where you are going, almost any road will get you there.
Some related posts on law blogging and scholarship:
September 6, 2006
A who's who for the California prison population
A helpful reader from the Public Policy Institute of California "noticed that in [my] California prison thread, there was no mention of a recent demographic report ... which contains some interesting insights into the prison population." This post corrects the omission by providing this link to the report, which is entitled "Who’s In Prison? The Changing Demographics of Incarceration." Here is an overview:
This issue of California Counts examines in detail the new demographics of California's prisons. Since 1990, the number of prisoners in California has risen three times faster than the state's overall adult population, to almost 168,000 prisoners in 2005. Researchers also found that adults younger than 25 account for a declining segment of the prison population while the share of adults 50 and older has nearly tripled, and that the state's San Joaquin Valley and Inland Empire regions contribute disproportionately to the inmate population.
My take on the other side of Hill
The folks at The Cato Institute were kind enough to invite me to contribute a piece to their annual Cato Supreme Court Review. (That review will be released here next week in conjunction with this Cato conference entitled, The Supreme Court: Past and Prologue; A Look at the October 2005 and October 2006 Terms.") My piece is entitled "Finding Bickel Gold in a Hill of Beans," and you will have to downloaded the piece (available below) to understand what the heck I mean. To whet your appetite, here is my opening paragraph:
"First, do no harm," is a common aphorism for the medical profession. If the Supreme Court was judged by this principle, its work in Hill v. McDonough might lead some to urge revoking the justices' licenses. The Court's decision to consider Clarence Hill's challenge to Florida's lethal injection protocol resulted in widespread legal confusion and the disruption of executions nationwide. The Court's subsequent ruling in Hill raised more legal questions than it answered and ensured that death row defendants would continue to disrupt scheduled executions by pursuing litigation over lethal injections protocols.
Former Governor Ryan gets 78 months
As detailed in this news report, former Illinois Governor George Ryan was sentenced today "to 78 months, or 6-1/2 years, in prison on charges of corruption when he was secretary of state. Ryan and co-defendant Larry Warner were convicted of racketeering conspiracy, mail fraud, tax fraud and lying to FBI agents."
This is not a completely surprising number, as it falls between the roughly 100+ months urged by the prosecution, and the 30 months urged by the defense. I think technically the sentence involves a downward variance, but I have not seen the particulars of the guideline calculations.
UPDATE: Here are more details from the Chicago Tribune.
Pass out the cigars, I'm a granddaddy
Thanks to Ian Best here at 3L Epiphany, I just saw this National Law Journal article entitled "Judges Cite More Blogs in Rulings: Law student survey finds 32 Web log citations in the last two years." The article provides details and commentary on Ian's latest accounting of cases citing blogs. I get this nice plug in the article:
The granddaddy of all cited blogs, Ohio State law Professor Douglas Berman's "Sentencing Law and Policy," focuses almost exclusively on development of case law in the circuits since the Booker and Blakely decisions. His blog has been cited more than any other, 24 times in 19 opinions, including Stevens' dissent in Booker, according to Best's tally.
"The majority of his 26 convictions, he points out, were for the petty thefts of meat."
Though perhaps not as evocative as the first line from Franz Kafka's classic about Gregor Samsa, the title of this post comes from my favorite sentence in the Seventh Circuit's reasonableness ruling today in US v. Rivera, No. 05-2788 (7th Cir. Sept. 6, 2006) (available here). I am drawn to this reference in part because Rivera includes a paragraph discussing free will.
For those eager for more information, the Seventh Circuit tells us that Mr. Rivera "stole the meat to support his heroin addiction." Were this not clarified, I might have assumed he was a marijuana smoker with a distinctive type of munchies.
Can religion make you a "vulnerable victim"?
With a hat-tip to How Appealing, I see that the Second Circuit has today issued an interesting decision addressing the intersection of religion and the federal guidelines discussion on vulnerable victims. Here are some highlights from this part of US v. Dupre, No. 05-2223 (2d Cir. Sept. 6, 2006) (available here):
The Guidelines application notes state that a “vulnerable victim” is one “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S. Sentencing Guidelines Manual (“Guidelines Manual”) § 3A1.1 cmt. 2 (2005)....
While we recognize that a fraud grounded in religious themes may pose an especially effective threat, membership in religious groups cannot, standing alone, make victims “vulnerable” for purposes of the enhancement, even where a fraud involves reliance on religious themes or imagery....
We have no reason to believe that evangelical Christians as a class are “unusually susceptible” to fraud. The application notes reiterate that the vulnerable victims enhancement is improper except in cases where defendants “should have known” of their victims’ unusual vulnerability, such as “in a fraud case in which the defendant marketed an ineffective cancer cure or in a robbery in which the defendant selected a handicapped victim.” Guidelines Manual § 3A1.1 cmt. 2. In contrast, “a bank teller is not an unusually vulnerable victim simply by virtue of a teller’s position at a bank.” Id.
Absent findings by the District Court that any specific victim was especially gullible because of his religion, we cannot conclude that evangelical Christian victims were susceptible to fraudulent schemes involving religious imagery in a manner analogous to how desperate cancer patients might be susceptible to con artists selling placebos.
Latest Olis resentencing news
According to this Houston Chronicle article, the government has now suggested a new guideline sentence calculation in the run up to Jamie Olis's upcoming resentencing, "Prosecutors argue that former Dynegy employee Jamie Olis should be resentenced to a 12 1/2 -year prison term based on the amount of taxes the company tried to save through financial transactions."
Some related Olis posts:
- Fascinating developments in the Olis case
- More on upcoming Olis resentencing
- Olis loses appeal of denial of bail pending resentencing
- Jamie Olis, loss calculations, and white-collar sentencing after Booker