September 16, 2006
California's inspiring execution team
It seems that whenever the curtain hiding lethal injection procedures is pulled back, what we discover is even less inspiring than the Wizard of Oz. In Missouri, as detailed here, we learned that the physician that mixing the drugs used during executions admitted he was dyslexic and often transposes numbers. Now from California, as detailed in newspaper articles here and here, we learn about the disturbing make-up of the California lethal injection team. Here are "highlights" from the San Francisco Chronicle:
The San Quentin prison employee leading the team scheduled to execute Michael Morales for the 1981 rape and murder of a teenage Lodi girl had been diagnosed with clinical depression and post-traumatic stress disorder and was on antidepressant medication when Morales' execution was scheduled to proceed, according to federal court filings released Friday. Another execution team leader at San Quentin was terminated as a guard for bringing illegal narcotics into the prison, but was reinstated after being suspended five months without pay, and later advanced to head the execution team....
Morales, who had been scheduled for execution Feb. 21, is challenging the constitutionality of California's lethal injection procedure. His attorneys maintain that prisoners may suffer severe pain because they are not properly anesthetized before being given lethal doses of drugs. Morales' attorneys, in court filings, argue that California executions are performed by "prison personnel with criminal records of misconduct and who lack skill, competence, professionalism," training and other skills to perform executions.
Some recent related posts:
- My lethal injection piece on SSRN
- Missouri still struggling with its execution protocol
- My take on the other side of Hill
SCOTUS preview season in high gear
Everywhere you surf, there are clear signs that the SCOTUS preview season is now in high gear. Marcia Coyle has this effective article up at law.com entitled "New Supreme Court Term Promises Early Drama." Also, as How Appealing notes here, the Cato Institute's annual SCOTUS event to place Thursday, and it can now be watched on-line through links here. Similarly, the annual Supreme Court preview conference at William and Mary School of Law is going on this weekend (details here).
Unsurprisingly, even though SCOTUS has a criminal-heavy docket this fall, as detailed here, most of the preview buzz is focused on issues like abortion, affirmative action and punitive damages. Still, with fall arguments in big Blakely cases like Cunningham addressing California's sentencing system (archive here) and Burton addressing retroactivity (archive here), I expect there will ultimately be plenty of SCOTUS buzz to feed my Blakely obsessions.
Some recent related posts:
- Joint advice for SCOTUS on Cunningham
- Ideas for starting a SCOTUS fantasy league?
- Time to take some more Blakely and Booker cases....
- A criminal start to OT '06 for SCOTUS
- Getting excited for Cunningham
- Could they, would they, should they ... declare Blakely retroactive?
UPDATE: In the comments, Kent Scheidegger reminds me of his great work in this post at Crime & Consequences, where Kent details the criminal law cases that Tom Goldstein predicts have a decent chance of a cert grant. Notably, few of these cases deal with sentencing issues, though I am predict some more sentencing related cert grants before this calender year is complete.
Some Enron-related sentencing news
As detailed in this Houston Chronicle article, yesterday a "former assistant treasurer at Enron was sentenced to four years probation and a $10,000 fine for his role in deceiving credit rating agencies while working at the collapsed energy giant."
Hat tip to Tom Kirkendall, who provides some background in this post at Houston's Clear Thinkers. (Folks following the Olis resentencing closely with also want to check out Tom's strong posts on this past week's resentencing hearing here and here.)
UPDATE: The Houston Chronicle now has this piece previewing other upcoming Enron sentencings.
September 15, 2006
Up and down the Hill again
Clarence Hill won a big battle a few month ago: in early June (as detailed here and here and here), the Supreme Court held that he could proceed with his § 1983 claim alleging that Florida's lethal injection protocol is unconstitutional. But now it appears he is about to lose the war to avoid his execution.
Today, the Eleventh Circuit in Hill v. McDonough, No. 06-14972 (11th Cir. Sept. 15, 2006) (available here), denied Clarence Hill's request for a stay of execution so he could effectively appeal the district court's decision last week to dismiss his § 1983 claim. As detailed in this newspaper article, it does not appear that Hill has even received an adjudication of his claim on the merits in the district court, and the Eleventh Circuit decision today never considers the substance of Hill's underlying Eighth Amendment claim. Here is what it says instead:
In light of Hill's actions in this case, which can only be described as dilatory, we join our sister circuits in declining to allow further litigation of a § 1983 case filed essentially on the eve of execution.
It will be interesting to see if the Supreme Court might intervene yet again, or if Florida will finally get to execute Mr. Hill for the crimes he committed two decades ago.
Some recent related posts:
- My lethal injection piece on SSRN
- Missouri still struggling with its execution protocol
- My take on the other side of Hill
- Hill lethal injection case finally kicked back to district court
- South Dakota Governor halts execution over lethal injection concerns
- Lethal injection litigation creates de facto moratorium in Ohio and...
Alaskan wisdom on Blakely and indictments
Alaska, to my great joy, continues to do great Blakely work (prior great work is linked below). Today, in Alaska v. Dague, No. A-9054 (Alaska Ct. App. Sept 15, 2006) (available for download below, and also now at this link), the Alaska Court of Appeals held that aggravating factors that enhance a presumptive term do not have to be presented to the grand jury.
Related posts discussing great Alaska Blakely opinions:
- Another strong Blakely opinion from Alaska
- All hail the Blakely Frontier
- Great Alaska opinion on Blakely and consecutive sentencing
- Alaska on Blakely's applicability to juvenile transfer
- Recent Alaska Blakely decisions
More habeas "reform" in the works?
I received today this interesting and perhaps alarming news from JoAnna Moskal at The Justice Project:
I wanted to let you know about some habeas repeal measures that some members of Congress are trying to sneak through in the last legislative days before the mid-term elections....
Behind closed doors, just this week, there are efforts to attach habeas repeal measures and 300 pages of other non-germane matters to the Department of Defense Authorization bill. The primary purpose of this bill, which is currently in conference and could be finalized in the coming days, is to provide resources for troops in Afghanistan and Iraq.
As you know, there has been broad bi-partisan opposition to habeas repeal legislation, but we are worried that members of both parties who have fought on principle to resist these regressive changes may be made to look anti-patriotic when they object to the unnecessary, unrelated additions to the DOD bill. In addition, much of this maneuvering has been taking place though back door channels and the regular order which assures that both Chambers of Congress have a fair opportunity to consider the legislation has been skirted. Alarmingly, the texts of some of the added measures have not been seen by many members and their staff nor by the public.
Our habeas web page has been updated with this new information and we are currently asking residents of Virginia to call on Senator John Warner, chairman of the Armed Services Committee, to not allow the non-germane and controversial additions to the DOD bill. We wanted to make sure you knew about the current efforts in Congress.
Eleventh Circuit reverses variance based on fast-track disparity
The Eleventh Circuit today in US v. Arevalo-Juarez, No. 05-16313 (11th Cir. Sept. 15, 2006) (available here), reverses a sentence which was set "below the Guidelines range to alleviate sentencing disparities associated with the unavailability of early disposition or 'fast-track' programs in the Southern District of Georgia." Here are snippets from an important ruling on an important issue:
[I]t was impermissible for the district court to consider disparities associated with early disposition programs in imposing Arevalo-Juarez's sentence, because such disparities are not "unwarranted sentencing disparities" for the purposes of § 3553(a)(6).... A fast-track guidelines reduction was specifically authorized by Congress because of the perceived unique and pressing immigration problems in certain districts.... Plainly, Congress contemplated that discrepancies would arise because it structured the law the way it did.
Concurring, Judge Wilson stresses the precise nature of the court's ruling:
I write separately to emphasize that we make no determination as to whether Arevalo-Juarez's thirty-month sentence is reasonable in this case. After Booker, the ultimate determination in reviewing a sentence on appeal is reasonableness. Sentencing courts are free to depart from the advisory guidelines range so long as the sentence is reasonable based on a "proper consideration" of the section 3553(a) factors. Here we make no determination as to the reasonableness of Arevalo-Juarez's sentence, rather we find that the trial court based the sentence on an improper consideration by downward departing solely on the basis of the fast-track disparity.
Death penalty coming and going and staying
There is never a shortage of discussion on whether the death penalty should be coming or going. In Wisconsin, as detailed here, this November brings a voter referendum asking whether the state should bring back the death penalty. In New Jersey, as detailed here, this week's hearing by the state's Death Penalty Study Commission has led some to urge the formal abolition of the ultimate punishment.
Meanwhile, as detailed in this AP report, Fourth Circuit Judge William Wilkins gave a speech yesterday in which he suggested the death penalty will always be a part of our legal system. Here is a snippet from the article:
"I think the death penalty will be around for a long time," Wilkins said. "But I think you're going to see escalating costs." Those opposing the death penalty argue the money can be better spent elsewhere, he said. "It costs a lot of money for the federal and the state governments to prosecute somebody for the death penalty," Wilkins said. In Florida, such cases average about $22 million, he said.
Interesting sentencing commentaries
This morning I noticed a few interesting comentaries about recent sentencing developments:
- This long piece from the American Chronicle discusses "the overcrowded, overwhelmed, under-functioning, understaffed, unaccountable, out-of-control, out-of-step, and in-debt California prison system" and it laments the politicians' "lack of depth and creativity on actual prison reform."
- This piece from the Houston Chronicle discusses the Jamie Olis resentencing; it contends that what has been "[m]issing from all the sentencing guidelines, legal arguments and judicial deliberations is the calculation of the unfairness to which Olis has been subjected." It also urges a new sentence of "two years, time served [so] Olis walks out a free man."
September 14, 2006
Joint advice for SCOTUS on Cunningham
Stephanos Bibas and I have just completed an article addressing the Supreme Court's sentencing jurisprudence, which will be published this fall in the Ohio State Journal of Criminal Law. The article, the draft of which can be downloaded below, is entitled "Making Sentencing Sensible." Here is the abstract:
This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states' flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion.
Ninth Circuit (unwittingly?) creates Booker ex post circuit split
Though the Ninth Circuit's death penalty work in Comer (basics here, commentary here) will likely get more attention, the circuit on Wednesday also rendered a noteworthy federal sentencing opinion in US v. Stevens, No. 05-30597 (9th Cir. Sept. 12, 2006) (available here). The underlying substantive issue in Stevens involves whether sending pornography to an undercover cop posing as an underage teenager triggers a steep guideline enhancement for "distribution to a minor." But, for Booker fans, Stevens is most significant for its ex post facto analysis.
Last month, the Seventh Circuit ruled in Demaree that, since the federal sentencing guidelines are now advisory, ex post facto doctrines no longer preclude applying the most recent guidelines even when they call for a longer sentence than the guidelines applicable at the time of the offense (basics here, commentary here). But, in Stevens, the Ninth Circuit applies its long-standing ex post facto doctrines to a post-Booker sentencing without even considering whether and how Booker might impact ex post facto considerations.
Because Stevens was argued and submitted before the Demaree ruling, I doubt the parties even raised the possibility that Booker might change ex post facto analysis. And, since Stevens does not address the issue at all, the panel apparently did not directly consider its implicit holding that Booker does not alter standard ex post facto analysis. Nevertheless, Stevens and Demaree apparently conflict on which version of the guidelines should be applied after Booker.
Of course, as I have detailed here, there is no shortage of circuit splits over post-Booker sentencing dynamics. Funny how a remedy purportedly intended to foster national sentencing uniformity has been interpreted and applied in so many disparate ways nationwide.
September 13, 2006
Another update on the Olis resentencing
As detailed in press reports here and here, the two-day resentencing hearing for former Dyegy executive Jamie Olis concluded today with Judge Sim Lake indicating that he hopes to announce a new sentence before the end of next week.
A few related Olis posts:
- Olis resentencing update
- Olis resentencing (finally) to go forward
- Cooperating Dynegy executives get relatively light sentences
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
UPDATE: This Houston Chronicle story now provides more details about the full Olis resentencing hearing. It notes an interesting point raised by the defense: "[Defense attorney] Gerger said the prosecutors were trying to discourage defendants from going to trial, not from committing crimes, with extremely long sentences. 'What the prosecution is asking for goes way beyond what's needed to deter crime,' Gerger said. 'They want to deter trials.'"
China does guidelines one better
Thanks to this post by Orin at VC, I see that the Chinese have come up with something even more efficient and effective than the federal sentencing guidelines and the presumption of reasonableness for imposing sentences. This fascinating Reuters article provides these details:
A court in China has used a software program to help decide prison sentences in more than 1,500 criminal cases, a Hong Kong newspaper said on Wednesday.
The software, tested for two years in a court in Zibo, a city in the eastern coastal province of Shandong, covered about 100 different crimes, including robbery, rape, murder and state security offenses, the South China Morning Post said, citing the software's developer, Qin Ye. "The software is aimed at ensuring standardized decisions on prison terms. Our programs set standard terms for any subtle distinctions in different cases of the same crime," Qin was quoted as saying....
Judges enter details of a case and the system produces a sentence, the paper said. "The software can avoid abuse of discretionary power of judges as a result of corruption or insufficient training," the paper quoted Zichuan District Court chief judge, Wang Hongmei, as saying.
As my comment above is designed to spotlight, anyone concerned about the use of a computer for sentencing needs to consider why China should not be lauded for the perfecting, rather than bastardizing, the concept of guideline sentencing. Fanatics of sentencing reform (like me) should recall that Judge Marvin Frankel, in his landmark call for sentencing reform in Criminal Sentences: Law Without Order, raised the possibility of computerized sentencing:
It is not necessary, or desirable, to imagine that sentencing can be completely computerized. At the same time, the possibility of using computers as an aid toward orderly thought in sentencing need not be discounted in advance. James V. Bennett, for years the able Director of the Federal Bureau of Prisons, noted the possibility some time ago.
Marvin Frankel, Criminal Sentences: Law Without Order 114-15 (1972).
Early Comer commentary
As expected, the blogosphere is already talking about the remarkable split Ninth Circuit panel ruling today in Comer (basics here). DotD has this post, C & C has this post, and How Appealing has this great post. In addition to its great title, How Appealing sets of these thought-provoking questions about the Ninth Circuit's work:
If the Eighth Amendment prohibits a state death row inmate from exercising his right to knowingly and voluntarily withdraw a federal habeas challenge to a death sentence, does a federal court within the Ninth Circuit have an affirmative obligation when reviewing a habeas challenge to a death sentence to consider all possible arguments for setting aside the sentence, whether or not raised by the inmate? If a state death row inmate becomes a death penalty volunteer before ever filing any federal habeas corpus action -- and as a result no federal habeas corpus action is filed by the inmate -- must the federal courts nevertheless affirmatively determine that no Eighth Amendment violation exists before the state may carry out the death sentence? And, why should this limitation on the right of a potentially-prevailing litigant's ability to withdraw a federal court claim be limited to death row inmates?
My lethal injection piece on SSRN
I have noted before here and here my lethal (injection) contribution to the forthcoming annual Cato Supreme Court Review entitled "Finding Bickel Gold in a Hill of Beans." Never one to stop shamelessly promoting (or to stop worrying about by SSRN download counts), I now want to note that this piece is available here through SSRN. To spice up my promotional efforts, let me here quote the closing paragraph from my piece:
Legislative inaction in the wake of Hill is not only disappointing, but also telling. It has become common sport for politicians and commentators to assail justices and judges for intervening in significant policy debates that seem more the province for legislative action. In Hill, the Court was perhaps attentive to these concerns when it decided to dodge the most contentious issues presented by the ongoing lethal injection litigation. Other branches of government must now demonstrate that they can and will soundly govern in this controversial area now that the Supreme Court has indicated that, for the time being, it will stay out of the way. If other branches don't step up, not only will the model of constitutional adjudication suggested by Bickel and Sunstein suffer a blow, but complaints of judicial activism will ring even more hollow.
Do you lose your right to die if sentenced to death row?
The Ninth Circuit, as I recall, wrote a powerful opinion about a decade ago championing the right to die for certain individuals. However, today in Comer v. Schriro, No. 98-99003 (9th Cir. Sept. 12, 2006) (available here), the Ninth Circuit essentially denies that right to an Arizona death row defendant who is eager to waive all his appeals and be executed.
I discussed Comer here last month when the Ninth Circuit denied the defendant's motion to dismiss his long-pending habeas appeal in order to allow the state of Arizona to proceed with his execution. Today we finally get a ruling on the merits, though I am certain this will not be the last judicial word on this case. (Indeed, I see the big question going forward in Comer as being whether an en banc hearing will come before a possible cert grant.)
Here are the highlights from the start of of the majority opinion in Comer:
We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer's waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State's and Comer's motions to dismiss the appeal and proceed to review the District Court’s denial of Comer's federal habeas petition.
We hold that Comer’s sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer’s due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.
Here is how Judge Rymer's partial dissent begins:
We need to — and may only — decide one question: whether death row inmate Robert Comer is competent to withdraw his appeal from denial of his petition for writ of habeas corpus and has done so knowingly and voluntarily. All of us agree that the answer to that question is yes, based on what the district court found following a Rees hearing that we ordered. This means that this case is over, because Comer's waiver of further review of his habeas claims leaves no live controversy remaining between Comer and the State of Arizona.
Nevertheless, the majority reverses on the merits and orders the writ to issue. In the doing, it thumbs this court's nose at the United States Supreme Court, which made clear in Gilmore v. Utah, 429 U.S. 1012 (1976), that courts lack jurisdiction to consider unresolved constitutional issues underlying a death sentence when the defendant competently and voluntarily waives his right to pursue an appeal; at the district court, which went all out to conduct a comprehensive evidentiary hearing and issued an extraordinarily detailed and comprehensive, 90-page opinion setting forth its findings and conclusions on the competence and voluntariness of Comer's decision; and at Comer himself, who has repeatedly, competently and intelligently tried for five years to choose what he wants to do.
I dissent from this raw imposition of judicial power.
Missouri still strugging with its execution protocol
As detailed in press reports here and here, a "federal judge in Missouri on Tuesday rejected that state's lethal injection procedure for the third time, saying it was inadequate to ensure that condemned inmates did not suffer unnecessary pain during executions." The judge has given Missouri officials six weeks to try, yet again, to do better.
Persons interested in lethal injection issues, or troubled that a single federal district judge is actively setting regulations for executions, should be sure to check out my article in the forthcoming Cato Supreme Court Review. In the article, which is available here, I argue that Congress and state legislatures, and not individual federal district judges around the country, should be actively working on improving lethal injection protocols.
Follow-up on Third Circuit's big crack ruling
Today's Philadelphia Inquirer has this article discussing the possible impact of the Third Circuit's important ruling in Gunter earlier this week (basics here, commentary here). Here are a few snippets from the article:
In its 29-page ruling issued Monday, the U.S. Court of Appeals for the Third Circuit vacated Gunter's sentence, saying that the U.S. District Court judge erred in believing he was required to adhere to a prison term based on the 100-to-1 [crack/powder] ratio....
Assistant U.S. Attorney Robert A. Zauzmer said yesterday the ruling was important ― and likely to be cited by every defendant in a crack case. "This is a significant opinion which we are studying closely," said Zauzmer, who said prosecutors were considering whether to ask the appeals court to reconsider the decision or appeal to the U.S. Supreme Court.
Assistant Federal Defender David L. McColgin said the two-tiered sentencing structure created a racial disparity because crack is more prevalent in the black community. "This has a great impact in helping to reduce the racial disparity that stems from that ratio," McColgin said.
Latest FSR issue develops model federal guidelines
I am pleased to report that another Federal Sentencing Reporter issue is off to press. This issue (Volume 18, No. 5) is entitled "Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines." The heart of the Issue is an ambitous project engineered by FSR editor Frank Bowman to develop a set of Model Sentencing Guidelines for the federal system.
Though not yet available fully on-line, the Issue's contents can be seen on the cover page here: Download fsr185_cover.pdf. Also, the Federal Sentencing Reporter can be ordered here and past issues can be accessed electronically here.
Frank effectively explains and previews the model guidelines project in his opening commentary to Volume 18, No. 5. This piece is entitled "'Tis a Gift to be Simple: A Model Reform of the Federal Sentencing Guidelines," and it can now be accessed via SSRN at this link.
Other recent FSR issues:
- FSR Issue 18.4: Sentencing at the Supreme Court
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 17.4: The Booker Aftershock
Around the blogosphere
UPDATE: Capital Defense Weekly also has lots of posts and links worth checking out.
September 12, 2006
Olis resentencing update
As noted here, the resentencing hearing for former Dynegy executive Jamie Olis began Tuesday afternoon. But, as detailed in this AP report, the resentencing is taking quite some time. Apparently, the Tuesday hearing was devoted to conflicting testimony about loss calculations. And, according to the AP report, "U.S. District Judge Sim Lake said at the end of nearly five hours of proceedings Tuesday that he would start sorting through the weighty arguments after court adjourns Wednesday. He did not say when he would issue a ruling."
UPDATE: The Houston Chronicle has this piece with more details from Tuesday's hearing.
Talk is cheap, even (especially?) from Bill Clinton
TalkLeft's Jeralyn Merritt reports here that she attended a 2-hour roundtable meeting of progressive, Democrat bloggers convened by former President Bill Clinton. She also provides this report for folks interested in criminal justice:
Criminal defense lawyers take note: He's far better on our issues than we thought while he was President, from mandatory minimums, to drug courts to restoring the right to vote to former offenders. I'm totally impressed.
I totally disappointed. If Clinton was really good on these issues, how he governed and influenced criminal justice issues during his reign would have -- and should have --- been a whole lot different.
Noe gets 27 months
As detailed in this Columbus Dispatch story, "Republican contributor Thomas W. Noe was sentenced to 27 months in federal prison today for illegally contributing $45,400 to President Bush's re-election campaign." Here are some interesting additional details:
Toledo attorney Jon D. Richardson said after the hearing Noe would not appeal the sentence and it would have no effect on the state case. The lawyer had argued that Noe, 52, a former Toledo-area coin dealer, should receive probation in the federal case because his crime had no real victim and Noe had been humiliated enough by the national attention the case received....
But prosecutors, who have called the case "the most blatant and excessive" violation of the new campaign-finance laws passed in 2002, pushed for more prison time than the 2 to 2 1/2 year sentence the circumstances normally would suggest. Authorities argued that Noe abused a position of trust as a high-level fundraiser for Bush's campaign and that his illegal scheme caused a loss of public confidence in the election system....
Noe's lawyers had asked friends and family members to send letters to the judge seeking leniency for the coin dealer, but others also reportedly wrote asking the judge to drop the hammer on him. Among those arguing against leniency was Ohio Republican Party Chairman Robert T. Bennett, who is dealing with a political climate roiled by the GOP investment and ethics scandals that Noe spawned last year -- and a high-profile trial starting one month before the Nov. 7 election to remind voters.
A distinctive example of unreasonable guidelines
I often note that the US Sentencing Commission has stated that its crack and career offender guidelines can disserve congressional goals in some cases. But today I learned of an article (published in my own backyard) that provides a distinct example of guidelines than can operate unreasonably.
The article, by Jennifer S. Granick, appears in Ohio State's own I/S: A Journal of Law and Policy for the Information Society, and is entitled, "Faking It: Calculating Loss in Computer Crime." The article and abstract can be accessed at this link, and here is a snippet from the abstract:
This paper argues that the sentences courts have been imposing for violations of the federal computer crime statute 18 U.S.C. section 1030 do not accurately reflect the seriousness of the offense or treat like offenders equally. By definition, sentencing is heavily dependent on economic measures of harm, particularly the cost of investigating the incident and restoring the system to its original state. The legal definition of harm, however, does not accord with the real world responses of investigators who want to get critical systems running again to improve the state of security. Also, by focusing on monetary loss, sentences do not adequately reflect intangible damage that is difficult to value monetarily, like invasions of privacy, access to or theft of data, or interruption of service.... Sentencing law and practice has failed to discriminate between harmful and trivial attacks.
Senate Judiciary Committee hearings of note
Folks who enjoy hearing about the crime and justice work of federal branches other than the judiciary will want to check out these two Senate hearings this week:
- This morning, the full Senate Committee on the Judiciary today had this hearing on "The Thompson Memorandum's Effect on the Right to Counsel in Corporate Investigations." As of this writing, I think the live webcast is over, but there are links to written testimony still available. Any attendees (or participants) are highly encouraged to send in reports of any highlights.
- Tomorrow afternoon, the Senate Committee on the Judiciary Subcommittee on Crime and Drugs has scheduled this hearing on "Challenges Facing Today's Federal Prosecutors." I suspect this hearing will follow-up on reports of resource shortages for prosecutors, though as of this writing the official website does not reveal who will be testifying.
Olis resentencing (finally) to go forward
Two-and-a-half years after he was initially (and incorrectly) sentenced to 24 years' imprisonment, former Dynegy executive Jamie Olis is due to be resentenced in Houston on Tuesday afternoon. This AP story provides the basic background, and this interesting commentary from The Economist spotlights the "several tricky technical issues" in play in the case.
Olis was supposed to be resentenced nine months ago(!), and the posts below reflect some coverage from that time. Back in January, I predicted that Judge Sim Lake would impose a new sentence of around 5 to 7 years and that another round of appeals from the resentencing is perhaps inevitable. I am sticking with these predictions.
- Cooperating Dynegy executives get relatively light sentences
- Will it be a happy new year for Jamie Olis?
- Government arguing for 15+ years for Jamie Olis
- Attorneys for Jamie Olis urging a 5-year cap for resentencing
Good Gunter ... now what?
As noted here, on Monday the Third Circuit in Gunter held that "district courts may consider the crack/powder cocaine differential in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process." Impressively, the nuanced Gunter decision reaches this result without directly contradicting rulings in other circuits that have rejected certain below-guideline variances based on the crack guidelines.
The Gunter panel seems to endorse an approach to crack sentencing that I suggested in this post after the First Circuit's Pho ruling: Gunter suggests that sentencing courts should not construct their own "alternative guideline" (such as a 20:1 crack/powder ratio), but it clearly holds that district judges may refuse to follow the crack guidelines as long as they provide reasons for rejecting the crack penalty levels as too harsh without creating and applying an "alternative guideline" rules. Significantly, though the nuanced holding in Gunter claims it is consistent with other circuit rulings, DOJ — which had a long circuit winning streak in crack cases — cannot be pleased with the crack that the Gunter decision creates in the crack guidelines.
So the big question becomes now what for both DOJ and the courts. DOJ will likely seek en banc review of Gunter, but I am not sure the full Third Circuit will want to take this up. And I am not sure DOJ will be eager to seek cert in a case where the district court treated the crack guidelines as essentially mandatory. Meanwhile, a few circuits still have not weighed in on crack sentencing, and I am hopeful that the Gunter decision — which, unlike other circuit rulings, spotlights the full text of 18 U.S.C. § 3553(a) and the Sentencing Commission's repeated rejection of the 100:1 ratio — will be a beacon of light for other courts grappling with these issues.
September 11, 2006
Seventh Circuit shooting the reasonableness messenger
Just after the Third Circuit's important crack opinion in Gunter was getting me encouraged again about thoughtful circuit opinions, along comes the Seventh Circuit to dash my optimism. Today in US v. Gonzalez, No. 05-2555 (7th Cir. Sept. 11, 2006) (available here), a panel led by Judge Posner all but accuses two defendants of "wast[ing] their time and ours by filing frivolous appeals" over the reasonableness of a within-guideline sentence.
Never mind that the Supreme Court in Booker said the guidelines are only advisory and suggested that all sentences are to be reviewed for reasonableness; never mind that one defendant in Gonzalez faces incarceration for 23 years on a marijuana dealing offense; never mind that this defendant was subject to a career-offender guideline that the US Sentencing Commission has said is too harsh in some cases; never mind that this defendant apparently rendered substantial assistance and still got a sentence above the guideline minimum; never mind that using adjectives like "frivolous" will surely chill the exercise of appellate rights. Apparently, the panel in Gonzalez simply thinks that some appeals of within-guideline sentences are just a big waste of time. Just like jury trials, I suppose....
Another blog post about a piece about blog posts
I now see that a piece I put together about blogging for the National Law Journal is now available here. Though the title selected by the NLJ for the piece makes me cringe, I am truly grateful that the NLJ asked me to assemble some blogging thoughts for its publication. And, to return the favor, let me note that the NLJ has a lot of other interesting looking stories in this week's issue (even though the title of this post is perhaps cringe-worthy).
Another twist on (and twisted) sex offender restriction
This weekend, I asked here for information about compilations of state and local laws creating sex offender residency and movement restrictions. In addition to a number of helpful comments, I received this fascinating report from Tennessee attorney David Raybin:
Effective July 1 the Tennessee legislature enacted the following amendment (below) prohibiting sex offenders from attending sex offender treatment if the treatment program is within 1000 feet of a "child care facility" or related places where children go such as a playground. This is a disaster because such places as Vanderbilt have a number of certified sex offender treatment providers, but Vanderbilt has a children's hospital and most if not all of the doctor's offices are across the street from a school. In one fell swoop Vanderbilt loses the ability to treat sex offenders. In smaller towns there is ONLY one treatment provider and, being a small town, is close to a day care or a school etc.
There are a dozen statutes mandating sex offender treatment. Just exactly where are these folks to go? I have a client who is court ordered to treatment and has been going for years, but now we find his doctor is in the "zone of exclusion."
I am at a loss to understand WHY this ever became law and if anybody thought about the horrible consequences of this which is counter-productive of what the other legislation is seeking to accomplish. This provision regarding treatment providers should be repealed. These sex offenders have become the new lepers. W e will soon require that they all be tattooed with barcodes.
SECTION 20. Tennessee Code Annotated, Section 40-39-211, is amended by deleting subsection (a) and substituting instead the following: (a) While mandated to comply with the requirements of this chapter, no sexual offender, as defined in § 40-39-202(16), or violent sexual offender, as defined in § 40-39-202(24), whose victim was a minor, shall knowingly establish a primary or secondary residence or any other living accommodation, or knowingly obtain sexual offender treatment or attend a sexual offender treatment program, or knowingly accept employment, within one thousand feet (1,000') of the property line on which any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public.
Third Circuit adds nuance to crack sentencing after Booker
In a thoughtful and potentially very important decision, the Third Circuit today in US v. Gunter, No. 05-2952 (3d Cir. Sept. 11, 2006) (available here), adds nuance to the debate over post-Booker crack sentencing. Running 29 pages, the Gunter decision has too many highlights to summarize; here are perhaps the most important conclusions:
[O]nce between the minimum and maximum statutory ranges of 21 U.S.C. § 841(b), there is nothing special about the crack cocaine Sentencing Guidelines that makes them different, or less advisory, than any other Guidelines provision....
Post-Booker a sentencing court errs when it believes that it has no discretion to consider the crack/powder cocaine differential incorporated in the Guidelines — but not demanded by 21 U.S.C. § 841(b) — as simply advisory at step three of the post-Booker sentencing process (imposing the actual sentence after considering the relevant § 3553(a) factors)....
Of course, the District Court is under no obligation to impose a sentence below the applicable Guidelines range solely on the basis of the crack/powder cocaine differential. Furthermore, although the issue is not before us, we do not suggest (or even hint) that the Court categorically reject the 100:1 ratio and substitute its own, as this is verboten. The limited holding here is that district courts may consider the crack/powder cocaine differential in the Guidelines as a factor, but not a mandate, in the post-Booker sentencing process.
Colorado Supreme Court says Blakely not retroactive
As noted here, the one major lower court ruling that Blakely was to apply retroactively to Apprendi came from the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (Col. App. Apr. 7, 2005). Today, the Colorado Supreme Court reversed the Court of Appeals' Johnson opinion in and ruled that Blakely is not to be applied retroactively. The opinion, available here, has this official summary:
The Supreme Court granted certiorari to review the court of appeals' holding that the rule in Blakely v. Washington, 542 U.S. 296 (2004), applies retroactively to cases that were pending on direct review when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The court of appeals vacated Respondent Robin Johnson's sentence because Johnson's case was pending when Apprendi was decided.
The Supreme Court reverses the court of appeals, holding that Blakely announced a new constitutional rule of criminal procedure that does not fall under the exception to the general rule of nonretroactivity of new procedural rules. Therefore, the Blakely rule only applies to cases that were pending on direct review at the time that Blakely was decided. Respondent Johnson's conviction was final when Blakely was announced and consequently Johnson is not entitled to the benefit of the Blakely rule.
Of course, the US Supreme Court is due to hear this exact issue this coming Term in Burton v. Waddington. The posts below provide lots of background on Burton:
Monday morning sentencing headlines
Thanks for How Appealing and other sources, here are some interesting and diverse Monday morning sentencing headlines:
- From the Houston Chronicle here, "As his execution nears, an inmate opens up; The ex-crack addict asks: How much remorse is enough for crime?".
- From the Washington Post here, "Sex Offender Sues Va. to Keep Name off Web."
- From the Sydney Morning Herald here, "Husband cooker loses plea."
September 10, 2006
A public life concerned with death
In California, Jerry Brown is the Democratic nominee for attorney general. According to this interesting article, which spotlights the former Governor's long history with the death penalty, "Brown remains morally opposed to the practice but insists he will follow the law." Here are some snippets:
For most of his adult life, and now in the midst of his bid to become California's next Attorney General, one political issue has hovered over Jerry Brown: the death penalty....
The death penalty was once a potent topic in California campaigns of the 1970s and '80s, particularly in gubernatorial and attorney general races. Since then, however, some political observers say the death penalty has faded as a campaign issue....
As a candidate for attorney general, Brown has appeared less fervent in his criticism of the death penalty. ''I think we'd do better without it, but a majority of Californians disagree with that,'' Brown said in a wide-ranging interview in March. He added the would ''strongly carry out the law of California.'' His campaign staff declined several recent invitations for Brown to discuss the subject.
Brown's position disturbs death penalty opponents, who once counted him as an ally because he often described the sentence of life in prison without the possibility of parole as a more humane and equally effective deterrent as capital punishment. ''It's somewhat tiresome when somebody gives me that excuse,'' said Mike Farrell, an actor and president of Death Penalty Focus. ''I would love to see him sort of put his career, if you will, where his mouth is.''