September 23, 2006
A new day dawning at the USSC?
Yesterday I had the pleasure of moderating a terrific panel on Booker at the biennial convention of the The Just The Beginning Foundation. As is always the case, I learned a lot from hearing a set of impressive practitioners assess the post-Booker world. But the panel was especially exciting because US Sentencing Commission Vice-Chair Ruben Castillo shared news about the USSC's priorities for the coming year.
Judge Castillo reported that the USSC officially voted on their priorities at its public meeting Thursday of this past week. According to Judge Castillo, the USSC plans to work this year (1) on a crack fix, (2) on relevant and acquitted conduct rules, (3) on criminal history issues, and (4) on a broad guideline simplification project. Though I will restrain my excitement until I see the official list of priorities published by the USSC, Judge Castillo's report suggests to me that the USSC now appreciates that it can and should (indeed, must) be more proactive in improving the guidelines if it wants the guidelines to remain a central part of the post-Booker sentencing universe.
September 22, 2006
Jamie Olis gets 6 years at resentencing
Thanks to Tom Kirkendall's post here, we can get the initial highlights from the Jamie Olis resentencing hearing, where Olis received a sentence of six years. This is, obviously, a huge reduction from his initial sentence of 24 years, though many could (and surely will) still debate whether it is a sentence "sufficient, but not greater than necessary" to achieve the sentencing purposes set forth by Congress in the Sentencing Reform Act. Here is Tom's description of the basis of sentence (which will be in a full opinion I'll post once available):
During the hearing, Judge Lake read portions of a lengthy written opinion that he has written on the Olis resentencing that he issued after the hearing. Although Judge Lake found that a guideline sentence for Olis would be in a range of 151-188 months based on an estimated $79 million damage amount (based on the intended tax benefit to Dynegy from Project Alpha), he concluded that Olis deserved a non-guideline sentence because of Olis' exemplary character, the fact that Olis did not personally gain from Project Alpha, and that Dynegy did not fail as a going concern as a result of the transaction. Judge Lake also concluded that the extensive publicity relating to Olis' case and other recent white collar business cases has sufficiently informed the business world of the severity of fraudulent business conduct that principles of general deterrence do not require a guidelines sentence.
UPDATE: The Olis resentencing opinion runs 34 total pages, and it can be downloaded below. Here is the key conclusion from Judge Lake:
Having considered all of the factors mandated by Congress, including the sentencing guidelines and policy statements, the court concludes that a sentence within the applicable guideline range would not be reasonable, and that a non-guideline sentence of 72 months in prison is appropriate.
Eighth Circuit reverses yet another below-guideline sentence
Providing yet another variation on a tired story, a split panel of the Eighth Circuit today in US v. Likens, No. 05-3901 (8th Cir. Sept. 22, 2006) (available here), reverses a below-guideline sentence of three-years probation down from a guideline range of 15-21 months. The first reason given for the reversal is that "the district court failed to consider the need to avoid unwarranted sentencing disparities [because the] sentencing guidelines ... continue to be guideposts that must be respected."
Once again, I am troubled to see the guidelines get so much respect from the Eighth Circuit when a district judges goes below the guidelines, but not when a judge goes above them. Just earlier this week, as discussed here, the Eighth Circuit affirmed in Zeigler an upward variance of 400% from a guideline range of 0-6 months to a sentence of 24 months' imprisonment and never even discussed concerns of unwarranted sentencing disparities.
Judge Bright dissents today in Likens, beginning with these sentiments:
The majority's determination that the district judge erred when sentencing Mr. Likens to probation serves as yet another example of the upside down world of sentencing in the federal courts.
In this present case, the district judge determined that probation is right and just given all the circumstances. That was his reasoned judgment based on his significant experience and consideration. To reverse this exercise of discretion in such a close case seems wrong.
Might Berger get SCOTUS attention?
Earlier this year, the Arizona Supreme Court rejected a former Phoenix high school teacher's claim that his 200-year prison sentence for possessing child pornography violated the Eighth Amendment (basics here, commentary here). I believe that the defendant has now appealed Azizona v. Berger to the US Supreme Court, and syndicated columnist James J. Kilpatrick has taken up the cause in this interesting column. Here are snippets:
There is no question of Berger's guilt. He emerges from the record as an almost classic "dirty old man." There is no evidence that he himself ever engaged in distributing, exhibiting, receiving, selling, purchasing, electronically transmitting or even "exchanging" pornographic images, all of which the Arizona law forbids. He was convicted solely of "possessing" such images. He collected them.
These facts should weigh in your calculus, for good or ill: He is 52 years old, married, a father of four, an award-winning teacher of world history. He has no criminal record of any sort. The state offered no evidence that he has ever created pornography or improperly touched a minor.
In their appeal to the Supreme Court, his counsel rely upon a single argument: The unservable sentence violates the Eighth Amendment to the Constitution. The amendment decrees that courts may not inflict "cruel and unusual punishments." The 200-year prison sentence imposed on Berger is plainly "unusual." At that punitive level, Arizona stands alone. Its minimum 10-year sentence for possession of a single piece of child pornography is greater than the maximum sentence for this offense in 35 states. It is equal to the maximum in nine others.
Is the 200-year sentence also constitutionally "cruel"? Who is to say? Manifestly, the question is hypothetical, or academic. On the record, Berger is a middle-aged, dirty-minded, part-time pedophile. But also on the record, he has never physically harmed anyone. He never even bought any of this stuff. He merely downloaded it....
This is a case the high court ought to hear. Morton Berger may be a creep, but on the record he's a pretty sad creep. The sentence is absurd.
Some related posts:
- Arizona Supreme Court upholds 200-year sentence for possessing child porn
- What ever happened to state constitutional law, textualism, and libertarianism?
- Liberty versus security in the war on ... sex offenders
September 21, 2006
White-collar sentencing season
This year, September is not only the season for great Saturday football and Supreme Court previews, but also for a lot of interesting white-collar federal sentencing action. Tom Kirkendall at Houston's Clear Thinkers is doing a great job keeping up with a lot of the action: this post notes the upcoming sentencing of Enron's Andrew Fastow (and links his sentencing memorandum), and this post provides lots of background for tomorrow's scheduled resentencing of Dynegy's Jamie Olis.
Andy Fastow, primary architect of the Enron debacle, who understood that he had little or no chance in court, and therefore turned witness, 10 years; Jamie Olis, bit player whose guilt was, at worst, marginal, and whose biggest mistake may have been insisting on his innocence, 24 years. Can any ends justify these means?
What's next on crack sentencing after Gunter?
I have received calls from reporters following up the Third Circuit's Gunter ruling (basics here, commentary here and here) asking about the decision's broader significant for crack sentencing in the federal system. Because the Gunter decision is so nuanced, as discussed here, a lot depends on how others react to it. (For more background and one thoughtful reaction, check out this long post on Gunter from the Third Circuit Blog.)
Though I though the government might seek en banc in Gunter, another brewing Third Circuit case on crack sentencing might also lead it to hold its powder for now. Most important to these broader stories, at least in the short term, may be whether and how other circuits react to Gunter. Long-term, crack sentencing may depend a lot on when and how the Supreme Court and the US Sentencing Commission (which has a public meeting today) starts dealing with broader Booker issues.
A few related crack sentencing posts:
New pleas and sentences in Rhode Island nightclub fire case
Sentencing fanatics may recall the remarkable sentencing proceeding in Rhode Island (discussed here and here) in which the road manager of the band Great White, who had a role in the deadly fire at The Station nightclub three years ago, was sentenced to four years' imprisonment after having pleaded guilty to 100 counts of involuntary manslaughter. Today, the New York Times reports here on two new pleas and expected sentences in this case:
Two brothers who owned a Rhode Island nightclub where pyrotechnics ignited a fire that killed 100 people in 2003 will plead no contest to charges of involuntary manslaughter. One of them will not serve any prison time. Under the plea agreement, announced Wednesday in a letter to victims' families by Rhode Island's attorney general, one of the men, Michael Derderian, will be sentenced to serve four years in a minimum security prison. His brother, Jeffrey Derderian, will be sentenced to three years of probation and 500 hours of community service...
In his letter Wednesday, the attorney general, Patrick C. Lynch, wrote, "Despite their desire to admit to the charges against them, I was unwilling to recommend or agree to the sentences that I have been advised the court will impose." He added, "Most significantly, I strongly disagree with the court's intention to sentence Jeffrey Derderian to less than jail."
Jeffrey Derderian was in the club, called the Station in West Warwick, the night of the fire, but the authorities have said Michael Derderian played a greater role in buying and installing highly flammable sound-insulating foam around the stage that was almost instantly ignited by the pyrotechnics.
The plea deal angered many relatives of the victims, as well as some of the 200 people who were injured in the blaze. Several said they would attend the Sept. 29 sentencing before Associate Justice Francis J. Darigan Jr. of Superior Court, who will hear from some of the victims and relatives.
September 20, 2006
New JPI report on dealing with drug offenses in Maryland
As detailed in this press release and this Washington Post article, a new report from the Justice Policy Institute finds that "Maryland continues to spend far more on sending drug offenders to prison than to treatment programs despite a high-profile bid by Gov. Robert L. Ehrlich Jr. to reverse that trend. This new report, which is entitled "Progress and Challenges: An analysis of drug treatment and imprisonment in Maryland from 2000-2005," is available here.
Supreme Court denies stay in Hill
As Lyle Denniston reports here, a split Supreme Court this afternoon "refused to delay the execution in Florida of Clarence E. Hill, thus clearing the way for the state to carry out the sentence around 6 p.m. this evening. The Court issued no opinion. The brief order noted that Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens would have voted to grant a stay."
I am not surprised by this outcome, and I suspect it means Florida will finally get to execute Clarence Hill. But, then again, it is not impossible to imagine some unexpected development over the next few hours. I suspect Governor Jeb Bush and perhaps others could still decide to intervene.
Some recent related posts:
UPDATE: Here is an AP report on the case.
ANOTHER UPDATE: Karl Keys at Capital Defense Weekly here highlights some "very odd news in juxtaposition" about lethal injection litigation. On the same day that Clarence Hill was executed without his Eighth Amendment claim ever being heard on the merits, the Texas Court of Criminal Appeals ordered briefing on whether a claim that the state's "lethal-injection protocol violates the Eighth Amendment [is] cognizable under Article 11.071 of the Texas Code of Criminal Procedure?"
"Chaos in Sentencing"
In this interesting column entitled "Chaos in Sentencing" for the Washington Post, Andrew Cohen writes about "two vital court rulings were issued in August highlighting the extent to which our federal sentencing rules and policies are broken." Here are a few highlights:
Last month, the irrepressible U.S. District Court Judge William G. Young in Boston dropped upon an unsuspecting nation a 125-page ruling -- a mini-treatise, really -- on what is currently wrong with federal sentencing law, why this is so, and what judges and elected officials can and should do about it. Then, a few days later, a divided 8th U.S. Circuit Court of Appeals [typo alert: should be 6th Circuit] overturned a capital sentence for a fellow name Jason Getsy after concluding that his punishment from the Ohio courts was "arbitrary" and unfair and thus a violation of the Eighth Amendment's prohibition against "cruel and unusual" punishment.
Taken together, the two rulings represent the sorry state of the art in an area of the law that the United States Supreme Court tried to revamp last year in United States v. Booker when it held unconstitutional the mandatory nature of the Federal Sentencing Guidelines. Both orders focus primarily upon plea bargains and their corrosive impact upon fairness in federal sentences. Both orders take to task the existing sentencing regime, such that it is. Both remind us of the constitutional need for a nexus between crime and punishment, verdict and judgment. Both make compelling cases for how and why Congress and the Supreme Court have utterly failed to fix sentencing problems that have been apparent and growing worse for years.
I am not sold on the link between Booker and the Sixth Circuit's habeas work in Getsy. But I do very much like Cohen's promotion of Judge Young's terrific Kandirakis opinion (basics here), as well as the overall spirit of Cohen's kvetching about the modern state of sentencing. Of course, as detailed in some posts below, there are plenty of suggested solutions.
Some related posts:
Will Florida execute Clarence Hill today?
Almost exactly nine months ago, at roughly 6pm on January 24, 2006, Clarence Hill was strapped to a gurney and IV lines were run into his arms as Florida's execution team awaited the expected denial of Hill's final appeal to the Supreme Court. After about an hour in which Hill lay on the gurney anticipating his execution, Justice Anthony Kennedy issued a stay to allow the Supreme Court more time to consider whether Hill could attack Florida's lethal injection protocol through a 1983 action.
Though Hill prevailed in the Supreme Court, as detailed in this newspaper article, Florida is poised in less than twelve hours to try again to kill Clarence Hill again. And the merits of his 1983 action have still never been considered. Capital Defense Weekly has more on Hill's final(?) appeal to the Supreme Court, and Human Rights Watch has this interesting open letter to Florida Governor Jeb Bush urging him to postpone Hill's execution.
As I have documented via many blog posts and this recent article, much has transpired in the death penalty world over the last nine months. However, for Clarence Hill, it appears that the story will have a particular Shakespearian quality: Hill's litigation tale seems likely to end up as one "full of sound and fury; signifying nothing."
Speaking of "sound and fury; signifying nothing," this newspaper article also spotlights Florida Governor Jeb Bush's unsurprising reaction to the massive ABA report criticizing Florida's death penalty (details here):
''I believe that the death penalty process here is protected, correctly so, by an appeals process that is extensive,'' Bush said, adding that if anything, it is unfair to crime victims and their families. ''It can go on for more than 10 years. For a lot of people, that is denial of justice,'' Bush said.
Some recent related posts:
September 19, 2006
Does Judge Posner know how to Shepardize or KeyCite?
As regular readers know, I have been underwhelmed by the Seventh Circuit's post-Booker work (see here and here), and Judge Posner today provides another reason to worry about what's going on in Chicago.
As Howard Bashman details here, Judge Posner in US v. Reuter, No. 05-4503 (7th Cir. Sept. 19, 2006) (available here), authors a brief decision about burdens of proof after Booker in which he notes that a Third Circuit panel in Grier recently overruled a key pre-Booker precedent apparently without realizing that the Grier panel decision was vacated two months ago when the Third Circuit granted rehearing en banc (details here and here and here and here).
Judge Posner apparently also overlooks the fact that the Ninth Circuit in Staten has also preserved the burden-of-proof doctrine that he mistakenly believes has been overruled in the Third Circuit (details here). Perhaps Westlaw and Lexis (and certain blogs) are not readily accessible in all Seventh Circuit chambers.
Though I cannot resist a little Posner-bashing, I should compliment his effort in Reuter to incorporate burden-of-proof concerns into the provisions of 3553(a). Here is the decision's interesting penultimate paragraph:
With the guidelines no longer binding the sentencing judge, there is no need for courts of appeals to add epicycles to an already complex set of (merely) advisory guidelines by multiplying standards of proof. The judge is cabined, but also liberated, by the statutory sentencing factors. 28 U.S.C. § 3553(a); United States v. Cunningham, 429 F.3d 673, 676 (7th Cir. 2005). Unlike the guidelines, they bind, but they are broad enough and loose enough to allow the judge to dip below the guidelines range if he is justifiably reluctant to impose a sentence most of which rests entirely on a finding of fact supported by a mere preponderance of the evidence (though in this case, to repeat, the evidence was overwhelming). Section 3553(a)(2)(A) includes among the factors to be considered in sentencing “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction. That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Eagle-eyed readers might also note a conspicuous mis-cite/typo in this paragraph.
Consequences of California's new proposed sex offender law
This Los Angeles Times article provides interesting background on the provisions and likely impact of California's Proposition 83, a ballot initiative that would restricts where the sex offenders can live, requires electronic monitoring for life, and lengthens sentences. Here are some highlights:
Proposition 83 on the Nov. 7 ballot — dubbed Jessica's Law by proponents — would lengthen prison and parole terms for the most violent sex offenders and make possession of child pornography a felony. In addition, its most controversial provision would ban all released sex offenders from living within 2,000 feet of a school or park. Local governments could declare additional locations off-limits, and sex offenders would be monitored for life with an electronic tracking device.
If passed, the measure would cost the state at least $200 million annually within a decade, according to the nonpartisan legislative analyst, largely because of the satellite tracking and police needed to enforce it.... Citing the experience of other states, some scholars say the residency rule would banish the former convicts from urban settings that offer the services, jobs and family connections that help them remain law-abiding — and dump them on rural communities ill-equipped to supervise them. In Iowa, prosecutors who once backed such a law said the residency limit had backfired, and they now want it repealed.
According to maps prepared by the state Senate, the initiative would bar sex offenders from living in nearly all of San Francisco and much of urban Los Angeles, while they would be allowed to live in many less densely populated suburbs around the state. State Sen. Dean Florez (D-Shafter), whose farm-belt district in the Central Valley is one area where sex offenders could legally live, said the measure would legalize "predator dumping." The Bakersfield Californian newspaper agreed, and editorialized against it under the headline "Our children deserve same rights as city kids." Such worries have prompted one supporter, Los Angeles County Dist. Atty. Steve Cooley, to lose much of his zeal for the measure. Although he supports the tougher sentencing it offers, Cooley says, "the potential unintended consequences — like burdening our rural areas — have not been well thought out."...
The initiative has been endorsed by GOP Gov. Arnold Schwarzenegger, who signed the ballot argument in favor of it, and his Democratic opponent, Phil Angelides. It is also endorsed by Crime Victims United and statewide associations of police chiefs, sheriffs and prosecutors. An August Field Poll showed the proposition with a lead of nearly 7 to 1, a reflection, analysts say, of the public's deep unease about a category of offenders often linked to heinous, headline-grabbing crimes.
Sentencing around the LPB network
Two of my favorite reads in the Law Professor Blogs network have numerous of interesting sentencing items worth checking out. The White Collar Crime Prof Blog has these recent posts on (surprise, surprise) white-collar sentencing:
- Another Enron Cooperator Gets Sentenced
- Olis Resentencing
- Enron Cooperator Gets Four Years Probation
Over at the Crime Prof Blog, the recent sentencing posts have a big west-coast influence:
- WA Law Makes Schools Aware of Convicted Juvenile Sex Offenders
- CrimProf Franklin Zimring Criticizes Cali's New Sex Offender Crackdown
- Packed Prisons, Solution-Stalemate: Is the Eighth Amendment the Answer?
September 18, 2006
Will Clarence Hill get another SCOTUS ex machina?
I am not betting that the Supreme Court will intervene again to keep the state of Florida from executing Clarence Hill based on his Eighth Amendment claims against Florida's lethal injection protocols. But, I would not have expected the first stay that SCOTUS issues back in January, which came after Hill was already strapped to a gurney with IV lines ready to start his execution. After the Eleventh Circuit's (bloodless?) dismissal of Hill's 1983 action late last week (details here), I have no prediction about whether the Justices will care this time around. SCOTUSblog has some of the details here surrounding Hill's application for a stay of his scheduled execution.
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
UPDATE: The New York Times has this piece entitled "States Await Ruling on Use of Lethal Injection," which updates developments in Florida and other states on these issues.
Meanwhile in Maryland, as this article details, "Lawyers for death row inmate Vernon L. Evans Jr. expect to bring into federal court this week the men and women who have participated in Maryland's previous executions to ask them what they did and how they were trained and to inquire about any past problems with the lethal injection procedures that the convicted killer is challenging."
Is The Volokh Conspiracy The Beatles of blogging?
You have to check out Eugene Volokh's very kind (and cool) post to understand the title of this post.
What's especially cool is to draw out the parallels he sets up: SL&P involves a solo artist (like Bob Dylan) who writes many words in posts (like songs) that often seek to comment on political issues and (professional) relationships; The Volokh Conspiracy is a group endeavor that mixes long and short posts, touching on a broader range of topics, often just to have a good time/tune, though also often with deep political and social significance. (Also, to be more mundane, consider the parallel "The" status in titles.)
Another government blow-out in the Eighth Circuit
Those who like close sporting events should not make a habit of keeping score of criminal appeals in the Eighth Circuit. The Eighth Circuit's official opinion page has six criminal dispositions today, and the government pitches a 6-0 shutout. And the six cases include two in which the Eighth Circuit affirms an above-guideline sentence (though this is not, I suppose, surprising: as this list partially documents, over 90% of above-guideline sentences have been affirmed in the Eighth Circuit, even though nearly 90% of below-guideline sentences have been reversed).
The most interesting decision may be US v. Zeigler, No. 05-4001 (8th Cir. Sept. 18, 2006) (available here), in which the court affirms an upward variance of 400% from a guideline range of 0-6 months to a sentence of 24 months' imprisonment based on the defendant's criminal history. Zeigler is interesting because the Eighth Circuit affirms an extraordinary variance without even discussing its precedents indicating that extraordinary facts are needed to support such a variance. I do not think this omission was accidental, since the facts in Zeigler hardly seem extraordinary and the variance seems based on the district judge's policy disagreement with how the guidelines calculate a criminal history score. Apparently policy disagreements with the guidelines are okay as long as they lead to sentence increases, not decreases.
Zeigler is a worthwhile read not only to see how readily a circuit court will approve rejection of the guidelines to move a sentence upward. In Zeigler, Judge Hansen concurs to emphasize the important distinction between departures and variances in the Eighth Circuit (a distinction which, I must note, has been deemed obsolete by the neighboring Seventh and Ninth Circuits). Judge Hansen urges his colleagues "not to commingle" its analysis of departures and variances.
Meanwhile, Judge Bye concurs to urge his colleagues "to take a critical look at the disparity in our treatment of upward and downward departure cases." Unfortunately, I think Judge Bye's call for review commingles departure and variance cases. Ahh, the joys of the post-Booker world.
Interesting sex offender ruling from the Sixth Circuit
In addition to doing strong post-Booker work on reasonableness review (some recent highlights here and here), the Sixth Circuit can be counted for interesting work on other sentencing issues. Today we get an intriguing ruling on supervised release conditions and sex-offender treatment in US v. Carter, No. 05-6129 (6th Cir. Sept. 18, 2006) (available here). Here is the start of the majority opinion:
Defendant-Appellant Larry W. Carter appeals the imposition of a special supervised-release condition mandating sex-offender treatment. Carter challenges the condition on the ground that it is not reasonably related to either his instant conviction of being a felon in possession of a firearm or his convictions for sex offenses committed in 1988. Carter also challenges one aspect of the treatment program — polygraph testing — on the ground that it violates his Fifth Amendment privilege against compelled self-incrimination.
Because Carter's instant conviction is not a sex offense and Carter's prior convictions are either too remote in time or not clearly sexual in nature, we VACATE the special condition. We instruct the district court on REMAND to determine whether Carter's 2004 stalking conviction is sexual in nature and therefore provides an independent basis for the special condition. This resolution makes it unnecessary to address the Fifth Amendment challenge.
Big week for execution protocols
A few executions scheduled for this week should bring still more attention to state execution processes.
In Tennessee, as detailed in this AP story, a death row defendant scheduled to be executed tomorrow has chosen "the electric chair over the state's preferred method of lethal injection." The defendant has dropped his appeals and thus will likely "become the first prisoner to die in Tennessee's electric chair in 46 years."
In Florida, as detailed in this commentary, Clarence Hill is once again just days away from being executed and he still has not had his Eighth Amendment claims concerning Florida's lethal injection protocol considered on the merits. It will be interesting to see how the Supreme Court handles Hill this time around.
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
- Old school execution
September 17, 2006
Recapping major Booker circuit developments
Many notable recent death penalty developments — from the ABA's Florida report to lethal injection developments in Hill and elsewhere to the Comer ruling case (all detailed in this archive) — risk eclipsing some significant Booker circuit action. Here is a recap of recent highlights and commentary, organized roughly in order of importance:
- Third Circuit adds nuance to crack sentencing after Booker
- Good Gunter ... now what? and Follow-up on Third Circuit's big crack ruling
- Ninth Circuit (unwittingly?) creates Booker ex post circuit split
- Eleventh Circuit reverses variance based on fast-track disparity
- Seventh Circuit shooting the reasonableness messenger
- More on the latest ugly reasonableness work by the Seventh Circuit