October 21, 2006
Weekend sentencing reading from SSRN
Here are a few notable new pieces from the Corrections & Sentencing Law & Policy SSRN journal that sentencing fans may want to check out:
- Still Wrong? Professor Kahan on the Fall of Shaming and the Rise of Restorative Justice by Dan Markel
- The “Special Needs” of Prison, Probation, and Parole by Antoine McNamara
- Update to "Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Questions" by Joseph S. Fulda
October 20, 2006
Skilling sentencing questions (and predictions?)
Right after Ken Lay and Jeff Skilling were convicted in May, I did this post with first-cut Enron sentencing questions. With Skilling's sentencing hearing scheduled for this coming Monday, these questions remain timely:
- What will be the likely offense level and sentencing range for Skilling under the federal sentencing guidelines?
- Assuming the guideline range for Skilling is very high, will the government ask for a guideline sentence?
- Will defense counsel seek a "traditional" departure under the guidelines as well as a variance based on Booker and 3553(a)?
With much time and many developments in this case and in other high-profile white-collar cases (see this Enron sentencing archive), we might now add these questions:
- How many victims will testify at the sentencing hearing?
- Will Judge Lake announce a sentence for Skilling on Monday, or take some time to write a sentencing opinion as he did in Olis?
- Will Skilling be granted bail pending appeal?
Of course, the ultimate question is what sentence will Skilling get. Anyone brave enough to make predictions in the comments?
Intriguing Louisiana heroin lifer litigation
In my periodic rants about the excessive attention given to the death penalty (highlights here and here), I often assert there are far greater injustices in our criminal justice system than what we see in the (over-analyzed) death penalty system. In particular, I fear that many injustices surround many life sentences which are not even known, let alone the subject of sustained advocacy.
I find support for my perspective from stories like this piece from the Drug War Chronicle about litigation over life sentences for heroin offenses in Louisiana. Here are details:
In the midst of 1970s-style drug war hysteria, Louisiana legislators passed a law mandating life without parole for people convicted of selling heroin. In 2001, the legislature moved to amend that draconian law, amending it so that heroin distribution sentences ran from five to 50 years in prison. That 2001 law also established a "risk review" process for early release of prisoners sentenced under harsh old laws....
More than 90 heroin lifers remain behind bars, many of them now elderly after having spent the 1970s, 1980s, 1990s, and half of the 2000s behind bars. Last year, trial court judges in Orleans and St. Tammany parishes, frustrated with the glacial pace at which the reviews were moving, revised downward the sentences of a pair of heroin lifers and ordered their immediate release.
The state of Louisiana appealed the decision, and this week the state Supreme Court heard oral arguments in the case.... The two men whose cases are being appealed are Melvin Smith, who was convicted in 1977 and recently ordered released by Orleans Criminal District Court Judge Calvin Johnson, who had resentenced him to 28 years -- essentially time served; and Wesley Dick, who was sentenced to life in 2001 just before the law changed. District Judge Patricia Hedges freed him in July after cutting his sentence to 10 years.
In a sign of prosecutorial vindictiveness, Orleans Parish District Attorney Eddie Jordan blocked Smith's release. The elderly Smith remains wheelchair-bound at the Orleans Parish House of Detention pending the Supreme Court decision regarding his fate.
Notably, the 90 "heroin lifers" that are suffering severe punishment in Louisiana is double the number of defendants executed this year nationwide. How sorely I wish that 10% of the time and energy devoted this year to exploring whether lethal injection might cause some temporary pain and suffering for some convicted murderers would be redirected to exploring the pain and suffering endured elderly "heroin lifers" in Louisiana. Sigh.
The challenges of connecting sex offense reactions and realities
At the Friday morning roundtable on sex offender recidivism at the BJS/JRSA conference last week, JRSA Research Director Stan Orchowsky started it off by noting that, of all the gaps between what policymakers do in criminal justice and what we know about offenses, offenders, and how to manage them most effectively, the gap with sex offenses is largest. Then Kim English, the Colorado Statistical Analysis Center director, with the help of very experienced colleagues...described the successful efforts in CO and what the research showed.
[T]he talk on what is effective included no mention of castration (chemical or otherwise, neither of which actually guarantee success ending sexual assaults, which Kim described in ways I won't detail in a family blog), mandatory minimums (victims and their families will file fewer charges because the offenders are overwhelmingly loved ones), or housing restrictions (let's create gypsy bands of homeless perverts with no incentive to stay straight, why don't we?). No, what they described was insightful and practiced, with nary an ounce of touchy-feely, but it took work, patience, vigilance, and tolerance of inevitable human failure (ours, not the sex offender's).
Some recent related posts:
Was he afraid of lethal injection?
As detailed in this AP story, a "convicted killer facing lethal injection beat the executioner to it Thursday, committing suicide by slitting his throat and arm with a blade in his Texas death row cell 15 hours before he was supposed to die." Though Michael Dewayne Johnson's chosen mens of death sounds pretty painful, I cannot help but speculate whether all the talk about possible pain and suffering from the lethal injection process might have influenced his chosen way out.
Some recent related posts:
- Uncovering lethal injection realities
- Regulating executions in California
- My lethal injection piece on SSRN
- A bit of lethal injection history
- Old school execution
October 19, 2006
"Today's [Booker] opinion from Judge Posner is so truly bizarre and harmful that it took my breath away."
The quote in this headline comes from an e-mail I received from a lawyer telling me about the latest Seventh Circuit Booker flight of fancy today in US v. Bullion, No. 06-1523 (7th Cir. Oct. 19, 2006) (available here). As this lawyer explains, "Judge Posner basically says that an appeal from a district judge's substantially-above-guidelines sentence was so frivolous as to require an Anders brief."
I am breathless, too, primarily because I cannot imagine Judge Posner ever accusing the government of filing a frivolous appeal when it complains about a below-guideline sentence. Indeed, the Seventh Circuit has more often reversed below-guideline sentences than affirmed them, as detailed here, even on arguments that seem, at least to me, far less viable than the defendant's arguments in Bullion.
Here is Judge Posner's opening paragraph in Bullion (with cites omitted):
The defendant pleaded guilty to being a felon in possession of a firearm. The guidelines range for his offense was 188 to 235 months, but the judge sentenced him to 264 months, and the defendant challenges the sentence as unreasonable. Because it exceeded the guidelines range, there is no presumption that it is reasonable. But the standard of reasonableness, introduced by the Booker decision, confers broad sentencing discretion. The judge must consider the guidelines but is in no sense bound by them. He is bound only by the statutory sentencing factors, 18 U.S.C. § 3553(a), which are both numerous and vague, thus giving the judge a great deal of running room. There was no basis for the defendant's challenging the exercise of discretion by the sentencing judge in this case — and, we add, in cases like it. Not because there were no mitigating factors, but because the balance that the judge struck between them and the aggravating factors was so far inside the outer bounds of his sentencing discretion as to make the claim of unreasonableness frivolous and the appeal a compelling candidate for an Anders brief.
Though Judge Posner likes to harp on the vagueness of 18 U.S.C. § 3553(a), I continue to wonder if he has ever really thought about its central command together with his eagerness to presume the guidelines reasonable. Section 3553(a) commands the sentencing court to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection." If the guidelines are presumptively reasonable in light of this command, that means in this case a within-guideline sentence of 188 months would have been presumptively "sufficient but not greater than necessary" for the defendant.
How then can it be frivolous — not just without merit, but frivolous — for the defendant to contest a sentence that requires six more years of imprisonment?!? Consider also the reality that the fact that the defendant in this case was being sentence after pleading guilty to just a firearm possession offense. Wow. Even though Judge Posner is clearly quite hostile to defendants exerting their appellate rights after Booker, it seems quite reckless (and harmful) for him to assert that a decision to appeal an above-guideline sentence is frivolous!
I hope the Government might have the sense to ask Judge Posner to eliminate the suggestion that this appeal was frivolous. After all, as noted here, the Government moved in Demarree to asked the Seventh Circuit to remove some of Judge Posner's language from a panel opinion that it thought mis-represented the Government's position on Booker. (The Seventh Circuit rejected that motion, so at least we know the Government sometimes loses before Judge Posner on a Booker-related issue.)
The law and policy of felon disenfrachisement
Perhaps because it is really an election law issue, the law and policy of felon disenfrachisement often gets increased attention during election season. And today I see this notable article on the topic from Salon. Here is a taste:
Across the U.S., nearly 4 million people with felony convictions, who are out of prison, have no say in their own government, and won't be going to the polls on Nov. 7. Their lost votes could make a decisive difference in close Senate and House races this fall, especially in Florida, Kentucky and Virginia, where, unlike most states, felons, even after serving their time, never regain the right to vote. Among the races that could be affected are Virginia Sen. George Allen's attempt to retain his Senate seat, despite his recently exposed history of using racial slurs, and the House race for Kentucky District 3, where polls now show Republican Anne Northup essentially tied in her attempts to keep her seat from challenger Democrat John Yarmuth.
I often think of The Sentencing Project as the to-go place for coverage of this issue. And there I see this intriguing announcement of "stipends to produce research designed to broaden the analysis and understanding of the dynamics of felony disenfranchisement."
Would you rather be in Philadelphia...?
As well-covered here by How Appealing, a new federal anti-crime advertisement (pictured here) is raising a stir in South Dakota. Here are highlights from this South Dakota newspaper article about the brouhaha:
If prison isn't enough of a deterrent, officials in eastern Missouri hope a desolate portrayal of Yankton will dissuade potential criminals. "Nobody you know has a clue where it is. There's no airport, no bus station, no Amtrak," a Project Safe Neighborhood poster claims of the community.
That the Justice Department, which paid for the advertisement, is trashing Yankton for a good cause — "commit a gun crime and we won't just send you to prison," the ad promises, "we'll send you to Yankton" — doesn't sit well with Sen. Tim Johnson, who fired off a letter to Attorney General Alberto Gonzales telling him there ought to be a better use of federal tax dollars.
"Violent gun crime is a serious problem that needs to be addressed but not at the expense of a community like Yankton and not by using federal dollars to disparage such a thriving, historic community," Johnson said. He wrote Gonzales, "These public service announcements, which have run in the Eastern District of Missouri describing Yankton as '600 miles away from nowhere,' are inaccurate and an inappropriate expenditure of federal funds."
I wonder what W.C. Fields might say about this intriguing flap over anti-cime messages.
"Enron: The Tale of Two Sentencings"
The Wall Street Journal today has this interesting commentary entitled, "Enron: The Tale of Two Sentencings — If Skilling Gets 20 Years in Prison, It'll Show It Hurts Not to Sing to Prosecutors." Here are some portions:
The surprisingly lenient prison sentence given recently to Enron Corp. former Chief Financial Officer Andrew Fastow highlights the benefits of cooperating with federal criminal authorities. The coming sentencing of former Enron President Jeffrey Skilling is likely to demonstrate the dangers of fighting them....
The likely discrepancy in prison terms for Messrs. Fastow and Skilling, widely considered to be two of the central figures of the Enron scandal, illustrates that there has never been a better time in the white-collar-crime world to rat on your colleagues.
Over the past half-decade, prison terms for financial crimes have ratcheted up. Where a convicted corporate executive could once expect probation or a few years in prison, a first-time offender now faces as long as life behind bars. The surest way to avoid such a fate is to admit wrongdoing, cut a deal with prosecutors and help them nab others. The sentencing system "has developed a huge gulf between those who go to trial and those who cooperate," says Kirby Behre, a former federal prosecutor and co-author of a treatise on federal sentencing practices. While Mr. Skilling faces "an astronomical sentence," cooperators such as Mr. Fastow "are still getting sweet deals," says Mr. Behre, a partner in the Washington law office of Paul, Hastings, Janofsky & Walker.
A new legal attack against local sex offender residency restrictions
Among the many interesting aspects of the new boom in sex offender residency restrictions is their local flavor: more recent sex offender residency restrictions have been enacted by localities than by states. (Meanwhile, the federal government has not enacted or even considered seriously any national residency restrictions, despite doing a lot of recent work on sex offender sentencing.)
Intriguingly, as detailed in this article, the New Jersey state Public Defender's Office is bringing a new legal attack on the power of localities to create sex offender residency restrictions in the Garden State. Here are some details:
In a bid to prevent a 76-year-old sex offender and his mentally ill wife from being forced out of their home a week from today, the state Public Defender's Office filed a lawsuit yesterday contending municipalities have no power to establish "pedophile-free zones."
If successful, the lawsuit could invalidate dozens of local ordinances restricting where sex offenders may live. Alpha, Bloomfield, Cranford, Freehold, Middletown, Mount Olive, Phillipsburg, Pohatcong, Sayreville and Washington Borough are just a few of at least 46 municipalities that have adopted such restrictions.
Some recent related posts:
Booker reasonableness breakfast
As noted here at the Second Circuit Sentencing Blog, this morning from 9am to 10am, the Washington Legal Foundation is hosting in DC a program entitled: "A 'Reasonable' Reaction?: Judicial Review of Criminal Sentences after Booker v. U.S." As detailed in this invitation, the speakers are Ronald Tenpas, who is Associate Deputy AG in the DOJ, and Carmen Hernandez, who is President-Elect of the NACDL, and a continental breakfast will be served at this "media nosh."
If you cannot get to DC for Booker and bagels, a live webcast is available from the WLF website here.
Lethal southern hospitality
After a quiet fall during which only two defendants have been executed since Labor Day, yesterday execution chambers got back in action with two executions in two different Southern states within about 30 minutes of each other. As this AP article details, Florida executed Arthur Rutherford and Mississippi executed Bobby Glen Wilcher a little after 6pm last night.
In looking over state-by-state statistics for executions, one sees that 2006 is yet another year in which more than 80% of executions have taken place in Southern states. And, notably, right now the three non-southern states that are most "death penalty active" — California, Missouri and Ohio — have their capital systems tied up with lethal injection litigation. As I have suggested before, it appears that the lethal injection scrummages have made the reality of the death penalty in the United States even more of a regional story.
October 18, 2006
California's sex offender residency restriction proposition
Thanks to CrimProf Blog here, I see another great story about the legal questions surrounding sex offender residency restrictions. This story comes from California, and from this Contra Costa Times article exploring the proposition on the state's November's ballot, Proposition 83, which says that anyone required to register as a sex offender cannot live "within 2,000 feet of any public or private school, or park where children regularly gather." Here is a snippet:
To legal scholars and critics, including some sex-crime detectives and prosecutors, those words present serious concerns.... "There are difficult constitutional questions that are implicated by this law," said Derek Shaffer, executive director of the Stanford Constitutional Law Center.
About 70,000 registered sex offenders live in California communities. Another 17,000 are behind bars. Sex offenders, said Shaffer, could argue that Prop. 83 strips them of protected liberties -- although a challenge on those grounds failed to overturn an Iowa law that restricts sex offenders from living within 2,000 feet of schools and day care centers.
Some recent related posts:
California appellate court orders parole for murderer
Thanks to this post at How Appealing, we all can get the news and read the ruling in which a "California Court of Appeal panel ruled Tuesday that a seriously ailing 82-year-old man who pleaded guilty to murder in 1989 should be freed from prison, setting aside the governor's decision to deny him parole." The decision in In re Lee, No. B188831 (Cal. App. Oct. 17, 2006) (available here), is fascinating, and here is one notable passage:
We must therefore view the Governor's two reasons within the context of the other factors he must consider to see if some evidence shows Lee continues to pose an unreasonable risk to public safety. Applying that test, we find no evidence that Lee is likely to commit another crime or that his release would unreasonably endanger the public. Like the Governor, we do not minimize the seriousness of Lee's offenses 19 years ago, for which society has legitimately punished him. No reasonable possibility exists, however, that Lee will re-offend. Other than his offenses here, he has led a crime-free life. The dispute over the restaurant debt that motivated the shootings occurred almost 20 years ago. Weakened by the march of time trod by all mortals, Lee is now 82 years old and in poor health, leaving him to hobble from room to room. The two reasons the Governor cites — the nature of Lee's crimes and recent acceptance of responsibility — do not change those facts. We conclude the Governor’s reversal of the board’s decision is therefore not supported by some evidence.
Ken Lay's conviction vacated
Though presidents and Governor's rarely grant pardons anymore, abatement doctrines mean that the grim reaper still can: as detailed in this Reuters account, Judge Sim Lake yesterday "dismissed the conspiracy and fraud convictions of Enron Corp. founder Ken Lay because he died before he could appeal." For traditional media coverage, check out the Houston Chronicle, the New York Times and Washington Post; for blogosphere highlights and commentary, check out the WSJ Law Blog, White Collar Crime Prof Blog and Houston's Clear Thinkers.
Judge Lake's memorandum opinion is available here, and sentencing fans may be most interested in the effort by a claimed Enron victim to use the new Crime Victims' Rights Act (CVRA) to oppose vacating Lay's convictions. Judge Lake gave these arguments short shrift, but a news report indicates that victim plans to appeal. This part of the decision could become real interesting because the CVRA requires a circuit court to resolve a mandamus action brought pursuant to the CVRA very quickly.
Some recent related posts on victims' rights:
More Florida and Ohio lethal injection litigation updates
Florida has an execution scheduled for tonight and another next week, which is getting the lethal injection litigation revved up yet again in the Sunshine State. As detailed here, lawyers for the defendant scheduled to be executed tonight assert that courts need to review the state's lethal injection protocol because "a document released this week reveals the state made secret changes to the lethal injection process." The Florida Supreme Court unanimously rejected the defendant's claims yesterday. That means today will likely bring a set of frantic federal court filings.
Meanwhile, as ODPI details here, a district judge here in Ohio has stayed an Ohio execution scheduled for next week to permit the defendant to be included in an on-going Ohio lethal injection challenge brought by another death row defendant. An interesting and thoughtful opinion (available here) supports this decision, which notes Sixth Circuit and Supreme Court disagreements about some of the issues raised. It will be interesting to see if Ohio appeals this ruling and tries to move forward with next week's scheduled execution.
Ah, the joys of fresh federal filings in the fall....
October 17, 2006
What exactly is the Sixth Circuit rehearing in Vonner?
As first discussed here, late last week the Sixth Circuit issued an order granting en banc review in US v. Vonner (which, as detailed here, was a split panel decision in which the majority declared a within-guideline sentence unreasonable for "lack of adequate explanation"). As noted before, by taking Vonner en banc, the Sixth Circuit joins the Ninth Circuit in now having a big en banc case to use to provide its district courts with guidance on post-Booker sentencing.
But, now nearly a week after the Vonner en banc grant, I am a bit puzzled about what the Sixth Circuit wants or expects to cover in Vonner. As detailed here, when the Ninth Circuit went en banc it issued this lengthy order detailing what the en banc court was exploring (and welcoming amicus briefs on these issues). I have not yet seen a similar order from the Sixth Circuit in Vonner, though perhaps one might be forthcoming or has been issued and just is not yet posted for all to see.
I am perplexed in part because a colleague sent along the petition for (and opposition to) rehearing, and these papers do not effectively clarify exactly what is at issue in Vonner. I have provided these brief for downloading below, and I would welcome insights into exactly what folks think are the issues in play in Vonner.
The scattered law of sex offender residency restrictions
As previously discussed here and here, laws restricting where sex offenders can live and go have become very popular with states and localities. But, as noted here, there seem to be few resources that compile and assess the current state of the law. Thanks to CrimProf Blog, though, I see that the Dallas Morning News recently ran this strong article about the law of residency restrictions. Here are some snippets:
It's become a national game of one-upmanship: Which U.S. city can put the toughest living restrictions on registered sex offenders? And it's being played here in North Texas, where farm towns, affluent suburbs and urban centers alike are approving increasingly broad "no sex offender" zones. But lost in this race to ban sexual predators from American neighborhoods is a controversial civil rights question: Is it lawful to punish sex offenders who have already served their sentences?
As Dallas officials grapple this fall with whether to approve a sex offender ordinance, they'll do so with little legal clarity. A state senator is still awaiting a ruling from the Texas attorney general on the restrictions, which generally ban sex offenders with violent crimes or child victims from living within 1,000 to 2,000 feet of schools, day-care centers, parks and other child-friendly places. And across the country, the courts have sent mixed messages. Some have affirmed the local ordinances; others have overturned them.
The legal uncertainty surrounding sex offender residency restrictions, as well as the inevitability of continued litigation around these laws, presents an opportunity for an enterprising lawyer (or law student) interested in constitutional litigation. Any thoughtful lawyer or law student who starts a blog covering this field could likely become a leading national expert on this emerging legal topic within a matter of months. Any takers?
New and improved sentencing website(s)
I recently noticed that Families Against Mandatory Minimums (FAMM) has a new and improved website here. After a bit of pleasure surfing, I wondered whether there are any other new and/or improved websites that might be of special interest to sentencing fans. I hope readers in the know will use the comments or send me an e-mail with links.
Tracking the execution rate as lethal injection scrummages rage on
From Missouri (where a federal judge has now again rejected the state's revised lethal injection protocol), this article correctly observes that all the lethal injection litigation in 2006 has not dramatically impacted the total number of execution this year:
The nation's executioners have done a steady business in 2006 despite court-imposed bans in several states and unprecedented attacks on the lethal-injection method in individual cases around the country. Despite that legal scrutiny, the year-end total for executions will be very close to what it's been for two years — about 60 if executions currently scheduled are carried out.
The always-on-the-mark Debby Denno highlights that this is really a state-by-state story: "Deborah Denno, a professor at the Fordham University School of Law, said the spate of challenges to the lethal-injection method has had a major impact in some states and a minimal impact in others." As I detailed in this post, the lethal injection litigation has created a de facto execution moratorium in a number of states, but not in those states that typically have the most executions.
Some recent related posts:
- Uncovering lethal injection realities
- Regulating executions in California
- A lethal hearing (in the wrong place?)
- My lethal injection piece on SSRN
- How could (and should) Congress clean up the lethal injection mess?
- Lethal injection litigation creates de facto moratorium in Ohio and...