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October 31, 2006

Sentencing-related initiatives this election season

I know of at least three sentencing-related direct democracy initiatives that state voters will consider next week:

Are there any other notable direct democracy proposals going to voters next week that involve sentencing issues? 

UPDATE:  A helpful reader pointed me to this site discussing Arizona's Proposition 301, which apparently would "change state law and make probation one of several sentencing options — not the only one — if a person is convicted of an offense involving the personal use or possession of methamphetamine."

October 31, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

A Halloween treat for the sentencing ghoul

Gallows This morning's Washington Post has this intriging article discussing a piece of sentencing history that is about to be available for early holiday shoppers:

It could be the perfect Halloween treat — or trick — for that person who already has everything else: a gallows.  About to be auctioned is the gallows that was built to hang anarchist labor organizers convicted in the Haymarket Affair in the late 19th century.  It continued to be used for decades to hang some of Chicago's most infamous criminals....

There were at least 40 hangings on the gallows, done in the hallway between cellblocks at the jail so other prisoners could watch.  Famous executions included those of Patrick Prendergast, a journalist hanged in 1894 for assassinating Chicago Mayor Carter Harrison, and Johann Otto Hoch, a serial killer who used aliases to marry and then murder at least 50 women....

James Acker, professor and co-founder of the National Death Penalty Archive at the State University of New York at Albany, said most Americans do not know that hanging is still legal in Washington state and New Hampshire, as an alternative to lethal injection, and was only recently outlawed in Delaware. It is still a major form of execution in other parts of the world, including the Middle East and Japan. "Most people associate it with the Wild West," he said. "It resonates with the 19th century and cowboys, and there's also the very negative association with extrajudicial lynchings in the South."

Acker said he hopes whoever ends up buying the gallows displays it appropriately. "This could be a legitimate mechanism for preserving a bit of this country's history with the death penalty, so future generations will be able to look back on these practices and make whatever judgments they will," he said. "But there's also the risk something like this could be cheapened, vulgarized or marketed for whatever entertainment value it might have."

Jane T. Bohman, executive director of the Illinois Coalition to Abolish the Death Penalty, said she hopes the gallows auction gets people thinking about the death penalty in general. "It's interesting that this comes at the same time there is considerable controversy over lethal injection," she said. "The gallows are kind of a jolt from the past, when executions were public. Now we have this idea that they're supposed to be painless, which is also kind of contradictory since they're supposed to have a deterrent effect."

October 31, 2006 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

October 30, 2006

Reply brief in Burton on Blakely retroactivity

I just received a copy of the petitioner's reply brief Burton v. Waddington, the case to be argued next week concerning Blakely retroactivity.  Available for download below, here is how it begins:

The consistent theme running throughout the State's brief — as well as its amici's — is a persistent refusal to come to grips with this Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).  The State suggests that Blakely was not dictated by Apprendi because Apprendi left the meaning of "statutory maximum" unclear.  But the State simply ignores the passages in Apprendi that specifically and repeatedly elucidated the "statutory maximum" concept so as to foreordain the result in Blakely.  Furthermore, the State insists that Blakely — even if it did produce a new rule — did not produce a watershed rule because the decision deals only with sentencing offenders "whose guilt already has been determined." Resp. Br. 34.  But the State ignores that the fundamental point of Blakely, like Apprendi before it, is that courts may not sentence defendants for transgressions for which juries have not found them guilty.  Once the real meanings of Apprendi and Blakely are taken into account, it is clear that the Teague doctrine does not bar Petitioner from seeking relief in this case. And none of the side issues that the State raises prevents this Court from so holding.

Download burton_v_waddington_reply_brief_for_the_petitioner.pdf

Some related posts on Blakely retroactivity:

October 30, 2006 in Apprendi / Blakely Retroactivity | Permalink | Comments (0) | TrackBack

A new blog on legal developments relating to sex offenses

I few weeks ago here, I suggested that any thoughtful lawyer who starts a blog covering sex offender sentencing and residency restrictions could likely become a leading national expert on this emerging legal topic within a matter of months. My claim will now be put to the test as today the Sex Crimes Blog joins the blogosphere.  As detailed in this post, the goals of this new blog are to:

  1. compile news and legal developments about the criminalization and punishment of sex offenses in the United States.
  2. offer legal opinions about developments in the laws regulating and punishing sex crimes.
  3. provide a resource for people doing research and/or writing about sex crimes.

October 30, 2006 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

A bemusing, and ironically pernicous, assault on NPR's crack story

In this post, Eugene Volokh launches a bemusing, but ironically pernicious, assault on NPR's recent coverage of crack sentencing disparities (which I noted here).  Though Eugene cautions in the post that he is "not a drug policy expert," I am surprised that his post reflects a lack of awareness of the long-standing debate over crack/cocaine sentencing in the federal system.

What makes Eugene's post ironically pernicious is that he assails NPR for sloppy reporting and analysis.  But his post suffers from the same problems.  Eugene attacks NPR for "vague assertions" and for not giving listeners "sensible analysis."  But Eugene's post then makes the (unfounded) assertion that folks working on these issues are "just picking numbers out of thin air."  And he does not point his readers to the ample materials available to help his readers engage in a sensible analysis of crack/cocaine sentencing in the federal system.

As anyone involved in federal sentencing should know, much of the current debate on crack/cocaine sentencing in the federal system builds on the extensive work that has been done by the US Sentencing Commission over the last decade.  Specifically, the USSC has issued extensive reports to Congress in 1995, and in 1997 and again in 2002.  Notably, this work by the USSC and other related work was highlighted by a major ACLU report on Friday and has been a regular topic on this blog.  I am hopeful Eugene might update his post by referencing some of these materials so as foster "sensible analysis" over more "vague assertions."

UPDATE:  Eugene has kindly added a link to this post, and I can indirectly return the favor by providing below a more organized set of links for anyone eager to conduct a sensible analysis of crack/cocaine sentencing in the federal system:

USSC Reports:

Other more recent crack reports

October 30, 2006 in Drug Offense Sentencing | Permalink | Comments (3) | TrackBack

Rough monday for defendants in the Seventh Circuit

Even with an extra hour of sleep this weekend, Mondays can often be rough for everyone.  But today was an especially tough day for criminal defendants in the Seventh Circuit, where I see four criminal convictions and sentences affirmed.   

Sentencing folk will be most interested in US v. Wurzinger, No. 05-3803 (7th Cir. Oct. 30, 2006) (available here).  Wurzinger includes some discussion of the circuit's presumption of reasonableness for within-guideline sentences, and an extended analysis of the defendant's argument that his sentence is unreasonably long because he is likely to die in prison.  Here are some notable passages from Wurzinger (with cites omitted):

There is a worthy tradition that death in prison is not to be ordered lightly, and the probability that a convict will not live out his sentence should certainly give pause to a sentencing court. Wurzinger’s key argument is not the nonstarter that "age per se is a mitigating factor" (though he does attempt that argument as well), but that a sentence of death in prison is notably harsher than a sentence that stops even a short period before.  Death is by universal consensus a uniquely traumatic experience, and prison often deprives defendants of the ability to be with their families or to otherwise control the circumstances of death....

While we say nothing about whether a lower sentence would have been equally reasonable, age and illness do not, in the face of the circumstances presented here, make Wurzinger's sentence unreasonable.  While some of the district court's comments were a mite strange — most notably the claim that Wurzinger, at fifty-eight, was "a pretty young guy" (Sentencing Tr. at 15) — on the whole, it offered a reasonable explanation of why Wurzinger's conduct justified a sentence at the top of the recommended guidelines range.

October 30, 2006 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

Lots to read around the blogosphere

Sentencing fans have lots of interesting reading around the blogosphere to start the week.  For folks focused on the death penalty, there's a lot of new stuff worth reading at Ohio Death Penalty Information and StandDown Texas Project.  And, for lots of coverage on a range of other issues, check out new posts at:

October 30, 2006 | Permalink | Comments (0) | TrackBack

Understanding the circuits' anti-defendant inclinations

Based on my tracking of reasonableness review outcomes after Booker, it is hard not to sense an anti-defendant inclination in the pattern of pro-prosecution outcomes.  Though I am troubled by such tilt, cases like US v. Jackson, No. 06-5258 (6th Cir. Oct. 30, 2006) (available here), spotlight why there can often been an anti-defendant atmosphere in the circuit courts.

In Jackson, the defendant apparently got a lot of breaks in a plea deal with the prosecutor and also successfully convinced the district court to impose a below-guideline sentence.  Still unhappy, the defendant appealed the reasonableness of his sentence, apparently without any evidence to support his assertion that his sentence was unreasonable.  After reviewing Sixth Circuit law, the Jackson court has this to say:

It appears that Jackson is simply unhappy with his sentence, despite the fact that it is lower than the statutory maximum (120 months) and the applicable Guidelines range (84-105 months). The fact that the district court did not give the defendant the exact sentence he sought is not a cognizable basis to appeal, particularly where the district court followed the mandate of section 3553(a) in all relevant respects.  Because the district court adequately considered the factors set forth in section 3553(a), we hold that his sentence was reasonable.

October 30, 2006 in Booker in the Circuits | Permalink | Comments (4) | TrackBack

The unintended consequences of residency restrictions

California voters, as noted here, will next week consider Proposition 83, which restricts any registered sex offender from living "within 2,000 feet of any public or private school, or park where children regularly gather."  Today, the Los Angeles Times has this long article discussing some unintended consequnces of Iowa's similar sex offender residency restriction.  Here is a snippet:

[M]uch of urban Iowa is off limits to those whose past includes a sex crime against a minor.  As Californians prepare to vote next week on Proposition 83, which would impose a similar residency ban, Iowa is becoming an example of the unintended consequences of such measures.

Prosecutors, police officials and even victims rights groups say the crackdown has backfired, driving some offenders into rural towns and leaving others grouped at motels, campgrounds, freeway rest stops or on the streets.  Many have simply gone underground, authorities say, with more than twice as many registered sex offenders now considered missing than before the law took effect.

Some recent related posts:

October 30, 2006 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

October 29, 2006

Scary(?) late October sentencing highlights

October has been quite a sentencing month.  I recapped the first half of the month here, and now below I have taken advantage of today's extra hour to provide highlights from the second half:

BOOKER CIRCUIT DEVELOPMENTS AND COMMENTARY

OTHER FEDERAL SENTENCING DEVELOPMENTS AND COMMENTARY

HIGH-PROFILE FEDERAL SENTENCING AND COMMENTARY

DEATH PENALTY DEVELOPMENTS AND COMMENTARY

SEX OFFENDER DEVELOPMENTS AND COMMENTARY

October 29, 2006 in Recap posts | Permalink | Comments (0) | TrackBack