November 11, 2006
Thinking about sentenced troops on Veterans Day
On Veterans Day, I am thinking about all the veterans who, after serving our country in the military in support of our nation's commitment to liberty and freedom, discover that our sentencing laws give little or no credit for their service. I specifically have in mind the decorated soldiers Patrick Lett (story here) and Victor Rita (story here), both of whom now have their futures in the hands of appellate courts trying to figure out what Booker really means for federal sentencing.
More broadly, I wonder how many thousands of veterans are subject to all the severe collateral consequences that can often follow a conviction. For example, I wonder how many veterans are unable to vote because they are disenfranchised by state law or how many veterans cannot live where they want because of residency restrictions or how many can no longer purchase a firearm because of a prior felony.
Some related posts:
- My amicus effort to support our troops
- Should prior military service reduce a sentence?
- Lovely Rita, SCOTUS case...
- Why isn't there a prior good works guideline?
November 10, 2006
Is GPS tracking a better way?
I spoke at a sentencing seminar this morning, and the terrific speaker after me reviewed all the reasons why residency restrictions for sex offenders likely endanger, rather than enhance, public safety. (Astute readers will recall that Iowa's prosecutors, who have the most experience with these laws, came to this conclusion long ago as documented here.) Beyond the public safety consequences, the California experience with residency restrictions in Proposition 83 (details here and here) spotlights that these laws always engender copious litigation.
But another facet of Proposition 83 may not be quite as bad, though it is sure to also stir up some litigation: GPS tracking of certain offenders. Thanks to Crime & Consequences, I saw this interesting article at Wired News about GPS monitoring, titled "Attack of the Perv Trackers." Here are parts of a fine piece:
Just a few years ago, satellite tracking of convicts was a newfangled alternative to house arrest. Now, the number of American ex-offenders tracked through GPS-equipped ankle bracelets will likely triple to more than 30,000, thanks to the passage of a California ballot measure. California's Proposition 83, which easily passed Tuesday by a margin of 70 percent to 30 percent, requires many convicted sex offenders to be monitored by GPS for life....
At least 11 other states have recently considered GPS tracking legislation, with some inspired by the 2005 murder of a Florida girl, allegedly by a registered sex offender.... But there's a hitch: The ankle bracelets -- usually accompanied by digital-pager-size transmitters -- are hardly criminal-proof. Convicts can easily cut the bracelets off and run away as their probation officer gets an alarm and tries to contact the local police. For health reasons, the bracelets aren't designed to be permanent.
"GPS will not prevent a crime," said Steve Chapin, CEO of Pro Tech Monitoring, a manufacturer of GPS tracking devices. "It's a crime deterrent. It has proven to be a good tool, but you can't oversell it -- there's no physical barrier that it creates that can prevent a crime." Chapin said his Florida-based company tracks about 10,000 people, and he thinks other companies track a few thousand more. Offenders wear an ankle bracelet -- Chapin said it can be hidden under a sock -- and keep the transmitter nearby.
There are an estimated 63,000 to 90,000 sex offenders convicted of felonies and misdemeanors in California. According to Chapin, it's possible that about 20,000 of them will need GPS monitoring under the new law. Chapin expects the state to adopt "active" monitoring, which tracks offenders in real time and sends out alerts if they go somewhere they're not supposed to, such as a school. The alternative is "passive" tracking, which produces reports about where offenders have been, not where they are right now. Currently, Pro Tech charges $6 to $8 a day for active monitoring, and $4 to $5 a day for passive monitoring, equipment included. At that rate, California can expect to fork out between $80,000 and $160,000 per day to watch its sex offenders....
GPS tracking technology allows users to create "geofences" to mark forbidden "hot zones." The monitoring systems can even be programmed so that alarms only go off if an offender spends a certain amount of time in an outlawed area instead of, say, simply driving through it at high speed on the way to somewhere else.
GPS tracking has its critics. The American Civil Liberties Union has been skeptical, although at times intrigued by an alternative to incarceration.... [A] new study of more than 75,000 Florida convicts found that both GPS monitoring and old-fashioned, house-arrest electronic monitoring (the kind Martha Stewart endured) made convicts more likely to toe the line. "Our conclusion is that it does help protect public safety, that these offenders are less likely to get in trouble," said study co-author Kathy Padgett of Florida State University.
Lots of crack testimony now posted by USSC
As discussed here and here, the US Sentencing Commission has scheduled for next week a Public Hearing on "Cocaine and Federal Sentencing Policy — 2006." The USSC's website now has links to much of the submitted testimony along with the hearing agenda at this link.
Unsurprisingly, most of the posted testimony — all of which merits a read for folks interested in these issues — is critical of the existing federal structure for crack and powder cocaine sentencing. But Chuck Canterbury of the Fraternal Order of Police in this written testimony sets out the arguments for preserving the status quo or even raising penalties for powder cocaine offenses to deal with any disparity concerns.
California's defense of its lethal injection protocol
As detailed in this Los Angeles Times article, California officials are robustly defending their lethal injection protocol in the federal litigation that has halted executions in the state. Here are the basics:
The California attorney general's office issued a ringing defense of the state's lethal injection procedure Thursday, maintaining in a court brief that "there is no evidence that any prior execution resulted in the unnecessary and wanton infliction of pain." The state's brief was filed with U.S. District Judge Jeremy Fogel, who conducted a four-day hearing in September examining the contentions of death row inmate Michael Morales that California's lethal injection protocol violates the constitutional bar against cruel and unusual punishment. Fogel is expected to rule this year on the constitutionality of the state's procedure.
FAMM's view of the new political lanscape
I have discussed here and here the new (and uncertain) federal sentencing dynamics in the wake of Tuesday's election results. Over at the website of Families Against Mandatory Minimums (FAMM), Julie Stewart has this message on the topic. Here are some highlights:
Many Democratic members of Congress with whom FAMM works were re-elected and will assume powerful leadership positions when Congress reconvenes in January. Rep. John Conyers (D-Mich.) will become Chair of the House Judiciary committee, replacing sentencing reform foe Rep. F. James Sensenbrenner (R-Wis.), who orchestrated attacks on judicial discretion and sponsored the egregious “Booker-fix” bill, among many other costly and punitive sentencing bills. Rep. Robert “Bobby” Scott (D-Va.) will become Chair of the House Subcommittee on Crime, Terrorism and Homeland Security, which is the committee where sentencing bills begin.
The positive relationships we have built with Republican lawmakers like Rep. Bob Inglis (R-S.C.) and Rep. Jeff Flake (R-Ariz.), who were re-elected, will also continue. And, of course, we will keep reaching out to more Republicans to build a broad consensus for sentencing reform, which is still necessary to win reforms. The changing of the guard in judiciary and subcommittee leadership may be the key to opening doors for increased bipartisan collaboration on smart sentencing bills. There seems to be growing support for cost effective, fair and proportionate sentencing laws among some Republicans and Democrats.
H.R. 1704, the “Second Chance Act,” has bipartisan support and has already cleared the House Judiciary committee, although some of the provisions FAMM was most eager to see enacted were stripped from the bill. As previously reported, the likelihood of the Second Chance Act’s passage during the upcoming “lame-duck” session remains uncertain. But even if does fail, its broad bipartisan support will likely continue in the 110th Congress, hopefully carrying it towards final passage.
There is renewed hope for bipartisan collaboration on other sentencing reform issues: crack cocaine sentencing, broader mandatory and sentencing guideline reform and perhaps even a second look at parole. For the first time in many years, FAMM will be able to dedicate more of our time and resources to furthering bills that can bring relief to thousands of FAMM members affected by harsh federal sentencing laws, rather than constantly battling to stop harmful legislation, like Rep. Sensenbrenner’s “Booker-fix” legislation.
November 9, 2006
Tenth Circuit affirms two above-guideline sentences
Providing an interesting compliment to the Third Circuit's two affirmances of within-guideline sentences today (details here), the Tenth Circuit this evening has affirmed two above-guideline sentences in US v. Bishop, No. 05-3173 (10th Cir. Nov. 9, 2006) (available here) and in US v. Valtierra-Rojas, No. 05-3390 (10th Cir. Nov. 9, 2006) (available here).
As I have previously documented here, on appeal the circuits judging reasonableness care a lot about sentencing within the guidelines range ... unless the sentence imposed is higher than that range.
More on Proposition 83 in California
I suspect that the development and application of California's Proposition 83, the ballot measure that passed overwhelmingly and seeks to crack down on sex offenders, will be a great story to watch. As noted here, one provision has already been enjoined, and the new Sex Crimes blog has these posts covering all the developments:
- Different Approaches to Sex Offenders
- Residency Restrictions from Proposition 83 Enjoined
- More Coverage of Proposition 83 around the Blogosphere
In addition, this post at Crime & Consequences reminds me of an intriguing wrinkle: the newly elected Attorney General is former California Governor Jerry Brown. This newspaper story provides some background on new AG Brown, aka "Governor Moonbeam."
A Booker pair from the Third Circuit
The Third Circuit today issued two notable opinions, both authored by Judge Ambro, about post-Booker sentencing and reasonableness review. Here are the basics from the decisions' initial paragraphs:
US v. Jackson, No. 05-4091 (3d Cir. Nov. 9, 2006) (available here): "We address in this case further aspects of the sentencing process for our Circuit in the wake of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). In so doing, we affirm the sentence imposed by the District Court."
US v. Charles, No. 05-5326 (3d Cir. Nov. 9, 2006) (available here): "Randolph Charles appeals his sentence from a conviction in the United States District Court for the Middle District of Pennsylvania for possession of a prohibited object by an inmate. At issue is whether his sentence—a prison term of 46 months, which is at the highest end of the Federal Sentencing Guidelines range for the underlying offense—is reasonable in light of United States v. Booker, 543 U.S. 220 (2005). We review the sentence for reasonableness and, for the reasons set forth below, affirm it."
Notably, in both cases, within-guideline sentences were imposed and affirmed over the defendants' objections.
Pondering the USSC's upcoming crack/powder hearing
As first noted here, the US Sentencing Commission has scheduled for next week a Public Hearing on "Cocaine and Federal Sentencing Policy -- 2006." This USSC press release details that this important hearing will be all day on Tuesday, November 14 at the Georgetown University Law Center. I still have not seen information about who will be testifying, but the press release says the USSC plans to "hear from representatives of law enforcement, the legal community, the judiciary, interested community groups, and the scientific community to address issues associated with federal cocaine sentencing policy."
This hearing was sure to be interesting even without new wrinkles from current events. But, just in the last week, the Supreme Court has taken up a crack sentencing case in Claiborne and now control of Congress has changed hands. I cannot help but wonder how the Justice Department's approach to this hearing might be impacted by these recent developments. Similarly, what the US Sentencing Commission wants and hopes to achieve through this hearing may be a lot different today than it was just last week.
Some recent related posts:
- The facts and decisions in Claiborne and Rita
- The district court sentencing in Claiborne and cert briefing
- Two decades of crack(ed) sentencing
- A bemusing, and ironically pernicious, assault on NPR's crack story
- A Senate bill to reduce crack/powder disparity
- Nice Slate commentary on crack sentencing
UPDATE: The USSC's website now has the agenda for its crack hearing at this link. The agenda shows eight panels and over 20 speakers (all of whom are leaders on these issues). Should make for quite a day. I am hoping this event will end up getting a lot of press, but only time will tell.
November 8, 2006
California's new sex offender law enjoined
As detailed in articles here and here, a federal judge in California today "blocked enforcement of key provisions of Proposition 83, the ballot measure passed overwhelmingly by voters that's meant to crack down on sex offenders, including limiting where they may live." Here are some more details:
U.S. District Judge Susan Illston, ruling on a lawsuit filed a day after the election, said the measure "is punitive by design and effect" and likely unconstitutional. The so-called Jessica's Law prohibits registered sex offenders from living within 2,000 feet of a school or park — effectively prohibiting parolees from living in many of California's cities. It also would require lifetime satellite tracking for paroled rapists, child molesters and other felony sex criminals upon their release from prison....
The scope of the initiative's impact largely hinged on whether it would apply retroactively to the state's roughly 90,000 registered sex offenders. Supporters and critics had expected the expanded residency requirements to be challenged in court. Judge Illston issued a temporary restraining order against the residency requirements of Proposition 83....
John Doe, as the plaintiff was named in court documents, argued that the measure could only apply to sex offenders registered after the law was passed. Illston did not address whether it could apply to those who registered after Nov. 7. Another unknown is what to do with registered sex offenders who violate the law. The measure does not add any crimes to the state's criminal statutes. "There are a million questions left open," said Dennis Riordan, the lawyer who filed the lawsuit.
Nathan Barankin, a spokesman for Attorney General Bill Lockyer, said the state would vigorously defend the law. "We won't know the true scope of Prop. 83 until the courts have resolved all the litigation," Barankin said. "Our goal is to make sure those questions get answered as quickly as possible."
Under the measure's language, most suburban and metropolitan areas of the state would be off limits to sex offenders. The proposition, according to the suit, "effectively banishes John Doe from his home and community for a crime he committed, and paid his debt for, long ago." The suit says the proposition forces the former convict "from the home that he owns with his wife and his community of over 20 years."
It looks like California voters have ensured that the new Sex Crimes blog will have plenty of legal developments to cover and discuss.
UPDATE: Jonathan Soglin at Criminal Appeal has more here on developments in Califonia surrounding Proposition 83, aka Jessica's Law.
Fanfan's guideline sentence affirmed by First Circuit
Ducan Fanfan is not quite a name that will live in Supreme Court history, but sentencing fan(fan)s surely recall that his case was the companion to the Booker case that brought down the mandatory federal guidelines. Of course, the remedy selected by SCOTUS in Booker was not all that Fanfan might have hoped(hoped): the magical advisory guideline remedy enabled the district court to change Fanfan's initial sentence of 78 months to a new sentence of 210 months' imprisonment.
Today, in US v. Fanfan, No. 05-1826 (1st Cir. Nov. 8, 2006) (available here), the First Circuit affirms the 210-month within-guideline sentence. Notably, most of the arguments on appeal are mostly about guideline calculations and legal issues. It appears that Fanfan did not on appeal effectively attack the reasonableness of his long sentence in light of the 3553(a) factors. The Fanfan decision at one point says simply "Fanfan makes no showing that the outcome was unreasonable," and finishes with this notable (and questionable) assertion:
That the new sentence is much longer than the old proves nothing; the old one was constrained by a view of sentencing law from which the Supreme Court has retreated. That the sentence is quite long is a result of determinations made by Congress, which we are not free to ignore.
I suspect that Fanfan may appeal again to the Supreme Court, and I also suspect that the Court might GVR this case once it resolves its new Claiborne and Rita cases on the dynamics of Booker appellate review. Put another way, the case of Fanfan likely is still not yet completely done(done).
Could Ohio and Wisconsin chart a path to a better death penalty?
One of many interest sentencing stories within the election results concerns the future of the death penalty, especially in states outside the deep south. Specifically, new days may be dawning for the death penalty in two Midwestern states, Ohio and Wisconsin.
As detailed in this article, the new day in Wisconsin results from voters' approval of a non-binding referendum supporting the idea of capital punishment in Wisconsin. The article explains why this referendum is unlikely to result in a new death penalty law in the near future. But the referendum does ensure continued discussion of a "modern" death penalty statute in a state with a long anti-death-penalty history.
The story in Ohio is less visible, but no less interesting. Over the last three years, Ohio has been second only to Texas in the number of executions. This has partly resulted from Republican state officials pushing hard on post-conviction litigation against the backdrop of a large death row population. But now, for the first time since Ohio resumed executions in 1999, a Democrat will be Ohio's governor and Ohio's attorney general. Though I doubt Ohio's new democratic executive branch will seek to undue the death penalty in Ohio, the pace of execution could be greatly influenced by the change in personnel. Also, there might be new opportunities for death penalty abolitionists in Ohio to join forces with some pro-life Republicans in the state legislature who have previously expressed concerns about state killing (details here).
UPDATE: Karl Keys has some death-penalty-focused assessments of the election results here at Capital Defense Weekly. And ODPI here has some very notable quotes concerning the Ohio's death penalty from Ohio's new Attorney General Marc Dann made during an April 2006 debate.
The big other branch questions after the election
In response to prior posts here and here, commentators have suggested that Democrats now in power in Congress are unlikely to push significant sentencing reform that could subject them to attacks for being "soft on crime." Though I am hopeful that split federal government might lead to a more balanced sentencing policy discussion, I think the really big questions now are how the sentencing work of other branches are impacted by the changes in Congress:
1. Will DOJ continue to push for topless guidelines? Though I was never sure the Justice Department really wanted a topless guidelines system, its express advocacy for this sort of Booker fix has influenced both the politics and practices of the post-Booker world. I am eager to see if, when and how DOJ might change its Booker fix tune in light of the new balance of power in Congress.
2. Will the Sentencing Commission and federal judges be bolder? Over the last two years, I have repeatedly heard the USSC and federal judges express concerns about possible congressional backlash to any pro-defendant changes in the federal sentencing system. Sentencing Commissioners have suggested Congress would might react poorly if the USSC made a bold move on the crack/powder guidelines. The high within-guideline sentencing rate after Booker reflects, in part, district judges' concerns about Congress's response if judges too frequently varied from the guidelines. Might these inter-branch dynamics change significantly now?
A prosecutorial perspective on Booker
I was recently sent this link to a fascinating Booker resource: the September 2006 issue of the US Attorneys' Bulletin, which has a series of articles on Booker written from a prosecutorial perspective. Here are the articles you will find:
- Booker 101 by Ed Hagen
- Responding to the Fast-Track Disparity Argument by Paul W. Hahn
- Preparing for a Sentencing Hearing by Lori A. Hendrickson
- The Presumption of Reasonableness for Within-Guidelines Sentences by Elizabeth A. Olson
- Guideline "Departures" at Sentencing by Robert Don Gifford
- Off The Beaten Path: A Case Study of Unusual Post-Booker Litigation In United States v. Harper by Traci L. Kenner
Figuring out election results for sentencing fans
It is now officially the day after election day, and right now I am probably the only person on the planet currently interested in finding out how this set of sentencing-related direct democracy initiatives fared at the polls. As of this writing (just after midnight), I cannot find any results for any of these intriguing initiatives, but I hope to update this post with results in the morning. Readers are, of course, encouraged to post result in the comments.
On another front, it appears that the Democrats will be taking over the House of Representatives. As suggested here, this could have an impact not only on the prospects for some sort of Booker fix, but also on the post-Booker work of judges and the US Sentencing Commission. Can anyone report who will likely take over as Chair of the House Judiciary Committee and whether that person may have a serious interest in sentencing issues?
UPDATE: Here is a report on two of the initiatives I was watching from a helpful reader:
In Rhode Island, voters approved Question 2, which automatically restores voting rights to people with felony convictions upon leaving prison. Previously, felons on probation or parole were also disenfranchised. This is probably the most sweeping change we've seen in this area in decades, since most of the changes in recent years have involved reforms to post-sentence restrictions (not that those aren't important, of course). And to my knowledge, this is the first time a public referendum has endorsed expansion of voting rights in this area.
Also, on sentencing, Arizona voters approved Question 301 by 58% to 42%, which prohibits persons charged with methamphetamine offenses from being diverted into the state's treatment diversion program adopted by the voters in 1996. Thus, methamphetamine is the only drug excluded from this option.
November 7, 2006
Latest OSJCL issue with lots of sentencing coverage
As first noted here, the Fall 2006 issue of the Ohio State Journal of Criminal Law includes a symposium on state sentencing after Blakely. I am now pleased to report that the entire Fall 2006 OSJCL issue is available on-line here. As detailed below, among a number of terrific pieces in this issue, there are some death penalty articles (as well as the Blakely symposium articles) that ought to be of great interest to sentencing fans:
Blakely Symposium Articles:
- Douglas A. Berman & Steven L. Chanenson, The Real (Sentencing) World: State Sentencing in the Post-Blakely Era
- Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible
- Richard S. Frase, Blakely in Minnesota, Two Years Out: Guidelines Sentencing is Alive and Well
- Michael A. Wolff, Missouri's Information-Based Discretionary Sentencing System
Death Penalty Articles:
- Eric M. Freedman, Fewer Risks, More Benefits: What Governments Gain by Acknowledging the Right to Competent Counsel on State Post-Conviction Review in Capital Cases
- Rory K. Little, The Eyes of the Beholders
- Jeffrey Fagan, Death and Deterrence Redux: Science, Law, and Causal Reasoning on Capital Punishment
Oral argument in Burton retroactivity case
Now the Supreme Court oral argument transcript in Burton v. Stewart is available online at this link. Once again I will update this post if/when any parts jump out as extra significant, and readers should feel free to use the comments for this purpose. Also, the National Appellate Journal's on-line blog edition has these helpful summaries of both James and Burton along with links to the transcripts.
UPDATE: This AP report on the two arguments in the Supreme Court today has this telling lead to set up its discussion of Burton:
The Supreme Court was asked Tuesday to lop 21 years off the 46-year sentence of a Washington state man for raping a teenager, in one of two cases the court dealt with involving long prison terms.
I am pretty sure the question presented in Burton technically was not "Should this Court lop 21 years off the 46-year sentence of a Washington state man for raping a teenager?" But as well all know, in the media, if it bleeds it leads.
Oral argument in James ACCA case
Thanks to How Appealing, I now see that today's Supreme Court oral argument transcript in James v. United States is now available online at this link. I will update this post if/when any parts jump out as extra significant, and readers should feel free to use the comments for this purpose.
UPDATE: Tony Mauro alerted me to this intriguing passage in the James transcript:
JUSTICE BREYER: Why doesn't anybody -- you know, it sounds to me if you're worried about whether there's a specific serious risk of harm, you could find out. Look at the convictions in Florida for attempted burglary, look at the convictions for burglary, and see if there are involved a number of cases in which people are harmed is roughly similar. We have all these law professors who like statistics. Now they like law in economics and everything. So why don't they go out there and count, and then we'd actually know, instead of sitting here and trying to figure out something I know nothing about. I've never been involved in the law of burglaries. I don't know how burglaries operate. I suspect some people are hurt, but rather than my suspicious why don't we find out what the facts are?
JUSTICE GINSBURG: We're not going to be able to do that in time to decide this case.
JUSTICE BREYER: But wouldn't it be, as a matter of approaching --
JUSTICE SCALIA: It would also keep the professors from other mischief.
Seventh Circuit reverses another below-guideline sentence
The Seventh Circuit today in US v. Repking, No. 06-1410 (7th Cir. Nov. 7, 2006) (available here), reversed another below-guideline sentence as unreasonable. In Repking, a bank president faced an advisory guidelines range of 41 to 51 months' imprisonment, and a government recommendation of 24 months due to substantial assistance, but "the district court ultimately sentenced him to just one day of imprisonment, a total of three years' supervised release, and a $100,000 fine" along with an order requiring the defendant to serve "six months on home confinement and perform 900 hours of community service."
The government appealed and here is how the Seventh Circuit concludes its extended analysis of the district court's sentencing work:
In the end, although Judge Reagan did recite and apply the § 3553(a) factors, the sentence imposed cannot stand. The factors Judge Reagan gave the most attention to — Repking's charitable works and restitution — were overstated, and the other reasons the judge gave —including the social stigma of being a convicted felon and the bar on obtaining federal jobs — are normal incidents of committing bank fraud. The ordinariness of Repking's case makes it more like United States v. Wallace, in which we vacated the probation-only sentence given for a defendant who faced a guidelines range of 24 to 30 months for a fraud offense that involved $400,000 of intended loss, and United States v. Crisp, in which the Eleventh Circuit held that the district court provided insufficient reasons to justify a five-hour term of imprisonment for a defendant who defrauded a small bank out of close to $500,000. See also United States v. Godding, 405 F.3d 125, 125, 127 (2d Cir. 2005) (expressing concern that oneday term of imprisonment did not reflect magnitude of theft of nearly $366,000). As we said at oral argument, we leave open the possibility that a one-day sentence of imprisonment might be justifiable for a defendant who rivals Robin Hood; but Repking, a millionaire who stole for himself and his friends, is not that defendant.
Early report on Burton
Over at SCOTUSblog, Lyle Denniston has this early report on today's Burton argument. Lyle's report suggests that Burton may become a major ruling on habeas law rather than a major ruling on the meaning of Blakely and Apprendi. We should have a transcript later today so we can see first-hand how the Justices are approaching this case.