November 18, 2006
Who will seek clemency for clemency advocate?
Perhaps it is fitting that, during a lunch break of a great conference organized by Austin Sarat (who continues to do great clemency work), I see this interesting article from California about an investigation of a clemency advocate:
State agents have searched a San Francisco apartment for evidence that a former criminal defense investigator, working on the appeals of four death penalty cases, forged statements from jurors and others involved in the cases, Attorney General Bill Lockyer's office said Friday. In legal papers accompanying the search warrant, an agent with Lockyer's office said documents and computer files at Kathleen Culhane's home could provide evidence of crimes, including forgery and perjury.
Allegations that Culhane had fabricated statements from jurors first came to light in February when lawyers for Death Row inmate Michael Morales withdrew declarations from five jurors and a witness supporting his petition for clemency. Morales, convicted of murdering a young woman near Lodi in 1981, later won a stay of execution from a federal judge, who is now considering his challenge to the state's procedures for lethal injection.
The state-funded Habeas Corpus Resource Center, where Culhane worked as an investigator from 2001 until mid-2005, subsequently withdrew declarations she had submitted in other capital cases. Friday's announcement by Lockyer's office was the first official indication that Culhane could face criminal charges. "It's clear they're going to prosecute her and try to make a symbol of her,'' said Culhane's lawyer, Stuart Hanlon. He said Culhane, who has "dedicated her life to fighting against the death penalty,'' maintains her innocence and will fight to vindicate herself.
Hanlon said state agents showed up Thursday at the apartment of Culhane's brother, apparently unaware that she had moved out, and seized computers and other items. In a sworn affidavit that was used to obtain the search warrant, John Porbanic, an agent in the attorney general's office, said former jurors, witnesses and others whose names appeared on 22 declarations submitted by Culhane between 2002 and February 2006 had all denied signing the documents.
Long sentence for prominent cyber-sex offender
As detailed in articles here and here, Brian Doyle, the former deputy press secretary for Homeland Security, was sentenced to five years in Florida state prison for inappropriate e-mails he sent to a deputy who he thought was a 14-year-old girl. Here are some of the interesting details:
After more than five hours of emotional testimony from Doyle, his friends and family, Polk County Circuit Court Judge J. Dale Durrance handed down the sentence, which includes 10 years of probation and requires Doyle to register as a sex offender.... Much of the defense's witness testimony surrounded around Doyle's rough childhood -- he was the youngest of nine children who lived in poverty with an alcoholic, abusive father who rarely worked. Doyle has been treated for depression and friends testified they thought he was sinking into a depression again....
But prosecutor Brad Copley told the judge they were not there to judge Doyle's life, they were there to judge the crimes. In one of Doyle's conversations with the deputy he knew as "Ashlynne" he said: "hey it is illegal ... and it would be exciting and forbidden ... you are young -- illegal -- and gorgeous. and it would be great. fun. food, laughter, talk and yes sex." "He knew what he was doing was wrong," Copley said.
Defense attorney Barry H. Helfand asked the judge to spare Doyle the five-year imprisonment and instead allow him to get treatment. Doyle, who pleaded no contest in the case, originally faced up to 115 years in prison. Doyle told the judge the worst punishment was having his friends and family in court. "That's a shame I will carry forever," he said. Durrance acknowledged Doyle's good deeds, saying, "You've done a lot of good in your lifetime." Under the September plea deal, Doyle could have received only probation. But in the end, Durrance chose not to go with the lesser sentence.
Final Enron sentencings
As detailed in this Houston Chronicle story, two final Enron executives learned their sentencing fate on Friday. Here are the basic details:
Two former Enron executives who pleaded guilty to crimes and helped prosecutors pursue others in the scandal-ridden company learned their punishments today. Michael Kopper, former Enron finance chief Andrew Fastow's onetime top lieutenant, will serve three years and one month in prison followed by two years probation for helping scam the company out of millions of dollars while manipulating its books, U.S. District Judge Ewing Werlein ruled today. Shortly thereafter, Werlein sentenced former Enron investor relations chief Mark Koenig to 18 months in prison followed by probation for two years for helping top management mislead investors about the company's financial health.
November 17, 2006
Riffing on mass incarceration
After an amazing afternoon discussing miscarriages of justice in balmy Cambridge, I see that a number of folks have followed up this post about mass incarceration with interesting insights. In addition to some thoughtful comments to the original post, over at the WSJ Law Blog there is introspection here about whether white-collar sentences are too long. Also, the Ninth Circuit Blog here returns here to lamenting "the Bureau of Prisons policy of shorting federal prisoners of seven days a year of good time credit."
The realities of mass US incarceration
In a few hours, I will be heading off to Boston to participate in a weekend workshop at Harvard Law School entitled "Making Sense of Miscarriages of Justice." I will be talking about what I have called, in the title of my draft paper, "The Problem of Over-Punishment."
Fittingly, as I gear up for my trip, I found (thanks to this post at Corrections Community) a new intriguing Fact Sheet from the National Council on Crime and Delinquency that compares United States incarceration rates with those of other countries around the world. Here are highlights (or should I say lowlights) from the fact sheet:
- The US incarcerates the largest number of people in the world.
- The incarceration rate in the US is four times the world average.
- Some individual US states imprison up to six times as many people as do nations of comparable population.
- The US imprisons the most women in the world.
- Crime rates do not account for incarceration rates.
- The US has less than 5% of the world’s population but over 23% of the world's incarcerated people.
And we are supposedly a country founded on freedom? We may talk the talk about liberty, be we certainly do not walk the walk in the way we approach and apply our criminal justice system.
Lots of state sex offender sentencing news
Over at the blog Sex Crimes, Corey Rayburn Yung has lots of coverage of interesting state-level developments concerning residency restrictions and other sex offender sanctions. Here is a list of posts to check out:
- Proposition 83 Update (discussing California developments)
- The Homelessness Problem(discussing Maryland ruling)
- Kansas Considering Residency Restrictions
- Compliance Costs for Adam Walsh Child Protection and Safety Act (discussing Utah bills)
Milton Friedman's thoughts on the "war on drugs"
As detailed in this New York Times obituary, famed economist Milton Friedman died yesterday. The Times describes Friedman as "the grandmaster of free-market economic theory in the postwar era and a prime force in the movement of nations toward less government and greater reliance on individual responsibility." A terrific reader sent me this link to an open letter Friedman wrote in 1989 to then federal "drug czar" Bill Bennett about the escalation of the "war on drugs." It is a fascinating read (especially in the wake of this week's USSC crack hearing). Here are choice snippets:
The path you propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse. The drug war cannot be won by those tactics without undermining the human liberty and individual freedom that you and I cherish.
You are not mistaken in believing that drugs are a scourge that is devastating our society. You are not mistaken in believing that drugs are tearing asunder our social fabric, ruining the lives of many young people, and imposing heavy costs on some of the most disadvantaged among us. You are not mistaken in believing that the majority of the public share your concerns. In short, you are not mistaken in the end you seek to achieve. Your mistake is failing to recognize that the very measures you favor are a major source of the evils you deplore....
Drugs are a tragedy for addicts. But criminalizing their use converts that tragedy into a disaster for society, for users and non-users alike.... Had drugs been decriminalized 17 years ago, "crack" would never have been invented (it was invented because the high cost of illegal drugs made it profitable to provide a cheaper version) and there would today be far fewer addicts. The lives of thousands, perhaps hundreds of thousands of innocent victims would have been saved, and not only in the US. The ghettos of our major cities would not be drug-and-crime-infested no-man's lands. Fewer people would be in jails, and fewer jails would have been built....
Alcohol and tobacco cause many more deaths in users than do drugs. Decriminalization would not prevent us from treating drugs as we now treat alcohol and tobacco: prohibiting sales of drugs to minors, outlawing the advertising of drugs and similar measures. Such measures could be enforced, while outright prohibition cannot be. Moreover, if even a small fraction of the money we now spend on trying to enforce drug prohibition were devoted to treatment and rehabilitation, in an atmosphere of compassion not punishment, the reduction in drug usage and in the harm done to the users could be dramatic.
This plea comes from the bottom of my heart. Every friend of freedom, and I know you are one, must be as revolted as I am by the prospect of turning the United States into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty of citizens on slight evidence. A country in which shooting down unidentified planes "on suspicion" can be seriously considered as a drug-war tactic is not the kind of United States that either you or I want to hand on to future generations.
November 16, 2006
FSR pieces on Claiborne and Rita issues
As I previously noted here, the Federal Sentencing Reporter has already published a number of pieces about reasonableness review after Booker. In addition, of course, FSR has run many pre-Booker articles on topics that relate to the facts and issues before the Supreme Court in Claiborne and Rita (lots of background here). At my request, a terrific research assistant assembled for me a list of some of FSR's recent coverage of issues related to the Claiborne and Rita cases, and I have provided this mini-bibliography for downloading below. (The Federal Sentencing Reporter can be ordered here and accessed electronically here.)
Where there's a Will, there's a way?
Riffing off the Supreme Court's recent work in in Belmontes (basics here; commentary here), George Will today has this interesting op-ed entitled "Circuit Breaker The High Court vs. Death Penalty Foolishness." The piece begins with an attack on the Ninth Circuit: "There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases." But thereafter the piece turns into more of an attack on our modern death penalty appellate process:
How did capital punishment jurisprudence reach its current baroque condition, in which cases live longer than did the murder victims ? At the hands of judges such as Stephen Reinhardt, a residue of Jimmy Carter's presidency, who says Belmontes's "robbery gone wrong" lacked "especially heinous elements."...
Courts have enveloped the administration of capital punishment in so many arcane procedures that judicial opponents of capital punishment have vast latitude to speculate that a jury perhaps did not fully fathom its rights and duties, and hence the punishment is impermissible. And [victims] become afterthoughts.
There is something grotesque about an execution a quarter of a century after a crime. But there is something repellent about the jurisprudential hairsplitting that consumes decades, defeats the conclusions of juries' deliberations and denies society the implementation of a punishment it has endorsed.
As regular readers know, I share many of George Will's concerns about the operation of our system of appellate capital justice. But the solution is not a special Supreme Court to review the Ninth Circuit, but rather, as I argued here, a special Supreme Court to review state capital verdicts.
More thoughtful sentencing work by the Sixth's Judge Martin
The Sixth Circuit's Judge Boyce Martin adds to his body of thoughtful sentencing opinions today with his decision for the court in US v. Ely, No. 06-5464 (6th Cir. Nov. 16, 2006) (available here). Ely covers both Eighth Amendment forfeiture claims and Booker reasonableness issues thoroughly in the course of affirming a sentence for a defendant convicted by a jury of "bulk cash smuggling and making a false and fictitious material statement and representation to a Customs and Border Protection officer."
November 15, 2006
Maryland lethal injection litigation update
The Baltimore Sun here reports on the latest developments in Maryland's on-going lethal injection litigation. Here are highlights:
The federal judge hearing death-row inmate Vernon L. Evans Jr.'s challenge to Maryland's lethal-injection procedures said Wednesday that he may direct state corrections officials to "test the recruitment waters" in search of doctors or highly trained nurses to participate in state executions before he rules on whether to require the medical professionals' involvement. U.S. District Judge Benson E. Legg said nine days of trial testimony, stretched over three months, had left "a hole in the record" regarding the availability of doctors and nurses trained and willing to monitor an inmate's level of consciousness and to perform a surgical procedure to establish an IV in a major vein....
Phillip M. Pickus, an assistant attorney general representing the state, told the judge that requiring doctors' involvement in executions "brings us into a whole new world with a whole new set of problems." "Where is the line going to be drawn?" Pickus asked, wondering aloud whether the physicians would have to be board-certified, licensed to practice medicine in Maryland or trained in particular specialties. "This is a slippery slope that we don't want to go down."
UPDATE: This Washington Post piece provides more details on this lethal injection scrummage.
Enron's Causey gets 5-1/2 years
As detailed in this AP article, "Richard Causey, the last of the top Enron Corp. executives to learn his punishment, was sentenced Wednesday to five and a half years in prison." White Collar Crime Prof Blog has more here. Notably, adding together Causey's and Fastow's sentences, the twosome will still serve collectively less than half the time given to Jeff Skilling.
UPDATE: In related news, this Houston Chronicle article reports on when and where Skilling will have to report:
Former Enron CEO Jeff Skilling has been ordered to surrender to a Minnesota prison next month. In an order made public Wednesday, U.S. District Judge Sim Lake told Skilling to surrender to a federal prison in Waseca, Minn., about 75 miles south of Minneapolis, by 2pm Dec. 12.
At Skilling's request, Lake recommended the U.S. Bureau of Prisons place the ex-CEO at a facility in Butner, N.C. The bureau typically tries to grant such requests, but various factors can lead to an alternate placement, such as whether the prison has enough space.
Snakes on a plane
At Concurring Opinion, Dan Solove reports here on an amusing case in which, according to this news report, a couple's "in-flight friskiness" during a cross-country flight now has the couple "facing federal charges for harassing the flight attendant who asked them to stop." Though there surely are more important crimes the feds should target, I am already having fun thinking about what might be an appropriate shaming sentence for this amorous couple.
The Justice Department's crack testimony
Though the USSC's website has most of written testimony from this week's cocaine hearing available at this link, the Executive Branch testimony is missing. Fortunately, a very helpful reader has sent me a copy of the Justice Department's testimony, which I provide for downloading below. Here is the nuanced conclusion:
As noted above, the existing mandatory minimum sentencing scheme for cocaine trafficking has been an important part of the Federal government’s efforts to disrupt the cocaine market generally, and the crack cocaine and powder cocaine markets specifically. For all the reasons we have discussed, we continue to believe that the current federal sentencing policy and current sentencing guidelines for crack cocaine offenses are reasonable. The Administration appreciates the opportunity to testify at this hearing and hopes the dialogue will continue. As we stated earlier, in light of the perception of racial disparity from the 100-to-1 quantity ratio as well as the larger, systemic changes taking place in federal sentencing, our work together must go on so that we ensure that federal sentencing is predictable, and strong. In this way, we will better be able to keep the public safe, keep crime rates at historic lows, and minimize the harmful effects of illegal drugs.
Death, American federalism style
Perhaps it is a sign of too much time at the computer that two death penalty items somehow got me to thinking about a campy TV show from the early 1970s. Whatever the reason for my Dennis Miller moment, these two vignettes about recent death penalty developments provide interesting insights into the dynamic federalism aspects of America's system of capital punishment:
- How Appealing details here that Texas Court of Criminal Appeals has now ruled that President Bush was powerless to force the Texas judiciary to disregard its rules of procedural default to consider a Mexican death row inmate's Vienna Convention claim.
- The Death Penalty Information Center details here that federal District Court Judge Jeremy Fogel is expected to rule soon on the challenge to the lethal injection process in California, a case which has produced an extended de facto moratorium in the state with the largest death row in the country.
UPDATE: Lyle Denniston has a lot more on the Texas decision here at SCOTUSblog.
Key questions for USSC: Now what...?
I suppose I should wait more than a day after the US Sentencing Commission's crack hearing (details here and here and here) to ponder the Commission's next moves. But, with so many on-going and dynamic federal sentencing stories, I cannot resist speculating about the USSC's agenda and priorities on many fronts.
1. Now what on the cocaine guidelines? In the run up to the latest USSC crack hearing, I was hopeful (but certainly not optimistic) that the Justice Department would put forward a proposal that focused on justice and not just toughness. But, sadly, it seems DOJ continues to support the status quo, which could make the USSC afraid to take the lead on reforming the 100:1 ratio. I fear we are may see just another report come from the latest round of crack/powder sentencing discussions.
2. Now what on guideline reforms? As noted here, earlier this month the USSC staff conducted a set of exciting roundtables to discuss ways to simplify the guidelines and to improve the criminal history rules. The USSC generally proposes new amendments in January, so there is a lot to do in a little time if it hopes to do something really consequential. At the very least, I am hoping the USSC this amendment cycle will at least acknowledge Booker. Speaking of Booker...
3. Now what on post-Booker data? When there was still Booker fix buzz, the USSC did a great job producing real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes. But Booker fix buzz has died (and seems unlikely in the new Congress), and real-time data from the Commission has been in short supply the last six months. And we are still without a serious a batch of post-Booker appeals data and analysis from the Commission. Speaking of appeals...
4. Now what in light of Claiborne and Rita? There are many reasons to believe (hope? fear?) that the Supreme Court will send another major shock-wave through federal sentencing with its decisions in Claiborne and Rita, the two Booker reasonableness cases to be argued in February. Given the impact Claiborne and Rita could have on the entire system, the USSC might be wise to forgo any guideline amendments this year in order to focus on producing more post-Booker data and analysis to aid the work of both the Supreme Court and the new Congress.
Lots of white-collar blogosphere buzz
Many in the blogosphere are discussing various recent white-collar sentencing developments. Here are just some of the posts I have seen from various sources:
- Ex-Computer Associates's Sales Chief Sentence to Seven Years
- Jack Abramoff Reports to Prison
- The Last of the Three (discussing Enron sentencings)
November 14, 2006
HLR Supreme Court issue on-line
In now see that the yearly Supreme Court issue of the Harvard Law Review is now available here. This year's Foreword, written by Frederick Schauer, looks quite intriguing as it explores the fact that "neither constitutional decisionmaking nor Supreme Court adjudication occupies a substantial portion of the nation's policy agenda or the public's interest." In addition, it appears that nearly every major criminal law case of last term gets coverage by the student commentary in the issue.
An early report from the USSC crack hearing
A federal judge who served as a top drug policy adviser to the first President Bush and advocated harsher penalties for crack cocaine crimes said Tuesday the policy had gone too far and was undermining faith in the judicial system. U.S. District Judge Reggie B. Walton told the U.S. Sentencing Commission that federal laws requiring dramatically longer sentences for crack cocaine than for cocaine powder were "unconscionable" and contributed to the perception within minority communities that courts are unfair....
The Bush administration, like the Clinton administration, indicated Tuesday that it welcomed a discussion about the sentencing disparity but adamantly opposed lowering the penalties for crack. The Justice Department says crack is more addictive and easier to sell in small doses, leading to increased violence and a greater health impact. The Justice Department also urged the Sentencing Commission only to make recommendations to Congress and not to take it upon itself to narrow the gap by rewriting sentencing guidelines.
Walton said there may still be a need for tougher sentences for crack because it is more addictive and more closely associated with violence. But he said the disparity is too great.... Walton said the law wasn't intended to target poor people or minorities. But with a disproportionately high number of minorities in prison and potential jurors openly balking at convicting drug offenders because of concerns over the fairness of the system, Walton said the problem must be addressed. "I hope the powers that be will have the will to do the right thing and rectify the problem," Walton said.
UPDATE: I also now see here that Ari Shapiro had a piece today on NPR's All Things Considered entitled "Panel Weighs Equity of Crack, Cocaine Sentences." It includes a few brief quotes from various folks who testifies at today's hearing.
More evidence the guidelines are not all that reasonable
Fans of the minutiae of the federal sentencing guidelines will find rulings of interest today from the First, Second, Sixth, Ninth and DC Circuits. A pair from the Ninth and DC Circuits are especially telling.
In US v. Martinez-Martinez, No. 06-10015 (9th Cir. Nov. 14, 2006) (available here), the Ninth Circuit holds that "discharging a firearm at a residential structure" is not a "crime of violence" under one guideline provision. Meanwhile, in US v. Adewani, No. 05-3390 (D.C. Cir. Nov. 14, 2006) (available here), the DC Circuit finds that "walking away from a halfway house" is a "crime of violence" under another guideline provision.
I have a hard time affording a presumption of reasonableness to a set of sentencing rules that results in a firearm offense not being a crime of violence, while walking away from a halfway house is.
Seventh Circuit ruling spotlighting Supermax realities
As noted here at How Appealing, the Seventh Circuit today in this opinion reinstates a prisoner's Eighth Amendment cruel and unusual punishment claim challenging the conditions in Wisconsin's Supermax prison's "behavioral modification program." Here's part of the factual background:
Gillis arrived at Supermax on February 15, 2002. Within 2 weeks of his arrival he was placed in the BMP for an infraction of what he sees as a relatively minor rule. The rule requires that inmates sleep with their heads toward the back of the cell (and the toilet). Gillis slept with his head toward the front of the cell and on occasion covered his head. He says that the rule was not being uniformly No. 06-2099 3 enforced and that some inmates did not follow the rule because it forced them to lie with their heads next to the toilet.
The defendants, various prison officers and agents, see it differently. They argue that compliance with the rule is necessary so guards can see an inmate’s head through a small window on the cell door. If the guards cannot see the head of the inmate, they cannot determine his condition. Defendants also say that they began to enforce the rule on February 22, 2002, which is about a week before the BMP was imposed on Gillis. The toilets, they say, are “perfectly clean,” so that cannot be the reason inmates sleep with their heads in the wrong direction. The security director did not classify this violation as a “major offense,” but defendant Bradley Hompe, a unit supervisor, who was the moving force behind Gillis’s placement, considered the violation to be major. Whether “major” or “minor,” it was for this infraction that Gillis was placed in the BMP. The BMP is a program designed to force difficult inmates to conform to the rules.
Some related posts:
More speculations about Congress and sentencing
Marcia Coyle at the National Law Journal has this intriguing piece discussing how the new House and Senate Judiciary Committees might set their agenda and priorities. Marcia was kind enough to use in the piece some of my musings on sentencing issues. Here's a snippet:
Sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law said he is hopeful that with Conyers as committee chairman and Rep. Robert Scott, D-Va., as chairman of the subcommittee on crime, terrorism and homeland security, there will be less emphasis on statutory mandatory minimums in sentencing legislation and more interest in addressing the 100-to-1 crack to powder cocaine disparity in sentencing. "There's no doubt the African-American community in general and the Black Caucus in particular are more concerned about this harshness in sentencing," said Berman, noting that the U.S. Sentencing Commission has planned hearings on the crack/powder cocaine issue.
"Even before the transition in power, this seemed like a very interesting and dynamic time for criminal justice policy in general and sentencing policy in particular," he added. "The crack debate will indicate the extent to which we could possibly forge a new politics of crime or if it will be too enticing to go back to the old way, the 'tough on crime' strategy."
Berman said he also will be watching the Justice Department now to see if it "changes its tune" in seeking a "topless" guidelines system, its reaction to the Supreme Court decision making the Federal Sentencing Guidelines discretionary. And, he wonders if the change in Congress will embolden the U.S. Sentencing Commission to act on the crack/powder issue, and will encourage federal judges to be less fearful of a congressional response if they depart more from the guidelines. "Let's just say I have hope for data-driven, evidence-based policymaking," added Berman.
Some recent related posts:
- How could and will this election impact federal sentencing policy?
- A sentencing view of election day
- Figuring out election results for sentencing fans
- The big other branch questions after the election
- FAMM's view of the new political lanscape
More coverage of Belmontes
How Appealing links here some of the major media coverage of the Supreme Court's decision yesterday in Belmontes (basics here; commentary here). Linda Greenhouse in this piece provides this intriguing insight on the probable reason why the first decision this Term was a 5-4 split:
No one at the court on Monday could remember a term that began with a 5-to-4 decision. But while this decision might, on the surface, suggest that the current court is on the way toward setting a record for internal division, that is not necessarily the case. A more likely explanation is that much of the majority opinion was in fact drafted last spring, before the court agreed to hear California’s appeal.
The entry on the court’s public docket shows that while the state’s appeal was pending the justices discussed it nine times at closed-door conferences. With cases typically being discussed only once or twice, if at all, nine is an unusually high number. It suggests that a group of justices was trying to win majority support for an opinion that would decide the case summarily, without argument or further briefing. The failure of such an effort typically results in a compromise decision to accept the case for argument, with much of the opinion already having been drafted.
A fascinating report on "what works"
Thanks to this post at Corrections Sentencing, I came across this extraordinary new report from the Washington State Institute for Public Policy. The report is entitled "Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates," and here is how it summarizes its work and findings:
We conducted a systematic review of all research evidence we could locate to identify what works, if anything, to reduce crime. We found and analyzed 571 rigorous comparison-group evaluations of adult corrections, juvenile corrections, and prevention programs, most of which were conducted in the United States. We then estimated the benefits and costs of many of these evidence-based options. Finally, we projected the degree to which alternative "portfolios" of these programs could affect future prison construction needs, criminal justice costs, and crime rates in Washington.
We find that some evidence-based programs can reduce crime, but others cannot. Per dollar of spending, several of the successful programs produce favorable returns on investment. Public policies incorporating these options can yield positive outcomes for Washington. We project the long-run effects of three example portfolios of evidence-based options: a "current level" option as well as "moderate" and "aggressive" implementation portfolios. We find that if Washington successfully implements a moderate-to-aggressive portfolio of evidence-based options, a significant level of future prison construction can be avoided, taxpayers can save about two billion dollars, and crime rates can be reduced.
Anyone seriously interested in "crime control" approach to sentencing and punishment has to check out this report and its many intriguing findings. Of particular interest is Exhibit 4 on page 9, which provides a detailed (and often suprising) account of the benefits and costs of various programs. That exhibit indictates, for examples, that family-oriented treatments of juvenile offenders are quite successful at reducing crime, while Scared Straight programming actually increases crime.
Ninth Circuit questioning notable terrorism sentencing
As detailed in this AP report, at oral argument in the Ninth Circuit on Monday, a panel expressed concerns about the sentencing of Ahmed Ressam, who earlier this year received a federal sentencing of 22 years in prison for planning to bomb Los Angeles International Airport. Here are some more details:
The three-judge panel from the 9th U.S. Circuit Court of Appeals heard arguments from U.S. Attorney John McKay and from Ressam's lawyer, Tom Hillier, challenging aspects of the sentence District Judge John C. Coughenour imposed last year.... Prosecutors, who had asked for a 35-year sentence, appealed on the grounds that Coughenour's sentence was too lenient and that it may have been motivated by his distaste for the Bush administration's treatment of enemy combatants....
None of the judges indicated in their questions that they believed Ressam's sentence should have been longer. Nor did they comment on Coughenour's remarks at sentencing criticizing the Bush administration's use of military tribunals and detainment of "enemy combatants." Two of the judges — [Pamela] Rymer and Marsha Berzon — said [District Judge] Coughenour did not explain the sentence in much detail. Whether that's a problem remains an open question, Berzon said.
Earlier this month, the Supreme Court agreed to hear two cases that touch on the issue of how much explanation is required when judges depart from advisory sentencing guidelines.... Ressam's case is not expected to be resolved until after the Supreme Court rules on the pending cases. The appeals judges said they were weighing whether to sit on Ressam's case until the high court rules, or to send it back so that Coughenour can sit on it. "Either way it will be sat upon," Rymer said.
November 13, 2006
Any field correspondents for the USSC cocaine hearings?
As discussed here and here, the US Sentencing Commission's Public Hearing on "Cocaine and Federal Sentencing Policy — 2006" will take place starting early tomorrow morning at Georgetown University Law Center. Sadly, it appears that neither the USSC or Georgetown has plans to webcast the hearing. Consequently, I am hoping that some enterprising attendee is planning to live-blog the event or might try to write up some reactions for this blog.
Helpfully, the USSC's website now has links to nearly all of submitted testimony (save from the Executive Branch) with the hearing agenda available at this link. I suspect that the copious written testimony provides a pretty thorough preview of what might be expected tomorrow. But I will still be eager to hear a field report about (1) what the Executive Branch folks say, and (2) how the Sentencing Commissioners all react. I suspect the traditional media will cover some of this, but so far they've not given much attention to this notable event.
Some thoughts on Belmontes
1. Justice Stevens' dissent is longer and more detailed than Justice Kennedy's majority opinion. I cannot help but speculate that perhaps Justice Stevens was writing a majority opinion until he lost a vote.
2. The two new Justices are silent, though they both failed to sign on to Justice Scalia's intriguing little concurrence (which Justice Thomas did join).
3. The defendant committed his crime in March 1981 and has now had his death sentence (finally?) affirmed over 25 years later. Why aren't the law-and-econ folks working on what could make for a more efficient and effective system of capital sentence review?
4. The defendant is not likely to be executed anytime soon; there is a de facto moratorium on executions in California while its lethal injection protocol is being challenged in federal district court. There certainly won't be any executions in California the rest of 2006, and it's surely possible (probable?) the state won't be able executing anyone in 2007.
5. The Supreme Court has, in the last 16 years, considered the "factor (k) instruction" California's unique death penalty system in light of the Eighth Amendment three different times (in Boyde, Payton, and now Belmontes). That instruction impacts, at most, a few death penalty cases in California each year. Meanwhile, over the same period, the Supreme Court has never directly addressed applicable burdens of proof at sentencing in light of the Due Process Clause. This issue could impact more than 1,000,000 state and federal sentencings each year.
Around the blogosphere
There is a good bit of blogosphere chatter about the Supreme Court's decision in Belmontes (basic here), which I'll cover in a future post. In the meantime, sentencing surfers will find a lot of other stuff of interest at:
Closing chapter 1 of the Enron sentencings
As the Houston Chronicle details here, a number of the remaining Enron-related sentencings will take place this week: Richard Causey will be sentenced on Wednesday, and Mark Koenig and Michael Kopper are set for sentencing on Friday. White Collar Crime Prof Blog here is promising analysis throughout this week.
I consider these sentencings only the close of Chapter 1 because Jeff Skilling is sure to pursue some sentencing issues on appeal. And that appeal could be significantly impacted by the two now-pending SCOTUS cases on reasonableness review, Claiborne and Rita (background here). The outcome in the Rita case, which involves review of a relatively lengthy within-guideline sentence for a first offender, could be especially important to Mr. Skilling's fate.
First SCOTUS opinion of OT '06 a capital split ruling
At least in the arena of the death penalty, the Roberts Court is already looking a lot like the Rehnquist court. As SCOTUSblog reports here, today the Supreme Court released its first decision from an argued case for October Term 2006, and the ruling is a 5-4 split with the so-called conservatives in the majority upholding a death sentence that had been reversed by the Ninth Circuit. Here are details from SCOTUSblog:
In a 5-4 ruling, the Supreme Court on Monday found that California's special "catchall" instruction to juries in death penalty cases provides enough opportunity for jurors to consider all favorable evidence for the accused. The instruction, Justice Anthony M. Kennedy wrote for the majority, goes far enough to assure that the jury will not only consider favorable evidence about the crime itself, but about evidence that the individual would not be dangerous in the future if his life were spared. The ruling in the case of Ayers v. Belmontes (05-493) was the only opinion on the merits issued Monday.
The Ninth Circuit Court reversed the death sentence of Fernando Belmontes for the second time after the Supreme Court had returned the case to it. The Circuit Court said the Supreme Court's prior review of the catchall instruction ("factor k") had only found that it was sufficient to cover mitigating evidence about the accused's culpability for the crime, and not evidence about his capacity to adjust well to life in prison. Kennedy's opinion reversing the Circuit Court was joined by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. Justice John Paul Stevens dissented, in an opinion joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.
Here now is a trivia question for Supreme Court historians: when is the last time the Court's first full opinion of the Term was a 5-4 ruling? I have to believe this split is quite unusual in modern times. But then again, we all know that death is different.
UPDATE: Here is the link to the opinion in Ayers v. Belmontes.
Getting tougher on drunk driving
This extended AP story about sentencing in drunk driving cases has me wondering again why we invest so much time, money and energy in wars on drugs and terror, but not on drunk drivers. The interesting article concludes by noting that there were 16,885 alcohol-related traffic fatalities in the United States, which is many times the number of persons killed on 9/11 and likely greater (perhaps much greater) than the number of deaths that might be directly linked to illegal drugs.
Some related posts on drunk driving sentencing:
- Is capital punishment for drunk driving morally required?
- Why do we worry so much more about sex offenders than drunk drivers?
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
Commentary on crack sentencing as USSC hearing approaches
As discussed here and here, the US Sentencing Commission tomorrow will conduct an all-day Public Hearing on "Cocaine and Federal Sentencing Policy — 2006." Spurred by this positive development, Eric Sterling, president of the Criminal Justice Policy Foundation, has this commentary in the Los Angeles Times about crack sentencing law and policy. Here is a snippet:
Working for the House Judiciary Committee in 1986, I wrote the House bill that was the basis for [the 100-1 crack/powder sentencing] law. We made some terrible mistakes. Those mistakes, aggravated by the Justice Department's misuse of the penalties, have been a disaster.
Conventional wisdom is that the 100-1 ratio needs to be repealed. But that's an inadequate fix. On Tuesday, the U.S. Sentencing Commission — the independent agency that gives sentencing guidelines to federal judges and advises Congress — will hold hearings on this issue. If logic prevails, in the next Congress we may finally see an end to one of the most unjust laws passed in recent memory. And that might correct the biggest mistake of my professional life....
The 20-year-old mistake of tiny quantity triggers has distracted both the Justice Department from the proper cases and reformers from the proper fix. For a generation, anti-drug policy has been built on factual mistakes and tough-sounding rhetoric. The American people simply need an effective policy. Truly, that would be tough enough.
November 12, 2006
A week+ to remember
ELECTION-RELATED SENTENCING AND COMMENTARY
- How could and will this election impact federal sentencing policy?
- A sentencing view of election day
- Figuring out election results for sentencing fans
- The big other branch questions after the election
- FAMM's view of the new political lanscape
CLAIBORNE AND RITA DEVELOPMENTS AND COMMENTARY
- SCOTUS to take up Booker reasonableness!!
- SCOTUS Booker questions presented ... and more questions
- How many amici briefs will there be in Claiborne and Rita?
- How do Cunningham and Claiborne and Rita intersect?
- The facts and decisions in Claiborne and Rita
- The district court sentencing in Claiborne and cert briefing
- Lovely Rita, SCOTUS case...
OTHER SCOTUS SENTENCING DEVELOPMENTS AND COMMENTARY
- Oral argument in James ACCA case
- Oral argument in Burton retroactivity case
- Latest OSJCL issue with lots of sentencing coverage
SEX OFFENDER DEVELOPMENTS AND COMMENTARY
- California's new sex offender law enjoined
- More on Proposition 83 in California
- Is GPS tracking a better way?
OTHER BOOKER DEVELOPMENTS AND COMMENTARY
- Fanfan's guideline sentence affirmed by First Circuit
- A Booker pair from the Third Circuit
- Seventh Circuit reverses another below-guideline sentence
- Tenth Circuit affirms two above-guideline sentences
- Pondering the USSC's upcoming crack/powder hearing
- A prosecutorial perspective on Booker
DEATH PENALTY DEVELOPMENTS AND COMMENTARY
- Could Ohio and Wisconsin chart a path to a better death penalty?
- California's defense of its lethal injection protocol
- A new world of death penalty politics?
- More on the modern politics of the death penalty
- The federal death penalty in America's paradise
What should be asked of new lawyers?
Over at my other blog project, Law School Innovation, Gene Koo of Harvard's Berkman Center is seeking help on developing a survey for new lawyers in order to learn more about how prepared they are for today's legal work world. If you are someone interested in legal education or training (such as a law prof, law firm manager, CLE provider, associate, or law student), please cruise over to LSI here to weigh in. Thanks.
The federal death penalty in America's paradise
I often think of Hawaii as America's paradise (perhaps in part because my only time there was for my honeymoon). But this fascinating article about the federal death penalty in Hawaii from the Honolulu Advertiser is a reminder of all the trouble there can be even in paradise. Here are some snippet from a great piece that is today's must-read:
Justice Department officials have overruled federal prosecutors here and authorized seeking the death penalty for an Army soldier in a move critics say is part of a nationwide attempt by the Bush administration to spread capital punishment to non-death-penalty states. Naeem Williams, charged with murdering his 5-year-old daughter last year, is believed to be the first in the country to face the death penalty under a provision passed by Congress three years ago for first-degree murder cases involving "a pattern or practice of assault or torture against a child or children."
The U.S. Attorney's Office in Hawai'i recommended against seeking capital punishment for Williams and his wife, Delilah, who is also charged with the murder, according to sources familiar with the case who do not want to be identified because the recommendation is considered confidential. The Justice Department went along with the recommendation for the 21-year-old wife, but U.S. Attorney General Alberto Gonzales, who must approve federal death penalty prosecutions, authorized seeking capital punishment for the husband.
That move is part of a trend under the Bush administration to seek the death penalty in Hawai'i and 11 other states that don't have capital punishment, some critics of the death penalty believe. Gonzales and former Attorney General John Ashcroft authorized 180 death penalty prosecutions, including 51 cases in which the local U.S. attorney's office did not recommend capital punishment, according to the Federal Death Penalty Resource Counsel Project, a national information clearinghouse for court-appointed defense lawyers in federal death-penalty cases. Fourteen of the 51 cases are from non-capital-punishment states, said Kevin McNally, a Kentucky lawyer with the project....
The death-penalty prosecution will be unusual for Hawai'i, which abolished capital punishment in 1957. Sporadic attempts to revive it have never gotten far in the state Legislature, and Hawai'i remains one of 12 states that do not have capital punishment. Congress, however, has authorized the death penalty throughout the country for federal crimes, starting in 1988 for drug kingpins. The law was expanded in 1994 to cover other offenses, such as murder for hire and murder of government officials. The provision involving a pattern of abuse and torture of children was added in 2003....
Naeem Williams was initially charged by the military, but when the case was transferred to federal prosecutors in August last year, [U.S. Attorney] Kubo said Naeem and Delilah Williams were the first in the country prosecuted under the new law involving torture and abuse of a child. Kubo said he does not know if there are currently any similar prosecutions in the country. Spokeswoman Blomquist of the Justice Department said those statistics are not readily available.
Interesting reading from SSRN
Though not all of the pieces catching my eye on SSRN are directly related to sentencing, these articles still should make for great reading after you finish the Sunday New York Times:
- Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining by Susan R. Klein
- Convicting the Innocent: An Empirically Justified Wrongful Conviction Rate by D. Michael Risinger
- Misnamed, Misapplied, and Misguided: Clarifying the State of Sentencing Entrapment and Proposing a New Conception of the Doctrine by Jess D. Mekeel
- Hamdan v. Rumsfeld: The Legal Academy Goes to Practice by Neal Kumar Katyal
The person behind Claiborne
The St. Louis Post-Dispatch has this short article providing a bit of background on Mario Claiborne and highlighting the crimes and sentencing debates that have brought his case before the Supreme Court. Though a sound piece, I am hoping someone will do a more in-depth story about Mr. Claiborne. I am wondering, for example, if he has completed his 15-month sentence and what he is doing now. I am also wondering whether he plans to attend the SCOTUS oral argument concerning his case (and his fate) in February.
UPDATE: A helpful reader pointed me to this link showing that Mario Claiborne has been free from federal custody since May 1, 2006. He was sentenced and remanded on March 28, 2005, and thus served less than his full 15 months in prison presumably because of earning good time credits while in custody. Had he been given a guideline sentence, Mr. Claiborne would not have been realeased until sometime in 2008.