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.