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November 14, 2006

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:

November 14, 2006 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

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:

November 14, 2006 in Who Sentences? | Permalink | Comments (0) | TrackBack

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.

November 14, 2006 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

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.

November 14, 2006 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

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 14, 2006 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

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.

November 13, 2006 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Some thoughts on Belmontes

Notable blogosphere chatter about the Supreme Court's decision in Belmontes (basics here) includes posts from Orin Kerr, Karl Keys and  Kent Scheidegger.  I want to add some (random?) thoughts:

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. 

November 13, 2006 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

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:

Also, the comments here to my drunk driving post this morning are outstanding and quite thought provoking.

November 13, 2006 | Permalink | Comments (0) | TrackBack

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.

November 13, 2006 in Enron sentencing | Permalink | Comments (0) | TrackBack

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.

November 13, 2006 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

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:

November 13, 2006 in Offense Characteristics | Permalink | Comments (56) | TrackBack

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 13, 2006 in Drug Offense Sentencing | Permalink | Comments (0) | TrackBack

November 12, 2006

A week+ to remember

As if October wasn't exciting enough (as detailed here and here), the first part of November has produced many memorable sentencing moments.  Here are just some of the highlights:







November 12, 2006 in Recap posts | Permalink | Comments (0) | TrackBack

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.

November 12, 2006 | Permalink | Comments (0) | TrackBack

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.

November 12, 2006 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

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:

November 12, 2006 in Recommended reading | Permalink | Comments (0) | TrackBack

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.

November 12, 2006 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack