December 2, 2006
Where Skilling will be chilling
In the Houston Chronicle, this article describes the federal lockup facing Jeff Skilling. Here are some notable passages from the article:
Jeff Skilling is about to get a new identity: federal inmate No. 29296-179.... His new home, as determined by the U.S. Bureau of Prisons, will be ... at a former college campus-turned-prison in Waseca, a small southern Minnesota town of 10,000. His pending arrival has generated some coffee-shop talk. "There's some buzz about him coming, sure," said Waseca Mayor Roy Srp. "His story is quite prevalent and he is infamous, so he's the most infamous person we have out there that the citizens will know about. "We welcome anybody that comes to our community, including Mr. Skilling," Srp said....
[Skilling] faces a regimented existence. He'll be told what to wear and when to sleep, eat and shower. He'll share a cubicle or a room with one to three other men in one of five dormitory-style units. He can shop one day a week at the commissary. Phone calls are limited to 15 minutes. If he needs medication, he has to stand in line....
The bureau of prisons requires all inmates to work if medically able, so Skilling will work. Most earn 12 cents to 40 cents an hour doing such jobs as preparing food, washing dishes, cleaning bathrooms or keeping grounds. But some facilities, including the Waseca lockup, also have Federal Prison Industries factories, known as UNICOR. Those jobs pay 23 cents to $1.15 per hour to inmates who make office furniture, electrical components, license plates, signs and police and military uniforms. About 200 of Waseca's 1,000 inmates work in the facility's textile factory making uniforms, curtains, mattresses and bedding.
Perhaps Skilling can work on making a vowel for Waseca Mayor Srp.
Fascinating state stories in prison data
As I have noted before, the official Justice Department reports on prison populations (latest available here) include fascinating state-by-state data. Particularly catching my eye in the latest report is Table 4, which shows changes in total prison populations over the last 10 years.
What I found most intriguing was that five states had a decline or virtually no growth in their prison populations over the last 10 years: Massachusetts, Maryland, New Jersey, New York and Ohio. Meanwhile, in six other states, the prison population doubled over the last 10 years: Idaho, Minnesota, North Dakota, Oregon, West Virginia and Wisconsin.
The state-by-state story in the Midwest region is especially dynamic: Illinois, Michigan and Ohio had relatively little prison growth while neighboring Minnesota and Wisconsin have experienced huge increases in their prison populations.
I wonder if anyone is taking a close look at crime rates in states over the last decade to see if we can learn more about the complicated relationship between imprisonment and crime rates:
Some recent related posts:
- Another (timely?) US punishment record
- Getting tough and crowding prisons
- Less crime due to fewer prisoners?
Weekend reading on shaming punishments
Over at SSRN, I see an interesting new piece that contributes to the debate over shaming sanctions. Here is the abstract for Nussbaum on Shame Punishment by Thom Brooks:
Shame punishments have become an increasingly popular alternative to traditional punishments with both the public and the legal community alike. In her Hiding from Humanity, Martha Nussbaum makes a powerful argument against the use of shame punishments primarily on the grounds that shaming offenders often amounts to their losing dignity. Yet, her concerns have been addressed by the courts in a way which might overcome her important reservations, such as with the safeguards announced in U.S. v. Gementera. As a result, she need not be opposed to the use of legitimate shame punishment within clearly specified conditions.
Some recent posts on shaming sentences:
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
- More shame, shame on you
- A proper case for shaming?
- New article on shaming sanctions
- The state of shaming punishments (with lots of links)
December 1, 2006
Is the future parole with GPS and other techno-reentry devices?
This week I received a copy of this fascinating new policy report from the Texas Public Policy Foundation's Center for Effective Justice. The report is entitled "The Role of Parole in Solving the Texas Prison Crowding Crisis," and here is a portion of its introduction:
Although the parole system is designed to promote order in prison by providing inmates an incentive for good behavior, it also furthers many other important goals. Through parole, the state manages the prison population, determining the most appropriate time to release inmates before sentencing completion and the level of supervision needed to prevent recidivism and promote community reintegration. Parole is also the primary means by which the state controls the costs of incarceration at the back-end of the system that would otherwise be set at the front-end by locally elected judges and district attorneys.
With parole, rather than truth-in-sentencing which would incarcerate offenders for every day of their sentence, local prosecutors can take public credit for obtaining long prison sentences while the state effectively reduces the sentence years later through a highly confidential process. Moreover, parole recognizes that inmates may change while in prison, a factor which prosecutors and judges cannot predict and take into account at sentencing.
Parole can also be seen as the state's response to the problematic incentive created by a dual system of locally elected prosecutors and judges and state-funded incarceration. The incentive is for locally elected officials to seek public support and attempt to eliminate any risk of crime in their jurisdictions through the longest sentences possible for every offender at the state's expense — as opposed to managing risks by balancing incarceration costs with other priorities, including better policing programs that may prevent more crime for every dollar spent.
I have long thought that the complete elimination of parole release in the federal system and in many states was too crude a response to the problems of indeterminate sentencing systems. This Texas report effectively highlights potential virtues of a parole system, especially if parole decision-making uses guidelines that consider individualized risk assessments and the severity of offenses.
This Texas report has me thinking that the economics (and the growing inhumanity) of modern mass incarceration (details here and here) will eventually turn many jurisdictions back to some form of parole coupled with modern monitoring systems and other kinds of what might be called "techno-reentry" devices. As noted in this post, GPS tracking of certain offenders seems to have great potential, and this post spotlights the rapid development of various technocorrections. Looking into a sentencing crystal ball, I think parole with GPS and other techno-reentry devices may greatly occupy our sentencing and corrections future.
Mass US punishment around the blogosphere
Earlier this week I noted here the latest, record-setting, official data reports from the Bureau of Justice Statistics on the number of persons in prison or jail, on probation or on parole throughout the United States. The official BJS reports are now available on-line here and here. For some blogosphere reactions check out these posts:
- Statistics of the Week from blackprof
- Prisoner Stats from Crime & Consequences
- Overcriminalization Alert from Crime & Federalism
Early tests for a new capital era in Ohio?
Posts here and here after the elections explored whether a new governor and attorney general might impact the death penalty in Ohio. Today's Columbus Dispatch has this front-page article spotlighting that Governor-elect Ted Strickland now faces two scheduled executions right away:
In early 2005, when Ted Strickland was thinking about running for governor, he especially agonized over one subject. Capital punishment. "This was the thing I spent the most personal time thinking about and coming to terms with," the governor-elect told The Dispatch.
Strickland, a six-term Democratic congressman, Methodist minister and former prison psychologist, won’t have much time to dwell on it next month. The Ohio Supreme Court set execution dates yesterday for two killers during his initial five weeks as governor, the first just 15 days after he takes the oath of office....
Ohio governors have virtually unlimited power to grant commutations and reprieves or allow executions to proceed as scheduled.... During the seven years he worked at the Southern Ohio Correctional Facility near Lucasville, Strickland said he sometimes counseled Death Row prisoners and learned they were not all the same, having come from variety of educational, economic and family backgrounds....
State Sen. Marc Dann, a Youngstown-area Democrat who will take over as attorney general next month, has even stronger reservations about the death penalty. But, like Strickland, he said yesterday that he plans to follow the law.
Dann is working on a transition with Attorney General Jim Petro, whom he will succeed, and is getting up to speed on the death-penalty process. "The only time my hands started sweating was when he described the attorney general's role in the execution process. "But I signed up for the job. We’re going to make sure the law is followed." He will "shadow" Petro during Tuesday's execution of Jerome Henderson, of Hamilton County. Henderson would be the 25th and last man to be executed during Gov. Bob Taft's eight years in office.
Of course, the Ohio Death Penalty Information blog is the place to go for ... information about the death penalty in Ohio.
November 30, 2006
What SCOTUS should be doing
Over at SCOTUSblog, posts by Tom Goldstein and Marty Lederman highlight how light the Supreme Court docket is this Term and ask whether there "are any particular categories of cases -- defined by subject-matter, reasons-for-grant, or otherwise -- to which the Court is being insufficiently attentive." Here's my take:
First, though I have particularly highlighted unresolved Blakely and Booker issues here and here and here, I could readily rattle off many more constitutional questions surrounding non-capital sentencing that merit the Supreme Court's attention. My colleague Alan Michaels in a 2003 article called "Trial Rights at Sentencing" identified more than a dozen constitutional sentencing issues that have never been resolved by the Supreme Court, and I could readily supplement his list without every mentioning Blakely or Booker.
Notably, each Term, the Court always finds numerous capital sentencing issues to address, and there are actually many more lurking non-capital questions crying out for attention. moreover, only a handful of states with active death penalty systems are ever impacted by the Court's copious capital jurisprudence. But every jurisdiction has thousands of non-capital sentencing issues arising each year.
Second, in addition to numerous constitutional and non-constitutional federal sentencing topics needing attention, there are a host of other federal criminal law issues that deserve the Supreme Court's attention. The federal criminal justice system used to be relatively small, but now it processes more felony cases and has more prisoners than nearly any state criminal justice system. No entity other than the Supreme Court can resolve disputes over the scope and meaning of federal criminal statutes, and there are now plenty of these disputes.
I could go on, but I hope readers will also chime in.
UPDATE: I should add that, after a frustrating OT '05 in which few non-capital sentencing issues were addressed, the Court has been all over this stuff in OT '06. I am inclined to speculate that Justice Alito's addition to the Court, after a career as a federal prosecutor and then over a decade toiling as a federal circuit judge, has had a valuable impact on the Court's cert choices.
Fo' shizzle: a long sentence for Snoop Dogg?
The Washington Post reported on November 29, 2006, that Calvin Broadus, also known as "Snoop Dogg", and two members of his entourage were arrested for investigation of possessing a handgun and cocaine and transporting marijuana and having a false compartment in his vehicle. This arrest occurred as Snoop Dogg was leaving NBC Studios after performing on the Tonight Show with Jay Leno. (On November 29, 2006, Jay Leno joked about California's 10,000 strikes and your out policy in regards to Snoop Dogg's arrest). This arrest follows an arrest on October 26, 2006, at the Bob Hope Airport in Burbank, California, where police reported finding a gun and marijuana in his car.
In 1990, Snoop Dogg was convicted of possession of cocaine. In July 1993, he was charged with possessing a gun. Additionally, in August 1993, Snoop Dogg was charged with being an accomplice to a murder. It seems that someone fired shots from an automobile in which he was traveling; the shots resulted in a person's death. In February 1996, Johnnie Cochran assisted Snoop Dogg at the murder trial; the jury found him not guilty of all but the charge of voluntary manslaughter, which the jury deadlock. In February 1997, he pleaded guilty to a state charge of being a felon in possession of a handgun. For this offense he received three-years of probation and had to make anti-violence public announcements. In October 2001, he pleaded guilty to possessing drug paraphernalia and possession of marijuana.
For you students of federal sentencing, what would the sentence be for Snoop Dogg pursuant to the United States Sentencing Commission, Guidelines Manual (Nov. 2006), if he was charged with violating Title 18, United States Code, Section 922(g)(1) ?
For policy folks, to partially quote a famous weatherman, in my "neck of the woods," the ATF would have prosecuted Snoop Dogg a long time ago. Well, maybe not Snoop Dogg, but someone just like Snoop Dogg, but not famous, would have already been doing time or under indictment.
As Snoop might say, "fo shizzle my dizzle!" Why then, is he getting a pass? Could it be that prosecuting Snoop Dogg would show to the broader public that there is a tremendous disparity between the sentences that are imposed at the state level versus the sentences imposed at the federal level? Could it be that prosecuting Snoop Dogg would show how the Federal Sentencing Guidelines (test takers, do not look!) punish people for offenses that a jury has found them "not guilty" of committing? Then, again, it could be that he is just getting a "phat" break.
Fascinating Booker review ruling from the Eleventh Circuit
Contributing to a day with lots of interesting reads, the Eleventh Circuit has a fascinating little reasonableness opinion in US v. Keene, 06-12076 (11th Cir. Nov. 30, 2006) (available here). In Keene, the court avoids resolving a disputed guidelines issue because the district judge declared that he would impose the same sentence regardless of how the issue would be resolved. The Keene court in turn assumes the guidelines were calculated wrong and then find the (above-range) sentence still reasonable. Here is how the action in Keene wraps up:
[W]e conclude that if there was any misapplication of the §2B3.1(b)(2)(F) enhancement, "the error did not affect the district court’s selection of the sentence imposed." Williams v. United States, 503 U.S. 193, 203 (1992). Put a little differently, it would make no sense to set aside this reasonable sentence and send the case back to the district court since it has already told us that it would impose exactly the same sentence, a sentence we would be compelled to affirm.
Washington Supreme Court addresses consecutive sentencing and Blakely
Another helpful reader has sent me this report on a notable state Blakely ruling in In re Personal Restraint of VanDelft, No. 77733-1 (Wash. Nov. 30, 2006) (available here):
The Washington State Supreme Court, in a 7 - 2 decision, holds that, where a Washington state statute requires that "[f]elonies that are not serious violent offenses 'shall be served concurrently'" and that "[c]onsecutive sentences for [such] crimes may be imposed only 'under the exceptional sentence provisions of [another state statute]'", and where the trial court in this case imposed consecutive sentences based on its own, and not a jury's, findings that concurrent sentencing would "fail to hold [VanDelft] accountable for all of the crimes for which he was convicted", the defendant was sentenced in violation of Blakely. (The Court had previously held that "[t]he conclusion that allowing a current offense to go unpunished is clearly too lenient is a factual determination that cannot be made by the trial court following Blakely".)
This ruling, in addition to being important in Washington, may dovetail with some of the issues that were debated in Burton, the Blakely retroactivity case now awaiting a decision from the Supreme Court.
Article assailing "anti-crime" zones
A terrifically helpful reader pointed me to this Reason Online article entitled "One Ring to Ruin Them All: Anti-Crime Zones Hurts Innocents Instead of Protecting Them." Here are snippets:
A Jersey City ordinance that takes effect on December 11 bars sex offenders from living within 2,500 feet of a school, day care center, park, playground, sports facility, library, theater, or convenience store. These zones cover the entire city. As a result of the federal Gun-Free School Zones Act, you can't legally transport a firearm in Phoenix unless you have a carry permit or keep it locked and unloaded. In New Haven the only substantial piece of land not covered by a drug-free zone is the Yale University golf course.
Across the country, politicians are eager to draw magical circles of protection they claim will banish evil and keep children safe. It's an easy, cheap way of opposing what everyone opposes and supporting what everyone supports. But the resulting crazy quilt of drug-free, gun-free, and molester-free zones is ineffective, sometimes counterproductive, and frequently unjust....
It's doubtful that zoning laws like these have ever or will ever protect a single child from drug addiction, gun violence, or sexual assault. But they do give children a valuable lesson in the hazards of political grandstanding.
Sixth Circuit adds to split on Rule 32(h)
Adding to a circuit split that the Supreme Court may have to resolve, a split panel of the Sixth Circuit today in US v. Cousins, No. 05-3225 (6th Cir. Nov. 30, 2006) (available here) decided that it found "persuasive the reasoning of the circuits that continue to apply Rule 32(h) to all sentences that deviate from the Guidelines." As Cousins notes four circuits have formally held that Rule 32(h) does not apply to Booker variances (the 3d, 7th, 8th and 11th), and now it appears that five have held that Rule 32(h) does apply to Booker variances (the 2d, 4th, 6th, 9th and 10th). Not too long ago, there was talk of this split being resolved by the group that drafts the Federal Rules of Criminal Procedure through a post-Booker amendment to Rule 32(h), but rumor has it that such an amendment may not be forthcoming.
Cousins is also significant because the majority holds that "Cousins's sentence is unreasonable under Booker because the district judge failed to provide an adequate explanation for his imposition of a sentence with an upward variance." The majority opinion, authored by Judge Moore and joined by an (out-of-circuit) district judge sitting by designation, is quite thoughtful. So too is an interesting partial concurrence/dissent in Cousins coming from Judge Gibbons.
Governor Ryan gets bond pending appeal from Seventh Circuit
In a surprising decision that could be, practical speaking, as important as prevailing on appeal, former Illinois Governor George Ryan was granted bond pending appeal by the Seventh Circuit. Details are available in news reports here and here.
The news articles highlight that this decision suggests, but does not conclusively show, that some judges on the Seventh Circuit may be troubled by some aspect of Ryan's conviction. What the articles do not fully discuss is the fact that Ryan, at age 72, should be especially grateful that he can now remain a free man during what likely will be an extended appellate process.
One article suggests that bond pending appeal is unusual, but I recall that Bernie Ebbers and a few other notable white collar offenders have received such bond. I wonder if anyone has done any statistical analysis of this interesting (little?) issue.
Another (timely?) US punishment record
As noted here at TalkLeft and detailed in this AP article, a "record 7 million people — or one in every 32 American adults — were behind bars, on probation or on parole by the end of last year, according to the Justice Department." Here are more particulars:
Of those, 2.2 million were in prison or jail, an increase of 2.7 percent over the previous year, according to a report released Wednesday. More than 4.1 million people were on probation and 784,208 were on parole at the end of 2005. Prison releases are increasing, but admissions are increasing more.
A can't yet find a link to the Bureau of Justice Statistics's report that has this new data, but I am sure it will be an interesting (and data-dense read) once available.
The timing of this report is notable because today in New York City begins The New School's Social Research Conference entitled "Punishment: The U.S. Record." As noted before, the conference is designed to explore the "who, what, why and how we punish." The invited speakers and the topics to be discussed (detailed here and here) are truly amazing; a detailed agenda can be found at this link. I would be eager to hear (and post) reports from this conference sent my way by any attendees.
A new lethal injection twist in Kentucky
As detailed in this AP story, "Kentucky must hold public hearings on its execution protocol after changing how a lethal injection is administered, a state judge ruled yesterday." Here are more details:
Franklin County Circuit Judge Sam McNamara's ruling could prevent the state from executing any inmates until the issue is resolved. The ruling came a week after the Kentucky Supreme Court upheld the state's lethal injection law, saying it did not amount to cruel and unusual punishment.
Kentucky Death Row inmates Thomas Clyde Bowling, 52, and Ralph Baze, 49, challenged the lethal injection method in Franklin County Circuit Court in April, saying the Kentucky Department of Corrections did not follow state-mandated administrative procedures before instituting it. The two inmates first challenged the method of executing condemned prisoners in 2004, saying the drug formula used amounts to cruel and unusual punishment. The state later changed the mixture of drugs used in giving lethal injections, as well as procedures for how it is administered. The lawsuit filed this year by Bowling and Baze claimed the state law instituting lethal injection allows the state to set the protocol, but does not provide an exemption from the public hearings required when a new law is implemented.
StandDown Texas has more at this lethal injection archive.
November 29, 2006
Debating death for child rape
The blogosphere is buzzing with critiques of Texas bills that would make aggravated sexual assault of a child younger than 14 punishable by death if the defendant had been previously convicted of a similar crime. Grits for Breakfast and Sex Crimes Blog and Off the Kuff set out the usual arguments against making child rape a capital crime.
For a more detailed discussion of this issue focused on constitutional issues, check out a note in the latest issue of the Cornell Law Review entitled Death Row for Child Rape? Cruel and Unusual Punishment Under the Roper-Atkins "Evolving Standards of Decency" Framework. This note is available at this link.
Related posts on capital punishment for child rape:
More shame, shame on you
Both the theory and the reality of shaming punishments have made news lately. On the theory side, as noted at CrimProf Blog and Corrections Sentencing, the Washington Post earlier this week had this nice article on the topic. The article is titled "Abandoned O.J. Project Shows Shame Still Packs a Punishing Punch," and it goes on to note that "in the past decade or two, a number of scholars have become interested in the uses of shame, especially in the criminal justice system." The prior posts I have linked below suggest I am one of those "number of scholars."
On the reality side, check out this article (and video) with an account of a Georgia shaming punishment. Here are the basic details from a story that reveals that this was a victim-initiated shaming sanction:
Cherokee County convenience store is taking crime-fighting to the street. The Sixes Road Chevron wants everybody to get the message: Don't steal from us. Walking a small patch of grass at the corner of Highway 5 and Sixes Road, 22-year-old Brandon Huff carries his scarlet letter in the form of a neon pink 2x3 sign. The sign reads, "I stole gas and this is my punishment."...
Huff did not want to talk about his public display of punishment. And his sign does not say this — but this is not the first time Huff has done this. "Since he had two cases, he was looking at a license suspension on the second offense, therefore we made it a condition that if he did this, we would dismiss the second count which allowed him to save his license," says Cherokee County Solicitor General, David Cannon.
Cannon used out of the ordinary punishments — like the sign holding — to send a message to the community. "Jail time in a case like this is no feasible, and it would cost more for the county to do that. We think this will get the message across to him and to other people," says Cannon.
Morning traffic sped by as motorists blew their horns in displeasure with Huff's crime — but approval of his 21st century scarlet letter. "He deserves it, he's a thief," says Jason Ingle.... The store asked for this to be part of Huff's punishment and the judge agreed. They hope to deter others from driving off without paying.
Some recent posts on shaming sentences:
- A proper case for shaming?
- What punishments really undermine human dignity?
- Shaming punishments and communitarianism
- New article on shaming sanctions
- The state of shaming punishments (with lots of links)
The joys of Judge Adelman
Especially after yesterday's steady drum-beat of circuit rulings affirming within-guideline sentences, it was a pleasure today to receive Sentencing Hall of Famer Judge Lynn Adelman's latest sentencing opinion in US v. Hein, No. 06-CR-48 (E.D. Wis. Nov. 22, 2006) (available for download below). There is nothing especially flashy about Hein; it is just another fine effort by Judge Adelman explaining why he exercised his post-Booker discretion to impose a below-guideline sentence. Among other nice flourishes, here is Judge Adelman's proper account of how to approach post-Booker sentencings:
While the guidelines remain an important factor in the post-Booker world, the district court may not presume that they produce the "correct" sentence. United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006). Instead, the court must consider all of the relevant factors under the statute and, after considering those factors, impose a sentence sufficient but not greater than necessary to comply with the purposes of sentencing set forth in § 3553(a)(2). 18 U.S.C. § 3553(a).
Prior posts with some of Judge Adelman's extraordinary post-Booker work:
- Another (very different) view of Booker from a district court
- Judge Adelman strikes again
- More amazing post-Booker work by Judge Adelman
- Three more great Booker decisions from Judge Adelman
- Judge Adelman spotlights problems with mandatories
- Judge Adelman on extraordinary acceptance of responsibility
- Judge Adelman provides more post-Booker wisdom
- More fast-track work from Judge Adelman
- Judge Adelman on variances from career offender guideline
More on victims at sentencing
In this recent post, I noted that the first of two Federal Sentencing Reporter issues focused on victims is now available on-line here. Now I am pleased to spotlight that FSR's publisher has allowed for these three articles from the first issue to be available for free:
- Punishment, Democracy, and Victims by Michael M. O'Hear
- Victim Impact Evidence in Federal Capital Trials by Wayne A. Logan
- What Practitioners and Judges Need to Know Regarding Crime Victims' Participatory Rights in Federal Sentencing Proceedings by Russell P. Butler
Are law schools to blame for poor defense lawyering?
Neal Katyal's terrifically interesting new Harvard Law Review comment about his work in the Hamdan case suggests that law schools are largely to blame for the poor quality of criminal defense lawyering. Here is one of many notable passages from Neal's piece:
The truth is that very few law schools today prepare students to be lawyers: this responsibility is shunted off to law firms, the judges for whom students clerk, prosecutors' offices, and others. The obvious exception is law clinics, which do offer crucial lessons in the art of good lawyering. But clinics, despite their many virtues, still do not reach most law students, and their connection to the theoretical law taught elsewhere in the school is often left murky.
The cost of this educational failure is massive, forcing employers to spend their limited resources on training new lawyers in the basics of their jobs. The harm to indigent criminal defendants, whose very freedom may depend upon recently graduated attorneys lacking lawyering skills, is particularly acute. Litigating Hamdan gave me a sense of just how much law schools are failing.
Because Neal's article spotlights the insights a law professor can gain from working on real cases, it has led me at Law School Innovation to ask this question: Should law professors be required to practice?
Getting tough and crowding prisons
This morning's Arizona Republic has this intriguing article about a new plea policy being adopted in Maricopa County:
Starting in 60 days, those facing their second conviction no longer will be allowed to enter a plea deal unless they agree to go to prison, County Attorney Andrew Thomas announced Tuesday.... It fulfills a campaign pledge to toughen plea and sentencing policies and to reduce the crime rate. "Second-time felons are repeat offenders by definition," Thomas said. "In order to reduce the high rates of identity theft and other crime, I think we need to send a clear message that these repeat felons are going to go to prison."
Thomas estimates an additional 2,600 people will be sent to prison each year. In Arizona, it costs an average of $56.19 a day to house and care for one inmate. At that rate, Thomas' new plan will cost an additional $57.4 million a year. "It's easy to come up with policy when somebody else has to pay for it," said Katie Decker, spokeswoman for the Arizona Department of Corrections. Decker said corrections officials were not consulted before Thomas' plan was finalized....
The state's prison system already is understaffed, with 471 corrections officer positions unfilled, and overcrowded, with 35,726 inmates. On Tuesday, the state's prisons were 5,618 beds short, Decker said. "We are packed out, needless to say, " Decker said. Still, she said, "We are here to incarcerate people who are found to be not obeying the law. If we do get more people, we will find a way to house them."
Thomas suggested setting up a "Tent City for Arizona" modeled after the Tent City operated by Maricopa County Sheriff Joe Arpaio. However, Decker said there already are about 1,000 prison beds in tents across the state, with an additional 200 expected to open in Yuma in January....
Although the new policy will "place an extra burden on the criminal justice system," Thomas said, "we have to put public safety first." Rising incarceration rates correlate with dropping crime rates, Thomas said.
Last year, Thomas eliminated plea bargains for violent criminals and mandated that those who commit serious sexual crimes against children serve a minimum of 10 years in prison. "Now it's time to ramp up our efforts to address our high property-crime rates," Thomas said, "and repeat offenders are a big part of that equation."
More background and debate over the new plea policy can be found in this AP article. Unsurprisingly, a local defense attorney is not impressed with this plan:
Thomas' new policy shows a "lack of faith" in trial attorneys and judges — the very people who regularly negotiate and approve or reject plea agreements based, in part, on a person's criminal history, said Pima County Public Defender Robert Hooker. "I think he's stupid," Hooker said. "Any time you set a hard-and-fast policy it creates problems."
An eschatocol on circuit affinity for the guidelines
In the wake of rulings from the Second and Third Circuits yesterday affirming within-guidelines sentencing, the First Circuit provides "an eschatocol of sorts" as it affirms a within-guideline sentence in US v. Pelletier, No. 06-1287 (1st Cir. Nov. 28, 2006) (available here). Here is the court's penultimate paragraph:
We add an eschatocol of sorts. Post-Booker, the sentencing guidelines, though advisory, remain an important datum in constructing a reasonable sentence. Consequently, a defendant who attempts to brand a within-the-range sentence as unreasonable must carry a heavy burden.
Perhaps it is just me, but this eschatocol sounds a lot like the creation of a presumption of reasonableness for within-guideline sentences. And yet, the First Circuit has previously eschewed such a presumption.
California lethal injection protocol assailed
As detailed in this Los Angeles Times article, lawyers challenging California's lethal injection protocols pulled no punches when filing their final briefs in the on-going federal district court litigation:
California's procedures for executing prisoners by lethal injection fall short of standards set by the veterinary profession for animal euthanasia and were formulated with less care than methods in China, the world leader in capital punishment, according to a brief filed Tuesday in San Jose federal court by attorneys for a death row inmate. In addition, the brief asserts that the execution team at San Quentin State Prison is "unlicensed, untrained, unprofessional and incompetent" to carry out its duties....
The California Department of Corrections and Rehabilitation "conducts its executions in an outdated, cramped gas chamber with an undersized and dark anteroom," from which prison staff are supposed to assure proper administration of a three-drug protocol, the brief says. The brief also says the state uses chemicals "mixed by untrained and unsupervised prison staff, while ensuring that there is no meaningful oversight or review."
Earlier this month, the California attorney general's office issued a ringing defense of the state's procedures, maintaining in its brief that "there is no evidence that any prior execution resulted in the unnecessary and wanton infliction of pain." But the 274-page brief filed by Morales' attorneys finds fault with virtually every aspect of California's administration of capital punishment, frequently citing statements by state personnel during the proceedings.
November 28, 2006
Please feed the data junkies, USSC
For over a year following Booker, the US Sentencing Commission did a great job producing (on this page) real-time data on how Booker was affecting (or not affecting) federal sentencing outcomes in the district courts. (During that time, it also did a great job catching up on pre-Booker data responsibilities). But, over the last six months, real-time data from the USSC has been in short supply; the last official post-Booker district court sentencing data only captures sentencings through June 30, 2006.
Moreover, and more disappointingly, the Commission has not publicly discussed some of the more dynamic post-Booker data issues such as defendants' fates after post-Booker remands or post-Booker sentencing outcomes for white-collar offenders. And even though the Supreme Court has now taken up reasonableness review in Claiborne and Rita, the USSC has not produced any data at all about post-Booker appeal rates or outcomes.
I am hopeful (and fairly optimistic) that we will soon see a new batch post-Booker district court sentencing data. I am also wishing (and far less optimistic) that some new and different kinds of post-Booker data will emerge from the USSC before the year is out.
Second Circuit breathes life into the parsimony provision
I am very pleased to report that, only two years after Booker declared § 3553(a) central to federal sentencing, a circuit court has finally paid some attention to the key operative language of that provision. Today, in US v. Ministro-Tapia, No. 05-5101 (2d Cir. Nov. 28, 2006) (available here), the Second Circuit talks through the so-called parsimony provision of § 3553(a), which states that the "district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [§ 3553(a)]." In Ministro-Tapia, the court states that "if a district court were explicitly to conclude that two sentences equally served the statutory purpose of § 3553, it could not, consistent with the parsimony clause, impose the higher."
Many thanks to Yuanchung Lee for alerting me to this important new decision; Yuanchung gives his take on the ruling here at the Second Circuit Blog. (Notably, though this ruling is important in the broader parsimony battle, the defendant lost his own personal war: the Second Circuit ultimately rejected the defendant's argument that the district court violated the parsimony command when imposing a within-guideline sentence.) Yuanchung astutely suggests that "[a]ll practitioners should cite this [parsimony] passage in future sentencing memoranda to district courts" and calls Ministro-Tapia "a clarion call to district courts to impose in each case the lowest sentence necessary to achieve the ends of sentencing."
Some (dated but related) posts on the parsimony provision:
- Policy judgments at federal sentencing: aren't they inevitable and mandated by Congress?
- Crack sentencing and the anti-parsimony pandemic
- Judge Posner's important and flawed work in Cunningham
- The power of parsimony (and Justice Breyer's notable omission)
Notable Third Circuit Booker ruling
The Third Circuit issued a substantial ruling on various post-Booker sentencing issues today in US v. Lloyd, No. 05-4241 (3d Cir. Nov. 28, 2006) (available here). As is the common reality in every circuit after Booker, the defendant loses his appeal of a lengthy sentence. Tellingly, even though the Third Circuit has not formally adopted a presumption of reasonableness for within-guideline sentences, the Lloyd court concludes its rejection of the defendant's claims by stressing that his "sentence was at the bottom of the guideline range and thus ... was more likely to be reasonable that one outside the guidelines range."
Extensive FSR coverage of victims at sentencing and the CVRA
I am pleased to report that the first of two Federal Sentencing Reporter issues focused on victims is now available on-line here. This issue (Volume 19, No. 1) is entitled "Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna." The contents of the Issue can be seen at this link or on this cover page.
FSR editor Michael O'Hear deserves all the credit for assembling an amazing set of materials and commentary on an amazingly interesting and intricate set of issues. And he assembled so much great stuff, that all of the second issue of Volume 19 will be covering victim-related issues. (The Federal Sentencing Reporter can be ordered here and all recent issues can be accessed electronically here.)
Other recent FSR issues:
- FSR Issue 18.5: Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines
- FSR Issue 18.4: Sentencing at the Supreme Court
- FSR Issue 18.3: Taking Stock a Year after Booker
- FSR Issue 18.2: Defense Perspectives on the Post-Booker World
- FSR Issue 18.1: State of Blakely in the States
- FSR Issue 17.5: Is a Booker Fix Needed?
- FSR Issue 17.4: The Booker Aftershock
Report on juve detention from JPI
As detailed in this press release, the Justice Policy Institute, a public-policy group that studies adult and juvenile justice policies, has released a new report about the impact of juvenile detention. The new report is entitled "The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities" and is available at this link. Here is how the press release promotes and describes the report's findings:
Inappropriately incarcerating youth in secure detention centers across the country can contribute to their future delinquent behavior and harm their education, employment and health, according to a new policy brief to be released on Nov. 28 at a major national conference promoting alternatives to detention. [The report] shows that rather than promoting public safety, detention — the pretrial "jailing" of youth not yet found delinquent — may contribute to future offenses. Studies from around the country show that incarcerated youth have higher recidivism rates than youth supervised in other kinds of settings.
November 27, 2006
What's wrong with urging a sentencing jury to "send a message"?
Thanks to a listserve posting by Eugene Volokh, I learned the Kentucky Supreme Court recently issued an intriguing ruling about arguments to a sentencing jury in Brewer v. Commonwealth, No. 2004-SC-000742-MR (Ky. Nov. 22, 2006) (available here). Specifically, Brewer disapproves of prosecutorial arguments to a sentencing jury that it should "send a message" to the community by imposing a harsh sentence. Here are key passages from the Brewer opinion (with cites omitted):
It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements. And it is equally well established that a prosecutor may use his closing argument to attempt to persuade the jurors the matter should not be dealt with lightly. So the Commonwealth's exhortation to the jury to recommend that Appellant be sentenced to the maximum allowable sentence is neither surprising nor improper. But what is troubling is the "send a message" portion of the Commonwealth's argument. Although we disapprove of the comments in question, we find them to be virtually indistinguishable from those we recently found to not constitute palpable error in [prior rulings]....
Lest this opinion be misconstrued, we do find that the Commonwealth's exhortation to this jury to "send a message" to the community was improper. We strongly urge the prosecutors throughout the Commonwealth to use extreme caution in making similar arguments. Indeed, had a timely objection been made, we may have found the Commonwealth's comments to constitute reversible error. But, as in [prior cases], upon a consideration of the overall trial and the context in which the comments in question were made, we do not find that there is a substantial possibility that the Commonwealth's argument seriously affected the overall fairness of the proceedings. Thus, we decline to find that the Commonwealth's comments rise to the level of palpable error.
Eugene wonders exactly what is improper about urging a sentencing jury to "send a message." In addition, I have certainly seen this sort of argument used by many prosecutors in many jurisdictions. Have any other courts held or suggested a "send a message" sentencing argument is improper? On what basis?
UPDATE: Eugene adds some points here on his blog, which has generated some additional interesting commentary.
Death penalty news and notes
A number of notable death penalty items have caught my eye:
- ODPI notes here that a North Carolina judge has stayed the Dec. 1 execution of Guy Legrande, whose case has drawn to the issue of the execution of mentally ill defendants, for 60 days to allow for a mental evaluation. StandDown Texas has more here.
- A quick glance at data here and here from DPIC indicates that there will be, at most, 54 executions in 2006. That means 2006 will be the year with the fewest executions in a decade.
- This weekend post asking about how to improve the death penalty has generated some fascinating commentary, as well as this post at Capital Defense Weekly.
What's happening during the reasonableness interregnum?
Inspired by a question from a practitioner, I am wondering how federal district and circuit courts around the country are dealing with post-Booker sentencing issues as everyone gears up for the Supreme Court's work in Claiborne and Rita (lots of background here). It is fair to assume that SCOTUS took up these cases to disrupt the current status quo of reasonableness review, particularly the circuits' suspect tendency to reverse nearly all below-guideline sentences appealed by the government and to affirm virtually all within-guideline sentences appealed by defendants (ugly patterns noted here). And yet, the status quo is the prevailing law until the Supreme Court says otherwise.
Claiborne and Rita are not scheduled to be argued until late February, and I doubt we will see a decision from the Court until probably June. And, in the meantime, tens of thousands of sentences need to be imposed by district courts, and thousands are subject to review in the circuits. Will resolution of many cases (particularly the hard ones) be slowed down as we anticipate rulings in Claiborne and Rita? Will there have to be hundreds, perhaps thousands, of resentencings no matter what is said in Claiborne and Rita.
Folks struggling with these issues "on the ground" are highly encouraged to use the comments to report what they are seeing (or what they think should be happening).
Intriguing child porn guideline ruling from Ninth Circuit
The Ninth Circuit today in US v. Kuchinski, No. 05-30607 (9th Cir. Nov. 27, 2006) (available here), has an interesting discussion of various post-PROTECT Act sex offender sentencing issues. Parts of the opinion ought to be especially interesting to computer crime gurus. Consider these paragraphs toward the end of the opinion:
Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control....
Kuchinski makes many daedalian arguments about his conviction and sentence. We reject most of them, but we do agree that he was sentenced in error when child pornography images in his cache files, which he neither controlled nor even knew the existence of, were used to calculate his Guideline range.
UPDATE: Orin Kerr comments on Kuchinski here.
No new SCOTUS cert grants, nor action on Angelos
As detailed here and here at SCOTUSblog, the Supreme Court is back in action this morning, but its latest order list (available here) does not include any cert grants. Notably, though the order list includes lots of cert denieds, I do not see any reference to the case of Weldon Angelos.
Angelos is the first offender who was begrudgingly sentenced to 55 years' imprisonment by Judge Paul Cassell for marijuana sales under federal mandatory minimums, and here I noted that SCOTUSblog had the Angelos case is on their "petitions to watch" for the Justices' Conference last Tuesday. I guess this means the Angelos case will be re-listed, perhaps a sign that a cert grant might still be in the cards.
November 26, 2006
Federal cocaine sentencing reform dog not barking
Perhaps it is a good sign for future reforms that the AP has this new lengthy article discussing the failure of Congress to do anything about the crack/powder federal sentencing disparity. Here is a snippet:
Congress is headed toward adjournment again this year without acting on what is widely viewed as an indefensible sentencing disparity between federal drug offenses involving crack and powder cocaine. Although nearly everyone agrees that the uneven treatment the two drugs receive under federal sentencing laws is unfair, Democrats and Republicans have been locked in a stalemate for more than a decade over the proper fix. That stalemate, unlikely to break before Democrats regain control of Congress, has left in place a system that frequently sends black, inner-city defendants to jail for more than a decade over quantities of crack that would fetch far shorter sentence for powder-cocaine offenders....
With Democrats taking control of Congress, incoming Senate Judiciary Committee Chairman Patrick Leahy of Vermont and fellow committee Democrats will likely take up the issue soon, said Tracy Schmaler, Leahy's spokeswoman. But with narrow majorities in both the House and Senate, it remains unclear whether any of the Democratic proposals could pass.
UPDATE: Over at BlackAmericaWeb.com, one can now find this original article entitled "Many Hope Democrats' Majority Results in End of Crack vs. Cocaine Sentencing Disparities."
Can Scalia, the criminal libertarian, sway Alito and Roberts?
Scott Turow has this nice essay in today's New York Times Magazine, entitled "Scalia the Civil Libertarian?". The piece emphasizes Apprendi as it notes "that Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases." Though mostly focused on "war on terror" issues, Turow indirectly spotlights that traditional left-right divides do not effectively capture the Supreme Court's modern criminal justice jurisprudence.
The piece concludes by noting that "Scalia has seldom been a consensus builder on the court, preferring to stick with his own views rather than troll for votes." Yet, I suspect that Justice Scalia had some role in Justice Thomas's embrace of Apprendi principles, and one big issue this Term is whether he might sway the two new Justices to embrace these principles.
Based on their oral argument questions in Cunningham (background here) and Burton (background here), I do not think the new Chief or Justice Alito is much of a fan of Apprendi and Blakely. But perhaps a tag team of Justices Scalia, Stevens and Thomas might lead them on a trip (along with Justice Breyer?) to Apprendi-land.
Lots of Sunday sentencing headlines
Google news this morning brings up a number of interesting sentencing items:
- From the Houston Chronicle here, "Our lock 'em up justice is a loser"
- From the Kansas City Star here, "Tough on crime? It's hard on coffers"
- From the Miami Herald here, "Tracking down sexual predators just in time"
- From the Sacramento Bee here, "Editorial: Time to consider sentencing reform in prisons"
- From the Toronto Sun here, "Porn star may face stiff sentencing from tough Nevada judge if he's deported back to the U.S. on sex-related offences"
- From the Yakima Herald-Republic here, "Are longer sentences the answer to car theft rates?"